MAKING SENSE OF EQUALITY.

AuthorRosen, Mark D.
PositionBook review

ONE ANOTHER'S EQUALS: THE BASIS OF HUMAN EQUALITY. By Jeremy Waldron. (1) Cambridge, Mass.: Harvard University Press. 2017. Pp. xi + 264. $29.95 (hardcover).

Thomas Jefferson and the Declaration of Independence's other signatories professed it "self-evident that all men are created equal." (3) Renowned Yale historian Edmund Morgan used less exalted language, insisting that equality is a "fiction," albeit an important and necessary one. (4) Morgan thought it a fiction insofar as it would be "difficult, if not impossible, to demonstrate the[] proposition[] by factual evidence[,]" and that, to the contrary, it "might be somewhat easier, by the kind of evidence we usually require for the proof of any debatable proposition, to demonstrate that men are not created equal...." (5) But Morgan thought it "not inappropriate" to call equality a self-evident truth because such a designation "implies our commitment" to equality and "protects [it] from challenge." (6) All societies, Morgan suggests, are built on cornerstone commitments that are ultimately indemonstrable. "[T]o challenge" our commitment to equality, says Morgan, "would rend the fabric of our society." (7)

In short, Jefferson treats equality as an unprovable axiom (8) ; Morgan suggests doing otherwise would be unwise and dangerous. Consistent with Jefferson's and Morgan's approaches, America's commitment to equality has not been given a foundational justification.

Until now. In an important new book, One Another's Equals: The Basis of Human Equality, Jeremy Waldron aims to philosophically ground this basic American commitment (pp. 66, 84). While its arguments are illuminating and deeply consequential, this Review argues that Waldron's book ultimately does not take equality far beyond a Jeffersonian axiom, mostly (though not entirely) owing to the book's self-conscious epistemic modesty. The Review also argues that Waldron makes more of a case for "sharedness" than for "equality," as it explains why they are conceptually distinct notions. These limitations do not undermine the importance of Waldron's book, but they may have implications for what we understand Waldron's project to be.

The Review also suggests a need to tame some of Waldron's conclusions as to equality's prescriptive and normative implications. Waldron seems to say that equality's entailments are absolute in two senses: that they accrue equally to every person, and that they trump all competing moral considerations. The Review argues that the book does not adequately make the case for either absolutism, and shows that Waldron himself resists both absolutisms when considering concrete cases. And this is a good thing, because giving strict effect to the two absolutisms would problematically destabilize substantial swaths of contemporary constitutional jurisprudence.

More generally, the Review argues that accepting the two absolutisms would unduly cede contemporary human agency. Today's analysis cannot generate tomorrow's final answers because there is no "end-of-history" for normativity. Accordingly, each generation's recognition of its necessary agency in working out equality's entailments is more sensible than an absolutism-induced passivity. But though it should not be treated as the final word on the subject, One Another's Equals can enormously assist the agency-demanding undertaking of continuing to work out what should follow from our political community's commitment to equality. Waldron's book can serve an invaluable task, pace Morgan's implicit advice that we not dig too deeply into our cornerstone political commitments.

  1. BASIC EQUALITY

    Waldron's book aims to develop an account of what he calls the principle of basic equality, namely the "idea that we humans are fundamentally one another's equals" (p. 10). The book does not address what Waldron dubs "surface-level equality," namely the "sort of social or economic equality" for which egalitarians have mostly argued; for example, equality of well-being, resources, opportunity, or capabilities (pp. 9-10). (9) Basic equality is conceptually distinct from surface-level equality, (10) and has received relatively little scholarly attention (p. 10).

    Waldron thinks that basic equality applies to all human beings--to Hitler and Mother Theresa, as well as the most profoundly disabled and those in the final stages of Alzheimer's disease. He calls this position continuous equality (pp. 30-31). By contrast, many past proponents of equality thought certain subsets of the human population were not their equal; excluded subpopulations have included slaves, blacks, Asians, heathens, and women. These past proponents adopted what might be called discontinuous equality. (11) Waldron also champions the view that basic equality applies only to human beings, and not to other animals. (12) He dubs this distinctive equality (pp. 30-31). In short, in embracing continuous and distinctive equality, Waldron claims that basic equality extends to all human beings, and only to human beings.

    According to Waldron, the principle of basic equality "is itself prescriptive" (p. 46), meaning that it "call[s] for something to be done that might not otherwise be done" (p. 42). Waldron believes that basic equality performs very substantial prescriptive and normative work, (13) including "sustaining human dignity" (p. 207), "underpin[ning] the entitlement of each of us to justice." and "ground[ing] the equal basic rights we have" (p. 142), including free speech, personal liberty, and religion (p. 249). Basic equality also imposes demands on us in our political relations with our fellow citizens. Basic equality "requires that we are to be counted equally in any calculation of the general good," and "ground[s] some sense of our equal authority, equal respect, leading into democracy as well as the autonomy we are entitled to in the living of our lives" (pp. 141-142). This equal respect amounts to a "form of deference and accommodation," and includes the "recognition and acknowledgement of someone as an intellect with a point of view and opinions of her own..." (p. 250). And Waldron thinks that basic equality imposes obligations that extend beyond fellow members of our political community. For example, Waldron thinks basic equality absolutely forbids torturing a terrorist to extract information that would foil a future attack (pp. 186-187).

    Although One Another's Equals leaves most of basic equality's concrete implications for constitutional law substantially unspecified, basic equality would seem to be potentially relevant to a wide range of constitutional issues. At one point Waldron suggests that basic equality might imply an entitlement to certain economic goods. (14) And basic equality's entailments of dignity and autonomy seem germane to the constitutional analysis of the death penalty, the right-to-die, and abortion, as well as the freedoms of speech and religion (pp. 249-250).

    Waldron's distinction between an account that can justify the principle of basic equality, on the one hand, and normative equality's prescriptive implications, on the other, puts the reader on notice as to the burden that One Another's Equals appropriately bears. As Waldron himself notes, the justifications for basic equality must be sufficient to sustain the principle's prescriptions (pp. 248-250). In keeping with this, Part II of this review focuses on Waldron's arguments for basic equality, while Part III analyzes what Waldron takes to be basic equality's prescriptive implications. The Review identifies some important disconnects between One Another's Equals' justifications and prescriptions.

  2. THE SURPRISINGLY MODEST CASE FOR BASIC EQUALITY

    Waldron's argument for basic equality can be reduced to three steps. A bird's-eye-view will prove useful before proceeding to a fine-grained analysis. Step One is that humans have certain properties that account for basic equality: the capacities to feel pain and affection; to engage in abstract, practical, and moral reasoning; and to be the substantial authors of their own lives (pp. 88-111). These properties that "host" basic equality are unique to human beings among all known living creatures, in degree if not kind (pp. 86,175).

    Steps Two and Three rely on a concept from mathematics known as a range property, which made a fleeting (and not widely known) appearance in John Rawls' A Theory of Justice. (15) To understand what a range property is, think of the set of points that are found in the interior of a circle (pp. 117-119). Two distinct points within the circle have scalar differences if they have different locations in relation to the circle's center. But those scalar differences have no relevance as regards the interiority of a circle. The circle's interiority is a range property: the two above-mentioned points fully and equally satisfy the range property of interiority, despite their having scalar differences that serve to distinguish them in relation to other properties (such as their location in relation to the center).

    The Second Step of Waldron's argument is that the host properties that underpin basic equality are range properties (p. 247). Though there are scalar differences across individuals in respect of each host property, such differences are irrelevant for purposes of basic equality. So long as an individual's host properties fall within the range, she is equal to all other humans with in-range host properties for purposes of basic equality. Scalar differences as to those properties may be relevant for other purposes, some of which may be very important. For example, different capacities to engage in moral reasoning (one of the host properties) may affect the quality of the moral life one leads. But Waldron claims that scalar differences as to the host properties are irrelevant as regards basic equality so long as those differences fall within the range, precisely because the host properties are range properties in relation to...

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