The Substantive Principle of Equal Treatment

35 Pages Posted: 16 Jun 2009 Last revised: 5 Jul 2009

Date Written: June 2, 2009

Abstract

This paper attempts to identify a principle of equal treatment that gives specific structure to our widely shared judgments about the circumstances in which we have moral reason to object to the differential adverse treatment of others. I formulate what I call a “substantive” principle of equal treatment (to be distinguished from principles of formal equality) that describes a moral constraint on the reasons we can have for picking out individuals for differentially adverse action. I argue that this constraint is violated when an action, in view of its rationale, expresses lesser respect for the moral status of an individual under some differentiating description, compared to the respect reserved to another class of individuals who are not picked out by that description. I show that this substantive demand of equal treatment is not morally otiose and reveal the fallacy underlying accounts that have concluded otherwise.

Keywords: equality, equal treatment, discrimination

Suggested Citation

Shin, Patrick S., The Substantive Principle of Equal Treatment (June 2, 2009). Legal Theory, Vol. 15, 2009, Suffolk University Law School Research Paper No. 09-31, Available at SSRN: https://ssrn.com/abstract=1414402

Patrick S. Shin (Contact Author)

Suffolk University Law School ( email )

120 Tremont Street
Boston, MA 02108-4977
United States
617-573-8182 (Phone)
617-305-3090 (Fax)

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