Affirmative Action Policies and Judicial Review Worldwide

verfasst von: George Gerapetritis

Verlag: Springer International Publishing

Buchreihe : Ius Gentium: Comparative Perspectives on Law and Justice

Enthalten in: Springer Professional "Wirtschaft+Technik" , Springer Professional "Wirtschaft"

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This book discusses affirmative action or positive discrimination, defined as measures awarding privileges to certain groups that have historically suffered discrimination or have been underrepresented in specific social sectors. The book’s underlying rationale is that one cannot place at the same starting point people who have been treated differently in the past because in this way one merely perpetuates a state of difference and, in turn, social gaps are exaggerated and social cohesion is endangered. Starting out with an introduction on the meaning and typology of affirmative action policies, the book goes on to emphasise the interaction of affirmative action with traditional values of liberal state, such as equality, meritocracy, democracy, justice, liberalism and socialism. It reveals the affirmative action goals from a legal and sociological point of view, examining the remedial, cultural, societal, pedagogical and economy purposes of such action. After applying an institutional narrative of the implementation of affirmative action worldwide, the book explains the jurisprudence on the issue through syntheses and antitheses of structural and material variables, such as the institutional recognition of the policies, the domains of their implementation and their beneficiaries. The book eventually makes an analytical impact assessment following the implementation of affirmative action plans and the judicial response, especially in relation to the conventional human rights doctrine, by establishing a liaison between affirmative action and social and group rights.. The book applies a multi-disciplinary and comparative methodology in order to assess the ethical standing of affirmative action policies, the public interests involved and their effectiveness towards actual equality. In the light of the above analysis, the monograph explains the arguments considering affirmative action as a theology for substantive equality and the arguments treating this policy as anathema for liberalism. A universal discussion currently at its peak.

Inhaltsverzeichnis

Frontmatter

Chapter 1. Introduction

Abstract

Introduction provides the definition and typology of affirmative action. In relation to the definition of the policy, the chapter includes a breakdown of its constituent elements and an explanation as to the use of each one of the various definitions applying worldwide and the implications thereof. In relation to the typology of the measures, the chapter comprises a catalogue of the criteria which differentiate the diverse forms of affirmative action measures, such as legal source, duration, extent of application and designated groups. Emphasis is based on the distinction based on their effectiveness, i.e. measures of direct effect (quotas and quotas by effect) and measures of indirect effect and the grey zone between the two and on aberrations of the policy, such as cases of reverse quotas. Finally, the scope of the research and its argument in brief is presented, by introducing the basic questions stemming from the implementation and judicial review of affirmative action policies.

George Gerapetritis

Chapter 2. The Moral Question: Interacting with Traditional Values

Abstract

In this chapter, affirmative action is set in a broader conceptual background, as defined by other fundamental constitutional values, such as democracy (in a procedural or substantive perception), justice (on a distributive or attributive perception), dignity and meritocracy and, reasonably enough, the principle of equality itself. The inner relationship between affirmative action and equality is a key-element for the better understanding and implementation of the former policy. If affirmative action penetrates into the rudiments of equality, thus becoming an inexorable feature of this principle, it is incumbent on us to accept that equality has been mutated and affirmative action needs to be taken into account when defining equality in the first place. If, on the contrary, there is no institutional transformation of equality, then affirmative action should be conceived and treated as any other exception from the principle of equality.

George Gerapetritis

Chapter 3. The Sociological Question: Goals and Legitimacy

Abstract

The third chapter is engaged in research in relation to the purposes in favour of which the affirmative actions policies are introduced, which is a necessary prerequisite for their constitutional assessment, since only legitimate goals can justify deviations from fundamental rights (if affirmative action is to be seen as a departure from legal equality) and, even if the goal is deemed to be legitimate, still the means employed must be in a state of fair proportion (basically suitable and necessary) against the goal they aspire to promote. As reflected in the doctrine and jurisprudence of affirmative action, there are two basic and three auxiliary goals pursued by the policy. The two basic purposes are the remedial purpose (compensation for past discriminations) and the cultural purpose (diversity as a means to further enhance unrepresented groups and eventually achieve better experience), which is mostly identified in the US. Auxiliary there are the societal purpose (aiming at social inclusion of vulnerable categories and social cohesion), the pedagogical purpose (aiming at establishing group models for the designated groups and raise confidence toward the institutions) and the economy purpose (targeting raise of efficiency for individuals and healthy economic environment overall).

George Gerapetritis

Chapter 4. The Policy Question: Diverse Worldwide Practices

Abstract

This chapter is engaged in a descriptive and evaluative research based on the implementation of affirmative action plans worldwide. The descriptive part, including identification of structural mechanisms of the various countries and the historical grounds which explain, wholly or in part, the national attitude towards affirmative action, presents the policy landscape in America (the US, Canada, and Brazil); Europe (European Union, France, Germany, the UK, Italy, Spain, Portugal, Belgium, the Netherlands, Austria, Ireland, Greece, Nordic countries and Russia); Asia (India and China); Africa (Nigeria and South Africa) and Oceania (Australia and New Zealand). A separate section is devoted to universal and regional international conventions, especially the European Convention on Human Rights. The evaluative part constitutes a comparative analysis of syntheses and antitheses of the affirmative action policies worldwide. It includes an assessment of the variables favouring the launching of such policies, both structural, i.e. federal, former colonial, social welfare and multi-ethnic states and material, i.e. institutional acknowledgment, (constitution, statute, custom, and convention), the domains of application (education, politics, economy and labour) and designated groups (racial, ethnic or religious minorities, women). The chapter finally casts light upon the political identity of affirmative action, as a right/left, conservative/progressive tool, identifying but also probing beneath political agendas and statutes of political parties that might sometimes use the policy merely for political gains.

George Gerapetritis

Chapter 5. The Legal Question: Method and Intensity of Judicial Review

Abstract

This chapter reveals the methodology of judicial review and assesses how important affirmative action becomes for the human rights doctrine. In relation to the methodology of judicial review, three-steps are identified. First, setting the standard of review with collaterals relating to whether state authorities have mere discretion or legal obligation to introduce such measures; whether it is basically addressed to the state, thus being merely a policy, or it introduces an enforceable right; the version of equality applied in the course of judicial review (equality of results or opportunities), the depth of judicial review (restrictive or broad interpretation); the evidence and the threshold of burden of proof; and the impact of judicial predilection in deciding such cases. Second, identifying and assessing the goal pursed. And, third, applying the proportionality test through the vehicles of suitability (appropriateness and fitness) and necessity (less restrictive alternatives and temporal validity of action), in analogy to the applying standards of review particularly in the US (rational basis test, intermediate control, strict scrutiny). In the light of the above, the chapter finishes with an impact assessment of affirmative action upon the human rights doctrine, focusing on whether the policy constitutes a new social right and whether it eventually establishes group rights, contrary to the libertarian tradition of human rights’ protection.

George Gerapetritis

Chapter 6. Conclusion

Abstract

This chapter presents the conclusions of the book. On a conceptual level, three premises are drawn: First, affirmative action faces significant problems when set alongside with traditional values of the constitutional state. Second, the remedial rationale of affirmative action possesses both doctrinal and evidentiary difficulties; therefore it seems to be conceding, at least in the US, in favour of the goal of diversity. And, third, affirmative action seeks for vital space within the orthodox human rights theory both as a social or post-social right and as a group right. On a pragmatic level, three further premises are drawn. First, the task of designing a proper affirmative action plan is an exceptionally difficult, if not impossible, task due to the complicated variables that ought to be taken into account leading to over- and under-inclusiveness. Second, significant counter-effects might be caused following the enactment of affirmative action policies, mostly related to sociology and psychology. And, third, affirmative action has not, at least not always, produced the desirable results in relation to the increase of participation of members of designated groups.

George Gerapetritis

Backmatter

Titel: Affirmative Action Policies and Judicial Review Worldwide
verfasst von: George Gerapetritis
Verlag: Springer International Publishing
Electronic ISBN: 978-3-319-22395-7
Print ISBN: 978-3-319-22394-0
DOI: https://doi.org/10.1007/978-3-319-22395-7

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Inhaltsverzeichnis

Frontmatter

Chapter 1. Introduction

Chapter 2. The Moral Question: Interacting with Traditional Values

Chapter 3. The Sociological Question: Goals and Legitimacy

Chapter 4. The Policy Question: Diverse Worldwide Practices

Chapter 5. The Legal Question: Method and Intensity of Judicial Review

Chapter 6. Conclusion

Backmatter

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