Research project Equality enhancing measures and equal treatment
Doctoral thesis study on how the controversial relationship between the prohibition of discrimination and equality-enhancing affirmative action measures has developed in Swedish discrimination legislation. Full title is: (Un)equal treatment – Equality enhancing measures and equal treatmemt in the genealogy of Swedish discrimination legislation.
This thesis examines how the controversial relationship between the prohibition of discrimination and equality-enhancing affirmative action measures has developed in Swedish discrimination legislation. In the Swedish legal material, this relationship is regulated in different ways; equality-enhancing affirmative action measures are in some legal instruments seen as part of the non-discrimination principle in a broad sense, and in others as constituting discrimination in themselves, and therefore illegitimate. The latter view of this relationship has in recent years been consolidated in Swedish discrimination legislation. By adopting a genealogical theoretical perspective on the legislative development, and by locating the study to the ‘transformational moment’, which is the moment at which the values produced inside the political arena are transformed into legal categories and concepts, the study examines how the contemporary legal understanding of this relationship has evolved.
Project description
In the Swedish legal and political system, the transformational moment occurs during the legislative drafting (the preparatory works). The empirical material of the thesis therefore consists of the preparatory works of Swedish discrimination legislation. The preparatory works are studied as discourses and are methodologically treated as an archive, in order to be able to investigate how the relationship between equality-improving affirmative action measures and the prohibitions of discrimination develops. The archive consists of the preparatory works containing the central events in Swedish discrimination legislation that have a bearing on the relationship examined in the study and each time a new ground for discrimination is introduced into Swedish discrimination legislation. The archive begins in 1970, the first time a ban on discrimination was introduced, and ends with the preparatory work for the current Discrimination Act (2008:567).
The archive is finally processed and reconstructed by using a number of discursive themes developed in interaction with the empirical material. The reconstruction shows that there is a structural bias towards ahistorical discursive themes during the transformational moment and that equality-improving affirmative action measures then tend to be regarded as less legitimate. The reconstruction also shows that the discourse around this issue has been subject to juridification, with consequences also for the political maneuvering space regarding equality-improving measures. Since Sweden joined the EU, discrimination legislation has been subjected to an equal treatment imperative. The reconstruction shows that there is a merging of the principle of equal treatment of the EU and the Swedish administrative law principle of equal treatment in the discourse. The latter also appears as a discursive practice in the Swedish administrative tradition, stemming from the universalist interpellation of the welfare state. The consequence of this discursive merge is that measures to improve equality are generally regarded as illegitimate in Swedish discrimination legislation.
Project members
Project managers
Maria Nääv
Adjunkt
