PRINCIPIO DE IGUALDAD Y LEGISLADOR: ARBITRARIEDAD Y PROPORCIONALIDAD COMO LÍMITES (PROBABLEMENTE INSUFICIENTES)

Abstract

The Fundamental right is the general principle of equality which is set down in article 14 of the Spanish Constitution, reveals disconcerting contrasts. So that in the jurisprudence of the constitutional courts one finds approaches that in a certain way are disparate. Insecurity is particularly manifest in the way it is often appealed, in the sense that the margin of manoeuvrability of the legislator ends at the point where unequal treatment is no longer compatible with the objective reason so as to produce an arbitrary situation. A procedure that goes no further than that it is practically valid for any type of application of rules. So that, from 1980 it is worth mentioning that the German Constitutional Court, and later the rest of the constitutional courts as well as the Spanish combined efforts to reach a sounder criteria in resolving the question as to when it should be treated or not as an inequality issue. Many consider this procedure a «new formula» that basically consists of incorporating as far as it is possible the principle of proportion. Nevertheless, the results up to now have been unsatisfactory although on this basis a more concrete concept to be developed is not ruled so as facilitate the legislator in dealing with inequality issues.