1. The Concept of Equality and Its Limitations
Equality is a multi-dimensional concept. In the context of law it is principally identified with formal - legal equality comprising both numerical and proportional equality. Numerical equality grants all individuals the possibility to uphold the same rights and obligations before the law. Contrary, proportional equality imposes the same treatment of the alike and different treatment of the non-alike. Aristotle's idea of justice constitutes the philosophical background of proportional equality, expressed outstandingly in his illustrious dictum “alike individuals and things should be treated alike, while unlike individuals and things should undergo unlike treatment, commensurate to their unlikeness” (Despotopoulos, 2001; Bey, 2005).
The above rule of proportional equality is both reasonable and coherent. In particular, it corresponds to the instinctive necessity of individuals to be treated in a fair and veracious way. However, the practical implementation of this rule raises challenging dilemmas. The rationale of them being challenging lies in the broad and abstract character of the rule in question allowing for its adaptation to various ideologies as well as its deployment for, from time to time, varying objectives (Fredman, 2011; Schiek et al.; Dagtoglou; Antoniou, 1998; Cliffors, 2008; Shelton, 2013). Consequently, the principle of treating like cases as like derived from this rule does not determine, for instance, on what occasion two individuals should be considered alike in order to be treated alike. Additionally, the particular rule does neither establish whether alike treatment of individuals in alike situations should always be equally good or bad, nor does it contemplate if the practical implementation of the principle leads to equal or unequal outcomes. The rule of alike being treated alike stems from the perception that a consistent treatment of individuals automatically becomes a fair one. However, albeit reasonable, this perception is based on an intangible perception of legitimacy that overlooks social reality.
Nevertheless, the second principle of proportional equality calling for unlike treatment of the unlike seems to be equally challenging. When implementing this principle, the emerging challenges stem from the widely accepted Western perception that identifies “diversity” with “inequality” and inferiority. Unquestionably, Aristotle did not discard the option of a political power distributing advantages and goods to dissimilar individuals. In other words, he acknowledged that distributing equivalent shares might result in injustice. In reality, he insisted on introducing a criterion justifying the diversification of shares. This criterion that he called “virtue” did not refer to the substantial value of the advantage or good to be distributed. It solely implied the subjective virtue of those the shares were to be distributed to. Hence, Aristotle identified the criterion of virtue with the rule requiring “to each what s/he deserves”. This is an ancient definition of justice imported to the Romans by the philosophers of Stoicism. Romans imputed it through the well-known theory of
“suum cuique tribuere” employed by Western legal tradition to justify the preservation of various inequalities and hierarchies. For this reason, contemporary legal systems tend to replace proportional equality with a more explicit approach of this principle that takes social reality into consideration.