Equality and the Rule of Law Sophia Moreau (Forthcoming in the Routledge Handbook of the Rule of Law) Abstract: The principle “treat like people alike” has often been regarded as part of the rule of law. But what exactly does it require, and of whom? How does it relate to other principles that are understood as part of the rule of law? And does it help us achieve ‘substantive equality,’ a state of affairs in which every member of a society is treated with dignity and is able to participate in that society as the social equal of every other member? These are the questions addressed in this chapter. The author argues that this principle is best understood as applying to those who occupy certain institutional roles, but only when they have already treated some people justly in a certain way. It then requires them to treat others in a like way, absenting any morally justifying differences; and any justifying differences must be publicly presented and shown to be the kind of difference that those denied the treatment could not reasonably reject as relevant. The chapter explains how this principle is in certain respects more demanding than anti-discrimination laws, but also in important respects much less demanding, and so only takes us part of the way towards substantive equality. The chapter ends by exploring how adherence to this principle can help the state realize other elements of the rule of law. One principle that is often understood as part of the rule of law is the principle that laws and government officials must “treat like people alike.” This is a principle of formal and horizontal equality. It is a principle of formal equality because it applies only to people who share a certain property (the property by virtue of which they have been found “alike”) and it requires officials to treat people in the same way only with respect to this one property or its consequences. (Barnard & Hepple 2000, 562-64; Majury 2002, 305; Baines 2005, 67; McIntyre 2006, 105-06; Young 2010, 190-93; Fredman 2011, 8). It does not require officials to make everyone equal in some independently important respect --which, by contrast, is often called “substantive equality” (Baines 2005, 77-82; Albertyn 2007, 254-61; Sheppard 2010, ch 2; Young 2010, 193-99; Fredman 2011, 26-33; Tremblay 2012, 189-92). “Treat like people alike” is a principle of horizontal equality because, in ensuring that those who have a certain property are treated alike with respect to that property, it guarantees a form of equality between those who are governed, rather than guaranteeing equality between the official who is doing the governing and those whom he or she governs. It is therefore distinct, at least conceptually, from the principle “No one is above the law,” which aims to ensure vertical equality, or equality between those governing and those whom they govern; though in ways I shall explore, adherence to a principle of horizontal equality can help us achieve vertical equality. The principle “Treat like people alike” has seemed so obvious that some have held it to be a truism, a mere restatement of the claim that everyone should be given their due (Westen 1982). Others have argued that, for this reason, it should not be treated as a principle of equality at all and should not be thought of as part of the rule of law (Raz 1979, Raz 1986, 219). But is it a truism? Although it does seem true that laws and government officials are bound by it, it is not a universally applicable moral requirement. In our personal lives, for instance, we are permitted to benefit certain people without thereby committing ourselves to benefitting all those who are like these people. I can give money to one homeless person without having to give the same amount to every similar homeless person whom I encounter; just as I can invite one friend on a canoe trip without needing to invite all of the friends whom I know would enjoy such a trip. It appears that no principle of formal horizontal equality governs our everyday actions as private individuals. But such a principle does seem to apply to us when we become government officials and when we occupy certain institutional roles. For instance, teachers cannot fairly offer extra help to one student unless they make the same opportunity available to all students; parents cannot fairly bring home a treat for one child and not the others, absenting some valid difference between them. Why is it that we need to treat like people alike when we occupy such roles as government official, teacher, or parent? It is not enough here to say that these are public or quasi-public roles. For that simply begs the question: the very issue here is what it means for these roles to be “public” or “quasi-public” and why that should make a difference. What is it about these particular roles and the powers they give us or the relationships in which they place us that requires us to treat likes alike? What value does conformity to this formal, horizontal principle of equality serve in these contexts? Many legal scholars have held that a principle of formal horizontal equality is part of the rule of law and that conformity to it by laws and government officials helps to realize other elements of the rule of law. Lord Bingham, for instance, states that the rule of law requires that “the law of the land should apply equally to all, save to the extent that objective differences justify differentiation.” (Bingham 2010, 55). For Lord Bingham, such horizontal equality is an important tool in ensuring vertical equality –that is, that none of those who govern place themselves above the law. He quotes Justice Jackson, agreeing that “there is no more effective practical guarantee against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority should hold generally” (Bingham 2010, 55 and 58-9). Others, such as TRS Allan, have argued not only that formal, horizontal equality helps us achieve other elements of the rule of law, but also that it is “the route to a larger, more substantive equality of legal principle.” (Allan 2014 156). Yet these claims about the value of formal horizontal equality can seem puzzling. It isn’t often explained just how horizontal equality helps to ensure that officials are not above the law. And it is quite common for scholars and judges alike to decry formal equality as not nearly enough, on its own, to take us to a state of affairs in which people are substantively equal. So what is the value of formal horizontal equality? Does it help us achieve substantive equality or the rule of law? And why do we only seem required to abide by such a principle when we occupy certain institutional roles? These are the questions that this chapter will try to answer. In order to do so, we need to begin by clarifying what exactly the principle requires. Interpretive preliminaries On the simplest reading, the principle of formal, horizontal equality says: Treat like people alike. This means: If A and B are alike, then if you treat A in a certain way, you must treat B in that same way. But so understood, the principle is not sufficiently nuanced. It doesn’t matter if B is like A in some irrelevant respect. B is only owed a benefit if B is relevantly like A. Another way to put this is to say that B must be treated in the same way as A absenting any justifying differences (Bingham 2010). So we can reformulate our principle of formal, horizontal equality as: Treat people alike, absenting any justifying differences. This new formulation raises the question of what counts as a justifying difference. Legal scholars have given at least two interpretations of this idea. On the first, and positivist interpretation, we determine what counts as a justifying difference only by looking to positive law –that is, the body of existing legal rules and official decisions in a given jurisdiction: Treat people alike, absenting any justifying differences recognized in positive law. So interpreted, the principle of formal, horizontal equality is compatible with many substantive inequalities in treatment, as both legal scholars and judges have noted (Baines 2005, 67-69; McIntyre 2006, 106-110; Fredman 2011 8-14, 563-64; MacKinnon 2011, 2-7; Andrews v Law Society of British Columbia, 166-68; Withler v Canada (Attorney General), paras 55-60; Centrale des syndicats du Québec v Quebec (Attorney General), paras 25-29). Consider, for instance, a country in which the marriageable age has been set at 18 or boys and at 12 for girls on the grounds that only boys need an extended education that will enable them to become financially self-sufficient. Now suppose, unusually, that a young girl has the economic resources and the social security to be able to challenge this law. She says: “This violates the principle of formal equality and hence the rule of law. I too have a right to education and financial independence. So the purported justifying difference of gender is not, in fact, an objective justification for permitting girls to be married at a much younger age than boys. I too should be able to wait until I am 18, rather than being married and leaving school at 12.” If we can look only to positive law in determining what counts as a justifying difference, then we must reject the young girl’s claim as mistaken. We must say: in this particular legal system, gender is a justifying difference. This interpretation of the principle of formal, horizontal equality is consistent with Raz’s early account of the rule of law, according to which the value of the rule of law lies in maximizing stability and predictability and thereby enabling people to plan their lives autonomously (Raz 1979). Raz of course did not himself include a principle of formal equality within the rule of law; partly because, as mentioned above, he thought it empty (Raz 1986). But if officials follow such a principle, those whom they govern will generally be better able to predict the law’s response if “justifying differences” are understood solely in light of positive law, rather than being seen as always open to re-interpretation in light of whatever might seem a better justification from a moral standpoint. So if we care about the principle of formal equality solely as a way of helping our laws achieve maximal stability and predictability, then the positivist interpretation might seem a good one. Ronald Dworkin attributes such a view to Dicey (Dworkin 2013; but for a different interpretation of Dicey, see Allan 2013). Note that this positivist interpretation seems to rely upon a particular conception of dignity and a related conception of autonomy. Dworkin refers to it as “the fair warning” conception of dignity, for all that it requires of governments is “fair warning of when government will interfere in people’s affairs” (Dworkin 2013, 11). It does not guarantee that when they do interfere, they will do so in ways that respect people as free and equal. Why might we think that a fair warning respects people’s dignity? For the reasons that Raz gives, when he notes that on his own understanding of dignity, “respecting people’s dignity includes respecting their autonomy, their right to control their future” (Raz 1979). On this view of human dignity, what matters most is that we should each be able to control our own life. Governments facilitate such control when they ensure that their laws are clear, publicly announced, and relatively stable, so that we can plan our lives accordingly. But now suppose the girl in our hypothetical example says: “This is not actually what is required to treat me with dignity. If I am to be respected as the equal of men, then I too should be given the time to become educated and trained in a profession. That way, I too can become financially independent and can truly function as an equal in my society.” She then continues: “Gender has been treated by officials in the past as a justifying difference for marriageable ages. But those who think this have made a mistake. They have failed to see that women, just as much as men, deserve an adulthood in which they are financially independent and able to choose whether or not they stay at home or have children.” If we adopt a moral conception of what counts as a justifying difference, then we can agree with her. We can recognize that although positive law in this particular country has held that gender is a justifying difference, it is not actually a moral justification --where to characterize a justification as “moral” means that it appeals to a sound conception of political morality that makes sense of a given country’s laws and aims (Dworkin 1985, Dworkin 1986a, 1986b). This brings us to a different interpretation of the principle of formal and horizontal equality: Treat people alike, absenting any morally justifying differences. On this interpretation, the principle of formal horizontal equality asks officials to interpret the law and make their decisions in light of what really is a justifying difference from the standpoint of political morality. This may sometimes require overruling established common law precedents or making decisions that run counter to the beliefs of the majority. This way of understanding the principle of formal horizontal equality demands of government officials what Dworkin has called “egalitarian integrity”: that is, it requires that “the principles that are assumed to justify how some are treated must be applied to all” (Dworkin 2013 11). In ways we shall later explore, this can work to the benefit of those who also need and deserve the benefit in question but whose marginalized social position has prevented them from receiving it. Though there are also costs to overruling precedents and making decisions that run counter to the wishes and expectations of the majority, as those who prefer the positivist interpretation of the principle would remind us. Moving toward substantive equality Dworkin has argued in many places that egalitarian integrity presupposes a different and more robust conception of dignity than the fair warning conception, one that conceives of people as having a right to a fundamentally equal moral status, including a right to equal participation in law-making and equal concern and respect from those who govern them (Dworkin 2013, Dworkin 2002, Dworkin 1986a, 1986b). I shall agree, shortly, that the moral interpretation of formal horizontal equality is most attractive when interpreted in light of a robust conception of dignity. But I do not think this version of the principle actually presupposes it. Another way to put this is that it is unclear that even the moralized principle can take us all of the way towards substantive equality or towards a thicker conception of the rule of law. To see this, consider a law that invites harsh treatment of a certain marginalized social group. If officials treat part of that social group in the way that the law invites them to be treated, does the principle of formal, horizontal equality (on its moral interpretation) require those officials subsequently to treat other members of the group in that same harsh way? This is not a far-fetched hypothetical: most countries contain some unjust laws inviting harsh treatment of certain marginalized social groups. As one example, consider a government official in Canada who is escorting Indigenous children onto airplanes bound for residential schools far away from their home communities, where they will be renamed with “white” names, forbidden from speaking their languages, and subjected to emotional, physical and often sexual abuse. Suppose that our official escorts the first group of children and then realizes what is happening to them. Should he put the next group of children onto the plane? The principle “Treat people alike, absenting any morally justifying difference between them” is not going to help him here. There is surely no morally justifying difference between the second group of vulnerable children and the first. None of them should be sent to residential schools. But the principle of formal equality tells us only what to do when there is a justifying difference between two groups of people. On its own, it does not give the official a reason not to put the second group of children on the plane. And the problem here runs even deeper. Not only does the formal, horizontal principle of equality not provide a reason not to put the second group of children on the plane, but it seems this principle might actually require the official to put them on the plane. After all, there is no morally justifying difference between the two groups. If this is right, then, at least in the form stated above, the principle of formal equality sometimes requires unjust acts on the part of government officials when they are working within a system that contains unjust laws. So even on its moral reading, it can sometimes introduce a further injustice into a legal system (Lyons 1973, 840). Raz argued in his early account of the rule of law that the principles forming part of the rule of law are like the sharpness of a knife: they make it good for accomplishing any purpose, but they can be put either to good purposes or to evil ones (Raz 1979). Raz claimed this makes these principles “neutral” (Raz 1979). But it seems to me that this understates what is happening here. When someone has made it clear that he is off to murder another person and you hand him a knife, you are not handing him a “neutral instrument.” You are handing him a deadly weapon. Similarly, when a legal system obliges officials to follow a principle of formal equality in relation to an unjust law, the principle of formal equality becomes an instrument of injustice. These reflections should surely push us away from any unqualified version of our principle of formal, horizontal equality –whether one that is positivist or one that invokes egalitarian integrity. We need to build a qualification into the principle: When one treats some people justly in a certain way, then one must treat others in a like way, absenting any morally justifying differences. So understood, the principle of formal equality is binding on government officials –and on anyone else occupying a relevant institutional role-- if they are already in the business of acting in a way that is just. It now states that when laws or officials have treated one person or group of people justly, then they must similarly treat others in that same way, unless there is a moral justification for not doing so. With this qualification now built in, the principle does not require government officials to continue enforcing unjust laws, simply in order to treat everyone alike in the relevant respect. But note that, even when so interpreted, the principle of formal equality does not itself require officials to treat anyone justly in the first place. It simply says that formal equality of treatment is necessary if you have already treated some people justly. What can we conclude so far? Our discussion has shown that scholars are, in a sense, right when they say that conformity to formal equality does not itself guarantee substantive equality. For as we have seen, the most plausible version of the principle of formal equality does not itself require officials to treat anyone justly. It only says that when they are treating some people justly, they need to extend that same treatment to all others who, from the standpoint of political morality, ought also to be treated in this way. But at this point, some scholars might object that it is a mistake to try to make sense of the principle of formal equality completely on its own. It was never intended to stand alone. Rather, many people endorse it today as one among a number of principles that bind those who live in a democratic society. And part of the purpose of a democratic society is to enable its members to govern themselves as each other’s equals (Kolodny 2014a, 2014b). On this understanding of the principle of formal equality, part of our reason for endorsing it is that we are committed to creating a society of equals, and we see adherence to formal equality by certain members of that society as one of the necessary preconditions for it. This seems to be what T.R.S. Allan means when he asserts that, both on his own view and on his reading of Dicey, “formal ‘legal equality’ is underpinned by a more fundamental notion of equal citizenship” (Allan 2013, 95). Allan suggests that the principle of formal equality must be understood in light of a deeper ideal of equality of citizenship, according to which those governed are understood as free and deserving of equal participation in social life and the equal protection of the law (Allan 2013 Ch. 3). In other words, it matters that officials and others in positions of institutional power avoid departures from formal equality precisely because it is only if they do so that all members of their society will be able to live dignified lives as each other’s social and political equals. So although the principle of formal equality does not itself lay out a richer conception of dignity than the fair warning conception, it is the kind of principle that we have strong reason to endorse because we live in a society that does see people as equals in a more substantive sense. We see people as beings whose dignity requires not just that they be subject to stable laws whose effect are predictable, but also that they be treated with equal concern and respect by those who govern them, enabling them to be full and equal participants in their society. If this is correct, and the principle of formal equality is best understood as helping us to realize substantive equality between members of a given society, then we must revise our understanding of what counts as a “justifying difference.” Earlier, we considered the source of justifying differences and examined whether they should be understood as derived from positive law or as developed from a set of arguments about what really is a morally justifying difference. But we did not explicitly consider the question of which groups are involved in developing and accepting claims about such justifying differences. Whose perspective should be considered? To whom, ultimately, is this justification owed? And who needs to know that the people to whom the justification is owed have accepted it –or at least, could not reasonably reject it? Allan has argued that part of the point of requiring governments to demonstrate that there are justifying differences between groups is to ensure that their laws and decisions are always publicly justified in ways that even the excluded or disadvantaged group can accept (Allan 2013 91, 99). Similarly, as Allan notes, Hayek observed that distinctions between groups of people count as justified only if “they are equally regarded as justified by those inside and those outside the group,” because “if only those outside favour it, it is discrimination” (Allan 2013, 99n33; Hayek 1960, 154). In other words, the perspective of those who are denied a benefit that is given to others must be considered when we determine what really is a morally justifying difference. It must be true that this group, when viewing the situation reasonably, would not be able to reject that justification, since it is primarily to them that the justification is owed. And the justification must be made public, so that the general population can see that the justification has been duly given and is of the right kind. We can therefore modify our principle of formal horizontal equality again: When one treats some people justly in a certain way, then one must treat others in a like way, absenting any morally justifying differences; and any justifying differences must be publicly presented and shown to be the kind of difference that those who are denied this treatment could not reasonably reject as relevant. So understood, this principle of equality is fairly demanding. It states that the underlying moral principles that justify benefitting one group must be extended and applied to all similar groups; that any alleged differences must be publicly identified; and that it must be shown to the public that even members of the group that is not benefitted could not reasonably disagree that these are justifying differences. This is, I think, what Dworkin meant when he said that laws must “avoid contradiction not just in detail but in principle” (Dworkin 2013, 11). If a particular general principle is invoked by the privileged to justify giving themselves a benefit, then they must take the further step and extend that benefit to everyone to whom that underlying principle actually applies. And those who are denied that benefit are owed a public justification of why the principle does not apply to them, and it is a justification that must be comprehensible from their own standpoint. We can see one of the many purposes of anti-discrimination laws (domestic human rights statutes, constitutional equality rights, and international human rights instruments such as CEDAW and ICERD) as operationalizing this version of the principle of horizontal equality and ensuring that both governments and certain private actors are publicly bound by it. Most anti-discrimination laws identify certain “protected traits” or “prohibited grounds of discrimination,” such as gender, gender identity, sexual orientation, marital status, race, or religion. These are traits that both governments and private institutions often mistakenly take to be justifying differences in contexts where they are not. So we can see part of the function of anti-discrimination laws as that of prohibiting governments and certain private actors from using such traits as justifying differences when these institutions deny benefits to certain groups. Moreover, the enforcement mechanisms that are used in conjunction with anti-discrimination laws normally require the discriminator to come before a tribunal or a court and publicly prove that they are justified in using a certain trait to treat certain people differently from others. This ensures that the publicity requirement contained within the principle of formal equality is satisfied. And because it is often the excluded person or group that is given the opportunity to bring the initial legal claim under anti-discrimination laws, these people are given an opportunity to explain why the alleged justifying difference does not seem relevant from their own standpoint. This assists the laws in meeting the requirement that the alleged morally justifying difference must be one that the group that is denied the benefit could not reasonably reject. At the same time, however, the principle of formal, horizontal equality is both more and less demanding than standard anti-discrimination laws. It is more demanding in two related respects. First, as we saw above, formal equality requires that any benefits that are given to some people on the basis of certain principles must be given to all others to whom those principles apply (Dworkin 2013 11). Discrimination law, by contrast, simply prohibits government officials and certain private actors from denying benefits to some people on the basis of certain kinds of traits; but it does not normally literally direct them to extend benefits to all who ought to have them. Second, discrimination laws sometimes contain a closed list of protected traits. Although in some jurisdictions, courts or tribunals are permitted to read in additional protected grounds (Canadian Charter of Rights and Freedoms, s.15), in others the list is fixed and can only be altered through a legislative amendment (U.K. Equality Act, s.4). So whereas the principle of formal, horizontal equality requires that benefits be extended to all absenting a genuinely justifying difference, many discrimination laws only require tribunals and courts to scrutinize certain alleged justifying differences, rather than all. But the principle of formal, horizontal equality is also much less demanding than anti-discrimination law, in two very important respects. First, because formal equality only requires the similar treatment of groups that are deemed sufficiently like the original group to warrant such treatment, it does not help us to rectify the kinds of inequalities that result when groups with very different needs from those we regard as normal do not have their needs met. And it can exacerbate the difficulties faced by such groups by forcing themselves to portray themselves as “like” the norm, instead of inviting us to reconstruct our norms in more inclusive ways (Fredman 2011; Baines 2010; Albertyn 2007). For example, the principle of formal equality directs us to extend benefits traditionally limited to heterosexual married couples to same sex couples who wish to undertake relationships of similar commitment –but the bare principle of formal equality cannot help us dismantle the many heterosexual norms in society that persistently disadvantage same-sex couples. Similarly, the suggestion that same sex couples need certain benefits when and because they are “just like” married heterosexual couples may force same sex couples to misrepresent themselves and may leave us blind to other genuine needs of theirs. By contrast, anti-discrimination laws are now thought of as aiming not just at inclusion but at what has been called “transformation” –that is, transformation of society’s underlying power structures in such a way as to identify and respond to the needs of disadvantaged groups. Second, and in fulfilment of this transformative aim, anti-discrimination laws often include protection against indirect discrimination –that is, against laws and policies that do not explicitly mention a prohibited trait or prohibited justifying difference but nevertheless have the indirect effect of disproportionately disadvantaging a group that is characterized by a protected trait (Khaitan 2017). Because indirectly discriminatory policies do not explicitly involve the use of a “justifying trait” that constitutes a prohibited ground of discrimination, they are usually not seen as falling afoul of the principle of formal equality, even if in fact they work to perpetuate the subordination of the social groups that are marked out by protected traits. For example, some countries require voters to submit proof of address before they can be listed on an electoral registry. This makes it much more difficult for certain itinerant Roma populations –which are already socially marginalized and economically disadvantaged—to gain voting rights. But as long as a government extends to everyone, alike, the right to submit proof of address for an electoral registry, it seems to satisfy the principle of formal equality. As another example, consider certain workplaces that require employees to be available on certain evenings or for travel. Although these policies do not mention gender as a justifying difference –nor do the employers who adopt them think there should be any difference in the treatment of men and women—nevertheless, in a society where women must take a disproportionate amount of childcare during the evenings and weekends, such a policy will give women fewer job opportunities and so less choice. Clearly, a great deal of the marginalization and silencing of particular social groups in our societies occurs in this way. It happens indirectly, through policies that do not explicitly single out groups such as racial minorities, women, persecuted religious groups, or people with disabilities, but nevertheless work in practice to perpetuate their subordination (Moreau 2020). The principle of formal equality, then, only goes so far. It seems to help protect against direct discrimination. But useful largely in extending to the discriminatee the same benefits that have been given to others. It does not direct us to consider novel benefits that the discriminatee might require. And because it is silent in cases of indirect discrimination, it leaves in place the many social arrangements that work to the disadvantage of subordinate social groups. So it takes us only part of the way in realizing the kind of substantive equality that would enable every person in a society to have equal rights of social and political participation in that society and a social status equal to that of others. So far, I have clarified what a plausible principle of formal, horizontal equality requires and have argued that it is a sensible ideal to strive for in large part because we are already committed to a more substantive vision of equality. I have suggested that it does some of the work in ensuring that people are treated as equals in that more substantive sense; but that it cannot take us all of the way to substantive equality. But we still have two of our original questions left to answer: to whom exactly does this principle apply, and what value is it in realizing other elements of the rule of law? To whom does the principle of formal horizontal equality apply? One of our original puzzles about the principle of formal horizontal equality was that it seemed to apply both to government officials and to people in certain institutional roles, such as teachers and parents, but not to us in other contexts. Now that we have clarified what the principle of formal horizontal equality states when most plausibly interpreted, we can resolve this puzzle. First, as we have now qualified it, the principle applies “when one treats some people justly in a certain way.” This means that it applies to those who are in a position where they can treat others justly –that is, anyone who is in the business of distributing benefits that are owed to others, whom others can call to account for not giving them their due. This includes both government officials and those non-governmental agents who occupy institutional roles such as teachers and parents. But it does not include me when I choose guests for my camping trip. Of course, it is possible to describe my camping trip as a benefit that I am distributing to those whom I choose to invite along. But when I invite people on my trip, I am not giving them their due, because these people have no claim on me for this benefit. I do not owe anybody a spot on the trip. So in these more personal contexts, justice is not a virtue that I need to aspire to, or that I could even sensibly aspire to; and neither, therefore, is the principle of formal, horizontal equality. By contrast, justice is a virtue in the classroom and in the home, because there are benefits that I owe to my students and my children: they have certain claims on me. It is also a virtue of employers, landlords, and providers of goods or services –the private actors to which anti-discrimination laws apply. Although it is true that they do not owe anyone a job or an apartment to rent, nevertheless, insofar as they are holding themselves out to the public as purveyors of benefits available to the public, they do owe each member of the public a fair opportunity to obtain the job, apartment, good or service. But there is more that we need to say here –and this will explain, I think, why it is not just a truism to say that in these roles, we must treat people alike, absenting justifying differences. For what about when I give to the homeless person? It seems to me that there is a sense in which, when I do this, I am giving someone their due. Although duties of beneficence are imperfect duties and I am certainly not required to give to every homeless person I see, nevertheless they do, as a group, have some sort of claim on me, and it does not seem incoherent to ask whether I am treating them justly or not. And yet I do not seem to be under a requirement of formal equality, even with respect to the four or five homeless people whom I can afford to, and probably ought to, give money to. So although it is necessary, to be subject to the principle of formal equality, that one be in the business of giving others their due, it does not seem sufficient. What else do we need? I think the answer lies in the kind of institutional power that is given to us, when we occupy such roles as government official, teacher and parent (and relatedly, employer, landlord, or provider of goods or services). In these roles, we wield considerable power over others –and it is power that our role in that particular social institution gives us. As a teacher, I have the power to decide, within some parameters, what my students learn as well as how they learn it, what their grades are, and in some contexts, their future job prospects. As a parent, I have the power to decide some of the most fundamental aspects of how my young children live and to make decisions that will affect their place in the world. And of course government officials have enormous power over us, deciding which public supports we have access to, which of our private claims are enforceable, and what freedoms we have. What seems most important, from the standpoint of the principle of formal horizontal equality, though, is not just the amount of power that these institutional roles give us over others, but also the nature of that power. I think that, in all of the cases where we are inclined to think that someone is bound by a requirement of formal horizontal equality, that person has the power to affect the status or standing of the people in that institution, relative to each other. And this is not surprising. If part of the reason we care about abiding by the principle of formal equality is that ultimately we care about creating a society in which people relate to each other as full and equal participants in their society, then this principle should bind people whose institutional roles give them the power to make a difference to whether certain groups are able to be full and equal participants in their society or within a major institution of that society. This helps to explain why the principle of formal equality does not bind my decision about which homeless person to give a dollar to: when I make such a decision, I do not occupy the kind of institutional role that endows me with this sort of status-changing power. Indeed, this also helps to explain why discrimination laws apply both to governments and to the private actors mentioned above, such as employers, landlords, and providers of goods and services –but not to private actors when they make other decisions, such as personal decisions about where to shop and which job to accept. They do not apply to these personal decisions because we do not, when we make them, generally have the institutional power to make a significant difference to the status of others in society. But we do have such power when we have a position in the government or are an employer or a landlord or offer goods and services to the public. When we occupy these institutional roles, we can make a substantial difference to whether someone is a full and equal participant in their society; so it matters that we abide by a principle of formal equality, even though adherence to this principle will not on its own bring about substantive equality. Realizing other elements of the rule of law How does our revised principle of formal, horizontal equality help to achieve the rule of law? I noted earlier that this principle is conceptually distinct from one of the core ideas of the rule of law, the idea that no one shall be above the law. When we worry that a particular government official has placed themselves above the law, we are worried about vertical equality –that is, with equality between those who are governing and those whom they govern, rather than with equality among those who are governed. But, as I observed earlier, many scholars such as Lord Bingham have asserted that horizontal equality is a necessary part of the rule of law and helps to ensure that no one is above the law. Why exactly is this? And what other elements of the rule of law, if any, might formal horizontal equality help to realize? Consider three of the principles that Lord Bingham sees as part of the rule of law: (i) Questions of legal right and liability should ordinarily be resolved by the application of the law and not the exercise of discretion. (Bingham 2010, 48). (ii) Ministers must exercise the powers conferred on the minister in good faith, fairly, for the purpose for which the powers were conferred, and without exceeding the limits of such powers (Bingham 2010, 60). (iii) The law must afford adequate protection of fundamental human rights (Bingham 2010, 66). The first two of these principles spell out in more detail what is required in order for officials not to be “above the law.” Principle (i) is concerned with limiting official discretion. Our principle of formal, horizontal equality does work to limit official discretion. It tells officials that, when they are distributing benefits to those whom they govern, they cannot use just any trait to justify differential treatment of some: it must be a genuine justifying difference, and they must publicly prove it to be so even to those who are denied the benefit. So in this way, it limits the acceptable justifications they can give for treating certain people differently. Of course, on the moral reading of our principle, officials are invited to question past precedent and overturn existing laws whenever they believe these do not accurately reflect what really is a justifying difference in that context. And this opens the possibility for decisions that are anchored neither to positive law nor to what is actually morally required, but simply to what a particular official feels would enrich himself or his constituents. But any legal process that gives officials some interpretive role is open to such abuse. When the principle of formal equality is used in the way that it is intended to be used –that is, when officials try to recognize which traits really do justify differential treatment, and when they engage in public political dialogue about this that involves the groups who are being denied a certain benefit-- then they are more likely to be guided by the moral principles underlying the law, rather than by their own whims. And so the requirement of formal horizontal equality can help officials to resolve disputes about how to allocate benefits in the manner required by principle (i) –that is, “by the application of the law and not the exercise of discretion.” For similar reasons, the principle of formal horizontal equality helps to ensure that ministers act fairly and that they exercise their powers “for the purpose for which the power was conferred,” as principle (ii) requires; though obviously it does not guarantee that ministers will act in good faith. Moreover, we might add (though this is my view, not Bingham’s) that in a democratic society that is committed to substantive equality, the broader underlying purpose for which any minister exercises their power is to create a society of equals, where each person has a chance to participate fully in social and political life. Insofar as the principle of formal horizontal equality helps officials to bring us closer to such a society of equals, it is helping them to exercise their powers in accordance with this broader purpose. Principle (iii), that the law must afford adequate protection of human rights, is the most demanding of these three principles of the rule of law, and also one of the most controversial. Some scholars agree that respect for human rights is a requirement of the rule of law (Allan 2013); while others hold that it is best thought of as a separate virtue of some legal systems (Raz 2019). The principle of formal horizontal equality does not of course guarantee protection of any human right, for it applies only when officials have already made the decision to give a certain benefit or protection to one group. If they give it to no one, the principle of formal equality is silent. But in practice, most governments do grant basic human rights to at least some of their population; and the principle of formal equality therefore implies that they must accord the same human rights to all. So, in addition to helping to ensure that officials are not above the law, both by limiting their discretion and by helping them to exercise their powers in accordance with the purpose for which they were given, adherence to the principle of formal horizontal equality can also help officials to protect basic human rights. My aim in this chapter has been to refine our understanding of what a plausible principle of formal, horizontal equality should look like, and then to explore its relation both to other elements of the rule of law and to substantive equality. Although formal equality can seem empty or obvious, it is neither of these. 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