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Providing Equality: Substantive Equality and the Positive Duty to Provide

Abstract One of the key insights of substantive equality is the recognition that it is not colour, gender or some other group characteristic per se which is at issue, but the attendant disadvantage. This focus on disadvantage means that, for substantive equality to be effective, it should include a positive duty to provide. This in turn moves the anti-discrimination agenda onto the uncertain frontier between policy and law. This poses a difficult set of challenges for judges. The political arena is frequently seen as the primary space for developing the positive duty to provide; a space which judges are reluctant to invade. In some jurisdictions the result has been a definition of substantive equality which defers to the state by protecting it from having to justify distributive decisions. On the other hand, the role of reasoned explanation is considerably enhanced when courts are dealing with socio-economic rights. It is argued that the way forward is not judicial deference but judicial intervention which supports rather than usurps the decision-making powers of elected representatives. This is achieved by insisting on reasoned justification for distributive decisions burdening or excluding disadvantaged groups. In this way courts contribute to the democratic process, both by strengthening accountability and by ensuring that political deliberation includes those who would otherwise be silenced in the political arena.