Periodic Reporting for period 2 - EQUALITY (CORRECTING INEQUALITY THROUGH LAW: HOW COURTS CONCEPTUALIZE EQUALITY IN THEIR CONSTITUTIONAL JURISPRUDENCE)
Periodo di rendicontazione: 2020-12-01 al 2022-05-31
Equality is one of the principal political concerns of our times. The decline in economic and social equality within nation states gets increasing attention. 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 proposed research project focuses on the contribution that courts can make to correct inequalities. Norms protecting equality form part of all major national and international human rights instruments. Still, the meaning of equality is fundamentally contested. There is no agreement on what equality exactly means or entails. In the legal context, equality is most often understood in a formal way. This formal conception of equality is associated with the Aristotelian idea that like cases should be treated alike and that unlike cases should be treated differently. However, as long as individuals are different, there will never be total equality. For this reason, the question is not whether legal equality guarantees can tolerate inequality, but to what extent they can do. Because of these conceptual difficulties, the application of equality and non-discrimination clauses is not a straightforward exercise, in which courts simply apply legal norms to a given set of facts. Instead, courts need to develop doctrinal instruments in order to give meaning to the concept of equality. The proposed research project analyzes how apex courts conceptualize equality in constitutional and international human rights law. It will be based on a comparative study of the equality jurisprudence of 16 jurisdictions and has three aims. Firstly, it intends to create a comparative map of equality jurisprudence, i.e. to describe and categorize the constitutional jurisprudence on equality: Which doctrinal choices do courts make and how do these choices inform the conception of equality? Secondly, it seeks to explain the doctrinal choices of the analyzed courts: Which factors influence courts to arrive at particular conceptions of equality? Thirdly, it has a normative goal and wants to analyze whether courts are better suited to correct certain kinds of inequalities than other kinds of inequalities.
We have assembled a diverse team of five PhD students and several Research Assistants that have intimate knowledge of many jurisdictions that form part of the analysis. Furthermore, the combined language skills of the team cover all analysed jurisdictions. We have predominantly focused on the work in module 1, that is, we have systematically analysed and coded judgments of apex courts concerning equality in the jurisdictions included in the analysis. The project has also produced two peer-reviewed open access publications. The most important publication outcome is an article that the PI has written on the equality case law of the Human Rights Committee, which was published in the Leiden Journal of International Law.
The proposed project will go significantly beyond existing research on equality. First, it will be the first study that does not only describe how courts conceptualize equality, but also seeks to explain why courts adopt specific conceptions of equality. Second, it will be the most comprehensive comparative study of the equality jurisprudence. Existing studies often anecdotally refer to landmark cases in order to stress a more theoretical point. However, the focus on landmark cases may lead to bias because the reasoning of courts often differ than in day-to-day routine cases. A systematic analysis of the case law as proposed in my project should, therefore, give us a more complete picture of the judicial practice. In addition, most of the comparative literature focuses on a few Anglo-American, English-language jurisdictions. This may again lead to bias because it excludes the experience of other jurisdictions, which are often not common law jurisdictions and might therefore systematically differ in their approach. Our project is more representative by choosing jurisdictions of six different continents and of different legal traditions and languages. This leads to a third advantages over the existing research. Most normative literature on equality is theoretical in nature. The theoretical discussion is important and will provide central focal points for our analysis. At the same time, our project has the advantages that it can draw on the experience of a great wealth of case law, which allows us to identify the challenges that courts face in their day-to-day occupation with equality and thus to propose more fine-grained solition of how courts should deal with equality.