By Jane Wachira
“But that the unequal should be given to equals, and the unlike to those who are like, is contrary to nature, and nothing which is contrary to nature is good” – Aristotle
Aristotle’s assertion is summarised thus: things that are alike should be treated alike, while things that are unalike should be treated unalike in proportion to their unlikeness. The notion of natural inequality was central to his conception of humanity. Aristotle further likened equality to justice – he considered the two ideas synonymous; to be just is to be equal and to be unjust is to be unequal.
Peter Westen, a professor of law at Harvard, in his paper, “The Empty Idea of Equality”, uncovered some profound flaws in the way modern legal discourse conceptualises equality. He argues that the endurance of the principle is due to the fact that it is empty of content; that the concept of rights and equality has appeared in arguments that obscure their relationship by misconstruing them as in contrast with each other.
Westen suggests that equality ultimately collapses into rights, if the terms were defined respectively as “people who are alike should be treated alike, and all claims that can justly be made by or on behalf of an individual or group of individuals or group of individuals or group of individuals to some condition or power. He also thought the attempt to uphold rights by appealing to equality had the tendency to confuse right judgment.
Westen disagreed with Aristotle’s conceptions of equality. He famously argued that equality is an empty idea. His point was that the idea of equality could never tell you how much of a particular good a person is entitled to, nor whether s/he has a particular right. Moreover, equality cannot require that the State treat each of us the same, as the State clearly may treat us differently when there is good reason to do so. The famous aphorism for the rule of law ideal, “treat like cases alike,” is meaningless, he argued, because the important question will always be: which cases are relevantly like which others?
In modern law, it is correct to state that people believe in the concept of equality in a vague sense. Tenets of equality have been entrenched in constitutions, international legal covenants and in statutory codifications. But, be that as it may, it cannot be said that society is on the verge of achieving a status of equality. Is this proof of Westen’s idea that equality is an empty idea and an ideological fallacy?
The relationship between law and equality has often been described as an uneasy marriage. The social ideal of equality has found expression in law through the principle of equal treatment and in the principle of non-discrimination. In national and international legal documents, the principles are mentioned in one breath as if they pointing in the same direction. This is evident in the Constitution of Kenya 2010 in Article 27 – Equality and freedom from discrimination. These concepts however, are logically distinct.
The principle of equal treatment adopts the definition coined by Aristotle, of treating the like alike and the unalike unalike. The notion of equal treatment has been found to be intrinsically dependent on the existence of categories that inform the decision-maker on what is to be considered as like or unalike cases. It is no more than the requirement to decide according to the rules, treating the different categories according to their specific needs.
The principle of non-discrimination is portrayed to complement the principle of equal treatment; it is directed to the legislator, and sees to it that the rules themselves are not unfair. It asserts that distinctions should not be based on so-called suspect (morally irrelevant) grounds such as sex, race, religion or age. The Constitution of Kenya, 2010, in Article 27(4) stipulates, “The State shall not discriminate directly or indirectly against any person including race, sex, pregnancy, age, disability, religious belief, culture, inter alia.” By doing so, the principle of non-discrimination reveals a preference for wider rather than smaller categories of human beings. Among the interventions that have been put in place to address discrimination and inequality is affirmative action – what others call positive discrimination.
Instances of affirmative action in our legal system
The two-thirds gender rule in Article 27 it stipulates that the State shall take legislative and other measures to implement the principle that not more than two thirds of the members of elective or appointive bodies shall be of the same gender.
Others are Article 97(1) (b) on 47 women representatives; Article 100 on promotion of representation of marginalised groups such as persons with disabilities and minorities and marginalised communities; and Article 54(2), which obligates the State to ensure progressive implementation of the principle that at least five per cent of the members of the public in elective and appointive bodies are persons with disabilities.
Other measures include the directive by the Ministry of Education that students from public primary schools or those from marginalised communities or areas be given priority over those from private schools in enrolment in secondary schools. The trouble with this approach is that it denies the pupil who went a private school from joining a school they worked hard for. How does this achieve equality, bearing in mind Aristotle’s principle above?
Still an issue in the education sector is the different university grade cut lines for boys and girls. The system favours girls with a slightly lower entry threshold, yet they all sat for one exam and do similar courses in university/college. This standard is, however, not applied when entering the job market portraying inconsistency in application of the measures. Does this mean that once tertiary education is achieved the genders become alike?
There are established special schools for people with disabilities. Some have contended that this amounts to discrimination, and they should attend similar schools as everyone else – and call on stakeholders to ensure all schools are well equipped and facilitated to accommodate those with disabilities. Can this measure be achieved effectively, or does the assertion of treating likes alike and unalikes unalike be invoked? The principle of substantive equality on the measures taken to achieve equality; rather, it focuses on how the end goal is achieved – in this case, realisation of the right to education.
The draft National Equality Policy, 2016, in addressing sectorial issues in the education sector, is alive to the problems the girl child faces, which their right to education. They have been highlighted as, early and unwanted pregnancies, and early marriages. All the while, the policy ignores the problems facing the boy child, such as absentee fathers, as well as drug and substance abuse. One may insist that their rationale is based on statistics, which show that more boys than girls are enrolled in universities and that measures to empower the girl child are made to achieve gender parity in universities. Say the ideal gender parity is achieved and an imbalance created, where there are more girls than boys in university – shall we then institute affirmative action for the boy child?
Although women have been given special 47 seats, reserved for only them, their numbers in parliament are still significantly low. Currently the total number of women parliamentarians in the Parliaments is 87 compared to 331 men. With the two-third’s rule, and 47 seats specially reserved for women, one would expect a number at least closer to half that of men; this isn’t so. Should we then conclude that equality is a botched idea, one so farfetched it cannot be realised?
Has anyone ever heard of such a thing as a tribe with all chiefs and no Indians? How about a tribe with all Indians and no chief? The point is, someone has to be dominant, and someone has to be submissive. This has been the case since the dawn of civilisation; 90 per cent of mammals on earth follow this basic hierarchy. It is the lion, not porcupine, that is king of the jungle.
Consider this rundown of equality: morally, it refers to equal human value; legally, that all are subject to the same laws; politically, that we all have an equal voice in making laws and selecting political leaders and; socially, that all human beings have equal access to those things necessary to leading a decent or good life. Let’s not kid ourselves; equality, as much as it facilitates expeditious justice, can never guarantee wealth in equal measure. We cannot all play in the same league. Nature itself forbids it.
Women and men can never be alike. They may be accorded equal treatment but this does not make them alike; nature has already made them different. I can go on and on about how nature treats and categorises creation us differently, but I’m sure the examples given suffice. Treat the likes alike and the unalikes unalike. Whichever philosophy you subscribe to – Aristotle’s or Westen’s – it is clear that equality, if it isn’t construed vaguely, is a fallacious ideal.