The Journal of Contemporary Legal Issues


The idea of equality, and even the word equality, exercises great moral and political force, but it is a notoriously protean idea. Equality can mean many things, many of them in tension with one another or utterly contradictory to each other. Nonetheless, a Lockean idea of equality has predominated in American political thought, and—imperfectly, like any ideal put into human practice—in American life throughout most of American history. The Lockean idea of equality is roughly that human beings have equal natural rights to life, liberty, and property: with the implication that political society should ensure these rights through the impartial rule of law, with equality of civil opportunity, but without venturing to ensure equal or identical outcomes in life.

To be sure, there are counter-traditions in American history. The socialist movement, which had more than negligible strength early in the twentieth century, called for more equality of outcome, or at least less inequality of material condition. Earlier, in the decades leading up to the civil war, there were defenders of southern slave society who rejected the Lockean idea entirely, denied that human beings are naturally free or have equal natural rights, and denounced free labour and free markets as cruel, heartless, and wanting in the patriarchal kindness of the southern slave system. (George Fitzhugh, a leading ante-bellum writer in this vein, was a great favourite of the Marxist historian Eugene Genovese, for obvious—if arguably somewhat perverse–Marxist reasons.)

In the immediate aftermath of what might be called the American civil rights era, or even the civil rights revolution, of the early to mid-1960s, and with the resurgence of egalitarian radicalism which rocked America and much of the Western world in the later 1960s, there arose an academic movement, associated prominently with the names of John Rawls, Ronald Dworkin, and later Amartya Sen and Martha Nussbaum, though by no means limited to them, offering egalitarian theories that sought to meld or synthesise greater equality of outcomes with the Lockean or Enlightenment ideas of individual liberty, equality of opportunity, and equality before the law. These theories won considerable attention and adherence in academic circles, although the degree to which they resonated off campus might be questioned. They certainly represented an attempt—admirable from many points of view— to preserve and enhance the best of Lockean or classical liberal ideas and social achievements with a vision of greater equality of resources, happiness, or human outcomes.

At roughly the same time that these theories were developed, there germinated—also, originally, in academic circles—a very different idea of equality. Under the portmanteau name of “critical theory”, this idea, or congeries of ideas, was more preoccupied with group equality, and what it considered the oppression of victim groups, than with individual inequalities. Critical theory, in its various guises, tended to repudiate, and often vehemently to denounce, Lockean or Enlightenment values of individual and civil liberty, equality of opportunity, and the impartial rule of law. All these, and more, in the view of much critical theory, are mere masks for oppression and racism, and ripe candidates for cancellation.

Unlike the theories associated with Rawls, Dworkin, Sen, and Nussbaum, critical theory, especially in the guise of “critical race theory” has gained wide—though sharply contested—public adherence or ascendancy, not only among college and university students and faculty, but in the public elementary and secondary schools (and in many private ones), in corporate bureaucracies and in the media, and in federal and state government agencies and bureaucracies. The claims, and even the jargon, associated with critical race theory are also making themselves felt, and arousing controversy, beyond the United States, especially—although perhaps almost exclusively—in Anglosphere countries such as Britain, Canada, Australia, and New Zealand.

With the spread of critical theory among people—and institutions—who proclaim egalitarianism, the theories associated with Rawls and Dworkin seem increasingly dated and almost quaint: relics of a bygone ideological era.

It seems worth reviewing these once-honoured theories, at least briefly; to ask whether or to what extent they succeeded or failed in their own terms; and to compare them to the critical movements which now promise or threaten to sweep the country (and perhaps a few other countries as well).





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Larry Alexander & Steven D. Smith

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