CEU Electronic Theses and Dissertations, 2020
| Author | Hahn, Robert Julius |
|---|---|
| Title | The Constitutionality of Parliamentary Gender Quota and Parity Legislation in France, Spain and Germany |
| Summary | In 2019, the parliaments of two of the German Länder, Brandenburg and Thuringia, passed parity acts. These mandate that electoral lists will have to consist of alternating female and male candidates, in an effort to increase the share of women in parliaments. Although parliamentary gender quotas are a growing international phenomenon, the constitutionality of the two acts is controversial and litigation is underway. This comparative analysis examines which arguments on the constitutionality of parity laws have been discussed in France and Spain, how they resemble or differ from and how they can inform the debate taking place in Germany. In France, quotas were originally found unconstitutional, but parity is now enshrined in the constitution. In Spain, however, a 40 percent “flexible parity” passed constitutional muster. Opponents of gender quotas contend that they are incompatible with a universalist notion of representation, which prescribes making any distinctions between voters or candidates. The universalist concept of representation is, however, challenged by descriptive and pluralists accounts. Gender quotas are moreover widely perceived to compromise electoral equality, but when they are gender-neutral, they do not affect formal equality between women and men. They do, however, severely limit the freedom of voters and candidates in the candidate selection process, as well as the autonomy of political parties. Some proponents of parity argue that it is a requirement of democracy properly understood, relying on an alleged fundamental division of humanity into men and women, on feminist insight into the male construction of the political sphere, or on the necessity of effective political participation of women, respectively. Like universalist representation, however, such concepts of parity democracy build less on posited constitutional law than on politico-legal theories. Other supports of gender quota rely on substantive gender equality, viewing quotas as affirmative action instrument. Such an approach leads to a proportionality analysis and the constitutionality of gender quotas depends on how disadvantages of women in the political sphere are perceived and how substantive equality in this field is weighed against electoral freedom and party autonomy. For Germany, it seems most likely that the courts will follow the predominant position in German legal scholarship and find gender quotas to be in violation of constitutional law. Like their French counterparts, parity proponents in Germany would then have to elevate their advocacy to the level of constitutional amendment, which comparative perspective shows would not be in conflict with democracy. |
| Supervisor | Möschel, Mathias |
| Department | Legal Studies LLM |
| Full text | https://www.etd.ceu.edu/2020/hahn_robert-julius.pdf |
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