Equality and the Dialectic Between Identity and Difference

MULTICULTURALISM AND LAW: A CRITICAL DEBATE, Omid A. Payrow Shabani, ed., University of Wales Press, 2006

Cardozo Legal Studies Research Paper No. 133

41 Pages Posted: 20 Sep 2005  

Michel Rosenfeld

Benjamin N. Cardozo School of Law

Abstract

Modern equality as derived from the Enlightenment has always had problems with difference. Whereas feudalism sets inequality as the baseline, modern equality sets equality as the baseline, but allows for unequal treatment based on differences. Thus, differences among the sexes have been invoked to treat women as inferiors and racial differences to deprive racial minorities of equal treatment. Liberalism has countered these moves by promoting a conception of equality as identity according to which race or gender-based differences are irrelevant for purposes of political participation or employment. More recent claims for equality based on identity politics that call for a type of equality that accounts for differences pose vexing problems for liberalism. How should liberalism handle this? By creating exceptions to generally applicable laws? By promoting group-based autonomy and self-government at the risk of balkanizing the polity? Or, on the contrary, by rejecting demands for recognition of differences and reinforcing equality as identity? After analyzing the dialectic of equality, this paper argues that, based on commitment to the premise that all human beings share an equal status as possessing the same capacity for moral choice, pluralism offers a better framework than liberalism for the best possible reconciliation of identity and difference. This implies a departure from the monolithic nation-state toward multi-layered interconnected centers of collective autonomy and self-government.

Keywords: equality, human rights

Suggested Citation

Rosenfeld, Michel, Equality and the Dialectic Between Identity and Difference. MULTICULTURALISM AND LAW: A CRITICAL DEBATE, Omid A. Payrow Shabani, ed., University of Wales Press, 2006; Cardozo Legal Studies Research Paper No. 133. Available at SSRN: https://ssrn.com/abstract=804488

Michel Rosenfeld (Contact Author)

Benjamin N. Cardozo School of Law ( email )

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New York, NY 10003
United States
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212-790-0205 (Fax)

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