The nature of equality and the relationship between equality and justice have long been puzzling to social and legal philosophers. One manifestation of these problems of understanding is uncertainty among lawyers and judges about the significance of legal norms formulated in the language of equality, most notably the equal protection clause of the Constitution. In an elaborately reasoned, imaginative, and richly referenced recent article, Peter Westen has urged the arresting conclusion that the idea of equality is empty, empty in the sense that any normative conclusion derived from the idea could be reached more directly by reliance on normative judgments cast in other terms. Because use of this empty idea can create confusion and mistaken judgment, Professor Westen claims that it burdens discourse about social justice and moral and legal rights.
According to Professor Westen, the basic idea of equality is the notion that "'people who are alike should be treated alike'"; a correlative of that notion is that "'people who are unalike should be treated unalike.'" To decide who should be considered alike for any particular purpose, a person or an organization must make a moral judgment about which characteristics are relevant. "To say that people are morally alike is therefore to articulate a moral standard of treatment – a standard or rule specifying certain treatment for certain people – by reference to which they are, and thus are to be treated, alike." Given the presence of a standard indicating how various people are to be treated, the idea of equality adds nothing to the determination of proper treatment, and is therefore superfluous. What counts are the standards one uses to decide which people are alike and what treatment is appropriate; these standards are based on the rights that people have. Equality, therefore, is simply derivative from the rights that people have in a moral, or legal, order.
Use of the language of equality is not, however, simply unnecessary, according to Westen. People are led by that language into confusions, supposing, for example, that equality does imply certain substantive rights, or that the propriety of treating persons as equal for one purpose suggests the propriety of treating them as equal more generally. The idea of equality therefore deflects people from, and obscures, the truly crucial judgments about substantive rights, and "should be banished from moral and legal discourse as an explanatory norm."
This essay is a response to Professor Westen's analysis and program. With his definition and arguments in mind, I construct a framework for understanding the idea of equality. I indicate how the general modern conception of that idea is broader than the boundaries he sets, and show how claims of equality figure in moral and legal argument. More particularly, I suggest that the idea of equality embraces two rather distinct sorts of notions, the formal principle of equality, that equals should be treated equally (or that likes should be treated alike), and what I shall call substantive principles of equality, such standards as "siblings should be treated equally" and "racial differences should be considered irrelevant." The formal principle of equality is generally conceded to be self-evident (in some sense), but claims about substantive principles of equality are more controversial, calling forth competing views about relevant criteria. The focus of Professor Westen's article is on the formal principle of equality, and upon its corollary about unequal treatment for unequals. As to the formal principle, I show both that Westen conceives it too restrictively and that he fails to acknowledge the normative import that is to be found even in his own crabbed version. What I have labelled substantive principles of equality, Westen declines to consider principles of equality at all, mainly addressing how these differ from the formal principle. I challenge this definitional move, and also offer some suggestions about how substantive principles of equality set standards for behavior and relate to other norms.
Civil Rights and Discrimination | Law | Law and Philosophy
How Empty Is the Idea of Equality,
Colum. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/82