Periodic Reporting for period 4 - EQUALITY (CORRECTING INEQUALITY THROUGH LAW: HOW COURTS CONCEPTUALIZE EQUALITY IN THEIR CONSTITUTIONAL JURISPRUDENCE)
Periodo di rendicontazione: 2023-12-01 al 2025-05-31
Equality is one of the principal political concerns of our times. This rising economic inequality is often cited as a major reason for the recent rise of political populism and therefore considered to be a danger to political stability. But economic inequality is not the only problem. Inequalities based on gender, race or nationality are also major issues in the contemporary discussion. While most commentators discuss political solutions, the research project "Correcting Inequality through Law" focused on the contribution that courts can make to correct inequalities. It had three main research questions: First, it aimed at drawing a map of different jurisprudential models of equality. For this purpose, it compared the equality case law of apex courts in 18 different jurisdictions. The core of the project was a systematic empirical analysis of the constitutional equality case law of each of the analyzed courts. We were able to identify four different approaches to equality that can be found in the judicial practice of the analyzed courts – the equality-as-non-discrimination model, the equality as reasonableness model, the positive-equality model, and the deferential model. The second research question focused on the reasons for why courts adopt these different models. The analysis showed that these reasons are quite complex. We identified multiple factors that influence why courts adopt specific doctrines. These factors are predominantly the authority of the court, the historical context and the founding narrative of the equality norm and the court, and the legal tradition. Moreover, the political preferences of the judges and the influence of foreign or international courts also play a role. The final research question focused on the normative strengths and weaknesses of the different models of equality. The analysis showed that each of these models, in normative terms, has specific advantages and drawbacks. For this reason, a relative normative assessment or even a ranking of the normative desirability of these different models seems difficult. There is not one model that suits all jurisdictions and legal traditions equally well. Instead, the models have to be understood as the result of the specific institutional and cultural contexts in which the courts operate.
The work was performed in different stages:
1. The first stage was the analysis of the equality case law in the individual jurisdictions. For this reason, the researchers focusing on a specific jurisdiction first identified all relevant constitutional equality cases. Once the sample was established, each case of the sample was analyzed and hand-coded according to a pre-established coding scheme.
2. Once the relevant sample for a jurisdiction had been analyzed, the jurisdiction was classified according to the four identified models of equality. Furthermore, we looked for reasons why courts had adopted this specific approach to equality. In order to find the explanation, we made use of contextual factors specific to each jurisdiction as well as cross-case comparisons exploiting the variance across jurisdictions.
3. After the completion of the empirical analysis, we focused on the publication of the results:
3.1. The main publication resulting from the action is the book Equality's Guardians (OUP 2025). The book is organized along jurisdictional chapters. It is edited by the PI, and each chapter is authored by the researcher who was responsible for the analysis of the jurisdiction.
3.2. Team member Tainá Garcia Maia published a monograph under the title "Judging Poverty and Inequality in Brazil", which will be published by Oxford University Press and focuses on the positive-equality model in the specific context of Brazil. The book resulted from Ms. Garcia Maia's PhD thesis.
3.3. There were several paper publications, focusing on different aspects of the project.
4. The final stage of the project concerns the dissemination of the results. The dissemination focuses mostly on an academic audience and predominantly concentrates on the promotion of the final book of the project. There are several dissemination efforts:
4.1. The main method of dissemination are presentations of the results at conferences, such as the Annual Conferences of the Berkeley Centre of Comparative Equality Law in Ljubljana and of the International Society of Constitutional Law in Brasilia (both in July 2025), and in individual book talks, inter alia at the Asian Constitutional Law Forum in Hong Kong in December 2024 and at the Law & Society Conference in Chicago in May 2025.
4.2. The publication of the book has been advertised on social media (linkedIn), and on the personal website of the PI as well as the institutional website of the university.
4.3. The book will most likely be reviewed in a book review in the International Journal of Constitutional Law.
1. The first stage was the analysis of the equality case law in the individual jurisdictions. For this reason, the researchers focusing on a specific jurisdiction first identified all relevant constitutional equality cases. Once the sample was established, each case of the sample was analyzed and hand-coded according to a pre-established coding scheme.
2. Once the relevant sample for a jurisdiction had been analyzed, the jurisdiction was classified according to the four identified models of equality. Furthermore, we looked for reasons why courts had adopted this specific approach to equality. In order to find the explanation, we made use of contextual factors specific to each jurisdiction as well as cross-case comparisons exploiting the variance across jurisdictions.
3. After the completion of the empirical analysis, we focused on the publication of the results:
3.1. The main publication resulting from the action is the book Equality's Guardians (OUP 2025). The book is organized along jurisdictional chapters. It is edited by the PI, and each chapter is authored by the researcher who was responsible for the analysis of the jurisdiction.
3.2. Team member Tainá Garcia Maia published a monograph under the title "Judging Poverty and Inequality in Brazil", which will be published by Oxford University Press and focuses on the positive-equality model in the specific context of Brazil. The book resulted from Ms. Garcia Maia's PhD thesis.
3.3. There were several paper publications, focusing on different aspects of the project.
4. The final stage of the project concerns the dissemination of the results. The dissemination focuses mostly on an academic audience and predominantly concentrates on the promotion of the final book of the project. There are several dissemination efforts:
4.1. The main method of dissemination are presentations of the results at conferences, such as the Annual Conferences of the Berkeley Centre of Comparative Equality Law in Ljubljana and of the International Society of Constitutional Law in Brasilia (both in July 2025), and in individual book talks, inter alia at the Asian Constitutional Law Forum in Hong Kong in December 2024 and at the Law & Society Conference in Chicago in May 2025.
4.2. The publication of the book has been advertised on social media (linkedIn), and on the personal website of the PI as well as the institutional website of the university.
4.3. The book will most likely be reviewed in a book review in the International Journal of Constitutional Law.
The project has advanced the research on equality law in two major respects:
1. By investigating a vast range of different jurisdictions, we have highlighted the diversity of approaches to equality and discovered new models. For example, the approaches in Singapore or Brazil bring new flavors to the discussion. Furthermore, we have put the approach followed by most EU constitutional courts, the equality-as-reasonableness approach, on the map in the international discussion that has, so far, been dominated by the non-discrimination approach prominent in common-law jurisdictions.
2. The second way in which the project advances the field beyond the state of the art is through exploring the reasons for the doctrinal divergence. The question of why certain doctrinal developments come about is rarely asked in legal scholarship even though it is important to understand the reasons for doctrinal developments. The research is methodologically very challenging, but we used a combination of cross-case comparisons and within-case process-tracing to identify some factors, such as the authority of the court, the historical context and the founding narrative of the equality norm and the court, and the legal tradition.
1. By investigating a vast range of different jurisdictions, we have highlighted the diversity of approaches to equality and discovered new models. For example, the approaches in Singapore or Brazil bring new flavors to the discussion. Furthermore, we have put the approach followed by most EU constitutional courts, the equality-as-reasonableness approach, on the map in the international discussion that has, so far, been dominated by the non-discrimination approach prominent in common-law jurisdictions.
2. The second way in which the project advances the field beyond the state of the art is through exploring the reasons for the doctrinal divergence. The question of why certain doctrinal developments come about is rarely asked in legal scholarship even though it is important to understand the reasons for doctrinal developments. The research is methodologically very challenging, but we used a combination of cross-case comparisons and within-case process-tracing to identify some factors, such as the authority of the court, the historical context and the founding narrative of the equality norm and the court, and the legal tradition.