Equality or Equality Under the Law?

In his essay Invasive Government and the Destruction of Certainty, written in 1988, Ridgway K. Foley Jr. writes the following:

“A commonplace tautology equates justice with fairness, without any feint at content or elucidation. Nonetheless, “fairness” in the common law tradition gives birth to the beguiling beauty of equality_ Equality, in the guise of Cain, cultivates a leveling egalitarianism, quite apart from sound tradition or good sense. Equality, in the garb of Abel. calls for like treatment in similar situations: it is “fair” or “just” if commoner and king each must keep their uncoerced promises, avoid trespassing upon the next-door neighbor’s land, and restore gains secured by deception and malevolence. The grand phrase, “equality under the law,” properly conveys no more than this notion.

Certainty represents an essential component of this sort of fair or just behavior. Occupants of all stations in life start legally equal if each individual understands that similar responses will follow like acts or omissions. The common law participated in a sentiment that every man should know the law and govern his actions accordingly. This presumption—less a fiction in the fifteenth century than in the twentieth—obviated any defense of the unintended consequence; one could not avoid an unpleasant outcome by the subjective assertion that he did not understand his act to be unlawful, or that he did not contemplate a specific binding result. Derided by some modernists as unduly formalistic, the certainty of the common law allowed men to organize their activities and to accommodate their behavior to regular, common, known rules of order, similar in concept to the natural rules of order of the physical and praxeological universe.”

Read the entire essay here, http://www.thefreemanonline.org/columns/invasive-government-and-the-destruction-of-certainty/.


Egalitarianism: Unrealistic and Undesirable

In his essay Our Fair Share, written in 1984, Ridgway K. Foley Jr. writes the following:

“In the lexicon of the modern egalitarian, equality as a principle mandates transfer payments to even out existing natural or artificial differences. Passing for the purposes of this essay the possibility of achieving enforced equality by any system of redistribution,[4]focus upon the philosophical aspects of the equation reveals the barrenness of the purported analysis.

The fair share advocate perceives the inequality of appearance and talents naturally attendant upon the human condition; he decries this individuality, which he views as unfair disparity, and urges dull and desolate sameness, the absolute of reduction to the lowest common denominator. Down with Haydn and Monet, with Voltaire and Confucius! Seek the gray identity of those crea tures who contribute little or nothing to creativity and culture. Unconsciously or intentionally, his every action leads necessarily and convincingly to this cheerless end.

At the base, two aspects undergirding egalitarianism appear: a presupposition to power and a denial of essential humanity. First, the seeker after enforced equality wishes to impose an orthodoxy upon everyone about him to fit them into his subjective mold. He knows only power; persuasion and rationality dissatisfy him because they lead inflexibly to consequences contrary to his preconceptions. Second, the egalitarian dislikes what he sees when he looks at humanity. He wishes not to alter those things within his puny power, such as the uplifting of man’s material and spiritual existence by the development of new labor-saving devices or the composition of a beautiful work of art. Instead, his quest is to achieve the opposite, by beating down those about him who display any degree of innovativeness or originality. Yet reflection reveals that the egalitarian position amounts to a stubborn denial of the essence of humanity: the awe of unique creation and the mechanism of meaningful choice which unavoidably leads to differences in outlook, ability, goals, and appearance.”

Read the entire essay here, http://www.thefreemanonline.org/columns/our-fair-share.