Fifty years ago this year a legal practitioner turned military intelligencer turned philosopher, Herbert Hart, published The Concept of Law, still deservedly best-seller in thought about law. It presents law, especially common law and constitutionally ordered systems such as ours, as a social reality which results from the sharing of ideas and making of decisions that, for good or evil, establish rules of law which are what they are, whether just or unjust. But right at its centre is a chapter on justice, informed by Hart’s professional knowledge of Plato and Aristotle and the tradition of civilized thought about justice, thought which he sums up like this: “the general principle latent in [the] diverse applications of the idea of justice is that individuals are entitled in respect of each other to a certain relative position of equality or inequality.” “Hence”, he goes on, “[the] leading precept [of justice] is often formulated as ‘Treat like cases alike’; though we need to add … ‘and treat different cases differently’”. This article will say something about three aspects of this vast topic: (i) about the factual basis and normative grounds of equality; (ii) about the proposed principle of equal concern; and (iii) about laws and social policies that pursue equality by selective prohibition of direct and indirect discrimination, and of harassment or vilification, victimisation and offence.
About the Author
John Finnis earned his LL.B. from Adelaide University (Australia) in 1961 and his doctorate from Oxford University as a Rhodes Scholar in 1965. Currently, Professor Finnis is Biolchini Family Professor of Law at the University of Notre Dame, Indiana, and Professor of Law and Legal Philosophy with Oxford University, where he has held the positions of lecturer, reader and a chaired professor in law for almost four decades. In addition, he has served as associate in law at the University of California at Berkeley (1965-66), as professor of law at the University of Malawi (Africa) (1976-78), and as the Huber Distinguished Visiting Professor of Law at the Boston College Law School (1993-94). He is admitted to the English Bar (Gray’s Inn). Professor Finnis teaches courses in Jurisprudence, in the Social, Political and Legal Theory of Thomas Aquinas and in the Social, Political and Legal Theory of Shakespeare. His service has included the Linacre Centre for Health Care Ethics (governor since 1981), the Catholic Bishops’ Joint Committee on Bioethical Issues (1981-88), the International Theological Commission (1986-92), the Pontifical Council for Justice and Peace (1990-95), and the Pontifical Academy Pro Vita (2001-present). He has published widely in law, legal theory, moral and political philosophy, moral theology, and the history of the late Elizabethan era. He is an adjunct Professor in the Department of Philosophy at Notre Dame.
"Equality and Differences,"
Solidarity: The Journal of Catholic Social Thought and Secular Ethics:
1, Article 1.
Available at: http://researchonline.nd.edu.au/solidarity/vol2/iss1/1