Equality Before the Law Equal Dignity, Wrongful Discrimination, and the Rule of Law
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Biographical note
Michael P Foran is Lecturer in Public Law at the University of Glasgow, UK.This book presents a defence of the value of equality within law which is neither purely formal nor an entirely speculative theory of justice. It does this by combining a theoretical with a doctrinal project.
At the theoretical level, it argues that there is a distinct and meaningful conception of equality before the law which can be separated from concerns of distributive justice. It therefore rejects the claim that legal equality is merely formal. Rather, it is grounded in the equal moral status of all legal subjects. The demand that individuals be treated in accordance with the principle of equality before the law, then, requires that they not be treated in ways that would deny their equal moral standing. This principle of moral equality is the fundamental normative basis of the rule of law.
This general claim is applied, in the second half of the book, to antidiscrimination law. It is argued here that the wrong of wrongful discrimination consists in implicit or explicit denial of the equal moral status of legal subjects. This is also a core wrong that the common law seeks to remedy via judicial review and is thus intimately tied to legality itself.
In the final chapter, these two strands are brought together to defend the idea that law is a public asset which must be directed towards advancing the best interests of those it governs. This kind of equality principle, one which sets the outermost limits of the use of public power, must look beyond individual rights claims. It manifests a fundamental commitment to substantive equality – manifest in a commitment to collective flourishing – without tying it to group-based distributive concerns which arise from distinct social and historical contexts and require the exercise of political authority to choose among a range of plausible options for their resolution.
Introduction: Constitutional Value and Constitutional Theory
1. Legal Equality: Form and Substance
2. Legal Equality and Social Policy
3. Equal Dignity and the Rule of Law
4. Discrimination: The Concept
5. Discrimination and Judicial Review
6. Indirect Discrimination and Substantive Equality
7. Political Discretion and the Common Good
Thought-provoking works of scholarship addressing diverse aspects of constitutional theory in a concise and crystalline manner.
Authors writing for this series cover a wide range of perspectives, methods, and regions, to enhance our understanding of constitutions as central institutions of modern public life. Taken together, the books in this series aim to challenge established wisdom and advance original ideas.
This series is a natural home for books interrogating the concepts and structures of constitutions on the national, the supranational and the international level. Its guiding philosophy is that the task of constitutional theory is not only to delineate the basic structures of government and to protect human rights, but also more broadly to offer methods for grappling with the social, political, and economic problems societies face today.
The series is open to theoretical, normative, analytical, empirical and comparative approaches, stemming from legal studies as well as from political philosophy and political science. In its ambition to become a global forum for debate about constitutional theory, the series editors welcome submissions for monographs as well as edited volumes from all parts of the world.
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Series Advisory Board:
Virgílio Afonso da Silva, University of São Paulo, Brazil
Trevor Allan, University of Cambridge, UK
Cora Chan, University of Hong Kong, Hong Kong
Rosalind Dixon, University of New South Wales, Australia
Rainer Forst, Goethe Universistät, Germany
Gabor Halmai, European University Institute, Italy
Tarunabh Khaitan, University of Oxford, UK
Vanessa MacDonnell, University of Ottawa, Canada
Yaniv Roznai, Harry Radzyner Law School, Israel
Fred Schauer, University of Virginia, USA
Mila Versteeg, University of Virgina, USA