Equality, Flourishing, and the Existence of Legal Absolutes

Abstract

This paper was delivered at a conference on ‘Law as a Guide to Justice’, on Saturday 4 March 2017. The conference was held in honour of Amanda Perreau-Saussine Ezcurra, who died on August 2, 2012, at the age of 41. My paper is based on two observations: (1) that the dominant vision of human flourishing in Western culture (what I call the ‘RP’) is a Possessions Model of human flourishing, under which someone can only be said to be flourishing if they possess a particular set of goods; (2) that the kind of exceptionless prohibitions that Amanda Perreau-Saussine expected to find in the law are actually very rare in Anglo-centric systems of law and those which do exist are coming under increasing pressure. I suggest in my paper that these two observations are linked by virtue of the fact that it is simply not possible for everyone in a given society to enjoy the kind of life that the RP tells us is a flourishing life (what I call ‘RP flourishing’). This means that choices have to be made as to who RP flourishes and who does not, and results in the dominant mindset in Western societies becoming utilitarian in nature. I go on to suggest that exceptionless legal prohibitions will only become the norm again if we adopt a quite different vision of human flourishing, based on a Journey Model of human flourishing, according to which someone’s flourishing depends on the direction in which their life is going. I then argue that we should make this switch, from thinking of human flourishing in terms of RP flourishing to thinking of human flourishing as based on a Journey Model of human flourishing, as any vision of human flourishing that cannot be enjoyed equally by everyone automatically condemns itself as incorrect. We can only live in a society that can be said to amount to a form of friendship – where people share equally in the enjoyment of common goods – if we give up on the Possessions Model of human flourishing that underlies the RP and adopt a Journey Model instead.