by Martha Albertson Fineman
The societal frame of the “economically disadvantaged” is rooted in a distinction between a conceptual status of equality and the actuality of discrimination and disadvantage. This paradigm provides the governing logic for both criticism and justification of the status quo. This Article questions whether and to what extent this equality/antidiscrimination logic has lost its effectiveness as a critical tool and what, if anything, should be the foundation of the rationale that supplements or even replaces it.
The theme of this Article for the SMU Law Review Forum focuses us on the challenges faced by the “economically disadvantaged” in the past decade and in the future. This framing is rooted in a distinction between that conceptual status of equality and the actuality of discrimination and disadvantage. This is the lens through which contemporary legal culture tends to assess the nature and effect of existing laws and determines the necessary direction of reform. As such, this paradigm provides the governing logic for both criticism and justification of the status quo. It is rooted in an understanding of the significance of the human being and a belief in their fundamental parity under law that also asserts the inherent value of individual liberty and autonomy, and thus is skeptical of state intervention into the “private” sphere of life.I believe that one of the most significant questions for the twenty-first century for those concerned with “the disadvantaged” has to be whether and to what extent this equality/antidiscrimination logic has lost its effectiveness as a critical tool and what, if anything, should be the foundation of the rationale that supplements or even replaces it. To raise questions about the current dominant paradigm is not to argue that equality and antidiscrimination are not important or necessary concepts.
Equality and antidiscrimination were unarguably essential steps in the evolution of a just society. Prior to the mid-twentieth century, formal rules, as well as functioning norms, were built on assertions of fundamental differences among groups defined by gender, race, and other characteristics. These distinctive group categories also established a world of hierarchical, legalized identities in which some were susceptible to different, often demeaning treatment. However, with the formal distinctions now removed and equal access the norm,1 it becomes apparent that the problems in society often transcend discrimination and exclusion from social institutions. Indeed, there may be substantial problems with those institutions and their organization not revealed by the jurisprudential logic that flows from an equality/antidiscrimination paradigm, which may place obstacles on the ability to remedy (or even address) existing inequalities. An equality model or nondiscrimination mandate certainly remains the appropriate response in many instances: one person, one vote, and equal pay for equal work are areas where equality seems clearly suitable. However, equality is less helpful—and may even be an unjust measure—when applied in situations of inescapable or inevitable inequality where differing levels of authority and power are appropriate, such as in defining the legal relationship between parent and child or employer and employee. Such relationships have historically been relegated to the “private” sphere of life—whether family or market—away from state regulation. When explicitly addressed, situations of inevitable inequality are typically handled in law and policy either by imposing a fabricated equivalence between the individuals or by declaring that an equality mandate does not apply because the individuals to be compared are positioned differently. An example of the imposition of fictitious equality in response to inevitable inequality is evident in situations involving parties who occupy obviously unequal bargaining positions, like the contract that is fabricated in the employment context. The distinction in the legal treatment of children as compared with adults also exemplifies a differently positioned resolution for unequal legal treatment. In both instances, state responsibility for ensuring equitable treatment for differently positioned individuals is minimized or obscured within the overriding framework of equality.”
Martha Albertson Fineman, Beyond Equality and Discrimination, 73 SMU L. REV. F.51 (2020) https://doi.org/10.25172/slrf.73.1.7.