The Quiet Abandonment of Equality Before the Law

The Quiet Abandonment of Equality Before the Law

The defining political error of the modern West has been to mistake equality for the highest political virtue. In doing so, it has quietly begun to abandon the constitutional principles that made liberal civilisation possible.

That may sound like an extravagant claim, but consider the reaction whenever Reform UK proposes repealing the Equality Act. The response is rarely to engage with the philosophical argument. Instead, many commentators react as though the party has declared war on equality itself. The legislation’s title does much of the rhetorical work: if it is called the Equality Act, then opposing it must surely amount to opposing equality. That is precisely the sleight of hand this essay sets out to expose.

The question has never been whether citizens should be treated fairly, or whether arbitrary discrimination is wrong. No serious person disputes that. The real question is what equality means. Does it mean that every citizen stands before the law under the same rules, regardless of race, sex or religion? Or does it mean that the state should concern itself with the relative outcomes experienced by different groups, intervening where those outcomes differ to produce what it regards as a fairer result?

These are not two versions of the same philosophy. They are two incompatible conceptions of justice, and only one of them is compatible with a free society.

The first is the liberal tradition that shaped the modern West. The second is the increasingly dominant philosophy of progressive egalitarianism, and it is corroding the first from within.

The distinction matters because equality before the law was never a minor constitutional preference. It was one of the great civilisational breakthroughs. Before the emergence of liberal constitutionalism, almost every society organised itself through legal categories. Rights differed according to birth, religion, estate, ethnicity or social class. The law did not recognise individuals as equals; it recognised members of different orders.

The great liberal thinkers set out to dismantle precisely this way of organising society. Although they differed profoundly on economics, religion and the proper limits of government, figures such as John Locke, Montesquieu, Adam Smith, A. V. Dicey and Friedrich Hayek shared a common conviction: liberty depends on general, impersonal rules rather than discretionary power. The legitimacy of the law arose precisely because it ceased to ask who stood before it. A citizen was entitled to equal legal treatment not because he belonged to the correct group, but because the law recognised no such groups at all.

This was not an administrative improvement. It was a moral revolution.

For perhaps the first time in history, societies began systematically replacing status with citizenship. The law ceased to concern itself with ancestry and concerned itself instead with conduct. Race, religion and family background were to become legally irrelevant. The blindfold worn by Lady Justice symbolised something profound: justice was not supposed to know who you were.

That ideal was imperfectly realised, often imperfectly applied, and frequently betrayed in practice. Human beings remained prejudiced; institutions remained fallible. But the direction of travel was unmistakable. Liberal societies removed legal distinctions rather than inventing new ones. They made immutable characteristics progressively less relevant to public life, not more.

That direction has now reversed.

Over the past several decades, a different philosophy has steadily displaced the liberal one across much of the Western world. Progressive egalitarianism begins from a different premise: that treating individuals identically is not sufficient, because equal rules can still produce unequal outcomes between groups. From this premise, disparities in representation, employment, educational attainment or income stop being incidental facts and become matters requiring institutional correction. Justice is no longer impartial treatment. It becomes the management of social outcomes, and that is not an advance on the liberal idea of justice. It is a betrayal of it.

This is not a refinement of the liberal idea of equality. It is a replacement of it.

The Equality Act is the clearest illustration of the substitution. Its defenders point out, correctly, that the Act prohibits many forms of discrimination and protects individuals from unfair treatment, and on that narrow point they are right. But the Act also permits positive action in defined circumstances, explicitly allowing protected characteristics to be taken into account to advance equality of opportunity or address disadvantage. That single provision changes the constitutional question entirely. It is no longer whether the law should distinguish between citizens according to characteristics such as race. It is when the law considers such distinctions acceptable.

That is not a different policy. It is a different principle, and once it is conceded, the principle of legal neutrality is already gone.

Supporters respond that these powers are narrow, proportionate and carefully constrained. That may be true as a matter of statute. But constitutional principles are not measured by how often an exception is invoked. They are measured by what the exception establishes. Once a legal system accepts that race may sometimes be relevant to public decision-making, it has abandoned the absolute neutrality earlier liberals regarded as non-negotiable. Everything that follows, every debate about scope, proportionality and safeguards, is a debate about the boundaries of the exception, not about whether the exception should exist. The principle was surrendered the moment the exception was written into law.

This broader transformation can now be seen across public life. Universities measure representation across protected characteristics. Public bodies conduct equality impact assessments. Corporations publish diversity statistics and set demographic targets. Recruitment processes routinely collect data on ethnicity and sex because institutions now treat such classification as the precondition of fairness, rather than its opposite.

None of this requires malicious intent, and it would be intellectually lazy to claim otherwise. Most of it is driven by genuine concern about disadvantage. Nor does it require a conspiracy directing events from above; ideas rarely spread that way. They spread because they persuade academics, lawyers, civil servants and corporate leaders one institution at a time, until a contestable philosophical position is treated as simply self-evident. Good intentions do not make the structural shift smaller; if anything, they are why it has gone almost entirely unexamined.

That is precisely why this debate cannot be dismissed as a fringe grievance.

The cumulative effect has been to redefine equality itself. Equality is no longer the equal application of rules; it is the pursuit of more equal outcomes between groups. Once that shift occurs, intervention becomes both logical and open-ended, because there is no natural stopping point. Every persistent disparity becomes evidence of injustice. Every imbalance invites a policy response. The state and the institutions it influences become permanently occupied with classification, measurement and correction, a project with no defined endpoint, because human beings will never sort themselves into statistically identical groups by free choice.

Erik von Kuehnelt-Leddihn argued in Liberty or Equality that this was no accident: liberty and egalitarianism pull in fundamentally different directions. Liberty requires governments to exercise restraint and tolerate the unequal outcomes that free choices inevitably produce. Egalitarianism, by contrast, is structurally incapable of tolerating unequal outcomes for long, and therefore generates a permanent, self-renewing demand for political intervention. The more equality is treated as a social objective rather than a legal principle, the more authority must be granted to whichever institution is deemed capable of producing it. History gives little reason to doubt this. Governments rarely acquire powers for a single, self-limiting purpose. Once an institution is made responsible for managing outcomes, it will always require more data, more discretion and more authority to do so, and it will always find a disparity to justify the next expansion.

This is why progressive egalitarianism should be understood as a subversive force within the liberal tradition, not a continuation of it. It does not reject liberty outright; that would be too easy to spot and resist. Instead, it quietly redefines the assumptions liberty depends on. It keeps the language of equality while inverting its meaning. It speaks constantly of fairness while teaching institutions to view citizens through the lens of group identity, the precise habit of mind liberalism was invented to abolish. It promises a deeper justice while asking the state to abandon the strict impartiality earlier liberals considered justice’s defining feature.

Many of its advocates sincerely believe they are completing the liberal project. They are not. They are dismantling it, one well-intentioned exception at a time.

The great achievement of liberal civilisation was not that it guaranteed everyone the same outcomes. It was that it built a constitutional order in which the law aspired to know nothing about the immutable characteristics of the citizen standing before it. That aspiration was never perfectly fulfilled, but it was the right aspiration, and abandoning it is not progress. It is regression dressed in progressive vocabulary.

So it is not “extreme,” and certainly not dishonest, for a party to propose repealing legislation built on a mistaken theory of justice. What is intellectually dishonest is the reflex that treats any challenge to the Equality Act as a challenge to equality itself. The real disagreement is not about whether equality matters. It is about which equality we mean, and Britain has, largely by drift rather than decision, already chosen the wrong one.

If equality before the law is still the foundation of liberal government, then laws permitting differential treatment by race or sex, however limited, however well-intentioned, are not minor administrative carve-outs. They are a different constitutional philosophy wearing the old one’s name, and it should be opposed under its own name rather than tolerated under a borrowed one.

Liberty does not survive equality ceasing to mean equality before the law. It was never going to. The drift toward equity must be named, resisted and reversed, or the liberal settlement that made the modern West possible will not survive it.