BASIC EQUALITY AND ITS CONSEQUENCES
6.1. Nothing is easier than to locate faults in the writings of others (although this facility is in some cases mitigated by what can virtually be considered a sport of the author in question to hide the arguments through a line of reasoning that makes them hardly accessible). I must, now that it is time to contemplate and assess my own thoughts, be just as critical as I was before, in evaluating theirs, and will try to maintain the same rigor here; the reader is of course the proper judge to determine whether I will in the end have acquitted myself of this task.
6.2. A number of possible views to defend granting the rights necessary in a liberal democratic state were presented and analyzed above. First, the views of Rawls and Dworkin were presented. They appear to adhere to certain conceptions with regard to human beings and to argue that certain rights should be granted on the basis of these respective conceptions. They do not explicate the presuppositions inherent to their respective models of thought but do seem to cling, in differing ways, to the view that the nature of a human being is to be considered something special. I have unearthed the presuppositions in these views and subsequently examined whether they can lead to a tenable outlook; having brought to light the starting points with these two thinkers, the examination was expanded to include every possible account that uses such a basis. The first possibility is to presuppose that ‘human dignity’ is, in and of itself, a sufficient basis to grant rights. The second possibility focuses rather on a specific feature, although it is one only found in humans (as far as one can tell), namely rationality or reason in a ‘moral’ sense. Neither position can be maintained, for the reasons provided in the previous chapters.
An alternative would be to leave the goal to find a cogent explanation and simply start with one or more assumptions or postulates. This is what Dahl, among others, suggests when he presents as an assumption: “[…] the moral judgment that all human beings are of equal intrinsic worth, that no person is intrinsically superior to another, and that the good or interests of each person must be given equal consideration. Let me call this the assumption of intrinsic equality”1.
I will not resort to such drastic measures, for two reasons. First, although such starting points are at times unavoidable2 (which was the reason for me to acknowledge in section 2.4 the appeal to intuitions in some cases), the fewer one introduces the better, in order to meet one’s justificatory obligations as far as possible. Second, to start thus would immediately raise the question of the scope of the relevant beings when it comes to distributing relevant rights, a criterion for which is now lacking for precisely the reason that a starting point is used: this is characterized by the fact that it cannot be justified in such a way (for otherwise that which would provide the justification, or possibly an even more fundamental point, would be the real starting point). The authors just mentioned, for example, would include all human beings, while those stressing animal rights would desire a domain that is more expansive than this, while still others might, by contrast, limit the scope to include only a number of people, excluding others, on the basis of whatever criterion (e.g., race). This is a problem that must be taken seriously and eliminated if possible.
In my alternative, reason will feature prominently, but it will (in contradistinction to what is decisive in Kant’s view) be reason in the sense in which I distinguished it above, viz., as a faculty which is focused on the non-‘moral’ goal of obtaining the most desirable outcome in the long term.
6.3. Westen claims that “Equality is an empty vessel with no substantive moral content of its own”3. This is a conclusion from the – circular – consideration that “[…] equality […] tells us to treat like people alike; but when we ask who ‘like people’ are, we are told they are ‘people who should be treated alike’”4. In a similar vein, Lucas argues that ‘equality’ does not add anything relevant when it comes to the decision which beings are to treated in any way5. These considerations cannot be ignored, and may seem to be detrimental to the concept of basic equality as I have introduced it when it comes to human beings (viz., as the (approximately) equal reasoning power, or rationality), or at least to reduce it to a redundant definition, to be dispensed with in a similar way as some of the notions scrutinized in the previous chapters. After all, the crucial element, rationality, or, more precisely, some degree of rationality, is observed in each person6, and the fact that it can be observed in each of them (approximately) equally adds nothing to that given.
Strictly speaking, this is correct, and ‘basic equality’ may in that respect be replaced by its specification ‘basic rationality’, so that the relevant respect in which the beings are necessarily equal is immediately clear. Alternative specifications of ‘basic equality’ likewise provide the desired contents. Still, with these remarks in mind, I see no problem in continuing using ‘basic equality’, so long as one realizes that it is merely a ‘function’, to use a mathematical simile, or indeed an empty vessel, to speak with Westen, waiting for its contents7. Factual equality is, then, the result of the observation of any feature in two or more beings, rationality, I will argue, being the optimal candidate in the case of basic equality, when factual equality is specified thus. As I outlined in the introduction, prescriptive equality is the judgment that those who are rational should all be treated in some way, to be explicated by formal equality as that which is characteristic of a liberal democratic state8. As was described in the introduction and section 3.2, Dworkin distinguishes between ‘flat’ and ‘normative’ equality. In a similar (but in important respects differing) vein, my distinction will be between factual, basic and prescriptive equality.
Prescriptive equality and formal equality are identified at this point, but I remark here that strictly speaking they must be distinguished, or, more accurately, two sorts of prescriptive equality are involved. Prescriptive equality is what those who are basically equal prescribe to each other, while formal equality is the corollary of this, namely, the actual manifestation of this given, realized by the legislator. The acknowledgement of basic equality is thus the first step, followed by prescriptive equality in the first sense, i.e., the demand by those who are basically equal that they be treated equally, which is in turn followed by prescriptive equality in the second sense (which is properly identified with formal equality), i.e., the demand by the legislator that they be treated equally. I add this caveat primarily for methodological reasons, since practically these two sorts of prescriptive equality can be identified. After all, in a liberal democratic state the legislator represents those who demand the first sort of prescriptive equality.
6.4. The distinction between factual equality and basic equality may seem to be trivial. That I have differentiated between them is prompted by the following. Factual equality may be observed: approximate equality is at least apparent in many respects. Still, the jump from this given to prescriptive equality would be too great, since there is, at the level of factual equality, no clue as to the basis to treat beings equally. For example, a deaf person cannot hear, while a ‘normal’ person can, just as a ‘normal’ dog (the latter, moreover, usually having a hearing that is vastly superior). The ability to hear is considered irrelevant when it comes to the issue that is at stake here, namely, treating them equally (the prescriptive equality aspect) in granting rights. Basic equality is needed to make it clear which aspect is decisive, thus specifying factual equality.
A circle seems to emerge, for the prescriptive equality question (namely, “who is to be treated equally with whom?”) and the basic equality question (namely, “who is to be considered to be equal to whom?”) are answered from one and the same perspective. The circle is, I maintain, not a weakness of the model, but rather a strength. (No logical circle (petitio principii) is involved here, by the way.) It does mean that a normative stance is ruled out if the normativeness should be exhibited by a distinction between a descriptive domain and a normative one9. If a normative stance is argued, the circle needs to be resolved, the descriptive domain not being reducible to the normative, or vice versa. Such a position would be hard to take in any event, I think, for the reason put forward already, namely, that a ‘moral’ domain is difficult, and perhaps impossible, to discern. Besides, I have started from the premise that such a domain should only be included in the analysis if this should prove necessary, and I have seen no reason to leave this cautious stance. The meta-ethical issue of how to bridge the chasm between the descriptive and the normative realm (the ‘is-ought’ question10) does not, then, present itself as a problem for me, but some additional attention to this matter so as to alleviate any remaining concerns may be in order.
I note, first, that my outlook is not without precedent. Hobbes argues that equal treatment is prescribed11 on the basis of the existence of actual equality: “Whether […] men be equall by nature, the equality is to be acknowledged, or whether unequall, because they are like to contest for dominion, its necessary for the obtaining of Peace, that they be esteemed as equall; and therefore it is […] a precept of the Law of nature, That every man be accounted by nature equall to another, the contrary to which Law is PRIDE”12. (For completeness, I must account for the fact that Hobbes here appeals to the law of nature as he understands it. I will not deal with this matter here in detail, but refer to my treatment of it elsewhere, where I argued that no ‘moral’ dimension corresponds with this motivation13.)
A similar connection between prescriptive and basic equality (to phrase the matter in my own terms), at least in this respect, is demonstrated in one of Locke’s major political works: “[…] we must consider what state all men are naturally in, and that is, a state of perfect freedom […]. A state also of equality, wherein all the power and jurisdiction is reciprocal, no one having more than another; there being nothing more evident, than that creatures of the same species and rank, promiscuously born to all the same advantages of nature, and the use of the same faculties, should also be equal one amongst another without subordination or subjection: unless the lord and master of them all should, by any manifest declaration of his will, set one above another, and confer on him, by an evident and clear appointment, an undoubted right to dominion and sovereignty”14. He also puts it as follows: “The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions […]”15.
Pointing to such similarities cannot suffice, however, for it is not ruled out that these philosophers were simply mistaken, and if I were to consider this state of affairs a reason to cease the inquiry here, I would, if this should indeed be the case, add a faulty analysis to the stockpile of philosophical arguments amassed over time, and, apart from that, commit an obvious argumentum ad verecundiam, ironically acting against the precept of the person just mentioned, as he is the originator of this designation16.
What my analysis amounts to is that the normative domain (the domain where ‘ought’ statements are made) is dissipated, or at least considered irrelevant (until a ‘moral’ argument could be compellingly made, if ever). A similar conclusion is reached by Zimmerman, who essentially says that ‘ought’-statements have no added value: “If a man wants to break promises, tell lies, rape or kill, which is better, merely telling him he ought not to, even if it succeeds in restraining him, or telling him that if he does what he wants, he will be disliked, ostracized, punished or killed?”17. A word such as ‘ought’ may, by the way, continue to be used in the same sense as ‘should’ in a non‘moral’ way (in saying, e.g., that one should follow a certain procedure in a deductive reasoning, or that human beings should be treated equally with one another18)19, just as ‘good’ may be used in a non-‘moral’ sense (one may, e.g., say that a piece of music is good in the sense that it is pleasing or composed in conformity with a certain standard or practice).
6.5. In light of the preceding considerations, ‘prescriptive equality’ is an unproblematic notion (as well as an indispensable precept in a liberal democratic state), while the same cannot be said of normative equality, which is the position that there is a ‘moral’ duty to treat some beings equally with one another. Normative equality may be defended instead of, or in addition to, prescriptive equality, but normative equality cannot serve as a basis for a political philosophy or a philosophy of law, since the ‘moral’ notions involved in it do not necessarily have a meaning. (Should this be considered too stark a position, I would, arguendo, resort to the more cautious alternative of suspension of judgment with regard to such matters, maintaining that prescriptive equality is sufficient to account for the granting of rights.)
This does not mean that normative equality might not be desirable, but if that – its desirability – is its base, no compelling result is reached, of course20. Whether people (and animals) are actually treated thus is to be decided by those in charge; what they find desirable will be decisive. In a (liberal) democratic state, that will be the will of (the majority of) the people. (This does not amount to an elaborate theory such as Rousseau’s, according to which the people is always right, expressed through the general will (‘la volonté générale’), a – political – minority being (in hindsight) mistaken21.) Since normative equality is not based on an empirical observation or a compelling analysis, I cannot refute it. It cannot, however, serve as a starting point, either, for precisely the same reason.
Even if this issue is ignored, those propagating normative equality would have to choose on what basis some beings should – ‘morally’ – receive a certain treatment, while, if they do not include every being in their analysis, they would have to address the question why some beings are relatively poorly treated. I pointed out the problems with one such undertaking in chapter 4. Alternatively, one could start with a very concrete (approximate) equality between beings, but this would c