Rethinking our concept of Equality
By Justice Reynato S. Puno
(Delivered on 31 January 2003 at the Club Filipino,Greenhills, San Juan, on the occasion of the Induction of Directors and Officers for 2003-04 and Monthly Fellowship of the Alpha Phi Beta Alumni Association, Inc.)
Before proceeding, may I thank Bro. Teroy Mendoza for the introduction. I am not sure I should be happy with the introduction. The rule of thumb tells us that the less known the speaker, the longer is his introduction. The kilometric introduction is therefore good evidence that I am a near non-entity. By no means is that meant to be a complaint for indeed I have strived to be as a low key as possible since I joined the judiciary.
I guess I have succeeded to be a cypher for even the invitation for me to be the speaker this evening did not carry the correct spelling of my name. All the culpas notwithstanding, I assure you I am abreast of the latest developments in the fraternity and I thank you for your kind invitation.
It is not easy to speak on happy occasions like installation of officers and alumni reunions where serious talks are considered as hazardous to health. I like to think, however, that our fraternity, especially its alumni component, is a cut above organizations for our history shows that the noblest of ideals mothered the fraternity into reality. Prescinding from that predicate, allow me to discuss with you the juridical concept of equality and its challenge to us who are interested in improving our system of justice.
There is no iota of doubt that we vigorously subscribe to the concept of equality. This egalitarian concept has been cast in stone in all our Constitutions – the Malolos Constitution, the 1935 Constitution, the 1973 Constitution and the 1987 Constitution, all of which bear the unmistakable imprints of masonry. But while equality has been reduced by the laws of the land as a creed, it has not mutated into reality in our society. The reality that hurts is that the evil of inequality continues to bedevil this land and the best of our beauty parlor treatments cannot drive it away into oblivion.
Given the stubbornness of this problem of inequality, I urge you to rethink and re-examine our concept of equality. I respectfully submit that our concept of equality which was borrowed from the medieval philosophies needs to be readjusted. Let us again re-examine the twin aspects of equality: equality as a moral principle whose core is the right to equal consideration and equality as a distributive principle whose essence is the right to equal distribution of opportunities, power or wealth.
The history of political philosophies will tell us that from the 17th Century until this new millennium, there are only three major concepts of equality that have seized the attention of mankind. I will just breeze through them with the hope that it will ignite a light on whether we need to adjust our seemingly immovable mindset on equality despite the undeniable fact that it has not worked well for the unequals in our society.
The first major concept of equality is that of formal equality. This concept rests on two assumptions: first, that all people have equal moral worth by virtue of their shared humanity; and second, that each human being should be treated equally unless relevant grounds can justify unequal treatment. These two assumptions were derived from the natural rights theory popularized during the 17th and 18th centuries. They were first articulated by the English philosopher John Locke who emphasized the thesis that all men, as creatures of God, have natural right to the God given rights to life, liberty and property. This is the bedrock of the American Declaration of independence of 1776 which proclaimed that “all men are created equal.” In time, formal equality took the meaning of equality before the law and equal rights to other civil and political liberties. The Americans educated us on this particular dimension of equality.
The second major concept of equality is equality of opportunity. Historians traced its origin to Plato who, in his major work, The Republic, advocated an educational system purposely designed to give equally talented children an equal opportunity to develop their potentials. Plato championed the removal of all social factors or institutions – including the family – which would give any arbitrary advantage on one person over another. The notion was picked up by the French philosopher Jean-Jacques Rousseau – often called the “intellectual ancestor of modern thinking on equality of opportunity.” In his Discourse on the Origin of Inequality written in 1755, Rousseau pinpointed the institution of private property as the real source of inequality. In his other seminal work, The Social Contract, he called for greater equality of economic condition thru a redistribution of private property to bring about a free society. Over time, the concept of equal opportunity provided the justification for increased state intervention. Government took a bigger role in regulating industrial conditions, health, education and welfare services. In fine, the State was given the role of removing social and economic barriers that lay in the path of its citizens. Again, we followed this route in our fight to eliminate inequality in our midst.
The third major concept of equality is the most radical concept – the concept of equality of outcome, which was developed after the French Revolution of 1789 within the European socialist tradition. The concept revolved around the attempt to equalize outcomes or end results in society rather than mere opportunities or initial circumstances in life. It espouses the sharper redistribution of wealth either thru public ownership of industry or thru progressive direct taxation; it requires the redistribution of resources thru social policies concerning education, housing, and welfare. Socialist thinker Anthony Crosland defined the goal of equality of outcome as “the distribution of rewards, status and privileges enough to minimize social resentment, to secure justice between individuals and to equalize opportunities.” A spin-off of this concept of equality of outcome is Karl Marx’s vision of a classless society built on the ideal of “from each according to his ability to each according to his needs.” The fall of Russia repudiated the validity of this radical concept of equality.
Let me again stress that I offer a thumbnail sketch of these three major concepts of equality if only to trace their medieval roots. It is also to emphasize that none of these concepts has enabled man to capture that elusive goal of achieving the greatest good of the greatest number. Consequently, in the last decades of the last century, there has been a new debate on what ought to be the appropriate concept of equality in the emerging global village whose driving force is a market-based economy, where the mantras are deregulation and privatization. The new debate has been sparked by the American political philosopher John Rawls. In 1971, he wrote his Theory of Justice, described as the “most important book on political philosophy since the Second World War.” In this highly thought provoking book, he espoused a new theory of equality based on two fundamental principles, viz:
First: Each person is to have an equal right to the most extensive liberty compatible with a similar system of liberty for all;
Second: Social and economic inequalities are to be arranged so that they are to the greatest benefit of the least advantaged.
In sum, under this new theory, inequalities in the allocation and distribution of wealth are acceptable only if they work for the benefit of the least well-off members of society.
Rawl’s new theory of equality has fomented a raging debate about the concept of equality that ought to govern this new millennium. I urge you to follow this exciting debate for obviously our concept of equality, antiquarian as it is, has not worked in the last century and will never work in this new century. Indeed, an authoritative study made by the Asian Development Bank and validated in experiences in no less than seven countries in Asia, including the Philippines, concluded that because of inequality, a sense of “learned helplessness” has developed among the disadvantaged in Southeast Asia. This refers to a resigned attitude and lack of expectations among those who feel that traditional power relations will invariably leave them helpless and hopeless to assert their rights.
Let me conclude by saying that this state of “learned helplessness” on the part of the powerless in our society is the challenge that should be met by all who are concerned with the attainment of real equality. The disadvantaged among our people – the poor, the women, the aged, the children, the handicapped, etc. – need more than theoretical equality. They deserve more than equality in law which quite often is no more than a hypothetical equality. After all our experience, it is time to realize that to give mere hypothetical equality to them is to treat them with inequality. Equality in creed is not equality in reality, far from it. Don’t we for instance have laws and ordinances that prohibit all from sleeping under public bridges? The prohibition is against all but does not the prohibition in reality affect only the poor without roofs over their heads? Does not the Constitution say all have the right to travel? But will that right enable an unshod peasant to go to Paris and sip champagne? The Constitution guarantees to all freedom of speech and of the press but how does an illiterate exercise this right as effectively as the educated? The Constitution grants the right to express grievances but can a poor man go to court without a peso in his pocket? Will lawyers and the courts give him access to our system of justice when all he has is a bent back and a begging bowl?
This is our challenge, a challenge addressed not only to our sense of justice but a challenge that ought to prick our conscience. It is time to rethink our concept of equality. We like to think we live under the rule of law when in truth, it is often times the rule by law of the powerful over the powerless. We like to think that equality is equality before the law but de jure equality is sometimes de facto inequality. Our forebears planted the tree of equality in this country and it is our duty as their successors to insure that this tree of equality will bear the fruits that the present and future can enjoy. Let us always remember that democracy cannot thrive on the thin topsoil of theoretical equality between the haves and the have-nots. Democracy has to be deeply rooted on the bedrock of true equality and we can achieve this ideal only by giving the powerless more equality than the powerful for only in that way can we really level their playing field, only in that way can we breathe life to the philosopher’s dream that there is power in powerlessness.
