Home | Databases | WorldLII | Search | Feedback Otago Law Review

Smith, N --- "Why Do We Speak of Equality?" [2005] OtaLawRw 4; (2005) 11 Otago Law Review 53

Why Do We Speak Of Equality?

Nicholas Smith*

* BA (Hons) LLB (Natal), Lecturer in Business Law, Massey University. Thanks are due to Jim Evans and an anonymous referee of this journal. I have also benefited from comments made in response to a presentation of this paper at a “Symposium on Equality” held in May 2004, organised by the University of Auckland School of Law. I presented versions of this paper at seminars in Massey University’s School of Accountancy during 2003 and comments received from colleagues on those occasions were most helpful.

Introduction

[I]t is one of the basic tenets of almost all contemporary moral and political theories that humans are essentially equal, of equal worth, and should have this ideal reflected in the economic, social, and political structures of society.[1]

The editors of that compendium cite Will Kymlicka who has suggested that all political theories that are taken seriously today are egalitarian theories in the sense that equality is their foundational value.[2] Kymlicka was, in turn, taking this idea of equality’s central role in modern political philosophy from the work of Ronald Dworkin who has, over the last twenty-five years or so, had a great deal to say about the importance of equality.[3] The popularity of the idea of equality is, however, not matched by agreement about what upholding that value entails in terms of the specific treatment that persons are due. If Kymlicka is right to say that, for example, Robert Nozick’s and Karl Marx’s social theories are both in some sense egalitarian theories,[4] we cannot know all of what is to be done to achieve a just social order simply by concluding it will be one based on equality simpliciter. Naturally, Kymlicka and Dworkin and other writers who compare and contrast different sorts of equality understand this. They are not suggesting that we all now agree on what kinds of equality are required in a just society. Dworkin’s own work is concerned with defending particular conceptions[5] of equality rather than the plain assertion that “equality” is what we are after. He and others have written extensively about which kind of equality produces the best theory of distributive equality, political equality, equal liberty, and so on.[6]

Although there is plenty of disagreement about which equalities we should value and employ in the creation and maintenance of a just society, the underlying egalitarianism identified by Kymlicka is itself a substantial value. The substance of what Kymlicka identifies as common in modern social philosophy is the requirement “that the government treat its citizens with equal consideration; each citizen is entitled to equal concern and respect”.[7] There are theories that deny this, even if they are rare. But those who are egalitarians, in this broad sense, are in agreement at this abstract level at least. They may, and often do, disagree about some of the implications of that general belief in equal human worth but they are, nevertheless, constrained by it.

There is then, in modern social ethics, an abstract notion of equality, a belief in the equal worth of human beings, about which there is widespread agreement. There is also a large range of specific equalities about which there is much disagreement. These two senses capture the difference between, as John Rawls puts it: “equality as it is invoked in connection with the distribution of certain goods….and equality as it applies to the respect which is owed to persons irrespective of their social position.”[8] Noting the difference between these two meanings of “equality” helps to explain in what sense it is useful to refer to a libertarian like Robert Nozick or to an apparent opponent of equality like Anthony Flew as egalitarians.[9] Libertarians are sometimes said to eschew equality in favour of freedom but it is equality in particular instances of Rawls’s first sense that are usually thought to be in tension with liberty. It is at least rare in modern academic political argument to find a justification for the freedom to treat some as intrinsically less worthy of respect than others. But there is much debate in political philosophy about the implications of “basic equality”; the term Jeremy Waldron uses to refer to the abstract belief in equal human worth.[10] As Waldron says:

[a] tremendous amount of energy has been devoted to … [equality as a specific standard] … in recent political philosophy: people ask whether equality of wealth,

income, or happiness is something we should aim for; whether it is an acceptable aim in itself or code for something else, like the mitigation of poverty; whether it implies an unacceptable levelling; whether, if achieved, it could possibly be stable; how it is related to other social values such as efficiency, liberty, and the rule of law etc.[11]

The difficulty in sorting out which type or types of equality[12] are morally supportable is also reflected in modern jurisprudential debates about the meaning of “equality provisions” in Bills of Rights. These provisions are principally concerned with unfair discrimination. In the United States the fundamental point of the equality provision found in the Fourteenth Amendment to the United States Constitution is now construed quite differently to the way it was a hundred years ago and there is still not much agreement in the US Supreme Court about the meaning of the right. Equality provisions found in recently introduced Bills of Rights and various sorts of human rights legislation are the source of labyrinthine expositions in which courts try to fathom what conception of equality or discrimination the legislature had in mind.[13] There is some consensus amongst political and legal philosophers on questions of equality as a social norm in the sense of a basic restraint. All who take the idea at all seriously now agree that discrimination on the grounds of sex or race per se, is wrong. On the other hand there is little agreement about economic equality between individuals or nations. And while there is a strong consensus on matters of race and sex (and some of the other forbidden grounds for discrimination that are found in modern Bills of Rights, such as religion and national or ethnic origin) that agreement entails only condemnation of direct discrimination and some forms of obvious “indirect” discrimination. There is widespread agreement that we should not have arbitrarily treated some groups of people differently in the past. That accord does not extend, in particular, to questions of remedial action in favour of communities disadvantaged by earlier discrimination. The fight over “affirmative action” has been bitter and divisive.[14] The affirmative action debate in America and elsewhere is only a part of, or sometimes a reflection of, a broader new set of difficulties we now have in deciding what are morally relevant differences between groups and individuals. These are various and complex.

The debate on gender and sex,[15] for example, which raises questions about equal treatment and appropriate different treatment is now not only about whether affirmative action type remedies are permissible. Those concerned to achieve justice for women now also argue with each other about whether women are really just the same as men in all relevant respects. Earlier ideas that equality requires that women should be treated the same as men are now challenged by the suggestion that some differences between the sexes may be real and not just the fruits of chauvinist rationalisation.[16] Race and gender are difficult topics but they are at least matched by the issues and challenges which come under the rubric of “cultural equality”. Because the word “culture” can include entire ways of life which, while clearly different in many respects, are according to some all equal in some sense and must all be made equal in perhaps another, cultural equality can give rise to quite a few ethical conundrums. Cultural equality is controversial while being very firmly on the egalitarian agenda and apart from the difficult aspects already noted it is also a large part of the potential conflict between individual and group equality. The point for now is simply that with culture, as with race and gender, it is not always clear or uncontroversial what the dictates of equality are.

Despite the presence of many concrete differences of opinion about what to do in areas such as race, sex and culture, there is widespread agreement that equality at a more abstract level is important and that much more work needs to be done to sort out what action that implies. But there are some who think the difficulty in finding out what it is that equality requires is not just that one has to choose between different conceptions of equality, to decide what or which equality or equalities are fundamental and which incidental. There are those who think the problem is a more basic one: “equality” is not a useful concept at all. Professor Peter Westen has proposed that we recognise the “emptiness” of the idea of equality[17] or at least the “derivative” nature of statements about normative equality.[18] Professor Westen argues that not only are calls for equality often elliptic but also that when the desired metric, in terms of which equality is required, is identified, the rule of distribution that is being commended can be expressed without any reference to equality. Talk of equality is not only often confusing and misleading, it is redundant. Westen is not alone in thinking that equality is a worthless concept. Other legal philosophers, including leading British scholar Joseph Raz, have expressed similar views.[19]

I will first set out Westen’s thesis and then turn to a promising exploration of the point of talk about equality which was a direct response to his redundancy thesis. This is the response to Westen’s suggestion, that talk about equality is pointless and misleading, made by Jeremy Waldron, first expressed in his review of Westen’s book Speaking of Equality.[20] I will agree with Waldron’s analysis. I will offer an expanded version of his argument, which I think is consistent with his, that while Westen has helped to identify the sources of much confusing talk about equality he has not identified the moral point of equality. His work has failed to distinguish between the role played by “equality” in claims for treatment made in terms of other standards, and the abstract equality expressed as the idea that we should treat people with equal concern and respect, Waldron’s “basic equality”. It is this basic equality which provides a moral reason not to distribute rights and other social goods in ways which deny our equal human worth.

Demands for equality in specific contexts are often inchoate because they do not specify the measure by which they want people to be equal. Westen shows that when we know what the desired standard is we are able to express the claim without reference to equality. But when we ask what justifies the principles Westen has liberated from their egalitarian baggage, part of the answer is, very often: equality – in the sense of the basic equality which dictates that the interests of all persons concerned must be taken into account when deciding how society is to be ordered.

For the abstract egalitarian, rules and policies of distribution must pass a threshold test: does this proposed guideline or strategy ignore the interests and concerns of anyone affected by it? If it does it is morally impermissible. Equality will not do all the justifying that needs to be done. Different responses to social problems may equally satisfy its demands. We still need to ask if the rule or policy serves certain other important values such as efficiency or liberty. But equality acts as a fundamental constraint. I will argue that while Westen usefully stresses the confusing nature of much talk about equality and while he is right to point out the manipulative uses that the positive connotations of the word may allow, he has not justified his call for “equality” to be removed from our moral and political lexicons. The notion of “basic equality” is clear and has substance. There is no good reason not to speak of equality.

Equality as a basic constraint on policy goals is quite abstract and its implications still have to be argued about. Perhaps a more neglected task has been the justification of the commitment to basic equality itself. The idea of equal human worth is the rallying point of our intellectual resistance to, and political struggles against, racism and sexism and the like; it is the point of a large part of the twentieth century’s political philosophising. But what supports that belief? In part, particularly at the level of group conflicts, we have been largely engaged in factual disputes. When arguing with advocates of discrimination we have tried to point out that the differences they pointed to were either imaginary or irrelevant. We may feel, justifiably in my view, that that factual argument has been won, but things become more difficult when we consider individual differences. Some of these are ineliminable, however we might improve our social structures: some kinds of factual inequalities are, for better or worse, a part of the human condition. I will argue that this gives us no reason to reject basic equality. The racist’s (or sexist’s or whatever) crude elitism is not improved by a social order based on privileging every conceivable superiority. Such a system would be unworkable, unsaleable and cruel.

Why Westen thinks “equality” is empty

He argues that different conclusions about that follow from premises containing different views about what should be equal. He thinks the civil rights cases of the 1950s and 1960s, which were decided on the basis that blacks and whites are equal in some sense, did not have to decide in exactly what sense a black person was (prescriptively?) equal to a white person, and that the controversy over affirmative action forced egalitarians to confront this issue. The advent of preferential policies, motivated by a desire to uplift communities previously disadvantaged by racist policies, forced Americans to consider whether racial equality under the Constitution meant that no person, white or black, should ever be disadvantaged on grounds of race or that no black person (and no person from any other community already disadvantaged by discrimination) should be disadvantaged on the grounds of race.[24] Of course it is, as a matter of US Supreme Court jurisprudence, still not really clear what the Fourteenth Amendment to the US Constitution means for affirmative action. Westen’s point is that just being in favour of equality will not determine how we should think about remedial group preferences. Westen thinks that this problem and others posed in terms of the seemingly contradictory or competing demands of equality, should be solved without reference to equality. Another illustration of the redundancy of “equality” he gives is the wording of the proposed Equal Rights Amendment (to the US Constitution), which read as follows:

Equality of Rights under the law shall not be denied or abridged by the national government or by the states on account of sex.

Westen thinks the word “equality” in this formulation is superfluous because the authors may have made their point more concisely without it:

Rights under the law shall not be denied or abridged by the national government or by the states on account of sex.[25]

Just as he thinks that removing references to equality takes nothing away from statements about what is or is not morally relevant, Westen’s thesis is also that reliance on the language of egalitarianism will not, in itself, solve anything, morally speaking. His conclusion, that equality as a moral, legal and political idea is sometimes worse than ineffective, is disconcerting because many programmes for social reform have been proposed and undertaken in the name of equality. Discrimination on the grounds of race and gender, for example, have been and still are, high on the agenda of those seeking a more just society. It seems axiomatic to many that eradicating racism and sexism is something worth doing because we value equality. But even anti-discrimination rights, whose very purpose is to achieve equality in certain respects, and so, as Westen puts it “stand in a special relationship to equality”[26] are not the whole of what equality is about and that whole is the much less interesting fact that all rights result in prescriptive equality. It is central to Westen’s thesis that all rights, including anti-discrimination rights, can be expressed without any reference to equality. In his discussion of anti- discrimination rights Westen notes two forms they can take:

F1: If persons in class X receive benefit B, then persons in class Y shall also receive benefit B or;

F2: If any persons in class X receive benefit B, then all persons in class X shall receive benefit B.[27]

As these examples show, we can express the essence of anti-discrimination rules in either of these formulations without any use of the term “equality”:

“simply by specifying who the X’s are, who the Y’s are, and what the benefits of B are”.[28] If the concept is not needed, even here, it may seem difficult to see where it is required. If its use can only lead to confusion about which standards are being recommended why refer to equality at all?

Waldron’s defence of equality

The language of equality is a rhetorical cover under which political claims are advanced and contested; but it very seldom captures the substance of those political claims in any clear or interesting way.[29]

Waldron agrees with the lexicological point that “equality” is strictly redundant in the formulation of many rights. If we believe, for example, that all people should have votes of equal weight because all people are rational, rather than votes of unequal weight, weighted in accordance with their various formal educational achievements, we can just say “weight should be assigned to people’s votes on the basis of their rationality.”[30] In the same way Waldron notes that in a situation where the law allows public demonstrations but de facto only one racial group is allowed to protest, one does not have to talk about equality to explain what is wrong. The moral problem is simply that the other group ought to be allowed freedom of expression and association.[31] Waldron also accepts that Westen is right to say that his point is equally valid whether applied to discourse on “non-comparative standards” or talk about “comparative standards”. Waldron explains these terms:

A non-comparative standard is one that entitles each person to some good or liberty by virtue of possessing some feature or characteristic: ‘Anyone who is a citizen has the right to demonstrate peacefully.’ If P and Q are both citizens, then P has the right to demonstrate (because P is a citizen) and Q has the right to demonstrate (because Q is a citizen). Although they both end up with a similar liberty, the equality or similarity is incidental. Q has a right to a liberty which is similar to that afforded P because Q, like P, is a citizen, not because it is important for Q and P to be treated the same. With comparative principles, by contrast, what matters for a given person is the relation between what she gets and what others get. We usually think about voting this way. Since the value of someone’s vote is the difference it makes in an election in which other people also cast their vote, anyone concerned to get a vote will be deeply interested in whether her vote has the same weight. The idea of a comparison matters here in a way that it does not matter in

the case of the right to demonstrate. For the latter case, universalizability really does all the work that equality appears to do.[32]

Waldron accepts that even comparative principles do not necessarily involve a reference to equality. In terms of one of his examples I have mentioned, if we believe weight should be assigned to people’s votes on the basis of their (common) rationality rather than on their various educational qualifications, we can express that, as I just have, without reference to “equality”.[33] Waldron also agrees that Westen’s point is a good one even in relation to anti- discrimination laws, whether one is thinking of direct discrimination or indirect discrimination. The latter term is used to refer to situations where the impact, rather than the explicit terms of a legal rule, on different groups of people affected by the law, differs in a way thought to be unfair. Waldron discusses the example of height requirements in police force recruitment. Where these are used they will have a “disparate impact” on women because they are, on average, shorter. The result is an inequality in the treatment of women as compared to men just as it would be if a law directly discriminated against women by not allowing any woman to become a police officer. But that is not the end of the matter as a question of justice. We still have to ask whether there should be a height restriction policy for entry into the police force despite the consequent disadvantage suffered by female applicants. Is there a good reason for having this requirement which will result in proportionately fewer women in the police force of a jurisdiction that adopts it? Waldron appreciates that Westen has made this clear. But he bemoans the fact that Westen provides little help in ascertaining what the right and wrong principles of distribution are.[34] In his discussion of what these might be Waldron finds a role for equality as a necessary, if not sufficient, condition for the appropriate principles. Here Waldron means the abstract egalitarian ideal identified above. Some principles of distribution do not show concern for everyone’s interests and it is therefore natural to criticise these in terms of that “basic” equality. In an expanded version of this illustration, Waldron notes that if we want tall police officers so they can be seen in a crowd or because they are more intimidating it cannot be objected that these concerns are sexist – that they do not take the needs of women into account. But if we wanted to have the height requirement because it supported macho values that would be a motivation that ignored the interests of women and would thus not be consistent with fidelity to basic equality.[35]

Equality as a moral concept can thus be seen, Waldron argues, to play an important role in arguments about just distributions, at least to the extent that it rules out options that do not take every affected person’s right to be treated as an equal into account. Equality thus conceived is not a simple rule to apply to the sorts of social moral problems Westen and Waldron discuss; it is a “deep principle” which it seems natural to use when referring to the rejection of social attitudes and policies based on racism and sexism or any other denial of equal human worth.[36]

The point of talk about equality

Of course, equality is not the only form of normative discourse that lends itself to ambiguity. Claims of rights and freedoms can also be stated ambiguously….[t]hus, one cannot meaningfully assert a ‘right’ without specifying more or less precisely who is entitled to what from whom. No one can meaningfully assert a prescriptive ‘freedom’ without specifying more or less who ought to be unconstrained by what to do what.[39]

But Westen makes a third claim about equality. It is not just a tricky concept that we must use more carefully: it is an entirely unnecessary idea. We can clear up a lot of confusion and avoid obfuscation by saying what, or who, we want to make equal, and in what respect. But when we do, we will find we have no need for the word “equality”. Claims to rights, even the right not to be discriminated against, can be made without reference to equality. Westen compares the wording of the Equal Rights Amendment (referred to above) which does include the word “equality” with that of the Nineteenth Amendment to the US Constitution which reads:

The right to vote shall not be abridged or denied by the national government or by the states on account of sex.

Referring to this right as the “equal right to vote”, would be semantically redundant says Westen.[40] But when we ask, again, as he does not, what the moral point of the Nineteenth Amendment is, the most obvious answer is that it expresses a commitment to the equal human worth of women and men. That is why rules of the sort expressed in the Nineteenth Amendment are thought to be as much about equality as about the particular right they express. Not just in the sense that they, like all rules, treat all people affected by them equally in terms of their content, but also in the prescriptive sense that they give effect to equality as a value, the value referred to by the term “basic equality”.

The question remains, however, whether the essence of this abstract right to equality can itself be expressed without reference to “equality”. If Westen’s thesis passes this hurdle it might seem to have won the day. But only if the resulting formulation of the idea captures the essence of the value more naturally than the expression “basic equality” or its other specifically egalitarian formulations. I think Westen can do the reduction but only trivially. The result is not a more efficient, clear or natural way of stating the value referred to. Westen can say, by means of reduction, in response to the idea that the concerns or interests of affected persons should be taken into account equally in decisions of social distribution, that when making such distributions the only relevant criterion is personhood. The reduction is possible but pointless. The word “personhood” in that formulation of the idea of basic equality suggests the very universality that “equality” does. It is, then, in no way redundant to use the word “equality” to refer to the idea that everyone’s interests must be taken into account when distributing social goods. Indeed, it is the alternative which is strained. Westen’s point was supposed to be that the idea of equality was redundant, not that he could find technically adequate synonyms for the word.

For the most part, as Waldron notes, Westen’s account says very little about equality in this more abstract sense.[41] Westen comes closest to discussing the abstract notion of equal worth in a brief discussion of Ronald Dworkin’s well- known distinction between “equal treatment” and “treatment as an equal”. Dworkin used the example of a parent who has two children suffering from the same disease but to different degrees. The one is dying from the disease while the other is merely uncomfortable. “Equal treatment” would be meted out if the one remaining dose of the required medicine were allocated by the flip of a coin. But this arbitrary method of deciding who gets the medicine would not treat the children as equals; as worthy of equal concern.[42] Waldron concedes, rightly, that Westen is syntactically correct to say that Dworkin could just talk about a right to concern and respect owed to humanity as such, rather than a right to equal concern and respect. But the word “equal” seems a natural one to use in our world where irrelevant distinctions between groups of people are so often made and where so many political causes are concerned with fighting policies and practices of unfair discrimination.[43]

The scope of Westen’s analysis will not generate this insight. The belief that all people count, and matter equally, is not empty or tautological. But that belief cannot be derived from the idea that equals should be treated equally and unequals should be treated unequally. The Aristotelian notion of equality that Westen works with does not entail modern egalitarianism. Aristotle did not think that we are all equal or that we should all be treated with equal concern and respect. And his “likes should be treated alike” formula does not force him to. It does not compel him to accept any specific judgement about who should or should not be treated equally, and it was not intended to. His response to the query he phrased about the equality that should be assigned to equals – “equals and unequals - yes; but equals and unequals in what?” – is not the modern egalitarian one which denies that only some kinds of people count.[44] The idea of the fundamental equality of all persons, which appears to be implicit in modern political philosophy is, on the other hand, a clear affirmation that everyone’s interests and concerns must be taken into account.

Specific prescriptions of equality or inequality of treatment are often discussed in confusing and misleading ways because, as Westen says, even at this level “equality” has positive connotations and “inequality” negative ones. But equal treatment and different treatment both require justification. Neither is automatically warranted. That “equality” in the abstract sense of “basic equality” can supply part of that justification is surely part of the reason why things so often get muddled when we speak of equality – we do not always identify what sense of the word we mean. But that is a solution, as Waldron points out, to the puzzles that Westen identifies, that he fails to recognise and that is because he does not recognise the meaning of “equality” suggested here.[45]

Basic equality plays such a fundamental role in modern political philosophy that we should wonder why more has not been written about it and its justification. Waldron asks this question when he notes that while a lot has been written about equality as an aim, very little has been written about “the basic equality of all humans as a premise or assumption of moral and political thought”.[46] He offers what he says are tentative remarks in his interesting essay but thinks there is still more to be said about this. Similarly Louis Pojman thinks that recent justifications for equality as a sine qua non of political philosophy that have been offered are not convincing and leave basic equality unjustified despite widespread, almost universal, reliance on it as an axiom of modern political philosophy.[47] Waldron and Pojman’s point should give us pause for thought. We should have some idea at least why what we take to be axiomatic in political theory is valuable. I will argue that embracing basic equality can be justified as part of adopting a coherent set of ethical commitments, chosen by us, the purpose of which is to enhance our communal life in the circumstances in which we find ourselves. I will agree with the non-cognitivist school of metaethics that no argument will show that equality’s rejection is wrong in the way that a mistaken view about some scientific fact might be shown to be wrong but that does not mean we choose our moral systems (including our commitment to basic equality) arbitrarily. We choose them for the purpose just noted and our arguments about their respective merits are therefore quite sensible.

In discussions of equality’s merits it is often asked why we take to be equal, creatures, human beings, who are different from each other in so many respects. I think it is true that for basic equality to make sense we must think that humans are alike in some fundamental sense or senses. Even if we do believe that people, despite many individual differences, are basically alike, so that a commitment to basic equality is not peculiar, we must accept that this does not make it “right” in the sense that we are right to believe the earth is not flat. This is because ethics is a practical matter. Knowledge of right and wrong is “a matter of knowing how to act, when to withdraw, whom to admire, more than knowing that anything is the case”.[48] Equality is not unique in this respect. We cannot point to any facts or sequence of reasoning which demonstrates that its rejection is necessarily irrational. Morality does have a point however, and its point allows us to assess the respective merits of different ethical attitudes. Our ethical views must make sense as attempts to improve our circumstances in a less than perfect world. Basic equality makes sense, I will argue, because its rejection in the form of group prejudices is grounded on differences which are often imaginary or misunderstood and if we tried to implement a more objectively based elitism grounded in our individual differences, we would not only find it to be impractical; we would also be hard pressed to justify the harshness and exclusiveness of a system that did not even pretend to be devoted to the common good.

Why do we value equality?

[I]f a theory claimed that some people were not entitled to equal consideration from the government, if it claimed that certain kinds of people just do not matter as much as others, then most people in the modern world would reject that theory immediately.[49]

That the equal consideration of the interests of persons acts as a constraint on our political ends is widely accepted. This was not always the case and there are of course modern political programmes that are clearly not egalitarian. The policies of Nazism or Apartheid and the restriction of the civil and political rights of women in some countries are examples of policies that fail this test. We may think we can simply dispense with the views of those who lived in very different times and had very different worldviews. And we may just choose not to take modern racists and other contemporary inegalitarian thinkers seriously. But that would be to leave something that we take to be axiomatic in our political philosophy unjustified. As Jeremy Waldron reminds us, in context, philosophy does not rest just because of unanimous consent to some conclusion:

We are all agreed that the sun will rise tomorrow in the east, but that is not a reason to stop discussing problems like induction, causation, the regularity of nature, and the reality of the external world. Indeed it is one of the marks of philosophy to continue investigation into an issue long after everyone else has reached agreement about it for practical purposes and gone home to play backgammon.[50]

Many political and legal theorists do just make the assumption of basic equality and then move on to work out the implications of a commitment to that value. And they might do it just because equality is taken to be so fundamental to our social thinking. But it need not be. And that means there is justificatory work to be done. Basic equality is a prescriptive belief; it is not in itself a description of how humans are, in fact, the same; although it might be thought to depend on such a belief. It is often noted that we maintain a belief in fundamental equality despite enormous factual differences between individual human beings. Pojman and Westmoreland put the matter well:

It is an empirical fact that human beings are unequal in almost every way. They are of different shapes, sizes, and sexes, different genetic endowments, and different abilities. From the earliest age, some children manifest gregariousness, others

pugnacity, some pleasant dispositions, others dullness and apathy. Take any characteristic you like: whether it be health, longevity, strength, athletic prowess, sense of humour, ear for music, intelligence, social sensitivity, ability to deliberate or do abstract thinking, sense of responsibility, self discipline or hormonal endowment (e.g. levels of testosterone and endorphins) and you will find vast differences between humans, ranging from very high amounts of these traits to very low amounts.[51]

Differences among humans make us think about justifications for basic equality. If we had, as humans, nothing or little in common with each other it would be odd to think of ourselves as one another ’s equals. Odd in the way it would be queer to think of ourselves as the equals of trees. Of course it does not follow from the variation in the human range that we have nothing in common. What people who do not believe in basic equality sometimes do, though, is rely on real or supposed differences. A clear expression of this sort of view, held by the early twentieth century philosopher Hastings Rashdall, is cited by Waldron. Rashdall wrote:

Individuals, or races, with higher capacities (i.e. capacities for a higher sort of Well-being) have a right to more than merely equal consideration as compared to those of lower capacities.[52]

Rashdall’s view is not, as Waldron notes, utilitarian. Rashdall does not justify giving more consideration to “individuals or races with higher capacities” because he thinks that will benefit everyone, including “lesser” human beings: he just does not think that those he designates lesser beings count, or, at least, not as much. As Waldron puts it, Rashdall’s view “imports inequality into the very foundation of moral and political argument”[53] while basic equality entails that “[m]oral argument ranges over the good of all human beings, and that range does not admit of any further fundamental divisions.”[54] Rashdall clearly wanted to exclude certain groups from equality’s protection. We reject Rashdall’s views on race; we think he is just wrong on this. There are no races (whatever “race” might come to mean after a thorough critique of the idea)[55] with “higher capacities” in some intrinsic sense, that we know of, although history does of course leave some groups worse off on the whole, including their preparedness for certain tasks. We also now reject the view that one sex is in some sense or senses a higher form of life than the other. Whatever the differences between the sexes may be they are not, in our view, of the kind that make one a better sort of human being than the other. Differences between the sexes like physical strength, the ability to give birth to offspring and biological or even psychological differences related to these are all things we may sometimes need to take into account when deciding how to treat people but they are not rational grounds on which to discriminate against people. We are, though, still left with the issue of individual differences between people. While it is possible to refute the racist and to demonstrate that he or she is at least often guilty of bad faith it is not possible to “deconstruct” all of our individual differences. Why then do we choose to think of each other as equals? Why do we think it is right to say: “I am as good as anybody else; I may not be as clever or hardworking as you are, but I am as good as you are.”[56] We are different in many ways of course but we also have much in common. What we have in common we may not, of course, have in equal amounts. It is useful to think of the thing or things that make us like other people as “range properties”. Jeremy Waldron defines this idea, which he takes from John Rawls:

RP: R is a range property if it is a binary or non-scalar property (one either has it or one does not) which applies to a class of items that may also be understood in a scalar way, i.e. in terms of a scale measuring the degree to which an item possesses the associated scalar property S.[57]

We recognise a common moral capacity, for example, or we may focus on our nature as rational beings. These are common candidates although Waldron notes that from a moral point of view we may be more inclined to focus on common needs. We may all have these range properties but because they are range properties we do not all have, or need to have, them to the same degree. We have them in the way that, by analogy, a particular city may be just as much in a certain state in America as another city is, although the first is near the border and the second in the middle of the state.[58] Cases like those of the infant or the cognitively disabled do not have to be seen as extremes on an artificially extended range.[59] Some people have little of what we usually take to be characteristic of humans. Infancy is a notorious topic in this regard. But children have the potential to become fully human: of course we never say they are not human. It is easier, therefore, to agree with the suggestion Waldron takes from John Locke, that very young children will become our equals because they will, all being well, become like us more fully as they mature than to worry, as Peter Singer does, that we cannot find the relevant difference between a human infant and an adult non-human primate.[60] And we can think of the severely disabled as victims of a tragic loss of their capacities, as we of course do, rather than as a different sort of being. As Stanley Benn says in the context of cognitive disability:

[f]or if someone is deficient in this way, he is falling short of what, in some sense, he ought to have been, given the species to which by nature he belongs; it is, indeed, to be deprived of the possibility of fully realising his nature. So where the mental limitations of the dog can be amusing, without lapse of taste, those of an imbecile are tragic and appalling.[61]

Philosophers have relied on different aspects of our shared humanity as the appropriate range property. Rawls himself, whose Theory of Justice is premised on basic equality, takes it to be the common human capacity for moral personality.[62] Moral persons are capable of having a conception of their good and of having a sense of justice. This is what makes us moral equals, in Rawls’s view. This is more or less Kant’s position of course. Kant also focused on our ability to understand and respond to moral imperatives. But why this capacity?

It seems odd to think that our capacity to be moral is what entitles us to consideration when moral calculations are done.[63] There are of course other range properties we could choose from. We might think it more appropriate to focus on people’s needs and (more generally) capacities. It is important, as Waldron also notes, to choose not just any range property or properties but one(s) that will explain our commitment to basic equality and what that requires.[64]

Metaethical considerations

I think it is not possible to avoid metaethical questions here precisely because basic equality is such a fundamental part of our social morality. It is not an application of a more general ethical theory (whose own ultimate justification we might postpone). So it cannot be read off our prior commitment to a yet more fundamental ethical theory. Waldron makes this point in terms of the connection between basic equality and utilitarianism. He chides Isaiah Berlin for thinking that basic equality might be defended on utilitarian grounds. This is confused, Waldron notes, because the maxim “every man to count for one, nobody for more than one” which Berlin thinks could be defended on utilitarian grounds, is itself one of utilitarianism’s axioms.[66] Indeed one of the many current critiques of that system of social ethics is the charge that utilitarianism does not treat people as equals.[67] Equality is thus used both to argue for, and against, utilitarianism: it cannot be the product of that ethical system.[68] The most celebrated political theory of the twentieth century is in the same boat. John Rawls’s theory of justice, “justice as fairness”, is premised on basic equality – hence the need to justify that belief after setting out the basic theory.[69] Contractarian theories in general obey basic equality’s injunction to include the concerns of all affected persons in ethical decision making. The contract is meant to be one made by equals. Asking what basic equality is itself based on is, therefore, a large part of asking what modern political philosophy is based on. And the answer to that question is, for some: nothing really. It might just be a commitment we choose to have. Margaret McDonald has written:

[v]alue utterances are more like records of decisions than propositions. To assert that ‘Freedom is better than slavery’ or ‘All men are of equal worth’ is not to state a fact but to choose a side. It announces This is where I stand.[70]

This noncognitivist approach which originated, in modern moral philosophy, in David Hume’s thesis (just mentioned), that no “ought” can be deduced from an “is” threatens to leave us where we started; with no reason for believing in equality, although equality would then be no worse off than liberty, or kindness or any other moral commitment. But even if it does not follow, as a matter of logic, from the fact that we are equal in some way or ways, that we should treat one another as equals, there is, I think, some kind of connection between the “is” and the “ought” here. Even if we cannot prove that everyone should join our egalitarian consensus, we can argue that it makes sense. It is a bit odd, although not logically incorrect, for one to agree that humans are alike in some fundamental non-scalar sense, because of a shared hierarchy of needs, moral capacity or divine provenance, rationality or a combination of some of these and other factors, and then turn one’s back on prescriptive equality. It may be an open question, as G E Moore famously put it, whether the facts about anything authorise our adopting, as a matter of logic, any view about what is good. But we probably need our notion of descriptive equality to make sense of prescriptive equality. Possibly because one supervenes on the other.[71] In his recent book on John Locke’s Christian theory of equality Jeremy Waldron discusses, in the context of John Locke’s theologically based theory of human equality, the difference between prescriptive equality supervening on descriptive equality and the former being an implication of the latter. Locke himself did not believe, Waldron explains, that one could argue from the relevant factual similarity (corporeal rationality being the key thing for Locke) to the value of normative equality. Locke just realised, as we usually do, that there clearly seems to be some connection between the fact that there are beings who are alike in an important way or ways and the commitment to treating them all as equals.[72] The idea of supervenience in ethical theory means: “the requirement that moral judgements supervene, or are consequential upon natural facts”.[73] The supervenience thesis holds that two states of affairs could not be identical in their natural aspects but differ morally. But that is consistent with accepting that the moral evaluation itself is not determined by the natural state of affairs. Different evaluators will, of course, sometimes assess the same situation differently. Getting the “ought” of basic equality from the “is” of some specified factual human equality makes sense, but the former is not implied by the latter. The, at least plausible, connection between descriptive and prescriptive equality which we can think of in terms of the supervenience idea, explains why most of the debates we have and have had about equality are about how we are or are not the same in what we think are morally relevant ways. We often assume that if we can show that the purported difference is imaginary our opponents will agree that the treatment we are concerned about was discriminatory. Political movements seeking greater equality have generally argued in this way. And their racist, sexist or homophobic opponents usually respond by justifying their unfair practices and policies by reference to alleged significant differences which make one group, in their view, inferior to others.

The observation that these debates are usually about the facts of the matter would not surprise a non-cognitivist like Alfred Ayer who thought that moral argument could only really be about the facts of the matter or the logic of applying principles consistently.[74] We could only have one if we were already in agreement about the moral issue concerning which itself there could be no real discussion; since moral statements are not propositions but expressions of approval. It is not true, of course, that our moral commitments are lined up in advance of any factual discussion. Our attitudes, including our moral attitudes, change during discussions about the facts. It is just that for the non-cognitivist they are not to be inferred from the facts. So how could we respond, then, to someone who agreed that we are alike in the way or ways we agree matter but who refuses nonetheless to embrace basic equality?

Such an opponent would not be the usual anti-equality advocate. The usual sort, like Hastings Rashdall, do not agree, as a matter of fact, that we are each other ’s equals. They usually do agree, more or less, with the human rights advocate about what is important (rationality, moral capacity, structure of needs etc) but disagree with us about whether people of colour or women or some other group of people have those attributes. As Bernard Williams notes, the racist does not usually rest his case with “but they are black”: “black” is normally a proxy for a deficiency of attributes the racist agrees with us are important.[75] And racists are not done with finding differences.[76] But they are not usually arguing with us about whether, if we were equal in the ways they think we are not, we should treat each other as equals. The non-cognitivist position stresses, though, that whether or not we agree about descriptive equality, the facts of the matter will never be enough to show that basic equality is a good thing. In the end it is something we have to choose. The racist might want to live by a principle of discrimination even if she agrees with us that other races are not different to her own in the way that racial science once proclaimed. Bernard Williams may want to say: “The principle that men should be differentially treated in respect of welfare merely on grounds of their colour is not a special sort of moral principle, but (if anything) a purely arbitrary assertion of will…”[77] but it is a norm racists can adopt if they so choose.[78]

I think that non-cognitivism is right to insist we have to choose our norms. Here it is right to insist that the “truth” of basic equality cannot be inferred from any descriptive equality. But that does not mean we cannot have reasons for our commitment to basic equality. We can, though not the kind of reasons that we want in order to see if something is the case as a matter of fact. I do not think accepting non-cognitivism means that we cannot give any reasons for our value commitments. Even A J Ayer, the arch non-cognitivist, did not think that our moral views were simply a matter of taste like a love of ice-cream is:

This [his emotivist theory of ethics] does not mean that we have to regard every moral standpoint as equally correct. In holding a moral principle, one regards it as valid for others besides oneself, whether they think so or not. In cases where they do not think so, it will depend on their circumstances whether one judges that they are unenlightened or morally at fault. What has to be admitted is that there is no way of proving that they are mistaken. The most that one can do is argue ad hominem. One may be able to show that their principles are inconsistent, or that they are based on factual assumptions which are false, or that they are the product of bad reasoning, or that they lead to consequences which their advocates are not prepared to stand by [hence, of course, all the ethical argumentation which proceeds reductio ad absurdum][79] .

The fact that we do reason about ethical matters and that that reasoning can make or not make sense explains why we do not have to accept just any old moral conclusion and are suspicious of moral opinions that just announce themselves ex cathedra. I think that is something like the point just referred to that Williams is making about racists who would base their views on colour alone. They have no reasons that make any sense. They are a bit like the person in G.E.M. Anscombe’s example of someone who gathered together all the green books in his house and laid them out on the roof and explained his action by saying he had no special reason to behave like this. He just felt like it.[80] Some ends that humans might adopt just do not make any sense, in our world. There is no bedrock on which all our ethical reasoning rests but we do give reasons, our ethical commitments are not invented arbitrarily. At least much modern political theorising and practical ethicizing about equality and other social ideals seems to proceed on these non-cognitivist assumptions. We weigh up various intuitions or accepted principles and tease out their consequences and reveal the assumptions behind them. We ask whether if we believe in liberty we can believe in equality as well and what sense of “equality” might conflict with which sense of “liberty” and whether these ideals enhance “community” or are compatible with the efficiency needed to exploit and preserve our environment. There is not much in the way of providing proofs for basic axioms. Foundationalism has receded because ethical scepticism hovers in the meta- ethical background. It might be that instead a coherentist approach is at least implied in much modern political thought. But coherence by itself is not enough to ensure that our moral thinking is the best it can be. Louis Pojman, after dismissing some recent attempts to justify basic equality, opines: “[i]f an egalitarianism [sic] rights theory is to succeed, my guess, is that it will be a coherentist theory…”.[81] But after rejecting an example of that approach, that of the Marxist egalitarian Kai Nielsen, Pojman qualifies his confidence in coherence by noting two problems. No convincing coherentist account has been produced yet. The second objection is seemingly more damning:

[C]oherentist justifications in general are subject to the criticism of not tying into reality. A Nazi world view, a religious fundamentalist theology, and Nielson’s Marxist egalitarianism, not to mention fairy tales, are all coherent and internally consistent, but no more than one of these mutually incompatible world views can be correct.[82]

One can entertain serious doubts about the coherence of some of these world views. But even if they are coherent, the consequences of living by these different world views will be different and that will help us choose between them. That will help though, only because of other values we want to uphold, so the point is taken: coherence is not enough. Coherence is important, but as Simon Blackburn notes “... it should not blind us to other virtues. As well as coherence, there are maturity, imagination, sympathy, and culture. An immature unimaginative, unsympathetic, and uncultivated ethic might be quite coherent…”.[83] We might focus too much on a too narrow range of values which is internally coherent but ignores other important concerns; as fundamentalists of all sorts tend to do. Pojman is concerned, however, because in scientific theory building we can choose between different coherent theories by paying attention to “empirical observation and other theoretical constraints” and “the empirical and theoretical data we have count against the notion of equal worth”.[84] If we adopt the non- cognitivist approach to ethical theorising, as I think we should, we will not think that there are any empirical data which could establish that basic equality was a worthy part of our ethical structure. We will adopt basic equality then because we think it is one part of a coherent set of values which will tend to make things go well for human societies. And we will accept responsibility for deciding what will count as “things going well” and will in a sense, therefore, be “inventing” our social ethics.[85] But we need not do that in an arbitrary way that takes no account of what moral philosophers call the “circumstances of justice”.[86] In this world where we find ourselves, as J. L. Mackie puts it, with “limited resources, limited information, limited intelligence, limited rationality, but above all limited sympathies” morality is needed (to overcome these limitations) if we are to survive and flourish. And the morality we choose for this purpose must serve these ends.[87] Pojman is right to insist, therefore, that our ethics be grounded in (although not read off I would add) reality in some way. Ethics is a social practice, it must help us; as we find ourselves in this world. So a justification of basic equality will need to cohere with other values we choose to hold but it will also need to explain why we want this set of values and that explanation will need to make sense in our world in terms of our needs and capacities and limitations.

But what are the “empirical and theoretical data” in Pojman’s terms which count against basic equality? Pojman means individual differences between human beings. But why should these make us think there is no reason to adopt basic equality as a norm? Why should our differences in physical strength, intelligence, wisdom or foresight lead us to think it would be better not to adopt that principle? Pojman says: “[e]mpirically, it looks like Churchill, Gandhi, and Mother Teresa have more value than Jack- the- Ripper or Adolf Hitler”.[88] They do in a way, but only in the sense that they made a more positive contribution to our moral environment. The other two belonged in jail because of the threat they together represented to prostitutes, Jews and world peace; but why does it follow from that that moral argument should not have to consider their good? Moral argument may have justified killing Hitler during the war but it could have done that while still not discounting his interests (to not be tortured gratuitously if caught alive for example) entirely. Even more so it is not clear why moral argument should not equally consider the good of Einstein and someone else not as clever as he was. It seems to me the burden of proof may be on those who would reject basic equality. If we are convinced of the similarity of our human condition, and it is not difficult to be so convinced despite all our individual differences, what justifies the denial of basic equality? We can imagine a morality that embraces its denial. And we have examples of opposition to it past and present. But historical examples of political moralities that gainsay basic equality have not been so careful as the one Pojman asks us (by implication) to consider. Hastings Rashdall, whose views we noted, and his ilk were willing to make large assumptions about the members of social groups. We, on the other hand, are not willing to conclude that every white man improves our cultural environment as much as William Shakespeare does. But historical examples of elitism based on groups had one advantage over a more careful rejection of basic equality, one based on the different estimation of the worth of individuals. They were much more practical. A society which accorded rights on a differential basis according to individual differences would be completely unworkable. Of course racial classification under apartheid, for example, was ultimately incoherent, but it worked, more or less, at least for a while.[89] It worked because the groups were more or less identifiable and not so many to necessitate the countless bureaucratic distinctions that would be necessary if almost everyone (or everyone at the same point on a continuum of, say, intelligence scores) constituted her own category of citizen. To work at all, elitist systems have to conflate many distinctions that could be made, thus undermining their own rationale. It may seem odd to accuse those who reject basic equality of being too idealistic, but it must be remembered that not all ideals are pleasant ones and those that we dislike can be criticised for being impractical just as much as those we favour.

An accurate elitist morality would also not convince enough people for it to serve as a tie that binds. A moral idea that is to serve its purpose as an alternative to the war of all against all must appeal to at least a good number of people.

Strict elitism would be its own bar to any sort of solidarity and therefore unworkable on that count as well. What else can be said for basic equality? What can further be said about its rejection is that it is just not decent. We cannot all build rockets or cure intransigent diseases, but that is not a worthy reason to deny any of us access to as much education as we may benefit from. The crude rejection of basic equality found in its racist or sexist variety often involved that particular inequality: separate schools for blacks in South Africa and the United States and exclusion from tertiary education of women in many countries. The obvious cruelty of those policies, which were based on group favouritism rather than on the real ability of individuals, is matched by one that would divert all resources to a small elite, more objectively determined than the taxonomy of the racist or sexist allows, that might achieve marginally more learning for a few at the expense of what the rest might learn with a more even sharing of resources.[90] A strict elitism values only excellence. And it employs a limited vision of excellence at that. One that counteracts human sympathy and the possibility of rich community that a commitment to basic equality makes possible. It also fails, thus, to allow coherent coexistence with other commonly held political values. One reason to reject basic equality, though, might be the thought that we often have to choose between equality and one of those other values – the usual candidate is freedom. The relationship between equality and liberty (and other values such as “community”) is a prominent topic in our political thought. I only want to make one point. The distinction made by Waldron and others, that I have explored, between basic equality and equality as an aim, suggests, I think, that it is mostly going to be equality of distribution (of whatever) that will be in tension with (a particular) liberty. Equality of wealth will be, for example, in tension with absolute economic freedom. Basic equality, on the other hand, coexists very nicely with the principal freedoms of speech, association, movement and so on that have an important place in modern political philosophy.

Conclusion

Basic equality has a substance. Policies and practices may be evaluated in terms of it and found wanting or in compliance. Unlike equality as an aim it does not need to answer, specifically, the question: “equality of what?” but it does help, although it will often need supplementing, to answer questions about what in fact should or should not be equalised. Equality’s popularity may make it difficult to be against, but that does not justify our acceptance of this way of deciding the range of moral argument. That, the justification of basic equality, I have tried to contribute to by noting the unattractiveness of the alternative. Basic equality, unlike any particular equality, also does not feature in the widely perceived tension between “equality” and liberty.

[1] L Pojman and R Westmoreland (eds.), Equality: Selected Readings (New York: Oxford University Press, 1997), 1.

[2] W Kymlicka, Contemporary Political Philosophy: An Introduction (Oxford: Oxford University Press, 1990), 4.

[3] R Dworkin, Taking Rights Seriously (London: Duckworth, 1977); A Matter of Principle (Cambridge: Harvard University Press, 1985); Sovereign Virtue (Cambridge: Harvard University Press, 2000).

[4] Contemporary Political Philosophy op cit n 2 at 4.

[5] In the sense of the distinction between concepts and conceptions he uses. See R Dworkin, Law’s Empire (London: Fontana Press, 1986), 70-71. I will argue we also need an appropriate concept of equality.

[6] See Sovereign Virtue: The Theory and Practice of Equality op cit n 3.

[7] Contemporary Political Philosophy op cit n 2 at 4.

[8] J Rawls, A Theory of Justice (Oxford: Oxford University Press, 1971), 511.

[9] See A Flew, The Politics of Procrustes (London: Temple Smith, 1981); R Nozick, Anarchy, State and Utopia (Oxford: Blackwell, 1975).

[10] J Waldron, “Three Essays On Basic Equality” (unpublished, 1999 -2003) “BE”. Page numbers may differ depending on the version referred to. The Essays are cited in God Locke and Equality. See n 66 below. These essays are an extremely useful guide to what has been written about the justification of basic equality (as opposed to its policy implications). Professor Waldron’s own contribution to that topic, while tentative, is very helpful and I will refer to it often.

[11] “BE” at 2. This is only a reference to debates which would fall under the heading of “economic equality”.

[12] At an intermediate abstract level or levels and then more specifically.

[13] See P Hogg, Constitutional Law of Canada (Scarborough: Thompsons Carswell, 4th ed, 1997), chap 52; J Kentridge in Chaskalson, Kentridge, Klaaren, Marcus, Spitz and Woolman (eds.) Constitutional Law of South Africa (Juta and Co. Ltd: Cape Town, 1996), chap 14; S Fredman Discrimination Law (Oxford: Oxford University Press, 2002), chap 1; H Collins, “Discrimination, Equality and Social Inclusion” (2003) 66 The Modern Law Review, 16.

[14] See R Dworkin, Taking Rights Seriously, chap 9 and Sovereign Virtue, chaps 10 & 11, op cit n 3; N Mills (ed), Debating Affirmative Action (New York: Dell Publishing, 1994); R Post and M Rogin (eds), Race and Representation: Affirmative Action (New York: Zone Books, 1998).

[15] The distinction between sex and gender is used to denote the difference between biological differences and social roles.

[16] See C Littleton, “Restructuring Sexual Equality” (1987) 75 California Law Review, 1279; J Williams, “Dissolving the Sameness Difference Debate: A Post-Modern Path Beyond Essentialism In Feminist and Critical Race Theory” (1991) Duke Law Journal, 296; M Frug, “Sexual Equality and Sexual Difference in American Law”

(1992) 26 New England Law Review, 665. For a clear summary of what recent science does and does not tell us about gender differences see S Pinker, The Blank Slate: The Modern Denial of Human Nature (Penguin Books: NewYork, 2002), chap 18.

[17] P Westen, “The Empty Idea of Equality” (1982) 95 Harvard Law Review, 537.

[18] P Westen, Speaking of Equality: An Analysis of the Rhetorical Force of ‘Equality’ in Moral and Legal Discourse (Princeton: Princeton University Press, 1990), xx.

[19] J Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986), chap 9; see also recent expressions of the idea by C Peters, “Equality Revisited” (1997) 110 Harvard Law Review, 1211; A Fagan, “Dignity and Unfair Discrimination: A value misplaced and a right misunderstood” (1998) 14 South African Journal on Human Rights, 220.

[20] J Waldron, “The Substance of Equality” (1991) 89 Michigan Law Review, 1350; see also “BE” at 10-13.

[21] “The Empty Idea of Equality” op cit n 17 at 539-540.

[22] “The Empty Idea of Equality” op cit n 17 at 542.

[23] Speaking of Equality op cit n 18 at 63.

[24] Speaking of Equality op cit n 18 at 269-270.

[25] Speaking of Equality op cit n 18 at xiii.

[26] Speaking of Equality op cit n 18 at 142.

[27] Speaking of Equality op cit n 18 at 145.

[28] Ibid.

[29] “The Substance of Equality” op cit n 20 at 1351.

[30] “The Substance of Equality” op cit n 20 at 1355.

[31] “The Substance of Equality” op cit n 20 at 1356.

[32] Ibid.

[33] “The Substance of Equality” op cit n 20 at 1356.

[34] “The Substance of Equality” op cit n 20 at 1358.

[35] BE op cit n 10 at 11-12.

[36] “The Substance of Equality” op cit n 20 at 1363.

[37] J Pennock, “Introduction” in J Pennock and J Chapman (eds), Nomos IX Equality (New York: Atherton Press, 1967), ix.

[38] Speaking of Equality op cit n 18 at chap 11.

[39] Speaking of Equality op cit n 18 at 268-269.

[40] Speaking of Equality op cit n 18 at 145.

[41] “The Substance of Equality” op cit n 20 at 1361.

[42] Taking Rights Seriously op cit n 3 at 226-29, cited by J Waldron in “The Substance of Equality” op cit n 20 at 1361; see Speaking of Equality op cit n 18 at 102-108.

[43] “The Substance of Equality” op cit n 20 at 1362.

[44] Aristotle, The Politics ( Oxford: Oxford World Classics, 1995), Book III, chap 12, 1282b14.

[45] “The Substance of Equality” op cit n 20 at 1368.

[46] BE op cit n 10 at 1.

[47] L Pojman, “Are Human Rights Based on Equal Human Worth?” (1992) 53 Philosophy and Phenomenological Research, 605.

[48] S Blackburn, Ruling Passions (Oxford: Oxford University Press, 1998), 1.

[49] Contemporary Political Philosophy op cit n 2 at 4-5.

[50] BE op cit n 10 at 6.

[51] Equality: Selected Readings op cit n 1 at 1.

[52] H Rashdall, The Theory of Good and Evil: A Treatise on Moral Philosophy (Oxford: Oxford University Press, 2nd ed, 1924), vol. 1, 237-238, cited in BE op cit n 10 at 7.

[53] BE op cit n 10 at 9.

[54] BE op cit n 10 at 17.

[55] See K Appiah and A Gutmann, Color Conscious:The Political Morality of Race (Princeton: Princeton University Press, 1996).

[56] J Davies Human Nature in Politics (New York, 1963), 45 cited in S Benn “Egalitarianism and the Equal Consideration of Interests” in Nomos IX Equality op cit n 37 at 69.

[57] BE op cit n 10 at 49.

[58] BE op cit n 10 at 48.

[59] Ibid at 51.

[60] BE op cit n 10 at 52.

[61] S Benn, “Egalitarianism and Equal Consideration of Interests” in J Pennock and J

Chapman (eds) Nomos IX Equality op cit n 37 at 71.

[62] A Theory of Justice op cit n 8 at 505ff.

[63] Cf J Waldron, BE op cit n 10 at 33.

[64] BE op cit n 10 at 55-56.

[65] The most famous source of the distinction between “is” and “ought” in moral philosophy is D Hume, A Treatise of Human Nature, ed L Selby Bigge (Oxford: Oxford University Press, 1888), III, i, 1.

[66] J Waldron, God Locke and Equality: Christian Foundations of John Locke’s Political Thought (Cambridge: Cambridge University Press, 2002), 14.

[67] See eg L Kymlicka, Contemporary Political Philosophy: An Introduction, (Oxford: Oxford University Press, 2nd ed, 2002), 37; R Dworkin, Taking Rights Seriously op cit 3 at chaps 9 & 12.

[68] We should be clear here that we are talking about basic equality. Equality as a policy aim in various areas could of course be inspired by utilitarianism. We might think, as some have, that income disparity should not be too great because the notion of marginal utility tells us that increases in income produce more welfare at the lower end of the socio-economic scale.

[69] A Theory of Justice op cit at n 8 at 504ff.

[70] M McDonald, “Natural Rights” (1947) reprinted in J Waldron, ed., Theories of Rights (Oxford: Oxford University Press, 1984), 21 at 35, cited in Essay on BE op cit n 10 at 37, (original emphasis).

[71] See J Waldron, God Locke and Equality op cit n 66 at 69ff.

[72] Ibid.

[73] S Blackburn, Spreading the Word (Oxford: Oxford University Press, 1984), 220.

“Natural” here is not the opposite of “supernatural”. The theory of supervenience is not metaphysically fussy. The “natural fact” that inspires a commitment to basic equality, for example, could, for the purposes of the supervenience requirement, be that we are all made in the image of God.

[74] A Ayer, Language Truth and Logic (1936) (Harmondsworth: Pelican Books, 1971 ed), 148.

[75] B Williams “The Idea of Equality” (1962) in P Laslett and W Runciman eds., Philosophy Politics and Society ( Oxford: Basil Blackwell, 1972), 110 at 113.

[76] J Waldron, “Whose Nuremburg Laws?” Review of Patricia Williams Seeing a Colourblind Future (New York: Noonday Press, 1998) (and two other books) London Review of Books, March 19, 1998, 12.

[77] “The Idea of Equality” op cit at n 75 at 113.

[78] Although it is a senseless one, which is perhaps Professor Williams’ point.

[79] A Ayer, The Central Questions of Philosophy (Harmondsworth: Penguin Books Ltd, 1976), 226-7.

[80] G Anscombe, Intention (Oxford: Basil Blackwell, 2nd ed, 1963), s 18, pg 26.

[81] L Pojman, “Are Human Rights based on Equal Human Worth?” op cit n 47 at 615.

[82] Ibid 615.

[83] S Blackburn, Ruling Passions (Oxford: Clarendon Press, 1998), 310. This is a major recent non-cognitivist treatise which provides a very useful grounding in moral theory. The alternatives to “expressivism”, the term Blackburn uses in place of the older term “non-cognitivism”, are very well expounded and analysed.

[84] L Pojman, “Are Human Rights based on Equal Human Worth?” op cit n 47 at 615.

[85] J Mackie, Ethics, Inventing Right and Wrong (Harmondsworth: Penguin Books, 1977).

[86] J Rawls, A Theory of Justice op cit n 8 at 126-130.

[87] Ibid 107-108.

[88] “Are Human Rights Based on Equal Worth?” op cit n 47 at 621.

[89] See S Girvin, “Race and Race Classification” in A Rycroft (ed), Race and the Law in South Africa (Johannesburg: Juta & Co. Ltd, 1987), 1.

[90] This is quite different, of course, from allowing distinction to count in the allocation of scarce educational resources where we think this would benefit the common good. That could, all things being equal, be consistent with basic equality. This stresses once again that basic equality does not always require equal treatment.

[91] The title of R Dworkin’s recent book op cit n 3.