 |
|
 |
|||||||||||||||
 |
|
|
|
||||||||||||||
|
|
|
|
||||||||||||||
 |
 |
||||||||||||||||
Equality
|
The ecological organic framework of analysis helps to clarify the several different dimensions of the moral and political concept of universal equality. Within Western civilization there developed several sources of moral authority for law and several corresponding ethical and legal systems. Canon Law, Roman Law, English common law, and the social contract theory associated with constitutional law each had a different primary source of moral authority. Each of these systems of law was, consequently, based on a different type of ethical system, and each focused primarily on a different facet of human nature. Constitutional democracy integrates aspects of these four ethical and legal systems as they relate to universal equality and the coercive powers of government. Metaphysics and Interpretation: Canon Law, for example, was based on the authority of God and related primarily to what it understood to be the soul of man. Its ethic is deontological, deon meaning "duty" in Greek. That is, it is based on a universal duty "to love God with all thy heart, and with all thy soul, and with all thy strength, and with all thy mind; and they neighbor as thyself" (Lev 19:18, Deut 6:5, Lk 10:27, Mk 12:29-31). This also happens to be an example of a use of the organic framework in a Judeo-Christian context. Canon Law contains universal ethical principles based on a reverence for God and reciprocity towards one's fellow man. The equal dignity and worth of all persons in this religious system derives from a belief in God and that man and woman were made in God's image (Gen 1:27). Equality is intrinsic and not derived from one's individual attributes, but from the relationship between God and humanity. Nature and Reason: Roman Law, on the other hand, incorporated significant aspects of natural law based on the authority of a perceived natural moral order in the universe. Such a natural moral order could be understood by all persons, it was believed, because all humans share a capacity for right reason, an ability to know right from wrong. All of the various people within the vast Roman Empire, for example, could be expected to learn and know that it is wrong to steal. This ethical system of natural law is primarily normative (based on norms or ideals). Universal equality in classical civilization is based on all human beings having a capacity for right reason and also on a concept of reversibility (a reversal of position or fortune) which requires a rational imagination. Aristotle, in his Poetics, described reversibility as one of two major elements in Greek tragedies. The second element is catharsis, part of which is a realization that we all, even heroes and kings, have character flaws and are also subject to fate, both of which can lead to a reversal of fortunes. The more recent concept of justice as fairness as described by John Rawls in The Theory of Justice (1971), with an original position in which one does not know either his or her fate or circumstances in life's game, is an extension of the concept of reversibility. Society and Social Conscience: Common law in English feudal society derived its moral authority from yet another source -- not from God or nature, but from social custom and tradition. This was primarily a communitarian ethical system. It related to the social conscience of the people based on their concepts of rights and responsibilities in society. Traditional English rights progressively became a basis of communal solidarity. The Individual and Appetite: Finally, the social contract theory associated with constitutional law derives its moral authority beginning with the individual in a state of nature concerned primarily about his own safety and happiness. Its very premise is not only that all are free and equal in a state of nature but that everyone is also endowed with natural rights that they are entitled to defend. Such a theory is based on individual concerns and contract. The universality of social contract theory as it applies to democratic processes and constitutional law, however, makes it also essentially a humanitarian ethic. It contains an ethic of universal equality based on what we now refer to as human rights and a just claim to resist the violation of those rights. American constitutional democracy integrates and balances these four ethical perspectives as they apply to the several aspects of universal equality and the coercive powers of government. The accommodating common moral concept is not just a deontological ethic, with concepts of reverence and reciprocity, relating to God and a person's soul; nor is it just a normative ethic, based on concepts of right reason and reversibility, relating to a perceived moral order in nature and our capacity to understand that order with our reason; nor is it just a communitarian ethic, with concepts of social rights and responsibilities, as they relate to the several aspects of society and our social conscience; nor is it only an individual ethic, with a concept of human rights and the right to resist tyranny, relating to the individual and our fundamental human needs and desires. The accommodating or unifying moral concept is universal equality, which can be derived analytically, and has been derived historically, from each of these sources of authority and aspects of human nature (Rutherford 1992). Universal equality achieves some moderation when the concept of the dignity and worth of the individual is understood as a matter which requires the consideration and balancing of at least four different capacities and perspectives. Consider, for example, that our government was founded for the declared purposes of providing for the general welfare (legislated needs), establishing justice (adjudicated social conscience), maintaining domestic tranquility (executive order) and securing freedom for ourselves and our posterity (non-coercive meaning and purpose). In attempting to achieve institutional accommodation of these objectives on the basis of equality, our system of government does leave the question of meaning and purpose to the individual. This is what Jefferson, following Aristotle, meant by "the pursuit of happiness," which is quite different from the pursuit of pleasure as we understand it. The level of function that interprets, integrates, and narrates meaning, purpose, and continuity in our lives, and deals with the ultimate questions of metaphysics and religion, is separated from the coercive powers and structure of government. In turn, the individual moral personality is the basis of both our constitutional principles and democratic processes. Universal equality is both the fundamental qualitative moral principle of our constitutional system of government and the basis of the quantitative democratic process by which it was ordained and ratified and by which it functions. We thus need to refer to our government as at least a constitutional democracy in order to understand and convey its moral foundations. Thomas Hobbes in Leviathan [1651] (1981) wrote that all persons are equal in that they fear a violent death, and they are not only capable of killing one another but also, in the state of nature, they are free to do so. It is not contradictory to state that constitutional democracy is also our way of ritualizing aggression and coercive power. We limit and divide the coercive powers of government and we vote. As Reinhold Niebuhr noted, "It is man's capacity for justice that makes democracy possible, but it is his tendency to injustice that makes it necessary" (1944, xi). Abraham Lincoln, in his First Inaugural Address, stated that "a majority, held in restraint by constitutional checks and limitations, . . . . is the only true sovereign of a free people. Whoever rejects it, does, of necessity, fly to anarchy or to despotism." Representative democracy, the staggering of elective terms of office, the requirement of a super-majority to amend the Constitution, the Bill of Rights, and an independent judiciary with judicial review are some of the constitutional checks and limitations placed on transient majorities. Federalism is, in part, a recognition that equal does not mean identical. |
| Back: Examples of the Ecological Organic Paradigm as a Framework of Analysis
Next: Abortion Table of Contents |