Sadurski's critique of color-blind legal equality and contextual justice

Human Rights

Sadurski. Wojciech. (1986) 60 "Equality Before the Law: A Conceptual Analysis." The Australian Law Review. (Pp.66-71)

Is everyone equal in the eyes of the law, regardless of creed, culture, or other group affiliation? Or should the law be made equal for everyone by considering the law's contextual application in society? It is this subtle distinction that Wojciech Sadurski (1986) grapples with in his article entitled "Equality Before the Law: A Conceptual Analysis." Sadurski comes down, in his opinion, squarely on the side of the second position. He suggests that to refuse to acknowledge individual differences and to enforce the law in the same fashion towards everyone in a society may actually reinforce societal structures of inequality rather than alleviate such strictures. This stands, he admits, in opposition to the liberal humanist tradition of Mill and Rousseau, on which most liberal democracies today were founded. (66-67)

Of course, some legal theorists still believe that actions alone should determine legal enforcement, not affiliation with any particular group. The idea behind such a color-blind concept may have once been noble, namely that an accident of birth should not inhibit one's equal access to justice. (68) Often to justify such 'color blind' applications of the law generates a system of categorization of the individual's protected status of having involuntary or immutable (such as race or gender) and voluntary (such as wealth or intelligence) characteristics that are likely to generate discriminatory policies. The latter characteristics are theoretically controllable, the former uncontrollable. But Sadurski calls the idea of wealth or education as entirely chosen or voluntary a legal as well as a cultural fiction. (70; 69)