O’Regan, Kate; Friedman, Nick --- "Equality" [2011] ELECD 386; in Ginsburg, Tom; Dixon, Rosalind (eds), "Comparative Constitutional Law" (Edward Elgar Publishing, 2011)

Book Title: Comparative Constitutional Law

Editor(s): Ginsburg, Tom; Dixon, Rosalind

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848445390

Section: Chapter 26

Section Title: Equality

Author(s): O’Regan, Kate; Friedman, Nick

Number of pages: 31

Extract:

26. Equality
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 interpre-
tation 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 chal-
lenges 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 frame-
work) 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 ...