Edited by Tom Ginsburg and Rosalind Dixon
Kate O’Regan and Nick Friedman Equality is not only the Leviathan of Rights; it is also a Tantalus. It promises more than it can ever deliver. (Chief Justice of Canada, Beverley McLachlin (McLachlin 2001, at 20)) The right to equality is found in nearly all modern democratic constitutions. Yet the interpretation and application of this right present acutely difficult questions for lawyers and courts. These difficulties arise from the conception of equality itself. In this brief chapter we shall identify some of the difficult questions that arise in developing an equality jurisprudence and then consider how different legal systems (Canada, the United Kingdom and South Africa), have approached these questions.1 At the outset, we should acknowledge that the right to equality presents particular challenges for comparative constitutional analysis as each jurisdiction’s response to equality is in significant ways dependent on the constitutional text in question (and the legislative framework) as well as each jurisdiction’s social and political history. Understanding the equality jurisprudence of any jurisdiction will generally require some understanding of the social and economic circumstances of that society, unfortunately a matter beyond our scope in this brief chapter. This does not mean that comparative analysis is futile, but just that it should be approached with circumspection (see the useful discussions in Kahn-Freund 1974; Watson 1976; and Watson 1978). We should also note here that in many jurisdictions the right to equality is not only a constitutional guarantee, but is protected in legislation as well. The consequence of this dual...
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