Equality Before the Law

Equality provisions appear in international conventions and in the human rights documents of many countries. For example, Article 7 of the Universal Declaration of Human Rights holds that "all [people] are equal before the law and are entitled without any discrimination to the equal protection of the law." Article 3 of the International Covenant on Civil and Political Rights (ICCPR) provides that states must "undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights" contained in the Covenant, whereas Article 2 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) requires its signatories to guarantee that the rights enumerated in this Covenant "will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." Article 14 of the European Convention on Human Rights contains language almost identical to that of the ICESCR.

Perhaps the most interesting equality provision is that contained in the Canadian Charter of Rights and Freedoms (1982), which in Section 15(1) provides for equality "before and under the law" as well as the right to "the equal protection and equal benefit of the law" without discrimination based on "race, national or ethnic origin, colour, religion, sex, age or mental or physical disability."

Several of the provisions mentioned here are significantly different from the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution, which lists in detail prohibited forms of discrimination. These variations represent two interesting legal developments. First, the articles themselves establish the categories of discrimination and are not subject to judicial interpretation of broad language, as is the case with the equal protection clause, from which U.S. Supreme Court justices have had to develop a list of categories. Second, the clear specification of categories may make it more difficult for future courts to include previously unforeseen forms of discrimination. Is it better for certain kinds of discrimination to be identified and included in laws by elected representatives or judges? The answer seems to be contingent on one's national or political perspective.

The other interesting feature of the Canadian Charter is its Section 15(2), which makes clear that the earlier section guaranteeing equality before the law and equal protection, Section 15(2), "does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability." As a result of this specific provision in the Charter, Canada was able to mandate affirmative action programs, policies that have been a source of considerable legal controversy in the United States since their inception in the 1960s.

Other countries have followed a similar course. For example, Articles 15(4) and 16(4) of the Indian Constitution provide for affirmative action programs for the disadvantaged in public educational institutions and in government employment.

The strong preference of most U.S. judges to focus on the principle of individual equality (whereby every person ought to be treated alike) is not always shared by judges in other countries. Both the Canadian and Indian legal systems are more concerned with group equality, whereby outcomes are often assessed in terms of the relative treatment of groups rather than individuals. In India, for example, dalits (untouchables) have been the chief beneficiaries of affirmative action given their continuing negative treatment as a result of the traditional Hindu caste system. A number of affirmative action provisions based on group equality date back to the founding of the Indian nation in 1949, but subsequent decisions of the Indian Supreme Court go even further. For example, its decision in 1976 to support other forms of affirmative action stated that: "Equality means parity of treatment under parity of condition. Equality does not connote absolute equality." The opinion of Justice K.K. Mathew of the Indian Supreme Court in State of Kerala v. Thomas makes the case for looking beyond simple individual equality:

If we are to be treated in the same manner, that must carry with it the important requirement that none of us should be better or worse in upbringing or education than anyone else which is an unattainable ideal for human beings of anything like the sort we now see. (1976, pp. 513–4)

Such analysis leads one to conclude that the legal principles of equality require governments to eliminate all sources of inequality and "to provide for opportunities for the exercise of human rights and claims." (1976, p. 516) This particular view, however, is unpopular in certain quarters, especially among many U.S. citizens.

See also: Equal Protection of the Law.

bibliography

Galanter, Marc. Competing Equalities: Law and the Backward Classes in India. Berkeley: University of California Press, 1984.

Jackson, Donald W. Even the Children of Strangers: Equality Under the U.S. Constitution. Lawrence: University Press of Kansas, 1992.

Loenen, Titia, and Peter R. Rodrigues. Non-Discrimination Law: Comparative Perspectives. The Hague, The Netherlands: Kluwer Law International, 1999.

Donald W. Jackson