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Law’s Not So Majestic Equality

We should not read the Constitution as being fundamentally opposed to greater equality in economic dimensions; neither should we fool ourselves into believing that the law’s promise of equality is complete, says BASTIAN STEUWER.

Bastian Steuwer | New Delhi |

Carved in stone on top of the iconic façade of the US Supreme Court are written the words “Equal Justice under Law”. The words encapsulate a wide self-understanding of lawyers that the law is equal for all and that promoting the law is a form of promoting equality.

India’s society is, however, anything but equal. Hundreds of millions are living in dire poverty with a small minority living luxurious lives of riches. India’s unequal development looks, in the words of Jean Drèze and Amartya Sen, like “islands of California in a sea of sub-saharan Africa”.

In light of such inequality, lawyer’s commitment to equality before the law sounds dangerously like the irony of Anatole France: “In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the street, and steal loaves of bread.”

The way lawyers think about equality is often radically different from how social scientists think about equality. Slightly simplified, the contrast is this. For a social scientist equality is about comparing material conditions of living between groups or individuals.

For a lawyer equality is about seeing whether the government distinguishes between groups or individuals in a certain manner. The gap between these two ways of thinking hinders our understanding of the value of equality and our understanding of the Constitution’s promise of equality. A theory of equality should explain both understandings of equality and why they capture an important political value.

Neither of the two interpretations of equality can be subsumed under the other. Social inequality does not only arise from discriminatory government policies. Discriminatory government policies are not only wrong when they lead to social inequality. Instead of trying to subsume one under the other, we should look for a more abstract understanding for equality.

The more abstract understanding of equality tells us that any government has to treat all of its citizens and everyone under its domain with equal concern and respect. Equal concern and respect are the sovereign virtue of governments. Not even those critical of equality deny this abstract form of equality.

Philosopher Harry Frankfurt’s article “Equality as a Moral Ideal”, for example, criticizes only economic egalitarianism, the idea that individuals should be equal in some economic sense.

What this indicates is that the real question for those adhering to the value of equality is which more specific equalities are demanded by equal concern and respect. Amartya Sen has put this crisply when stating that the real question for egalitarians is equality of what? The equality that lawyers are most familiar with is a form of equal citizenship.

A government that passes discriminatory laws fails to grant all citizen equal status as citizens and thereby treats some citizens with insufficient concern or respect. The case for economic or social equality can be made similarly. A government also fails to treat some citizens with equal concern and respect when some of the persons under its domain flourish in great wealth while others suffer in dire poverty. Such distribution of wealth is the product or outcome of the legal and economic system which the government has adopted.

The regulation of contracts, labour law, environmental regulations, taxation, and many other laws determine that some flourish while others suffer. A different set of laws would bring about a different distribution. Equality therefore also demands that individuals are equal with respect to some economic dimension. This dimension could be an equal access to advantage, or equal capabilities to lead a good life, or equal resources, or something else. Egalitarians also differ about the extent to which we can depart from equality in this dimension to improve the situation of some.

These are fascinating discussions, but of little practical relevance in India. Socio-economic inequality in India is so high that none of these ideals would justify it. This explanation resolves part of the tension between the two ways in which equality is understood. Instead of disagreeing about equality, lawyers and social scientists are highlighting different aspects of the same great value of equality. This understanding brings back, however, the parody of Anatole France. The law’s equality appears less majestic if it is silent about many social injustices. We can ask then how are economic equality and the Constitution related?

Why the Constitution Does Not Demand Economic Equality

Lawyers prefer to think of justice in terms of rights, so it is natural to think that socioeconomic rights are the connection between economic equality and the Constitution. The ever-expansive interpretation of Article 21 has led to a growing recognition of socioeconomic rights to food, healthcare, education, and the like. The recognition of such rights has alas not meant that much has actually changed for those less fortunate.

The experience of this jurisprudence is that one cannot decree poverty away by judicial fiat. But apart from the question whether socioeconomic rights are an adequate means to promote economic equality, there is a deeper problem with this approach. Socioeconomic rights are not about equality at all. To see this, we need to distinguish between comparative and non-comparative justice.

Comparative justice means that we can determine what someone is entitled to by comparison with others. Non-comparative justice means that we can determine one’s entitled solely by reference to this person. Socioeconomic rights are a matter of non-comparative justice.

A right to food means a right to have enough food. It specifies a threshold that has to be met irrespective of how much others have. Poverty is a similar concept. Poverty is about absolute deprivation. Equality, by contrast, is essentially comparative.

The link between economic equality and the Constitution might be thought to lay elsewhere. Article 14 provides each person within the territory of India with a right to equality. It has been called the “great equalising principle” by the Supreme Court. Does or can Article 14 fulfil this role of equalizing in one of the most unequal societies on earth? Genuinely addressing economic inequality requires a variety of policy measures across taxation, welfare transfers, education, health care, and many other subjects. Interpreting Article 14 as a genuine “great equalising principle” would remove all these policy areas from democratic control of the citizenry.

It would also remove the disagreement about which equality should count from the political arena. Someone who believes equality only demands formally equal rights or someone who believes equality only demands that everyone has enough to take part as an equal in social life would be excluded and unconstitutional views. By and large the Supreme Court has not engaged in any such exercise of large-scale interference with socioeconomic policy. In the pandemic it has, however, started adjudicating some cases which bear a similar logic.

The Supreme Court has, for example, mandated that testing for Covid-19 has to be made freely available. It later modified the order by stating that it has to be free only for those below the poverty line.

The rationale behind this judgment, endorsed by some legal scholars, was that high-price testing would lead to adverse health outcomes or clusters of adverse health outcomes for the poor. This is a redistributive rationale of economic egalitarianism but one that easily extends to countless other policies. Lack of free medical treatment means that the poor always have worse access to health care and are at higher risk of death. Lack of high-quality government schools means that children of the poor have lower chances of getting a good education.

An egalitarian believes that all of these are injustices because not everyone is equal in the relevant sense that the egalitarian endorses. But this rationale brings us back to the mistake of conflating Article 14 with the value of equality. Article 14 covers only part of equality. Many, including the most pressing aberrations of equality, are outside the purview of the article.

Why the Constitution Is No Obstacle to Economic Equality

Anatole France was right in one sense then. The law’s equality is less majestic. But this does not have to be cause for despair. Equality is a political value and one that needs to be fought for politically. France’s parody indicates, however, a second more troublesome problem.

When the law’s equality is used to undermine economic equality, the law’s promise to equality rings hollow. If the Constitution is interpreted as an obstacle to economic equality, it would fail the more fundamental duty of equal concern and respect. It would make it impossible for the state to equalize in a manner demanded by equal concern and respect. What we need to oppose then is the use of the Constitution as an anti-egalitarian instrument. A good example here is the controversy around an ordinance by the Kerala government to defer the payment of parts of salaries for government employees with monthly earnings of Rs. 20,000 or above.

The ordinance was brought in because the increased expenditure for welfare measures for those hit hardest by the lockdown made it difficult for the government to uphold both welfare measures and the payment of salaries. The decision here follows the rationale for economic equality: One set of laws, which maintains the payment of salaries, favours affluent government servants, another set of laws, which maintains the welfare measures, favors those least privileged.

Economic equality demands the second set of laws. While the initial government order setting out this change was struck down on procedural grounds, this does not indicate a deep tension between economic equality and the Constitution.

The subsequent ordinance has not been stayed but the case is still pending. Opposition to the ordinance comes from two fronts. One objection to the policy is that by deferring pay Kerala has failed to live up as a model employer. This objection draws a connection between Kerala’s policy and anti-worker policies in the private sector.

This idea disregards, however, both that the salaries of government employees are paid by all citizens via taxation and that public expenditure is limited. The decision how much to pay is a decision with opportunity costs for others.

The more governments pay in salaries, the less money they have available for providing public services for those not in government service. Paying well earning government employees more simply means not having money for those worse-off. If being a model employer requires payment of high salaries, then being a model employer means providing bad public services to the poor. The model employer standard should, however, not be read in such an anti-egalitarian manner.

The second argument against deferral (or non-payment) of salaries was that this violates the property rights of employees. In its initial order the High Court had observed that “payment of salary to an employee is certainly not a matter of bounty”. But is the idea that reducing pay of government employees is a violation of property rights sound? Paying less is equivalent to paying more and taking the difference in tax.

The difference is merely an accounting difference. Is paying more and taking the difference in tax a violation of property rights? The rhetoric that property rights are violated assumes what Liam Murphy and Thomas Nagel have called “everyday libertarianism”. A libertarian believes that individuals have property rights to their salaries.

Taking away property against one’s will is a violation of these property rights. Such libertarians have therefore consistently decried all forms of taxation as a form of theft.

But since India’s constitution plainly permits taxation, libertarianism cannot be a constitutional principle. Maybe the state is only permitted to take a fair share from everyone and not more. Chief Justice Bobde might have had such an idea in mind when he stated that excessive taxation is a form of injustice. However, reflecting on what a fair share of taxes is soon unravels the whole idea. In a fascinating recent book economists Emmanuel Saez and Gabriel Zucman discuss the evolution of taxation in the United States.

Their main claim is that taxation no longer follows a fair share because it is no longer the case that those with higher incomes pay a greater share of taxes. Critics argued that Saez and Zucman should include welfare payments in their calculations. This way we identify the balance of what individuals pay minus what they get back from the government.

But why limit it only to welfare payments? The rich also benefit from public university, the rule of law, and some government spending, for example for airports, almost exclusively benefits the rich. Following this logic, we are back at the start of my argument. What matters is the overall outcome distribution. If the state believes in greater equality, it can do so. We can fend off the worst form of parody that Anatole France has painted of the idea of equality before the law. We should not read the Constitution as being fundamentally opposed to greater equality in economic dimensions. Neither should we fool ourselves in believing that the law’s promise of equality is complete. Courts and lawyers which pride themselves to be the guardians of equality should be mindful of the grand scope of this sovereign virtue. Equality is matter for all of us.

(The author is a moral and political philosopher working at the London School of Economics.)