UF (18) — Equality before the Law

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On UF.

The point I am making in the below post is that it is erroneous to equate equality before the law with a law that makes everyone equal — as a prize-winning speaker did at the 2013 annual meeting of the German Hayek Society in Göttingen. I was rather taken aback that someone supposedly rather well acquainted with basic liberal concepts could commit such an elementary mistake, with no one in the audience protesting. Not even a renowned legal scholar, winner of the Hayek medal that years, who did not reply to an e-mail I later sent him — months later, it turned out the man had died not long after receiving the medal.

I was going to make a far more significant discovery in the following months. Libertarians and liberals are mistaken in believing that proper adherence to the principles of the rule of law, one of which being equality before the law, would ensure a world in which all major conflicts of interests and divergences of opinion have been overcome, at least from the standpoint of moral correctness. Law is an enterprise that by its very nature takes sides. Law is incapable of conjuring away the great conflicts among people of differing convictions and aims. It may improve the conditions of our rivalry, tending to make our contests more fair, peaceful, rational and less destructive of the circumstances that make for greater efficiency and less upheaval in the pursuit of the fundamental human ambitions; but, differing interests and diverging views and their divisive power will remain, if not even spread and multiply under better management of their potentially negative consequences.

Recently, I had the pleasure of listening to a lecture that struck me as valuable precisely because its basic thesis concerning a certain term was wrong, thus giving occasion to assure oneself of the expression’s genuine meaning. As a result, it turned out that although a number of people in the audience felt they understood the term, including the speaker of course, they were actually rather confused about it.

The speaker’s thesis asserts that the formula equality before the law should be replaced by a less misleading expression. The error underlying the thesis consists in the assumption that the sort of equality referred to in the term denotes an egalitarian conception of equality.
 

In truth, however, the expression equality before the law is an idiomatic compression, an abbreviation that in fully spelt out form reads: human beings are to be governed by the same rules (laws); or to put it perhaps more explicitly: may the same rules (laws) apply to all human beings in/ despite/ because of/ to better appreciate their disparity, their inequality (which inheres in them qua individuals in constitutive and irreversible manner).
 

The postulate in question does not at all assert equality as an attribute of human beings , neither as a fact nor as a desirable end.

“Baden” is the infinitive but also the imperative of “to bathe” or “to swim” in German; at the same time, there is a German city named Baden- Baden. If someone interprets the expression “Baden-Baden” as an invitation to have a swim, what this reveals is a gap in education rather than a problem with the term as such. The appropriate response is to educate the person, and not the introduction of a new term.

The same holds true with respect to the above thesis concerning equality before the law. He who does not understand the correct meaning of the term should be instructed about it. It would be inappropriate to introduce a new term – let alone the proposed unwieldy and certainly not self explanatory “insignificance of the individual before the law” – which would have to be explained to everyone, while the established expression is already known to many people.

Written in June 2013

German twin post.