While sitting in my office this morning I received a phone call from a distraught friend, advising me that a mutual friend, an Indigenous Australian Artist, had become the latest victim of a police bashing, a penalty meted out to him for…you guessed it, not grovelling on his hands and knees when confronted by a member of the ‘master race!’ This latest incident made me turn my mind to the concept of equality within the wider considerations of what makes us human beings.
All human beings are, at one and the same time, alike and different, equal and unequal. From an empirical viewpoint all human beings are similar in that they share a set of biological and psychological characteristics.
Men are alike also from the metaphysical standpoint of the function which constitutes human life. In every human life, in a greater or smaller proportion, we find a series of functions, or, saying it in a better way, a system of functions, such as knowledge of the world, and of fellow men; a technological function of adapting oneself to nature and of dominating nature in order to satisfy human wants; the artistic expression of emotions; the social organisation, including the legal one; the economic activities; etc.
Nevertheless, at one and the same time, human beings are different from several viewpoints, including some biological and psychological characteristics.
Human beings differ also as to the individual calling or vocation. Man is a born system of preferences and dislikes, something like an emotional battery of attractions and repulsions. Every individual, even before knowing the world around him, is emotionally thrown in a certain direction, towards certain values. Every individual is a singular project of life, to which he may be faithful, but he cannot change it, he cannot replace it by another one with the same degree of authenticity.
Human beings are different as to their conduct that is to say, from a moral view point. Thus, without precluding the universal analogies among all human beings and without precluding either the similarities, between many human beings, we must recognise that each human individual is different from all the other individuals, that he is unique. This uniqueness of each individual is precisely essential to human beings. This uniqueness has, among other s, the following consequences. It has its correlative correspondence in a peculiar constellation of values which determines a personal calling, an individual vocation. Each individual person represents a unique viewpoint on the world and on one’s own task in life; and consequently embodies a singular perspective, both theoretical and practical.
Furthermore there is a great variety as to the content which everyone gives to his life, as to his biography, as to what he does in his existence. Jose Ortega Y Gasset[i] observes:
Think for a minute all that man has been, that is to say, what he has done with his life, from the Palaeolithic savage to the surrealistic youth of Paris.”
We are all human beings, but think how different were Saint Theresa of Avila, Madame de Pompadour, Helen Keller, Eleanor Roosevelt, Socrates, Alexander the Great, Saint Francis of Assisi, Genghis-Khan, Casanova, Rousseau, Charles Chaplin, Einstein and Trotsky.
All the preceding statements show, in the field of observable facts, on the one hand, the similarities of human beings, and, on the other hand, the differences among us from several viewpoints. It is convenient to keep in mind both the similarities and differences, when we look at juridical equity.
The principle of juridical equity, in its main postulate pertains to a level different from that of empirical facts. It is based on ethical grounds, and it is projected as juridical condition required by the idea of human person. From the moral and legal viewpoint it means above all – although not exclusively – equality as to dignity of the human person, and consequently equality as to fundamental human rights. It also means parity before the law; and moreover it means also, a desideratum, the promotion of equalities of opportunities.
What I have just affirmed – equality as to dignity and basic human rights, formal equality or parity before the law, and equalities of opportunities – is not all that must be considered about the problems of equality in relation to the differences among human beings. Although it is true that we must assert those three dimensions of juridical equity (of human rights, before the law, and of opportunities) it is true also that in many legal relations justice requires taking into account many differences. It should be born in mind that justice requires giving everyone his own, but not giving everyone the same. Because men, all of them, are alike as to dignity, are persons endowed with their own ends, persons who should never be degraded to the condition of mere means of somebody else, for this reason, all of them ought to be recognised as having equal dignity and equal human rights. But because human beings are different as to specific qualifications and capacities, as to industriousness, as to conduct, as to the outcome of their activities, for these reasons they should be treated unequally in the relations in which such characteristics are relevant.
This very thing that makes us human beings, our individuality, is also the root cause of much of the human suffering of those not included within the ‘in-group’. Our individuality or humanity is perhaps a better word, makes as targets for all those who see difference as something to be shunned, to be avoided at all costs.
The indigenous person, the dark skinned person and the Muslim populate the current ‘out-group’ within the Australian context, which our morally bankrupt media finds it expedient to attack whenever a better front page story is wanting. When this happens, we all become opportunistic targets for displays of power from within the ‘in-group’. Unfortunately for we Australians who are in the ‘out-group’; whenever a politician, bureaucrat or would be ‘reformer’ wants to grandstand, we receive added attention from a xenophobic and politicised police force, usually resulting in unfair or unreasonable depravations, including loss of liberty, loss of our human dignity and more recently torture whether by taser or if we’re unfortunate enough to be in Queensland where the police have developed some more localised content, our torture could including the old hose down the throat trick and if you’re female, being lifted of the ground by your hair. I have often pondered on the moral courage it must take to torture a handcuffed and therefore defenceless person!
[i] Ortega Y Gasset, Jose, HISTORIA COMO SISTEMA, 1941, in OBRAS COMPLETAS, Vol. VI, pp. 34 and f., Revista de Occidnete, Madrid, 1941.