Raskolnikov Presents A New View Of Formal Equality Today At Columbia

Alex Raskolnikov (Columbia) presents A New View of Formal Equality at Columbia today as part of its Faculty Workshop Series: 

When it comes to equality under the law, the contemporary focus is decidedly on substance rather than form. This is especially so when economic inequality is concerned. Formal equality of law—understood as the absence of formal legal distinctions based on the material resources of individuals—has few defenders. At least since Rawls, formal equality has been viewed as a cause of material inequality, a foundation of laissez-faire capitalism, a fig leaf of sorts designed to give a veneer of justice to the unjust exploitation of the weak in a market economy. Whatever equality under the law means in contemporary view, formal equality is not it.

This Essay argues that the contemporary view is mistaken. Legal reforms consistent with formal equality of law may, indeed, lead to more inequality, but they may also lead to less. In fact, a commitment to formally equal law offers a counterweight to the key neoliberal maxim that regulation of a market economy should aim only at maximizing economic efficiency.

Moreover, far from being synonymous with laissez-faire, formal equality supports a transition from the welfare-state capitalism that Rawls disfavored to the property-owning democracy that he extolled.

[A working draft is available on request: [email protected]]

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