Two Conceptions of Equality before the (Criminal) Law

Abstract

In this chapter, I consider how the well-known idea of equality before the law plays out in the criminal context. I suggest that there are (at least) two rival conceptions at work in criminal law doctrine and theory. One conception, which I call Diceyan, emphasizes the equality of all - private citizen and public official alike. It emphasizes the accountability of public officials to the ordinary courts for ordinary offences. The second conception, which I call Kantian, emphasizes the equality of all private citizens before the law. But in order to maintain that equality, it stresses the important differences between state action and private action for the purposes of criminal responsibility. It is this second conception that fits best with a modern legal order in which state officials are subject both to special limits (constitutional and otherwise) but are also given special powers in virtue of their status as public officials.