Substantive equality revisited: A reply to Sandra Fredman

The first time substantive equality was argued to a court of law was by the Women's Legal Education and Action Fund (LEAF) before the Supreme Court of Canada in Andrews v. The Law Society of British Columbia, decided in 1989. There, the Aristotelian formal equality approach revolving around sam...

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Bibliographic Details
Published in:International journal of constitutional law 2016-07, Vol.14 (3), p.739-746
Main Author: MacKinnon, Catharine A.
Format: Article
Language:English
Subjects:
Ancient Greek philosophy
Disadvantaged
Equality
Inequality
Law
Legal education
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Summary:The first time substantive equality was argued to a court of law was by the Women's Legal Education and Action Fund (LEAF) before the Supreme Court of Canada in Andrews v. The Law Society of British Columbia, decided in 1989. There, the Aristotelian formal equality approach revolving around sameness and difference was explicitly rejected for the first time in a legal argument. Substantive equality -- predicated on and illustrated by but not limited to the situation of women -- was expressly argued as an alternate paradigm, its substantive content turning on change in the lived inequalities of the historically disadvantaged. Toward this end, equality claims under § 15 of the Charter of Rights and Freedoms were to be subjected to "the purposive approach," meaning assessed "bearing in mind that the purpose of the section is to promote the equality of those who have been disadvantaged" -- in other words, concretely, change-oriented, and asymmetrically. "
ISSN:1474-2640
1474-2659
DOI:10.1093/icon/mow047