ABSTRACT
In accordance with the precept of formal justice, rights-claimants are included or excluded on the basis of investitive conditions reflective of the substantive commitments of the legal system at issue. Rights-claimants able to demonstrate sufficient congruity between their own particular circumstances and the criteria indicated by a right's investitive conditions will be included in a class of rights-bearers. The denial of personal liberties and opportunities to categories of individuals on the basis of ascriptive characteristics resembles, and indeed to some extent perpetuates, ancient and feudal forms of differentiated citizenship. The modifier "affirmative" used to describe the effect of this form of right will bring immediately to mind disputes over the legitimacy of "affirmative action". These include the well-known disputes concerning preferential treatment for underrepresented categories of persons in, for example, college admissions, employment, or government contracting. In the United States, religious conduct exemptions constitute perhaps the most prominent example of this form of group-differentiated right.
