Abstract

Positive action is a highly contested concept and its meaning varies across states. Law plays a key role in shaping the boundaries of positive action. This paper presents the findings of a comparative study of law and positive action both inside and outside the European Union. It sets out the approach to positive action within European Community (EC) law and, based on that, constructs a legal definition of positive action. It then turns to consider practice at domestic level and uncovers a broad diversity of approaches. The non-EU comparator countries (USA, Canada and South Africa) have been more willing to impose obligations on public and private bodies to engage in positive action than have been the EU Member States considered in this study. Notwithstanding the constraints deriving from EC legislation on positive action measures, there is some evidence of a trend towards duties to take positive action emerging within the EU Member States.