LIMITS OF THE CLASSIC METHOD: POSITIVE ACTION IN THE EUROPEAN UNION
AFTER THE NEW EQUALITY DIRECTIVES
Against this development, this Article argues for a reconceptualization of positive action. Rather than exceptional aberration from the paradigm of individual equality, affirmative action in both soft and hard mode is an identity-sensitive mechanism for the reallocation of resources, to be placed along a continuum of redistributive techniques. Identity-based redistribution measures are already known to both EC and state legal actors, in ways that a raditional individual-rights discourse both fails to capture and succeeds at hiding. At the present stage of integration, states' most significant redistributive policies are mostly exempt from judicial review. States should therefore be able to experiment with affirmative action in favor of minorities within national constitutional constraints and in light of local equilibria, but with no supranational review. The Open Method of Coordination -a "soft" instrument of EU governance recently applied to the fight against social exclusion may provide states with proper EU guidance in matters of identity-based policies.
Est. download time @ 28.8K: 16 seconds
Presentation and Publication Information:
44 Harvard International Law Journal 331 (Summer 2003)