In A Cure Worse Than The Disease: Fighting Discrimination Through Government Control, M. Lester O’Shea criticizes the notion that we should legislate against unfairness. He poses the question as follows: “No one defends unfairness. So shouldn’t it be against the law?” In posing the question that way, his point is that the mere fact that we regard something as unfair – or even morally wrong – does not mean we ought to legislate against it. This point is of central importance to his argument against antidiscrimination legislation.
Walter Williams adopts a similar approach in Race and Economics, arguing that the mere fact that free markets are blind to all sorts of interactions and bargains that we might regard as “unfair” does not mean there ought to be some sort of legislative intervention to redress the unfairness. Williams gives the example of minimum wage legislation, arguing that it is folly to introduce laws mandating a wage determined by the government to be “fair,” while overlooking the fact that mandatory wage interventions often lead to worse outcomes including rising unemployment. Williams therefore regards legislative interventions which attempt to “correct” the market by introducing fairness as misguided. He argues that,
Economic theory as such cannot answer questions of fairness. However economic theory can predict the effects of not permitting some people to charge lower prices for what they sell and [offer] higher prices for what they buy.
In the context of racial fairness, Williams points out that focusing on oppression and discrimination, highlighting the racial injustices of the past and attempting to correct them, does not yield solutions to today’s problems: “an acknowledgement of and consensus on those injustices, and on residual discrimination, do not carry us very far in evaluating what is or is not in the best interest of blacks nowadays.”
A further difficulty with legislating for fairness is that many people who attempt to enforce fairness understand fairness as equality – they argue that fairness requires that everyone be treated equally. This is a reasonable argument if equal treatment means treating everyone the same in relation to legal rights and duties. However, once it is proposed to legislate for equality, an entire raft of equal treatment provisions inevitably follows, which has more to do with allocating phony civil rights to favored groups that are viewed as disadvantaged while punishing other groups that are viewed as advantaged. The fairness enterprise then turns out to be yet another social engineering program.
The declaration that all men are created equal does not require legislative enforcement through the superimposition of a further set of “equality rights.” Further, there is no such thing as a right not to be discriminated against, as a right to non-discrimination inevitably infringes upon the freedoms of others. As Rothbard explains,
…anti-discrimination laws or edicts of any sort are evil because they run roughshod over the only fundamental natural right: the right of everyone over his own property. Every property owner should have the absolute right to sell, hire, or lease his money or other property to anyone whom he chooses, which means he has the absolute right to “discriminate” all he damn pleases.
All anyone can claim is the right to the same protections of life, liberty, and property that vest the same way in everyone. The tendency of equality legislation to transmute from formal equality to substantive equality is not an accident or an oversight, but rather inherent in the nature of enforcing fairness.
At an abstract level, it is easy to distinguish between equality and equity, but any attempt to legislate equal or fair treatment relies on a concept of “discrimination,” which in turn requires measurement of outcomes. That is because no advocate of equality enforcement has so far been able to suggest an enforcement mechanism which does not rely on comparison – we know whether two things are equal by comparing them – and comparison, by its very nature, requires measurement. Measurement, in turn, leads to a focus on gaps and inequalities. And, for that reason, legislative enforcement of equality focuses on eradicating gaps or disparities. In practice, eradicating gaps is no different from equalizing outcomes. This is especially true because egalitarians have little or no interest in what causes disparities: they assume a starting point in which everyone is (or should be) equal and set about equalizing conditions without any inquiry into causal factors.
In the view of many egalitarians, fairness is only achieved when everyone enjoys equal material circumstances. Rawls’s difference principle is said to be the relevant approach in determining what is “fair,” namely the principle that fairness is achieved by introducing measures which are “to the advantage of the least well-off class in society,” even if this means sacrificing private property rights. As David Gordon has argued in “Is Rawls Stupid?” far from defending a robust concept of private property, Rawls states that, “Two wider conceptions of the right of property as a basic liberty are to be avoided. One conception extends this right to include certain rights of acquisition and bequest, as well as the right to own means of production and natural resources.” In that sense, Rawls recognizes that his conceptualization of fairness as equality is incompatible with a strong defense of property rights.
Legislating for fairness, in reality, operates to the detriment of private property rights. The folly of legislating for fairness is that ultimately such legislation is incompatible with the liberties associated with private property such as freedom of expression, freedom of association, and freedom of contract.
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