General background
This book is the result of a joint research project between Universidade do Oeste de Santa Catarina (UNOESC, Brazil) and Middlesex University (United Kingdom) on affirmative action measures in the UK, South Africa, China, India and Latin America. Academics from the Pontifical Catholic University in Porto Alegre, Brazil (PUCRS), University of Talca (Chile) and University of Chihuahua (Mexico) have also collaborated in this joint effort to analyse affirmative action policies in the countries under review. The first phase of the project culminated in another edited book where contributors reviewed the existing affirmative action measures and how these have developed in the countries chosen for analysis.1
During the second phase of the project, the scope of the research was expanded to the practical application of affirmative action measures and their utility and efficacy in achieving their aims in the relevant jurisdictions. The researchers involved have focused on the role of temporary affirmative action measures in redressing structural inequalities suffered by designated groups by increasing the proportion of members in these groups in relevant labour, academic, governmental or non-governmental positions where they are underrepresented. This book includes the main conclusions reached by assessing the progress of such legal and policy measures in Argentina, Belize, Brazil, Chile, China, Colombia, Costa Rica, Guatemala, Honduras, India, Nicaragua, Panama, Peru, El Salvador, South Africa and the United Kingdom.
All the countries chosen provide for some form of affirmative action for certain disadvantaged groups in their national laws, but little research has been done into the extent and efficacy of these measures in many of these countries and literature on this remains scarce. Most scholarship (especially in the English language) focuses on the United States, where these measures have been studied, tested and contested at length. Some other countries have also been studied, but these studies often focus on specific and narrow measures, for example, gender-based quotas or projects for indigenous people.
Conceptual framework of affirmative action
State practice reveals a great variety of affirmative action measures in terms of identification of the groups benefiting from them, the ‘soft’ or ‘hard’ approach adopted, the legal framework embedding special measures and the forms of implementation. Moreover, the term ‘affirmative action’ is not the only term used in this context, as, for example, in Europe, ‘positive action’ is more common; international institutions tend to prefer the term ‘special measures’; other terms such as ‘remedial measures’, ‘preferential policies or treatment’, ‘reservations’, ‘compensatory actions’ or ‘distributive justice’ can also be found. These terms are often used as synonyms without much explanation as to what the terms mean and there is, therefore, a lack of unified terminology. In this book, the terms ‘affirmative action’, ‘special measures’ or ‘positive action’ will be used to describe the use of policies, programs, rules and administrative actions that treat members of disadvantaged groups differently to assist in overcoming the obstacles and discrimination they face in contemporary society.2
In simple terms, the objective pursued through the adoption of affirmative action measures is de facto equality. However, here again, there is lack of agreement on what exactly this means and there is confusion about the terms used; for example, terms like ‘equal opportunities’, ‘effective equality’, ‘substantive equality’, ‘factual equality’ or ‘equality in practice’ can all be found in the literature. For a better understanding of the intended meaning, when referring to de facto equality, it is necessary to examine the rationale explaining the creation and development of affirmative action measures.
When States adopt measures with the aim of achieving equality, the first step is usually to adopt legislation which declares that everyone is equal before the law and has a right to equal protection of the law. This includes a right to be treated equally to everyone else who is in the same situation. This is often referred to as formal equality, equality before the law, de jure equality or equal treatment. This concept of equality is based on the Aristotelian premise that like should be treated alike. Therefore, formal or de jure equality lies in the consistency of treatment.
However, looking at equality in this way raises the question: who is like whom? This concept does not appear to take account of or recognise the material differences between people. Neither is there any attention for inequalities and social disadvantages that exist for certain groups in society because of past and ongoing discrimination. For this reason, a more substantive concept of equality as an additional basis for anti-discrimination legislation has been introduced in most countries to correct these inequalities and, thus, aiming for de facto equality3 or equality in practice.4