Equality before law: Analysis of some objections from legal philosophy

Abstract

The main subject of these pages is to analyze if equality before the law is a positive value or if it is a devoid, formal and without relevance principle. In order to achieve this purpose, I will start by analyzing the terms of comparison of equality before the law and the problems they set out. I will distinguish two kinds of precedents: the first one lies in the ratio decidendi (model of rules), the second one, in the individual cases (model of analogy). Secondly, I will examine whether the equality before the law is a valuable principle or not. For that purpose, I will explain what the criticisms addressed to the principle are: a) its identification with the principle of legality; b) its' purely formal character; c) the vacant character (due to the indetermination of the expression «relevant resemblance»; d) its irrelevance because the judge must decide on a case by case, and e) its' possible injustice. Afterwards, I will make a critical assessment of each of them. My conclusion is that none of the criticism to the equality before the law principle is as important as to play it down.