平等权原则与宽容——以平等和自由的关系为向度

平等和自由之间是存在张力的,且经常表现为一种矛盾关系。国家强制平等往往通过一定的制度来实现,而这种制度如果不能在自由与平等之间保持某种适度平衡,就会导致来自国家或社会的歧视与缺乏宽容。就平等权原则在世界各国宪法上的规定及其实践而言,虽然不同国家的宪政制度和法治文化传统不同,但都体现了宽容的内在性要求,一如美国的"平等保护原则"和德国的"法律上的平等与禁止恣意原则"。鉴于我国人民代表大会制度下的"立法归类"可能造成的歧视和不宽容,将"法律面前人人平等"单纯理解为平等权或法律适用上的平等原则,都是不甚妥当的,它仍然有进一步诠释的余地。在更为根本的宪法原则层面,宽容理念要求确立社会法治国原则,以对传统法治国原则进行修正,以进一步调和自由与平等之间的内在紧张关系。     

Reasonable Care: Equality as Objectivity

The most compelling defense of the standard of reasonable care in negligence law casts itself in terms of equality. This commitment to equality may paradoxically turn out to be flatly inegalitarian. This is because it discriminates against the less capable through ignoring their deficient capabilities (and so against their chances of meeting the standard of reasonable care successfully). A promising, though still unfamiliar, way to revive the egalitarian aspirations of reasonable care would be to show that imposing the standard of reasonable care even on the less competent expresses, rather than inhibits, a true devotion to equality. I seek to make this showing, and thus to reclaim for this standard of care its egalitarian foundations more adequately than has so far been proposed.     

EU Equality Law: Three Recent Developments

This article analyses three recent developments within the EU that have an impact on EU equality legislation: the coming into force of the Treaty of Lisbon, the Proposal to extend the material scope of the provisions against discrimination on the ground of religion and belief, disability, age and sexual orientation beyond the area of employment, and the case law of the European Court of Justice regarding the EU Equality Directives of 2000. It will assess whether these three developments have led to improved protection against discrimination for people in the EU.     

Dignity and Equality

Inequality remains one of the most challenging issues on theglobal human rights agenda. It is widely recognised that a formalapproach to the assessment of inequality has failed to eliminateentrenched structural social and economic inequality and thata different approach is required in order to tackle the rootsof inequality and achieve substantive equality. In seeking toimplement an approach to equality that addresses the historyof apartheid and the social and economic inequality endemicin South African society, the South African Constitutional Courthas rejected formal equality, and is in the process of developinga substantive interpretation of equality based on the protectionof human dignity. Critics of this approach have argued thatthe concept of human dignity is too indeterminate to providea stable foundation for equality law and that it promotes anexcessively individualistic conception of equality. Focussingon key developments in defining human dignity in German andSouth African constitutional law, this article argues that theconcept of dignity is rooted in a rich tradition which is capableof underpinning an approach to equality which avoids excessiveindividualism and fully recognises the interplay between individualand community needs. A detailed exploration of the equalityjurisprudence of the South African Constitutional Court revealshow the dignity-based approach has been developed in order toprovide a framework within which the actual experience of victimsof discrimination can be explored. It is concluded that thisapproach has the potential to engage with the realities of thewide range of divisions within South African society and theireffects in order to address not only the legacy of apartheidbut also to contribute to the creation of a society in whichevery person is valued equally.     

Managing Equality in Social Dilemmas: Emotional and Retributive Implications

The equality rule is an important coordination rule in symmetric public good dilemmas. Although prior research emphasized that people use the equality rule out of efficiency concerns (as it helps to obtain the public good in the most efficient manner among group members), it may also reflect a true preference for fairness. More precisely, research examining emotional and retributive reactions as a result of a violation of the equality rule by a fellow group member showed that equality indeed is related to people’s personal values and what they consider to be fair. The present paper suggests that a violation of the equality rule results in emotional reactions, and these emotional experiences encourage further retributive actions. The different reactions following an equality violation are described as a function of three features: (1) the motives to use equality, (2) attributions for explaining the violation, and (3) the honesty of the given explanation. The write-up of this paper was partly supported by GOA/05/04 from the Research Fund of the Katholieke Universiteit Leuven. The research and write-up was supported by a fellowship of the Netherlands Organization for Scientific Research (NWO, Grant No. 016.005.019), awarded to the second author.