Affirmative Action in A Theory of Discrimination Law

On the tenth anniversary of Tarunabh Khaitan’s A Theory of Discrimination Law, this article reconsiders the concept of affirmative action in light of recent legal and theoretical debates. Building on Khaitan’s framework, I address affirmative action from three angles. First, I examine its legitimacy through the lens of discrimination law and the contested role of merit Second, I analyse the issue of quotas as a form of strong distributive affirmative action, focusing on Brazil as a example, which develops further Kaithan’s understanding of affirmative action measures. Third, I review Khaitan’s view of private-sector affirmative action as exceptional, arguing that in unequal capitalist economies private actors hold a structural duty to redress historical exclusion. By engaging with Khaitan’s theory across these dimensions, the article provides a deeper understanding and context to the role of affirmative action in A Theory of Discrimination Law.