Equality before the Law and Equal Protection of the Law - Essay Example

Jurisprudence 2 "[L]egal dis s ... routinely help to create and maintain the ordinary inequalities of everyday social life: the coercions, dominations, and dependencies of daily relations in the marketplace, the workplace, and the family; the ordering of access to privilege, authority, wealth, and power by hierarchies of class, race, gender, and merit." Introduction: Equality before law and equal protection of law are two major principles that construct a great part of jurisprudence of any legal system. Inspired basically from the ideals of natural law, equality before law” suggests that though main purpose of law is to protect interests of common people and maintain an atmosphere of social discipline, the issue of equality should not be ignored and all those institutions that are responsible for legal enforcement, should also be restrained from executing such steps that would violate the state of equality. Equal protection of law, which comes aftermath, reflects the ideal that law should be protected equally and the state of equal protection can only be attained if equality before law is respected accordingly. However, looking at social structure and consequent legal discourses that are aimed at attaining the situation of equality, it can be said that such state of equality has not been attained and in “Law & Ideology”, Robert Gordon, after analyzing nature of such legal discourses has pointed out, “"[L]egal discourses ... routinely help to create and maintain the ordinary inequalities of everyday social life …” (Gordon, 2008, p. 1226). A chronological study of ancient to modern legal philosophy, sociology and theories of social construction would clearly point out that according to jurisprudential arguments, one of the major reasons behind failure to attain desired social equality is several issues that have become integrally associated with different traits of human existence and restrain them from respecting the issue of equal existence. It is very often said that people were equal at the stage of their natural existence but since the time they became aware about necessity to develop community and live as social creatures, factors of equality or inequality intervened and later on started to dominate their existence. With the progress of human civilization and result of intellectual movements, people were gradually becoming aware of factors like, gender, class, social status, ethnicity, national identity, sexual orientation etc. While a particular section of people regarded understanding of these factors as scope to enhance and ensure the possibility of a better existence for humankind, others looked forward to capitalize on these issues only to receive an upper hand over socio-cultural traits of people from diverse social division, finally to enhance their capacity to dominate and fulfill their self-centered desires. Pointing at the features of such change, legal philosophers and sociologists have found a deep connection between human nature and Nature as an entity. Just the manner nature encompasses within its vast scope diversities and features of inequality, in the same way, human nature is also diverse and inequality is an integral part of human existence, starting from socio-cultural and political behaviorist perspective, “Inequality … both as a motivator for political behavior and as a means of social control, is an integral aspect …” of human beings’ social existence (Dobratz, Waldner, and Buzzell, 2001, p. xxiv). Thesis Statement: Jurisprudential principles, as those were greatly influenced by principles of natural law and helped in the formation of legal discourse as well as orientation, help to “create and maintain” inequality within daily course of human existence starting from professional to family life. Inequality in Society in terms of Gender, Sex, Race, Ethnicity, Culture and Economic Empowerment: According to the theory of body politic, a state is like a human body and the manner proper functioning of different physical organs helps in mobilization of the body, in the same way, the governmental institutions help in proper functioning of s state system. Inhabitants and families play the role of cells that are source of power to the governmental institutions or organs. Disorientation in cellular system can collapse physical organs and finally leading to collapse of body system: similarly, if individuals and family systems of a state stop functioning, inevitably there will be serious problems of inequality in a state, resulting in destruction of state operation. Jurisprudential rational, thus, provides special attention to the integral connection between macrocosm and microcosm. Construction of legal discourses, aimed at welfare of common people, is done keeping in mind the requirements and problems of common people at a very basic family level. Inequality based on gender and sex: However, traits of natural inequality are conspicuously observed at the family level. Since the time men learned to live a social and structured family life, for the purpose of living a well governed life, the idea of leadership came: it automatically encouraged selection of a person as head of a family and under his direction and faith over decision making power, other members of that family would determine their respective actions. Origination of patriarchal social set up suggested that males are more competent than females both physically and intellectually; thus, women were provided with the role to remain as male subordinates. According to conventional outlook of social construction, a man would enjoy a superior state in the relationship and will also have the right to take decision of their mutual life, whereas a woman is expected to follow such decisions and would act under purview of certain role, namely, mother, daughter or wife, imposed over her by the society (Kelly, 1993, p. 415). Naturally, due to such discrimination and gender inequality, at a broader social arena, class and gender division is automatically created. Even if we consider example of a classless society where kinship acts as the governing force behind duties and responsibilities of common people, marital relationship is viewed as an important factor, responsible for social inequality, “In societies without classes or estates, where kinship organizes people’s rights and obligations, marriage, as a basis of kinship, organizes social inequality” (Kelly, 1993, p. 417). Moreover, when it comes to inequality generated on the foundation of sexual orientation, it can be observed that orthodox social structure has always considered heterosexual relationships as legally recognized and for a long period of time homosexual relationships were both social and legally condemned (Dobratz, Waldner, and Buzzell, 2001, p. xxiv-xxv). Despite law has came up with statutes to provide such relations with equal recognition with that of heterosexual relationships, there has not been much change in people’s approach to such issues and legal enforcements often find a different direction against people engaged in homosexual relationships when it comes to addressing their rights or grievances. Racial and Religious Inequality: Inequality based in the name of race and religion is one of the major dividing forces that segregated one section of human beings from others. In a particular social context – that is among people of same skin color, inhabitants of one race enjoy certain social facilities compared to other groups of people and also seen to receive more power when it comes to voice their respective demands to the governmental and legal instruments. However, when it comes to judging inequality in global context, white people are considered to be superior in a natural and preconceived manner, both socially and intellectually (Dobratz, Waldner, and Buzzell, 2001, p. xxvi). In addition to this issue, at different times, history of human civilization also has witnessed how people belonging to one racial group or a particular religious discipline have attempted to assert their complete power over people of other racial or religious disciplines. Consecutive crusades in the medieval age, frequent racial and religious struggles such as, in the recent time, Nazi oppression against Jews or in Africa, domination as well as genocide committed by Hutu followers over their Tutsi counterparts are bright examples in support of such observation. In each case, the traits of inequality were made conspicuous as superior groups used administrative and legal instruments completely in order to assert their superior position in the society. Scholars have argued that elements of superiority and inherent rights to dominate over other people have run so deep in their psychological and socio-cultural existence that in order to assert their respective superiority they have gone to the extent of exhibiting their bestial form of aggression against others. Inequality based on poverty, capitalism, and welfare state: During post globalization period, birth of the new economy boosted the ideal of capitalist existence, incited the idea of welfare state and finally gave birth to three different regimes of welfare state, namely, liberal, social democratic and conservative (Butler, and Watt, 2007, p. 103-104). Though philosophy behind emergence of welfare state has been to provide equal facilities and benefit to people, irrespective of difference in their respective financial capacities or social status but in each of the structures we see that either family or state or market play important roles to emphasize on issues related to inequality. Legal framework in each of these regimes also has also been oriented or modified in such manner so that role of either market, or state or family, in respective societies receive adequate support from such set up (Butler, and Watt, 2007, p. 103). In search for reason of inequality in society and its creation and maintenance by law: According to philosophers and sociologists elements of inequality is inherently present within the rules of natural construction itself, and unless such inequality is absent, there can be non adequate distribution of rights among people who are incompetent to enjoy such rights and at the same time, if such equal distribution of both rights and facilities is permitted by natural law then it could prove to be discouraging for those who are competent to enjoy such benefits, “In all times inequality in natures has unfailingly produced inequality of rights …. If the negligent, the lazy, the untrained, and the ignorant were to enjoy equal rights with those who display the corresponding virtues, this would be unnatural and unjust as if the child had rights equal to those of the adults … the villain the same security and respect as the meritorious citizen” (Meiners cited in Dahrendorf, 1968, p. 41). Despite the fact that natural law has stated men should be equal in terms of their existence and rights on the social plain but it is nature on the other hand that has acted as the main source to create the places of inequality so that all human being can enjoy their respective set of rights according to their capacities and in this context Ralf Dahrendorf’s observation becomes extremely important as he has suggested that “Inequality is necessary because without it the differentiated (occupational) positions of societies cannot be adequately filled” (Dahrendorf, 1968, p. 44). Rousseau, in his famous “Discourse on the Origins and the Foundations of Inequality among Men” has stated that inequality among human beings can be classified into two separate categories, namely, physical or natural inequality and moral or political inequality, “I discern two sorts of inequality in the human species: the first I call natural or physical because it is established by nature, and consists of differences in age, health, strength of body and qualities of the mind or soul; the second we might call moral or political inequality because it derives from a sort of convention, and it is established, or at least authorized, by the consent of men. This latter inequality consists of the different privileges which come enjoy to the prejudice of others – such as their being richer, more honored, more powerful than others, and even getting themselves obeyed by others” (Rousseau, and Cranston, 1984, p. 77). What Rousseau actually meant to suggest is that inequality among human beings are on one hand, have been generated from the very core of their natural existence and on the other hand they have imposed these traits of inequality over themselves for sake of superiority, power or recognition. Interesting point that a student of jurisprudence needs to notice in this respect is that such imposed inequality, which is known as moral or political inequality, has its root deep into their very natural existence as all human beings wish to provide themselves most suitable for survival in this highly completive word and at the same time enjoy the rights, provided to them by society to the best extent possible. If human beings are left with permission to enjoy their free existence and keep on to strive with their respective quest to enjoy natural rights or to prove themselves, respectively, most suitable for enjoying their supremacy without any governmental or authoritative interferences, as Hobbes has stated, ““To this war of every man against every man, this is also consequent; that nothing can be unjust. The notions of right and wrong, justice and injustice, have there no place. Where there is not common power, there is no law; where no law, no injustice” (Hobbes, 1950, p. 87), then there would be prevailing anarchy. Emergence of such situation would finally lead every man against the other; consequently, powerful people will take their place as leaders of the society and weaker or less powerful counterparts either will serve as their subordinates or will perish gradually. According to Hobbesian observation, every human being perceives himself to be equal with others and they do not wish that in any circumstance they would fall from the state of equal existence, both in terms of power and enjoyment of social rights but in practical situation they find it almost impossible to triumph against forces that are superior to them. Consequently, search for an alternative source of power becomes important that would protect them from such situations of crisis and also would provide them with equal rights so that they can enjoy benefits of their social existence along with their counterparts to the best extent. This is perhaps the most rational observation regarding emergence of hierarchy in power structure in society and people’s respect or appreciate the requirement of such a common power that would protect them from inequality, ““… men have no pleasure … in keeping company where there is no power able to overawe them all. For every man looketh that his companion should value him at the same rate he sets upon himself, and upon all signs of contempt or undervaluing naturally endeavors, … to extort a greater value from his contemners, by damage; and from others, by example” (Hobbes, 1950, p. 85). Thus, judging from this perspective a student of jurisprudence realizes the actual rational behind creation and maintenance of inequality, so that people realize the necessity behind existence of a common power such as law, and respect it accordingly, which ultimately leads to development of a “common power” as an entity and respect for this “common power” such as law, will result in maintenance of social harmony as well as providing best possible opportunities to social inhabitants so that they can enjoy their respective social benefit to the best possible extent. Conclusion: While concluding, it can be said that legal discourses help in creating and maintaining social differences or inequalities but the rational behind such step is to create a sense of respect or authority before common people so that the state of social harmony or legal protection can properly be maintained. One of the major aims of legal discourses has always been to provide best protection to rights of common people or to create such an atmosphere so that common people can enjoy their respective rights to the best extent possible. However, unless the equality is there, all people would be eligible for enjoying their rights to an equal magnitude, leading, consequently, to a situation of disorder that would prevent the issue of common welfare coming to force. Starting from family life to professional arena as there is inequality, people respect or fear an authority or a power that is superior to them and under such influence they also fulfill their respective roles in a social context, finally helping the system of governance to function properly on a broader social canvas. References Butler, T. and Watt, P. 2007. Understanding social inequality. London: SAGE. Buzzell, T. Waldner, L.K. and Dobratz, B.A. 2001. The politics of social inequality. Bingley: Emerald Group Publishing. Cranston, M.W. and Rousseau, J. 1984. A discourse on inequality. New York: Penguin Classics. Dharendorf, R. 1968. “On the Origin of Inequality among Men”. Social Policy and Public Policy: Inequality and Justice(2009). New Jersey: Transaction Publishers. Hobbes, T. 1950. Leviathan. Forgotten Books Kelly, R.C. 1993. Constructing inequality: the fabrication of a hierarchy of virtue among the Etoro. Michigan: University of Michigan Press. Read More