Substantive Equality, a golf handicap in the law

What do you call the opposite of justice? Many people would say the answer is injustice. However, what if you subscribed to a particular ideal which had goals that when attained would advantage you but would be sharply destructive to just about everyone else – and to achieve these goals, you needed widespread public adoption of your goals as if they were something positive for everyone.

It wouldn’t be effective to speak about such destructive intentions in plain language. It would make more sense in such a case to use a different word than injustice to describe what was the opposite of justice. In fact, if the social standing of individuals, or their social demographic could be used to selectively suppress their basic freedoms, such as freedom to speak – and for individuals of another social demographic to have their demands elevated above anyone else – you’d need some pretty manipulative rhetoric to accomplish this.

How about altering the term justice, by placing a positive sounding adjective in front of it. Like social justice. It’s a pretty neat trick, and it convinces nearly everyone who hears it that selectively suppressing or elevating people’s fundamental human freedoms based on which demographic they belong to is a good, positive practice, and convincing them it’s not the practice of what not so long ago, we would have called apartheid.

But what about another positive sounding word? We’ll start this time with equality. We’re talking about the legal concept where any two people are equal before, and under the law. If an individual wants to exercise their right to free expression – or of association, or if they commit a violent act. It wont matter what demographic you’re from, whether you’re white, or black, or heterosexual or homosexual, or religious, or nonreligious, or male or female. In a society practicing legal equality – the skin colour or the sex or the sexual preference of an individual should not matter.

But what if you belonged to a particular demographic and you wanted to be given an unequal advantages based on membership in your personal social class?

You might start with a popular piece of modern mythology, like the phrase “rule of thumb.” That phrase originated in the middle ages when modern standardized tape measures and rulers did not exist. So, tailors, builders and other craftsmen would use a part of their own body as a measuring device. The first segment of most men’s thumbs are about one inch long, and this became a standard way of measuring materials such as cloth, wood, rope and so on.

However, the phrase rule of thumb, because it was so widely used was soon applied as a shorthand reference to general guidelines in all manner of human endeavour. As a rule of thumb, most personal digital devices are USB compatible, and as a rule of thumb, I water my houseplants about every week or so. The original literalist meaning of the phrase, in which an inch is measured using the the thumb as a ruler is mostly forgotten.

Writing from a particular ideology of gender attributes a different origin to the phrase rule of thumb.

It is claimed: “the phrase rule of thumb is inherited from the notion that men were entitled to beat their wives with sticks as long as they were no thicker than the man’s thumb”.

If this were true, it would reflect an accepted character of brutal malevolence towards women by men through much of human history. It would indicate a naturally existing sociopathy of an entire sexual class. A class of monsters.

It might even provide a modern justification to allow the killing of members of such a caste of brutal subhumans by members of the caste those thumb-thickness bludgeoning victims.

It could certainly set the tone of a historical narrative, used to justify the practice of gross inequality – in the present – at least for those who don’t think for themselves.

Even if history showed a mountain of female corpses balancing the millions of men killed in wars, and in industry through the ages – even if the phrase rule of thumb had a practice of brutality by one sex against the other as it’s origin, which it doesn’t, unless you count the brutality of that narrative against men, it would remain utterly immoral to transfer culpability for wrongdoing by an individual in the past long dead, onto an individual in the present who had no part in that claimed wrongdoing.

I phoned the west coast offices of LEAF, the women’s legal education and action fund, and referring to the phrase used on their website “substantive equality” I asked Cassie Arnold, their Education Manager of what the word “substantive” changed about the meaning of the word “equality”.

This was her reply:

“um well, it’s the basically it’s the kind of equality that Canada has signed on to. And what it means is, like, a formal definition of equality would mean that everybody gets the same thing. Substantive equality has to take into account um historic patterns of discrimination, and seek to allow the law to benefit everybody equally. So it doesn’t necessarily mean everybody is going to get the same thing”

So, to ensure that I had understood her correctly, I compared “substantive equality” to a legal golf handicap.

“so it’s sort of like applying quotas or a handicap to certain groups, sort of like, it’s a legal golf handicap is what it is”

She said:

“In a sense, yeah, you could call it that.”

Your grandfather, or maybe even your father committed a crime. He’s not around anymore – but we’re all outraged at that historical misdeed. You, who weren’t there at the time, and didn’t even exist when this misdeed was committed – you’re going to get in the barrel and take a beating for it. Your son, who hasn’t been born yet, we’re going to put him in the barrel and make him pay as well. Oh yeah, the crime? Rule of thumb, didn’t actually happen, but that’s okay, it makes for good outrage, so we’ll just keep repeating it until it’s simply accepted as common knowledge.

And we’re going to call this whole scheme “Substantive Equality”. It’s like a golf handicap, applied in law, based on the demographic from which you come.

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