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).