The Structure of Equality – How to deal with the so-called “non-discriminatory elements of rules”

Abstract

Up to the present, the phenomenon of equality - and thus its consolidation into an autonomous right, namely the human right of equality or equal treatment -manifests serious problems in theory and practice. As Leibniz exhibited, “equality” is not purely understandable on its own terms. In order to not confuse the phenomena’s “quality” with “identity”, a substantive (judgmental) corrective is required. If one does not want to confuse equality with identity, the determination of equality always requires a further evaluative element. Legal professionals solve this requirement in their legal systems pragmatically by implementing positivistic criterions, such as age, sex, race, that constitute “their” conception of equality in their law. However, even this pragmatic positivist approach has its shortcomings. The question arises, if the criterions, that are not part of the above mentioned positivistic catalogue [e. g.: physical ugliness, low property or financial position, low educational level] open the possibility to legally discriminate affected people. Such non-listed ‘discriminations’ already drop out of the scope of the equal treatment catalogue. Hence, they do structurally not meet the requirement of equality/non-discrimination. As this kind of discrimination does not fulfil the element of the non-discrimination norm, their legitimation does even not require a legal examination or justification of its legitimacy by a justification test. This contribution raises a number of questions that are still unanswered or sufficiently discussed. They could be solved, amongst others, by opening up “equal treatment” for a variety of “elements of discrimination”. In addition the open social questions about the justification of such characteristics, a number of aspects of the compatibility of national equality rights with other, possibly higher-ranked, legal norms - e. g. Human Rights - must be considered in this legal context. Considering that the granting of equality of one person regularly implies the loss of the freedom of another person, a more differentiated view of equality - oriented towards the rights of freedom - seems to be beneficial.