Sunday, November 18, 2007

The Secular Case for Life-Equality Under the Law

In my previous post I presented arguments from bd-from-kg that showed that the moral justification the pro-choice contributors offered were flawed. As the discussion progressed the pro-choice posters would continue to throw up different criteria. It was obvious that they weren't starting with morally relevant principles and proceeding to find out where they lead. They were designing a criteria to allow the killing of fetuses while protecting the lives of humans that are further developed. One poster claimed that really not all life is equally worthy of protection. There is a difference between a 90 year old man and a 28 year old father. Here is how bd responded.

It saddens and frightens me that it is necessary to answer questions like this today from serious, intelligent people. It’s as though all the knowledge and understanding accumulated over several millennia has disappeared down a memory hole.

The idea of giving some people legal preference over others is not new; it is very old. In fact, it is the most natural idea in the world. It is what all governments did throughout most of history and what most of them do today. The justification is always that some people are more “important” to society, others are less important, and still others are positively harmful.

Of course this is really true; no sensible person can doubt it. The problem comes when you try to recognize these differences in the law. As soon as you do this, everyone’s legal status depends on how “valuable” those in power consider him to be. Those who are deemed sufficiently valuable are able to do as they please without having to worry about petty concerns such as whether they are breaking the law or destroying the lives of less “valuable” citizens. They can be sure that their lives, property, and interests will be vigilantly protected. Those deemed less valuable are far more vulnerable. They are essentially at the mercy of the privileged. And the authorities will not be nearly concerned about crimes that may be, or have been committed against them; it just won’t be worth much of their time. As for the least valuable – those who are considered a positive burden on society – they will be lucky if they are not driven away, or enslaved, or exterminated.

No doubt you do not intend all this. You want only those who are “clearly and objectively” more valuable to be given preference over those less valuable. But even if there were a “clear, objective” measure of a person’s worth, and even if it were desirable for the law to treat people accordingly, those in power would not apply such a standard. What they will apply is the measure of what is most useful to them. In practice any standard based on “objective value to society” is no standard of all; it is just an invitation to the arbitrary exercise of power. The experience of thousands of years, with every form of government known to man, has confirmed this sad truth. The standard of “objective value” – of treating each man according to what he is “worth”, or “deserves”, or “can contribute to society” (they all come to the same thing in the end) is the formula for tyranny. If the government is a democracy, it will be tyranny of the majority, but tyranny nonetheless.

Only one thing has ever been found to offer any protection against tyranny: the principle of equality under the law, or the “rule of law”. Thomas Jefferson expressed this idea eloquently in the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal”. The idea was revolutionary precisely because it is so counter-intuitive: after all, it is self-evident that all men are not created equal. But the idea was that the law would not be permitted to recognize, or to take cognizance, of these differences, except insofar as they are manifested in violations of the law itself. And any such violation was to be treated the same, no matter who had committed it.

This principle has by now been implemented to greater or lesser degree in many countries by now, and the results have been phenomenal. There has been an explosion of freedom, and a corresponding increase of happiness, in the countries that have adopted this principle, even if imperfectly, while those that have not have remained mired in misery and oppression.

Obviously the principle of equality under the law has costs. Since some people really are more valuable to society than others, and others are quite worthless, treating them as equal under the law will result in suboptimal results in the short run in a great many cases. But the benefits of adhering to the principle have been found to far outweigh these costs.

It is often tempting to abandon this principle in specific cases when it appears that doing so will have some benefit to society. But to make an exception is to repudiate the principle. You cannot say that no one is above the law, but Smith is above the law. You cannot say that everyone is to be given the equal protection of the law, but Jones will not be given the equal protection of the law.

Another perennial temptation is to define whole classes of human beings as non-persons, and thus not entitled to equal treatment. Thus blacks can be enslaved, and Jews can be exterminated, because they aren’t “really” people, even though they are plainly human beings. (This is why the Nazis referred to Jews as “vermin”.) Needless to say, this subverts the principle to the point of annihilating it entirely. If we can define which human beings are persons, “equality before the law” is just an empty phrase. The whole point is to protect those who are not popular, those whom many do not sympathize with, those who are unwanted, those who are considered to be of little “value”. To declare some human beings to be “nonpersons” is to reject the whole concept of equal protection of the law. The principle is meaningless unless there are no exceptions. It is only the guarantee that there will be no exceptions that makes our rights secure.

Abandonment of this principle subverts the very foundation of our society. It is an arrogant refusal to accept the lessons of history, which the founding fathers knew so well, and which have been abundantly confirmed in the last two centuries. It must inevitably lead to the loss of our freedom. We cannot claim the equal protection of the law for ourselves while denying it to others. And nothing else will serve as a bulwark against arbitrary power.

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