BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

Finally, there is the discussion about the obtained results from the affirmative action, focusing on the recent dichotomy of its use to ensure full equality (constitutional law) versus its disproportion or even some kind of abuse of use, commenced by it. 2. The Concept of Affirmative Action Measures When studying affirmative action measures, firstly it is important to consider they are tools of achieving full equality among people, whenever society shows itself incapable of achieving cultural maturity to attend social equity, free of discrimination. Affirmative action measures are necessary since Western occidental societies have adopted the Rule of Law system, in which the fundamental right to freedom is greater than the rights to equality and fraternity. 4 Therefore, there is the concept of formal equality before the law, 5 which does not take into consideration the existing inequalities, idealises the premise everyone is equal under the law, and it should be neutral when applied. 6 This system, however, has contradicted itself since it does not solve discriminatory situations over time. The natural inequalities (physical, psychological, social, and economic inequalities, among others) prove it is materially impossible to provide equal opportunities to people. Merely formal equality before the law does not ensure full equality, considering it does not perceive individuals’ limiting aspects; it only serves a specific group of people to the detriment of other groups. After perceiving this distortion, at the beginning of the 20 th Century, there was the creation of a new concept of equality, substantive equality, adopted in the Social Rule of Law system. The new concept contained affirmative equality rules, providing unequal treatment to unequal people, 7 aiming to achieve full equality. Regarding the concept, the affirmative action measures’ historical and dynamic characteristics do not permit the creation of a closed concept, because it has been developing through occidental history. 8 Even the titles represent an open concept; in Brazil, it is possible to find the expressions as “first order discrimination,” “benign discrimination,” “preferential treatment” among others. 9 4 BESTER, G.M. Principiologia constitucional e ações afirmativas: em prol da inclusão das pessoas idosas no Brasil-de Chronos a Kairos. Espaço Jurídico Journal of Law . Joaçaba, V7, n. 2, jul/dez, 2016, p. 116. 5 MELLO, C. A. B. O conteúdo jurídico do princípio da igualdade . 3. ed., 4. tir. São Paulo: Malheiros, 1998, p. 10. 6 GOMES, J. B. B. Ação afirmativa e princípio constitucional da igualdade. O direito como instrumento de transformação social. A experiência dos EUA . Rio de Janeiro: Renovar, 2001, p. 2. 7 HELLER, A. Além da justiça . Rio de Janeiro: Civilização Brasileira, 1998, p. 17-18. 8 BREST, P; LEVINSON, S; BALKIN, J. M.; AMAR, A.R. Processes of Constitutional decisionmaking . 4 ed., Gaithersburg: Aspen, 2000, p. 899. 9 RIOS, R. R. Direito da Antidiscriminação: discriminação direta, indireta e ações afirmativas . Porto Alegre: Livraria do Advogado, 2008, p. 157-8.

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