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Legislative Discrimination

  • 02-05-2011 4:02pm
    #1
    paky
    Banned (with Prison Access) Posts: 2,138 ✭✭✭


    Can anyone explain to me what legislative discrimination is with reference to Article 40.1?

    Article 40
    All citizens shall, as human persons, be held equal before the law.
    This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.


Comments

  • #2
    234
    Registered Users, Registered Users 2 Posts: 1,529 ✭✭✭234


    Well it depends and the courts haven't exactly been clear on the issue. First you need to know the difference between direct and indirect legislative discrimination and whether either is contrary to 40.1. Then you need to look at the three different kinds of equality espoused in 40.1: formal equality, equialty as a human person and Aristotelian equality and the case law and differing standards of review in each. Then you should look at the cases where the court has upheld otherwise discriminatory legislation becasue it served a legitimate legislative purpose. Overall 40.1 gets pretty weak protection from the courts.

    This is only a roug outline to the area. If this is for college exams or FE-1s then you will have to figure it out on your own.


  • #3
    paky
    Banned (with Prison Access) Posts: 2,138 ✭✭✭paky


    234 wrote: »
    Well it depends and the courts haven't exactly been clear on the issue. First you need to know the difference between direct and indirect legislative discrimination and whether either is contrary to 40.1. Then you need to look at the three different kinds of equality espoused in 40.1: formal equality, equialty as a human person and Aristotelian equality and the case law and differing standards of review in each. Then you should look at the cases where the court has upheld otherwise discriminatory legislation becasue it served a legitimate legislative purpose. Overall 40.1 gets pretty weak protection from the courts.

    This is only a roug outline to the area. If this is for college exams or FE-1s then you will have to figure it out on your own.

    234 you're a legend.

    its for college. its a very sticky question


  • #4
    Kosseegan
    Banned (with Prison Access) Posts: 987 ✭✭✭Kosseegan


    An example is age limits for driving licence etc. On the face of it having a different regime for older drives is unequal. The reason it may be constitutional is the regard to differences in capacity e.g physical.
    Are presons under 18 unequal because they can't vote. Prisoners votes??


  • #5
    paky
    Banned (with Prison Access) Posts: 2,138 ✭✭✭paky


    Kosseegan wrote: »
    An example is age limits for driving licence etc. On the face of it having a different regime for older drives is unequal. The reason it may be constitutional is the regard to differences in capacity e.g physical.
    Are presons under 18 unequal because they can't vote. Prisoners votes??

    so the reasoning behind legislative discrimination is because equality applied without regards to differences, would indirectly discriminate against individuals?


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