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Equality and the Dialectic Between Identity and Difference

Published online by Cambridge University Press:  04 July 2014

Michel Rosenfeld
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Abstract

Modern equality as derived from the Enlightenment has always had problems with difference. Whereas feudalism set inequality as the baseline, modern society 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 which 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 ofbalkanizing 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 Article argues that, based on commitment to the premise that all human beings share an equal status for 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.

Type
Research Article
Information
Israel Law Review , Volume 39 , Issue 2 , Summer 2006 , pp. 51 - 80
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2006

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Footnotes

*

Justice Sydney L. Robins Professor of Human Rights, Benjamin N. Cardozo School of Law, Yeshiva University, New York City.

References

1 There are many different formulations of this essential liberal insight. Rawls, for example, put it in terms of each individual having the capacity to devise and pursue his or her own “plan of life.” See Rawls, John, A Theory of Justice 92–94 (1971)Google Scholar. The capacity in question, which is inherently tied to individual autonomy and dignity, is to be taken counterfactually. In other words, because individual moral choice derives from human autonomy and dignity, the fact that the very young, very old, or severely disabled may not actually be able to exercise moral choice should not be regarded as detracting from their status as equals. Accordingly, the latter should be treated counterfactually, i.e., as if they could chose for themselves and in terms of, as much as possible, what they would have chosen had they been able to.

2 See, e.g., Bradwell v. Illinois, 83 U.S. 130 (1873) (barring women from admission to the bar and from practicing law upheld based, in part, on belief of women's greater suitability for raising children in the family home).

3 See, e.g., the infamous decision in Dred Scott v. Sanford, 60 U.S.393 (1857) (slavery argued to be justified based on purported differences between the white and black races). See also Plessy v. Ferguson, 163 U.S. 537 (1896) (racial segregation in public accommodations held not to violate constitutional equality rights because of supposed differences among the races).

4 In a small number of cases, differences in sex may still be relevant in the realm of employment. For instance, it does not seem inconsistent with legal equality that only women be eligible to play the leading female role in a movie.

5 See Waldron, Jeremy, Status versus Equality: The Accommodation of Differences, in Multiculturalism and Law: A Critical Debate (Shabani, Omid A. Payrow ed., forthcoming)Google Scholar.

6 See id. for Professor Waldron's elaboration of this view.

7 See Aristotle, Nichomachean Ethics, Bk. v.

8 In fact, women were not accorded the right to vote in France until 1944. See http://www.justice.gouv.fr/actualites/60ansvotefemmes.htm (last visited May 24, 2006). Similarly, in the United States, notwithstanding the 1776 Declaration of Independence's famous dictum that “All men are created equal” (meaning “all humans”) women did not obtain the right to vote till 1920. See U.S. Const. Amend. XIX.

9 I use “men” and “women” here as shorthand for “advocates to restrict political rights to men” and “advocates to extend such rights to women” respectively. It is of course obvious that some men fall in the latter category, and some women in the former.

10 See, e.g., Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) (Pueblo Tribe patriarchal institutional order privileges inheritance rules that clash with woman member's fundamental equality rights under U.S. law). For the view that cultural group rights almost inevitably result in greater inequality for women, see Okin, Susan Moller, Is Multiculturalism Bad for Women?, in Is Multiculturalism Bad For Women? 7 (1999)CrossRefGoogle Scholar.

11 See Bradwell v. Illinois, supra note 2 which draws on some of these beliefs to justify banning women from practicing law.

12 This struggle is reflected in the evolving constitutional jurisprudence on gender-based discrimination in the United States. Prior to the 1970's discrimination against women was subjected to “minimum scrutiny” and virtually always upheld. See, e.g., Goesaert v. deary, 335 U.S. 464 (1948) (A Michigan court upheld a law forbidding women from attending bars). In the 1970's “intermediate scrutiny” (which stood halfway between “minimum” and “strict scrutiny” which is used in race discrimination cases) was adopted and led to invalidation of some but not all forms of sex discrimination. See Craig v. Boren, 429 U.S. 190 (1976) (Oklahoma passed a statute prohibiting the sale of “nonintoxicating” beer to males under the age of 21, but allowed females over the age of 18 to purchase it). Whereas minimum scrutiny is compatible with stage one equality, and intermediate scrutiny more compatible with stage two equality, there is no strict correspondence between these levels of scrutiny and the three stages of equality.

13 See Minow, Martha, Justice Engendered, 101 Harvd L. Rev. 10 (1987)Google Scholar (arguing that U.S. Supreme Court sex discrimination jurisprudence posits men's experience as the “norm” against which women are measured).

14 See, e.g., Michael M. v. Sonoma County Superior Court, 450 U.S. 464 (1981) (punishing underage male but not underage female for consensual sex held constitutional on account of fact that only females risk pregnancy. Dissenting opinion argued that invocation of the physical difference in question masked the real reason for differential treatment, which was the biased belief that sixteen years old females were incapable of consenting to sexual relations).

15 A good example is provided in the now invalidated decision in Bowers v. Hardwick, 478 U.S. 186 (1986) overruled in Lawrence v. Texas, 539 U.S. 558 (2003). The majority in Bowers held that it was constitutional to criminalize consensual sodomy among same-sex adult partners even if opposite sex sodomy was legal. The Court's majority in this 5-4 decision focused on differences between homosexuals and heterosexuals and invoked a history of moral and legal condemnation of homosexuality going back to Judeo-Christian scriptures and extending throughout the history of the common law. The dissenters, in contrast, emphasized that all adults should be left alone to choose adult partners for consensual intimate sexual relations regardless of whether the couplings involved are homosexuals or heterosexual. For the dissenters, therefore, because homosexual sex satisfies the same needs for those who engage in it as does heterosexual sex for those whose choice it is, it ought to be a constitutionally protected privacy right, not a criminal act.

16 See Ginsburg, Ruth Bader, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N. C. L. Rev. 375 (1985)Google ScholarPubMed.

17 This possibility looms large in feminist critiques of multiculturalism, see Moller Okin, supra note 10 and of the promotion of religious diversity through group rights, see, e.g., Raday, Frances, Culture, Religion and Gender, 1 Int'l J. Con. L. 663 (2003)Google Scholar.

18 See Rawls, A Theory of Justice, supra note 1, at 11-12.

19 There is a wide range of liberal views as thinkers as diverse as John Stuart Mill, John Rawls, Robert Nozick, Joseph Raz, Ronald Dworkin, Richard Posner, and Jeremy Waldron are all proponents of liberalism. Nevertheless, in relation to the divide between liberalism and pluralism all these thinkers remain firmly within the liberal camp.

20 See Rosenfeld, Michel, Just Interpretations: Law Between Ethics and Politics, esp. chapts. 7 & 8 (1998)Google Scholar.

21 Comprehensive pluralism draws a distinction between the fact that a polity is pluralistic or “pluralism-in-fact” —i.e., different individuals or groups within the polity actually embrace a multiplicity of conceptions of the good that compete, or may be in conflict with one another—and that the polity ought to have an affirmative obligation to accommodate as many conceptions of the good found within it consistent with the principle of equal accommodation, which position can be referred to as “pluralism-as-norm.” See Rosenfeld, id., at 200-201.

22 It is noteworthy in this respect that a nineteenth century liberal like John Stuart Mill was a champion for stage two equality for women. See his The Subjection of Women (1869).

23 While agreeing on these general propositions, liberals disagree on what is needed to secure such equal opportunity. For some, it is purely formal equal rights, see, e.g., Nozick, Robert, Anarchy, State and Utopia (1974)Google Scholar; for others, it also includes material rights that call for some measure of wealth redistribution, see, e.g., Rawls, supra note 1. These differences, however, have no impact on the contrast between liberalism and pluralism.

24 Whereas some collective rights can be recast as individual rights—e.g., the practice of some religions can be safeguarded either through collective rights belonging to the religion as an organized self-governing entity or through individual rights to freedom of expression, freedom of religion and freedom of assembly —others cannot—e.g., language rights can only be meaningful as groups rights, and the same is true for indigenous tribes functioning as self-contained religious and cultural units under sacred ancestral rules of kinship.

25 For a critique of liberalism's claims to neutrality, see Rosenfeld, Michel, A Pluralist Critique of Contractarian Proceduralism, 11 Ratio Juris 291 (1998)CrossRefGoogle Scholar.

26 The need to reinforce liberal unity and identity does not necessitate foregoing all difference or all stage three equality. For example, abortion rights based on equality as difference considerations seem entirely compatible with liberal individualism. Moreover, even a fair amount of cultural difference may be tolerated, although there may be disagreements concerning specific differences from one setting to another. Thus, two liberal polities, France and the United States treat girls seeking to wear the Muslin veil to public school very differently. The French prohibit it, See French Law 2004-228 of March 15, 2004, while the Americans permit it, See, e.g., Muslim Girl in Oklahoma Public School OK'd to Wear Headscarff, Dallas Morning News, Nov. 12, 2004. There are many possible explanations for this discrepancy. One is that whereas the American regard wearing the veil as an expression of individuality, the French regard it as an assertion of an antiliberal (and anti-republican) collective identity.

27 See Waldron, supra note 5.

28 Cf. Ely, John Hart, Democracy and Distrust: A Theory of Judicial Review (1980)Google Scholar (arguing, largely based on the example of race relations in the United States, that permanent “we”/“they” politics distorts democracy and calls for judicial intervention to protect discriminated against minorities).

29 In practice, such choice is bound to be limited by historical, cultural, educational, and various other circumstances. Furthermore, if a polity that is pluralistic-in-fact is balkanized, then individual members or subgroups of an oppressive group may not realistically have access to other options. A pluralist state can mitigate this danger through mandatory education and state promotion of pluralist values such as tolerance and respect for other viewpoints, not necessarily because of their content, but because they are central to their proponents who are entitled to equal respect and equal dignity.

30 What follows draws upon the more extensive treatment of this subject in Rosenfeld, supra note 20, at 208-213.

31 Whether the religion itself or only its intolerable activities ought to be banned in a pluralist polity depends on whether there is a workable way to sever the latter from other activities. For example, if a religion were to prescribe both charity to the poor and violence against those who are not poor and do not share the faith, then if the two commands were severable, only the religion's call to violence could be legitimately banned. If the two prescriptions were not severable, however, then the religion would have to be banned altogether.

32 Tolerance of the religion in question must be understood in terms of a polity that is either liberal or normatively pluralist. That is to say, of a polity with an institutional structure that is compatible with either liberalism or pluralism. The reason for this qualification is that otherwise a religion that is sure that it has a monopoly on the truth and that such truth ought to become universally accepted could eventually turn the polity into a theocracy without tolerance for either liberalism or pluralism. This restriction built into the polity's institutional structure is a variant of Karl Popper's solution to the “paradox of tolerance.” See Popper, Karl, The Open Society and its Enemies 265–66 (1966)Google Scholar. Just as Popper argues that to prevent self-destruction tolerance cannot be extended to the intolerant, so too pluralism can only be viable if kept within certain limits.

33 See Waldron, supra note 5.

34 For a more extended discussion of this principle, see Rosenfeld, supra note 20, at 245-250.

35 This is not to say that Catholicism or Protestantism may not have such a role. In that case, however, the influence in question—say, the Protestant influence on capitalism as envisaged in Weber, Max, The Protestant Ethic and the Spirit of Capitalism (Parsons, Talcott trans., Routledge 2000) (1930)Google Scholar—would prima facie at least have a similar impact on both Catholics and Protestants.

36 See Bradwell v. Illinois, supra note 2.

37 Feminists such as Moller Okin and Raday actually see a strong correlation between multiculturalism or religion-based group rights and the subordination of women.

38 Cf. Romer v. Evans, 517 U.S. 620 (1996) (state constitutional provision forbidding adoption of antidiscrimination laws prohibiting discrimination against homosexuals to protect inter alia religious freedom of those whose religion prohibits dealing with homosexuals held to violate federal constitutional equal protection rights).

39 Women's “subordination” may be non-coercive. For example, modern orthodox Jewish women living in the United States have ample exposure to feminist ideas, a genuine right of exit—they can leave orthodoxy and become integrated in the non-orthodox Jewish community—and may still prefer orthodoxy and reject the notion that they are subordinated. Indeed, they may feel that their way of life involves less subordination than the stage two equality actually foists upon women. Though legitimated by feminists, under stage two equality, women must juggle family and work and behave like men at work to ward off stage one discrimination. Furthermore, the internal dynamic of an apparently oppressive group may leave it open to change, and there may be realistic opportunities for individual exit for those who find group norms oppressive.

40 See id.

41 There are cases where the trade-offs are quite familiar as when Orthodox Jewish or Muslim women who work side by side with secular women, can compare notes, and nonetheless consciously determine that for them secularism would be a less desirable alternative. Of course, these women cannot shed their background, history, upbringing, family, etc., and thus their conclusions could not, strictly speaking, satisfy the test imposed by justice as reversible reciprocity.

42 See Waldron, supra note 5.