4.1 Equality before the law

The NDP belongs to a long tradition which opposes legal privilege, but it is not simply another name for equality before the law. Equality before the law is an ideal with several related meanings and considerable room for interpretation. The NDP takes one part of that ideal—non-discriminatory State treatment—and expresses it as a much more restrictive constitutional rule. Understanding both the continuity and the difference requires first considering how the older doctrine developed.

Origins of the doctrine

Equality before the law did not arise at a single identifiable moment. The ancient Greek idea of isonomia, or equality under law, associated political freedom with equal civic standing rather than rule by the arbitrary will of one person. Greek citizenship was nevertheless confined to a minority of the population; women, slaves, and foreigners were excluded. The principle therefore appeared long before it was applied universally. Aristotle also distinguished numerical equality from proportional equality: justice might require like cases to be treated alike while permitting different treatment where a relevant difference existed. That formula became important, but it left the decisive question—what differences are relevant?—to political and legal judgment.

Stoic accounts of a common human rational nature, Roman ideas of general law, and the Christian belief in equality before God contributed further elements, although the societies adopting them continued to maintain slavery, hereditary rank, and unequal legal status. Medieval instruments such as Magna Carta restrained arbitrary power and required lawful judgment, but did not establish equal citizenship in the modern sense. These sources are better understood as stages in the development of the rule of law than as complete statements of the contemporary doctrine.

The early-modern natural-rights tradition made the principle more universal. In the Second Treatise of Government (1689), John Locke began from a natural condition of equal power and jurisdiction in which no person was born entitled to rule another. Political authority required consent and was to operate through standing laws rather than personal commands. Locke demanded one rule for rich and poor, for the court favourite and the ordinary person. Equality here meant the rejection of inherited political subordination and arbitrary government, not an attempt to equalise possessions or outcomes.

The principle received a particularly clear public formulation in Article 6 of the 1789 Declaration of the Rights of Man and of the Citizen. It declared that law must be the same for all, whether protecting or punishing, and that public positions should be open according to ability rather than inherited rank. The declaration abolished the justification for separate legal orders based upon estate and birth, even though France did not immediately or consistently extend its proclaimed equality to women, enslaved people, or colonial subjects.

The American formulation developed through the Fourteenth Amendment (1868), adopted after slavery and the Civil War. It prohibited a State from denying any person within its jurisdiction the equal protection of the laws. Equal protection was therefore not merely a command to administer an existing law consistently; it also became a means of challenging laws which created unjustifiable classifications. Courts nevertheless had to decide which classifications were permissible and how closely to examine the government's stated reasons for them.

A. V. Dicey incorporated equality before the law into his influential account of the rule of law in Introduction to the Study of the Law of the Constitution (1885). For Dicey, officials and ordinary citizens were subject to the ordinary law administered by the ordinary courts. Public office did not place a person above the law or create a separate system of official justice. His emphasis was therefore equal legal subjection and accountability, rather than a prohibition upon every legislative classification.

After the legal atrocities and racial classifications of the first half of the twentieth century, Article 7 of the Universal Declaration of Human Rights (1948) joined three ideas: equality before the law, equal protection of the law, and protection against discrimination. Modern constitutional equality provisions commonly combine these ideas, but their application still depends upon courts deciding whether differently situated people are comparable, whether a classification has a legitimate purpose, and whether the distinction is sufficiently connected to that purpose.

What equality before the law can mean

The history left several propositions under the same expression:

• No person is above the law. Rulers, officials, and private citizens are legally accountable.
• No hereditary caste has a separate legal status. Birth, rank, race, religion, or political connection should not confer superior rights.
• The law must be administered consistently. The same rule should produce the same legal consequence in materially similar cases.
• Laws should be general. Government should act through public, prospective rules rather than commands written for named people or retrospective punishment.
• People are entitled to equal protection. The State should not withhold the protection of its law from a disfavoured person or group.

None of these propositions requires equal wealth, ability, possessions, or outcomes. Nor do they literally require the State to treat every person identically. A court treats a convicted offender differently from a person not proved to have committed an offence; a public employer may select an applicant for relevant competence; and a hospital responds differently to patients with different medical needs. Every workable legal system must identify some differences while ignoring others. The central difficulty in conventional equality doctrine is determining which differences may lawfully matter.

Mises and Hayek

Ludwig von Mises treated equality before the law as the equality demanded by classical liberalism. In Liberalism (1927), he rejected the claim that people are naturally identical or that government should give them equal incomes. His argument for legal equality was practical. Free workers are more productive than people held in servitude, and lasting social peace is impossible where classes possess different legal rights and duties. The disenfranchised will struggle against the privileged; abolishing class privilege removes that source of conflict.

For Mises, equality before the law consequently meant equal legal rights, the abolition of distinctions based on birth and rank, and the removal of privileges created by tariffs, subsidies, monopolies, or political favour. It did not mean equal market results. Nor did he reduce the principle to a mechanical inspection of statutory words. Whether an institution was a privilege depended in his account upon its place in the wider liberal order and whether it served peaceful social cooperation.

Friedrich Hayek developed the idea as equality under general and abstract rules. The State should announce rules in advance, apply them to unknown people and future situations, and avoid directing particular persons toward particular outcomes. Equal rules would predictably produce unequal results because people have different abilities, knowledge, circumstances, and choices. Hayek therefore regarded equality before the law and government production of material equality as competing projects: producing equal positions would require officials to treat people differently and exercise continuing discretion. His formulation strongly opposed legal privilege, but still permitted abstract classifications whenever specified conditions occurred.

How formal equality permits discriminatory government

A law may be general in form and still divide people into favoured and burdened classes. A progressive tax applies the same schedule to everyone, but imposes different rates according to income. Means-tested welfare is equally available to everyone who satisfies its conditions, but gives different entitlements according to income and assets. A subsidy may be open to every business in a named industry while excluding all other industries. Zoning, licensing, employment law, and regional funding can likewise be expressed as general rules which classify people by circumstances, occupation, relationship, or location.

Conventional equality doctrine asks whether the classified people are similarly situated, whether the State has a permissible objective, and whether the classification is adequately related to that objective. The strength of that review varies with the jurisdiction and the characteristic involved. This approach can invalidate racial or religious discrimination while readily accepting classifications based on income, occupation, business size, marital status, age, or location. It also gives legislators and judges considerable authority to decide which purposes and distinctions are reasonable.

How the NDP differs

The NDP replaces that open-ended inquiry with a presumption and an express list of exceptions. If State treatment depends upon a characteristic of a person—including income, wealth, beliefs, preferences, circumstances, or possessions—it is discriminatory and prohibited unless a constitutional exception applies. Majority approval, a claimed public benefit, administrative convenience, or the fact that the same classification is available to everyone does not supply an additional justification.

This makes the NDP stronger than conventional equality before the law in several respects:

• It governs policy, procurement, pricing, fees, charges, services, and enforcement as well as legislation.
• It attacks the classification itself rather than asking only whether people within each class are treated alike.
• It protects characteristics such as wealth, income, possessions, beliefs, and circumstances which ordinary constitutional law often permits government to use.
• It does not allow courts to invent further exceptions by balancing discrimination against an asserted public interest.
• It prevents formally universal wording from concealing targeted benefits or burdens implemented through contracts, algorithms, intermediaries, or selective administration.

The NDP does not demand identical treatment or equal outcomes. Its exceptions permit distinctions based on such matters as merit for a task, chronological priority, citizenship, territorial residence, violations of the NAP, the protection of minors, and specified health conditions. Distinctions inherent in providing a service, such as medical triage by urgency, are also possible. The difference is that the permitted grounds are constitutionally specified and confined to their stated purposes rather than left to ordinary political balancing.

The NDP is also narrower than the complete doctrine of the rule of law. It does not by itself require laws to be public, prospective, intelligible, stable, or adjudicated by independent courts. It does not state the procedures required for a fair trial or determine whether the substance of a universally applicable law is compatible with the NAP. VoTa therefore needs both principles: the rule of law controls the form, administration, and adjudication of legal power, while the NDP controls the personal characteristics upon which State treatment may depend.

Relationship to the classical doctrine

The NDP is best understood as a strict constitutional development of equality before the law, not a rejection of it. It accepts the classical opposition to caste, privilege, arbitrary power, and equalisation of outcomes. It then addresses a weakness exposed by the modern administrative State: almost any targeted policy can be written as a general rule applying equally to everyone who falls within a politically selected category.

Mises and Hayek asked government to act through equal general rules. The NDP adds a prior question: may the State use this characteristic to define the rule at all? Its answer is no unless the Constitution expressly permits the distinction. Equality before the law remains the broad ideal; the NDP supplies a more determinate restriction on how the State may classify the people subject to it.