Aronovich, Equidad Politica Por Precedentes

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Political Equality by Precedent

HILLIARD ARONOVITCH*

Abstract. This article asks about the justification for the principle of politicalequality in the sense of equal entitlement to basic rights. A preliminary portion

criticizes standard justifications that refer to a property or properties all human beings share; these fail because they are untrue, irrelevant, or question-begging. Themore substantial and constructive portion of the article then argues for a different,indirect mode of justification, based on rebuttals of historical presumptions of inequality and the actual evolution of the idea of equality through partial steps andspecific precedents. The justification of political equality is thus connected to theexplanation of its emergence.

1. Introduction

At the core of modern democracies is a principle that is more commonly assumedthan successfully defended: the principle of political equality, of all persons beingentitled to the same basic rights from government, without (in the current litany)discrimination based on race, religion, national or ethnic origin, gender, sexualorientation, or similar characteristics. Exactly what protections and liberties areentailed and precisely who is to have them may be unclear or controversial. But theprinciple itself as an abstract norm and important commitment, of “equal rights forall,” is standardly accepted. However, the justification or foundation for it whenprobed is questionable and even fundamentally contestable. The same is true of the

issue in its broader ethical terms expressed in the title of an article by RichardArneson (1999): “What, if Anything, Renders All Human Beings Morally Equal?”Political equality is simply the focused application within a sphere of jurisdictionof the more general moral idea. In each regard, the basis for equality remains absentor problematic as will be shown by a survey of some main answers in the nextsection. Rather than concluding, though, that the principle of equality is trulywithout justification or, unthinkably, that it should be jettisoned, we should refocusthe sort of defence suitable for it. The appropriate question—for us now within ademocratic system—is not about what grounds political equality; rather, it is abouthow and why we have come to reject political inequality. The latter question allows

for an illuminating answer, by showing how traditional presumptions of inequalityare unsustainable. Shifting the burden of argument in this way, as I shall attempt

* I am grateful for comments by anonymous referees of this Journal that improved an earlierversion of the article.

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to do in the section after the next one, is valid for the following reason that will becentral to the overall argument of this article. History and precedents must be anintegral part of normative theory; for it is wrong to suppose that we can askgenuine questions on these matters “from nowhere”: To the extent we seem to doso, we end up with nothing. These considerations extend to various other funda-mental principles of politics and ethics. However, equality is the topic in this article,and because of the useful narrowing provided by a context of jurisdiction, I shallconcentrate on the concern about political equality.

2. Canvassing (Unsuccessful) Criteria

The standard project of defending equality can be defined as the requirement to fillin the blank in some such statement as this:

Principle of Political Equality (E): All persons deserve to be treated as politicallyequal by virtue of possessing the property P, or set of properties P1. . . Pn.

My contention will be that there is no way of filling in the blank, no way of defining the variable P, or plural version of it, such that:

(1) P is truly and similarly possessed by all, and(2) P is relevant to (that is, appropriately grounds) political equality, and(3) P is not question-begging, does not assume the very thing political equality

asserts.

The proposals that will be canvassed, together with the whole question of equa-

lity as addressed in this article, are not directly concerned with theoriesof economic equality, with claims about which resources, or sort of welfare, orcapabilities, or the like should be provided to all persons under the aegis of egalitarianism. That large and significant question of whether economic equality isa valid norm or of how it should be implemented (the issue affirmatively pursuedin Sen (1992) and Dworkin (2000), and sceptically in Narveson (1998) and Frankfurt(2000), among others), is apart from and in a sense subsequent to the concern of thisarticle. Virtually all theorists who advocate some significant version of substantiveeconomic equality, or distributive justice, rely on political equality as a steppingstone, and so it matters to have that piece securely in place (and not itself

something unquestionably stepped over). Nonetheless, political equality asstandardly understood and indeed as treated in what follows does include some basic economic implications, for example, by way of legal-political equality neces-sitating anti-discriminatory requirements for employment, and other elements of equal opportunity. As a result, this article goes a certain important way with amode of reasoning about equality and leaves open—with some additional sugges-tive remarks toward the end—what bearings it may have for the vast topic of distributive justice.

The criticisms of proposed grounds for political equality that will be presentedare not meant to be strikingly original; at least some are familiar. For example,

Pojman (1997, 282), after sorting through options, as I shall in ways that somewhatparallel his moves, has maintained that “in their present form none of thearguments given for the doctrine of equal human worth are sound.” Arneson (1999)wrestled in particular with and then conceded Peter Singer’s charge that criteriacertifying the equal moral worth of all and only human beings are not to be had.

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Commonly, key liberal theorists of political equality focus on giving an inter-pretation of what equality specifically requires rather than on justifying or ground-ing the fundamental notion. Jeremy Waldron (2002, 2; see also Kelly 2010, 56–8)emphasizes this as against Dworkin, notwithstanding Dworkin’s important worksoffering a theory of what is entailed by equality and especially “equal respect,” his

basic notion. Beitz (1989), as another example, usefully explores several possiblemeanings and institutional applications of political equality, and defends acontractualist conception whereby equal citizenship necessitates “terms of partici-pation [that] should be reasonably acceptable to all”; but this again, as he acknowl-edges, is intended as an interpretation of a “widely held egalitarian ideal” (ibid., 18,218–21), and not as a more basic justification of the starting notion.

Some theorists give up on a grounding for equality and embrace it as anon-rational commitment (Nielsen 1988), or as an ultimately unsubstantiated

premise for analyzing democratic decision-making (Marmor 2005, 320; Christiano2008, 17–8), or as a purely pragmatic stance for avoiding strife (Feinberg 1973, 94).However, the role of reason or reasoning in support of equality should be retained,if at all possible. I maintain that it can be, if reconceived in terms that are partlyhistorical and precedent-based, but the usual and unsuccessful ways are different,as follows.

Among characteristics alleged to ground equality an evident one is the capacityfor reason or rationality, as in Kant and in Nagel (1986), among others. The problemis that when taken in any strict sense, that characteristic is not universallyapplicable. If what is meant is the tendency always to think logically and consist-

ently, or in response to moral questions in some purely principled and disinterestedmanner, that tendency is not unfailingly or optimally manifested even by the mostastute or broad-minded of persons, and is certainly often absent in the thoughtsand actions of many of us. Rationality in the indicated sense as a requisite of political equality is even unjustifiably intellectualist or elitist. If, instead, therequisite is only a basic capacity to recognize blatant contradictions of the form “Pand not-P,” that seems not relevant for rights or too minimal to warrant equalcitizenship, since even machines in ways can pick out contradictory strings, and asapplied to humans this minimum could render children, who are unable todistinguish right from wrong, full-fledged legal persons.

A seemingly more suitable candidate in the same vein is something such as thecapacity to form and implement purposes in one’s life. A version of this may again be linked to Kant, specifically his important notion that persons are never to betreated merely as means, precisely because they have purposes of their own. Anappealing articulation of the same idea was proposed by Nozick (1974, 48–51) insupport of his libertarian view that persons have fundamental rights that banvarious forms of mistreatment (although in the opinion of Nozick’s critics, therights and bans he wanted are too meagre). What Nozick alluded to, acknowledg-ing its imprecision and integrating elements of “rationality, free-will, and moralagency,” is the capacity to shape one’s life, to live a meaningful life. But this again

is bound to vacillate between an unduly strong requirement and an all-too weakone. The former option seems the main one towards which Nozick’s notioninclines, but it is really more the recipe for an admirable life rather than an ordinaryone. The weak construal, though, suggests just the ability to act intentionally forthings one wants, an ability that, again, applies to children and animals.

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Waldron (2002), in his account of the Lockean basis for political equality, has adistinctive proposal that is meant to serve as solid middle ground. Expanding on asuggestion in Rawls, Waldron (ibid., 76–7) proposes that the fact about human beingsthat warrants equality is a “range property,” namely, the capacity for abstract thoughtwhich admits of significant variation amongst (adult) humans but which, beingpossessed at or beyond a certain threshold level, suffices to count human beingsgenerally as entitled to the same basic political rights. However, there is a doubledifficulty with this proposal. For one thing, it is actually question-begging, since thedegree of variation in the relevant quality is so significant, and even what counts asthe core capacity for abstract thought is so unclear, that one wonders why or how itshould be a basis for the political equality of all. The second and compoundingdifficulty Waldron himself in effect acknowledges. For he insists that it is only byvirtue of this capacity for abstract thought generating a belief in God that Locke

concludes all humans have the same natural rights, that is, by virtue of their havingto be recognized as creatures of God (ibid., 83). Intriguingly, Waldron (ibid., 13) leavesus with the thought that natural properties of humans on their own, conceived in apurely secular liberal conception, cannot do the job.

Pojman (1997) also suggests that what is needed is a metaphysical groundingand likely a variation on theological ones. But any such stance on equality isvulnerable not just to disbelief in the premises about God. Even more importantly,

by way of internal critique, that theological premises for long coexisted withordaining the opposite of equality, and in the view of some believers yet entail that,namely, a gradation of status among kinds of human beings, in particular as

between men and women, or even as regards prospects for virtue or salvation(Brennan 2002–2003, 136 ff.).At a more basic level than anything about rationality, but more problematic as a

qualification for rights and equality is sentience. Utilitarians cite the aversion topain, and instinct for pleasure, as the basis for ethics and for according ethicalconsideration to animals. Both points are in ways valid, but only with the provisothat amongst humans each person is to count for one in the utilitarian calculus of assessing options for action. In that way, equality of humans is separately assumed.As regards animals, whatever sentience implies for humane treatment of them itobviously cannot accord them political rights. Like various other unsuccessful

groundings for political equality, sentience fails because it is too broadly applicableand not adequately relevant for what is in question.There is often a special aspect of this second of the three types of problems earlier

identified, the failure of irrelevance. For, political equality implies not just equalcivil rights and protections—for expression, association, due process, and soon—but crucially also equal entitlement to political voice and participation: spe-cifically, to vote, hold office, and so forth. Equal vulnerability to pain or otherphysical commonalities are glaringly insufficient as a justification for this distinctiveelement of democratic equality. While it is then tempting simply to insist that nocategory of persons is inherently entitled to rule over others, that just asserts the

very thing in question, and hence is subject to another of the initial objections,namely, circularity. The first type of objection, non-universality, was met up withfrom the start regarding rationality in a strict sense.

Further options might be urged to avoid the trio of objections, especially optionsthat combine qualities to make for a promising package. Some candidates above




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have this synthetic feature or can easily be assumed to have it, but they show nolikelihood of surmounting the objections or actually indicate a greater susceptibilityto them because a specific cluster of complex characteristics is hardly to be foundin everyone who deserves the same rights. Hobbes famously but unconvincinglyadopted an overall view of equality by assuming that human beings, notwith-standing their differences, are equal in their ability to dominate others sincesuperior capabilities of one sort, for instance strength, are nullified by superiorcapabilities of another sort, for instance cunning or the ability to secure alliances.Hobbes’s assumption of such actual equality is proven false by the historical recordof individuals or groups achieving domination for extended periods. Moreover, justas “might makes right” is question-begging, so is any inference from an equal lackof might to an equal entitlement to rights.

The futility of seeking further for a positive justification for political equality is

reinforced by the appeal of the alternative approach now to be elaborated.

3. Reorienting the Question about Equality

The proposed alternative approach to defending equality can be designated by anassortment of terms: Its mode of defence is negative or indirect, also historicalor precedent-based, more specifically: sequential, gradualist, and analogical. Itinvolves seeing that political equality as a currently accepted norm or ideal, if notas a fully achieved fact, has come about over an extended historical time, andthrough a double process of evolution: of expanding respects in which persons

are deemed to deserve equal legal-political treatment and of new categories of persons—religious, racial, sexual, and so on—who count as equal in the relevantrespects. The evolution, in both the kinds of rights attained and in the categoriesof those who are deemed to have them, has not been simply linear and steady. Still,the main ways by which specific new rights or categories of persons came to beencompassed is clear: by analogy with or by implication from prior ones. Famili-arly, the case for certain rights for women hinged on showing that men already hadthem, and on conceding that gender or anything associated with it did notultimately justify a difference in basic rights; similarly as between racial groups andothers. Crucially, what was invoked as a justification at each stage was not some

fully general and highly abstract principle about all humans, and most definitelynot a claim asserting absolutely elemental facts about even this or that group of persons. Instead, what was required and came to be convincingly established—after a time, and not easily or without opposition—was, for example, that group Athat had certain rights, never mind at the moment on what initial basis, was notultimately different in relevant respects from group B that did not have them. Withregard to the particular rights, freedoms, or protections throughout, there is both aninnovation or expansion of them over time and yet also a continuity of them in astep-by-step sequence. At the beginning was something as basic as habeas corpus

being accepted as a key protection, and in time there came about an entitlement for

all to have a voice or role in the political system. The latter sort of rights, which can be thought of as the distinctively democratic rights, signifying popular rule, arerelatively late achievements in (so-called) Western societies, not to mention else-where. As is on occasion importantly noted, modern societies were typically liberallong before they were truly democratic. Even for (white) males, elementary legal




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protections and various civil rights of conscience, association and so forth, wereusually in place long before the franchise was extended to them. Voting rights alonehardly guarantee equality in political representation: crucial also are rules about theformation of and membership in political parties, the design of legislative districts(as in Beitz 1989, 141–63), and much else. In its full-fledged form, political equalityfurther necessitates the entitlement and actual opportunity to hold office withoutrestriction by religion, gender or, the like, the right to be not merely one of theruled, however free, but one of the rulers.

The task of filling out this sequence that stretches over centuries, at least in itsfirst occurrences in Western Europe, belongs to historians and is the work of volumes. In this article it suffices to sketch some main stages and provideillustrative developments to show how the materials for normative argumentsabout equality are available in and assumed from these sources. In other words, at

any given time certain key assumptions and commitments are in place, and theseform the context for issues as they actually arise and are sensibly debated. Forexample, when same-sex marriage is argued over in the late twentieth and earlytwenty-first centuries, certain basic rights for gays and lesbians are in manycontexts already assured or recognized in principle—even if still controversial forvarious persons and places; in addition, marriage is not necessarily under theexclusive aegis of religious organizations and is accepted as normal whether or notit involves children. What is therefore typically contested in such a context aboutsame-sex marriage, and what is demanded even from a philosophically refined orlegally focused defence of it, is much less than an elemental, assumption-free

justification.Several clarifications are needed concerning the justificatory project being set forthhere. It is by no means committed to historicism or to a “Whig view of history.” Itdoes not simply treat whatever has come about as normatively valid or as a soundstarting point for philosophical justification, or suppose history is necessarilyprogressive overall and without backward slides, or even that history offers anyassurance that favorable outcomes can be counted on forever or indefinitely. Thepresumption at most is that whatever has come to be socially established needs to beunderstood in terms of when, how, and why it was established. For it may be evidentin this way that something was newly and properly understood, even by those who

previously opposed it; misperceptions and biases that were behind its priornon-recognition or refusal may be laid bare. For instance, after Elizabeth I had beenin power for a time, there could not continue as before a general doubt about thecompetence of a woman to rule, be decisive, and command a following. In differentcases, what emerges may come to be seen as a progressive or positive change in someways but also problematic or negative in others. For example, mass political partiesthat arose with universal suffrage and modern media were promoted as instrumentsfor enhancing democratic participation, but then also lamented for their tendency to

become bureaucratic and remain elitist.The general point is that although historical facts and especially social innova-

tions are obviously not as such normatively valid, they are at minimum norma-tively evidentiary and in important ways they frame what is or is notphilosophically in question. Further examples along these lines will soon be offered.But this in general must be stressed: It is a matter of moral regret but realisticacknowledgment that political equality was achieved only via a long, slow slog




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which entailed that so many for so long were not accorded their due. Better by far,if what is now recognized as morally right had been there from the start. But suchhas not been the way of human history in the matter of political equality (and muchelse). This means that if we call upon a painful step-by-step process as in waysprogressive, it is not to suppose that the journey as was justifies the result.

In that regard, though, it is important to see that a road once traveled, or severaltimes taken, becomes more readily available for rapid movement or even shortcuts

by others. In plain terms this means that, as with industrial and technologicaldevelopment, so also with democratic developments: later, newer societies can

build on the moral recognitions and achievements of prior societies or sequences,and need not start from scratch or proceed through all the previous stages.Familiarly, the American colonies began with a form of religious toleration whicharose in Europe only after centuries of intolerance, strife, and revolution. In another

regard, alas, slavery took new roots in the American South; even so, the clash between its racist basis and the novel norm of equality enunciated in the Decla-ration of Independence set the terms for a moral debate that was not thuspowerfully present in earlier times.

While a detailed historical sequence cannot be plotted out here, some main stagesof the overall development in conceiving and implementing political equality can

be sketched. In addition, some references to philosophical or legal arguments forequality that connect with this periodization can be provided. This should sufficeto grasp how aspects of political equality have been defended, and also how thewhole notion as a summary or outcome of them can be sensibly defended without

falling victim to the three types of objection or skepticism identified. We canenvisage the evolution of political equality as unfolding from the thirteenth centuryonward through four approximate and overlapping phases, plus internal evolutionwithin each (and here assume that ideas from earlier times are possibly influential

but not yet institutionalized). Aspects of this schema match a well-known onefound in Marshall (1965), but in addition to the fact that mine extends beyond hiswhich went only to the mid-twentieth century, I carve things up differently fromthe way Marshall did for various reasons connected with my focus on the generaldynamic of analogical reasoning across a broad range of factors, including race,gender, and culture, by contrast with his special concern about the dynamics of

economic class. Importantly also, I distinguish, as he did not, elemental legalequality attained prior to the seventeenth century from more developed forms of political equality. Still, what I offer is only an approximate schema as follows:

1) Thirteenth–sixteenth centuries: habeas corpus, basics of personal security, rejec-tion of arbitrariness, challenges to rule by custom and birthright.

2) Seventeenth–eighteenth centuries: feudalism ended, religious toleration and by extension freedom of expression and association.

3) Late eighteenth–mid twentieth centuries: equality encompassing race andgender in civil liberties; democratic rights: universal suffrage and entitlementto office.

4) Mid twentieth–twenty-first centuries: equality encompassing cultural differ-ences (via accommodations) and sexual orientation.

Seen overall, political equality is a complex notion comprising a cluster of rightsand a conception which in all respects is a rejection of arbitrary authority or




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distinctions. As such, looking at its beginnings, it is launched not so much by anassertion of some way in which all persons are the same, but instead with theinsistence by a privileged group that unrestricted sway over them will not betolerated. This is what was famously accomplished with Magna Carta, whenvarious English barons confronted King John in 1215 and extracted certain con-cessions and agreements, the most elementary of these being an embryonic form of habeas corpus and a right to trial by one’s peers.

Two important and connected lessons arise already from these beginnings andare applicable throughout later developments. One is that although of course actualconflicts and struggles over power are involved, what at times results is not just avictory of might but a settling of a matter of moral rightness, because a convincingcase is made that privileges possessed by some persons must apply also to others.A second lesson is that while the premises of a moral position may often be

questionable, at times they are quite plain and indisputable, because of being nothighly general and abstract but instead particular and as rock-bottom as anythingcould be. There is presumably nothing more fearsome than the prospect of arbitraryarrest and being kept imprisoned without recourse, and protection against this issurely among the basics that anyone would most earnestly value and legitimatelysecure if they could. Looking back to Magna Carta as a source of rights andconstitutionalism, it is crucial to recall that it initially only secured privileges“devised mainly in the interests of the aristocracy” (Holt 1992, 4–5), simply becausethe nobles were the ones in a position to demand limitations on royal absolutismand arbitrariness. Still, what they demanded as concessions were things anyone

would rightly insist on. So Magna Carta provided indisputable protections or corelegal rights although just for the few. It was only over the course of the next centuryor so that “Parliament passed statutory interpretations” which “went beyond anyof the detailed intention and sense of the original Charter” and “interpreted thephrase ‘lawful judgment of peers’ to include trial by peers and therefore trial by

jury, a process which existed only in embryo in 1215” (ibid.,10); similarly over aneven more extended time for habeas corpus until its formal encoding in England in1679 as a right applicable to all. What Magna Carta thus amounted to was not initself a general set of rights but a mode of moral reasoning from basics: “The historyof Magna Carta is a history not only of the document but also of an argument. The

history of the document is a repeated history of re-interpretation. But the historyof the argument is the history of a continuous element of political thinking” (ibid.,18). How then does that political thinking proceed or unfold? It does so by aprocess of association, analogy, and expansion whereby a partial idea is seen tohave a more general implication bit-by-bit, or where what is an entitlement forsome is seen as also legitimately demanded by and applicable to others. Aneventual implication of Magna Carta is not merely a limitation on the prerogativesof kings and other powers, but in fact a questioning of their very entitlement torule. Once subjects have certain rights, even if only of protection and due process,it becomes in time also challengeable that rulers have their status by divine right

or birthright, and that is because the span of inequality between persons has beenchipped away at. A locus for this is Locke’s First Treatise of Civil Government.Consider another stage in the advance of rights and equality associated again

with Locke. Locke’s famous argument for religious toleration in his Letter Concern-ing Toleration (1689) was in fact highly limited; it demanded simply the extension




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of religious toleration for various nonconformist Protestant sects, and excludedtoleration for Catholics (contra Waldron 2002, 218–23), not to mention others. Still,with allowance for variation by religious sects there comes about in time the logicalor analogical pressure for toleration of different religions, and religious belief isinescapably if not immediately associated with freedom of belief in much broader,nonreligious regards; further, freedom of belief is nothing without its instantiation

by way of freedom of association. So at each stage, particular steps and limited justifications are the ways by which political equality is expanded. That means thatrather than having to ask and answer highly general unfocused questions, such as,What freedom should people be entitled to? and, Why equal freedom and rights forall?—the answers to which are puzzling or vulnerable to counterexamples, muchmore specific and incremental aims are the subject of the day.

An illustration of the useful difference can be provided concerning claims by

Condorcet. As cited by Jennings in his history of French political thought,Condorcet in 1787 put forth a general view about universal natural rights: “We callthese rights natural because they derive from the nature of man, because from themoment a sensate being capable of reasoning and of having moral ideas exists, itfollows as an obvious and necessary consequence that he must enjoy these rights,that he cannot be deprived of them without injustice” (Jennings 2011, 35). Thesupport or justification for the sweeping claim about natural rights involves aninference of the dubious kind identified in the previous section. But as Jennings(ibid., 48) goes on to report, given that claim, “Condorcet had no alternative but toargue that political rights should be extended to include women” and in 1790 “he

drew the following conclusions: ‘the rights of man result solely from the fact thatthey are sensate beings, capable of acquiring moral ideas and of reasoning aboutthese rights. Thus women, having the same capacities, necessarily have the samerights.’ ” The premise about men, or about human beings, as a starting point ischallengeable in a way that the extension from men to women is not. Similarly,having penned in 1790 A Vindication of the Rights of Men (Wollstonecraft 1995a), asa standard piece of Enlightenment thinking but nonetheless as a philosophicallysomewhat insecure doctrine, Wollstonecraft had a much more straightforward lineof argument for the truly innovative case in her 1792 complementary work, AVindication of the Rights of Woman (Wollstonecraft 1995b).

The case for equal rights for women that has acquired even more prominence inthe history of liberalism is John Stuart Mill’s in The Subjection of Women (Mill 1970),and it exhibits key features that this article aims to highlight in a way that involvesspecial interest and irony. Mill, of course, seeks on all subjects a utilitarian analysisand mode of defence, but what actually carries most of the weight in his case forequal rights for women are factors other than utility in the requisite sense. That isfirst of all because Mill reserves his utilitarian arguments for the last chapter andspends the several earlier chapters trying to show, and doing so successfully, thatthe existing system of inequality and the assumptions on which it relies are simplyinconsistent with norms and practices already accepted in the context of mid-19th-

century England (ibid., 21). So Mill is for a while just challenging the opponents of equality on their own terms. For example, he argues that superior rights for menhave their source in practices imposed by force, and that “might makes right” hadlong ago ceased to be an acceptable justification in ethics and politics (ibid., 6–7);also, that claims about the inability of women to carry out their lives usefully and




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successfully on the basis of equality with men and of personal autonomy areallegedly factual but without any historical or experimental support (ibid., 21), thisat a time when arguments from authority and dogma are in other regards rejectedor treated with severe skepticism. Mill’s simple strategy of appealing in these waysto accepted norms and practices in order to challenge the current system of inequality is sustained and effective, but Mill does think it remains necessary toshow why in positive terms a system of equality is preferable to the current systemof inequality. However, when he turns to accomplishing this in his final chapter, bymeans of what are intended to be evident favorable consequences (for women,men, and society as a whole), the results hypothesized are not mere facts devoidof normative assumptions, as they should be if truly utilitarian and expressing

just indisputable elements of happiness or welfare. The positive benefits of equality cited include such things as the intrinsic worth and satisfaction of living

an autonomous life, a benefit that Mill (ibid., 96, 93) assumes is evident in the caseof men and that would carry over also to women, and then enhance men’s livesas their partners. It is perhaps not surprising that what are alleged to be value-free empirical results are actually desirable goods and goals only from a certainpoint of view—for utilitarianism is commonly vulnerable to the challenge that itclaims as desirable what is standardly desired. The special significance of that“criticism” here is that it highlights how equality for women is secured by a simple

but significant analogy with what is already mostly accepted, the merits of autonomy.

A further topic for exhibiting the role of analogical reasoning is the extension of

the franchise in England over the course of several decades with the variousReform Acts of 1832, 1867, and 1884–1885. In a nutshell, the sequence is at first thatof extending the vote from owners of substantial property to owners of onlymodest amounts of property, with the logical or analogical point being that if property gives one a stake in the country, then the amount of property should notas such matter. Property ownership as a criterion for a share of political authorityis itself a transformation of earlier notions of birthright, but it is only a partialtransformation because property is typically inherited. Yet, once made the criterionfor a say in the system of ruling, what property ultimately signifies is not simplyownership but having interests that are affected. That then carries over in time to

industrial and agricultural workers who lack property but as members of societynonetheless are significantly affected by who rules and for what purposes. Thissequential extension of the franchise is itself restricted to the category of men, andnot even yet universally to them. Once universally applied to men, it “had” in timealso to be applied to women. Although this is much after the Reform Acts, it is ata time when in other regards women count by virtue of having various rights andso are already thus sharing some status with men. Clearly, here and throughout Ido not intend to present a seamless process, but only indications of a series of stages. And as previously acknowledged, it is both understandable but regrettablethat progress comes all too partially and slowly.

The landmark US Supreme Court case that deemed racial segregation unconsti-tutional, Brown v. Board of Education,1 offers another distinctive illustration of the

1 Brown. v. Board of Education, 347 U.S. 483 (1954).




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step-by-step and indirect defence of equality. Segregation as practiced in schoolsand other facilities had as its legal basis the earlier ruling in Plessy v. Ferguson2 that“separate but equal” facilities were constitutionally valid. The key in the reasoning

in Brown

was that experience had shown separate facilities were not in practiceequal. This fact should (ideally) have been obvious from the outset, and was likelyexpected and long tolerated only because racial attitudes in the country continuedto favor discrimination. But by means of Plessy’s partial notion of equality being onrecord, however begrudgingly accepted at the time, it became the basis for its owntransformation.

As already noted, among the recent developments extending prior notions of political equality are rights for sexual orientation. Also currently relevant arespecial rights and accommodations for religious or cultural minorities. An exampleis granting flexibility in employment to allow celebrating holidays that do not

coincide with the legally prescribed ones that have their source in the religion orculture of the majority. This development focuses the now familiar point thatpolitical equality in some ways can require emphasizing not sameness but differ-ences that deserve special treatment. How this is followed through on can of course

be controversial, but various other applications claimed in the name of equality can be deeply controversial or even simply incorrect, unjustified. Differential treatmentof various sorts, here meaning actually unequal treatment, can often be justified, aswith requiring special tests for elderly drivers or according certain rights to citizensthat are not extended to (permanent) residents.

Normative concepts do not have a simple, abstractly conceivable logic or

manner of implementation. This is perhaps especially true of equality and defi-nitely so for the analogical orientation. It is always a matter of scrutinizingcarefully to know when some person or group is like some other and when not.Insofar, though, as there has been a trend of extending equality, an evolutiontowards greater equality, how should we characterize the process: As one of increasing knowledge of facts, often by jettisoning false beliefs about them, or oneof coming to new moral understandings? The sequence is each in ways and inpart, and ultimately both in ways that interweave. New facts enter to the extentit comes to be known, for example, that women can manage corporations orcountries when given the chance; but to properly perceive this it must be

absorbed and duly incorporated in thought to arrive at a new judgment of equality. In another way, an altered perspective, a novel appraisal, can come bysimply dwelling in a situation or interacting with others over a period of time.For example, deliberate reflection, or a slow simmering sense, about the intoler-ability of keeping people as chattel, because of likenesses between oneself andthem, was a way of coming to see the evil of slavery for some masters and forsome others who initially accepted it but then witnessed it.

With these remarks, I willingly align the view about equality as an evolvingmoral notion with some, but not other, aspects of Dworkin’s theory about moralobjectivity. Dworkin (2011, 130–4) maintains that Hume was right that moral

judgments are not reducible to factual ones, because what is entailed is aninterpretation of facts in accord with values. I take this to be evident in and

2 Plessy v. Ferguson, 163.U.S. 537 (1896).




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supported by the view of equality as arising through analogical reasoning, precisely because at issue is always what is and what is not alike, which facts are to beweighed in which ways for what purpose. I further take it, with Dworkin, thatwhile interpretive, the manner and outcome of such reasoning is not simplysubjective; there are true and false judgments in these matters, or at least inter-pretations which can be definitively superior to others, as in examples herethroughout. Among elements in Dworkin (ibid., 120) that I dissent from is his“hedgehog’s faith that all true values form an interlocking network.” Nothing inmy argument implies or supports this; on the contrary, much about analogicalreasoning and its often piecemeal mode indicates that our conclusions even whensomewhat general will be less than fully so, and indeed at times in tension or evenconflict. Thus, equality is justifiable in some degree and not more because of concerns about liberty, security, individuality, and whatnot.

Also to be distinguished from what is here being argued is the less grandiosemode of moral reasoning of “reflective equilibrium” (RE), the method originatingwith Rawls and now familiar in much moral theorizing; in fact, invoked in somemeasure by Dworkin (2011, 263). It calls for persons to move back and forth

between their particular judgments in moral matters and the general principlesthey accept or arrive at, mutually adjusting each level as need be until the variouselements are coherently balanced. There is space in this article only to note brieflyhow the analogical orientation being advocated differs from this and can claimsuperiority to it. While analogical reasoning may seem to some not adequatelysystematic, it is actually a traditional and reliable method, and one quite standardly

applied in law; whereas a concern about not being systematic applies in spades toRE. If it is a method, it is one without any clear sense of how to carry out theadjustments and for what counts as success in doing so. Troubling also and againis the demand for coherence, given that in the real world of moral judgments,especially in politics and law, there are uneasy compromises or hard choices

between competing but equally compelling values. Perhaps most important, espe-cially in such matters, is that RE gives as much priority to general principles andeven abstract theories as to solid judgments about particular matters, whereasanalogical reasoning, while allowing for approximate and evolving general notions,roots these in specifics and basics, for example as above, registering vulnerability

to arbitrary arrest and a right therefore to habeas corpus as rock-bottom elements andones to continually reaffirm.It is to be expected, therefore, that there will be limits to the degree of generality

that can be achieved even with the reasoning about one moral notion, such as(political) equality, and limits to what can be achieved by seeking greater abstrac-tion and coherence. Here I offer a thought in accord with the spirit of much of myanalysis but one that cannot be pursued in detail. As with political equality, so withother important moral-political notions, there are analogical sequences to beelaborated which would at times intersect and even overlap, but also at timesdiverge or even clash. Some features of what has been said about political equality

could be expressed in terms of aspects of individual freedom, or of security towhich persons should be entitled. However, I suggest, the lines for the variousmoral notions are not equivalent or reducible to each other. We should expect asequence or story about political equality and others about other moral notions,about how these originate in basics and develop into more expanded conceptions,




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sometimes by legitimate extensions and extrapolations and sometimes by mis-taken or deviant ones. So along with some compatibility and even synthesis of these moral notions, there surely will be tensions and the need for trade-offs.Such is the thinking in the background to what is here presented about politicalequality.

More concretely, the congruence between sequences of evolving principles asfound in law (at least in common law jurisdictions) and the pattern of normative

justification which is the theme of this article is no mere coincidence. A deliberateintent throughout is to highlight a connection between sound normative argumentsor justifications for moral-political principles and the mode of precedent-based andevolving thinking in law. This is also to say that precedent is not here meant as afixed basis for future decisions but instead, in accord with thinking through thelogic of (in)equality, precedent signifies a presumptive but potentially flexible basis

for future judgments (cf. Miguel 1997, 384). The link to legal reasoning bringsnormative argument down to earth and gives it a more solid foundation. Anotheradvantageous pairing or overlap is also implied: of political philosophy beingaligned with political science and social history, so that questions about ideals and

best regimes are explored in conjunction with understanding how concepts andinstitutions actually come about in the real world, and tend to be stable or unstableaccordingly.

However, the congruence with legal reasoning that I claim as a point of interestand support for the recommended mode of philosophically defending equality may

be tossed back as a problem in a special way. Various theorists have argued that

equality, whether as political or economic, actually plays no substantive role in lawand should not in normative moral-political theory (thus initially Westen 1982, 1990and Peters 1997, 2000, with follow-up by O’Brian 2010). The essence of the chargeis that references to entitlement to equal treatment really just refer to some way inwhich the same rule properly applies to various people, rather than the fact of theirhaving to be compared and be equal. A seeming test case is when a rule involvinga benefit is incorrectly applied to one person: it should not then follow, it is said,that the next person deserves the same; that would not be to demand equality buta legally incorrect and unjust result. As for prohibitions on discrimination, these intheir way should be understood, it is said, to signal not some general underlying

idea of equality of persons but simply specific characteristics that are not relevantfor some purpose, such as race or gender for normal job competence. As a result,O’Brian (ibid., 26) insists: “The conclusion that a person should be treated inaccordance with what the applicable law provides, irrespective of how others have

been treated, seems unassailable,” and that this extends to “moral and politicalphilosophy.” About legal-moral principles, he adds: “Of course they should begeneral or universal; this is probably a necessary feature of any moral principle. Butwhat matters is how people are treated, what they have, and how well their livesgo, not how all or any of these things compare to anyone else.” Such is this specialchallenge to my analysis.

Some aspects of this critique or of what underlies it I take to be correct and inline with the analysis I am endorsing, but not the main point about the irrelevanceor inappropriateness of references to equality and comparative treatment. Granted,as argued throughout, equality does not designate a single general notion, nor isthere some definitive characteristic or set of characteristics that support it. But what




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reason is there for supposing that laws or moral principles must be general in anon-arbitrary manner—unless unequal treatment of people, at least at the hands of government and law, is to be rejected in the absence of a specific justification forthe inequality? Generality of rules or laws does not of course amount as such tomoral or political equality; discriminatory laws can be general, applying differentconcepts or modes of treatment to different groups. But this is what in time focusesthe very issue of factually relevant versus morally arbitrary distinctions (cp.Williams 1976, 233). Indeed, how is someone to truly know whether the law has

been properly applied to him or her without looking at how it is applied tosimilarly situated others? Even a mistaken application of a law resulting in a benefitto someone, if not reversed or made the basis for some remedial action, could

justify extending the benefit to other persons. And what sense does it make to deemrace, gender, or other characteristics illicit bases for, say, employment or voting

without assuming that in these ways people are to be treated equally? True, we donot need an overall notion of whether or how people are equal to target this or thatdifferential treatment as unequal and unacceptable; still, proper or relevant appli-cation of rules is tied to (evolving) presumptions of equality. The result is the failureof attempts to sidestep equality, or the assessment of unjustifiable inequalities alongwith their implications.

Can we not at times, though, validly conclude that someone has been subjectedto improper, unjustifiable treatment simply by seeing that they have been made tosuffer or are destitute? Certainly, the effect of brutality or callousness may be plainand intolerable in a given instance without comparison, and grounds for legal-

political redress. But what is presumably signaled by such a situation is thatwhatever has been done or allowed to happen is not to be tolerated in the case of anyone else similarly affected, lest we revert to a rule of unequal treatment. Further,equal treatment does not exhaust all moral considerations between individuals oreven all governmental ones; on occasion, officials including judges should go toexceptional lengths to aid someone or to exercise compassion in dispensing justice.But these are by their nature exceptional instances, at the margins of equality or

beyond it. What is deserving as of right is, by definition, owed and known on the basis of comparable cases.

4. Political Equality in Perspective

Two final questions or challenges for my analysis deserve responses before con-cluding. First is a concern that may have come to mind to some readers at variouspoints so far, and that is a common one about arguments based on analogy:Namely, what are the criteria for relevant versus irrelevant similarities betweenpeople? Put another way, can the indirect or negative defence of equality avoidassuming some essentially defining characteristics of all human beings or of persons who are covered by political equality? How can we distinguish legitimateas against illegitimate extrapolations from, say, men to women, or from one racial

group to another?In fact, no general theory of relevant criteria is needed; no general conception of what is essential to persons is required; at least not at the start or any key pointalong the way to establishing the current democratic conception of politicalequality. Late in the sequence, or at the current stage of it, we can gather elements




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in a summary fashion to conclude that these-and-those characteristics are notnormally relevant criteria for denying persons the same rights—the familiar irrel-evant grounds being race, gender, and so forth; whereas, age, basic mentalcompetence, or possibly proven criminal guilt can in certain ways be relevant forrefusing certain rights. But why exactly are general criteria for relevant similaritiesor essential versus inessential differences not needed when rejecting claims orpractices of inequality? They are not needed because rebutting an obvious negativedoes not, here or elsewhere, presume a known positive. More particularly, whenconfronted with, for example, enslavement of blacks by whites, or voting rights forthe latter and not the former, all we need to show is that white persons do not asa group or on average have any specific qualities that entitle their mastery orpolitical rule. The mere fact of their having succeeded in gaining dominance may

be crudely called upon as the relevant thing, but then it can be readily shown that

some white persons should be entitled to enslave or politically rule over otherwhite persons. Clearly, at times and places that has been accepted. But the questionas above posed presumes that differences within a racial group are not acceptableas a basis for unequal rights. And one needs to take on questions as posed. So whatabout times when or contexts where accepting slavery within a racial group was

based on conquest in battle entitling the victor to mastery over captives? While thatpractice may not be logically inconsistent in its time and place, it is nonethelessvulnerable to something else: The practical prospect that the victors of today

become the captives of tomorrow, a nicely analogical argument with a specific andevident point of similarity. A version of this argument troubled Aristotle in the face

of his assumption that some persons by nature need masters because they areinherently unable to live as free persons, for he could see that some previouslyfreemen were slaves only by conquest. The fact that Aristotle did not thereforereject slavery based on these counterexamples merely shows again that seeingthrough to implications does not come instantly or easily; typically, only whenincoherence is lived with over time does instability in the prevailing views emerge.

In further rebuttal of the insistence that we require general criteria of relevanceor a theory of morally essential characteristics of human beings, it must be stressedthat specific inequalities can be challenged by particulars of a situation being dulyset out, and in this way also specific analogical extensions are fully manageable on

their own. Various facts about the capacities or characteristics of particular personsor groups are the keys to these assessments, not anything necessarily clearlygeneralizable or truly theoretical. To cite a simple non-human example, it is evidentthat ordinary cars and trucks are similar for certain purposes without a generaldefinition of either category of thing, just as it is plain that they are in waysdifferent for other purposes; it all depends on what is of concern at the moment.Particulars and their connections are typically more apparent than theories theymay or may not instantiate, especially when building one right on another orapplying something from one person or group to another. For human beings, it isevident that habeas corpus and impartial judges are notions linked to each other and

also that they are essentials of political freedom and personal security, even withoutsome fully general notion of freedom, rights, or persons as equal overall. Moreover,if a general theory of similarities and differences is always needed in these matters,how is an infinite regress avoided? By what criteria would we pick out criteria of relevance? Fortunately, specifics of actual cases can suffice. The real-world task in




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these ways for moral and political argument has been to assess and typicallychallenge inequalities, rather than imagine equality de novo, because inequalities inconcept and practice were the human beginnings and the historical ways, and assuch they have posed the issues for us. It is not even true to say that a presumptionof equality or an opposition in general to inequality has been the guiding themefrom the start. Rather, human history and societies begin with assumed inequalities,and for long only some few initial ones are even called into question: nonetheless,the challenges take on a momentum.

This raises a final question, or a return to one signalled at the start. Why notaccept that there is one grand project whereby political equality blends intoeconomic equality? There are of course various important respects in which thedemand for political equality clearly has economic implications and others wherevery arguably it does or should. As previously noted, equal rights of citizenship

clearly entail measures against discrimination and thereby equal or fair opportu-nities (however exactly defined and institutionalized) in competition for jobs,contracts, and the like. But political equality can also arguably require limits if not

bans on spending in electoral campaigns by corporations, unions, or even individ-uals; this in the name of equalizing not just political votes but political voice;notwithstanding the contrary view by the US Supreme Court in Citizens United,3 acase notably involving a dubious analogy between corporations being free to spendmoney and individual persons being free to advocate ideas. The mere mention of such matters, though, reinforces the main point that these are issues to be analyzedand argued out in terms of specific ways in which this or that dimension of equality

does or does not extend to some further one. Particular sequences and evaluativeimplications, rather than grand principles with deductions from them, must do thework here.

This recurring motif has even more force if what is at issue is the overarchingquestion: Why not accept that analogical reasoning leads beyond equality of opportunity to actual equality of result? Perhaps this should be accepted althoughI think not, and if it should be there is surely a large gap to be bridged. The reasonsare familiar and accepted by many theorists, although disputed by others. Elementsof clear or strong disanalogy, of relevant differences among persons, become moreprominent than elements of analogy when we consider deservedness for equal

outcomes, given the differential efforts people may freely exert and the choices theymake. Indeed, if equality in full of actual conditions is deemed to be the objective,then there may be nothing left for different persons to be: What appears impliedis ultimately the disintegration of distinct selves and lives. In any case, in accordwith the particularist and contextualist approach of this article, it would be amisstep to suppose that analogical extensions once allowed or endorsed imply aline with no limit.

Department of PhilosophyUniversity of Ottawa

Ottawa, Canada K1N 6N5E-mail: [email protected]

3 Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).



mailto:[email protected]:[email protected]


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C o p y r i g h t o f R a t i o J u r i s i s t h e p r o p e r t y o f W i l e y - B l a c k w e l l a n d i t s c o n t e n t m a y n o t b e c o p i e d

o r e m a i l e d t o m u l t i p l e s i t e s o r p o s t e d t o a l i s t s e r v w i t h o u t t h e c o p y r i g h t h o l d e r ' s e x p r e s s

w r i t t e n p e r m i s s i o n . H o w e v e r , u s e r s m a y p r i n t , d o w n l o a d , o r e m a i l a r t i c l e s f o r i n d i v i d u a l u s e .

Aronovich, Equidad Politica Por Precedentes

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