Tuesday, August 16, 2016

Different equalities

Joseph II, Holy Roman Emperor, Egalitarian

A month or two ago I finally finished Robert Kann's History of the Habsburg Empire, 1526-1918.  One of the reasons I say I "finally" finished it is that, frankly, it was kind of a dull read.

But this post isn't so much about German history as a train of thought begun by the following from Kann's history:

"To him [the Emperor Joseph II] the measures taken against discrimination meant the first step toward complete equality.  For that reason he wanted minorities to be protected, whether he respected them as he did the Protestants or disdained them as he did the Jews.  Nevertheless, he wanted to raise their standards after his fashion by legislation similar to the Tolerance Edict.  To him, equality under the law to decreed and enforced by an absolute government was not a matter of sentiment but of utilitarian rationalism.  To the extent that this rationalism ran in many respects counter to the feelings of the majority of his subjects, the absolute character of government had to be strengthened....Egalitarianism and absolutism may have been a strange mixture even in the eighteenth century; in the nineteenth century in the era of constitutional government, it appeared paradox.  Just the same, it is the decisive factor, which differentiates the idea of Josephinism from that of mere adherence to the German-directed, centralized bureaucratic state."

The idea of equality is undoubtedly the most potent in American political and legal rhetoric, from "All men are created equal" to "the equal protection of the laws."  But its application can be hightly problematic.

Equality is, to begin with, a metaphor.  Literally, equality is a mathematical relationship between two quantities.  And to the extent that any characteristic of human beings may be quantified--height, weight, age, I.Q. (questionable, I know)--there is certainly no empirical, measurable equality between all human beings in the literal sense.

And of course that's not really what we mean by the term.  On a first pass we might say that we mean that all people should be treated alike.  That's good as far as it goes, but of course a moment's thought shows we don't really believe that.  I treat my own children differently from others' children, and no one thinks that that's an offense against equality.  I am not treated in the same way, I don't have the same authority as the President of the United States.  That is one example from a whole extensive system of hierarchy and authority that is universally and largely-unthinkingly accepted, rightly, as just, even though in fact it's hardly consistent with the notion that all people should be treated alike.  Likewise, we treat convicted thieves differently from those who are not thieves.

Does this sound trivial or ridiculous?  Maybe.  But it seems important to occasionally acknowledge that our entire social, legal and political worlds consist of detailed guidelines for to how to treat people differently (or how to, using a loaded word, discriminate). The criminal law tells us which people must be punished.  The law of torts tells us which harms people will be held responsible for (and which harms are overlooked).  The law of property tells us who may or may not cross that sacred boundary between meum and tuum.  We cherish equality above all else in our rhetoric, but we swim in an ocean of distinctions and privileges that we hardly acknowledge.

An example:  the recent political conflict over whether relationships between people of the same sex should be considered marriage--at least before it was removed from the ordinary democratic process--was largely waged in terms of whether the law should embrace "marriage equality"--except that, of course, marriage in the law is a personal status which carries distinctive rights and duties.  The law of marriage in a fundamental sense has as its purpose the maintaining of a distinction between the married and the unmarried.  And in fact no one really wanted to end that fundamental discriminatory division, only move one relatively small group over the line, from one side to the other.

So, the more I think about it, the notion of equality seems, if not empty, at least arbitrarily malleable.  Yes, of course, persons similarly situated should be treated the same.  That principle of equity is about as old as the law itself.  The norm that legislation should be of general application, that courts publish opinions and follow precedent, are results of that same principle. But the substantive question of whether two persons, two actions, two relationships are in fact similarly situated is the real heart of the matter.  The demand for equality merely frames the question; it doesn't provide an answer to whether two things are so similar that it would be unjust to treat them differently (or so dissimilar that it would be unjust to treat them identically).

Josephine equality was, in essence, the dilution of manorial jurisdiction in favor of Hapsburg absolutism.  It brings to mind the old saw about the Ottoman Empire, that all men were equal, because all were equally slaves of the Sultan.    I do not say, of course, that equality, in the old sense of equity, is not fundamental.  But it can obscure if appealed to with an unspoken implication that any differentiation whatsoever is necessarily unjust.


The Thought Criminal said...

Thank you for an interesting piece about equality, something I admit I'm rather obsessive about in politics.

"So, the more I think about it, the notion of equality seems, if not empty, at least arbitrarily malleable."

In political terms, equality means a number of things, equality before the law, equal rights to the vote (assuming sufficient maturity to exercise a responsible, informed vote), an equal right to own the product of your labor, and barring the impossibility to earn your living, whether through disability or the failure of the economy to provide you with that, an equal right to being provided with the means to live and to live at a decent level of security and respect. I would add an equal right to the chance to become educated and, perhaps most of all, an equal chance to not be lied to and deceived by those who want to violate your equal rights or to talk you into violating them to either that person's benefit or your own or that of your group.

I think the reality of equality is best demonstrated by imagining, or most potently and persuasively of all, experiencing it yourself or on behalf of your loved ones.

As to it being arbitrary, I would say only when debating it. On the higher level of experiencing and practicing it, I would say "difficult" or "hard" or "open to argument" rather than arbitrary but a lot of important things in life are all of those, including, at times, being arbitrary. When that is the case then accepting that difficulty, with some very real limits that would tend to favor equal treatment because to favor the opposite is so bound to corrupt those with the powers of wealth or, even more so, persuasive apparatus and, with them, the entire society, the dignity, the rights, and on to the very rights of those with less power of fewer numbers so often being the result of that.

The real, though often more apparent or arguable, differences in ability don't have an effect on the kind of political-economic-social equality I'm talking about, often those define the very reasons that equality before and through the law is important. Though, very often, the differences asserted are the product of inequality and not something that would be an inherent feature of individuals or individuals as considered in a group who are deprived of equal rights to all of those, especially the equal right to the product of their labor, equal rights to education, information, and, in the end, an equal right to the respect and civic affection which is inevitably involved with providing those instead of depriving people of them.

rick allen said...

TC, thanks for your thoughtful comments.

Part of my thinking was that, with respect to evaluating whether a certain practice is just, the existence of inequality is the beginning of the inquiry, not the end. You noted various contexts in which inequality is widely (and I think rightly) disapproved, and I was struck by this item: " equal rights to the vote (assuming sufficient maturity to exercise a responsible, informed vote)." We believe that everyone has the right to vote, but then, in the act of saying that, we have to admit honestly that we do discriminate by age. We then look for a justification for that discrimination, and most of us are satisfied by the rationale that persons under a certain age lack sufficient maturity to vote. We do, though, generally refrain from what might be the next question, is maturity really a direct function of chronological age? Can't most of us identify any number of adults whose maturity falls short of your average fifteen-year-old? It's not that I want to open that particular can of worms, but it's a decent example of how our application of the principle of equality is qualified by any number of other values and assumptions.