Sovereign Virtue or False Foundation?
Many scholars and theories of justice see it as axiomatic that equality should somehow be at the core of any distributive system and should only be departed from with good reason. Variants of equality and egalitarianism can be found to varying degrees at the centres of Utilitarianism, 1 Law and Economics, Feminist Relationalist Theories, 2 Liberalism, Libertarianism, and numerous other theories. Some authors would suggest that this ubiquity of equality in theories of justice renders the idea unintelligible, unnecessary, and possibly even dangerous. This essay aims to consider a wealth of scholarly positions, concluding that the cause of this debate is a flawed understanding of the place equality has in a theory of justice. It will conclude that theories of justice are more than simply formulas through which justice is facilitated. Rather, they are ‘utopia-driven’ ideals where equality can be the description of the end that they work towards. Thus, equality does have a place in a theory of justice, not necessarily as a part of the process of the calculation (hereafter referred to as ‘procedural equality’), but rather as a characterisation of the objective it is working towards (hereafter referred to as ‘objective equality’).
Such an layered approach would constitute a paradigm shift from established schools of thought as it proposes a revolutionary, original, cross-sectional method of analysing theories of justice, and it is through this analysis that equality is vindicated as a valid foundation of a just legal system. This essay would not concern itself with the currency of equality or egalitarian justice 3 as such a debate would already presuppose that equality in some sense should be involved in a theory of justice.
Some scholars, most notably and vehemently Westen, argue that the term ‘equality’ does not mean anything in particular and is merely a political slogan used to attach legitimacy to certain claims, which “engenders profound conceptual confusion [and] therefore should be banished from moral and legal discourse”. 4 Westen proceeds through a tri-partite analysis of equality which: (I) suggests that formulating equality into any theory of justice is tautological and vacuous; (II) argues that formulating American constitutional law in terms of “equality” is superfluous and unnecessary; and (III) argues that the confusion caused by analysing problems in terms of equality outweighs the purely rhetorical benefits. This essay would follow the same structure, formulating a counterargument to each and every one of Westen’s claims, with reference to other egalitarian and anti-egalitarian jurists.
Westen begins his analysis with Plato and Aristotle, specifically Aristotle’s proclamations that (A) things that are alike should be treated alike; and (B) equality and justice are synonymous.He quickly disposes of (A) as tautological. He suggests that no categories of “like” people or “like” treatment exist in nature, but rather people categorise people as “like” based on normative rules they create. In other words, “to say that people who are morally alike in a certain respect should be treated alike means that they should be treated in accord with the moral rule by which they are determined to be alike”, and such a statement is tautological and therefore vacuous. 5
Admittedly, Westen’s analysis is infallible, but his conclusion is flawed as he equates tautology and hollowness. To illustrate, consider the following statement: “A bin is a place in which it has been deemed that things ought to be binned”. That statement is a tautology in the same way as the first proclamation is, but that does not mean that it is vacuous and valueless. It in fact implies that it is wrong to bin things in places that are not bins, and thus it does have moral substance. In the same way, the statement “people are equal and thus should be treated equally” implies that it is wrong to treat people unequally, and thus it has moral substance. By extension, if moral wrong is ‘injustice’, then equality and justice are therefore synonymous. Thus both proclamations are linked, tautological and circular, as Westen notes, but nonetheless, they are morally valid.
Westen moves on to argue “equality analysis logically collapses into rights analysis and that analysing legal problems in terms of equality is essentially redundant” 6. He proceeds to illustrate this through three American constitutional cases: Carey v Brown, 7); Sweatt v Painter, 8); and Morey v Doud 9), which all show that constitutional cases can be decided by direct reference to the underlying substantive right, without any reference to (or obfuscation from) equality at all.
Again, Westen’s logic is sound, but although one must agree that no reference to equality is required or necessary when deciding equal protection cases, these criticisms by Westen merely suggest that the term ‘equality’ is unnecessary, not unjust.
Furthermore, and it is here that our cross-sectional analysis would come to the fore, every theory of justice and just legal system is “utopia-driven”, consisting of two layers: its procedural formulae and its objective aims. To illustrate, Law and Economics’ objectives are to create a society of pareto efficiency, and its procedure of achieving that is a transactional system facilitating preference maximisation. Essentially, theories of justice are just as concerned with Kallipolis 10) as with how we get there. These are two distinct layers: the objective, and the procedure, and unfortunately when analysing theories of justice, most scholars tend to focus too much on the latter and not enough on the former.
Presuming we live in a legal system that aims to create a society characterised by equality, and as a result it has incorporated terms of equality into its constitutions and legal processes, all Westen’s arguments have suggested is that the incorporation of terms of equality into its constitutions and legal processes is unnecessary. He has not invalidated the aims of the legal system itself. He has only questioned ‘procedural equality’, not ‘objective equality’. Furthermore, if equality(in any respect) can be justified as a valid objective for a theory of justice or a just legal system, then surely its place in the procedural layer can be justified, even if merely as a reminder, or hopefully a harbinger, of the objective it is working towards.
Here it must be noted that the term of art ‘objective equality’ is distinct from the conventional understanding of equality of outcome. ‘Objective equality’ is an umbrella term that goes beyond just distributive equality in Rawlsian terms of substantive resources and primary goods 11). It encompasses and surpasses Frasian feminist relationalist ideas of equality in terms of the gender-biased power dynamics between people subject to a justice system 12). ‘Objective equality’ is an adjectival term, a characteristic indicating the acceptance by a system of justice that equality in some way or form, whether as equality of substantive resources or power dynamics, ought to be its moral centre.
It could be suggested that it in fact supersedes ‘procedural equality’ as the institution of equality in processes is done to institute some form of equality in its consequence. However, unlike ‘procedural equality’, the validity of ‘objective equality’ cannot be challenged in terms of its utility or the effectiveness of its implementation (as Westen does) because it does not include any determination of the terms or currency of equality. ‘Objective equality’ is the fundamental endorsement of “a truly egalitarian society as at least a utopian goal” 13. Accordingly, ‘objective equality’ is perhaps more in line with Dworkinian premises of equality – that “equal concern is the sovereign virtue of the political community” 14. As he notes, in most instances, “when equality [is rejected] as an ideal, only a particular conception of what equal concern requires [is rejected]” 15. This ‘particular conception’ and formulation of what equal concern requires is what is termed ‘procedural equality’.
The most common argument against having equality as an objective for a legal system is the ‘levelling down’ argument; the argument that it “seems implausible to claim that it is in any way better to secure equality, when doing do involves making some people (or even everyone) worse off and no-one better off” 16. Temkin rejects this criticism because it presupposes that ‘betterness-of-outcomes’ must relate to ‘betterness-for-people’ 17. This presupposition is called The Slogan. Temkin’s criticism is best illustrated by the Non-Identity Problem, which suggests that it seems intrinsically and instinctively right to make ourselves worse off if it would make those that we will cause to exist better than they otherwise would be, as a result of obligations we feel we have to them. This is well demonstrated by Parfit’s depletion case 18.
As a result of this conflict, Temkin suggests we give up The Slogan, whilst Parfit suggests we limit its scope. Resolving the tensions between The Slogan and The Non-Identity Problem is outside the remit of this essay, but it is easy to see how the ‘levelling down’ argument fails to argue that it is wrong to have equality as the objective of a legal system. The argument, and The Slogan by extension, is irreverent of the deontological principles that guide decision-making 19. These are principles that play a part in determining what the objectives of a theory of justice are and vindicates equality’s place there. It must be noted that the Non-Identity Problem does not completely invalidate the ‘levelling down’ argument. It solely notes a valid exception within which the object of this essay falls.
In his third part, Westen argues that there are certain fallacies at the heart of equality: The Fallacy of the Independent Norm (‘equality’ obfuscates the rights that give it substance); The Fallacy of Equivalences (‘equality’ presumes moral equivalency of people in all situations which further obfuscates its substantive rights); The Fallacy of Equal Scrutiny (‘equality’ obfuscates the hierarchy of its substantive rights); and The Fallacy of Fungible Remedies (‘equality’ obfuscates the remedies of substantive rights) 20. This part is largely tautology. These fallacies are problems he has already elucidated in the previous part, but here he gives them undue gravity, suggesting that as opposed to simply making equality unnecessary, these fallacies make it detrimental. Ultimately, ‘equality’ may be unnecessary in the procedure of ‘calculating’ justice, but it is not necessarily detrimental, and its place as the foundation of a theory of justice is vindicated as a valid object.
The practical ramifications of this rearticulation of the place of equality in a theory of justice are extensive, notably regarding ideas of legal validity. For instance, one could consider the legal effect of the Universal Declaration of Human Rights (UDHR), particularly Article 7. The UDHR functions as ‘customary international law’ despite not being attached to a legally binding covenant itself. This is best illustrated by the fact that it was one of the legal bases upon which apartheid was condemned by states in the 1970’s 21. Rather, it acquires its legal character as a result of its place as the moral backbone and ‘sovereign virtue’ of international law.
Image by Padraic.
- W. Kymlica, Contemporary Political Philosophy (Oxford Clarendon Press 1990) 31.
- N. Fraser, “Rethinking Recognition,” New Left Review (2000) 113.
- A. Sen, “Equality of What?”, in The Tanner Lecture on Human Values, Vol. 1 (Cambridge University Press 1980); G.A. Cohen, “On The Currency of Egalitarian Justice”, Ethics, Vol. 99, No. 4 (Jul. 1989) 906-944.
- P. Westen, “The Empty Idea of Equality”, Harvard Law Review, Vol. 95, No. 3 (Jan. 1982) 542.
- ibid. 547.
- ibid. 560
- 447 U.S. 455 (1980
- 339 U.S. 629 (1950
- 354 U.S. 457 (1957
- Plato, The Republic (Dover Publications 2000
- J. Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971) 60-65
- N. Fraser, Justice Interruptus: Critical Reflections on the ‘Post-Socialist’ Condition (Psychology Press, 1997
- R. Dworkin, Sovereign Virtue: The Theory and Practice of Equality (Harvard University Press, 2002) 1
- ibid. 2
- N. Holtug, “Egalitarianism and the Levelling Down Objection”, Analysis Vol. 58, No. 2 (Apr. 1998) 166
- L.S. Temkin, Inequality, (OUP 1993) 256
- D. Parfit, On What Matters: Volume 2, (OUP 2013) 218
- Holtug (n 16) 169
- Westen (n 4) 577-592
- P. Danchin, ‘Influence of the Universal Declaration on International Human Rights Law’ (Columbia 2001), accessed 19th September 2015