What is equality?
Various academics have attempted to provide an overview of what ‘equality’ is, and it is these that we turn to for initial guidance in this exploration of equality law. When Weston published his book in 1990, he noted that his book was one of 30 to 40 books on equality that were expected to be published in English that year, following the publication of 370 books about equality in the decade from 1978 to 19871.
In an attempt to bring these figures up to date, a search of the British Library Catalogue2 reveals that almost 2,000 books from 1997 onwards have been published to date on the subject of equality in some shape or form, 1,500 of which were published after 20023.
Let us start with the word ‘equality’. It has been suggested rather than equality, we should think in terms of equalities in recognition of the fact that no single understanding of equality is complete4, as while people appear to share the concept of equality, they have very different conceptions of it5.
Indeed, McIntyre J, speaking for the Supreme Court of Canada in Andrews v Law Society of British Columbia6 remarked that “more than any of the rights and freedoms, [equality] lacks precise definition”. Iacobucci J explained that one of the difficulties in defining the concept of ‘equality’ is the abstract nature of the word and the similarly abstract nature of words to describe them, and that part of the difficulty stems from its exalted status7.
McLachlin argues that there are a number of reasons for this conundrum: equality language is in itself rather general, which can result in concepts that are not quite comprehensive enough leaving them open to interpretation from jurisdiction to jurisdiction8. What equality means is subjective and will depend on the conceptualiser’s view of society and what it should be, leading us to question whether the courts can make the best decisions9. Finally, the competition between various out-groups for rights makes it impossible to achieve absolute substantive equality, as it is beyond the resources of society and the law to place everyone in exactly the same position of relative advantage and disadvantage10.
- P Westen, Speaking of Equality: An Analysis of the Rhetorical Force of Equality in Moral and Legal Discourse (Princeton University Press 1990) 59.
- The British Library was chosen for this exercise given that it has almost 57 million items in its Main Catalogue.
- British Library, ‘Explore the British Library’ [http://explore.bl.uk/] accessed 20 September 2015.
- L Vickers, ‘Promoting Equality or Fostering Resentment? The Public Sector Equality Duty and Religion and Belief’ (2011) 31(1) Legal Studies 135, 147.
- Westen (n 1) xv.
-  1 SCR 143, .
- Law v Canada (Minister of Employment and Immigration)  1 SCR 497, .
- BM McLachlin, ‘Equality: The Most Difficult Right’ (2001) 14 Supreme Court Law Review 34.
- ibid 20.