A Fraserian theory of anti-discrimination law

Abstract

To be part of progressive political projects, anti-discrimination law needs to be critical of its role in contemporary societies, where it is faced with processes of modernisation that push towards social/political disintegration and systemic/market integration. This article attempts to locate anti-discrimination law within a theory of social/political emancipation, in order to understand both its strengths and limits. In that regard, it uses elements and insights from Nancy Fraser’s critical theory to argue that anti-discrimination law is an anti-misrecognition device that operates within an interimbrication of different spheres: culture, economy and politics. In societies facing complex and systemic challenges, anti-discrimination law constitutes an interesting case of non-reformist reform. Indeed, anti-discrimination law can be a first step, with the materials we have at hand, towards elaborating progressive political projects that could reinforce the current struggles for human emancipation and alter the terrain upon which later struggles will be mounted.

Keywords

Nancy Fraser anti-discrimination law emancipation critical theory recognition

Introduction

Different governments have created equality and anti-discrimination laws on the assumption that they are part of progressive political projects tackling key social and economic evils: discrimination undermines the social basis for economic systems, unjustly restricts access to important social goods, constrains valuable options for individual freedom, generates harms for individual and social identities and endangers social cohesion.¹ For conservatives, however, anti-discrimination law goes too far in attempting to intervene in social relations and promote cultural and social changes according to an egalitarian ideal (Pricker, 2003, p. 771); for some liberals, anti-discrimination law should be narrowly crafted (or, worse still, dispensed with altogether) in order to avoid curtailing other important freedoms, like freedom of association or freedom of contract (Epstein, 1995); for the sceptical left, anti-discrimination law may be deemed as the ‘darling’ of neoliberal projects, endorsing a politics of identity that forgoes issues of redistribution (Somek, 2011). This puzzling scenario invites us to think better about the nature and purpose of anti-discrimination law.

To be part of progressive political projects, anti-discrimination law needs to be critical of its role in contemporary societies, where it is faced with processes of modernisation that push towards social/political disintegration and systemic/market integration (Streeck, 2011, p. 25). Neither a panacea nor a purely human face for neoliberal arrangements, anti-discrimination law could be a truly revolutionary project that aims to transform the current state of affairs. Philosophical debates around anti-discrimination law have attempted to give an account of its promises. By placing the wrongness of discrimination in certain aspects of our current practices, different theories of anti-discrimination law have tried to give an account of this emergent field of law by explaining when and why discrimination is wrong, and the need for legal regulation (Hellman and Moreau, 2013).

Debates around the philosophical foundations of anti-discrimination law seem to be ill-equipped to provide an account of the emancipatory potential of this emergent field of law. Although these debates wander between the look for univocal and pluralist theories that can provide a normative foundation for anti-discrimination law, and which have an impact on how the law works and affects people’s lives, these theories bypass the fact that anti-discrimination law contains radical promises that need to be reassessed in the current state of post-socialist conditions.^2,3 The debates around the philosophical foundations of anti-discrimination law are important for doctrinal issues that continually arise in the case law, which include the distinction between direct and indirect discrimination, the availability of defences against discrimination claims and the connection between particular distributive questions (the distribution of rights and duties to different actors) and the general justifying aim of anti-discrimination law, among others. It is here that critical social theories enter the picture, clarifying the strengths and limits of anti-discrimination projects, that is, the place of anti-discrimination law within a theory of social/political emancipation.⁴ To the extent that legal frameworks observe both normative and instrumental dimensions, anti-discrimination law has an enormous emancipatory potential. However, to unfold that potential, we must go beyond the frontiers of law and take the long turn: to start from the basic premises of critical theory in order to locate anti-discrimination law within them. As a result, I will claim that even if anti-discrimination law is not a solution to every social problem, or the ultimate revolutionary device, it is more transformative than what some of its critics sustain.

What are the limits of the transformative potential of anti-discrimination law? If anti-discrimination law is not a solution to every problem, how should we understand the role of anti-discrimination law in different spheres, such as the economy, culture and politics? What kind of economic or political harms can anti-discrimination law properly address? In sum, what is the truly revolutionary aspect of anti-discrimination law that triggers reactions from different constituencies? To answer these general questions, I will elaborate on Nancy Fraser’s work to develop the basis of a critical theory of anti-discrimination law. In general, critical theories distinguish themselves from traditional theories in regard to their practical aim towards human emancipation, that is, challenging domination or oppression and improving human freedom in all its forms. In order to do that, every critical theory is ‘necessarily interdisciplinary in nature’, and ‘must explain what is wrong with current social reality, identify the actors to change it, and provide both clear norms for criticism and achievable practical goals for social transformation’ (Bonham, 2005). As an intellectual enquiry that is not contained within a single discipline, I will use critical theory and engage with law and legal frameworks to explore the emancipatory potential of anti-discrimination law. With the help of Fraser’s critical theory, I will argue that we can read anti-discrimination law as an anti-misrecognition device and display its transformative potential, considering this field of law as a paradigmatic case of ‘non-reformist reform’ (Fraser, 2003a, p. 79).

The structure of this article is the following: first, I will explain the basic premises of Nancy Fraser’s critical theory, and introduce the reader with the concept of ‘non-reformist reforms’, which can be used to assess whether a policy or action could be framed as emancipatory in the current post-socialist conditions; subsequently, I attempt to reconstruct Fraser’s legal thoughts, which can be traced back to her ‘political critique of the force of law’, where law and legal frameworks have both normative and instrumental dimensions; finally, and built on the previous sections, I will consider anti-discrimination law as an anti-misrecognition device that is interimbricated with other spheres, allowing us to understand the strengths and limits of this field of law. Together, these sections represent the building blocks of a Fraserian theory of anti-discrimination law, a research project that needs to be developed in more detail in years to come.

Fraser’s critical theory and emancipation: Non-reformist reforms

In order to inscribe anti-discrimination law within the registers of critical theory, we need to explain the latter’s aims, purposes and methods. To do that, I will focus on a specific author, Nancy Fraser, who I think provides us with concepts and ideas to assess what is the place of anti-discrimination law within an era that offers little hopes for social or political transformation. Nancy Fraser is a critical theory scholar who has developed a ‘comprehensive critical theory of justice’ in the midst of current post-socialist conditions (Forst, 2008, p. 310). Her theory’s ultimate aim is to provide a comprehensive framework through which to understand and clarify the different struggles of our times. In several works, she uses the famous statement of Karl Marx on what should be the object of philosophy, which counts as a general definition of critical theory: ‘the self-clarification of the struggles and wishes of the age’ (Fraser, 2013, p. 19). In contrast with a Rawlsian approach, which bypasses an analysis of the concrete injustices that afflict contemporary societies, she starts from an empirically grounded social theory to develop her normative standard of participatory parity (Fraser, 2003b, pp. 204–205). Indeed, her theory draws mostly from the struggles of feminist movements and assesses the extent to which our critical theories ‘serve the self-clarification of the struggles and wishes of contemporary woman’ (Fraser, 2013, pp. 19–20). In this context, ‘the folk paradigms of justice that constitute a society’s hegemonic grammars of contestation and deliberation’ are the starting point for Nancy Fraser’s theory, although ‘they do not enjoy any absolute privilege’ (2003b, pp. 207, 208). In her famous debate with Axel Honneth, who endorses a subject-centred philosophy, in which moral psychology grounds, and constrains, social theory and moral philosophy, the method of the critical theorist becomes clearer, because it should assess ‘folk paradigms of justice’ with two independent questions: ‘first, from, the perspective of social theory, whether a society’s hegemonic grammars of contestation are adequate to its social structure, and, second, from the perspective of moral philosophy, whether the norms to which they appeal are morally valid’ (Fraser, 2003b, p. 208).

Within the first perspective, Fraser advocates a social theory capable of analysing the mutual imbrication of economy, culture and politics in contemporary societies, and avoids approaches such as substantive trialism (where there is a dissociation between each dimension) or economism/culturalism/politicism (where the different dimensions are reduced to one). Instead, she adopts a ‘perspectival trialism’, where redistribution, recognition and representation are three analytical perspectives applied to social phenomena, ‘which cut across institutional divisions’ (Fraser, 2003b, p. 217).⁵ It is important to highlight that these are analytical distinctions within a theory that has been elaborated with a single purpose: to provide an evaluative framework to the struggles of our time.⁶ In other words, these are not distinctions that pretend to mirror social dynamics or describe states of facts; instead, it is an approach for the social theorist who is working to offer guidance on the struggles of social movements (Fraser, 2003b, p. 198). In this regard, redistribution, recognition and representation can be applied to the analysis of any given social struggle of our age.

In the realm of moral philosophy, she offers a ‘clear articulation of a normative framework’ to distinguish between worthwhile desires and aims for the struggles of our age (Zurn, 2008, p. 148). Specifically, grounded within a liberal/universalist ‘norm of the equal moral worth’, she proposes the standard of ‘participatory parity’, where ‘justice requires social arrangements that permit all members of society to interact with one another as peers’ (Fraser, 2008a, pp. 84, 87).⁷

Within post-socialist conditions, and in the current context of complex societies facing modernisation processes that pull towards systemic integration, which in its turn endangers communicative practices of social integration, the question that emerges is how a theory of social justice like that of Nancy Fraser can foster human emancipation. A first remark is that Fraser attempts to develop a critical theory that defends the ‘continued importance and the continued validity of “grand theorizing”’, which provides us with ‘a big picture that allows us to situate ourselves historically and to orient ourselves politically’ (Dahl et al., 2004, p. 381). Although we may be dealing with gender subordination in ordinary family relations, we should never lose sight of the big picture, of what is at stake structurally and politically in those relations. Nevertheless, one of the most important premises that unifies different critical theories is starting ‘with agents’ own pretheoretical knowledge and self-understandings’ and employing different approaches according to the differing circumstances (Bonham, 2005). Moreover, contemporary critical theories need to show some ‘perspicacity’: ‘if, at the end of the day (…) critical social theory doesn’t tell us something insightful and practically useful about the actual struggles and wishes of our age, then it has missed the target’ (Zurn, 2008, p. 143).

Without abandoning the need for grand-theorising, Nancy Fraser borrowed from André Gorz the term ‘non-reformist reform’, in order to assess whether a policy or action could be framed as emancipatory in the current post-socialist conditions (Fraser, 2003a).⁸ In the words of Fraser, these are reforms (or, better, struggles) that ‘set in motion a trajectory of change in which more radical reforms become practicable over time’ (Fraser, 2003a, pp. 79–80).

In this way, Nancy Fraser is on the look out for a ‘via media between an affirmative strategy that is politically feasible but substantively flawed, and a transformative one that is programmatically sound but politically impracticable’ (Fraser, 2003a, p. 79). Moreover, in connection with Fraser’s understanding of Foucauldian genealogies of power, we could understand that emancipation, in her theory, ‘refers specifically to transforming a state of domination into a mobile, reversible, and unstable field of power relations within which freedom may be practiced’ (Allen, 2015, p. 517). In other words, emancipation does not mean freedom from power relations (with Foucault, we would say, there is no way out of power relations, we are subjectively constituted by them), the traditional utopian image of freedom for the Enlightenment tradition; however, as Fraser states, ‘what Foucault needs, and needs desperately, are normative criteria for distinguishing acceptable from unacceptable forms of power’ (Fraser, 1981, p. 286). The standard of participatory parity, in connection with her political critique of the force of law, which will be explained later, will allow us to frame anti-discrimination law as a non-reformist reform,

that opens up lines of fragility and fracture within the present that are also spaces of anticipatory illumination, spaces that enable us to transform states of domination into mobile and reversible fields of power relations, and to practice freedom within those fields. (Allen, 2015, p. 524)

In a way, non-reformist reforms are ‘policies with a double face’: they call upon people’s identities and articulate their claims within existing frameworks/grammars of recognition, redistribution and representation, while they also ‘set in motion a trajectory of change in which more radical reforms become practicable over time’ (Fraser, 2003a, p. 79). Thus, for example, feminist movements are challenging hard-wired norms that rank ‘masculine’ qualities above ‘feminine’ ones, but they must also gain concrete advances in order to broaden their support. In other words, contrary to former social movements that have sacrificed immediate achievements for an ultimate aim, Nancy Fraser calls for reforms that could reinforce current power struggles. The strategy, then, lies in

conceiving and pursuing reforms that deliver real, present-day results while also opening paths for more radical struggles for deeper, more structural change in the future. Feminists can embrace this approach in an agnostic spirit. We don’t need to decide now whether the end result must be a postcapitalist society (…) So I say, let’s pursue nonreformist reforms and see where they lead. (Gutting and Fraser, 2015)

In the following section, I will elaborate a Fraserian critical theory of law that allows us to conceive anti-discrimination law as a paradigmatic case of non-reformist reform, that is, as a field of law that opens lines of fragility within current law and legal frameworks and that prepares the path for more structural changes in the future.

Fraser’s critical theory of law

Having introduced the basic ideas of Fraser’s critical theory, this section will now attempt to delve in her work to analyse her thoughts on law and legal frameworks. This reconstruction is useful to understand the possibilities of a transformative approach to legal discourses and devices, which are traditionally depicted with suspicion by some critical theories, such as the ones developed from the work of Foucault or Derrida (Brown and Halley, 2002). In this section, I will focus on one of the most pressing questions regarding Nancy Fraser’s theory of justice, a question that has been raised frequently in exchanges with Jacques Derrida (1992), Axel Honneth (2003), Leonard Feldman (2002), Christopher Zurn (2008), William Scheuerman (2017a) and Thomas McCarthy (2005), among others. In general, these critics have claimed that Fraser has neglected the analysis of law as a separate sphere (the neglect critique). Even though she locates her normative principle of participatory parity within the liberal values of equality, freedom/autonomy and dignity, for her critics ‘she does not elaborate it in legal-and political-theoretical terms; thus, she largely bypasses the complicated contestation of the meanings of equality, autonomy, and the like within the liberal tradition’ (McCarthy, 2005, p. 400).

Moreover, as put by one of her critics, ‘Fraser tends to treat law as purely instrumental, as a guarantor of redistribution and recognition claims, rather than as a mode of social ordering and a dimension of social justice in its own rights’ (the instrumentalist critique) (Honneth, 2003, pp. 251–252; McCarthy, 2005). For Axel Honneth, within Fraser’s approach to law,

state-sanctioned rights are to have only the purely instrumental function of equipping already achieved entitlements to cultural recognition or economic redistribution with certain enforcement powers after the fact. This instrumentalism (…) forgets that rights govern relations among actors in fundamental ways, and their significance to social interaction is thus not only functional. Rather, the subjective rights we grant one another by virtue of the legitimation of the constitutional state reflect which claims we together hold to require state guarantees in order to protect the autonomy of every individual. This interactive character of rights also allows us to explain why they should be understood as independent, originary sources of social recognition in modern societies. (Honneth, 2003, pp. 251–252)

In several works, Honneth has stressed that legal recognition or legal freedom is indispensable for personal integrity and thus a positive achievement of modernity, because law is needed to enable structures of recognition outside the legal sphere of rights (1995, 2014). This is what Fraser supposedly ignores or bypasses, the centrality of law and rights for political and social struggles in modernity. Although Fraser expresses ‘fidelity to critical theory as an interdisciplinary endeavor, law’s status within that project ultimately remains unclear’, opening the door to critiques of endorsing a neo-Marxist approach to law that is merely functional or instrumental (Scheuerman, 2017a, p. 123). Despite her self-declared neo-Kantian commitment, she does not address law, the rule of law or rights, and does not engage with the legal scholarship inspired by Frankfurt’s Critical school, especially that since the publication of Habermas’ Between Facts and Norms (1996).

Although her general comments on law are very brief, we can say that her empirical reference points always deal with social struggles around legal institutions (e.g. marriage) or waged within legal discourses (e.g. domestic violence). In this regard, law becomes a crucial object of analysis, as social movements use legal discourse as one of the main avenues to advance their ‘folk paradigms of justice’, either to challenge legally sponsored subordinations or to ‘redress nonjuridified status subordination’ (Fraser, 2003b, p. 221). The question, then, could be reformulated from the point of view of the relationship between law and social change, or between law and the demands of social movements.

Even if her main works do not directly address the central place that law occupies in social and political struggles, her exchanges with several scholars allow us to reconstruct her legal thoughts in a more fruitful way. Her thoughts on law are rooted in her comments to Jacques Derrida’s legal ideas, a brief work that has not been quoted by most of her critics, and that could help us in defending her critical theory approach to law (Fraser, 1991/1992, p. 1325).⁹ In contrast to Derrida, who endorsed a metaphysical idea about the force of law as constitutively and inescapably violent, she supported a political understanding of the force of law that locates ‘law’s force in contingent social relations and institutionalizations of power’ (Fraser, 1991/1992, p. 1328). Moreover, her political approach to the force of law specifies the object of critical theory in ‘forms of masked, structural violence’, because we tend to overlook ‘a range of systemic social processes’ that generate massive harms, and ‘which cannot be easily attributed to identifiable individual agents’ (Fraser, 1991/1992, p. 1328). For example, she pays special attention to the expressive harms or symbolic injustices rooted in legal institutions that operate to exclude certain groups, who then become unable to participate as peers in certain social interactions (Fraser, 2000, p. 115).

Specifically, in her critique of Derrida’s The Force of Law, she supports a critique of law that can highlight the structural limitations of current legal systems in addressing ‘claims for harms one has suffered by virtue of belonging to a social group’ (Fraser, 1991/1992, p. 1329). Thus, she has always been aware of the limits of an individualistic justice that ‘presents obstacles to anyone who seeks judicial standing to claim that a systemic injustice has occurred’ (Fraser, 1991/1992, p. 1329). Furthermore, a political approach to the force of law, she argues, should not preclude a critical analysis of the cultural backgrounds of legal systems, which determine the functions and outcomes of legal decision-making processes that ‘work to the disadvantage of subordinated social groups’.¹⁰ Summarising her ‘political critique of the force of law’, we could say that its object consists in rendering visible ‘forms of masked, structural violence that permeate, and infect’ specific legal judgments, an ‘institutionalized regime of justice reasoning situated in a specific, structured, sociocultural context’ (1991/1992, p. 1330).

At the end, she leaves open the door for considering law as a vehicle of social emancipation, because her theory of social justice has the normative tools to distinguish and identify forms of legal violence that are not necessary (1991/1992, p. 1330). We should remember that Fraser’s ‘perspectival trialism’ conceives of law as pertaining to the three above-mentioned domains of justice (redistribution, recognition and representation), ‘where it is liable to serve at once as a vehicle of, and a remedy for, subordination’ (Fraser, 2003b, p. 220). Again, in contrast with Honneth, who reserves a special place for legal recognition in one institutionalised social sphere (rights), Fraser highlights the pivotal role that law plays in many social spheres, giving form to what Scheuerman called the compartmentalisation thesis against Honneth (Scheuerman, 2017a, p. 116).

For Honneth, family and marriage fall under the sphere of love, esteem or solidarity in our social relations (e.g. work), while legal recognition deals with the respect we need in public spheres, as citizens with equal rights. In the words of Scheuerman, for Fraser, ‘[t]he law decisively shapes intimate relationships in ways that Honneth’s attempt to parcel it off into a separate sphere of recognition obscures’ (2017a, p. 116). However, in other parts of his work, Honneth gets closer to Fraser and stipulates a broader role for law in modern conditions, where it can serve as a ‘legitimate and even necessary means to make sure that recognition in the sphere of intimacy takes a normatively acceptable form. Law does not disable but instead enables “structures of recognition” even outside the (legal) sphere of rights’ (Scheuerman, 2017a, p. 116). This is an issue that has been present since the early works of Fraser, especially in her critique of the Habermasian view on juridification, which romanticises the family as a sphere of communicative interaction that should be kept apart from the density of legal regulation, according to his distinction between system and lifeworld (Fraser, 2013, p. 30). In contrast with Scheuerman, who suggests that Fraser is an enemy of legalism, we can read Fraser’s critical approach to juridification as part of her political approach to the force of law: we should not be afraid to use the weapons of law, or fight within legal arenas, especially against certain epistemologies that start from substantive boundaries that put the family, educational institutions or other romanticised spheres outside the scope of legal regulation. By treating law perspectivally, Fraser assumes that we can call for its force whenever we face a parity-impending challenge.

Although she has not spent too much energy on developing a thoughtful approach to legal issues, her political critique of the force of law acknowledges that law is not just an instrument but constitutes an important insight into the analysis of ‘folk paradigms of justice’; for example, it has allowed feminist movements to display their struggles in legal arenas, recognising their own despised identities in legal discourses (e.g. human rights) and transforming the meaning of legal terms that were previously understood according to dominant positions (Fraser, 1989, p. 183). In this way, Fraser can respond to the instrumentalisation critique and advance the possibility of addressing law and legal discourse as sources of social justice in itself. Legal discourses (i.e. an officially recognised idiom, which includes concrete vocabularies, paradigms of argumentation, narrative conventions and modes of subjectification) are readily available means of interpretation and communication (MIC) that constitute ‘the historically and culturally specific ensemble of discursive resources available to members of a given social collectivity in pressing claims against one another’ (Fraser, 2013, p. 57).¹¹ Even if ‘a society’s authorized [MICs] are often better suited to expressing the perspectives of its advantaged strata than those of the oppressed and subordinated’, social struggles deploying legal strategies or making their claim in legal avenues have made linguistic innovations to articulate injustices that previously lacked names (Fraser, 2008c, p. 334).¹² I think that this idea of law as being both constitutive and instrumental is closer to what Nancy Fraser recognises as the proper picture of law in her theory. In some way, this places Fraser closer to the emerging literature on law and social movements, which has abandoned a purely instrumental notion of law for a more complex picture (McCann, 2004).

Anti-discrimination law as an anti-misrecognition device

Having located law and legal frameworks within Fraser’s work, now I will attempt to construct a Fraserian approach to address the emancipatory potential of anti-discrimination law, a recently created discipline that contains significant promises to those who suffer exclusion, oppression or other forms of mistreatment. To do this, and rather than addressing doctrinal legal issues around anti-discrimination law, in this section, I will claim that there are good reasons in Fraser’s work to understand anti-discrimination law as an anti-misrecognition device and inscribe it within her critical social theory. Although she has not made any detailed analysis of anti-discrimination law, her theory allows us to place this field of law within broader reforms or policies for emancipatory social change. At first glance, Fraser’s theory of social justice could favour a reading of anti-discrimination law as a device against every form of injustice. Indeed, anti-discrimination law has been used in every social sphere, from tackling everyday discrimination in the media (culture), to highlighting the absence of women from political positions of power (politics), and addressing poverty in countries that do not have a welfare state (economy). In general, then, anti-discrimination law cuts across the three domains of justice. However, according to Fraser’s theory, I will argue that anti-discrimination law could be considered an anti-misrecognition device for the following reasons: first, we need an account of anti-discrimination law that acknowledges its limits, because it is not a solution to every form of injustice; second, we require an articulation with the remedies against forms of injustice that are mainly rooted in the economy or in the political sphere; and third, instead of drawing upon an ontological distinction between what pertains to the state and what pertains to culture, we need to combat the formal/cultural institutionalisation of value patterns that impedes participation as peers in social life. In what follows, I will first explain what kind of injustice misrecognition entails and the dynamic interconnection with other forms of injustice, to end by describing anti-discrimination law as an anti-misrecognition device.

Fraser’s analysis of contemporary recognition struggles starts from the need to develop a comprehensive theory of justice that can articulate different struggles addressing different harms. In her early works, she started from the fact of our current postsocialist conditions in order to analyse two different paradigms of social justice, redistribution and recognition, and integrate them into a single framework (a ‘bivalent conception of justice’) (1996). Her initial worries were rooted in the dilemmas between recognition and redistribution struggles, specifically in the problem of ‘displacement’:

The demise of communism, the surge of free-market ideology, the rise of ‘identity politics’ in both its fundamentalist and progressive forms – all these developments have conspired to decenter, if not to extinguish, claims for egalitarian redistribution. (1996, p. 4)

To address this problem, she provided an account of two different conceptions of injustice, maldistribution and misrecognition, which could be addressed in every societal domain (‘perspectival dualism’) (Fraser, 2003a, p. 63). She stated that applying these two analytical perspectives to contemporary struggles required a socio-theoretical framework where ‘neither of these injustices is an indirect effect of the other’, but where both could be understood as ‘primary and co-original’ (Fraser, 1996, p. 4). She later recognised the need to incorporate politics as a separate domain, where a distinct form of injustice (misrepresentation) takes place (‘perspectival trialism’) (Burns and Thompson, 2013, p. 172).¹³ In this sphere, the struggles are about participation itself, that is, about who has a voice, and about membership in a participatory community.

Fraser’s status model of recognition is influenced by a Weberian approach to Marx.¹⁴ Indeed, within this folk paradigm of justice, victims ‘are more like Weberian status groups than Marxian classes’ (Fraser, 2013, p. 14).¹⁵ In other words, they are ‘[d]efined not by the relations of production, but rather by the relations of recognition, [and] they are distinguished by the lesser respect, esteem, and prestige they enjoy relative to other groups in society’ (Fraser, 2013, p. 14). When evaluated from the standard of participatory parity, misrecognition is a specific form of injustice where ‘institutionalized patterns of cultural value constitute some actors as inferior, excluded, wholly other, or simply invisible, hence as less than full partners in social interaction’ (Fraser, 2013, p. 29).

In contrast with ‘identity models of recognition’, such as those of Axel Honneth and Charles Taylor, which ‘start from psychological premises about the intersubjective conditions for the development of a sense of personal identity’, the status model of recognition endorses a sociological approach that ‘treats recognition from the external perspective of a sociological observer rather than the internal perspective of individuals engaged in intersubjective relations of recognition and identity-formation’ (Zurn, 2008, pp. 147–148). Hence, misrecognition should not be understood mainly as a cognitive/psychological issue, but as ‘an institutionalized social relation’ (Fraser, 1997a, p. 280). Although Fraser does not ignore the possibility that misrecognition may have profound effects on individual identities, she considers that from the perspective of a critical theory of justice, we should not start the analysis of our current struggles from subjective, unmediated, pre-political experiences of injustice (Zurn, 2004, p. 167). In other words, ‘the status model does not so much exclude other meanings of recognition as set constraints on how they may be legitimately achieved’ (Fraser, 2008c, p. 333).

Furthermore, the need to look at status rather than identities does not imply endorsing a fixed ontological lens that assumes that groups are an unavoidable fact of modernity. Although Fraser’s model

does not deny the multiplicity of kinds of social affinity groups, collectivities, associations, coalitions, and so on found in complex societies, it focuses only on those groups that owe their existence as a group to being placed in a subordinate social position because of entrenched patterns of cultural value. According to the status model, then, misrecognition arises not merely from cultural and symbolic slights, but only from those that are anchored in social institutions and that systematically deny the members of denigrated groups equal opportunities for participation in social life. (Zurn, 2008, p. 148)

In her early works, Fraser acknowledged the tensions between ascertaining the existence of group-based misrecognition and the reifying potential of group identities, which in turn excludes dissenters and breeds separatism (1997).¹⁶ Her liberal commitment to the principle of equal moral worth and the standard of participatory parity made her radically aware of the potentially oppressive role of group identities for individual autonomy.¹⁷ Moreover, her critical stance towards social struggles and social movements does not commit her to a full partisan endorsement of those causes: ‘once we couch misrecognition in terms of status subordination, it becomes clear that misrecognition can occur not only across groups, but within groups as well’ (Zurn, 2008, p. 153). In this way, we can understand her critical stance on how the achievements of second-wave socialist feminists have been co-opted by mainstream neoliberal thought, reproducing the social conditions for gender subordination (Fraser, 2009).

To overcome misrecognition, she initially advocated a deconstructive recognition politics (as she advocated socialism for redistribution struggles), aimed at the deconstruction of binary oppositions that reproduce practices of cultural misrecognition.¹⁸ The initial versions of her account were against an ‘affirmative politics of recognition, as interfering with transformative economic justice and generating perverse feedback loops of resentment when combined with liberal welfare state programs targeting disadvantaged groups’ (Feldman, 2008, p. 223).¹⁹ However, in the Tanner Lectures (1996), she elaborated a more diversified account of recognition remedies, arguing that ‘judgments about the appropriateness of a deconstructive approach to cultural injustice or a multiculturalist approach cannot be made theoretically, and a priori’ (Feldman, 2008, p. 223). Later, in Recognition Without Ethics, Fraser acknowledged that recognition struggles should choose their strategies and remedies carefully, according to the particular kind of cultural injustice that they purport to tackle, while also assuming a connection with the other two dimensions of justice (2001, p. 31). Some injustices may require misrecognised groups

to be unburdened of excessive ascribed or constructive distinctiveness. In other cases, they may need to have hitherto underacknowledged distinctiveness taken into account. In still other cases, they may need to shift the focus onto dominant or advantaged groups, outing the latter’s distinctiveness, which has been falsely parading as universality. Alternatively, they may need to deconstruct the very terms in which attributed differences are currently elaborated. Finally, they may need all of the above, or several of the above, in combination with one another and in combination with redistribution. (1996, p. 35)

In other words, a range of different recognition remedies, whether affirmative or transformative, may be available, across the different domains of justice. The target of these different remedies is not the culture, the economy or ‘the political’ as separate entities (substantive trialism), but rather different harms whose origins lie primarily in these different spheres. Any attempt to tackle a phenomenon like discrimination, without being aware of the interimbrications, may end up reproducing the conditions that generate a certain harm in any sphere of interaction.²⁰ In some exceptional cases, Fraser acknowledges the possibility of cross-redressing, that is, redistribution remedies that tackle misrecognition, or recognition remedies that tackle maldistribution (2003a, p. 83). In a way, Fraser’s initial dilemma between redistribution and recognition struggles has gradually shifted from a tragic to a practical dilemma: ‘[t]here are real and persistent practical differentiation tensions between the numerous remedies and strategies that might be adopted to achieve social justice’ (Zurn, 2004, p. 179).

Based on this account of recognition, there are several lessons we can draw for diverse challenges that current advocates of anti-discrimination law have to face. To the extent that misrecognition entails institutionalised patterns of cultural value that infringe on agents’ participatory parity, anti-discrimination law is never about merely revaluing despised identities but about restoring the possibility to participate on equal terms in the construction of those patterns. In this account, then, anti-discrimination law is not the mere legal extension of ‘identity politics’, a discourse that has attracted fierce critiques on recent decades. Secondly, and considering that Fraser’s model of recognition does not entail an ontological lens to social groups, or the uncritical endorsement of oppressed groups’ demands, we may develop an approach to anti-discrimination law that is aware of the tensions between collective identities and individual autonomy. In this regard, for example, the recognition of protected grounds within anti-discrimination legal frameworks does not entail a blind legal recognition of social identities. Moreover, Fraser’s practical approach towards recognition remedies may teach us that anti-discrimination law encompass different ways of redressing misrecognition harms, ranging from the adoption of traditional formal equality tactics (i.e. colour-blindness) to the challenge of dominant cultural value patterns that entail revaluing despised identities. Although ‘standard forms of formal legal equality’ are necessary but not sufficient for participatory parity to be possible, the strategy of groups pushing for differentiation today may be the consolidation of formal equality tomorrow (Fraser, 1996, p. 30). A more detailed analysis of the history of legal equality clauses would teach us that recognition remedies are not always pushing for the consolidation of difference, opening up the possibility for an approach to anti-discrimination law that accommodates a range of different recognition remedies in its struggle against misrecognition, considering the interimbrication of the different spheres.²¹ Finally, this practical approach towards recognition remedies should be coupled with her analytical distinctions of non-class forms of oppression with class and citizenship in contemporary capitalism. Fraser’s analytical distinction between misrecognition, maldistribution and misrepresentation is appropriate to understand the limits of an emancipatory tool like anti-discrimination law. Indeed, when we are able to understand in which sphere certain harm is mainly rooted, we are able to tailor particular remedies, allowing us a more efficient use of our limited capacities for social struggles. Within Fraser’s account, anti-discrimination law attempts to tackle a social phenomenon that has its origins in the institutionalisation of cultural value patterns, which may have effects in different spheres or dimensions, as illustrated by the economic or political effects of discrimination. As an anti-misrecognition device that tackles harms that are mainly rooted in culture, this does not mean that it does not operate in the economy or in the political sphere. In what follows, I will develop this idea in more detail, because I think it constitutes the most important lesson of portraying anti-discrimination law as an anti-misrecognition enterprise.

The idea that harms are rooted primarily in the cultural sphere does not mean that anti-discrimination law tackles merely symbolic harms. Contrary to the idea of coupling symbolic harms with culture and material harms with the economy, Fraser explains that ‘injustices of misrecognition are just as material as injustices of maldistribution’ (1997, p. 286). Thus, ‘norms, significations, and constructions of personhood that impede women, racialized peoples, and/or gays and lesbians from parity of participation in social life are materially instantiated’ (Fraser, 1997, p. 286). Her theoretical framework, then, ‘eschews orthodox distinctions’ and endorses a socio-theoretical distinction between the different spheres in order to propose a theory of social emancipation that can deal with the gaps, with those instances where misrecognition is not the superstructure of an economic base, or address those economic complexities that move fluidly across different cultural spheres in order to achieve its self-declared aims of enhancing competitiveness or maximising profits (Brown, 2015; Fraser, 2009).

Furthermore, labelling anti-discrimination law an anti-misrecognition device does not preclude the mutual influence of the different spheres, the mutual imbrication between the economy, culture and politics. On the contrary, these ‘three dimensions stand in relations of mutual entwinement and reciprocal influence’, as Fraser states in Reframing Justice in a Globalizing World (Fraser, 2005, p. 79). Although the different articulations of the political dimension of justice have never been fully explained by Fraser, a footnote of the latter essay is the clearest articulation of this mutual ‘interimbrication’:

the capacity to influence public debate and authoritative decision-making depends not only on formal decision rules but also on power relations rooted in the economic structure and the status order (…). Thus, maldistribution and misrecognition conspire to subvert the principle of equal political voice for every citizen, even in polities that claim to be democratic. But of course the converse is also true. Those who suffer from misrepresentation are vulnerable to injustices of status and class. Lacking political voice, they are unable to articulate and defend their interests with respect to distribution and recognition, which in turn exacerbates their misrepresentation. In such cases, the result is a vicious circle in which the three orders of injustice reinforce one another, denying some people the chance to participate on a par with others in social life. As these three dimensions are intertwined, efforts to overcome injustice cannot, except in rare cases, address themselves to just one of them. Rather, struggles against maldistribution and misrecognition cannot succeed unless they are joined with struggles against misrepresentation – and vice versa. Where one puts the emphasis, of course, is both a tactical and a strategic decision. (2005, p. 79)

The interimbrication of the different spheres does not mean that anti-discrimination law can address every possible injustice, whatever the origin; rather, it starts from the idea that the political and economical systems tend to work according to their own logics, which can be better understood through other socio-theoretical devices, embedded in other subfields of law. Within a broader theory of social emancipation, we should conjoin these different struggles against maldistribution, misrecognition and misrepresentation. However, at a more concrete level, we should tailor particular remedies addressed at different kind of harms after ‘a tactical and a strategic decision’.²² It is within this pragmatic approach to remedies that I frame anti-discrimination law as an anti-misrecognition device.

The following Table 1 illustrates the potential roles anti-discrimination law can play within the interimbrication of the different spheres, suggesting it is neither an all-encompassing remedy nor strictly circumscribed within one of the spheres. In that regard, the following Table 1 shows the examples of harms mainly rooted in one of the three spheres, but with effects or influences in the others, and their possible remedies. In each box, I describe particular kinds of harms and, after the semicolons, suggest potential remedies tailored specifically to them.

Table 1.

Harms and remedies in different spheres.

Harms/Remedies	Culture	Economy	Politics
Culture	Status inequality (recognition); anti-discrimination law (redressing everyday discrimination in the media).	Gendered nature of poverty, childcare and unpaid work, gender pay gap (sexual division of labour); anti-discrimination law (formal equality, intersectionality)	Underrepresentation of women in politics; anti-discrimination law (quotas)
Economy	Stigmatisation of poverty; anti-discrimination law (poverty as a protected ground?)	Economic inequality (redistribution); unions, collective bargaining, taxation, financial regulation.	Buying votes; campaign financing laws.
Politics	Centralisation of politics and underestimation/stereotyping of the capacity of rural areas to develop themselves; political means	Exclusion of global south from international arrangements and underdevelopment; new UN venues (e.g. global parliament)	Political inequality (representation); new electoral systems, federal/parliamentary arrangements

Thus, for example, the first row shows different harms mainly rooted in the cultural sphere but with effects in all of the other spheres. Anti-discrimination law attempts to redress everyday discrimination in the media, where harms can be deemed to be merely cultural, that is, they impede parity of participation but without a clear impact in the other spheres (Pérez Portilla, 2016). For example, the stigmatisation of disadvantaged groups at comedy festivals could be addressed by using anti-discrimination law in conjunction with media regulations in order to tackle the reproduction of the social conditions of disadvantage, even if its effects or impacts on the economic well-being or citizenship status of the victims are not clearly proved. The Table 1 also shows us that the gendered nature of poverty, the economic costs of childcare activities and unpaid work, and, more clearly, the gender pay gap are mainstream cultural harms with profound economic effects. The remedies, here, may range from applying formal equality clauses to bridge gender pay gaps to an active use of intersectionality approaches to tackle the gendered nature of poverty. These remedies, in general, should bring forth or highlight the sexual division of labour, either by using comparators or by challenging the male-dominated horizons of value and its expressions in the job market (Fredman, 2016, p. 494). Lastly, anti-discrimination law has been used to challenge the lack of disadvantaged groups in positions of decision-making power by revealing the obstacles that a male-dominated arrangement of representative democracy creates for women: from the toughness and bargaining skills that are unjustifiably attributed to men, to the timetable of party meetings that make it difficult for women with ‘double shifts’ to attend (Thomas, 2016). However, even regarding harms that are rooted mainly in other spheres, anti-discrimination law can be used as an ancillary device. The most obvious case has been to address the cultural effects of a structural economic harm, like the stigmatisation of people living in poverty (Coddou, 2017).

In general, regarding harms mainly rooted in the other two spheres, Fraser’s theory of social emancipation would recommend tailoring remedies apart from anti-discrimination law. This has to do with her account of the interimbrication of the different spheres. On the one hand, she has continually stressed the idea that late capitalism has developed into a ‘social formation that differentiates specialized economic arenas and institutions, including some that are designated as cultural’ (Fraser, 1997b, pp. 127/128). What this means is that there is a ‘relative uncoupling’ of economic and cultural issues in the current state of late capitalist societies: ‘far from claiming that cultural harms are superstructural reflections of economic harms’, or that economic harms or injustices are always rooted in cultural hierarchies, like the sexual division of labour, she historicises the current capitalist formations in order to understand the gaps that could help us in tailoring the adequate remedies (Fraser, 1997c; 2003a, p. 56).

On the other hand, although she has not deeply developed her account of misrepresentation, she acknowledges that the political sphere can create certain harms that could be better addressed by devices targeted at the boundaries of constitutional membership, like rights of citizenship, or by devices crafted to respect the idea that every member should have an equal political voice. As she explains in Reframing Justice, ‘[m]isrepresentation occurs when political boundaries and/or decision rules function to deny some people, wrongly, the possibility of participating on a par with others in social interaction – including, but not only, in political arenas’ (2005, p. 76). At a first level, there is ordinary-political misrepresentation, and here we enter into the terrain of political science and its debate on the relative merits of alternative political/electoral systems, or on the drawing of different constituencies (e.g. gerrymandering) and their compliance with the principle of political equality and balance with other principles like stability or governability. At most, anti-discrimination law could be used to highlight issues of political misrepresentation that disproportionately affect certain protected groups. In general, however, the constitutional guarantee of political equality, in its different articulations, should suffice to tackle these problems. At a different level, she introduces the idea of misframing, ‘which concerns the boundary-setting aspect of the political. Here the injustice arises when the community’s boundaries are drawn in such a way as to wrongly exclude some people from the chance to participate at all in its authorised contests over justice’ (Fraser, 2005, p. 76). In contrast with ordinary-political misrepresentation, which can be addressed by traditional political means, misframing involves very serious injustices that have been highlighted by globalisation. Frequently, we suffer directly due to the impact of decisions in which we do not even have the opportunity to have a say, decisions that usually lie outside the boundaries of the national state in which we live. Here, the remedies should be crafted in order to foster the Habermasian discourse principle beyond the traditional Westphalian model.

Conclusion

This work has used critical theory in order to place anti-discrimination law within a broader theory of social emancipation. After explaining the main tenets of Fraser’s critical theory, I attempted a reconstruction of her thoughts on law and legal frameworks, with both instrumental and normative dimensions. As I argued here, anti-discrimination law is an anti-misrecognition device that operates within an interimbrication of different spheres, through strategic and practical decisions of social agents. Individuals and groups use anti-discrimination law, highlighting its expressive commitments, and their sense of entitlement due to the recognition of identities in legal discourse, but also as a means for achieving recognition or access to valuable goods. The recognition approach to anti-discrimination law also provides ways in which this recently created field of law can deal with different critiques, raised from different constituencies, circumventing attacks such as those directed at its condition of being the legal weaponry of ‘identity politics’, to its group reification tendencies, or to its inability to address the complexity of cultural harms.

The theoretical toolkit provided by Nancy Fraser allows us to locate anti-discrimination law within a theory of social emancipation, to understand both its strengths and limits. In societies facing pressures for precarious systemic market-integration processes, anti-discrimination law constitutes an interesting case of non-reformist reform. Indeed, anti-discrimination law can be a first step, with the materials we have at hand, towards elaborating progressive political projects that could reinforce the current struggles for human emancipation and alter the terrain upon which later struggles will be mounted. Hence, it is not only its expressive currency, but also the way in which anti-discrimination law has been used that constitutes the basis of the theoretical framework for a transformative approach to anti-discrimination law. Anti-discrimination law appears to be a dangerous weapon in the hands of social movements that can exploit the legal and political opportunity structures, at least when viewed from the perspective of those who want to defend the dominant horizons of value of what is considered as the ‘norm’. This work provides a basis for research projects that could address whether this transformative potential is indeed plausible.

Footnotes

Declaration of conflicting interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

ORCID iD

Alberto R Coddou Mc Manus

Notes

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