Should Like Cases Be Decided Alike? A Formal Analysis of Formal Equality

Benjamin B. Johnson and Richard Jordan

The Journal of Legal Studies, 2025, vol. 54, issue 1, 83 - 115

Abstract: The idea of formal equality—the principle that we should treat like cases alike—is a cornerstone of political and legal theory that supporters have placed at the heart of theories of justice since Aristotle. Critics have rejected it as vacuous or a tool of oppression. Despite its central importance, formal equality has received little formal analysis. In this article, we formalize the like-cases maxim and explore its implications. We show that both Aristotle’s principle of proportionality and Dworkin’s principle of integrity can be directly derived from formal equality. It is therefore not vacuous, but formal equality is more demanding than its supporters suggest. It ends up deciding far more cases than we would want, and it decides them in ways most philosophers and legal theorists would find untenable. It is therefore not clear what place it ought to occupy either in political philosophy or in jurisprudence. [J]ustice demands, wherever that concept is found, that like men be treated alike in like conditions. Why, I do not know; the fact is given. (Llewellyn 2012, p. 43)

Date: 2025
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