PANEL SESSIONS V WEDNESDAY JUNE 27 2018 9.00 AM – 10.30 AM

Room: CYTT 7.25

  • Change of the Mandatary Retirement Age Based on the Constitutional Equal Protection
    Different standards for the elderly from the other ages are adopted for the termination of employment contract in Korean workplaces. Labor laws stipulate a mandatory retirement age to protect employees. However, many employees are laid off in spite of legal regulations. External factors should be considered for deciding the existence of age discrimination at work. Especially employees’ recognition of age equality at workplaces and the people’s general understanding of age discrimination should be reflected to execute anti-discrimination policy. This paper presents the people’s intention to remain at work that is higher than the current mandatory retirement age, 60 based on a survey. According to the comparison between the American survey and the Korean one, workers’ intention to work as long as possible looks universal. This paper suggests the result of the research should be adopted for the political and judicial decisions for labor based on the constitutional equal protection.
  • Why and When Irrational and Arbitrary Distinctions are Discrimination
    While some scholars explain why arguments that limit the scope of discrimination to the classic grounds of race, gender, and so on, are not convincing, none of them establishes a positive argument as to why and when we should consider irrelevant distinctions that are not based on the classic grounds as discrimination. This paper explains why and when arbitrary or irrational distinctions, on their own, constitute discrimination. In a nutshell, the argument is that irrational and arbitrary distinctions are discriminatory, even when they do not relate to classic grounds. This is because, unlike rational distinctions, such as distinctions that are based on reliable proxies, irrational and arbitrary distinctions do not try to treat individuals as autonomous human beings. They ultimately disregard individuals’ relevant needs and capacities. Irrational and arbitrary distinctions thus fail to treat individuals with equal concern and respect.
  • Student Ability, Tracking and Discrimination
    Over the years, the concept of discrimination and the legal doctrines that protect it, have widened and additional classifications and actions have been recognized as constituting discrimination. This paper explores yet another new category, student ability, and argues that tracking students according to their ability is discriminatory. The analysis in the paper is both philosophical and legal. The philosophical examination applies the different approaches concerning the wrongness of discrimination to the case of ability. The paper then compares case law concerning ability grouping in the United States, Israel and the European Court of Human Rights. While courts in the US and Israel have been reluctant to recognize ability grouping as discriminatory, the ECtHR has struck down ability grouping practices that result in overrepresentation of children from the Roma community in lower tracks and in special education. The paper argues that this approach should be endorsed.
    • Substantive Inequality and Discrimination as the Irrational Distribution of a Benefit: A Rehabilitation
      This paper attempts to give new life to a conception of the rights to equality and non-discrimination —often misleadingly called ‘formal‘ and currently less fashionable— built around irrationality in the distribution of a benefit. To be clear, this is both a conception of ‘substantive inequality‘ and discrimination. First, the paper outlines the philosophical picture of practical reason which underpins the conception. It then moves to substance, in particular the central notion of equal moral status Then, relying on argumentation theory, it shows how the conception can be extracted from the language of equality and discrimination provisions. Finally, it argues that, compared with other conceptions of equality and discrimination, this one is particularly suited for judicial decision-making: it is (1) grounded in a standard account of action and responsibility (2) simple and down-to-earth and (3) institutionally legitimate. This explains its persisting presence in many jurisdictions.
    • Integrated Diversity: A Pluralist Constitutional Framework
      I argue that the Philippine Constitution‘s main strategy for pursuing and preserving fundamental values is the fostering of integrated diversity, which seeks to empower various, diverse groups and channel their political energies into the democratic processes whereby the coöperation, compromise, and coalition-building needed to succeed would lead to the pursuit of collective norms and win-win solutions. By addressing their systemic bargaining disadvantage, these groups can more effectively compete democratically against the historically dominant kinship networks of elite families and break the historical dominance of the political oligarchy. Specifically, the Constitution fosters integrated diversity by giving individuals and groups democratic space to directly participate in policymaking through various popular means, the decentralization of national governmental powers, and by empowering different kinds of citizens and their groups.

    • Multiple Diversity Governance through Law and Politics
      With the violent ethnic conflicts in the Balkans after the end of the Cold War, secessionist movements in Western Europe, and the refugee crisis in 2015, the integration of old and new minorities and stateless nations became a top priority for European contries. However, it is more and more evident that old legal and political concepts no longer adequately deal with these challenges. As long as ‘others’ are seen to ‘be’ the problem for national security, governabiltiy, or social cohesion through the lens of the monist-identitarian nation-state paradigm, nothing will change in the trias of identity-security-democracy for the theory and practice of conflict regulation through public law. This paper tries to deconstruct the natural and ideological fallacies of the nation-state paradigm and to demonstrate a theoretically and institutionally alternative pluralist model of multiple diversity governance of how to reconcile political unity with legal equality and cultural diversity.