Despite the attention equalitybefore the law has received, both laudatory and critical, peculiarly little has been done to precisely define it. The first ambition of this paper is to remedy this, by exploring the various ways in which a principle of equalitybefore the law can be understood and suggest a concise definition. With a clearer understanding of the principle in hand we are better equipped to assess traditional critique of the principle. Doing so is (...) the second ambition of this paper. I will argue that traditional criticisms are unpersuasive, but that there is a different, powerful argument against equalitybefore the law. The third ambition of the paper is to argue that there is a sense, overlooked by both proponents and critics, in which the principle still captures something important, albeit at the cost of shifting from intrinsic to instrumental value. (shrink)
This article argues that Hannah Arendt’s controversial essay “Reflections on Little Rock,” when situated within her analysis of Jewish assimilation, has an astute insight: racial integration and the decrease of the racial gaps in material inequality, without taking seriously the political project of building a world in common, only intensify racism in racist polities. This occurs because attempts to extend formal equality to the racially dominated give rise to the rule of racial common sense, a result of a clash (...) between the political structures of equality and the racial inequality practiced in quotidian interracial exchanges occurring in civil society. Though Arendt’s work on racism echoes criticisms of racial integration leveled by racial realist and pessimistic accounts of the Civil Rights struggle, her work points to a more expansive practice of “the political” that calls for the institutional design of formal politics as an important strategy against racism. (shrink)
This Article argues that a particular political theory underlies the judicial interpretation of ‘equalitybefore the law’. The Canadian Courts at the date of writing have elaborated two tests for the signification of ‘equalitybefore the law’. The Article traces the two tests to the utilitarian political theory outlined by John Stuart Mill. The one test sets out the ‘greatest happiness of the greatest number’ or ‘social interests’ as the criterion for adjudicating equality. The second (...) test identifies the reasonable relationship of an alleged statutory classification vis-à-vis the statutory purpose. The Article offers an alternative approach based upon democratic theory. Examples of the two tests and the alternative approach are drawn from judicial constitutional interpretations in the USA and Canada. (shrink)
Political activists drive around with bumper stickers proclaiming their commitment to equality. Perhaps the bumper sticker loudly asserts “=!” Oppressed people lament their lack of equality. Political philosophers contemplate equality and try to formulate general principles about it. In recent days, some advocates of marriage rights for same-sex couples argued for their view by claiming it’s just a matter of equality. Indeed, one of their advocacy websites uses the name ‘Equality’.1 They want equal rights. Everyone (...) seems to take it for granted that equality is important. This seems entirely wrong to me. It seems to me that equality is legally (and politically and socially and economically and morally) irrelevant. (shrink)
The social and legal implications of forensic DNA are paramount. For this reason, forensic DNA enjoys ample attention from legal, bioethics, and science and technology studies scholars. This article contributes to the scholarship by focusing on the neglected issue of sameness. We investigate a forensic courtroom case which started in the early ’90s and focus on three modes of making similarities: creating equalitybefore the law, making identity, and establishing standards. We argue that equalitybefore the (...) law is not merely a principle but a practice. In the context of DNA research, equality refers to using standardized technology and procedures to identify the criminal suspect. Our case shows the work at stake in introducing a new technology into the courtroom and serves as a lens, magnifying how contingencies and uncertainties are managed and ordered in everyday court practices to arrive at an equal treatment of the suspect. (shrink)
Bringing these two emergent areas of thought into direct conversation in Before the Law, Cary Wolfe fosters a new discussion about the status of nonhuman animals and the shared plight of humans and animals under biopolitics.
Before the law sits a gatekeeper. To this gatekeeper comes a man from the country who asks to gain entry into the law. But the gatekeeper says that he cannot grant him entry at the moment. The man thinks about it and then asks if he will be allowed to come in sometime later on. “It is possible,” says the gatekeeper, “but not now.”—Franz Kafka..
This book examines the relationship between the idea of legitimacy of law in a democratic system and equality, conceived in a tripartite sense: political, legal, and social. Exploring the constituent elements of the legal philosophy underlying concepts of legitimacy, this book seeks to demonstrate how a conception of democratic legitimacy is necessary for understanding and reconciling equality and political legitimacy by tracing and examining the conceptions of equality in political, legal, and social dimensions. -/- In the sphere (...) of political equality this book argues that the best construction of equality in a democratic system - which resonates with the legitimizing function of majority rule - is that of equality of political opportunity. It is largely procedural, but those procedures represent important substantive values built into a majoritarian system. In the sphere of legal equality it argues that a plausible conception of non-discrimination can be constructed through a "reflective equilibrium" process, and should reject a thoughtless assumption that the presence of some particular criteria of differentiations necessarily taints a legal classification as discriminatory. Finally, the chapters on social equality explore, in some detail, the currently influential, and presumptively attractive, "luck egalitarianism": the idea that social equality calls for neutralizing the disparate effects of bad brute luck upon a person's position in society. (shrink)
Animal studies and biopolitics are two of the most dynamic areas of interdisciplinary scholarship, but until now, they have had little to say to each other. Bringing these two emergent areas of thought into direct conversation in _Before the Law_, Cary Wolfe fosters a new discussion about the status of nonhuman animals and the shared plight of humans and animals under biopolitics. Wolfe argues that the human-animal distinction must be supplemented with the central distinction of biopolitics: the difference between those (...) animals that are members of a community and those that are deemed killable but not murderable. From this understanding, we can begin to make sense of the fact that this distinction prevails within both the human and animal domains and address such difficult issues as why we afford some animals unprecedented levels of care and recognition while subjecting others to unparalleled forms of brutality and exploitation. Engaging with many major figures in biopolitical thought—from Heidegger, Arendt, and Foucault to Agamben, Esposito, and Derrida—Wolfe explores how biopolitics can help us understand both the ethical and political dimensions of the current questions surrounding the rights of animals. (shrink)
In some sense every man has a moral right, or more properly a moral claim, to equality with other men. In what sense will, I hope, become apparent in the course of this paper. That there is such a claim in some sense is clear enough. “Equalitybefore the law,” for example, is something which we all recognize to be right.
This paper sets out to chart the fortunes of one of the most significant moral propositions in Mu'tazilite moral theory — namely, that it is evil to lie, and it is evil irrespective of the consequences of so doing. The reasons which promote this principle to significance relate to the broader context of Mu'tazilite theological orientation, which aims to vindicate God's justice through demonstrating that moral value does not derive from revelation. Yet this principle suffers the difficulties which commonly afflict (...) deontological precepts, particularly the challenges posed by their conflict with teleological moral demands in certain situations, as well as the difficulty of empirically ascertaining that a moral principle has in fact given the agent his reason for action, as the Mu'tazilites attempt to do. These were difficulties which Aš'arite critics of Mu'tazilite moral claims were quick to pick up on, and it is in the light of such hostile fire that the coherence of the Mu'tazilite position on the evilness of lies is examined. This is the principal focus of this essay, and it is complemented by an examination of how the principle carries over to the realm of divine morality: can God tell a lie? If not, why not? And what does this reveal about the ordering of moral values in Mu'tazilite thought? (shrink)
Organized around such themes as equalitybefore the law, equality of opportunity, and equality of result, the selections included in this anthology range from Plato to the present, treating a topic of fundamental importance to political theory.
As today's battles rage between those who march under the banner of liberty and those who unfurl the flag of equality, even an engaged partisan might be forgiven for occasionally wondering whether the game is, after all, worth the candle. For one thing, neither party simply rejects the other's principle – properly understood. Egalitarians routinely emphasize that their concern for equality is, also, a concern for true liberty; thus Michael Walzer, writing “In Defense of Equality,” finds it (...) “worth stressing that equality as I have described it does not stand alone, but is closely related to the idea of liberty.” 1 Libertarians tend to be less enthusiastic in their embrace of equality, but almost all endorse some form of equality or other – for example, equality of political rights or equalitybefore the law. It would seem, then, that the differences between egalitarians and libertarians are really over the meaning and scope of equality and liberty, and that putting the issue as one of equality vs. liberty may be misleading. More important, one can wonder whether either the egalitarian or the libertarian combination of the principles of liberty and equality is worthy of support. What society has exalted personal liberty, has taken rights more seriously, than ours? Yet who can easily dismiss Solzhenitsyn's charge that our worship of freedom has resulted in “destructive and irresponsible freedom” being granted “boundless scope,” leaving us defenseless against “the corrosion of evil”? 2 The cause of liberty against tyranny surely continues to command our support; but what conclusion ought we to draw from the facts that liberty in absentia seems so markedly more attractive than liberty in practice, and that the qualities manifested in the struggle for liberty seem so superior to those that come to the fore once liberty is secured? (shrink)
The paper examines today’s debate on the new responsibilities of Internet service providers in connection with legal problems concerning jurisdiction, data processing, people’s privacy and education. The focus is foremost on the default rules and safe harbour clauses for ISPs liability, set up by the US and European legal systems. This framework is deepened in light of the different functions of the services provided on the Internet so as to highlight multiple levels of control over information and, correspondingly, different types (...) of liability. The new responsibilities of ISPs concern the original “end-to-end” architecture of the medium and policies on design rather than responsibility for user content and individual messages. (shrink)
Many scholars have suggested that Aristotle’s famous aphorism ‘treat equals equally, unequals unequally’ is a formal, and thus impractical, theory of equality. This dissertation aims to criticise the popular view that Aristotle’s theory of equality is purely formal and to develop and defend an interpretation which will pay attention to the substantive elements. The first chapter argues that Aristotle provides us with a spectrum from formal to substantive equality. At the formal end, we have the abstract principles (...) of formal fairness and proportionality, while at the substantive end we can find information for the designation of the appropriate variable of comparison between people or treatments in various domains of social interaction. The second chapter argues for an account of commensurability based on Ph. VII.4. I claim that, in any comparison, the term ‘equal’ should be predicated synonymously of the people or treatment compared, while at the same time they should not admit to difference in species; such an account, I suggest, is also compatible with Aristotle’s theory of economic value in EN V.5. The third chapter presents the Aristotelian account of equality in distributions. I focus on Aristotle’s theory of political distribution in Pol. III, where he puts forward two distinct criteria: political capacity and contribution to the polis. I also examine Aristotle’s moderate suggestion for equalisation of property by the means of public property and taxation. The fourth chapter criticises the popular line that Aristotle holds an inconsistent theory of corrective justice, because in EN V.4 he suggests that people should be treated as equal before the law, while in the first lines of EN V.5 he allows for hierarchical considerations. I eliminate this apparent inconsistency by claiming that the former deals with the compensatory, while the latter with the punitive element of corrective justice. The fifth chapter explores the role of equality within the private domain, mainly in the household and in various types of friendship. I propose that Aristotle offers two types of superiority, one based on actuality and a second based on function, which are not mutually exclusive. To summarise, by examining Aristotle’s responses to various problems about equality and hierarchy I conclude that although he possesses the theoretical tools to argue for ‘inalienable’ metaphysical equality of human beings which will make equality an individual entitlement or right, based on his principle of individuation in Metaph. Z.8, he prefers not to utilise this thesis for political purposes. Instead, he reduces equality to justice (inequality is unjust, since it violates principle of formal fairness which is fundamental for justice) and a set of pragmatical considerations (e.g. concord and the optimal outcome for the polis). He prefers to argue that equality or hierarchy of people or treatments is related to, and defined by, the particular institution that we examine. (shrink)
Beazley, Margaret Australia rightfully places itself amongst democratic countries governed by the rule of law. It is a tradition in which I hold a firm belief. An essential aspect of the rule of law is its non-arbitrary application, and its guarantee of equalitybefore the law. When describing the rule of law, A. V. Dicey stated that the rule of law meant: the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and (...) excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government. (shrink)
At the beginning of Derrida's ‘Before the Law’, a reading of Kafka's story with that title, is an epigraph from Montaigne's Essays: ‘… science does likewise (and even our law, it is said, has legitimate fictions on which it bases the truth of its justice)…’. Derrida again refers to this quotation in ‘Force of Law’, asking what a ‘legitimate fiction’ might be and what it would mean to establish the basis for the truth of justice. With reference to these (...) writings on the status of narrative and the law, as well as to other texts by Derrida, this paper examines the story of the judge-penitent in Camus' The Fall and, in particular, this ironic reading of the aporetic experience of standing ‘before the law’. What does the narrative, The Fall, entail? Camus writes that the man who speaks in this text is involved in a ‘calculated confession’. How are the borders between truth and fiction, justice and the law, negotiated in this reckoning ‘before the law’? (shrink)
Anatole France’s The Red Lily is best known for this ironic aphorism: ‘The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.’ The laws mentioned in this aphorism are open to two criticisms. The first criticism is that they forbid conduct that oughtn’t to be forbidden. The second criticism is that they unfairly place greater burdens of compliance on some than on others. (...) It may be onerous for the poor to comply with the law against, say, sleeping under bridges; not so for the rich. It is this second criticism that I read France as expressing, and it is the reach of this criticism that I explore in this essay. Specifically, I want to ask whether the second criticism may apply to a law even if the first criticism does not – whether there can be laws that are good in the sense that they forbid behavior that genuinely ought to be forbidden, but that are nonetheless unfair in the distribution of compliance burdens they yield. Some examples may tempt us to say ‘no.’ It may be more burdensome for thrill-seekers than for the rest of us to comply with laws against speeding, but that does not make speeding laws unfair. But I argue that the answer is ‘yes.’ Good laws can, and surprisingly often do, yield unfair distributions of compliance burdens. I conclude the essay by showing how remedies for this sort of unfairness might work. (shrink)
ExcerptAll rational liberal philosophic positions have lost their significance and power. One may deplore this but I for one cannot bring myself to clinging to philosophic positions which have been shown to be inadequate. Leo Strauss, “Existentialism”1The Supreme Court decision on the Patient Protection and Affordable Care Act, the Obama administration's signature legislation on health care, attracted exceptional public attention, and rightly so. Health is a vital concern, and the topic is charged with acerbic party politics. More importantly, the terms (...) of the debate give evidence of a widespread awareness, across the political spectrum, that…. (shrink)
This article has two parts, first part of the article deals with the importance of marriage in Islam in the light of Quran and Hadith. This part of article also elaborates the social importance of marriage for Muslim man and woman. The second part of this article deals with the law of compatibility, its importance and the role it plays in the success of marriage. The law of compatibility emphasizes that before arranging marriage of girl compatibility between the boy (...) and girl should be checked on the following terms: Lineage Islam Religiosity Wealth profession. The basic objective of this law is to ensure equality in social status for the purpose of successful marriage and psychological balance. Therefore, this law has great role in the success of marriage if it is practiced, it may reduce the cases of divorce. The second part of this article also deals some other important points like, validity of marriage without the consideration of law of compatibility, misconception regarding the law of compatibility in Muslim society. (shrink)
Hegel's reflections depend on the unique semantic richness of the German term Gleichheit, which has a wider range of application than the English term "equality." While Gleichheit can certainly mean equality or "parity" in the sense of sharing the same set of rights or status as another, it can also mean "to resemble" or "to be like" something in a certain respect. For Hegel, however, resemblance is not merely a relation between shared external properties, but rather two things (...) are said to be "equal" or "alike" to the extent they are united within the same horizon of existential conditions. Consequently, Gleichheit can mean both a kind of parity in respect of some external set of shared properties or rights, or to be alike in respect of some fundamental condition of existence. The originality of Hegel's conception of equality is to explicitly segregate these two senses of Gleichheit, so that he may reject the status of mere parity or "equivalence" of individuals before the law, in favor of a conception of complete ethical "likeness" or similarity between moral agents, in which Self and Other are united within the same ethical horizon. (shrink)
The recent publication of a special number of the SAJP dedicated to a discussion of Samantha Vice’s thoughts on being a white South African prompted this reflection on justice, equity and the modern idea of the state – against the background of moral feelings of guilt and shame, cultural diversity and merging identities. Its aim is to provide a perspective on the unity of the public legal order of the state, the distinct meaning of citizenship and affirmative action in terms (...) of the distinction between constitutive and regulative legal principles also helping white South Africans to understand how affirmative action relates to injustices of the past. The classical understanding of equity will play a key role in this discussion, aimed at showing how we can avoid the apparent impasse of equalitybefore the law and of “fair discrimination.”. (shrink)
This paper proposes a new way of measuring progress in international politics, an approach that focuses on the symbolic and ideological work of international organizations. Although such a strategy is not entirely new to the study of International Relations, it has not been a common, accessible way of assessing how well international organizations work to effect change. The more famous methods have been legalistic—investigations of how international organizations have created new international law in the issue-areas under investigation1—and bureaucratic—studies of how (...) international organizations create machinery to deal with the problems2. But in a world where domestic and international discourse is more mediated than ever before by television, radio, the Internet, newspapers, and other means of mass communication, the argument here is that propaganda is a third arena that must be taken into account when exploring the work of international organizations. The international organization in question here is the United Nations, and the issue-area examined is gender equality, a topic that is also variously described as “women's rights,” “women's issues”, or the “women's movement”. The paper explains first why the topic of the UN and women's rights is important, I then examine the propaganda role of the UN in the struggle for gender equality, and the paper concludes with a critical analysis of the UN's propaganda work in relation to this issue. (shrink)
'The many virtues of Constitutional Justice are evident throughout the piece. The author should be congratulated for even attempting to construct a normative theory of liberal constitutionalism... Constitutional Justice is a work that faithfully carries on the grand tradition of normative legal thought. No small task, and Allan succeeds admirably.' -Law and Politics Book ReviewThis book offers a systematic interpretation of the ideal of the rule of law, arguing that the principles it identifies provide the foundations of a liberal democratic (...) legal order. It explains the essential connections between a range of matters fundamental to the relationship between citizen and state, including freedoms of speech and conscience, civil disobedience, procedural fairness, administrative justice, the right of silence, and equal protection or equalitybefore the law. The principles of public law are interpreted in the light of liberal legal and political philosophy.Readership: Scholars and students of law, philosophy, and politics. (shrink)
This interview discusses Cary Wolfe's book Before the Law with a focus on how animals fit within the framework of biopolitics. Wolfe takes on the distinctions between Foucault's and Agamben's development of biopolitics and finds room within Foucault's conceptualization for rethinking the role of animals within culture and philosophy. Additionally, the interview explores current directions in posthumanism and the Minnesota University Press series oversees as editor.
Equalitybefore the law is one of the fundamental guarantees citizens expect in a just and fair society. We argue that recent trend toward mass incarceration, which has had vastly disproportionate impact on African Americans, is undermining this claim to fairness and raises a serious legitimacy problem for the legal system as a whole. Using original data from the Race, Crime and Public Opinion study we show that African Americans view the 'War on Drugs" as racially biased in (...) its implementation. This perception of bias consequentially undermines legal system legitimacy by lowering blacks' expectations for police performance in their communities and encouraging receptivity to appeals for jury nullification based on race. (shrink)
Deliberative democracy is a revolutionary political ideal that requires fundamental changes in political institutions, bases of collective decision making, and the distribution of resources. Perhaps because of its revolutionary character accounts of deliberation in political theory thus far have offered little guidance for actors in actually-existing democratic circumstances. This article develops an ethical account of deliberative democratic action under imperfectly just conditions characterized by material and political inequality and failures of reciprocity. Under such conditions, appropriate principles of action can resolve (...) the tension between deliberation and confrontational political activism. The logic of this account parallels the justification for civil disobedience: the extent of permissible deviationfrom deliberative norms increases according to the adversity of political circumstances. This ethical account is composed of principles of deliberative activism, applications of those principles to four kinds of increasing unfavorable circumstances, and a menu of institutional and political strategies that increase deliberative inclusion and equality. (shrink)
Transforming as it does from an exemplar of meticulous philosophical analysis into an allusive political/messianic tract, Walter Benjamins Critique of Violence is representative of all that is most difficult about his work. Against those critics who find the eschatological dimensions of Benjamins texts unpalatable and/or philosophically bankrupt, 1 however, the wager of this paper is that it is possible to extract a philosophically sophisticated and politically interesting concept of the messianic from Benjamin. For it remains the case that the mortification (...) of law carried out in Zur Kritik der Gewalt does not simply boil down to a naive antinomianism; that Benjamins argument is far more subtle than any simple call for a radical destruction of the legal order. 2 Indeed, if we read the text in conjunction with certain others in the Benjaminian oeuvre it becomes clear that it engages lucidly with a set of crucial, difficult questions about the status of law in modernity. (shrink)
Contrary to what has been asserted or implied by Mach and more recent writers, the law of illumination and the study of photometry were not ignored in the years between Kepler's first enunciation of the former in 1609 and Bouguer's Essai on the latter in 1729. The law of illumination was in fact denied in 1613 by Aguilonius. It was probably rediscovered independently and certainly reformulated in more modern terms by Mersenne and Castelli in 1634, and by Boulliau in 1638. (...) It was again formulated and this time demonstrated empirically by Montanari no later than 1676, and possibly as early as 1634 by Castelli. Although neither the law nor photometry were major concerns before Bouguer, they were not completely neglected either. (shrink)
This book examines responsibility and luck as these issues arise in tort law, criminal law, and distributive justice. The central question is: whose bad luck is a particular piece of misfortune? Arthur Ripstein argues that there is a general set of principles to be found that clarifies responsibility in those cases where luck is most obviously an issue: accidents, mistakes, emergencies, and failed attempts at crime. In revealing how the problems that arise in tort and criminal law as well as (...) distributive justice invite structurally parallel solutions, the author also shows the deep connection between individual responsibility and social equality. This is a challenging and provocative book that will be of special interest to moral and political philosophers, legal theorists, and political scientists. (shrink)