Sovereign Virtue or False Foundation?

Jim Onyemenam

Budding legal theoretician currently doing his time as an auditor. Diverse interests ranging from the aforementioned law to film, literature, and art. Don't get him talking because he'd probably never stop.

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28 Responses

  1. Murali says:

    Hi Jim,


    So let’s dive straight in.

    ‘Objective equality’ is an adjectival term, a characteristic indicating the acceptance by a system of justice that equality in some way or form, whether as equality of substantive resources or power dynamics, ought to be its moral centre.

    So, this part seems to be indistinguishable from some sort of equality of outcome standard. You might think you are being more indirect about things, but this does not seem any more indirect than most other theorists. You should clarify the distinction you are making between equality of outcome and having equal distributions of resources/power (or maybe something else?) as an ideal (that is indirectly worked towards?)

    It seems that there is something wrong with your answer to Westen’s challenge. Let me see if I can spell this out.

    Let’s start with Westen’s point that treating alike things alike is tautological. As you admit, this part of the argument is sound. But you leave untouched the corollary: What is really doing the interesting work in deriving (either directly or indirectly) is what the relevant moral properties are, who possesses them and to what degree. As you have noted, most if not all contemporary moral and political theories assume that there is some relevant property (natural or otherwise) which can be said to be equally distributed, and this fact has certain normative implications. This property is precisely the property that must be equally distributed in order for the equal distribution of resources/power to be an ideal.

    Once stated it becomes apparent that this core assumption is not logically necessary (or for that matter even logically probable). Let me just flesh out a few logical possibilities, without implying that they are any more or less probable than the fundamental assumption. Assume two sets of people A and B. The sets are defined in the following way: People in A possess the morally relevant property M to a greater degree than people in B. For simplicity, I’ve posited a two place hierarchy, but there could be as many places as possibly existing persons. There is nothing logically impossible about M tracking ethnicity, gender, sexual orientation, physical attractiveness or no natural property at all. It could be that just one person, let’s call him Caligula, possesses M to an extremely high degree while everyone else possesses it to a much lower degree. If Caligula indeed possesses M to such a high degree, then the corresponding ideal is that Caligula have all the resources or power.

    The task of the egalitarian, i.e. you, is to tell me why the egalitarian rather than inegalitarian distribution of something is the appropriate ideal.Report

    • Jim Onyemenam in reply to Murali says:

      Hi Murali,

      Thanks for your comment. It seems you have two points of note. I will try to address them individually.

      Firstly, the purpose of this essay is not to defend egalitarian propositions. Rather it is to highlight an aspect of the debate that has not been sufficiently debated. That aspect is ‘objective equality’. So far the the debate on equality has been focused on the ineffectiveness of egalitarian formulae. For instance, all Westen does is to show how equality is unnecessary as a part in judicial calculation (i.e. why equality does not need to have a place in the process of justice). What ‘objective equality’ is however is a statement that equality is a moral good and therefore it ought to be an objective of a legal system. Therefore arguments about how egalitarian formulae fail to produce just outcomes are apt in criticising the formulae, but they fail to consider the fundamental philosophical premise of egalitarianism. In other words, the fundamental task of the inegalitarian ought not to be to show why procedural equality is flawed, but rather to show why equality is not a moral good (i.e. why ‘objective equality’ is flawed).

      The dichotomy here is very slight so perhaps an illustration may help clarify. Let’s use football. The objective of football is to score goals. To do that, you could boot the ball from the defence, try some stylish Spanish tiki-taka, or perhaps even a silky counter attack. However these are procedural. One could criticise how each strategy is ineffective in one way or another (perhaps the style of play is unattractive, or it even fails to score goals) but there is no valid criticism to suggest that the aspiration of scoring goals is not a valid objective of a football tactic. Although reductive, hopefully this helps explain the difference between formulaic and procedural notions ‘equality of outcome’ and the more fundamental and aspirational idea of ‘objective equality’.

      This leads us directly to your second point of note. You propose that what an egalitarian ought to do is to propose what moral properties form a valid basis of equal distribution. However what Westen and I are actually considering is more fundamental than that. For instance, let us consider your example of Caliguila. This example is actually quite intriguing because it highlights two distinct aspects of the debate.

      Firstly, the scenario clearly brings about an unequal outcome. However, people in A, B, and Caliguila himself were all treated equally based on their possession of M. Therefore, the procedure based on M could be criticised for bringing about an unequal outcome, but this criticises the basing of the procedure on M not the fact that the system should be equal in some way. In other words, the process based on M could have some moral goodness because it treats people equally and conversely have some moral deficit because its outcome is unequal, but any criticism of the process based on M does not criticise the use of equality as a metric for the moral goodness of a legal system. In fact, it presumes its validity. This again regards the aforementioned distinction between objective equality and equality of outcome.

      Secondly, M is precisely the sort of criteria that is outside the scope of Westen’s critique. But considering it in light of Westen’s critique it does highlight a clearer way of articulating why such egalitarian rules may be tautological but not vacuous. Ideally, M ought to be an equally distributed moral property as this is the very basis of egalitarianism. However if M could even conceptually be considered to be unequally distributed then a rule based on M would be tautological but have moral substance. Although this moral substance would remain solely conceptual (at least until a real situation arises which challenges its basis), its importance should not be underestimated.

      Thank you for your comment. It has been incredibly provoking.Report

      • Murali in reply to Jim Onyemenam says:

        Perhaps you misunderstood what I said. So, I will be a bit more explicit (and thus a bit more “evil”)

        Wearing my evil racist hat:

        M just is moral worth. Moral worth is the thing which, very roughly, the possession of it warrants some kind of respect and particular kinds of good treatment. So, the objective equality claim here is that everyone has equal moral worth. And because everyone has equal moral worth, social and political systems ought to be arranged in such a way that some set of goods G get distributed equally. At least that’s the basic egalitarian claim*. And if I have read you right, this is the kind of claim you want to make: namely that objective rather than procedural equality is the goal. The pressure I want to put (while wearing my evil hat) is on the grounds for thinking that everyone has equal moral worth. What is moral worth? Why do people possess it equally? If I was racist I might say that people of my ethnicity or caste have more moral worth than those of other ethnicities. The only argument against me is that I have no positive argument for my claim. But this is true of the egalitarian too. There is no positive (non question begging) argument that shows that everyone has equal moral worth.

        Taking evil hat off:

        So, roughly that’s the worry.The Caligula example is used to raise the worry that maybe the goal that we should have is for Caligula to have all the wealth and power.

        *By the way, this kind of indirect approach is very Rawlsian. You don’t directly take money from one person and give to another to directly equalise outcomes, you arrange the basic property, tax and other social institutions in such a way that the normal operation of the system yields your favoured distribution. So, my first point was more of a worry that you might have misread Rawls if you think you are providing a relevant contrast to his approach.Report

        • Jim Onyemenam in reply to Murali says:

          I think I do understand what you suggest.
          However the moral goodness of ‘objective equality’ isn’t derivative of the equal moral value of the subjects of law, rather the idea of objective equality is that equality in a legal construct is of its own independent intrinsic moral goodness. When we go into which moral values in subjects we highlight and use to justify equity (“M”s) or what forms of equality we prioritise – whether goods (“G”s), resources, power, etc. – we are now looking at “procedural equality”.

          So the objective equality claim is simply (as brilliantly put by Dworkin) “that a truly egalitarian society as at least a utopian goal” – not justified by any derivative basis on human moral value but rather intrinsically morally good in itself.Report

  2. Some scholars, most notably and vehemently Westen, argue that the term ‘equality’ does not mean anything in particular and is merely a political slogan used to attach legitimacy to certain claims, which “engenders profound conceptual confusion [and] therefore should be banished from moral and legal discourse”

    Bottom line? Until you figure out how to eliminate equality… you’re not going anywhere.Report

  3. Burt Likko says:

    It seems to me — and this may be an elevation of the concept of “procedural equality” as defined herein to an importance beyond that you and the other scholars really intend to assign it — that the law treats people unequally. Indeed, the whole of the law is about when and how and under what conditions and why and to what extent people are treated unequally. The whole of the progression of our legal and political history is about expanding here, and contracting there, the scope and basis of equal treatment.

    It’s fair enough to say that equal treatment is an unremarkable “default” position and therefore we needn’t use that word. All that gets us is a bunch of synonyms or other concepts leading to synonymity with “equality”: following precedent, standardized treatment, allocating the burden of persuasion.

    For instance, we might say that we all have to pay our taxes. That seems equal, as far as it goes. Only some people don’t have to pay taxes. They don’t make enough money to have taxable income, if income tax works on a progressive scheme. Or they don’t consume governmental services, perhaps, if the taxes are assessed by us (like taxing gasoline). Or they have clever accountants who manipulate their wealth so as to isolate money and cash flow from taxation. Some of this seems fair: the person who drives more on the roads ought to pay more for them than the person who only uses the roads a little bit; a person with barely enough income to subsist ought not be driven into privation by virtue of taxes when others can easily afford to pay what is to them a small amount more. But we’re now treating people unequally: one person pays more money in taxes than the other. Yet we’re also treating them the same way: the same rules apply to them all — some people are in a position to take advantage of them and other people are in positions where the rule affects them greatly notwithstanding their best efforts to avoid the rules.

    Legitimacy doesn’t come from equality, either of treatment or result. It comes from a legitimate process. A degree of equality — and that equality is largely “procedural” as that term is defined here — is a necessary but not sufficient condition for the legitimacy of the process and the rules resulting from it. Equality may in some sense be an aspiration, but not one that is attainable other than in the procedural context (and Rawls spends a great deal of his time wrestling with the ramifications of this).

    With all that said, this was a damn fine piece and I’m thrilled to have it here. I hope to see more of your work in the future, Jim.Report

  4. Stillwater says:

    Hello Jim! Welcome.

    I’m working my way thru this sorta piecemeal, so I’m prolly gonna post a few comments in succession as they hit me. Here’s one. You write, re: Westen’s analysis of the concept of equality, that

    In other words, “to say that people who are morally alike in a certain respect should be treated alike means that they should be treated in accord with the moral rule by which they are determined to be alike”, and such a statement is tautological and therefore vacuous.

    If that were the reasoning, I’d most likely (can’t say at this point definitively) that your assessment is correct. But it seems to me that the above is not an accurate rendering of the underlying argument you are paraphrasing Westen’s critique as applying to. It seems to me that the moral rule by which people ought to be treated is different than the method by which people are determined to be alike. Sorta trivially, the first is normative and the second is empirical. For example, it’s an empirical matter as to whether the concept of a person applies to human organisms deprived of (eg.) rights and privileges in a society, and importantly, if rights and privileges apply to persons – rather than, say, to skin colors – then the application of the moral rule by which they ought to be treated as alike is different than the “rule (it’s not really a rule is it?) by which they ARE determined to be alike. Two different domains. Two different methodologies. Seems to me anyway.Report

    • Chijim Onyemenam in reply to Stillwater says:

      Hi Stillwater,

      Thanks! Your comment is incredibly apt. However that was not a paraphrasing of Westen but rather an actual quote lifted verbatim from “The Empty Idea of Equality”.

      Your distinction between the normative and empirical domains is very accurate. I think it is right to call the empirical classification a rule.

      You are right in suggesting that both rules are distinct as they operate in separate domains. I understand Westen’s critique to be that practically there is no difference between both rules and therefore this renders them tautological. Your illumination of the distinct domains of both rules perhaps makes my critique of Westen even clearer. In that light, I am suggesting that the very distinction in the domains between the two rules creates a conceptual difference which means that even if for practical purposes the rules are tautological, they still have moral substance.

      Keep the comments coming!Report

  5. Kazzy says:

    Welcome, Jim! Or Chijim? What do you prefer? This was way over my head but more stuff like that here is a good thing!Report

  6. Jaybird says:

    When I was growing up, we just said something like “we’re all equal in the eyes of God” and that was good enough for us.

    As someone currently hip deep in a foreign culture that has several obvious stratum (and I’m hip deep rather than neck deep because of all of the people I’m standing on), the polite fiction of all of us being equal in the eyes of the God that we wish existed has outcomes that are a lot more in line with the values held by the people trying to live up to the ideals of the God they wish existed than, say, the values held by a non-zero number of other available gods.

    I suspect that God’s death might have a handful of unintended consequences when it comes to the concept of equality. There are certainly a handful of perspectives from which equality is pretty obviously less obvious. Where this takes us is going to be fairly unpleasant for the people still married to old conceptions of the importance of equality, justice, and all of those other social constructs.Report

    • Joe Sal in reply to Jaybird says:

      I think it will be interesting to see how justice and equality function under individual constructs as opposed to social constructs. IMO it mends all that disconnect that appears to occur in social constructs. People have to actually interact to individual awareness.Report

      • Jaybird in reply to Joe Sal says:

        I don’t think we’ll achieve individual constructs. We’ll just do something like create castes. This caste gets these constructs, that caste gets those.Report

        • Joe Sal in reply to Jaybird says:

          Individual constructs aren’t necessarily a achievement thing. They exist, we each build our own. Sometimes they align with social constructs, sometimes they don’t.

          It does become salient when one speaks of consent, to have recognition that each person has a set of individual constructs. It’s not as abstract as many would like to parse it. I hope the time of castes are over, I hope the time of non-self rule is over.

          Only one area of thought dismantles all constructs to individual constructs. It appears the farther social constructs diverge from individual constructs the more likely they are to perish anyhow.Report

          • Jaybird in reply to Joe Sal says:

            It’s the social construct that does a good job of policing the “deviant” individual constructs, though. If the individual can’t find a critical mass of other like-minded individuals, the individual will be asked to either pass for someone who is not deviant or be marked as deviant and policed.

            Which tells me that, eventually, everybody will end up in one of the social constructs or pass for being in one.Report

            • Joe Sal in reply to Jaybird says:

              There are so many social constructs that nearly everyone is a deviant some where. The task of assuring any one person is not under control is where the leviathan goes to die of its own weight.

              Hell factions can’t even control the social constructs of other factions, so riots, wars and such spring endlessly.Report

              • Jaybird in reply to Joe Sal says:

                Thus the importance of passing.

                Though, yeah, I guess I should have mentioned those other options for when those under this umbrella of a construct can’t agree with the people under the umbrella of that one.

                I suppose that’s another benefit to “equal in the eyes of God”. When you and yours are on a different level entirely (higher, I mean) than those people over there, why *NOT* abuse them?

                But when they’re equal with you… well, that throws a wrench into things.Report

      • Jim Onyemenam in reply to Joe Sal says:

        I don’t think it’s possible for justice to exist within an individual construct. Justice itself is an inherently social being.

        To illustrate, justice is about treatment (i.e. just and unjust treatment) meaning that automatically there are two parties – the subject to the treatment, and the (for lack of a better term) “treater”. Therefore automatically, this is a social dynamic. If a man lives alone it would be impossible for him to be just or unjust.Report

        • Joe Sal in reply to Jim Onyemenam says:

          Justice may be a social construct but at times you see it bow to a individual construct. Hung juries are often testament to the idea.
          If there ever was a case of perfect justice it was found when it looked like perfect justice to all the individual constructs involved. Nearly every case is examples of lesser forms of justice.Report

  7. j r says:

    Great post. And welcome!

    I will leave the legal theorizing to those who know it better, but I want to offers something from the perspective of political philosophy. The equality outlined by early enlightenment thinkers was a sort of objective equality, but not an absolute equality. It’s not that all people are alike; it’s that all people are enough alike so that no one person can claim natural dominion over everyone else. There are men who are stronger than others, men who can beat up ten other men, but there are no men who can beat up a thousand other men. And some people may be smarter than every other person, but there are natural limits to what even the greatest human intelligence can accomplish.

    Both Hobbes and Locke start from this position; although they end up in different places. They both approached this objective reality as a source of potential conflict. If no person has that much more of a claim on dominion over all others, then no person has that much less a claim either. Hobbes saw this as war of all against all posited the need for Leviathan. Locke ends on liberalism, but both options serve effectively the function of a compromise.

    If I am being honest, I admit that I don’t really believe in any sort of absolute equality. I absolutely believe that my normative ethical beliefs – not my behavior, just my beliefs – are superior to most other people’s normative ethical beliefs. However, I don’t believe that my beliefs are so objectively superior that I ought to go around imposing them on everyone else. And I certainly don’t want to spend all my time fending off people trying to impose their beliefs on me. So, I’m happy to cede any claims over the ability to impose my beliefs on others, so far as they are willing to do the same. In procedural equality, there is a recognition of objective equality, just not an absolute objective equality.Report

  8. Kim says:

    Equality in the eyes of the system of justice is not a virtue, and we don’t think of it as one.
    We create protected classes of people, just like we create protected classes of conversation.
    We may, if we can identify them, choose to treat people who are actively immoral differently than moral individuals, regardless of whether or not they have commited a crime, at this time. [I am speaking, for the record, of people who consider rape to be a moral thing, and who are unable to conceive of alternative paradigms].Report

    • Jim Onyemenam in reply to Kim says:

      Conversely one could suggest that the reason behind the creation of these protected classes of people and/or conversation is to engender some form of equality in the system. A rudimentary example would be affirmative action – in protecting minorities it institutes what may be seen as preferential treatment but with the goal of creating an end product of equality of opportunity between all classes and people.Report

      • Kim in reply to Jim Onyemenam says:

        One can’t make a system that treats people who consider rape to be a good thing the same as the rest of us. Or one can, but that wouldn’t be equality either. Immoral actors are the enemy of equality, as they can’t be readily admitted into our society of equals. They are inferior, and in such a way that their mental handicaps impinge on everyone else’s rights.

        How the hell is protected speech between a husband and wife supposed to engender equality?? I really just don’t get it.Report

        • Jim Onyemenam in reply to Kim says:

          I agree. Few points of note though – people who think rape is a moral good are not immoral actors as they haven’t performed any action yet. But you are still right – if their mental handicaps impinge on everyone else’s rights then treating them differently is an attempt to restore an equal balance between people as best as possible. In doing nothing perhaps they are showing preference for the mentally handicapped individual.

          Also I agree, I too don’t see how spousal communication and testimonial privilege engenders equality. This may be why they are so contentious and applied in a varied way. For instance, broadly speaking, unlike in U.S. Federal Law, it no longer exists in England and Wales. Could this mean it is immoral? Or at least improperly aligned with the ideal legal philosophy?

          Also I am not suggesting that any specific legal means ever effectively engenders equality. It is so easy to list laws that are inherently unequal and cannot even be construed in any way to engender any form of equality. In fact, there may be various forms of equality that the law tries to institute – equality of power, distribution, authority, opportunity. And more often than not these actually conflict. However the system of justice indubitably sees equality (in some/any form) as a valid foundational aspiration. Now the form it adopts in specific instances may be flawed (or equality may be nonexistent within it) but more importantly, the very foundation has yet to be challenged by counter-egalitarians.Report