2014] EQUAL LAW IN AN UNEQUAL WORLD 1023
“And are there other sorrows, beside the sorrows of poverty?
And are there other joys, beside the joys of riches and ease?
And is there not one law for both the lion and the ox?”
–Blake, Visions of the Daughters of Albion1
“One Law for the Lion & Ox is Oppression”
–Blake, The Marriage of Heaven and Hell2
The principle that the law must be general—that it must apply equally
to all—is a fundamental demand of legal morality, associated with the ideal
of the rule of law.3 But many worry that this generality, the “formal” equality
of law, props up substantive inequalities in a hierarchical world in which
people have different capacities, endowments, and fundamental interests.
For example, if the law is forbidden to recognize that there are a dominant
race and subordinate races, and respond to those facts (e.g., with affirmative
action), it can reinforce that hierarchy, and it has the chutzpah to do so
under the very name of “equality.” Thus, Derrick Bell has claimed that
“despite law school indoctrination and belief in ‘the rule of law’—abstract
principles lead to legal results that harm blacks and perpetuate their inferior
status.”4 Morton Horwitz has said that the rule of law “creates formal
equality” but in doing so “promotes substantive inequality by creating a
consciousness that radically separates law from politics, means from ends,
processes from outcomes.”5 Catharine MacKinnon has decried the
conventional rule-of-law command that like cases be treated alike for
“tell[ing] women that they are entitled to equal treatment mainly to the
degree they are the same as men.”6 Robin West has characterized the
standard conception of the rule of law as “a serious threat to progressive,
egalitarian, and identity-based politics.”7 Nor is this a purely contemporary
worry. It goes at least as far back as Rousseau, who blamed the law itself for
entrenching and legitimating inequality: “all the inequality which now
1. WILLIAM BLAKE, VISIONS OF THE DAUGHTERS OF ALBION 9 (Robert N. Essick ed.,
Huntington Library & Art Gallery 2002) (1793).
2. WILLIAM BLAKE, THE MARRIAGE OF HEAVEN AND HELL 83 (Michael Phillips ed.,
Bodleian Library, Univ. of Oxford 2011) (1793).
3. See generally Paul Gowder, The Rule of Law and Equality, 32 LAW & PHIL. 565, 603–04
(2013) (summarizing literature on generality).
4. Derrick Bell, Racial Realism, 24 CONN. L. REV. 363, 369 (1992).
5. Morton J. Horwitz, The Rule of Law: An Unqualified Human Good?, 86 YALE L.J. 561, 566
(1977) (book review) (emphasis omitted).
6. Catharine A. MacKinnon, Reflections on Sex Equality Under Law, 100 YALE L.J. 1281,
1290–91 (1991); see also Toni M. Massaro, Empathy, Legal Storytelling, and the Rule of Law: New
Words, Old Wounds?, 87 MICH. L. REV. 2099, 2100 (1989) (providing another feminist critique).
7. ROBIN L. WEST, RE-IMAGINING JUSTICE: PROGRESSIVE INTERPRETATIONS OF FORMAL
EQUALITY, RIGHTS, AND THE RULE OF LAW 5 (2003).