WHAT DO WE TALK ABOUT WHEN WE TALK ABOUT EQUALITY BEFORE THE LAW?

In this and the three subsequent sections of this article I will pursue the task of constructing a precise definition of the principle of equality before the law. I will first suggest that the principle is procedural and requires relatively sophisticated conceptions of likeness between cases and treatments, and next note the way normative properties are required to give content to the principle, before finally exploring when first cases and then treatments are alike.

To begin we must recognize, I believe, that equality before the law has at least two fundamentally different meanings. On the one hand, it pertains to the rights and duties contained in positive law, i.e., the content of the law, and mandates something like the absence of certain distinctions in the distribution of these. On the other hand, it pertains to the practices of the courts, police officers, ministries, etc., i.e., the process of the law, and mandates something like the absence of certain distinctions in its application.Footnote ³ A state that, like Apartheid-era South Africa, enshrines racial differences in law will have violated the first sense, while a judge who allows racial prejudice to wittingly or unwittingly cloud her judgment in the application of racially neutral law will have violated the second. To distinguish the two we can usefully label the former as equality in the law; it is not my topic here, and I shall touch on it only tangentially.Footnote ⁴

The concept of equality before the law at stake, then, is procedural. It pertains to how legal institutions treat persons, specifically to whether such institutions treat persons equally or differently. Indeed, the concept of equality before the law is often summed up in what is sometimes referred to as an Aristotelian principle of justice that the court must “treat like cases alike.”Footnote ⁵

We need, however, to clarify the notion of “treating like alike.” An initial definition might hold that an agent, i.e., the court,Footnote ⁶ treats the cases A and B equally, in the sense required for equality before the law, iff:

1. 1) the agent performs action(s) F (φ’s) with respect to both case A and case B,

2. 2) cases A and B are relevantly similar (like persons), and

3. 3) φ’ing in the cases of A and B are relevantly similar actions (treating alike).Footnote ⁷

However, the “relevantly similar” conditions of this definition stand in need of clarification. Why are they necessary and how should they be understood?

To see first why the conditions are necessary consider the following two scenarios:

Are these scenarios instances of equality before the law or not? It may be tempting to say that the first scenario exemplifies differential treatment while the second exemplifies equal treatment, and that as such the latter is an instance of equality before the law (at least supposing other conditions are met) while the former is not. In fact we ought to say that neither scenario contains sufficient information to conclude either way.

Our evaluation of 25% Added Value will turn on whether we assume that P-persons and ¬P-persons are relevantly similar or not. If we imagine that P is a property the possession of which merits more severe punishment—suppose, e.g., that P is “premeditation for the crime in question” and that this in fact merits increasing punishment by 25%—then 25% Added Value seems not to be an instance of differential treatment in the sense necessary to violate equality before the law.

Likewise, in One Size Fits All, if we suppose that P is itself pertinent to how the persons involved ought to be treated (e.g., premeditation again), then labeling it an instance of equality before the law looks like a mistake. P-persons and ¬P-persons are treated equally in one sense, but intuitively they have not met equality before the law.

As the above analysis shows, whether or not a scenario qualifies as equality before the law hinges on whether or not the cases are similar or dissimilar in specific ways. This leaves the qualification of relevantly similar actions to be motivated (and the meaning of both similar cases and similar actions to be clarified, but first things first).

Let us return to the scenarios. Suppose now instead that P is a property that plays no proper part in determining how the court ought to treat a person, say, parentage (i.e., who are the offender's parents). This seems to make 25% Added Value a paradigm instance of inequality before the law (and One Size Fits All the opposite), but explaining why is more difficult than one might think. After all, in one obvious sense, the actions of the agent are exactly the same in this variation as in the original scenarios, so that the treatment, it would seem, cannot be unequal now if it was equal before, and vice versa. On this reading, the premeditation version of 25% Added Value involves treating like persons alike because the action at stake is something along the lines of “subjecting convicted offenders to a procedure of sentencing that differentiates on the basis of P,” but on that interpretation of the action we could say the same of the parentage version of 25% Added Value.

What if we say instead that 25% Added Value is a case of treating unalikes unalike, since the persons are unalike with respect to possessing P and are treated differently in the sense of being punished differently, and allow that this too can suffice for equality before the law? Again it seems that we would be forced to say that the parentage version can also qualify, since this involves treating unalikes unalike in exactly the same sense.

What we need is a way of distinguishing treatment that we wish to classify as equal from treatment that we do not, specifically, a way that will allow us to say that while the premeditation version of 25% Added Value is an instance of equal treatment the parentage version is not. In Hart's apt formulation: “There is therefore a certain complexity in the structure of the idea of justice. We may say that it consists of two parts: a uniform or constant feature, summarized in the precept ‘Treat like cases alike’ and a shifting or varying criterion used in determining when, for any given purpose, cases are alike or different.”Footnote ⁹

HOW ALIKE MUST A LIKENESS BE TO BE A LIKENESS ALIKE?

The above conclusion will come as no surprise to egalitarians. After all, any egalitarian theory must define both the scope of the theory (i.e., the situations to which the principle applies) and the equalisandum (i.e., the currency of what is to be equalized). To spell out the scope and equalisandum in the present context is to ascertain what likenesses are and are not relevant to the principle of equality before the law.

Note first that we are concerned only with likeness in certain respects, since otherwise the demand would be impossible to meet. No two cases or treatments can ever be exactly the same. This cannot be taken to violate equality before the law as long as the differences are trivial. To be relevant to the principle such differences must be normatively relevant, that is, they must make a difference to which reasons the court has for acting. Treatments that do not differ in terms of the reasons the court has for or against that treatment, and cases that do not differ in terms of the reasons for action they give rise to, cannot differ in the light of the principle. This observation allows us to narrow our focus.

Note second that equality before the law is a comparative principle of justice. Non-comparative principles are capable of specifying what the right (or wrong) action or outcome is without reference to other outcomes or actions. Comparative principles on the other hand specify the proper outcome or action with reference to other outcomes or actions.Footnote ¹⁰

Third, I shall need to adopt the following assumption. Let us suppose that for any case before the court there is some way that the court ought non-comparatively speaking to treat the case, and that the way it ought non-comparatively speaking to treat the case is determined by the (non-comparative) reasons that speak in favor of treating it in various ways. This is, I think, a minimal assumption, because while extant jurisprudential theories disagree about which reasons apply, what weight to attribute them, and how they interact, they typically agree by virtue of being jurisprudential theories that there are reasons that apply, and that the weight and interaction of these reasons determine the way the court ought to treat a case. This minimal agreement is all that the current analysis requires. However, to include the possibility that these reasons do not single out a unique way of treating the case, let us say that they pick out the set of permissible actions, where it is possible that the set contains a unique action but not that it is empty.Footnote ¹¹

The above observations and assumption in combination gives us an answer to one part of the riddle: two cases ought, non-comparatively speaking, to be treated alike just when the set of permissible actions for case A is identical to the set of permissible actions for case B. This is, of course, a central point of Peter Westen's celebrated critique of egalitarianism, and so it remains to be seen whether we can define the principle in a way that avoids his conclusion that it is therefore “empty.”Footnote ¹²

ALIKE CASES

The next step is to determine when cases are alike in the sense relevant to equality before the law. Broadly speaking, cases can be alike in three different respects: they can share (non-normative, but normatively relevant) properties, there can be similar reasons for action in the cases, or the same action(s) can be permissible:Footnote ¹³

Among these options, we should prefer the third, I believe, for the simple reason that we can otherwise be forced to say that cases are unalike in a way that seems inconsistent with the principle of equality before the law. Suppose we have two cases with different properties that nonetheless give rise to the same set of reasons. If we adopt the first option we must classify them as unalike, and since they are unalike we must require that they be treated differently for equality before the law to obtain. This cannot be right. The same problem pertains to the second option, where cases that share permissible actions, but not reasons, must then be treated unalike. The second option must therefore also be rejected.Footnote ¹⁵

Two cases are thus alike in the sense required for equality before the law iff they share the set of permissible actions, that is, if the court ought non-comparatively to treat them the same. The property of likeness between cases supervenes on the distinction between the action(s) that the court ought and ought not to perform, or in Joel Feinberg's words: “…a non-comparative principle of justice determines the criterion of relevance for the application of the otherwise formal principle of comparative justice for certain contexts.”Footnote ¹⁶

On this analysis the cases in the premeditation version of 25% Added Value are unalike, even if we can truthfully describe the court's action as permissibly applying a procedure that distinguishes between P-persons and ¬P-persons, since the set of permissible actions for the case(s) of P-persons includes the action of punishing more severely, while the set of permissible actions for the case(s) of ¬P-persons does not. In the same vein, the parentage version involves like cases, no matter how we describe the action that the court performs.Footnote ¹⁷

LIKE TREATMENT

This clarifies only the first and least complex half of the principle, however. We still need to specify when two treatments are alike. A first and tempting suggestion is to say simply:

Recall, however, that we could accurately describe both the premeditation and parentage versions of 25% Added Value as “subjecting convicted offenders to a procedure of sentencing that differentiates on the basis of P,” and on the above definition it appears that we must say that the cases were treated alike in both scenarios. An obvious remedy is the following:

This appears to be a natural extension of the point made above about when cases ought non-comparatively to be treated alike. A court ought to treat two cases alike iff the cases are alike, so surely the court will treat cases alike when the court performs the same action and this action is what it ought to do in each case.

It has the further virtue of potentially explaining why the parentage version of 25% Added Value does not qualify as equal treatment, even when described as applying a similar procedure to the two cases. Arguably, doing so is permissible in the case(s) of ¬P-persons, but it is clearly impermissible in the case(s) of P-persons, who will be subjected to an unjustly increased punishment as a result.

However, I believe this suggestion overlooks an important feature of equality before the law, which is that the principle can be observed even when the court fails to treat cases as they ought non-comparatively to be treated.

It seems reasonable to suppose that courts can and do fail to treat cases with non-comparative justice. As an obvious example, most theories of criminal justice hold that there is some particular level of just punishment for any given crime, which at most falls within a narrow range. Given that liberal states employ widely different levels of punishment for comparable crimes, at least some of them thus over- or underpunish and thereby fail to satisfy non-comparative principles of justice. But we might want to maintain that such systems satisfy equality before the law nonetheless, supposing that they apply the non-comparatively unjust punishments in a way that respects comparative procedural justice.

We can revise the definition as follows to accommodate this point:

Clearly these conditions are met when the court performs an action that it ought to perform, but the revised definition makes room for the possibility that, even when the court fails to perform one of these actions, it still treats the cases equally when its action in one case is neither (non-comparatively) better nor worse than its action in the other.Footnote ¹⁹

There remain two problems. First, the definition above does not preclude describing the actions of the court in the premeditation version of 25% Added Value as applying the same procedure in both cases, an action that we can reasonably suppose it has equal reasons to perform. This gives us the intuitively unsatisfying result that the premeditation version is treating unalikes alike, and the parentage version is treating alikes unalike, which suggests that the two are equally a violation of equality before the law. This cannot be right, and so the definition still requires amendment.

Furthermore, consider the original version of One Size Fits All, where the court imposes similar sentences on cases that ought to be treated differently. Clearly, the cases are unalike, since the actions the court ought to perform are different, but the above definitions entail that the cases are treated unalike, since although the court φ’s in both cases, it must either have more or less reason to φ in one of them. This does not sound right—surely treating two cases in exactly the same way should qualify as treating alike.

It might appear that we are at an impasse—a simple requirement for identical actions does not rule out describing the action of differentiating as treating alike, a condition that the actions be permissible rules out non-comparatively unjust comparative justice, and a condition of equal reason for the actions rules out equally treating unalike cases.

However, the actions that have hitherto caused so much trouble involve distinguishing on the basis of a property, one that is relevant when premeditation, which is to say that it has an effect on how the court ought to treat the case, and normatively irrelevant when parentage. Given that we are attempting to define treating alike, it should come as no surprise that the definition will flounder if we allow the actions at stake to include actions that differentiate between the cases. This suggests that we should say instead:

Call actions that meet condition 2 of this definition “non-discriminatory actions.”

Applying this analysis to the two scenarios yields intuitively satisfactory answers. The premeditation version of 25% Added Value involves treating unalike cases unalike, since the two cases do not share sets of permissible actions (the court ought to punish premeditated crime more severely), and the court's treatment must either be described as different actions (punishing less in one case and punishing more in the other), or as one action that requires the court to distinguish on the basis of P. The parentage version, meanwhile, involves treating like cases unalike, since the court's treatment mirrors the treatment in the premeditation version, while the two cases now share sets of permissible actions.

Conversely, the premeditation version of One Size Fits All involves treating unalike cases alike, since the cases do not share sets of permissible actions but the court performs the same action, one that does not require the court to distinguish between cases on the basis of P. Finally, the parentage version of One Size Fits All involves treating like cases alike, since the two cases share sets of permissible actions and are treated the same.

Have we lost anything along the way? I believe there is one intuitively appealing sense, in which the original version of 25% Added Value instantiates equality before the law because it involves treating like cases alike. It is this sense that is captured by Equal treatment 3’s condition that the court does not have more reason to φ in case A than it does to φ in case B, or less reason to φ in case A than it does to φ in case B, that is, the court treats cases equally when it does no more and no less wrong in one than in the other. As we have seen in our analysis of One Size Fits All, this condition provides strongly counterintuitive answers in some cases of what we would like to call treating unalike cases alike. But if possible we should be able to account for the intuitive appeal of the way Equal treatment 3 allows us to analyze 25% Added Value. I believe there is a way of doing so, but I will postpone presenting it to the end of the next section.

This concludes the analysis of when cases and treatments are alike. The answer is a surprising inversion of what one might expect, in that equality of treatment, which involves actions, is defined without direct reference to normative factors, while equality of cases, initially identified by their descriptive properties, is defined with respect to permissible actions. The normativity involved, however, is strictly non-comparative, and as such we have yet to touch on the normative content of the principle of equality before the law itself. It is to this topic that I shall now turn.

WHAT EXACTLY DOES A PRINCIPLE OF EQUALITY BEFORE THE LAW CLAIM?

Having settled the necessary conceptual issues, let us see if we can give clearer shape to the normative content of the principle of equality before the law. At its most basic, a principle of procedural legal equality will hold that a court ought to treat a case in a certain way if similar cases have been treated that way before. It need not, however, claim that the principle overrides all other concerns, so the “ought” is best understood as a claim that there is a pro tanto reason of comparative justice to perform the action.Footnote ²⁰

Further, the principle must hold, I think, that there is stronger reason to treat a case in a particular way the greater a proportion of similar cases that have been treated that way. One argument for this understanding of the principle is that it seems intuitively right, that the amount of like treatments ought to affect the strength of the reason. Another is that this proportionality equips the principle to deal with a potential problem identified by Christopher Peters, which arises in situations where the court has treated equal cases in at least two different ways, since then “[e]quality contradicts itself because it is not possible to treat certain people equally in one way without treating other people unequally in another way.”Footnote ²¹ In short, if the principle holds that there is an equal strength reason to treat a case in any way that similar cases have been treated, then any exception from a practice of φ’ing with respect to a type of case would leave the court with equally great reasons of procedural legal equality to follow either the mainstream or the exception.Footnote ²² To avoid this, a principle of procedural equality must hold that the proportion of equal treatment matters to the strength of the reason.Footnote ²³

Finally, in order to distinguish the reason at stake from those relevant to non-comparative justice, the principle must hold that the reason at stake is the result of the treatment of other cases. That is, the reason is a reason for treating the case at stake in a particular way just because like cases have been treated that way.Footnote ²⁴

Putting the elements of the prior analysis together, we might sum up the principle of procedural legal egalitarianism as follows:

Conversely, one might hold procedural legal non-egalitarianism:

While I believe this captures the essential features of the principle, a few clarifications and caveats are in order.

First, the stated principle remains jurisprudentially neutral, broadly speaking, but it does assume that the principle of equality before the law is at least potentially a kind of principle that could give the court (comparative) reason for action. If one holds, e.g., both (1) that the principle of equality before the law is a moral not a legal principle, and (2) that moral principles do not give rise to reasons for a court to act in a certain way, then the principle of equality before the law can be dismissed out of hand.Footnote ²⁶ I see no reason to think that this is the case, nor how one could plausibly argue that it was, but since I will not argue against it here, I shall simply adopt the assumption.

Second, as stated the principle is strictly backward-looking. This seems to me to be how the principle is typically conceived, but as Kent Greenawalt has argued, there may be reason to question whether this is its most plausible form.Footnote ²⁷ Consider:

The strictly backward-looking principle will hold that equality before the law gives the court reason to φ₁ in the present situation. This sounds odd, because the future treatment of other cases ensures that φ₂’ing will be the most common treatment, and that the number of cases treated alike will therefore overall be greater if the court presently φ₂’s rather than φ₁’s. If we want to avoid this, the principle will have to be both forward- and backward-looking, or time-indifferent. A similar point can be made with respect to counterfactual cases, and we may therefore want to extend the principle to cover like cases that the court would treat by φ’ing, were it to treat these cases, even though it neither has nor will.

Next, we might want to be able to say that equality before the law obtains with respect to certain elements or features of a case even if not with every element or feature of the case, and presumably we would then want to say that the principle is fulfilled in this particular respect. Hence, we should distinguish between total and dimension-specific equality before the law. The principle can be suitably modified by saying that there is a reason to treat a case C with respect to D by φ’ing, if similar cases have been treated by φ’ing with respect to D, where D covers one or more dimensions of the case.

Further, I have formulated the principle as claiming no more than a pro tanto reason, but it is of course possible to imagine both stronger and weaker versions. At one end of the spectrum, the former might resemble a strict doctrine of precedent, where the principle claimed a decisive reason for whatever treatment has been applied to the greatest proportion of past cases. At the other end of the spectrum, the latter could resemble what Derek Parfit calls moderate egalitarianism, where the principle would claim a reason so weak that it will always be outweighed by competing reasons, so that it will never make a difference to what the court ought to do all things considered whether more or fewer cases have been treated with the same procedure.Footnote ²⁸ Since the criticism I will turn to presently applies irrespective of the strength of the principle it makes no difference which version we adopt, but because it seems to me the most plausible I shall continue to focus on the pro tanto version stated above.Footnote ²⁹

Finally, although treating like cases alike seems to me the paradigmatic requirement of the principle, and treating like cases unalike the paradigmatic violation, some might want to demand more of the principle of equality before the law than the above. Thus, Hart argues that for what we mean by procedural equality to be adequately captured by the maxim “treat like cases alike,” “…we need to add to the latter ‘and treat different cases differently’.”Footnote ³⁰ We could accommodate this simply by adding a further condition to require that the treatment of unalike cases be unalike, but we presumably need to be more specific than this.

In fact, what we need, I think, is something like the second condition of Equal treatment 3, which held that cases are treated alike only if the court does not have more reason to φ in case A than it does to φ in case B, or less reason to φ in case A than it does to φ in case B. In this case, a suitably modified version of the condition would hold that for equality before the law to obtain unalike cases should be treated unalike in such a way that the court does not have more reason to φ₁ in case A than it does to φ₂ in case B, or less reason to φ₁ in case A than it does to φ₂ in case B.Footnote ³¹

Call the original principle of equality before the law defined at the beginning of this section a narrow principle of procedural legal egalitarianism, and let us say that a wide principle of procedural legal egalitarianism adds the following:

Two potential problems are raised by moving from the narrow to the wide principle. First, the wide principle of equality before the law involves two separate reasons. Some may consider this unsatisfactory, particularly since it appears to suggest that there could be situations in which the reasons conflict, and the principle would then pull in two different directions at once. Second, the way the principle relies on weighing reasons for the purposes of comparing unalike cases raises the question of whether (other) comparative reasons should themselves count in this weighing. That is, when deciding how strong the reasons for and against an unalike case are, should whether and to what extent this case has received treatment similar to the treatment of like cases make a difference?

Intriguing as these problems are, however, I set them aside for the present. Partly this is because exploring them would take me beyond the scope of the present article, and partly it is because I believe doing so is unnecessary. As Frederick Schauer notes, there is no logical connection between the narrow and the wide principle; the two appear to be related but independent.Footnote ³³ However, the problems that the narrow principle encounters in the next section would affect the wide version as well. Thus, while I take no stand for or against the wide conception of the principle, I shall restrict my attention to the narrow conception of the principle.

PROCEDURAL LEGAL EGALITARIANISM AND ITS DISCONTENTS

Having finally given clear shape to the principle, it is time to confront its critics. So far, I have argued that cases are alike when the court ought to perform (one of) the same action(s) in each case, that treatment is alike when it consists of identical actions that do not require the court to distinguish on the basis of a property cases do not share, and that the (narrow) principle of equality before the law claims that there is a pro tanto reason to perform an action if it will constitute like treatment of like cases. This clarifies the principle, but we have yet to assess whether it is attractive or even plausible.

In this section I will argue that traditional criticisms of the principle fail, but that a different line of critique shows the principle to be false. I am not the first to pursue this line of argument—it has been developed at length by Christopher Peters.Footnote ³⁴ It seems to me worth revisiting however, both because misconceptions about the principle persist, and because we can provide further clarification to certain details of the principle and the debate surrounding it.

Recall that, as I noted at the beginning of this article, the principle has had numerous critics. Even the moderately sympathetic Hart holds against equality before the law that:

The general problem adduced by critics is the following: since the equal treatment required by the principle of equality before the law applies only to cases that are alike, that is, to cases that ought to be treated equally on non-comparative grounds, how can the principle requiring equal treatment add anything to the situation? But beyond this intuitive concern, critical approaches divide on a number of issues.

Critics differ first on what alternative principle they rely on to undermine equality before the law; second on whether they argue that equality before the law means or is entailed by the alternative principle; and third on whether this leads equality before the law to be trivial, senseless, or false. It will be useful to discuss these elements of the critiques in reverse order, since this will allow us to better understand the way critics proceed and to dispense with one more easily dismissed type of challenge before discussing a more complex one.

Let us first consider briefly the conclusions that critics argue for. We find at least three different claims in the literature: that equality before the law is trivial, that it is senseless, and that it is false. The first of these would be the case, I take it, if it turned out that the principle was true, but its truth was guaranteed by a wider and more fundamental principle so that equality before the law added nothing to the normative landscape. The second would be the case if the principle turned out to be incapable of being true, that is, if it became apparent that despite its taking the shape of a truth-apt proposition, it did not actually express an idea that could be true. Finally, the third would be the case if the principle was both substantial and truth-apt but simply expressed a proposition that was not true. These differences between the conclusions are important because the arguments necessary to derive them are distinct, and we shall bear them in mind below.

Next, consider what alternative principles are at stake in the criticisms I have cited so far. As we have seen these are often phrased in terms of the “generality of rules” and the “principle of legality,” but I believe we can boil them down to three requirements that allow for the broader range of reasons I have included. One claims that the court must act in accordance with the non-comparative reasons it has for action. Call this the positive requirement of reason. A second claims that the court must not act in accordance with non-existent or inapplicable reasons for action. Call this the negative requirement of reason. A third claims that the court must recognize that one or more specific properties give non-comparative reasons for action and that one or more specific properties do not; the most obvious example of the former is a legal rule, while examples of the latter include simple numerical identity, personal animosity, and race. Call this the identification requirement of reasons. Obviously, one can hold that two or all three of these requirements apply.

TWO ANTI-EGALITARIAN STRATEGIES THAT FAIL

Now let us consider the two strategies. The first of these claims that, properly interpreted, equality before the law just means one of these requirements. Call this the semantic-identity strategy of criticizing equality before the law. It is sometimes difficult to be certain which strategy a critic has in mind, but the following passage from Wojciech Sadurski seems to me exemplify this approach:

The argument as I understand it is that equality before the law is semantically identical to what I called the negative requirement of reason above, and the conclusion that equality before the law is therefore trivial or senseless (I am not quite certain which of these Sadurski intends).

What are we to make of the semantic-identity strategy? It seems to me that while it may be true that we sometimes employ “equality before the law” as a convoluted way of expressing one or more of the three requirements I sketched above, it is certainly also conceived along the lines I have developed in the first half of this article.Footnote ³⁷ What this suggests is that the semantic-identity strategy can at most constitute an argument for the superiority of this conception over the others.

However, the conception of the principle of procedural legal egalitarianism I have defined is also independently preferable to a conception that equates equality before the law with one of the three requirements offered by critics. If we take seriously the notion that equality before the law is an egalitarian principle, and recognize that such principles are comparative by nature, then the conception I have defined is superior simply because it is comparative while the three requirements are not.Footnote ³⁸

The second strategy argues, roughly, that equality before the law is guaranteed by one or more of the three requirements, and that it can therefore be rejected (as trivial, senseless, or false). Call this the guaranteed-satisfaction strategy of criticizing equality before the law. Consider again a formulation by Sadurski:

The structure of the argument is as follows:

1. 1) the principle of equality before the law is satisfied iff like cases are treated alike, i.e., the court performs the same action in cases with identical sets of non-comparatively permissible actions,

2. 2) a court that acts in cases on the non-comparative reasons it has to act in these cases (positive), and/or does not act in cases on reasons it does not have to act in these cases (negative), and/or recognizes which properties {P₁, P₂…P_n} do and do not give reason to act in cases (identification), will perform a non-comparatively permissible action in each case,Footnote ⁴⁰

3. 3) a court that satisfies the positive, negative and/or identification requirements will satisfy the principle of equality before the law (from 1 and 2),

4. 4) if the principle of equality before the law is necessarily satisfied when the court does what it ought to for other reasons, then the principle is trivial/senseless/false.

5. C The principle of equality before the law is trivial/senseless/false (from 3 and 4).

What are we to think about this strategy? The inference from 3) and 4) to the conclusion is valid; the strong version of 2), where we apply all three requirements, seems to me indisputable; and I have myself argued in this article that 1) is true. That leaves only premise 4) and the inference from 1) and 2) to 3).

Let us consider 4) first: Which of the claims—triviality, senselessness, and falseness—might be true? Certainly not senselessness. For this to be the case it would need to be impossible for equality before the law to obtain, and in fact the first part of the premise assumes just the opposite. Falseness and particularly triviality do better. Admittedly, there is something intuitive about the idea, which comes down, I think, to the principles giving competing interpretations of the reasons at stake, a competition that when resolved in favor of one robs the other of credibility.

Consider for illustration the relation between the harm and offense principles of criminalization.Footnote ⁴¹ If it turned out that the offense principle could best be understood as concerned with preventing a particular form of psychological harm, and the harm principle is based on a plausible explanation of why we have reasons to prevent harm generally, including this form of psychological harm, then this would seem to undermine the plausibility of the offense principle.Footnote ⁴²

The argument can be further bolstered by arguing, as some critics do, that it counts against the principle of equality before the law that it is conceptually dependent on non-comparative principles, while the reverse is not true. That is, they add:

1. 5) Equality before the law is conceptually dependent on what the court ought non-comparatively to do,

And revise the fourth premise as:

1. 4*) if the principle of equality before the law is necessarily satisfied when the court does what it ought to for other reasons, and conceptually dependent on what the court ought non-comparatively to do, then the principle is trivial/senseless/false.

Which supports the conclusion from 3), 4*), and 5). This strengthens the claim because the conceptual dependence suggests that the non-comparative requirements are fundamental and equality before the law derivative.

Crucially, however, the plausibility of 4)/4*) relies on the comparative and non-comparative requirements not being able to come apart and unfortunately for the premise they can do just that. As Christopher Peters has shown, there can be cases where procedural equality obtains although the non-comparative requirements are not met, e.g., because the court ought non-comparatively to φ but instead φ₁’s, and φ₁ is the action most frequently applied to like cases.Footnote ⁴³ Even if satisfaction of the non-comparative requirements was sufficient for satisfying equality before the law, it is not necessary, which undermines the premise. But, even worse, we can also have cases where the court does what it non-comparatively speaking ought but procedural equality is not satisfied, e.g., because the court ought non-comparatively to φ and φ’s, but φ₁ is the action most frequently applied to like cases.Footnote ⁴⁴ This shows that the inference from 1) and 2) to 3) is invalid. It may appear valid because it holds when the court does what it non-comparatively ought in every case, but for the argument to work it would have to also apply to more realistic situations in which the court occasionally fails to do what it ought.Footnote ⁴⁵

Both strategies of critique against equality before the law fail in the end, the first because it overlooks the most interesting sense of that principle, and the second because it does not follow from the possible satisfaction through more fundamental principles that it is trivial or false.

THE REAL CHALLENGE

Unfortunately for the principle, it is possible to present a much stronger challenge. Consider two closely related objections offered by Christopher Peters. First, that in those situations where the principle can conceivably make a difference, “[i]t necessitates the treatment of a person according to the same irrelevant criterion (or according to the same incorrect balancing of relevant criteria) that has been applied in the unjust treatment of an identically situated person.”Footnote ⁴⁶ Second, that “…equality contradicts justice in every case in which equality can be claimed to have any operation at all-in other words, in cases where an identically situated person already has been treated unjustly. As such, a commitment to equality as a substantive norm, if coupled with a commitment to any non-egalitarian notion of justice, is equivalent to a concession that one's moral system can never be fully coherent.”Footnote ⁴⁷

Peters claims that the problem is that the decision is caused by one or more unjust decisions in similar cases, and that the conflict between comparative and non-comparative reasons renders the moral system as a whole incoherent. These objections strike me as unpersuasive. The fact of causation cannot be held against decisions grounded in the principle, since such decisions are caused by the application of an independent and purportedly just principle, not by the mere repetition of the non-comparatively unjust decision(s). Similarly, the existence of conflicting reasons does not in and of itself render a moral system incoherent. Any system will face such conflicts regularly, if only because reasons of beneficence often involve trade-offs between the well-being of different persons, and so long as it is theoretically possible to achieve a balance of reasons, the system can be coherent nonetheless.Footnote ⁴⁸

However, the two objections point in the direction of a closely related objection, the content of which seems to me to underlie at least some of Peters's concern: a suitably modified leveling-down objection. This type of objection shows that when we carefully reflect on cases where the principle would require compromising non-comparative justice it is simply implausible that there could be a reason—any reason—to treat like cases alike.

The original leveling-down objection is designed to show that telic egalitarianism is implausible, since there are situations in which an improvement in equality that is better for no one is intuitively better in no respect.Footnote ⁴⁹ The suitably adjusted leveling-down objection must show that there cannot be a reason for or against φ’ing in a case simply because fewer or more like cases have been treated by φ’ing, all else being equal. Conversely, a proponent can make plausible the principle by producing a leveling-down scenario in which intuition supports the existence of a reason to level down. Alfonso Ruiz Miguel attempts to do so with the following:

I share the basic intuition that there is indeed something ethically problematic about the decision to require the second person to return for his papers the next day, when it is both possible and common practice to deliver them after a five-minute wait. The question is what drives the intuition, and here it seems less than clear to me that it is equality before the law that does the work. At least three other factors might be thought to affect our intuition. First, the intentions of the official are clearly malicious, even if the malice imposed is only minor inconvenience, and no matter what theoretical views one holds about the moral relevance of intentions it is unlikely that our intuition can avoid being affected by them in cases such as this. Second, the public expression and awareness of differential treatment is likely to create shame and frustration, beyond that engendered by the delay itself. While these are effects of inequality before the law, they do not show that equality before the law is in and of itself important, and so properly speaking they should be discounted, a task that our intuition is likely to find difficult when processing the scenario. Third, and most importantly, it is not clear that this is a proper leveling-down scenario. The intended reading is for the practice of handling applications swiftly to be unjust, but even if we accept that (and it is not entirely clear that we should) so that the official's insistence on delaying the processing is in that respect non-comparatively better, it is clear that the man is treated worse than others, i.e., “pushed below,” not “leveled down to,” in a different sense. That too, it seems to me, is very likely to affect our intuition.

Consider instead the following scenario, which avoids these intuitive distortions:

Note the importance of the qualifier that the difference in treatment is the only difference between the actual case of C and what would have happened had the court treated C as it does other cases. That is, we should imagine that nobody is thereby made better or worse off than they would otherwise have been. This is important because otherwise we risk polluting our assessment of the purely procedural principle with telic factors such as the intuitive pull of our concern for equality of outcomes or just deserts.Footnote ⁵² We must imagine that this lack of impact extends to nobody being aware that there has been a difference of treatment. The principle does not depend on persons recognizing that unequal treatment has occurred, and if we suppose that they do, we risk polluting our intuition with such extraneous factors as the resulting grievances, envy, and loss of social cohesion.Footnote ⁵³

By stipulation the court has acted better than it otherwise would have in non-comparative terms. However, in so doing it has also failed to satisfy equality before the law. But is there any sense in which the court's treatment of C can be said to be normatively bad? Was there any reason for the court to treat C as it does like cases, rather than with the non-comparatively just treatment it applied?

Intuitions can be fickle, and some may feel the pull less than I, but it seems clear to me that the answer must be in the negative. There is not even a single ground for the court to regret having treated C as it did, and there was not even a single reason for the court to treat C as it treats other cases.Footnote ⁵⁴ If true, this is bad news for the principle of procedural legal egalitarianism, since it turns out we should be error theorists about it: while the principle is neither trivial nor senseless, it is false.

Some readers, however, may not share the intuition at all, or indeed may have the opposite intuition.Footnote ⁵⁵ What are we to do then? A first response would be to ensure that the intuition is firm and reliable, that it is not based on a misunderstanding of the principle or case at stake, and that it does not involve any irrelevant factors, but if some readers still have contrary intuitions we are unlikely to be capable of making further progress. Intuitions of the type at stake here are normative bedrock. It is worth bearing in mind, however, that this does not support the principle. Rather, as Henry Sidgwick famously argued, when reasonable persons have suitable but contrary intuitions, each person ought (at least temporarily) to suspend belief in the evidentiary value of their intuition.Footnote ⁵⁶ While this applies to critics of the principle too, offhand it still leaves the principle in dire straits. It seems unreasonable for proponents to grant the principle weight barring any support at all, and such support will have to rely on other means than the suspended intuitions. It is difficult to imagine what these might be.

Perhaps we should not ultimately be surprised that the principle runs into such trouble; if the challenge seems familiar it is likely because the objection is neatly captured in the adage that “two wrongs don't make a right.”

A PERMISSIBILITY-RESTRICTED VARIATION

Consider one last rescue attempt, based on a narrower version of the principle. Caleb Nelson argues that the doctrine of stare decisis ought to distinguish between demonstrably erroneous past decisions and those that fall under judicial discretion, but that are nonetheless different than the court would currently reach.Footnote ⁵⁷ Only previous decisions that are recognizably permissible responses to cases of the kind in question, Nelson argues, should give rise to stare decisis considerations.

Set aside for now the merits of Nelson's jurisprudential argument, and let us consider a different question: Can the point be transferred to the principle of equality before the law? That is, should we prefer a version of the principle where it concerns only cases that have been treated permissibly? Call this permissibility-restricted (narrow) procedural legal egalitarianism:

This version has two immediate benefits. First, it is intuitively appealing to focus the requirement of like treatment on the instances of treatment that are non-comparatively just. Second, it avoids the leveling-down challenge presented above. The unjust treatment of other cases gives no reason, on the restricted principle, for treating a case unjustly.

However, the move to a permissibility-restricted version faces at least three problems. First, despite its intuitive appeal, the restriction seems problematically ad hoc. It requires drawing a distinction between two sets of like cases that fall under the scope of the original principle, and holding that one should be excluded. This in turn requires a justification, which cannot be simply that doing so avoids the embarrassment of the leveling-down objection. Perhaps one is forthcoming, but until we see it we should not assume that it exists.

Second, the fundamental justification of the original principle of equality before the law is the intuitive appeal of its requirement that agents do not differentiate between similar cases. This justification is no longer available, since the revised principle does not hold this, and it is not clear what is meant to replace it as fundamental justification for the permissibility-restricted principle.

Third, the principle runs into difficulties with the timing of cases on either of the interpretations (past-oriented or time-indifferent) of which cases to compare with. As Peters argues, a past-oriented principle implausibly fetishizes the order in which cases happen to have been decided by the court.Footnote ⁵⁸ Suppose that a subject of the court prefers that the court φ₁’s rather than φ₂’s, even after recognizing that both actions are (non-comparatively) permissible. Suppose also that in the one like prior case the court φ₂’ed. Suppose finally that the court is non-comparatively inclined to φ₁, but that this inclination is weak enough that the reason generated by comparative concerns defeats it, leading it to φ₂. It seems no answer to the subject's complaint that the court φ₂’ed in her case to say that since it has previously φ₂’ed the court ought now to φ₂. She will reasonably respond that the court would have φ₁’ed if the order of the cases had been reversed and that the mere accident of the order of temporal occurrence is no grounds for frustrating her preference.Footnote ⁵⁹

Similar considerations apply to the time-indifferent version of the principle, although the claim will here be that the mere accident of the frequency of the occurrence of actions among the permissible set cannot give grounds for frustrating her preference. Note that these frequencies are themselves accidental, in the sense that, since there is no reason for a court to prefer one of them to another—all permissible actions in like cases have equally strong non-comparative reasons in favor of them by definition—which of them it chooses is based on chance.

I conclude that this revision of the principle is no more, and probably less, plausible than the original version.

THE NON-EGALITARIAN GROUNDS OF THE NORM OF PROCEDURAL LEGAL EGALITARIANISM

At this point it may be tempting to echo Bernard Williams's skepticism about the moral importance of equality in general and say of procedural legal equality simply that: “…when the statement of equality ceases to claim more than is warranted, it rather rapidly reaches the point where it claims less than is interesting.”Footnote ⁶⁰ Having reviewed and rejected as unconvincing the normative significance of procedural equality above, we are left with a choice: Do we discard the principle as mere misunderstanding, or is there something yet to be said in its favor? I will argue the latter, but at the cost of shifting from intrinsic to instrumental normative significance.Footnote ⁶¹ Specifically, I will argue, we may have telic reasons to support a norm of procedural equality.Footnote ⁶²

I take a norm to be, roughly, a socially reproduced principle of practical reasoning, i.e., a rule constitutive of the decision-making procedures of an agent.Footnote ⁶³ Thus, while norms are action-guiding they are not reasons-generating. Rather, norms can help us act in accord with or respond to reasons, and we can therefore have instrumental reasons to adopt and internalize certain norms. Note further that I take for granted that given our psychological constitution norms are relatively robust. While at least some norms will be subject to revision through introspection, reflection, and conscious effort, as well as through external pressures, it is in practice impossible for an agent to review and revise her set of norms prior to any individual decision. When we assess the moral importance of norms we are by necessity assessing their quality as relatively enduring principles of decision-making.

Furthermore, bear in mind that the present discussion differs by virtue of concerning a norm from the more common jurisprudential issue of the benefits of a doctrine of stare decisis. Although presumably a legal doctrine and a norm will often go hand in hand, e.g., because establishing a doctrine of stare decisis is one way of introducing and reproducing a norm of procedural legal egalitarianism, they are logically separate, and my argument here concerns the latter. Having said that, the two issues are similar enough that points can often be transferred from one context to the other, and I shall do so where it seems to me legitimate.

Now let us consider what might be instrumental reasons for adopting a norm of procedural legal egalitarianism. I believe there are arguments to be made for benefits of efficiency, accuracy, and motivation. These will be sketchy—their fuller development would require a paper of its own—but will at least suggest the strategy for justifying a norm of procedural legal egalitarianism.Footnote ⁶⁴

First, as a conservative norm, which essentially advocates following established traditions, the norm of procedural legal egalitarianism may promote shorter deliberation of how to treat a case. This can sound like a flaw rather than a benefit, but bear in mind that any process of deliberation imposes accumulating costs that eventually outweigh the benefits of further deliberation; no case can or should be deliberated forever.Footnote ⁶⁵ Note also that these costs accrue to all parties to the proceedings, the state, the accused and the defendant (or the litigants in civil trials) as well as those close to them, and often the general public. Giving weight to precedent effectively allows multiple cases to share deliberation costs.Footnote ⁶⁶ This benefit comes at a price, since comparing with other cases itself requires deliberation about which cases are comparable. However, bear in mind that the comparison can be dimensional, that is, focus on a particular element of the cases, and employ proxies, e.g., compare on the basis of shared relevant properties. Thus, if it employs a criterion of comparison that is at least moderately easy to apply, and if non-comparative deliberation is halted in favor of comparison only once the marginal benefits of non-comparative deliberation are exceeded by the benefits of comparative deliberation, the norm will promote overall efficiency.Footnote ⁶⁷

Second, following past procedure can be conducive to applying the right procedure in an imperfect justice system, for reasons illustrated in the multiple-choice version of the Condorcet Jury theorem.Footnote ⁶⁸ Any individual agent has limited time, resources, and cognitive power, and on the previously adopted assumption that cases have a right answer, in the minimal sense that there will be a limited set of permissible actions and therefore by extension a set of impermissible actions, it is both possible and realistically speaking likely that courts will occasionally make mistakes.Footnote ⁶⁹ By relying on the accumulated considerations of past deliberators the agent increases her chances of choosing the correct answer about how to act herself so long as her fellow agents are minimally competent, i.e., statistically more likely to derive the right answer to the same question than to pick any mistaken answer.Footnote ⁷⁰ The norm of procedural legal egalitarianism functions, on this interpretation, as a form of precautionary principle limiting individual blunders by deference to the superior capacities of the collective of past thinkers.

It is worth bearing in mind two features of this argument. The first such feature is that it is a different argument than the argument in favor of relying on the presumed epistemic authority of an individual precedent.Footnote ⁷¹ As Schauer puts it, a judge may well reason: “If Cardozo decided this way, who am I to disagree?”Footnote ⁷² However, whatever the merits of this type of argument, it would not support the proportionality of the principle of procedural legal egalitarianism as I have set it out, and cannot therefore constitute an argument in its favor. Another feature is that the strength of the resulting reason may vary in two different contexts. As Hellman emphasizes (mutatis mutandis) in the parallel discussion of epistemic reasons for a doctrine of stare decisis, there can be reason to support a norm of procedural legal egalitarianism, if the norm overall leads to better legal decisions, even if there are individual cases where the norm pulls the court's decision in the wrong direction.Footnote ⁷³ This systemic or institutional consideration is different, however, than the issue of what the court ought to do in individual cases. Will the court have reason to follow the norm in those individual cases, where doing so would lead to a worse decision?Footnote ⁷⁴ It might, as Hellman suggests, if doing so will support the norm while deviating will weaken it, or if the court has sufficient reason to doubt its assessment that the relevant former cases have been decided wrongly. However, it might not, if such reasons do not apply. Importantly, it can (theoretically, at least) be simultaneously true that there is reason to support the norm and false that the court has reason to follow the norm in an individual case. The reasons at stake are different, and their strength need not correlate.

Third, and perhaps most importantly, the norm of procedural equality may aid the agent in tackling the challenge of bias. For present purposes it will suffice to say that a bias consists in an agent systematically (as opposed to accidentally) but unintentionally giving a type of reason undue weight in her deliberations, including giving such reason any weight when it should carry none, or no weight when it should carry some.Footnote ⁷⁵ It is one thing, e.g., to consciously affirm the racial superiority of persons with a particular skin color, and another to affirm their equality while unwittingly attributing weight to the color of a person's skin in one's decision-making. On this definition, only the latter involves bias.Footnote ⁷⁶ Thus a court is biased if the set of reasons it takes to determine what it ought to do contains at least one member that is unintentionally granted more or less weight than it should be granted, and this reflects a tendency of the court to misestimate the weight of that type of reason. Unfortunately, there is little reason to doubt that courts do suffer from bias in this manner.Footnote ⁷⁷

Assuming an agent who is both motivated to act as she ought and aware of the reasons that pertain to the case, a norm of procedural legal egalitarianism is suited for a safety mechanism. Consider that psychological appeals and repeated information cannot be expected to make a difference to the agent's actions. What she lacks is neither motivation nor information, but the ability to see how bias distorts her deliberations. Comparisons with like cases provide an independent yardstick against which to measure her own conclusions. Whether this will be enough to alter her behavior can clearly be questioned, and even optimistically it will likely vary from case to case, but the norm at least presents her with an opportunity to critically examine her reasoning without relying on the same procedure of deliberation that led her astray in the first place.Footnote ⁷⁸

CONCLUDING REMARKS

In the course of the preceding, I have spelled out the notion of equality before the law in a principle of procedural legal egalitarianism and argued that traditional critiques misrepresent or fail to undermine it, only to show that while conceptually distinct it is not a plausible normative principle. However, I have suggested that there may be a way of salvaging procedural legal egalitarianism if we understand it as a norm justified by its instrumental benefits, rather than as a principle that carries independent normative weight.

The conclusion that procedural equality is normatively insignificant will perhaps not come as a surprise to some. It fits with contentious but well-supported conclusions against egalitarianism in the broader field of ethics, but the argument I have presented here may have implications for this wider debate too. At least in the context of the legal system, I think it is possible that the intuitive support some people feel for egalitarian principles is properly attributable to the benefits of the norm. By offering an alternative explanation of the intuitions allegedly supporting one particular egalitarian principle, the argument further weakens the case for deontic egalitarian principles.

We should keep in mind in the end, however, that a shift from intrinsic normative value to instrumentally valuable norm need not diminish the principle's practical importance. Although a court of angels wielding perfect justice would scoff at anything less than the ideal procedure, in the real world equality before the law may be not merely all we can hope to get, but an aspiration for which we ought to strive.