| Project/Area Number |
11620029
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| Research Category |
Grant-in-Aid for Scientific Research (C)
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| Allocation Type | Single-year Grants |
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| Section | 一般 |
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| Research Field |
Public law
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| Research Institution | Waseda University |
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Principal Investigator |
NISHIHARA Hiroshi Waseda University, School of Social Sciences, Professor, 社会科学部, 教授 (10218183)
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| Project Period (FY) |
1999 – 2000
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| Project Status |
Completed (Fiscal Year 2001)
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| Budget Amount *help |
¥2,500,000 (Direct Cost: ¥2,500,000)
Fiscal Year 2000: ¥700,000 (Direct Cost: ¥700,000)
Fiscal Year 1999: ¥1,800,000 (Direct Cost: ¥1,800,000)
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| Keywords | equality / discrimination / sexual equality / proportionality / proportionality test / 比例性 / 比例性審査 / 比例原則 |
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| Research Abstract |
This study has aimed at the observation of the process that the justice-oriented model of sexual equality in the German constitutional law has been substituted through the right-oriented model adopted originally by the European Court of Justice. It has tried to establish in this way an appropriate and advanced theory of equality rights.
Is has been observed that adoption of the right-oriented model of equality leads to application of proportionality test on the ground of "the thesis of irrelevancy". Such a method of understanding equality supplies superior bases of equality test in the context of judicial review. It is especially the case if the constitutionality of an affirmative action plan is at stake.
This right-oriented model and its proportionality test have, however, its outer boundaries. This test is not appropriate in the area of indirect discrimination. Here, courts have to identify whether the distinction according to some neutral criterion should be considered to be fair. To answer such a question, the proportionality test can do nothing. Rather, courts should apply in such a context the comparability test, grounded on the justice-oriented model of equality. The European Court of Justice has to be careful about the scope of its proportionality test.
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