Foreign practice of positive discrimination

Volodin Kirill Al'bertovich student, Department of Jurisprudence, Murom Institute (branch) of the Federal State Budgetary Educational Institution of Higher Education "Vladimir State University named after Alexander Grigoryevich and Nikolai Grigoryevich Stoletov" (MI VlSU) 607100, Russia, Nizhegorodskaya oblast', g. Navashino, ul. Trudovaya, 8, kv. 98 lliriknidolov@gmail.com

In the context of globalization, one of the challenges and threats to the democratic sustainable development of society is discrimination, inequality of some groups of the population in relation to others. The key, but at the same time a debatable tool for combating it is the comprehension, legal consolidation and application of positive discrimination as a policy equipped with an arsenal of means, measures and actions taken to ensure the rights and well-being of members of vulnerable groups, depending on their ethnic and cultural origin, social class, disability, gender, marital status, pregnancy and motherhood, etc.

The first mention of it dates back to the middle of the XX century and at the present stage of the development of legal science there is a whole range of concepts, terms and approaches to their definition. Thus, positive discrimination is designated as "positive actions", "reverse discrimination", "preferential treatment", "corrective actions" ^{[1, p. 795]}. Without going into the controversy about which equivalent is preferred in the Russian language, we note that they are practically identical, and their definitions complement each other.

For the first time, the legal consolidation of "affirmative action" was carried out by D. Kennedy. In 1961 , he issued Executive Decree 10925 with the following content: "The contractor will apply positive discrimination measures to ensure that employees are hired and treated regardless of their race, religion, skin color or national origin."^[2] Having originated in the USA and for a long period being part of the American tradition, by now this practice has spread to other regions, including the countries of Asia and Africa, reflected in many UN documents ^[3].

Similar preferential actions found their development in Russia long before the publication of the mentioned precedents of US rulemaking. For example, the American historian T. Martin called the USSR in the early stages of its formation "the empire of affirmative actions" as a state in which a unique experiment of large-scale sponsorship of ethnicity was carried out, starting from scientific developments and ethnic mapping, the system of census and documentary accounting and up to the state structure and the official ideology of "friendship of peoples" ^{[4, p. 540]}, and N. N. Zhukov in his work concluded that positive discrimination on the basis of nationality already existed in the Russian Empire in the XIX century ^[5].

Speaking about the relevance of studying the social policy of positive actions, it is necessary to take into account that it is legally regulated in many countries of the world, approved in some constitutions, its concepts and principles are proclaimed in international conventions on human rights. Nevertheless, a number of scientists are aware of the problematic nature of this phenomenon, skeptically assessing the possibility of its implementation in the modern world. Law Professor J. Fundes believes that both adherents and critics of this socio-legal instrument are based on the concept of equality in order to justify their position. But even when the parties find a compromise on the urgency of the equation of possibilities, the form of its execution is dichotomized ^[6]. Russian researcher D. I. Aksenovsky, in the context of the manifested negative trend of positive discrimination, argues that "cultural, confessional, ethnic, gender and other differences become the basis for claiming special rights to those who represent a clear minority in society. There is a new risk in the development of society — discrimination of the majority, as a result of which small groups act more effectively than large ones" ^[7].

This problem is also very significant in terms of using the intellectual potential of society. The attractiveness of education for young people, their aspirations in this area, the real availability of educational services for people from different social groups, in fact, predetermine tomorrow's level of literacy of the population, the number and quality of qualified workers in the future, which plays a crucial role in terms of current trends in world development ^[8].

Consider the experience of some countries.

The policy of positive discrimination was implemented after the Second World War in multicultural countries such as India and Iceland, as well as in the countries of the Scandinavian Peninsula, which for a long time were models of the welfare state.

Government ActIndia 1919 (or "Montagu-Chelmsford Reform") granted special privileges to non-Brahmins (which include the untouchables along with many other "middle" or "lower" castes), which led to the introduction of quotas for education and public office in the provinces of Madras and Bombay. However, it was only after independence and the adoption of the 1950 Constitution that a systematic compensation policy was implemented throughout India.

India is one of the few countries where constitutional provisions have been established protecting the right of states to reserve places for employment and education of students of lower castes ^[9]. State governments have provided them with free tuition at all levels of education, special grants for the purchase of books, scholarships (including for studying abroad) ^[10]. There are two main directions. The first is free secondary education for members of target groups along with various scholarship payment schemes, and the second is places specially reserved in higher education institutions. According to the Belgian scientist G. Cassan, quotas for higher education will allow those who have made the choice to continue their studies to have access to it. Therefore, the probability of subsequent unemployment decreases ^[11]. The Constitution of India defines 3 groups that are subject to positive discrimination: "scheduled castes" (scheduled castes), "scheduled tribes" (scheduled tribes) and "other backward classes" (classes of citizens) ^[12]. However, there is no precise definition of the criteria by which a caste or tribe is entitled to this status, which leaves open the question of the possibility of some arbitrariness in determining the proper subject of legal relations. Therefore, the constitutional list of castes subjected to positive discrimination has been and remains the subject of discussion and has been changing over time ^{[1, p. 797]}.

The first all-Indian classification of untouchables dates back to 1936 (although earlier attempts were made with the first population estimates of the "depressed classes", as they were then called, made in 1917). One of the main problems in its compilation was the formulation of a universal definition of untouchability, synthesizing linguistic entities and speech (discursive) properties of each state, which at that time varied in its meaning in different parts of the subcontinent. Therefore, the Constitution of 1950, avoiding a clear definition, only procedurally designates in article 15 the following:

"1. The State does not discriminate against citizens solely on the grounds of religious, racial, caste, gender, place of birth or on any of these grounds.

2. No citizen, solely on the grounds of religious, racial, caste, gender, place of birth or for any of these reasons, may be deprived of legal capacity in any way, must not bear special duties, may not be subject to restrictions or placed in special conditions with respect to:

a) access to shops, restaurants, hotels and places of public entertainment or

b) the use of wells, reservoirs, baths, roads and places of public recreation, maintained in whole or in part at the expense of public funds or open for public use.

3. Nothing in this article prevents the State from issuing special regulations concerning women and children.

4. Nothing in this article or in paragraph 2 of article 29 prevents the State from issuing special regulations concerning the development of any socially or culturally backward classes of citizens or castes and tribes included in the lists ^[13]."

In the United States, affirmative action was taken in 1961 and primarily concerned the fight against racial discrimination. Affirmative action is a way of eliminating attitudes of racial prejudice, hidden manifestations of harassment and ensuring pluralism ^[14].

Nevertheless, if we look not in the short term, but in the long term, the results of "positive discrimination" turn out to be negative. Embedded in the administrative and political system of the state, it contributes not to the unification, but to the separation of people, indirectly encouraging distrust and envy on racial, ethnic or gender grounds.

"Positive discrimination" primarily against African Americans, Latinos and women in education and employment was originally conceived in the 60s as a temporary measure. But after 50 years, this policy has exhausted its possibilities, has become overgrown with a network of bureaucratic institutions and, as often happens, has turned into an ideological goal: to ensure proportional representation of racial and gender groups by administrative means.

It is important to note that the provisions on positive discrimination are not enshrined either in the US Constitution or in common law and were actively criticized by the administration of Donald Trump ^[15].

The countries of the European Union, on the contrary, apply positive measures to vulnerable minorities much more widely, which is reflected in the legislation and interstate treaties of the EU. They use the term "positive action", considering them to be a tool for ensuring real equality ^[16], taking into account, among other things, factors of disability, age, religion and beliefs.

For many years, the legislation of the European Community has considered affirmative action only in relation to gender. In 1999, article 13 of the Amsterdam Treaty of the EU was adopted, aimed at "combating discrimination based on racial or ethnic origin, religion or belief, disability, age or sexual orientation." This article was soon used as the legal basis for two new anti-discrimination directives (2000/72/EC and 2000/78/EC), adhering to the principle of equal treatment between people regardless of racial or ethnic origin, religion or belief, disability, age or sexual orientation ^[17].

The European Union prohibits discrimination in its classical, negative form. In accordance with the provisions of the Treaty on the Functioning of the European Union, Member States apply preferential treatment measures to disadvantaged groups ^[18]. In addition, article 2 (2) of the International Convention on the Elimination of All Forms of Racial Discrimination states: "States Parties should take, when circumstances so require, special and specific measures in the social, economic, cultural and other fields in order to ensure the proper development and protection of certain racial groups or persons belonging to them, in order to guarantee them the full and equal enjoyment of human rights and fundamental freedoms. In no case should such measures result in the preservation of unequal or special rights for different racial groups after achieving the goals for which they were introduced" ^[19].

In France , were introducedPriority zones of education (Zones d'Education Prioritaire) based on the differentiation of districts according to their degree of settlement by immigrants, poor academic performance, and the percentage of low-income students. These innovations allowed a number of applicants from vulnerable groups to apply for special admission programs for higher education.

In 2010 , the priority zones model was implemented inGreece (Law 3879/2010) ^[20]. Their goal is to achieve high educational results of students with a low socio-economic level. Article 4 (2) of the Greek Constitution guarantees gender equality, this principle applies to all persons on Greek soil, not only to Greek men and women (Article 116 (2)) ^[21].

In addition, ethnic origin is taken into account. Due to the fact that Greece considers itself a monocultural nation—state that recognizes only one minority group - the Muslim community of Western Thrace, it currently has two hundred and twenty-one bilingual primary schools (the curriculum is divided into two languages) ^[22]. History and geography are taught in Greek, and mathematics, physics and religion are taught in Turkish.).

However, it is worth recognizing that the policy of positive discrimination is severely criticized by part of the scientific community. It is believed that even if it is aimed at combating inequality, it still entails distancing and distinguishing one group from another ^[23]. Another thesis against the application of these measures is their temporary nature of favoring beneficiaries, which ultimately causes even greater harm to vulnerable groups ^[24]. As a result, affirmative actions lead minority groups either to internalize (the way they see themselves) or to externalize (the way others see them) negative stereotypes and ultimately stigmatize members of these groups.

There is also a less radical opinion — in order to compensate for the imperfection of positive policy, the effectiveness of its measures should be aimed not only at redistributing the positions of groups and providing preferential benefits (preferences), but also at structural changes in modern society, perpetuating the marginalization of certain classes.

The provisions of the general plan present in this article regarding the policy of positive discrimination of foreign countries, of course, cannot be considered fully exhaustive of the subject, however, it seems to be able to give impetus to further research of this phenomenon, including in Russia.