by Aeon J. Skoble
It’s commonplace to hear the expression “law and order,” which has the effect of reinforcing the idea that the two are inseparable. In one sense, they are: something like legal rules are part of what makes social order possible. But under what is typically meant by the expression, they may not be inseparable. Where “order” refers not to the baseline cooperation that makes social living possible but to some particular political order, we could have order without law, for instance in a tyrannical society. Where “law” refers not to commonly understood principles for regulating our interactions with each other and providing stable expectations of the conduct of others but specifically to proclamations of centralized political authority, we could have order without law, as we see in historical and theoretical examples of polycentrism.1 So, what is it that allows for beneficial social order when we do not have polycentrism, but instead monistic legal authority? While I’ve argued elsewhere that social order without centralized political authority is possible, we do currently live in a world where centralized political authority is the norm. In some of these societies, the political authority is more beneficial than in others, where “beneficial” means more as opposed to less conducive to pluralism and prosperity (i.e., liberalism in the classic sense). I think that in those cases, where there is government, and there is government-made law, and we’re interested in a social order which is at least nominally directed towards pluralism and prosperity, equality under the law is an absolute necessity. My goal here is to examine what legal equality means and why it is necessary for liberal order.
One minimal meaning of legal equality is that the law says somewhere that everyone is legally equal. The 14th Amendment to the United States Constitution, for example, specifies that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; not shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” That is certainly a good working definition of legal equality. Prior to the 14th Amendment and its cousins the 13th and 15th, several states recognized the legality of enslaving other people. The language of these three amendments makes it clear that the law cannot countenance slavery: slavery is the clearest case of a lack of legal equality. So the 14th Amendment looks like it’s correcting for this and clearly announcing legal equality for “all persons.”2 This brings the law into better alignment with the philosophical claim in the Declaration of Independence that “all Men are created equal [and] endowed by their Creator with certain unalienable Rights [including life and liberty].”3 It is obvious that if this claim is true, legal equality is entailed, which slavery contradicts. Arguably, the 13th and 14th Amendments are making the law more consistent with the philosophical principles the Declaration is based on. Legal equality is a necessary component of that consistency.
Of course, history demonstrates that despite the 14th Amendment’s language, in practice we often fail to see legal equality. An obvious example would be state-mandated segregation. But there are other examples far less obvious, and it is these which require further examination. It is not sufficient, then, to merely say “everyone enjoys legal equality.” There also needs to be broad understanding – in judges and lawmakers, but also in the populace generally – of what legal equality means and why it’s important. One way to understand legal equality is in terms of rights. Of course, that could work in both directions: we have legal equality if we have equal rights, and we have equal rights if we have legal equality. But I am not suggesting that the mere definitional equivalence does all the work; I mean that we will better understand what legal equality is if we think about it in terms of rights. Also, whether we can work towards equality of legal rights is a function of how we understand rights in the moral or philosophical sense. Some rights are purely creations of the legal system; others make the law reflect moral claims.
For example, that 18-year-olds have the right to vote while 17-year-olds do not is not an example of morally-problematic inequality. 17-year-olds typically turn into 18-year-olds, so this is not a class-based exclusion such as denying voting rights to Blacks or women. It treats 17-year-olds differently, but not unequally in the bad sense, since they’ll be able to vote when they meet the minimum. This is analogous to the fact that people without a driver’s license are treated differently than licensed drivers: one gets to do something another does not, but people are being treated equally (provided that anyone is allowed to seek licensure). Saying “no women can vote” or “no Blacks may seek drivers licenses,” on the other hand, would be failing to treat people equally. People can be eligible for differential treatment for a variety of reasons – one of which is lack of recognition of their equal status as members of society (which would be bad); others of which would involve factors that aren’t per se bad, such as “hasn’t learned how to drive” or “hasn’t been to medical school” (which are (a) reasonable and (b) something one could do something about).
Most states have laws forbidding theft and murder. These laws follow directly from moral principles without which it would hard to even imagine society forming. Unlike the (somewhat) arbitrary age cut-off for voting rights, the ideas that it’s wrong to murder someone or take their property non-consensually are grounded in the minimal requirements for social living. Taking seriously the idea that people have a right not to get murdered means that, if you’re making rules to prohibit bad conduct, you would make a law forbidding murder. If in some society it were forbidden only to murder certain people but not others, that society would (obviously) lack legal equality. But note that the reason it lacks legal equality is that also lacks a conception of moral equality. If an aristocrat is legally entitled to murder a peasant, but not vice versa, this is easily accounted for by that society’s understanding that some people matter more than others. In liberal society, this cannot be the case. It is the fundamental moral equality of persons that underwrites a conception of legal equality. Treating people as equals therefore can be understood as having their rights equally respected. If I can kill some people (though not others) with impunity, we do not have equality under the law. If I can take some people’s property (though not that of others) with impunity, we do not have equality under the law. Hence equality of legal rights tracks equality of moral rights.
The preceding is not particularly controversial though. What also needs to be seen is the less obvious cases. For example, the 4th Amendment protects against unreasonable search and seizure. So in theory, everyone should be equally immune from being stopped and frisked and prevented from going about their business. Yet there is ample documentation of “racial profiling,” which means we are not equally immune. The 1st Amendment protects the right of free press, yet some publications are held to a higher level of scrutiny as to whether they are protected (typically things that people with greater political influence find offensive or dangerous). In the commercial realm, a business that acquires special protection from competition is receiving unequal treatment; their would-be competitors’ rights to earn and trade are compromised via regulatory capture. These are all examples of unequally-applied rights violations which in fact treat people unequally. Their unequal legal treatment is objectionable precisely because it’s unequal, and means that the society is not fully respectful of their equal moral status in society. This is contrary to the liberal principle of the equality of persons; hence the more examples of this we find, the farther away from liberalism the society is.
Institutions of liberalism such as legal equality are both derived from and dependent on the moral premise of civic equality. What makes us see each other as moral or civic equals both requires equality before the law and depends on equality before the law. Without that, we get social institutions like caste or Jim Crow, with blatant illiberalism, or the Soviet/Chinese model, with lip service to egalitarianism layered over illiberalism. But even in our actual society, we need to be careful about violations of rights and legal privilege. People have a right to try to earn a living; regulatory capture creates special privilege and violates rights. People have a right to privacy; the surveillance state violates that. People have a right to peaceful autonomy; hyper-aggressive policing violates that. Liberal social order depends on actual civic egalitarianism, the idea that no one is entitled to special privilege. This means that no one’s rights are more important, or less important, than anyone else’s. That is the value of equality before the law.
NOTES
- See, e.g., Bruce Benson’s 1990 The Enterprise of Law: Justice Without the State and Edward Stringham’s 2007 edited volume Anarchy and the Law. ↩︎
- Note that the language “all persons” makes no more reference to gender than it does to race. So on grounds of logical consistency alone, denying women the right to vote would be as illegal as denying Blacks the right to vote. Of course it took decades for this inconsistency to be corrected. ↩︎
- We needn’t relitigate here whether rights come from God or from nature broadly construed; for our purposes, it’s the idea that we have rights conceptually prior to the establishment of government that is doing the work. ↩︎
Aeon J. Skoble is a Professor of Philosophy at Bridgewater State University. Send him mail.
Isonomia Quarterly 