Correcting inequality through law: how courts conceptualize equality in their constitutional jurisprudence
Equality is one of the main political concerns of our time. Rising economic inequality is often cited as a major reason for the recent rise of political populism. 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 analyzes the contributions that courts can make to correct inequalities. Norms protecting equality form part of all major national and international human rights instruments. However, the meaning of equality is fundamentally contested. There is no agreement on what equality exactly means or entails. The question, therefore, 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 to give meaning to the concept of equality. The proposed research project analyses 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 examines whether courts are better suited to correct certain kinds of inequalities than other kinds of inequalities.