explain the struggles for equality in other countries
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Answer:
There are reasons which may lead some to say that equality before the law is unnecessary for liberty. Although these will turn out, in light of weightier reasons, to be illusory, it would be to our advantage to examine them. Imagine that some adversary responds to Hayek’s claim as follows:
– What? Are liberty and legal equality really so close to each other that the establishment of the one follows the establishment of the other? What say you then—was libertas Romanae so squalid that we need not consider it, though only a fool would say that legal equality existed in the Urbs Aeturna? Or was this not among the brightest examples of liberty that the human mind before her for many centuries? And England! Was English liberty so illusory that we must say that Montesquieu was horribly deluded when he singled out England as a land of freedom?
So how should we answer this? We see, arrayed against the principle that legal equality is the aim of liberty, examples in which we are invited to see liberty in the absence of equality. Let us test the weight of these. What do we see in the Roman Republic? Where is its liberty and where its inequality? In Rome we find a layered society of classes, including a powerful aristocratic class, a weak plebian class and a powerless slave class. Among the aristocratic elements of the society, we find liberty: we find the governance of the state divided up amongst the members of this class, and no member rules over the others as a master, except temporarily and through the will of those ruled. But their power is bought at the price of the freedom of those below them. The plebeians and the slaves seem to sacrifice their liberty to their superiors. In England we find a monarch, an aristocratic array of lords, and a lower class; the monarch possesses the greater power, but not an absolute one; the lords share power among themselves, and though their powers are not equal they share many legal rights; and the lower class possesses certain rights and powers of their own, though by far inferior ones. Again, we see a great many invited to share in the power of governance, but a great many bowed beneath great powers. It does seem as if these aristocracies possess liberty, even if there are terrible inequalities and members of society that are deprived of liberty. Thus it seems that the objector’s point has been made: liberty existing sine aequalitate.
But it is apparent that a mistake has been made. Libertas Romanae existed because of the relative equality of the aristocratic class and because they were free from the coercion of an irresistible power, that is, there was no power in the state compared to which they were unequal and inferior. We wouldn’t speak of Roman Freedom had the Tarquins continued to reign. And the relationship of the Roman aristocracy vis-à-vis the lower classes was identical to the relationship of Rome vis-à-vis other nations; Roman freedom was bought at the price of the freedom of other nations, and it lived in fear of foreign powers. The liberty of the Romans consisted in the legal rights they shared and the influence they possessed and was sealed by the absence of any other power, whether monarchal or foreign, that could coerce them.
Similarly, England’s freedoms were a result of similar factors: a certain degree of equality before the law founded in legal rights and, rather than the absence of a monarch, the weakness of the monarch, which was accomplished through his subjection to the law. England’s liberty was founded in the enshrinement of certain legal rights on the one hand and the weakness of the coercive power of the sovereign on the other hand, i.e. in the weakness of the entity whose legal power was unequal in its superiority. In fact it seems reasonable to say that English liberty grew precisely in proportion to the increase in legal rights that limited the power of the monarch. That is: liberty increased as inequality decreased.
And so, rather than these examples standing against Hayek, they may be put to use in support of his claim. While it is true that these nations possessed liberty, they possessed it only to a limited degree. If liberty grew precisely through decreasing inequality then it would follow that had there been less inequality in Rome or in England there would have been more liberty. It is better to be a Roman than a Persian, but obviously that isn’t the whole story. The problem is that even though there was some liberty in these nations, that liberty was restricted to a subclass of society, relatively equal among themselves, who bowed before no despotic power. They were certainly free men. But from the perspective of those below, these very men were a despotic power.