Should We Be Free To Discriminate?

A case has recently been in the news and is being decided by the Supreme Court. It concerns a cake designer who doesn’t want to bake cakes for homosexual “marriages.” Is the cake  designer free to refuse, on grounds of freedom of religion—the designer’s religion doesn’t recognize such “marriages” as legitimate, or must homosexuals be served, because the cake-making service is a public accommodation that must be open to any customer who can pay for the service provided? This question frames the basic issue the wrong way. If you offer a service or sell a good, you should be free to sell it to whomever you want, or to refuse it sell it.  A sale and purchase is a voluntary transaction that requires the consent of all the parties to the deal. Thus, if a cake designer doesn’t want to sell cakes to homosexuals, he should be free to refuse. He isn’t required to claim that selling the cake goes against his religion. What if he just doesn’t like homosexuals, but doesn’t allege that his religion backs him up in this dislike? He should be free to “discriminate” in any way he wishes. In arguing in this way, we are following the principles of the greatest twentieth-century theorist of a free society, Murray Rothbard.

Exactly the same principle applies in employment. You should be free to hire and fire any workers you want in your business, regardless of your reason. As  Murray points out in his great book Power and Market, “A very common criticism of the libertarian position runs as follows: Of course we do not like violence, and libertarians perform a useful service in stressing its dangers. But you are very simpliste because you ignore the other significant forms of coercion exercised in society—private coercive power, apart from the violence wielded by the State or the criminal. The government should stand ready to employ its coercion to check or offset this private coercion.

In the first place, this seeming difficulty for libertarian doctrine may quickly be removed by limiting the concept of coercion to the use of violence. This narrowing would have the further merit of strictly confining the legalized violence of the police and the judiciary to the sphere of its competence: combatting violence. But we can go even further, for we can show the inherent contradictions in the broader concept of coercion.

A well-known type of ‘private coercion’ is the vague but ominous-sounding ‘economic power.’ A favorite illustration of the wielding of such ‘power’ is the case of a worker fired from his job, especially by a large corporation. Is this not ‘as bad as’ violent coercion against the property of the worker? Is this not another, subtler form of robbery of the worker, since he is being deprived of money that he would have received if the employer had not wielded his ‘economic power’?

Let us look at this situation closely. What exactly has the employer done? He has refused to continue to make a certain exchange, which the worker preferred to continue making. Specifically, A, the employer, refuses to sell a certain sum of money in exchange for the purchase of B’s labor services. B would like to make a certain exchange; A would not. The same principle may apply to all the exchanges throughout the length and breadth of the economy. A worker exchanges labor for money with an employer; a retailer exchanges eggs for money with a customer; a patient exchanges money with a doctor for his services; and so forth. Under a regime of freedom, where no violence is permitted, every man has the power either to make or not to make exchanges as and with whom he sees fit. Then, when exchanges are made, both parties benefit. We have seen that if an exchange is coerced, at least one party loses. It is doubtful whether even a robber gains in the long run, for a society in which violence and tyranny are practiced on a large scale will so lower productivity and become so much infected with fear and hate that even the robbers may be unhappy when they compare their lot with what it might be if they engaged in production and exchange in the free market.

‘Economic power,’ then, is simply the right under freedom to refuse to make an exchange. Every man has this power. Every man has the same right to refuse to make a proffered exchange.

Now, it should become evident that the ‘middle-of-the-road’ statist, who concedes the evil of violence but adds that the violence of government is sometimes necessary to counteract the ‘private coercion of economic power,” is caught in an impossible contradiction. A refuses to make an exchange with B. What are we to say, or what is the government to do, if B brandishes a gun and orders A to make the exchange? This is the crucial question. There are only two positions we may take on the matter: either that B is committing violence and should be stopped at once, or that B is perfectly justified in taking this step because he is simply ‘counteracting the subtle coercion’ of economic power wielded by A. Either the defense agency must rush to the defense of A, or it deliberately refuses to do so, perhaps aiding B (or doing B’s work for him). There is no middle ground!

B is committing violence; there is no question about that. In the terms of both doctrines, this violence is either invasive and therefore unjust, or defensive and therefore just. If we adopt the  ‘economic-power’ argument, we must choose the latter position; if we reject it, we must adopt the former. If we choose the ‘economic-power’ concept, we must employ violence to combat any refusal of exchange; if we reject it, we employ violence to prevent any violent imposition of exchange. There is no way to escape this either-or choice. The ‘middle-of-the-road’ statist cannot logically say that there are ‘many forms’ of unjustified coercion. He must choose one or the other and take his stand accordingly. Either he must say that there is only one form of illegal coercion—overt physical violence—or he must say that there is only one form of illegal coercion—refusal to exchange.

We have already fully described the sort of society built on libertarian foundations—a society marked by peace, harmony, liberty, maximum utility for all, and progressive improvement in living standards. What would be the consequence of adopting the ‘economic-power’ premise? It would be a society of slavery: for what else is prohibiting the refusal to work? It would also be a society where the overt initiators of violence would be treated with kindness, while their victims would be upbraided as being “really” responsible for their own plight. Such a society would be truly a war of all against all, a world in which conquest and exploitation would rage unchecked.

Let us analyze further the contrast between the power of violence and ‘economic power,’ between, in short, the victim of a bandit and the man who loses his job with the Ford Motor Company. Let us symbolize, in each case, the alleged power-wielder as P and the supposed victim as X. In the case of the bandit or robber, P plunders X. P lives, in short, by battening off X and all the other X’s. This is the meaning of power in its original, political sense. But what of ‘economic power”? Here, by contrast, X, the would-be employee, is asserting a strident claim to P’s property! In this case, X is plundering P instead of the other way around. Those who lament the plight of the automobile worker who cannot obtain a job with Ford do not seem to realize that before Ford and without Ford there would be no such job to be obtained at all. No one, therefore, can have any sort of ‘natural right’ to a Ford job, whereas it is meaningful to assert a natural right to liberty, a right which each person may have without depending on the existence of others (such as Ford). In short, the libertarian doctrine, which proclaims a natural right of defense against political power, is coherent and meaningful, but any proclaimed right of defense against ‘economic power’ makes no sense at all. Here, indeed, are enormous differences between the two concepts of ‘power.’”

The economist Ben O’Neill gives an excellent account of the case for discrimination: “If there were a prize for the most boneheaded thing that one hears very frequently, it would have to be the astonishment and revulsion that is commonly expressed at the existence of discrimination. You are likely to have heard this horrified expression before: ‘It’s discrimination!’ Heavens above! Alert the authorities!

Quite often, this tiny statement, without any elaboration or explanation, is enough to provoke looks of shock or revulsion from others, or at the very least, solemn looks of concurrence and disapproval. In many cases, it will provoke fervent denials and apologetic defensive maneuvers from those accused of this heinous act, even if the accuser has made no attempt to deliver his case. The mere charge is enough.

People do not often realize it, but when they disparage ‘discrimination’ without any attempt to elaborate or justify what they are talking about, they are disparaging an abstraction. Moreover, they are disparaging an abstraction on which they rely to think — an abstraction without which they would be docile vegetables unable to make sense of the world around them. When someone shrieks ‘It’s discrimination!’ the irony is usually lost on them, but without their own discrimination they would not be able to establish that others are discriminating, and be offended by it.

If one does venture to ask questions about why discrimination is to be condemned, one may be treated to a slight elaboration as to what is upsetting people. One may be informed that so-and-so is discriminating on the basis of race, sex, age, sexual orientation, political affiliation, attractiveness, or some other factor that should not be a part of his decision making, and that just settles the matter, consarn it!

But what is relevant to rational thinking, moral conduct, and justice is not whether discrimination has occurred, or even whether such discrimination is made on the basis of some particular set of purportedly prohibited criteria; what should ultimately be at issue is the reasons why the factors used in a decision were used, and whether these factors do indeed form a rational basis for the inferences that underlie discriminatory decisions (by which I mean, all decisions). In assessing the rationality, irrationality, morality, or immorality of particular instances of discrimination, it behooves us to ask the reasons for discrimination and to assess these reasons in the light of the logic of inference. This may sound trite, but it is a step rarely taken in the rush to disparage the ghastly abstraction of ‘discrimination.’ . .

Discrimination on the basis of predictive characteristics which are correlated with characteristic of direct interest is a form of rational discrimination. While it is often slandered as an injustice, rational discrimination is both rational and morally proper. In fact, since justice is the rational assessment and treatment of other people, rational discrimination is a necessary requirement for justice and the refusal to engage in such discrimination is itself an injustice.

Even sex and race discrimination, the coup de grande of modern taboos, often involve little more than the recognition that these characteristics are correlated with qualities and behaviors that are of legitimate interest in many decisions. When taxi drivers in Washington DC discriminate against young black men in their choice of passengers, they do so because they know that sex, age, and race are all correlated with violent crime, which they wish to avoid. These people are not bigots or morons — they are intelligent people who are implicitly applying the lessons of the science of statistical inference, even if they are only aware of these ideas on an intuitive or “common-sense” level.

Is it a breach of a person’s civil rights to be denied taxi service on the basis of their race, sex, or age? According to civil rights groups, it is. But unless one has some inherent right to service from others, then it cannot be a breach of rights when this service is denied, no matter what the grounds for the denial. Indeed, if rights are understood to be grounded in the nonaggression principle, then this must include the right to use one’s property in a discriminatory manner, a fortiori when that discrimination is rational.

A cab driver who operates his cab without engaging in rational race discrimination, sex discrimination, or age discrimination does the world no favors. While he will probably end up giving service to people who are not criminals, and who may have been avoided by other drivers, he is also more likely to give service to those who will rob and assault him. If he ignores his own rational inferences then he will weigh the risks against the rewards incorrectly, playing into the hands of violent thugs.

Unfortunately, the cab driver has another set of violent thugs to contend with, since he is the target of the coercion of government and its activist minions. The government who punishes him for his rational inferences not only does the world no favors; it violates his rights and entrenches a system of mandatory irrationality that compels him to ignore relevant information in the decision problem he is faced with. Its antidiscrimination laws not only involve an unwarranted aggression, but they involve aggression in the pursuit of mandatory irrationality.

The absence of discrimination between people would make it impossible to gain a conceptual understanding of man and would force us to operate at a purely perceptual level, either treating people as interchangeable blobs without differentiation, or treating each person as a completely new and exceptional phenomenon. It would put us in the position of starry-eyed infants who observe each new thing as a unique and unknown phenomenon to be stared at in vacant wonderment.

Trite allegations of discrimination, usually made without any elaboration, completely ignore the relevant issue. What is crucial in evaluating other people is not whether we discriminate on the basis of this or that characteristic but whether the characteristics we use form a rational basis for our inferences. Are the distinctions that we draw sensible inferences based on genuine causal or empirical relationships between observed characteristics, or are they arbitrary judgments based on spurious ideas with no basis in reality? In short, the relevant issue is whether the discrimination we engage in is rational or irrational, not whether it is discrimination on this ground or that.

Notwithstanding the shrieks of horror that one is likely to encounter from the equity-and-diversity intelligentsia, this applies as much to race and sex discrimination as to any other form of judgment and discrimination. What matters is not whether characteristics like race, sex, and age are used as means of differentiation and judgment but whether they are used rationally to infer other characteristics of interest on the basis of some known correlation or causal relationship between them.”

We must do whatever we can to promote complete freedom contract.

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