Abstract
This chapter distinguishes between substantive equality and formal equality, questioning the claim that formal equality does not suffice for true justice. True justice is said to require equalisation of material outcomes, necessitating increasing state interventions designed to achieve racial ‘equity’. The scholarly discourse is dominated by Rawlsian liberals who take the importance of equality in meeting the demands of social justice to be self-evident, so that it only remains to decide the residual practicalities and delineate the appropriate scope of equality legislation. This chapter rejects Rawls’s stylised and partisan definition of ‘public reason’ as the appropriate starting point in understanding the meaning of justice, and argues that formal equality as defined within the classical ideal of justice is essential to the rule of law.
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Notes
- 1.
The White House. (2021, January 20). Executive Order on Advancing Racial Equity and Support for Underserved Communities Through the Federal Government. https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-advancing-racial-equity-and-support-for-underserved-communities-through-the-federal-government/.
- 2.
Kukathas, C. (2003). The Liberal Archipelago: A Theory of Diversity and Freedom (p. 5). Oxford University Press.
- 3.
Mises, L. v. (2005). Liberalism: The Classical Tradition (B. B. Greaves, Ed., p. 9). Indianapolis: Liberty Fund (Original work published 1927).
- 4.
‘Historically, liberalism was the first political movement that aimed at promoting the welfare of all, not that of special groups’. Ibid., p. xxii.
- 5.
‘There is in man, in so far as he is a thinking being, an inherent desire for the improvement of his material condition. This impulse cannot be eradicated; it is the motive power of all human action.’ Ibid., p. 148.
- 6.
Deaton, A. (2013). The Great Escape: Health, Wealth, and the Origins of Inequality. Princeton University Press.
- 7.
Evans, M. D. R., & Kelley, J. (2019). Prejudice Against Immigrants Symptomizes a Larger Syndrome, Is Strongly Diminished by Socioeconomic Development, and the UK Is Not an Outlier: Insights from the WVS, EVS, and EQLS Surveys 4. Frontiers in Sociology. Retrieved from https://www.frontiersin.org/articles/10.3389/fsoc.2019.00012/full.
- 8.
Tomasi, J. (2012). Free Market Fairness (p. 5). Princeton University Press.
- 9.
Mises, Liberalism, p. 125.
- 10.
‘A meaningful human rights statute will surely protect all individuals equally, and equal protection of the laws (to refer to one clause of the Fourteenth Amendment adopted in 1868 in large part to give constitutional grounding to the 1866 Act) can be afforded only through some system of formal equality such as the 1866 [Civil Rights] Act provides’. Epstein, R. A. (2002). Equal Opportunity or More Opportunity: The Good Thing About Discrimination (pp. 2, 3). Commentary by Simon Deakin. Civitas. Retrieved from http://www.civitas.org.uk/pdf/cs18.pdf.
- 11.
Mises, Liberalism, p. 123.
- 12.
‘Equal treatment…has nothing to do with the question of whether the application of such general rules in a particular situation may lead to results which are more favourable to some groups than to others: justice is not concerned with the results of the various transactions but only with whether the transactions themselves are fair’: Hayek, F. A. (2013). Law, Legislation and Liberty: A New Statement of the Liberal Principles of Justice and Political Economy (p. 141). Routledge (Original work published 1973).
- 13.
Flew, A. (1986). Enforced Equality—Or Justice? Journal of Libertarian Studies, 8(1), 31–41, 34.
- 14.
Section 4.3 of Chapter 4 offers more detailed discussion of the legal framework.
- 15.
Fredman, S. (2016). Substantive Equality Revisited. International Journal of Constitutional Law, 14(3), 712–738. See also Barnard, C., & Hepple, B. (2000). Substantive Equality. Cambridge Law Journal, 59(3), 562–585.
- 16.
Equality and Human Rights Commission. (2016). Equality Outcomes and the Public Sector Equality Duty: A Guide for Public Authorities in Scotland (p. 10). https://www.equalityhumanrights.com/sites/default/files/equality-outcomes-public-sector-equality-duty-scotland.pdf.
- 17.
‘Oxford University has apologised for saying that avoiding eye contact could be “everyday racism” after it was accused of discriminating against autistic people. The claim was included in a list of “racial micro-aggressions” in an equality and diversity unit newsletter. But the university was criticised for being “insensitive” to autistic people who can struggle making eye contact.’ https://www.bbc.co.uk/news/uk-england-oxfordshire-39742670.
- 18.
United Nations. (2020). Roadmap for Digital Cooperation. https://www.un.org/en/content/digital-cooperation-roadmap/assets/pdf/Roadmap_for_Digital_Cooperation_EN.pdf.
- 19.
Caldwell, C. (2020). The Age of Entitlement: America Since the Sixties (p. 22). Simon & Schuster.
- 20.
Caldwell, The Age of Entitlement, p. 18 et seq. ‘Most Americans, liberal as well as conservative, saw the race problem as something distant. It had to do only, or mainly, with the exotic culture of the South, where segregation was legal. The sociologist Alan David Freeman wrote… “I can recall distinctly the response of my own naively liberal consciousness…The Law is now going to make those bad Southerners behave.” Outside the South, white people seemed to believe it would be a simple matter to get rid of segregation’, p. 21.
- 21.
Ibid., pp. 24, 25.
- 22.
Ibid., p. 9.
- 23.
Ibid.
- 24.
‘It can fairly be described as the largest undertaking of any kind in American history. Costing trillions upon trillions of dollars and spanning half a century it rivals, in terms of energy invested, the peopling of the West, the building of transcontinental railways and highways, the maintenance of a Pax Americana for half a century after World War II, or, for that matter, any of the wars the country has fought, foreign or civil’: ibid.
- 25.
Ibid., p. 10.
- 26.
Ibid., p. 25.
- 27.
‘These are matters of perspective. There is no point in describing one interpretation as morally “right” or “wrong”. We can say, though, that where the black consensus differed from the white consensus, it was blacks’ views that were more congruent with the reality of what would be required, and what would be effective, in bringing racial equality about’, p. 25.
- 28.
Steele, S. (2018). A Sick Hunger for Racism. Hoover Digest, pp. 158, 159.
- 29.
In Robust Political Economy and the Priority of Markets. Social Philosophy and Policy, 34(1), 1–24, 18, drawing upon Knight, J., & Johnson, J. (2007). The Priority of Democracy: A Pragmatist Approach to Political Economic Institutions and the Burden of Justification. American Political Science Review, 101(1), 47–61 and, Knight, J., & Johnson, J. (2011). The Priority of Democracy. Princeton University Press.
- 30.
Senator Tower, 110 Cong. Rec. 9024 (1964); quoted in Epstein, Forbidden Grounds, p. 192.
- 31.
‘The effect of antidiscrimination laws – and, indeed, for many who understand this, the laws’ very purpose – is not so much to protect members of a specified group from discrimination, from being treated less favourably than others because of their status (which nearly everybody agrees would be wrong and foolish), as to exempt them from the reasonable standards and requirements that apply to others’: O’Shea, M. L. (1999). A Cure Worse Than the Disease: Fighting Discrimination Through Government Control (p. 235). Hallberg.
- 32.
The emphasis was accordingly transferred ‘from a focus on the rights of minority individuals to the preferential treatment of minority groups. In less than a decade, the goal had shifted from equal opportunity to statistical parity’: Riley, J. L. (2014). Please Stop Helping Us: How Liberals Make It Harder for Blacks to Succeed (pp. 147, 148). Encounter Books.
- 33.
‘It is not written in the bill that there must be a quota system, but the net effect of the [statute] would be that employers, in order to keep themselves from being charged with having discriminated, would, in time, have certain people working for them to meet the color qualifications, the religious qualifications, the creed qualifications, and so on’ (Senator George Smathers, 110 Cong. Rec. 8500 (1964): cited in Epstein, Forbidden Grounds, p. 187.
- 34.
Fredman, S. (1997). Reversing Discrimination. Law Quarterly Review, 113, 575.
- 35.
- 36.
Fredman, Reversing Discrimination.
- 37.
‘The challenge must take place at the core — at the presumed ethical superiority of a nonsensical goal’: Rothbard, Egalitarianism as a Revolt, p. 5.
- 38.
Ibid., p. 6.
- 39.
Ibid., p. 10.
- 40.
‘We must face the fact that the preservation of individual freedom is incompatible with a full satisfaction of our views of distributive justice’: Hayek, F. A. (1958). Individualism: True and False. In Individualism and Economic Order (p. 22). University of Chicago Press (Original work published 1948).
- 41.
Thus ‘egalitarian distribution without regard for individual merits and demerits is inequality rather than justice.’ De la Mora, G. F. (1987). Egalitarian Envy: The Political Foundations of Social Justice (p. 95). Paragon House.
- 42.
Mises, Liberalism, pp. 9, 10.
- 43.
De la Mora, Egalitarian Envy, p. 95.
- 44.
Mises, Liberalism, p. 10.
- 45.
The Liberal Archipelago, p. 215.
- 46.
‘Justice is an essentially backward-looking notion, concerned with people getting and being able to keep their several and presumably often different deserts and entitlements-deserts and entitlements we have antecedently acquired by being what we are and have been, and by doing or refraining from doing what we either have done or have refrained from doing.’ Ibid., p. 31.
- 47.
Ibid.
- 48.
Ibid.
- 49.
Ibid.
- 50.
‘Protagonists of this Procrustean ideal would, if they were both clear-headed and frank, sacrifice the propaganda advantages of presenting it as a kind of justice. Instead, and taking a leaf from the book of the orthopsychiatrists and other self-styled penal progressives, they would mount a bold and radical onslaught on the very notion of justice – denouncing the whole business as antique, gothic, reactionary, and – what is the truth - irreducibly backward-looking.’ Ibid., pp. 31, 32.
- 51.
Rawls, J. (1999). A Theory of Justice. Belknap Press (Original work published 1971).
- 52.
Gordon, D. (2017). One Flew Over Equality. An Austro-Libertarian View: Vol. II: Political Theory (p. 85). Mises Institute.
- 53.
Ibid.
- 54.
The term ‘progressive’ here denotes liberal thinkers who lean left in their politics: ‘New liberals, modern liberals, liberal democratic theorists, prioritarians, sufficientarians, egalitarians of various stripes, or – at their most enthusiastic – high liberals; for now I use the term left liberals to refer to them all. Speaking generally, left liberals are skeptical of the moral significance of private economic liberty’: Tomasi, Free Market Fairness, p. xiii.
- 55.
On the morality of capitalist markets, see Devine, D. J. (2021). The Enduring Tension: Capitalism and the Moral Order. Encounter Books.
- 56.
For a critique see Otteson, J. R. (2016). Adam Smith on Virtue, Prosperity and Justice. In J. A. Baker & M. D. White (Eds.), Economics and the Virtues: Building a New Moral Foundation (p. 72). Oxford University Press.
- 57.
Tomasi, p. xv.
- 58.
Rawls, A Theory of Justice, pp. 15, 16.
- 59.
Ibid., p. 11.
- 60.
Donoghue v Stevenson [1932] UKHL 100.
- 61.
These ideas are reflected in Rawls’s original position, which as Epstein observes ‘has a certain kinship to Adam Smith’s notion of the “impartial spectator” developed at length in The Theory of Moral Sentiments. To Rawls, ordinary individuals would never be able to get a sense of the just structure of social institutions if they only looked at the world from their limited perspective.’ Epstein, R. A. (2002, November 27). Rawls Remembered.
- 62.
Mises, Liberalism, p. 40.
- 63.
Mises, Liberalism, p. 137.
- 64.
Rawls, A Theory of Justice, p. 3.
- 65.
Ibid., p. 53.
- 66.
‘Of course, liberties not on the list, for example, the right to own certain kinds of property (e.g., means of production) and freedom of contract as understood by the doctrine of laissez-faire are not basic; and so they are not protected by the priority of the first principle’: Rawls, A Theory of Justice, p. 54.
- 67.
Gordon, D. ‘According to Rawls, inequalities can benefit the worst off through their incentive effects. If people can increase their wealth or income beyond the norm, they will produce more; and part of the increase can be taxed away to help the poor.’ Don’t Dream the Impossible. In An Austro-Libertarian View: Vol. II: Political Theory, p. 151.
- 68.
George, R. P., & Wolfe, C. Natural Law and Public Reason, p. 53.
- 69.
Ibid.
- 70.
‘If liberal public reason is adopted as a standard, those who are most adept at manipulating language and symbols – members of what Irving Kristol labels the “knowledge class” – are going to end up with a disproportionate share of the power to define what can and cannot be admitted into public discourse and decision-making on the most fundamental issues facing a society’: ibid.
- 71.
Ibid.
- 72.
Finnis, J. (2011). Human Rights and Common Good: Collected Essays, Vol III (p. 74). Oxford University Press.
- 73.
George, R. P., & Wolfe, C. Natural Law and Public Reason.
- 74.
Gordon, D. (2017). A Libertarian Rawls? An Austro-Libertarian View, Vol. II, p. 361.
- 75.
Ibid.
- 76.
Furedi, F. (2021). The Free-Speech Crisis Is Not a Right-Wing Myth: Those Denying the Existence of Cancel Culture Are Often in Its Vanguard. Spiked. https://www.spiked-online.com/2021/03/12/the-free-speech-crisis-is-not-a-right-wing-myth/.
- 77.
Doyle, A. (2021, January 1). Ignore the Gaslighting—Cancel Culture Is Real. Spiked. https://www.spiked-online.com/2021/01/01/ignore-the-gaslighting-cancel-culture-is-real/. For an example of this reality see Smith, E. (2020, February 22). The University ‘Free Speech Crisis’ Has Been a Right-Wing Myth for 50 Years. The Guardian. https://www.theguardian.com/commentisfree/2020/feb/22/university-free-speech-crisis-censorship-enoch-powell.
- 78.
Ibid.
- 79.
Furedi, F. (2021). The Free-Speech Crisis Is Not a Right-Wing Myth: Those Denying the Existence of Cancel Culture Are Often in Its Vanguard. Spiked. https://www.spiked-online.com/2021/03/12/the-free-speech-crisis-is-not-a-right-wing-myth/.
- 80.
Finnis, J. Human Rights and Common Good: Collected Essays, Vol. III, p. 74.
- 81.
As Robert George and Christopher Wolfe argue ‘respect may sometimes be owed to persons who in general exhibit reasonableness and good will, but not to some position they have adopted, which one regards as so deeply misguided and wrong as to be unworthy of respect’: Natural Law and Public Reason, p. 51.
- 82.
For discussion see ‘I’m my own boss...’: Active intermediation and ‘entrepreneurial’ worker agency in the Australian gig-economy. Barratt, T., Goods, C., & Veen, A. (2020). EPA: Economy and Space, 52(8), 1643–1661.
- 83.
Tomasi, Free Market Fairness, p. 2.
- 84.
The Liberal Archipelago: A Theory of Diversity and Freedom, p. 6.
- 85.
Courtesy may be a moral obligation, but not one that is the appropriate subject of mandatory edicts as is commonly heard in modern discourse: ‘We have thousands of students and staff from different backgrounds and countries. They are all entitled to feel welcome and valued. So we are providing a safe way to report concerns and help tackle bullying and harassment while raising awareness that small, often unintentional gestures can be upsetting. As is set out in our policy on freedom of speech, the university expects everyone to be tolerant of the opinions of others, while remaining courteous.’ Professor Eilís Ferran Pro-Vice-Chancellor for Institutional and International Relations, University of Cambridge. https://www.telegraph.co.uk/opinion/2021/05/23/letters-surging-demand-gp-care-means-system-breaking-point/.
- 86.
Maloberti, N. (2015). Rawls and Bleeding Heart Libertarianism: How Well Do They Mix? The Independent Review, 19(4), 563–582.
- 87.
‘Some of my best friends are libertarians’, he announces, which is a problem because ‘most of my professional friends and colleagues, by far, are left liberals’: Free Market Fairness, pp. xi, xiii.
- 88.
Tomasi’s theory of ‘market democracy’ does not attempt simply to ‘fuse’ the two camps but to ‘show how the board pieces of liberalism might be arranged in a different way’ for those liberals who find some of the theories in both camps to be attractive: Free Market Fairness, p. xxv.
- 89.
Pennington, M. (2014). Realistic Idealism and Classical Liberalism: Evaluating Free Market Fairness. Critical Review: A Journal of Politics and Society, 26(3–4), 375–407.
- 90.
Fowler, T. (2015). Markets, Choice and Agency. Res Publica, 21(4), 347.
- 91.
Gordon, D. A Libertarian Rawls? An Austro-Libertarian View, Vol. II, p. 362.
- 92.
Ibid., p. 359.
- 93.
Rawls’s Ballet. In An Austro-libertarian View, Vol. II, p. 91.
- 94.
Kukathas, The Liberal Archipelago, p. 6.
- 95.
‘The UK already has a welter of laws restricting our right to speak freely so it is surprising that the government believes that to encourage free expression we need still more legislation… Many universities, such as Oxford, have adopted strong statements recognising that free speech will include speech that is sometimes shocking and even offensive, and that what is needed in higher education is intellectual exchange within a culture of robust civility.’ Lord Macdonald of River Glaven QC, Warden, Wadham College, Oxford; former director of public prosecutions. https://www.thetimes.co.uk/article/times-letters-proposed-tariff-free-australian-trade-deal-xjtmfkfj8.
- 96.
Smith, E. (2020, February 22). The University ‘Free Speech Crisis’ Has Been a Right-Wing Myth for 50 Years. The Guardian. https://www.theguardian.com/commentisfree/2020/feb/22/university-free-speech-crisis-censorship-enoch-powell.
- 97.
‘High liberals see their political view as having emerged through an evolutionary process, a process that demonstrates the moral supremacy of their view’: Tomasi, Free Market Fairness, p. 99.
- 98.
Percival, R. (2021, April 26). Peers ‘Treated Like Children’ on £82,000 Taxpayer-Funded Harassment Training Course. The Express. https://www.express.co.uk/news/politics/1428130/house-of-lords-training-course-sexual-harassment-taxpayer-funded-james-roberts.
- 99.
‘In this defensive posture, the program of liberalism – and for that matter, that of every movement – is dependent on the position that its opponents assume towards it.’ Mises, Liberalism, p. 103.
- 100.
‘Rhetorical bombast, music and song resound, banners wave, flowers and colors serve as symbols, and the leaders seek to attach their followers to their own person. Liberalism has nothing to do with all this. It has no party flower and no party color, no party song and no party idols, no symbols and no slogans. It has the substance and the arguments. These must lead it to victory’. Mises, Liberalism, p. 151.
- 101.
‘[True individualism] can see no reason for trying to make people equal as distinct from treating them equally.’ Hayek, Individualism: True and False, p. 30.
- 102.
Cosmic Justice, p. 77.
- 103.
De la Mora, G. F. (1987). Egalitarian Envy: The Political Foundations of Social Justice. Paragon House.
- 104.
Steele, S. (2018). A Sick Hunger for Racism. Hoover Digest, p. 158: ‘The writer Walker Percy once wrote of the “sweetness at the horrid core of bad news.” It’s hard to witness the media’s oddly exhilarated reaction to, say, the death of Trayvon Martin without applying Percy’s insight. A black boy is dead. But not all is lost. It looks like racism. What makes racism so sweet? Today it empowers’: p. 159. De la Mora also sees power at the root of envy: ‘Social envy is born from the desire for power’: Egalitarian Envy, p. 70.
- 105.
De la Mora, Egalitarian Envy, p. 69.
- 106.
‘Social envy is grounded in the belief that others are happier because of the position they occupy in the community due to their privileged birth or promotions.’ Ibid., p. 70.
- 107.
Ibid., p. 74.
- 108.
‘The envious feels sadness because he believes the good in others is the cause of his own misery. This belief is not objectively true’: Ibid., p. 29.
- 109.
‘From the point of view of individualism there would not appear to exist even any justification for making all individuals start on the same level by preventing them from profiting by advantages which they have in no way earned, such as being born to parents who are more intelligent or more conscientious than the average. [Individualism] recognizes the family as a legitimate unit as much as the individual; and the same is true with respect to other groups, such as linguistic or religious communities, which by their common efforts may succeed for long periods in preserving for their members material or moral standards different from those of the rest of the population’: Hayek, Individualism: True and False, p. 31.
- 110.
Identity politics too often reflects destructive motivations: ‘the envious one does not find dominant the desire to be more, but rather to make the other less; there is no will to improve, but rather to level all:’ De la Mora, Egalitarian Envy, p. 68.
- 111.
‘[True individualism] can see no reason for trying to make people equal as distinct from treating them equally’. Hayek, Individualism: True and False, p. 30.
- 112.
‘A contemporary disguise of collective envy is what is called ‘social justice’… A fundamental postulate is established that the more just a society is, the more equal its members are in opportunities, position, and wealth; and immediately it is established that the party will fight without rest to achieve such “justice”.’ De la Mora, Egalitarian Envy, p. 93.
- 113.
Equal Opportunity or More Opportunity?, p. 1.
- 114.
‘The collectives on which we impose duties are comprised of individuals. Organisations do not act themselves; they act through individuals and for individuals, be they shareholders, union members or faculty and students. Consequently, in analysing the impact of the statute we must always follow a postulate of methodological individualism. We cannot simply pair human rights to a set of correlative duties on abstract bodies, hoping thereby to externalise their costs on no one in particular. We must trace the implications of the statute through the entity to the particular individuals on whom those duties will be imposed’. Equal Opportunity or More Opportunity?, p. 4.
- 115.
Modood, T., et al., Ethnic Minorities in Britain, p. x.
- 116.
See discussion in Herzog, L. (2013). Inventing the Market: Smith, Hegel and Political Theory. Oxford University Press.
- 117.
Ibid. Thus individualism in this context is better understood as that ‘which regards man not as a highly rational and intelligent but as a very irrational and fallible being, whose individual errors are corrected only in the course of a social process, and which aims at making the best of a very imperfect material.’ Hayek, Individualism: True and False, pp. 8, 9.
- 118.
Ibid., p. 11.
- 119.
Ibid., p. 6.
- 120.
Consistent with Epstein’s view: ‘Markets work best when property rights are secured by the state, when contracts are enforced, when fraud and duress are held in check, when monopolies are constrained, and when social infrastructure is available. All this activity takes government action; to create, as Coase suggests, the correct incentives to get the best out of individual self-interest. Within this general legal framework, the role for spontaneous order—a phrase that leaves me uneasy—should be best understood as demanding only that the state take no role in deciding (a) who should contract with whom, and (b) what the terms and conditions of their agreements should be’: Equal Opportunity or More Opportunity?, p. 57.
- 121.
Hayek, Individualism: True and False, p. 20.
- 122.
Mises explains: ‘Human society is an association of persons for cooperative action. As against the isolated action of individuals, cooperative action on the basis of the principle of division of labor has the advantage of greater productivity…All human civilisation is founded on this fact’. Mises, Liberalism, p. 1.
- 123.
Hayek, Individualism: True and False, p. 16.
- 124.
Ibid., p. 6.
- 125.
Mises, Liberalism, p. 76.
- 126.
Hayek, Individualism: True and False, p. 3.
- 127.
‘Much of what in the opinion of many can be brought about only by conscious direction, can be better achieved by the voluntary and spontaneous collaboration of individuals’: ibid., p. 16.
- 128.
‘The essential point is not that there should be some kind of guiding principle behind the actions of the government but that government should be confined to making the individuals observe principles which they know and can take into account in their decisions.’ Ibid., p. 18.
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Njoya, W. (2021). Liberalism and Equality. In: Economic Freedom and Social Justice. Palgrave Studies in Classical Liberalism. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-84852-1_2
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