Equality Before the Law Ruthless Criticism

Equality Before the Law

Equality before the law is a basic right in the constitutions of democratic countries, and its content appears in all conventions on human rights. It is the legal as well as moral appeal of everyone who opposes discrimination. Basic rights are the supreme goods. They formulate the basic consensus of the citizens on which the community is built. To challenge them or even put them into question is considered tacky So at this risk, some questions that cannot be refrained from:

1. If “no person shall be favored or disfavored because of sex, parentage, race, language, homeland and origin, faith, or religious or political opinions” then this pronounces a prohibition; that which is forbidden is obviously the order of the day where this law applies. Would it have to be forbidden otherwise? It would make no sense if, for example, the constitution allowed the citizens to become older than 60, or if it forbid them to fly without technical help.

2. So it is complete nonsense to accuse the constitution of not realizing these articles: that’s the only reason they are there. The complaint about the difference between the constitutional idea and the constitutional reality is based on the assumption that the constitution would be a kind of description of the conditions within its scope. It claims no more and no less than that the standards codified here for the coexistence of the people are identical to their interests. Yet the law itself even refers to the fact that the citizens evidently have reasons to disfavor their fellow humans because of their sex, origin, language, etc.

3. The constitution does not announce that equality is to prevail completely in principle. Only in the mentioned areas, which moreover shall restrict “political views” to the criteria in the constitution itself. Another area in which inequality prevails is not prohibited: e.g. in the area of property, participation in the wealth of society, to which the constitution applies. Wouldn’t some put up with a little discrimination because of their faith or origin if discrimination on grounds of property would be ended? Doesn’t the equality postulate end just where its application begins to get exciting? And nevertheless it is asserted with certainty: property differences are owed just as little to propertylessness as to origin or language differences. Even the staunchest ideologists of equality do not maintain that their work as “employees” with a 40 + hour work week and a working life of 40 years is so productive that the next generation does not have to suffer the same propertylessness.

4. Here the constitutional-juridical distinction between “real and formal equality,“ between “equality in substance” and “equality in procedure,” “helps.” This is the shrewdness of equality, that it insists, first and foremost, on granting each citizen equal “process,” in court before the judge, in school, in acquiring food, etc. which is likewise prescribed practically by the guardians of the constitution. Hence inequality just belongs to equality as well: inequality in religion motivates the principle of equality, so that nobody is penalized harder, paid less or not moved up in school because of their religion. Gender inequality motivates the precept that nobody is penalized harsher, paid less or not moved up in school because of their gender, etc. For these reasons: no! But fine for other reasons: if an owner of a factory takes home $20,000 per month for his private consumption, accumulates $200,000, pays his workers an average wage of $2,000, then this is permitted; because it does not break the law of equality in the constitution: the worker has only one tenth for his livelihood of what the employer has for his consumption not because of his different religion, his different gender, his different origin, his different language, etc. Everything is ok here! Because legal equality does not means that nobody is discriminated against or preferred in his rights because of the extent of his property. Why is this really not in the constitution?

5. Finally one should for once consider whether equality and/or equal rights – in substance or in procedure, real or formal – is really at all a goal to be aimed at, or in fact the production of equal rights is generally the means to cope with political, economic, psychological and physical oppression.

See Karl Marx: Critique of the Gotha Program