Publication Date

Summer 2006

Journal

Israel Law Review

Abstract

Modern equality as derived from the Enlightenment has always had problems with difference. Whereas feudalism set inequality as the baseline, modern society sets equality as the baseline, but allows for unequal treatment based on differences. Thus, differences among the sexes have been invoked to treat women as inferiors and racial differences to deprive racial minorities of equal treatment. Liberalism has countered these moves by promoting a conception of equality as identity according to which race or gender-based differences are irrelevant for purposes of political participation or employment. More recent claims for equality based on identity politics which callfor a type of equality that accounts for differences pose vexing problems for liberalism. How should liberalism handle this? By creating exceptions to generally applicable laws? By promoting group-based autonomy and self-government at the risk of balkanizing the polity? Or on the contrary, by rejecting demands for recognition of differences and reinforcing equality as identity? After analyzing the dialectic of equality, this Article argues that, based on commitment to the premise that all human beings share an equal status for possessing the same capacity for moral choice, pluralism offers a better framework than liberalism for the best possible reconciliation of identity and difference. This implies a departure from the monolithic nation-state toward multi-layered interconnected centers of collective autonomy and selfgovernment.

Volume

39

Issue

2

First Page

51

Last Page

80

Publisher

Hebrew University of Jerusalem

Disciplines

Civil Rights and Discrimination | Jurisprudence | Law | Law and Gender | Legal History

Comments

Special Issue: In Honor of Professor Claude Klein

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