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
I.
Introduction
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.
VI.
Conclusion
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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