Application Analysis Of Difference Principle In Anti-discrimination Law

Discrimination is contrary to the principles of justice, and its essence is an unfairdiscriminatory. Discrimination is a more common phenomenon in our country. Thereare gender discrimination, geographical discrimination, hepatitis B discrimination,age discrimination in job hunting and working, and rural household registrationdiscrimination in social security and welfare. Discrimination can breed social tension,exclusion and confrontation; even increase social instability, which does not matchthe political philosophy of building a harmonious society in China. Consequently, theprohibition of arbitrary discrimination, inviolability protection of human dignity, andno deprivation in human socio-economic rights are the proper meaning of a just socialsystem.Equality is not born with discriminatory, not accompanied and intertwined withdiscriminatory, furthermore, it must fight against discrimination. The concept ofequality develops from formal equality in the early time to substantive equality. Withthe in-depth development of the concept of equality, the connotation of equality alsodevelops from formal equality to substantive equality, and then the differenceprinciple becomes a very important part of the demonstration of substantive equality.The difference principle was originally proposed by John Rawls in A Theory ofJustice, who is a famous American philosopher and ethicist. He puts forward thefamous two justice principle in this book that contains the principle of equality andfreedom and the combination of the difference principle and fair opportunities for theprinciple of equality. The former is used to dominate the distribution of powers andobligations, which is mainly within the field of political freedom, while the latter isused to regulate the distribution of social and economic benefits, which is broadlyapplied to the distribution of income and wealth, and those unequal uses of power andresponsibility. The specific expression of the difference principle is that: social and economic inequalities should be arranged to be consistent with the storage principleof justice for the best interests of the beneficiaries. In a just society, the differenceprinciple holds that the unequal distribution of economic benefits must promote theleast beneficiaries to obtain the maximum benefits. The difference principle is highlycontroversial, but it requires examining and limiting the social economic inequalitiesfrom the perspective of the most disadvantaged to constraint inequality within anacceptable level for the particular purpose of the principle of compensation in order togive the less genius and vulnerable groups some sort of compensation to narrow thegap in the starting point with those middle and upper class people. So this paperimproves the system which is set according to the difference principle can maximizethe equality. With the vigorous development of the civil rights movement, prohibitionof discrimination and the protection of equal rights have developed into the time ofanti-discrimination legislation in the mid-20thcentury. Anti-discrimination legislationcould create equal employment, development and survival chances for every socialmember, provide personal dignity protection for citizens, and provide legal protectionfor the citizens to prohibit arbitrary discrimination and make relevant laws andregulations. And these regulations have become the consensus of the community oflegal theory. However, china does not have a real anti-discrimination law.For the more mature countries of anti-discrimination practice, the principle offormal equality has been the legislative principles and legislative concepts of modernanti-discrimination law. With the development of democracy, the establishment anduse of anti-discrimination laws are undergoing major changes that let the goal ofanti-discrimination laws shift from formal equality to substantive equality. Althoughthe formal equality plays an important role in responding to the obvious directdiscrimination, there do exist some inevitable problems that make anti-discriminationlegislation not perfect, can not completely solve the issues of discrimination, and cannot change the social structure of the existing deep-rooted inequality. As one of themost critical legislation of human rights, especially the vulnerable groups,anti-discrimination law reflects the two forms of equality, formal equality andsubstantive equality, while the establishment of the concept of difference principleand the implementation of affirmative action become the important means to achieve substantive equality. This paper argues that to solve these problems in theanti-discrimination legislation is a very important way to resolve the current anti-discrimination law that could introduce the difference principle appropriately as alegislative concept, and design a just social system which is based on the meaning ofdifference principle.Therefore, starting from clarifying the concept of discrimination and thedifference principle, this paper defines the scope of discrimination and advocates theapplication of the difference principle in anti-discrimination law. Then it focuses onthe feasibility analysis of the application of the difference principle, and describes thesignificance and defects of the difference principle in the legislation ofanti-discrimination law. And it believes that the application of the difference principleto anti-discrimination law can restraint the suppression of discrimination greatly insociety, correct the inequalities caused by social origin and social structure andchange the irrational social structure greatly, and realize the social equity and justiceof the society greatly. Unfortunately, there are some shortcomings of the differenceprinciple in the specific design, such as the limitation of application scope, thecomplexity of application compared to the principle of formal equality, etc. Therefore,this paper puts forward the relevant legislative proposals in the conclusion for thepurpose of avoiding weaknesses in the application of the anti-discrimination law,meanwhile it can provides some theoretical basis and theoretical support for thedevelopment of relevant legislation in China, as well as the thought of analysis andreference for the judicial and administrative authorities when they are dealing withdiscrimination cases.