Opravdanost afirmativne akcije u demokratiji i vladavina prava
Justification of Affirmative Action in Democracy and the Rule of Law

Summary/Abstract: Since it first emerged, the affirmative action gave rise to on-going disputes on its justification and constitutionality. This paper seeks to establish a possible correlation between justice, equality and constitutionality in a democratic order using one specific example of affirmative action. Preferential treatment of the members of minority groups and minimum or maximum guaranteed participation of the members of minority groups in different programs or activities (quotas) are considered the most controversial forms of affirmative action. The advocates of preferential treatment and quotas justify such measure of affirmative action as compensatory justice. Many authors object to some measures of affirmative action as incompatible with the free market principles. The advocates of preferential treatment and system of quotas perceive the equality in terms of human rights and social justice. On the other hand, the opponents of such measures insist on the original liberal perception of equality as equal opportunities institutionalized by formal equality in a particular legal system. Different perceptions of equality are conducive to different assessments of compliance of measures of affirmative action with the principle of rule of law. Analysing different cases of assessment of constitutionality of affirmative action in different legal systems, it may be concluded that the philosophical dilemma on constitutional equality and its contemporary meaning and application should be sought through the constitutional process, through constitutional amendments and normative regulation, and not through judicial review.

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