The finest opportunity ever given to the world was thrown away because the passion for equality made vain the hope for freedom.
Formal equality before the law is in conflict, and in fact incompatible, with any activity of the government deliberately aiming at material or substantive equality of different people, and any policy aiming directly at a substantive ideal of distributive justice must lead to the destruction of the Rule of Law. To produce the same result for different people, it is necessary to treat them differently. To give different people the same objective opportunities is not to give them the same subjective chance. It cannot be denied that the Rule of Law produces economic inequality — all that can be claimed for it is that this inequality is not designed to affect particular people in a particular way. It is very significant and characteristic that socialists (and Nazis) have always protested against “merely” formal justice, that they have always objected to a law that had no views on how well off particular people ought to be, and that they have always demanded a “socialization of the law,” attacked the independence of judges, and at the same time given their support to all such movements as the Freirechtsshule which undermined the Rule of Law.
Freirechtsshule is the German term for “legal realism,” a doctrine that holds that instinct rather than rule-following is the actual basis of judicial interpretation of the law.