What is Equality Before the Law
At its most fundamental level, equality before the law refers to the principle that all people, regardless of wealth, status or personal characteristics, are equally subject to legal codes which are fairly and equally applied and enforced. While the idea has its roots in commons law, equality before the law has evolved into a key principle of modern democracy and is now largely considered a well-established aspect of both common law jurisprudence and international human rights law. In many countries, equality before the law is enshrined in their constitutions and is often subject to strict scrutiny from courts to ensure that it is upheld by both government officials and citizens alike.
In these more developed systems, equality before the law assumes that all individuals, irrespective of their social or economic status, are subject to the same set of laws and are expected to comply with them according to the same standards. If, for example, a country has laws banning ballot selfies at polling stations, those laws apply alike to both its President and its poorest citizen. The concept of equality before the law, however , is not limited to the application of legal codes. It also entails the concept that all are entitled to fair hearings and equal treatment when they enter a court of law. In this sense, equality before the law is closely related to the rule of law, which can generally be understood as the principle that no one is above the law.
But the principle of equality before the law assumes no boundaries. Its broad scope dictates that no group or individual, no matter how powerful or wealthy, is above the law. As a consequence, equality before the law not only protects those to whom the system is applied, but it also protects the integrity of the system itself. It assumes that no individual and no group is beyond reproach. It places a check on individual power by ensuring that those who are charged with upholding the law cannot act outside of it, even when they are the highest ranking government officials in a country.
As a result, the principle of equality before the law is a desirable one to uphold in any legal system. It requires those charged with carrying out the law to do so with respect to everyone, including themselves. For legal professionals, it may even be considered the most important idea in modern jurisprudence.
Evolution in History
The origins of the principle are found in Roman Law and in a number of constitutional documents, though it emerged as a discrete doctrine only in the late eighteenth and early nineteenth centuries. It is now regarded as a fundamental tenet of the rule of law and a conspicuous element of constitutionalism. Its emergence is closely linked with both the French Revolution and the development of constitutionalism in the United States; however, its actual incorporation into the Constitution of these United States was neither simple nor fastidious.
The Declaration of the Rights of Man and Citizen, adopted by the National Assembly of France in 1789, guaranteed equality before the law (art. 6). However, an effective system of justice that would allow the principle to take root was not developed in France until the drafts of the Napoleonic Code were completed in 1811. It took another four years before the Napoleonic Code came into force. The adoption of the principle specifically in the Constitution of the United States of America is traced to the special circumstances that had given rise to the 1776 Declaration of Independence from Great Britain. It was this Declaration that was the earliest document to contain something resembling the now-familiar phrase that "all men are created equal." The phrase was utilized a second time in the NW Ordinance of 1787. Further attempts to incorporate the equality principle into official American legal documents would have to await the drafting and ratification of the US Constitution. Translated in its modern form into legalistic jargon, the relevant clauses appear in Article IV, Section 3, Clause 1. Article I, Section 10, Clause 1 disallows any state from taking away "life, liberty, or property, without due process of law." Designed ultimately to prohibit restrictions on the ability of citizens to enter upon contracts, making sure that they would not be subject to different rules, the Assembly decreed that "the law should be the same for all, whether it protects or it represses."
The Fourteenth Amendment is now the most significant point of reference for the constitutional principle of Equality Before the Law. It is through this Amendment that equality criteria currently find their most authoritative expression. In particular, due process, the right of privacy, and whatever notions of special protections and classifications the courts presently recognize, all derive directly from it.
International Human Rights and Equality Before the Law
International human rights law recognizes the principle of equality before the law in a number of related instruments. Article 1 of the Universal Declaration of Human Rights requires states to secure the right to equality before the law in domestic legal systems, as does Article 26 of the International Covenant on Civil and Political Rights (ICCPR) to which over 170 states are party. The two international human rights covenants require states to ensure that all individuals are equal before and have an equal right of access to its courts and tribunals. Article 1 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD) requires states parties ‘to undertake to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law . …’ The Committee on the Elimination of Racial Discrimination has stated that: ‘The obligation to ensure equality before the law is one of the fundamental obligations falling upon States parties. In this regard, the Committee recalls General Recommendation No. 31, paragraph 12 which states that States parties have a responsibility to ensure that "there must be no discrimination in the administration of justice and in the administration of laws".’
Use of the phrase ‘without distinction’ in the two international conventions also highlights the general non-discrimination directive that explicitly links equality before the law with prohibiting differential treatment through the application of the law. The Convention on the Rights of Persons with Disabilities is another international instrument guaranteeing equality before the law and non-discrimination to persons with disabilities.
The requirement to ensure equality and non-discrimination in the administration of the law under Article 14(1) of the European Convention on Human Rights (ECHR), Article 4 of Protocol No. 7 to the ECHR, and Article 26 of the African Charter on Human and Peoples’ Rights, among others, further confirm the universal obligations of states to guarantee equality and non-discrimination through their legal systems. Article 3(1)(a) of the Inter-American Convention against all Forms of Discrimination and Intolerance requires states to guarantee all persons equality before the law, and to prohibit all forms of discrimination.
Equality Before the Law in Comparative Law
Equality before the law is a legal principle observed in most legal systems, both domestically and internationally. This principle encompasses a range of interpretations and applications, depending on a given country’s culture and governing bodies.
In the United States, the Fourteenth Amendment to the Constitution guarantees equal protection of the laws to all persons within the jurisdiction of the government. This has served as the primary vehicle by which citizens’ rights to nondiscrimination may be vindicated. In school desegregation cases, for example, the Supreme Court has extended the Equal Protection Clause to school attendance. This clause has also been stretched to cover non-school situations where racial segregation violates equal protection, i.e. housing or private businesses.
A somewhat different interpretation is found in the English common law under the defense of necessity. In this case, an individual can use force (up to the point of required force) for specific purposes which usually include self-defense, the defense of others, prevention of a crime and preventing unlawful arrest. However, necessity will not justify a person in committing homicide, and even minor restrictions on rights should be resisted unless absolutely necessary.
The concept of equal rights in federal territories of India is expressed as the constitutional provision of Right to Equality Articles 14-18, of the 1949 Constitution of India, which are written into the Part III Freedom of the Individual and the Equality Before Law. Article 15, according to the Supreme Court of India, prohibits any discrimination by the state against any citizen on the grounds of religion, race, caste, or sex. Article 16 forbids discrimination in employment. Article 17 prohibits untouchability. It was held in State of U.P. vs. Raj Narain [(1975) 4 SCC 428], that the character of ‘untouchability’ as used in art. 17 of Indian Constitution would denote any treatment or practice, by a person being a member of a higher class or a higher community to a member of a lower class, comprising a lower community. Article 18 of the constitution prohibits titles of nobility.
The concept of equality before the law and equal protection of the law has been enshrined in the Constitution of South Africa under section 9, which is the equality clause. The section provides for equality to all persons and that promotion of achievement shall be based on merit, skills or abilities. Section 9 guarantees all persons the right to equality before the law, equal benefit of the law and equal protection of the law. It also provides the manner in which to realize equality based on the outcome of measures taken based on experience to ameliorate disadvantage. The right to equality is both a value and a right. The right to equality is an unqualified right.
All sections of the Constitution guarantee equality before the law. Section 1(c) of the Constitution of the Republic of South Africa states that the Republic is a sovereign democratic State founded on the values of human dignity, the achievement of equality and the advancement of human rights and freedom. Equality is also a value underpinning the Constitution (section 1(c)). Equality before the law is enshrined in the Constitution. Section 9 of the Constitution guarantees that every person shall be equal before the law and the law applies equally to all persons.
Controversy and Issues
Despite the clear principles underlying equality before the law, difficulties arise in its practical application. The first challenge to this fundamental tenet of democracy comes from those who question whether equal before the law is the proper legal standard. From this perspective, the rule of law can be restrictive, inhibiting efforts to rectify past injustices and targeting social, political, and economic retribution against enemies of the state or members of minority groups. In contrast, proponent’s of equality before the law argue that if the law is to apply differently to different people, then the very basis of democracy-that citizens are equal before the law-is undermined.
Furthermore, the actual application of equality before the law sometimes falters due to the prejudiced nature of legislators, law enforcement personnel, or members of the judiciary. According to the Center for Constitutional Rights, in the U.S. , "communities of color suffer disproportionately from the enforcement of laws." Black men are twenty-five times more likely to be incarcerated than white men, and since 1980, the "war on drugs" has led to a 12-fold increase in the number of imprisoned individuals. Opponents also point to the notion that black-white racial disparities extend to all levels of the criminal justice system, from arrest rates to sentencing: "African Americans are overrepresented among the convicted, serving longer sentences, receiving less favorable treatment in plea bargaining, and undergoing harsher parole revocation procedures, in addition to facing higher incarceration rates."
Further exacerbating the issue are differences in economic status-which contribute to disparate access to legal services-as well as street-level bureaucracy. For example, an impoverished individual may rely on a public defender-whose large caseload reduces the quality of representation-or may be unable to meet demands imposed by the bureaucracy. The result is both economic and legal depravity.
Contemporaneity and the Future
Section IV: Recent Developments and Future Directions
Recent developments in case law surrounding equality before the law may indicate a future trend towards greater segmentation of rights in immigration decisions, based on the relative "degree of commitment" of the immigrant applicant to Canada. In Lacasse v. Canada (Citizenship and Immigration), Justice Mactavish concluded that citizenship is a right of "fundamental importance," and that the government cannot "reauthorize" citizenship to a Canadian citizen that has renounced their status, even on humanitarian grounds. While earlier jurisprudence had clearly articulated an ‘exceptionality’ in the Canadian Charter of Rights and Freedoms (the Charter) section 6(1) right to enter, remain, and leave Canada, in Lacasse, the Federal Court appeared to advance that section 6(1) right and the section 11(d) presumption of innocence in an identical fashion.
That said, the Federal Court has also made recent rulings in which it clarified that the provisions of the Act should be interpreted broadly, including the granting of temporary resident permits (TRPs). The provisions concerning TRPs were not amended, but the Federal Court has clarified that the power to issue a TRP under A28 may always be exercised. This may give the government with heightened opportunity to grant discretionary relief to persons previously deported in what it regards as exceptional circumstances.
Relatedly, the Federal Court of Appeal recently affirmed in Vavilov v. HMQ that Lonchar’s principles continue to apply, following the Supreme Court of Canada decision in Dunsmuir v. New Brunswick, and that charter jurisprudence related to judicial review remains unaffected by the latter.
Legal developments in the field of equality before the law have thus presented a somewhat mixed set of developments in Canada. The only apparent trend seems to be in the area of recognition of the importance of situational context in applying provisions that protect human rights in situations of deportation and exclusion. The danger though, is that emphasis on situational context, if not carefully limited to exceptional cases, may create a tiered system of human rights protection that may appear to undermine the universality of the Charter and human rights law in Canada.
Implications To Society and People
The principle of equality before the law, also known as equality under the law or equality in the eyes of the law, is a fundamental aspect of legal philosophy and jurisprudence. At the heart of this principle is the notion that every individual, irrespective of social status, wealth, race, or personal attributes, should be treated equally within the legal framework. This concept plays a critical role in modern jurisdictions and has far-reaching implications for both society as a whole and for individual citizens.
The impact of equality before the law on society is considerable. It functions as a cornerstone of democratic governance, underpinning the idea that no one is above the law. When a society embraces the concept of equality before the law, it helps to foster a sense of community amongst its members. There is an expectation that justice will be applied uniformly and fairly across the board, which in turn contributes to a more just and fair society. If individuals believe that they will be treated equally by the law, they are more likely to respect the authority of the legal system and trust in its decisions .
Moreover, equality before the law has a direct bearing on the administration of justice. It ensures that legal protections extend to all citizens without exception, and it permeates various aspects of the legal process, from law enforcement to judicial proceedings. For instance, the equal protection clauses in many national constitutions seek to guard against discrimination, thereby affording all individuals the same legal protections.
On an individual level, equality before the law offers security and assurance. It provides each person with the confidence that in their interactions with the law, whether as a victim, a defendant, or in any other capacity, they will be treated fairly and without bias. Furthermore, it facilitates access to legal remedies, ensuring that everyone has equal recourse to justice and protection of their rights. Where there is genuine adherence to equality before the law, it often results in a deep-seated faith in the judicial system and can be a formative part of an individual’s perception of their relationship with the state.