The Self-Sustaining Society, Part II: Procedural Equality

In my last post, I argued that positional equality (i.e. equality of outcome) was unsuited to be a fundamental political principle for society. Unless positional equality is a secondary, subordinate principle to some other controlling principle, it provides no basis to choose between ends, leads to endless coercion, and goes against human nature in opposing the drive to better ourselves. Additionally, it provides no intrinsic basis to justify the authority of parents over children, or parents’ duties to them.

(Some, such as Locke, argue that children are under authority because their reason is not fully developed, and they cannot choose between ends themselves. The problems with this argument will have to wait for a further post, but for now note that reasoned choice plays no role in positional equality—indeed, is effectively discouraged, since nothing you do is permitted to improve your relative position.)

In this post, I will consider procedural equality.

Procedural equality encompasses such ideas as equal protection of law, the equal ability to speak freely, equal voting rights, and equal eligibility for government office, or benefiting from government goods. The most critical of these procedural protections are typically equal influence over government, and equality before the law. All people, when interacting with the institutions of government, are treated precisely the same as a function of their actual behavior, as opposed to social class, sex, religion, or any other intrinsic trait of the individual not related to their actions and choices.

We should pause here to note what procedural equality is not. It does not necessarily encompass political freedoms such as property rights; it would be consistent with the principle of procedural equality for all of us to live in a crushing tyranny, so long as that tyranny were applied to all equally. The principle of procedural freedom, meanwhile, will partly overlap with procedural equality, but based on a very different and stronger justification: you have fewer opportunities to treat people unequally when you may not infringe on their rights at all. Therefore, while much of the discussion to come will bear on procedural freedom, it does not necessarily follow that it can be directly applied.

Moreover, procedural equality does not preclude the application of a positive program imposed upon citizens, for example trying to cultivate a particular set of civic virtues or to encourage or discourage particular behaviors—so long as they are applied equally. (While a system based on positional equality could technically do the same, this creates an internal contradiction: all-encompassing positional equality is based on uncertainty over what the best life is. Advocating a positive program implies a judgment that some behaviors or character traits are better than others, which tends to undermine the argument for all-encompassing equality. And if you were to limit the scope of positional equality in response, you would again render positional equality subordinate to this new judgment or principle.)

And to be clear, we are not considering procedural equality as a means to prevent government corruption or oppression; this already treats procedural equality as a subordinate principle. Let us begin instead by considering procedural equality in itself, as a self-contained concept.

First let us explore the assumption above, that one can use different procedures on people based on their actions and only their actions. Procedural equality is premised on the existence of procedures, that is to say, a political institution that makes laws and carries them out. Civil and criminal law is based on the principle that you may treat people differently (i.e. punish them) if they should break the law. Recall from above that procedural equality is compatible with coercive government; therefore, in theory, any action can be criminalized, so long as the action does not affect the relative ability to exert political power and be treated equally by the state apparatus.

But penalizing personal attributes—sex, race, religion, and so on—is not an attempt to regulate behavior, but a direct attack on the political standing of the individual in question. A man cannot magically become a woman if he wishes to avoid sanction, nor a woman a man (neglecting modern surgical innovations). Rather, they must suffer harm that necessarily interferes with their ability to seek redress.

Yet here we pause. Is religion indeed a personal attribute, rather than a choice? What about a law against fat people; is someone fat by nature or by action? What about a law that discriminates between rich and poor; is wealth a personal attribute, or the product of certain actions?

What about personal attributes that lead to different behaviors? Men and women deal with different biological drives; perhaps the law should distinguish between them? Religions (assuming for the moment that they are indeed personal attributes) mandate different classes of behavior; should some be judged helpful and others harmful?

Many argue that our choices and our circumstances are so heavily interdependent that one cannot separate them from each other. Is a criminal to be punished because his poverty drives him to steal?

I shall not try to answer these questions; but that they exist at all poses problems for procedural equality. Perhaps that is why the trend in American jurisprudence has been to broaden its scope over time, attempting to uncritically absorb all of the problematic cases and avoid the issue. (When was the last time a government employee was fired for professing communism?)

The second problematic element was noted in the previous post: political power, and access to and treatment by institutions, do not exist in a vacuum. They are strongly influenced by disparities in wealth, education, group prejudices, or other otherwise-legal factors, to the point that (for example) no one believes that a welfare recipient has the same political control over government as a millionaire.

Therefore, goes this argument, to ensure true procedural equality, one is forced to seek positional equality or a functional approximation thereof for dimensions relevant to political interaction. This gets us back into the many logical tangles we saw in the last post (albeit mitigated somewhat because positional equality would here be subordinate to procedural equality, without necessarily extending beyond that).

One may scoff at such an argument, but consider education. One who cannot write well is unlikely to write his congressman for redress, nor is one who cannot read likely to exercise his vote effectively. A certain minimal level of education is necessary before one is able to use the procedural privileges which are in theory open to him. Therefore, one is forced to extend the principle of procedural equality into a vast new sphere of mandated policy. Other extensions suddenly do not seem so unreasonable.

(Here, the extended form of procedural equality could perhaps justify the education of a minor or major, even through coercion if you applied it equally; as Rousseau writes, “he shall be forced to be free.” The extended form does not distinguish between a minor and major beyond differences in ability, nor does it necessarily afford any special role to the parent in this regard.)

As a philosophical criterion, procedural equality ends up collapsing back into positional equality to a large degree as soon as it comes into contact with the real world. Even in the messier “practical” form it takes in our political system, it runs afoul of the blurred line between action and identity as discussed above. Therefore it is unsuited to be a primary principle for society, as was positional equality.

Once subordinated to other principles (such as, per Locke, the paramount place of property rights), procedural equality or variants thereof become a vital part of our political system, of course. The presumption of equal treatment is a powerful force in the continuing dynamism and legitimacy of our society. But again, it is only once subordinated to some other principle, and therefore limited in scope, that procedural equality can serve a purpose.


The next post will discuss procedural freedom (in the sense of Robert Nozick).


The Self-Sustaining Society, Part I: Positional Equality

[I'm ba-aaack... —ed.]

A stereotype of the political controversies of our time envisions a conflict between those who favor freedom and those who favor equality. This formulation is imprecise: liberals and conservatives each claim to be motivated by both of these principles, applied in different ways. (In particular, the difference between “procedural equality” and “equality of outcome” is obscured by this stereotype; see below.) Some liberals assert a right to abortion in the name of freedom, while asserting the right to progressive taxation in the name of equality; some conservatives assert a right to unrestricted commerce in the name of freedom, while asserting the harm of abortion in the name of the equality or near-equality between child and mother.

This incoherence of principles is widespread throughout American political behavior. You will find very few ideologues entirely devoted to either freedom or equality. More often, you seem to find an arbitrary mixture of both. It is more accurate to say that most people’s tendency toward freedom or equality is, in fact, unconsciously or consciously determined by the prior application of other principles entirely: populism, or “national greatness,” or differing degrees of religious influence, or other such concepts. These people usually justify their positions by citing freedom or equality, not because these are their true sources, but because they are politically legitimate in modern American debate, while their true principles are not.

In this series of posts, I argue that this ideological confusion is a symptom of a deep deficiency in the modern understanding of both freedom and equality. Neither of these is appropriate, by itself or in combination with the other, to be the sole principle of a good society; and that we try to use them in this way is a contributing factor to our social fragility. Most people understand this instinctively, and are searching for something better, more complete. In the degenerate political movements that arise (such as populism or nativism), we can see people trying to find their way back, all unaware, to a political philosophy that was once a vital part of American thought—before it was taken from us by a mix of economic centralization, ideological shifts, and a change in the very meaning of rule by the people. America has lost the political vocabulary it once had to describe a better ideal: that of the self-governing citizen.

This ideal itself proved unable to resist the forces undermining it, I argue, because it did not include any rigorous treatment of the separate roles of the individual citizen, citizens in their private communities, and citizens acting through the apparatus of state power. So governments were able to absorb into themselves activities properly left to individuals or communities—and vice versa. Such a rigorous treatment is needed to correct this flaw, and to enable the ideal of self-government to survive in the face of the many ideologies seeking its destruction.


I will begin exploring the easier topic, equality.

The term “equality” can actually refer to either of two concepts: procedural equality (also called equality of opportunity) and positional equality (also called equality of outcome). Procedural equality addresses such things as equal justice under the law, or equal access to markets. Positional equality addresses topics such as disparities of wealth or political power. In this post, I focus on positional equality.

The naive argument for positional equality is that it is inherently wrong for two individuals to have disparities of happiness, and that efforts should be taken to raise the happiness of the less happy, even at the expense of the more happy. (In practical terms this often is applied to wealth, or access to education, and so forth. It is stated in perhaps its most stark form by John Rawls in A Theory of Justice, p. 102: “No one deserves his greater natural capacity nor merits a more favorable starting place in society.”)

Note a crucial aspect of this position: it is content-free. The principle of positional equality makes no claim about what makes people happy (except perhaps for money, which is viewed as a proxy for what really makes a person happy). By making people positionally equal, the proponent of this view can avoid the question entirely since, whatever it is that makes people happy, everyone will have the same quantity of it.

This aspect can be seen clearly when, every time a new social or material factor is determined to contribute directly to happiness, cries go up to share it equally (for example, medical care or housing).

That said, positional equality is a poor guide for making decisions in the real world, because it provides no intrinsic basis to trade off one consideration against another. If equality is the sole criterion, how does one handle a situation in which you must choose between two dimensions of equality? For example, equal access to health care requires a medical system with enough resources to provide such care. What if you could have such a system, but only by allowing more general disparities of wealth to provide the necessary tax revenues? The question cannot be answered purely within the framework of positional equality, for the reason noted above: positional equality makes no claim as to what makes people happy—and therefore, which of two conflicting goals should be chosen.

Another aspect in which positional equality is incomplete by itself is that it utterly fails to explain or justify parents’ responsibility for, and power over, their children. (By extension, it also fails to explain the prerogatives of education.) If children are equal to their parents, by what right can a parent constrain his child? Conversely, by what right can the child make a claim on the resources of the parent? Positional equality cannot answer, and thus is brought up short by one of the most primal elements of human existence.

(Parenthood and families will come up again as we consider other political principles, and will be dealt with at length in its own post sometime in the future.)

These points shows that the concept of positional equality is insufficient in itself to be the ultimate political basis of a society. Equality relies on the existence of prior and independent political or philosophical concepts, which can provide a basis to judge between ends, in order to be of use in a political society.

Positional equality has other, fatal flaws that throw into doubt its place in a society that claims to be good. First, it relies on relative judgments. Positional equality measures people’s standing solely in reference to each other. Absolute levels of wealth or health or education are unimportant, compared to the distribution of these things among the population. (This can be seen in economics, for example, in the Gini Coefficient of wealth.)

This relative focus causes an individual to compare his own attributes, or character, or achievements, not to an internal or societal ideal to be striven for, but (at least in part) to the attributes of his neighbor. This fosters complacency in the presence of mediocrity, and poisonous envy in the presence of achievement. It also guarantees that most people will be unhappy, because whenever there are inequalities in attributes, most people will be worse off than the fortunate few on top. In this sense, a dominant ethos of equality that causes people to focus their attention disproportionally on differences will lead directly to a decrease in general happiness, except in the presence of perfect equality.

But even pure equality would have the counterintuitive effect of lowering happiness, at least in the form of self-esteem. As Robert Nozick writes in Anarchy, State, and Utopia:
When everyone, or almost everyone, has some thing or attribute, it does not function as a basis for self-esteem. Self-esteem is based on differentiating characteristics; that’s why it’s self-esteem. And as sociologists of reference groups are fond of pointing out, who the others are changes [p. 243].

The most promising ways for a society to avoid widespread differences in self-esteem would be to have no common weighting of dimensions; instead it would have a diversity of different lists of dimensions and of weightings [with which to judge your own worth] [p. 245].
The focus on relative endowments also permits the champions of equality to advance policies that, on balance, reduce the aggregate wealth or happiness of a society, if they should also make the distribution of such things equal. This is true on a fundamental level, since the total wealth of society is irrelevant to the comparative calculations of positional equality.

Moreover, actually realizing a society built on positional equality (or any other predetermined distribution of wealth or anything else) by definition requires the continuous use of coercion, at all levels of society, to preserve the desired distribution of wealth. Nozick writes:
…no end-state principle or distributional patterned principle of justice can be continuously realized without continuous interference in people’s lives [p. 163].

For [such principles] do not give the right to choose what to do with what one has; they do not give the right to choose to pursue an end involving (intrinsically, or as a means) the enhancement of another’s position [p. 167].
This extends so far as to prohibit the free giving of gifts; if (let us say) society were successfully ordered that property were distributed justly among individuals, according to some principle of equality or other criteria focused on the distribution itself—then if you give property to another, the act is unjust!
Whether or not it is better to give than to receive, proponents of patterned principles ignore giving altogether.… [T]heir theories are theories of recipient justice; they completely ignore any right a person might have to give something to someone [p. 168].
It should be clear by now that equality of position, in its strict and unrestrained form, is unsuited to be a fundamental political principle for a society. It gives deficient criteria for judgment between actions, cannot encompass such elemental parts of the human experience as parenthood, stimulates envy and the desire to bring low those more successful regardless of the cost to society as a whole, and cannot be carried out without an unrestrained tyranny that would extend into every aspect of life.

More limited justifications of positional equality seek to get around the preceding series of issues, to some degree. One argument states that some degree of positional equality is necessary to defend political equality (a subset of procedural equality, to be discussed in the next post) and government by the people: if too much power is concentrated in the hands of too few people, they will take effective control of government and make a mockery of our republic. Therefore, equality is necessary, but only along those dimensions important for political involvement, and only to the degree necessary to defend political equality from subversion. This is a pragmatic political program, motivated by a specific goal, and is furthermore less domineering than the requirement of full equality. Furthermore, the undermining of procedural equality necessitated by positional equality has a built-in limit, in that it must not itself threaten the political equality which is the point of the exercise.

A more cynical, limited version of this approach has it that society itself will not stand up to too great a level of inequality, and that if left unchecked inequality will inevitably lead to social upheaval and chaos. Therefore, as a defensive measure, the society must take steps to prevent such dangerous levels of inequality from arising or persisting. Here, too, the program of equality is restrained by the paramount importance of the well-being of society.

Both of these views are arguable, but are also worth keeping in mind. Yet notice that in each case, positional equality is no longer the sole criterion—instead, it has become a means, or a secondary and subordinate criterion, to achieve a prior goal. Indeed, only if used in this way can positional equality play a meaningful role in political society. That this conclusion is badly obscured in modern political discourse, and that positional equality in and of itself is sometimes appealed to as justification for some policy or other, has caused significant distortions in policy.

To cite a single example, at present the educational system labors under the belief that all students, in an ideal world, would go to college. (This simplistic belief neglects whether college is best for all people, or even tolerable; or whether society would benefit more from paying [or forcing the students to pay] the tremendous costs of universal college education, than from encouraging students to choose as they see fit.) But since students have unequal academic abilities, schools and colleges as a class have sought to broaden their student base by watering down the curriculum. Rather than encouraging the true achievers to excel, the program as a whole is weakened to accommodate those who will least benefit from it. Such is the effect of blindly applying the principle of positional equality.

(This treatment is painfully brief; the issues connected with education in a society will also be dealt with, at extreme length, in their own post.)

The next post in this series will address procedural equality.