ARE SPANISH WOMEN LESS MERITORIOUS? AN EMPIRICAL ANALYSIS OF DISCRIMINATION AGAINST WOMEN IN THE BESTOWING OF CIVIL ORDERS IN SPAIN

I. INTRODUCTION[Up]

The road towards gender equality is often a bumpy one. Gender bias against women has been observed and studied in different fields (Pujol, M. (1992). Feminism and Anti-Feminism in Early Economic Thought. Cheltenham: Edward Elgar.‍Pujol, 1992; Ferber, M. and Nelson, J. (2003). Feminist Economics Today Beyond Economic Man: Feminist Theory and Economics. Chicago; London: University of Chicago.‍Ferber and Nelson, 2003; Staveren, I., Elson, D., Grown, C and Cagatay, N (2007). The Feminist Economics of Trade. New York: Routledge.‍Staveren et al., 2007; Folbre, N. (2009). Greed, Lust and Gender: A History of Economic Ideas. Oxford: Oxford University Press.‍Folbre, 2009; Berik, G., Rodgers, Y. and Seguino S. (2011). Inequality, Development, and Growth. New York: Routledge.‍Berik, Rodgers et al., 2011; Pearson, R. (2012). Women, Work and Gender Justice in the Global Economy. New York: Routledge.‍Pearson, 2012; Karamessini, M and Rubery, J. (2014). Women and Austerity: The Economic Crisis and the Future for Gender Equality. New York: Routledge. Available at: https://doi.org/10.4324/9780203066294‍Karamessini and Rubery, 2014, among others). However, to our best knowledge, the present paper is the first attempt to study the question focusing on the bestowing of civil orders, the single most important incentives of reward—or prizes—offered by the State.

Generally speaking, prizes have received broad attention, not only from economists, but also from related fields like sociology and law^‍‍[1]. This notwithstanding, interest has mainly centred on monetary incentives (for exampleStiglitz, J. (2006). Give prizes not patents. New Scientist, 16, 21.‍, Stiglitz, 2006; for a comparison between both, see Frey, B. S. and Gallus, J. (2014). The Power of Awards. Economic Voice. Available at: https://doi.org/10.1515/ev-2014-0002‍Frey and Gallus, 2014), as this sort of compensation allows the receptor to maximise its utility (Becker, G. S. (1974). A Theory of Social Interactions. Journal of Political Economy, 82, 1063-1093. Available at: https://doi.org/10.1086/260265‍Becker, 1974)^‍‍[2], or on non-monetary incentives (such as business cars, better offices, etc.) summarised under the term “fringe benefits” (cf. Artz, B. (2010). Fringe benefits and job satisfaction. International Journal of Manpower, 31 (6), 626-644. Available at: https://doi.org/10.1108/01437721011073346‍Arzt, 2010). Alternatively, economic analysis of law has studied mostly negative incentives, such as fines and punishment.^‍‍[3] Nevertheless, one major category—if not the main category—of positive incentives used by States have so far been almost entirely neglected both by economists and jurists: the awarding of orders, medals, decorations and other honours that constitute the so-called Premial Law^‍‍[4], referring to which already Beccaria lamented that: “Upon this subject [Premial Law] the laws of all nations are silent^‍‍[5]. If the rewards proposed by academies for the discovery of useful truths have increased our knowledge, and multiplied good books, is it not probable that rewards, distributed by the beneficent hand of a sovereign, would also multiply virtuous actions?”^‍‍[6].

There is serious evidence that Beccaria intended to write a complete Tract on Premial Law, although he ultimately did not achieve this (Jiménez de Asúa, L. (1915). La recompensa como prevención general. El derecho premial. Madrid: Hijos de Reus.‍Jiménez, 1915: 27). Instead, it was Dragonetti (Dragonetti, J. (1836). Tratado de las virtudes y de los premios. Madrid: Villamil.‍1836) who published a Treatise on virtues and rewards. Nevertheless, it is Jeremy Bentham who might be considered the father of Premial Law with his work entitled Théorie des peines et des recompenses. Later, La Grasserie (La Grasserie, R. de (1900). Droit prémial et droit pénal. La Scuola positiva, 10, 385-402.‍1900) published an important article in La Scuola positive dealing with this topic in which he (erroneously) stated that he was the first to introduce the concept of Premial Law. Finally, it might be stressed that probably the most important monograph on this matter was published by a Spaniard, Luis Jiménez de Asúa, in 1915, entitled La recompensa como prevención general. El Derecho Premial. Only more recently has the topic of orders and medals again drawn the attention of scholars, not only from a legal perspective (Fuhrmann, H. (1992). Pour le Mérite. Über die Sichtbarmachung von Verdiensten. Eine historische Besinnung. Sigmaringen: Thorbecke.‍Fuhrmann, 1992; García-Mercadal, F. (2010). Penas, distinciones y recompensas: nuevas reflexiones en torno al derecho Premial. Emblemata, 16, 205-235.‍García-Mercadal, 2010), but also from the perspective of psychology (Fehr, E. and A. Falk (2002). Psychological Foundations of Incentives. European Economic Review, 46, 687-724. Available at: https://doi.org/10.1016/S0014-2921(01)00208-2‍Fehr and Falk, 2002) and economics (Frey, B. S. (2005). Knight Fever towards an Economics of Awards. Working Paper No. 239. Institute for Empirical Research in Economics, University of Zurich.‍Frey, 2005; Frey, B. S. and S. Neckermann (2006). Auszeichnungen: ein vernachlässigter Anreiz. Perspektiven der Wirtschaftspolitik, 7 (2), 1-14. Available at: https://doi.org/10.1111/j.1465-6493.2006.00209.x‍Frey and Neckermann, 2006). However, the study of Premial Law should not be confounded with the phaleristics (named after the Roman for order/medal, phalera), i.e. the study of medals as physical objects, instead of the laws and principles that rule their bestowing (Frey, B. S. and Gallus J. (2017). Honours versus Money: The Economics of Awards. Oxford: Oxford University Press. Available at: https://doi.org/10.1093/oso/9780198798507.001.0001‍Frey and Gallus, 2017).

It is in this context that the present article aims to analyse whether the number of orders bestowed in Spain is equal in gender distribution or, at least, if there is a pattern of convergence among sexes. As will be explained later, this question of possible asymmetry has not escaped the attention of the policymakers in some countries, who have adopted legal measures to raise the number of bestowals to women. Thus, this study will also allow the effectiveness of such measures to be evaluated.

According to the purpose of the study, the article is structured as follows: in section 2, we review orders and medals from an economic perspective to embed our study in the appropriate theoretical framework. In section 3, we present the empirical analysis, in which we test whether there is equality between men and women in the bestowal of the most important civil orders and medals in Spain. Finally, in section 4 we draw the pertinent conclusions and outline some recommendations for policymakers, considering some measures adopted by other nations to reach equality between women and men in the number of orders bestowed on them.

II. ORDERS AND MEDALS AS INSTRUMENTS TO EXTERIORIZE MERIT[Up]

The history of singling out from society those persons who have achieved outstanding merits—either civil or military—by distinguishing them with a distinctive sign (medals, orders, honours and other awards)^‍‍[7] can be traced back to ancient Greece, more precisely, to the late Hellenistic period^‍‍[8]. Following the excellent study by Fuhrmann (Fuhrmann, H. (1992). Pour le Mérite. Über die Sichtbarmachung von Verdiensten. Eine historische Besinnung. Sigmaringen: Thorbecke.‍1992) we can find the origin of this debate in Aristotle’s Politics. The author, from Stagira, discusses the convenience of distinguishing publicly (τιμή) those citizens who had acted in favour of the polis, concluding that, although it might have a positive effect, it should be discharged because of the danger of abuse: “Although this idea might seem attractive, it is not riskless. It might, in fact, favour wrong awarding and cause political disturbs”^‍‍[9].

But these are the thoughts of a philosopher, not of a statesman, and we have broad evidence that civil orders were very common in times of Aristotle, and even about the hot-tempered discussions about their awarding, as proven by the debate between Demosthenes and Ctesiphon in their respective speeches Against Ctesiphon^‍‍[10] and On the Crown^‍‍[11].

The philosophical and social attitude towards merit has been crucial in several aspects that, unfortunately, we can only outline briefly in this paper. It might be sufficient to focus on this question from two perspectives: religious and political. Regarding the first, the theological merit reflects those actions which should receive from God a reward in the form of eternal felicity, the question being to what extent meritorious work and reward correspond completely or partly. In the first case, when this correlation is perfect, the merit is de condigno, and giving the reward would thus be just, while in the second—the equivalence now being imperfect—the merit would be de congruo and the reward would be a question not of justice but of equity.^‍‍[12] Summarising quite a complex matter, the issue of theological merit might be reduced to the following question: can a person do any action or work that should deserve a reward by God? In this apparently simple question lies the main reason for the schism between Catholicism and Protestantism, as the latter believes in predestination, thus denying any possibility of a man to have any merit by himself, but only through God’s grace. This is relevant to the point that Kunze, in his Real Encyklopädie, had no doubt in affirming that the “Reform was essentially a fight against the Doctrine of Merit”^‍‍[13].

Similarly, the distinction between libertarians and conservative politics, on the one hand, and socialist or communist politics on the other, depends heavily on whether they give primacy to individual merit over equity or the other way around. A form of organising society has even been termed meritocracy for those cases in which merit is the distinctive factor. Of course, the question of what is considered meritorious has changed through time and space^‍‍[14], as well as the appreciation of the different orders and medals^‍‍[15]. However, the question of discrimination in the number of orders bestowed to men and women has to date been almost completely ignored. Historically, the matter did not become relevant until after the First World War. Previously, orders were either separated into those exclusive for gentlemen (the majority, as they derived from the ancient orders for knights) and ladies; or a separate category for woman was created inside already existing orders, differentiated by smaller insignia to be worn on a ribbon lace. Step by step nearly all orders and medals bestowed by European countries have changed their statutes supressing any restriction due to gender. Accordingly, it should be assumed that over the last decades the percentages of orders and medals awarded to men and women should have converged towards a level of equality among genders. In the present paper, we will test this hypothesis for the Spanish case.

However, before doing so we should elucidate the difference between orders, decorations and medals. Orders derive from the medieval Knighthoods and the spirit embodied by the Crusades. Accordingly, they are organised in a hierarchy, that is, in several classes or ranks which are reflected in the size and form of the accompanying symbols (usually in growing order of importance: Medal, Cross, Commander’s Cross (less commonly Lady’s Cross), Grand Commander’s Cross, Knight/Grand Cross, Collar). For their part, decorations are simply a sign of distinction of certain meritorious persons by the State or Sovereign, although the awarded people do not constitute a sort of collegiate body or “brotherhood”. Nowadays, orders and decorations are easily and often confused due to the fact that the symbols closely resemble one another, although it is fundamental to clearly distinguish one from another (Jiménez de Asúa, L. (1915). La recompensa como prevención general. El derecho premial. Madrid: Hijos de Reus.‍Jiménez de Asúa, 1915: 39-‍40). Medals are individual distinctions (either in a single class or in the classic bronze/silver/gold classification, though this, unlike what happens with the orders, does not imply any hierarchy between the awarded persons), intended to recognise either a single act of bravery, commemorate a single event or distinguish good conduct as well as long and/or valuable service. Another difference to be taken into account is that between official orders, decorations and medals (those awarded by a State, such as the British Order of the Garter) and dynastic ones (such as the Spanish Order of the Golden Fleece) on the one hand, and private or semi-private ones on the other (such as the Order of the Olympic Merit).

An in-depth explanation of the statutes and proceedings of awarding of each Spanish civil order covered by our research would extend the purposes of this initial study. Instead, we will simply draw a brief sketch of the current Spanish Civil Premial Law System^‍‍[16]. We might start our overview with the approval of the Reglamento Provisional para la Administración de Justicia (September 26^th, 1835)^‍‍[17], the first modern attempt to organise the multiple coexisting laws regarding the Spanish orders and decorations in force up to then. Significantly, it suppressed the requirement of nobility (hidalguía) for obtaining the higher classes of orders. Nevertheless, and except for this point, the Reglamento obtained few results, and there still coexisted a great variety of norms and laws regarding orders—religious, military, civil—and medals. This chaos did not change with the next attempts, the Real Decreto of July 26^th, 1847 (reviewed by the Real Decreto of October 28^th, 1851), which aimed to definitively organise the Spanish civil orders and awards. The advent of the First Republic (March 9^th, 1873) meant the suppression of the Orders of Carlos III, María Luisa and Isabel la Católica. However, only one year later, the Government decided that Republics could bestow not just orders but also honours. The return of the Monarchy with the proclamation of Alfonso XII in the city of Sagunt restored all honours and orders on January 6^th, 1875, stating in the Preamble of the Decree that: “The spare and justified bestowal of awards will stimulate the effort of civil servants and, in general, of all social classes to obtain a sign that demonstrates that they stand out in the achievement of their duty”^‍‍[18].

In 1918 and 1925, two Reales Decretos regulated the system of Military awards, but it was not until the Government of Primo de Rivera (1923-‍1930) that the next attempt to (re)-organise the civil orders was made. A commission was created which analysed this question and wrote its final report. But, once again, it was not meant to be. Shortly before the text was to be presented and approved, the Government fell.

In analogy to the First, the Second Republic again suppressed all orders (May 24^th, 1931) except the Order of Isabel la Católica , alleging that:

Nevertheless, the Order of Isabel la Católica was complemented with the creation of the Order of la República^‍‍[20], an order “without those characteristics embodied in the old orders that made them incompatible with the spirit of the new regime”^‍‍[21].

After the Civil War, the Franco regime took its time before restoring the Laws in force until 1931. The first steps were the creation, in 1937, of the new Orden Imperial del Yugo y las Flechas and the restoring of the Order of Isabel la Católica (which thus coexisted for a while with its republican equivalent.

On April 11^th, 1939, the Orden Alfonso X El Sabio was bestowed and, in 1942, the Order of Carlos III, the Order of Civil Merit and the Order of Agrarian Merit were restored. Finally, in 1944, two new orders were created: the Order of San Raimundo de Peñafort and the Order of Cisneros.

If we now jump forward in time to the current Spanish Premial System, it has to be stressed that, according to article 62.f of the Spanish Constitution of 1978, the awarding of all sorts of honours and distinctions is exclusively reserved to HM the King, thus confirming an ancestral tradition (García-Mercadal, F. (2010). Penas, distinciones y recompensas: nuevas reflexiones en torno al derecho Premial. Emblemata, 16, 205-235.‍García-Mercadal, 2010: 223-‍230). Nevertheless, and notwithstanding this clear principle, in fact it is the executive that confers decorations. More precisely, the award is always made in the name of the Head of State, but it is the executive that decides the concession: the government for the higher grades (Grand Crosses and Collars) and the corresponding Ministry in the lower ones. Traditionally, it was believed that these awards were completely discretionary; nevertheless, recent interpretations of article 106.1 of the Constitution and of the Ley reguladora de la Jurisdicción Contencioso-Administrativa (1998) tend to interpret that all objective criteria regarding awards could in fact be reviewed by courts. This refers mainly to questions such as assuring that a person does not receive a higher category of award that he is allowed to, etc. Unfortunately, these rules are often ignored, and irregularities are no exception (Ceballos-Escalera, A. and F. García-Mercadal (2003). Las Órdenes y Condecoraciones civiles del Reino de España. Madrid: Boletín Oficial del Estado; Centro de Estudios Políticos y Constitucionales.‍Ceballos-Escalera and García-Mercadal, 2003: 74)^‍‍[22].

III. EMPIRICAL ANALYSIS: THE BESTOWAL OF THE MAIN ORDERS AND MEDALS TO MEN AND WOMEN IN SPAIN[Up]

2. Model[Up]

In order to check whether there is a statistically significant difference between the percentage of orders bestowed to women and to men (and after having made sure that in all cases the female percentage lies below that of their male counterpart, see Annex 1) a simple ANOVA model is run, according to the following hypotheses:

It has been previously checked that the comparison is robust, that is, that the Levene statistic proves the necessary homogeneity of variances, a condition required for validating the results (see Annex 2a)^‍‍[27]. In order to avoid a distortion (“flattening”) of the means by years with no awarding, zero values have been neglected.

IV. CONCLUSIONS AND RECOMMENDATIONS[Up]

Civil orders and medals are the most important positive incentives to merit and virtue with which a nation can distinguish its citizens. Therefore, special care should be taken in guaranteeing that—in mean terms—any gender discrimination in the number of bestowals is avoided. However, our evidence in the case of Spain—both at the national (including all orders in all their classes) and the regional level—the percentage of awards to women lies (at a statistically significant level) below that of men, up to the point that it may be affirmed that the given bias is structural. Even worse, in some cases there is no proof that there is a significant convergence over time.

In this sense, it is significant that the UK, France and Germany have at some moment in time adopted measures to favour equality in the bestowal to women and men. So, for example, between 1965 and 2004 the percentage of orders awarded to women in Great Britain shifted from 16 to 35 (Philips, Sir H. (2004). Review of the Honours System. London: Cabinet Office.‍Phillips, 2004:73).^‍‍[42] Also, the German Bundesverdienstkreuz (Der Bundespräsident (2017). Verdienstorden der Bundesrepublik Deutschland. Bundespräsidentialamt. Berlin.‍Der Bundespräsident, 2017)^‍‍[43] went up from 16 to 25 in 2007 %, when the former President of the Federal Republic, Horst Köhler, adopted a politic that favoured awarding to women, after what this valued raised to 30.5 % in 2009 a value that over the last decade has gone up to 35 % (2019)^‍‍[44], although during this period the overall number of bestowals was reduced by 40 %^‍‍[45], as the German presidency sought to avoid an “inflation” of orders, thus imposing much more restrictive bestowing, especially supressing any “awarding by custom” (Müller-Neuhof, J. (2016). Zu wenig Frauen, falsche Verdienste-warum der Bundespräsident immer weniger Orden verleiht. Der Tagesspiegel, 23-11-2016. Available at: https://bit.ly/2zf6WVu‍Müller-Neuhof, 2016) as still occurs in Spain with the Order of Carlos III and others. For its part, the Légion d`Honneur (De Chefdebien, A. and Galimard-Flavigny, B. (2002). La Légion d’Honneur: un ordre au service de la nation. Paris: Gallimard.‍De Chefdebien and Galimard-Flavigny, 2002)^‍‍[46] shifted from a feminine quota of 8 % in 1985 to 18 % in 2006, showing from then on a clear tendency towards a more equal distribution between genders, as shown by the fact that already in 2005 the numbers of women proposed for the Légion reached 50 %, accomplishing exact equality in 2019 when the order was bestowed “réparties à parité exacte hommes et femmes”^‍‍[47]. However, the French case seems to be the only one in which equality has really been reached. Instead, both in the UK and Germany, the percentage of bestowing to women seems, after an initial impulse, to have become stuck around 35 %, a value close to that presented in Spain by the Order of Alfonso X, the Order of the Constitution—the only one to reach parity between men and women—and the Order of Carlos III in the categories of “Grand Crosses”. However, and despite their shortcomings, those measures have evidently been shown to be effective, if only to a certain degree. Thus, it seems quite astonishing that Spain has to date not adopted any measure to favour gender equality in the bestowing of civil orders^‍‍[48].

Which measures should then be implemented to overcome this bias against women? Basically, we account for three different options. The first, and most efficient one, consists in imposing female quotas, legally setting that 50 % of all bestowing should be to women. However attractive this measure might seem due to the immediacy of its effects, this option should be treated carefully as it might cause a number of bestowals not by merit but by quota, thus discrediting not just the bestowal to women but, in general, the underlying merits rewarded by the order.

A second option, less effective than the previous, consists in the Head of State recommending a rise in the bestowals to women, such as occurred in Germany, or has happened in Spain in the reviewed regulations for the Royal Academies. This option avoids mere “quota bestowal” but may be very slow in its implementation.

Finally, a third option, and the one favoured by the authors of this article, consists in establishing a 50 % gender quota in the number not of bestowing but of proposals, out of whom the corresponding committee selects whom to award to according to pure criteria or merit. This option avoids any risk of unjustified bestowal and will accelerate convergence towards overall (i.e., average) parity in a relatively short time. However, in order for the result to be successful, it has to be accompanied by three additional requirements: an absolute limit of bestowals should be set so as to avoid duplicating the number of proposals/bestowing, as this would imply an inflation of awards and, thus, a devaluation of the merits underlying their bestowal (see the above case of Germany); and a revision of some sections of certain orders (such as the Order of Agrarian Merit in its “Fishery” section) where women might be, in fact, underrepresented; finally bestowal “by custom” should be suppressed. Germany has given a good example of the latter: originally, all members of the Bundestag (the parliament) received the medal of the Bundesverdienstkreuz; currently it can, at most, be bestowed upon one-third of the members of the parliament, after careful revision of each one’s specific merits over the whole legislature. Finally, Spanish Laudative Law suffers from a proliferation of regional orders that complement the already complex system on national awards, without any agency coordinating them.

Regarding the need for a general revision of Spanish Praemial System, we share the proposals of reform pointed out by Ceballos-Escalera and García-Mercadal (Ceballos-Escalera, A. and F. García-Mercadal (2003). Las Órdenes y Condecoraciones civiles del Reino de España. Madrid: Boletín Oficial del Estado; Centro de Estudios Políticos y Constitucionales.‍2003: 47-‍48).^‍‍[49] These would allow the Spanish System of Civil Orders to be strengthened again, correcting its current inflationary, discriminating and too often erratic application:

It might be stressed that in spite of b), the reactivation of orders, such as the recent restoration of the Medal for the Merits in Research (Medalla al Mérito en la Investigación)—originally bestowed in 1980—might be very useful.

Adopting these measures will not only favour a more equal but also a more virtuous society.