Author(s): Elena Anghel / Language(s): English
Issue: 2/2022
In this study I aim to analyze the constitutional principle of equality of rights, starting from the concept. Equality is an objective law principle, is also a subjective public law right and, more than that, as qualified in the doctrineI, is a ”fundamental right with the value of a general principle for the field of fundamental rights”. Equality ”is rather considered as a principle right than as a law principle”, because it accompanies and guarantees the use of the other rights. On the other side, equality has also been interpreted as a distinct set of rights, composed of different specific realities. In its general form, equality resides in each citizen’s right of not being subjected to discrimination and of being treated equally, both by public authorities and by the other citizens. This is about an “equality in rights”, opposed to the concept of “actual equality” because the lawgiver provides an equal juridical framework for all citizens, ascertaining a formal equality, but he cannot guarantee equal results. The jurisprudence of the Constitutional Court underlined the other perspective: the material equality, actual equality or equality by law, which refers to all concrete cases, considering the existent differentiations and aiming for a concrete equality of the results. As we`ll notice, the Constitutional Court analyzed equality also as a possibility of admitting a right to difference in case of different legal situations.In this study I aim to analyze the constitutional principle of equality of rights, starting from the concept. Equality is an objective law principle, is also a subjective public law right and, more than that, as qualified in the doctrineI, is a ”fundamental right with the value of a general principle for the field of fundamental rights”. Equality ”is rather considered as a principle right than as a law principle”, because it accompanies and guarantees the use of the other rights. On the other side, equality has also been interpreted as a distinct set of rights, composed of different specific realities. In its general form, equality resides in each citizen’s right of not being subjected to discrimination and of being treated equally, both by public authorities and by the other citizens. This is about an “equality in rights”, opposed to the concept of “actual equality” because the lawgiver provides an equal juridical framework for all citizens, ascertaining a formal equality, but he cannot guarantee equal results. The jurisprudence of the Constitutional Court underlined the other perspective: the material equality, actual equality or equality by law, which refers to all concrete cases, considering the existent differentiations and aiming for a concrete equality of the results. As we`ll notice, the Constitutional Court analyzed equality also as a possibility of admitting a right to difference in case of different legal situations.In this study I aim to analyze the constitutional principle of equality of rights, starting from the concept. Equality is an objective law principle, is also a subjective public law right and, more than that, as qualified in the doctrineI, is a ”fundamental right with the value of a general principle for the field of fundamental rights”. Equality ”is rather considered as a principle right than as a law principle”, because it accompanies and guarantees the use of the other rights. On the other side, equality has also been interpreted as a distinct set of rights, composed of different specific realities. In its general form, equality resides in each citizen’s right of not being subjected to discrimination and of being treated equally, both by public authorities and by the other citizens. This is about an “equality in rights”, opposed to the concept of “actual equality” because the lawgiver provides an equal juridical framework for all citizens, ascertaining a formal equality, but he cannot guarantee equal results. The jurisprudence of the Constitutional Court underlined the other perspective: the material equality, actual equality or equality by law, which refers to all concrete cases, considering the existent differentiations and aiming for a concrete equality of the results. As we`ll notice, the Constitutional Court analyzed equality also as a possibility of admitting a right to difference in case of different legal situations.
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