Working Paper Group: "Equal Law in an Unequal World"

MOVED TO FRONT

Our newest member, Paul Gowder, has uploaded his paper, "Equal Law in an Unequal World", for discussion in our Working Paper Group. Here is brief paper blurb that Paul sent me (followed by the group rules and guidelines):

Dear Cocooners:

This paper, "Equal Law in an Unequal World," will be a bit different from what you're used to.  First, it's intended for a legal academic audience (and, per the unfortunate practice of law journals, is rather long), although I am equally concerned to have philosophers and political/legal theorists be able to accept the argument.  So far, it's only had legal audiences in various workshops and such. 

It's also a follow-on to a previous paper of mine, entitled "The Rule of Law and Equality," forthcoming in Law & Philosophy.  If anyone is infected with a burning curiosity, the previous paper can be found in pre-print at:http://dx.doi.org/10.1007/s10982-012-9161-2 , or in a very-slightly pre-final version on SSRN at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1918742.

The current paper is, in essence, about what it would take to fulfill the ideal of legal equality, in light of the fact that a) for reasons I give, formally equal law (i.e., law that treats everyone the same) is impossible, and b) even law that approximates formal equality can exacerbate real-world inequalities. 

I'm particularly interested in being screamed at as necessary about the doubtless-gross deficiencies in my account of how we might find the social meaning, or expressive content (and I really need to do a better job of determining if those can be different) of a law. 

Thanks so much!

Abstract: This paper develops the egalitarian conception of the rule of law.  Its object is to further clarify how we determine whether a society has or does not have the rule of law, and use these clarifications to show that the regulative idea of the rule of law is an important tool in the fight for economic justice. 

The paper carries out three tasks.  It clarifies what it takes for the state to satisfy the rule of law demand that the laws must be general, that is, they treat all citizens equally.  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, 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.

                -Paul

Here, finally, are the group's rules and guidelines:

• The paper is posted over at Dropbox.com. 
• In order to access it, you must email me at [email protected] for the login and password.  Once you have these, just login into dropbox and download the paper.
• Barring unforseen and unfortunate circumstances, our dropbox login and password will be the same for all future working papers.
• The login, password, and working papers themselves are in no circumstance to be distributed to anyone. In order to maintain the integrity of our forum, I alone am authorized to distribute them.
• In order to maintain the safe and supportive integrity of the paper discussion, I will only distribute the login and password to registered members of The Philosophers' Cocoon. 
• As always, any professional philosopher who wants to become a member of the Cocoon is welcome to email me to join. However, you must become a member to participate in the working paper group.
• Basic ground-rules for the paper discussion (which should simply proceed in the comments section below) are as follows: 

1. You must have access to -- and presumably have read! -- the paper in order to comment.
2. Comments should aim to be helpful in nature. If you raise an objection, try to suggest potential way(s) to resolve it.  The purpose of this group is to help our friends here at the Cocoon improve their papers, not to show off one's awesome refutation skills.
3. Be a good dude/dude-ette.  Do everything you can to make this a positive experience for the paper presenters.

Thanks, in advance, to everyone who participates!

 

Comments

[Marcus Arvan]

Hi Paul: very interesting paper (and project)! Here are a couple initial thoughts I had while reading it (I'll be back with some more later).

(1) You say on p.7 that (a) the rule of law can lend moral value to nonliberal as well as liberal societies; (b) the conventional Rawlsian notion of public reason is designed to describe the fundamental value of liberal democracies, and does not work outside of this context; and, finally, (c) (in fn. 21) that, "for use in an ideal like the rule of law: minimalism is appropriate." Notice that all three of these claims are nevertheless consistent with the idea that Rawls has the right conception of *equality* before the law (your concern in this paper). For instance, one can admit that the *rule* of law has value in nonliberal societies while nevertheless holding that nonliberal societies lack an appropriate or correct conception of *equality* before the law. Which brings me to a broader worry. Your aim in this paper is to carve out and defend a much more minimal conception of equality before the law than Rawls. Yet Rawls' conception seems to fit much better with the basic *idea* of equality before the law, at least as you state that idea. Here, after all, is your statement of it: "Ordinarily, rule of law scholars say that the law must be general, that is, it must apply to all on equal terms, *rather than carve out special privileges for some citizens over others*." (p. 4) After introducing this idea you mention how it rules out laws based on rigid designators, definite descriptions, etc. Okay -- but isn't this exactly what Rawls' original position models? The original position permits no one in society to privilege anyone over anyone else. It also prevents laws and the basic structure of society from being based on rigid designators, definite descriptions, etc. Thus (or so it seems to me), one cannot so easily say that Rawls' conception of equality before the law is too stringent (i.e. indicative of a distinctly *liberal* conception of equality), and that a more minimal conception (such as yours) is preferable. For again -- for reasons I've just indicated -- the original position seems to model *precisely* the notion of equality before the law you say you want to understand (i.e. no special privileges for anyone).

So much for the worry: here, perhaps, is a friendly suggestion for addressing it (to readers like myself who are steeped in Rawls). The original position is intended to model not merely equality before the law, but *freedom* and equality before the law (each citizen is fully *free* in the original position to advocate for his/her favored principles from a position of equality). Perhaps you can raise and address the worry in a quick footnote? (Again, I think it would placate Rawlsians like me!)

(2) I'm a bit worried about your understanding reasonableness judgments (about the expressive meaning of laws) as (wholly) conventional, where by this you mean (p. 9) "drawn from the understandings shared by the members of a political community", and "It is unreasonable to demand that someone accept a reason if, in the community shared by the reason-giver and the reason-taker, demanding that reason be accepted is not something one does to a free and equal citizen, and accepting that reason is not something one does when one sees oneself as a free and equal citizen." (Quick note before continuing: you've shifted here from equality before the law to *freedom* and equality -- which brings us back to my Rawlsian worry above in (1)).

Anyway, here's my worry about your conventionalism claim. If we understand reasonableness judgments in purely conventional terms, this seems to have the highly counterintuitive implication that we cannot judge a society's *conventions* as unreasonable.

Now, you note later on (p. 17) that, "it’s important to clarify that although the expressive
meaning of the bus segregation law was set by the way that those in the community should have understood it, our moral evaluation of that meaning is set by universalistic standards." However, I can't help but be a bit confused by all this (though, indeed, perhaps it is *I* who am confused). Here's what I'm confused about. Your claim on p.9 was that *reasonableness* judgments are to be understood conventionally. That looks not merely like a judgment about the expressive content of a law, but rather a *moral* judgment about the expressive content (i.e. it is/is not reasonable).

Finally, your claim here on p.17 that we are to morally *evaluate* the expressive meaning of laws suggests to me the following dilemma (This is intended only as a *very* rough, off-the-cuff argument to develop the worry):

(I) Either we morally evaluate a conception of equality before the law according to conventional or universalistic standards.

(II) If we morally evaluate a conception of equality before the law according to conventional standards, we can make sense of the moral value of *nonliberal* conceptions of equality before the law (your stated aim), but at the cost of *cultural relativism* (since the moral reasonableness of a conception of equality is determined conventionally).

(III) If we morally evaluate a conception of equality before the law according to universalistic standards, then there is no good reason to hold a "minimal" conception of the value of equality before the law (as opposed to a Rawlsian one -- for, again, Rawls' original position seems to model freedom and equality before the law).

So (IV) Either one must be culturally relativist about equality before the law, or one must be a "nonminimalist" (e.g. a full Rawlsian) about it.

But, or so I take it, (V) You don't want to be a cultural relativist.

So, (VI) You can't be a minimalist about equality before the law.

I'm sure I've gone wrong here -- but anyway, that's the worry I have.

(3) A couple of notes on fn. 53. First, *doesn't* Brennan take the further step of arguing that uninformed voters should be disenfranchised? Second, Brennan certainly *argues* that uninformed voters have a moral duty not to vote -- but not, I think, very convincingly. See e.g. my reply, "People Do Not Have a Duty to Avoid Voting Badly" at www.jesp.org/articles/download/MarcusArvan.pdf

Seriously, I'm not meaning to fish for a citation here. I'm just not a fan of unconvincing arguments for (what I take to be) dangerous conclusions. ;)

Anyway, thanks again for the very interesting paper! I'm sure I'll probably be back with more thoughts as I think through the paper more. ;)

[Paul Gowder]

Thanks Marcus -- this is really helpful!

Thinking out loud on the relativism worry...

I start -- and this probably ought to be stated explicitly---from the idea that equality is essentially a matter of treating people with respect. But what sorts of specific behaviors (both linguistic and non-linguistic) count as treating people with respect will vary from community to community, just because respect is partly communicative. It won't vary beyond all bounds---enslaving someone will always count as treating her with disrespect, and hence not as an equal, just because subordination is built into the concept of slavery. Arbitrary physical violence will probably also always count as disrespect.

In particular, however, laws that are only justifiable with reference to comprehensive doctrines will count as disrespect in some societies (liberal ones, where neutrality is part of the self-understanding of the community) and will not count as disrespect in others (decent non-liberal societies).

So the account is culturally relative at the level of assigning behaviors to evaluations of respect/disrespect, and thus equal/unequal. But it is universalistic in always condemning disrespectful, that is, equality-undermining, behaviors. No state gets to say "in our (feudal, slave, etc.) culture, we don't believe in equality, so the rule of law can't be used to condemn our behavior."

Does that avoid your worry?

(On the original position/freedom point, I think I may want to adopt your friendly suggestion. Other parts of the broader project [obviously, though this is a standalone paper, there's a book project in the making from this] are directed at killing off the conventional rule of law/liberty association; I think it might be right that the stronger Rawlsian version of public reason is necessary to achieve both full-fledged liberal democratic freedom as well as equality, but I'm going for something weaker. Need to think lots more about this though.)

[Marcus Arvan]

Paul: Thanks for your thoughtful reply. However, I'm not sure (as a dyed-in-the-wool Rawlsian) that I'm willing to admit the very first step. Allow me to explain.

You want to say that respect is partly communicative, and can legitimately vary between communities. But, I want to say, this is precisely what needs to be *shown*, given the specific ideal at issue (i.e. "no arbitrary advantages/disadvantages before the law"). As a dyed-in-the-wool Rawlsian, I want to say: look, once you tell me that you're interested in the notion "no arbitrary advantages/disadvantages before the law", you've given the game away to me. For the original position models *precisely* that idea. It is a model of *what-it-is* for no one to be arbitrarily favored/disfavored before the law (insofar as no one to it has access to any information they *could* use to arbitrarily privilege themselves before the law). Thus, insofar as the OP models the ideal you were after, it must be *determined* -- by reference to the model -- whether equal respect before the law is partly communicative, and can legitimately differ between communities. Maybe it is/can, maybe it isn't/can't. The only way to tell is to take the model of "no arbitrary advantages/disadvantages before the law" -- namely, the OP -- and see *whether* any sort of expressive notion of respect, and room for legitimate differences between communities, "pop out" of the model. If they do pop out of the model, then equality before the law is partly expressive and can legitimately vary between communities. If not, then not.

I realize this reply by me makes it clear how (absurdly?) dyed-in-the-wool Rawlsian I am ;) -- but still, the argument just given seems relatively persuasive to me. How, after all, can we *know* whether equal respect before the law is partly communicative, or whether it can legitimately vary between communities, unless we examine the question by reference to a model that clearly seems to embody the relevant ideal (again, "no arbitrary advantages/disadvantages" before the law", which the OP models)?

Again, you can probably resist all of this by saying that the OP models both freedom *and* equality before the law (whereas you're just interested in the latter) -- in which case I return to my previous friendly suggestion. ;)