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Ratio Juris. Vol. 28 No. 1 March 2015 (11026)

Political Equality by Precedent


HILLIARD ARONOVITCH*
Abstract. This article asks about the justification for the principle of political
equality 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. The
more 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 and
specific precedents. The justification of political equality is thus connected to the
explanation of its emergence.

1. Introduction
At the core of modern democracies is a principle that is more commonly assumed
than successfully defended: the principle of political equality, of all persons being
entitled to the same basic rights from government, without (in the current litany)
discrimination based on race, religion, national or ethnic origin, gender, sexual
orientation, or similar characteristics. Exactly what protections and liberties are
entailed and precisely who is to have them may be unclear or controversial. But the
principle itself as an abstract norm and important commitment, of equal rights for
all, is standardly accepted. However, the justification or foundation for it when
probed 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 Richard
Arneson (1999): What, if Anything, Renders All Human Beings Morally Equal?
Political equality is simply the focused application within a sphere of jurisdiction
of the more general moral idea. In each regard, the basis for equality remains absent
or problematic as will be shown by a survey of some main answers in the next
section. Rather than concluding, though, that the principle of equality is truly
without justification or, unthinkably, that it should be jettisoned, we should refocus
the sort of defence suitable for it. The appropriate questionfor us now within a
democratic systemis not about what grounds political equality; rather, it is about
how and why we have come to reject political inequality. The latter question allows
for an illuminating answer, by showing how traditional presumptions of inequality
are 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 earlier
version of the article.
2015 The Author. Ratio Juris 2015 John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main
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to do in the section after the next one, is valid for the following reason that will be
central to the overall argument of this article. History and precedents must be an
integral part of normative theory; for it is wrong to suppose that we can ask
genuine questions on these matters from nowhere: To the extent we seem to do
so, we end up with nothing. These considerations extend to various other fundamental 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 shall
concentrate on the concern about political equality.

2. Canvassing (Unsuccessful) Criteria


The standard project of defending equality can be defined as the requirement to fill
in the blank in some such statement as this:
Principle of Political Equality (E): All persons deserve to be treated as politically
equal 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 equality as addressed in this article, are not directly concerned with theories
of economic equality, with claims about which resources, or sort of welfare, or
capabilities, or the like should be provided to all persons under the aegis of
egalitarianism. That large and significant question of whether economic equality is
a valid norm or of how it should be implemented (the issue affirmatively pursued
in 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 this
article. Virtually all theorists who advocate some significant version of substantive
economic equality, or distributive justice, rely on political equality as a stepping
stone, and so it matters to have that piece securely in place (and not itself
something unquestionably stepped over). Nonetheless, political equality as
standardly understood and indeed as treated in what follows does include some
basic economic implications, for example, by way of legal-political equality necessitating anti-discriminatory requirements for employment, and other elements of
equal opportunity. As a result, this article goes a certain important way with a
mode of reasoning about equality and leaves openwith some additional suggestive remarks toward the endwhat bearings it may have for the vast topic of
distributive justice.
The criticisms of proposed grounds for political equality that will be presented
are 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 somewhat
parallel his moves, has maintained that in their present form none of the
arguments given for the doctrine of equal human worth are sound. Arneson (1999)
wrestled in particular with and then conceded Peter Singers charge that criteria
certifying 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 interpretation of what equality specifically requires rather than on justifying or grounding the fundamental notion. Jeremy Waldron (2002, 2; see also Kelly 2010, 568)
emphasizes this as against Dworkin, notwithstanding Dworkins important works
offering a theory of what is entailed by equality and especially equal respect, his
basic notion. Beitz (1989), as another example, usefully explores several possible
meanings and institutional applications of political equality, and defends a
contractualist conception whereby equal citizenship necessitates terms of participation [that] should be reasonably acceptable to all; but this again, as he acknowledges, is intended as an interpretation of a widely held egalitarian ideal (ibid., 18,
21821), and not as a more basic justification of the starting notion.
Some theorists give up on a grounding for equality and embrace it as a
non-rational commitment (Nielsen 1988), or as an ultimately unsubstantiated
premise for analyzing democratic decision-making (Marmor 2005, 320; Christiano
2008, 178), 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 partly
historical and precedent-based, but the usual and unsuccessful ways are different,
as follows.
Among characteristics alleged to ground equality an evident one is the capacity
for reason or rationality, as in Kant and in Nagel (1986), among others. The problem
is that when taken in any strict sense, that characteristic is not universally
applicable. If what is meant is the tendency always to think logically and consistently, or in response to moral questions in some purely principled and disinterested
manner, that tendency is not unfailingly or optimally manifested even by the most
astute or broad-minded of persons, and is certainly often absent in the thoughts
and actions of many of us. Rationality in the indicated sense as a requisite of
political equality is even unjustifiably intellectualist or elitist. If, instead, the
requisite is only a basic capacity to recognize blatant contradictions of the form P
and not-P, that seems not relevant for rights or too minimal to warrant equal
citizenship, since even machines in ways can pick out contradictory strings, and as
applied to humans this minimum could render children, who are unable to
distinguish right from wrong, full-fledged legal persons.
A seemingly more suitable candidate in the same vein is something such as the
capacity to form and implement purposes in ones life. A version of this may again
be linked to Kant, specifically his important notion that persons are never to be
treated merely as means, precisely because they have purposes of their own. An
appealing articulation of the same idea was proposed by Nozick (1974, 4851) in
support of his libertarian view that persons have fundamental rights that ban
various forms of mistreatment (although in the opinion of Nozicks critics, the
rights and bans he wanted are too meagre). What Nozick alluded to, acknowledging its imprecision and integrating elements of rationality, free-will, and moral
agency, is the capacity to shape ones life, to live a meaningful life. But this again
is bound to vacillate between an unduly strong requirement and an all-too weak
one. The former option seems the main one towards which Nozicks notion
inclines, but it is really more the recipe for an admirable life rather than an ordinary
one. The weak construal, though, suggests just the ability to act intentionally for
things 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 a
distinctive proposal that is meant to serve as solid middle ground. Expanding on a
suggestion in Rawls, Waldron (ibid., 767) proposes that the fact about human beings
that warrants equality is a range property, namely, the capacity for abstract thought
which admits of significant variation amongst (adult) humans but which, being
possessed at or beyond a certain threshold level, suffices to count human beings
generally as entitled to the same basic political rights. However, there is a double
difficulty with this proposal. For one thing, it is actually question-begging, since the
degree of variation in the relevant quality is so significant, and even what counts as
the core capacity for abstract thought is so unclear, that one wonders why or how it
should be a basis for the political equality of all. The second and compounding
difficulty Waldron himself in effect acknowledges. For he insists that it is only by
virtue 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 having
to be recognized as creatures of God (ibid., 83). Intriguingly, Waldron (ibid., 13) leaves
us with the thought that natural properties of humans on their own, conceived in a
purely secular liberal conception, cannot do the job.
Pojman (1997) also suggests that what is needed is a metaphysical grounding
and likely a variation on theological ones. But any such stance on equality is
vulnerable not just to disbelief in the premises about God. Even more importantly,
by way of internal critique, that theological premises for long coexisted with
ordaining 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 20022003, 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 to
pain, and instinct for pleasure, as the basis for ethics and for according ethical
consideration to animals. Both points are in ways valid, but only with the proviso
that 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 it
obviously cannot accord them political rights. Like various other unsuccessful
groundings for political equality, sentience fails because it is too broadly applicable
and 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 equal
civil rights and protectionsfor expression, association, due process, and so
onbut crucially also equal entitlement to political voice and participation: specifically, to vote, hold office, and so forth. Equal vulnerability to pain or other
physical commonalities are glaringly insufficient as a justification for this distinctive
element of democratic equality. While it is then tempting simply to insist that no
category 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 with
from the start regarding rationality in a strict sense.
Further options might be urged to avoid the trio of objections, especially options
that 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 no
likelihood of surmounting the objections or actually indicate a greater susceptibility
to them because a specific cluster of complex characteristics is hardly to be found
in everyone who deserves the same rights. Hobbes famously but unconvincingly
adopted an overall view of equality by assuming that human beings, notwithstanding their differences, are equal in their ability to dominate others since
superior capabilities of one sort, for instance strength, are nullified by superior
capabilities of another sort, for instance cunning or the ability to secure alliances.
Hobbess assumption of such actual equality is proven false by the historical record
of individuals or groups achieving domination for extended periods. Moreover, just
as might makes right is question-begging, so is any inference from an equal lack
of 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 an
assortment of terms: Its mode of defence is negative or indirect, also historical
or precedent-based, more specifically: sequential, gradualist, and analogical. It
involves seeing that political equality as a currently accepted norm or ideal, if not
as a fully achieved fact, has come about over an extended historical time, and
through a double process of evolution: of expanding respects in which persons
are deemed to deserve equal legal-political treatment and of new categories of
personsreligious, racial, sexual, and so onwho count as equal in the relevant
respects. The evolution, in both the kinds of rights attained and in the categories
of 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 be
encompassed is clear: by analogy with or by implication from prior ones. Familiarly, the case for certain rights for women hinged on showing that men already had
them, and on conceding that gender or anything associated with it did not
ultimately justify a difference in basic rights; similarly as between racial groups and
others. Crucially, what was invoked as a justification at each stage was not some
fully general and highly abstract principle about all humans, and most definitely
not 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 oppositionwas, for example, that group A
that had certain rights, never mind at the moment on what initial basis, was not
ultimately different in relevant respects from group B that did not have them. With
regard to the particular rights, freedoms, or protections throughout, there is both an
innovation or expansion of them over time and yet also a continuity of them in a
step-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, are
relatively late achievements in (so-called) Western societies, not to mention elsewhere. As is on occasion importantly noted, modern societies were typically liberal
long 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, were
usually in place long before the franchise was extended to them. Voting rights alone
hardly guarantee equality in political representation: crucial also are rules about the
formation of and membership in political parties, the design of legislative districts
(as in Beitz 1989, 14163), and much else. In its full-fledged form, political equality
further necessitates the entitlement and actual opportunity to hold office without
restriction by religion, gender or, the like, the right to be not merely one of the
ruled, however free, but one of the rulers.
The task of filling out this sequence that stretches over centuries, at least in its
first occurrences in Western Europe, belongs to historians and is the work of
volumes. In this article it suffices to sketch some main stages and provide
illustrative developments to show how the materials for normative arguments
about 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 these
form the context for issues as they actually arise and are sensibly debated. For
example, when same-sex marriage is argued over in the late twentieth and early
twenty-first centuries, certain basic rights for gays and lesbians are in many
contexts already assured or recognized in principleeven if still controversial for
various persons and places; in addition, marriage is not necessarily under the
exclusive aegis of religious organizations and is accepted as normal whether or not
it involves children. What is therefore typically contested in such a context about
same-sex marriage, and what is demanded even from a philosophically refined or
legally focused defence of it, is much less than an elemental, assumption-free
justification.
Several clarifications are needed concerning the justificatory project being set forth
here. It is by no means committed to historicism or to a Whig view of history. It
does not simply treat whatever has come about as normatively valid or as a sound
starting point for philosophical justification, or suppose history is necessarily
progressive overall and without backward slides, or even that history offers any
assurance that favorable outcomes can be counted on forever or indefinitely. The
presumption at most is that whatever has come to be socially established needs to be
understood in terms of when, how, and why it was established. For it may be evident
in this way that something was newly and properly understood, even by those who
previously opposed it; misperceptions and biases that were behind its prior
non-recognition or refusal may be laid bare. For instance, after Elizabeth I had been
in power for a time, there could not continue as before a general doubt about the
competence of a woman to rule, be decisive, and command a following. In different
cases, what emerges may come to be seen as a progressive or positive change in some
ways but also problematic or negative in others. For example, mass political parties
that arose with universal suffrage and modern media were promoted as instruments
for 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 innovations are obviously not as such normatively valid, they are at minimum normatively evidentiary and in important ways they frame what is or is not
philosophically 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 realistic
acknowledgment 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 such
has not been the way of human history in the matter of political equality (and much
else). This means that if we call upon a painful step-by-step process as in ways
progressive, 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 several
times taken, becomes more readily available for rapid movement or even shortcuts
by others. In plain terms this means that, as with industrial and technological
development, 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 which
arose 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 Declaration of Independence set the terms for a moral debate that was not thus
powerfully present in earlier times.
While a detailed historical sequence cannot be plotted out here, some main stages
of the overall development in conceiving and implementing political equality can
be sketched. In addition, some references to philosophical or legal arguments for
equality that connect with this periodization can be provided. This should suffice
to grasp how aspects of political equality have been defended, and also how the
whole 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 can
envisage the evolution of political equality as unfolding from the thirteenth century
onward through four approximate and overlapping phases, plus internal evolution
within each (and here assume that ideas from earlier times are possibly influential
but not yet institutionalized). Aspects of this schema match a well-known one
found in Marshall (1965), but in addition to the fact that mine extends beyond his
which went only to the mid-twentieth century, I carve things up differently from
the way Marshall did for various reasons connected with my focus on the general
dynamic 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 legal
equality 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) Thirteenthsixteenth centuries: habeas corpus, basics of personal security, rejection of arbitrariness, challenges to rule by custom and birthright.
2) Seventeentheighteenth centuries: feudalism ended, religious toleration and
by extension freedom of expression and association.
3) Late eighteenthmid twentieth centuries: equality encompassing race and
gender in civil liberties; democratic rights: universal suffrage and entitlement
to office.
4) Mid twentiethtwenty-first centuries: equality encompassing cultural differences (via accommodations) and sexual orientation.
Seen overall, political equality is a complex notion comprising a cluster of rights
and 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 an


assertion of some way in which all persons are the same, but instead with the
insistence by a privileged group that unrestricted sway over them will not be
tolerated. This is what was famously accomplished with Magna Carta, when
various English barons confronted King John in 1215 and extracted certain concessions and agreements, the most elementary of these being an embryonic form of
habeas corpus and a right to trial by ones peers.
Two important and connected lessons arise already from these beginnings and
are applicable throughout later developments. One is that although of course actual
conflicts and struggles over power are involved, what at times results is not just a
victory of might but a settling of a matter of moral rightness, because a convincing
case 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 not
highly general and abstract but instead particular and as rock-bottom as anything
could be. There is presumably nothing more fearsome than the prospect of arbitrary
arrest and being kept imprisoned without recourse, and protection against this is
surely among the basics that anyone would most earnestly value and legitimately
secure if they could. Looking back to Magna Carta as a source of rights and
constitutionalism, it is crucial to recall that it initially only secured privileges
devised mainly in the interests of the aristocracy (Holt 1992, 45), simply because
the nobles were the ones in a position to demand limitations on royal absolutism
and arbitrariness. Still, what they demanded as concessions were things anyone
would rightly insist on. So Magna Carta provided indisputable protections or core
legal rights although just for the few. It was only over the course of the next century
or so that Parliament passed statutory interpretations which went beyond any
of the detailed intention and sense of the original Charter and interpreted the
phrase 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 an
even more extended time for habeas corpus until its formal encoding in England in
1679 as a right applicable to all. What Magna Carta thus amounted to was not in
itself a general set of rights but a mode of moral reasoning from basics: The history
of 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 history
of 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 a
process of association, analogy, and expansion whereby a partial idea is seen to
have a more general implication bit-by-bit, or where what is an entitlement for
some is seen as also legitimately demanded by and applicable to others. An
eventual implication of Magna Carta is not merely a limitation on the prerogatives
of kings and other powers, but in fact a questioning of their very entitlement to
rule. 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 been
chipped away at. A locus for this is Lockes First Treatise of Civil Government.
Consider another stage in the advance of rights and equality associated again
with Locke. Lockes famous argument for religious toleration in his Letter Concerning 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 excluded


toleration for Catholics (contra Waldron 2002, 21823), not to mention others. Still,
with allowance for variation by religious sects there comes about in time the logical
or analogical pressure for toleration of different religions, and religious belief is
inescapably 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 that
rather 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 for
all?the answers to which are puzzling or vulnerable to counterexamples, much
more 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 call
these rights natural because they derive from the nature of man, because from the
moment a sensate being capable of reasoning and of having moral ideas exists, it
follows as an obvious and necessary consequence that he must enjoy these rights,
that he cannot be deprived of them without injustice (Jennings 2011, 35). The
support or justification for the sweeping claim about natural rights involves an
inference 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 to
argue 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 that
they are sensate beings, capable of acquiring moral ideas and of reasoning about
these rights. Thus women, having the same capacities, necessarily have the same
rights. The premise about men, or about human beings, as a starting point is
challengeable 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), as
a standard piece of Enlightenment thinking but nonetheless as a philosophically
somewhat insecure doctrine, Wollstonecraft had a much more straightforward line
of argument for the truly innovative case in her 1792 complementary work, A
Vindication of the Rights of Woman (Wollstonecraft 1995b).
The case for equal rights for women that has acquired even more prominence in
the history of liberalism is John Stuart Mills in The Subjection of Women (Mill 1970),
and it exhibits key features that this article aims to highlight in a way that involves
special interest and irony. Mill, of course, seeks on all subjects a utilitarian analysis
and mode of defence, but what actually carries most of the weight in his case for
equal rights for women are factors other than utility in the requisite sense. That is
first of all because Mill reserves his utilitarian arguments for the last chapter and
spends the several earlier chapters trying to show, and doing so successfully, that
the existing system of inequality and the assumptions on which it relies are simply
inconsistent with norms and practices already accepted in the context of mid-19thcentury 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 men
have their source in practices imposed by force, and that might makes right had
long ago ceased to be an acceptable justification in ethics and politics (ibid., 67);
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 are
allegedly factual but without any historical or experimental support (ibid., 21), this
at a time when arguments from authority and dogma are in other regards rejected
or treated with severe skepticism. Mills simple strategy of appealing in these ways
to accepted norms and practices in order to challenge the current system of
inequality is sustained and effective, but Mill does think it remains necessary to
show why in positive terms a system of equality is preferable to the current system
of inequality. However, when he turns to accomplishing this in his final chapter, by
means of what are intended to be evident favorable consequences (for women,
men, and society as a whole), the results hypothesized are not mere facts devoid
of 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 case
of men and that would carry over also to women, and then enhance mens lives
as their partners. It is perhaps not surprising that what are alleged to be valuefree empirical results are actually desirable goods and goals only from a certain
point of viewfor utilitarianism is commonly vulnerable to the challenge that it
claims 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 various
Reform Acts of 1832, 1867, and 18841885. In a nutshell, the sequence is at first that
of extending the vote from owners of substantial property to owners of only
modest 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 not
as such matter. Property ownership as a criterion for a share of political authority
is itself a transformation of earlier notions of birthright, but it is only a partial
transformation because property is typically inherited. Yet, once made the criterion
for a say in the system of ruling, what property ultimately signifies is not simply
ownership but having interests that are affected. That then carries over in time to
industrial and agricultural workers who lack property but as members of society
nonetheless are significantly affected by who rules and for what purposes. This
sequential extension of the franchise is itself restricted to the category of men, and
not even yet universally to them. Once universally applied to men, it had in time
also to be applied to women. Although this is much after the Reform Acts, it is at
a time when in other regards women count by virtue of having various rights and
so are already thus sharing some status with men. Clearly, here and throughout I
do not intend to present a seamless process, but only indications of a series of
stages. And as previously acknowledged, it is both understandable but regrettable
that progress comes all too partially and slowly.
The landmark US Supreme Court case that deemed racial segregation unconstitutional, Brown v. Board of Education,1 offers another distinctive illustration of the

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 schools


and 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 practice
equal. This fact should (ideally) have been obvious from the outset, and was likely
expected and long tolerated only because racial attitudes in the country continued
to favor discrimination. But by means of Plessys partial notion of equality being on
record, however begrudgingly accepted at the time, it became the basis for its own
transformation.
As already noted, among the recent developments extending prior notions of
political equality are rights for sexual orientation. Also currently relevant are
special rights and accommodations for religious or cultural minorities. An example
is granting flexibility in employment to allow celebrating holidays that do not
coincide with the legally prescribed ones that have their source in the religion or
culture of the majority. This development focuses the now familiar point that
political equality in some ways can require emphasizing not sameness but differences 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 treatment
of various sorts, here meaning actually unequal treatment, can often be justified, as
with requiring special tests for elderly drivers or according certain rights to citizens
that 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 definitely so for the analogical orientation. It is always a matter of scrutinizing
carefully 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 evolution
towards greater equality, how should we characterize the process: As one of
increasing knowledge of facts, often by jettisoning false beliefs about them, or one
of coming to new moral understandings? The sequence is each in ways and in
part, and ultimately both in ways that interweave. New facts enter to the extent
it comes to be known, for example, that women can manage corporations or
countries 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 by
simply dwelling in a situation or interacting with others over a period of time.
For example, deliberate reflection, or a slow simmering sense, about the intolerability of keeping people as chattel, because of likenesses between oneself and
them, was a way of coming to see the evil of slavery for some masters and for
some others who initially accepted it but then witnessed it.
With these remarks, I willingly align the view about equality as an evolving
moral notion with some, but not other, aspects of Dworkins theory about moral
objectivity. Dworkin (2011, 1304) maintains that Hume was right that moral
judgments are not reducible to factual ones, because what is entailed is an
interpretation of facts in accord with values. I take this to be evident in and

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 be
weighed in which ways for what purpose. I further take it, with Dworkin, that
while interpretive, the manner and outcome of such reasoning is not simply
subjective; there are true and false judgments in these matters, or at least interpretations which can be definitively superior to others, as in examples here
throughout. Among elements in Dworkin (ibid., 120) that I dissent from is his
hedgehogs faith that all true values form an interlocking network. Nothing in
my argument implies or supports this; on the contrary, much about analogical
reasoning and its often piecemeal mode indicates that our conclusions even when
somewhat general will be less than fully so, and indeed at times in tension or even
conflict. 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 grandiose
mode of moral reasoning of reflective equilibrium (RE), the method originating
with Rawls and now familiar in much moral theorizing; in fact, invoked in some
measure by Dworkin (2011, 263). It calls for persons to move back and forth
between their particular judgments in moral matters and the general principles
they accept or arrive at, mutually adjusting each level as need be until the various
elements are coherently balanced. There is space in this article only to note briefly
how the analogical orientation being advocated differs from this and can claim
superiority to it. While analogical reasoning may seem to some not adequately
systematic, 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 to
RE. If it is a method, it is one without any clear sense of how to carry out the
adjustments and for what counts as success in doing so. Troubling also and again
is 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, especially in such matters, is that RE gives as much priority to general principles and
even abstract theories as to solid judgments about particular matters, whereas
analogical 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 and
ones 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 abstraction and coherence. Here I offer a thought in accord with the spirit of much of my
analysis but one that cannot be pursued in detail. As with political equality, so with
other important moral-political notions, there are analogical sequences to be
elaborated which would at times intersect and even overlap, but also at times
diverge 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 to
which persons should be entitled. However, I suggest, the lines for the various
moral notions are not equivalent or reducible to each other. We should expect a
sequence 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 mistaken 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 political
equality.
More concretely, the congruence between sequences of evolving principles as
found 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 deliberate
intent throughout is to highlight a connection between sound normative arguments
or justifications for moral-political principles and the mode of precedent-based and
evolving thinking in law. This is also to say that precedent is not here meant as a
fixed basis for future decisions but instead, in accord with thinking through the
logic of (in)equality, precedent signifies a presumptive but potentially flexible basis
for future judgments (cf. Miguel 1997, 384). The link to legal reasoning brings
normative argument down to earth and gives it a more solid foundation. Another
advantageous pairing or overlap is also implied: of political philosophy being
aligned with political science and social history, so that questions about ideals and
best regimes are explored in conjunction with understanding how concepts and
institutions actually come about in the real world, and tend to be stable or unstable
accordingly.
However, the congruence with legal reasoning that I claim as a point of interest
and 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 law
and should not in normative moral-political theory (thus initially Westen 1982, 1990
and Peters 1997, 2000, with follow-up by OBrian 2010). The essence of the charge
is that references to entitlement to equal treatment really just refer to some way in
which the same rule properly applies to various people, rather than the fact of their
having to be compared and be equal. A seeming test case is when a rule involving
a 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 but
a legally incorrect and unjust result. As for prohibitions on discrimination, these in
their 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 relevant
for some purpose, such as race or gender for normal job competence. As a result,
OBrian (ibid., 26) insists: The conclusion that a person should be treated in
accordance with what the applicable law provides, irrespective of how others have
been treated, seems unassailable, and that this extends to moral and political
philosophy. About legal-moral principles, he adds: Of course they should be
general or universal; this is probably a necessary feature of any moral principle. But
what matters is how people are treated, what they have, and how well their lives
go, not how all or any of these things compare to anyone else. Such is this special
challenge to my analysis.
Some aspects of this critique or of what underlies it I take to be correct and in
line with the analysis I am endorsing, but not the main point about the irrelevance
or inappropriateness of references to equality and comparative treatment. Granted,
as argued throughout, equality does not designate a single general notion, nor is
there 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 a
non-arbitrary mannerunless unequal treatment of people, at least at the hands of
government and law, is to be rejected in the absence of a specific justification for
the inequality? Generality of rules or laws does not of course amount as such to
moral or political equality; discriminatory laws can be general, applying different
concepts or modes of treatment to different groups. But this is what in time focuses
the 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 to
similarly situated others? Even a mistaken application of a law resulting in a benefit
to 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 deem
race, 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 do
not need an overall notion of whether or how people are equal to target this or that
differential treatment as unequal and unacceptable; still, proper or relevant application of rules is tied to (evolving) presumptions of equality. The result is the failure
of attempts to sidestep equality, or the assessment of unjustifiable inequalities along
with their implications.
Can we not at times, though, validly conclude that someone has been subjected
to improper, unjustifiable treatment simply by seeing that they have been made to
suffer or are destitute? Certainly, the effect of brutality or callousness may be plain
and intolerable in a given instance without comparison, and grounds for legalpolitical redress. But what is presumably signaled by such a situation is that
whatever 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 or
even all governmental ones; on occasion, officials including judges should go to
exceptional 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 concluding. First is a concern that may have come to mind to some readers at various
points so far, and that is a common one about arguments based on analogy:
Namely, what are the criteria for relevant versus irrelevant similarities between
people? Put another way, can the indirect or negative defence of equality avoid
assuming some essentially defining characteristics of all human beings or of
persons who are covered by political equality? How can we distinguish legitimate
as 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 point
along the way to establishing the current democratic conception of political
equality. 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 not


normally relevant criteria for denying persons the same rightsthe familiar irrelevant grounds being race, gender, and so forth; whereas, age, basic mental
competence, or possibly proven criminal guilt can in certain ways be relevant for
refusing certain rights. But why exactly are general criteria for relevant similarities
or essential versus inessential differences not needed when rejecting claims or
practices of inequality? They are not needed because rebutting an obvious negative
does not, here or elsewhere, presume a known positive. More particularly, when
confronted with, for example, enslavement of blacks by whites, or voting rights for
the latter and not the former, all we need to show is that white persons do not as
a group or on average have any specific qualities that entitle their mastery or
political 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 other
white persons. Clearly, at times and places that has been accepted. But the question
as above posed presumes that differences within a racial group are not acceptable
as a basis for unequal rights. And one needs to take on questions as posed. So what
about 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 that
practice may not be logically inconsistent in its time and place, it is nonetheless
vulnerable to something else: The practical prospect that the victors of today
become the captives of tomorrow, a nicely analogical argument with a specific and
evident 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 are
inherently unable to live as free persons, for he could see that some previously
freemen were slaves only by conquest. The fact that Aristotle did not therefore
reject slavery based on these counterexamples merely shows again that seeing
through to implications does not come instantly or easily; typically, only when
incoherence is lived with over time does instability in the prevailing views emerge.
In further rebuttal of the insistence that we require general criteria of relevance
or a theory of morally essential characteristics of human beings, it must be stressed
that specific inequalities can be challenged by particulars of a situation being duly
set out, and in this way also specific analogical extensions are fully manageable on
their own. Various facts about the capacities or characteristics of particular persons
or groups are the keys to these assessments, not anything necessarily clearly
generalizable or truly theoretical. To cite a simple non-human example, it is evident
that ordinary cars and trucks are similar for certain purposes without a general
definition of either category of thing, just as it is plain that they are in ways
different for other purposes; it all depends on what is of concern at the moment.
Particulars and their connections are typically more apparent than theories they
may or may not instantiate, especially when building one right on another or
applying something from one person or group to another. For human beings, it is
evident 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 without
some 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 typically
challenge inequalities, rather than imagine equality de novo, because inequalities in
concept and practice were the human beginnings and the historical ways, and as
such they have posed the issues for us. It is not even true to say that a presumption
of equality or an opposition in general to inequality has been the guiding theme
from 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 not
accept that there is one grand project whereby political equality blends into
economic equality? There are of course various important respects in which the
demand for political equality clearly has economic implications and others where
very arguably it does or should. As previously noted, equal rights of citizenship
clearly entail measures against discrimination and thereby equal or fair opportunities (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 individuals; 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 a
case notably involving a dubious analogy between corporations being free to spend
money 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 analyzed
and 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 evaluative
implications, rather than grand principles with deductions from them, must do the
work here.
This recurring motif has even more force if what is at issue is the overarching
question: Why not accept that analogical reasoning leads beyond equality of
opportunity to actual equality of result? Perhaps this should be accepted although
I think not, and if it should be there is surely a large gap to be bridged. The reasons
are familiar and accepted by many theorists, although disputed by others. Elements
of clear or strong disanalogy, of relevant differences among persons, become more
prominent than elements of analogy when we consider deservedness for equal
outcomes, given the differential efforts people may freely exert and the choices they
make. 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 implied
is ultimately the disintegration of distinct selves and lives. In any case, in accord
with the particularist and contextualist approach of this article, it would be a
misstep to suppose that analogical extensions once allowed or endorsed imply a
line with no limit.
Department of Philosophy
University of Ottawa
Ottawa, Canada K1N 6N5
E-mail: haron@uottawa.ca

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

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