Concept, principle, and norm—equality before the law reconsidered

Legal Theory 24 (2):103-134 (2018)
Frej Thomsen
The Danish Institute for Human Rights
Despite the attention equality before the law has received, both laudatory and critical, peculiarly little has been done to precisely define it. The first ambition of this paper is to remedy this, by exploring the various ways in which a principle of equality before the law can be understood and suggest a concise definition. With a clearer understanding of the principle in hand we are better equipped to assess traditional critique of the principle. Doing so is the second ambition of this paper. I will argue that traditional criticisms are unpersuasive, but that there is a different, powerful argument against equality before the law. The third ambition of the paper is to argue that there is a sense, overlooked by both proponents and critics, in which the principle still captures something important, albeit at the cost of shifting from intrinsic to instrumental value.
Keywords Equality  Legal Theory  Norms
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DOI 10.1017/S1352325218000071
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