2. Historical origins of affirmative actions


All the Western countries have experienced, although with different timing, the recognition of women's rights as part of the implementation of a general principle of equality, and all of them have gradually moved from a conception of formal equality to one of substantive equality. This means that while law initially strove to eliminate all rules that treated men and women differently (e.g. differences in pay for the same job), lawyers later developed the idea that in order to provide real equality between the sexes there was a need to devise different legal standards.

The former position posed major difficulties from a political and social point of view, since it implied the removal of deeply rooted social practices which also had significant economic consequences. However, it did not raise severe legal problems: once equality between men and women had been established, it followed automatically that all rules discriminating between them without special justification (e.g. pregnancy) were unlawful and therefore to be eliminated. The shift to a substantive idea of equality was much more problematic from a legal point of view: it required a step to be taken beyond formal equality, and recognition of the existing imbalance in order to devise legal solutions that would redress it. Law thus had to analyze and estimate such non-legal factors as social practice, economic conditions, biological diversity, and many more besides, in order to provide legal solutions able to take all of these factors into account and be fair and balanced (1). Not only was this technically more difficult, it was also much more controversial, since there may be widely diverging evaluations of the existing situations and therefore of the remedies needed. Nevertheless, no matter how difficult the implementation of substantive equality may be, it is nowadays widely recognized that formal equality is not sufficient to attain fairness. There is nothing new in this conclusion, and it is definitely not restricted to the issue of sex equality (2). Labour law, for example, originally developed out of acceptance of the fact that the basic principles of private law of freedom of contract and equality of the contracting parties were ineffective in achieving a real balance between the parties: recognition that the bargaining power of employees was much weaker led to the creation of new and more effective means of contracting, e.g. through the intervention of trade unions. The application of the substantive equality principle to men-women legal relationships has nevertheless posed special problems, since it affects not only a section or a minority of the population, but roughly half of it, and therefore cuts through all social categories. The breadth of the issue has forced legal efforts to focus mainly on specific problems (e.g. discrimination in recruitment, in pay, and so on), although in parallel to the creation of special rules there has been an increasing endeavour to develop a better theoretical framework within which to analyze the content of the principle of sex equality.

2.1. The American Experience

Affirmative action made first appeared on the American scene in the 1960s and 1970s, and initially it was used only in the field of race discrimination (3).

To outline a story that would need, because of its complexity and importance, much deeper analysis, the turning point was the desegregation policy pursued from the 1950s onwards by both the federal government and the federal courts, which finally recognized that, in spite of the letter of the constitution, the black population was severely discriminated against in numerous fields, like education, housing and job recruitment (4). This change of legal and political attitude engendered a widespread review of existing legislation in the light of the principle of equality, and led to the elimination of doctrines such as the "separate but equal" principle that discriminated among citizens on no other ground than race. Involved at this stage, therefore, was the application of the equality principle in its formal sense and, as already pointed out, the most controversial and sensitive aspects were not legal, but mainly political, social and economic (5).

As in other forms of centuries-long segregation which have slowly become part of the lifestyles and culture of a people, restoration of formal equality was not enough to ensure a just and fair share in social life for previously discriminated-against groups. Although a black could not be officially excluded because of the colour of his/her skin, there were few, if any, blacks who managed to build successful careers, or to gain admission to prestigious universities. The long history of segregation had created social conditions that hindered integration even when legal obstacles were removed. This awareness gave rise to the idea that something more was required: new solutions that would positively enhance the chances of minorities achieving equal results (6). Affirmative actions started in the 1960s, when the federal government introduced plans designed to increase the participation by minorities in traditionally segregated sectors, like the construction industry (s. Philadelphia Plan 1967 (7)). The mechanism spread to state and local agencies as well, and to a variety of new fields (job recruitment, promotion, training etc.). Nevertheless, the idea of affirmative action has been controversial since its first appearance on the legal scene, and there has always been controversy over its constitutionality and its capacity to generate any significant social improvement(8). Today, after more than two decades, the debate is as fierce as ever, and there are signs that a revirement may eventually lead to the severe limitation, if not to the elimination, of the admissibility of affirmative actions (9). It is extremely hard to separate the purely political aspects of this struggle from the legal standards, because the two appear to be closely intertwined in every decision. If there is a lesson to be drawn from the American experience, with all its complexity, it is that even when discrimination is openly acknowledged, it is extremely hard to find consensus on the course of action to be taken, and even more on the standards and principles that should guide this action.

2.2 The European Scene

The European scene displays a pattern that is at the same time less diverse and more complex: it is less diverse because historically none of the European states has experienced such difficult race problems as the United States, since their populations are generally very homogeneous (although it must not be forgotten that many states do have ethnic differentiation, an example being the Flemish and French populations in Belgium). On the other hand, Europe is characterized by a very complex legal framework, since every national legislation is linked to the emerging and growing Community system.

Originally the incidence of EC law on national law in the field of sex equality was rather limited, since its common core related to the working of the internal market, and only a few scattered provisions were devoted to this subject (e.g. art. 119 EEC). A much wider area was covered by the principle of equality concerning nationality, since this was directly linked to the working of the European market: banning any discrimination based on nationality was the best way to ensure that people, goods and services could move freely throughout the whole Community's territory. Indicative of this choice is the fact that the ban on discrimination based on nationality (art. 6) is enshrined in the first part of the Treaty of Rome setting out its the fundamental principles, and that the European Court of Justice (henceforth ECJ) has recognized that this rule has direct effect, i.e. it assigns to all Community citizens legal rights that must be respected and applied by all national organs. Although the aspects of the equality principle linked to the requirements of nationality were the most important and developed, there was a natural tendency to broaden the area of application of the principle: "According to the constant case-law of the Court, the general principle of equality, of which the prohibition of discrimination based on nationality is but one particular aspect, is one of the most fundamental principles of EC law. This principles implies that equal situations must not be treated differently, unless the difference is not objectively justified (...)" (10). The general trend in Community law to expand its compass to embrace not only to economic aspects, but the social conditions that were related to them as well, has led to the extension of the principle of equality to a variety of sectors, both through the use of legislative means (especially regulations and directives) and through the growing case-law of the ECJ.


(1) S. B.R. Taylor, Affirmative Action at Work: Law, Politics, and Etics, (Pittsburgh, Pa., 1991); C. Chisholm, Affirmative Action: A Selective Bibliography, (Monticello, Ill., 1983).
(2) S. P. Stein, Shand, Legal Values of Western Society, (Edimburgh, 1978).
(3) S. D.A. Farber, "The Outmoded Debate over Affirmative Action", (1994) 82 Cal. L. Rev. 893.
(4) M. Rosenfeld, Affirmative Action and Justice - A Philosophical and Constitutional Enquiry, (New Haven, 1991); N. Glazer, Affirmative Discrimination: Ethnic Inequality and Public Policy, (New York, 1975).
(5) For a brief overview s. U. Mattei, Common law, in Trattato di diritto comparato, (Torino, 1992).
(6) M. Cohen, T. Nagel, T. Scanlon, Equality and Preferential Treatment, (Princeton, Pa., 1977); A. Goldman, Justice and Reverse Discrimination, (Princeton, Pa., 1979); R. Wasserstrom, "Racism, Sexism and Preferential Treatment: An Approach to the Topics", (1977) 24 UCLA L. Rev. 581 ff.
(7) R.P. Schuck, "The Philadelphia Plan: A Study in the Dynamics of Executive Powers", (1972) 39 U. Chi. L. Rev., p. 723 ff.
(8) Compare the positions taken up by M.B. Abram, "Affirmative Action: Fair Shakers and Social Engineers", and R. Kennedy, "Persuasion and Distrust: A Comment on the Affirmative Action Debate", both in (1986) 99 Harv. L. Rev., pp. 1312-1326, 1327-1346.
(9) S. the contribution to the symposium "Race and Remedy in a Multicultural Society", published in Stanford L. Rev. 47 (1995).
(10) Hochstrass v. ECJ, C-147/79 [1980] ECR 3005; s. also Ueberschar, C-810/79 [1980] ECR 2747.