Jump to ContentJump to Main Navigation
Equality and Legitimacy$
Users without a subscription are not able to see the full content.

Wojciech Sadurski

Print publication date: 2008

Print ISBN-13: 9780199545179

Published to Oxford Scholarship Online: January 2009

DOI: 10.1093/acprof:oso/9780199545179.001.0001

Show Summary Details
Page of

PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2020. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 29 November 2020

Legal Equality

Legal Equality

(p.93) 3 Legal Equality
Equality and Legitimacy

Wojciech Sadurski

Oxford University Press

The principal task for a theory of legal equality is to design a test for non-discriminatory classifications. This chapter argues that no version of a ‘per se theory’ can be satisfactory. More attractive are relevance-based tests, though they yield a circularity which results from the temptation of implying a classification's purpose from the terms of the classification itself. This danger can be overcome by heightening the level of scrutiny applied to the purpose, and to the fit between the classification and the purpose. However, we need some good reasons for heightening the level of scrutiny of the legislation, and these reasons must be embedded in a general theory of what renders a classification discriminatory. An intuitively justified answer to this question seems to be that a classification is tainted as discriminatory by certain wrongful motives for legislation, in particular, if the legislation is based on prejudice, hostility and stereotyping.

Keywords:   equality before the law, discrimination, strict scrutiny, proportionality, affirmative action, constitutional theory, Friedrich Hayek

Oxford Scholarship Online requires a subscription or purchase to access the full text of books within the service. Public users can however freely search the site and view the abstracts and keywords for each book and chapter.

Please, subscribe or login to access full text content.

If you think you should have access to this title, please contact your librarian.

To troubleshoot, please check our FAQs , and if you can't find the answer there, please contact us .