On Aristotelian equality, the fundamental right to equality, and governmental discretion.
It is a fundamental principle in democratic legal systems that governmental authorities must maintain equality and refrain from discrimination. (1) Despite the undeniable, pivotal role of the equality principle in public--constitutional and administrative--law, its contents and meaning, and thus the results of its application, remain among the least clear of legal issues. (2)
Discretionary powers generally enable government to choose among several possible decisions or actions (including a decision to refrain from acting). (3) When a valid act or regulation dictates to the governmental authority in explicit language how it must act, the principle of equality seems irrelevant. In contrast, when the governmental authority is granted discretionary powers, the equality principle becomes germane, as the authority must exercise such discretion within the scope of that principle. The equality principle, then, is part of the body of law dealing with the restriction and guidance of official discretion.
This essay examines the relationship between the principle of equality in constitutional and administrative law and other public law principles governing governmental discretion. Clarification of this relationship is important both for determining the rules concerning equality and for an evaluation and critique of these rules. This article tries to expose some basic elements of the relationship between equality and rules governing governmental discretion in democratic legal systems (such as the United States, Great Britain and Canada, whose case laws are referenced in the footnotes). Hence, it does not discuss in detail specific jurisprudence, including the constitutional doctrine of three levels of Equal Protection review. (4)
After briefly discussing the legal rules regarding governmental discretion, I attempt to differentiate between two definitions of the equality principle which are commonly accepted in law, and explore the relations between them. These are the Aristotelian definition of equality and the definition of equality as a fundamental human right. Finally, I examine the relation between the equality principle and the body of legal rules regarding governmental discretion. In this context I present the different ways in which the equality principle, under each definition, limits governmental discretion in constitutional and administrative law.
II. ON THE LAWS REGARDING GOVERNMENTAL DISCRETION
The laws regarding governmental discretion are intended to restrict and guide the exercise of discretion by government authorities. In many instances, even after applying these rules, the authority will still be able to choose between several different lawful decisions in a given matter. If this were not the case, of course, it would be meaningless to speak of discretion. Nevertheless, there may be circumstances in which the rules of discretion will dictate only one lawful decision. The fact that the power is discretionary does not imply that the authority will in all cases have a choice among several possible decisions or actions.
The notion of discretion underlying my argument below is grounded upon the following premises. First, the choice of decision is made on the basis of a series of considerations. Second, each possible decision reflects a different balancing of those considerations. Third, the law, either explicitly or through interpretation, determines which considerations shall be taken into account when exercising discretion ("the relevant considerations").
Under these three premises, the following general, primary rules of discretion may be posited. First, in choosing its preferred outcome the authority must take account of all relevant considerations. (5) Second, in making its decision the authority must not give heed to any motive, purpose or consideration which is not relevant. (6) Third, the authority must accord weight to the relevant considerations reasonably, or, at any rate, in a manner which is not arbitrary and capricious, extremely unreasonable or patently untenable. (7) When the exercise of such power may result in a violation of human rights, more specific rules may apply, which greatly restrict discretion, such as the requirements of clear and present danger or proportionality. (8)
What is the proper place of the principle of equality in the legal rules regarding governmental discretion? Is it an independent, self-sustaining rule, or merely an expression of the other rules? To answer this question one must first examine the substance of the equality principle.
III. THE NATURE OF THE EQUALITY PRINCIPLE: TWO COMMON DEFINITIONS AND THE RELATION BETWEEN THEM
A. Two Common Definitions
The equality principle, which is employed in a broad spectrum of fields, bears many definitions and meanings. (9) In law, one commonly accepted definition is that posited according to the way Aristotle (10) is explained by various scholars, (11) under which equality is giving equal treatment to equals and unequal treatment to those situated differently, according to the degree of difference (hereinafter "Aristotelian equality" or "the Aristotelian definition"). Those who employ the Aristotelian definition usually argue that no two people or situations are equal, and thus the equality to which the definition refers is equality in terms of the facts and circumstances relevant to the matter in question. In applying the Aristotelian definition, then, one must always ask, equal for what purpose? It seems that one of the central characteristics of the Aristotelian definition is its relativity. (12) Aristotelian equality deals with situations in which there are at least two possible decisions. A single decision which relates to one object or case cannot be "equal" or "unequal" under the Aristotelian definition. The requirement of treating similar cases similarly and different cases differently is meaningless unless there is something with which the decision may be compared. (13) However, one could conceivably claim that a single decision might violate Aristotelian equality, provided that hypothetical cases different from the one in question exist.
Alongside Aristotelian equality we find the notion of equality as defined in constitutional charters of human rights, in provisions dealing with the fundamental right to equality. (14) Such provisions entail equal treatment for all persons, regardless of any differences deriving from status or from particular categories such as religion, race, sex and so on. (15) For example, article 26 of the International Covenant on Civil and Political Rights provides, inter alia:
the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. (16)
Sometimes such definitions hold that in a certain matter all persons should be treated equally, without specifying any particular status or category, which must be disregarded. One example is the first paragraph of the Fourteenth Amendment of the American Constitution, which stipulates that "No state shall ... deny to any person within its jurisdiction the equal protection of the laws." There are also provisions which blend the two types of definitions, such as article 14 of the European Convention on Human Rights, which provides that "The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status." (17)
It may be noted that both Aristotelian equality and the "fundamental right" approach to equality are essentially expressions of substantive equality. Substantive equality has to do with the equality-promoting content of the rules which are applied. It is distinguished from formal equality, which has to do with the equal treatment of every person. Indeed, as mentioned above, the fundamental right to equality applies to cases in which it is held that, in a particular matter, every person must be treated equally. But in these given instances, and only in such instances, the presumption is that substantive and formal equality are identical.
In contrast with Aristotelian equality, the fundamental right to equality is relevant not only in those instances in which several decisions have been made, but may apply also to a single decision relating to a specific object or event. (18) For example, a public authority which rejects, on grounds of gender, the first candidate who seeks a newly-created position, may be deemed to be violating the fundamental right to equality regardless of gender even if it has not yet had the opportunity to consider the candidacies of members of the opposite sex for that same position.
B. The Relations Between the Two Definitions
Aside from the difference mentioned above, what is the relation between the fundamental right to equality and Aristotelian equality? The answer to this question depends on how one interprets the fundamental right. Three principal interpretations may be discerned. (19)
On one interpretative approach, which henceforth I will call the "relative prohibition approach," the prohibition against taking account of status or categories mentioned in the definition of the fundamental right to equality applies only when such characteristics are irrelevant. When, on the other hand, such classifications are relevant, then the fundamental right does not reject taking them into consideration. Similarly, even if the fundamental right mandates treating all persons equally in respect of a given matter, there is nothing that prevents differential treatment of persons who are different in a manner that is relevant to the matter in question. (20) For example, if the sex of a public official is relevant to carrying out the functions of his or her office, then consideration of the sex of candidates for that office will not be a violation of the fundamental right to equality. Under the relative prohibition approach, the fundamental right to equality is thoroughly consistent with Aristotelian equality, and overlaps (actually, is subsumed within) it.
There would seem to be two grounds for its existence. First, the fundamental right seeks to render suspect (21) the distinction based on a status or category mentioned in its definition, or any distinction between persons with regard to a particular matter, and perhaps even to create a rebuttable legal presumption that the distinction is based on irrelevant considerations, thus violating Aristotelian equality. Second, in many legal systems, including American law, the prohibition against violating fundamental rights has a constitutional character, and applies to the legislature itself, and in any case has greater force.
On the other hand, Parliament (as distinct from other public authorities) may be allowed a mere violation of Aristotelian equality which does not entail impairment of a fundamental right, or, even if such a violation were prohibited, the degree of severity attached to it and the resulting sanctions are more moderate than those that apply in the case of violation of fundamental rights.
Under the second possible interpretation of the fundamental right to equality, which I will call the "absolute prohibition approach," the prohibition against taking into consideration any status or categories mentioned in the definition of the basic right is absolute, as is the prohibition against distinguishing between different persons in respect of a particular matter. Under this interpretation, the Aristotelian terms of definition make the status or categories included in the definition of the fundamental right irrelevant (or, to put it another way, there is an irrebuttable presumption that they are irrelevant).
The same is true of the fundamental right to equality between persons with respect to a particular matter. In the Aristotelian terms of definition, this latter right determines (or creates an irrebuttable presumption) that all distinctions between persons in respect of a particular matter are based on irrelevant considerations.
Under the third possible interpretation of the fundamental right to equality, which I will refer to as the "balanced prohibition approach," the prohibition against taking these and other statuses or categories into account does not derive from their irrelevance in all cases. Similarly, the prohibition against distinguishing for purposes of a particular matter between persons does not derive from the notion that there may not be relevant differences between different persons with regard to that matter. The reason is that taking a particular status or category into account--even if it meets the requirement of relevance--or distinguishing between persons with respect to a particular matter, is likely to impair values or interests deemed worthy of protection.
For example, one may argue that there are differences between men and women, which to some degree may be relevant in certain matters. The fact that women become pregnant and give birth, and as a result need maternity leave, may be a relevant consideration for an employer who faces the choice of hiring a man or a woman. In any event, the fundamental right to equality without distinction on the basis of gender under the balanced prohibition approach has resulted in public authorities being restrained from denying positions to women solely on the grounds that they may become pregnant and give birth. This is because such a distinction between men and women violates the dignity of women, their interest in making a living, and other general private and social interests.
At the same time, fundamental rights, as well as the values and interests underlying them, are not absolute, and it is common to balance between those values and interests that the fundamental right serves against those which it harms. Thus, for example, if women are totally unable to fill the position in question, or if its execution by a woman will cause severe difficulties to the authority and the public (as is sometimes argued with regard to military service in battle units), the fundamental right to equality without gender differences may yield to the interests with which it conflicts.
Under the balanced prohibition approach, the fundamental right to equality is opposed, prima facie, to equality according to the Aristotelian definition. While Aristotelian equality consists, among other things, of treating differently-situated persons differently, the fundamental right to equality sometimes requires (subject to the balancing I have mentioned) treating differently-situated persons equally.
Nevertheless, one may claim that the contradiction between Aristotelian equality and the fundamental right to equality under the balanced prohibition approach is only apparent, and that the two definitions may be reconciled by taking a broader view of the matter to which these definitions are applied, and widening the range of considerations deemed relevant for purposes of the Aristotelian definition. For example, in the case of a woman expected to become pregnant applying for public office, one may argue that the relevant considerations include not only the authority's profits and the realization of the particular aims of that office, but also those considerations regarding the woman's dignity, her interest in earning a living and other general social interests which are injured by discriminating against women because they become pregnant and give birth. (22) If this is so, then a male should not be deemed a victim of discrimination because the public employer hires a woman in spite of the inconvenience, or even the losses, to be suffered when she takes maternity leave. The injury to the dignity of women and to other interests which will occur if she is rejected on these grounds are relevant considerations which the governmental authority must take into account if its action is to meet the standards posited by Aristotelian equality.
Similarly, it is possible to respond to the claim that not every violation of the fundamental right to equality amounts to a violation of Aristotelian equality, because the fundamental right applies to the first case of its type, while under the Aristotelian definition there is no violation of equality unless there are several cases. The answer to such a claim may be that widening the view of the matter can always bring about its examination under the Aristotelian definition. Take, for example, the case that I mentioned earlier regarding the government authority which rejects the first candidate (or perhaps several candidates) for a new position on gender-related grounds. This may be a violation of the fundamental right to equality with no differences based on gender, but, it would appear, not a violation of Aristotelian equality. One may apply the Aristotelian principle of equality to this example by comparing the rejected candidate to other candidates of the same--or the opposite--sex who were rejected or hired by other employers. At least from a practical standpoint, this broadening of perspective enables rejection of the "first case" label, hence enabling the application of Aristotelian equality to all cases.
Another apparent difference between the two definitions has to do with how they address the issue of affirmative action. One may argue that affirmative action is consistent with the fundamental right to equality, as it aims to promote the personal and social values and interests that underlie the fundamental right. For example, affirmative action for women aims to promote the dignity of women and other social interests. On the other hand, one may further argue, affirmative action--to the extent that it involves preference over others with the same or lesser skills--is inconsistent with Aristotelian equality. However, to this claim, too, one may respond that a broad perspective of the matter at hand, unfettered to any particular context, may result in the considerations underlying affirmative action being seen as relevant to the determination of equality or difference between the persons who are the object of the policy.
From a formal standpoint, then, there is no significant difference, if any, between the relative prohibition and the balanced prohibition approaches to interpreting the fundamental right to equality. Nevertheless, the balanced prohibition approach emphasizes the values and interests that deny a distinction based on a particular status or categories or any distinction between persons with respect to a particular matter. The import of this emphasis is the narrowing, and at times the negation, of the discretion actually granted to the governmental authority in choosing between alternative possible decisions--an outcome commonly seen in respect of fundamental rights. Thus, even though the balanced prohibition approach, like the relative prohibition approach, may be integrated with Aristotelian equality as a formal matter, I will distinguish between these two interpretations, as my focus in this article is the relation between equality and discretion.
The absolute prohibition approach is not reasonable, and in some cases it is inapplicable. For example, it would appear impossible to refer offers to donate sperm or to carry a fetus to women and men without distinction. I will therefore not continue to address it in this context. Rather, I will focus on the relation between the other two interpretations of the fundamental right to equality and the laws of discretion.
IV. THE RELATION BETWEEN ARISTOTELIAN EQUALITY AND THE LAWS REGARDING GOVERNMENTAL DISCRETION
Does the duty to maintain equality (or, conversely, the prohibition against discrimination) under the Aristotelian definition add to the three rules I have mentioned in my discussion of the laws of discretion, or, rather, does it overlap with them, in whole or in part?
A. The Duty to Consider All Relevant Factors
In certain cases there is an overlap between a violation of the duty to take all relevant considerations into account and a violation of the duty to observe Aristotelian equality. This is because a decision based on all of the relevant considerations may differ from a decision taken in equivalent circumstances but not based entirely on relevant factors. Indeed, each of the decisions violates Aristotelian equality by its very difference from the other. Even so, only one of the two decisions is illegal, and that is the second decision. The reason for its illegality is that it was taken in violation of the obligation to consider all relevant factors. Even if there were no other decision taken through consideration of all relevant factors, and all the other decisions taken in those circumstances failed to take a particular relevant factor into account, all of the decisions would be illegal on this ground. The discrimination entailed by the second decision is thus subsidiary to the non-consideration of the relevant factors.
Take, for example, two persons with similar criminal records who apply for a business license. The application of the first is denied due to his criminal record. The second applicant is granted a license because the licensing authority was unaware of his criminal record and thus did not take it into account. In such an instance one may say that the granting of the license violates Aristotelian equality. Yet, even if the instance in which the license was granted was the only one of its kind, and there was no other applicant with a similar criminal record who was refused a license, the granting of the license would still be illegal due to non-consideration of a relevant factor. Hence the discrimination is secondary in this case to the failure to consider a relevant factor.
B. The Prohibition Against Considering Irrelevant Factors
My remarks regarding the relation between Aristotelian equality and the duty to consider all relevant factors essentially apply also to the relation between equality under this definition and the prohibition against taking irrelevant factors into account. A decision that is defective because of an irrelevant consideration, such as one taken as a result of a bribe, is illegal whether or not there are other decisions regarding the same matter which are not based on the same type (or any type) of extraneous factor. Once again, the discrimination, in Aristotelian terms, inherent in a decision based on irrelevant factors is secondary to the defect involved in taking such improper factors into account.
Under the doctrine of administrative reasonableness, in its various manifestations where discretion is given to an administrative authority, there may be several reasonable balances among the various relevant considerations. Each of these reasonable balancings leads to a decision which is within "the zone of reasonableness." Such a decision is lawful, even if there are those who believe that a better, more effective or efficient decision might have been made. In contrast, a decision situated beyond the zone of reasonableness--that is, a decision based on an extremely unreasonable, capricious or arbitrary weighing of the various considerations--is unlawful, and may be nullified by the court upon due request to do so.
As with the previous rules that I have discussed--the duty to take the relevant factors into account and the prohibition against considering irrelevant factors--so, too, an unreasonable decision in the above sense may result in discrimination, but the defect of discrimination is subordinate to its unreasonableness.
However, the discussion of the relation between Aristotelian equality and governmental reasonableness does not end there. As a matter of pure theory, it would seem that there is a substantive incongruity between Aristotelian equality and the doctrine of reasonableness in the above sense in particular, and between Aristotelian equality and the very existence of governmental discretion in the other. For Aristotelian equality is, as mentioned above, the giving of equal treatment to equals and different treatment to those who are differently situated, according to the degree of their difference. That is, under this definition a decision is "equal" if it is "adjusted" to the circumstances of the case. It is not sufficient that equal decisions are taken in equal circumstances, nor that different decisions are taken in differing circumstances. Rather, in differing circumstances, the difference between the decisions must fit the difference between the cases completely, and each of the decisions must completely fit the case it addresses.
The requirement of absolute fit follows from the impossibility of several divergent decisions in equivalent cases being equivalent. As I have indicated, as a practical matter there are no cases in which Aristotelian equality is irrelevant. This means that a governmental authority that is subject to the duty to maintain Aristotelian equality will never have any discretion whatsoever. Any apparent discretion which it has will have to be exercised in such a manner that every decision must express equal treatment of equal cases or different treatment of different cases in exact proportion to their degree of difference. In other words, no discretion will remain. This result would appear to derive from a situation in which the number of possible decisions located within the zone of reasonableness--which may itself be infinite--is greater than the number of cases to which those decisions must be "fitted." This result is inconsistent with the very existence of administrative discretion. It is also inconsistent with the doctrine of administrative reasonableness, which recognizes, as mentioned above, the existence of a zone of reasonableness, within which (even if not outside of which) the authorities have power to choose among several decision options. Moreover, the incongruity between Aristotelian equality, on the one hand, and the existence of governmental discretion and a zone of lawful decisions, on the other, sometimes derives not from the fact that the possible decisions within that zone of reasonableness outnumber the cases to which those decisions must be fitted. Rather, it derives from the fact that the number of such decisions is less than that of such cases.
Take, for example, the granting of or refusal to grant a license to engage in a profession, with regard to which the law gives the authority discretion (assuming that the law does not allow for making the decision contingent upon conditions). The number of possible "cases," that is, the number of applicants for a license, with their various relevant qualifications, is close to infinite. In such circumstances, it is hardly possible to take decisions which are all equal under the Aristotelian definition--that is, decisions that treat different cases differently according to the degree of their difference--because there are only two possible decisions and a much greater number of different cases. In this example, then, one cannot avoid taking equal decisions in respect of different cases (nor, it would seem, could one avoid taking different decisions regarding cases in which the difference between them is less than that between two cases in which the same decision was reached). (23)
One must conclude, then, that it is not possible to reconcile the Aristotelian view of equality in its pure form with the existence of governmental discretion or a notion of a zone of reasonableness. It is also clear that, on the one hand, it is impossible, and in any case undesirable, to do away entirely with governmental discretion by its inability to withstand the pure version of Aristotelian equality. Such an approach is undesirable, among other reasons, because the practical result of it would be to transfer ultimate discretion in every matter handled by the government to the judiciary, which is neither practicable nor consistent with acceptable notions of the separation of powers. On the other hand, the principle of equality should not be sacrificed on the altar of governmental discretion. As I have mentioned, the principle of equality is one of several legal doctrines that restrict the discretion of governmental authorities. Even if the possibility that the equality principle replaces and cancels discretion is unacceptable, one must find ways in which Aristotelian equality may limit discretion.
V. EQUALITY UNDER THE ARISTOTELIAN DEFINITION AS LIMITING GOVERNMENTAL DISCRETION--"ADMINISTRATIVE EQUALITY"
Even in a system which recognizes governmental discretion, situations may arise in which, at first glance, a violation of Aristotelian equality will not be secondary to another type of violation of the rules regarding governmental discretion (i.e., non-consideration of a relevant factor, consideration of an irrelevant factor, or unreasonableness). In such a system a governmental authority (especially one which operates through several independent bodies or organs) may reach different decisions in equivalent matters, and each decision, were it examined in isolation, would be legal both in terms of its content and in terms of the considerations weighed.
This follows necessarily from the fact that the authority is discretionary. In such a case impermissible discrimination is neither related to nor conditioned upon the illegality of the considerations weighed or the unreasonableness of each decision taken alone, but rather is rooted in its very inconsistency. In other words, a decision that meets the requirements of the other rules of discretion may be invalidated because it is different from other decisions which themselves meet such requirements. The discretion of governmental authorities is thus restricted by the Aristotelian principle of equality in the sense that discretion must be exercised consistently. (24)
For example, in certain cases a licensing authority may be entitled initially to grant a business license at its discretion. But once it customarily grants licenses in such cases, it must act consistently by granting a license in all similar cases. The same is true, of course, with respect to the refusal to grant a license. To realize this aim of consistency, the law provides for the enactment of regulations, and at times of administrative guidelines, chiefly aimed at promoting the equal, that is, consistent, exercise of discretionary powers.
Nevertheless, absolute consistency is neither possible nor desirable. (25) First, as I have noted, no two cases are completely equivalent, and therefore absolute consistency is impossible (unless we return to the result which we have been trying to avoid, that is, canceling governmental discretion or transferring it entirely to the courts). Second, it is not proper that a single decision taken at some point will forever bind the discretion of a governmental authority. The authorities should be allowed to weigh their policy from time to time according to changing circumstances, needs, and fundamental perceptions.
Consistency is thus not an absolute obligation, but a relevant consideration that an authority employing discretionary powers must take into account and accord appropriate weight in the circumstances before it. When an authority acts inconsistently, hence violating Aristotelian equality, one must examine whether there was fitting justification for doing so. Aristotelian equality may thus be reconciled with the general doctrine of discretion. Under this proposed version it neither contradicts the theory nor is external to it.
The duty of consistency is not relevant except when there are several decisions, or, to be more precise, when there are several cases that have been or will be decided. One may ask which one among these decisions should be compared to another decision, or conversely, which decision is illegal due to inequality in the above sense. (26)
It seems that there are four main types of possible basic criteria on this question: 1) the lawful decision is that which is better from the standpoint of the individual (a decision will be deemed discriminatory if it is less considerate of the individual); 2) the lawful decision is the first decision (the last or later decision will be deemed unlawful); 3) the lawful decision is that which is consonant with accepted custom or policy (a decision will be deemed discriminatory if it deviates from such custom or policy); and 4) in the event of several unequal decisions, they all are unlawful.
It may be noted that the choice among these approaches (or some combination of them) cannot be made only on the basis of the principle which mandates consistency. As all the approaches fulfill it to the same degree, it alone cannot decide among them. The decision must be made in view of other considerations external to those underlying the equality principle in the sense mentioned. Each of the four basic criteria has its merits and drawbacks, which deserve a more detailed, separate discussion.
In any event, the rules of discretion ought essentially to be directed, to the extent possible, toward the governmental authorities in order to guide them when they exercise their discretion, and not solely to the courts when they review governmental decisions. The rules must focus on the question of how governmental discretion ought to be exercised, not on the question of when such discretion ought to be nullified.
In view, among other things, of this principle, none of the four types of basic criteria mentioned above should be adopted as is. A mixed standard should be preferred, under which the authority should exercise its discretion in a manner equal to that in which it is exercised by accepted custom or policy in like cases; in the absence of widely accepted custom or policy, in the (lawful and reasonable) manner which is most considerate of the individual. When this last alternative is not relevant (whether because the decision does not involve an individual or it involves several individuals with conflicting interests), the authority must set non-discriminatory rules for exercising discretion, and must follow them to the extent possible in making such decisions in the future.
Consistency, despite its not-inconsiderable importance for upholding justice and fairness, and to the public's sense that they are upheld, (27) is not a constitutional value to which the legislative branch ought to be subordinated. The duty of consistency, then, which derives from the Aristotelian principle of equality, generally focuses on administrative law alone. We may thus call it "administrative equality."
VI. THE RELATION BETWEEN THE FUNDAMENTAL RIGHT TO EQUALITY AND THE LAWS REGARDING GOVERNMENTAL DISCRETION--"CONSTITUTIONAL EQUALITY"
The fundamental right (actually, rights) to equality, under the interpretation which distinguishes it from Aristotelian equality, is defined, as noted earlier, in one of two ways: either as a right not to differentiate among people on the basis of status or category, or a right of persons to be treated equally with regard to a particular matter.
When a particular status or category (with respect to the first definition) or some consideration (with respect to the second definition) are not relevant to the decision in question, the prohibition against taking them into account essentially derives from the prohibition against weighing irrelevant considerations, which is one of the general rules of discretion. Thus, in a certain sense, one may say that in such a case the fundamental right is secondary to the general prohibition against weighing extraneous considerations. At the same time, if in a given legal system the violation of the fundamental right (but not any weighing of irrelevant considerations) may lead to the invalidation of a statute, the classification of the irrelevant consideration as ordinary or as entailing a violation of the fundamental right to equality will of course be important. Furthermore, in view of the constitutional character of the fundamental right to equality, in many cases--especially those involving a status or category included in the first definition--there is a presumption that these considerations are irrelevant, (28) and the burden of proof is imposed on whomever wishes to rebut the presumption.
There may be legal systems in which the fundamental right will be recognized even when, under the circumstances of the case, a particular status or category (in respect of the first definition) or a particular consideration (in respect of the second) are, at least prima facie, relevant to a given decision. In such systems a balance will be drawn between the values and interests which underlie the fundamental right and the specific relevant interests that bear upon the decision at hand. (29) In a certain sense one may say that in such a case the fundamental right is subordinate to the general principle of reasonableness. However, as mentioned above, the fundamental right to equality may also bind the legislature.
In any case, the above balance will be made, as is common with balancing between fundamental rights and other values and interests, with an intent to realize the fundamental right to the extent possible, and to allow a conflicting interest or value to impinge on it only in extraordinary cases, and then only when there is no reasonable way to realize all of the conflicting values and interests. (30) With respect to the fundamental right to equality, the zone of reasonableness--which defines the scope of the discretion given to the authorities--may thus be especially narrow, to the point of obligating the authority in a given case to take a particular decision, thereby erasing its discretion with regard to that case.
Special applications of the fundamental right to equality may be discerned in affirmative action, which is based precisely on taking into account (rather than avoiding) a particular status or category of persons in order to repair distortions which violate values and interests underlying the fundamental right. (31) In this sense one may understand the inclusion, in the section on equality in the Canadian Charter of Rights and Freedoms, of subsection 15(2), dealing with affirmative action. This subsection, notwithstanding its wording, (32) does not represent an exception to the general constitutional right to equality contained in subsection 15(1), but rather derives from it and supplements its aims.
The equality principle limits governmental discretion, but does not fetter it altogether. In administrative law the equality principle is implemented as a duty to maintain consistency. Administrative agencies must exercise discretion in a consistent manner, so that justice and its image will not suffer. At the same time, absolute consistency in the long run nullifies discretion, and it is both impossible and undesirable--hence the need for balancing between unfettered discretion and consistency in its exercise. A violation of the equality principle in this sense is generally not a ground for the nullification of statutes.
In constitutional law, the equality principle is implemented as a fundamental right to non-consideration of a particular status or categories, and to identical treatment of all persons in specific matters. Equality in this sense is necessary to prevent infringement on human dignity and upon society as a whole. Violations of the equality principle in constitutional law may also bring about nullification of governmental decisions--and even of Parliament's statutes--when the decision or statute is based upon legal considerations, if the violation of equality impairs the values or interests that it aims to protect. However, in the constitutional context, the constitutional principle is not absolute and must be balanced against other relevant considerations. Such balancing must be conducted with the intent of privileging as much as possible the fundamental right to equality, and disregarding it only in exceptional cases.
(1) See e.g. J. Rutherford, "Equality as the Primary Constitutional Value: The Case for Applying Employment Discrimination Laws to Religion" (1996) 81 Cornell L. Rev. 1049 at 1070-76.
(2) See e.g. R.G. Dixon, Jr., "Equality, The Elusive Value"  Wash. U.L.Q. 5; W. von Leyden, Aristotle on Equality and Justice: His Political Argument (Basingstoke: MacMillan, 1985) at 5; and P.M. Bator, "Equality as a Constitutional Value" (1986) 9 Harv. J.L. & Pub. Pol'y 1 at 1.
(3) See e.g. K.C. Davis, Discretionary Justice: A Preliminary Inquiry (Baton Rouge: Louisiana State University Press, 1969).
(4) See generally J.E. Nowak & R.E. Rotunda, Constitutional Law, 5th ed. (St. Paul: West Co., 1995) at 595-951.
(5) See e.g. Scenic Hudson Preservation Conference v. Federal Power Commission, 354 F.2d 608 (2d Cir. 1965) (Appeal of Concord Natural Gas Corp., 433 A.2d 1291 (N.H. 1981)); R. v. Shadow Education Committee of Greenwich B.C. ex p. Governors of John Ball Primary School (1989), 88 L.G.R. 589; and R. v. M.(S.H.),  2 S.C.R. 446.
(6) See e.g. Morrill v. Jones, 106 U.S. 466 (1883); Nader v. Bork, 366 F. Supp. 104 (D.D.C. 1973) (improper purpose); United States ex rel. Partheniades v. Shaughnessy, 146 F. Supp. 772 (D.N.Y. 1956); P.G.P. Entertainment Corp. v. State Liquor Authority, 52 N.Y.2d 886 (1981) (extraneous considerations); Roberts v. Hopwood,  A.C. 578; Ville de Boucherville v. Jaybatt Corp.,  C.S. 611 (Que. S.C.); New Brunswick Broadcasting Co. v. Canadian Radio-Television and Communications Commission,  2 F.C. 410 at 422-23 (C.A.); Lindsay v. Nova Scotia (Minister of Consumer Affairs),  76 N.S.R. (2d) 208 at 215 (S.C.); Bugdaycay v. Secretary of State for the Home Department,  1 All E.R. 940 at 953 (H.L.); Corbiere v. Canada (Minister of Indian and Northern Affairs),  2 S.C.R. 203 at para. 7.
(7) See e.g. Delpro Co. v. Brotherhood Railway Carmen, 519 F. Supp. 842 (1981); Martin Oil Service Inc. v. Koch Refining Co., 582 F. Supp. 1061 (N.D. Ill. 1984); B. Schwartz, Administrative Law: A Casebook, 3d ed. (Boston: Little, Brown, 1991) at 654, and at 640-42; W.F. Fox, Jr., Understanding Administrative Law, 2d ed. (New York: Matthew Bender, 1986) at 258-59; Associated Provincial Picture Houses v. Wednesburg Corporation,  1 K.B. 233; R. v. Secretary of State for the Home Department ex parte Brind,  1 A.C. 696; Roncarelli v. Duplessis,  S.C.R. 121 at 139-40; R. v. Simon (No. 1) (1982), 68 C.C.C. (2d) 86 at 90-92 (N.W.T.S.C.(T.D.)); and Levitz v. Ryan,  3 O.R. 783 at 790 (C.A.).
(8) See e.g. Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966); Widmar v. Vincent, 454 U.S. 263 (1981); G. Gunther, "Foreward: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection" (1972) 86 Harv. L. Rev. 1; H.A. Linde, "Due Process of Lawmaking" (1976) 55 Neb. L. Rev. 197; G.R. Stone, et al., Constitutional Law, 2d ed. (New York: Aspen, 1991) at 579, and the 1994 Supplement at 112-13; RJR-MacDonald Inc. v. Canada (A.G.),  3 S.C.R. 199.
(9) See e.g. R. Dworkin, "What is Equality: Part 1, Equality of Welfare" (1981) 10 Philosophy & Pub. Aff. 185 at 185; D. Rae, Equalities (Cambridge: Harvard University Press, 1981) at 133. Professor Rae has calculated that there are 108 different meanings of equality. By contrast, Professor Westen maintains that the principle of equality by itself lacks all meaning. See P. Westen, "The Empty Idea of Equality" (1982) 95 Harv. L. Rev. 537. See also H. Kelsen, "What is Justice?" in What is Justice? Justice, Law, and Politics in the Mirror of Science: Collected Essays by Hans Kelsen (Berkeley: University of California Press, 1960) 1 at 15. Compare P. Westen, Speaking of Equality: An Analysis of the Rhetorical Force of Equality in Moral and Legal Discourse (Princeton: Princeton University Press, 1990) [Speaking of Equality]. Professor Westen's approach has been criticized. See e.g. W. McKean, Equality and Discrimination Under International Law (Oxford: Clarendon, 1983) at 4; K.R. Greenawalt, "How Empty is the Idea of Equality?" (1983) 83 Colum. L. Rev. 1167; and Professor Westen's response: P. Westen, "To Lure the Tarantula From its Hole: A Response" (1983) 83 Colum. L. Rev. 1186. See also S.J. Burton, "Comment on 'Empty Ideas': Logical Positivist Analyses of Equality and Rules" (1982) 91 Yale L.J. 1136; P. Westen, "On 'Confusing Ideas': Reply" (1982) 91 Yale L.J. 1153. For further discussion, see C.J. Peters, "Equality Revisited" (1997) 110 Harv. L. Rev. 1210; and the response of K. Greenawalt, "Prescriptive Equality: Two Steps Forward" (1997) 110 Harv. L. Rev. 1265.
(10) See Aristotle, Nicomachaean Ethics, trans. by R. Crisp (New York: Cambridge University Press, 2000).
(11) See e.g. T.L. Beauchamp & J.F. Childress, Principles of Biomedical Ethics, 3d ed. (New York: Oxford University Press, 1989); M.J. Meurer, "Book Review of Fair Division" (1999) 47 Buff. L. Rev. 937 at 940, n. 19; R.W. Wright, "Substantive Corrective Justice" (1992) 77 Iowa L. Rev. 625 at 641-42.
(12) Compare von Leyden, supra note 2 at 3-4.
(13) See K.W. Simons, "Equality as a Comparative Right"(1985) 65 B.U.L. Rev. 387 at 389; and Speaking of Equality, supra note 9 at 18-38.
(14) Compare P.A. Freund, "The Philosophy of Equality"  Wash. U.L.Q. 11 at 15; T. Nagel, "The Meaning of Equality"  Wash. U.L.Q. 25.
(15) See A. Koppelman, Antidiscrimination Law and Social Equality (New Haven: Yale University Press, 1996) at 57.
(16) 19 December 1966, 999 U.N.T.S. 171, Can. T.S. 1976 No. 47, 6 I.L.M. 368.
(17) Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 U.N.T.S. 221, Eur. T.S. 5.
(18) See Speaking of Equality, supra note 9 at 72-74.
(19) Compare H. Hill Kay, "Models of Equality" (1985) U. Ill. L. Rev. 39.
(20) See e.g. I. Berlin, "Equality as an Ideal" in F.A. Olafson, ed., Justice and Social Policy (Englewood Cliffs: Prentice Hall, 1961) 128. Berlin supports the principle that persons should in every respect be treated in a uniform and identical manner, unless there is a sufficient reason not to do so.
(21) The American Supreme Court has indicated, with varying degrees of explicitness, that certain classifications are suspect. See e.g. Graham v. Richardson, 403 U.S. 365 (1971) (alienage); Bolling v. Sharpe, 347 U.S. 497 (1954) (race); Hirabayashi v. United States, 320 U.S. 81 (1943) (nationality). See L.H. Tribe, American Constitutional Law, 2d ed. (Mineola: Foundation Press, 1988) at 1465-66; Note, "Mental Illness: A Suspect Classification?" (1974) 83 Yale L.J. 1237 at 1241. For similar Canadian jurisprudence see Young v. Young,  4 S.C.R. 3 at 114; and Law v. Canada (Minister of Employment and Immigration),  1 S.C.R. 497.
(22) See J. Trebilcot, "Sex Role: The Argument from Nature" in J. English, ed., Sex Equality (Englewood Cliffs: Prentice Hall, 1977) 121 at 127.
(23) Compare A.M. Honore, "Social Justice" (1961) 8 McGill L.J. 77 at 83-84.
(24) See Schwartz, supra note 7 at 708-12. See also R. Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1978) at 113; and E. Chemerinsky, "In Defense of Equality: A Reply to Professor Westen" (1983) 81 Mich. L. Rev. 575 at 580-81.
(25) See J.E. Coons, "Consistency" (1987) 75 Cal. L. Rev. 59 at 92; F. Schauer, "Precedent" (1987) 39 Stan. L. Rev. 571 at 604.
(26) Compare Ellis-Don Ltd. v. Ontario (Labour Relations Board),  1 S.C.R. 221; International Woodmakers of America, Local 2-69 v. Consolidated-Bathurst Packaging Ltd.,  1 S.C.R. 282; Califano v. Westcott, 443 U.S. 76 (1979); Heckler v. Mathews, 465 U.S. 728 (1984); B.K. Miller, "Constitutional Remedies for Underinclusive Statutes: A Critical Appraisal of Heckler v. Mathews" (1985) 20 Harv. C.R.-C.L. L. Rev. 79.
(27) On the complex relation between equality and justice see e.g. J. Stone, "Justice in the Slough of Equality" (1978) 29 Hastings L.J. 995; G. Vlastos, "Justice and Equality" in J. Waldron ed., Theories of Rights (Oxford: Oxford University Press, 1984) 41; and von Leyden, supra note 2 at 1-6. The duty of consistency also has value in that it sometimes relieves a petitioner from having to discharge the difficult burden of proving that the governmental authority did not take a relevant consideration into account, or took into account an extraneous consideration.
(28) See J.H. Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge: Harvard University Press, 1980) at 136-70. But see D.A. Strauss, "Discriminatory Intent and the Taming of Brown" (1989) 56 U. Chic. L. Rev. 935 at 956-57; and Egan v. Canada,  2 S.C.R. 513 at 519.
(29) See also, in the United States, Note, "Legislative Purpose, Rationality, and Equal Protection" (1972) 82 Yale L.J. 123.
(30) For the "Constitutional Fact" doctrine, see Ohio Valley Water Co. v. Ben Avon, 253 U.S. 287 (1920); United States v. Raddatz, 447 U.S. 667 at 683 (1980); and Schwartz, supra note 7 at 666-67.
(31) Compare J.H. Ely, "The Constitutionality of Reverse Racial Discrimination" (1974) 41 U. Chic. L. Rev. 723 at 727.
(32) Canadian Charter of Rights and Freedoms, s. 15(2), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11: "Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability"; see Lovelace v. Ontario,  1 S.C.R. 950; and Harrison v. University of British Columbia,  3 S.C.R. 451 at 452.
Ariel L. Bendor *
* Dean, Faculty of Law, Haifa University. I am grateful to Justice Itzhak Zamir, Shulamit Almog, Avinoam Ben-Zeev and Alex Stein for helpful comments and suggestions, and to Peleg Rachman for excellent research assistance.
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|Author:||Bendor, Ariel L.|
|Publication:||Review of Constitutional Studies|
|Date:||Jan 1, 2003|
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