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/.

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