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More Equal Than Others

Juliana Thomas/NYU Photo Bureau
Jeremy Waldron at the NYU School of Law

All men are created equal—but in what sense equal? Obviously not in the sense of being endowed with the same attributes, abilities, wants, or needs: some people are smarter, kinder, and funnier than others; some want to climb mountains while others want to watch TV; and some require physical or emotional support to do things that others can do on their own. And presumably they are not “equal” in the sense of demanding identical treatment: a father can give aspirin to his sick child and not his healthy one without disrespecting the equality of his children. Rather, all humans are said to be equal in what philosophers call the “basic,” “abstract,” “deep,” or “moral” sense of equality. We are all, in some fundamental sense, and despite our various differences, of equal worth, demanding, in Ronald Dworkin’s famous phrase, “equal concern and respect.”

For many of the founding fathers, the principle of basic equality was consistent with some people being the property of others; in 1776 the abolitionist Thomas Day remarked that “if there be an object truly ridiculous in nature, it is an American patriot, signing resolutions of independency with the one hand, and with the other brandishing a whip over his affrighted slaves.” A commitment to basic equality was also apparently consistent with “free” women being legally excluded from civic life. Today, the US’s commitment to basic equality is apparently consistent with not only enormous socioeconomic inequality, but also enormous inequality of opportunity, much of it still determined by race and gender.

The seeming compatibility of basic equality with gross material and social inequality has led more than one critic (Marx most obviously) to wonder if talk of being “created equal” is a hollow spiritual promise designed to placate those suffering from earthly misery. That basic equality is not such a hollow promise—that it means something substantial, and that it is crucial to our political morality—is the central thesis of Jeremy Waldron’s One Another’s Equals.

In the postwar period, political philosophers have been much concerned with equality, though their concern has generally focused on what Waldron calls “surface-level issues” of equality: whether, as egalitarians, we should be aiming for equality of well-being, equality of material resources, or equality of opportunity. (By calling such questions “surface-level” Waldron doesn’t mean they are superficial; he calls them “some of the most intractable problems of political philosophy.” He means they take for granted that some sort of egalitarianism is right.)

Meanwhile, less has been said in the postwar period about what might justify a commitment to basic equality: why we should be some sort of egalitarian at all. Writing in 1962, Bernard Williams suggested that our common capacities to suffer and to love were the grounds of universal human equality. A year later, John Rawls proposed that what he called a “sense of justice,” a desire and ability to act on the demands of justice, was both necessary and sufficient to ground human equality. In his book, Waldron attempts to elaborate and improve on such proposals in a way that is both more systematic and, he says, more “wide-ranging” than contemporary philosophical discussions of equality.

A helpful way of thinking about basic equality, Waldron says, is that it denies that there are fundamental differences of kind between humans. While there are humans in different conditions—children and adults, the married and unmarried, citizens and aliens—there are not humans of different sorts, demanding fundamentally different forms of moral attention. Of course much turns on what we mean by “fundamentally” here. Clearly, the particular vulnerability of children means that they demand certain kinds of moral treatment that adults do not. More controversially, we might think that distinguishing between citizens and aliens involves treating some humans as if they were more deserving of our moral consideration than others. (How much of a consolation is it to tell a Syrian refugee that, while the border is closed to her, we are all created equal?)

But Waldron thinks that in neither case are we drawing fundamental distinctions of kind between humans: being a child or an alien is (in principle) a contingent condition, one that justifies different forms of moral treatment, but that does not speak of fundamental differences in moral worth. Or, to put it another way, insofar as our differential treatment of children and adults, or citizens and aliens, is justified, it is only because we can show how it is mandated by a principle that applies equally to everyone, including children and aliens.

So what kind of “fundamental” distinction between humans does a commitment to basic equality rule out? According to Waldron it is the sort of distinction that has historically been drawn between free men and natural slaves, civilized people and barbarians, noblemen and serfs, white people and black people, and men and women. On the one side of each of these divides we have people who have been taken to simply count more or be worth more, who have been thought to demand a moral consideration and respect that would be simply inappropriate if shown to those on the other side.

Waldron says that we, thankfully, do not draw such distinctions anymore. (The recent rise of right-wing nationalism in the United States and Europe, however, suggests we should not be too optimistic about how encompassing this “we” really is.) Or, rather, we no longer draw distinctions of fundamental worth among humans. For most of us do draw a fundamental distinction in worth between humans and nonhuman animals: while we cannot treat animals any which way, they are not generally thought to be our fundamental equals. Proponents of this view often say that humans are possessed of a “dignity” lacked by nonhuman animals. They endorse not only the thesis that Waldron calls “continuous equality,” that there are no differences in fundamental moral worth among humans, but also the thesis of “distinctive equality,” that there really are such differences between humans and nonhuman animals.

Waldron is a believer in not just continuous but also distinctive equality: all humans count equally, and they count significantly more than animals. He does not propose to offer a proof of either claim. Only someone who is already committed to basic equality, Waldron says, will find what he has to say about it persuasive. For the opponent of basic equality will invariably see the differences between humans—in intelligence, ability, race, sex, character, culture—as justifying different kinds of moral concern. For example, a sexist will see the differences between men and women as legitimate grounds for excluding women from various social and political goods. Only the egalitarian will be able to recognize these differences as mere differences. Seeing humans as equal, we might say, requires us to first believe in their equality, rather than the other way around. Still, Waldron proposes to “bolster” our antecedent commitment to basic equality, first by showing that it guides our political decision-making in substantive and demanding ways, and second by explaining how it is grounded in certain facts about the kinds of creatures we humans are.

Showing that basic equality makes serious demands on our politics is important if Waldron is going to answer the skeptic’s accusation that acknowledging the principle of “basic equality” does little to limit real, material inequality. One straightforward way of refuting this charge is to show that a genuine commitment to basic equality severely constrains the permissible political arrangements in a society—for example, by requiring an equal distribution of goods and benefits, or a distribution according to need, or a strict, state-enforced ceiling on material and social inequality. If so, then the dramatic economic and social inequality we witness today is inconsistent with our commitment to basic equality—and defenders of gross social or material inequality who say they are committed to basic equality would turn out to be mistaken.

But Waldron does not take this route. Instead he says that a genuine commitment to basic equality is compatible with various political arrangements regarding distribution, entitlements, and rights. This is because, in Waldron’s view, basic equality is not a first-order moral principle—a principle we can apply directly to questions about how to treat one another—but instead a second-order principle that constrains how we must apply any particular first-order moral principle. Basic equality tells us that, when it comes to applying the principles of utilitarianism, or libertarianism, or socialism, we must do so in a way that is disciplined by the logic, as Bentham said, of “everybody to count for one, nobody for more than one.” If we are making decisions on the basis of a utilitarian calculus, we cannot discount the happiness of some people while weighing the happiness of others. If we are allocating resources according to need, we cannot, consistent with basic equality, count one person’s needs as greater than another person’s.

This characterization of basic equality as a second-order principle, compatible with various sorts of political arrangements, leaves Waldron vulnerable to the skeptic’s charge that basic equality doesn’t amount to much. Consider the principle that societies should distribute goods strictly according to natural talents. It’s possible to apply this principle in a way that respects basic equality as a constraining second-order principle, so long as we apply the principle consistently across all people, talented or not. And yet this principle, so constrained, would lead to serious inequality, since the distribution of natural talents is far from uniform. Indeed one might think that such a distribution was moreover plainly unjust, in that it would allocate resources to people simply on the basis of the luck of their natural endowments.

I suspect that Waldron would say that such a “meritocratic” principle is in fact inconsistent with the demands of basic equality. But it remains something of a mystery just why. (Early on in the book Waldron says that “basic equality sometimes has distributive implications all by itself,” but he doesn’t tell us what those concrete implications might be, or how they follow from basic equality.) How does a principle that merely constrains how we apply our favored political ideals ensure that we do not select manifestly unjust and unequal ideals, like distribution according to talents, birth, or beauty? And if a commitment to basic equality does not rule out such ideals, in what sense does it really amount to a commitment to equality, except in the thinnest, most procedural sense?

Waldron is insistent that basic equality, despite its status as a second-order principle, is morally demanding. It requires us, he writes, to “insist unflinchingly that the benefit of basic principles of human worth and human dignity accrues equally to every human being.” His central example is a decision made by the Israeli Supreme Court in 2005 on targeted killings of Palestinians, including those not directly involved in terrorist activities. In his opinion, Supreme Court President Emeritus Aharon Barak argued that a ruling on the question had to respect the fact that “unlawful combatants are not beyond the law. They are not ‘outlaws.’ God created them as well in his image. Their human dignity as well is to be honored.” Barak went on to argue for an expanded notion of what counts as “direct participation” in terrorist activity, so as to make Israel’s killings compatible with international customary law. The other justices concurred. Waldron finds Barak’s invocation of basic equality moving, a sign of “the hard and desperately difficult work” that the principle does. A skeptic might think it a prime example of how talk of basic human equality can be used to dignify profound inhumanity.

Edward Lear

Related to but distinct from the worry that basic equality is an empty notion is the worry that it is a redundant one. (“Be nice to your sister” isn’t empty, but it’s redundant if you’ve already said “be nice to your siblings.”) For Waldron, basic equality tells us to apply our moral principles to people irrespective of their race, sex, class, and so on. But is this not just to say that we ought to apply our moral principles consistently—something that follows from their very nature as principles? Consider, for example, Marx’s dictum “from each according to his ability, to each according to his needs.” So long as we apply that principle consistently, we will find ourselves attending to everyone’s needs, regardless of race or sex, caste or creed—just as the egalitarian wants us to. What is gained by saying, in addition, that all humans are equal?

Waldron’s response to the redundancy challenge is twofold. First, he argues that the invocation of basic equality is essential when it comes to matters of comparative justice. Consider a case in which we are more confident that two people who have committed similar crimes should get a similar sentence than we are confident of what that sentence would be. Here it seems that we cannot simply consider how each person, in turn, ought to be treated; we must make interpersonal comparisons in order to bring our treatment of both into alignment. An appeal to equality is required.

But as Waldron admits, comparative justice covers a fairly small range of cases. His second response to the redundancy challenge is meant to apply more broadly. “You can ditch the word ‘equality’ if you like,” he writes, but insofar as you want to signal your “steadfast opposition” to racism, sexism, and other such forms of discrimination, “the use of the word ‘equality’ is as good a strategy as any.” This is a pragmatic rather than principled argument, one that may be truer in some political moments than others. No doubt calls for equality have been vital in historical battles against oppression, most obviously the feminist and civil rights movements. Whether such invocations are still helpful today is less clear. Online, the term “egalitarianism” is increasingly used to signal opposition to feminism. (The subreddit r/Egalitarianism features posts by men’s rights activists on false rape accusations, the “myth” of the wage gap, and “female privilege.”) On the other hand, the rise of white supremacism, with its proud embrace of natural hierarchy, might mean that it’s too soon to give up on talking about equality.

The second part of Waldron’s project to bolster our commitment to basic equality involves explaining the particular qualities of human beings that provide grounding for this principle. His task here is to identify a property that reveals our equal, deep, and distinctive worth—a worth that extends to all humans “but not to teapots or tadpoles.” Waldron is most taken by the human capacities for personal autonomy, reason, moral thought and action, and love. He urges us not to choose among them, saying that basic equality might well be grounded in a complex combination of all of them. Of course, each of these capacities can be found to varying degrees in different humans. Thus Waldron appeals to Rawls’s notion of a “range property”: what matters, at least for the purposes of basic equality, is whether a given creature falls within the “ordinary range” of each human capacity, not the degree to which he or she has it.

Waldron’s proposal to ground equality in the “ordinary range” of certain human capacities threatens to leave out not just teapots and tadpoles but many humans too: babies and young children who have not yet developed capacities for autonomy, reason, morality, and love; and also those humans with cognitive impairments (chronic or as a result of old age) so severe as to deprive them of these capacities. (Waldron uses the term “profoundly disabled” to refer to the latter group, and means it to indicate “a relatively narrow range of cases”; for “many people who are regarded as disabled,” he writes, “there is no question but that they fit within the ordinary range of human functioning.”) The case of the very young and the very old is easier to deal with, since in the usual course of things they go on to develop these capacities or once possessed them. Thus Waldron tells us that the subject of basic equality is not a particular human at a particular time, but “whole human lives.”

The case of those profoundly disabled from birth is more pressing. Waldron agrees with philosophers like Eva Kittay and Lawrence Becker who insist that any good theory of justice must vindicate the rights of people who are profoundly disabled. He is thus not open to, as philosophers like to say, “biting the bullet” and concluding that those who are profoundly disabled are not our equals after all. Nonetheless, one might worry that Waldron has needlessly put himself on unstable ground. In an encyclical, Pope John Paul II warned against any attempt to ground human worth in capacities that are not shared by the most vulnerable among us; we owe one another equal care and love, he said, because God entrusts us to one another. Such a view is of course not available to someone of a strictly secular bent. But one need not appeal to the divine in order to assert that equality is simply a foundational commitment, ungrounded in any natural human attribute. Thus the philosopher Margaret MacDonald argued that to declare a conviction in human equality “is not to state a fact but to choose a side.” To ask why this side rather than the other, she went on, was “a bit like asking somebody why do they love their child, or why do they love their spouse or partner. They just do.”

Waldron does not want to give this sort of answer to the question of why the principle of basic equality extends to profoundly disabled humans. This is not because of a lack of religiosity. Waldron’s Christian perspective is “hinted at throughout,” as he says, and is the topic of one of the book’s chapters. (The book is based on Waldron’s 2015 Gifford Lectures at the University of Edinburgh, a lecture series dedicated to “the study of Natural Theology.”)

In that chapter he suggests that a religious foundation for basic human equality might well be needed—a thesis he first advanced in his 2002 book God, Locke, and Equality—to explain why the human capacities for reason, morality, autonomy, and love have the power they do to ground human equality. For these capacities, Waldron suggests, take on a deeper and different significance when they are seen for their place in a story of free will, sin, repentance, forgiveness, communion, and salvation. Here Waldron departs from the philosophical mainstream; as he wrote in God, Locke, and Equality, articulating a nontheological foundation for equality is a “maneuver on which modern secular liberalism…depends absolutely.” Waldron’s implication is that if we really want to be egalitarian liberals, we might have to give up on our secularism.

But whether speaking in a secular or religious register, Waldron thinks we must be able to explain why profoundly disabled humans are our equals: it’s not enough to say they just are. His preferred account is that profoundly disabled humans have bodies, whatever their impairments, that exhibit a natural teleology, one that means that profoundly disabled humans potentially have the capacities that ground human equality. Whether or not a child is ultimately able to speak, Waldron says, her body’s organic structure—tongue, larynx, the neural pathways of the brain—are “unintelligible except on the assumption that they are developing for speech.” Likewise, a profoundly disabled person’s body has an organic structure that is similarly unintelligible except on the assumption that this is a creature meant for human reason, autonomy, morality, and love.

Waldron does not mean to be invoking any spooky metaphysics: the “underlying account here is evolutionary, not theological.” His point is underscored by the fact that biologists often explain physiology with reference to evolutionary function: eyes evolved so that we can see, wings evolved so that birds can fly, and so on. But it is not entirely clear how such talk should come into our ethics. If a profoundly disabled human is in some significant sense “meant” to be able to reason or be autonomous, is a deaf person also “meant” to be able to hear? Or for that matter, is a gay person “meant” to be a straight one? Is a happily childless woman “meant” to procreate? Disability theorists, among others, have taught us to recognize multiple forms of flourishing human life, a vision that Waldron very much shares and endorses. But holding faith with that vision might be in tension with the view that biological function carries ethical weight.

In offering his account of what makes profoundly disabled humans our equals, Waldron also means to “confront and refute” an argument famously made by the philosopher Peter Singer. Singer notes that most of us would be instinctively horrified by the idea of treating a human with severe cognitive impairments in the ways we routinely treat animals with similar cognitive capacities. But this, Singer says, is inconsistent; if profoundly disabled humans are our equals, then surely chimps, dolphins, pigs, and elephants are too. As a believer in distinctive equality—the idea that humans have significantly more worth than animals—Waldron must resist Singer’s conclusion. This is why Waldron does not simply expand what counts as the “ordinary” range of human capacities to include those capacities actually possessed by profoundly disabled humans. By instead locating the grounds of equality in a profoundly disabled human’s potential capacities, he hopes to defend the thesis of basic human equality without granting equality to non-human animals.

Waldron calls Singer’s disability-based argument for animal rights “opportunistic,” since “it takes the difficulty that theories of human equality face in dealing with profound human disability as an opportunity for rethinking the separate question of the rights of animals.” Another way of putting it is that Singer’s analogy is as likely to get people to treat disabled persons worse as it is to get them to treat animals better. (The impression that Singer is not merely interested in elevating the status of animals is not helped by the fact that he defends the permissibility of euthanizing disabled infants, including those with relatively mild disabilities.) It is a moral disappointment that defenders of animal rights sometimes try to make their case by leveraging the rights so precariously afforded disabled humans.* That Singer chooses to make his case in this way is especially disappointing as the case for animal rights can be persuasively made on the basis of what is special about animals: instinct and intelligence, practices of community and caretaking, susceptibility to emotional and physical suffering, and the capacity for affection, love, and joy.

One gets the impression, reading One Another’s Equals, that Waldron does not think there is anything terribly special about animals. Humans appear to outstrip their animal counterparts in every way. (God’s command in Genesis to make man after his own image is immediately followed by God’s gift to man of dominion over “every creeping thing.”) We are told by Waldron that there is not much point trying to teach a cat, but little is said about the extraordinary capacity for learning evinced by chimps, dolphins, crows, or octopuses. Waldron speaks about the universal human concern with death rituals but does not remark on the complex cultural practices of grieving elephants. He celebrates the human capacity for moral deliberation, without celebrating the capacity of some species for unthinking sacrifice and service. Most of all, he does not dwell on animals’ vulnerability to suffering and death, a vulnerability that we humans not only share, but that so often feels like the most important thing about us.

A thought central to Waldron’s book is that basic equality neither presupposes that all humans are identical nor requires that we receive identical treatment. Equality is consistent with tremendous individual difference. Once we have such a thought in hand, why must we insist that animals are not our equals? Animals are not identical to us, and they do not demand or permit identical treatment. Lions do not have the right to education any more than we have the right to hunt gazelle on the open plains. And yet it might be that animals deserve equal, if different, concern and respect. Of course Waldron does not see it this way: when he compares a human with an animal he sees two creatures of fundamentally different moral status. But here we might say what Waldron himself says of those who deny human equality, that seeing equality requires that you first believe it.

  1. *

    This isn’t to say that the ethics of disability cannot be insightfully discussed alongside animal ethics; Sue Donaldson and Will Kymlicka’s Zoopolis: A Political Theory of Animal Rights (Oxford University Press, 2011) as well as Alice Crary’s Inside Ethics: On the Demands of Moral Thought (Harvard University Press, 2016) are wonderful examples.