Equality vs. inequalities: Equality as ‘duty of the Republic’, its grounds on fundamental rights and the inconsistent outcome of the Italian legal system

Abstract

The principle of equality, as widely accepted, contains both the profile of formal equality - i.e. the prohibition of unjustified discrimination - and the substantial one, essentially coinciding with the realization of the conditions of emancipation of disadvantaged subjects. In this second perspective, the principle of equality has been emphasized more for its political importance than for the construction of the tasks of the State and the regime of the activity of private subjects.

With the affirmation of the neo-liberal ideology, the globalization of the market and technology and in the face of the fiscal crisis of the State, the political impulses that sustained the demand for equality as a claim on the State has suffered a radical eclipse.

This is confirmed by the emergence of reflection on individual inequalities. The latter identify the person since his economic relations or of his specific social roles, breaking the unity of person itself. Substantial equality, therefore, ceases to be a general claim of the person, central to the legal system, to make way for positive actions with respect to some specific roles that the person plays in social and economic relations.

The legal debate has punctually followed this new direction; those who have dedicated themselves to the theme of substantial equality, have done so by posing the theme as a political question.

On the other hand, it seems necessary to pose the problem of the importance of the principle of substantive equality as a pure legal norm.

Methodologically, the aim is to indicate which elements of change in the legal system are important and to indicate their role in the problem of equality.

The aim of the essay is to indicate the properly juridical importance of equality, placing it in the dynamics of fundamental rights in their relationship with the Republic.

In this perspective, if a portion of sovereignty is permanently retained in fundamental rights, equality is the measure of the task - of all public and private bodies - of making available the services necessary for the enforcement of fundamental rights.

This has clear consequences on the legal regime of the activity of private individuals, on the organization and mightiness of public powers, and a reaffirmation of the central role of fundamental rights in the Constitution and as a holding point with respect to the impoverishment of guarantees - of rights and equality - that the transformation of the system has brought with it.