Academic journal article University of Western Sydney Law Review

Arguments for Inequality: Why They Don't Work

Academic journal article University of Western Sydney Law Review

Arguments for Inequality: Why They Don't Work

Article excerpt


I.    Neoliberalism and Inequality
II.   Free Markets
III.  The Neoliberal Approach to Human Rights..
IV.   Corporations
V.    Issues in Economic Theory
VI.   Conflict of Rights
VII.  Physical Capital
VIII. Risks
IX.   Executive Salaries
X.    Stress
XI.   Legal Issues
XII.  Epidemiology
XIII. Social Issues
XIV.  Ethical Issues
XV.   Australian Developments
XVI.  Corruption of the Political Process

Modern political and legal philosophy has followed Aristotle in seeing different theories of justice addressing different kinds of social practices. Theories of distributive justice concern the distribution of the benefits and burdens of social life across individuals and groups. Theories of retributive justice deal with the nature and justification of punishment. As political theorist Andrew Levine points out, the guiding idea for Aristotle, and for most subsequent researchers, has been that of 'treating like cases alike'. But there are many different ways in which such 'likeness' can be, and has been, understood. (1) At first sight it might appear that it is the latter, retributive form of justice that is the main concern of law. But while criminal law is indeed concerned with issues of retribution, issues of distributive justice bear upon virtually all areas of law. Corporations law, consumer law, employment law, tax law, and tort law are built around ideas and assumptions concerning fair or just distribution of resources between individuals and social groups. And the day-to-day operation of these laws has profound implications for such distribution in contemporary society.

The actual distribution of benefits and burdens is particularly significant for criminal law, with higher levels of inequality significantly positively correlated with levels of violent crime around the world. Levels of social inequality also have profound implications for effective access to legal resources and influence upon the lawmaking process.

Changes in dominant political ideology inevitably impact upon legislation, statutory interpretation and judicial decision-making. And a major change in such ideology in recent years with profound implications for law and society has been the increasing acceptance and attempted justification of increasing social inequality. This paper explores, and refutes, the arguments offered in support of such increasing inequality.

I. Neoliberalism and Inequality

During the post-war boom, social liberal ideology identified significant inequality as a fundamental social problem that needed to be addressed by appropriate social policy intervention. Radical inequalities of social and political power, income, wealth, and opportunity were seen as both unfair and unjust and as unacceptable in utilitarian terms, insofar as they contributed to--avoidable--mistrust and lack of social cohesion, to aggression, physical and mental illness, crime, and conflict. It was also seen as possible to significantly reduce such inequality through social policies of redistribution and welfare, full employment and cheap housing.

Over the last thirty years, throughout the English speaking world and beyond, the social democratic consensus has been replaced, as core ideology of major parties and directing force of government policies, by what has been called economic rationalism, neoliberalism or the Washington Consensus. In the forefront of neoliberal ideology is the prioritisation of individual freedom of choice, where such freedom is seen as maximised through the operation of free markets and business corporations, with a minimum of state intervention and regulation.

Rather than being identified as an ethical and practical problem, to be addressed by responsible social policy, significant inequality has come to be seen as an integral component of a just, efficient and prosperous society. Certain positions in society are seen as functionally more important than others. …

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