by: George P. Fletcher on March 8th, 2016 | 1 Comment »
Note: This is part two of a four part series by George P. Fletcher.
AND GOD SAID, LET US MAKE ADAM IN OUR IMAGE, AFTER OUR LIKENESS
Part II. God’s Image and Equality
This text has an unappreciated relationship to our commitment to human equality. In my class on Biblical Jurisprudence I usually begin by asking the students whether they agree that human equality is a premise of modern jurisprudence and if so, how they justify our commitment, A subsidiary question is whether if the law is so committed, can override the principle with an argument for affirmative action or some other social good.
Virtually all of the students begin with utilitarian arguments. The principle of equality allegedly maintains peace among different segments of society. This is a dubious claim. Wage inequality, which results from and sustains hierarchy, has reached disturbing proportions in the United States. No one seems disturbed by our continuing to prevent released felons from voting in many states (a factor, by the way, that enabled George W. Bush to win the 2000 election in Florida and the nation).
The only argument I have ever found to support our intuitive commitment to equality is the biblical premise. Abraham Lincoln revealed his commitment to the Bible when he interpreted the Declaration of Independence in the Gettysburg Address. There is no moral claim in any other legal system as powerful as: All Men are Created Equal. Of course, we understand this now to mean all persons (with many disputes about when personhood begins and ends). No other legal system even comes close to using this religious language. The typical European legal provision reads: All persons are equal before the law. As we know from the history of slavery, the law can not be distrusted as the ultimate arbiter of our values.
Anchoring human value in God’s image generates an argument for Lincoln’s commitment to equality. If God is the infinite value, and we are created in God’s image, then we must be equal. And you might say: well how does equality fare for atheists? Immanuel Kant secularized the argument in his Foundations of Morality by distinguishing human beings and things. Things have value, human beings are ‘beyond price’. Kant generated this argument by building on the insight that human beings have the capacity to universalize the premises of their actions into universal laws of nature.