Ludwig von Mises defended the principle of equality before the law as it was understood within the classical liberal tradition of “the eighteenth and the early part of the nineteenth century.”
Eighteenth century liberalism rejected the notion of “a select class of privileged persons” who had special rights and freedoms. The fundamental purpose of equality under the law was to ensure that no group is granted rights solely by virtue of membership, rights that remain unavailable to those outside it.
But what now passes for classical liberalism does not reflect the same principle. Much of what people now call classical liberalism comes from the progressive egalitarianism of the 1960s. A key principle in modern “classical liberalism” is the notion of “equal opportunities” that did not exist in the eighteenth century.
Modern notions of equal opportunities, even though misleadingly described as “classical liberal,” are increasingly institutionalized as group rights and protections. The premise of equal opportunities is grounded in group identity, in the sense that the only way to determine whether opportunities are equal is by comparing the experience of one’s own group with that of others.
This premise—that group identity is the relevant unit of analysis for defining rights—prevailed before the classical tradition arose. Rights were historically based on one’s position in what Mises described as the “social pyramid,” for example whether one was of “noble birth,” a “lord” or a “serf” of lowly birth. Mises explained that, “In the precapitalistic society those had been paramount who had the strength to beat their weaker fellows into submission.” Only the strongest prevailed. The classical ideal of equality under the law was formulated precisely to reject that.
Now there were only citizens with equal rights. No one was handicapped or persecuted on account of his nationality, his opinions, or his faith.
Yet the distinction between lord and serf has now been replaced by group identity distinctions. Persecution based on political opinion and party affiliation has become prevalent. Double standards often apply in the protection of free speech.
In Minnesota a young mother was convicted of using a racial slur against a black family, despite the theoretical application of the First Amendment to all citizens.
In the United Kingdom, a conservative mother was jailed for two years for expressing her outrage on social media, following the murder of three children, using the words “set fire to all the hotels [housing immigrants] for all I care. If that makes me racist so be it.” But a left-wing politician who called for protestors to be slaughtered in the streets using similar language was said to be exercising his fundamental right to free speech.
Free speech too often depends on which group one has offended. Once free speech is vested in some but not others, inequality before the law is the result.
It is ironic that, in a time when the concept of equality before the law has become well established in theory, what prevails in practice is the return of group privilege. The only difference is that group privilege now depends on personal or political identity rather than social hierarchy and fortunes of birth.
This uneven application of the law is not a classical liberal principle. The classical principle is that everyone has the right to free speech. Mises emphasized the importance of the law promoting the general welfare, rather than conferring special privileges on favored groups:
Liberalism has always had in view the good of the whole, not that of any special group. . . . Historically, liberalism was the first political movement that aimed at promoting the welfare of all, not that of special groups.
. . .
Liberalism is not a policy in the interest of any particular group, but a policy in the interest of all mankind.
That is the foundation of Mises’s preference for peace over war. War is ruinous to all, including the victor. Peace sustained by equality before the law benefits both the weak and the strong—“peace is for him, the stronger, just as advantageous as it is for the weaker.” Allocation of rights and privileges by group membership leads only to hostility and conflict.
Whoever denies rights to a part of the population must always be prepared for a united attack by the disenfranchised on the privileged.
What seems to have happened is that “social justice” activists campaigned against unfairness to black people and then commenced demanding unfairness to white people. While social justice activists are no longer silenced, they have adopted the mantle of silencing others.
Further, as Mises explains, the privilege that follows from merit is not to be viewed in the same light as privilege conferred by state edicts because, in his view, the privilege that follows from ability and training is “beneficial to the general public.” He gives the example of “privilege” conferred upon lawyers to become judges, while those without legal training lack the same opportunity. The lawyer enjoys a benefit that is not available to others, but the general public benefits from well-qualified judges.
The same analysis applies to private property. The right to private property requires that all must have the right to own property and the protection of law in respect of their property. Private property privileges the rich over the poor, but it benefits the general public by driving material prosperity and social mobility.
In contrast, with the privileges conferred on favored political or identity groups, there is no benefit to the general public. The only benefit is to the privileged group, the social activist class, and the court intellectuals who defend the system. We would do well to heed Mises’s warning against these forms of group privilege:
Privilege is an institutional arrangement favoring some individuals or a certain group at the expense of the rest. The privilege exists, although it harms some—perhaps the majority—and benefits no one except those for whose advantage it was created.
Resentment, hostility and brewing social conflict are the only results. One has only to see the fallout in the case of Shiloh Hendrix to understand the significance of this:
. . .there are so many historical landmark cases that have been argued and decided at the United States Supreme Court, the Minnesota Supreme Court, and it has been long-settled law that speech is protected no matter how vile, no matter how offensive, racist, offensive, crude, ugly, vulgar. I mean, it’s the United States of America. Regardless of what your opinion is or how your feelings might be hurt by awful or ugly language, we protect it here.
That principle should apply to all without favor. Free speech should extend not only to those who say rude words, but also to those who express pride in their history and heritage. Americans who defend their Confederate heritage in the South, who want the liberty to sing Dixie at public events, also have a right to free speech—no matter how much social justice activists might claim to find that heritage offensive.
