В статье рассматривается фундаментальная теоретико-правовая проблема взаимосвязи формального и материального (сущностного) равенства в контексте их практического применения. Актуальность исследования обусловлена тем, что в современной правоохранительной практике, а также в доктрине социального государства традиционный концепт формального равенства «слепого к различиям» все более противоречит требованию обеспечения фактической справедливости. Материалами исследования служат труды российских и иностранных правоведов, а также подходы международных судебных инстанций. В ходе анализа выявлены и систематизированы ключевые стратегии реализации принципа равенства: от строгого позитивистского универсализма до моделей позитивного действия и формирования равенства через взаимное социальное признание. Особое внимание уделено границам государственного вмешательства в частноправовые отношения с целью выравнивания фактического положения субъектов. Сделан вывод о необходимости поиска баланса и конвергенции рассматриваемых моделей для преодоления системной дискриминации без разрушения основополагающих основ правового равенства.
Ключевые слова：принцип формального равенства; материальное равенство; сущностное равенство; недопустимость дискриминации; социальное государство; признание права; философия права; позитивное действие; правоохранительная деятельность
Formal Equality and Substantive Equality as Competing Models for Operationalizing the Principle of Equality in International Economic Law
Abstract. This article examines the fundamental theoretical and legal problem of the relationship between formal and material (substantive) equality in the context of their practical application. The relevance of the study is dictated by the fact that in modern law enforcement practice, as well as in the doctrine of the welfare state, the traditional concept of «difference-blind» formal equality increasingly conflicts with the requirement of ensuring factual justice. The materials for the study are the works of domestic and foreign legal scholars, as well as the approaches of international judicial instances. The analysis identifies and systematizes the key strategies for operationalizing the principle of equality: from strict positivist universalism to models of affirmative action and the construction of equality through mutual social recognition. Special attention is paid to the limits of state intervention in private legal relations in order to equalize the actual situation of subjects. It is concluded that there is a need to find a balance and convergence of the considered models to overcome systemic discrimination without destroying the basic foundations of legal equality.
Keywords: principle of formal equality, substantive equality, material equality, non-discrimination, welfare state, recognition of law, philosophy of law, affirmative action, law enforcement.
Introduction The category of legal equality traditionally acts as a fundamental axiom and a load-bearing structure of any modern democratic legal system. However, at the stage of practical implementation of this principle, legal doctrine and law enforcement practice inevitably face a deep conceptual paradox, which is especially acute in the context of increasing social stratification. The essence of this problem lies in the objective contradiction between the two dominant approaches: the classical liberal ideologeme of formal equality (equality of opportunity) and the modern egalitarian demand for ensuring material, or substantive, equality (equality of outcome).
Within the framework of the first model, the law is constructed as a universal, abstract, and emphatically impartial regulator. Formal equality implies so-called «legal blindness» to the individual differences of subjects – their social status, economic situation, or physical capabilities. In contrast, the material model proceeds from the fact that the application of the same scale to initially unequal subjects only legitimizes and exacerbates actual injustice. The egalitarian approach requires the law to be sensitive to the context and vulnerability of individual social groups, insisting on the need to equalize not only starting positions, but also the final results of legal interaction. Thus, a complex theoretical and practical dilemma arises: how to ensure factual justice without destroying the universal nature of law and the basic principle of equal rights.
In modern realities, the stated problem acquires particular urgency in light of the consistent transformation of the concept of the welfare state itself. The guarantees of social protection declared by the state require the complication of mechanisms for ensuring human rights both at the domestic (constitutional) and international legal levels.
One of the most debatable aspects of the introduction of measures of substantive equality (in particular, the institution of quotas, preferences, or affirmative action) is the problem of so-called «reverse discrimination». Situations in which the provision of additional guarantees to vulnerable categories of citizens is perceived by the rest of society as an infringement of their own constitutional rights generate serious social and legal collisions.
In this regard, the practical significance of this study is seen, first of all, in the need for doctrinal support and improvement of judicial practice. Bodies of constitutional justice, as well as international judicial instances, today are in dire need of clear, scientifically sound criteria for resolving cases related to the protection of the rights of vulnerable categories of persons, where it is required to find a delicate balance between the formal letter of the law and material justice.
Based on the foregoing, the aim of this work is to identify the conceptual differences and points of intersection of the formal and material models of equality, as well as to determine the optimal mechanisms for their practical implementation (operationalization) in the modern legal field.
To achieve the set goal, the following research tasks were formulated:
- To reveal the deep content of the category of legal equality through the prism of the confrontation and complementarity of positivist and socio-cultural approaches.
- To analyze the formal model of equality as a trinity of equal measure, freedom, and justice, determining the boundaries of its functional effectiveness.
- To explore the material (substantive) model of equality in the context of the concept of social recognition and the need for legal protection of historically or situationally vulnerable groups.
- To identify the dogmatic and practical limits of the law enforcer’s permissible departure from formal equality in order to achieve factual social justice without the risk of destroying the legal system.
The genesis of the theoretical and legal understanding of the category of equality is inextricably linked with the evolution of philosophical thought, the starting point of which is traditionally considered to be the Aristotelian dichotomy of justice. The division of justice into corrective (justitia commutativa), which assumes the equivalence of retribution regardless of the properties of the subjects, and distributive (justitia distributiva), based on the proportional distribution of goods taking into account the merits and status of the person, laid the epistemological basis for all subsequent legal discussions. For a long time, this classical paradigm remained dominant; however, the complication of social ties and the formation of the human rights doctrine required a revision of established dogmas.
In modern domestic jurisprudence, there is a steady tendency towards a deep rethinking of the connection between equality and justice. As A.A. Timoshenko rightly notes, theoretical and legal views on justice in law are undergoing a significant transformation today, moving away from rigid universalist schemes towards a more flexible consideration of social reality [11]. A special place in this context is occupied by the libertarian-legal theory. In particular, V.V. Lapaeva justifies the legal principle of formal equality as an inseparable trinity of equal measure, freedom, and justice [7]. From this point of view, equality is not merely declared by the law, but acts as an essential feature of the law itself: where there is no equal measure of freedom, law transforms into arbitrariness.
The institutionalization of equality in positive law naturally led to the formation of a formal-dogmatic approach, which for a long time remained the mainstream of legal science. Within the framework of classical legism, legal equality is interpreted as a purely abstract category that ensures the universal operation of the norm. The positivist paradigm deliberately constructs «legal blindness» to the actual (economic, physical, social) inequality of subjects. The main postulate here is the principle: the law applies equally to everyone, establishing an equal measure of freedom, but not guaranteeing an equal outcome.
At the same time, in modern science, the framework of strict positivism is subjected to justified criticism. Considering positivist approaches to understanding formal equality, M.V. Antonov draws attention to the fact that reliance solely on the texts of laws without taking into account the constitutive role of social recognition inevitably impoverishes law enforcement practice and leads to formalism [4]. A similar vector of reasoning can be traced in the works of A.V. Polyakov, who, analyzing the communicative nature of law, emphasizes that the principle of formal equality cannot exist in a vacuum – it acquires its legitimacy and effectiveness only through the mechanism of mutual recognition of law by the subjects of social communication [9]. Thus, even within the framework of dogmatic analysis, there arises an understanding of the insufficiency of merely normative fixation of equality.
The answer to the limitations of the formal-dogmatic model was the development of socio-cultural and semiotic approaches, shifting the focus to the material (substantive) content of rights. In this coordinate system, equality is not predetermined by the norm, but is continuously constructed in the process of social interaction and judicial practice. The law begins to be viewed as a living system of signs and meanings, sensitively reacting to the vulnerability of specific groups.
A striking example of such a research vector is the work of A.K. Soboleva. Applying a semiotic approach to the analysis of court practice, the author convincingly demonstrates how equality is constructed when considering cases concerning the rights of marginalized strata (in particular, persons with mental disorders) [10]. In this case, the court acts not simply as a mechanical translator of the law, but as an active subject adapting the formal norm to a complex life situation, thereby realizing the principle of mutual recognition.
The international context gives a special impetus to the development of the concept of substantive equality. As T. Loenen examines in detail in her work on formal and material equality, modern international legal standards require states to move from a passive non-discriminatory approach to active actions [13]. The role of supranational law here lies in the formation of an imperative: to achieve genuine justice, the state is obliged to take into account actual inequality by applying the tools of reasonable accommodation and affirmative measures, which marks a qualitative leap from the formal consolidation to the real provision of rights.
The reliability and validity of the conclusions presented in this article are ensured by a representative source base, which has a complex character and covers both the doctrinal and empirical levels of legal reality. First of all, the theoretical foundation of the work is composed of fundamental works on the general theory of state and law, as well as specialized sectoral studies by domestic and foreign authors, revealing the evolution and essence of the principles of justice, equal rights, and non-discrimination.
The normative basis of the study is formed by an array of key international conventions on the protection of human rights establishing universal standards for the treatment of various categories of citizens. However, law enforcement and interpretative material is of paramount importance in the context of the stated problem. In particular, the practice of supranational judicial instances (forming the modern contours of protection against indirect discrimination), as well as the legal positions of the Constitutional Court of the Russian Federation, underwent detailed reflection. It is precisely the analysis of the acts of constitutional norm control in cases concerning the verification of sectoral legislation for the differentiation of legal regulation that allows us to trace how abstract philosophical and legal ideas are transformed into real mechanisms for resolving social conflicts.
Research methods. The complexity and multidimensionality of the considered problem necessitated the application of an integrative methodology combining classical and modern methods of cognition of state-legal phenomena. The architecture of the study is built on the application of the following complex of methods:
The formal legal method served as the basic tool when working with primary sources. The application of this approach made it possible to carry out a detailed analysis of the normative consolidation of the principle of equality, to identify the dogmatic features of the textual expression of the prohibition of discrimination in positive law, and to determine the limits of its literal interpretation.
Considering that the conceptualization of many aspects of material equality historically took place within the framework of Western jurisprudence, the comparative legal method played a crucial role in the study. Its use ensured the correct comparison of domestic doctrinal constructions with foreign approaches to understanding the doctrine of substantive equality. This made it possible to identify the general patterns of adaptation of legal systems to the problem of structural inequality.
To systematize the theoretical material, the method of legal modeling was employed. With its help, it was possible to reconstruct two conceptually competing models for the implementation of the principle under study: strict formal (liberal) and material (egalitarian). This method made it possible to abstract from specific legal cases and visually demonstrate the internal logic, tools, and limits of effectiveness of each of the models in their pure form.
Finally, the specifics of the subject required turning to the axiological approach. Since legal regulation is inextricably linked with social ideals, this approach made it possible to assess the impact of the values of the welfare state on modern law enforcement. The axiological perspective proved necessary for understanding the motives of judicial instances, which, when resolving so-called «hard cases,» are forced to seek a balance and often depart from strict formalism in the name of protecting human dignity and factual justice.
- The Model of Formal Equality (Strategy of Universalism). Using the previously stated method of legal modeling, it seems necessary to begin the analysis with the reconstruction of the classical, so-called «pure» model of formal equality. In the paradigm of Western European political and legal thought, this model, which we designate as the «strategy of universalism,» was historically formed as a radical and progressive response to estate and feudal inequality. From the axiological point of view initially laid in the foundation of this concept, the main value was recognized as the absolute abstraction of the law from the individual’s personality. The law in this coordinate system is constructed as a universal mathematical algorithm, having neither sight nor social empathy.
This strategy is based on several key law enforcement tactics, which, on the one hand, ensure the uninterrupted functioning of the legal system, and on the other, expose its internal contradictions in the conditions of the modern welfare state.
– the tactic of «legal blindness» (color-blind/difference-blind approach). The fundamental toolkit of the model under consideration is the so-called tactic of «legal blindness» (often referred to in Anglo-Saxon doctrine as the color-blind or difference-blind approach). Applying the formal legal method to the analysis of the constitutional texts of most democratic states, we invariably find the normative consolidation of exactly this approach: «all are equal before the law and the court.»
The essence of this tactic lies in the deliberate, institutionalized ignoring by the law enforcer of any socio-economic, gender, ethnic, racial, or physical characteristics of the subject. The legal subject here is a disembodied abstraction, «homo juridicus,» devoid of the historical baggage of vulnerability or privileges. The law applies absolutely equally to all participants in legal relations, just as the rules of a geometric theorem apply to any triangles, regardless of whether they are drawn with chalk on a board or carved in granite.
However, as the application of the axiological approach shows, the value of such abstract equality in modern conditions is subjected to serious revision. Ignoring actual stratification leads to the fact that formally equal norms begin to produce deeply unequal social consequences. Anatole France’s famous ironic maxim that the law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges and to beg in the streets, brilliantly illustrates the main flaw of the «legal blindness» tactic. When the law ignores structural social barriers (for example, the inaccessibility of quality education for certain strata of the population), formally equal competitive conditions for employment or university admission only cement and legitimize the initial factual injustice.
– the tactic of negative obligation. A logical continuation of the universalist approach is the tactic of negative obligation. Within the framework of comparative legal analysis, it is important to emphasize that classical liberal doctrine understands non-discrimination solely as the absence of active oppression by the state or other subjects.
In this model, the principle of equality imposes on the state the obligation non facere (not to do). In other words, non-discrimination is reduced to the prohibition of establishing direct, explicitly expressed restrictions on rights based on any protected grounds (gender, race, religion). The state acts as a passive «night watchman,» who only ensures that no one is openly denied access to basic rights, but at the same time, it is not obliged to take active (affirmative) actions in order to help the subject actually exercise these rights.
To visually demonstrate the structural features of this tactic and its differences from the egalitarian approach, let us turn to table 1, which synthesizes the results of applying the method of legal modeling.
Table 1. Normative-value dichotomy of state obligations in the context of the principle of equality
A detailed analysis of the criteria presented in the table allows us to state that the tactic of negative obligation underlying the formal model of equality has a high degree of legal certainty, but low social efficiency. Reducing the role of the state to a passive arbiter (left column) excludes the possibility of combating hidden (indirect) discrimination, which today represents the main threat to vulnerable social groups. Thus, the formal-dogmatic approach exhausts its potential at the moment when the law enforcer faces the need not just to declare equality, but also to ensure its actual tangibility.
Despite justified criticism from the standpoint of the values of the welfare state, it would be a gross methodological error to recognize the model of formal equality as archaic or completely untenable. Using functional analysis, it is necessary to clearly delineate the sphere in which the strategy of universalism and the tactic of «legal blindness» retain their absolute effectiveness and act as the only possible instrument of legal regulation.
Such a sphere is traditionally the branches of private law (first of all, civil, corporate, commercial law). The fundamental principles of civil turnover –autonomy of will, freedom of contract, inviolability of property – critically depend on the predictability and stability of legal regulation.
In the sphere of contractual relations, the presumption of formal equality of participants acts as a necessary legal fiction. Counterparties (for example, a transnational corporation and a small business entity) may be disastrously unequal in their economic capabilities, however, civil law is obliged to apply to them a single standard of liability for failure to fulfill obligations (with the exception of specific regimes for protecting the weaker party, such as consumer protection legislation, which, in essence, are local injections of material equality into the fabric of private law).
If we try to extrapolate the egalitarian (material) model to purely commercial, property relations and begin to exempt the debtor from liability solely on the grounds that he is objectively poorer than the creditor, this will lead to the destruction of the stability of civil turnover, a crisis of confidence, and the collapse of the market economy. Formal equality in private law ensures legal certainty, which is an independent and extremely significant value.
To visualize the limits of the applicability of the formal model, let us turn to the effectiveness matrix (table 2), built on the basis of formal legal and axiological methods.
Table 2. Matrix of the effectiveness of the formal equality model by branches of law
The matrix clearly demonstrates the phenomenon of legal ambivalence: the effectiveness of the universalism strategy is inversely proportional to the level of social significance of the regulated relations. In areas where economic dynamics and individual freedom are critically important (private law), «legal blindness» works as a protective mechanism. However, as the focus of legal regulation shifts to the plane of ensuring social guarantees (labor law, social security law), the formal model demonstrates its insolvency, requiring the urgent integration of material equality mechanisms.
Summing up the intermediate result of the analysis of the formal model, it should be summarized: the strategy of universalism is not erroneous per se. It acts as a necessary but insufficient condition for the implementation of the principle of legal equality in modern society. Retaining its significance as the load-bearing framework of the legal system, protecting it from voluntarism and subjectivism, the formal model urgently requires supplementation with compensatory mechanisms. Without such mechanisms, a dogmatic insistence on the «negative obligation» of the state leads to the emasculation of the very idea of justice, which makes the appeal to a competing paradigm inevitable – the model of material (substantive) equality.
- The model of material (substantive) equality (strategy of contextualization). The logic of the development of legal thought and the objective needs of law enforcement practice inexorably testify to the fact that the strategy of universalism, which brilliantly copes with ensuring formal predictability, turns out to be conceptually helpless in the face of deeply rooted structural inequality. As a consequence, the axiological demand of modern society for justice leads to the formation and institutionalization of a competing paradigm – the model of material (or substantive) equality. Within the framework of our study, we conceptualize this paradigm as the «strategy of contextualization.»
In contrast to the «legal blindness» of the formal approach, the strategy of contextualization is based on the teleological (purposive) interpretation of law and requires «sightedness» from the law enforcer. The essence of this model is extremely accurately described through the prism of the values of the welfare state: legal regulation must not simply declare the absence of discrimination, but also actively intervene in private and public legal relations in order to equalize the actual situation of deliberately unequal subjects. As A.S. Tkach rightly notes, a welfare state cannot limit itself to passive observation of how formally equal norms produce social marginalization; it is obliged to construct compensation mechanisms [12].
Applying the method of legal modeling, we identify in the structure of the substantive model three key tactics that ensure its operationalization in practice.
– the tactic of affirmative action. The central instrument of the strategy of contextualization is the tactic of affirmative action, entrenched in foreign doctrine under the term affirmative action, and frequently referred to in domestic discourse as «positive (reverse) discrimination.» Comparative legal analysis shows that this mechanism represents a conscious, legalized departure from the principle of equal treatment for the sake of achieving a higher goal – factual equality.
The essence of affirmative action lies in the introduction of temporary or permanent quotas, benefits, and preferences for historically, economically, or physically vulnerable groups of the population (persons with disabilities, national minorities, women in certain professional fields, etc.). In this case, the state, realizing its social function, artificially creates unequal (privileged) conditions for those whose starting positions are objectively lowered.
Relying on the conclusions of T. Loenen, who investigated in detail the relationship between formal and substantive equality, it can be stated that affirmative measures do not violate the principle of non-discrimination, but, on the contrary, are the only way to save it in an asymmetric society [13]. If one group of persons has been subjected to systemic infringement for a long time or is objectively denied access to benefits (for example, persons with severe forms of disability in the labor market), the application of a «blind» general civil standard of competition to them will mean their guaranteed exclusion from social life. Accordingly, the quota of jobs for disabled people is not a violation of the rights of healthy candidates, but an equalization of the distorted social field.
– the tactic of adaptation (reasonable accommodation). If affirmative actions are generally of a group and macrosocial nature, then the tactic of adaptation (reasonable accommodation) represents the micro-level of the contextualization strategy. This tactic has been deeply implemented into domestic legal systems under the powerful influence of international standards, in particular the UN Convention on the Rights of Persons with Disabilities. As Yu.V. Nechipas and I.A. Poberezhnaya note, the reception of international principles of equality into constitutional law radically changes the vector of state coercion [8].
The tactic of reasonable accommodation shifts the focus from the subject itself to its surrounding environment. Substantive equality here is achieved not due to the fact that the subject must «reach out» to the universal norm, but due to the fact that the norm, procedure, or physical environment are transformed to the specific needs of a particular person. The refusal of such accommodation (if it does not impose a disproportionate burden on the obligated person) is recognized as an independent form of discrimination.
A brilliant analysis of this phenomenon through a semiotic approach is presented in the work of A.K. Soboleva on the example of the practice of considering cases on the rights of persons with mental disorders [10]. The author convincingly demonstrates that for this category of persons, the formal provision of the right to judicial protection is a fiction if the court does not adapt the procedure itself (the language of legal proceedings, terms, communication format) to the cognitive characteristics of the applicant. The construction of equality in such cases occurs through a change in the «sign system» of the judicial process: justice removes the «blindfold» to see a real person with their vulnerabilities and provide them with genuine, rather than illusory, access to justice. In this context, the constitutive role of social recognition, about which M.V. Antonov writes, acquires special significance: the right cannot be realized if the specific needs of the subject are not recognized by society and the state as legally significant [4].
For a clearer understanding of the differences between the mechanisms of substantive equality, let us systematize their specifics in table 3.
Table 3. Correlation of mechanisms of substantive equality (affirmative action and reasonable accommodation)
The presented comparative matrix clearly illustrates the multilevel nature of the contextualization strategy. If affirmative actions are aimed at macroeconomic redistribution of chances and have a pronounced interventionist character, then the tactic of reasonable accommodation is a «surgical» instrument for the individualization of law. Both mechanisms organically complement each other, forming a comprehensive system of protection against structural discrimination, where the macro-level provides the group’s access to institutions, and the micro-level guarantees the realization of the rights of a specific person within these institutions.
– the tactic of equalizing outcomes. The third, most radical, and philosophically complex element of the model under study is the tactic of equalizing outcomes. If formal equality guarantees everyone an identical starting line (from which some run far ahead, while others, due to objective reasons, cannot even move from the spot), then the material model shifts the focus to the comparability of the final, finishing position of the subjects.
From the standpoint of the axiological approach, which is deeply explored in the works of A.A. Timoshenko in relation to theoretical and legal views on justice [11], the tactic of equalizing outcomes requires the state not just to create equal conditions, but to guarantee a certain minimum level of social well-being for everyone. This means that legal mechanisms are constructed in such a way as to neutralize the catastrophic consequences of the free market and the natural inequality of talents or health.
For example, a progressive tax scale, the withdrawal of excess profits, and large-scale subsidy programs are classic tools of the tactic of equalizing outcomes. The state deliberately limits the property freedom of successful subjects (violating their formal equality with less successful ones) in order to ensure a decent standard of living for the outsiders of social processes.
At the same time, it cannot be denied that this very tactic enters into the most rigid dogmatic contradiction with the libertarian-legal understanding of law. As V.V. Lapaeva emphasizes, the legal principle of formal equality represents a trinity of equal measure, freedom, and justice [7]. Excessive enthusiasm for «equalizing outcomes» harbors a colossal risk of eroding the very essence of law: turning it from a measure of freedom into an instrument of total paternalistic distribution. If the outcome of an activity (regardless of the effort applied) is guaranteed to be equalized by the state, this inevitably leads to the degradation of personal responsibility and the suppression of economic and social initiative.
Thus, the analysis of the substantive equality model through the stated methodological approaches allows us to draw an unambiguous conclusion: the strategy of contextualization is vitally necessary for humanizing the legal system and realizing the goals of the welfare state. Its tactics (from affirmative action to individual accommodation) allow the law to take into account socio-cultural realities and protect vulnerable groups. However, material equality cannot and should not completely supplant formal equality. The substantive model harbors hidden threats of arbitrariness and «reverse discrimination,» which dictates an urgent need to find a complex balance between the two paradigms under study – a problem to which the next section of our work will be devoted.
3. Conflict and convergence of models (strategy of balancing). The dialectical development of legal matter inevitably leads to the fact that the two paradigms described above – the model of formal (universalist) and material (contextualized) equality – enter into a tough conceptual and practical collision. As was shown earlier using the method of legal modeling, the «legal blindness» of the first model preserves factual injustice, while the radical tactics of the second model (in particular, the equalization of outcomes and strict quotas) threaten to destroy the very fabric of legal certainty. In this regard, a third, synthetic paradigm is being formed in modern jurisprudence and judicial practice – the strategy of balancing, aimed at the convergence of conflicting approaches.
The most acute bifurcation point, at which the formal and material approaches come into irreconcilable conflict, is the problem of the so-called «reverse discrimination». Applying an axiological approach to assess the impact of welfare state values on law enforcement, we face a profound ethical and legal paradox: any active measures by the state to compensate for the historical or structural vulnerability of one group are inevitably carried out at the expense of infringing on the formal rights of another group – the conditional «majority».
From the point of view of the formal legal method, affirmative actions (for example, the reservation of state-funded places in universities for certain social or ethnic groups, gender quotas on boards of directors) represent a direct violation of the basic constitutional prohibition of discrimination. A representative of the «majority,» possessing higher objective indicators (scores, qualifications, experience), is denied access to a benefit solely on the grounds that he does not belong to the protected vulnerable group. In this situation, he justifiably appeals to the liberal ideologeme: why should he, as an individual who has not committed acts of oppression in the past, bear personal responsibility and pay with his life chances for historical injustice on a macrosocial scale?
As N.I. Alekseeva and L.V. Botantsova rightly point out when investigating the theoretical problems of legal equality, excessive enthusiasm for the concept of substantive equalization without proper dogmatic control turns the law into an instrument of political expediency, where justice for some is achieved through open injustice for others [3].
To resolve this conflict, a special dogmatic instrument – the test of proportionality – has been developed and implemented in the practice of supranational courts and bodies of constitutional norm control. This test allows legitimizing a departure from formal equality, but only in cases where it is strictly justified. To systematize the mechanism of operation of this test within the framework of the balancing strategy, let us turn to table 4.
Table 4. Structure of the proportionality test when introducing measures of substantive equality (overcoming «reverse discrimination»)
The analysis of the presented structure demonstrates that the proportionality test acts as a reliable filter protecting the legal system from sliding into uncontrolled paternalism. As the comparative legal analysis of Western and domestic doctrine shows, measures of material equality are recognized as lawful only when they have a subsidiary and, crucially, temporary character. Affirmative action must be abolished the moment the structural imbalance is eliminated and the group is able to compete under conditions of formal (universal) equality. Thus, the balancing strategy recognizes the supremacy of formal equality as the ultimate goal, allowing material inequality only as a temporary therapeutic tool.
However, a purely dogmatic mechanism of proportionality is not enough for a deep philosophical and legal resolution of the contradiction between the two models. Here, the socio-cultural approach and the concept of social recognition come to the fore, allowing the introduction of elements of material equality without destroying the formal legal framework.
A fundamental contribution to the development of this direction was made by representatives of the communicative theory of law. In particular, M.V. Antonov convincingly proves the constitutive role of social recognition in understanding formal equality [4]. If we consider law not as an order of a sovereign descending from above, but as a result of intersubjective communication, then formal equality cannot be reduced to the mechanical sameness of the texts of laws. The equality of subjects acquires legal meaning only when they mutually recognize each other as equal participants in social communication. As A.V. Polyakov notes, the recognition of law and the principle of formal equality are inextricably linked: the legal capacity of one person exists exactly to the extent to which it is legitimized and recognized by the obligated person and society as a whole [9].
Extrapolating this concept to our problematics, we obtain an elegant theoretical solution to the conflict of models. When the state introduces measures of reasonable accommodation (for example, obliges employers to create special conditions for persons with disabilities), from the standpoint of strict positivism, it violates the equality of entrepreneurs. However, from the standpoint of communicative theory, such accommodation acts not as an act of state coercion and «reverse discrimination,» but as an act of social recognition of the specific context of the existence of the other.
A society that has reached a certain level of axiological development recognizes that the blind application of a formal standard to a disabled person is not equality, but isolation. Consequently, the modification of the environment becomes a way to include the vulnerable subject in the space of formal equality. This resonates with the conclusions of A.K. Soboleva: the construction of equality when considering cases of marginalized groups requires the court not just to read the letter of the law, but to semiotically decode the life situation in order to ensure genuine, rather than fictitious, presence of the person in the legal field [10].
Moreover, it is precisely through mutual recognition that the threat of the destruction of law is removed, about which V.V. Lapaeva warns, interpreting the legal principle of formal equality as a trinity of equal measure, freedom, and justice [7]. When preferences to vulnerable groups are not imposed from above as a voluntaristic distribution of benefits, but grow out of social consensus and the recognition of their necessity for equalizing the «equal measure of freedom,» they become an organic part of the legal system.
Summing up the analysis of the balancing strategy, it should be stated: the modern legal paradigm overcomes the static opposition of liberal and egalitarian models. Convergence is achieved due to the fact that formal equality retains the status of the conceptual core and universal presumption of legal regulation, while the mechanisms of material equality function on the periphery as situational, proportional, and socially recognized tools for correcting the failures of the market system. Only in such a synthesis is the practical embodiment of the idea of justice in law, responding to the complex challenges of the welfare state, possible.
Results and Discussion. Summarizing the results of the conducted theoretical and legal, formal-dogmatic, and axiological analysis, it seems possible to formulate a number of fundamental provisions reflecting the current state of the problem of operationalizing the principle of equality.
First of all, the course of our study inevitably leads to the statement of a fundamental fact: neither of the considered conceptual models – be it the strategy of strict liberal universalism or the paradigm of egalitarian contextualization – in its pure, distilled form possesses sufficient instrumental potential to ensure the full implementation of the principle of justice in modern law. An analysis of law enforcement practice clearly demonstrates that the absolutization of «legal blindness» in the conditions of a stratified society leads to the severe conservation of latent (indirect) discrimination and the social exclusion of marginalized groups. At the same time, the uncompromising introduction of an egalitarian approach aimed at the total equalization of outcomes inevitably comes into conflict with the basic constitutional guarantees of the majority, engendering intractable collisions and the phenomenon of «reverse discrimination.»
In the course of the scientific discussion, we come to the logical conclusion that the architecture of the modern legal system should be built on the principle of the hierarchical complementarity of these two paradigms. Formal equality, despite justified criticism of its limitations, invariably retains the status of an axiomatic basis, a kind of «load-bearing framework» or institutional skeleton of any democratic legal system. It is the presumption of formal equality that provides that necessary degree of abstraction, without which the functioning of law as a universal normative regulator, rather than a system of individual privileges, is impossible.
Material (substantive) equality, in turn, should not and cannot claim the role of a total substitute for the formal approach. Its true purpose in a rule-of-law state is to serve as a subsidiary, corrective mechanism, a kind of «fine-tuning instrument» for legal matter. We conclude that the application of this instrument (in the form of affirmative action, quotas, or reasonable accommodation) is legitimized exclusively in the presence of an objectively proven structural vulnerability of a specific social group or individual. Substantive equalization is justified only where a formally equal norm de facto deprives the subject of the very possibility of entering into a legal relationship.
Special attention within the framework of this discussion should be given to the problem of mitigating the risks associated with an excessive enthusiasm for the substantive approach by the legislator and the law enforcer (especially the bodies of constitutional justice). As our study has shown, the uncontrolled expansion of the material model harbors at least two serious systemic threats.
First, it is the threat of the state sliding into rigid paternalism. Striving to ensure the so-called «equality of outcomes» and to compensate for any, even naturally determined, manifestations of actual disparity (for example, differences in talents or the level of diligence), the state risks stepping outside the bounds of its legal nature. Turning the law into an instrument for the directive distribution of goods paradoxically devalues the autonomy of will and the personal responsibility of the subject, causing detriment to their human dignity.
Secondly, the forced introduction of the material context provokes a catastrophic erosion of legal certainty. If, when making a decision, the court is guided not by the letter of the law and predictable dogmatic constructions, but solely by current socio-economic expediency or situational empathy for the «weaker party,» the stability of legal turnover will be destroyed. The law will cease to function as an «equal measure of freedom,» giving way to unpredictable judicial or administrative discretion. That is why the integration of elements of material equality must be carried out extremely cautiously, strictly through the filter of the proportionality test and the mechanisms of social recognition, while preserving the core of the formal legal status of the individual inviolable.
Conclusion. Summarizing the results of the conducted theoretical and legal research, it can be stated with certainty that the historical dichotomy of formal and material equality is today gradually losing its uncompromising, antagonistic character. The evolution of the doctrine and the accumulated experience of law enforcement practice (both at the level of constitutional justice and within international institutions) clearly testify to the end of the era of rigid opposition of these two models of operationalizing the principle of justice. The modern legal paradigm, responding to the complex challenges of the welfare state and the increasingly complex structure of society, makes a natural transition from dogmatic confrontation to a deep convergence and systemic integration of approaches.
Within the framework of this updated conceptual matrix, formal equality (and its accompanying tactic of «legal blindness») retains its enduring significance as a universal normative foundation. It remains the very «framework» that guarantees the basic stability, impartiality, and predictability of legal communication, insuring the system against voluntarism. In turn, the concept of material (substantive) equality is incorporated into the legal fabric not as a destroyer of classical liberal freedoms, but in the form of a legitimate, targeted, and strictly dosed corrective mechanism. The application of such compensatory tools (affirmative action, reasonable accommodation) is recognized as lawful only subject to compliance with strict criteria of proportionality, reliance on mutual social recognition, and the presence of objectively proven structural vulnerability of the subjects.
At the same time, the doctrinal consensus achieved to date regarding balancing mechanisms by no means exhausts the entire depth of the non-discrimination problematics. On the contrary, it opens up fundamentally new horizons for scientific search. One of the most demanded prospects for further research is seen in the study of the transformation of classical models of equality under the powerful pressure of the processes of total digitalization. The large-scale introduction of algorithmic systems (including scoring models and AI technologies) into administrative and private law procedures generates the phenomenon of «algorithmic bias». There is an urgent need to determine whether algorithmic «blindness to differences» is capable of ensuring genuine equality, or whether the program code imperceptibly reproduces and scales the historically formed substantive inequality.
In addition, a colossal heuristic potential lies in the extrapolation of the theoretical constructs we have developed to specific, highly competitive branches—first of all, to international economic law. The question of how the doctrine of material equalization is capable of integrating into the system of mutual benefit principles in the regulation of macroeconomic processes requires deep reflection. The search for a balance between the strict formal equality of sovereign actors (or transnational corporations) and the objective need for substantive protection of economically weak states in global commercial turnover is the fundamental challenge to which legal science will have to provide an answer in the coming decades.
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Информация об авторе:
Тао Лунцзе
Aспирант юридического института Федерального государственного автономного образовательного учреждения высшего образования «Российский университет дружбы народов имени Патриса Лумумбы» (название международного университета, РУДН, Москва, Российская Федерация).
Information about the author:
Tao Longjie
Postgraduate student in the Law School of the Patrice Lumumba Peoples’ Friendship University of Russia (RUDN University, Moscow, Russian Federation).
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