Abstract
This chapter traces the roots of equality law to its foundations in the moral emotionalism of social justice. The chapter critically evaluates the underlying theories of justice from which equality law derives its legitimacy, arguing that schemes such as affirmative action, protected group status or preferential treatment in hiring are harmful to the extent that they displace market participation and voluntary exchange. The chapter questions the belief that a key role of government is to keep us safe from discrimination, arguing that the ethical foundations of coercive schemes cannot be evaluated purely by reference to their stated goals and noble intentions but should consider also their implications for individual liberty.
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Notes
- 1.
‘Market societies are differentiated societies whose economic sphere is characterised by individual property rights, the pursuit of self-interest, highly divided labour, and complex mutual dependencies’: Herzog, L. (2013). Inventing the Market (p. 1). Oxford University Press.
- 2.
Thomas, C. (2008). My Grandfather’s Son: A Memoir (pp. 75, 80). Harper Perennial. See also Steele, S. (2015). Shame: How America’s Past Sins Have Polarized Our Country. Basic Books.
- 3.
Sowell, T. (2013). Intellectuals and Race (p. 138). Basic Books.
- 4.
Mises, L. v. (2005). Liberalism: The Classical Tradition (B. B. Greaves, ed.). Indianapolis: Liberty Fund (Original work published 1927).
- 5.
Caldwell, C. (2020). The Age of Entitlement: America Since the Sixties (p. 12). Simon & Schuster, writing in the context of the political framing of civil rights as fundamental human rights.
- 6.
For example Joseph Epstein remarks in relation to Shelby Steele that ‘Speaking out about the false bargain that blacks have made with the new liberalism will doubtless earn him, if it hasn’t already done so, the old opprobrious title of Uncle Tom. The irony here is that Shelby Steele might just be a Tom of a different kind—a black Tom Paine, whose 21st-century common sense could go a long way to bringing his people out of their by now historical doldrums’: Epstein, J. (2015, March 20). Shelby Steele’s Thankless Task. The Wall Street Journal. https://www.wsj.com/articles/book-review-shame-by-shelby-steele-1426885452.
- 7.
Riley, J. L. (2021). Maverick: A Biography of Thomas Sowell (p. 12). Hachette Book Group.
- 8.
Under the Equality Act 2010 public bodies in the UK have a duty to ‘foster good relations’ between different races (s. 149). A public body, as will be discussed later in the book, includes anybody with a public-facing role even if they are not supported by state funding.
- 9.
‘Honeste vivere, neminem laedere, suum cuique tribuere’: Flew, A. (1986). Enforced Equality—Or Justice? Journal of Libertarian Studies, 8(1), 31–41, p. 34.
- 10.
See discussion of ‘Liberal accretion and the warlike quality of contemporary liberalism’ in Corey, D. D. (2020). Liberalism and the Modern Quest for Freedom. In D. F. Hardwick & L. Marsh (Eds.), Reclaiming Liberalism (pp. 125–162), p. 151 et seq. Palgrave Macmillan Studies in Classical Liberalism.
- 11.
Corey, Liberalism and the Modern Quest for Freedom. Ibid., p. 154.
- 12.
Hamilton, F. (2021, June 1). Met Chief Cressida Dick Calls for Law to Favour Minority Recruits. The Times. https://www.thetimes.co.uk/article/met-chief-cressida-dick-calls-for-law-to-favour-minority-recruits-z0kcxq62l.
- 13.
California Proposition 16 proposed to amend the California constitution by repealing the principle of non-discrimination, in order to permit affirmative action and other forms of discrimination favouring those thought to need positive discrimination.
- 14.
American Medical Association. (2021). Organizational Strategic Plan to Embed Racial Justice and Advance Health Equity, 2021–2023. Retrieved June 26, 2021, from https://www.ama-assn.org/system/files/2021-05/ama-equity-strategic-plan.pdf.
- 15.
- 16.
For example the claim that Afro hair should be treated as a ‘protected characteristic’ under the Equality Act or protected under human rights law: ‘An employee at a Zara store in Toronto's east end said she will likely quit her job and file a complaint with the Ontario Human Rights Commission after managers gave her a hard time about her hair’: Lee-Shannock, P. (2016, April 8). Zara Employee Accuses Store of Discrimination over Her Hairstyle. CBC. https://www.cbc.ca/news/canada/toronto/ballah-zara-discrimination-hairstyle-1.3527977.
- 17.
Solomon laments that ‘All things come alike to all: there is one event to the righteous, and to the wicked; to the good and to the clean, and to the unclean; to him that sacrificeth, and to him that sacrificeth not: as is the good, so is the sinner; and he that sweareth, as he that feareth an oath’: Ecclesiastes 9:2 (1819). The King James Bible Collins (Original work published 1769).
- 18.
‘Protagonists of this Procrustean ideal would, if they were both clear-headed and frank, sacrifice the propaganda advantages of presenting it as a kind of justice. Instead, and taking a leaf from the book of the orthopsychiatrists and other self-styled penal progressives, they would mount a bold and radical onslaught on the very notion of justice – denouncing the whole business as antique, gothic, reactionary, and – what is the truth - irreducibly backward-looking’: Flew, A., Enforced Equality—Or Justice? p. 32.
- 19.
Flew, ibid., p. 35.
- 20.
Flew, ibid.
- 21.
Flew, ibid.
- 22.
‘Mises and Hayek demonstrated incontrovertibly that a socialist economy cannot work; to make matters worse, the attempt to establish such an economy makes likely the onset of a totalitarian order …[but] rationality is not a trait much in evidence among the socialistically inclined. If reason speaks against socialism, is not the solution obvious: out with reason!’: Gordon, D. (2017). Finding Meaning. In An Austro-Libertarian View, Vol. 1, pp. 361–362.
- 23.
‘She is not claiming that the modern West is like the thuggish Kim regime. She is saying that we willingly give in to what has to be forced on to Koreans by police terror, sealed borders and labour camps’. Hitchens, P. (2021, June 19). Now Even This North Korean Warns We’re Being Brainwashed! Daily Mail. https://www.dailymail.co.uk/news/article-9704389/PETER-HITCHENS-North-Korean-warns-brainwashed.html.
- 24.
Gonchar, M. (2018, September 12). Why Is Freedom of Speech an Important Right? When, if Ever, Can It Be Limited? New York Times. https://www.nytimes.com/2018/09/12/learning/why-is-freedom-of-speech-an-important-right-when-if-ever-can-it-be-limited.html.
- 25.
Described by John Tomasi as ‘left liberalism’: ‘left liberals are sceptical of the moral significance of private economic liberty. They are skeptical also of distributions of goods that result from the exercise of those capitalist freedoms’: Tomasi, J. (2012). Free Market Fairness (p. xiii). Princeton University Press.
- 26.
Flew, A. Enforced Equality—Or Justice? p. 35.
- 27.
Gordon, D. (2021, June 4). Mises on Dealing with Rival World Views. Mises Institute. Retrieved June 26, 2021, from https://mises.org/library/mises-dealing-rival-world-views.
- 28.
Gordon, D. (2017). The Problems of Public Reason. In An Austro-Libertarian View (Vol. I: Economics, Philosophy, Law). Mises Institute, p. 391.
- 29.
Ibid.
- 30.
It was certainly welcomed thus by socialists: ‘In his Critical Notice in the New York Review of Books, the lifelong British socialist Stuart Hampshire wrote: “I think that this book is …a noble, coherent, highly abstract picture of the fair society, as social democrats see it. … This is certainly the model of social justice that has governed the advocacy of R. H. Tawney and Richard Titmuss and that holds the Labour Party together’: Flew, Enforced Equality—Or Justice? p. 32.
- 31.
‘In Knight and Johnson’s terminology, Rawls envisages a central “second-order” role for the state in monitoring and correcting the background distributive conditions in which other institutions operate. It is the absence of such mechanisms under classical liberalism that for Rawls disqualifies it from the family of “reasonable” worldviews’: Pennington, M. (2017). Robust Political Economy and the Priority of Markets. Social Philosophy and Policy, 34(1), 1–24, p. 17.
- 32.
George, R. P., & Wolfe, C. (Eds.). (2000). Natural Law and Public Reason. In R. P. George & C. Wolfe (Eds.), Natural Law and Public Reason. Georgetown University Press.
- 33.
Thus Tomasi’s defence of a thick concept of economic liberty, has been criticised for failing to justify an ‘expansion’ of basic liberty to include economic liberty. Tomasi points out ‘I note first that “expansion” is not quite the correct (or relevant) term for my proposal for the recognition of thick economic liberty. After all, it is the high liberals who are advocating a contraction of the basic liberties, so as to exclude the thick conception of economic liberty widely affirmed by the (historically) classical liberal thinkers. I call this call for contraction the platform of economic exceptionalism—the thesis that economic liberties should be singled out from the traditional list for “thinning down”—and I challenge high liberals to defend that platform by way of moral argument.’ Tomasi, J. (2015). Market Democracy and Meaningful Work: A Reply to Critics. Res Publica, 443, 446.
- 34.
‘Government must not only treat people with concern and respect, but with equal concern and respect. It must not distribute goods or opportunities unequally on the ground that some citizens are entitled to more because they are worthy of more concern. It must not constrain liberty on the ground that one citizen’s conception of the good life of one group is nobler or superior to another’s’: Dworkin, R. M. (1977). Taking Rights Seriously (pp. 272–273). Duckworth.
- 35.
See for example debates surrounding Sandel, M. J. (2020). The Tyranny of Merit: What’s Become of the Common Good? Allen Lane.
- 36.
‘I agree that the strange conditions of the [Original Position] do eliminate mere bias and so do guarantee that if a principle were agreed on in the OP it would be fair (at least as between the parties to the agreement). But, since “if” is not equivalent to “only if”, it is a mere fallacy to infer from this (as much loose writing in the book invites the reader to infer) that if a principle would not be chosen in the OP it therefore would, in the real world, be unfair or not a proper principle of justice.’ Finnis, J. (2011). Human Rights and the Common Good: Collected Essays, Vol. III (p. 74). Oxford University Press.
- 37.
Kukathas, C. (2003). The Liberal Archipelago: A Theory of Diversity and Freedom. Oxford University Press.
- 38.
Ibid., p. 7.
- 39.
Ibid., p. 3.
- 40.
‘Diversity is, in fact, not the value liberalism pursues but the source of the problem to which it offers a solution’. Ibid., p. 29.
- 41.
Ibid., p. 32.
- 42.
Ibid., p. 15.
- 43.
The state should not ‘be concerned directly to promote human flourishing; it should have no collective projects; it should express no group preferences; and it should promote no particular individuals or individual interests. Its only concern ought to be with upholding the framework of law within which individuals and groups can function peacefully.’ Ibid., p. 249.
- 44.
Ibid., p. 17.
- 45.
Ibid., p. 19.
- 46.
Ibid., p. 19.
- 47.
Ibid., p. 19.
- 48.
Ibid., p. 30.
- 49.
Ibid., p. 5.
- 50.
Ibid., p. 7.
- 51.
Highlighting the link between productivity and property rights: ‘the fact that [the total product available for distribution] is not independent of the manner in which it is divided. The fact that that product is as great as it is, is not a natural or technological phenomenon independent of all social conditions, but entirely the result of our social institutions’: Mises, Liberalism, p. 12.
- 52.
‘If individual diversity were not the universal rule, then the argument for liberty would be weak indeed. For if individuals were as interchangeable as ants, why should anyone worry about maximizing the opportunity for every person to develop his mind and his faculties and his personality to the fullest extent possible?’ Rothbard, M. N. (2000). Egalitarianism as a Revolt Against Nature and Other Essays (Original work published 1974). Mises Institute, p. xvii.
- 53.
Corey, Liberalism and the Modern Quest for Freedom, p. 155.
- 54.
Epstein, R. A. (1984). In Defense of the Contract at Will. 51 University of Chicago Law Review, 947.
- 55.
Corey, D. D. (2018) observing that liberalism is not ‘a single political philosophy’ or a ‘single body of doctrine’ but a ‘slowly evolving history of diverse political ideas and movement’s whose pursuit or prioritisation of different kinds of freedom strongly reflects historical context and the particular freedoms at stake in each context: Against the Deformations of Liberalism. Journal of American Affairs. https://americanaffairsjournal.org/2018/02/against-the-deformations-of-liberalism/.
- 56.
Tomasi, Free Market Fairness, p. xiv.
- 57.
Epstein, R. A. (2002, November 27). Rawls Remembered: An Appreciation from the Right. National Review. https://www.nationalreview.com/2002/11/john-rawls-remembered/.
- 58.
Epstein shows how individual autonomy and private property may be defended ‘by an astute application of the veil-of-ignorance technology… Therein lies the greatness of Rawls. In his relentless pursuit of finding the right way to design political and social institutions, he articulated a system that could be used with great power to defend a set of political and social arrangements that he had no intention of defending’: in Rawls Remembered.
- 59.
Sowell, Cosmic Justice.
- 60.
For discussion see DiQuattro, A. (1983). Rawls and Left Criticism. Political Theory, 11(1), 53–78.
- 61.
Ward, V. (2021, March 9). The Queen: Harry and Meghan’s Racism Claims Will Be ‘Taken Very Seriously’. https://www.telegraph.co.uk/royal-family/2021/03/09/analysis-will-three-paragraphs-enough-extinguish-flames-meghan/.
- 62.
Flew describes a person convinced that ‘No Scotsman would do such a thing!’ who reacts to seeing a Scotsman doing that precise thing by declaring that ‘No true Scotsman would do such a thing!’
- 63.
Gordon, D. (2017). Wrestling Reality from Rawls. In An Austro-Libertarian View Vol. II: Political Theory, p. 58.
- 64.
‘Egalitarianism as a Revolt Against Nature,’ p. 5.
- 65.
Rawls ‘thinks that people do not deserve to profit from their superior abilities, because these are arbitrary from the moral point of view. If so, Rawls claims, equality is the default position and any departure from it requires justification’: Gordon, D. (2017). One Flew over Equality. In An Austro-Libertarian View, Vol. II, p. 85.
- 66.
Cosmic Justice, pp. 5, 6.
- 67.
Egalitarianism as a Revolt Against Nature, p. v.
- 68.
Ibid., p. xvii.
- 69.
Ibid., p. xvii.
- 70.
Ibid., p. 5.
- 71.
Hirschman, A. O. (1991). The Rhetoric of Reaction: Perversity, Futility, Jeopardy. Harvard University Press.
- 72.
Gordon, D. (2017). Tea for One. In An Austro-Libertarian View: Essays by David Gordon, Vol. III, p. 6.
- 73.
Gordon, D. Tea for One, p. 7.
- 74.
‘He ignores another “rhetorical strategy” of free-market advocates and conservatives, the contention that leftist measures are immoral’. Gordon, D. Tea for One, p. 7.
- 75.
A. Flew, Enforced Equality—Or Justice? p. 33.
- 76.
Ibid.
- 77.
Mises explains: ‘Equality of opportunity is a factor neither in prize fights and beauty contests nor in any other field of competition, whether biological or social. The immense majority of people are by the physiological structure of their bodies deprived of a chance to attain the honors of a boxing champion or a beauty queen. Only very few people can compete on the labor market as opera singers and movie stars. The most favorable opportunity to compete in the field of scientific achievement is provided to the university professors. Yet, thousands and thousands of professors pass away without leaving any trace in the history of ideas and scientific progress, while many of the handicapped outsiders win glory through marvelous contributions’: Mises, L. v. (2012). Human Action: A Treatise on Economics (p. 276). Martino Publishing (Original work published 1949).
- 78.
Friedman, M. (2018, March 8). What Does “Created Equal” Mean? Hoover Institution. https://www.hoover.org/research/what-does-created-equal-mean (Original work published 1990).
- 79.
‘The mistaken belief that economic equality is important in itself leads people to detach the problem of formulating their economic ambitions from the problem of understanding what is most fundamentally significant to them. It influences them to take too seriously, as though it were a matter of great moral concern, a question that is inherently rather insignificant and not directly to the point, namely, how their economic status compares with the economic status of others. In this way the doctrine of equality contributes to the moral disorientation and shallowness of our time.’ Frankfurt, H. (1987). Equality as a Moral Ideal. 98 Ethics, 21, 23.
- 80.
The distinction between these two levels of concern lies at the heart of some of the critiques of egalitarianism: ‘The fundamental error of egalitarianism lies in supposing that it is morally important whether one person has less than another regardless of how much either of them has.’ Frankfurt, H. (1987). Equality as a Moral Ideal. 98 Ethics, 21, 34.
- 81.
Haidt, J. (2012). The Righteous Mind: Why Good People Are Divided by Politics and Religion. Penguin Books.
- 82.
‘“Progress” unguided by humanism is not progress’: Pinker, S. (2019). Enlightenment Now: The Case for Reason, Science, Humanism, and Progress (p. 12). Penguin Books.
- 83.
Jolly, J. (2021, June 15). Brands Pull Ads from GB News TV Channel over Content Concerns. The Guardian. https://www.theguardian.com/media/2021/jun/15/brands-pull-ads-from-gb-news-tv-channel-over-content-concerns.
- 84.
Financial Reporting Council. (2021, July). Board Diversity and Effectiveness in FTSE 350 Companies. https://www.frc.org.uk/getattachment/3cc05eae-2024-45d8-b14c-abb2ac7497aa/FRC-Board-Diversity-and-Effectiveness-in-FTSE-350-Companies.pdf (p. 5).
- 85.
‘It is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own interest. We address ourselves, not to their humanity but to their self-love, and never talk to them of our necessities but of their advantages.’ Smith, A. (1993). An Inquiry into the Nature & Causes of the Wealth of Nations: A Selected Edition, Vol. 1 ch. 2. (K. Sutherland, Ed.) (p. 21). Oxford University Press (original work published 1776).
- 86.
Rothbard, Egalitarianism as a Revolt.
- 87.
Mises, Liberalism, p. 60.
- 88.
Ibid., p. 42.
- 89.
Ibid., p. 119.
- 90.
Ibid., p. vi.
- 91.
Gordon, D. Wrestling Reality from Rawls. In An Austro-Libertarian View, Vol. II, p. 57.
- 92.
Gordon, D. Don’t Dream the Impossible. In An Austro-Libertarian View, Vol. II, p. 148.
- 93.
Badshah, N. (2021, June 10). Cecil Rhodes: Oriel College Faces Teaching Boycott over Refusal to Remove Statue. The Guardian. https://www.theguardian.com/education/2021/jun/10/oriel-college-faces-teaching-boycott-over-refusal-to-remove-rhodes-statue.
- 94.
Egalitarianism as a Revolt, p. 1.
- 95.
Ibid., p. vi.
- 96.
Hayek, F. A. (2013). Law, Legislation and Liberty: A New Statement of the Liberal Principles of Justice and Political Economy (p. 230). Routledge (Original work published 1973).
- 97.
Gordon, D. (2017). Wrestling Reality from Rawls. In An Austro-Libertarian View Vol. II, p. 58.
- 98.
‘Employment is perhaps the single most important measure of life-chances. It is at the centre of most discussions not just of racial equality but of social justice generally.’ Modood, T., Berthoud, R., Lakey, J., Nazroo, J., Smith, P., Virdee, S., & Beishon, S. (1997). Ethnic Minorities in Britain: Diversity and Disadvantage (p. 5). Series: PSI report (843). London: Policy Studies Institute.
- 99.
Flew, Enforced Equality—Or Justice? p. 39.
- 100.
Egalitarianism as a Revolt, p. 8.
- 101.
Ibid., p. 20.
- 102.
Nozick, R. (1990). The Examined Life: Philosophical Meditations (pp. 283, 284). Touchstone.
- 103.
Niemietz, K. (2019). Socialism: The Failed Idea That Never Dies. Institute for Economic Affairs.
- 104.
‘The question whether the opinions that overlap in this consensus are correct or true, and whether those reasons are valid or sound, is to be set aside by public reason, i.e. in decision-making on the fundamental questions of political life and legislation.’ Finnis, J. (2007). On Public Reason (Notre Dame Legal Studies Paper No. 06–37; Oxford Legal Studies Research Paper No. 1/2007). http://ssrn.com/abstract=955815.
- 105.
Rothbard, Egalitarianism as a Revolt, pp. 3, 4.
- 106.
‘Mises and Hayek demonstrated incontrovertibly that a socialist economy cannot work; to make matters worse, the attempt to establish such an economy makes likely the onset of a totalitarian order …[but] rationality is not a trait much in evidence among the socialistically inclined. If reason speaks against socialism, is not the solution obvious: out with reason!’: Gordon, D. (2017). Finding Meaning. In An Austro-Libertarian View, Vol. 1, pp. 361–362.
- 107.
Ibid.
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Njoya, W. (2021). Introduction. In: Economic Freedom and Social Justice. Palgrave Studies in Classical Liberalism. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-84852-1_1
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