THE PRINCIPLE OF EQUALITY. NEW AND OLD CHALLENGES (original) (raw)

The principle of equality: new and old challenges Equality, as a concept, is as old as mankind. Conceived as a principle intimately related to the fundamental rights and freedoms of people, its political consecration can be traced back to the American and the French Declarations of 1776 and 1789. Since then, it began to exercise its innovative drive in the development of the legal systems all over the world, during the following Centuries. Equality in the modern sense of the notion, as equality of all people before the law, thus started to impose itself as a principle able to limit the power. After the Second World War, it became a core element of the "Postwar paradigm", as part of international documents and national constitutions. The spread of the principle in written legal texts was accompanied by the new awareness about the insufficiency of the merely affirmation of everyone's equality before the law, unable to effectively fight against social and economic discriminations. Public powers must act in the fight against social inequalities. Afterwards, substantial equality has been entrenched in many constitutions, in the context of the "transformative constitutionalism" movement, especially in the Global South. Equality principle represents a founding element of contemporary constitutionalism. Fundamental rights are universal, and the defence of human dignity must be placed at the centre within plural societies, notably with reference to the current globalised and multicultural world. Still, the increasing growth of inequalities currently represents a major topic to be addressed. How can law fill the gap between the equality political project and the discriminations constantly present in our societies? Which are the tools able to reconcile the tension between formal and substantial equality? Are the non-discriminations clauses enshrined in domestic constitutions and international documents enough to guarantee an effective implementation of the equality principle? How can the interpretation of such written clauses contribute to an extensive protection of human dignity and pluralism? Which tools can be used in case of unwillingness of the legislator to proactively act for the protection of substantive equality? Could courts make up for legislators, to fill in their omissions? Evidently, new challenges have developed in the 21st century, in the context of democratic decay. In many democracies, old and new, political forces hostile to liberal democracy appear to attack the rule of law and constitutional guarantees, after winning electoral majorities in the polls. Therefore, equality is even more challenged, and increasingly difficult to concretely guarantee. Those questions have driven the reflections exposed and debated within the IACL-AIDC Roundtable "The