This is the text of a talk given by a well known gadfly to a recent meeting of the membership of The Organization of Women Violently for a More Equal America. The speaker was booed and pelted with eggs and tomatoes. See if you can document any fallacies in his arguments. Send all correspondence to:
The Thomas Jefferson Society
7777 Mye Street
Hourtown, Texas 71234
Equality at any Price
A recent report on the gap in earnings between men and woman alleges that this gap has narrowed. In addition, there are now apparently more women than ever in the upper levels of management of small businesses, indicating that there may finally be a crack in the notorious glass ceiling that has kept women out of top positions.
So runs the conventional wisdom. Advocates of government actions to eliminate the disadvantages of minorities and women in the marketplace may take some comfort from this report and will see in it a vindication of such actions. Common sense suggests that the policy is working and common sense suggests that the policy is just. After all we all believe that discrimination based on race and gender (and some other things) is bad. Therefore, a policy that outlaws and punishes a bad thing must be good.
Unfortunately the argument is as flawed as it is simple. In this context common sense in wrong. (Common sense is after all a reflection of the basic presumptions that the members of any society harbor at any time.) Anti-discrimination laws and government anti-discrimination actions are immoral and their effect is at best unclear.
There are two separate issues -the morality of a policy and the effectiveness of a policy. They are related, but wherever possible should be kept separate. The moral question comes first. Moral positions cannot be proved by logic or evidence. They can only be argued for on grounds of consistency or reasonableness. I will present my own moral position, in general and as it relates to the issue of discrimination, with the conviction that most who will take the time to think about it carefully will agree with me that it is compelling.
But first let me state for the record that I believe that prejudice and discrimination are morally reprehensible. I believe in the inestimable value and uniqueness of each and every individual and I favor a social situation which will provide individuals with opportunities for each to realize his/her aspirations however he/she conceives them. I believe in the value of realizing individual potential. One should be very careful not to confuse the opposition to laws outlawing discrimination with the support of discriminatory views. It is all too easy to dispose of arguments with which one disagrees by attributing bad motives to its proponents. In this situation that tactic won't work. I abhor discrimination but I believe it should be legal. There is no contradiction.
II. The Moral Issue
How can this be? In order to understand this you have to understand that in a free society people will be free to do some immoral things. The important question is what should people be allowed to do? For me the highest value of all is freedom. But for me freedom has a very specific connotation. Basically, I believe that every individual should be free to do whatever he/she wishes to do as long as he/she does not compromise the freedom of others to do likewise. This of course begs the question, "what actions compromise the freedom of others?" And my answer is all actions that are physically coercive, actions that invade or plausibly threaten to invade the person or property of another. Thus where a discriminatory attitude leads to physical violence against the persons or property of a particular group I am for vigorous enforcement against such violence. But no separate laws about discrimination are necessary for this. The only laws we need are laws that define and enforce private property and respect for the physical integrity of each and every individual. In fact private property properly understood is both a necessary and a sufficient condition for the achievement of freedom as I understand it. People should be entitled to what they have acquired through voluntary exchange, inheritance or first appropriation (a difficult concept, so rare today that we don't have to worry about it here). And people or their heirs should not be entitled to what they have acquired by theft (involuntary exchange). The laws of private property naturally include the enforcement of private voluntary contracts including labor contracts.
You will say, "That is all very well and good, such freedoms are valuable and have been an indispensable part of the growth of our society and the achievement of prosperity for many, but if left unchecked by other restraints than the ones mentioned will produce gross inequality and injustice." I reply, not at all. I hold the value of freedom to be self evident and I hold all attempts to compromise it by collective action (which is what government policy is) as coercive. Some will argue that such coercion is justified and it is on this issue more than any that the moral question is to be decided.
There are two possibilities, the policy achieves its goal with certainty and clarity or the policy effects either fail or are uncertain. Let us assume first that it is possible to achieve greater equality between individuals by pursuing a policy against discrimination. One must therefore balance the gains in equality against any loss of individual freedom that is entailed by the policy. Even if it were true and could be shown that equality could be achieved I would reject the argument. And this is because I regard equality as a false norm not at all on the same plane as the value of freedom. The "equality" referred to here is equality of outcome the outcome being defined by someone, the fact finder (who should that be? What are the relevant facts?). Were it to refer to equality of rights under the law I would have no problem with it. It is the pursuit of equality of outcomes that entails unacceptable infringements on individual liberty. I confess I can, if pushed very hard, conceive of situations where I would be willing to sacrifice individual freedom for a "greater good". But the pursuit of equality by adopting anti-discrimination laws that interfere with individuals' rights to make and break private contracts is not even close to being one of them.
For me the policies are fundamentally immoral on their face. They reflect a particularly twentieth century preoccupation with outcomes as opposed to processes. This preoccupation with the morality of social outcomes as opposed to social processes is in turn a reflection of the hubris that has been produced by the phenomenal technological progress of the past few hundred years. Having successfully (so we believe) engineered many aspects of our physical world we have now come to believe that we can successfully engineer our society. And in the process we are seriously damaging our freedoms and, as I discuss later, our economy.
III. An Example
The consistency of my argument commends it and I will try to illustrate with a simple example. I want to start a study group in my house for my friends. I am a bigot and I am friendly only with white males. I have many friends. The study group is to meet frequently. Membership in the group is very valuable because I am brilliant and the knowledge I impart will equip the participants with considerable ability to find and pursue gainful employment. The likelihood of this situation is not at issue here. What is at issue is my right to discriminate in whom I invite to my house to participate in the study group. Would anyone argue that I do not have such a right? Would anyone wish to mandate a representative diversity of participants in the group? If not, why not? Because my house is my private property and although they may condemn my behavior as immoral they would generally not consider it appropriate to interfere with my private choices in this regard. And, after all, in a free society anyone else could establish their own study group and invite whomever they liked. When I discriminate against everyone but white males I am also hurting myself and my friends by depriving them of the opportunity to benefit from the insights of intelligent women for example. The latter will end up in a competitive study group, perhaps one headed by a black woman.
Why is this situation materially different from that of an employer in a private firm deciding whom he/she wants to employ? Why in the one situation does the sanctity of private property seem so compelling while in the other it is violated with impunity? I can think of no good reason except that we have incorrectly and dangerously come to think of the private workplace as a public domain. Even large private companies (that is, as distinguished from government corporations) are domains of private property. There is no categorical difference between my house and my business. Those who argue in favor of violating private property rights in the interests of equality of outcomes have not always understood the radical nature of their arguments.
And crude consequentialism won't work here either. It is no good to argue that the consequences of allowing discrimination in the home are not as dire as the consequences of allowing discrimination in the workplace. It is possible to conceive of situations where "social" discrimination over many generations has at least as detrimental consequences as discrimination in business. Would that change the answer to the above questions regarding the attenuation of individual rights? I sincerely hope not. Else we would be legislating whom people may or may not invite to their homes.
Similar examples abound, but considerations of time and space compel me to spare you a detailed explication. Suffice it to point out that it is often the very same people who defend an individual's right to read what he/she wants to read, to say what he/she wants to say, to love whom he/she wants to love that are quite content to tell the same individual whom he/she must employ.
IV. Morality in the Face of Uncertainty
This brings me to the second possibility, the situation when it is not clear that equality is actually achieved or achievable. This is the more likely possibility. The consequences of any social policy are intrinsically uncertain. Assessing the affects of anti-discrimination policies or any other social policies is no easy matter. It is hard enough in the biological and natural sciences to link certain effects unambiguously with certain causes. In the social sciences, as an empirical matter, it is virtually impossible. The assertion for example that affirmative action policies are responsible for the advancement of protected groups, is impossible to prove. How do we know what would have been in the absence of such policies? How do we know that the advancement that occurred might not have happened anyway or even exceeded current levels? This is not that fanciful. History and economic theory suggest that group advancement occurs naturally over time. In fact the progress of women and blacks has been quite slow by historical standards in spite of (or because of?) affirmative action policies.
So if the outcome of an anti-discrimination policy is uncertain, where shall we place the benefit of the doubt? Shall we justify the violation of individual liberty by the mere possibility (probability?) of achieving a greater equality of outcomes between the sexes and the races. Who has the burden of proof here, the defenders of liberty or the proponents of possible equality?
It may be just as well to summarize the argument thus far. I agree that discrimination is abhorrent. I believe however that people should be free to discriminate as long as they do not violate the all important rights of individuals to individual liberty as expressed through private property. I affirm also the right of individuals to speak out against as well as in favor of discrimination. The basis for this is the firm belief in the inviolability of individual freedom even when it is used in ways that we may not entirely agree with or when the outcomes are not those we would have liked. The moral cost of violating this principle is enormous though not widely recognized. But my position on this is further reinforced by the conviction that the actual outcomes of anti discrimination policies like affirmative action and the Equal Pay Act are in part unpredictable and in part quite the opposite of what is intended.
IV. Discrimination in an Adapting World
Our social system including our economic system is not the product of human design. There is no human mind, there is no group of human minds that is capable of designing our remarkable social and economic systems including as it does our technological systems, our legal systems, our linguistic systems, all of which work together to achieve outcomes that no one ever conceived as a whole. This extended order of human cooperation in effect though not in design is the result of a continual process of adaptation to unexpected and unpredictable events. I cannot imagine that anyone would want to argue that our social system in anything else but the result of a series of many individual adaptations that have proved after the event to be better suited to the situation than others. This is not an argument in social Darwinism that suggests that whatever or whoever survives is good. It is rather a simple assertion that our societal achievements are the result of our successes and our failures and the ability to experience both. The outcomes that have occurred could not have been planned, because planning presupposes a known outcome whereas adapting does not. Individually we do plan, though the outcomes are seldom exactly what we imagined them to be. But as a society we have only the illusion of planning.
Our individual adaptations occur when we use very local and not always consciously perceived information to make individual decisions usually in our own interests. We are led to unconsciously cooperate with other people because our welfare depends on them and vice versa. While a system that is based firmly on the principles of private property as explained earlier will not guarantee a utopia it will through competitive adaptation produce an extended order that is stable and for the most part prosperous. But more important for our purposes, it will, if allowed to operate properly, produce a society that tends to be non-discriminatory without violating individual freedom.
The reason for this is that discrimination is costly to those who practice it. It is more costly in a competitive system than in a bureaucratic one. An employer who discriminates against members of a group who are just as productive and the rest of the population will ultimately be at a disadvantage to his/her non-discriminating competitors. In a society where people are free to employ whomever they like at whatever pay they like, a group that is discriminated against by a large number or all of the employers will only be able to obtain work by agreeing to work for lower wages. In a society that prohibited this it would be more difficult for them to get employed. An equal pay law effectively takes away their ability to compete. The planners then respond by mandating their employment in numbers equal to their proportions in the labor force. It is a classic case of controls breeding controls - controlling wages leads to controlling employment - and is fraught with all of the pitfalls of attempting to plan in as essentially adaptive system that I will explore further below. But, if the society were free, and the victimized group were free to compete by offering their services at wages low enough to entice the discriminator to employ them, those employers who discriminated least and hired more of the equally qualified but victimized group, would tend to expand by virtue of having lower labor costs at the expense of their more discriminatory competitors. As they grow the employment opportunities for the victimized group will grow as well. The logical conclusion of this is either an equalization of pay at some point between the two groups' wage rates or completely segregated companies, the latter being most unlikely since the companies with the higher labor costs will eventually disappear completely.
The above argument ignores the possible reasons for discrimination. Employers may discriminate simply because they prefer some groups over another exercising a naked preference. Or, as is often the case, employers may have preconceived notions about the productivity of some groups as a whole and may use group membership as a means of judging the competence of the individual. In the latter case, a competitive labor market will provide a means for individuals to prove themselves to employers and a process of education results spontaneously.
You may object to these arguments on the grounds that wages should at all times reflect the worth of individuals regardless of race or gender. Such a view reflects the assumption that the social system is like a designed system rather than like an autonomous organism. It is not clear what a person's work is "worth" in an abstract sense. And it is not clear how equality of work would be determined in any individual case to tie it to equality of pay. The market is a system for discovering the worth of an individual's product. It is something that emerges from it, not something that can be decided prior to it. Mistakes will be made, including mistakes by discriminators, but, unlike other systems it provides a mechanism, described above, for automatically correcting mistakes.
Besides, as suggested in the previous section, in a world that is an adaptive one as opposed to a designed one where all the elements are predictably related, the attempt to outlaw and eliminate every action with which one disapproves will produce effects that no one could anticipate and which are sometimes worse that the original situation one tried to eliminate. In other words, the cure is often worse than the disease. The cure has unanticipated and pernicious side effects. And the cure is often ineffective. Any argument in favor of the legislation and enforcement of anti-discrimination laws should thus have to deal with not only the important ethical considerations discussed earlier but also the question of why we should not rely on the powerful competitive forces of the market to erode discriminatory differentials. Why should we have more faith in the processes of governmental enforcement than we do in the market process? My final, and in many ways most compelling, argument suggests that in fact there are very good reasons to have less faith in bureaucracies than in markets.
V. Public versus Private Incentives
Any policy enforcement has to deal with two insuperable obstacles. The first is lack of knowledge, the second is improper incentives. Any administrator or a court attempting to identify and rectify a case of discrimination as evidenced by economic outcomes like wages or positions, would have to substitute their judgment for the judgment of the private property owner, the employer. Now, of course the whole purpose for the law in the first place is that we don't trust the employer. But how can we be sure? When is the administrator's or his/her expert's opinion to be taken in preference to the employer's. The evidentiary issues are complicated and cannot be dealt with here. I would claim, however, that what passes as evidence of discrimination is more often than not subject to serious doubts. The question that is never asked is "How can an employer get away with discrimination in a competitive market?".
The question of incentives is crucial. The employer pays a price for discriminating and so has an incentive not to discriminate. It cannot be claimed that that incentive is always decisive, but its existence should be acknowledged. And so should the incentives facing the enforcers, the administrators of anti-discrimination policies. They are after all just human beings. They are subject to the same limitations as are the employers except that their knowledge and understanding of the particular employment situation is substantially less than the employer's. We cannot simply rely on them to be more public spirited just because they work in the public sector. They may be, but we cannot rely on it. Their careers depend on their successful detection and prosecution of discrimination. Is it too much to imagine that they will be inclined to see a discriminator under every rock and will use the formidable power of the government to pursue him/her? The result is a stultifying bureaucracy that imposes a substantial cost on doing business, a cost whose magnitude is already large and is growing, a cost in terms of complying with mountains of regulations, pursuing or avoiding expensive litigation, a cost of manpower, production and ultimately jobs.
In the face of the enforcement threat employers are inclined to follow employment and personnel policies that favor minorities more than a neutral policy would and this inevitably results in discrimination against non protected groups. In no way is it the best person that always gets the job. Affirmative action is basically a patronizing paternalistic policy that says to protected groups "since you can't make it on your own in the competitive marketplace we're going to help you along at the taxpayer's expense". Many minority spokesmen are now coming out against such policies.
The history of this country is replete with examples of ethnic groups who have "made it" by competing in the marketplace. Upon examination we will find that it is government, both directly and indirectly, by imposing anti-competitive conditions on the market in a multitude of ways, that is responsible for the perpetuation of discrimination rather than a force against it. In the final analysis what we as a society should be doing is paying more attention to keeping our labor markets free and competitive. Only then will we be able to serve the dual interests of freedom and efficiency.
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