Exploring Counterbalancing Paradigms: Positive Discrimination and Collectivisation

The chapter sets the objective to uncover the complexities of positive discrimination and collectivisation as valuable alternatives to the persisting equality paradigm. In that light, the chapter juxtaposes positive discrimination and equality principles, disclosing opportunities and contradictions. First definitional attempts are made; further to this, positive discrimination is presented as a counter-balancing right, as a discourse and policy. Another relevant debate concerns the differentiation made between negative and positive duties as a response to equality’s limited scope of protection, including the triadic typology of obligations around the duty to respect, protect and fulfil, which also operate as considerable yardsticks. Accordingly, monitoring bodies have pronounced themselves on the matter, requiring States to adopt respective enforcement measures and to embrace the concept of ‘inclusive equality’. The duty to fulfil in particular appears to correlate with substantive equality principles, further specifying and contextualising equality, often in consideration of minority situations. While international human rights law would certainly be considered as the most influential legal source and doctrine relating to such triadic obligations, both domestic constitutional law and regional developments shall not be neglected here, meriting a proper debate on their own account.