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I've always found the concept of 'equality under the law' to be self-contradictory in any society when there are very clear hierarchies in the same society, with explicit privileges granted as one ascends the hierarchy.

This seems to also be the default state of any complex society. Conversely, it seems logistically and practically impossible for any sizeable government or military force to function if everyone were literally treated equality.

The higher the rank the greater the authority must be attached to it in order for them to handle the commensurate increase in responsibility. Which translates to greater benefit of the doubt, credibility, trust, privileges, etc...

It seems intuitively obvious that this must translate, to some extent, over to the legal system. So why is equality under the law, the ideal?

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    This is a question about why the law is as it is. I believe it is off-topic here, amd might be on-topic at politics.SE Aug 9, 2022 at 22:42
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    @DavidSiegel I believe it's only superficially about "why". The depth of it lies in the OP's misunderstanding how the rule of law and separation of power [are supposed to] work.
    – Greendrake
    Aug 9, 2022 at 22:53
  • Speaking philosophically - The counter argument is that powerful people do have responsibility and therefore need to be held to a higher standard. An official who uses their position for evil might logically be treated more harshly than an ordinary person who might be ignorant of the law. Remember the saying "power corrupts". Aug 9, 2022 at 23:50
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    Since you are taking the opposite position to the one you started with, I’m done. Aug 10, 2022 at 1:27
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    @Greendrake If that's the case then shouldn't the headline be edited to reflect the actual question being asked? As it stands, "why is x the ideal way to govern a country" seems unambiguously off-topic and opinion-based.
    – Michael
    Aug 10, 2022 at 6:05

4 Answers 4

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Why should they?

If a person is accused of a crime, say murder, why should more evidence be needed to convict them if they are a high ranking government official than if they are just an ordinary person? Why should their trial be conducted differently? If convicted, why should their punishment be different?

Yes, you can run societies that way and people have and do but it isn’t very fair is it?

Equality before the law does not imply any other sort of equality

People high up in the government have more power and authority than others but if they are alleged to have broken the law they are treated the same as anybody else.

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  • One reason I can think of for a higher bar in relation to high ranking officials, is to prevent corrupt politicians, special interest groups, other officials, etc., from getting any ideas of trying to sabotage an obstinate, but uncorrupt official. Or at least make it difficult enough to be not worth doing. This would increase in importance if society became more tolerant of corruption.
    – M. Y. Zuo
    Aug 10, 2022 at 1:10
  • @M.Y.Zuo You make the qualification "high ranking officials" but again that is not a legal distinction that really exists in Western legal systems.
    – ohwilleke
    Aug 10, 2022 at 2:17
  • @ohwilleke Please review: ArtII.S2.C2.11.6 Appointing Inferior Officers, constitution.congress.gov/browse/essay/artII-S2-C2-11-6/… The constitution of the U.S. itself clearly recognizes a class of 'Inferior Officers', and a separate class of 'Principle Officers', clearly drawing a distinction between higher and lower officials. And it goes on to enumerate some differences. (Comment edited)
    – M. Y. Zuo
    Aug 10, 2022 at 3:35
  • In the UK, the “high ranking official” would find himself or herself in court for “perverting the course of justice”. And without any special benefit of the doubt.
    – gnasher729
    Aug 10, 2022 at 6:05
  • @gnasher729 Can you point to some examples?
    – M. Y. Zuo
    Aug 10, 2022 at 14:17
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"Equality under the law" refers to the idea that all people are to be equally protected by the law, and does not mean that all people are to be treated the same. It is obvious that no jurisdiction legally treats all people identically, and no jurisdiction purports to treat all people the same. The ideal that legal systems aspire to is that whatever the laws of the system are, they apply to everyone. A crucial concept that explains unequal treatment is the notion of "rights", which in legal systems are taken to be whatever declarations of rights are made in that jurisdiction – we basically cannot inquire into what justifies a claim that such-and-such is a "right".

Historically speaking, it was believed in many parts of the world that the king is granted special rights by God, so this is a major source of treatment-inequality. The king is still subject to laws, it's just that many laws that apply to people other than the king do not apply to the king. Even now, by law, foreigners and children do not have the right to vote, and convicted felons often do not have the right to bear arms or sell marijuana. The treatment-inequality is baked into the laws themselves – the law allowing some people to sell marijuana excludes convicted felons from the set of possible marijuana-sellers. Inequality of protection under the law would be the situation where the police decide, without lawful authority, that a certain individual cannot sell marijuana.

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  • How can two groups of people be protected equally if they are not treated equally? Clearly a high official has better opportunities, by virtue of their position, to fight a legal battle than the average citizen. Even for the ideal case since by definition only a small minority of the population can be high officials at any given time.
    – M. Y. Zuo
    Aug 10, 2022 at 1:15
  • @M.Y.Zuo "How can two groups of people be protected equally if they are not treated equally?" Most obviously, law breakers are not treated the same as law followers. Western legal systems have institutions to help citizens protect their rights like fee awards to independent attorneys, contingent fee cases, public defenders, groups, e.g., the ACLU, and in France, e.g. the Council of State which provides elite public law counsel to everyone making legal complaints about the government. High officials with more decision making power in government are not for that reason unequal under the law.
    – ohwilleke
    Aug 10, 2022 at 2:23
  • There was a film about the very famous Taj Mahal hotel. And they split the world population in two groups: Those who paid their room rate, and those who didn’t. And treated everyone according to which group they belong (and nothing else).
    – gnasher729
    Aug 10, 2022 at 6:09
  • @ohwilleke I only just noticed your comment while going through my posting history. Sorry for not replying sooner. I don't understand your comment on "law breakers are not treated the same as law followers". There is no distinction beforehand, ideally, which is the period that is in concern. Obviously people can be treated in many different ways afterwards.
    – M. Y. Zuo
    Mar 1, 2023 at 1:52
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I agree with the answer from @user6726 but would like to expand on a couple of points pertinent to the title question:

Why is equality under the law, the ideal? Shouldn't high ranking government and military officials be given greater benefit of the doubt, trust, etc.?

Governmental Immunity

The law in the U.S., in reality, does just what you think it should in terms of giving government and military officials greater benefit of the doubt and trust although not at a top constitutional level, and instead, less visibly in the deep inner workings of the system.

Civil Liability For Government Officials

Most government officials enforcing the law have governmental immunity a.k.a. sovereign immunity from most kinds of liability except where there is an express exception to that which the government has authorized. Governmental immunity usually provides complete immunity for most intentional acts that are not violations of constitutional rights. Even when there are express exceptions to governmental immunity, there are usually additional procedural hurdles or pro-government procedural rules that people suing the government must overcome that do not apply to private individuals or companies, and there are often limitations on the dollar amount of liability that can be imposed and how a person who successfully wins a lawsuit against the government can collect their judgment.

Actions for violations of constitutional rights are generally available only for intentional violations and not merely negligent ones (the 5th Amendment takings clause is a rare exception).

Some public officials (not necessarily high ranking) such as prosecutors exercising their discretionary prosecutorial functions, judges carrying out their judicial duties, and legislators enacting laws have absolute immunity from criminal and civil liability for violations of civil rights and almost all kinds of state law civil liability, although not from certain criminal offenses related to corruption and abuse of their government positions.

Other government officials enforcing the law have qualified immunity from civil rights liability in cases where the constitutional right allegedly intentionally violated by the government official was not "well-established" at the time that the act was taken in directly controlling case law. The court created doctrine of qualified immunity was expressly justified as a way of giving law enforcement officers the "benefit of the doubt."

Also, while the employer of someone who violates the law and harms someone is usually "vicariously liable" under a doctrine called respondeat superior for their wrongdoing, that principle was not apply to governmental employers whose employees commit civil rights violations. In the case of a governmental employer of someone who violates someone's civil rights, the governmental employer has liability only if it has a written or unwritten policy that authorized the particular violation of civil rights that is the basis of the lawsuit, and in general, while local governments can be sued for civil rights violations, state governments cannot, only state government employees can be sued for money damages for civil rights violations.

Federal government employees can be sued for only some violations of constitutional rights that state and local government employees can be sued for, pursuant to a case called Bivens. But the U.S. Supreme Court case decided late in the term in 2022 further narrowed the scope of that remedy for violations of the constitution by federal government employees.

Criminal Liability For Government Officials

These immunities usually don't exempt government officials from criminal liability, but these kinds of criminal cases can only be brought by the the federal government or the appropriate state or local governments, and in the case of federal employees, only by the federal government in most cases.

The burden of proof in criminal case (beyond a reasonable doubt) and other procedural protections not present in civil cases also apply in criminal prosecutions. And, historically, government prosecutors have been very deferential to government employees in bringing criminal prosecutions.

There is also complete immunity from criminal liability for some kinds of discretionary policy decisions of government officials, such as the President or military generals deciding who to authorize killing in a war or other military actions authorized by law, or legislators deciding to declare war.

Military Personnel

Military personnel are generally immune from both civil and criminal liability for actions taken pursuant to orders from superiors that were lawful or that the personnel reasonably believed to be lawful at that time that they acted pursuant to those orders. They also face quasi-criminal court martial liability for disobeying a lawful order of a military superior.

The Abolition of Aristocratic Privileges

Unlike the ancient feudal system, however, in which high ranking individuals had protections from liability for all acts public and private which were clearly distinguished from each other, in U.S. law, these immunities apply only for the official actions of the government official in question.

A related element of equality under the law concerns a feature of the legal system that was historically present in English common law, but is not present in U.S. civilian law (outside of courts-martial) which is more equality preserving.

In historic English common law nobles had the right to be tried by a jury of their peers in cases where there were jury trials (i.e. by other nobles of comparable rank) rather than a jury drawn from the general public as in the U.S. which does not allow people to have titles of nobility. The U.S. has greater equality under the law in that respect.

Vestiges of the historic English jury of one's peers system, however, remain in the U.S. court-martial system, in which officers can be tried in a court martial proceeding only by officers of comparable rank or higher.

Not all countries follow the common law tradition of providing strong protections as a default for government officials, although the end result is often less different than the starting point.

France, in particular (for reasons rooted in the initial French Revolution and disseminated across the world to countries it conquered and to its colonies) is known for a strong commitment to the "rule of law" that subjects everyone including government officials and the government itself to full legal liability except where a specific law provides otherwise, instead of imposing liability only when a specific exception to the general rule of governmental liability applies.

This is because the French Revolution arose from general disgust with the aristocracy and upper classes, and was not merely a revolution of local elites against a particular foreign monarchy (the English King) which was seen as abusing his legitimate power in the American Revolution.

The structure of "public law" dealing with the operations of government and its interactions with members of the public, is very different in civil law countries like France and Germany, than in common law countries, like the U.K. and U.S.

Public law is conceptualized and institutionalized as a very distinct part of the legal system in civil law countries such as France, rather than merely as a special subject matter area of law within the single unified legal system for public law and private law of common law countries.

In the U.S., in particular, the involvement of ordinary judges in public law decision making has the practical effect of making the judiciary much more political and much more politically relevant.

France, and other civil law countries, more generally, also give prosecutors far less discretion to decline to enforce criminal laws than common law countries do.

The ideals of 'equality under the law" and "rule of law" are not universal ones although both are widely held in countries with "Western" political and legal systems models on historic European systems.

On the other hand, Western legal systems generally have long adhered to the ideal of "rule of law", that historic far eastern legal systems, like that of China, largely rejected in deep history (around the time of the Roman Empire) in favor of a Confucian normative approach.

The prevailing view in China was that statutes were prone to manipulation by lawyers without the public good at heart, and that it was more important to train moral leaders than to have strict compliance with slippery legal rules. In the Confucian value system, inequality is normative and developed elaborate principles that clarify who is superior to whom and reiterate the theme that inferiors to obey their superiors and that superiors should reciprocate by treating their subordinates well. This legal tradition rejected the notion of equality under the law in favor of a system of reciprocal obligation between superiors and subordinates.

They had rules, of course, imposed by superiors, but the focus was on the morality of the people enforcing the social order, rather than on the justness and perfection of particular ephemeral laws and rules themselves.

The modern application and enforcement of Western laws across East Asia and Southeast Asia, and popular conceptions of what is just and right in legal matters, in both nominally communist one party regimes, and in more Western style political systems like those of Japan and South Korea, are all all heavily influenced by a Confucian philosophical tradition even when this gets no formal acknowledgment in statutory legal authorities.

But, people in Western legal systems are deeply skeptical of the capacity of the system to put moral high officials in place, and are more prone to see the aphorism that "Power corrupts and absolute power corrupts absolutely" than to trust people in positions of power. Even when people in power have substantial protections from legal liability, there is a strong emphasis in Western political theory on ways to check or limit the power of the government and its officials. The modern trend in Western political and legal systems is to weaken protections for high officials and to further limit their decision making authority, rather than to grant them more discretion.

In the Western political and legal tradition, the phrase "rule of man" in contrast to "rule of law" is synonymous with abuses of power and corruption.

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  • Thanks for the detailed answer. However, no political party I know of in any western country, or any country for that matter, proposes to 'weaken protections for high officials' in their country to zero. Which suggest the vast majority of the adult population implicitly desire some separation, and therefore some limited amount of unequally under the law.
    – M. Y. Zuo
    Aug 10, 2022 at 1:56
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    @M.Y.Zuo There has been a major political effort in the U.S. to reduce protections for law enforcement. Colorado, where I live and practice law, has been at the forefront, abolishing "qualified immunity" for government officials enforcing the law and imposing specific liability in more cases. Also, contrary to the assumption in your question, very few Western governments distinguish between accountability for "high officials" and "low officials" to any significant degree. Some liability limitations exist, but this is partially what government should be responsible for must be defined somehow.
    – ohwilleke
    Aug 10, 2022 at 2:10
  • In regards to your claim that ‘very few Western governments distinguish between accountability for "high officials" and "low officials" to any significant degree‘, see my response to your other comment. There is a section of the U.S. Constitution with that exact purpose. Since you claim to understand the legal system of the U.S., and as the Constitution is the most well aspect, I don’t understand why you’ve never heard of this before. And I know for a fact that such a difference also exists in Canada, and other commonwealth countries. It frankly makes your other claims doubtful.
    – M. Y. Zuo
    Aug 11, 2022 at 12:29
  • @M.Y.Zuo Are you being deliberately obtuse? Method of appointment and "accountability" are two completely different things. You impeach judges and desk clerks in the same way, for example. Immunities for high officials and low officials from liability are the same. High officials aren't a distinct category in terms of accountability.
    – ohwilleke
    Aug 11, 2022 at 19:04
  • You clearly still haven’t actually read the section I linked. Once you do you will find that the Constitution itself directly addresses both points, in addition to several other aspects not discussed so far. There is in fact a difference in both aspects. Either you’ve never read this section of the Constitution at all or only skimmed it briefly. In either case this makes me even more doubtful of your other claims.
    – M. Y. Zuo
    Aug 13, 2022 at 2:09
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In modern democratic societies the authorities (be it legislative, executive or judiciary) are purported to be hired servants for the ordinary people — as opposed to being their lords.

That said, whilst entrusting high-ranking officials with great powers, the public is deemed to retain the ability to question what they do, fire them if they don't perform well and punish them if they abuse their power and go nefarious.

Which translates to greater benefit of the doubt, credibility, trust, privileges, etc... It seems intuitively obvious that this must translate

So, where the rule of law truly works, the said translation is only supposed to work until the public starts questioning the credibility and trust of those empowered and entrusted. And then they must answer enjoying only exactly the same level of "benefit of the doubt" as anybody else.

Not having it that way allows for them to abuse/usurp power and suck the society into authoritarianism, totalitarianism, dictatorship, fascism and so on.

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  • It's a nice idea in theory but it doesn't seem possible for the senior leadership of a nuclear armed country to be 'hired servants'. The specific details of the greatest power entrusted to them can never be shared with the general public, for obvious reasons. And if they ever needed to use it, they very likely will be unable to consult with even junior officials beforehand, let alone the average citizen, due to the immense speed of these devices. So the general public cannot credibly assess the performance of their 'servants'. Nor affect the actual usage.
    – M. Y. Zuo
    Aug 10, 2022 at 1:40
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    @M.Y.Zuo Government officials in the West are absolutely "hired servants". This doesn't mean that every decision needs to be voted on by the general public any more than a butler needs to consult his boss about which home repairs to authorize day to day or how to respond to a fire when his boss is away. Rule of law and equality under the law is not inconsistent with granting a government official who is a hired servant authority to make decisions in a crisis or day to day. No one argues that we need "direct democracy" for all decisions but that isn't contrary to equality under the law.
    – ohwilleke
    Aug 10, 2022 at 2:16
  • @ohwilleke It's not even possible for the general public to delegate decision making in this case. As I mentioned, the specific details affecting who may be the best to delegate to, have never been revealed, and likely will never be revealed to the general public. In the U.S. this is because the Nuclear Command Authority could potentially include someone never elected by anyone, the Secretary of Defense.
    – M. Y. Zuo
    Aug 10, 2022 at 3:19
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    @M.Y.Zuo That is true, but that individual is appointed by someone who is (e.g. nominated by the President, approved by Congress collectively). Note that the later can also remove said secretary at any time, for any reason, via impeachment, (Alexander Hamilton, a Founding Father, noted in the Federalist Papers that impeachment was a solution to "political crimes"), while the President has a defacto ability in the modern political environment.
    – sharur
    Aug 10, 2022 at 4:16
  • @sharur The vast majority of those in congress are likewise uninformed of the specific details. Those who are truly entrusted with this kind of information might even number as low as in the single digits. Also there's no way they could control or even moderately affect the actual usage because of the lack of time. The president cannot have this ability in regards to the Secretary of Defenese, or their delegate, in this case because the Command Authority presumes co-equal status. i.e. one cannot override the other.
    – M. Y. Zuo
    Aug 10, 2022 at 14:05

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