Roderick Long On Equality Before The Law

Roderick Long on what sort of equality libertarianism entails:

“But if neither legal equality nor equality of liberty is sufficient for a free society as we understand it, in what sense can it be from our equal creation that we derive our right to liberty?

For the answer to this question we must turn from Jefferson to Jefferson’s source, John Locke, who tells us exactly what “equality” in the libertarian sense is: namely, a conditionwherein all the power and jurisdiction is reciprocal, no one having more than another, there being nothing more evident than that creatures of the same species and rank, promiscuously born to all the same advantages of nature, and the use of the same faculties, should also be equal one amongst another, without subordination or subjection….[3]

In short, the equality that Locke and Jefferson speak of is equality in authority: the prohibition of any “subordination or subjection” of one person to another. Since any interference by A with B’s liberty constitutes a subordination or subjection of B to A, the right to liberty follows straightforwardly from the equality of “power and jurisdiction.” As Locke explains:

[B]eing all equal and independent, no one ought to harm another in his life, health, liberty or possessions…. And, being furnished with like faculties, sharing all in one community of nature, there cannot be supposed any such subordination among us that may authorise us to destroy one another, as if we were made for one another’s uses, as the inferior ranks of creatures are for ours.[4]

This is a notable pre-Kantian statement of the principle that human beings are not to be treated as mere means to the ends of others. (Observe, too, how Locke and Jefferson both invoke independence as a corollary of, or a gloss on, equality in authority.)

We can now see how socioeconomic equality and legal equality both fall short of the radicalism of Lockean equality. For neither of those forms of equality calls into question the authority of those who administer the legal system; such administrators are merely required to ensure equality, of the relevant sort, among those administered. Thus socioeconomic equality, despite the bold claims of its adherents, does no more to challenge the existing power structure than does legal equality. Both forms of equality call upon that power structure to do certain things; but in so doing, they both assume, and indeed require, an inequality in authority between those who administer the legal framework and everybody else.

The libertarian version of equality is not circumscribed in this way. As Locke sees, equality in authority entails denying to the legal system’s administrators—and thus to the legal system itself—any powers beyond those possessed by private citizens:

[T]he execution of the law of nature is in that state put into every man’s hands, whereby every one has a right to punish the transgressors of that law to such a degree as may hinder its violation…. For in that state of perfect equality, where naturally there is no superiority or jurisdiction of one over another, what any may do in prosecution of that law, every one must needs have a right to do.[5]

Lockean equality involves not merely equality before legislators, judges, and police, but, far more crucially, equality with legislators, judges, and police.

By this standard Murray Rothbard, in his advocacy of anarcho-capitalism, turns out to have been one of the most consistent and thoroughgoing egalitarian theorists of all time. As the author of Egalitarianism as a Revolt Against Nature, Rothbard might very well turn over in his grave to hear himself so described; but, as we shall see, what Ayn Rand used to say of capitalism applies a fortiori to equality: equality, properly understood, is in many ways an unknown ideal—unknown both to its defenders and to its detractors.”

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