Bernardo Carvalho de Mello, PhD Candidate, School of Law, Newcastle University.
Cite: Bernardo Carvalho de Mello, Law’s Labyrinth: A Taxonomy of Discrimination as the Ball of thread to navigate the Maze, Global South Network Blogs, 22 December 2023. https://globalsouthnetwork.com/laws-labyrinth-a-taxonomy-of-discrimination-as-the-ball-of-thread-to-navigate-the-maze/
Introduction
In a world where legal systems intersect with the ever-evolving complexities of societal issues, the role of legal taxonomy becomes both crucial and challenging. This blog delves into the labyrinth of legal classification and its implications on intersectional discrimination, highlighting the intricate ways in which law categorises and often oversimplifies diverse human experiences. We embark on a journey through the multifaceted realm of legal taxonomy, examining its pivotal role in structuring legal thought and practice while confronting its limitations in a globalised legal landscape. This narrative unravels the intricate dance between law, society, and the perpetual quest for justice in a diverse and interconnected world. As in the Greek myth of Theseus in the Cretan Labyrinth, my taxonomy proposed to be the ball of thread that helped him find his way in the maze.
The objective of this blog is to introduce a novel taxonomy of discrimination to improve the effectiveness of international human rights anti-discrimination law. I focus on the intersection of various forms of discrimination that marginalise individuals and groups. I adopted an intersectional approach to offer a comprehensive understanding of discrimination, which addresses the limitations of the traditional singular grounds approach. I critically assess the current inefficiencies in international human rights law regarding anti-discrimination and propose a clear, intersectional taxonomy as a solution to multi-ground discrimination. Additionally, my work explores the evolution and challenges of anti-discrimination law, particularly the role of intersectionality in protecting diverse identities not covered under current laws, and analyses the language of international human rights treaties through selected case studies.
Finding order in legal chaos
The concept of taxonomy, traditionally associated with biological classifications, finds a unique application in the legal realm, particularly in the context of discrimination. A legal taxonomy, as Sherwin describes, organises legal concepts and principles in a hierarchical or relational framework, akin to Linnaeus’s binomial system in “Systema Naturae” widely used in biology to classify living organisms (homo sapiens: Eukaryota domain, Animalia kingdom, Chordata phylum, mammalia class, primates order, Hominidae family, homo genus and sapiens as species)
In the realm of law, taxonomy serves as a critical tool for classification, organisation, and interpretation. It’s a conceptual framework that helps legal professionals navigate the complex landscape of statutes, cases, and legal principles. However, as society evolves and globalises, the traditional approaches of legal taxonomy are increasingly challenged, particularly in dealing with intersectional discrimination and the diverse legal systems worldwide.
Attributes of a Taxonomy
To deepen our understanding of taxonomies, a specialised form of classification, it is essential to consider the foundational attributes that constitute their structure and function.
Firstly, at the heart of a taxonomy lies its hierarchical nature. This hierarchy arranges categories in a layered structure, placing broader classifications at higher levels and more specific ones beneath. This arrangement facilitates the organisation of information, allowing us to navigate from general concepts to more specific details efficiently.
The second attribute is the presence of shared characteristics within each category. These shared traits, properties, or attributes act as the criteria for grouping items or concepts together. This commonality within categories ensures that each grouping is coherent and meaningful.
Thirdly, the role of defined criteria or rules for categorisation cannot be overstated in a taxonomy. These guidelines are pivotal in determining how items are classified within the hierarchy. They ensure that the taxonomy remains consistent and logical, with each item placed in its appropriate category based on established criteria.
Fourthly, comprehensiveness is a hallmark of any effective taxonomy. The goal is to include all relevant items within a given domain, thereby providing a complete and exhaustive classification system. This comprehensiveness ensures the taxonomy can be applied broadly and effectively within its intended field.
Fifthly, systematic organisation is another cornerstone of a taxonomy. This organisation ensures that broader categories encompass narrower, more specific ones, creating a logical flow from general to particular. This systematic approach aids in understanding and navigating the taxonomy.
Sixthly, the purpose and utility of taxonomies are tailored to specific needs. Whether it’s for organising information, aiding analysis, or assisting in decision-making, taxonomies are developed with clear objectives in mind. This focus on purpose and utility ensures that the taxonomy serves its intended function effectively.
Lastly, documentation plays a crucial role in any taxonomy. This documentation provides detailed outlines of the categorisation criteria, along with explanations or definitions for each category. Such documentation is invaluable as it aids users in understanding the taxonomy’s structure and rationale, ensuring its correct and effective application.
In essence, these attributes—hierarchy, shared characteristics, criteria, comprehensiveness, systematic organisation, purpose and utility, and documentation—collectively define what a taxonomy is and how it functions. They ensure that a taxonomy is more than just a method of classification; it becomes a tool for understanding, organising, and applying knowledge in a coherent and structured manner.
Arbitrariness?
The inherent subjectivity in taxonomy should be acknowledged. Historical taxonomies, like the one by Ernst Haeckel from 1874, differ significantly from the contemporary models influenced by Linnaeus, especially in classifications like viruses, which don’t fit neatly into Linnaeus’s framework. Similarly, the taxonomy I have developed for discrimination involves subjective yet essential decisions. For instance, I distinguish between “isms” and “phobias”, like sexism and homophobia, based on the recognised differences in psychology and sociology. Though this division could be perceived as arbitrary, it enhances clarity and comprehensiveness since it is the common vernacular in day-to-day discourse and academic and legal fields. One of the objectives of the taxonomy is its usefulness; thus, using familiar terms is beneficial to its goal.
Utilities of a taxonomy of discrimination
In the sphere of legal proceedings, the implementation of a taxonomy of discrimination holds the potential to significantly enhance the quality and efficacy of judicial decisions. This systematic framework empowers judges to meticulously analyse allegations of discrimination, ensuring that their rulings are both equitable and founded on thorough analytical reasoning. By categorising various forms of discrimination, a taxonomy provides a detailed and expansive understanding of the complex nature of discrimination, thereby equipping the judiciary to address these issues with depth and significance.
A taxonomy of discrimination offers numerous advantages in the legal context. Firstly, it enhances analytical precision in judicial decisions. Legal rulings often pivot on the nuanced interpretations of legal definitions. A taxonomy aids in precisely identifying the type of discrimination at hand, steering clear of generalisations and oversimplifications. Distinguishing between direct discrimination, characterised by overt and intentional actions, and indirect discrimination, where policies inadvertently harm specific groups, is critical for the accurate application of legal principles and precedents.
Furthermore, a taxonomy promotes consistency and fairness in legal judgments. The rule of law and fairness hinge on consistent decision-making. A standardised approach, as provided by a taxonomy, allows judges to evaluate discrimination cases against a clear set of criteria, fostering equitable decisions that set precedents for future rulings.
Addressing structural discrimination, a pervasive form embedded in laws, practices, and societal norms, is one of the most formidable challenges in legal contexts. Here, a taxonomy that includes structural discrimination as a category arms the judiciary with the conceptual tools to identify and address these deep-rooted injustices, which are often neglected in analyses focusing solely on individual acts of discrimination.
In terms of remedial measures, as pointed out by Freedman, the ultimate objective of anti-discrimination laws is not just to pinpoint and penalise instances of discrimination but also to prevent them in the future and repair the damages caused. A taxonomy aids judges in devising appropriate remedies tailored to the specific type of discrimination identified. For instance, addressing systemic discrimination might necessitate broader remedies, like policy amendments or collective actions, unlike remedies for isolated incidents of interpersonal discrimination.
A well-crafted taxonomy also improves legal clarity and communication among all parties in the judicial process, including judges, lawyers, claimants, and defendants. This clarity enhances the understanding of the issues at hand and contributes to more transparent and comprehensible judicial proceedings.
Furthermore, a taxonomy serves as a vital resource in judicial education and training. It acquaints judges with various discrimination forms and aspects, preparing them to handle such cases with increased sensitivity and expertise.
The taxonomy also supports intersectional analysis, a crucial aspect in understanding discrimination, as highlighted by Crenshaw. It helps judges and courts recognise and address the compounded effects of discrimination experienced by individuals at the intersection of multiple identity facets like race, gender, sexuality, class, and disability.
In an increasingly interconnected world, where discrimination often transcends national boundaries, a taxonomy can aid in harmonising anti-discrimination laws across different jurisdictions. This is particularly relevant in international courts like the European Court of Human Rights and the Inter-American Court of Human Rights, where decisions impact diverse countries, cultures, and legal systems. Such a taxonomy could facilitate the assessment and comparison of human rights records globally, advancing the human rights agenda.
However, developing and implementing a taxonomy of discrimination is not without challenges. Creating a comprehensive taxonomy requires a deep understanding of the various societal contexts where discrimination occurs. It must be adaptable to encompass emerging forms of discrimination that may arise due to technological advancements or societal changes. Additionally, the legal system must be prepared to adapt and evolve based on the insights provided by the taxonomy.
In summary, a taxonomy of discrimination in legal contexts offers a structured and refined tool for judges, enhancing precision, consistency, and fairness in judicial decisions. It addresses both the overt and covert forms of discrimination, providing a comprehensive framework for understanding and resolving discriminatory issues. However, its effective implementation demands an evolving and adaptable approach, considering the dynamic nature of discrimination and societal contexts.
Grabham’s Hybridity The meeting of legal taxonomy and intersectional discrimination reveals significant limitations in conventional legal tools. These tools often struggle to capture the complex nature of discrimination, especially for those experiencing multiple intersecting oppression. Introducing the concept of ‘hybridity. [1]
Grabham underscores the complex interplay between legal subjects and their categorisation within the law. Traditional legal frameworks tend to oversimplify and categorise human experiences into distinct categories. This oversimplification leads to the disauthentication of individuals’ experiences, notably for intersectional subjects, highlighting the need for a more inclusive and adaptable legal approach.
Shifting to a global perspective, the evolving nature of legal taxonomies becomes crucial in reflecting the dynamism of worldwide legal systems. Traditional Western-centric classifications are often inadequate in encompassing the diversity and complexity of legal practices across various cultures. Hence, there’s a compelling need for a global legal taxonomy, one that not only respects but also integrates diverse legal traditions and practices. Such an inclusive approach is vital for enhancing understanding and fostering collaboration among different legal systems in our interconnected world.
Conclusion
In conclusion, this exploration of legal taxonomy in the context of discrimination underscores its critical role in the modern legal landscape. The research emphasises the necessity of a nuanced, intersectional approach to address the multifaceted nature of discrimination, moving beyond traditional singular grounds. The taxonomy I have developed seeks to provide a more effective framework within international human rights law, recognising the complexities of intersecting forms of discrimination. This work highlights the need for evolving and adaptable legal classifications to capture the rich diversity of human experiences and ensure justice in a globalised world. As we acknowledge the hybridity of legal subjects and the challenges of global legal systems, the importance of an inclusive, dynamic legal taxonomy becomes increasingly evident in our interconnected society.
1. Emily Grabham’s concept of hybridity explores the intersection of law, gender, and biology. It focuses on how different identities and categories blend and interact, particularly in legal contexts. Grabham’s work highlights the complexities and challenges in traditional legal definitions and norms, especially in cases involving non-binary gender identities such as intersex and transgender individuals. Her approach emphasizes the multifaceted nature of identity and its implications in legal systems.
Bernardo Carvalho de Mello is a dedicated legal professional with a rich academic background and a passion for human rights and social justice. Bernardo began their legal career as a Senior Partner at the esteemed law firm Goodman & Associates, where he honed their skills in various aspects of Civil law, especially Family Law. Their commitment to human rights led them to serve as a Consultant Lawyer at the “Secretaria de Estado de Direitos Humanos – SEDH do Rio de Janeiro” (State Department of Human Rights of Rio de Janeiro), where he actively contributed to the protection and promotion of human rights.
Bernardo holds a diverse range of qualifications. He is currently pursuing a PhD in Law, specialising in International Human Rights Law at Newcastle University, showcasing their commitment to staying at the forefront of legal scholarship. Their previous academic achievements include a Master’s in Constitutional Law and State Theory and a Bachelor’s degree in Law both in Brazil, and a BA in History.
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