Chapter 2 Michael Walzer and Complex Equality 2.1 Introduction Michael Walzer launched his theory of complex equality in 1983 in a book entitled Spheres of Justice.1 The theory, as will be seen, is innovative in that it focuses on distribution, where distribution is defined very broadly to include not just tangible goods, but also abstract goods such as rights,2 and even char- acteristics.3 Walzer’s writing style in Spheres of Justice is also innovative; instead of arguing from first principles, he chooses to take a more artistic approach. He produces what some have called a ‘portrait’4 (or even an entire ‘portrait gal- lery’),5 others an ‘impressionist painting.’6 In this book, Walzer’s lead will be followed. The emphasis will be on working through ‘accounts of distributions’ (of which the court reports provide an almost limitless supply), letting these ‘accounts’ (or even ‘stories,’ as Walzer puts it) ‘suggest’ any necessary principles for themselves – ‘stand[ing] … in the city,’ as it were, rather than ‘climb[ing] the mountain,’ interpreting rather than describing.7 Over the years, Walzer’s theory has been applied to a dazzling vari- ety of situations around the world. These include higher education in Malaysia,8 affordable housing in the us,9 and children’s rights in El 1 M Walzer, Spheres of Justice – A Defense of Pluralism and Equality (Basic Books 1983). 2 McCrudden, in his recent reanalysis of equality, divides the concept into four categories. In the second category, he too envisages rights as distribuends, calling them ‘prized pub- lic goods:’ C McCrudden, ‘The new concept of equality’ (Paper prepared for the Academy of European Law conference, ‘Fight Against Discrimination: The Race and Framework Employment Directives’, 2– 3 June 2003) <http:// www.era- comm.eu/ oldoku/ Adiskri/ 02 _ Key_ concepts/ 2003_ McCrudden_ EN.pdf> accessed 20 May 2018. 3 See section 3.3. below. 4 NL Rosenblum, ‘Moral Membership in a Postliberal State’ (1984) 36(4) World Politics 581. 5 ibid. 6 J Carens, ‘Complex Justice, Cultural Difference, and Political Community’ in D Miller and M Walzer (eds), Pluralism, Justice, and Equality (oup 1995) 47. 7 All quotations from Walzer, Spheres of Justice (n 1) xiv. 8 H Stokke, ‘Reasonable Discrimination? Affirming Access to Higher Education in Malaysia’ [1999– 2000] Hum Rts Dev YB 189. 9 KD Adams, ‘Can Promise Enforcement Save Affordable Housing in the United States?’ (2004) 41 San Diego L Rev 643. © Koninklijke Brill NV, Leiden, 2018 | DOI 10.1163/9789004354265_003 Michael Walzer and Complex Equality 23 Salvador.10 Complex equality has been used in everything from the practice of paying research subjects for participating in clinical trials,11 to the communication strategies of police officers,12 and from the protection of personal data,13 to the creation of hierarchies of creditors following insolvency.14 Sectors in which the theory has been applied most recently include those of transportation,15 taxation16 and planning, specifically with regard to poverty alleviation in India.17 Could the equality strategy of the Court of Justice be added to this already impressive list? In this chap- ter, it is intended to sketch the basics of the theory (with due attention paid to the many who have written about it since 1983) and then, towards the end, to begin to consider whether it could be applied to the case- law of the cjeu. 2.2 Complex Equality: A Thumb- Nail Sketch Michael Walzer holds that there is no one single distributive sphere; rather, there are different distributive spheres for different goods. The first major tenet of the theory of complex equality is that these spheres must be kept separate. 10 K Read, ‘When Is a Kid a Kid? Negotiating Children’s Rights in El Salvador’s Civil War’ (2002) 41(4) History of Religions 391. 11 JA Anderson and C Weijer, ‘The Research Subject as Wage Earner’ (2002) 23 Theoretical Medicine 359. 12 Phillip Chong Ho Shon, “Now You Got a Dead Baby on Your Hands”: Discursive Tyranny in “Cop Talk” (1998) xi (33) International Journal for the Semiotics of Law 275. 13 J Van Den Hoven and PE Vermaas, ‘Nano- Technology and Privacy: On Continuous Surveillance Outside the Panopticon’ (2007) 32(3) J Med Philos 283. 14 C Villiers, ‘Employees as creditors: a challenge for justice in insolvency law’ (1999) 20(7) Company Lawyer 222. 15 K Martens, ‘Justice in transport as justice in accessibility: Applying Walzer’s “Spheres of Justice” to the transport sector’ (2012) 39(6) Transportation 1035. 16 L Marriott, ‘Justice and the Justice System: A Comparison of Tax Evasion and Welfare Fraud in Australia and New Zealand’ (2013) 22(2) Griffith Law Review 403. 17 A Chettiparamb, ‘Articulating “public interest” through complexity theory’ (2016) 34(7) Environment and Planning C: Government and Policy 1284. For a rare example of an application in the legal field, albeit on the procedural side, see the consideration of the (potential) selling of judicial authority in AJ Sebok, ‘Should the law preserve party con- trol? Litigation investment, insurance law, and double standards’ (2015) 56(3) William and Mary law review 833..