Author: Lawrence B. Goldhirsch

Publisher: Martinus Nijhoff Publishers

Published: 1988-11-02

Total Pages: 444

ISBN-13: 9789024736195

The book gives a comprehensive overview of the American & German constitutional regimes of affirmative action for women. It describes international & European Community rules which encourage & limit affirmative action taken by States. Comparison of the legal orders reveals a paradox. Affirmative action for women in America has existed longer & is more widespread & more institutionalized, although the spirit of the American Constitution conflicts with such policies more than the German Constitution. The American Constitution contains no clause explicitly guaranteeing gender equality. It establishes a principle of containment, that the government is prohibited from certain action, & does not acknowledge positive governmental duties. Individual freedom is of primary importance, & the socially dependent nature of the individual is barely recognized. In contrast, the German Constitution contains a gender-specific equality clause, Article 3(2) (passed in 1949 & amended in 1994), which is interpreted by some to allow quotas as a form of preferential treatment. German constitutional law also includes the principle that the state has affirmative duties, the principle of the social state ( Sozialstaat ), & the merit principle for hiring & promotion within the civil service. The discrepancy between policy & constitutional principle suggests that the formulation of policy is driven less by constitutional principles than by exterior elements such as the political & social situation, which apparently have led the United States to implement affirmative action despite a relatively weak constitutional basis & Germany to refrain from implementing affirmative action despite relatively strong constitutional support. The book also inquires into the utility of comparative law, its scope & its limits. It concludes that one should not overestimate the utility of comparative law as a tool of social engineering that prepares the adaptation of foreign policies to solve the apparently similar problems of different countries. The strength of comparative law lies rather in its critical potential. Thus, legal comparison mirrors the limits of law as a vehicle of social reform limits particularly obvious in the context of overcoming discrimination against women.