The Law's Equality: An Ideal Worth Fighting For

The concept of equality before the law, also known as equality under the law, equality in the eyes of the law, legal equality, or legal egalitarianism, is the principle that all people must be equally protected by the law. The idea that laws should apply equally is based on the understanding that all people, regardless of their status in society, are subject to the same laws and entitled to equal treatment and protection under the law. This concept, often referred to as no one is above the law, is a fundamental aspect of the rule of law and is essential for ensuring fairness, justice, and the protection of civil rights.

Equality before the law

The principle of equality before the law, also known as equality under the law, equality in the eyes of the law, legal equality, or legal egalitarianism, asserts that all people must be equally protected by the law. This principle demands a systematic rule of law that observes due process to ensure equal justice and protection for all, without privilege, discrimination, or bias.

The concept of equality before the law is deeply rooted in various philosophical, religious, and political traditions. It can be traced back to ancient texts such as the Bible, which states, "You and the foreigner shall be the same before the Lord: The same laws and regulations will apply both to you and to the foreigner residing among you." (Numbers 15:15f) Similarly, the ancient Greek philosopher Aristotle wrote, "It is more proper that law should govern than any one of the citizens... if it is advantageous to place the supreme power in some particular persons, they should be appointed to be only guardians, and the servants of the laws."

The idea of equality before the law has been a driving force in shaping legal and political systems worldwide. For example, the Magna Carta, sealed in 1215 between King John of England and the Barons, established the principle that all citizens, including the monarch, should be fairly and equally ruled by the law. This marked a pivotal moment in the development of the legal principle of equality before the law in England.

Today, equality before the law is recognised as a fundamental human right. Article 7 of the Universal Declaration of Human Rights (UDHR) states, "All are equal before the law and are entitled without any discrimination to equal protection of the law." This principle is enshrined in the constitutions of many nations and has been a catalyst for social and political change, such as the fight for civil rights for Black people and women in Nebraska, and the demand for equality in the South African Freedom Charter.

Freedom from discrimination

Equality before the law dictates that the law should be applied impartially and without bias, ensuring that no individual or group is privileged or discriminated against based on factors such as race, gender, religion, political beliefs, or social status. This principle aims to prevent arbitrary power and promote fairness and justice for all. It is closely tied to the idea of the "rule of law," which asserts that all citizens, including those in power, are subject to the same laws and held accountable for their actions.

The concept of freedom from discrimination in the application of the law has a long history. It can be traced back to ancient texts such as the Bible, which states, "You and the foreigner shall be the same before the Lord: The same laws and regulations will apply both to you and to the foreigner residing among you." Similarly, Aristotle, in his writings, advocated for the rule of law, stating that "it is more proper that law should govern than any one of the citizens."

The Magna Carta, signed in 1215, was a pivotal moment in the development of equality before the law. It established the principle that all citizens, including the King, were subject to the laws of the land, thereby limiting the power of the monarchy and protecting the rights of the people. This idea was further developed by philosophers such as John Locke, who wrote about freedom from governmental and private restrictions, and Thomas Paine, who famously stated, "in America, the law is king."

Today, the principle of freedom from discrimination in the application of the law continues to be a cornerstone of legal systems worldwide. It is recognized in international human rights law and national constitutions, which guarantee equality and non-discrimination on various grounds, including race, gender, religion, and nationality. This principle is also reflected in anti-discrimination laws and equal protection clauses, which aim to hold governmental bodies accountable for treating individuals equally and protecting their civil rights.

Rule of law vs rule of man

The idea that laws should apply equally is known as "equality before the law", "equality under the law", "equality in the eyes of the law", "legal equality", or "legal egalitarianism". It is the principle that all people must be equally protected by the law and that no individual or group should be privileged over others by the law.

The concept of "rule of law" is closely tied to this idea of equality before the law. Rule of law holds that both the government and citizens know the law and obey it. It stands in contrast to the "rule of man", which is a type of personal rule in an unaccountable society where rules change from ruler to ruler, and one person, regime, or group rules arbitrarily.

Rule of Law vs. Rule of Man

The debate between rule of law and rule of man has a long history, dating back to ancient Greek philosophy. Aristotle associated individual rule with the absence of reason, stating that investing a man with authority is like introducing a beast, as even the best of men in authority are liable to be corrupted by passion. He argued for institutionalized impersonal rules to govern, rather than personal fiat. Aristotle's view was later echoed by figures such as Alexander Hamilton, who wrote, "All men have one common original, they participate in one common nature, and consequently have one common right. No reason can be assigned why one man should exercise any power over his fellow creatures more than another, unless they voluntarily vest him with it."

In contrast, Aristotle's teacher, Plato, championed the rule of man, describing it as "a man capable of ruling better than the best laws". This view was also held by Thomas Hobbes, who advocated for a society led by an absolute monarch who would be free to choose and do what he thinks is best without taking into account the opinions of others.

The tension between these two viewpoints has persisted throughout history, with the majority of thinking favoring the rule of law. James Harrington, for example, penned the phrase "a government of laws and not of men" in 1656, which was later incorporated into the Constitution of Massachusetts. In the famous 1803 Marbury v. Madison U.S. Supreme Court case, Chief Justice John Marshall wrote, "The government of the United States has been emphatically termed a government of laws, and not of men."

Despite the preference for rule of law in theory, deviations from this principle have occurred, and absolute power has often led to corruption, as warned by Lord Acton's famous dictum, "Power tends to corrupt, and absolute power corrupts absolutely."

Equality of opportunity

The idea that laws should apply equally is often referred to as "equality before the law", "equality under the law", "legal equality", or "legal egalitarianism". This principle dictates that all people must be treated equally and protected by the law, regardless of their status in society, including their race, gender, religion, or any other attribute.

Equality before the law is a basic tenet of liberalism and is enshrined in constitutions and declarations of rights around the world. For example, Article 7 of the Universal Declaration of Human Rights states that "All are equal before the law and are entitled without any discrimination to equal protection of the law".

Equality before the law also requires a systematic rule of law that observes due process and provides equal justice for all. This means that laws must be applied impartially and without privilege, discrimination, or bias.

The concept of equality before the law can be traced back to ancient times, with similar ideas found in the Bible, ancient Greek philosophy, and Chinese legalism. The phrase "rule of law" itself emerged in 16th-century Britain and was popularised in the 19th century by British jurist A.V. Dicey, who described it as:

> [T]he absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government. Englishmen are ruled by the law, and by the law alone; a man may be punished for a breach of law, but he can be punished for nothing else.

The idea of equality before the law is closely tied to the concept of the "rule of law", which implies that every person is subject to the same laws, including those in positions of power such as lawmakers, law enforcement officials, and judges. This stands in contrast to the "rule of man", where one person or group wields power arbitrarily.

In summary, equality of opportunity is a fundamental aspect of equality before the law and the rule of law, ensuring that all people are treated fairly and impartially, with equal access to justice, protection, and opportunities under the law.

Consent of the governed

The idea that laws should apply equally is often referred to as "equality before the law", "equality under the law", "legal equality", or "legal egalitarianism". This principle asserts that all people must be equally protected by the law and that it should be applied to all people equally, regardless of their status in society, such as their race, gender, religion, or any other attribute.

The concept of "consent of the governed" is a fundamental principle of political legitimacy, suggesting that a government's authority is dependent on the consent of its people. This idea is closely tied to the notion of "equality before the law", as it implies that laws should be created and enforced with the consent and for the benefit of those governed by them.

The "consent of the governed" implies that the law should serve the interests and reflect the values of the people it governs. This concept is often associated with constitutional liberalism, which emphasizes individual rights, freedoms, and limitations on governmental power. It suggests that the power of the government is derived from the people and that laws should be created and enforced with their consent.

The idea of "consent of the governed" as a source of political legitimacy has been influential in shaping political systems and constitutions worldwide. It is a key principle in democratic societies, where the people are seen as the ultimate source of political power. This concept is also reflected in international human rights documents, such as the Universal Declaration of Human Rights, which states that "all are equal before the law and are entitled without any discrimination to equal protection of the law".

The "consent of the governed" is not just a theoretical concept but has practical implications for how laws are created and enforced. It suggests that the legislative process should be transparent and responsive to the needs and desires of the people. It also implies that the judicial system should be independent and impartial, ensuring that laws are applied fairly and equally to all citizens.

In conclusion, the "consent of the governed" is a fundamental principle of political legitimacy, suggesting that a government's authority is dependent on the consent and support of its people. This idea is closely tied to the notion of "equality before the law", as it implies that laws should be created and enforced with the consent of those they govern, ensuring that all individuals are treated fairly and equally under the law.

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