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Structural Inequality and the Law: part I


K. Sabeel Rahman (@ksabeelrahman) is Professor of Law at Cornell Law School.

In the 2007 school desegregation case, Parents Involved in Community Schools v. Seattle School District No. 1, the Supreme Court struck down the voluntary school desegregation efforts by Louisville, Kentucky, and Seattle, Washington for employing an overly aggressive mode of racial balancing. In his majority opinion, Chief Justice John Roberts argued that de jure segregation—of the sort that marked the Jim Crow South—had been officially eliminated as in the case of Louisville, and had never been employed in Seattle. Thus whatever racial disparities existed in these regions were not the product of law. For such schools, Roberts wrote, “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” The systematic racial segregation of modern metro areas, long documented by urban scholars as a result of economic inequalities, racial wealth disparities, and deliberate policies of zoning and urban planning, did not factor into Roberts’ analysis.

A relative lack of concern for what might be termed “structural” inequality has characterized the Roberts Court’s voting rights jurisprudence as well. In Citizens’ United v. FEC, which upheld corporate campaign contributions as political speech, the Court ignored how disparities in economic wealth could skew the otherwise free-flowing marketplace of ideas or the dynamics of political competition. In Shelby County v. Holder, Roberts suggested that the preclearance regime established by the Voting Rights Act of 1964 to oversee voting regulations in many Southern states was no longer needed. In her dissent, Justice Ginsberg castigated Roberts’ argument as, among other things, exhibiting a blindness to more subtle “second-generation” barriers preventing minority groups from exercising their voting rights in full.

These glimpses point to a larger challenge for legal scholarship, analysis, and policymaking. The question of structural inequalities often stump courts and lawmakers alike. What does it mean for inequality to be “systemic”? Can any single actor be held responsible for such systemic or structural disparities? If these disparities are so diffuse, so baked into the background patterns of social and economic activity, how would they even be redressed or counteracted? This two-part series offers a means of conceptualizing both structural inequality and its means of redress.

“Natural” versus human-made structures

The challenge of analyzing structural inequality reveals a central philosophical and conceptual divide, one that often goes beyond conventional accounts of left and right. The debate concerns the degree to which we view background systems and structures as “natural” or human-made and how to address resultant inequalities.

Consider Friedrich Hayek, one of the intellectual leaders of twentieth-century libertarianism and a key figure in the “neoliberal” political economic thought. Although the term “neoliberalism” is often contested, we can use it here to emphasize three elements in particular: a view of markets as self-correcting and epistemically superior; a skepticism about governmental action as prone to capture; and a disposition towards more classic liberal views of negative liberty as freedom from governmental interference. Hayek’s central dispute with other thinkers did not necessarily turn on a rejection of the aspiration for greater equality of economic opportunity. Indeed, Hayek (and other libertarians following in his mold, like Milton Freidman) at times articulated a surprisingly expansive view of economic opportunity, with support for extensive social insurance programs or even a basic income in the form of negative earned income tax credits. But what is especially telling is that Hayek framed his philosophical disagreement with left-liberal calls for greater social justice in terms of a vastly different view of structure and political possibility.

In a classic 1976 essay, Hayek argued that individual income shares in a market economy were the outcome of the market’s “spontaneous ordering,” rather than being the product of a singular will or intention. As a result, claims of social justice amounted, in his view, to a “naïve” “anthropomorphism,” attributing intentionality and responsibility for outcomes to a system that could not have any intention or will to begin with. “Those shares are the outcome of a process the effect of which was neither intended nor foreseen by anyone,” Hayek continues. “To demand justice from such a process is clearly absurd.” The market was not an individual entity with a will, and thus conventional notions of moral obligation, responsibility, or redress “has no application” to an “impersonal” and self-ordering system such as a market economy. Imposing distributive outcomes on market-ordering would destroy the critical social value of markets: which serve as efficient, decentralized systems for synthesizing information and optimally ordering the allocation of goods and services.

Hayek’s critique of social justice was largely motivated by a desire to avoid the specter of totalitarian control of the economy associated with statist communism and socialism. But it also reveals a central conceptual shift required to diagnose—and remedy—inequality. Hayek writes off much of social justice because economic systems —diffuse, mindless, unintentional—cannot be the subjects of concepts like justice. Treating “natural” market orderings as if they were blameworthy would open the door to escalating regulatory and redistributive efforts, until all domains of economic and social activity were subject to public control. This view of the dangers and ineffectiveness of systemic regulation, and the view that systemic patterns of inequality are themselves more like forces of nature than they are like intentional, human-produced discrimination, echoes the asystemic view of markets and politics articulated by Roberts in Parents Involved and Shelby County.

While Hayek is correct that economic systems are indeed diffuse and lack a single coherent will, they are not “natural” systems beyond human agency. Markets are themselves products of law and politics, and the aggregate dynamics of market systems are similarly the result of background legal and political choices. As the legal realists of the late nineteenth and early twentieth century argued, market order was itself a product of law and state coercion, exercised through background rules of contract, tort, and property. At a more macro level, the nature of market competition is itself structured by a wider set of background legal regimes from corporate law to antitrust law to labor law to financial regulation, all of which combine to produce “market forces”.  Appreciating the very human-made nature of economic systems is key to understanding inequality and subordination in the modern world

As Iris Young argues, economic and social structures may be experienced by individuals as objective and exogenous, but they are in fact the result of hidden and accumulated decisions, policies, and actions. These accumulated human choices congeal into a larger structure, which places some individuals in subordinate positions.

Thus racial minorities, women, and poorer individuals might be barred from upward mobility not because of their merit, not because of luck, and not even because of nefarious intent on the part of their employers, landlords, or any other individual actor. Rather, their social and economic subordination arises as a result of their position in a larger socioeconomic structure in which they lack the power, resources, and opportunities to better their condition.

The structures that collectively create these uneven landscapes of social and economic position can be viewed as a form of unequal power and domination. Conventionally, power disparities and domination are viewed as emanating from a specific actor, who may act arbitrarily or assert his or her will against others. Yet diffuse systems in the aggregate can create similar disparities, even without a single consolidated intentionality. Many individual decisions and background policies, each operating within the bounds of conventional legal rules and norms, can combine to oppressive force.

As Young argues, structural domination arises “when social processes put large groups of persons under systemic threat of domination or deprivation of the means to develop and exercise their capacities, at the same time that these processes enable others to dominate or to have a wide range of opportunities for developing and exercising capacities available to them.” The structure of, say, the labor market, or the physical geography of the city, thus can seem involuntary and natural, and yet be the product of many independent policies and decisions which end up driving inequality.

Of course, this leaves still the question of what to do about structural inequality. Because of its diffuse and impersonal form, courts and policymakers often have a difficult time imagining how to remedy systemic forms of oppression. How to remedy structural inequality will be the subject of the next post, Structural Inequality and the Law: part II.

Author’s Note: This blog post is adapted from a forthcoming article, “Constructing and contesting structural injustice,” Critical Analysis of Law 5:1 (Spring 2018, forthcoming).