The Right to Equality in European Human Rights Law

The Quest for Substance in the Jurisprudence of the European Courts

Charilaos Nikolaidis

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781317701378
• Edition: 1
• Topic: Diritto
• Subtopic: Teoria e pratica del diritto

A right to equality and non-discrimination is widely seen as fundamental in democratic legal systems. But failure to identify the human interest that equality aims to uphold reinforces the argument of those who attack it as morally empty or unsubstantiated and weakens its status as a fundamental human right. This book argues that an understanding of the human interest which equality aims to uphold is feasible within the jurisprudence of the European Court of Human Rights (ECtHR) and the European Court of Justice (ECJ).

In comparing the evolution of the prohibition of discrimination in the case-law of both Courts, Charilaos Nikolaidis demonstrates that conceptual convergence within the European Convention on Human Rights (ECHR) and the EU on the issue of equality is not as far as it might appear initially. While the two bodies of equality law are extremely divergent as to the requirements they impose, their interpretation by the international judiciary might be properly analysed under a common light to emphasise the substantive dimension of equality in European Human Rights law.

The book will be of great use and interest to scholars and students of human rights, discrimination law, and European politics.

1 Equality and the quest for substance

Introduction

The demand for equality constitutes one of the most widely embraced political slogans. People subscribing to different ideologies have strived to benefit from its moral appeal by interpreting it in a way that is compatible with their cause. The resulting complexity of the debate may fairly lead one to conclude that equality means everything and nothing at the same time. Thus, it is hardly surprising that a lowest common denominator which requires symmetry in the treatment of analogous situations has been prevalent. A more substantive or elaborate formulation cannot be sustained without a clear explication of the reasons why it should be preferred in the first place. This chapter puts forward such a normative framework for understanding the human right to equality.

The main goal is to identify – at least at a basic level – the human interest that a right to equality should aim to safeguard on the face of conflicting rights and interests. The need for freedom from arbitrary or irrational treatment is sufficient to account for the formal, symmetrical view but it fails to elucidate the whole breadth of potential duties involved in upholding equality; a more substantive perspective is called for in this respect. The proposition is advanced that a human right to equality should be understood as aiming also to uphold the basic capabilities that are necessary for the maintenance of equal opportunity; thus, the individual should be free from social oppression in the form of prejudice, stereotyping and failures to accommodate difference. Analysis is built up in three basic levels: the moral value of equality, the legal principle of equality and the human right to equality.

1. Why equality?

In his Philosophy of History, Georg Wilhelm Friedrich Hegel argued that freedom as such ‘is an indefinite, and incalculable ambiguous term’.¹ The history of mankind depicts, according to Hegel, the constant struggle for the achievement of this ‘absolute goal’.² But the dialectical nature of the exercise throughout history necessarily means that freedom will probably never be fully realised. Freedom in this sense may be best described as a constant fight for freedom, a never-ending process of identifying and defeating the barriers to the expansion of human possibilities and powers.³

Just like freedom, one may fairly describe the moral value of equality as a journey without a set direction or destination. The huge divergence of opinion as to its scope, its purpose and even as to its reason for existence means that equality for all remains largely illusive, albeit widely desired. To use the words of Ronald Dworkin, when it comes to equality ‘people who praise or disparage it disagree about what it is they are praising or disparaging’.⁴ Still, if we are to touch upon the legal principle and the right to equality, one must necessarily start from adopting a certain understanding of this vaguely defined value.

The most important question to ask in this context is why such a value is considered important in the first place. Every human being is different to another in so many ways that it sounds at least naïve to attach any significance to their ‘equality’; and it would be completely absurd to argue that all discrepancies between us are cause for concern. In order to trace the essence of the moral value of equality we need to identify why some inequalities are considered reprehensible while others are not. Jean-Jacques Rousseau argued more than 250 years ago that moral inequality came hand in hand with the creation of societies and the interdependence of one individual to another.⁵ In this sense, an individual can only be ‘unequal’ in her relations with other people. That assertion enshrines the most basic criterion according to which one may distinguish between acceptable and unacceptable inequalities.

The fact that some people are born healthier than others cannot reasonably be seen as problematic from a moral point of view. This is so because the inequality which favours the healthier is natural and does not flow from the actions of others; had this not been the case, the unhealthy individual would have a moral as well as a legal claim against those responsible for her condition. By the same token, the ability of some people to excel in sports is openly celebrated in athletic events around the world. This is so because the inequality between the winner and her opponents is – supposedly – the result of personal effort and talent as demonstrated in the day of the competition; it has not been imposed arbitrarily by external social factors.

Still, if we were to decree that football is a men’s sport, which women should not be allowed to play under any circumstances whatsoever, this would hardly constitute a morally sensible assertion. The resulting inequality between women and men would emanate neither from nature nor from lack of personal effort or any other reasonable explanation.⁶ Instead, it would stem purely from social prejudice and stereotyping against women. One can easily imagine that all women would be grossly offended by such a measure even if they do not care at all about playing football. This would be so because being treated with equal respect is an important entitlement in itself, and the measure at hand is grossly disrespectful against women.

Accordingly, it seems reasonable to argue that inequalities of form annoy us only when they are indicative of inequalities of substance; i.e. when individuals are made to suffer a disadvantage because of oppressive attitudes directed against certain social groups defined by reference to sex, race, or other personal characteristics. To trace the substantive reasons for sustaining a fundamental human right to equality is to identify the basic capabilities which will allow the individual to operate free from such social oppression. As will be shown later on, this understanding of substantive equality is based on the idea of equal opportunity. The goal is not to achieve equal achievement, either by way of quotas or favourable treatment, but to foster personal enablement by way of eradicating externally imposed barriers to human development.

But before moving on to articulating this conclusion in more specific terms, first as a matter of principle and then as of right, we would have to explicate as clearly as possible the arguments that point towards it. Perhaps the best starting point is to construe equality in its broadest sense, as a moral value which proclaims that (i) all members of the human race equally share a need for a life of dignity and, (ii) such a need must be universally (i.e. equally) acknowledged and respected. But then one has to identify what this entitlement to a ‘life of dignity’ consists of and what role it plays in understanding the value of equality.

2. Human dignity and personal autonomy

The very first sentence of the preamble to the Universal Declaration of Human Rights 1948 (UDHR) heralds that the ‘recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world’.⁷ The requirement for the protection of human dignity has pride of place in several national and international documents which purport to protect the rights of man. Very often it is spotted next to the proclamation of the equality of all human beings. According to Immanuel Kant, dignity constitutes the attribute that renders human beings ends in themselves (as opposed to means for the achievement of other aims), thereby granting them unconditional and incomparable worth and bringing them to the centre of the categorical imperative that permeates his kingdom of ends.⁸

In a very basic sense, the notion of dignity encapsulates the intrinsic worth of all human beings by virtue of their common humanity. The very fact of being human creates an entitlement to have this intrinsic human worth recognised and respected.⁹ This fundamental urge stems directly from the fact that personal development is inextricably linked to the attitudes of others towards the person.¹⁰ All humans are entitled to respect for their dignity because they all desire to be recognised as possessing equal intrinsic human worth in the eyes of the society. It is in this sense of treating everybody with ‘equal respect’ for their common humanity that the notion of human dignity closely interacts with the value of equality.¹¹

As illustrated by the preamble to the UDHR, human rights seek first and foremost to protect this intrinsic worth (dignity) of every individual. But human dignity is best understood as a value which by its very nature is incapable of concrete definition. It represents the moral absolute which the ever-developing human rights system aims to define and safeguard, having regard to the morality which prevails in a given society at a given time.¹² It may fairly be argued for example that the European human rights system itself is a process of constantly re-examining what the protection of this ‘intrinsic worth’ entails, having regard to developing trends in transnational morality. The interpretation of the European Convention on Human Rights as a ‘living instrument’ and the application of a ‘margin of appreciation’ in matters where insufficient consensus exists may reinforce this view.¹³

David Feldman has helpfully proposed that it is wrong to talk of a ‘right to dignity’ since the very notion of dignity refers to an aspect of every man’s personality which cannot be separated from the person.¹⁴ Instead, Feldman suggests, we have rights which promote respect for human dignity. Thus, while dignity itself is not a right, all human rights are somehow linked to the protection of the dignity of individuals.¹⁵ In this sense, the affirmation of human dignity can be perceived as the basis of fundamental rights. Albeit not uncontroversial,¹⁶ this approach is also consonant with various international human rights documents.¹⁷

Reaching a similar conclusion, Oscar Schachter has interestingly distinguished between the ‘historical’ and the ‘philosophical’ conception of dignity.¹⁸ According to Schachter, the former defines dignity as merely a value which ‘reflects the socio-historical conceptions of basic rights’ rather than generating them, while the latter, which is presented as preferable, maintains that rights are indeed generated by the inherent dignity of people.¹⁹ According to another proposition, the concept of human dignity flows from rights in the sense that ‘what is called human dignity may simply be the recognizable capacity to assert claims’.²⁰ This approach actually affirms the primary role of dignity since it is only natural that dignity, being the foundational value of rights, will be impaired when somebody is excluded for no good reason from making use of his rights.

It follows that the affirmation of human dignity is, like equality, a fundamental moral value informing the structure of democratic legal systems. Moreover, again like equality, it is notoriously difficult to particularise. But both dignity and equality seem to share a common link which makes them inseparable. This link is the idea of individual autonomy, which is understood here as ‘refer[ring] to the capacity to be one’s own person, to live one’s life according to reasons and motives that are taken as one’s own and not the product of manipulative or distorting external forces’.²¹ In other words, all individuals should be able to develop themselves freely.

This need for free personal development necessarily requires respect for one’s intrinsic worth; and one’s intrinsic worth cannot be affirmed where people are guided by reasons and motives which are not their own. It seems to be the case then that individual autonomy and human dignity are very closely connected, if not completely confluent, for neither of them can be fully realised or even explicated without reference to the other.²² The value of equality is similarly attached to the idea of individual autonomy insofar as equality prescribes the freedom of the individual from adverse social norms and attitudes. Equality then implies the personal autonomy which is also an inextricable component of a dignified life.

This close relationship between equality, dignity and personal autonomy is highlighted when examined through the lens of the ‘politics of recognition’.²³ Recognition of everyone’s equal worth is often perceived as necessary in order to form one’s identity unhindered by the demeaning behaviour of other people, thereby realising one’s full potential.²⁴ Such a conception of freedom is deeply rooted in the work of Hegel, who has conceived the very existence of self-consciousness as conditional on it being acknowledged by other people.²⁵ In the words of Jurgen Habermas, ‘persons, and legal persons as well, become individualised only through a process of socialization’.²⁶ Of course, this emphasis on recognising the ‘equal worth’ of all people is not generally accept...