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Question Three: How far can law treat people equally? How far ought it to do so?
To analyse this question as a whole, there are a number of questions that must be
answered including: how laws govern people, can these law treat us equally, and
how far should the law go to achieve this equality. This discussion will identify
different types of law, different groups of people, their rights and freedoms, and the
theories that have evolved in relation to equality. It will also highlight the inherent
difficulties that society will face when trying to maximise social welfare and/or
equality for the people.

How does law govern people

With law as mixture of legal doctrine and social/cultural anthropology, it is obvious
that we must recognise other legal structures outside of own, especially in a country
as multicultural as Australia. It is possible that we may encounter complications
when adopting or making room for these systems, but it is appropriate to consider
the different types of law that operate and govern within the various cultures and
religious groups in our world.

On one hand, the Western laws and values that we live by are seemingly unique to
our legal system, especially as we compare the importance of some values in a firstworld country, with those of high importance in a third-world country. Also there is
the comparison of first-world legal systems that highlights vast differences in our
laws. On the other hand though, we can see that laws in other countries will often
mimic each other too, with international laws and treaties to aid in their enforcement
the Universal Declaration of Human Rights. This fits in with the idea of general

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jurisprudence, where the law can be examined in its universal context, in specific
geographic locations, or just generally.1 Twining notes that in this global perspective
on law, it is increasingly important to be sensitive to the significance of boundaries,
border jurisdictions, treaty relations and legal traditions.2

Can it treat us equally?

It may be easier to contemplate this question by identifying the law as a tool, which
to be utilised, needs context and background of the who, where and what of the
community. It may even be easier to break it down into two parts: whether this law
is identifiable with all people, and if so, if it is possible for everyones rights to
be treated equal. It seems obvious to me that if it is wanted that everyone should be
treated equal, then perhaps the law should involve the laws of other countries too...
But I know this idea is not a simple one to implement. And thus perhaps we should
look at other ways to attain a mutually beneficial relationship between the law, law
makers and society. One example is the social rule, whereby Hart identifies regular
behaviour instead, when followed by the group as a whole, to be the accepted and
perceived thing to do a standard of action.3 This implies that an internal point of
view about the law has been adopted, at least by societys officials,4 and each
person has an inherent belief in that practice.

William Twinning, General Jurisprudence: Understanding Law from a Global Perspective

st
(Cambridge University Press, 1 ed, 2009) 18.
2
Ibid 15.
3
Stephen Perry, Hart on social rules and the foundations of law: liberating the internal point of view
(2006) 75 Fordham Law Review 1171.
4
Ibid 1172.

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The only problem with this theory is that with changing times, there grows a
necessity for change in rights and the law, such as in the feminist struggle. The early
push by feminists was for equality with men, but increasingly, questions arose as to
whether women actually wanted to be treated like men, or whether equality required
different treatment.5 In this sense, the issue became whether to ignore or emphasise
the difference.6 Wendy Williams argued that any difference always meant womens
difference, thus arguing for womens sameness to men before the law. 7 However,
this equal treatment approach only seemed to benefit women who met the male
norms, and not those who engaged in typical female activities like childbearing.8
Reflecting on this notion, it is clear that there are many groups of people that cannot
identify fully with the law, despite the great demand for it.

As a person in society, I have many rights and interests (community and personal)
attached to my being. A right is a benefit from the guarantee of a freedom. It is the
correlative of a duty; our right to participate/the states duty to allow us to do so. 9
Dworkin says that merely because the benefits of overriding someones rights may
outweigh the costs of doing so, this does not mean it is right,10 and thus rejects the
idea that we can balance rights against the public interest. He argues that this
denies the respect a person is owed by virtue of being human.11 Robert Nozick
believes that we are inviolate individuals, who may not be used in certain ways by

th

M D A Freeman and Barron Lloyd, Lloyds Introduction to Jurisprudence (Sweet & Maxwell, 7 ed,
2001) 1127.
6
Ibid.
7
Wendy Williams, The Equality Crisis: Some Reflections on Culture, Courts and Feminism (1982) 7
Women's Rts L Rptr 21.
8
Above n 5, 1128.
9
Iain Stewart, LAW214 Lecture (week 9).
10
th
Ronald Dworkin, Taking Rights Seriously (Duckworth, 4 ed, 1977) 1912, 195, 2004.
11
Ibid 1989.

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others as means or tools we should be treated as persons having individual rights

with the dignity this constitutes.12 However, Nozick claims that our rights only exist to
protect from interference to our freedoms,13 and that the needy do not have a moral
right to assistance. Along these lines, Bentham writes that unless you are liable to
suffer a legal sanction for failing to respect a persons rights, you cannot be said to
enjoy that right a reason for wishing that a certain right were established, is not
that right.14 In my opinion, the fact that there is extensive written literature both to
support and oppose the idea that a persons rights are not to be substituted for the
greater good, means that it is a prevalent issue in society. By this, I mean that it is
very obvious that in different countries and areas of the world, there is a discrepancy
in how laws govern, what laws can govern and how this affects the community. This
will be discussed further in the next section.

I think to guarantee a person a freedom, we must guarantee the whole of society that
same freedom, otherwise we cannot say that we are all identifiable as an equal
member of society. I give the example of prevention of immoral conduct quite apart
from any harm or offence caused by the conduct.15 Popular morality is the view that
if the majority regards certain conduct as immoral or degrading for whatever
prejudices, personal aversions and rationalizations, this is reason enough to
enforce a moral law.16 Robert George takes a slightly different legal moralist view,
that unless an act is really immoral, not just widely believed to be immoral, then it is

12

st

Robert Nozick, Anarchy, State and Utopia (Basic Books, 1 ed, 1974) 3334.
st
Denise Meyerson, Jurisprudence (Oxford University Press, 1 ed, 2011) 266.
14
P Schofield, C Pease-Watkin and C Blamires (eds), Rights, Representation and Reform: Nonsense
Upon Stilts and Other Writings on the French Revolution (Clarendon Press, 2002) 330.
15
Joel Feinberg, Harm to Others (Oxford University Press, 1984) 12.
16
Ronald Dworkin, Lord Devlin and the Enforcement of Morals (1966) 75 Yale Law Journal 986,
1001.
13

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not a legitimate use of power to prohibit that conduct.17 Mills harm principle identifies
the question of how much of human life should be assigned to individuality, and how
much to society?18 He wrote that power can only be rightfully exercised over any
member of a civilised community, against his will to prevent harm to others. His
own good, either physical or moral, is not a sufficient warrant.19 Under this principle I
think it would be possible to treat everyones rights and freedoms as equal, whereby
this coercion of moral public opinion and the legal power of the state could be
limited.20

How far ought it to do so?

There is a Southern African term, Ubuntu, where responsibility is founded not on
the notion of individual autonomy, but on the relationship that an individual has with
others in their community.21 If any man finds himself in strained circumstances, one
of his brothers will help him without expecting payment a feeling of peace,
brotherhood and equality emanates from them.22 This experience by Gelfand
highlights how Ubuntu is based on material equality, and how the present
predicament of one person becomes the predicament of another.23 This emphasises
the idea that it is possible to maximise the social welfare of a community by
acknowledging all peoples rights and making everyones interest a priority.

17

st

Robert P George, Making Men Moral: Civil Liberties and Public Morality (Clarendon Press, 1 ed,
1993) 6.
18
M Warnock, Utilitarianism, On Liberty, Essays on Bentham (Collins/Fontana, 1962) 205.
19
Ibid 135.
20
Ibid 137.
21
M F Murove, Ubuntu (2013) Diogenes 4
<http://dio.sagepub.com/content/early/2013/07/10/0392192113493737.full.pdf+html>.
22
Michael Gelfand, Ukama: Reflections on Shona and Western Cultures in Zimbabwe (Mambo Press,
1981) 15.
23
Above n 17, 5.

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If human rights were actually applied to everyone, Rawls says we would need to
regard the human condition not only from all social but also from all temporal points
of view.24 When evaluating an individuals way of life, perhaps having reference to
not only external standards but internal standards as well (in context of local
practices and traditions), may create a better base for equality in law. Walzer calls it
unjust to override the shared perspectives and beliefs of a community, and suggests
that with no way to rank and order these worlds we do justice to actual men and
women by respecting their particular creations.25 But this is easier said than done. In
my opinion, it just seems irresponsible for Western powers to allow atrocities against
women and men to occur merely because they are accepted in that country.
Although in saying that, there are dangers in assuming that our Western values are
correct. Some rights theorists believe that to apply laws that create an equality for
everyone, we should be mindful of the bias in our own personal judgements and take
caution when criticising these practices and beliefs.26 Thomas Scanlon challenges
this notion though: these actions have victims who generally resent what is done to
them and who would rarely concede that, because such behaviour is common in the
country, their tormentors are acting quite properly.27
If we identify rights as minimum goals only, which do not imply a mandatory or
complete social programme,28 then the idea of basic rights comes to light. We (firstworld countries) expect these basic rights though, such as freedom, security and
welfare, so does this mean that they are a Western privilege?29 One way to limit total
intervention by Western powers is to allow the people to have an equal say in
24

John Rawls, A Theory of Justice (Oxford University Press, 1971) 28.

Michael Walzer, Spheres of Justice: a Defence of Pluralism and Equality (Basic Books, 1983) 314.
26
Above n 13, 260.
27
Joel Feinberg, Harmless Wrongdoing (Oxford University Press, 1990) 336.
28
Jeremy Waldron, Nonsense Upon Stilts: Bentham, Burke and Marx on the Rights of Man (Methuen,
st
1 ed, 1987) 173.
29
Above n 27, 335.
25

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deciding what each right means.30 Waldron believes that this can be implemented if
we truly believe in equal respect for these individuals.31 So when answering how far
it ought to do so, I thought about schemes conferring rights on minority groups. This
can be seen in Article 27 of the International Covenant on Civil and Political Rights,
whereby persons belonging to a minority cannot be denied the right, in community
with the other members of their group, to enjoy their own culture, to profess and
practise their own religion, or to use their own language. We must ask ourselves the
question though, where is the line? Where does identifying and highlighting the
differences of minority groups become more patronising than helpful to the cause?

Travelling with the idea that societies must be careful when trying to implement
Western ideologies and laws onto their people, it could seem like an imposed
standard is more important than their culture, tradition and own legal systems. We
can see from the Critical Race Theory that the idea of colour-blindness merely
requires those who are different to conform to an unstated, accepted norm the
white norm.32 This suggests that the law is blind to racial difference, and by
privileging and perpetuating practices that were aimed to accommodate white
people, only their interests will be reflected.33

Conclusion
The span under which the law can treat people equally seems to lengthen and
shorten as new laws come into effect and as a powerful Western society tries to

30

Jeremy Waldron, Law and Disagreement (Clarendon Press, 1999) 2223.

Ibid.
32
Above n 13, 375.
33
Ibid.
31

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implement their ideologies and laws onto other countries. It has been said that an
internal point of view about the laws in ones country should be present so to have
an effective working legal system, but despite this, many groups still feel like the law
does not represent their rights and interests or if they do, it is to a standard that
does not include all groups in society, but the main one. Some theorists suggest that
even if the law overrides a persons right, the fact that the public interest is protected
means that the system is balanced. This is fervently opposed by others, who say that
substituting ones right for the group is a violation of our dignity and humanness. In
promoting freedom of basic rights, the issue of individual vs societal values is
confronted, and the extent to which the law can treat people equally is addressed. If
we were able to regard humans on earth from many perspectives other than just the
Western view, the context of other countries laws would be understood and our own
biases would not affect the implementation of rights as minimum goals to
complement other already standing legal systems. In all, I believe the law can treat
people equally but it must do so without prejudice, and work alongside other
governing bodies to put into action these equal laws.