Matthias Mahlmann The Antinomy of Freedom and Equality 1. Freedom, Equality, and the Law of Modernity If one allows oneself some reflective moments, a rather distanced view unconcerned with a finer charter of the various provinces of the realm of law, legal regulations protecting the equality of human beings have an interesting feature. They form a constitutive part of the very essence of the material concept of the law of modernity and are intrinsically related, not just opposed, to the project of liberalism. This is first true for the body politick as such and its legal framework. The core property of modem statehood is its emancipation from feudalists bonds and the establishment of a concept of citizenship that is based on a concept of equality of human beings. This concept has many sources: for example, the classic social contract theories.1 authors of the Natural Law tradition,' and. of course, the law of reason of the Enlightenment.1 The history of thought offers other examples of the thesis that the equality of human beings is a bedrock principle for the normative order of liberal human associations. Since the age of the constitutional revolutions it is, in addition, not only such a formative principle in theory, but also the constitutive clement of the real normative architecture of lb* body politick through the insiilutions mentioned before, especially equal citizenship status and corresponding rights. To be sure, it took a long time to make this principle a social reality. There were many obstacles to overcome, and not only the resistance of the feudalist^, aristocratic, and monarchic social powers. In addition, the exclusion, most 1 Fot the history of liberalism. *« J. Locke. Tv.« Treatises on Government (1689). " See. eg. S. von Pufcodorf, De Officio hominis el civis juxta legem naturalem Hbri duo. |The two books on Ihe duly of man and citizen according to natu,a| fetf], Book I. Vit. (1673). 1 See. e.g.. L Kant. Practical Philosophy. (M J Gregor, (trans, and cd». 391(1999). A. SaK>(i '• >. Abuse The Dark Side of Fundanwrnul Right* 217-232. ■O 2006 Lievik Inimwational Publishing. Primed in Tlvc Netherlands. -M K Mutom M a» i wow notably of women and slaves, by the social forces demanding emancipation had to be challenged. Other patterns of exclusion (for example, on the base of sexual orientation) that created much senseless suffering have only been addressed with some sincerity very recently. Today, many social orders exist that do not recognize the equality of human beings in the political sphere at all. In all others, there arc things to be improved. But one thing is certainly true: the battle for legitimacy was lost for these kinds of illiberal and fundamentally non-egalitarian orders a long lime ago. Any political order fails the most basic test of legitimacy when it fails to realise die mosi basic aspects of the cqualily of human beings concerning basic rights and participation in the political process. This equality is. of course, the equality of worth of human beings, as human beings arc manifestly and fortunately quite different in all kinds of ways. This equality entails a stand towards liberty. A main consequence of the equality of worth of human beings is their equal liberty. As a result, nobody would argue that the equal right to vole unduly limits the freedom of an aristocrat (or some other privileged group of people) to influence public affairs, because there is no limitation of freedom. Yel, quite to the contrary, of course there is. In comparison to other arrangements (for example, of the skewed suffrage of the past), the equal right to vote does limit the freedom of the former privileged classes. But we would all agree without any thought that it docs so quite duly and legitimately. A second example illustrating the same point comes from private law. The equal freedom to enter into contracts is another watershed element of modern law. [i is the very midwife of the economic order wc live in. It is again something very alien to other times, where all kinds of limitations of contractual freedom existed, especially as to the contractual regulation of labour. The story of how the feudalistic bonds in (his respect had to be broken to make a new economic order possible is a commonplace of social history. The universal access to the contractual regulation of one's own affairs is a great advancement of social history. One should not forget, however, that to reach (his state of affairs, formerly privileged groups lost certain freedoms. They were, for example, deprived of the possibility to bind other human beings and direct their lives unilaterally in the framework of feudal relations without having to enter into the reciprocal (at least in principle, thought the social reality might be different) relations of a contract. These two examples show a simple truism. Law that limits freedom for the sake of the equality of liberty, in order to maintain the equality of worth of human beings, creates the legal space we naturally operate in and is the jural air wc breathe in the age of modernity. This truism teaches an important lesson: there is agreement in principle that there might be an antinomy between the desire of unlimited freedom (nice as it might be) and equality. But this practical collision can be reconciled in a civilised way. This is what modem law at Tis Amtini >my or- Freedom and Equali rv 219 its core is about. Il is the ground we walk on in very essential matters. The reconciliation is produced by something one might call an anti-discrimination law in a broad sense and of such a basic character that it is widely forgotten that the legal regulations are actually directed against discrimination. But the point of the often constitutional guarantees of equal citizenship rights or the preservation of equal contractual freedom in private relations, etc., is, of course, to protect against unequal treatment of human beings because ofsome characteristics of a personal or social nature, now perhaps unimaginable, but prevalent in the past. These introductory remarks are intended to clear the ground for a sober discussion of the problems of modern anti-discrimination in the more narrow sense this term is usually and rightly used. The law is directed against specific discriminations of specific groups by officials and private persons. These remarks should make clear that the ideologically healed tone sometimes accompanying these debates Ls beside the point. The question is not whether such laws introduce some kind ofunheard of limitation of freedom substantially alien to the law as it stands, but whether or not they successfully continue the project that constitutes the law of modernity: the project to protect adequately the freedom and equality of humankind. The following remarks will not enter into any technical discussions.4 They want to proceed 10 continue to state concisely whal anti-discrimination law is about from the point of view of legal ethics and how its adherents can deal with fundamental challenges mounted against it. To this end, the following questions will be addressed: - What concept of justice is convincing? - What is the relation between freedom and equality according to this concept ofjustice? - How docs this concept ofjustice relate to anti-discrimination law? - What docs all this have to do with efficiency? Some of these questions are rather grand ones, so the remarks will certainly not be conclusive, but perhaps good enough to point productively in a promising direction. * For an instructive overview of various standpoints in the discussion, tee. eg., C. MacCruddcn (Ed.). Anti-Discrimination Law (2003), with a very illuminating introduction; C. MacCruddcn. "The Ne» Concept of Equality," Utk delivered al the European Academy of Law, Tries (2 March 2003): S. Fredman. Discrimination Law (2002) For some more technical lemaiks on the German situation, ef M. Mahtmann, Prospects of German AntUDiscrtmlnalum Lav, 14 Tramnat'l L. * Ccmtemp. Probs. 1045 (2005); M. Mahlmann & B. Rudolf, Handbuch. Ann-Diskriminicrungsrccht. (Manual on iuitt-dixrimin.iiion law|, (forthcoming!. 220 Matthias Mahimawn 2. A Concept of Justice and Its Relation to Liberty Lei us turn lo the first two questions, the concept of justice and its impact on the relation between freedom and equality. A very good starting point to refleel upon the idea of justice and liberty (one could pick others) is a passage where the concept of justice does not appear. Kant famously formulated: "Freedom (independence from being constrained by another's choice), insofar as it can coexist with the freedom of every other in accordance with a universal law, is the only original right belonging to every man by virtue of his humanity."5 Kant continues right after this formula with acknowledging lhal he has stated more than just a liberal principle: This principle of mnaie freedom already involves the following authorisations, which are not really disinct from il (as if they were members of the division of some higher conecpt of a hghl): úmaie a/udily. lhal Is. independence from being bound lo others 10 more than one con in mm bind them; hence a human being's quality of being his oun master (sni iuru)ý Kant is quile right with this observation about the connection of (his formula of right and equality. His right to freedom is one under the law of universalisalion. Human beings only have a right to freedom that is universatisable. Universalisation. however, presupposes two things: the equality of the worth of human beings, and the basic normative principle of justice that equal entities (as human beings are according to the first presupposition) in fact have to be treated equally. Universalisalion has a base only if from the standpoint of ethics every human being, due lo these two presuppositions, counts equally, and his or her concerns have to be taken into account. The core of equality for Kant is equal autonomy. Equality means, therefore, at its heart, thai human beings are not subjugated under anybody's rule and in tum do not have ihe moral power to dominate others. The connection of freedom with equality establishes the link to justice. Kant does not make it explicit, and in Kant's ethics in general (on Ihe surface, and in many historical reconstructions of his theory) justice plays no prominent role. But it is clearly present in his argument. Kant takes a distributive stance: Ihe basic good 'freedom,' as autonomy, is to be allocated in an equal fashion. That is Ihe basic point of his argument. Accordingly, Kaní writes in the context thai ihe law of freedom authorises, "to do others anything thai docs not in itself diminish whal is theirs."7 This leads lo the heart of Kant's ethics, which is only on the surface a formal ethics of universalisation. but in its core a material dhics of the equality of worth of human beings. This equality of worth, the fact thai human beings arc ends in themselves (their dignity) implies rights, most basically, the right lo an amount of freedom that is equal to that of olher ' See. e.g., Kant, supra note 3, ai393. * Id. at 393-394. ' «.at394. The Awimomy of Freedom and Equality 22! human beings, as nobody can legitimately claim more. The dignity of human beings as ends in themselves and Ihe commands of justice give rise lo a system of liberty. This syslem of liberty is not just the sum of the contingently drawn spheres of physical possibilities of various individuals lo acl without obstacle, but a system of legitimately determined normative freedoms. Il is the realm of right, not of factual license. Thus, in Kant's formula, freedom and equality are thought together, intertwined, and reconciled in the ethics of the Categorical Imperative and its law of universal autonomy, which is an implicit law of justice. This kind of argument is not the invention of Kant. After him, others have restated its result, with a sometimes conceptually very advanced apparatus and an explicit connection to juslicc.'The concept of justice thai most successfully accounts for the moral judgements behind these theories (they might accept it or not) is ihe concept of justice as proportional equality. According to this principle, two entities have lo be ireated proportionally equal in two dimensions. First, the treatment has to be proportionally equal to the occasion that causes the treatment: a reward proportionally equal lo Ihe merit, the punishment proportionally equal to Ihe guilt, etc. Second, the treatment has to be equal in relation to other cases. The second aspect is relevant for the distribution of goods under the conditions of scarcity and the object of attacks of non-egalitarians9 that fail to convince.10 This principle has lo be applied lo various distributive spheres." These spheres have to be delineated, and Ihe criterion for the distribution in each sphere has to be determined. Some cases are easy in this respect—no one would award grades according lo need, or healih care according lo beauty. Olher cases are more difficult. It is an insight as old as ihe Aristotelian theory of justice that the determination of the criterion of distribution as to certain spheres of distribution is the root of practically all and certainly the socially and politically most relevant fights about justice.1-To take one of the important antique examples, which concerned Plalo. among others:" Are political rights to be distributed according to natural merit, as in a aristocracy; as to liberty, as in a democracy; or as to wealth, as in an oligarchy*? In each case the principle of proportional equality is applied, only the criterion of distribution varies. There is a further dimension of complication, because in modernity a basic consensus has developed thai on a very fundamental level, human beings arc * The classic example in recent literature is J. Rawls. A Theory of Jusike (1999). J. Habermas. FokliriUl und Geltung, f Between Facts and Norms), (19921 derives from lbe discourse principle a system of equal lights * See. e.g., J. Raz. The Morality of Freedom (1988) In Cf. S. Goscoath, Gleiche Gerechtigkeit. Grundlagen eines liberalen Egalitansmus. (Equai jusiKe. Foundations of liberal egalitarian ism j. (20041 " The "spheres of justice," as M. Walzer, The Spheres of Jusricc (I9S3|. nicely put iL ,: Aristotle. Nicomacheon Ethics, Book V. 11 Plato, Nomoi VI. 757. 222 Matthias Mahlmann equal, no! in the sense of descriptive equality, but in the sense of the cqualily of worth, or as formulated today, of dignity. Therefore, the different spheres of justice demand for differentiation, the equal dignity for equality. The core riddle of a full theory of justice is therefore to lind convincing criteria for the allocation of goods in rationally established spheres of distribution and to balance the ensuing difference with the basic equality of human worth. The first question has certainly seen some progress since Aristotle. Thai it could be conclusively argued that political rights should be distributed according to inborn merit of class or wealth, for example, is not a seriously entertained thesis of political justice anymore. Other problems persist: for example, as to the spheres where achievement should count for distribution and what achievement actually means. Is a nurse achieving more or less for society than an investment banker and in which respect? The second problem of relating difference established in certain distributive spheres to the equality of worth of human beings in general poses nothing short of the fundamcrnal problem of an equitable society- -a problem that not surprisingly, will not be solved here. Mow does this concept of justice relate to concepts of justice that are today discussed under headings like equality of treatment, equality of result, and equality of opportunity or resources?1,1 Equality of treatment demands equal treatment in a formal way. This kind of equal treatment can be. but is not necessarily, consistent with proportional equality as a foundational principle. In any social arrangement, there is an important place for it. In a legal system, it is. to a certain degree, the core of the matter. For a human right to free speech, for example, it is and must be irrelevant whether the speech is valuable, profound, and fostering the social good or useless, silly, and harmful. For the law of restitution, it docs not matter whether the vase destroyed was hurting the eye of the beholder or not. The abstractness of the formal equality is a constitutive part of its liberal value. This is why Anatole France's notorious quote about the prohibition to sleep under bridges and its different effects on rich and poor sounds rather hollow if misunderstood as the whole truth about the law.11 But the great virtue of abstractness can turn into a vice if it fails to account for differences that are normatively relevant. If that is so, this kind of formal equality can mean considerable injustice and remedies have to be " R. Dworkin. Sovereign Virtue <2000>. " This is a very relevant point There are some pans of post-modern and feminist thought thai pursue a rather radical critique of the form of law a.« «uch. especially its generality and abstiaetness. ll is maintained that this form of law is unable lo accommodate difference and heterogeneity appropriately. For the most radical version of this kmd of cnlique. see 1, Denida, Fotce oj Law. in D. Cornell. M. Rosenfekf & D. O. Carlson (Eds). Deconstruction and the Possibility of Justice 59 eiseq- (1992), where he even goes so far as to sec in human rights a» embodiment of the Holocaust and its denial of heterogeneity. For some comments on (his. see M. Mahlmann. law and Farce: 2Mi Century Radical Ixgal Philosophy. Posi-Modernlsm. and the Foundations of Law, 9 Res Publica 19 (2003). Tut Antinomy or Frahdom ato LQUALirv 221 found. A classical example for this is the development of specialised legal regimes in private law like labour law. The Weberian formal rationality"' of the law is modified in a crucial manner through such a regime. Special rules arc established to account for the substantive difference between a contract about the purchase of a chicken and a contract about the (potential lifelong) work ofa human being. The existence of a specialised regime of labour law is today taken for granted, but formed a major step in the legal development hotly debated at that time. The point of interest here is that the abstract formality of the law was modified in this area to do justice to the matters regulated - not disputed anymore in principle, but not less important for that matter. Another notion is equality of result. Again, this can be, but docs not have-to be, consistent with proportional equality, if two exams arc equally well written, there should be equality of result: the same mark. If, however, the one is knowledgeable, the other the deplorable fruit of laziness, equality of result would be unjust. On the other hand, there is the basic equality of human worth. Given this foundational equality, there should be at least to a certain degree equality of result, as at least in some aspects the equality of human worth must mean something, Equality of result can perhaps be best understood as a warning light—if the results are loo different it has to be ascertained that proportional equality has been duly preserved. Equality of opportunity takes account both of the equality of human worth irrespective of properties and natural fortune, and of individual responsibility for the consequences of one's actions. Equality of resources refines the idea of equality of opportunity by looking at opportunities not only in a formal way, but by looking at the preconditions to use these opportunities as well. This is certainly commonsensical, though perhaps implied in a not too narrowly understood equality of opportunity. Equality of opportunity (not naively overlooking the preconditions of using opportunities) is, to a certain degree, the core good to be allocated in a social arrangement under the auspices of justice if one docs not forget that due to the equal dignity of human beings some equality of result should be maintained. For example, it is rightly not regarded as just to create equality of result irrespective of the action of the agent. If a person loses his savings on the stock market speculating against a currency, the community certainly has no responsibility to balance his losses, though the obligation to provide at least a subsistence living (and thus that much equality of result), given the equality of worth, entitles him to that much solidarity. bquality of opportunity is more encompassing than equality of participation in democracy, something sometimes discussed as an alternative to the equal opportunity approach." Equal opportunity encompasses the opportunity '• Cf. M. Weber. Wirtschaft und Gesellschaft. [Economics and Society), (|og4V " The rationale for demanding equality of participation can be one of individual justice and one of expected outcome of the participation. The laitcr entertains the hope ihat equal participation 224 M Alna A4 M a in man's- !o participate in democracy and lo be an active citizen. On the other hand, participation in democracy is not all; access to goods like jobs, services, etc.. are of importance as well. Equality of treatment, result, and opportunity (and resources) arc not alternatives 10 equality of human worth or human dignity. They are located on different positions in the foundational structure. The basis is the equality of human dignity, which leads under the auspices of justice lo equality of treatment, result, and opportunity as prima facie maxims of justice with their explained relative validity. If one docs not accept that human beings, because of their humanity, are worth being treated with respect irrespective of other properties like sex. ethnic origin, disability, sexual orientation, etc., there is no reason why you should treat them (with the explained qualifications) equally, consider the equality of result, or care for the equality of opportunity. There u no way around human dignity in a full statement of justice. In equality discourses there is discussion about recognition of a particular individuality or identity as the central object of justice. These identities are sometimes taken to be rather strongly connected to the belonging to certain groups, even to be buttressed by 'identity politics.' n seems that the most important form of recognition is the recognition of this shared dignity as human beings. Whatever the legitimate concerns for some other aspects of human identity arc, one should not la« sight of this most basic issue. 3. Justice, Liberty, Efficiency, and Anti-discrimination Law With these clarifications achieved, let us now turn to the second set of questions about anti-discrimination law and its relation to justice, liberty, and efficiency. I he first distinction to be made is between the puhlie and the private sphere. There are. of course, many debates about this division. And there are real problems, especially through the privatisation of public assets. Is a formerly public airport, for example, after privatisation under the same public law obligations, say of fundamental rights, as it was before? Notwithstanding these problems, there is an important grain of truth in the division. There is a difference between personal affairs and community issues that should never be taken for granted, but should not be denied in principle, either. As a consequence, there arc good reasons for a differentiated regime of anti-discrimination law for the public and the private sphere. The regime of the public sphere is the theoretically less problematic, though ridden with severe problems, like structural xenophobia and racism as officially established in of formerly excluded groups will fosier the pol itical wisdom of decisions. That ongin determines opinions is a lather crude assumption of political theory. The former rationale is therefore the relevant one. Tue Antinomy <* Fmfdom ami Rouautv 225 some countries," and certainly the social reality in others, which arc less advanced in openly addressing these kinds of unpleasant problems. For both spheres, it should be emphasised that, as indicated, the abstractness of the law is a precondition of its liberal value. There will be no liberal legal system without such abstract rules. The price for this is the acceptance that deplorable kinds of behaviour will have legal protection. This is the natural outcome of the separation of law and morality, legal liberalism necessarily includes the possibility to behave badly. For anti-discrimination law. this is a particularly important point. Some champions of it appear prone lo try to purge any kind of reproachable discriminatory behaviour even, for example, in the closer private sphere. Apart from its practical impossibility, this misses the liberal point of the law. There is therefore a need to say openly that even under a full anti-discrimination regime, many areas of discrimination should be allowed. Reproachful opinions about other ethnic groups are legitimately protected by freedom of speech, for example, and there is no reason to exclude the possibility for a devout protestant to let a room in her flat only to protestant students. * If one agrees with this liberal starting point, the next problem arises. What arc the limits of this formal liberty? Where is formal equality not a close enough approximation to the demands of proportional equality? Some limits arc unproblematic, say, bodily harm. Others are more difficult, say, hate speech. Other examples are certain kinds of behaviour regulated by private law. There is, despite voices that assert the opposite, no disagreement in principle that in the private law will does not reign supreme.-'0 For example. 11 Cf. the famous MacPherson Report, Home Office "Report on ihe Macl'henon Inquiry" Cmd. 4262 (24 February 1999). '* The recent secondary law on anti-discrimination is aware of this problem The preamble of Ihe Council of the European Union Directive 2000/43 EC (29 June 2000) stales that due consideration shall be paid to privacy concerns: "It is also important, in the context of (he access (o and provision of good« and services, lo respect the protection of private and family life and transactions carried oul m Ihis context," «f*.. Recital 4. There is, however, no explicit justification of unequal treatment on these grounds, though member states have argued lhal Recital 4 opens the possibility for such a justification. Directive 2004/11.1 EC (I J December 2004) contains an explicit exception for the private sphere: "Within Hie limits of Ihe powers conferred upon the Community, this Directive shall apply to all persons who provide good's and services, which are available to the public irrespective of the person concerned as regards both the public and private sectors, including public bodies, and which arc offered outside the area of prívale and family life and the transactions earned out m ihis context" /