Micha Ghertner has a thought-provoking post about equality which reminded me of Anthony de Jasay’s essay On Treating Like Cases Alike, (which appears as chapter 11 in his brilliant Justice And Its Surroundings.) In it, Jasay raises some challenges to the concept of “equality” to which I do not know the answer, and which, frankly, worry me a bit. Primarily, he attacks the concept of “generality,” as used by public choice theorists. According to these theorists, the public choice problem can be curtailed in part by constitutionally prohibiting special interest legislation—that is, making sure that lobbyists can’t get laws passed to steal from some and give to others. But, Jasay writes, “[g]enerality cannot be sufficiently defined to allow us to tell rules that are general from those that are not.” He explains
The “equal treatment” scheme of a distributive rule is to/from each, according to...” The blank space is filled by some function f(x) where x is the reference variable common to a class of cases, deemed relevant for holding that those cases ought to be treated alike.... What this formula fails to decide is whether the relevant variable is x, y, w, z, or none of them. Which, if any, meets the generality principle?
The problem, Jasay points out, (here and in other chapters, particularly the important chapter 12) is that the more general the rule, the less specific the content of that rule can be. If resources taken from one class are to be given to another class, something must fill what Jasay calls variable x. The more specific the criterion, the more resources can be given to members of the class who fall within the circle you’ve drawn, because it will contain fewer people. But it will also be highly discriminatory. If you say “to each according to the fact that he is a trumpet player,” then you’re sure to satisfy the needs of trumpet players. But if you say “to each according to the fact that he plays a musical instrument,” you’re going to have a tougher time ensuring justice, because some musicians might get trumpets who ought to get flutes and so on. Eventually you get to the point where your class is “all people,” whereupon the specialization of resources to need is so bad that people get what they do not need and do not get what they do need.
I’d be interested in Ghertner’s thoughts on Jasay’s argument—and particularly on whether he thinks that his proposition (that it is “wrong to discriminate on the basis of nationality” in distribution of resources) isn’t really just an instance of Jasay’s general rule that the “it is wrong to discriminate” proposition is essentially meaningless?
My disclaimer: I emphatically believe that all men are created equal and that it is wrong to discriminate in almost all relevant cases. But I’m not confident that I have an answer for Jasay’s point.