The Alchemy of Equality Rights

Abstract

A clear legal test for equality is impossible, as it should be. Indeed were the test clear, it could not be for equality. It would have to be for something other than equality — in effect, for inequality. The abstract character of equality is not a new idea. In fact, the Supreme Court of Canada’s first decision under section 15 of the Canadian Charter of Rights and Freedoms recognized equality as “an elusive concept” that “lacks precise definition.” Why, then, do judges continue to demand such definition over thirty years later? The answer, at times, is politics.

Keywords: Critical race theory, constitutional law, equality