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Equality Under the Law ≠ Equality of Outcomes

All individuals are not created equal.

Lady Justice by Hans Gieng/Wikimedia Commons (http://bit.ly/1xXGHvH)
Source: Lady Justice by Hans Gieng/Wikimedia Commons (http://bit.ly/1xXGHvH)

Lady Justice is often depicted with a blindfold to symbolize that the judicial system should be blind to countless individual characteristics that might otherwise introduce a bias into the process (but see my earlier Psychology Today article titled Obese Women: Beware of the Court System!). Unlike some judicial and religious systems that codify discrimination against specific groups (e.g., women, religious minorities), Article 7 of the Universal Declaration of Human Rights asserts that all individuals are equal under the law.  This legal tenet is enshrined within the ethos of Western culture albeit it has not always been adhered to (e.g., racial bias in patterns of sentencing).  Paradoxically, the very laudable quest to create a just society wherein each individual is equal under the law has yielded some faulty reasoning across a wide range of contexts.  Specifically, people wrongly conflate equality under the law with equality of outcomes, a phenomenon that I’ll refer to as the equality bias. In the remainder of this article I’ll discuss a few manifestations of this bias.

Numerous strands of feminism refuse to recognize biological-based sex differences and instead prefer to argue that the great majority of such differences are socially constructed (see my earlier Psychology Today article titled The Pros and Cons of Feminism). This profoundly incorrect position is rooted in the belief that to admit that sex differences exist will make it easier to maintain the supposed patriarchal and sexist status quo.  Hence, a narrative wherein men and women are construed as indistinguishable on nearly all traits (short of their genitalia), penchants, and/or abilities serves as a valuable tool in the battle against sexism.  This is received gospel within many disciplines in the social sciences wherein it remains controversial if not forbidden to argue that biological-based sex differences exist (see my YouTube clip THE SAAD TRUTH_9: Do Evolutionary Based Sex Differences Exist?). 

To rightly recognize that men and women are equal under the law is perfectly removed from the fact that men and women are distinguishable beings that have been shaped by sex-specific evolutionary challenges.  Accordingly, there is no reason to assume or expect that there should be equal representation of the two sexes across all contexts.  In some instances, a gender imbalance is indeed a manifestation of sexism.  In others, it is not.  Men constitute the great majority of pedophiles (see my earlier Psychology Today article titled Is This Woman a Sexual Predator?), the great majority of violent criminals, and the great majority of death row inmates.  Is it “sexist” to recognize this empirical fact?  Is this empirical fact a manifestation of a sexist justice system or might there be something inherently different between the two sexes that might engender such a reality?  Incidentally, I recently published a Psychology Today article titled Sex Differences in Educational Attainment wherein I reported data showing that in the United States, women now outnumber men as university graduates across all investigated races and all levels of university degrees.  Those who focus on the equality of outcomes should be crying “rampant sexism!” and yet their silence is deafening.  

Race and religion are two additional group-level identifiers that trigger the equality bias.  For example, if the number of African-American NBA coaches does not adhere with the demographic distribution of African-Americans in the United States, this is taken as a de facto instantiation of institutionalized racism.  Of course, that the racial breakdown of NBA players also does not represent racial demographic realities is overlooked. Apparently, not all non-equalities of outcomes are created equal!  Should the Hispanic and Latino populations complain about their lack of representation among NHL coaches?  Should we make sure that the number of Jewish NFL linebackers is representative of the number of Jews in the United States?  No Hindu NFL quarterbacks? Where are the First Nations running backs? This is a racist travesty!  Clearly, I am not suggesting that racism does not exist, for if anything we are reminded of this ugly reality on a daily basis.  My general point is that there is no reason to assume or expect that equality under the law at the individual level should translate into representative demographic patterns at the group level.  

Interestingly, while in most instances a non-equality of outcomes is construed as a manifestation of endemic sexism, racism, or other “ism” in other cases to merely point to a non-equality of outcomes is itself construed as “bigoted, phobic, and racist.”  Can you think of such an example?  Anyone who dares to suggest religions are not created equal when it comes to religiously inspired violence will be accused of being “gross and racist” (see my earlier Psychology Today article wherein I discuss the Affleck-Harris exchange on Real Time with Bill Maher). Hence, in some instances a non-equality of outcomes is construed as a manifestation of racism (e.g., the racial distribution of NBA coaches).  On other occasions, to merely point to a non-equality of outcomes (e.g., the differential proclivity for violence amongst various religious groups) is the manifestation of racism!  Ideological biases have a way of clouding one’s ability to impartially navigate the data landscapes.

Thus far, I have discussed the equality bias across various group settings (biological sex, race, religion).  Of course, this bias is also operative at the individual level.  The thinking is that since “all men are created equal,” a just society is one in which all individuals possess equal potentiality to achieve anything.  This is astonishingly incorrect.  While it is true that all individuals are equal under the law, this hardly implies that they are created equal.  The equality bias in this context stems in part from the blank slate premise (see my earlier Psychology Today article titled The Mind as a Blank Slate: Hopeful But Wrong), which purports that we are born with empty minds that are otherwise infinitely malleable.  More generally though, it is part and parcel of the rejection within much of the social sciences of biological-based theorizing that recognizes that innate individual differences do exist, which might eventually lead to non-equality of outcomes.  The behaviorist John B. Watson famously asserted in his 1924 book Behaviorism: “Give me a dozen healthy infants, well-formed, and my own specified world to bring them up in and I’ll guarantee to take any one at random and train him to become any type of specialist I might select—doctor, lawyer, artist, merchant-chief and, yes, even beggar-man and thief, regardless of his talents, penchants, tendencies, abilities, vocations, and race of his ancestors.”  While no serious psychologist rejects the importance of nurture in shaping an individual’s life trajectory, I venture that Lionel Messi’s ascension as the greatest soccer player today has little to do with his environment and everything to do with his natural and innate talents.  Not all boys are created equal when it comes to their likelihood of becoming future international soccer stars.  However, to believe so is certainly hopeful but…wrong.  Similarly, we are not all equally beautiful and beauty is not a mere social construction even though it is very hopeful to believe so (see my earlier Psychology Today article titled Beauty: Culture-Specific or Universally Defined?).

In conclusion, that all individuals are equal under the law is an incontestable feature of our justice system.  This in no way implies that individuals and/or groups should yield equality of outcomes.  It is perhaps befitting to end with the words of F. A. Hayek, one of the leading economists and philosophers of the 20th century: “The equality before the law which freedom requires leads to material inequality.” Unbeknownst to me, I was unaware that Hayek had written on this matter until advised via Twitter by Dr. Joe Norman earlier this morning.  Thanks Joe!

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