This paper, which is based on the Introduction to a 2019 book published with OUP, argues that antidiscrimination law still poses a certain number of problems in civil law jurisdictions. It provides some explanations why such problems continue to exist which range from a spectrum of legal to broader cultural, political and societal issues but argues that depending on the time frame, the jurisdiction, the ground of discrimination, and the area of law one looks at one obtains a more nuanced picture, indicating that a certain acceptance of antidiscrimination law in civil law systems can be observed.
In 1972, the U.S. Congress adopted the Equal Rights Amendment (ERA), but the amendment was not ratified by enough states to be added to the U.S. Constitution. The U.S. remains one of the few constitutional democracies without a sex equality clause. Three states ratified the ERA in the last three years, but the Trump administration is trying to stop the ERA, saying it’s too late. ERA opponents argue that there is no need for a constitutional prohibition of sex discrimination. In response, well-known feminists like Justice Ruth Bader Ginsburg and Professor Joan Williams have said that the ERA is not worth fighting for in 2020 because of the political controversy. What are the normative legal consequences of responding to backlash in this manner? When an amendment that would strengthen constitutional ADL is abandoned by feminists because of political backlash, how does that shape remaining legal paths for the pursuit of equality agendas?
This paper aims to assess the extent to which ADL, which is often called ‘equality law’, can contribute to address the problem of rising economic inequalities. In the last fifteen years, economists as well as social and political scientists have put into light a dramatic rise in economic inequalities in Western societies, in particular in the US but also in many European states. Various analysts have shown the damaging consequences this evolution entails on the social, economic and political levels. Most conspicuously, it appears to go against the ideal of equality that lies at the heart of the idea of democracy. In the legal field, ADL has undergone in the last decades a significant expansion, especially in international and European law. It has grown in breath, in reach and in complexity. Yet it is unclear whether this body of law, although based on the concept of equality, can help countering the phenomenon of economic inequalities.
Many legal systems distinguish between general guarantees of equality on the one hand and specific prohibitions of discrimination on suspect grounds on the other. While the former targets arbitrariness or irrationality, the latter focus on decisions which track deep historical and/or current disadvantages and targets oft-repeated, systematic behaviour and practices
This paper follows up on an empirical study on Czechia, which showed that the general principle of equality is the pre-eminent doctrine there. It thenlooks comparatively at further jurisdictions including the EU, Germany, India and South Africa, and explores the question of whether the established general principle of equality can act as a false friend to ground-related anti-discrimination law. The paper suggests that when anti-discrimination rights are seen merely as an extension of a general requirement of equality, they can be vulnerable to being interpreted narrowly and lose effectiveness.
This paper revisits a polemical 1957 paper written by Hannah Arendt after the Little Rock events, in which she reflects on the power of the law in the face of discrimination and prejudice. It asks whether some criticisms of ADL should be taken seriously if it is to be strengthened as a legal tool and pursued as a political project. The paper claims that some theoretical underpinnings of ADL can be strengthened and suggests that it should in particular incorporate both a spatial and a consequentialist dimension. It uses European legal references and developments comparatively to ask two main questions: does ADL equally manage to regulate difference social spaces (the spatial dimension)? Does ADL succeed in taken into account the standpoint of those it seeks to protect (the consequentialist dimension)?
Despite the fact that ADL prohibits differences of treatment on the ground of religious and gender, French Law allows State as well asprivate employers to refuse to hire certain women because of their religious practices (eg. veiling); it prohibits some Muslim women from being in public spaces (eg. the street) when wearing a niqab; it may strip new citizens from their nationality if they are found to betray fundamental republican values (by refusing, for instance, to shake hands with an official representative during a nationality ceremony). The argument of gender equality plays a central role in all these legal responses to visible expressions of Islam -together with an argument of integration. This paper reflects on such normative justifications and contrasts them with their German counterparts. The parallel examination of both national debates helps to reflect on what exactly is the scope and the meaning of this gender equality argument in religious freedom debates.