Constitutional Law and Equality

A Companion to Philosophy of Law and Legal Theory, 2nd ed, edited by Dennis Patterson, 2010. pp 160-176.

18 Pages Posted: 8 Jul 2020

Date Written: 2010

Abstract

No two people (or things) are exactly alike. In that sense, none is equal to another. Yet all share points in common. At a minimum, all people are people (as, for that matter, all things are things). To that extent, at least, they are equal. Whatever the ways people might be equal or unequal, they can be treated equally or unequally in a wide variety of different ways. They might receive equal respect, or equal rights at law, or equal opportunities to distinguish themselves, or equal property and other resources, or equal welfare and happiness. Equality might be reckoned by individuals, or it might be by groups. There might be absolute equality: the same for everyone, regardless of what is thought deserved. Or equality might be proportional: the same for everyone according to what is deserved or otherwise proper.

These different kinds of equality, it is fairly obvious, can often be mutually exclusive. Equality, in truth, might mean almost anything. The crucial questions are “Who is to be equal to whom? With respect to what?” Yet as an ideal, equality exerts great moral force, especially in modern places and times.

What are the sources of equality’s power as an ideal? And toward what sorts of equality ought people and their laws to strive?

This chapter – in the Wiley-Blackwell Companion to Philosophy of Law and Legal Theory – looks at Enlightenment and American constitutional ideas about equality, and considers current, more or less radical, alternatives: John Rawls, Ronald Dworkin, Martha Nussbaum, and various “critical theories”. The chapter describes and assesses the strengths and weaknesses of each, and raises the question, among others, whether the degree of state power that would be required to advance any of these alternatives to Enlightenment and American constitutionalism would in practice be either benevolent, disinterested, or efficient.

Keywords: Equality, Constitutional Law, Enlightenment, Critical Theory, John Rawls, Ronald Dworkin, Martha Nussbaum, Capabilities

Suggested Citation

Schwarzschild, Maimon, Constitutional Law and Equality (2010). A Companion to Philosophy of Law and Legal Theory, 2nd ed, edited by Dennis Patterson, 2010. pp 160-176., Available at SSRN: https://ssrn.com/abstract=3644595

Maimon Schwarzschild (Contact Author)

University of San Diego School of Law ( email )

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San Diego, CA 92110-2492
United States
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