56 Pages Posted: 10 Oct 2009
Date Written: April 1, 1997
In legal, political, and philosophical discourse, and indeed in everyday life, equality often plays the role of a normatively significant prescriptive principle, a principle that provides reasons for action. Professor Peters, however, joins Peter Westen and others who argue that the traditional statement of prescriptive equality-equals are entitled to equal treatment--is normatively empty because it is a tautology. Like Professor Westen, Professor Peters notes that this traditional principle translates into a statement of simple redundancy: people entitled to equal treatment are entitled to equal treatment. Unlike Professor Westen, however, Professor Peters discerns a nontautological principle of equality, which claims that one person's treatment in a particular way is a reason in itself for treating another, identically situated person in that way. Nevertheless, Professor Peters argues that this principle, although nontautological, has no more normative content than the traditional expression; either it provides no independent reasons for action, or it is self-contradictory and incoherent. This Article examines the nontautological principle of equality, analyzes its supposed application in a variety of circumstances, and assesses some consequences of the conclusion that prescriptive equality has no normative content for Equal Protection Clause jurisprudence and John Rawls's “egalitarian” political philosophy.
Keywords: Peter Westen, prescriptive equality, equal treatment, tautology, normative content, nonegalitarian justice heuristic, competition, scarcity, infinite supply
JEL Classification: K00
Suggested Citation: Suggested Citation