Alex Raskolnikov (Columbia) presented “Formal Equality and Rawlsian Justice” at the Columbia Law Faculty workshop on November 13. Here is the abstract (finished after the jump):

Few political theories have been more scrutinized, criticized, valorized, and reinterpreted than John Rawls’s A Theory of Justice. Yet for all this attention, one of this theory’s core ideas has remained largely unrecognized by scholars and unacknowledged by Rawls himself. This idea is formal equality—the claim that law should be the same for rich and poor alike. This Essay argues that formal equality is required by some of Rawls’s principles, is consistent with all of them, and is reflected in almost all policies suggested both by Rawls and his interlocutors.

Recognizing the role of formal equality in Rawls’s theory resolves two longstanding puzzles and suggests a richer vision of Rawlsian justice. The first puzzle is Rawls’s persistent preference for proportional taxation; the second is his emphatic rejection of welfare-state capitalism. The former seems inconsistent with Rawls’s egalitarian aims; the latter begs the question of why Rawls defined welfare-state capitalism as he did. This Essay resolves both puzzles with a single argument. Both progressive tax and welfare-state capitalism require explicit redistribution from the rich to the poor and violate formal equality, so neither is appealing to Rawls. At the same time, an ideal society that Rawls does endorse—property-owning democracy—is formally equal, further supporting this Essay’s claim. The same is true of predistributive policies more broadly. A strong egalitarian potential of these policies—of which property-owning democracy is but one example—confirms that formal equality may be powerfully progressive. Finally, property-owning democracy and predistribution are not the only formally equal means of achieving greater substantive equality. A universalist welfare state very different from Rawls’s welfare-state capitalism offers another, complementary path to achieving Rawlsian justice both within his ideal theory and in the real world.