The Utilitarian Theory of Equality Before the Law

17 Pages Posted: 27 Nov 2015 Last revised: 13 May 2018

Date Written: November 26, 2015


This Article argues that a particular political theory underlies the judicial interpretation of ‘equality before the law’. The Canadian Courts at the date of writing have elaborated two tests for the signification of ‘equality before the law’. The Article traces the two tests to the utilitarian political theory outlined by John Stuart Mill. The one test sets out the ‘greatest happiness of the greatest number’ or ‘social interests’ as the criterion for adjudicating equality. The second test identifies the reasonable relationship of an alleged statutory classification vis-à-vis the statutory purpose. The Article offers an alternative approach based upon democratic theory. Examples of the two tests and the alternative approach are drawn from judicial constitutional interpretations in the USA and Canada.

Keywords: Constitutional Law, Equality, Legal Theory, Jurisprudence

Suggested Citation

Conklin, William, The Utilitarian Theory of Equality Before the Law (November 26, 2015). Available at SSRN: or

William Conklin (Contact Author)

University of Windsor ( email )

401 Sunset Avenue
Windsor, Ontario N9B 3P4

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