Chapter 6
1 R. DAHL, On Political Equality, p. 4. Likewise, Sadurski states: “[…] I will not try to justify why the principle of equality has, and should have, a legitimating force”, Equality and Legitimacy, p. 44. In response to such positions (although criticizing not these authors but two others, namely, Feinberg and Nielson), Friday goes so far as to say that “[…] helping [yourself] to a premise while admitting that it has no rational foundation at all is the abandonment of philosophy and a dismal foundation for moral and political theory”, “Moral Equality and the Foundation of Liberal Moral Theory”, p. 69.
2 Lest a circle or infinite regress (have to) be accepted (H. ALBERT, Traktat über kritische Vernunft, p. 15; cf. Plädoyer für kritischen Rationalismus, p. 20).
3 P. WESTEN, “The Empty Idea of Equality”, p. 547.
4 P. WESTEN, “The Empty Idea of Equality”, p. 547. Cf. H. L. A. HART, The Concept of Law, p. 159: “[…] any set of human beings will resemble each other in some respects and differ from each other in others and, until it is established what resemblance and differences are relevant, ‘Treat like cases alike’ must remain an empty form.” As Kelsen remarks: “He who is a believer will interpret the principle of equality rightly in such a way that only equals should be treated equally. Yet that means that the decisive question ‘what is equal?’ is not answered by the professed principle of equality. […] This principle is too vacuous to be able to determine a legal order’s design with regard to the content.” (“[Wer gläubig ist] wird das Prinzip der Gleichheit ganz mit Recht dahin interpretieren, daß nur Gleiche gleich behandelt werden sollen. Das heißt aber, dass die entscheidende Frage: was ist gleich, durch das sogenannte Prinzip der Gleichheit nicht beantwortet wird. […] Dieses Prinzip ist zu leer, um die inhaltliche Gestaltung einer Rechtsordnung bestimmen zu können.”), Was ist Gerechtigkeit?, Ch. 5, § 22 (p. 26). This matter is more thoroughly analyzed in Reine Rechtslehre, pp. 390-393.
5 J. LUCAS, “Against Equality”, pp. 298, 299. Cf. H. KELSEN, Was ist Gerechtigkeit?, Ch. 5, § 23 (pp. 26, 27).
6 One may argue that the concepts ‘person’ and ‘member of the species homo sapiens’ must be distinguished (P. SINGER, Practical Ethics, pp. 73, 74), in which case the nuance that rationality is not present in children and cognitively impaired persons need not be addressed separately. However valuable this distinction may be in the context of Singer’s line of reasoning, I do not use it, since it is not necessary for my purposes here, and ‘person’ has no special meaning for me, so that it may be identified with ‘human being’. This does not mean that I need not deal with the absence of rationality in the beings just mentioned; this issue will receive attention below.
7 Cf. J. WALDRON, “The Substance of Equality”, p. 1365: “‘Equality’ is used […] to identify properties on which commendations would supervene.”
8 This formulation entails, strictly speaking, a petitio principii, if liberal democracy is to be understood as the form of government that guarantees equal political and legal rights. Formal equality may, if one wants to avoid this circle, alternatively be specified by presenting an enumeration of the actual political and legal rights. A core, or ‘essence’, if one prefers, may be discerned here, but the precise enumeration will depend on the extent of the domain to which the principles of the specific liberal democratic state in question apply (e.g., whether mayors are elected or not).
9 In line with what I remarked in the introduction (note 20), I do not object to the concept of normativity so long as this is identified with prescriptivity. I will, however, take ‘normative’ to refer to the domain of ‘morality’ (the avoidance of the ambiguity of this concept was the reason to introduce the concept of ‘prescriptive equality’ in the first place).
10 The locus classicus is D. HUME, A Treatise of Human Nature, Book 3, Part 1, Section 1 (p. 469).
11 In Hobbes’s model of thought, the only source of prescription is self-interest (J. DOOMEN, “A Systematic Interpretation of Hobbes’s Practical Philosophy”, pp. 469, 470) (this does not detract from the fact that prescriptivity in the definition used here is the case; it just means that the sort of prescriptivity is clarified).
12 Th. HOBBES, De Cive (the English version), Ch. 3, § 13 (p. 68); cf. Leviathan, Ch. 15 (p. 107).
13 J. DOOMEN, “A Systematic Interpretation of Hobbes’s Practical Philosophy”, pp. 472-476.
14 J. LOCKE, Two Treatises of Government, An Essay of Civil Government (the second Treatise), Ch. 2, § 4 (pp. 339, 340).
15 J. LOCKE, Two Treatises of Government, An Essay of Civil Government (the second Treatise), Ch. 2, § 6 (p. 341). Waldron also argues that the step from the descriptive to the prescriptive domain is not taken by Locke, albeit from another consideration than mine (God, Locke, and Equality, pp. 69, 70).
16 J. LOCKE, An Essay concerning Human Understanding, Book 4, Ch. 17, § 19 (p. 260). This is not to say, incidentally, that such a fallacy should be avoided for this reason, since arguing thus would constitute another fallacy of the same kind. I therefore add that, since Locke’s observation seems to me a correct one, it will for that reason be taken to heart.
17 M. ZIMMERMAN, “The ‘Is-Ought’: An Unnecessary Dualism”, p. 56; cf. p. 61.
18 I include this second example just to make it clear (again) that I do not consider this precept (which constitutes formal equality) to be part of a ‘moral’ theory.
19 Cf. H. L. A. HART, “Positivism and the Separation of Law and Morals”, pp. 612, 613: “We must, I think, beware of thinking in a too simple-minded fashion about the word ‘ought’. […] The word ‘ought’ merely reflects the presence of some standard of criticism; one of these standards is a moral standard but not all standards are moral. We say to our neighbour, ‘You ought not to lie,’ and that may certainly be a moral judgment, but we should remember that the baffled poisoner may say, ‘I ought to have given her a second dose’.” (Cf., with regard to ‘should’, P. SINGER, Practical Ethics, p. 278: “‘Should’ need not mean ‘should, morally’. It could simply be a way of asking for reasons for action, without any specification about the kind of reasons wanted.”)
20 This is to be distinguished from the thesis (defended by, inter alios, myself, in this inquiry and elsewhere) that the most desirable result is to be realized,