Juan Ramón Rallo - Liberalism (Chapter 2)

This is a translation of the second chapter of "Liberalism: The 10 basic principles of liberal political order" written by Juan Ramón Rallo. You can buy the original book here.
Esta es una traducción al inglés del segundo capítulo de "Liberalismo: Los 10 principios básicos del orden político liberal" escrito por Juan Ramón Rallo y que puedes comprar aquí. 

Juridical equality

Principle 2: All individuals have the same rights.

The political individualism that defines liberalism does not establish juridical distinction between individuals: it considers each individual a right holder and equal in rights.  Once it is acknowledged that each individual is sovereign over themselves, it is also being implicitly acknowledged that all those sovereign individuals are legally equal subjects: if each individual is a sovereignty centre indistinguishable from the others, then each individual will be holder of the same rights as the rest. Or, in other words, the rights that an individual holds before the rest of the individuals must be symmetrical to the rights that the rest of the individuals hold before them. This characteristic of the liberal political order according to which all individuals, regardless of their particular features, have the same rights -and, consequently, submit to the same general rules of justice (Godwin, 1793: 104-108)- is often known as isonomy, legal equality, moral equality or equality before the law.

Liberalism extends such legal equality to all people regardless of their religion, race, gender, sexual orientation, or nationality. In other words, from a legal point of view, no discrimination of any kind is admissible. Not surprisingly, one of the greatest battles fought by this current of thought throughout its history has been to promote this equality before the law among all people of different religions, races, genders, sexual orientations or nationalities: “The fight for formal equality and against all discrimination based on social background, nationality, race, beliefs, gender, etcetera, is still one of the most important characteristics of liberal tradition” (Hayek, 1978: 142).

Thus, John Locke, in his First letter concerning toleration (1689a), exposed that “Nobody, neither people nor churches, not even commonwealths, have any just title to invade the civil rights and worldly goods of each other upon pretence of religion”. And in his Second letter concerning toleration (1690) he openly spoke in favour of equal rights among all people regardless of their religious beliefs: “If, as it should happen, the laws of a country were drafted equally for all subjects, without distinction between the different religious confessions [...], we would immediately achieve a perfect tolerance that would show the uselessness of the use of force in matters of religion”. Even more clearly, in his Second treatise of civil government, Locke (1689b: §54) affirmed that “All men are naturally equal […] in regard to their jurisdiction and control over one another”.

On his part, great liberal abolitionist William Lloyd Garrison was very clear that slavery was not legitimate in the United States because it violated the rights of individuals, those rights being equal between citizens and slaves: “Every man has the right to his own body, to the products of his work, to legal protection and to the common advantages of society. It is an act of piracy to buy or steal a native African and subject him to servitude. Surely, it is as serious a sin to enslave an American as it is an African” (Garrison, 1833). Likewise, Frederick Douglass, an African American essayist who was born a slave and was friends with Lloyd Garrison, wrote to his former owner, Thomas Auld, a letter in which he explained the reasons why he had abandoned him; and his argument was essentially that slavery violated equal rights of men:

I am myself; you are yourself; we are two distinct persons, equal persons. What you are, I am. You are a man, and so am I. God created both, and made us separate beings. I am not by nature bond to you, or you to me. Nature does not make your existence depend upon me, or mine to depend upon yours. I cannot walk upon your legs, or you upon mine. I cannot breathe for you, or you for me; I must breathe for myself, and you for yourself. We are distinct persons, and are each equally provided with faculties necessary to our individual existence. In leaving you, I took nothing but what belonged to me, and in no way lessened your means for obtaining an honest living. Your faculties remained yours, and mine became useful to their rightful owner. […] I am your fellow-man, but not your slave. (Douglass, 1847)

Legal equality between the sexes was also a cause that quickly became linked to liberal thought. Liberal thinker Mary Wollstonecraft wrote the book A vindication of the Rights of Woman (1792: 451), where she demanded the following: “Let woman share the rights and she will emulate the virtues of man; for she must grow more perfect when emancipated”. At the same time, activist Angelina Grimké concluded that women had the same rights as men precisely after reflecting on why slavery violated the legal equality of mankind:

The investigation of the rights of the slave has led me to a better understanding of my own. […] Human beings have rights, because they are moral beings: the rights of all men grow out of their moral nature; and as all men have the same moral nature, they have essentially the same rights. These rights may be wrested from the slave, but they cannot be alienated. Now if rights are founded in the nature of our moral being, then the mere circumstances of sex does not give to man higher rights and responsibilities, than to women. (Grimké, 1837)

The same expressed John Stuart Mill on the first page of his book The Subjection of Women (1869):

That the principle which regulates the existing social relations between the two sexes —the legal subordination of one sex to the other-- is wrong in itself, and now one of the chief hindrances to human improvement; and that it ought to be replaced by a principle of perfect equality, admitting no power or privilege on the one side, nor disability on the other. 

Likewise, homosexuals’ juridical equality was also originally defended by German individualist liberal-anarchists in the late 19th century. Individualist Adolf Brand founded in 1896 the first gay magazine in history, Der Eigene; magazine that was focused on defending homosexual rights under the inspiration of the work of the individualist anarchist Max Stirner. In fact, in its number 10, from 1920, it stated the following: “Anyone who has carefully read the main articles in this magazine will know that Der Eigene is at the forefront of individualist anarchism and that we consider the worldviews of Max Stirner and Friedrich Nietzsche as the great paradigms of the future. Der Eigene is committed to the right to personal liberty and individual sovereignty to its ultimate consequences" (Oosterhuis, 1992: 22)

Likewise, historian and member of the American Libertarian Party, Ralph Laico (1976), noted how the members of this political formation subscribed from the very beginning the defense of legal equality between people of any sexual orientation:

Political action is necessary to achieve a basic legal framework in which the equality of individual rights prevails: it is from this framework that we can advance through voluntary action to achieve complete acceptance and social integration in a free culture. What can we do about it? Within the Libertarian Party, unlike what happens in other political groups, it was never necessary to spend much time raising awareness about homosexual liberalization, or to wage an intense internal battle to finally recognize humanity and first-class citizenship to homosexual men and women. On the contrary, the Libertarian Party was born believing in homosexual rights.

Equality versus privileges

That the liberal political order is based on the principle of legal equality implies, in return, that the liberal political order is incompatible with the existence of legal privileges. The word “privilege” has its etymological root in Latin, privus + lex; that is to say, particular law: something liberalism opposes, which advocates equality and universality of the basic structure of rights (although, as we will study later, people can generate derived rights with a particular character among themselves). Consequently, the fight for liberalism has also historically been a fight against legal inequality, that is, against the privileges of any individual or group of individuals.

With the advent of liberalism came the demand for the abolition of all special privileges. The society of caste and status had to make way for a new order in which there were to be only citizens with equal rights. What was under attack was no longer only the particular privileges of the different castes, but the very existence of all privileges. Liberalism tore down the barriers of rank and status and liberated man from the restrictions with which the old order had surrounded him. (Mises, 1927 [1985]: 159)

Without legal equality, any individualistic political order would imply a structural conflict between the people who make it up: a conflict between those individuals who enjoy privileges and those other individuals who suffer the burdens derived from such privileges. A society of legal castes is a society in which the vital projects of some people - just because they are the projects of those people - deserve greater ethical consideration than those of others, which will inexorably generate an essential tension between them. (Rasmussen y Den Uyl, 2005: 78-79)

And precisely because liberalism opposes all inequality under the law, it also opposes those legal inequalities that are supposedly aimed at compensating or repairing past legal inequalities against certain groups of individuals (usually called “affirmative action”). Past legal inequalities do not justify actual legal inequalities, but rather actual legal equalities: and they do not do so in matters of gender, sexual orientation, race, or religion (in any case, as we will explore in Chapter 6, if some particular individuals have caused harm to other particular individuals, the repair of that damage caused will be justified). In words of liberal feminist Wendy McElroy (1992): “Equality means “equal treatment” not privilege. […] Justice requires that all human beings receive what they individually deserve. So far, all I have seen of affirmative action is institutionalized discrimination”.

In the end, for liberalism all individuals are holders of the same rights, which ultimately means recognizing that no one has a natural prerogative to rule over others; that is, nobody has an exclusive right to impose himself on others (Gaus, 2011: 15-17). As John Locke stated, "[The state of nature] is also a state of equality, where no one has more power and authority than others. It is evident that creatures of the same species and rank, all born to enjoy the same natural advantages and make use of the same faculties, must be considered as equal to each other, without subordination or subjection of some on others"

Legal equality therefore rejects the existence of natural political authority: namely, there is no privilege for some people - or groups of people - to behave in a way that is not allowed to others (Huemer, 2013: 3-19). Liberalism rejects the existence of individuals, families or groups with a natural prerogative to govern the rest, since all people submit to the same rule of law on equal terms: "But where, say some, is the King of America? […] In America the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other. But lest any ill use should afterwards arise, let the Crown at the conclusion of the ceremony be demolished, and scattered among the people whose right it is." (Paine, 1776)

Now, accepting that individual rights are individual and symmetrical for all people -and that, therefore, nobody naturally enjoys political privileges over others-, a key question remains to be determined: what is the content of those individual rights?