chapter  8
33 Pages

Against discrimination

The right to equality and the dilemma of difference
WithJoseph Marko

We have already outlined in Chapter 4, section 4.3, the conundrums of the liberal democratic state in dint of the ideological underpinnings of liberalism, nationalism and socialism. Following from the analysis of case law of apex courts in Europe, in this section we argue that the dichotomy of formal equality before the law and substantive equality through law is ideologically prefabricated and masks the not only epistemological but also political ‘dilemma of difference’ (Minow 1990) in the form of the deep structure of asymmetric power relations in the process of transformation of what is perceived as normal into norms. Hence, the dilemma of difference cannot effectively be targeted if the rule of formal equality shall require only state authorities to refrain from discrimination against individuals on certain grounds such as, for instance, those enumerated in Article 14 of the European Convention on Human Rights (ECHR; Box 8.1 shown overleaf), and if, at the same time, substantive equality and thus the ensuing so-called positive duty of state authorities to interfere in social, economic, cultural and political relations, in order to bring about ‘full and effective equality’, as spelt out in Article 4 of the Framework Convention for the Protection of National Minorities (FCNM; Box 8.1) is declared reverse discrimination per se. Thus, as we try to demonstrate in this chapter, the dichotomic conception of formal versus substantive equality is already part of the dilemma. Nor does this dilemma follow from allegedly natural ethnic differences between persons and groups as the ideologies of nationalism and racism, as well as primordial theories of ethnic origin (see Chapter 4, section 4.2) postulate. Rather, it must be understood in terms of our sociological conceptualisation and terminology outlined in detail in Chapter 5, section 5.2 from the perspective of positional and not necessarily cultural differences between persons within and between groups and their ascribed or voluntarily chosen membership. In this respect, the second dichotomy of individual versus group-related rights following from the dichotomic conceptualisation of formal versus substantive equality is an ideologically prefabricated dichotomy, which cannot be maintained from the perspective of comparative constitutional law as we demonstrated in Chapter 5, section 5.3.308