Joel Feinberg’s magnificent four volume work, The Moral Limits of the Criminal Law, represents a sustained and comprehensive argument regarding what conduct is appropriately regulated through criminal prohibitions and sanctions. Feinberg’s conclusions are essentially those of the Millian liberal: Conduct that causes harm or offense to others may be criminalized, but conduct that is harmful only to the actor or that is a harmless immorality may not be. Feinberg’s governing principle, however, is not Mill’s maximization of utility but is instead respect for individual autonomy. For Feinberg, respect for autonomy delimits the legitimate boundaries of concern with others’ conduct insofar as the concern is expressed through criminal prohibitions.

The purpose of this paper is to attempt to lay out a framework, both analytical and historical, in terms of which deeply conflicting and surprisingly complicated claims about equality and egalitarianism may be discussed. My aim is to help to make more intelligible what is at issue in contemporary disputes, and hence what kinds of arguments and evidence bear on and might illuminate these competing claims. I then exploit this conceptual framework to sketch a way of organizing some of the voluminous literature in the on-going debate about equality, that is, to bring into focus the dimension(s) in which the issues are being joined, and from which historical tradition an argument emerges, in hopes of clarifying these debates.

It has been argued that the difference between liberal states and theocratic, communist or fascist states is not that the liberal states promote different ideals of the good, but that they promote none. Unlike illiberal states, which regard it as a primary function of the state to prescribe the moral character of society, liberal states shun such attempts and allow freedom to citizens to develop their own conceptions.

The aim of this paper is to analyze the notions of “conception of the good” and “neutrality” and to suggest a perspective which provides a middle ground between strict perfectionism, on the one hand, and complete neutrality, on the other. This perspective would allow plurality and diversity without resorting to absolute neutrality. It would involve some form of perfectionism without resorting to coercion. I will assert that liberal states do resort to some forms of perfectionism in conducting their policies. I will further argue that the policy they should adhere to is one of impartiality rather than one of neutrality.

Despite the neglect by political liberals in the distant and recent past to take collective rights seriously, the problem of collective rights is beginning to capture the attention of an increasing number of philosophers. This new concern for collective rights seems to be “the result of a recent interest in the value of communities.” I shall clarify and assess some of the chief categories of collective moral rights talk and proffer some criteria of adequacy for a philosophical analysis of collective moral rights. Finally, I set forth and defend an analysis of justified collective moral rights.

The excerpts introducing this article are drawn from two recent decisions of the Supreme Court of the United States on equality rights. Illustrating the directional changes in the nature of equality rights, they vary from antagonism to ambivalence towards remedial relief for disadvantaged groups. In particular, they illustrate the current debate between traditional individual rights and a new communitarian conception of equality rights.

Affirmative action generates so much controversy that very often proponents and opponents both fail to understand the other’s position. A recent work by Michel Rosenfeld convincingly argues that the incommensurability of the opposing sides is based on fundamental disagreements about the meaning of such concepts as equality and justice: “the affirmative action debate is not between persons who are ‘pro-equality’ and others who are ‘anti-equality’. Both the most ardent advocates of affirmative action and its most vehement foes loudly proclaim their allegiance to the ideal of equality.” Within a liberal framework, two conceptions of equality are commonly defended—formal and substantive equality of opportunity. Both conceptions assume background conditions of the scarcity of goods, a need to compete for educational, social and economic benefits, and the value of rewards for fair competition as a means to individual self-development and self-realization. In the first section, I outline each conception briefly, summarize the sorts of affirmative action each defends, and show that the irreconcilability of the opposing sides is ultimately grounded in different conceptions of the self. I then go on to argue that both conceptions limit our understanding of selves and ultimately constrain attempts to achieve equality in a context in which individuals are also members of groups with identities formed in historical contexts of discrimination.

Liberalism is often identified with the claim that individuals should have a large space for decisionmaking into which the state is not morally justified to intrude. On this “negative liberty” conception of liberalism, the boundaries of that space are or should be set by a package of rights against the majority. Individuals can appeal to such rights to override majority decisions that seek to intrude into the space of negative liberty. If this space of negative liberty is preserved, for example, through courts empowered to strike down infringing laws, such liberals suppose that a fundamental interest of all individuals is served. This is the interest in autonomy, in being able to make, revise and carry out decisions about how to live in accordance with one’s own preferences.

For those who believe in the values of liberalism and democracy the state is under a political obligation to seek the common welfare of its citizens. In furtherance of this domestic duty, it retains among its external rights and powers that right of self-defense which has been assigned to states under other ideologies.

Recently, in Canada both the Federal Government and various provincial governments have introduced a series of measures intended to address gender inequalities in the workplace. These measures are of two basic types. Employment equity policies involve the implementation of affirmative action programmes designed to encourage the hiring and promotion of more women in, for example, the civil service. Pay equity policies have sought to institutionalize the principle of equal pay for work of equal value or, to use the American terminology, comparable worth. The aim of this paper is to resurrect the presently out of fashion view that the principles of affirmative action and comparative worth that underlie employment equity and pay equity can be defended on the grounds that they contribute to the realization of an ideal of equality of opportunity between men and women in Canadian society. This view, although once prevalent among those concerned with gender issues, has been pushed aside, largely because of doubts about the visionary depth of the ideal of equality of opportunity. It has been replaced instead by an ideal of equality of results which emphasizes the goal of reducing the gender wage gap. It is my intention here to formulate a principle of equality of opportunity that can incorporate recent feminist legal and political philosophy in a way that offers a promising way to analyze issues posed by gender inequalities in the workplace and, as a result, provide a clear rationale for the recent employment equity and pay equity initiatives in Canada.

Analyses of the social contract described by Thomas Hobbes have proceeded in three major directions. First, some readers naturally have felt that Hobbes viewed the primal charter as a genuine outcome of events which truly occurred. Other exegetes have contended that the story of the formation of the social contract was a deliberate fiction—either an artful narrative designed to elicit orderliness, or a heuristic model designed to spark hypothetical reasoning about what would have occurred in a primeval context with specified conditions. Still other analysts affirm that Hobbes used the tale of the social contract as a warning against the evils that plague a society which descends into civil strife.

What is equality? How is it generally understood? What customs and norms produce its egalitarian features? What are its cultural and social markers?

Preoccupied with these questions I read A Theory of Justice. It was a brilliant book, very much like chess. It told me a lot about white men’s dreaming and nothing about the life I know. My reality in North America tells me that equality as “autonomous and the same” is a dream only privileged white men can have. Not only are they the ones with the luxury to dream this myth. Only they are “by nature free and equal” to do so. Moreover, only they construe themselves as “the natural proprietor of (their) own person(s) and capacities owing nothing to society for them.” As all-powerful patriarchs, they have imperiously universalized their myth to conceal their social, political, legal, economic, military, educational, and professional privileges.

Law is an interpretive enterprise. To grasp the meaning of any corpus of law, whether it is found in a statute, a series of common law decisions, or a constitution, requires an interpretation of the texts which comprise the law in question. The interpretation of legal texts is informed and disciplined by the principles which best support those texts as perceived by present day readers. The best interpretation is the one which both coheres with the body of law interpreted (fits the substance of past decisions), and is consistent with the most principled justification for those past decisions.

The perfectly competitive market of economic theory often enters political philosophy because it can be represented as illuminating important values. Theorists who are enthusiastic about the heuristic potential of the market claim that we can learn much about individual liberty, the promotion of mutual advantage and efficiency in the distribution of goods by studying it. However, a principal limitation of the market for many theorists is its supposed insensitivity to the demands of egalitarian justice. According to the standard charge, markets—even idealised ones—are hostile to the achievement and maintenance of an equitable distribution of resources. It is striking, then, that a leading exponent of egalitarian justice like Ronald Dworkin should argue that there are very deep and systematic links between equality and the market. He contends that, contrary to the received view, “the best theory of equality supposes some actual or hypothetical market in justifying a particular distribution of goods and opportunities.” Moreover, the articulation of Dworkin’s influential egalitarian account of liberal political morality depends on acceptance of the market as an ally of equality. Thus Dworkin claims not only that the market plays a crucial role in the elaboration of a doctrine of distributive justice but also that it illuminates the distinctively liberal commitments to the protection of extensive individual liberty and to the requirement that the state must be neutral between different conceptions of the good. The aim of this paper is to raise some doubts about the soundness of one of the fundamental onnections Dworkin draws between the market and distributive justice.

The central feature of modern liberal political morality is the principle of equal respect for persons. According to Ronald Dworkin, governments have an obligation to treat each person as an equal, with equal concern and respect. In distributive contexts, this principle stipulates that each individual is entitled to an “equal” share of social resources, where equal is a function of what is required by the abstract principle of equal concern and respect. For Dworkin, this requirement means that liberal justice is fundamentally concerned with treating people as equals and not equally. By treating someone as an equal he supposes that government must treat each of its citizens with equal dignity, regarding her as an individual with a standing interest in leading a truly good life. By contrast, to treat someone equally, according to Dworkin, “...requires that government treat all those in its charge equally in the distribution of some resource or opportunity....” To treat persons as equals, that is, with equal concern and respect, is to arrange for all individuals to receive those material goods and opportunities that make living a good life possible. For my purposes, I will assume that treating people as equals is the constitutive feature of liberal equality.

Anthony Kronman’s 1980 article “Contract Law and Distributive Justice” has become something of a classic in the philosophy of private law. Kronman argued that any theory of contract which relied upon voluntariness was necessarily concerned with distributive justice, since voluntariness was itself a distributive notion. The argument targeted libertarian accounts of contract. Given the distributive nature of voluntariness, the claim went, libertarians could not give an adequate account of contract without violating their own injunction against appeal to the “fair division of wealth among the members of society”(472). It is easy to see why Kronman’s article attracted so much attention. The idea that voluntariness is not distributive is central not just to libertarianism but to liberalism generally. Kronman’s critique, though targeting a not terribly common species of liberalism, threatens the genus itself.

The ways in which a society provides for people who, for one reason or another, are more socially and economically dependent throws into sharp focus the problems of equality as a political construct. The basic dilemma of social dependency is that of reconciling the responsibility of the state to ensure equality with the rights and needs of those who are dependent. The social, legal and economic policies in place at any given time in history reflect the ways that principles of justice have legitimated differential treatment. To study the case of intellectual disability, therefore, is to reflect upon the legal microcosm of the struggle for social justice and the parameters of political obligation to ameliorate inequality.

Immigration Law has as its primary subject the stranger: the outsider who is under no obligation of allegiance to the state, who is not represented in its political processes, and whose needs and interests are, in most situations, accorded less concern than those of people who already participate in the social and political life of a community. The immigrant stranger may, of course, appear in a variety of guises. He may be a wealthy entrepreneur or investor who belongs to another political community but who chooses to emigrate to advance his own or his family’s well-being. Alternatively, the stranger may be a person who has experienced life solely within the confines of a community that is plagued by economic deprivation. Such a person may be crippled by physical and emotional need or cultural fragmentation. His search is for a new social environment in which, it is hoped, these constraints will not be present in such exaggerated or severe measure. Sometimes the needy stranger will be seeking an immediate escape from a political regime which offers her no protection or which aims at her very destruction, and sometimes she will be searching for deliverance from the incessant, limbo-like tedium or the multitude of unspeakable terrors to which one is exposed in a refugee camp. Whatever the guise in which he or she appears, the stranger is someone with whom the modern political state must come to terms. He or she cannot be ignored.