Positive action as a means to achieve full and effective equality in Europe.

Kapotas, Panos (2010) Positive action as a means to achieve full and effective equality in Europe. PhD thesis, London School of Economics and Political Science.

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Abstract

The concept of positive action features as a traditional theme of controversy in the contemporary legal and political discourse on equality. The paradox of resorting to unequal treatment in order to achieve "full and effective equality" - according to the wording of the Preamble to Protocol 12 of the ECHR - has been dealt with in a parochial and incoherent way. This is true with regard to both the theoretical justifications provided and the concrete legal measures of domestic jurisdictions. This thesis aims to explore the nature of the relationship between positive action and equality in a European normative and philosophical framework. The principal enquiry is whether it is possible to find a common European denominator regarding the content and legal consequences of the concept of equal treatment, understood as full equality. The analytical process is carried out in four stages. Part I constitutes an attempt to map the theoretical debate and identify the main problems in the justificatory rationale of the "classical" conception of positive action. Part II provides a thorough examination of the current position of the European legal order on the matter. The latter is understood broadly, with EU law and the ECHR being the two pillars of a common normative framework that determines what counts as equal treatment across Europe. Part III explains why a "one size fits all" approach on positive action fails to adequately account for the idiosyncratic requirements of equal treatment in different areas of the public sphere, such as the employment field, politics and the judiciary. Finally, Part IV introduces the notions of indistinctibility of respect and proportionality of concern as the symbiotic conceptual axes of equality. Against this theoretical construct positive action should be properly understood not as an exception to equal treatment but as an expression of proportionality of concern.

Item Type:	Thesis (PhD)
Uncontrolled Keywords:	Law, Political Science, International Law and Relations
Sets:	Collections > ProQuest Etheses Departments > Law
URI:	http://etheses.lse.ac.uk/id/eprint/2766

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