The event was part of the Equality Movements from the 19th Century to the Present course for Hungarian and Erasmus students. The aim of the course is to show how each equality movement has influenced our understanding of equality today and how the idea of equality has become a common cultural minimum. This idea is reinforced in the Lisbon Treaty when it states that the European Union is founded on (among other things) the value of respect for equality. This is a common ground, a common basis which brings the Member States together and enables dialogue based on common traditions.
This common tradition is rooted in the ancient Greek philosophy, in the Jewish-Christian traditions, in natural law and in the modern legal, international legal development. The first half of the lecture therefore presents the philosophical background on which this common tradition is based.
The notion of equality is linked to the Aristotelian idea that those who are equal should be treated the same, while those who are different should be treated differently. This idea is the essence of the traditional concept of equality and is one of the most fundamental doctrines of Western civilisation.
According to the Stoics, individuals are rational beings, the main characteristic of human nature is the consciousness. Since all humans have consciousness, they are all equal and worthy of respect. Aristotle in the Nicomachean ethics said that equality is the basis of just government. According to the Jewish and Christian beliefs, equality between human beings originated with God. The Christian social doctrine’s starting point is the person, who is unique, unrepeatable, irreplaceable, who is not valued by his function and utility but by his existence itself. Since man has divine attributes, he is to be respected in this capacity, not by his family origin or moral qualities. It follows from the dignity given to man by his Creator that this dignity transcends all differences of gender, race, religion, culture, wealth and class. In the natural law which is rooted in Stoic philosophy, combined with Jewish and Christian beliefs, and later a secular version of all these, equality of individuals no longer derives from God, but rather from the consciousness of each individual.
Until the 18th century, the accepted view was that human beings were inherently unequal, but this was replaced by the natural law view that equality is part of the natural order. Then in the early philosophical liberalism, it was assumed that all people are born equal and that subsequent inequalities are the result of circumstances. The contemporary political philosophy distinguishes four forms of equality: political, legal, social and economic. The latter is essentially the defence (realisation) of the first three. The study of economic equality dates back to the 19th century, the core question being whether and to what extent the state should guarantee equality in social conditions. The simple concept of equality (typically communist or socialist) demanded absolute economic equality, i.e. that everyone should have the same level of goods and services.
The second half of the lecture is about the international legal development and equality and the national constitutions.
After the Second World War, provisions prohibiting discrimination were introduced at the international level, with the UN Charter already including four grounds – race, sex, language and religion – and the scope of prohibition of discrimination began to expand.
The Universal Declaration of Human Rights (1948) enshrines the equal dignity of all human beings, and states that all persons are entitled to all the rights and freedoms set out in the Declaration without discrimination, and guarantees equality before the law. In addition to the four grounds, it also prohibits discrimination on the grounds of colour, political or any other opinion, national or social origin, property, birth or any other ground. This formulation is the origin of the modern concept of anti-discrimination, which appeared in the European Convention on Human Rights (1950) and was also incorporated, in a modified form, into national anti-discrimination legislation.
The prohibition of discrimination is also enshrined in the International Covenant on Civil and Political Rights (1966), the International Covenant on Economic, Social and Cultural Rights (1966) and the Convention on the Elimination of All Forms of Racial Discrimination (1965), the Convention on the Elimination of All Forms of Discrimination against Women (1979), the Convention on the Rights of the Child (1989), the Declaration on the Elimination of All Forms of Religious Intolerance and of Discrimination against Women (1981) and the Declaration on the Rights of Linguistic, Religious, National or Ethnic Minorities (1992). In addition to these, a number of international documents have been adopted in other specific areas, e.g. education, labour.
Within the European Union, while the Treaty of Rome (1957) only mentions discrimination on grounds of nationality and gender, the Treaty of Amsterdam (1997) contains a detailed catalogue of prohibited grounds of discrimination (sex, race, descent, ethnic origin, religion or belief, disability, age, sexual orientation).
The Treaty of Lisbon (2007) states that the European Union is founded on, among other things, the value of respect for equality, and that the EU fights against any discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. It enshrines equality before the law and the prohibition of discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation.
Title III of the Charter of Fundamental Rights is about equality, which specifically mentions equality before the law and equality between men and women. It prohibits any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation. In addition, a number of directives contain detailed rules and the legal framework is complemented by the case law of the Court of Justice of the European Union.
The vast majority of national constitutions contain some reference to the prohibition of discrimination. There are basically two codification solutions, either they prohibit discrimination in general terms only, or they contain a catalogue of grounds for prohibited discrimination, naming the most serious types of discrimination. The protected characteristics listed under the grounds of prohibited discrimination prohibit the most historically well-known forms of discrimination.
Countries that have opted for a general prohibition include Belgium, Ireland, Latvia, Poland, Luxembourg, Monaco, Montenegro and Norway.
The constitutions of the countries that lay down the basis for prohibited discrimination are quite diverse in this respect. The following characteristics can be defined as a kind of common minimum: race, sex, language, religious, political or other belief, nationality. Of these, race and nationality, and basically sex, are among the immutable characteristics, while the other characteristics may change, but as a result of a longer process.
In the Finnish constitution, racial discrimination is absent from the above, linguistic discrimination is absent from Bulgarian, Dutch and Spanish, and other beliefs are absent from the Italian. The prohibition of discrimination on the basis of colour, as known from international documents, is not as widespread, but the mention of social or wealth status is more common. The Lithuanian and Swiss constitutions mention only social status and not property. These last three characteristics, although mentioned in slightly fewer constitutions than the first group, can also be included among the „common minimum” because of their prevalence.
Discrimination on the grounds of origin (birth, place of origin) is prohibited in the constitutions of Austria, Bosnia and Herzegovina, Croatia, Cyprus, the Czech Republic, Estonia, Hungary, Iceland, Kosovo, Portugal, Slovakia, Slovenia, Slovakia, Switzerland and Ukraine, while discrimination on the grounds of disability is prohibited in the constitutions of Finland, Hungary, Switzerland, Serbia and Slovenia.
The Finnish constitution includes disability and health among the grounds for prohibition. The Portuguese constitution also prohibits discrimination on the grounds of sexual orientation and education, and the latter is also found in the Albanian, Bulgarian, Croatian and Slovenian constitutions. Another interesting feature of this constitution is that it also prohibits discrimination against children born out of wedlock. Sexual orientation is mentioned in the constitutions of Kosovo and Malta. The Serbian constitution is unique in mentioning discrimination on cultural grounds and prohibiting age discrimination. The latter also appears in the Finnish, Serbian, Portuguese and Swiss constitutions. The Maltese constitution is specific in including sexual orientation and gender identity as grounds for prohibition and the Swiss constitution includes the prohibition of discrimination on the grounds of lifestyle.
The French constitution is relatively restrictive, mentioning only origin, race and religion, and respect for opinions. The Swedish organic constitution, in its section on government, lists the following grounds for prohibited discrimination which state institutions must combat: colour, national or ethnic origin, language or religion, functional disability, sexual orientation, age. In the absence of a written constitution in the UK, Article 14 of the Human Rights Act prohibits discrimination on grounds of sex, race, colour, language, religion, political or other opinion, national or social origin, ethnic or nationality, property, birth or other status. The Danish and Liechtenstein constitutions do not specifically prohibit discrimination.
Equal treatment and non-discrimination are also regulated by law in practically all European countries, and public bodies (equal treatment authorities, various bodies, ombudsmen) enforce these laws.
During the lecture, the goal was to show that, in practice, the notion of equality is rooted in shared traditions, worldviews and development. Across Europe, we have very similar ideas about who is equal and who we must protect from discrimination. This understanding is one of the strongest pillars of Western thinking and a foundation on which we can build our future here in the European Union too.
I, the undersigned Attila Kojer hereby confirm that I have performed a linguistic revision and proofreading of text of the report on the dissemination event Constitutional Identity and Relations between the EU law and the Domestic law on the Member States.
18 March 2024
