In Hanging in the Balance, Meghan Campbell tells “the other half of the story” of constitutional equality: not the definition of women’s substantive equality, but the function of justification in adjudicating its limits. This shift in focus is both original and urgently needed. For decades, feminist constitutional scholarship has concentrated on the equality stage—on the tension between formal and substantive equality, on stereotypes, structural disadvantage, and intersectionality. The book does not abandon these debates; rather, it reframes them. The real battleground, it assumes, often lies elsewhere: in the justificatory stage, where courts decide whether a violation of women’s equality may nonetheless be constitutionally permitted.
The book’s central insight is analytically powerful: equality and justification are not hermetically sealed stages of adjudication. In practice, they bleed into each other. Courts routinely allow justificatory reasoning to infiltrate the equality analysis, thereby diluting the recognition of a breach. Conversely, once at the limitation stage, they frequently hollow out proportionality or analogous tests through formalistic and mechanistic reasoning.
Campbell’s comparative method—drawing on Canada, South Africa, India, the United Kingdom, and the United States—demonstrates that these patterns transcend doctrinal differences. Whether the jurisdiction formally adopts proportionality or a rationality-based test, the same underlying dynamic recurs. In cases concerning social benefits caps, equal pay, intimate partnerships, or reproductive autonomy, courts often conduct the equality-stage analysis “in the shadow of justification.” Instead of fully articulating the substantive wrong—disadvantage, stigma, structural exclusion—they prematurely pivot to whether the law pursues a legitimate aim. Equality thus becomes a covert defense of the law.
One of the book’s most compelling contributions concerns calibration. Against the dominant “non-weighted” approach to standards of review, Campbell contends that women’s equality must function as a powerful pull factor demanding high-intensity scrutiny. Equality rights are not merely one interest among many; they are constitutionally entrenched responses to centuries of subordination. Treating them as interchangeable with fiscal savings, administrative convenience, or majoritarian preference is normatively incoherent. The supposed neutrality of balancing masks a failure to appreciate the pervasive and structural nature of patriarchy.
The discussion of UK welfare reform cases is particularly illuminating. The state justified benefit caps and work conditionalities by invoking fiscal responsibility, fairness to taxpayers, and incentives to enter paid employment. In abstraction, these aims appear legitimate. But Campbell shows how courts, by misconceiving women’s poverty as rooted in individual moral failings rather than structural discrimination, accepted these objectives at face value. The massive economic value of unpaid care work, the prohibitive cost of childcare, and entrenched gendered labor patterns were sidelined. Here, the justificatory fallacy is not overt hostility but epistemic blindness: a failure to reconceptualize women’s inequality before testing the state’s reasons.
The tension between formal and substantive equality that Campbell dissects in constitutional adjudication is not confined to judicial reasoning on discrimination claims. Read through a broader macro-legal lens, resistance to transformative approaches pervades all fields of law more generally, including international law. This dynamic has been explored, inter alia, in the recent volume Gendering International Legal Responses to Environmental Chronic Emergencies, co-edited by Deborah Russo, Sara De Vido and Enzamaria Tramontana, which interrogates the approach international law is currently pursuing in addressing the epochal phenomenon of slow and systemic environmental degradation. One of the central critiques developed there concerns the persistence of what may be termed a “disaster-based approach.” The International Law Commission’s Draft Articles on the Protection of Persons in the Event of Disasters provide a telling example. The Draft Articles incorporate the principle of equality in disaster response, requiring that assistance be provided on a non-discriminatory basis and that particular attention be paid to vulnerable groups. Yet equality is articulated primarily as a constraint governing the operational phase of response. Prevention is framed in managerial terms—risk reduction, preparedness, early-warning mechanisms—while the structural and systemic causes of environmental degradation, and the entrenched gender and racial hierarchies that exacerbate vulnerability, remain largely outside the normative focus. In this respect, the disaster-based approach mirrors the justificatory dynamic Campbell identifies: the normative commitment to equality is formally affirmed, but its transformative potential is confined within a technocratic and effect-driven framework. The language of non-discrimination coexists with the absence of a structural re-reading of obligations capable of addressing chronic and intersectional inequalities at their roots.
This is where Campbell’s proposal—the relational and contextual approach—enters. Justification is inherently relational: it brings two normative claims into dialogue. Courts should therefore explicitly relate each justificatory limb (legitimacy, rational connection, necessity, balancing) to the specific breach of women’s substantive equality and to the broader socio-structural context. Context is not an optional embellishment; it is constitutive of the inquiry. Limitation claims do not arise in a vacuum but are embedded in histories of exclusion, stereotype, and power asymmetry.
In this book, Campbell uncovers what might be called the fallacy of the justificatory process itself. The aspiration to abstraction—to neutral, technocratic reasoning—often functions to preserve the gendered status quo.
In the end, Hanging in the Balance shows that the struggle between formal and substantive equality does not end at the finding of a breach. It reappears, perhaps more subtly, in the justificatory process. By exposing the justificatory fallacies that have long operated unnoticed, Campbell offers both a doctrinal diagnosis and a methodological cure.
Deborah Russo is a Lecturer at Edinburgh Napier University
Discover more from Doing Feminist Legal Work
Subscribe to get the latest posts sent to your email.