Lawyers often speak of equality before the law. They do so not just under the influence of the many
constitutional and related provisions which affirm that notion and its cognates. The influence of the law‟s own
understanding of itself, as revealed in commentaries about particular segments of legal doctrine and reflection
upon the nature of law in general, also leads lawyers to regard the notion as significant. The same is true of
equality under the law: we lawyers speak of this notion almost as often as the idea of equality before the law,
even though equality under the law is perhaps less frequently affirmed in constitutional and related provisions.2
Both notions, frequently to the fore in judicial and various other statements of and about the law, are so familiar
that we tend not to regard them as separate, running both together because – another common assumption this –
they are surely simply part of, or reducible to, or derivable from, the rule of law ideal. If the rule of law ideal is
not in part about equality under and before the law, then what could it be about?
This essay argues that the ideas of equality before the law and equality under the law are indeed
different, although only in the sense of being distinctive aspects of a single coherent idea of juridical equality. It
is also argued that this idea of juridical equality manifests itself in an interestingly diverse range of legaldoctrinal
areas, suggesting a perhaps surprising underlying uniformity to ostensibly very different branches of
law. Finally, after criticising some alternative accounts of equality under and before the law, some reasons for
regarding this coherent idea of juridical equality as normatively appealing are highlighted.
I begin by stipulating what this allegedly coherent idea of juridical equality looks like. This stipulation bears no
argumentative weight but functions only to illustrate, in advance, the outcome of the abbreviated trawl through
legal doctrine summarised below. The principal argumentative claim in this section is that this idea of juridical
equality is discoverable in diverse and seemingly unrelated areas of legal doctrine and that this underlying unity
is both interesting and important.