Men are not equal. Some are therefore rightly more authoritative, more influential, and more important than others. The law ought to recognize this reality – and it does. The question is not whether it does recognize this reality, then, but whether it does so justly.
Brett Stevens points out this morning that:
Egalitarianism acts like a virus: once you accept it, it uses you to replicate, spreading both to others and to areas of thought unrelated to its entry point. For example, if you think one day that yes, people should be equal before the law, soon you will find yourself thinking, yes, they should be equal in social matters, too.
For this reason, people lose control of themselves once they say “yes” to that first touch of egalitarianism. If they fail to keep being egalitarian in all areas of life, they are rejecting the idea of egalitarianism itself, which because it is not tied to any specific context, infects all contexts.
People are not naturally egalitarian. They are naturally authoritarian: the newborn finds himself in a world that is wholly structured by the unquestionable authority of his parents, his grandparents, and his elder siblings. He is junior even to the pets.
Nor does this condition of unequal authority ever end. We are all of us ever subject to some other, higher authority.
It is natural to us then to treat others as either more or less authoritative than we, and much of social life consists in rituals that enable us to determine our authority vis-à-vis that of some other.
It is foolish to think that this reality of social life has been transcended in egalitarian societies like that of America, which pretend to have abolished social classes. It has not. America has not abolished social classes, but rather only obscured them. All that has happened with the ostensible abolition of social classes is that the ascertainment of social class has become more difficult, expensive, and prone to error than it might otherwise have been. Explicit social classes reduce the expense and difficulty of that ascertainment.
Inequality is a fact of social life. Hierarchy of authority is a fact of social life. These facts then ought to be recognized in law. We ought not to be equal before the law. The law rather should reckon our real differences, and take account of them.
Not that the upper classes should be less constrained by law than the lower. It’s just the opposite.
The nobler you are and the greater your power and authority the more ought you to be constrained by laws. The greater your authority, the greater your responsibility. The noble are responsible in fact for the acts of their subsidiaries, and can therefore be justly penalized for those acts. The greater your authority, the more burdensome your duties. As superlatively virtuous, aristoi ought furthermore to do far more for the polis than hoi polloi, and ought therefore to be held to account for more and more various derelictions of duty than their subsidiaries. When the ship runs aground, the captain pays with his career, even if he was asleep at the time.
Society is furthermore harmed more by the death of a noble man – a superlatively virtuous and rightly authoritative man – than it is by the death of a common man. It is far more advantageous in war to kill an officer than any of his troops, mutatis mutandis. It is only proper, right, and natural that the law should recognize this plain fact. Usually it has. So it was that under Anglo-Saxon and Babylonian law the penalty for the murder of a nobleman was much greater than that for the murder of a serf or commoner. This seems abhorrent to modern Americans. But it persists today in tort law under the aspect of human life value: if your product killed a young attorney, you will pay a lot more than if it killed an aged bum.
There is a different legal system for the wealthy, and there ought to be. But it ought to be tilted in the opposite direction than is ours today. Hillary Clinton has so far gone unpunished for her gross dereliction of duty respecting state secrets. Meanwhile a sailor has been jailed for his innocent detention of petty secrets. If a sailor can be jailed for taking a few photos (but not transmitting them), then Clinton – who of course knew far better exactly what she was doing with her private server – ought to be drawn and quartered.
The law should levy its harshest burdens upon the wealthy, the powerful, the influential. Not that its burden upon their lessers should be lighter than at present, to be sure. It should not. Perhaps, indeed, it should be harsher than at present. But the aristoi should pay far more than hoi polloi for their crimes; for, they are in a position to inflict far more suffering; and ought to know far better what the right is, and that they ought to do it; and are in a far better economic case to do it.