Pari dignità e discriminazione

SITZIA, LUCA

2011-01-01

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Abstract

The discrimination based on certain personal characteristics such as gender, national origin or ethnicity, beliefs and religious practices negates the other’s dignity and is an important factor in maintaining the stability of the existing dominating positions of supremacy within the society. Its multifarious manifestations render necessary that any public intervention does not limit itself simply in confronting the conduct intended to harm the other’s dignity. A subject can act as a vehicle of widespread preconceptions even in the pursuit of legitimate ends, such as when an activity which expresses a position of “private power” is exercised in a manner calculated to increase profits but is in contrast with the evolving needs of a tolerating and cohesive society. In fighting discrimination, the Italian legal system is inspired both by a logic of commutative justice based on the principle of damage and its equivalent compensation and by a redistributive logic of more equal opportunity. The laws against discrimination contain a meaning of discrimination which, on one hand, is based on a subjective element that does not take into account the entity of the concretely caused disparity and which, on the other hand, is based on an objective meaning centred on the particular harmful effect of the conduct that does not take into account any evaluation of the subjective element. Since the fight against discrimination in private law implies the use of techniques in balancing interests, employed by the judge in reference to concrete cases, the Italian legal system, in enacting legislation in accordance to European Union directives against discrimination, has appropriately chosen to regulate the area through the technique of general clauses and of open formulas, better adapted to confront the needs created by the emersion of value systems which are present in a multiethnic, multicultural and multireligious society.