WHAT ARE WE TALKING OF WHEN WE SPEAK OF CONSTITUTIONAL EQUALITY?

Abstract

The author analyzes the legal meaning of the idea of equality in current democratic constitutionalism in its triple dimension of superior value of the legal system, legal principle and fundamental right. In this context, the idea of equality would serve to determine, reasonably and not arbitrarily, what degree of legal inequality of treatment between two or more people is tolerable, ie, equality would be the criterion that would measure the degree of legal inequality that is permissible. From there, the author dissects the idea of equality through the distinctions between equality in content and equality in aplication of law, real and formal equality, equality and prohibition of discrimination. The work finishes with an analysis of the fundamental right to freedom from discrimination, that includes, on the one hand, equal treatment and prohibition of both direct and indirect discrimination and, on the other hand, equal opportunities and the legality and the demand for positive action measures.