JULIET M ITCH ELL
the minimum liberty and equality that inheres in the formal
structure of the law.
The formal structure of the law is , moreover, equally decisive
in the operation of the social system of a competitive-contractual
society. The need for calculability and reliability of the legal and
administrative system was one of the reasons for the limitation of
the power of the patrimonial monarchy and of feudalism . This
limitation culminated in the establishment of the legislative power
of parliaments by means ofwhich the middle classes controlled the
administrative and fiscal apparatus and exercised a condominium
with the crown in changes of the legal system . A competitive
society requires general laws as the highest form of purposive
rationality, for such a society is composed of a large number of
entrepreneurs of about equal power. Freedom of the commodity
market , freedom of the labour market , free entrance into the
entrepreneurial class, freedom of contract, and rationality of the
judicial responses in disputed issues-these are the essential char–
acteristics of an economic system which requires and desires the
production for profit , and ever renewed profit in a continuous,
rational capitalistic enterprise .
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The law , then , enshrines the principles of freedom and equality–
so long as you do not look at the particular unequal conditions of the
people who are subjected
to
it. The concept "equal under the law"
does not apply
to
the economic inequities it is there to mask. The law is
general , therefore ,
as men
employer and employee are equal. The law
does not consider the inequality of their position . Equality always
denies the inequality inherent in its own birth as a concept. The
notions of equality , freedom, or liberty do not drop from the skies;
their meaning will be defined by the particular historical circumstances
that give rise
to
them in any given epoch. Rising as the slogan of a
bourgeois revolution, equality most emphatically denies the new class
inequalities that such a revolution sets up-the equality exists only as
an abstract standard of measurement between people reduced to their
abstract humanity under the law.
Those seem
to
me
to
be some of the limitations of the concept of
equality-what of its strengths? When a rising bourgeoisie is strug–
gling against an old feudal order , that is , before it has firmly con–
stituted itself as the dominant class , in its aspirations it does in some
sense represent all the social classes that were subordinate previously:
its revolution initially is a revolution on behalf of all the oppressed
