Formal and substantive equality

There are two kinds of equality – formal equality and substantive equality. The idea that all men are born equal expresses formal equality, and everybody agrees with that. But the idea that everybody should have the same amount of wealth expresses substantive equality, and that's a bit more difficult to justify. Why should people be equal in relation to the amount of stuff they have? Why is it unfair for someone else to have more stuff than you? Why do you get to specify exactly how much more they're allowed to have, before you start feeling that it's 'too much'?

​Formal equality requires nothing more than that you should come forth into the world as a human being, and you immediately become entitled to the same protection under the law as all other human beings. Substantive equality essentially requires a bit more: other people will have to be forced by law to help others out here and take some off others there so they can make everything more equal.

Helping others out is arguably a moral imperative (for those whose consciences point, as they should, in that direction), but should it be a legal imperative?

​Formal equality means that everyone has the right to take part in the race. Nobody can be denied the right to participate based on arbitrary factors like the colour of their eyes. Everyone has the right to present themselves at the starting line, and when the gun goes off it’s each man for himself and may the fastest runner win the race.

​Substantive equality means that everyone has an equal chance of winning the race, meaning that those who are slow runners should be given a head start – they will obviously need more time than the faster runners, so it’s only fair that they should be allowed to start running before the gun goes off. Alternatively, they could run a shorter race, by being allowed to start at some point halfway down the track rather than join everyone else at the starting line. That way the outcome will be fair.

​​It’s easy to see that substantive equality is better than formal equality if you’re looking for fair outcomes. There are many laws designed to give ‘extra’ help to achieve substantive equality, like laws protecting children. Formal equality between adults and children on grounds that both are equally human would not achieve fair outcomes for children. So the 1833 Factory Act restricted the working hours of children when there were as yet no similar restrictions on the working hours of adults. That’s an analogy that everyone can appreciate, as most people would agree that fairness is important when children are involved.

​But other analogies are more controversial, especially in the context of economic equality. Should the same logic apply to achieving fairness of economic outcomes? When it comes to economic outcomes, should we rely on formal equality where we focus on equal opportunities, or substantive equality where we focus on equal outcomes?
 
In the context of market economies, formal equality would mean the right to participate in open markets: the right to make contracts with other people, to buy and sell property, to start a business, to apply for a job, etc. These are rights that everyone has because they’re human. But these formal rights do not achieve equal outcomes. In a free market, people who are well-read and have a good work ethic tend to achieve better outcomes than people who are illiterate and never arise from their mat before noon. Substantive equality would require that we look at people’s background, for example, and if someone is suffering market-related disadvantages owing to a poor upbringing (weak schooling or weak parenting, not his fault) then he could be given some kind of head start.
 
Formal equality tends to fit easily within a free market framework, because formal equality does not require anybody to do anything to achieve it – formal equality merely requires that nobody should actively do anything to impede other people in their progress. No cheating, no stealing, no stabbing anyone in the back. Everyone is then left free to take their chances and see what is to be seen. Legal rights are defined in negative 'thou shalt not' terms with laws prohibiting theft and fraud, and prohibiting wrongful interference in the business affairs of other people. Everyone then has free rein to pursue their goals and dreams.

​Economic liberties give people an equal right to compete for positions on the basis of their talents and ambitions, empowering each of them to become more fully the authors of their own lives. As an ideal, equality requires that no individual or group face legal restrictions on their ambitions or life plans that are based on the prejudices (or self-interest) of others. Everyone should have an equal right to participate and compete.

John Tomasi, Free Market Fairness, p. 25

Substantive equality fits less easily into the free market framework because it requires something more to be done to achieve it. In fact it requires quite a lot to be done, with a rich framework of complex rules and regulations to support it. There must be a way to identify the inequalities, identify the vulnerable people who suffer from the inequalities, determine the best way to help them, classify who qualifies for help, decide exactly what help or support they should get, and who should pay for it.

Figuring out all that is not as easy as you’d think. Here legal rights are defined in positive 'you must provide' terms imposing a duty on Someone* to provide various things to put everyone substantively in the same position eg by giving them a right to be given a free house, free food, and maybe some extra free money. This ends up becoming a bit controversial because free money grows on taxpayers and not all the taxpayers want to cough up. Before long, there are endless political debates about the affordability of the welfare state and all the foreign aid sent to help poor people in kleptocratic** third world countries. All this just because someone thought it would be only fair to promote substantive equality.

​
*Someone generally refers to the government but it could also be left vague and undefined by specifying duties without assigning to anyone the burden of that duty as when we say 'someone should help those poor people'. Obviously we have no particular person in mind, and we should not be taken to be in any way volunteering ourselves. It's more a way of making a moral pronouncement about what should happen. In the context of the modern workplace 'someone' obviously means the employer because employers generally have spare resources lying around for exactly that purpose. 

**Kleptocratic is, of course, the word Donald Trump was looking for when he said rude words about third world countries.