Menke, Christoph. Reflections of Equality.

Simpson, Peter

MENKE, Christoph. Reflections of Equality. Translated by Howard Rouse and Andrei Denejkine. Stanford, California: Stanford University Press, 2006. xii + 226 pp. Paper, $24.95--This is a hard book. It is hard both because it deals with a hard subject, the relation between justice and equality, and because it is written in a special philosophical language, that of Hegelian dialectics. The first kind of difficulty would be impossible to remove without doing injustice to the subject; but the second kind could be removed without doing injustice to anybody.

What Menke says about equality is that it is dialectical. The claim that justice is equality is grounded in the appeal to individuality, for individuals are treated as individuals when they are treated equally or when no individual has, qua individual, more rights than another. But to treat individuals equally is to treat them as all the same, that is, not as individuals, who are irreplaceably unique, but as units, which are interchangeably the same. As Menke puts it: "The modern idea of equality and the normative obligation toward individuality are subject to an irresolvable dialectic: they only exist in their transition into their opposite" (pp. 7-8).

Menke's thesis is that Hegelian dialectics is as much now the way to understand what is going on as in nineteenth century Germany. In particular it is as much the way to understand Rawls as Derrida. Dialectics tells us that a discussion of Derrida's about the force of law is about how justice as law requires a foundation in a justice that precedes law, namely the justice that distinguishes between just and unjust laws and that, as such, takes the form and force of a law-less decision (ch. 2). Or in short dialectics tells us how law is founded on lawlessness. As for Anglo-American political philosophy dialectics tells us that whether freedom is Rawls' model of a chosen plan of life, or MacIntyre's and Sandel's participation in a community of values that is never chosen, or the romanticists' perfectionist experimentations (Menke means Schlegel and Nietzsche; he should include Locke's and Nozick's self-owners), it is always as much loss as gain. But losers become revolutionaries. So as there are always losers there is always revolution, and Anglo-American freedom finds itself founded on the perpetual disruption of freedom (chs. 4 and 5).

This point that Anglo-American political philosophy is a recipe not for peace or justice or freedom but for perpetual revolution I found to be an especially striking one. It enables Menke to give an account of actual life in liberal societies that is better than anything I have read in Rawls and others. This chapter 5 is the best in the book and worth reading for its own sake alone. The contrasting point about Derrida I found to be little more than a Hegelianized way of talking about the necessity for natural law.

Menke ends with a discussion of Carl Schmitt's Nazi era defense of sovereignty. This is not surprising. The disorder of perpetual revolution must eventually invite totalitarian suppression. To Schmitt's sovereignty of dictatorship Menke opposes his own sovereignty of mercy. Here, however, his Hegelian dialectics no longer helps. Whether a given sovereignty is merciful depends on what is prior to sovereignty, namely the virtue of the sovereign. Menke's book has nothing to say about virtue or its acquisition. Hegelian dialectics, it appears, works best with high level abstractions where paradoxes can be made almost to order (refer to p. 119: "by using legal and bureaucratic procedures the welfare state claims a power of definition with respect to something that can only be defined by individuals themselves, that is, that which constitutes their self-determined lives").

What then is the use of such dialectics, or what does Menke say with it that could not be said without it? That there is a justice prior to law, the justice that separates just from unjust laws, and a justice posterior to law, the justice that the law determines, is an old idea that we did not have to wait for Hegel or Derrida to understand. Even the provocative observation that Anglo-American liberal apologies are promoting perpetual and violent revolution, even if Hegelian dialectics was used to bring it to our attention, can be said without the Hegelianizing.

Moreover, many a puzzle only appears to be a puzzle because Hegelianized. This is true of the puzzle around which Menke's book revolves, namely that justice must treat individuals who are all different as if they were the same. For did not Aristotle provide a non-dialectical solution to that long ago? Justice is indeed equality, but proportional equality (something about which Menke's book says nothing). Justice is when each gets what accords with his deserts so that A gets what accords with A's deserts and B what accords with B's deserts. In this way A and B are treated the same, because they both get what they deserve, and treated differently, because they each get what each deserves and not what the other deserves. Thus they are treated the same without losing anything of their individual difference. That seems clear enough. So why conjure up dialectical paradoxes just to say it differently?--Peter Simpson, City University of New York.