The Concept of Equality and Its Status as a Human Right in Domestic Constitutions and the International Bill of Human Rights

Abstract

Equality is generally defined as the state of correspondence and equivalence among individuals in terms of rights and obligations under the legal rules governing social relations. It occupies a prominent position within the legal and constitutional systems of contemporary states, as it is regarded as a prerequisite for freedom. Some legal scholars even consider equality to be the foremost of all rights and the foundation upon which other rights are built.

The right to equality is one of the fundamental rights enjoyed by every human being, from which various forms and manifestations derive, each determining the legal status of its holder. Legal scholarship has also developed specific classifications of the different types of equality.

Accordingly, this study seeks to define the concept of equality, examine its legal forms and classifications, and clarify its status at the international level through an analysis of how the international community has addressed this right. It further explores the position of international treaties and Syrian law regarding the right to equality.

Keywords: Right to Equality; Equality Before the Law; Equality Before the Judiciary; Equality in Public Burdens and Public Charges.

Introduction

Equality constitutes one of the cornerstones of human rights, as human beings are social creatures living within communities whose members may differ in terms of race, religion, language, or political affiliation. There is no doubt that the right to equality is among the most fundamental human principles to which nations and peoples have consistently adhered. It represents one of the essential foundations upon which the Universal Declaration of Human Rights is based and which it seeks to promote across all spheres of life. No distinctions within human society should arise from differences in origin, sex, religion, or any other status. The right to equality is among the most important, inherent, and oldest human rights. It is the foundation upon which all other rights rest, and it is inseparably linked to human existence itself. Just as a human being cannot be complete without a heart and a soul, the purpose of human existence cannot be fully realized without the ability to exercise the right to equality. God Almighty created humanity free and equal in human dignity, without distinction based on color, race, region, or social status. Human beings are equal in their inherent dignity.

This is an absolute truth affirmed by the divine religions and defended as an enduring human and Islamic principle, one that has been translated from the realm of thought into practical reality. Numerous international instruments have likewise recognized this right, including the Universal Declaration of Human Rights adopted by the United Nations General Assembly.

Research Problem

Equality is considered one of the fundamental rights, and its development has passed through several historical stages. Legal scholars have also engaged in extensive debate regarding the classification and various forms of equality. The international community has attached great importance to this right, to the extent that the Universal Declaration of Human Rights adopted equality as a foundational legal principle from which many other rights derive. Accordingly, this study examines the significance of the right to equality, its various manifestations, and its principal classifications.

Significance of the Study

The importance of this study lies in addressing the following questions:

1. What is the legal nature of the right to equality?
2. What are the principal domestic legal provisions governing the right to equality?
3. What are the major classifications developed regarding the right to equality?
4. How does the Syrian Constitution address the right to equality and its various dimensions?
5. What is the position of international law and European law concerning the right to equality?

Research Methodology

This study adopts a descriptive and analytical approach by examining the legal principles governing the right to equality. It seeks to define the concept of equality, identify its various forms and classifications, and analyze how international and European legal systems have addressed this principle. The study is divided into two main sections. The first section examines the concept of equality and its various manifestations, while the second discusses the different forms of equality and the positions adopted by international and European law in this regard.

Chapter One: The Concept of Equality and Its Various Forms

Section One: The Concept of the Right to Equality

Equality (égalité) refers to the correspondence and equivalence among individuals in terms of rights and obligations under the legal rules governing social relations. Equality occupies a prominent position within contemporary legal systems because it is regarded as a prerequisite for freedom. Some legal scholars even consider equality to be the first and most fundamental of all rights.^1

The French philosopher Jean-Jacques Rousseau expressed the principle of equality by stating that it means that no individual gives himself to anyone in particular when he gives himself to all: “Chacun se donnant à tous ne se donne à personne.” Rousseau further argued that equality encourages individuals to respect the law because, ultimately, the law expresses their collective will.^2

Some legal scholars have identified a close relationship between equality and justice, distinguishing between two concepts of equality. The first is commutative equality, which implies complete equality among individuals with respect to the obligations they perform and the benefits they receive in return. This corresponds to the concept of commutative justice. The second is proportional equality, which aligns with the concept of distributive justice. Under this conception, differences in treatment are permissible in the distribution of wealth and burdens, such that individuals receive rewards or bear obligations according to their merits and contributions within society.^3

Public law scholars generally agree that equality constitutes a fundamental element in the construction of the rule of law, as it serves as a political principle that guarantees and protects rights within society.^4

Equality occupies a central place in comparative constitutional systems. Article 33(3) of the Constitution of the Syrian Arab Republic provides that:

“Citizens are equal before the law in rights and duties.

The State shall guarantee the principle of equal opportunities among citizens.”

Similarly, the Egyptian Constitution recognizes the right to equality among citizens. Article 40 provides:

“Citizens are equal before the law and are equal in public rights and duties, without discrimination on grounds of sex, origin, language, religion, or belief.”

In France, the principle of equality was established with the adoption of the Declaration of the Rights of Man and of the Citizen of 1789, which distinguished between the philosophical foundation of equality and its legal realization. The Declaration acknowledged that absolute equality among individuals does not exist; rather, certain forms of discrimination are prohibited. Article 6 states that the law must not only emanate from the people collectively but must also apply equally to all. The Declaration further emphasizes that equality requires equal access to opportunities and the equitable distribution of wealth within society.^5 It should be noted, however, that equality was not included among the Declaration’s natural and imprescriptible rights of man, which were identified as liberty, property, security, and resistance to oppression.

The Preamble to the French Constitution of 1946 reaffirmed the principle of equality in several provisions. Paragraph 2 recognizes equal rights for women and men in all spheres. Paragraph 12 establishes solidarity and equality among all French citizens in bearing the burdens arising from national disasters. Paragraph 13 guarantees equal access to education for all. The Constitution of 1958 further entrenched the principle of equality, with Article 2 declaring that the motto of the French Republic is:

Section Two: Forms of Equality

Equality assumes various forms depending on its content and objectives. These forms may be examined as follows:

First: Equality Before the Law

This form of equality manifests itself at three levels:

1. Equality Before the Legal Rule

This concept requires that all individuals be treated equally before the law. It imposes an obligation on those responsible for applying legal rules not to engage in any discrimination among persons subject to the law unless such differentiation is expressly provided for by the legal rule itself. This aspect of equality concerns the application of the law rather than the substance of legislation.

Historically, equality before the legal rule represented the earliest expression of legal equality. It emerged as a means of abolishing social distinctions, particularly those that characterized feudal systems, and established the principle that a single legal order should apply equally to all individuals without exception. Since all members of the political community possess the same rights, they should likewise be subject to the same law and legal standards.

The primary function of equality before the legal rule is therefore to place all citizens within a single legal sphere regardless of their actual social or economic status.

2. Equality Within the Legal Rule

Equality before the law does not, by itself, prevent inequalities from arising through the content of legislation. Hence, the concept of equality within the legal rule focuses on ensuring that the substance of the law itself does not create unjustified distinctions.

Under this principle, the legislative authority must refrain from discrimination or favoritism among those subject to the law. Similar legal situations must be treated in a similar manner. Equality before the law thus presupposes equality within the law itself, since equal application cannot be achieved if the legal rule is discriminatory in its content.

This form of equality is closely linked to the generality of legal rules. Indeed, the principles of legal generality and equality have become inseparable characteristics of modern law.

3. Equality Through the Legal Rule

This concept differs from equality within the legal rule in that it requires positive legislative action. Whereas equality within the law prohibits unjustified distinctions, equality through the law obliges the legislature to take account of real differences among individuals and social groups.

Accordingly, different legal treatment may be justified where factual circumstances differ. The objective is not merely formal equality but substantive equality, whereby legal rules address actual inequalities existing within society.

Chapter Two: Types of Equality

First: Equality Before the Judiciary

Equality before the judiciary means that all citizens enjoy the right of access to justice on equal terms before the same courts and without discrimination based on origin, sex, race, language, religion, belief, or personal opinions.

This principle requires that judicial institutions be unified and that litigants be subject to the same procedural rules. However, equality before the judiciary does not prevent judges from imposing different penalties when circumstances differ from one case to another, even where the same offence is involved.

Nor does it prevent the establishment of specialized courts dealing with particular categories of disputes or offences, provided that such specialization is based on objective considerations rather than distinctions among litigants themselves.

Equality before the judiciary gives rise to three important consequences:

A. Unity of the Judiciary

All citizens must appear before the same judicial system without distinction based on social class, status, or personal characteristics. The existence of special courts for privileged social groups would violate this principle.

B. Equality Before Laws and Penalties

All litigants must be subject to the same laws and penalties. Equality in punishment requires both the uniform application of legal sanctions and adherence to the principle of personal criminal responsibility, whereby no individual bears responsibility for the actions of another.

C. Access to Justice

True equality before the courts requires that access to justice be available to all. Although judicial services may formally be free, litigation costs, legal fees, and procedural expenses often create practical obstacles. Consequently, many legal systems provide legal aid and assistance to economically disadvantaged litigants.

Second: Equality Before Public Services

A public service is an activity carried out by a public authority in order to satisfy a public need and promote the general interest.

Since public services exist for the benefit of society as a whole, all individuals who satisfy the conditions for benefiting from such services must be treated equally. Any discrimination based on race, sex, language, religion, or other irrelevant grounds is prohibited.

However, equality before public services does not exclude the establishment of objective eligibility requirements, such as educational qualifications for university admission or the payment of reasonable service fees, provided such conditions serve legitimate public interests and are applied equally.

Third: Equality in Public Employment

Equality in public employment encompasses several dimensions:

A. Equality of Access to Public Office

All citizens should enjoy equal opportunities to compete for public positions based on objective criteria such as qualifications, competence, and experience. This principle was originally developed to eliminate class-based monopolization of public offices.

Modern legal systems also recognize gender equality in access to public employment. French constitutional and administrative jurisprudence, as well as Syrian and Egyptian legal systems, have increasingly affirmed women's right to hold public office on equal terms with men, subject only to objective requirements inherent in specific positions.

B. Equality in Salaries, Allowances, and Promotion

Public salary systems should be based on principles of fairness, transparency, and equal treatment. Equal work should receive equal pay, regardless of gender.

Similarly, promotion and allowances must be governed by objective criteria applied uniformly to employees occupying comparable positions. Promotions based solely on seniority may fail to reflect merit, while promotions based solely on discretion may lead to favoritism. Consequently, many legal systems combine seniority and merit as criteria for advancement.

Fourth: Equality in the Use of Public Property

Public property includes all assets owned by the state or other public legal entities and dedicated to serving the public interest.

Since such property is intended for public benefit, all users must be treated equally. Nevertheless, public authorities may establish reasonable conditions regulating access and use, provided these conditions apply equally to all persons in comparable legal situations.

Fifth: Equality in Public Burdens and Public Charges

Public burdens include all expenses incurred for the benefit of society as a whole. Because these expenditures serve the public interest, their financing must be distributed equitably among citizens.

A. Equality in Taxation

Equality in taxation does not mean that everyone pays the same amount of tax. Rather, taxation should correspond to each person's economic capacity. Modern tax systems therefore distinguish between taxpayers according to income, wealth, or economic activity while maintaining equal treatment among individuals in similar situations.

The Syrian Constitution expressly recognizes this principle by providing that taxes shall be imposed on fair and progressive bases that realize equality and social justice.

B. Equality in Military Service

Military service is regarded as a national duty shared equally by all citizens. Exemptions from this obligation may only be granted in circumstances specifically prescribed by law and justified by legitimate public considerations.

Conclusions and Recommendations

Conclusions

The principal findings of this study may be summarized as follows:

1. The right to equality is one of the fundamental human rights and constitutes a legal institution of a mixed nature, encompassing both public and private law dimensions.
2. The right to equality is a cornerstone of human rights and serves as the legal foundation for a range of derivative rights, including civil and political rights, equality before the law, and equality before the judiciary.
3. The international community has devoted considerable attention to codifying the right to equality through international treaties and legal instruments. These instruments have particularly focused on eliminating discrimination based on sex (equality between men and women), race (racial equality), and social status (such as the rights of children and vulnerable groups).
4. Legal scholarship has extensively examined the right to equality, while judicial jurisprudence has addressed numerous practical cases concerning equality and developed a variety of legal solutions in this field.

Recommendations

1. Greater emphasis should be placed on recognizing equality as the legal foundation of other rights derived from it, given its significant implications not only within domestic legal systems but also in international law.
2. States should be encouraged to accede to and ratify international treaties relating to equality and non-discrimination.
3. Effective review mechanisms should be established to assess domestic legislation and recommend necessary amendments in order to ensure consistency between national laws and the principle of equality.
4. The role of international organizations and committees concerned with human rights protection—particularly the United Nations Human Rights Committee—should be strengthened, while ensuring that their work is conducted impartially and free from political influence.
5. Support should be given to the approach adopted by the Syrian Constitution in systematically defining the concept of equality and identifying its various forms and manifestations.

References

French References

• Chapus, René. Droit Administratif.
• Delvolvé, Pierre. Le Principe d’Égalité devant les Charges Publiques. Paris: LGDJ.
• Frier, Nicole Belloubet. “Le Principe d’Égalité.” Actualité Juridique – Droit Administratif (AJDA).
• Pellissier, Gilles. Le Principe d’Égalité en Droit Public. Paris: LGDJ.
• Robert, Jacques. “Liberté, Égalité, Fraternité.” In Mélanges Georges Burdeau. Paris: LGDJ, 1977.
• Vihiers, M. Dictionnaire de Droit Constitutionnel.

Arabic References

• Badawi, Tharwat. Public Freedoms.
• Bashour, Issam. Public Finance and Financial Legislation. Damascus University Publications, 1992.
• Bassiouni Abdallah, Abdel Ghani. The Principle of Equality Before the Judiciary and the Guarantee of the Right to Litigation. Alexandria: منشأة المعارف, 1983.
• Farouk Abdel Hamid, Mohamed. The Legal Status of Public Property. Doctoral Dissertation, Cairo University, 1983.
• Hafez, Mahmoud. Public Services. Cairo: Dar Al-Nahda Al-Arabiyya, 1982.
• Latif, Mohamed Abdel. Constitutional Guarantees in Tax Matters. Kuwait University Publications, 1999.
• Mahfouz, Talaat Harb. The Principle of Equality in Public Employment. Cairo: Egyptian General Book Organization, 1989.
• Raslan, Anwar Ahmed. Public Employment. Cairo: Dar Al-Nahda Al-Arabiyya, 2005.
• Sharqawi, Souad. Administrative Law and Economic Liberalization. Cairo: Dar Al-Nahda Al-Arabiyya, 1995.
• Talaba, Abdullah. Administrative Law, Vol. II, 2000.
• Tomawi, Suleiman. Al-Wajiz fi Al-Qanun Al-Idari (Concise Administrative Law). Cairo: Dar Al-Fikr Al-Arabi, 1991.

 

This study originally published on: Arab Center for Research and Studies