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I. The Necessity of Equality Before the Law for Liberty
There are reasons which may lead some to say that equality before the law is unnecessary for liberty. Although these will turn out, in light of weightier reasons, to be illusory, it would be to our advantage to examine them. Imagine that some adversary responds to Hayek’s claim as follows:
What? Are liberty and legal equality really so close to each other that the establishment of the one follows the establishment of the other? What say you thenwas libertas Romanae so squalid that we need not consider it, though only a fool would say that legal equality existed in the Urbs Aeturna? Or was this not among the brightest examples of liberty that the human mind before her for many centuries? And England! Was English liberty so illusory that we must say that Montesquieu was horribly deluded when he singled out England as a land of freedom?
So how should we answer this? We see, arrayed against the principle that legal equality is the aim of liberty, examples in which we are invited to see liberty in the absence of equality. Let us test the weight of these. What do we see in the Roman Republic? Where is its liberty and where its inequality? In Rome we find a layered society of classes, including a powerful aristocratic class, a weak plebian class and a powerless slave class. Among the aristocratic elements of the society, we find liberty: we find the governance of the state divided up amongst the members of this class, and no member rules over the others as a master, except temporarily and through the will of those ruled. But their power is bought at the price of the freedom of those below them. The plebeians and the slaves seem to sacrifice their liberty to their superiors. In England we find a monarch, an aristocratic array of lords, and a lower class; the monarch possesses the greater power, but not an absolute one; the lords share power among themselves, and though their powers are not equal they share many legal rights; and the lower class possesses certain rights and powers of their own, though by far inferior ones. Again, we see a great many invited to share in the power of governance, but a great many bowed beneath great powers. It does seem as if these aristocracies possess liberty, even if there are terrible inequalities and members of society that are deprived of liberty. Thus it seems that the objector’s point has been made: liberty existing sine aequalitate.
But it is apparent that a mistake has been made. Libertas Romanae existed because of the relative equality of the aristocratic class and because they were free from the coercion of an irresistible power, that is, there was no power in the state compared to which they were unequal and inferior. We wouldn’t speak of Roman Freedom had the Tarquins continued to reign. And the relationship of the Roman aristocracy vis-à-vis the lower classes was identical to the relationship of Rome vis-à-vis other nations; Roman freedom was bought at the price of the freedom of other nations, and it lived in fear of foreign powers. The liberty of the Romans consisted in the legal rights they shared and the influence they possessed and was sealed by the absence of any other power, whether monarchal or foreign, that could coerce them.
Similarly, England’s freedoms were a result of similar factors: a certain degree of equality before the law founded in legal rights and, rather than the absence of a monarch, the weakness of the monarch, which was accomplished through his subjection to the law. England’s liberty was founded in the enshrinement of certain legal rights on the one hand and the weakness of the coercive power of the sovereign on the other hand, i.e. in the weakness of the entity whose legal power was unequal in its superiority. In fact it seems reasonable to say that English liberty grew precisely in proportion to the increase in legal rights that limited the power of the monarch. That is: liberty increased as inequality decreased.
And so, rather than these examples standing against Hayek, they may be put to use in support of his claim. While it is true that these nations possessed liberty, they possessed it only to a limited degree. If liberty grew precisely through decreasing inequality then it would follow that had there been less inequality in Rome or in England there would have been more liberty. It is better to be a Roman than a Persian, but obviously that isn’t the whole story. The problem is that even though there was some liberty in these nations, that liberty was restricted to a subclass of society, relatively equal among themselves, who bowed before no despotic power. They were certainly free men. But from the perspective of those below, these very men were a despotic power.
So it is no paradox to say that liberty and despotism may exist side-by-side; we only have to make clear who it is who possesses liberty and whom it is who is reigned over despotically. If these are not the same people, then there is no contradiction. But there is a deplorable state of affairs. For it may be said that if these peoples truly valued liberty, then they would ardently wish for its increase; but if they wished for its increase, then they would destroy the legal inequalities that set one portion of society above the other as if a conquering power, and allow liberty to pervade the whole.
So long as society is divided into two or more classes who are not equal before the law, one will possess a power over the other that prevents the inferior class from possessing liberty. If only one class has a right to enter government; or only one class has a right to manufacture; or only one class has a right to bear arms; then one class has a decided power vis-à-vis the other and liberty has not yet spread throughout such a society. When faced with such examples, it would be more accurate to say not that the Romans possessed liberty, but that the highest class of Romans possessed it and all other classes denied it. Nonetheless this is far superior to a situation in which liberty is restricted to one man alone, so much so that we do have to recognize that real, if incomplete, liberty subsists in states such as the Roman Republic.
What we have said so far is not sufficient to make the issue clear however. For suppose that a nation is divided into three castes, none of which rules over the others, but each of which is restricted in which professions its members may enter. Suppose that members of Caste A are allowed to work as artisans, members of Caste B are allowed to work in agriculture, and members of Caste C are allowed to work as merchants. All roles that relate to the state as a whole are open to all members of society regardless of caste. Thus, public offices are drawn from all three castes by popular election, and members of any caste may enter the armed forces. No caste exists which could be compared to a “conqueror,” reigning over the other castes like a foreign power. But who would say that the members of such a society were really free?
But what is lacking in the analysis? The castes are unequal, but not due to any power that one bears over another. Liberty is clearly lacking, but it is not as easy to see the connection between this fact and the fact of inequality. This example moves beyond the issues brought to light by our historical examples.
This example, however, brings out the vital necessity of equality before the law for freedom more completely than those earlier examples could. This is because we see here that it isn’t so much the presence of a superior power that limits liberty but the presence of fixed arbitrary power. A man may elect a superior power and not cease to be free; but fix a ruler over him, and you have removed a portion of his liberty; fix this ruler arbitrarily, and you remove even more. Thus a fixed superior power, an aristocracy, is a terrible thing to live under. Here we see that this need not require that the law fix a ruler over him; it is enough that it fixes him in place and will not allow him to pursue happiness upon his own. What this hypothetical example shows is how liberty may be restricted in such a way that it weighs principally upon the individual and not the class. It is not one class weighing another down, but the laws of society weighing down the individual directly. If members of one class alone are allowed to enter a certain profession, or members of one class alone are restricted to a certain profession, then men are not really free in their actions: they are coerced by arbitrary law. Our objector could answer:
All law is coercive, and all laws make coercive distinctionslook at the way in which murderers are denied many things.
What is repugnant about such restrictions as we are discussing is that they serve no moral purpose, whereas the legal inequality of those imprisoned for criminal actions does serve such a purpose; in fact it serves the purpose of maintaining a society of any kind at all, free or not. Restrictions based upon arbitrary facts of birth are not of this kind. Laws that restrict people from murdering each other serve, among other functions, to make liberty possible. Arbitrary restrictions based upon birth do no such thing and merely coerce the will. Where there is restriction without possibility of an appeal to reason, there is no liberty.
Moreover, such restrictions injure civil society and civil liberty. Born into such a society, many who, had they been born free, would have entered civil society with passion, will do so without passion because they have no choice as to the manner and place they take within it. The whole must suffer as a result. Tocqueville, though not writing upon this very subject, nonetheless spoke well of what results from the places of men being determined beforehand by powers other than their own will: “the body acts as if by itself, while the soul is plunged into a repose that weighs on it.” Men act out their professions, but can scarcely be said to enter into them with their whole spirit. Once civil society is opened and such fixed places abolished, the relationship between a man and his profession changes dramatically: “the love of material enjoyments, the idea of the better, the competition, and the imminent charm of success are like so many spurs to hasten the steps of each man down the course he has embraced…” Therefore, caste inequalities, like class inequalities, are mere arbitrary exercises of power by the law. That is, the law itself is made into a despotic coercive power and the limit of liberty. The necessity of legal equality consists in this: inequality subjects men to an arbitrary power that constrains their will without any recourse or appeal to their reason.
II. Equality Before the Law Insufficient for Liberty
Despite all of this, equality before the law is not sufficient for liberty: this is because legal equality may be accompanied by political or civilincluding economicpowerlessness. Of the barriers to liberty, none has been so visible or so pernicious as legal inequality, particularly in nations where aristocracies once ruledthat is, in practically every nation apart from the United States, and even there the traces of legal inequality were not easily removed, particularly from the South, which claim as close to possessing an aristocracy as any part of America did. But this shouldn’t lead us to make the mistake that liberty consists solely in the abolishment of these oppressive fixed powers.
The reader would justly be suspicious if I were to go on to claim that what was in fact necessary for freedom were some state power that would ensure that the individual pursued only his true good, or some such thing. Nor will I proceed to claim that the establishment of “real equality” must accompany formal legal equality. Instead I would like to beginas we must if we are seeking to understand the nature of egalitarian freedomwith Tocqueville. In a true state of liberty, in which all members of society are both equal and free, “liberty and equality touch and merge into each other.” This leads to the separation of individuals from each other and so to individual independence. When the laws were unequal men were bonded together both horizontally to other members of their class and vertically to members of other classes, owing obedience to those above them and dutiful governance to those below. When such unjust inequalities are overthrown, the social bond created by the social structures also disappears. According to Pierre Manent, Democratic societies cannot tolerate such bonds, because “nothing must come between the citizen as legislator and the citizen as subject.” Individuals are therefore placed side by side without a common bond between them.
This however is a fragile situation in which to place free individuals. So completely isolated from one another it is difficult for individuals to feel that they possess much power at all: they are apt to feel as if they are weak and incapable of great things. The only way to combat these sentiments is to teach men how to act without a superior power, without relying upon any power that does not issue from their own will, that is, without being subject to a fixed power that is irresistible to their will. This is done through free institutions, such as the free press, the right to form civil and political associations, a right to local governance through administrative decentralization. These institutions teach individuals how to associateand thus how to recreate the social bond in a free mannerand prevent them from feeling the impotence they possess as isolated individuals. They also establish the habits and mores necessary for freedom and equality to last.
What would occur if these institutions were not in place? Isolated, equal, individuals are susceptible to the temptation to set up a new tyranny, to abdicate their freedom in exchange for material well-being and security. Inequality being exorcised, there are no intermediate powers to call upon or to associate with; each individual being weak, no one can accomplish anything by himself; thus it is all too easy to regard the central authority as the only place to deposit power. Tocqueville wrote that “the dread of disturbance and the love of well-being insensibly lead democratic nations to increase the functions of central government, as the only power which appears to be intrinsically sufficiently strong, enlightened, and secure, to protect them…” Such centralization is difficult to attain where inequality exists, since generally there will exist those who are so unequal in their power that they will resist any movement in society to increase central prerogatives since such would constitute a rival power to their own and limit the powers they currently enjoy. But once legal equality exists, or near equality, it becomes vital to protect against this happening. It is easy to imagine a people that possessed no legal inequalities whatsoever, but in which individuals do nothing but obey; a people whose state took care of them from beginning to end, and in which no man felt himself to possess any power whatsoever; either to govern, because he saw that his own individual will had no effect upon the course of the state; or to retain his rights as he is being governed, since the central authority, in such a situation, must seem irresistible. Such a state could, in the interests of all of its citizens, pass laws restricting the rights of the press, narrowing the right of association, and redirecting all local powers into its own hands so as to ensure that society proceeded only in the most orderly and unified manner.
There would be no legal inequalities in such a state. But it would not be free. And what we discovered earlier helps explain this. What was objectionable about legal inequalities was that it produced fixed, arbitrary powers that restricted individuals. But even where complete legal equality reigns, it is possible for the state itself, the representative of the whole people, to take on just this character; to become a fixed, irresistible, and omnivorous power reigning over all; all that is required is that men exchange liberty for well-being, the freedom of maturity for the security of childhood. This is so because liberty requires more than the absence of coercion; it requires the ability to act. Legal equality cannot ensure that citizens will retain the will and the ability to act, rather than the will to remain in tutelage and the ability to do nothing but obey. The bare form of representative government is not enough, as Tocqueville has warned us:
In vain do you charge the same citizens, which you have made so dependent on the central power, to choose from time to time their representatives of this power. This exercise of their free will, important, but brief and rare, will not prevent them little by little from losing the faculty of thinking, feeling, and acting by themselves...
This was illuminated by the ancient examples of liberty; what free men who are free through another’s servitude gain through inequality is precisely the power and even the duty to act in the political realm and in civil society. This power and duty is threatened when individual influences are banished; as powers gather at the center, a tyranny both more powerful and more mild than any before readies itself.
In past centuries, one never saw a sovereign so absolute and so powerful that it undertook to administer all the parts of a great empire by itself without the assistance of secondary powers; there was none who attempted to subjugate all its subjects without distinction to the details of a uniform rule, nor one that descended to the side of each of them to lord it over him and lead him.
Thus it is not enough to simply overthrow legal privileges if one wishes to establish liberty. One must find another means of establishing the power of individuals to act in the political realm and in civil society so that they do not adopt an attitude of servitude towards an enormously enlarged central power. For this reason it is necessary to replace aristocratic associations, which are steeped in injustice, with free institutions that allow men to govern themselves and to live in freedom from arbitrary power. While it is true that the immediate aim of the struggle for liberty is to overthrow unjust legal inequalities, its ultimate goal must be to establish in their place just institutions that will empower free men to govern themselves, for no man is free if he is powerless.
 De Tocqueville, Alexis. Democracy in America, II.i.17, 458.
 Ibid, II.ii.1, 479.
 Tocqueville and the Nature of Democracy (trans. John Waggoner; Lanham, MD: Rowland & Littlefield, 1996), 18.
 Democracy in America, II.iv.4, 649.
 Ibid, II.iv.6, 665.
 Ibid, II.iv.6, 661.