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equality. So the property we are looking for not only has to equalize its bearers; it
has to sparkle so much with their individuality that it is capable of sustaining not
just equality but equal respect for the actual persons… whom we are calling one
another’s equals. (p. 156)
Another term for basic equality is human worth. Worth differs from merit: to
put it simply, worth ‘is what is left over when you take merit away ’ (p. 2).
Waldron spends many pages here reviewing properties that can satisfy the
worth-realizing role. He also describes, relatively early on, what consequences
might ensue if we abandon the search for such properties. In this connection,
he invokes the monstrous views of Hastings Rashdall, who blithely asserted as
recently as 1907 in his The Theory of Good and Evil that ‘sooner or later, the
lower Well-being—it may be the very existence—of countless Chinamen or
negroes must be sacrificed that a higher life may be possible for a much
smaller number of white men’ (p. 22). Any commitment to basic equality
will involve, at the very least, the denial of these ‘Rashdall-discontinuities’
among human beings (p. 31); friends of basic equality will thus affirm that
there is no ‘major difference of kind’ among humans (p. 29). In tandem with
this commitment to ‘continuous equality ’ (p. 34), Waldron pursues the
search for properties that can explain our dignity, or ‘a high and distinctive
status’ (p. 3, emphasis in original) which distinguishes us from non-human
animals.
Is basic equality descriptive or prescriptive? The answer, it seems, is both.
Basic equality is meant to have prescriptive force, but it applies in virtue of
the descriptive properties possessed by everyone who falls under its scope.
Both dimensions will receive attention in this discussion.
Now, we are all human, and that is itself a descriptive property, but
Waldron thinks that any appeal solely to human DNA, or to the mere fact
that we are members of the species Homo sapiens, would expose us to the
accusation of being ‘blatant speciesists or pure human chauvinists’ (p. 87; cf.
pp. 229-230). We must somehow earn our right to be considered one an-
other’s moral equals by pointing to thicker, more specific descriptive proper-
ties shared by all of us. Nor are we entitled simply to decide that we are going
to treat each other as basic equals, disregarding or overlooking our various
descriptive differences, even if that decision fell short of proclaiming a special
objective status for human beings as such. That conventionalist or ‘decisio-
nist’ route, embraced by writers such as Margaret McDonald and (in some
moods) Hannah Arendt, is unsatisfying, Waldron tells us, because it is un-
grounded—‘as though we could just decide to treat trees, tigers, teapots and
teenagers as one another’s equals for political purposes’ (p. 59, emphasis in
original).
Waldron thinks that the connections from the descriptive realm to the
prescriptive realm will fall short of necessary connection, or entailment.
Similarly, the doctrine of supervenience which is often invoked to explain
the connection between descriptive properties and normative properties does
3. A Rawlsian lesson
To defeat the scalar problem, Waldron follows the broad example of John
Rawls in A Theory of Justice and invests in range properties (Rawls 1971,
pp. 501-508). Range properties eliminate scalar variation among properties
by describing them in a certain way. Take a property, N, which strikes us as a
compelling candidate for the conferral of moral worth, but which can be
realized to different degrees. Assume also that Daisy realizes N to a higher
degree than Jay. By assumption, the possession of N by Daisy and Jay confers
moral worth on both of them. But since Daisy instantiates N-ness to a higher
degree than Jay, we must now confront the question of whether Daisy enjoys
a higher moral worth than Jay.
Here is a way round the problem. Both Daisy and Jay satisfy the second-
order range property of having N to some or other degree; both of them have
the property of instantiating N somewhere within the possible range of N-
values. Range properties are therefore second-order, all-or-nothing properties
which testify to the positive presence of first-order, scalar properties, and
which are insensitive to differences among those first-order properties.
Both Daisy and Jay have the range property of instantiating N to some
degree, and they have this property equally. Rawls takes the various proper-
ties constituting the elements of moral personality—the capacity to form a
comprehensive conception of the good, and a sense of justice—as cases in
point. So, although Daisy and Jay may instantiate to different degrees these
elements of moral personality, the very fact that they instantiate them to any
degree counts as equal satisfaction of the range property.
Though Waldron’s commitment to range properties is shared with Rawls,
he adopts a broader view of the relevant first-order properties. He casts a wide
net here, drawing on figures as various as Kant, Aristotle, Locke, Mill, and
Williams, and also on certain styles of thinking in religious writings (Lectures
3, 5). What his account eventually settles for is a sensibly broad, open-ended
collection of capabilities and narrative possibilities, focusing on the conditions
required for living a successful human life over a whole lifetime (p. 234).
To activate this broad collection of capabilities and properties in the ser-
vice of basic equality, however, Waldron needs to have confidence in the
resilience of range properties. Now in some contexts, there is nothing fishy
about range properties. Waldron’s own example concerns jurisdictional au-
thority: though Stirling is nearer to the centre of Scotland than Gretna Green,
both towns are equally in Scotland for jurisdictional purposes (p. 119). For
these purposes, to be in Scotland at all means to be equally in Scotland. A
town is either in Scotland or it is not in Scotland; this is an all-or-nothing
property. This is perfectly convincing, but no one really thought that juris-
dictional authority was exposed to the scalar problem in the first place. The
issue is whether range properties can solve the scalar problem for morality.
It is easy to suspect that in the moral domain there is something gimmicky
about focusing on the second-order range property, rather than on the instan-
tiation of the first-order scalar property which also constitutes satisfaction of the
range property. An individual satisfies the second-order range property because
she satisfies the first-order scalar property. So won’t it be more honest to focus
on her first-order properties than on the fact that she also instantiates that
second-order property? If it is the realization of a certain first-order property
Fair enough. But if the surface-level principles of justice need not themselves
be egalitarian, and basic equality is still supposed to be pulling its weight
behind the scenes, questions surely arise about what normative levers basic
equality is actually controlling. We are told that the function of basic equality
is to ensure that these surface-level principles address everyone, or that every-
one is classified as an equal subject of justice. That will not be consoling news
if the way in which everyone gets addressed is still consistent with surface-
level inegalitarian treatment. The requirement that justice addresses us all on
equal terms seems tantamount to the unremarkable truth that theories of
justice will address us all in different ways, depending on what they feel
inclined to say. Inclusion within the scope of justice does not prescribe any
particular provision within the theory of justice.
Furthermore, whether surface-level principles of justice should themselves
have an egalitarian character seems decidable within the scope of first-order
theorizing about justice, not by any distinctive distributive contribution
made by basic equality. Waldron tells us that basic equality ‘does its prescrip-
tive work at a second level, disciplining the way we approach costs and
benefits’ (p. 49). But it is hard to see what this disciplinary role really
amounts to. The resulting worry is that basic equality is a silent partner in
everything that really matters to moral and political theorizing. It nods every-
thing through—apart perhaps from theories which are committed to
Rashdall-discontinuities—but unwisely takes its nodding to be confirmation
that nothing could happen without it. A rubber stamp is not an active part of
the first-order normative mechanism. Even the rebuttal of Rashdall-disconti-
nuities need not owe all that much to the prescriptive work carried out by
basic equality: what we may have to do above all else on this score is to avoid
falsifications of what human beings are like, and to refuse to accept the
various distortions of racist outlooks. (See, again, Williams 2005, pp. 99-100.)
Waldron responds to such redundancy worries by enlarging the prescrip-
tive role for basic equality. He suggests that the acknowledgement of human
worth will inject immediate prescriptions into our normative theorizing. It is
helpful to approach moral situations, not just in ways which direct our im-
mediate efforts, but in a way which keeps basic equality, or the broader
human focus, in mind. Taking the New Testament story of the Good
Samaritan as an illustration, we are told that the Samaritan should not just
be on bleeding alert and suffering alert in his dealings with the stranger, but on
human alert as well (p. 80). Basic equality may also generate a hearing for
rights and a respect for autonomy (pp. 141-145). These are worthy aims. But
will utilitarians roll over for these arrangements? Since the rapprochement
between utilitarianism and basic equality has already been emphasized as a
sign of basic equality ’s significant presence in these normative theories, it is
not clear why utilitarians are now supposed to adjust their commitments to
accommodate it, because it is not clear what the normative pressure really
amounts to. Utilitarians will say—and do say—that they offer a theory of
moral equality. Perhaps it is the wrong theory, but the basic equality project
does not offer any sharp prescriptions for its improvement. Basic equality
seems too insulated from first-order normative theorizing to insist on much
in the way of substantial corrections.
Waldron also thinks that basic equality can discipline certain impulses, or
temptations. This is of particular interest, for it is here we see how the theory
of scintillation is supposed to work. One of the aims of the theory of scin-
tillation, after all, is to assure us that the range properties picked out to serve
in the role of basic equality are not vulnerable to the scalar problem. Now the
scintillation approach to the scalar problem is concessive: Waldron does not
want the lower-order scalar property to be eliminated from the scene, but to
enjoy a complementary relationship with the higher-order range property.
Some types of moral labour require that we ascend to the range level, while
on other occasions we need the specificity of the first-order scalar level. The
two sets of properties can enjoy a fruitful collaboration, rather than a rela-
tionship of tense rivalry. Neither level needs to be elbowed aside. The mere
fact that we need to shuttle between the lower-order scalar level and the
higher-order range level in order to achieve the right explanatory balance
also places basic equality in a flattering light. It implies that there is explana-
tory work to do that can only be done by invoking the idea of basic equality.
Waldron’s main stock of examples for scintillation is centred on what we
should think about, and do about, very bad people (pp. 145-163). Take Hitler:
a brutal genocidal criminal. But Hitler was not merely a brutal genocidal
criminal, Waldron tells us; he was also a human being, with worth (p. 161).
The same goes for the other members of the rogues’ gallery of modern dic-
tators, such as Pol Pot and Josef Stalin, or for terrorists: they may be brutal
criminals who warrant punishment or violent resistance, but they too are
human beings, with worth (pp. 149, 151, 154). Waldron’s point is that the
worth of every individual places limits on how we can deal with them. They
cannot be torn apart, or treated as entirely morally inconsequential. Human
worth determines a limit to the scale of punishment we can inflict on each
other, while individuals’ actual moral records determines what we can do to
them within those limits (p. 171). Thus there is room for the happy cooper-
ation of properties at both the scalar level and the range level.
The earlier worry resurfaces here. This part of Waldron’s discussion un-
folds within a familiar area of non-ideal normative ethics: the area demar-
cated by the concepts of liability, punishment, retaliation, defence, and so on.
The theorists who study these areas have a working understanding of the
limits of punishment, and of the roles of proportionality and necessity in
limiting the possibilities of defensive attack or retaliation. Why does basic
equality get to play any particular role? The relevant considerations all seem
to be contained within the familiar first-order theorizing.
Another problem Waldron faces is that the application of the theory of
scintillation to this corner of non-ideal theory does not give him easy answers
reference to the ‘material, not modal’ basis of disability is also meant to curb
our lamentation for individuals that might have been transformed into per-
sons, but were not. These quixotic individuals are familiar from some of the
literature on potentiality and moral status: think of Michael Tooley ’s kitten
which could be transformed into a kitten-person if only it was injected with
personhood serum (Tooley 1972, pp. 60-62; a critical discussion of Tooley ’s
views is offered in Lang 2012a).
The references to organic infrastructure and an evolutionary backstory are
supposed to put some distance between the actual condition of non-human
individuals that are transformed into persons in some more remote possible
world, and human beings who succumb to profound disability in the actual
world. Yet the outer limits of concern here are still governed by human DNA.
Even if the basis for moral considerability is material, not modal, the material
is human, and that is why this material is ultimately morally significant. The
boundary of basic equality will have been upheld by a criterion which has
already been tarred with the brush of chauvinism, or arbitrary or invidious
discrimination.
So is Waldron committed to thinking that there is something objectively
special about human DNA? Or at least that there may be something special
about human beings when the cultural and evolutionary story contained
within human DNA is unpacked and recounted in full? That seems to me
to be a less painful admission than Waldron’s official position permits. The
humanity of the profoundly disabled is deployed simply in order to fix the
outer limit of equal moral fellowship. As Waldron persuasively argues, we will
have other, more substantive, things to say about every individual within this
boundary, including those individuals we find pressed up against the bound-
ary itself. We will not be paying attention to their DNA; we will not be forced
to characterize them, blankly or coldly, merely as members of the species
Homo sapiens, or as token instantiations of human DNA, or as failed persons.
We will, rather, be paying attention to the experiential benefits they stand to
gain in their present condition, while keeping in mind the possibilities and
capabilities they might have had, but turned out not to have. We will be
treating them as individuals, with dignity, but simply in unfortunate circum-
stances or down on their luck. We will be mindful of their vulnerability, or
misfortune, or their significant kinship or association with members of the
human moral community whose path to full moral membership was more
straightforward. All this may reflect a form of speciesism, but perhaps the
sensible conclusion to draw is that speciesism does not deserve its reputation
as a moral bête noire. (See Williams 2006 and Lang 2012b for more on this.) A
commitment to it need not invite any comparison with racism. There is, or
may be, a difference between the status of all the individuals encompassed
by a moral community and the status of discriminations we make among
the individuals within this community. After all, racism and sexism are
6. Conclusion
Waldron concedes, near the end of this book, that ‘it is all very complicated’
(p. 254, emphasis in original). And so it is. Waldron successfully brings to the
surface many complications and subtleties, and his dealings with them are
always sensible and thoughtful. But he did not convince me that his topic is a
strongly unified one.
The vast majority of us will insist that we are each other’s moral equals,
and we would surely distrust anyone who betrayed a reluctance to accept this
slogan. But that may be partly due to the fact that there is no very sharp cost
involved in signing up to it. Doing so may function as little more than the
expression of a general willingness to tackle malign forms of discrimination as
and where we find them.*
References
Arneson, Richard 1999, ‘What, if Anything, Renders All Human
Beings Morally Equal?’, in Dale Jamieson (ed.), Singer and His
Critics (Oxford: Blackwell).
Carter, Ian 2009, ‘Respect and the Basis of Equality ’, in Ethics 121.
Lang, Gerald 2012a, ‘Is There Potential in Potentiality?’, in
Philosophical Papers 41.
—— 2012b, ‘Discrimination, Partial Concern, and Arbitrariness’, in
Heuer Ulrike and Gerald Lang (eds), Luck, Value, and
Commitment: Themes from the Ethics of Bernard Williams
(Oxford: Oxford University Press).
Nussbaum, Martha 2007, Frontiers of Justice: Disability, Nationality,
Species Membership (Oxford: Harvard University Press).
Rawls, John 1971, A Theory of Justice (Oxford: Oxford University
Press).
* I would like to thank Pei-Lung Cheng and the editors for helpful comments on this
piece.