Classical liberals claim that theories of justice must be judged by their practical capacity to facilitate positive sum games in society and to eliminate scope for the exercise of inconsistent and arbitrary political power. Unfortunately, as one of the recent rulings by the European Court of Justice reveals few people in today’s legal and political elites are willing to conceive justice in this regard. Three weeks ago the European Court ruled that it was inadmissible for car insurance providers to take into account sex-specific differences for risk assessment and actuarial purposes on the grounds that this breached the fundamental ‘right to equal treatment’ for men and women. As a consequence, European women will no longer be able to benefit from cheaper driving insurance resulting from their lesser likelihood of involvement in automobile accidents than men of equivalent age and experience. It is difficult to see how this decision is compatible with a positive sum view of society. Men will not be made any better off by the decision as their insurance premiums will at best remain unchanged and women will be made worse off as their previously cheaper premiums will now be equalised upwards in line with those of men.
The nature of this European ruling, however, reveals the wider incompatibility of egalitarian theories of justice with non-arbitrary rule. Egalitarians usually advocate ‘equalising’ policies on the grounds that inequalities are only justified if in some way they operate to raise the position of the ‘worst off’ (Rawlsians) or, if they stem from personal choices rather than from the ‘bad brute luck’ of genetic accident or social circumstance (the ‘luck egalitarian’ followers of Ronald Dworkin). According to these views, any inequalities that do not raise the position of the worst off or do not result from personal choices should be eradicated or compensated for in some way. The European Court’s ruling could certainly be construed in this vein. Charging lower (unequal) car insurance premiums for women might not be justified because this ‘unfair advantage’ does not benefit men in any way. And, differential premiums should be eradicated because the higher risk of accidents for men may not reflect their free choice to engage in riskier driving behaviour. Rather, such ‘choices’ may reflect a genetically determined propensity for men to take more risks than women, or alternatively the fact that many men have been socialised in a ‘macho culture’ which encourages them to take risks which are not genuinely of their ‘choosing’. It is not clear whether such principles directly informed the European Court’s interpretation of ‘equal treatment’ in this particular case, but if they did then all manner of dystopian policy consequences might follow from any non-arbitrary application of the relevant egalitarian doctrine.
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Mark Pennington is the author of Robust Political Economy: Classical Liberalism and the Future of Public Policy