also have “freedom dimensions” (the duty to respect discussed above), such as
allowing the parents to choose the type of education that a child should have. These
freedom dimensions are not issues of economic organization and therefore unprob-
lematic candidates for judicial protection.
12.6.6 Equality and Nondiscrimination Provisions
Equality and nondiscrimination rights can be seen in a continuum, starting with
provisions for formal equality, passing through provisions for material equality
(of diverse sorts), and ending up with specific entitlements for individuals who are
in a disadvantaged or marginalized position.
Formal Equality Provisions for formal equality require the state to treat every-
body equally in a “blind” manner. So, for instance, both the poor and the rich, the
black and the white are to be subject to exactly the same treatment under the law,
both in legislation and in practice.
Material Equality Material equality provisions are meant to overcome the
limitations of formal equality, which are best captured by the famous quote from
Anatole France: “The law, in its majestic equality, forbids the rich as well as the
poor to sleep under bridges, to beg in the streets, and to steal bread.”
To state the same point in less dramatic terms: a labor law that treats the
employer and the employee in exactly equal terms ignores the wide difference in
bargaining power between the two and encourages injustice rather than prevent it.
Specific Provisions Beyond this, there are specific provisions in constitutions and
treaties for women, children, persons with disabilities, and so on. Like the political
rights that are limited to nationals, these provisions seem to break the rule that
human rights are universal and not the province of a particular interest group.
Nevertheless, these particular provisions can be seen as having universalist logic
if they are seen in the light of material equality. These rules simply list what
material equality requires for a particular vulnerable group.
12.6.7 Fair Trial and Administration of Justice
Finally, we must consider rights that are relevant when one is subject to a judicial or
administrative dispute. These sorts of rights have three functions. First, they control
what the state can and cannot do to a person without passing first through judicial
control. For instance, a state cannot criminally punish a person without a trial (see
also Sects.7.12and7.13.)
Second, these rights also control the functioning and authority of judges requir-
ing them to follow a procedure that achieves certain levels of fairness and effec-
tiveness. The list of these rights is quite large and may include duties as varied as
278 G. Arosemena