perfectionism might also take a softer but still elitist form: what is of greatest value
is the sustenance, or transmission from one generation to the next, of cultural goods.
This might well require a class-based society in which elites transmit values to the
masses.Legal equality
We need now to move from moral equality to more specific principles of equality,
although the concept of moral equality must always be in the background. A starting
point for building up a more substantial political theory would be to distinguish
the core legal–political institutions from broader socio-economic institutions. In most
societies, but especially liberal–democratic ones, the core institutions of the state
are divided into legislature, executive and judiciary. Put simply, the legislature
creates laws, the executive administers powers created through law, and the judiciary
interprets and enforces the law. But a social institution is any large-scale, rule-
governed activity, and can include the economic organisation of society, such as
the basic rules of property ownership, and various services provided by the state
that extend beyond simply the creation and implementation of law. We will deal
with the wider concept of a social institution later, but in this section we will
concentrate on the narrower concept.
We need to distinguish ‘equality before the law’ and ‘equal civil liberties’. To be
equal before the law is to be equally subject to the law, whereas to possess civil
liberties is to be in a position to do certain things, such as vote or express an opinion,
and obviously we are equal when we possess the same liberties. There is, however,
a close relationship between equality before the law and equality of civil liberties,
and a historical example will help to illustrate this point. On 15 September 1935
the German Parliament (Reichstag) adopted the so-called ‘Nuremberg Laws’
governing German citizenship, one of which defined German citizenship (citizenship
law, or Reichsbürgergesetz). The law made a distinction between a subject of the
state (Staatsangehöriger) and a citizen (Reichsbürger). Article 1 stated that ‘a subject
of the state is one who belongs to the protective union of the German Reich’, while
Article 2 stated that ‘a citizen of the Reich may be only one who is of German or
kindred blood, and who, through his behaviour, shows that he is both desirous and
personally fit to serve loyally the German people and the Reich’. Only citizens were
to enjoy full, and equal, political rights. The First Supplementary Decree (14
November 1935) classified subjects by blood, and denied citizenship to Jews, where
Jewishness was defined by the state.
It could be argued that these citizenship laws are compatible with equality before
the law, since all subjects are equally subject to the law, despite the fact that the
laws are themselves discriminatory (and much the same argument could be applied
to the laws of Apartheid South Africa). While on the face of it this argument appears
valid, and seems to show how weak both the idea of moral equality and equality
before the law are, there are grounds for arguing that Nazi Germany could not
maintain that all subjects were equal before the law. US legal theorist Lon Fuller,
writing in the early post-war period, observed that Nazi law was not really law atChapter 3 Equality 61