Among the flurry of articles and rebuttals triggered by the Supreme Courtís decision in R. v. Ewanchuk (the "bonnets and crinolines" case) was an op-ed piece in the National Post by Calgary law professor Kathleen Mahoney entitled "Feminists, equality, and the law."
Ms. Mahoney distinguished two different concepts of equality this way: "Formal equality is based on the notion that equality will be achieved as long as all people are treated the same under the law. Substantive equality is based on the notion that equality will be achieved by ensuring the impact of laws is fair."
These definitions seem to assume that both camps -- those who advocate equal legal treatment for everyone and those who advocate preferential treatment for certain minority groups -- are agreed upon "achieving equality" as the ultimate goal of law. But does Ms. Mahoney really think the "equality" desired by the first camp is the same "equality" desired by the second? Or has she simply muddied the waters by shifting meanings mid-stream?
More specifically, if Ms. Mahoney is using "equality" in both definitions to mean material equality, or what economist Milton Friedman calls "equality of outcome", then itís pretty obvious that equal treatment under the law will fail in the task she assigns to it. People are born with different physical and intellectual capacities. They choose to make use of their natural talents in different ways and to different degrees. These differences will inevitably produce disparities in their material well-being, no matter how much equality under the law they receive.
But as one who generally considers equality before the law vastly preferable to its opposite, I reject the unspoken premise that Ms. Mahoneyís definitions seem to inject into the debate: namely, that equality of outcome is or should be the ultimate goal towards which the law strives.
In fact, I go one step further. I reject the premise that equality in any of its definitions should be the ultimate goal of the law. Rather, I believe that justice and freedom are the goals towards which the law should strive. Equal treatment under the law is only a by-product of achieving those goals. It is not a synonym or a substitute for either of them.
Equality under the law is not a value that supersedes all others. To demonstrate this, letís hypothesize two very different societies. The first has an extensive regime of highly intrusive laws equally applicable to all; for example, every person must report 3 days a week to a government labour camp, no-one may read any book except those on an approved list, dancing is strictly forbidden, everyone must have an identifying number tattooed on his arm, food is rationed and black market trading is punishable by death, etc.
Our second hypothetical society has laws that are very laissez-faire; none of the rules of the first society apply; people can conduct their economic and social affairs as they see fit; the only exception is that once a year, all black immigrant females over age 40 must pay a special $100 tax.
The second society is clearly one of unequal laws. It discriminates on the basis of colour, nationality, sex and age. Nevertheless, given a choice, I suspect that the overwhelming majority of people, including most black immigrant females over 40, would choose to live in the second society rather than the first. Receiving equal treatment is no satisfaction when what you are equal to is a joyless serf.
Human beings are unique among living creatures in that they depend for their survival not upon brute force and instinct, but upon intelligence and reason. For each individual to survive and prosper, he requires the freedom to exercise his judgment and act upon it, unencumbered by coercion from others. To the extent that a countryís laws provide this freedom and protection, they are good laws. To the extent that they deny them, they are bad. However, the conditions necessary for human flourishing apply universally. This is why, if the laws are good, they should apply equally to all. If they are bad, they should be changed for everyone, not just for some.
It seems that almost daily, another law of general application is challenged on the ground that it has an "adverse impact" on some minority group, who therefore seeks exemption or preferential treatment.
Sometimes Iím tempted to fight fire with fire. Hereís my fantasy: Iíll challenge the Income Tax Act on the ground that it discriminates against me because of my Jewish origins. Census data show that Jews and one other minority group, Japanese, earn significantly more than the average Canadian; hence, we suffer the "adverse impact" of paying much higher taxes. I would ask that the whole system of taxation by income be declared unconstitutional and that a flat, equal, head tax on every resident of the country be substituted.
I wonder -- would LEAF and the usual crowd of affirmative action groups recognize my victim status and rush in to support me? I wonít hold my breath waiting.