Formal legal equality leaves substantive social inequality untouched

Evidence

It does not accord with the sense of the Weimar constitution for laws which are apparently a burden on an economically stronger class to be rejected in the name of justice as arbitrary. It is precisely this apparent injustice which fulfils the demand for justice that is contained within the social system of the Weimar constitution. It is precisely when equality is to be conceived of as a material value that it must be recognized that the principle of equality before the law will remain merely a right on paper until social equality creates conditions which will make it possible for the law genuinely to apply to all equally … A constitutional state can create certain external conditions, and put them at the disposal of individuals or of individual classes of the population, for better or worse. It can do nothing more than that. It can ensure, for example, that the son of a rich man, who has come into conflict with the police and the traffic regulations with his motor vehicle on three occasions, has his driving licence withdrawn, just the same as a chauffeur with four children. The fact that the one loses a form of amusement and the other his livelihood is irrelevant in the eyes of the law. The constitutional state stops there and leaves things imperfect, probably for ever, at the point where social equality has to begin. To take the principle of equality before the law back into the vanished world of a bourgeois-constitutional order is to prohibit equality in the name of equality itself. — Rolf Wiggershaus, The Frankfurt School, 959

Categorization

• DEFINE: Kirchheimer’s distinction between formal equality before the law and material/social equality — the key theoretic move in his Weimar constitutional critique.
• XREF: Builds on the standing claim that Weimar’s Supreme Court turned equality rights into capitalist defenses; also pairs with Marx’s critique of bourgeois right in the Critique of the Gotha Programme. — connects to: Formal legal equality obscures real inequality because equivalence as a legal norm ignores difference — Dirk Braunstein, Adorno’s Critique of Political Economy, 786; Formal legal equality masks substantive inequality between rich and poor; Formal legal equality cannot deliver justice without social equality — Rolf Wiggershaus, The Frankfurt School: Its History,…, 958 (+12 more)

Broader Connections

• Formal legal equality masks substantive inequality between rich and poor #exemplifies (0.95)
• Formal legal equality cannot deliver justice without social equality #corroborates (0.93) — Rolf Wiggershaus, The Frankfurt School, 958
• Formal legal equality obscures real inequality because equivalence as a legal norm ignores difference #expands (0.92) — Dirk Braunstein, Adorno’s Critique of Political Economy, 786
• Formal equal right applied to unequal individuals necessarily produces inequality. #expands (0.92) — Jessica Whyte, The Morals of the Market, 416
• Formal legal equality alone cannot produce fair outcomes after generations of structural disadvantage. #corroborates (0.92) — Ibram X. Kendi, Stamped from the Beginning, 986
• Abstract legal recognition of rights fails to overturn women’s concrete economic inferiority #exemplifies (0.90) — Simone de Beauvoir, The Second Sex, 57
• Law converts difference into sameness to enable formal equal treatment #expands (0.88) — David Theo Goldberg, The Racial State, 82
• Formal equality in the right to communicate masks actual communicative injustice #exemplifies (0.87) — Dirk Braunstein, Adorno’s Critique of Political Economy, 992
• European continent substituted formal legal equality for real equality of condition #exemplifies (0.85)
• Modern law’s abstract individual ideal enables its systematic social exclusions #expands (0.85) — Sherene Razack, Casting Out, 404
• Formal citizenship equality coexists with inequality that provokes social conflict #exemplifies (0.82) — David Theo Goldberg, John Solomos, A Companion to Racial and Ethnic Studies, 824