|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.