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The edge of equality
The legal norm chosen in this case will be the principle of equality contained in article 14 of the Spanish Constitution. This rule is in Title I of Section 1 of Chapter II of the Spanish Constitution and establishes the following: the Spaniards are equal before the law, without any discrimination prevail by reason of birth, race, sex, religion, opinionor any other personal or social condition or circumstance. To perform the critical analysis of a norm I believe that three aspects must be considered jointly: legitimacy, validity and efficacy. Legitimacy: First, I will wonder if the norm is legitimate.
That is, assess if it is a fair standard. The principle of equality has been one of the basic postulates of constitutionalism since its origins. In this sense, the declaration of independence of the thirteen North American colonies affirms that we maintain as obvious truths, that all men are born equal. This same principle is strongly collected in art. 6 of the declaration of the rights of man and citizen of 1789. Equality today is built as a limit to the performance of public authorities and as a mechanism of reaction to the possible arbitrariness of them. This principle of equality translates into three dimensions.
As a legal value that bases the Spanish legal system. Promotional imposes a horizon for the performance of public authorities. In this specific case, the equality postulated in this article is built as a right, before the law, in the law and in application of the law. It is a subjective right of the Spaniards that can be invoked before the courts. This equality before the law is related to the application of the same. The law must be universal (reach all citizens);General and abstract (it must be developed for generality and not for a specific group of citizens) and lasting (there are no laws elaborated for specific situations).
The purpose is to exclude singular laws. Validity: secondly, I will wonder about the validity of it, that is, is it a norm created by the legal procedures of creation? This article is a very frequent precept in the field of comparative constitutional law, both historical and current. The clearest referents are the French Constitution of 1958, the Italian Constitution of 1947 and the German Constitution of 1949. As previously indicated, this standard is contained in section 1 of Chapter II of Title I of the Constitution. This section is composed of the hard core of fundamental rights.
In this section in addition to the aforementioned principle of equality we can also find personal rights, such as the right to life and physical integrity or freedom of thought;political rights, that is, rights that have to do with the formation of a democratic state and refer to political participation, such as freedom of expression, the right of meeting, manifestation, etc.;and other instrumental rights, such as effective judicial protection, the rights of the educational field. According to article 53 CE to this fundamental right, maximum protection is granted.
The normative guarantees (reserve of law, protection of their essential content, direct application) and jurisdictional guarantees (ordinary judicial protection and amparo before the Constitutional Court) are assigned to him. Effectiveness: Finally, I will address the issue of efficacy, that is, to assess the degree of compliance that the norm in society has, obedience to the legal norm by its recipients. We know that the principle of equality is one of the guiding principles of our legal system, in addition to a fundamental right and as such its application is direct and its maximum protection.
Along with this, I would like to emphasize that the fact that equality cannot be preached in abstract, but only with respect to concrete legal relations, prevents this principle from being subject to regulatory regulation or development with a general nature with a general character. This is what is understood by relational and non -autonomous character of the principle of equality and that, therefore, helps to guarantee the effectiveness of the norm. Due to this character, a General Equality Law cannot be approved, but the creation of individual norms dictated to capture this equality is necessary.
In this sense we could point out, for example, the Organic Law for the effective equality of women and men. However, in relation to the effective. Gender violence, wage discrimination, the greatest female unemployment, the still low presence of women in positions of political, social, cultural and economic responsibility, or the problems of conciliation between personal, work and family life show how equalityfull, effective, between women and men.
It is still a pending task that requires new legal instruments. That is why in Spain positive discrimination measures have been taken to favor certain groups, that is, measures that involve developing public policies that, without harming other groups, favor certain social groups. Above all, they have focused on people with disabilities and women. The Organic Law, of Effective Equality of Women and Men, introduces some positive discrimination measures by imposing a balanced composition between men and women in various public and even private organs and in the electoral candidacies.