THE RISE OF FORMAL EQUALITY
1.1. In order to make it clear what the relevance is of the analysis that is to follow, I will start with a sketch of the development of formal equality, which I take to consist in granting equal rights, on the basis of formal equality, to those deemed basically equal; they are, simply said, to be treated equally. Formal equality is the result that should ensue from what will be argued in this first part of the study. The actual realization of this sort of equality in liberal democratic states is the result of a long and steady process. This is not a descriptive historical work and I will refer to relevant facts only when necessary to illustrate a point; the assessment of slavery is such a case, with which I will commence this inquiry. It will be elaborated upon in chapter 6.
1.2. At a time when slavery was considered (as far as can be determined) something mundane by many1, it was not out of the ordinary to have an outlook on basic equality as Aristotle’s, who distinguishes between those who are naturally masters and those who are naturally slaves; being able to use one’s reasoning powers is the decisive quality for the former, while being able to use one’s body is the decisive characteristic of slaves2. Apparently, Aristotle’s conception of basic equality includes fewer beings than does mine (unless this statement is taken to testify to a different idea of ‘rationality’ than mine, but that has no bearing on the outcome in practical terms). This may be contrasted with Cicero’s position, who seems to interpret basic equality to refer more broadly than does Aristotle:
“Of all the matters that are discussed by learned men, nothing is verily more important than that it is clearly understood we are born for justice, and that law is not constituted by opinion but by nature. This will be clear if you examine the association and society between men. For nothing is as alike to another, or as similar, as we all are to each other. If the corruption of customs, if the emptiness of opinions did not wind an imbecility of minds and turn them in whichever way, no one would be as like himself as all men are like all others. Accordingly, whatever the definition of ‘man’ is, it applies to everyone. This is sufficient to prove that there is no dissimilitude within the species. If this were the case, no single definition could include everyone. Indeed, reason, by which alone we surpass the beasts, by which we can infer, argue, refute, discourse and accomplish things and reach conclusions, is assuredly shared by all; even though they may adhere to different teachings, their faculty to learn is equal”3.
The acknowledgment of the ability to reason in slaves is not inconsistent with slavery, unless basic equality is argued to be relevant in this respect. This is precisely what Seneca does in pointing specifically to the treatment of slaves: “Would you contemplate that the one you call your slave is born from the same seeds, enjoys the same sky, breaths, lives and dies in the same way! Now despise a man with this fortune, which, while you despise him, may befall you. This is the highest of my precepts: live with a man of lower standing in such a way as you would want a man of higher standing to live with you. Live indulgently with a slave, and courteously, and allow him to join you in discourse, counsel and meals”4.
What Seneca points out is that one has no way to protect oneself against the vicissitudes of fate. This is not the place to discuss the Stoic perspective on how to deal with life’s vexations; I have merely pointed to this passage to indicate that a certain equality is stressed by him that is shared by the slave and his master, which outstrips the qualities the master has and the slave lacks (and supersedes them when it comes to judging the actions the first performs). It is crucial that it be clear what the consequences of this sort of equality are for the scope of citizens, i.e., those who are to be treated as a citizen, and hence enjoy the same rights on the basis of formal equality, and on what basis it should be acknowledged.
1.3. This may be illustrated by an account of slavery, and how it came to be abandoned in the U.S.A. I will mention some relevant details here and come back to the issue in chapter 6, when it can be used as an illustration of my viewpoint.
Is basic equality in the sense of basic rationality necessary in a liberal democratic state? Perhaps not: did the U.S.A. not exhibit such a form of government before 18655, when slavery was abolished (with the adoption of the Thirteenth Amendment to the Constitution) (or before 1920, when women’s suffrage was achieved there for all states6)? It may be objected that prior to the acknowledgement of the relevant rights of black people and women, this country was not a liberal democratic state for precisely that reason, but that response would be based on a biased specification of ‘basic equality’7, looking at history with a model of liberal democracy with the standards by which one would at present evaluate a form of government. Formally, however, such a form of government was in place; the fact that those whose position would presently be taken into consideration were not in every sense treated equally with those who, or whose representatives, were in charge does not detract from this given. It simply means that a liberal democratic state existed with fewer people being considered bearers of rights and simultaneously constituents (or, to be precise, citizens) than would now be the case8. (I agree, consequently, with Schmitt when he does not consider human equality joined with democracy9. Democracy is merely a form of government and must not be confused with an ideal political situation10. One must not be misled into committing the category mistake of confusing the latter with the claim that a democratic form of government is desirable.)
For completeness I would add that another conception of democracy is possible, according to which certain rights are guaranteed, and the room to reach certain radical changes that would conflict with the respect for such rights is thus restricted11. This concept may alternatively be used (although I will critically discuss it in chapter 16), but in the interest of clarity, I will use the restricted conception – sometimes called ‘formal democracy’ – and speak of ‘liberal democracy’ when, in addition, certain rights are guaranteed12. That is not to say, of course, that each manifestation of this form of government is equally desirable, but that matter must be treated as a separate issue lest the methodology become sloppy. In any event, it is important not to make the (category) mistake to confuse liberal democracy with a presumably desirable form of democracy, in which all, or most13, human beings that reside in a country should be considered citizens, since it is precisely this matter which is in question: which beings are to be considered citizens14, and thus be treated formally equally with one another?
This is an important matter since the relations between persons in a state15 are mediated by the legislation and the powers enforcing it (an exception can arguably be said to exist in the case of friendship or perhaps family relations). For example, an employer and an employee do not interact directly, but as citizens, so that the relation employer-employee is laden with the legislation that specifies it; in their interactions they are both shielded by the applicable legislation that protects them against each other, as (some of) their interests necessarily conflict (e.g., the employee tries to obtain the highest possible wages, while the employer, simply put, wants the costs to be minimal)16. Absent such legislation, a ‘laissez faire’ situation (in economic terms) would be the case, and, more radically, absent fundamental norms, expressed primarily in penal terms, a society would not be possible at all17, or lack stability.
1.4. One may claim that people are (‘morally’) ‘right’ at this moment in resisting segregation, which would mean that many people were (in hindsight) ‘wrong’ in, e.g., the U.S.A. prior to 1865, when slavery was abolished, or even later, when black people did not have the same rights as white people in many respects, prompting, for example, the Voting Rights Act of 196518.
There are basically two possible positions. The first consists in locating some feature that beings supposedly have in common – the most commonly proffered candidates seem to be reason19 and ‘human dignity’ –, which would have to be acknowledged; not doing so would (presumably) be (‘morally’) ‘wrong’. The second option is to concentrate on the actual acknowledgement of equality and to look for the most likely and convincing explanation to qualify such behavior. Some shared feature may also serve as a justification for such a modus operandi, but this need not be problematic so long as one starts out with an observable characteristic, which, in addition, can account for the fact that the beings in question are treated equally.
The first option – which could be characterized as a top-down approach – brings with it the promise of an ‘elevated’ theory, while the ambitions of the second – a bottom-up approach – appear to be limited from the start. The downsides of each option are at the same time the benefits of its counterpart, however: in the case of the second option, there is a minimal need to incorporate notions the status of which is questionable, or which cannot, at any rate, compel assent by pointing to an incontestable given, which is what the first option may be faced with by introducing such notions. I will first present some important prevailing perspectives (those of Rawls and Dworkin), and then qualify these in terms of what I just outlined, paying special attention to Kant’s work. This will provide the proper context to present my own perspective.
Basic equality in the guise of basic rationality is no condition for a liberal democratic state to come into existence: formal equality need not apply to all rational beings, as the example of the U.S.A. demonstrates. The task that lies ahead is to identify the features that have led to basic equality and to inquire the consequences of this conception.
Rawls’s viewpoint is the first to consider; he emphasizes the relevance of rationality, promoting this characteristic as the crucial one of (in my terms) basic equality; whether he also clearly identifies it remains to be seen.