19. Equity
In the last issue, I wrote, “hard-boiled eggs shouldn’t make us forget the egg timer”. Know that I borrowed verbatim this expression from Jean Gagnepain, in one of the three volumes of his “Vouloir dire”. All those of you who find the volume number and the exact page of this expression will receive a signed copy of my “Introduction de la théorie de la médiation (Introduction of the theory of mediation)”! Tell those of your friends that may be interested in our little game, for we are indeed nearing holidays of the end of the year, a time favorable to reading. Now, onto equity, if you don’t mind.
You have most assuredly noticed that I am referring to equity and not to equality, such distinction of course being deliberate as any society has no other choice than to suppose a certain consensus if it is willing to achieve the social peace to which I referred last time, since its purpose is to solve, or at least to hide conflicts. Such consensus may not be reached unless the exchanges seem fair. Yet you should note that the sole societies that speak so fondly of equity are the “democratic” ones, which are also (at least apparently) the most unequal and iniquitous.
Actually, there’s no common and shared idea of equity, since the various kinds of socio-political organizations have no relation to the desire for order that it fulfills or to the type of political system. The fair allocation is an issue for every society, whatever its political system may be (democracy, tyranny, monarchical, etc.). The Roman law “cuique suum” (To Each His Own) expressed this idea. The Roman idea of justice is for everybody to pronounce his own. To which you will reply to me “it depends on the definition of everybody and of his own”. Naturally: everything lies upon the foundation of the system ruling the social contract. For the Latin, the system is based on “fate”, the lot given by the Three Fates who spin the destiny of men. In other words, everyone accepted its fate because he had this fair idea of balance. Islam leans also toward the same principles. It is often said that Muslims are passive, fatalistic and submissive, but that isn’t true. Everyone simply conform to his fate. The caliph’s lot isn’t the same as the water carrier’s, and everyone agrees with such condition. It’s not a matter of resignation, but of gratitude towards Allah who sets the earthly condition of people. It’s thus fare from a submissiveness, the point is to comply with the rules: the Muslim is he who is in peace (“salaam”), or in other words he who is abiding by the rules, i.e. who lives in accordance with a fair allocation. Not respecting the rule is an infringement to piety, a failure to respect the “hachouma”, i.e. the decency, the modesty, the reserve. It’s the equivalent of the Greek “aïdôs”, which shares all these meanings. The presence of the Greek goddess “Nemesis” (a parent word of “nomos”, the Law) should also be strongly emphasized. This goddess punished any failure to equity and to the three “Moïrai”, later inherited by Romans as the Fates. Moreover, the most interesting thing is that “Moïrai” and “meros” (the part, the share) share a common root, root also shared with the verb “Moïrai”, which signification is to share, to allocate. This very idea of distribution is found in Schiller’s words in the poem “Die Teilung der Erde”, i.e. in Zeus’ distribution of the earthly goods. The French medieval expression of “portion congrue” (the exact, the decent portion).
I can’t resist reading you the first stanza of the versified translation of Schiller’s poetry, courtesy of a good friend, Jean Malaplate, who is also the first to give the French people a versified translation of both “Faust” of Goethe (which is an exploit in itself!). So, “The Division of the Earth”, a German poetry of Friedrich Schiller:
“Take the world!” Zeus exclaim’d from his throne in the skies
To the children of man – “Take the world I now give;
It shall ever remain as your heirloom and prize
So divide it as brothers, and happily live.”
It don’t tell you all this for the pleasure of impressing you with my culture. I am merely telling you that the issue of equity has no relation to morals. It is rather related to respectability: fairness implies the respect of a certain social order. Norm is only made from virtue, hence the ridiculousness of those talking about “civic morals”, “citizen morals”, “social justice” etc, since civics is never virtue. Equity is rather based on what we used to call “honneur” (honor), which is the equivalent of the ancient Greek “aïdôs” or the Muslim “hachouma”. Sure, the marchioness of Rambouillet had affairs, but she only mingled with people from the same backgrounds. Her honor was intact!
You should also know that the issue of equity has nothing to do with the political system: there were happy people in the Pharaohs’ Egypt, Stalin’s Russia or Hitler’s Germany. How much of them there was is another problem entirely. The point is whatever the political system is, some people are always happy. There’s equity when there’s not much discontent, when the situation is stable enough to become a “state”, with a lower-case and in the Latin meaning of “status” (“that which is stable”), a more or less permanent condition of a given society. The Pharaohs’ Egypt and the emperors’ China are two cases of longevity records. We can also take the example of the Indian caste system, which works all the better since there’s no mixing: the roles are so strictly divided that people from different castes never meet. They are living in completely different planets! Since the reign of Ashoka (roughly 6th and 5th century BC), everybody is at its place, everyone submits to its destiny and complies with the “dharma”, which defines the agreement between castes (it’s a moral, religious and civil law). Consider also our own feudal system: nowadays, few would regard it as positive, but a historian can’t prevent himself from wondering why such system lasted so long? I am referring you to my “Introduction…, pp 84-87, on this topic. The feudal system invented also the “danse macabre”, just as the Indians invented the metempsychosis (The danse macabre featured a complete reversal of society, sort of the communism’s Grand Soir).
Equity is thus in essence a (natural) promotion of social peace whose purpose is that everybody be content with his lot and submits to it without seeking to disrupt it. Once again, it has no relation whatsoever with moral: equity doesn’t depend on the morality, or the amorality, of a system. A degree of equity – a law, be it divine or customary – is always possible how amoral the existing social contract may be. In one case, the divine is a kind of transcendence of the law (the Dharma, the Torah or the Koran), the foundation of the social order, the guarantee of the social law, whereas in the other case tradition dictates obligation, which is a law absolutely subject to prescription since it is engraved in customs. In both cases though, equity was always lived, and never stated, precisely because it was lived.
When was this issue of equity raised? With the emergence of modern democracies. And that’s funny. Equity was lived before, and never stated. On the contrary, equity became a permanent issue among modern democracies since they challenged the social system based on customary law and tradition. You can understand why as these democracies were politically forced to raise this issue, they were the first to state it and tried to address it as much as they could in a more or less clever way, mostly by proclaiming the equality. We can certainly say that the idea of equality in 1789 France was indeed an idea of equity, seen as the fulfillment of the desire of cohesion of a constituted group (the “group”), such group not to be confused with universality since it was constituted of bourgeois. Hence the absence of the word “equity” in the Declaration of Human Rights! This system was thus perfectly admitting that despite equality on principles, there might be more or less equality. In short, the Republican equality could (nor wished?) not settle this issue of equity, which resulted in the Revolution of 1848, the Commune of 1870, the two dictatorships (with Napoleon I and Napoleon III), the Front Populaire, the “class war” and so on.
This issue isn’t settled yet nowadays: ever since Badinter, everybody holds up the “Rechtsstaat”, the State of rights, even though it’s an empty shell. The French seem to have completely lost the sense of equity, and nothing can prevent it, with at least some sound reasons since the Republican equality is in truth an acute iniquity: if both the CEO of Renault and one of its workers jump the lights, they would be subjected to the same fine. Do you think it’s fair? When this same CEO and his worker buy a disc, they pay the same Value-Added Tax. Is that fair as well? And that a former Head of State would be brought to justice, do you find that fair? We cannot answer that question, since in France, equity is no longer lived since 1789.
The coming of bourgeoisie and its idea of equality lead to a whole mess in our country. It should be noted that the people never asked for equality before 1789, since the people knew fairly well that he would always be duped. Equality was actually requested by the Tiers-Etat (Third Estate), those who were then at the third rank in the system, the bourgeoisie who was terribly jealous of the two other estates (the nobility and the clergy). Before the Revolution, a nobleman was not treated as a clergyman or a man from the Tiers-Etat, which is to say the Law made distinction between peoples. That was called a “privilege”. There was always a privilege in the Roman “lex”! You can verify this through the Pandects, these digest of decisions taken by Roman jurists by order of the emperor Justinian I. They are still “cuique suum”, but the “his own” part differs according to the rank.
Equity is thus essentially what grants a provisional semblance of balance to a society. This balance is itself a state, with lower-case, exactly like when one refers to state of bodies and change of state (solid, liquid, gaseous) when talking about nature. Even though some more or less balanced configuration may last a long time. The more the lived traditions are prescriptive the more the state last. In short, equity is an issue of legality.
Yet who does talk about legality? The Law, which is this thing that everybody is supposed to know (nemo censetur ignorare legem), well nobody talks about it save when it comes to say that it should be respected. The question of its theory should at least be tackled. Legality is a balance, a rule of the game, a system of relations of obligation that can be defined within a given community, but which is simultaneously its own purpose. It is called custom, which, for arbitrary as it may be, is upon us because we are legal beings (the animals has no customs or legality). As such, legality doesn’t need to seek for its foundations. Alternatively, if it does so, it should be noted that legality is rooted in our ability to emerge from it as human beings, to go from herd to society (or from biology to history). Such is the sole basis of legality. You may now perceive how Justice results from these relations of obligation. Justice and “Common Good” are entirely separated. They should never be related. Henceforth the question is no more “is it fair to bring Chirac to Justice?” but “does this trial take Common Good in consideration?”.
A deeper analysis is required, since French are too often stuck in the spirit of the Revolution of 89, resulting in the production of promulgated laws that were opposed to custom (a right subject to prescription since it is engraved in habits, therefore written nowhere but by which everybody abides). Yet the thought that the nature of the obligation changes whether the law is customary or promulgated by few men is a proof of gullibility. There’s no reason at all to make a difference between customary law and promulgated law: the promulgation doesn’t modify the nature of the obligation (at least in theory). And as French, we sure know that a promulgated law is made to be more easily avoided than a customary law.
And with that, I bid you a wonderful holiday!