Equality before the law is a very important principle in the legal system, all judicial officers take an oath to implement the law without fear, favor, affection or ill will. Judges, Lawyers, and all the judicial officers have an obligation to treat people fairly regardless of gender, ethnicity, sexuality, religious affiliation and social economic status. Equality can be split into two parts, we have formal equality and substantive equality, the laws we have in Australia are a mixture of both. Equality is sometimes misunderstood as same treatment. In some cases, discrimination can result from applying the law across the board in the same way. For, example murder is punishable by life in prison. But the law would not be fair if it treated murder or killing done by children who have gone through abuse the same as adults, or battered women who kill their husbands.
“discrimination can arise just as readily from an act which treats as equals those who are different as it can from an act which treats differently persons whose circumstances are not materially different.” Justice McHugh
what is Formal Equality
Formal equality is a system of thought that treats every person the same, formal equality of opportunity, for example, is a view that formal rules should not hinder people from attaining goals. The view here is that having laws that do not take immutable characters will limit discrimination. Formal equality makes things like segregation illegal and hiring practices that only favor certain groups of people also illegal. But formal equality only works if the whole culture is perfect and homogenous. For example, Western governments have enacted a lot of laws essentially making discrimination, racism, sexist, and homophobia illegal, but the law does not change individuals conscious. Based on the laws that have been put in place, it is safe to say that systemic recrimination does not exist anymore, but can individual people within that system be racist and sexist? Yes. Formal equality does not take into account private informal discriminatory laws. For example, everyone is free to join the military, provided they meet criteria, under the rules, disabled people are not able to serve for obvious reasons and people above a set BMI or certain job position are allocated exclusively to aboriginals like an aboriginal liaison.
By enlarge these are good regulations, it is tricky though to differentiate between regulations and discrimination. For example, an article that appeared in the BBC with the headline “ fat people earn less and find it harder to find work” the term for this is Sizeism which is discrimination based on the person’s size. Taking the same logic we could say that the national basketball league discriminates against short people because they favor people of a certain height or the NFL discriminates against skinny people. There are certain jobs by virtue of what is involved makes it so that the hiring process favors certain immutable characters. No one can imagine LeBron James being a jockey because horse racing as sport favors short people.
Formal equality if applied well ensures that only the best people get hired for positions, for example, no one cares about the sex or race their doctor so long the doctor is competent in the skill they are performing. Companies cannot always make concessions to cater for individual differences and inabilities. A nurse with has a debilitating joint condition like Rheumatoid arthritis would not able to work effectively in emergency nursing than say a young lady in her twenties with no health issues. If these two were applying for the same position, who do you think will get the job. Conversely, there are certain jobs that only women are suited for, and it is not saying men can’t do the Job, it is saying but women are better suited to be certain roles. like being a minister for women affairs or being a midwife. And there are certain jobs that are especially suited for males E.G, deep seal oil drillers are mostly Men if not all.
Substantive equality, on the other hand, is different, this is a system of thought that takes into account societal inequalities in the way laws are made. Substantive equality starts from the premise that in order to have equality we have to treat people differently. In my view, substantive equality works better in the criminal justice system, for example, substantive equality has made it so that sentencing is not too punitive. For example, battered women who kill their husbands in most cases will have a motive, the intent and would have planned to kill. Under normal circumstances, this is premeditated murder, but judges will give lighter sentences because society has agreed that women who go through abuse will often act differently from women that have not through abuse. And it would be unfair for the law to treat women in the same way as cold-blooded murderers.
“Everyone who comes into contact with the court system (whether represented or self-represented) must not only be treated fairly and without discrimination, but also believe they are being treated fairly and without any form of discrimination — otherwise, public confidence in the judicial system will be compromised.” – Justice McHugh
Finally, as we have analysis equality is not very straightforward, formal equality and substantive equality are polar opposites. We do not want the law to treat us the same because we are not the same but we also don’t want the law to favor certain groups of people at the expense of other people. Finding a balance is the most difficult part.
Becker, M. (1998). The Sixties Shift to Formal Equality and the Courts: An Argument for Pragmatism and Politics. Wm. & Mary L. Rev., 40, 209.
Barnard, C., & Hepple, B. (2000). Substantive equality. The Cambridge Law Journal, 59(3), 562-585.
Monk, D. (2011). Sexuality and succession law: Beyond formal equality. Feminist legal studies, 19(3), 231-250
Mendelberg, T. (2017). The race card: Campaign strategy, implicit messages, and the norm of equality. Princeton University Press.