How Laws Discriminate

Stephen Sedley

‘One law for the Lion & Ox,’ wrote Blake, ‘is oppression.’ He was describing in his oblique way what Anatole France a century later described more brutally as ‘the majestic even-handedness of the law, which forbids rich and poor alike to sleep under bridges, to beg in the streets and to steal bread.’ France’s English contemporary Lord Justice Mathew made the point in more genteel terms: ‘In England,’ he said, ‘justice is open to all, like the Ritz.’ The Early Victorian poet Thomas Love Peacock had noted the unequal impact of the Sunday observance laws:

The poor man’s sins are glaring;
In the face of ghostly warning
He is caught in the fact
Of an overt act –
Buying greens on a Sunday morning.

The rich man is invisible
In the crowd of his gay society;
But the poor man’s delight
Is a sore in the sight
And a stench in the nose of piety.

The rich man goes out yachting
Where sanctity can’t pursue him;
The poor goes afloat
In a fourpenny boat
Where the bishop groans to view him.

But the truth is that all laws discriminate. They discriminate between the virtuous and the wicked, between the permitted and the prohibited, between the taxable and the duty-free. They discriminate, too, on grounds which from era to era are taken to be so obvious that they do not even require justification. It was obvious that the right of Athenian citizens to vote did not include women or slaves. Among the American founding fathers who proclaimed the self-evident truth that all men are born equal were several slave-owners. In this country until the 20th century the unsuitability of women to vote, sit on juries or join the professions was regarded – at least by men – as too obvious for argument. We continue to regard it as self-evident that the freedoms which we now regard as the birthright of all men and women without distinction do not apply to children. Our law, both common law and statute, permits acts against children which, if committed against adults, would amount to criminal assaults. It was only in this generation, and only by the narrowest of margins, that the House of Lords in Victoria Gillick’s unsuccessful case abandoned the notion of parental rights as a form of proprietorship and put in their place a balance between the child’s evolving autonomy and the parent’s role as carer.

As to crime, it is not law – the argument goes – that criminalises some people and not others, but social conditions or personal choice that lead wrongdoers to do wrong. The law may be able to mitigate the consequences for those who offend through misfortune, but it cannot treat them as free of blame without forfeiting the very claim to even-handedness which its detractors mock. But Blake, too, was right to claim that one law for all is ‘oppression’. His was the age of large-scale enclosures and of the Game Laws when, as the jingle went:

The fault is great in man or woman
Who steals a goose from off a common;
But what can plead that man’s excuse
Who steals the common from the goose?

Enclosure in England was the work of the law, but few poor people benefited from it. The rich never found themselves trespassing in search of game: they could pursue it on their own or their friends’ land. The law which in form governed the powerful and the submissive – the lion and the ox – without distinction, was in substance a means by which the one could oppress the other, and was meant to be so. There is little doubt that the sole reason Georgian and Regency judges, who were otherwise active in developing new crimes, did not criminalise trespass by itself was that it would have made foxhunting impossible. The dilemma has plagued the law to the present day, resulting in the creation of statutory constructs like ‘trespassory assembly’. So undisguised an intention to discriminate by law between classes, genders or races may be a thing of the past, but the unequal effects of equal laws remain a living – indeed a growing – issue.

It has been one of the great achievements of the last generation to recognise and begin to grapple with this snake in the legal grass. Responding to the pressure of the Civil Rights movement, the United States’s Civil Rights Act 1964 set out a simple prohibition on all discrimination on grounds of sex or race. (The inclusion of sex was a brilliant accident: the measure was designed originally only to prohibit race discrimination; an amendment to include sex discrimination, intended to make the Bill a laughing stock, was moved and passed; and so was the Bill as amended.) It was left to the courts to make this bald provision work, and they did so by recognising that discrimination could occur where, although the same condition was being applied to everyone concerned, it had a disproportionate adverse impact – perhaps deliberate, perhaps accidental – on one sex or racial group. Early in the now chequered existence of the Civil Rights Act the Supreme Court ruled: ‘Congress has now provided that tests or criteria for employment or promotion may not provide equality of opportunity merely in the sense of the fabled offer of milk to the stork and the fox ... It has ... provided that the vessel in which the milk is proffered be one all seekers can use.’ The Sex Discrimination Act 1975 and the Race Relations Act 1976, leaving nothing to chance in the manner of British drafting, spelt out the analytical process by which indirect discrimination was to be identified and, if identified, justified. The formula can be problematical to apply, but over time it has worked, and not only in courts and tribunals: far more importantly, it has been used to change good practice, replacing subjective and undisciplined recruitment procedures with relevant criteria designed to find the best candidate.

But neither law nor practice has succeeded in eliminating inequality of opportunity for ethnic minorities and women; nor will they, in some fields at least, unless entrenched forms of élitism, most of them based on inherited and unarticulated assumptions, are directly challenged. The powerful case for affirmative action in some of these areas – that is to say, the argument for loading the criteria of choice in favour of those who have historically been disadvantaged – encounters the equally powerful argument that if discrimination on grounds of race or sex is wrong, then practising it for benign reasons cannot make it right. It also faces the practical argument that, while affirmative action to encourage disadvantaged groups to come forward is acceptable, positive discrimination by definition involves a selective dilution of standards. These arguments, built as they are on the very legislation which sets out to combat discrimination, seem to have a monopoly of justice: how, they ask, can you combat discrimination by discriminating? And yet history argues differently. It shows us centuries of positive discrimination in favour of white men, of jobs and advantages going to incompetents and mediocrities whose faces happened to fit or who had the right connections. It helps to explain why forms of inequality remain embedded in our ways of thinking and operating. Women and members of ethnic minorities still face problems of self-confidence even when they are merely deciding to try to enter fields of activity where the white male image dominates. For those who do enter, experience still suggests that to succeed they have to do better than their white male counterparts. As a society we continue to set our faces against practices which will turn these tables. We accept the legitimacy of target numbers against which to monitor performance; but we do not allow the use of quotas to redress performance which is proving inadequate. The consequent near-stalemate is a different but no less real form of injustice. We have legislated against individual acts of discrimination, for each of which the law can try to provide a remedy; but we have no legal means of dealing with the kinds of systemic disadvantage that the legislation has so far failed to reverse. One marginal solution, within the present law, is to give priority to those relevant criteria of choice which members of disadvantaged minorities are more likely to be able to satisfy. Another, now adopted in such countries as Canada and New Zealand, is to keep a quota of places for historically disadvantaged minorities in institutions – chiefly universities – which provide the passkeys to the problem areas of employment, housing and so on.

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