Update 2! Legal Discrimination

Dave Roland posted a thorough and careful response to my comments on his post titled “On Private Discrimination”. Eric also posted a much less thorough response to my comments, which I re-posted below.

Essentially, Dave argues that I took my quotations of Mill (earlier posted on this blog) out of context and

I think your assessment of Mill’s position is deeply flawed – particularly in light of the way you characterized that position in your own blog post at http://harnbison.wordpress.com/2010/05/24/straight-from-the-horses-mouth/.

In that blog post you do, in fact, quote four passages from Chapter Four of J.S. Mill’s classic essay. But you do so incompletely because you omit other vital passages that ought to provide context for the bits you quoted. I think that betrays a fundamental misunderstanding of Mill’s philosophy.

There are two primary issues, as I see it, that Mill addresses and you seem to be overlooking. First, Mill divides transactions between people in to two types. They may be either voluntary, in which both parties consent to the transaction, or involuntary, in which one intentionally puts another in a dangerous situation or impose some form of violence upon an unwilling or unwitting other. Generally speaking, Mill thinks the government has no place interfering in the former, but a clear responsibility to protect victims of the latter type of transaction.

The question raised by the conversation in which you and I have been engaging, however, is under what circumstances (if any) the government has any proper authority to force one person to enter into a transaction they would otherwise choose to avoid. Now, as you pointed out, Mill admits that one person’s selfish behaviors may impose costs on others through “encroachments on their rights; infliction on them of any loss or damage not justified by his own rights; falsehood or duplicity in dealing with them; unfair or ungenerous use of advantages over them; even selfish abstinence from defending them against injury”. But (as is evidenced by another of the passages you quote) the peculiar evil of this sort of behavior is that it represents delinquency in a duty owed to others, which in almost every case might be avoided simply by choosing not to engage in transactions with those others or to impose oneself in their affairs. It is also worth noting that in almost all of these cases in which one person voluntarily assumes a duty to another, the other also assumes some corresponding duty to the first person.

So I think that the starting point for most any assessment of whether, from a Millian perspective, a particular behavior is properly the subject of legal prohibition or punishment is that you must demonstrate that such a duty exists.

The point of my initial response was that under most circumstances no person has any particular obligation to interact with anyone that they would prefer to ignore or avoid. Harvard has no obligation to accept students it doesn’t want in its classrooms. You don’t have to talk to with someone wearing a tricorner hat and holding a poster of President Obama with a Hitler mustache. A black family doesn’t have to invite Klan members into their home. None of these people owes any particular duty to any of these other people. To the extent that Mill talks about encroachments on the “rights” of others, Mill would point out that no person has any particular “right” to shop or be served at the establishment of their choice, any more than the proprietor of one of those establishments has a “right” to demand that the person must shop or be served at that establishment, which is why your reliance on several sentences of Chapter Four is misplaced.

You (and most of society) have taken the position that business owners should have no alternative but to admit and serve people that they would otherwise choose not to. This position presumes the government’s authority not only to create a duty that one owes to another – a questionable prospect in itself – but also to create a duty that binds only one side of a transaction without the benefit of any corresponding duty from those they are commanded to serve. I do not believe that Mill would agree that such a governmental power is either justifiable or consistent with individual liberty. And, of course, the broader point that I have been trying to make is that this sort of governmental authority is a genie that you cannot easily put back in the bottle. If you concede the government’s authority to impose this kind of an obligation on others where you believe the goal is admirable and appropriate, you have implicitly empowered a future, less-friendly government to impose similar obligations on you that you may find completely odious or abhorrent.

The other issue, however, takes us back to the question of the harms imposed by the kind of discrimination we’re discussing. I agree that harm is relevant, which is why I specifically noted that someone would be subject to liability if they refused to give a glass of water to someone dying of thirst – the harm suffered by the dying person would be easily identifiable, quantifiable, and attributable to the other’s unwillingness to provide a good or service. You said “a good case [can] be made that discrimination causes economic harm” and you later reiterated that “great harm was and continues to be inflicted on individuals because of discrimination.” I would agree both that discrimination continues to exist and that it is incredibly inefficient and can impose economic damage on a large group of people if they are systematically excluded from receiving valuable goods and services. But the relevant harm is that suffered by the individual if and when they are confronted with discrimination. As we have pointed out, in some cases that harm will be significant and obvious, and in other cases it will be too negligible to measure. If a person can prove that they have suffered such harm, I will concede that the discriminator could properly be held civilly liable for ameliorating that harm. But with garden variety discrimination (i.e., no threats of physical harm or verbal abuse), this will almost never be the case because: 1) there will almost always be nearby other service providers who will be willing to serve those people, and 2) it is difficult (if not entirely impossible) to put a dollar figure on hurt feelings or temporary inconvenience.

And finally (for now), I’ll turn your argument that “ideas about morality and the proper role of government are and should be conflated.” On this point, I simply cannot agree because it invites precisely the sort of evils that inspired the American founders to limit the authority of government in the first place. Alexis de Tocqueville and J.S. Mill both recognized the immense danger of the “tyranny of the majority” and warned that if any given majority is permitted to give their ideas about morality the force of law, liberty will cease to exist in any meaningful sense as the majority sets about trying to force all others to comply with their own particular vision of the “good life”. Without strictly-enforced protections for individual liberty such as those that a classical liberal position prescribes, it is precisely this sort of tyranny that will threaten all who exist outside of the political majority.

Eric Dixon also posted a much less thorough reply in response to my commentary:

Funding a minimal state without compulsory redistribution would work much the same as funding other non-compulsory ventures — by passing the hat.

The primary purpose of my first comment was to provide links to other authors, with a brief preface. Here they are again:


Here are a few more:


One of these years when I have time to write a treatise, I’ll be sure to CC you.


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