It is becoming an entrenched part of the Evangeligentsia’s piety to affirm with creedal reverence the idea that all man are equal in the eyes of God, or that somehow the concept of being created in the image of God entails some sort of equality of mankind. To ask for the meaning of this vague abstraction, even less for the justification for this formula, is not permitted. Affirmation of this formula is a creedal ritual action to be done to be admitted into the community of the politically orthodox. Like the Nicene Creed, you are required to mouth the “ousias” even if you do not know what it means. It is not a concept to be analysed but to be confessed as a mark of orthodoxy. And only after one has confessed in an awe-inspiring manner what a fanatical egalitarian one is is one permitted to engage in political discourse, and even then only strictly within the limits of the formula.

It is clear however that handing the concept of equality such a blank cheque would have deleterious effects upon our ability to articulate proper civil policies with regards a host of other issues with which we are currently embroiled. If the a priori assumption is that political equality is the default mode then every attempt to make a distinction, say in the case of LGBT issues, becomes a burden which we have to bear by default. From the vague abstraction that such persons are “equal” naturally and intuitively flows the deduction that we cannot “discriminate” against them in all aspects of civic life. Any attempts to make an exception for them in the law becomes special pleading and inconsistent.

All these fundamentally misunderstands how the law works and what equality under the law means. The law by definition must discriminate by creating different categories of actions and persons and prescribing a different form of legal consequence for each category. The only real question is whether the different categories are relevant not whether they exist. As Lord Bingham, the former chief justice of the UK puts it:

Most British people today would, I think, rightly regard equality before the law as a cornerstone of our society. There should not be one law for the rich and another for the poor. We would recognize the truth of what Thomas Rainborough, a Cromwellian colonel, famously said in 1647 in the army debates at Putney: ‘For really I think, the poorest he that is in England has a life to live as the greatest he.’ But we would also accept that some categories of people should be treated differently because their position is in some important respect different. Children are the most obvious example. Children are, by definition, less mature than a normal adult, and should not therefore be treated as a normal adult would expect to be treated. Thus they are not liable to be prosecuted for crime below a certain age (in Britain it is conclusively presumed that no child under the age of ten can be guilty of any offence, a younger age than in most comparable European countries); if convicted of crime, they should not be punished as a normal adult would be punished; and they enjoy certain advantages in civil litigation. The mentally ill are another example: they may have to be confined if they present a danger to themselves or others. Prisoners, too, are treated differently from the rest of the population, since the very object of imprisonment is to curtail rights (notably, personal liberty) which are enjoyed by the rest of the population. Those who have no right of abode in this country are necessarily treated differently for immigration purposes from citizens who have a right of abode, since those without the right need leave to enter or remain in the country, which citizens do not. None of these examples (which could of course be multiplied) is problematical, so long as the law treats people differently because their positions are, genuinely, different.

-The Rule of Law

As such the question isn’t whether we should treat people differently according to the categories of the law. Of course we must, that’s the whole point of the law! The question is whether the prescribed different categories are relevant differences as far as the function of the law is concerned as to merit such a different treatment. The problem is that this is not a question which can be resolved a priori, deducing from some master concept of equality, but requires engagement with the concrete particulars in each case. We cannot as such hand over to the concept of equality a blind allegiance whereby we are not allowed to interrogate its applicability and scope. Why we apply the same laws of murder against both the rich and the poor is because of the state monopoly on all violence and as such the rich have no right to take the life of anyone away; whereas progressive taxation and applying a different tax rate to each income group is a justified “discrimination” because of the ends of wealth redistribution and/or some other economic objective.

This fundamentally goes back to my constant refrain on the proper difference between negative and positive rights. Negative liberties operate on the assumption that every the application of state action itself requires justification, otherwise we should assume a default liberty, whereas a positive right is that the state by default has a positive duty to secure and protect that right and they should act universally in all cases by default to secure those rights. In the English legal tradition of negative rights, every state or legal action as must be justified on its own merits based on the particular case, it is not simply a mechanical deduction from some master concept of equality.

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