Abstract
“Discrimination” has a “treatment” element and an “equality” (or “inequality”) element. We shall first deal with the equality element; the “treatment” element will be discussed in the next Chapter.
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That is: “formal” justice, as contrasted with the broader notion of “material” justice, which does not only refer to the mode of distribution of burdens or favours, but rather also to the character of the “just act” as such. “Material” justice thus relates for example to the “just king” who e.g. will punish the guilty and release the innocent. In the following we rely to some extent on our note “Non-Discrimination and Justice” in Archiv für Rechts- und Sozialphilosophie, Vol. LVII (1971), p. 187 ff.
See for references to the immense literature: J. Stone, Human Law and Human Justice (London 1965) p. 325 ff.; Nomos IX, Equality (New York 1967);
Morris Ginsberg, On Justice in Society, (London 1965);
G. del Vecchio, Die Gerechtigkeit (Basel, 1950);
H. Nef, Gleichheit und Gerechtigkeit (Zürich 1941);
R. Briner, Zur Funktion der Gleichheit in der menschlichen Gerechtigkeit (Wädenswil, 1948).
Also H. Kelsen, Reine Rechtslehre (2nd ed., Wien 1960), p. 357 ff., especially p. 390 ff.
Compare for example the recent “Lusaka Manifesto”, proclaimed at the Fifth Summit Conference of East and Central African States, held in Lusaka, Zambia, in April 1969, in the second paragraph of which it is said that “by this Manifesto we wish to make clear, beyond all shadow of doubt, our acceptance of the belief that all men are equal, and have equal rights to human dignity and respect, regardless of colour, race, religion of sex.” Text in Objective: Justice, Vol. I, no. 1 (U.N. Office of Public Information, New York 1969, p. 20 ff.).
See the Nicomachean Ethics, Book Five, Ch. 2–8.
Max Salomon, Der Begriff der Gerechtigkeit bei Aristoteles (Leiden 1937), p. 26.
See for the following in general Nef, op.cit., Part I (pp. 3–51).
For a survey of the various approaches to the problem in Western metaphysics, see for example H. Heimsoeth, Die Sechs Grossen Themen der Abendländischen Metaphysik und der Ausgang des Mittelalters (1922, 4th ed., Stuttgart 1958), Chapters I and V.
Kritik der Reinen Vernunft, ed. by R. Schmidt (Leipzig 1926); “Von den regulativen Gebrauch der Ideen der reinen Vernunft”, pp. 604–624.
At p. 623; compare also Nef who likewise speaks of “das Interesse des Subjekts.” Op.cit., p. 26.
This important thesis, upon which our whole argumentation is based, seems somehow rather difficult to accept. For example, in Men and Nations (Princeton 1962), Louis J. Halle refers to the Kantian passage quoted in the text above, and observes: “It is pointless to ask whether the world as seen through a microscope or the world as seen through a telescope is the world as it really is. The experience of the earthworm and the experience of the eagle are, equally, experiences of reality. There is a distinction, however, in terms of meaningful experience. If the ultimate reality… is a single order that comprehends all being, then the larger view will be more revealing of it than the smaller. Because the order of the universe is found in the association of its particles, all the great visions that have advanced human understanding have been those of minds that, to use Kant’s language, were influenced more by the interest of unity… The nobler and more meaningful view, in international relations, is that which reduces the differences between men and nations” (pp. 124–125). It seems to us that Halle thus has missed the point that Kant so emphatically makes; but of course, by the same token the opposite of what Halle asserts would not do justice to Kant’s view either.
See L. S. Vygotsky, Thought and Language, (Moskow 1934). We refer to the English edition (Cambridge, Mass., 1962), pp. 76–77.
See on this “naturalistic fallacy” e.g. A. Podlech, Gehalt und Funktionen des allgemeinen verfassungsrechtlichen Gleichheitssatzes (Berlin, 1971), p. 37–38. Compare also Kelsen’s reaction to article 1 of the Universal Declaration of Human Rights (“All human beings are born free and equal in dignity and rights”): “… from the point of view of a bill of rights, it is not the question how human beings are born, but how human beings shall be treated by the law, regardless how they actually are born, and regardless of the great differences which actually exist between them.” The Law of the United Nations, London 1951, p. 41.
Stressed by Briner, op.cit., p. 32 f.
See Nef, op.cit., p. 64, and also H. Henkel, Einführung in die Rechtsphilosophie (München and Berlin 1964), p. 362–363.
Compare H. Kelsen, Reine Rechtslehre (2nd. ed. Wien 1960), p. 393.
One author (R. M. Unger, “Isonomy and Justice” in Archiv für Rechts- und Sozialphilosophie, Vol. LVI, 1970, p. 183) puts what seems to be a key question in this way: “How is it possible for generality and differentiation to coexist within the legal system?” We would say that the problem is not how they can coexist, but rather that they necessarily doc oexist. Therefore the question should be: in what cases must the former and in what cases must the latter prevail?
In judgments concerning questions of minority protection; see for a general survey: H. Lauterpacht, The Development of International Law by the International Court (London 1958), Chapter 17: “The Effectiveness of Equality Clauses” (p. 257 ff.).
R. M. Unger, The Development of International Law by the International Court (London 1958), op.cit., p. 183.
See for example the essays which Radbruch devoted to this theme: “Der Mensch im Recht”, “Klassenrecht und Rechtsidee” and “Vom individualistischen zum sozialen Recht”, collected in: Der Mensch im Recht (2nd ed., Göttingen 1961) p. 9–49.
H. Schambeck, Grundrechte und Sozialordnung, Gedanken zur Europäischen Sozialcharta (Berlin 1969), p. 89;
see also R. H. Tawney, Equality (5th ed., London 1964), Ch. IV.
H. Kelsen, Pure Theory of Law (M. Knight’s translation, Berkeley 1967), p. 146.
H. Henkel, Pure Theory of Law (M. Knight’s translation, Berkeley 1967), op.cit., Ch. 32 (“Typus und Individualität im Recht”).
Compare on this the statements by the Polish delegate in the debate on draft article 26 of the Covenant on Civil and Political Rights in the Third Committee of the General Assembly, 13 November, 1961, (A/C.3/SR 1101, §§ 15–21) reproduced in part below, p. 124 f.
In this connection the situation in German Constitutional Law may be mentioned as an illustrative example. Originally, article 109 (1) of the Weimar Constitution laid down only the equality of all Germans “before” the law. Soon after the adoption of this Constitution a controversy started as to whether not only the administrative and judicial branches were bound by this provision, but also the legislature. One of the most influential authors on this problem was Gerhard Leibholz who published “Die Gleichheit vor dem Gesetz” in 1925 (second enlarged edition, München and Berlin, 1959). The title of this monograph (“vor”) merely reflects the wording of article 109 (1) of the Constitution; the author in fact strongly advocated — as did some other writers — the broad interpretation of the equality clause, asserting that it should also apply to the legislature, and that the judiciary should review legislation in the light of it. The judiciary tended to follow this interpretation, be it reluctantly and with much restraint. After the Second World War there has been no controversy on this point because the Bonner Grundgesetz adopted the broad interpretation by providing in article 1 (3) that “The following basic rights shall be binding as directly valid law on legislation, administration and judiciary.” Among the “basic rights” that follow is the equality clause of article 3 quoted below, p. 83. The standard to be applied in review of legislation that was expounded by Leibholz and applied by the Constitutional Court in a great number of cases is the prohibition of arbitrariness (“Willkürverbot”).
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© 1973 Martinus Nijhoff, The Hague, Netherlands
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Vierdag, E.W. (1973). Equality and Inequality. In: The Concept of Discrimination in International Law. Springer, Dordrecht. https://doi.org/10.1007/978-94-010-2430-3_2
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