On difference and equality

Legal Theory

Volumn 3, Issue 1, 1997, Pages 65-99

  Ward, Cynthia V ^a  

^a ARIZONA STATE UNIVERSITY   (United States)

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EID: 84952762349     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/S1352325200000641     Document Type: Article

References (100)

1. Foster, Difference and Equality, note 2, at 156.
2. See, e.g., Roy L. Brooks and Maryjo Newborn, Critical Race Theory and Classical-Liberal Civil Rights Scholarship: A Distinction Without a Difference?, 82 Cu. L. REV. 787,804-44 (1994).
3. Young, Justice an d the Politics of Difference, supranote 2, at 158.
4. See, e.g., Ackerman, Justice an d the Politics of Difference note 6, at 182, 196 (explaining importance of autonomy in liberal theory); id. at 4-7 (outlining conception of rationality’ that forms basis for author's own brand of liberalism); Richard II. Fallon Jr., Two Srnses of Autonomy, 46 STAN. L. REV. 875, 876 (1994) (“A view tracing to Kant maintains that other values possess their worth only because rational, autonomous agents find them worth pursuing.”); John Rawls, A THEORY OF JUSTICE 515-16 (1971) (“Following die Kantian interpretation of justice as fairness, we can say that by acting from these principles [of justice] persons are acting autonomously, they are acting from principles that they would acknowledge under conditions that best express their nature as free and rational beings…. Thus, moral education is education for autonomy”).
5. See, e.g., Ackerman, A THEORY OF JUSTICE note 6, at 54-55 (articulating requirement that liberal principle of neutrality “docs not distinguish the merits of competing conceptions of the Good”); Galston, A THEORY OF JUSTICE note 6, at 10 (“the liberal conception of the good… allows for a wide though not wholly unconstrained pluralism among ways of life. It assumes that individuals have special (though not wholly unerring) insight into their own good. And it is consistent with the minimization of public restraints on individuals”); Rawls, A THEORY OF JUSTICE note 13, at 92-93 (“[A] person's good is determined by what is for him the most rational long-term plan of l i f e…. To put it briefly, the good is the satisfaction of rational desire”).
6. See, e.g., Gerald Dworkin, THE THEORY AND PRACTICE OF AUTONOMY 31 (1988) (“Moral respect is owed to all because all have the capacity for defining themselves”).
7. See, e.g., John Stuart Mill, ON LIBERTY: ANNOTATED TEXT, SOURCES, AND BACKGROUND CRITICISM 65 (David Spitz ed. 1975) (“Such are the differences among human beings in their sources of pleasure, their susceptibilities of pain, and the operation on them of different physical and moral agencies, that unless there is a corresponding diversity in their modes of life, they neither obtain their fair share of happiness, nor grow up to the mental, moral, and aesthetic stature of which their nature is capable”); Robert Nozick, ANARCHY, STATE, AND UTOPIA 308-09 (1974) (discussing extensive diversity of human beings); Amartya Sen, INEQUALITY REEXAMINED 19-21 (1992) (discussing impact of “extensive human diversity” on equality theory).
8. See, e.g., Michel Rosenfeld, Substantive Equality and Equal Opportunity: A Jurisprudential Appraisal 74 CAL. L. REV. 1687, 1702 (“In its broadest terms, then, equalities must be constructed so that those who are different are not regarded as inferiors, and conforming identities are not imposed upon them”).
9. See, e.g., Fallon, Substantive Equality and Equal Opportunity: A Jurisprudential Appraisal note 13, at 887-88 (defending conception of descriptive autonomy and noting that “the self, though situated and socially constituted, remains capable of appreciating her situated condition, of assessing and criticizing her assumptions and values, and of reusing her goals and commitments The self is a creature in and of the world, but one capable of at least partially transforming herself through thought, criticism, and self-interpretation”).
10. See Sen, supm note 16, at 12-10 (noting that “every normative theory of social arrangement that has at all stood the test of time seems to demand equality of something-something that is regarded as particularly important in that theory,” and thus that “the battle is not, in an important sense, about ‘why equality?’, but about ‘equality of what?'”).
11. See, e.g., id. at 22 (“libertarian demands for liberty typically include important features of'equal liberty,’ e.g., the insistence on equal immunity from interference by others”).
12. Ronald Dworkin, What Is Equality? Part I: Equality of Welfare, and WTiat Is Equality! Part 2: Equality of Iiesources, 10 PIHL & Pun. AFF. (1981).
13. Rawls, What Is Equality? Part I: Equality of Welfare, and WTiat Is Equality! Part 2: Equality of Iiesources note 13.
14. Amy Gutmann may be drawing this distinction between liberalism's equality assumptions, which she defines as the function of “describing people as equal beings…, “ and egalitarianism, which she defines as the “justifying a more equal distribution of goods, services, and opportunities among those people.” Amy Gutmann, LIBERAL EQUALITY 2 (1980).
15. See, e.g., Ackcrman, Amy Gutmann may be drawing this distinction between liberalism's equality assumptions note G, at 18 (“Certain forms of equal treatment-say, formal equality in the administration of justice-have been central to the liberal tradition”). For a contemporary defense of this idea, see gmerally Nozick, Amy Gutmann may be drawing this distinction between liberalism's equality assumptions note 10.
16. Dworkin, Amy Gutmann may be drawing this distinction between liberalism's equality assumptions note G note 0, at 180, 272-78.
17. Littleton, Amy Gutmann may be drawing this distinction between liberalism's equality assumptions note G note 0 note 1, at 1284-85.
18. I Icrma I lill Kay, Equality and Difference: The Case of IWgnancy. 1 IlF.RKFI J.Y WoMLVS LJ. 1, 26-27 (1985).
19. Dworkin, Equality and Difference: The Case of IWgnancy. note 6, at 180-82.
20. Subdefincd as rationality, capacity for moral personality, agency, etc.
21. Minow, Making All the Difference, Subdefincd as rationality note 2, at Hf>-17.
22. See, e.g., Minow, Making All the Difference, Making All the Difference note 2, at 146-J9; Young, Justice and the Politics of Difference, Making All the Difference note 2, at 157 (“Enlightenment ideals of liberty and juilitical equality did and do inspire movements against oppression and domination, whose success has created social values and institutions we would not want to lose”).
23. See, e.g., Minow, Making All the Difference, Making All the Difference note 2. at 152 (The [liberal] social contract approach has been deeply exclusionary”); Young, Justice and the Politics of Difference, Making All the Difference note 2, at 173 (“Policies that are universally formulated and thus blind to differences of race, culture, gender, age, or disability often perpetuate rather than undermine oppression”).
24. Communitarians have been especially keen on this attack. See generally Michael Sandel, LIBERALISM AND THE LIMITS OF JUSTICE (1982).
25. See generally Suzanna Sherry, Civic Virtue and tfie Feminine Voice in Constitutional Adjudication, 72 VA. I* REV. 543 (1986) (citing Carol Gilligan and arguing for inclusion of women's “different voice” into law); West, Communitarians have been especially keen on this attack. note 1 (arguing that law must incorporate women's focus on connectedness as well as men's concern with individual autonomy).
26. Carol Gilligan, IN A DIFFERENT VOICE (1980).
27. For relational feminist discussions that use Gilligan's ideas to criticize liberal law, see, e.g. West, A DIFFERENT VOICE note 1, at 2-1, 14-26,42 (1988) (defending the “connection thesis”-that women differ essentially from men because they are materially connected to other human lives through the maternal experience and therefore value connection and nurturing over autonomy); Sherry, A DIFFERENT VOICE note 38, at 543, 579-84 (hypothesizing that women's concerns about connection, subjectivity, and responsibility for others accord well with communitarian legal structures while men's emphasis on autonomy, objectivity, and rights translates into liberalism). For a similar thesis in the context of race relations, see, e.g., Jacinda T. Townsend, Reclaiming Self-Determination: A Call for Intraracial Adoption, 2 DuKEj. GENDER L. & POL*Y 173,181 (1995) (The Black community maintains its own set of family values, including collective responsibility, self-determination, and cooperative economics. These values help define a communitarian Black society that can be contrasted with an individual rights based dominant society”). Catharine MacKinnon, a critic of relational feminism, might nevertheless be placed in this camp as she also appears to assume that although liberal autonomy and the liberal state work well for men, they oppress women; see, e.g., MacKinnon, A DIFFERENT VOICE note 34, at 157-70, 237-49 (1989) (attacking the liberal state and liberal theory as oppressive of women). Unlike the relational feminists, however, MacKinnon refuses to move beyond the critique of liberalism to define a positive vision of “woman's point of view”; that is, to paint a picture of what a postdomination world would look like. See, e.g., Catharine MacKinnon, FEMINISM UNMODIFIED 45 (1987) (“Take your foot off our necks, then we will hear in what tongue women speak”). Like relational feminists, MacKinnon has been attacked for “gender essentialism”; see generally Angela Harris, Race and Essentialism in Feminist Isgal Theory, 42 STAN. L. REV. 581 (1990) (charging both MacKinnon and West with essentialism).
28. See generally Sherry, For relational feminist discussions that use Gilligan's ideas to criticize liberal law note 38; West, For relational feminist discussions that use Gilligan's ideas to criticize liberal law note 1.
29. See, e.g., Sandel, See generally Sherry note 37 (pointing out flaws in Rawlsian liberalism and arguing for a communitarian vision of state). Some liberals have recently argued that lil>eralism and communitarianism arc not essentially opposed; see, e.g., Bruce Ackcrman, WE THE PEOPLE 1: FOUNDATIONS (1991); William Galston, LUIERAL PURPOSES (1991).
30. The term “postmodern” can mean many things, and I use it somewhat loosely in this article. Angela Harris has described the use of this term in jurisprudential literature: “[Postmodernism] suggest[s] that what has been presented in our social-political and our intellectual traditions as knowledge, truth, objectivity, and reason are actually merely the effects of a particular form of social power, the victory of a particular way of representing the world that then presents itself as beyond mere interpretation, as truth itself.” Harris, WE THE PEOPLE 1: FOUNDATIONS note 2, at 748.
31. See, e.g., Hutchinson, The term “postmodern” can mean many things, and I use it somewhat loosely in this article. note 11, at 1184-85 (“Rather than think of the subject as a unitary and sovereign subject whose selMircctcd vocation is to bring the world to heel through the exacting discipline of rational inquiry, postmodernism interrogates the whole idea of autonomous subjectivity and abstract reason; it places them in a constantly contingent condition of provisionality”); irf. at 1192 (“postmodernists suggest that the traditional notion of authenticity-'to thine own self be true'-is an immediate patient for postmodern surgery”); Young, ‘Hie Ideal of Community, The term “postmodern” can mean many things, and I use it somewhat loosely in this article. note 2, at 300,310 (The idea of the self as a unified subject of desire and need and an origin of assertion and action has been powerfully called into question by contemporary philosophers”); id. at 308-09 (criticizing liberal conception of moral autonomy).
32. See, e.g., I larris, sxtpra note 40, at 585 (arguing that result of “gender essentialism” is “not only that some voices are silenced in order to privilege others… but that the voices that are silenced turn out to be the same voices silenced by the mainstream legal voice of We the People-among them, the voices of black women”).
33. See, e.g., Minow, Making All the Difference, I larris, sxtpra note 40 note 2, at 3-4 (raising worries about the process of categorization that results in the conclusion of difference).
34. Young, Tlie Ideal of Community, Making All the Difference note 2, at 307.
35. See, e.g., Foster, Difference and Equality, Tlie Ideal of Community note 2, at 111 (To be useful in achieving the goal of equality, a diversity rationale should recognize those differences that have been constructed into a basis for, and have resulted in, systemic exclusion and disadvantage for individuals possessing those differences”); Janet E. Halley, Sexual Orientation and tlie Politics of Biology: A Critique of the Argument From Immutability, 46 STAN. L. RKV. 503, 505 (1994) (The postmodern critique of liberal explanations of the self posits that culture, not human nature, gives humans their sexual orientations”); Harris, Tlie Ideal of Community note 2, at 7G2 (discussing the postmodern “problem of the subject” and claiming that “[t]he language of race creates, maintains, and destroys subjects, both inside and outside the law”); id. at 784 (“Racial communities, like other human communities, are the products of invention, not discovery”); Hutchinson, Tlie Ideal of Community note 11, at 1192 (Tlie subject is a cultural creation, not a biological given”); Hutchinson, Inessen’ tially Speaking (Is There Politics After Postmodernism!), 89 MlCH. L. REV. 1549, 1552 (1991) (book review of Martha Minow, Making All the Difference) (The postmodern temper has no eternal truth to offer and no immutable knowledge to dispense; it accepts the historically situated and socially constructed character of truths and knowledges”); id. at 15f>4 (“Differences are culturally imposed and socially policed”); Minow, Making All the Difference, Tlie Ideal of Community note 2, at 19-23 (discussing social construction of difference in context of the “difference dilemmas” it produces).
36. See, e.g., Butler, Difference and Equality note 45, at 326 (construction of the autonomous subject requires domination and oppression); Hutchinson, Difference and Equality note 50, at 1563 (“Domination has been perpetuated and rationalized both by embracing difference (superiority of men over women and white-skinned people over black-skinned people) and by eschewing difference (treatment of women as men and African Americans as white Europeans). Tliese are the advantages that have made the establishment of power overwhelmingly white and male”); Minow, Making All the Difference, Difference and Equality note 2, at 50 (criticizing linkage in law between “difference” and “deviance”); id. at 53 (“Assertions of a difference as ‘the truth’ may indeed obscure the power of the person attributing the difference while excluding important competing perspectives. Difference is a clue to the social arrangements that make some people less accepted and less integrated while expressing the needs and interests of others who constitute the presumed model”).
37. Harris, Difference and Equality note 45 note 2, at 762 (Tlie language of race creates, maintains, and destroys subjects, both inside and outside the law”); Hutchinson, Difference and Equality note 45 note 50, at 1554 (The process of labeling and naming is particularly fraught with dangers when it concerns people. To categorize is to choose, and, in so doing, there is no escaping the responsibility ofjudgment or its context of power”); Minow, Making All the Difference, Difference and Equality note 45 note 2, at 174-77 (identifying labeling theory as antecedent to her social relations approach, and explaining that “labeling theory studies tlie process by which an audience or community identifies some people as deviants. That very pattern of identification has consequences for the labeled person which arc difficult to escape. Those consequences include recurring patterns of exclusion and deviant behavior. Labeling theory thus treats difference as an idea developed by some people to describe others and to attribute meaning to others’ behavior”).
38. See, e.g., notes 4-5 and accompanying text.
39. See, e.g., note 11 and accompanying text.
40. See Hutchinson, note 11 and accompanying text. note 50, at 1550-51 (reviewing Professor Minow's book Making All the Difference and noting that “In the jurisprudential corner of postmodern scholarship, the work of Martha Minow deserves especial attention. Infused with a postmodern perspective, [Minow's] writing stands at the frontiers of modern legal thinking in its efforts to reject and move beyond the modernist project of jurisprudence”).
41. note 11 and accompanying text. note 50 note 2. Minow has also explained her view of difference, and her proposals to cure the “difference dilemma,” in her other work. See generally Minow, Wlien Difference Has Its Home, note 11 and accompanying text. note 50 note 2; Minow, Foreuxtnl: Justice Engendered, note 11 and accompanying text. note 50 note 2.
42. Minow. Making All tlie Difference, note 11 and accompanying text. note 50 note 2. note 2, at 50-74.
43. Id. at 81-83 (discussing case of Rowley v. Board of Educ, 483 F. Supp. 528 (S.D.N.Y. 1980), afTd F.2d 945 (2d Cir. 1980); rev'd 458 U.S. 176 (1982). involving dispute between Rowleys and Board of Education over whether federal law entitled the Rowleys’ hearing-impaired child, Amy, to a sign-language interpreter in all her classes, or whether the school's educational plan, which supplemented Amy's experience in “mainstream” classroom with special tutoring, satisfied the law). Minow notes, id. at 82, that “(b]oth sides [in the case] assumed that the problem was Amy's: because she was different from other students, the solution must focus on her. Both sides deployed the unstated norm of the hearing student who receives educational input from a teacher, rather than imagining a different norm around which the entire classroom might be constructed.”
44. Id. at 51.
45. Id. See also, Young, Justice and the Politics of Difference, Id. note 2, at 169 (T h e attempt to reduce all persons to the unity of a common measure constructs as deviant those whose attributes differ from the group-specific attributes implicitly presumed in the norm. The drive to unify the particularity and multiplicity of practices… turns difference into exclusion”).
46. Minow, Making All the Difference, Justice and the Politics of Difference note 2, at 31-37. 6-1. Id. at 51-52 (describing how U.S. constitutional equality norms “[make] the recognition of differences a basis for denying equal treatment”).
47. Id.
48. Id. at 71.
49. Id.
50. Id. at 50. See also Minow, Group Homes for the Mentally Retarded, Id. note 2, at 113 (“Categorical approaches”-attributing difference to different people-undermine commitments to equality).
51. Id.
52. Id. at 51.
53. Id at 53.
54. Id.
55. Id. at 20,25,27,36.
56. Id.
57. Srr generally id.
58. See, e.g., Minow, Wlien Difference Has Its Home, Srr generally id. note 2, at 128 (“Categories and attributions of difference can perpetuate or increase disparities of power between different groups. Attributions of difference should be sustained only if they do not express or confirm the distribution of power in ways that harm the less powerful and benefit the more powerful”).
59. Minow, Making All Uit Difference, Wlien Difference Has Its Home note 2, at 81-91.
60. Id at 146.
61. Id. at 146-47.
62. See Id., text accompanying notes 59-70.
63. Id at 152.
64. Id text accompanying notes 14-33.
65. Minow, Making All the Difference, Id text accompanying notes note 2, at 152.
66. Robert L. Hayman.Jr., Resumptions of Justice: IMW, Politics, and the Mentally Retarded Parent, 103 HARV. L. REV. 1201 (1990) (criticizing autonomy-and rationality-based presumptions employed in judicial decisions about parenting abilities of mentally handicapped persons, and arguing that relational abilities of such persons should form the basis for a new legal standard of evaluation of parenting abilities).
67. Nevertheless, she ultimately tries to go this route, and I evaluate her attempt in the next section, infra, text accompanying notes 99-116.
68. And a non-sameness-based justification of equality seems entirely unattractive, for reasons I will discuss in the next section. See infra, text accompanying note 150.
69. Infra, text accompanying note 151.
70. See discussion Infra, text accompanying note, text accompanying notes 32-33 (liberal civil-rights methods grounded in belief that mrscategorizations must be supplanted by correct categorizations).
71. Ward, See discussion Infra, text accompanying note note 106, at 936.
72. Id. at 934-15 (developing a concept of projective empathy as an inherent premise of liberalism).
73. U.S. 483 (1954).
74. For discussions of empathy's possible role in the Droum decision, see, e.g., Lynne N. Henderson, Ij-gality and Empathy, 85 MICH. L. REV. 1574 (1987); Ward, U.S. note 106, at 941-42.
75. See, e.g., Minow, Making All the Difference, For discussions of empathy's possible role in the Droum decision note 2, at 50, 74-75 (citing defects of equality principle based on sameness).
76. Ward, Making All the Difference note 106, at 948.
77. Id. at 919.
78. Id.
79. Eg:, Minow, Making All the Difference, Id. note 2, at 230-31.
80. At least one scholar has accused Minow of communitarian essentialism; see Sheila Foster, Community and Identity in a Postmodern World, 7 BERKELEY WOMEN'S L.J. 181,185 (1992
81. See, e.g., sources cited in note 51; see also, from the critical legal studies camp, Duncan Kennedy, A Cultural Pluralist Case for Affirmative Action in Legal Academia, 1990 DUKE LJ. 705, 724 (Though communities are different in ways that are best understood through the non-hierarchical, neutral idea of culture… some differences are not like that. Americans pursue their collective and individual projects in a situation of group domination and group subordination. With respect to… common measures of equality and inequality, we all recognize that some groups are enormously better off than others”).
82. This idea of difference as hierarchy is of course shared by many feminists and applied by them to the analysis of gender issues. See, e.g., MacKinnon, A Cultural Pluralist Case for Affirmative Action in Legal Academia note 34, at 219 (“Difference is the velvet glove on the iron fist of [male] domination”).
83. The tcrni is used by Harris, The Jurisprudence of Ileconstruction, This idea of difference as hierarchy is of course shared by many feminists and applied by them to the analysis of gender issues. note 2, at 159-C6, and Young, Justice and the Politics of Difference, This idea of difference as hierarchy is of course shared by many feminists and applied by them to the analysis of gender issues. note 2.
84. Young, Justice and the Politics of Difference, The Jurisprudence of Ileconstruction note 2, at 156-91 (outlining tenets of “politics of difference” and describing specific group rights such a politics would favor).
85. Foster, Difference and Equality, Justice and the Politics of Difference note 2, at 109, 110.
86. Warns, Jurisprudence of Ileconstruction, Difference and Equality note 2, at 761.
87. 12!. Foster, Jurisprudence of Ileconstruction note 116, at 191.
88. Foster acknowledges that Minow creates discursive space for “a different analysis” when “self-assigned differences” are at stake, id. at 191, but feels that Minow pays too little attention to this aspect of difference and fails to build it into her social relations approach. Id. at 191-93.
89. Foster, Diffeivnce and Equality, Foster acknowledges that Minow creates discursive space for “a different analysis” when “self-assigned differences” are at stake, id. note 2, at 192.
90. Id. at 192.
91. Id.
92. 7rf. at 193.
93. Foster, 7rf. note 116, at 193 (quoting from Alexander Chec, A Queer Nationalism, OUT/LOOK 15, 17 (Winter 1991); see also Kennedy, 7rf. note 117, at 730 (discussing the “irreducible link of commonality in the experience of people of colon rich or poor, male or female, learned or ignorant, all people of color are to some degree ‘outsiders’ in a society that is intensely color-conscious and in which the hegemony of whites is overwhelming”) (citation omitted).
94. Brooks and Newborn, 7rf. note 116 note 119, at 800.
95. Id. at 802.
96. Id. at 802-03.
97. Harris, Id. note 2, at 743.
98. Id. at 743.
99. Sre, e.g., Harris, Id. note 2, at 761.
100. Sfrgrnrmlly Harris, Id. note 2 note 40; Elizabeth Spelman, Id. note 2 note 46.