Complex Equality and the Court of Justice of the European Union

Reconciling Diversity and Harmonization

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The equality jurisprudence of the Court of Justice of the European Union has long drawn criticism for its almost total reliance on Aristotle’s doctrine that likes should be treated like, and unlikes unlike. As has often been shown, this is a blunt tool, entrenching assumptions and promoting difference-blindness: the symptoms of simplicity. In this book, Richard Lang proposes that the EU’s judges complement the Aristotelian test with a new one based on Michael Walzer’s theory of Complex Equality, and illustrates how analysing allegedly discriminatory acts, not in terms of comparisons of the actors involved, but rather in terms of distributions and meanings of goods, would enable them to reach decisions with new dexterity and to resolve conflicts without sacrificing diversity.

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Richard Lang, Ph.D. (2011), King’s College London, is Senior Lecturer at the University of Brighton and a solicitor. He has published articles on EU Law in several leading journals and has acted as Fundamental Rights Specialist for the European Parliament.
Foreword Acknowledgements 1 Introduction  1.1 Starting Point  1.2 The Trouble with Aristotle: A Précis  1.3 The Project in Outline  1.4 The Search to Find a Complement   1.4.1The Difficulty   1.4.2Equality versus Freedom   1.4.3Reasons for Choosing Walzer 2 Michael Walzer and Complex Equality  2.1 Introduction  2.2 Complex Equality: A Thumb- Nail Sketch  2.3 Negative Dominance  2.4 The Concept of ‘Shared Understandings’ Investigated Further  2.5 An Objection: Walzer’s ‘Relativism,’ and the Need for An Override  2.6 The CJEU and its Override: An Answer to the Objection 3 The Principle of Equal Treatment of Persons Irrespective of Gender  3.1 Introduction  3.2 Outline of Analysis and Taxonomy of Results  3.3 Characteristics and Voluntary Choices: Is the Theory Fit for Purpose?  3.4 Pregnancy   3.4.1The CJEU’s Case-Law   3.4.2Preliminary Analysis   3.4.3A Walzerian Analysis  3.5 Paternity leave   3.5.1The CJEU’s Case-Law   3.5.2A Walzerian Analysis  3.6 Pensions   3.6.1The CJEU’s Case-Law   3.6.2A Walzerian Analysis  3.7 The Question of Part-Time and Full-Time Work   3.7.1The CJEU’s Case-Law   3.7.2Preliminary Analysis   3.7.3A Walzerian Analysis  3.8 Positive Action   3.8.1The CJEU’s Case-Law   3.8.2Preliminary Analysis   3.8.3A Walzerian Analysis  3.9 Insurance Premiums and Benefits   3.9.1The CJEU’s Case-Law   3.9.2Preliminary Analysis   3.9.3A Walzerian Analysis  3.10 Concluding Thoughts 4 Racial or Ethnic Origin, Religion or Belief, Disability, Age, and Sexual Orientation: New Statuses, New Status Rights?  4.1 Introduction  4.2 Racial/Ethnic Origin   4.2.1The CJEU’s Case-Law   4.2.2A Walzerian Analysis  4.3 Religion and Belief   4.3.1The CJEU’s Case-Law   4.3.2A Walzerian Analysis  4.4 Age   4.4.1The CJEU’s Case-Law   4.4.2A Walzerian Analysis  4.5 Sexual Orientation   4.5.1The CJEU’s Case-Law   4.5.2A Walzerian Analysis  4.6 Disability   4.6.1The CJEU’s Case-Law   4.6.2A Walzerian Analysis  4.7 Concluding Thoughts 5 Nationality Discrimination  5.1 Introduction  5.2 Nationality Discrimination in EU Law  5.3 A Specific Example: The Free Movement of Persons  5.4 The Early Case-Law  5.5 A Walzerian Analysis  5.6 Cases Deriving from the Second World War  5.7 A Walzerian Analysis  5.8 The Citizenship Case-Law: Early Days  5.9 A Walzerian Analysis  5.10 The Citizenship Case-Law Evolves  5.11 A Walzerian Analysis  5.12 Interim Conclusion  5.13 The Citizenship Case-Law Since 2005  5.14 A Walzerian Analysis  5.15 Solidarity   5.15.1What is Transnational Solidarity?   5.15.2Consideration and Responsibility   5.15.3Asymmetric Solidarity, Pan-European Solidarity Publics and Walzer’s Position   5.15.4Solidarity and Complex Equality  5.16 Concluding Thoughts 6 Semi-Suspect and Non-Suspect Grounds  6.1 Introduction and Explanation of Terminology  6.2 Semi-Suspect Grounds   6.2.1Article 40(2) TFEU: Producers and Consumers   6.2.2Article 106(1) TFEU: Public and Private Undertakings  6.3 Non-Suspect Grounds   6.3.1General Introduction: Omega   6.3.2Public Procurement   6.3.3Human Resources   6.3.4Competition Law  6.4 Luck: Boundary Breach or Small Inequality?  6.5 Concluding Thoughts 7 Reflections  Introduction  Three Counter arguments   7.2.1The Need for Judicial Interventionism   7.2.2The Possible Need for Expert Evidence, or Even Specialized Courts   7.2.3The Need to Rewrite Legislation 8 Presenting a Theory of Mediated Complexity  8.1 Introduction  8.2 Further Consideration of the Forum, and Some Possible Problems   8.2.1The Design of the Forum   8.2.2The Danger of the Forum   8.2.3Interim Conclusion  8.3 Mediated Complexity  8.4 The Judge vis-à-vis Society  8.5 Conclusion 9 Evaluation  9.1 The Two Methods Compared: Erpelding  9.2 Formulating the Argument  9.3 In Search of Flexibility  9.4 But Does Flexibility Lead to Uncertainty?  9.5 Judge Right Now  9.6 Postmodernism and Precedent   9.2.1Dworkin on Precedent, and A Critique   9.2.2Postmodernism Challenges Neutrality And Positivism   9.2.3Saying Yes to ‘We’  9.7 Macro and Micro: The Equilibrium of Co- Existence  9.8 Complex Equality and European Union  9.9 Complex Equality for European Courts?  9.10 Parting Words: To Thine Own Self Be True 10 Conclusion Appendix I Bibliography Index
Those studying, teaching or practising European law, anti-discrimination law and human rights law, and those studying or teaching jurisprudence, philosophy, political science, social science, postmodernism, and disciplines concerned with minorities.
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