SHOULD EQUALITY BE A CONSTITUTIONAL PRINCIPLE?

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Abstract:

This article considers the status of a right to equality or a principle of equality, whether there really is any such right or principle, whether it deserves constitutional protection and the extent to which it already is recognized in the common law.

It is argued that a constitutional principle of equality should not be recognized; there does not yet exist one in the law even in an embryonic form. It is suggested that for it to be the case that a right should be protected as a constitutional right the putative right should protect an intrinsic value, or should be an instrumental means to the achievement of another value or values clearly identified or should serve some rhetorical function. But in the case of equality none of these factors in fact apply. The article argues that equality is not an intrinsic value; secondly, that although it is at times of instrumental value, the intrinsic values to which it would be aimed cannot be clearly enough delineated or identified. Neither could the proposed principle of equality be prevented from serving non-valuable ends. Finally, the article suggests that any rhetorical cause that equality might uphold is not strong enough or well enough focused for it to hold up a constitutional right.

Keywords: Common Law; Constitutional Law; Equality; Human Rights Act; Jeffrey Jowell

Document Type: Research Article

Publication date: January 1, 2000

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  • Until 2007 the King's Law Journal was known as the King's College Law Journal. It was established in 1990 as a legal periodical publishing scholarly and authoritative Articles, Notes and Reports on legal issues of current importance to both academic research and legal practice. It has a national and international readership, and publishes refereed contributions from authors across the United Kingdom, from continental Europe and further afield (particularly Commonwealth countries and USA). The journal includes a Reviews section containing critical notices of recently published books.
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