A Critique of Equality Legislation in Liberal Market Democracies

This article argues that equality legislation not only fails to fulfil its promises, but also destroys the liberty that fuels economic progress. Legislative schemes in countries such as the UK and the US are increasingly being extended into new areas of human interaction by egalitarians who wish to “do something” about racial inequality within their own countries and in the global context as a whole. All jurisdictions committed to justice and fairness would accordingly be expected to have some form of equality legislation even if only for the purpose of sending the right moral signals about the commitment to doing what is right and creating the illusion of equality on the basis that it might help and it cannot hurt. The first part of this article argues that such equality schemes are neither harmless nor costless. The second part draws upon examples from UK law to argue that the legislative vision of equality is conceptually unsound and undermines fundamental tenets of the rule of law. These examples, although drawn from the UK’s Equality Act 2010, reflect conceptual tools and legislative principles seen in all common law jurisdictions which have embraced the egalitarian principles of social justice and racial equity.