Equality and its discontents

On the diversity of equality doctrines in comparative perspective

Bibliographic Data

ID13008787
AuthorsNiels Petersen (0000-0001-6272-6059, University of Münster, corresponding author)
Year2025
Pages1-25
Publication date2025-11-17
Open AccessYes
TypeARTICLE
VenueGlobal Constitutionalism (JOURNAL)
Journal identifiersISSN: 2045-3817 • E-ISSN: 2045-3825
PublisherCambridge University Press (CUP) (PUBLISHER)
DOI10.1017/s2045381725100154
OpenAlexW4416300182
LanguageEN
References cited23

The meaning of equality is highly contested. As a result, courts across different jurisdictions have developed distinct doctrinal approaches to operationalize the concept. This article argues that four primary equality frameworks can be identified, each reflecting not only different understandings of equality but also varying degrees of judicial deference to the legislature and executive. The first is the equality-as-non-discrimination model, which predominates in most common law jurisdictions and dominates the theoretical discourse on equality. The second, prevalent in many continental European jurisdictions, is the equality-as-reasonableness model, under which courts apply a relatively strict standard of review, even in cases that do not involve suspect classifications. The third, the positive-equality model, recognizes that courts can derive positive obligations from the principle of equality. Finally, the deferential model largely entrusts the definition and implementation of equality to the legislature and executive. This article highlights the normative strengths and weaknesses of each model, arguing that no single approach holds an absolute normative advantage over the others. Instead, the suitability of a particular model depends on the societal and institutional context in which a court operates

Context (archaeology · Deference · Legislature · Meaning (existential · Normative · Operationalization · Strengths and weaknesses · Suspect · Discrimination and Equality Law · Judicial and Constitutional Studies · Minority Rights and Languages

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Open DOIOpen Access