Practical equality and the limits of second best strategies for justice

F Tolson - 2019 - HeinOnline
2019HeinOnline
Professor Robert Tsai argues that doing the hard work of equality sometimes requires the
use of doctrines that are not expressly equality-based but can achieve the same goals as
equality doctrine. These" second-order" doctrines, which include fair play, reasonableness,
anti-cruelty, and free speech, are vehicles through which equality can be vindicated without
triggering the controversy that often walks hand in hand with the quest for equal treatment.
Even for those of us who believe in making overt demands for equality, we do not always …
Professor Robert Tsai argues that doing the hard work of equality sometimes requires the use of doctrines that are not expressly equality-based but can achieve the same goals as equality doctrine. These" second-order" doctrines, which include fair play, reasonableness, anti-cruelty, and free speech, are vehicles through which equality can be vindicated without triggering the controversy that often walks hand in hand with the quest for equal treatment. Even for those of us who believe in making overt demands for equality, we do not always agree on the proper means of achieving these goals. Moreover, these demands can complicate the struggle to protect equality norms when they are under assault, as they are now; second order doctrines are important alternatives when the goal is to preserve gains as opposed to breaking down existing barriers. Professor Tsai's book is not only important, but it lays out a much-needed path forward for achieving equality in challenging times. For all of its attributes, however, the book also raises important questions about the circumstances in which the demand for equality must be overt, express, and uncompromising. While second-order doctrines are an important part of any strategy seeking to create a more just society, it is vital that they do not replace first-order calls for equality and justice. Equality must be both practical and radical.
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