Andrew Fulford Archive Authors Philosophy

Peter Westen’s “The Empty Idea of Equality”

About 33 years ago Peter Westen wrote a seminal article for the Harvard Law Review, “The Empty Idea of Equality”. Though he uncovered some profound flaws in the way modern legal discourse conceptualizes the term, to this day none of his warnings have been heeded. The following will summarize some of the more perennial aspects of his argument, present a brief critique of one part of his position, and discuss its practical significance.

Westen’s Argument

The abstract of the article states his purpose up front: “In this Article, Professor Westen argues that the endurance of the principle is due to the fact that it is empty of content” (537). The concepts of rights and equality, have appeared in arguments that obscure their relationship by misconstruing them as in contrast with each other, (539). On the contrary, Westen judges that equality ultimately collapses into rights (542), if the terms are defined respectively as “people who are alike should be treated alike” (539) and “all claims that can justly be made by or on behalf of an individual or group of individuals to some condition or power” (540). He also thinks that attempting to uphold rights by appealing to equality has the tendency to confuse right judgment (542).

The paper divides into three sections defending these claims, but for my purposes only the first and the third are relevant. In the first he argues that the equality proposition is a tautology and is indistinguishable from distributive justice. In the third he makes his case that the use of equality language simply adds confusion to jurisprudence. (542)

The Vacuity of Equality

Westen begins by turning to Aristotle, who gave two principles related to equality (543):

Equality in morals means this: things that are alike should be treated alike, while things that are unalike should be treated unalike in proportion to their unalikeness

Equality and justice are synonymous: to be just is to be equal, to be unjust is to be unequal.

He then turns to ask: what connects the indicative to the imperative here, the “things that are like” to the “should be treated alike”? To answer this question, he focuses on what both halves of the proposition mean.

On the indicative side of the statement, he proceeds by a way of negation to rule out what the principle cannot sensibly say. Firstly, it would be absurd to assert people are alike in every respect, as this is manifestly false (544). Secondly, we cannot say it means all people are alike in some respects, because this is true of all people; everybody has something in common with others (544). Alert readers might realize that Westen has overlooked another possibility here; I will return to this in my critique below. Finally he contends that the phrase means “morally alike” (544).

Yet, he argues that “morally alike” objects do not exist in nature. Rather, people establish moral similitude when they define moral categories; to say that people are morally alike is therefore to articulate a moral standard of treatment by reference to which they are, and thus are to be treated, alike (545).

This brings us to the second half of the principle, “should be treated alike.” Westen once again rules out impossible meanings. Firstly, he takes for granted that the injunction cannot require action that is obviously immoral on separate grounds (546). Secondly, he argues in a familiar vein that “like treatment” does not exist in nature. Finally, he concludes that the rule means “to treat them in accord with a moral rule by which they are determined to be alike,” (547). Westen ties his threads together, explaining that equality is thus a vacuous concept:

So there it is: equality is entirely “[c]ircular.” It tells us to treat like people alike; but when we ask who “like people” are, we are told they are “people who should be treated alike.” Equality is an empty vessel with no substantive moral content of its own. Without moral standards, equality remains meaningless, a formula that can have nothing to say about how we should act. With such standards, equality becomes superfluous, a formula that can do nothing but repeat what we already know. (547)

He continues his argument for the vacuity of the concept by focusing on the source of our moral judgments. As he puts it, relationships of equality derive from established rules, and to say objects are equal is to say they both satisfy the criteria of such governing rules (548-549). Westen concurs with the Humean argument against ethical naturalism, writing that “statements of equality presuppose the presence of empirical traits that we decide ought to carry certain moral consequences,” (549-550n40). He thus concludes that principles of “impartiality”, “consistency,” or “equality” in judgments give us no new information beyond what we have already decided in forming our rules. It simply says “the rule should apply to those to whom it applies” (551).

Equality is Distributive Justice

Justice according to Aristotle’s definition is to give what is due, but to know what is due we must look to other moral standards (557). For this reason justice and equality can be reduced to each other, and Westen explains how:

(1) To “give persons their due” entails giving them the treatment they deserve;
(2) To give persons the treatment they deserve entails treating them in accordance with moral rules;
(3) To treat persons in accord with moral rules entails: (a) determining whether they possess those criteria determined to be morally significant by the rules; and (b) according those who possess the criteria the treatment prescribed by the rules, while not according such treatment to those who do not possess the criteria;
(4) To accord those who possess the criteria the treatment prescribed by the rules, while not according that treatment to those who do not possess the criteria, entails treating alike those who are alike in morally significant respects while treating unalike those who are unalike in the morally significant respects; and
(5) To treat alike those who are alike in the morally significant respects while treating unalike those who are unalike in the morally significant respects entails “treating likes alike” and “treating unalikes unalike”

Just as justice can be reduced to equality, equality can be reduced to a statement of justice; one simply reverses the sequence of steps set forth in the previous paragraph. (557)

How Equality Language Obscures Judgment

Westen provides several lines of evidence towards the conclusion that “equality” language makes ethical analysis more confusing; for my purposes I will mention three. Firstly, he suggests that equality masquerades as an independent norm, and so conceals the real nature of the substantive rights it merely alludes to. Secondly, he argues that by framing rights through comparing individuals to others, “equality” misleads us into thinking one person’s due is identical to another’s in all contexts (579). Thirdly, he contends that the sacred aura around the word manipulates the emotions of those making decisions when it is invoked (592-593).

Equality, Westen judges, hides both the existence of the substantive moral principles it includes from outside itself, and also their specific content. Further, the way in which equality can implicitly refer to any moral rule without explicit affirmation has great potential to fog vision of the ethical scene under analysis. In sum, equality is rhetorically dangerous because it does in a roundabout way what could be done directly, by appealing to the moral principles it includes indirectly (580).

The principle also tends to obscure the difference between absolute equivalence and relative equivalence (581). When Westen casts about for the source of this confusion, he argues it derives from mistaking morality for mathematics:

To say that one person is morally or legally “like” another in respect to some treatment is to say that, despite the nearly infinite differences between them, the features they share are made relevant by the particular moral or legal rule at hand. But it does not follow that, because their common features are made relevant by that rule, they are also relevant under other rules. Indeed, in contrast to mathematics, it is nonsensical to suppose that all moral and legal rules possess the same criteria of relevance. Yet it is an error induced by equality itself – by the tendency to assume that what makes for equality in mathematics also makes for equality in law and morals. (583-584)

And these two sources of confusion are amplified by the third capacity of the word to obscure judgment, its emotionally compelling sound. As he writes:

[B]ecause the proposition that likes should be treated alike is unquestionably true, it gives an aura of revealed truth to whatever substantive values it happens to incorporate by reference. As a consequence, values asserted in the form of equality tend to carry greater moral and legal weight than they deserve on their merits. That is why arguments in the form of equality invariably place all opposing arguments on the “defensive.” (592-593)

Though Westen writes much more, and in more concrete detail, these points are sufficient for my purposes. I will now turn to some critical comments on his argument.

Nominalism and Equality

As I mentioned above, Westen’s argument overlooks a fourth possibility in searching for a sense in which people are equal: that is, people can be alike in specific respect x, and not simply alike in that they “have some things in common”. For example, a subset of human beings can be alike in that they are orphans; they are children, and both of their parents have passed away. This is not something that applies to all human beings, and it is not merely a stipulation of moral equivalence by a legal authority. It’s an objective property that a subset of human beings holds in common. Because Westen overlooks this possibility, he cannot see any alternative but to turn to a Humean/nominalist/positivist solution to his problem, but he has in fact overlooked reality at this point.

In fact, the truth is that individual human beings are alike in some respects, and unalike in others, but that among the ways they are alike are in the things that fulfill them according to their nature. That is, what is good for them is something they all hold in common. Human beings have an objective nature that finds its fulfillment in specific goods: they are rational animals, and so knowledge of the truth, preservation of bodily life, reproduction, work, leisure, and society all naturally flow from being human, and fulfill human capacities. When an individual capriciously prevents another from achieving these goods for themselves, that individual wrongs the other.

And to wrong someone is contrary what is right; to put it another way, since every person is objectively aimed at the fulfillment of certain capacities, they have rights according to the various kinds of good that are entailed by their various capacities, and to deprive them of those goods is to violate their rights. Therefore, good legal rules are reflections of objective goods we can discover in human beings, which derive from their nature, which is something all people have in common by virtue of being human.

The consequence of these points for Westen’s argument is that equality is a little less vacuous than he suggested. It’s not simply the case that people are equal insofar as we have decided we will treat them the same in certain contexts. In fact, our rules tend to reflect, and are right to the degree that they do reflect ways in which people actually are the same. All human beings have human nature in common, and human nature has objective capacities and modes of fulfillment.

The Value of Westen’s Argument

Nevertheless, Westen’s argument is far from useless. His warnings about the potential effects of the “rhetoric” of equality are salutary. Equality language does have the potential to be used well, since it can simply point to the fact that all human beings have some objective goods in common. But it also has a real danger. Insofar as it takes our eyes off of objective human nature and the various kinds of good it achieves when it flourishes, and puts our eyes on itself, on the word “equality”, it has the potential to obscure moral reality.

He is right that justice and equality are the same thing. Insofar as equality taps into our basic desire for and recognition of the good of justice, it carries great emotional weight. Great emotional weight attached to something potentially very misleading is dangerous. More specifically, it can be used to smuggle in conclusions to moral disputes without having to give argument for those conclusions, and appeal directly to the emotions to bypass reason.

What Should We Do?

Given my points and Westen’s, how can ethicists, politicians, judges, lawyers, and anyone else practicing ethical reasoning (which is all of us on some level) improve their way of thinking and speaking about justice? One suggestion comes from Westen himself: we can use equality to demystify equality. He writes:

Equality will cease to mystify – and cease to skew moral and political discourse – when people come to realize that it is an empty form having no substantive content of its own. That will occur as soon as people realize that every moral and legal argument can be framed in the form of an argument for equality. People then will answer arguments for equality by making counterarguments for equality. Or simpler still, they will see that they can do without equality altogether. (596)

While he is wrong that equality refers to nothing more than our own moral conventions, he is right that equality can be reduced to justice, and so that it simply sums up what we learn by analyzing what is good for human beings as such. For this reason, as he says, every moral argument could be rephrased as an equality argument, since all of them, if they are rational at all, are not contending people are alike in all ways, but that they are alike in some specific ways, and so that they should be treated equally in a given context. If both sides of every moral argument learned to do this, the word would stop functioning like a talisman, and arguments would be forced onto their real battlegrounds.

Real moral disagreements are never essentially about an abstract “equality” vs. some other principle. They are about disagreements over whether people are relevantly equal in specific ways within the circumstances under consideration. Clarifying that this is the crux of a disagreement can do nothing but help if our goal is to find agreement through reasoning with one another.