From the keyboard of Maverick Philosopher (“Is There a Defensible Sense in Which Human Beings Are Equal?“):
Empirical inequality cannot be denied: by the various empirical measures there is plenty of inequality among individuals and groups. (Trivial example: men on average are taller than women. Height is an example of an empirically measurable attribute.) So if human beings are taken solely in their empirical and material natures, or if human beings are nothing more than material beings, then talk of the equality of all human beings is either false or trivial. (That all human beings are equal in that they all have been born at or near the surface of the earth is empirically true, but trivially true.)….
Given the plain fact of empirical inequality, is there any defensible sense in which human beings could be said to be equal and in possession of equal rights?…
[A] person [in the descriptive sense] is a conscious and thus sentient individual, capable of self-consciousness, possessing feeling and will and memory and the capacity to reason and plan and seek the truth about itself and everything else…. A person in the normative sense is a rights-possessor which, in virtue of having rights, induces in other persons various duties. For example, my right to life induces in you the duty to refrain from taking my life, and your duty derives from my right. In this sense rights and duties are correlative….
My claim, then, is that we are all equal as persons in the descriptive sense, and therefore all equal in the normative sense. That is, if any one of us is a rights-possessor in virtue of being a descriptive person, then every one of us is a rights-possessor in virtue of being a descriptive person. And all of this regardless of sex, race, age, and any other empirical feature. We are equal as persons even if my will is stronger than yours and my intellect more penetrating. We are equal as persons even if you are more compassionate than me.
The point, then, is that equality is grounded in personhood, not in animal constitution….
The above definition of ‘person’ allows for persons that are not human beings and human beings (genetic humans) that are not persons, as well as persons that are human beings…. Examples of humans that are not persons, on my definition of ‘person,’ would be anencephalic human neonates. They would not be persons because of their lack of capacity to develop language and reasoning skills. (For more on the anencephalic business, see Potentiality and the Substance View of Persons, the comments to which were good.) But these anencephalic individuals are nonetheless genetically human as the offspring of human parents.
To repeat, our equality is grounded in our shared personhood despite our considerable empirical differences. Personhood cannot be understood in natural-scientific terms.
I will try to reduce this to a syllogism:
1. A person is a human being who is a conscious and thus sentient individual, capable of self-consciousness, possessing feeling and will and memory and the capacity to reason and plan and seek the truth about itself and everything else. (A human being who lacks the potential for becoming all of those things is not a person.)
2. All persons are equal, in the sense that they all possess or exhibit personhood, as defined in 1.
3. Given that all persons are equal, if any one of them is a rights-possessor, all of them possess the same rights by virtue of their inherent equality.
I am bothered by the distinction made in point 1 between human persons and human non-persons. This opens the door to the kinds of distinctions that are used to justify abortion and involuntary euthanasia.
Point 2 merely says that a person is a person, as defined in point 1. This is a trivial definition of equality. Are Hitler, Stalin, and Mao “equal” to Francis of Assisi, John Paul II, and Mother Teresa? By asking such a question am I proposing the kind of arbitrary distinction that I object to in point 1? (Arbitrary because it emerges from an a priori analysis rather than experience.) The answer is no, as discussed below.
The rights in point 3 seem to be free-floating Platonic entities, independent of the existence and socialization of human beings. But rights are not like that. Nor are they unitary; an all-or-nothing set that is bestowed on every person. Rights are complex and socially constructed*, and they arise from distinctions of the kind that I make between a Hitler and a Mother Teresa. There are persons who are so despicable that they should have no rights; unlike unwitting fetuses and helpless old people, they should be erased from the face of the earth for the good of humankind.
Social intercourse is capable of generating innumerable gradations of rights, from a positive right to be cared for in one’s old age to a negative right to be allowed to die in peace without the intervention of “life saving” measures. In between are such rights as the right to resume living among free human beings, working at gainful employment, enjoying normal social pleasures, and so on, after having been imprisoned for committing socially defined harms.
Equality, then, is the enjoyment of the same socially bestowed rights as others who are similarly situated (e.g., not incarcerated, eligible for care).
One way of defining liberty is to say that it is the scope of action that is allowed by socially agreed upon rights. Negative rights define what one may not do to others; positive rights define what others must do for the beneficiaries of such rights.
* In the best case, the state would enforce socially constructed negative rights (e.g., the right not to be murdered), and would not be a tool for the fabrication and enforcement of so-called positive rights. Such rights do arise from social intercourse, but when the state enforces them it imposes burdens on persons who are not party to the creation of such rights (e.g., the duty of care for others may vary considerably from culture to culture, even within a nation-state). State and society are synonymous only in small, cohesive, and kinship groups.
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The Harmful Myth of Inherent Equality
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Natural Law and Natural Rights Revisited