Equality and Difference - The Restrained State

19 Pages Posted: 9 Apr 2015

Date Written: 2015


This article argues for the development of an approach to social justice issues that puts equality aside and brings differences into consideration. The emphasis here is placed not on an abstract and inevitably contested legal principle, such as liberty or dignity, or on an inherently comparative or relative measure, such as equality, but on the ways in which the universal subject who is to be governed by those principles has been constructed in both political and legal discourses. This approach begins with the recognition of universality or sameness among individuals (the fundamental equality position) but also considers the inevitable differences among them. The universality is found in the vulnerability that marks our existence as embodied and finite beings. The differences arise because there are different stages and manifestations of embodiment, as well as from the fact that we are differently embedded in social relationships and within societal institutions. This “vulnerability paradigm” makes forms of societally-produced differences a predominant focus because they provide the foundation for the assertion that we need a responsive state. Instead, what equality of treatment has provided is the passive toleration of inequality and complicity in the conferral of often unwarranted privilege on the few.

Suggested Citation

Fineman, Martha Albertson, Equality and Difference - The Restrained State (2015). Emory Legal Studies Research Paper No. 15-348. Available at SSRN: https://ssrn.com/abstract=2591689 or http://dx.doi.org/10.2139/ssrn.2591689

Martha Albertson Fineman (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States
404-712-2421 (Phone)

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