Some Thoughts on Affirmative Action Here and in India: Galanter's Competing Equalities

Abstract

During the time that the British Empire included much of India, Canada, and the United States, Lord Mansfield declared that slavery was abhorrent to the common law and, with a stroke of his quill, freed several thousand black slaves in England.' Mansfield's decision in Sommersett's case was in the eighteenth-century tradition that recognized individual rights against state power. It helped to usher in a world where slavery and subordination were no longer normal. That individualist tradition took deepest root in America, where we established a system of individual equality but simultaneously created inferior classes by establishing slavery and subordinating, in different ways, women and native Americans. We have struggled for more than half our history to rid ourselves of these shadows. In the last quarter century, we have come to recognize that the principle of individual equality is a necessary but inadequate response to social conditions generated by slavery and subordination. We have begun an effort to raise the status of subordinated groups. These activities parallel efforts in India and Canada to improve the substantive conditions of members of subordinated groups. In India, Canada, and the United States today, these postMansfield questions are being addressed in ways that conform to national customs and perceptions yet are understandable as emanations of the common law tradition.