Comment on "Empty Ideas": Logical Positivist Analyses of Equality and Rules

Abstract

In a recent article in the Harvard Law Review,1 Professor Peter Westen directs his considerable capacity for logical analysis at the of equality. Professor Westen asserts and defends two propositions: (1) that statements of equality logically entail (and necessarily collapse into) simpler statements of rights; and (2) that the additional step of transforming simple statements of into statements of equality not only involves unnecessary work but also engenders profound conceptual confusion.2 Therefore, he says, equality is an empty idea that should be banished from moral and legal discourse as an explanatory norm.' Many, no doubt, will wish to defend equality as a concept with independent content, at least in some situations. This Comment takes a different tack. Statements of rights (rules) are the heroes of Professor Westen's story, though they are spared the scrutiny lavished on equality. He seems to regard rules as suitable norms for explanatory moral and legal discourse-norms that in themselves are independent of equality, imbued with content, and comparatively simple to apply without confusion.4 Us-