Post-communist Central and Eastern European ('CEE') legislators and judges have been resistant to equality and antidiscrimination law. This Article argues that these negative attitudes can be explained in part by the specific trajectory that EAL has taken in CEE during and after state socialism, which has differed from Western Europe. In the UK/EU, the formal guarantees of equal treatment and prohibitions of discrimination of the 1960s and 1970s were complemented by a more substantive understanding of equality in the 1990s and 2000s. This development was reversed in CEE—substantive equality, of a certain kind, preceded rather than followed formal equality and antidiscrimination guarantees.The State Socialist concern with equality was real, and yet the project was incomplete in several significant ways. It saw only socio-economic, but not socio-cultural inequalities (relating to dignity, identity or diversity). It was transformative with regards to class, but not other discrimination grounds, especially not gender. While equality was a constitutionally enshrined principle, there was an absence of any corresponding enforceable antidiscrimination right. Finally, the emphasis on the “natural” differences between the sexes meant that sex/gender discrimination was not recognized as conflicting with women's constitutional equality guarantees.
The Introduction draws together the chapters’ findings in relation to the two research questions which have animated the project. The first question asked how anti-discrimination law fares in civil law jurisdictions of Europe and how it fits into them. The Introduction notes that while anti-discrimination law is still seen as a foreign transplant and a legal irritant in many places, it does not uniformly fare poorly. Its success varies and appears to depend not only on the country, but also the area of law, the actors involved, a particular concept or ground of discrimination, and has often evolved over time. The second question asked what factors influence anti-discrimination law’s fit or lack of it. ‘Legal’ as well as ‘extra-legal’ aspects seem to favour or hinder anti-discrimination law, but as they are often not always clearly separable and distinguishable, we locate four types of factors on a spectrum. On the legal side, pre-existing legislation and case law have played a role as have institutional choices. Constitutional and legal foundations and narratives, such as the myth of ‘universalism’ in France, have also influenced the success of anti-discrimination law. Finally, the wider political and social context is discussed, noting that the individual, liberty-oriented politics of common law countries, with their greater reflection of issues of cultural recognition, might be more easily compatible with anti-discrimination law, while the more communitarian, collective approach of continental European countries, with their emphasis on dignity and social-welfare solutions to social problems, might be less so.
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