The Logic of Equality: A Formal Analysis of Non-Discrimination Law

Vol. 15 No.10 (October 2005), pp.911-916

THE LOGIC OF EQUALITY: A FORMAL ANALYSIS OF NON-DISCRIMINATION LAW, by Eric Heinze. Ashgate Publishing, Ltd., 2003. 152pp. Hardcover. $99.95/£55.00. ISBN: 075462319X.

Reviewed by Douglas Grob, Department of Government and Politics, University of Maryland (College Park). Email: dgrob [at] umd.edu

References to equal protection of the laws, protection from cruelty and degradation, norms of fairness in judicial proceedings, free expression, and the like, can be found in many “rights instruments,” whether they be constitutions, treaties, declarations or other authoritative statements. Yet no two instruments, nor the expression of rights and norms they embody, are equivalent, much less identical. Rights and norms may be guaranteed or enforced to varying degrees (if at all) across jurisdictions. Words pertaining to rights and norms may be subject to multiple interpretations within and across jurisdictions as well as across time. Interpretations, in turn, may vary in the extent to which they are enforced or legally enforceable. The mere existence of variance, per se, on these or other dimensions, however, does not logically imply that expressions of rights and norms have no components that are fixed and possibly common across cases and contexts, or perhaps even across legal systems.

What is missing from discourse on legal indeterminacy, according to Eric Heinze, in THE LOGIC OF EQUALITY, is a much-needed “science” of indeterminacy. That is what this book proposes. Its main contribution is the presentation, in a format accessible even to readers with no prior training in formal logic, of “a method of formal analysis aimed at pinpointing elements of determinacy underlying (what H.L.A. Hart called) the ‘open texture’ of a legal norm” (p.4). The reader is escorted step-by-step through a procedure for transforming prose arguments concerning equal protection into formal logical expressions. The method of formalization is narrowly tailored to the structure of arguments commonly found in non-discrimination cases. The method is applied to a selection of cases drawn from a variety of contexts, including the United States, Germany, and the European Union.

Heinze’s aspirations, clearly stated up front, are appropriately limited. His “only purpose” is to explore whether the non-discrimination norm has “any fixed components which remain constant both within and across jurisdictions.” It is the task of the parties to any particular case to “adduce positions which (purport to) resolve” disputes. This book does not pretend to usurp that role. That is, it is not concerned primarily with the “correct” resolution of disputes, but rather with formalizing and analyzing the structure of arguments on either side of any given non-discrimination dispute. The model says nothing about the truth, validity or persuasiveness of arguments.

Arguments in discrimination disputes, Heinze argues, are “necessarily” some combination of distinct components—[*912]factual and normative assertions about treatment, objective status and subjective merit. Considered jointly, these imply a conclusion about a breach of a rule or norm. The book’s central theoretical claim is that, in non-discrimination jurisprudence, these components “can occur only in a fixed range of positions,” as set forth under four “general forms” of argument (described as the “traditional,” “impact,” “accommodation,” and “non-recognition” models). Those formal positions “represent a degree of absolute determinacy and uniformity in discrimination jurisprudence” (p.136) within and across systems.

In spite of this alleged determinacy, the author hastens to add, there can be no uniform approach to any one system, much less to all of them. “(E)ven within a single regime, rights jurisprudence, far from converging on clear sets of principles, remains subject to indeterminacy. That significant degree of divergence across systems does not, however, mean that uniformity is entirely lacking” (p.136). Heinze’s claim is that, while substantive indeterminacy persists, uniformity exists at the level of formal structure. The purpose of the book is to identify that structure without either embracing or disavowing it on normative grounds. “The formal structure is only a messenger; it is not the message” are the author’s closing words (pp.136-137). The book consists of four parts. The first three set forth and justify building blocks largely in terms of the “traditional” model. The fourth erects the full formal schema and delves more deeply into applications and distinctions among general forms.

Building Blocks

Treatment: Empirically, parties to a dispute make factual assertions in tandem with normative assertions (In DOTHARD v. RAWLINSON (1977), for instance, Dothard makes a factual claim that she has been treated unequally in tandem with a normative claim that she should be treated equally). From the standpoint of formal logic, however, factual and normative assertions are treated as discrete elements. In a traditional dispute, one side asserts factually that treatment has been unequal (equal) while the other asserts it has been equal (unequal). Normative assertions, in turn, are of two general types: compulsory and permissive. Compulsory normative assertions are claims that the law requires a particular result. Permissive normative assertions are claims that the law merely permits a particular result. In DOTHARD, the parties’ factual assertions are consistent (both sides agree that treatment was unequal). But they take different normative positions. The claimant makes a compulsory assertion (equal treatment is required by law) while the respondent makes a permissive assertion (unequal treatment in this case is permitted by law).

Objective Status: Factual positions concerning equality of treatment are predicated on the existence of some “objective status” ascribed to individuals. (Sex, language, familial relation and citizenship are among the examples discussed.) Every objective status is a set comprised of two or more subsets (sex is comprised of the subsets men and women; language is a set comprised [here] of the subsets Dutch speakers and French speakers; and so on.) Claims of discrimination presuppose that one subset is favored [*913] over another. Such claims generically are of the form “treatment is unequal despite equality of objective status.” The normative position implied here is that equal objective status requires (i.e. provides a sufficient condition for) compulsory equal treatment. In traditional disputes, respondents who challenge objective status assertions traditionally do so by asserting claimants belong to a different objective status subset. Arguments generically are of the form “treatment is unequal on the basis of inequality of objective status.” The normative position implied here is that unequal objective status allows (i.e. provides a sufficient condition for) permissive inequality of treatment. Arguments of this form frequently are articulated colloquially in terms of “justification” (“[un]equal objective status justifies [un]equal treatment;” or “if objective status is [un]equal, then [in]equality of treatment is justified”).

Subjective Merit: In order to account more fully for the structure of discrimination discourse observed empirically, it is necessary to include one more element in addition to joint factual and normative claims about treatment and objective status. Positions also must incorporate some context-specific determination of ability, need or circumstance. Such determinations are referred to as assertions of “subjective merit,” of which there are two types. An assertion of “commensurate subjective merit” is an “assertion that one possesses some ability or need which should entitle one to enjoy a benefit from which, under the challenged rule, one is barred” (p.75). An assertion of “incommensurate subjective merit” is an “assertion that one does not possess some ability or need which should entitle one to enjoy that benefit” (p.75).

Distilled to these elements—factual and normative claims about treatment, objective status and subjective merit—arguments may then be expressed formally as compound positions. Formalization places consistency across cases and jurisdictions in sharp relief. For example, for a cross-section of “traditional” cases from different systems, claimants’ assertions about objective status are found to depend on a logically prior assertion about subjective merit. Concretely, in DOTHARD, for example, “in order to reach the conclusion that there is in fact objective equality between men and women for purposes of working as a guard, (Ms. Dothard) must (first) assert . . . that there is commensurate subjective merit on her part with respect to the requisite tasks” (p.91). Formal analysis of respondents’ positions, however, yields the opposite finding across cases: respondents’ assertions about subjective merit are derived from their logically prior assertions about objective status. For example, respondent in DOTHARD argues that, if there is objective inequality between women and men with respect to ability to perform the tasks of prison guard successfully, then there is ipso facto incommensurate subjective merit on the part of the claimant to be hired for that position.

At first glance, these findings concerning logical priority are not surprising. The observed difference between claimant and respondent positions follows, in part, from the way traditional cases arise and tend to be reasoned and argued empirically. The state casts a net (law). Individual claimants begin with the facts [*914] of their own circumstances and reason from those facts. A chief benefit of formalization, however, is that it offers a standardized mode of expression and a common vocabulary with which to talk about dissimilar cases. By facilitating classification of cases, formality reveals that this finding does not apply to all general forms of equal protection arguments (see Formal Schema, below). Most importantly, formality facilitates cumulative research.

Many political scientists have exploited the cumulative potential of formal theory by looking to game theoretic models of strategic interaction. So doing has generated a substantial literature on the problems of credible commitments, information, transaction costs and other aspects of political-economic phenomena. This book describes a formal theoretical approach to problems in terrain less well-traveled by most students of political science, (re)locating legal theory within the realm of cumulative “science.”

Formal Schema

Heinze offers a four-part schema of “general forms” of argument arising under non-discrimination law. The schema, the bare bones of which I provide only a glimpse here, sets up useful scaffolding upon which future research may cumulate.

Traditional Model: Claimants argue that commensurate subjective merit within the circumstances of a particular case establishes objective equality for the purposes of that case. Respondent (typically the state) does not deny that treatment is unequal, but maintains that objective inequality justifies unequal treatment. In the case of affirmative action, courts find affirmative action constitutional by accepting the state’s objective status claims. When courts find it unconstitutional, they do so by accepting the claimant’s subjective merit arguments. Such consistency is present even when a court’s doctrinal reasons contradict earlier doctrinal positions. Uniformity of logical structure seems to trump doctrinal consistency in the cases examined.

Heinze’s discussion of civil rights and standards of review is provocative. Based on comparative analysis of the formal structure of arguments concerning race and sex across a selection of “traditional” cases, he concludes that there is little that the U.S. Supreme Court says in setting forth the “heightened scrutiny” standard that logically can mean anything more than greater deference to a claimant’s values pertaining to objective status. While “rational basis,” on the other hand, logically can mean only greater deference to respondent (i.e. state) understandings of objective status. The Court’s articulation of standards of review over the years aims for greater clarity and determinacy in decisions and decision-making. Yet, Heinze finds, the determinacy of the Court’s standards of review goes no further than the sheer formal structure of its arguments, and that those standards are “ultimately indistinguishable from the more prosaic ‘reasonableness’ or ‘proportionality’ standards used by non-US courts” (p.118).

Impact Model: Here, Heinze refers to cases in which “there truly is no policy or practice expressly based on an identified objective status” (p.127) in the first place. Cases involving “policies or [*915] practices that are discriminatory in effect regardless of the presence or absence of discriminatory intent” fit this model. Whereas, in the traditional model, disputes center on objective status, in the impact model, disputes center about subjective merit. Claimants’ arguments are premised on claims about subjective merit while respondents’ arguments are premised on contrary claims about subjective merit, not on claims of objective inequality, as in the traditional model. Formalizing arguments across cases reveals this consistency of logical structure.

Accommodation Model: This model describes cases in which discrimination results from a failure to accommodate differences in individual needs (e.g. arising out of disability). Claimants “assert particular subjective needs, based on their objective status.” Respondents “justify failure to accommodate those needs by adopting a contrary view as to the nature or gravity of the subjective need.” Formalization reveals how the logical structure of arguments in these cases differs from the traditional model: the positions occupied by subjective merit and objective status within the logical structure of each side’s arguments are reversed. A claimant’s “arguments about subjective merit derive from some generalized view of her objective status,” while it is the respondent’s arguments that draw upon some “individualized assertion about the claimant’s subjective merit” (p.129). Formalization also reveals that claimants’ arguments in accommodation and impact cases differ, but respondents’ arguments follow similar logical structure. One way this structural similarity is manifested empirically is the extent to which respondents in both impact and accommodation cases tend to rely on statistical evidence to draw inferences about subjective need. An analyst attuned to logical structure might then be inclined to consider the availability and quality of statistical data ex ante as one factor influencing outcomes in both categories of cases.

Non-discrimination Model: Claimants’ positions are structurally similar to those in the accommodation model, but respondents’ positions differ. Claimants assert inequality of objective status to justify a finding of incommensurate – special – merit. Respondents, rather than taking a different view of subjective merit (as in the accommodation model) “deny the very existence of the claimed objective status as a status requiring distinct recognition” (p.135). In this general form, disputes turn entirely on the characterization of objective status.

Innovative, groundbreaking work inevitably provides opportunities to point up possible problems and omissions, real or imagined. This book is no exception. However, against this book’s contributions, the following most appropriately might be regarded as opportunities rather than shortcomings. First, the distinction between constitutional and statutory questions merits further discussion. It remains unclear, for instance, whether the difference might affect relationships among formal elements. Second, the approach at times seems implicitly to assume away strategic dynamics. The book does not purport to be a study of strategic interaction, and presumably was not written with a narrow political science audience in mind, so this criticism is, admittedly, not entirely fair. Nonetheless, strategic dynamics occupy [*916] a prominent place in ongoing debates among positive political theorists and students of public law. The possible endogeneity of what is and is not at issue in any particular case (or endogeneity of the general form a case may take), and whether or not any such endogeneity would raise the specter of indeterminacy at the level of formal structure, merits attention. Finally, while the substantive discussion of the traditional model is thorough, and of the impact model, fully adequate, presentation of the accommodation and non-recognition models leaves substantial room for more expansive illustration. The presentation is not flawed, per se, but, precisely because the schema promises significant utility, these models deserve more extensive elaboration.

Substantive disagreements over the scope and extent of equal protection principles notwithstanding, this book suggests that, lurking amidst pervasive indeterminacy, some elements of formally determinate structure may exist across cases, even, perhaps, across systems. Of what substantive import that may be is not the exploration the book undertakes. Extant research has not yet fully equipped us for such an exploration. But, with this book, we are better equipped than before. The book, brief as it is, problem sets and all, is novel, clearly-written and thought-provoking. Much like the body of law it explicates, it raises as many questions as it answers. Suitable for graduate and upper-level undergraduate seminars on law and society, formal theory or political philosophy, it would also be a first-rate addition to a law school syllabus. Readers are assured to come away with heightened awareness of logical structure, and to acquire skills readily applicable both to the crafting and deconstruction of equal protection arguments.

CASE REFERENCE

DOTHARD v. RAWLINSON, 433 U.S. 321 (1977).

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