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O'Brian, William E., Jr.. (2010) Equality in law and philosophy. Inquiry, Vol.53 (No.3). pp. 257-287. ISSN 1958
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Official URL: http://dx.doi.org/10.1080/00201741003784648
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 > K Law (General) |
| Divisions: | Faculty of Social Sciences > 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 |
| Date: | June 2010 |
| Volume: | Vol.53 |
| Number: | No.3 |
| Page Range: | pp. 257-287 |
| Identification Number: | 10.1080/00201741003784648 |
| Status: | Peer Reviewed |
| Publication Status: | Published |
| Access rights to Published version: | Restricted or Subscription Access |
| URI: | http://wrap.warwick.ac.uk/id/eprint/3349 |
Data sourced from Thomson Reuters' Web of Knowledge
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