LA116 Introduction to Legal Theory 2019
To what extent does inequality threaten the rule of law?
Introduction
The term “Rule of Law” is one copiously used by politicians, newspapers, and citizens and is
generally loosely associated with phraseologies like “be you ever so high, the law is above
you”, “the rule of law, not men” and “equality before the law”. Whilst these expressions do,
to some degree, accurately define the concept of the rule of law, the actual components and
exact scope of it are far less clear. Indeed, the academic literature on the rule of law seems to
present a confusing infinitude of definitions, conceptions and scopes of the term, thereby
rendering it an ‘essentially contested concept’.1
The concept of equality is another such political and legal term that can broadly be defined
relatively easily but its more narrow understanding creates room for much debate. Indeed, our
ideas of equality are strongly connected to our sense of fairness, which in itself is connected
to a deeper sense of right and wrong. The idiom a “level playing field” stems from the sports
domain and suggests it is right for all athletes, not to necessarily have the same chance of
success but to compete by the same rules. We would therefore find it troubling if we were to
make some athletes run forwards and others backwards. We would probably find it even
more troubling if those selected to run backwards were only those with black-colored skin.
It is claimed today that inequalities of the like cause the rule of law to erode. The purpose of
this essay is to assess to what extent this is true and how exactly inequality comes to threaten
a so widely supported legal and political ideal. To do so, I will first define the rule of law by
exploring two standard conceptions of it, the “thin” and “thick” understanding. The former
1
Richard H. Fallon, ‘"The Rule of Law" as a Concept in Constitutional Discourse’ (1997) 97 Columbia Law
Review 7.
1
, LA116 Introduction to Legal Theory 2019
focuses on the formal elements of the rule of law and stipulates specific requirements legal
systems and laws need to uphold. The latter version builds upon these criteria by focusing on
the actual content of the laws and the standards and normative values these ought to meet.
Based on this, I will evaluate the impact of two types of inequality on the rule of law. As it is
not possible to analyze every type of inequality here, I will focus specifically on the effect of
inequality stemming from unequal opportunities and inequality as a result of discrimination. I
chose to do so for two reasons. Firstly, inequalities do not exist in a vacuum but in reality
affect one another, which, amongst other things, ultimately culminates in unequal
opportunities. Secondly, although, as per Vanderhole, there is ‘no universally accepted
definition of discrimination’2 itself, the effect of it is that one person or group of people is
treated differently and unequally to another.
On the surface, it will seem as though inequalities only threaten a more substantive version of
the rule of law, leaving the formal one intact and the threat only minimal. I will aim to
demonstrate that in actual fact, this is a mere illusion and that inequality negatively affects
either conceptions of the rule of law. I will show that it does so by frustrating the core
requirements of the rule of law, which, if left unaddressed, will cause them to weaken and the
incentive to respect the rule of law it to erode.
The Rule of Law
In legal theory, the rule of law is often separated into an overlapping “thin” or formal
conception and a “thick” or substantive understanding. The formal conceptions concentrate
2
Wouter Vandenhole, Non-discrimination and equality in the view of the UN human rights treaty bodies (1st
edn, Intersentia 2005), quoted in Andrew Altman, ‘Discrimination’ (Stanford Encyclopedia of Philosophy
2016)<https://plato.stanford.edu/entries/discrimination/> accessed 5 May 2019.
2
To what extent does inequality threaten the rule of law?
Introduction
The term “Rule of Law” is one copiously used by politicians, newspapers, and citizens and is
generally loosely associated with phraseologies like “be you ever so high, the law is above
you”, “the rule of law, not men” and “equality before the law”. Whilst these expressions do,
to some degree, accurately define the concept of the rule of law, the actual components and
exact scope of it are far less clear. Indeed, the academic literature on the rule of law seems to
present a confusing infinitude of definitions, conceptions and scopes of the term, thereby
rendering it an ‘essentially contested concept’.1
The concept of equality is another such political and legal term that can broadly be defined
relatively easily but its more narrow understanding creates room for much debate. Indeed, our
ideas of equality are strongly connected to our sense of fairness, which in itself is connected
to a deeper sense of right and wrong. The idiom a “level playing field” stems from the sports
domain and suggests it is right for all athletes, not to necessarily have the same chance of
success but to compete by the same rules. We would therefore find it troubling if we were to
make some athletes run forwards and others backwards. We would probably find it even
more troubling if those selected to run backwards were only those with black-colored skin.
It is claimed today that inequalities of the like cause the rule of law to erode. The purpose of
this essay is to assess to what extent this is true and how exactly inequality comes to threaten
a so widely supported legal and political ideal. To do so, I will first define the rule of law by
exploring two standard conceptions of it, the “thin” and “thick” understanding. The former
1
Richard H. Fallon, ‘"The Rule of Law" as a Concept in Constitutional Discourse’ (1997) 97 Columbia Law
Review 7.
1
, LA116 Introduction to Legal Theory 2019
focuses on the formal elements of the rule of law and stipulates specific requirements legal
systems and laws need to uphold. The latter version builds upon these criteria by focusing on
the actual content of the laws and the standards and normative values these ought to meet.
Based on this, I will evaluate the impact of two types of inequality on the rule of law. As it is
not possible to analyze every type of inequality here, I will focus specifically on the effect of
inequality stemming from unequal opportunities and inequality as a result of discrimination. I
chose to do so for two reasons. Firstly, inequalities do not exist in a vacuum but in reality
affect one another, which, amongst other things, ultimately culminates in unequal
opportunities. Secondly, although, as per Vanderhole, there is ‘no universally accepted
definition of discrimination’2 itself, the effect of it is that one person or group of people is
treated differently and unequally to another.
On the surface, it will seem as though inequalities only threaten a more substantive version of
the rule of law, leaving the formal one intact and the threat only minimal. I will aim to
demonstrate that in actual fact, this is a mere illusion and that inequality negatively affects
either conceptions of the rule of law. I will show that it does so by frustrating the core
requirements of the rule of law, which, if left unaddressed, will cause them to weaken and the
incentive to respect the rule of law it to erode.
The Rule of Law
In legal theory, the rule of law is often separated into an overlapping “thin” or formal
conception and a “thick” or substantive understanding. The formal conceptions concentrate
2
Wouter Vandenhole, Non-discrimination and equality in the view of the UN human rights treaty bodies (1st
edn, Intersentia 2005), quoted in Andrew Altman, ‘Discrimination’ (Stanford Encyclopedia of Philosophy
2016)<https://plato.stanford.edu/entries/discrimination/> accessed 5 May 2019.
2
