The Majestic Equality of the Law: Why Constitutional Strategies Do Not Produce Equality

Paper Presented at a workshop on Equality, at the Institute for Advanced Studies, Nantes, France, in June, 2014. Two epidemiological studies — the Whitehall Studies of 1967 and 1988 — famously demonstrated that socio-economic status is a primary determinant of health outcomes. By locating a large cohort of British civil servants on a social-class gradient, researchers were able to show that individuals at successively lower levels on that gradient experienced diminishing prospects of good health and longevity. This conclusion was complemented by subsequent studies that concluded that degrees of inequality in a society — rather than absolute levels of wealth and status — are a very strong predictor of health outcomes. But no single comprehensive epidemiological study has sought to test empirically the link between economic or social inequality, on the one hand, and the overall quality of citizenship on the other. There is little reason to doubt that Anatole France’s mordant reflections on the relationship of law and equality would be confirmed by such a study. Recent research further suggests that advanced economies are becoming more unequal for a variety of reasons, including the growing importance of inherited wealth and the dominance of the “grabbing hand” model of corporate governance. If this is true, if the gradient is becoming steeper and steeper, we can expect that the distribution of social goods is becoming less and less fair; that the vulnerable populations mentioned above are likely to experience greater and greater deprivation and exclusion; and that the gap between law’s promise and its performance is likely to grow at an alarming rate