Paul A. Gowder Jr. (University of Iowa - College of Law) has posted Equal Law in an Unequal World on SSRN. Here is the abstract:
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The principle that the law must be general — that it must apply equally to all — is often said to be a fundamental demand of legal morality, associated with the ideal of the rule of law. But many worry that the formal equality of law creates substantive inequalities in a world in which people have different capacities, endowments, and fundamental interests.
This is a theoretical problem at the heart of liberal democracy. The rule of law is ordinarily understood to be a basic condition for the legitimacy of (small-l) liberal states. Its demands are expressed in provisions of the U.S. constitution like the due process and equal protection clauses. And its ideals are deeply embedded in the Anglo-American legal tradition, in Magna Carta as well as the principles of the common law. If, as some scholars have argued, there’s something hostile to genuine equality in the rule of law, then that hostility is at the heart of our constitutional order.
I hope, here, to relieve some worries about this putative hostility.
The paper carries out three tasks. 1) It clarifies what it takes for the state to satisfy the rule of law demand that the laws must be general. 2) It shows that the evaluation of whether a society comports with the rule of law does not depend solely on facts about the legal system, but also on a host of other non-legal social facts, particularly, the extent to which some members of society are the victims of (non-legal) injustice. And, 3) it shows that the rule of law generates a critique of economic injustice. It follows that the traditional association of the rule of law with the political right, and its critique from the left, are misguided.
Ultimately, the paper reinterprets the notion of general law as an expressive ideal, meant to protect the equal status of the members of a political community. It gives an account of the vexed question of how the expressive meaning of a law may be found. And it aims to show that rule of law, interpreted in this expressive fashion, genuinely protects "substantive" equality.
