Equality before the law : a substantive constitutional principle

Foran, Michael P. (2020) Equality before the law : a substantive constitutional principle. Public Law. pp. 287-306. ISSN 0033-3565

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The principle of equality before the law is often characterized as procedural or formal in nature and consequently of minimal value. Recent scholarship has offered a more nuanced representation of this critique, maintaining that the principle is procedural in nature but emphasizing its instrumental importance. This paper challenges that characterization, arguing that equality before the law is best interpreted as a foundational constitutional principle which manifests substantive restrictions on the content of legal rules. Equality before the law, as an independent constitutional principle, should not be confused with the broader value of equality, nor with the rule of law: it incorporates aspects of both, mandating that legal subjects, including legal officials, be treated as prima facie equals in the creation, interpretation, and application of the law. As such, it in an integral normative foundation for the common law constitutional order. Any analysis of the common law constitution must adequately account for and give proper recognition to this fundamental constitutional principle.