The right to equality and non-discrimination is ubiquitous in human rights instruments in jurisdictions throughout the world. Yet the meaning of equality and non-discrimination are contested. Is equality formal or substantive, and if the latter, what does substantive equality entail? Are there alternative, non-egalitarian, rationales that justify discrimination law? Which groups should be protected from discrimination and how do we decide? How do we capture conceptualisations of equality in legal terms and when should equality give way to other priorities, such as conflicting freedoms or cost?
The aim of this course is examine these and other key issues through the prism of comparative law. Given the growing exchange of ideas across different jurisdictions, the comparative technique is a valuable analytic tool to illuminate this field. At the same time, the course pays attention to the importance of social, legal and historical context to the development of legal concepts and their impact. The first half of the course approaches the subject thematically, while the second half of the course addresses individual grounds, ending with a consideration of remedial structures. Theory is integrated throughout the course, and the relationship between grounds of discrimination and other human rights is explored. The course will be predominantly based on materials from the US, Canada, South Africa, India, the UK, EU, and ECHR, although some materials from other Commonwealth countries or individual European countries will be included. International human rights instruments are also examined. The Comparative Equality Law course does not require previous knowledge of equality or discrimination law.
The examination consists of eight questions. Attempt three (3) questions. You will be expected to make comparisons between the jurisdictions we have studied where appropriate. Use concrete examples whenever possible, drawn from these different jurisdictions where appropriate. Equal time should be allocated to each question you attempt. The total length of the examination is 3 hours. Organization and clarity are very important. A shorter answer that is well organized and evidences a clear understanding of basic concepts and their interrelationships is better than a longer answer with disconnected fragments of information. Answers should be directed expressly to the question presented. Answers will be graded upon the reasons given and the underlying analysis, as well as the coherence of the conclusions drawn. If more than one reason is pertinent to an answer, state every reason. Identify and respond to potential objections to your arguments.
Materials in the examination: None.
The course is taught by a series of 14 seminars, in MT and HT. There will be a tutorial at the end of each term and two further tutorials in TT. A series of guest seminars will be arranged throughout the year, but particularly in TT. The course is taught by Professor Sandra Fredman, Dr Tarunabh Khaitan, and Dr Barbara Havelkova.
You should regard these seminars as compulsory. You will not be able to do yourself justice in the examination if you do not attend, and if you miss one through illness, for example, you should be sure to ask one of the students who was present to help you by allowing you to see his or her notes of the seminar. You should aim to at least read the Essential Readings set for each week. You may not be able to follow the seminar discussion if you have not read this material. This material is extensive, and you should allocate sufficient time to read it carefully. The set questions are there to guide you through the main themes and issues. Give them some thought before the seminar. The seminars are carefully structured to address these issues. When at the seminar, you should be prepared to participate in the discussion, rather than remaining passive. You should be using the seminar to test ideas about the reading you have done for that week. Further Readings offer an in-depth study of a topic and may be covered during the vacation.
There will be four tutorials spread over the three terms – one at the end of each of Michaelmas and Hilary Terms, and two further tutorials in Trinity Term. There will be further discussion about these tutorials later, but you should be aware that these tutorials are an opportunity for you to write about some of the topics that we will be considering in the seminars, and discuss your writing intensively with your tutor. They will be excellent preparation for the examination in the subject, because we shall be using previous examination questions as the essay titles for each tutorial. Your work will also be marked and returned to you, with comments. You should follow the instructions you will be given later about the timetable for these tutorials and when you will need to submit the written work by. You must follow this timetable precisely; otherwise the essay you submit cannot be marked. You must also attend tutorials in time, and fully prepared.
The schedule for the course is as follows:
Introduction to Discrimination Law and Comparative Methodology
Here are some guidelines for finding cases from some of the foreign jurisdictions referred to in this course:
Canada: Go to www.canlii.org and search for cases by typing one or both of the parties’ names into the ‘case name’ field. Clicking on the ‘Canada (federal)’ link on the left of the page brings up an option to search for cases in the Supreme Court of Canada only.
South Africa: Go to www.saflii.org and click on the ‘South Africa’ link on the left. If you know the court in which the case was heard, it is best to click on that court from the list that appears. You can then search for cases by party names within that particular court (mostly, we refer to decisions of the Constitutional Court).
India: Go to www.indiankanoon.org and click on ‘Advanced search’. Type one of the parties’ names into the ‘Document or Title or Citation’ field. Alternatively, instead of clicking ‘Advanced search’, click ‘Browse judgments’, allowing you to find cases by court and then by year. Alternatively, use the difficult-to-navigate but more comprehensive database at www.manupatra.com.
United States: Go to www.google.com and select the ‘Scholar’ option from the top-most tab (usually a sub-item under ‘more’). Directly under the Google Scholar logo, you have an option to select ‘Legal opinions and journals’ from a drop-down list. Do that, and type in the names of the parties into the search field.
European Union: For judgments of the European Court of Human Rights, go to http://www.echr.coe.int/echr. From the menu on the left, select ‘Case law’, then ‘Decisions and judgments’, and then ‘HUDOC database’. Click on the blue HUDOC logo. You can then search for cases by party names or case numbers, amongst other fields.
For judgments of the European Court of Justice (after 1997), go to http://curia.europa.eu/ and search for the case using party names or case numbers. For judgments before 1997, go to http://eur-lex.europa.eu and select ‘Case law’ from the menu on the left. Scrolling to the bottom of the new page takes you to an option to search for cases by year and case number.
Some material, particularly material which is more difficult to access, will be uploaded to the Comparative Equality Law section on WebLearn throughout the course.
MT Week 1
Introduction to Discrimination Law and Comparative Methodology
Canadian Charter of Human Rights and Freedoms, s 15
South African Constitution, ss 9 and 36
UK Equality Act 2010, ss 1, 4-20, 26, 27, 149, 158
ECHR, art 14
Protocol No 12 to the ECHR
Treaty on the Functioning of the European Union, art 157 (previously art 141 TEC)
Treaty on the Functioning of the European Union, art 19 (previously Art 13 TEC)
EU Directive 2000/78/ EC of November 2000 establishing a general framework for equal treatment in employment and occupation (Framework Directive)
EU Directive 2006/54 of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) (Recast Sex Directive)