Civil equality means equality as citizens. Nevertheless, civil equality is based on legally available rights and liberties. Legal equality is a juristic concept and implies equality before law. Hobbes, Bentham and Austin advocated a concept of legally defined rights and duties of those who are members of a political community. This means that law treats all members of the political community as equal juristic personality. For example, two members of a family when they go to a court of law for a decision on an issue relating to inheritance, the court of law treats them as equal juristic personality or claimants to begin with. This means both are recognized as having equal claim, have equal right to represent and defend and equal right to property. Thus basic assumptions in legal equality are: (i) equality before the law, (ii) rule of law, (iii) each person as juristic personality, i.e., individuals as legal entity not as X, Y, Z.
Equality before the law means law treats everybody as equal and neither discriminates against nor confers special privileges. It is, as the Indian Constitution vide Article 14 provides, equality before the law and equal protection of law. However, this does not mean that reasonable distinction will not be made. Law make exceptions to the general rule of legal equality but that too to make reasonable distinction on behalf of women, infants, minors, mentally and physically impaired, etc. In extraordinary situations, law also admits reasonable restrictions on legal equality and may treat individuals differently. For example, in India, under a particular Act, equality before the law and equal protection of law has not been available as it deals with national security, terrorism, law and order.
Historically, the Romans had the concept of lex, i.e., law, as the basis of defining public affairs and the state. Law was considered as the basis of Roman rule and state power.29 However, it was in the seventeenth and eighteenth centuries, during the English and the French Revolutions in Europe that the voice for legal equality arose. The emerging capitalist class asserted their claim for legal equality against the aristocratic class and the nobility. Legal equality demanded by the emerging classes was aimed at abolition of special privileges and benefits enjoyed by the aristocracy and the nobility. Particularly, the American and the French Declarations extolled the virtue of equality of men. The American Declaration mentioned that ‘all men are created equal’ and the French Declaration announced that ‘men are born and remain free and equal in rights’. This assertion of equality could be interpreted in two ways: firstly, as a laudable normative assertion that all human beings are equal in their dignity and worth, and secondly, as assertion of the rising class against the already dominant and well-entrenched aristocracy and nobility. In either case, it was an assertion for equality in the formal sense that became the basis for legal equality. Legal equality asserted that no special privilege should exist.
Rousseau in his Social Contract identified legal equality as the main characteristic of civil society. Jeremy Bentham, the Utilitarian philosopher who is also known as the father of modern legislation, advocated legal equality. ‘Each to count as one’ was the principle for both legal equality and utilitarian calculation of the greatest happiness of the greatest number. It does not admit special privilege for some or discrimination against others. Barker in his Principles of Social and Political Theory states that each legal personality is equal to every other in terms of legal capacity. He treats legal equality as main principle of allocation of rights as guaranteed conditions. Rights are to be guaranteed to each and all in the same measure. He points out that legal equality connotes the condition and not the end product. Equality as a principle means equality of opportunity and not equality of results. However, Barker is of the view that legal equality is always conditioned by social and economic criteria. He feels that divergence between legal equality and social and economic equality is inimical to the realization of legal equality. In fact, socio-economic factors had influenced extension of legal equality to the poor, the slaves, and even women. Women have been denied equality under the law regulating suffrage for a long time even in England. In India, we find women have not been provided with the right to inherit property and it is only recently that coparcener rights have been introduced.
Legal equality does not guarantee equality of treatment by the law. Even equal access to law is also arguably in doubt due to monetary implications. It cannot be true that a rich and a poor person have equal access to law. What we mean here is that to defend and represent one’s case, one has to employ a lawyer. It is understood that everybody cannot boast of equal access to law if there is no equal access to the persons through which you reach the law. Capacity to employ a lawyer is an important consideration as far as the ‘equal access to law’ principle is concerned. Economic inequality cannot be ignored and equal access to law assumed. Even the provision of a public lawyer or public prosecutor and legal aid does not provide much help to the poor. Further, legal equality by no means guarantees that socially and culturally entrenched discriminations will be over. In fact, Karl Marx in his On the Jewish Question pointed to the limitations of legal and civil equality to ensure absence of racial discriminations.
However, this is not to deny the importance of legal equality. Firstly, legal equality makes the rule of law possible. This means law rules and everybody is subjected to the dictates of the law. This is a significant concept for the dealing of public officials and the state as legal entity with the citizens as legal entities. It makes it possible for a citizen to seek remedy against the unlawful activities of the state or public officials. Rule of law is also considered as an important factor in the development of constitutionalism. Secondly, legal equality abolishes special privileges and discriminations based on caste, birth, religion, race and such other factors. To this extent, it brings equality of persons as legal entity. It provides a secular basis for the state to relate to the members of the society as citizens. Thirdly, concept of legal equality also provides basis for contract and contractual rights and obligations. The hallmark of feudal or ancient social and economic relations was status-based rights and obligations. This means there were hierarchical rights and obligations and not equal rights and obligations. Legal equality provides the basis for contract-based relations. Contractual rights and obligations are useful for the operation of commercial, economic and market transactions, property rights and protection of intellectual rights.
In brief, we can say that legal equality provided a break from the status-based relations of feudalism by replacing it with a contractual relation. It provides a basis for rule of law, abolishes discriminations and special privileges and provides a concept of legal personality to each person. However, legal equality is not sufficient and requires social and economic equality. It is important to note that Tawney, Barker and many others recognize that equality was first demanded in its legal dimension followed by political and economic equality.
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