Wishing for discrimination? A Comparative Gaze on Categorization, Racism and the Law

Abstract

This article focuses on the application of antidiscrimination regimes to groups faced with de jure and de facto discrimination. My approach diverges from the dominant view that discrimination is a purely destructive force. The central argument of this article is that de jure, overt and blatant discrimination, contributes to the creation of a coherent group identity recognized by law, which enables the groups suffering from discrimination to obtain remedial relief. In contrast, the law fails to recognize a coherent group identity for de facto discriminated-against groups, and thus these groups have to overcome a structural challenge to obtain remedial relief to counter the discrimination. This, once one considers both the discriminatory and the remedial phases, groups that are discriminated against de jure might be better off than groups that are discriminated against only de facto. After establishing de jure/de facto distinction, this article explores the effects of this distinction on the equal protection claims of discriminated groups by contrasting the experiences of and the comparing it with the contrasting experience of in Israel.