Positive Action and the Limits of Existing Law
| Author | Colm O'Cinneide |
| Published date | 01 September 2006 |
| Date | 01 September 2006 |
| DOI | http://doi.org/10.1177/1023263X0601300307 |
| Subject Matter | Article |
13 MJ 3 (2006) 351
POSITIVE ACTION AND THE
LIMITS OF EXISTING LAW
C O’C*
ABSTRACT
Conventional anti-discrimination law has o en little impact upon structural and comple x
forms of discrimination . As a result, states throughout the EU are attempting to use various
types of positive action strategies to a ddress many of the inequalities ex perienced by
disadvantaged g roups. However, at both EU and nati onal levels , the developme nt of these
positive action strategies has bee n stunted by the existence of two t ypes of legal obstacles . Firstly,
a lingering attachment to ‘ formal’ equality conce pts has resulted in a confusing, incoherent
and complex case-law that h as a ‘chilling e ect’ on the use of positive action. Secondly, there
are few e ective and substanti al legal requirements imposed upon public and private bodies
to implement ‘mainstreaming’ and othe r positive action strategies. ese de ciencies in both
EC and national equality law mean that the u se of positive action strategies has in prac tice
o en been half-h earted and lacking in real impact. Without signi cant shi s in how EC and
national legal frameworks conceptu alise and regulate positive action meas ures, the much
discussed shi towards a ‘substantive equality’ approach that many commentators have
advocated will remain a vague as piration rather than a concrete reality.
Keywords: Anti-d iscrimination law, Positive action, Substantive equality, Mainst ream-
ing, Posit ive duties, A rmative action
§1. I N TROD UC TION
ese st rategies are seen as essential for deliver ing real change and compensating for the
limits of exist ing EC and national a nti-discrim ination law. However, their implementation
frequently su ers from a lack of a rm basis in law. It is time for some fresh thinking as
to how law can be used to address problems of st ructural inequal ity.
* Lecturer i n Law, University College London.
To continue reading
Request your trial