Belmont Club

Law for legends

It was Auden who observed that maybe we really don’t want to treat people equally. In his poem, In Memory of WB Yeats, he argued that the intellectual world has always had two standards: one of the talented and other for the rest of us.


Time that is intolerant
Of the brave and the innocent,
And indifferent in a week
To a beautiful physique,
Worships language and forgives
Everyone by whom it lives;
Pardons cowardice, conceit,
Lays its honours at their feet.
Time that with this strange excuse
Pardoned Kipling and his views,
And will pardon Paul Claudel,
Pardons him for writing well.

Roman Polanski’s arrest in Switzerland underscored this. The arrest has outraged the Poles and the French and many public intellectuals, not because Polanski didn’t commit the crime: he pleaded guilty to it; not because there’s any doubt that he’s a fugitive: he was. The outrage really stems from the idea that Roman Polanski, a man of genius and a tormented background, should be treated like a common criminal. And when you think about it, the only population that can naturally be treated as common criminals are common criminals. Uncommon criminals ill-suit the case. For much of human history, inequality before the law was the norm, and it was regarded as perfectly natural that different rules should apply to different classes of people. Institutions like the Star Chamber were invented precisely to deal with those who could not be classed with the common herd.

The Star Chamber (Latin Camera stellata) was an English court of law that sat at the royal Palace of Westminster until 1641. … the court was set up to ensure the fair enforcement of laws against prominent people, those so powerful that ordinary courts could never convict them of their crimes. Court sessions were held in secret, with no indictments, no right of appeal, no juries, and no witnesses.


But it isn’t just the talented who have a right to special treatment. Auden would have been surprised to discover that the argument for exceptionalism could be made going the other way: if society was obliged to forgive the right hand tail of the distribution, the left-hand side of the Gaussian curve could make a similar claim. Recently, the Tucson Unified School District was criticized for establishing two sets of disciplinary regimes. One for black and latino students and another for everyone else. The scheme was essentially accused of adjusting behavioral standards to equalize disciplinary violation statistics among students. And one way to do that was to create differential rules. State schools chief Tom Horne said:

“When you issue a decree that we want to reduce the discipline of minority students, you’re sending a message to teachers that if they have a student who is misbehaving and who is in a protected class, then they need to treat that student more leniently.” … Horne said it was unreasonable to expect perfect racial parity in disciplinary rates. When asked to explain why minority students have higher disciplinary rates, he said he’s been given no evidence that students of different ethnic backgrounds were being punished differently for the same offense.

It is counterintuitive and somewhat surprising to discover that the arguments for aristocracy and and affirmative discrimination are structurally identical. What differs is which crowd gets the special treatment. When Mark Lloyd, the President’s “diversity czar” recently argued that some white people would have to “step down” in order to allow people of color to occupy their positions if “equality” or to use the more current term “diversity” was to be attained, he was only restating what Austrian economist Friedrich Hayek already knew. Hayek believed that equality before the law necessarily led to material inequality because treating unequally endowed people the same would result in some doing better than others. He wrote:


“From the fact that people are very different it follows that, if we treat them equally, the result must be inequality in their actual position, and that the only way to place them in an equal position would be to treat them differently. Equality before the law and material equality are therefore not only different but are in   conflict with each other; and we can achieve either one or the other, but not both at the same time”

But these same equal laws, having given rise to inequality at once becomes a hindrance. From the viewpoint of genius or underachievement, the average is a damned inconvenience, and possibly an injustice. It creates a Procrustean bed, which could not possibly take into account the circumstances of anyone other than the statistically average man. James Robbins recently wrote The Last in Their Class, about the “goats” of West Point and makes the case that those who distinguished themselves by low grades and troublemaking, like Ephraim Kirby Smith, George Armstrong Custer, Edgar Allen Poe, James McNeill Whistler and George Pickett were as talented in their own way as those at the top of their class. They certainly weren’t ordinary. And it was the ordinary that Vladimir Nabokov scorned. In an essay entitled Philistines and Philistinism, he inveighed against the average man:

He is the conformist, the man who conforms to his group … The philistine, in his passionate urge to conform, to belong, to join, is torn between two longings: to act as everybody does, to admire, to use this or that thing because millions of people do …


About the only thing the average man can say in defense is to invoke an imperceptible equality; to implausibly argue that unequal men should opt to regard each other, in some fundamental sense as equivalent. Perhaps the only real reason for equality before human law is that we choose to submit to it. It’s an act of will and not a statement of condition. We are not naturally each other’s keepers; we must choose to be. Roger Simon, caught the dilemma exactly when he wrote, “I’m … angry at U. S. authorities for bringing this up after all this time and angry at Roman for not facing the reality of his actions.” The perfect ending would be for Mr. Polanski to face the consequences of his actions voluntarily, for his own sake. Somehow I doubt he will, but who knows?

Seven years, only seven years! At the beginning of their happiness at some moments they were both ready to look on those seven years as though they were seven days. He did not know that the new life would not be given him for nothing, that he would have to pay dearly for it, that it would cost him great striving, great suffering. But that is the beginning of a new story – the story of the gradual renewal of a man, the story of his gradual regeneration, of his passing from one world into another, of his initiation into a new unknown life. That might be the subject of a new story, but our present story is ended. — Crime and Punishment


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