O'Brian, William E., Jr. (2010) Equality in law and philosophy. Inquiry, Vol.53 (No.3). pp. 257-287. doi:10.1080/00201741003784648

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Abstract

This article discusses various arguments for and against treating equality as a fundamental norm in law and political philosophy, combining prior arguments to the effect that equality is essentially an empty idea with arguments that treat it as a non-empty but mistaken value that should be rejected. After concluding that most of the arguments for treating equality as a fundamental value fall victim to one or both of these arguments, it considers more closely arguments made by philosophers such as Ronald Dworkin and Thomas Nagel that base a duty of promoting equality on the fact that governments impose a legal order on persons without their consent. It concludes that these arguments are mistaken: if the legal order imposed by government is justified then imposing it is not wrongful and generates no duty of equal treatment, while if that order is not justified no requirement of equality of treatment would cure the lack of justification. It concludes that equality should not be a value in law or political theory, but in some cases other considerations (such as alleviating poverty and distress, promoting accuracy and substantive justice, avoiding arbitrariness, and other values) may justify particular rules that are sometimes mistakenly thought to be based on equality.

Item Type:	Journal Article
Subjects:	J Political Science > JC Political theory K Law [Moys] > KA Jurisprudence
Divisions:	Faculty of Social Sciences > School of Law
Library of Congress Subject Headings (LCSH):	Dworkin, Ronald, Nagel, Thomas, 1937-, Equality, Equality before the law, Political science -- Philosophy
Journal or Publication Title:	Inquiry
Publisher:	Routledge
ISSN:	1958
Official Date:	June 2010
Dates:	Date Event June 2010 Published
Volume:	Vol.53
Number:	No.3
Page Range:	pp. 257-287
DOI:	10.1080/00201741003784648
Status:	Peer Reviewed
Publication Status:	Published
Access rights to Published version:	Restricted or Subscription Access

Data sourced from Thomson Reuters' Web of Knowledge

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