Equality Before the Law, Equality of Permission, and the Language of Libertarianism

When we communicate with one another, how we say things can sometimes be as important as what we actually say. Words matter, which is even more true when we exchange ideas and try to convince others to embrace our viewpoints. Ideological rhetoric, then, merits some thought on the part of libertarians.

Of course, libertarians uphold first and foremost the idea of expanding individual liberty. We want people to be free. But most of the time, non-libertarians say something like this: ‘Well, who doesn’t want freedom? The problem is that freedom can create inequality.’ When this happens, the discussion comes dangerously close to an end: It does not matter that we contextualize such a statement or that we contest it. The urge for some sort of equality, whatever it means, seems unavoidable.

But what if libertarians could provide meaning to the ‘equality’ that a significant portion of the public longs for? What if libertarians could also be egalitarians? There is certainly one recent, powerful attempt to tackle these issues: Deirdre McCloskey’s work on the concept of ‘equality of permission.’ According to her, this kind of equality is in fact the basis of libertarianism itself. She implicitly restates libertarians’ main goal to be the creation of a society where everyone is equally allowed to ‘enter in the race as an adult,’ or more simply to live their lives as they see fit. If everybody is allowed to do the same things, which is the same as to say that nobody enjoys any special privileges, then we have a libertarian society.

By equating the concept of equality of permission with ‘liberalism’ (in the classic sense of the word), McCloskey provides an eloquent allegory for libertarians to use when debating others. When asked ‘What about equality?,’ libertarians can now say that they also care, that they are also egalitarians. The tension between freedom and equality can finally be bridged.

But some of the readers may ask at this point: ‘What about equality before the law? Didn’t we already embrace equality as libertarians?’ This is a great question. Indeed, the idea of ‘equality before the law’ can certainly be conceived as equivalent to the idea of ‘equality of permission.’ The problem is it need not be.

‘Equality before the law’ has a long history, one that goes back to the birth of classical liberalism itself. For most of that history, the law seemed more certain and general in scope than it seems today. But the end of the 19th century and all of the 20th century saw a dangerous trend (identified by Bruno Leoni) of equating ‘law’ with ‘legislation,’ while at the same time the latter became more and more tied to special interests. Thus, to talk about equality before the law can confuse the general public, who instead of thinking we should all be permitted to do the same things could potentially think that we are all entitled to the same privileges that different pieces of legislation award to different interest groups. The latter, from a libertarian standpoint, would be disastrous both in terms of economic and moral damage.

As libertarians, we can choose to fight reality or adapt ourselves to it. We can surely try to educate the public regarding the importance of the Constitution, the difference between law and legislation, the problems of crony capitalism, and many other topics. But to advance our most basic goal of liberating ourselves from the oppression of current legislation, we can also probably present our ideas in the simplest way we can think of. ‘Equality of permission’ seems straightforward. ‘Equality before the law’ seems less so.

In the end, as libertarians we all want to convey the same ideas to the general public. To do that, and in a context that is skewed against libertarianism, we need a new approach. Perhaps the concept of equality of permission can be as convincing as it is morally strong. It can’t hurt to try.

Marcos Falcone is the Project Manager of Fundación Libertad and a regular contributor to Forbes Argentina. His writing has also appeared in The Washington Post, National Review, and Reason, among others. He is based in Buenos Aires, Argentina.