Women, quotas, and constitutions : a comparative study of affirmative action for women under American, German, EC, and international law

著者

書誌事項

Women, quotas, and constitutions : a comparative study of affirmative action for women under American, German, EC, and international law

Anne Peters

Kluwer Law International, 1999

タイトル別名

Women, quotas, and constitutions : a comparative study of American, German, EC, and international law

Women, quotas, and constitutions : a comparative study of affirmative action for women under American, German, European Community, and international law

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注記

Includes bibliographical references (p. 357-393) and index

内容説明・目次

内容説明

Providing an overview of the American and German constitutional regimes of affirmative action for women, this work describes international and European Community rules which encourage and limit affirmative action taken by individual states. Comparison of the legal orders reveals a paradox. Affirmative action for women in America has existed longer and is more widespread and more institutionalized, although the spirit of the American Constitution conflicts with such policies more than the German Constitution. The American Constitution contains no clause explicitly guaranteeing gender equality. It establishes a principle of containment - that the government is prohibited from certain action - and does not acknowledge positive governmental duties. Individual freedom is of primary importance, and the socially-dependent nature of the individual is barely recognized. In contrast, the German Constitution contains a gender-specific equality clause which is interpreted by some as allowing quotas as a form of preferential treatment. German constitutional law also includes the principle that the state has affirmative duties, the principle of the social state (Sozialstaat), and the merit principle for hiring and promotion within the civil service. The discrepancy between policy and constitutional principle suggests that the formulation of policy is driven less by constitutional principles than by exterior elements such as the political and social situation, which apparently have led the United States to implement affirmative action despite a relatively weak constitutional basis, and Germany to refrain from implementing affirmative action despite relatively strong constitutional support. The book also explores the utility of comparative law, its scope and its limits. It concludes that one should not overestimate the utility of comparative law as a tool of social engineering that prepares the adaptation of foreign policies to solve the apparently similar problems of different countries; the strength of comparative law lies rather in its critical potential, and thus legal comparison mirrors the limits of law as a vehicle of social reform - limits particularly obvious in the context of overcoming discrimination against women.

目次

  • Methodology
  • affirmative action defined
  • affirmative-action law within the constitutional framework of the United States of America
  • affirmative-action law within the German constitutional framework
  • affirmative (positive) action in European Community law
  • affirmative action for women under international law.

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