Dual Interpretation of Equality in British Law
The Distinction Between Formal and Substantive Equality in the UK
Dec 11, 2008
The principle of equality is a fundamental component of the legal system of any truly democratic society and it is well recognised among lawyers and theorists in the UK that a corollary exists between equality and non-discrimination. However, equality itself has been described as a treacherously simple concept since there is a diverse spectrum of opinions as to what equality really is and what a society should do to incorporate and promote it.
The differing interpretations of equality effectively fall within two categories: those involving formal equality and those involving substantive equality.
Formal Equality
Formal equality is basically the notion of equal treatment and does not take into account the fact that equal application of the rules to unequal groups or individuals can have unequal results. Consequently, formal equality is about treating all people the same and can lead to inequalities for groups that have been disadvantaged by a system that fails to take different needs into account.
This formal approach to equality supports the view that a person’s individual or physical characteristics should be seen as irrelevant in determining whether they have the right to some social benefit or gain. From a theoretical point of view this is certainly a good principle to uphold since, ideally, every person should be treated the same but it is a simplistic point of view that does not adequately take into account real world situations.
The principle of formal equality could be further defended on the grounds that it should prevent arbitrary decision-making processes. The value of formal equality is its ability to protect against defects being introduced into the decision-making process and ensuring that irrational and unfair decisions based on arbitrary criteria are kept out.
However, it has been suggested that the supposed value of formal equality is merely an illusion since it is questionable whether the law and indeed the judiciary can claim to be truly neutral to all parties. Furthermore, another well documented drawback to the formal equality approach is that it requires comparison. The selecting of the comparator is a notoriously difficult and unsatisfactory business. In the United Kingdom the comparator used is predominately white, adult, male, Christian, able-bodied and heterosexual. This need for a comparator assumes the existence of a universal person, an idea which neglects the variety and diversity of modern society.
Substantive Equality
The second interpretation of the equality principle is the idea of substantive equality. This goes beyond the notion of equal treatment and takes into account the differences in the needs that exist between groups and individuals. Consequently, substantive equality is concerned with achieving equitable outcomes. Unlike formal equality which dictates behaviour through applying rules and procedures consistently, substantive equality seeks to invest a certain moral principle into the application of equality. This concept of equality manifests itself through a spectrum of policies and legal mechanisms and is inherently linked to the idea of redistributive justice and the achievement of a fairer distribution of benefits.
One disadvantage of this approach is that it places too little emphasis on the importance of accommodating diversity by adapting existing legal structures. It has been suggested that the focus on certain disadvantaged social groups under this conception of equality diverts attention away from the serious and arbitrary distinctions that lead to disadvantage.
The consideration of substantive equality raises the issue of whether countries founded on common national and cultural values can expect to successfully incorporate individuals whose values and traditions are different to that of the majority. The obvious answer is that they must. Human rights and equality discourses have consistently incorporated issues relating to diversity and cultural identity into their rubric. It is clear that such issues are central to the human rights agenda and treating them being outside of the equal rights framework will only serve to dilute the force of human rights discourse in general.
The concept of substantive equality makes an important contribution to combating disadvantage and discrimination to various minority groups but it remains a politically charged interpretation of equality under which a variety of competing interests must be addressed.
Sources:
McCrudden, C ‘Equality and Non-Discrimination’ in Feldman, D (ed.) (2007) English Public Law (Oxford: OUP)
The Equal Rights Trust (2007) The Ideas of Equality and Non-Discrimination: Formal and Substantive Equality (UK: electronically published)
Holtmaat, R (2004) The Concept of Discrimination (Academy of European Law Conference Paper)
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