A Right to Equality?

Re-Examining the Case for a Right to Equality

Author(s): H. J. McCloskey
Source: Canadian Journal of Philosophy , Dec., 1976, Vol. 6, No. 4 (Dec., 1976), pp. 625-
642
Published by: Cambridge University Press

Stable URL: https://www.jstor.org/stable/40230652

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CANADIAN JOURNAL OF PHILOSOPHY
Volume VI, Number 4, December 1976

A Right To Equality?
Re-Examining the
Case for a Right to Equality

H. J. McCLOSKEY, LaTrobe University

In the area of politics one is not surprised to encounter bias,

prejudice, rationalization, special pleading; yet rarely does one
encounter these phenomena so often, so blatantly, as in the area
relating to equality. Indeed, even among those whose job it is to be
impartial, rational, informed, namely, philosophers, one finds less
objectivity, less evidence of a genuine search for the truth, and a
greater concern to press preconceived views than elsewhere in their
work. Among Western philosophers, there is a very widespread
commitment to equality as a political value. So deep has been and is
the commitment in theory at least, to this value, that concern for
knowledge and truth have been subordinated to it by many - as in the
refusal to allow or determination to discourage research into racial
differences, for fear that the results of such research may lead to a
lesser political commitment to equality. Yet, for all this professed
concern for equality, a genuine lover of equality could be excused for
being perplexed by the attitudes of those who profess such a concern
for equality. The political order the latter support allows considerable
economic inequalities which lead to inequalities in respect of access to
and enjoyment of the goods of the world, to political, legal, and other
inequalities. Western society respects intelligence and accords it
rights, as in the readily accessible educational facilities made available
with government assistance. Yet intelligence, and educated in-
telligence, lead to inequalities - inequalities of wealth, influence,
power, access to goods, enjoyment of legal rights, and the like. These
same self-characterised egalitarians also allow that special treatment is
needed for the aged, the insane, the defective, the child, that the same

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HJ. McCloskey

political and legal rights cannot be accorded to all as are to be

accorded to the mature, rational, fully endowed adult. What then, is
this equality about which there has been so much talk, such great
concern, and what is its basis?
The demand for equality has been a developing one. In the British
liberal tradition it was initially a demand for legal and political equality,
for religious equality, equality of the sexes in terms of political and
legal rights, and for racial equality, with economic equality featuring
relatively little in egalitarian demands. More recently, the demand for
equality has taken the forms of demands for 'adequate opportunity to
be self-developing', for equality in sharing the goods of the world, to
equal respect for their well-being, and as persons. An egalitarian wing
of liberal thought is well illustrated by A. M. Honore's article "Social
Justice". Here Honor^ wrote:

... all men considered merely as men and apart from their conduct or choice have a
claim to an equal share in all those things, here called advantages, which are
generally desired and are in fact conducive to their well-being. By this I mean such
things as life, health, food, shelter, clothing, places to move in, opportunities for
acquiring knowledge and skill, for sharing in the process of making decisions, for
recreation, travel, etc. (Essays in Legal Philosophy, ed. Roberts. Summers, pp. 62-3.)

Honor£ goes on to qualify this egalitarianism by observing:

... there is a limited set of factors which can justify departure from the principle
embodied in the first proposition.... there are a limited number of principles of
discrimination and that the claim of men to an equal share in all advantages can
fairly be modified, restricted or limited by only two main factors. They are, the
choice of the claimant or the citizen on the one hand and his conduct on the other;
there are also certain principles of individual justice dealt with under the rubrics of
'the justice of transactions' and of 'special relations', (p. 63. Italics are those of
Honore.)

A remarkable feature of the demand for equality is that it has rarely

been such as to be accepted literally. The early demands for legal and
political equality were not demands for that. Women and children
were not fully encompassed in the realization of the demands. The
U.S. Constitution was initially compatible with legal recognition of
slavery and political inequality therefore for men, women and
children. Religious equality in England was seen to be compatible with
an Established Church. And so on. The demand for equality of wealth
has never been a significant one in Western liberal thought, even
though wealth affects so much else. It gives power to some to control
the lives of others, directly through their work or lack of it, and less
directly through political influence and manipulation. Socialism in
Western democracies has generally gone with an acceptance of

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 A Right to Equality?

economic inequality, being opposed only to what have been regarded

as gross economic inequalities and gross inequalities of power and
opportunities. Yet the inequalities which have been accepted are such
as to allow considerable other inequalities, inequalities in respect of
power, influence, enjoyment of goods, including the goods of
freedom, opportunity to be self-developing, respect and status.
It may help the understanding of the argument of this paper if I
indicate quite unequivocally that I am no lover of equality, that it is
certain kinds of inequalities that I oppose and deplore. To love
equality, as I shall try to bring out, impresses me as being as irrational as
to love such other relations as to the left of, higher than, and the like; it
is like loving number, order, symmetry. There is no intrinsic value in
the relation, equality. It is where it holds or does not hold, that matters.
Equality can be a grave evil. This is clear if we consider equal treatment
for the sick and healthy, the handicapped and well-formed. Our
problem is that of determining what kinds of equalities and
inequalities are morally desirable. The dogma of equality obscures the
real problem.
Equality has been defended as a value in its own right, as an
ultimate value in the way that justice, happiness, self-perfection,
rationality, knowledge have been seen to be ultimate values. It has
more commonly been claimed to be dictated by justice. Today, there
is evidence of an awareness that it is dictated by respect for persons.
Bentham and the Mills, and many others, have argued for equality
from utility. There is also a curious type of utilitarian argument to be
found in certain contemporary socialist writings according to which,
equality, especially economic equality, is seen to be dictated by
concern for happiness and absence of suffering, the suffering caused
by envy. Finally, there are the important arguments from liberty, and
equality as a necessary condition for liberty and its goods. These too
can but do not have to be interpreted as utilitarian arguments. It is the
case for equality based on such considerations that I wish to re-
examine in this paper.

Equality as an Ultimate, Basic Value

As I have argued elsewhere, equality is a name of a relation, the

relation of sameness, identity.1 When we speak of two things as being
equal or being made equal, we are asserting that there exists some sort

1 See "Egalitarianism, Equality and Justice", Australasian Journal of Philosophy,

XLIV, 1966.

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HJ. McCloskey

of identity or sameness such that if challenged we must be able to

point to the identity to justify our claim. This is evident in respect of
claims about equality in respect of things such as weight, size, height,
length; it is equally true in respect of more abstract things such as
ability, worth, beauty, goodness. To be equal in ability is in a sense to
have ability to the same degree; to be of equal worth, is to have in a
sense identical worth. To be equally beautiful, two paintings must
have the same degree of beauty; to be equally good, two men must
have the same degree of goodness. Such equalities are compatible
with differences, with different kinds of abilities, worth, beauty,
goodness, but unless there is some basic identity, the claim that there
is an equality is unjustified. Similarly in respect of treatment of persons
or things as equals; it is to treat them as being identical in some
respect.
This suggests, and rightly so, that to treat equality as a political
value, is to seek to bring about sameness or identity. The more we are
committed to equality, the more sameness, identity, we should seek to
bring about. This means that we should seek to eliminate differences,
all those differences that can be eliminated, since every difference is a
lack of sameness, a lack of identity, and hence, a lack of equality. Thus,
we should seek to eliminate legal differences, political differences,
differences of wealth, of respect, of prestige, of access to and
enjoyment of goods, and the like. This sounds an interesting, possibly
worthy, although controversial programme on which to embark.
However, if we follow it through, it becomes clear that it is an
irrational, incoherent, bizarre, lunatic programme, and one which
admits of no satisfactory defence.
Inequalities are of two kinds, those resulting from human conduct,
and those due to nature, relating to our characteristics, capacities,
potentialities. Many egalitarians have been concerned only with
inequalities deliberately brought about by human action. Some have
been concerned about all inequalities which result from human
action, whether or not the inequalities have been intended. Fewer
still, but seemingly an increasing number, are concerned about
natural inequalities, and the elimination of such. To consider what the
case for and what is involved in the elimination of the two types of
inequality, the humanly caused, and the natural inequality.
Inequalities due to human activity, whether directly intended or
not, include those of power, access to and enjoyment of goods such as
knowledge, education, wealth, health, and the like, and the goods
they bring in their wake, as well as inequalities in respect of treatment,
prestige, respect, happiness and freedom. To consider what would be
involved in eliminating all such inequalities, or, if that is impossible,
minimising such inequalities, and maximising equalities: To seek to
realize complete equality of power we should have to make the child,

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 A Right to Equality?

the weak and the defective, the stupid and the insane, equal with the
normal person, and both with the gifted person. Yet this would itself
involve inequality of power between those made equal and those
making them equal in power. Further, it would involve gross
inequality of treatment, unjust inequality of treatment. To bring about
equality of access to the various goods would also involve vast
interference with individuals in respect of natural traits and abilities, as
these bear on the accessibility of goods to them. Hence it would
involve inequality of treatment and of power, as well as other
inequalities. If the equality sought is equality of actual enjoyment of
goods, even more interference will be needed, as the lazy, the stupid,
the imprudent and improvident will need special aid which the
industrious, intelligent, prudent person will not need. Much the same
is true in respect of achieving and maintaining equality of wealth.
Equality of health is impossible to achieve as long as there are diseases,
more especially incurable diseases. Equality here would dictate
making all equally unhealthy, killing all perhaps to bring about the
ultimate equality. Equality of treatment on the other hand will involve
inequalities of power, access to and enjoyment of goods, wealth,
health, respect, prestige, and hence happiness. Equality of treatment
can be and sometimes is interpreted not to mean that but to mean
treating people differently, similars similarly, those who differ in
relevant respects differently in the relevant ways. This is less obviously
a demand for equality but whether or not it is such, it too involves
innumerable inequalities. The demand for equality of conditions if
taken seriously would involve tremendous interference by the state.
Similarly with equality in respect of education - in addition it would
mean restricting the education of most to the level attainable by the
imbecile and lunatic. Equality of opportunity and equality of adequate
opportunity as they are commonly explained would equally involve
vast interferences with consequential inequalities of many kinds. Very
many factors bear on our opportunity to attain and enjoy goods. These
include our social environment, including our family background,
whether we have or had affectionate, interested, concerned,
intelligent parents, or whether we had criminal, drunken, stupid
parents, or no parents at all to rear us. Schools differ in their capacity to
equip us for life, as do teachers. Many other social factors are also
relevant, such that they too will have to be equalled up or down, down
if that is the only way of gaining equality, if equality is really our goal. I
suggest that in most, and probably in all these areas, absolute equality
is an unattainable goal. It would certainly appear to be an undesirable
one.

However, before considering the latter question, of the d

of such goals, I wish to consider whether seeking such
really to seek to lessen inequality. I suggest that we cannot

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HJ. McCloskey

the above equalities because they clash with one another in such ways
that we must choose between them. Given that the world and the
human situation is as it is, we must, if we favour equality, opt for only
one or some of the above, equality of access to goods, or enjoyment of
goods, or of opportunity, or of conditions, etc. Even the person who
values equality as an end in itself must opt for many inequalities. He
must choose the kind of equality he favours.
To explain: In terms of equality alone, there would appear to be no
ground for regarding one kind of equality as more important, more
desirable than another; yet it is practically impossible to realize all. The
egalitarian must make a choice yet it cannot be made solely on the
basis of equality. This is because the egalitarian who favours equality as
an end in itself can object to any difference as an inequality that must
be got rid of. The only possible criterion of importance available to
him would seem to be that in terms of consequential inequalities, that
is, differences, that follow on the different inequalities. Here the
problem of measurement is immense, as all equalities involve
humanly caused inequalities of a far reaching kind, and in such a way
as not to be tolerable to an out-and-out lover of equality. Isaiah Berlin,
in "Equality" (Proceedings of the Aristotelian Society, LVI, 1955-6),
noted that egalitarian Russian anarchists objected to the inequality
involved in having a conductor of an orchestra. They were prepared to
forgo good music for the sake of equality. However, a thorough-going
equality would involve no music at all because of the inequality of
roles of the members of the orchestra. It would involve no games, for
they too involve different roles with different rights; hence it would
involve no competitive sports of any kind. Further, since organized
society can function only with different persons having different roles,
organized society would also be impossible. Yet to achieve other
equalities, organized society is essential. How can an egalitarian
rationally quantify the equality calculus given all these facts?
An out-and-out egalitarian would demand that not simply man-
made inequalities be eliminated, but that natural inequalities also be
dealth with. This seems on the face of it a bizarre, lunatic view. Yet a
good many egalitarians today come dangerously close to supporting it
as in suggestions about genetic engineering, attempts to bring the
naturally defective up to the level of the normal, in demanding such
things as a right to plastic surgery for the ugly, and in their dislike of
educational systems which effectively accentuate differences of
capacity. This kind of demand for equality would be a demand that
people be made equal, that is, as alike as possible. Besides being a
science-fiction kind of notion, this view, as an egalitarian one,
encounters grave difficulties, as the realization of it would involve
introducing inequalities in our social relations, at least in respect of
those achieving the equality. To make people equal, it would be

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 A Right to Equality?

necessary to treat people unequally, handicapping the talented and

aiding the less talented. Indeed, if equality of performance were the
goal, it would involve treating people unequally so that all were equal
in performance with that of the least talented member of the human
race, for example, a deaf, dumb, blind, imbecile. Equality of
performance is not the only equality that could be demanded here.
Egalitarians could demand that we work to achieve equality of
capacities - physical and mental - equality of beauty, size, shape,
weight. People object to many natural inequalities, implicitly by way of
envy if not often explicitly. A person who took equality seriously could
demand that equality here be achieved, or failing full achievement,
that it be maximised and inequality minimised.
I suggest therefore, that an out-and-out lover of equality would
demand the elimination or at least minimisation of man-made and
natural inequalities. To achieve this it would seem that a very
powerful, busy state would be needed - how else could equality of
wealth, of opportunity, access to and enjoyment of goods, of
conditions, and the like be achieved? How else could natural
inequalities be eliminated? Yet such a state could not be tolerated by
the egalitarian as it would introduce inequalities of power, roles,
status, prestige, respect, as well as many other inequalities. Thus the
goal of equality is not a coherent, politically meaningful one. It cannot
be an ultimate one like happiness, justice, knowledge as it involves
reference to some other value to determine which equalities are to be
pursued, which forgone.
Further, as I have already observed, far from being a rational ideal;
as rational as that of striving for a just society, or one in which liberty is
maximised, or in which happiness is promoted and suffering reduced,
it is seen to be almost a lunatic contention to suggest that equality as
such is a good, once it is seen what it involves, what the realization or
attempt to realize it would involve. It is true that there is something
unattractive and implausible about any social order geared to real izing
a single good, whatever the good. A state which concerns itself solely
with liberty, or with the general happiness, or with justice, is one
which does not commend itself to most of us. However, there is a big
difference between such states and one geared to equality. In the
cases of the former, we feel that a good is being realized but at the
expense and to the neglect of many other goods. In the case of
equality, which, as we have seen, involves treating unjustly similars
dissimilarly, dissimilars similarly, there is no evident good of any sort of
being realized in the equality itself, that any good such a state would
achieve would be not in terms of equality but in terms of some good
such as justice, liberty, fraternity, happiness. There is evidence enough
that such goods are more likely to be lost than furthered in such an
egalitarian state.

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HJ. McCloskey

The purpose of this section of the paper is twofold. The one is to

expose the untenability of a view, which, although rarely canvassed
explicitly, seems implicit in much egalitarian thinking. The second is to
bring out the absurdity of talk about equality in the abstract. Every
demand for an equality must also be a demand for an inequality even
with the out-and-out egalitarian. More important, to avoid this
irrational form of egalitarianism, every demand for an equality must
also be a demand for an inequality, where both demands are based on
values distinct from equality - for an inequality not to be implied by
the demand for an equality is for the demand to amount to one for
equality for its own sake. It is significant that equality has rarely been
favoured for its own sake. It is particular equalities that have been
demanded and defended, particular inequalities condemned. Talk
about favouring equality is therefore extremely misleading, and it
obscures the problem of justification involved in the demands which
are made in terms of this language. This is importantly true, for the
reason just noted, that rational, arguable demands for equalities are
demands, by implication, for inequalities. Those who demand political
equality, legal equality, religious equality, equality of power, and the
like, usually do not demand that at all. They do not want children,
lunatics, and the like, accorded the same rights as others. It is a certain
kind of equality and inequality that they demand. Further, as I shall
seek to bring out, most seeming demands for equality as an end in
itself, are not demands for equality at all, but for maximum, fair
distribution of various goods. Consider the demand for equality of
happiness or access to happiness. It would be unjust and irrational to
insist literally on this as some people, for example the person born
with a life-long disease which causes excruciating pain can never
enjoy happiness, and insistence on equality would be an insistence on
levelling all down to his level of misery. Similarly with positive liberty,
health, knowledge, enjoyment of the right to life. Even where we can
level upwards, there are limits to what it is fair to do to the many for the
sake of the unfortunate, who is disadvantaged by disease or
malformation - the cost of equality may be too great and one that it is
unfair to make others pay.
The remainder of this paper will be concerned with arguments for
equality which are in fact arguments for selective equalities and
inequalities.

Equality and Justice

Liberal egalitarians, arguing for equality, usually accept the

Aristotelian principle of justice, that equals should be treated equally,

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 A Right to Equality?

and unequals, unequally, in the relevant respects. Thus they come to

see their problem as that of showing that all men are equal in a basic,
relevant respect, for, unless there is some such basic equality, they
believe that there will be no ground for the demand they make for
equality. Thus we find W. Lippmann, and A. D. Lindsay echoing him,
desperately locating the equality in man's humanness. (See A. D.
Lindsay A Modern Democratic State, pp. 253.) We find L. T. Hobhouse
opting alternatively for equality in respect of human nature, capacity
for abysmal suffering, possession of a soul, reason. (See The Elements
of Social Justice, p. 95.) Others see the equality to rest in our having
immortal souls, our being creations of God, and the like. Such
accounts are woefully inadequate, and arise from a misconception of
the problem that confronts the egalitarian liberal. They are also
dangerous, for it is because they have seen the problem in this way that
various contemporary liberals have been concerned about and to
prevent research into racial differences, into differences in respect of
intelligence and other attributes, of members of different races. What
they have failed to realize is that the important rational demands for
equalities are not based on some common basic human trait or traits,
but on relevant similarities, between the individuals concerned.
That such attempts to ground their demands for equality are
unsatisfactory and totally inadequate can very quickly be shown. How
can possession of a common human nature, a common humanness,
given the vagueness of the content of the human nature that is in
common, be a ground for political, legal, sexual, racial, religious
equality, equality of treatment, of respect, and the like? The
characteristics in common, by virtue of this common human nature,
will no more bear the burden of the egalitarian conclusions to be
derived from them, than would the common mammalian nature of
mammals bear the burden of a demand for a similar set of equalities
for all mammals. All mammals, all dogs, etc., etc., are equal in this way.
It does not follow from this that they should be accorded equality or
equalities. The same holds whether we take possession of an immortal
soul, capacity for suffering, (this is shared with animals), rationality,
and the like. I n fact, those who advanced such arguments in support of
their demands for equality did not in fact really seek to defend equality
for all when they got down to concrete issues. They discriminated
against children and the insane in respect of legal and political rights.
Children were restricted in respect of property rights, in the right to
vote, etc. They did not really believe that all should be treated equally,
the imbecile, the mature person, the physically handicapped, the
deaf, dumb, blind, and the well-formed. They did not believe that
those few who are born without a capacity to experience pain, and
hence, whose capacity for suffering differed from that of normal
persons, should be treated differently, except in receiving help to

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HJ. McCloskey

protect themselves from injury due to their inability to feel pain. Many
have believed that inequality of treatment of monsters born to suffer
and to have a life of suffering as a mere organism, and not as a person,
is appropriate. And so on, and so on. Whilst professing equality, these
self-proclaimed egalitarians have also supported inequality. They are
not wrong to call themselves egalitarians, for it is their kind of view that
is thought of as egalitarianism in Western society. In fact, it is a very,
very qualified egalitarianism, and is more a theory about what kinds of
inequalities are unjustified, and which justified.
It would be useful now to consider the grounds underlying the
demands for what have been called demands for legal, political, racial
equality, and for equality of treatment, and equality of access to
and/or enjoyment of goods such as those noted by Horior£ in the
statement quoted above.
Political equality as a dictate of justice: What egalitarians objected
to when they demanded political equality, i.e. a vote for all maleadults,
was inequality based on irrelevant differences. It was the unjust
discrimination of feudal and post-feudal times that was objected to;
the case against that kind of inequality is strong and plainly evident. To
make out a case for political equality of the kind favoured by
egalitarians today, from justice, it is necessary to meet arguments of
the kind advanced by anti-egalitarians such as Plato (who was an
egalitarian in respect of equality of the sexes). Intelligence, a capacity
to understand the issues, training, moral character, as Plato argued,
would seem to be relevant factors in determining competence to rule.
Men differ in respect of these factors. Why then should they be treated
equally? The egalitarian, I suggest, denies that ruling is the matter of
training that Plato suggested that it was. He acknowledges that men
differ in intelligence, but notes that political wisdom does not go with
differences in intelligence. The intelligent and educated vote along
similar lines to those of the less intelligent and less well-educated. He
notes that except in the very general way of distinguishing the young
and immature from the mature, it is impossible fairly to separate the
politically competent from the politically incompetent- where it can
be done, as with the insane and children, he accepts, indeed, insists on
such discrimination. However, basically his argument is from the fact
that all are affected by political decisions, and all who are capable of
intelligently and in an informed way of taking part in the decision-
making process have a right to do so in justice by virtue of their interest
in the result, the relevant factors, the relevant similarities here being
the capacity for intelligent, informed judgment and the interest in the
result. It is relevant that in some societies moral unfitness is taken to be
a ground which justifies overriding these relevant similarities,as when
criminals are denied the vote. Obviously there is an arguable case for
such an inequality. If differences in political competence could

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 A Right to Equality?

accurately be assessed, it would seem that justice would dictate the

according the politically competent several votes, the less competent
one vote, as Mill proposed albeit on the different ground of utility. The
implication of most arguments for equality of races and sexes is that,
also, for such arguments commonly appeal to equality of capacity in
the relevant respects as a ground for equality. The implication of such
arguments is that where there is no such equality of capacity, there is
not a case, ceteris pah bus, for equality. This is acknowledged in
respect of children and the insane.
Legal equality and justice: Much the same points hold in respect of
equality before the law. It was against arbitrary privileges before the
law that legal egalitarians objected. Their ground was that the
discrimination was not based on relevant differences. Today the case
needs to be made more positively. There are not relevant differences
between mature adults which would justify according some, special
legal privileges, whilst there is a basic relevant similarity, namely,
interest in the working of the law. We are all affected by the law.
However, where there are evident, relevant differences, we do allow
legal inequality, but the nature and degree of the inequality is limited
by the nature of the relevant difference. Children do not have the
same legal rights in respect of property ownership and control as do
adults; yet they do have legal rights, and their legal rights change once
they are deemed to be competent to exercise them, namely, on
attaining their majority. The insane lose some property rights on being
declared to be insane, but they do not lose them all. They retain
ownership of property but lose the right to control it. The insane
person is simply the extreme case of a person who lacks the capacity
effectively to exercise various legal rights. Others such as the near-
senile, the foolish, the gullible, and the like, could well do with similar
protection. I suggest that the reason we do not discriminate more
finely than we do, is not because such inequality would be unjust but
because we lack the means of safely discriminating. Grave injustices
would almost certainly occur if the state sought to protect all who
need protection in this way by restricting their legal rights, and much
harm would be done. However, the principle of such discrimination
could not be objected to by the egalitarian for it is in accord with the
grounds on which he demands legal equality. The acceptance of legal
inequality for the Queen by many egalitarians, and the possibility of
developing a case for legal inequality for Presidents and Prime
Ministers - they seem often to have de facto if not dejure special legal
rights - are relevant here.
Racial equality and justice: The argument for racial equality is again
that from the absence of relevant differences. Differences in relevant
attributes occur within individual races rather than between races.
However, it is clear that the case for racial equality is a factual one, and

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HJ. McCloskey

not an absolute one of principle. Consider the following imaginary

example. Suppose an hitherto undiscovered Pacific island were to be
discovered and found to be inhabited by a new, distinctive racial
group, the group being uniformly of an intelligence level well below
that of a moron, being colour blind, and having the trait of taking
pleasure in inflicting suffering on other sentient beings. Suppose that
after 100 years of mixing but not interbreeding with other races and
cultural groups, these features persisted. I suggest then that the only
possible, tenable view would be that justice did not dictate racial
equality for such a race in respect of the races we now know. It would
be unjust to treat such a race equally with other races, because it
differs from other races in respects which are relevant to discrimina-
tion. They would need legal protection because of their stupidity, and
hence would justly be accorded restricted legal, political and other
rights. Because of their colour blindness they would rightly be denied
access to jobs where sound colour vision was essential. They would
rightly be restricted in giving vent to their sadistic impulses, by
confinement, if this were necessary, for the sake of the rights of others.
The relevance of this imaginary example to research on racial
differences is evident. We already know enough about the different
races to know that the important relevant differences occur within
races, that all races have gifted people, colour-blind people, sadistic
people, and the like, that any findings about races will relate to
average levels or phenomena, whilst justice is concerned with
individuals and relevant differences between individuals.
Equality of treatment and justice: Although egalitarians often talk
as if they favour equality of treatment this seems rarely if ever really to
be the case. They favour discrimination on the basis of capacities and
desert, and many, also on the basis of the quality of the potentialities
of individuals. I suggest that it would be unjust to take any other stand.
It might be replied by an egalitarian that what is favoured is equality of
treatment ceteris paribus; that is about as useful, informative a thing to
say as to say that they favour inequality of treatment unless there are
grounds relevant for insisting on equality. To explain:
We do not favour as being dictated by justice, the same treatment
for the blind and the sighted, the spastic and the normal person, the
sick and the healthy. Similarly, justice dictates discrimination on the
basis of desert by way of rewards and punishments. It would be
intolerable if the sadistic murderer were to be treated equally with the
person who has devoted his life effectively to the service of the
community. Where we feel less confident in our judgment is in respect
of the quality of a person's potentialities, the level of well-being or
self-perfection of which a person is capable. Rashdall argued, and I am
inclined to agree with him, that we are obliged in justice to take note
of the quality of a person's self-development, well-being, that it would

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 A Right to Equality?

be unjust to treat the well-being of a moron equally with that of a

creative genius. The principle implicit in the existence of honours and
postgraduate schools in non-utilitarian disciplines in the universities
of Western liberal democracies would seem to be this. We spend as
much on one honours student as we do on 20 or 30 pass students, and
as much on a postgraduate student as on 2 or 3 honours students. It
would seem not to be just to do otherwise. However, there is some
room for doubt whether the underlying principle is the unegalitarian
one of Rashdall or the less unegalitarian one of socialists such as Laski.
Laski argued for the principle of equality of adequate opportunity to
be self-developing, and this would dictate the same discrimination in
the sphere of education, as it is a principle of inequality as well as a
principle of equality.
Those who argue so desperately for equality from the alleged fact
that there is some common feature of men, a common human nature,
a capacity for suffering, a soul, reason, or the like, seem to think that at
the very least this common feature creates a presumption in favour of
equality of treatment. I do not know what 'creating a presumption'
amounts to here. However, if we consider such matters as life and the
right to life, liberty and the right to liberty, education and the right to
education, and so on, there is no presumption in favour of equality. As
I have argued in my paper "The Right to Life" (Mind, LXXXI V, 1975) not
all human beings have a right to life. The monster, the defective with
irreversibly damaged or underdeveloped brain, lack the right to life. It
would be unjust to accord them equal rights with the creative genius
to the use of the kidney machine. Much the same points can be made
in respect of other rights and other goods. What is true, and about all
that is true here, is that equality in sensitivity to pain creates an equal
case, ceteris paribus, against acting towards the being, human or non-
human in a way that will cause pain.
Equality of goods and justice: There are many other egalitarian
claims that we could look at as being based on justice. I propose simply
to look at one other, that made by Honore in the passage quoted at the
outset of this paper. Is it true, and is it helpful, to assert as does Honor£,
that all human beings have in justice an equal right to desired goods?
This is qualified by Honoris claim that it is qua human beings that they
have this right, and that it is qualified by choice and conduct, and by
principles of 'justice of transactions'.
I find Honore's kind of claim somewhat bewildering and difficult to
understand. I can see that in respect of enjoyment of goods we should
not discriminate without good reason. I find it hard to see why it
should be asserted that all have a right to the same happiness, health,
liberty, clothing, shelter, food, etc., especially as people's wants,
desires, preferences differ in these matters. I find it unhelpful when
considering problems posed by limited medical resources, limited

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H.J. McCloskey

housing, limited food, and such like, to be informed of what Honor£

informs us to be the case. Does it help us even to begin deciding who
should have the use of the kidney machine and who not, who the
house and who not, who the food and who not? To a minimal degree it
does, but no more than does the inegalitarian principle, discriminate
where there is a relevant difference. As far as I can see, all that is true in
Honoris claim is that we should not assume a case for inequality.
Equally, I cannot see, that we can properly assume a case for equality.
Certainly it is untrue that the deaf, dumb, blind person who is suffering
excruciating pain from a persistent illness has the same right in justice
to happiness as the person with a toothache, the more especially
where the former's happiness can be achieved only at vast expense to
the community by way of reducing to an equal level, the happiness of
many others. The cost of achieving the good for the individual bears
on his right to it. And, as noted earlier, it seems to be evidently untrue
that all human beings have the same right to life and to the conditions
necessary thereto, and to assert the contrary seems simply to obscure
the issues of justice and morality which have to be faced up to in the
difficult cases.
All this has been sketchy and tentative. What I have been
concerned to bring out is that there is not some abstract case for
equality, nor for that matter for inequality, from justice. Justice
dictates some equalities and some inequalities. We cannot formulate
subordinate principles of equality within justice, for equalities are
dictated by relevant similarities, inequalities by relevant differences.
About these we cannot generalize in such a way as to have useful
general principles setting out when justice dictates equality and when
inequality. Ultimately the judgment of what is a relevant difference or
similarity is a matter for reason, intuitive reason, to determine. We
either see it or we do not.

Equality and Respect for Persons

There appears not to have been to this date any systematic attempt
to work out a case for equality from the duty to respect persons.
However, it is certainly assumed and implied in many places that there
is a connexion between the duty to respect persons and the duty to
accord equality to persons. I believe that an important case for
equality rests on respect for persons.
If persons are to be explained as they are by Kant, as rational,
morally autonomous beings, and not simply as human beings, then
respect for persons does not dictate equality for human beings. At best
it would dictate equality for persons. In fact it dictates equal respect for

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 A Right to Equality?

persons, and this is quite distinct from equal rights, equal access to or
enjoyment of goods. Equality of respect will commonly involve
according equal rights and allowing equal access to valued goods, but
it will not always do so. Respect for persons, for example, will
commonly involve them being accorded liberty, and hence, equal
liberty, in recognition of their autonomy. However, there will be
occasions when concern for persons will dictate paternalistic
interference with them for their own good. So too with other rights
and values. I have argued in my paper on the right to life (op. cit.) that
respect for persons may dictate euthanasia, as when a person is
suffering excruciating pain from a terminal illness and cannot because
of a stroke convey his wish to have his life terminated. Further, respect
for persons involves discriminating on the basis of desert. Not to hold a
person responsible and accountable for his actions is not to respect
him as a person. Thus I think that an important equality, equality of
respect, follows from the duty of respecting persons, but it is
compatible with and involves many consequential inequalities.
To consider what it dictates in the various areas of equality: With
legal and political equality, it dictates equal liberty for full persons but
allows and indeed dictates inequality in respect of potential persons,
and persons temporarily unfit to exercise their liberty well. It does
dictate equality of sexes and races as characterised earlier, but it does
not dictate economic equality. It would seem to involve not creating
obstacles by way of access to goods, and the providing of aids and
facilities as are necessary for an effective freedom. However, it would
seem to provide no grounds for insisting on equality of enjoyment of
goods along the lines suggested by Honore to be a dictate of justice.
Since it involves respecting the wishes of persons, it involves allowing
the inequalities which come from these choices, whether the choices
be wise or unwise. And it is compatible with the according of different
respect, in the more usual sense of respect, to persons of different
merit and virtue. Thus respect for persons does not involve equality for
human beings, nor full equality even for persons.
Much more can and needs to be said here. I think these few brief
remarks and suggestions are sufficient for the purposes of this paper,
namely the issue of the case for equality.

Equality as Dictated by Utility

Since utilitarian arguments for equality are well-known, I shall here

simply remind the reader of the main utilitarian considerations urged
in this area. Bentham and the Mills argued for legal and political
equality (representative government), and J. S. Mill also for equality

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HJ. McCloskey

for women, on the basis of utilitarian considerations. J. S. Mill further

entertained the case for socialism, and hence for a lessening to a
degree of economic inequality and inequality of power, also on
utilitarian grounds. The main argument used here was 'Each is the best
judge and guardian of his own interests'. This, as Mill himself noted, is
an argument subject to many qualifications and exceptions. Mill also
argued from political equality (liberty) as leading to self-dependence,
individuality, legal and political equality (and liberty) having an
educative value. (It was not any kind of political and legal equality
which Mill defended in these ways but that equality that involved
liberty, equal liberty, as he explained, defined, and limited it.) Mill had
based his defence of liberty, and of an equal right to liberty, on ideal
utilitarian considerations. Liberty was claimed to be essential for
knowledge, true belief, rationality and rational belief, self-
development, and other goods. Mill approached socialism by
considering what system, an improved private property system or a
socialist system, would promote the greatest good, where liberty was
seen as the overriding good.
The only point I wish to make here is that such a defence of equality
is a qualified and dangerous one, since it is reversible if the facts prove
to be other than they are claimed to be. If democracy does not lead to
self-dependence, moral development, and the like, if each is not the
best judge or best guardian of his own i nterests, then it may follow that
democracy is not to be preferred, that equality of legal rights should
not be accorded, and the like.
The arguments from envy: Probably this argument is
philosophically too trivial to merit a mention here. Yet I suspect that it
plays a major part in much socialist egalitarian thinking. It has been
urged, for instance, in support of taxing the income of working
husbands and wives jointly, and hence much more heavily than if
taxed separately, on the grounds that the economic inequality that
would otherwise occur between them and single-income husband
and wives, would occasion envy and discontent. The principle of this
argument is to eliminate all inequalities which give rise to envy,
whether the envy be rationally founded or not, whether it relates to an
injustice or not. The good that is achieved by such equality is the good
of contentment and absence of envy. There are attempts to dress up
this argument as one from justice, in terms of relative deprivations as
injustices, and such inequalities as involving relative deprivations.
However, it is essentially an argument for equality based on pandering
to human weakness and immorality. It is a disgraceful argument. The
proper response to envy of inequalities not related to injustices, is the
moral education of the envious by the state, not pandering to his envy.
The logical outcome of such pandering to envy could be the kind of
egalitarianism considered earlier in the paper, under the heading,

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 A Right to Equality?

Equality as an ultimate, basic value. Equally it could lead to demands

for an arbitrarily unegalitarian society. To explain: Traditionally it has
been argued that justice dictates fulfilment of expectations. Clearly
there is an element of truth in this. However, filled out as it has been in
recent Australian wage discussions into a principle that relativities in
incomes must be maintained in any adjustments to wages, it becomes
an argument for perpetruating injustices simply because they exist. If
restated as an argument from envy, resentment and discontent and
not from justice, the argument will be that unless relativities are
maintained there will be envy and discontent, hence the existing
relativities must be maintained. And so with other inequalities, the
weakening of which leads to discontent. Expectations and practices
which involve unjust inequalities do not create a case for maintaining
the inequality, whether or not envy, resentment and discontent result
from eliminating the inequality, any more than envy and resentment
create a case for bringing about an equality not dictated by justice. As a
utilitarian argument, I suggest that the argument for equality from
envy, resentment and social discontent is both naive, uncritical, and
worthless. Greater harm than good is likely to come from admitting
injustices in order to pander to base moral attitudes.

Equality as Dictated by Concern for Liberty

Arguments for equality from liberty are at best as strong as the

arguments for liberty. These I have discussed in various other papers,
most notably in "Some Arguments for a Liberal Society", Philosophy,
XLIII, 1968.
Concern for liberty obviously dictates political and legal liberty,
and hence equality, in the sense that all entitled to liberty should enjoy
these liberties. Not all are entitled to political and legal liberty.
Similarly with equality of the sexes and races. [Those of different races
and sexes entitled to liberty are to that extent entitled to equality,
equality of liberty.] So too with religious liberty and religious equality.
These are restricted equalities which involve inequalities.
It is in respect of economic equality, or at least a lessening of
economic inequalities, that the argument from liberty is strongest and
most important. As R. H. Tawney argues in Equality, certain economic
inequalities are incompatible with a genuine, effective democracy,
and with a genuine liberty. Many of the arguments here turn on an
acceptance of the positive concept of liberty, liberty consisting in
being master of one's destiny, determining what happens to oneself.
With merely negative liberty and economic inequality such that our

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HJ. McCloskey

jobs can arbitrarily be terminated by an employer responsible to no

one other than himself, we are not genuinely free. Without the funds
to make use of our rights within the legal system, to avail ourselves of
the facilities it provides, our freedom is curtailed. More basically, if we
are too poor to own a house, land, goods through which to express
ourselves creatively, we are not free. Genuine freedom, positive
freedom, dictates the abolition of certain inequalities, the inequalities
of lack of access to goods due to lack of means of obtaining them,
education, funds, or such like. It is the argument from political liberty
that tells most strongly against gross inequalities of wealth. Wealth
brings power and influence of a disproportional kind. Concern for
political liberty must involve either a lessening of the inequalities of
wealth or a controlling of the power that goes with wealth. However,
there are dangers in arguing without great care as socialists are
inclined to argue, that political liberty must involve equality of
influence. Liberty and democracy must allow different degrees of
influence according to a person's interest, intelligence, industry.
Wealth is simply one among many factors that bear on a person's
political power and influence. To seek to level every one down to the
one level would involve intolerable interference with the individual's
liberty, and would be without other justification. Indeed, I suspect that
it would ultimately rest on an appeal to the value of equality as an end
in itself.
Again, much more needs to be said here. My concern has been
simply to bring out that the arguments for equality are very qualified
arguments which either are compatible with or dictate certain other
inequalities. This is as true of the arguments for equality from liberty as
from other grounds.
To conclude: In this paper I have sought to establish a number of
conclusions, the most important being: (i) Every demand for an
equality must also be a demand for an inequality otherwise the
demand is one of the irrational demands for equality discussed in the
first section of the paper, (ii) The rational demands for equalities are
not based on some basic common human trait or traits, but on relevant
similarities. (Hi) General principles setting out which equalities are just
and rational are not possible as they depend on apprehension of
relevant similarities. These must be intuited in the concrete situation,
(iv) Most seeming demands for equality as an end in itself are not
demands for equality but for maximum fair distribution of various
goods other than equality.

March 7976

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