Most people agree that fairness is an important normative ideal. It is not always clear what is meant by fairness, but many would argue that fairness demands equal treatment, at least when it comes to deriving the rules and laws by which society is governed. Although some anarchists believe there is no need for rules governing society, other than the defense of private property rights, many people support the classical liberal ideal of equality under the law. It may therefore be helpful to clarify what is meant by equality in this context.
The principle of equality is generally reflected in two main ideas. Formal equality is a standard by which everyone has the same rights. It is founded on the principle of due process and procedural justice in which like cases must be treated alike, and cases that are different must not be treated as if they were alike. Substantive equality is the converse principle. It means that cases that are otherwise alike must not be treated alike if the people concerned differ in their personal identity characteristics such as their race, sex, or religion. It also means that cases that are different must be treated as if they were alike, in order to equalize different people.
The principle of substantive equality, therefore, departs from the classical liberal ideal by shifting its focus from the objective elements of the case to the personal identity of the actors involved. For example, it holds that if two candidates achieve the same score, but one is white and the other is black, they should not be treated the same because black and white are fundamentally not the same. This notion that people of different races should not be treated the same, because they experience life differently, was the premise of the slogan “black lives matter.” Special treatment for blacks was said to be necessary to equalize them with whites. By the same token, if a white candidate achieves a higher score than a black candidate, substantive equality holds that they should be treated as if they had the same score.
The difference between formal and substantive equality is sometimes expressed as a difference between “opportunity” and “outcome.” But this is not quite accurate, because the concept of equal opportunity may itself be viewed as either formal or substantive. To due process advocates, equal opportunity is only compatible with formal equality if it is taken simply to mean that nobody is barred from participation in any activity. Anyone is free to show up to the starting point of a race, and may the fastest runner win. When they say that the opportunity to participate in a race should be “equal,” all they mean is that nobody should be barred from participation. This notion of “equal opportunity” overlaps with that of liberty, as it expresses the ideal that everyone must be at liberty to participate, should they wish. However, to supporters of substantive equality, equal opportunity requires that the opportunity to win a race must really and actually be equal. This does not merely express liberty to participate, but rather requires the equalization of starting points, or equalization of chances in life, among those who are differently situated. Proponents of substantive equal opportunities argue that if one runner has enjoyed the benefit of expensive training which others have been unable to afford, then all runners do not in fact have an equal opportunity to win the race—as they see it, the race is unfair from the outset even though everyone is at liberty to participate. They argue that everyone’s opportunities are not really equal due to the pre-existing disadvantage suffered by some. For example, Catherine Barnard and Bob Hepple, in their article “Substantive Equality,” view “social disadvantage” as a factor that may prevent opportunities from being equal. Those who inhabit the underworld do not have an “equal opportunity” to find a job as those who are well connected. Those who have an attractive appearance do not have an equal opportunity with those of unfortunate appearance. Barnard and Hepple explain:
The procedural view of equal opportunities involves the removal of obstacles or barriers, such as word-of-mouth recruitment or non-job-related selection criteria. This opens up more opportunities but does “not guarantee that more women or minorities will in fact be in a position to take advantage of those opportunities” because their capacities have been limited by the effects of social disadvantage. A more substantive approach to equality of opportunity would require a range of other special measures, usually referred to as “positive action”, to compensate for disadvantages.
Many rationales have been given for substantive equality, one of which is that it reflects modern democratic values. In the age of identity politics, it is said that people’s identity matters, and that, therefore, the democratically-ordained priority is to identify everyone’s race, sex, or religion, in order to determine if they have been fairly and equally treated. The blind justice of the classical liberal ideal, in which justice does not take identity into account, is said to be outmoded, in that it fails sufficiently to recognize “the dignity, autonomy and worth of every individual” as Barnard and Hepple put it. Supporters of this view insist that it is essential to everyone’s self-worth that they should “feel seen,” and if others enjoy more visibility or recognition than they do, or if some feel excluded or ignored, they view this as a failure to ensure substantive equality.
A second rationale is linked to raising the standards of substantive good treatment. The argument is that even if everyone is treated equally, that does not guarantee that they are being treated well. Treating men and women equally badly may satisfy the demands of formal equality as they have been treated the same, but substantive equality would require identifying those in society who are well-treated and equalizing everyone upwards to meet that higher standard. In this way it is supposed that the substantive well-being of all will be meaningfully enhanced. As Barnard and Hepple explain,
So there is no violation of the [formal equality] principle if an employer treats white and black equally badly, or sexually harasses both men and women to the same extent. A claim to equal treatment can be satisfied by depriving both the persons compared of a particular benefit (levelling down) as well as by conferring the benefit on them both (levelling up) [footnotes excluded].
The political concept of “equity” is another form of substantive equality, one that has been carried the furthest in the endless drive to achieve the equality of humanity. Equity seeks the procrustean uniformity of communism, by focusing not only on personal identity but also on ensuring equal outcomes among all members of society—by resort to violence if necessary. Yet the equality it seeks to achieve is a sham, as Thomas Sowell argues in his book Intellectuals and Race:
Many people who advocate what they think of as equality promote what is in fact make-believe “equality.” In economic terms, taking what others have produced and giving it to those who have not produced as much (or at all, in some cases) is make-believe equality.
