In legal, political, and philosophical discourse, and indeed in everyday life, equality often plays the role of a normatively significant prescriptive principle, a principle that provides reasons for action. Professor Peters, however, joins Peter Westen and others who argue that the traditional statement of prescriptive equality-equals are entitled to equal treatment--is normatively empty because it is a tautology. Like Professor Westen, Professor Peters notes that this traditional principle translates into a statement of simple redundancy: people entitled to equal treatment are entitled to equal treatment. Unlike Professor Westen, however, Professor Peters discerns a nontautological principle of equality, which claims that one person's treatment in a particular way is a reason in itself for treating another, identically situated person in that way. Nevertheless, Professor Peters argues that this principle, although nontautological, has no more normative content than the traditional expression; either it provides no independent reasons for action, or it is self-contradictory and incoherent. This Article examines the nontautological principle of equality, analyzes its supposed application in a variety of circumstances, and assesses some consequences of the conclusion that prescriptive equality has no normative content for Equal Protection Clause jurisprudence and John Rawls's “egalitarian” political philosophy.
Equality Revisited, 110 Harv. L. Rev 1210 (1997)