Formal Equality Research Articles

Between Consumption and Liberation – A Critical Analysis of Women’s Legal Trajectory of Emancipation, Regulation and Gender Pricing

ABSTRACT Law is always perceived as pivotal to women’s emancipation. Women gaining any form of legal recognition is construed as a step towards gender equality. Therefore, when looking to address issues around gender pricing – charging consumers differently for the same product or service because of their gender – experts turn to law as an obvious solution. Legal scholars suggest anti-discrimination regulation as the answer to liberation, and economists argue women should make better consumer choices. However, neither of these approaches addresses the problem in its entirety. In this article, instead of presenting anti-discrimination as a solution, I take gender pricing as a case study to map the intersection among law, gender, and capital and understand why the law might not be the answer leading women to emancipation. Through Queer Marxist lenses, I start by presenting gender pricing as a burden affecting women in the consumption sphere. In the second part, I focus on consumption and its relevance for the imposition of gendered subjectivities as part of an accumulation strategy. In the third part, I draw a parallel between the stages of women’s emancipation trajectory and the forms of backlash they face in their liberation struggle. As a case study, gender pricing allows me to understand consumption as an instance or site of regulation of gendered identities that goes beyond the formal equality achieved in law. The conception of women as consumers, mainly in the global North, reinforces particular subjectivities according to a historical process and is part of capital accumulation strategies. While corporations profit from gender pricing commodities, women are comparatively impoverished by gender pricing and other economic burdens, thus allowing men to maintain their hierarchically superior economic position.

Equality and justice as the basis for unification of the right of citizens for an insurance labor pension

The differentiation of the right of citizens of the Russian Federation for an insurance labor pension by gender provided for by the current legislation raises questions in civil society due to the discrepancy between the norms fixing different retirement ages for men and women, the principle of equality guaranteed by the Constitution of the Russian Federation, and ensuring social justice in society. One of the reasons is that a significant proportion of men do not live to the 65-year retirement age fixed by law. Analyzing the current legal norms and comparing them with statistical data and the results of law enforcement indicating a clearly unfair standardization of these relations, the authors offer their own vision of solving the existing problems. The authors substantiate the conclusion on the necessity to unify the right of citizens for an insurance pension by establishing a common retirement age of 60 years for men and women for the period of solving the main demographic problems in the state and creating conditions for increasing life expectancy. At the same time, emphasizing the special role of women, the authors propose to include legislatively the time associated with the birth and upbringing of children in a woman’s insurance experience, regardless of whether a woman had previous employment relationships and insurance experience. It should be done to create a favorable regime for the formation of women’s insurance experience and ensure formal equality with men.

Da religião à espiritualidade na educação: rumo a uma regulamentação política da espiritualidade?

The analysis of the emergence of the concept of spirituality in public education policies reveals various tensions at work in the religious and secular fields. Is this emergence a ploy by large religious groups to preserve influence in societies that are putting an end to official alliances with them? Has the concept of spirituality become broad enough to designate any search for meaning, and also to satisfy the aspiration for formal equality between all forms of beliefs, cults, and non-beliefs? This article addresses the issue of spirituality and how it has been integrated into the school legislation of the Canadian province of Quebec. It analyzes the creation in that province of the Spiritual Care and Guidance and Community Involvement Service. Designed to be neutral, it is aimed at both religious and non-religious students, in an effort to promote a logic of equality.

Analyzing Thailand’s Amendments to the Civil and Commercial Code on Marriage Equality: Progress, Shortcomings, and the Struggle for LGBTIQAN+ Rights to Family Establishment

Thailand’s proposed amendment of the Civil and Commercial Code (“CCC”) on marriage equality, recently passed by the lower house of Parliament on 27 March 2024, marks a historic milestone and represents a significant step towards recognizing the rights of Lesbian Gay Bisexual Transgender Intersex Queer Asexual and Non-Binary+ (LGBTIQAN+) individuals to establish families. This commentary article critically examines the draft legislation through the lens of international human rights law and domestic constitutional principles of equality and human dignity. Situating the Act within Thailand’s international obligations, the article traces the legislative history and highlights the progressive vision of the Civil Society Draft, which developed from the thesis-based research of Chawinroj Teerapatcharaporn, School of Law, Sukhothai Thammathirat Open University (STOU). It commends the shift towards gender-neutral language in marriage eligibility while critiquing the retention of binary “father/mother” terminology as falling short of genuine inclusivity. Drawing from parliamentary debates, the commentary engages with objections raised by religious party MPs, countering them by reasserting the primacy of constitutional equality and secular human rights principles over religious precepts in civil law matters. The article concludes by assessing the Act’s potential impact and the ongoing struggle for fully realizing LGBTIQAN+ family rights, calling for further reform that embraces gender neutrality and equality regardless of sexual orientation, gender identity, gender expression, and sex characteristics (SOGIESC).

WEAKNESS AS A PHILOSOPHICAL CONCEPT AND LEGAL CATEGORY

The article is devoted to the most complex, little-studied in jurisprudence and the theory of civil law, deep-seated issues of protecting the weakness in delicate and other legal relations. The authors proceed from the fact that the effectiveness of the protection of the weakness is based on its holistic understanding of both legal and philosophical categories. Based on this, the authors draw a philosophical-semantic and lexical-legal analogy between this category and the category of a weak subject, its semantic conditionality from such philosophical categories as personality, self-worth of a person. It is proposed to consider the category of the weakness from the standpoint of its static and dynamic states, the conditionality of the effectiveness of its protection in the post-Soviet society from the development and state of effectiveness of formal institutions, as well as the ideological and value attitude of Kazakhstan society to the fundamental principles of the rule of law, formal equality and social justice The authors separately highlight the dependence of legal protection of a weak subject on the extent to which Kazakhstan's socio-legal reality realizes: a) the conditionality of a person from society, on the one hand; and b) his natural-biological and cognitive self-sufficiency, on the other. In this context, the authors make some retrospective analysis of the state of natural human rights in Kazakhstan of the Soviet period, reveal the nature and essence of the category "I". According to the authors, the category "I" in post-classical reality is a key element of such self-sufficiency. It is on the basis of their unity that reflection, comprehension and concepts of self-awareness and self-knowledge, self-identity, respect for self and other, society and the state should be built.

Legal Axiology: General Characteristics

This scientific article explores the meaning of legal axiology as a doctrine about the values of law, the legal (value-legal) meaning of law (positive law), and the state. The author examines both legal (positivist) and natural law approaches to legal axiology, emphasizing the features of these concepts. Additionally, the article considers the concepts of equality, freedom, and justice, determined by the principle of formal equality of participants in this form of relations. The author also presents the viewpoints of famous philosophers and jurists on legal axiology, including G. Hegel, I. Kant, H. Kelsen, etc.

Доктрина и семейный закон: переосмысление правового регулирования семейных отношений или «усекновение» традиции?

The reason for the author’s reflections was one of the relevant publications devoted to the problems of expanding the scope of family unions — from classical matrimony to guest marriage, changing the ownership regime in them depending on belonging to a small or large family, equalising the obligations between parents in relation to their children, as well as between parents and their adult children (in parts of material support). Such an approach, especially in its concretising provisions, seems unacceptable to us. As the main antithesis, we have chosen the postulates about the sovereignty of family law, the peculiarities of family legal relations (between spouses, parents and children) and the actualisation of the task of family law to preserve traditional family values. At the same time, the possibility of subsidiary application of the norms of civil law to family relations is not denied, however, within the strict framework of compliance of their content with the essence of family unions, which excludes the use of methods of formal equality, compensationality and excessive rationalism to them.

국제인권규범을 중심으로 한 젠더 기반 폭력(Gender-Based Violence)에 관한 연구

Gender-Based Violence against women is one of the most prevalent problems in most countries around the world. The issue of gender-based violence against women is related to the principle of constitutional equality, which guarantees equal rights for men and women, and the principle of non-discrimination, which prohibits discrimination on the basis of gender. In particular, violence against women can be considered gender-based violence because it is often caused by structural discrimination that goes beyond the usual criminal case. The case analyzed in this paper, P. and S. v. Poland, decided by the European Court of Human Rights in 2012, is significant because it is a relatively recent decision that addresses constitutional issues related to gender-based violence: the right to abortion, the prohibition of torture, the right to liberty, the right to respect for private and family life, the right to a fair-trial, the right to freedom of thought, conscience, and religion, and the principle of non-discrimination. The ECtHR found that the State's actions in relation to the applicant P. in this case fell short of the minimum measures required by Article 3 of the European Convention on Human Rights and that she had been subjected to inhuman and degrading treatment. It also found that the deprivation of liberty by separating her from her parents and placing her in an institution was incompatible with Article 5 § 1 of the ECHR. The ECtHR also found that information concerning the sensitive private life of P. and her mother S. had been disclosed and that this disclosure could not be legally justified, thus concluding that Poland had violated Article 8 of the ECHR, as alleged by the applicants. However, no finding was made as to whether P. and S.'s negative freedom of religion could have been substantially violated in this case. In conclusion, it can be seen that, despite various efforts, the obligations to protect women from violence in family and social life are not adequately fulfilled by law. This is not a problem unique to Poland. In many countries, there is still a gap between traditional values and laws. It is hoped that this ruling will bring about a shift in the perception of gender-based violence.

When fairness is an abstraction: equity and AI in Swedish compulsory education

ABSTRACT The paper emphasises the need to consider the social, political, and economic contexts within which educational systems operate and use Artificial Intelligence (AI). Focused on Swedish compulsory education, this study explores whether the use of AI envisioned by national authorities and educational technology companies contributes to unfairness. Through qualitative content analysis of Swedish policy documents and educational company reports, the study employs the concept of Relevant Social Groups to assess how diverse stakeholders perceive the risks and benefits of using AI in education regarding fairness. Three distinct groups are identified, each prioritising different forms of “efficiency” as a key value—economic, pedagogical, and accessibility-related. In conclusion, this study sheds light on the intricate interplay between fairness and the use of AI in the Swedish educational system. It also questions the concept of fairness revolving around formal equality of opportunities that separates fairness from the broader context of social justice.

Защита частного и публичного интереса в делах, возникающих из банковского кредитования физических лиц

In the article, a bank lending agreement for citizens is considered as a mixed one, characterized, on the one hand, by the formal equality of its participants, and on the other, by an imbalance of their legal capabilities. Because of this, disputes arising from these legal relations must be considered within the framework of civil proceedings, but according to the rules of separate proceedings. It is proposed to expand the functions of the prosecutor and consolidate his right to initiate civil proceedings in defense of the rights and interests of citizens who are parties to the bank lending agreement. Submission of disputes from these legal relations to arbitration courts (arbitration) is permitted, but subject to the independence of arbitration from both parties to the loan agreement.

Равенство в этико-правовом измерении человека как юридической личности (от равенства перед Богом — к конституционному равенству)

Равенство в этико-правовом измерении человека как юридической личности (от равенства перед Богом — к конституционному равенству)

When the Rainbow is Bittersweet: Reflections on Being Queer and Indian in Durban

South Africa is one of the few countries in Africa that no longer criminalises same-sex sexual activity, and the only one to recognise same-sex marriage under the legal system. Yet, at the same time, several groups in the country practice a conservatism that discourages people from being themselves, be it in professing their gender or their sexuality. This article explores the trials and tribulations of making a documentary film with a minority population within one such minority population – Queer and Indian – in Durban, the site of the largest number of Indians outside India. Written in a reflective style that frames the positioning of the authors, a key question posed is: what are the daily issues that queer South African people deal with? Battling with conservatism while trying to find one’s queer voice is just one of them. The film engages with a few people who were generous to allow us to use their experiences with the state, the society, and healthcare. How does one reconcile the Rainbow Nation, the promise of constitutional equality with the insularity that people face on a regular basis? This article aims to be the start of a much larger conversation that needs to be had.

Engendering the Legal Framework for Environmentally Sustainable Development: Some Reflections

The idea of “sustainable development” was first recognized in 1972 at the U.N. Conference on the Human Environment held in Stockholm. The Conference did not make reference to the concept explicitly but recognized that the concepts of “sustainability” and “development” that were previously addressed separately could be addressed together to create more benefits. The Conference recognised the importance of environmental management for the purposes of sustainable development. In the years that followed the 1972 conference, terms such as “environment and development,” “development without destruction,” “eco-development,” and “environmentally sound development” became common in publications and the works of the United Nations. This article examines the international legal framework on sustainable development and evaluates the extent to which these laws ensure environmentally sustainable development. The article argues that although the legal framework on environmentally sustainable development is quite extensive and steps are being made to engender them, there is still need to move beyond formal equality and substantive equality to transformative equality. The paper draws on feminist perspectives and calls for engendering the legal framework so as to make environmental sustainability a reality.

Kearifan Lokal: Moderasi Beragama Dan Budaya Patriarki Dalam Sebuah Pertentangan Perspektif Hak Asasi Manusia

This research aims to find out how various moderation indicators are implemented regarding the community's cultural acceptance of the application of patriarchal culture and what form of government protection there is against acts of violence against women due to the application of patriarchal culture from a Human Rights perspective. Through normative research methodology, the research results show that Islam is a religion that is rahmatan lil'alamin which will not give a negative stigma to men or women. Thus, the position of men and women in Islam is the same. After marriage, the wife's responsibility will shift to the husband and this is a respect given by Islam to a woman. Apart from that, it was also explained that the best Muslim man is one who treats his wife well. Of course, this will get better if it is accompanied by an understanding of the concept of good religious moderation. Because no matter what, culture will continue to follow the flow of habits that have been adopted by society. However, the existence of moderate religion can save the life of the nation and state. Apart from that, it is further regulated in Article 27 paragraph (1) of the 1945 Constitution of the Republic of Indonesia, that Indonesia recognizes the principle of equality. This principle of equality applies to all Indonesian people. Recognition of the principle of equality in the Indonesian constitution leads to the elimination of discrimination, therefore, whoever we are as long as we are Indonesian citizens have the right to receive equal treatment before the law. Equal treatment before the law does not look at a person's ethnicity, religion, gender or even position. This indicates that Indonesia as a sovereign country legally recognizes the principle of equality. This means that according to legal instruments in statutory regulations, the position of men and women is equal. However, even though legal instruments are in place, in the context of implementing these legal instruments, discrimination and injustice towards women are often still visible.

Трансцендентальные основания права в коммуникативной теории права А. В. Полякова: правовое признание

Introduction. The communicative theory of law put forward in the first years of the XXI century by A. V. Polyakov received further development in the next decade due to the substantiation of the metatheoretical foundation of this theory in the doctrine of legal recognition as the transcendental basis of law. The idea of objectification of law through recognition proposed by A. V. Polyakov becomes the basis of a new humanistic understanding of law, which asserts the key character of trust in legal genesis. Theoretical analysis. The development of the doctrine of recognition as the foundation of legal genesis begins with the substantiation of the idea of recognition of law. A. V. Polyakov connects the very possibility of law with the fact that interacting subjects must not only understand the boundaries of their behavior, but also continuously coordinate them with each other. In this process, each of the subjects must recognize the presence of symmetrical abilities in the counterparty, therefore, recognition is the unity of intellectual and cognitive aspects of law with emotional and axiological one, which asserts the primacy of freedom, equality, dignity and responsibility of the participants in the interaction. From this thesis A. V. Polyakov deduces four aspects of formal equality – communicative equality, normative legal equality, equality as a legal ideal and equality as conformity. Еmpirical analysis. The author considers the conceptual transition from the idea of law as recognition to the principle of mutual legal recognition. Legal recognition as a principle is based on the ontological fact of the existence of Another as a representative of the human race, recognition of the human status of Another means the acceptance by an individual of responsibilities corresponding to the rights of Another as a response to expectations about their own rights. Results. A. V. Polyakov revealed the transcendental foundations of law through the analysis of legal recognition. These data deepen the provisions of the communicative theory of law on the ontological status of law, give the doctrine of legal communication a metaphysical and existential perspective, considering a person in the unity of his / her cognitive, emotional and volitional abilities.

To Affirm Difference or To Deny Distinction?

What are the global canons of constitutional equality analysis? Many scholars would say that there are none. National courts cannot seem to agree on whether the guarantee is formal or substantive, intersectional or discrete, open-ended or strictly textual. This Article takes a different tact. There are two budding strands of equality law reasoning: the categorical canons and the difference canons. The former prohibit pernicious distinctions in the law, while the latter affirm individual difference. The difference canons are the more cogent of the two. Categorical equality reasoning leads to underinclusive protection that is discordant with the actual experience of discrimination. Meanwhile, difference equality reasoning quashes budding social inequities before they fester into pernicious “isms.” Categorical courts thus ought to take a page from the difference canons.

Конфликт между Палестиной и Израилем: динамика международно-правовой квалификации

International law has played an ambiguous role in resolving the conflict between Palestine and Israel: on the one hand, the UN General Assembly and Security Council assessed Israel’s activities in the occupied Palestinian territories by applying its rules; on the other hand, it de facto authorised the formation of the state of Israel and the occupation of Palestine in violation of the Palestinians’ right to self-determination. This article is a continuation of other articles published in 2018 in the Russian Law Journal. After summarising the main stages of the conflict’s development and highlighting its elements, the author identifies the features of international law which influence the qualification of the conflict, describes the main instruments used for the qualification, identifies the peculiarities of the legal rhetoric of the both parties, and focuses on the three most important problems of the qualification. He then assesses the prospect of the judicialisation of the conflict (its referral to international courts) and the application of the law of international responsibility to it. In the author’s view, the real regulators of the conflict are military power and political calculations; this conflict therefore reveals two important features of contemporary nternational law: first, it reveals the inherent inefficiency of the secondary rules of international law and its institutional mechanisms, unable to ensure the high values proclaimed by the primary norms; second, it confirms K. Marx’s famous thesis – “Between Equal Rights the Force Decides”. Indeed, the principle of formal equality, which is the very essence of the international order, does not exclude but presupposes recourse to force to resolve conflicts in which each party is able to formulate arguments based on international law.

평등의 원칙과 사법 (私法)

The principle of equality has traditionally been a topic in public law scholarship. In recent years, however, it is increasingly discussed in private law scholarship. This paper discusses how the principle of equality operates in private law. The conclusions are as follows: First, private law legislation as well as private law interpretation have been undoubtedly bound by the principle of equality. However, private law relationships between private persons are not. In this area, the so-called horizontal effect of principle of equality or rights thereto shall be denied. Second, there are examples in private law where the principle of equality appears to be applied. Resolutions, decisions, or di spositions by or in corporations, associations or long-term contractual relationship can be illegal if they are discriminatory; refusal to deal, suspension of dealings, or refusal of admission to an organization or long-term contractual relationship can be illegal if they are discriminatory; the exercise of ownership rights or the operation of an organization can be i llegal if it has been open to the publi c while excluding certain persons or groups of persons in contradiction to that practice. These are manifestations of the inherent limits of private autonomy, of the principle of good faith and fair dealing, of abuses of rights, and of the general right to personality, however, rather than of the principle of equality, especi ally constitutional equality. Finally, legislators can still impose obligations on private persons to treat other private persons equally, and many do. Given the inherent tension between private autonomy and equality, however, such legislation should be limited to specified traits and/or specified areas and should not be too broad. Relevant legislations in the United States and Germany demonstrate it. It is questionable whether the drafts for the general equal
 treatment act currently being discussed strikes such a balance.

Principles of Law in the Russian Liberal Doctrine of the Late 19th – Early 20th Century: A Positive Approach

The article examines the principles of law as interpreted by Russian liberal jurists of the late XIX – early XX centuries – N.K. Rennenkampf, G.F. Shershenevich, S.V. Pakhman and M.N. Kapustin. In the absence of special studies that allow to study the principles of law in the legal science of the Russian Empire the author reveals the signs identified by domestic scientists in understanding the guiding principles of legal regulation; the characteristic of the principles of legality, justice, humanism, democracy and formal equality proposed by lawyers of the pre-revolutionary period at the stage of problem formulation is presented. Special attention is paid to the concept of M.N. Kapustin according to which the legal sphere focuses on two types of principles at once: some carry the basic meaning of law and are an integral part of its essence (justice and formal equality), others are introduced artificially in the course of human mental activity in order to optimize the processes of creation, application and development of legislation. It is proved that the Russian jurists of the late XIX – early XX century insist on the scientific development of the principles of law and their investment in the form of legal norms that have a constituent character, direct action, stability and formal certainty. It is noted that the supporters of legal positivism, emphasizing the importance of legal doctrine and firmly fixing the term ≪principle≫ in scientific circulation, had a significant impact on the formation of the modern categorical apparatus. The relevance of the views of liberal jurists of the late XIX – early XX century, projecting the effect of the principles of law on overcoming gaps in legislation and optimizing law enforcement activities in terms of the exercise of discretionary powers is emphasized.

Equality and non-discrimination: some issues of implementation

The path of Ukraine as a legal democratic state to the European space determines such primary activity directions and fundamental values as human rights and freedoms. That is why their consolidation is carried out at the legislative level, including the provisions of international treaties in this area. Nowadays in Ukraine, human rights are legally defined, including, in particular, the right for an equality and protection from discrimination. Therefore, issues of equal treatment guarantee (constitutional equality principle), irrespective of nationality, race, gender identity, ethnic origin, religion, physical disabilities, age, etc., are remain up-to-date. However, non-discrimination principle is still not enshrined in the Constitution of Ukraine, as well as efficient mechanism that would enable implementation of this principle. So, currently, principles of an equality and non-discrimination are remain quite disputable among scientific community. Firstly, it concerns terminological apparatus. In theory alongside with the term «equality» use the term «equity», they are either interchange or being used as part and whole – «equity» includes both equality and non-discrimination principles. Secondly, the current legislation is inconsistent in terms of the regulation of general provisions on equality and non-discrimination. However, on Ukraine`s way to European integration, it is important to take into account the provisions of world standards on the protection of human and civil rights and freedoms, in particular the 1948 Universal Declaration of Human Rights, the 1966 International Covenant on Civil and Political Rights, Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, which is prerequisite for the harmonious development of Ukraine as a European state. Key words: law, rights and freedoms, constitutional principle, equality, equality, equality, non-discrimination, person, citizen.