Freedom and equality are generally considered to be important elements in the political realm. Yet there is, at the same time, a tension between equality and freedom. The purpose of this inquiry is to examine to what extent equality and freedom are necessary constituents of a liberal democratic state.
The question seems circular from the outset. After all, I will not research every form of government, but merely liberal democracy, which is characterized by precisely these matters, equality and freedom, at least in principle. The fact that I will limit my research in this way stems from the given that some forms of government can easily exist without the premises that confine the present inquiry. Whether it is agreeable to live in a state with such a form of government is, of course, an altogether different matter. In any event, if I were to apply my research question to such governments as well, the research with regard to them would not only be peculiar, but easily concluded as well: equality and freedom are not necessary conditions for all forms of government1. This still does not liberate me from the other part of the question, and the circularity does not seem to have been resolved: if I am to limit myself to the liberal democratic state, why should the question be posed at all? The first reason for this inquiry is that the concept of ‘equality’ is ambiguous. It simply will not suffice to say that equality in any unqualified sense is necessary. ‘Freedom’ may also be used in many ways, although the difficulty here lies primarily in finding the proper criteria to restrict liberties; such liberties must exist, of course (lest there not be a liberal democratic state in the first place), but that does not mean that they cannot be mitigated in some cases.
It is, then, necessary to determine what ‘equality’ and ‘freedom’ mean. ‘Freedom’ is a notoriously elusive concept, in some discussions even extending to the discussion of the existence of a ‘free will’ (which has no bearing on the current research), so some preliminary remarks are in order. First of all, ‘liberty’ and ‘freedom’ may be distinguished. Dworkin does so in the following way: “I distinguish your freedom, which is simply your ability to do anything you might want to do without government constraint, from your liberty, which is that part of your freedom that government would do wrong to constrain”2. He clearly has a ‘neutral’ situation in mind when defining ‘freedom’ (a tiger hunting a deer is free, in contrast with one being held in a cage; or, to use human examples, under ‘normal’ circumstances, a person is free to travel, in contrast with a prisoner), which is contrasted with the comprehensive, or even value-laden, notion of ‘liberty’. Such a distinction may be warranted, but since the terms can be defined the other way around with just as much justification3, I will forgo it and use ‘liberty’ and ‘freedom’ interchangeably, rather adding adjectives to specify the notions if necessary.
Incidentally, Dworkin uses the same method to distinguish between various perspectives when he says: “We use the words ‘liberty’ and ‘equality’ in two senses. We use each as a flat description that carries, in itself, no suggestion of endorsement or complaint, and we also use each normatively to identify a political virtue or ideal that we endorse. We use ‘liberty’ in its flat sense simply to indicate the absence of constraint”, […] “We use ‘liberty’ in its normative sense, on the other hand, to describe the ways in which we believe people ought to be free”4.
In any event, it appears that Dworkin considers ‘freedom’ here to be negative freedom (as Berlin defines it5). This is also how it will be used by me, unless specified otherwise. Freedom in this sense, when applied to the present inquiry, is manifested, e.g., in freedom of expression, which does not point to any criterion with regard to the content: no evaluation takes place here for the freedom to exist. An evaluation may be the case when it comes to the decision which manifestations are to be limited, e.g. in order to prevent hostile situations, but that is another matter since no judgment pertaining to the ‘truth’ of the content is involved here; rather, the negative outcomes of allowing the freedom to be manifested in this way are concerned. Indeed, if the content were judged in such a way, it would not be amiss to say that a liberal democratic state is not realized in the first place. This means that a ‘substantive’ concept of freedom, as set forth by, amongst others, Rousseau, who contrasts ‘natural liberty’ (‘liberté naturelle’) with ‘civil liberty’ (‘liberté civile’) and ‘moral liberty’ (‘liberté morale’)6, Hegel7 and Green8 will not be espoused here. Such a concept may be useful, or perhaps even necessary, if one should wish to found a philosophy of law with a metaphysical and/or ‘moral’ superstructure, but I need not presently be concerned with the issue of whether such an ambition may be realized at all, as my aspirations are relatively modest here.
‘Equality’, just as ‘freedom’, may be specified in many ways9, so it is incumbent on me to make it clear from the outset which sort or sorts of equality I will explore, and why. The concept of equality that will feature prominently in my inquiry in the first part of this study is that of formal equality, which I take to include: (1) political equality, consisting of granting political liberties, such as the right to vote10 and freedom of expression, and (2) legal equality (or equality before the law), which entails the right to equal treatment11. As for both elements, I will research on what basis the existence of these rights can convincingly be argued (i.e., on what basis they exist in the first place), and why they are necessary.
In the case of political equality, the point of departure will be that political liberties are not to be restricted in any way. These liberties are not problematized until the second part of this study, at which point it will be inquired whether and, if so, to what degree restrictions could be justified.
As for legal equality: the equal treatment that is the focus here is the treatment that leads to equality of opportunity. By ‘equality of opportunity’ I mean here simply that certain characteristics deemed irrelevant are not to be decisive for the outcome of a process between individuals who are in other respects equal (or basically equal, as I will call it). The relevance will be decided according to the demands called for, so that it is, incidentally, immediately clear that material equality, also known as equality of outcome, is not the issue at hand12.
In one respect, though, formal equality and material equality overlap, if ‘material equality’ is understood broadly: formal equality entails – to anticipate matters somewhat – among other things that employers may not discriminate on the basis of, e.g., race or gender, thus allowing all those that are qualified, irrespective of the specifics just mentioned, to be taken seriously as prospective employees. (Employers may still use specific qualifications as criteria to select, so long as these are relevant for the job (and even the characteristics just mentioned may be used to select: actors, e.g., may be chosen on the basis of gender or race), which is what prompted my remark that ‘material equality’ is to be understood broadly.)
It may be argued here that the notion of (negative) liberty does not apply unequivocally, in the sense that an employer who wishes to decide which candidate to hire on the basis of the prospective employees’ racial backgrounds is impeded to do so by legislation against such discrimination. It is unmistakably an infraction on the liberty of such an employer to decide for himself how to proceed, but such an infraction may be justified on the basis of considerations that outweigh this liberty.
The sorts of equality that will not be inquired, then, are those concerned with economic equality13, such as material equality14. That does not mean that they are not important, but for this inquiry’s specific goal their meaning serves no purpose, as this sort of equality is only an issue once formal equality has already been accepted as a guiding principle. Economic equality can further specify the conditions, but formal equality must have been acknowledged in the first place. (There are, of course, examples of states in which formal equality is not even an issue, but these exhibit a form of government irrelevant to this inquiry, which focuses on liberal democracy.)
The point that, with formal equality in place, different outcomes are possible when it comes to economic equality can be illustrated by pointing to two states that exhibit, I think few would contest, a liberal democratic structure, namely, Norway and the U.S.A. Both states are characterized by the presence of representative democracy and important political liberties15. Yet when economic equality is considered, there appear to be great differences, Norway being a welfare state16, in contrast to the U.S.A.17. This means that various ways of dealing with the economic positions of citizens are compatible with the model that I will research. The specific measures taken at that level may in fact be seen as a specific concretization compared to the a priori structure of the liberal democratic state, which is the foundation18.
One crucial question has hitherto remained unanswered, namely, that of the equality of whom: who is to be considered equal to whom, and why should such equality be the case? This question has so far received relatively little attention19, debates usually being focused on the economic equality issues. It is the question I intend to answer in the first part of this study, and which in fact precedes the question of which equality should be realized. To that effect, one or more additional concepts of equality are required, of course. After all, if I am to focus on formal equality, it must be clear what the criteria are to be treated (formally) equally. To that effect, I shall use the concepts of factual equality, basic equality and prescriptive equality.
Factual equality is the equality that can in fact be observed to exist between two or more beings, either precisely (in which case there is identity) or approximately. The latter (approximate equality) is in practice the most important variation of the two. Basic equality is a specification of factual equality: factual equality is observed in many ways, and basic equality is the sort of factual equality between two or more beings that is considered relevant to them. Crucially, the beings that consider whether the feature is relevant are both those that observe the factual equality and those that distill the relevant aspects for basic equality from it. Prescriptive equality is the sort of equality that should be realized, but not on the basis of a ‘moral’ insight20 but rather on the basis of what those already deemed basically equal consider the most desirable outcome. It is the demand that those who are basically equal should be treated equally and thus the general, abstract form of formal equality, which specifies what this equal treatment should mean (namely, that those who are basically equal should enjoy the same rights).
This sounds somewhat abstract, perhaps, and I will not (inappositely) use the excuse that this is only the introduction, which serves merely as an outline, but illustrate the matter to some extent, so as to indicate the importance of these distinctions. The relevant basic equality between human beings consists in their (approximately) equal rationality (or reasoning power21)22. This is, for reasons to be explored in detail in chapter 6, the crucial element for a liberal democratic state to remain in existence23. Prescriptive equality consists in the corollary of basic equality, namely in the fact that those who are basically equal should be treated equally24. ‘The most desirable outcome’ just mentioned would in the present context consist in the necessary conditions for a liberal democratic state to remain in existence. A final concept of equality is needed in order to concretize prescriptive equality, which is formal equality. This is the prescriptive equality needed for a liberal democratic state to remain in existence. It consists in granting equal rights to those deemed basically equal25.
This account should secure a solid ground to justify the presence of formal equality and thus provide the answer to the first part of the main question addressed above, viz., to what extent equality is necessary in a liberal democratic state. With that in mind, I will turn to the second question and inquire to what extent liberty must be granted to citizens in a liberal democratic state. Formal equality is a demand that is realized through legislation which, when enforced, places restrictions on individuals’ freedom, but that does not necessarily entail that each individual will accept it as a decisive (or ‘right’) directive; he may simply obey the law since failing to do so may result in punishment, in which case he may be said to be externally rather than internally motivated to comply. An appeal to formal equality is in each case an appeal to a judge who will realize the consequences of the relevant legislation, or – if one directly addresses an individual that (presumably) does not adhere to the appeals made by the norms of formal equality – the threat with such an appeal directed at such an individual. This means that the answer to the question to what extent equality is necessary in a liberal democratic state merely provides some limits on individuals’ freedom (to the effect that they do not discriminate): it does not address the matter what room is left, once these limits are acknowledged, for individuals’ freedom, so that this subject matter warrants a separate treatment.
From the foregoing it appears that the questions of freedom and equality cannot be ‘surgically’ separated26. I already pointed to an employer who is faced with the fact that he may not use any criterion he deems fit to choose between prospective employees. Apparently, then, certain liberties are a priori restricted, in the sense that some characteristics, such as race and gender, may, as a rule, not be used as selection criteria. This is a given (legislation exists that is enforced if necessary), but that does not answer the question why such restrictions should (have to) be the case.
To provide such an answer, one may appeal, as some authors do, to notions such as ‘human dignity’ axiomatically, as if these were starting points that could (or may) not be questioned. Even if this is deemed a desirable strategy from a political point of view, the question arises whether it can ultimately lead to a convincing theory. No notion should be exempt from scrutiny, and if any is considered to be basic on whatever ground, this is no reason to desist from subjecting it, or its proponents’ considerations to advocate it, to a critical analysis, but in fact provides all the more justification to