2 October 2006

"Equality" and "equality"?

> NZHerald: Peters' claim Brash comments 'evil' wins backing > NZHerald: Brash stirs up Maori 'storm' The "one law for all" mantra has once again hit the headlines. I think one of the most disappointing aspects of public dialogue on this issue is the failure of the left and social democratic parties to meaning engage. Unfortunately, the discussion of equality is framed on "formal equality", that is, consistent or equal treatment. However, that is not the only conception of equality. For example, increasingly prevalent is a focus on "substantive equality" where the focus is on achieving equality of results, or a more limited form, where the focus is on equality of opportunity. Sandra Fredman explains the differences in Discrimination Law (2002, OUP):
How do we explain then how equal treatment can in effect lead to inequality, while unequal treatment might be necessary in order to achieve equality? The apparent paradox can be understood if we accept that equality can be formulated in different ways, depending on which underlying conception is chosen. Equality of treatment is predicated on the principle that justice inheres in consistency; hence likes should be treated alike. But this in turn is based on a purely abstract view of justice, which does not take into account existing distributions of wealth and power. Consistency in treatment of two individuals who appear alike but in fact differ in terms of access to power, opportunities or material benefits, results in unequal outcomes. An alternative conception of equality, therefore, is based on a more substantive view of justice, which concentrates on correcting maldistribution. Such a principle would lead to a focus on equality of results, requiring unequal treatment if necessary to achieve an equal impact. Alternatively, the focus could lie on facilitating personal self-fulfillment, by equalizing opportunities. This differs from both the above conceptions, in that a notion of equality which stresses equal opportunities is consistent with inequality of treatment and inequality of results. Unequal treatment might be necessary to equalize the opportunities of individuals, but once opportunities are equal, different choices and capacities might lead to inequality of results. The choice between different conceptions of equality is not one of logic but of values and policy. Equality could aim to achieve the redistributive goal of alleviating disadvantage, the liberal goal of market or contractual equality and the political goal of access to decision-making processes. It is striking that, despite the widespread adherence to the ideal of equality, there is so little agreement on its meaning and aims

I've uploaded the chapter from which the extract is drawn: > Fredman, Discrimination Law

I know it's harder to sell "substantive equality" to the general populace because it requires a deeper analysis and doesn't fit short sound-bites. However, if the social democratic vision of substantive equality - which underpins much of the equality jurisprudence in our legal system and our comparator nations - is to be maintained, we need to do a better job at engaging in the discussion and reminding the public that Brash doesn't have a monopoly on the equality card. I suggest that rather than rushing off to revisit all policies for "need, not race", left and centre-left parties ought to be standing firm and reminding the public that "equality" is a contested concept and substantive equality (or equity) is a genuine and legitimate approach to equality under the law.

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Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"


This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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