Mises Wire

Free Markets and the Antidiscrimination Principle

If we understand human rights as rights derived from the concept of self-ownership, it becomes clear that there is no such right as the right not to be discriminated against. I have a right to speak but no right to force others to listen to me or to “amplify” my voice. I am at liberty to go about my lawful business, but I have no right to force others to watch me or recognize me, much less to demand that anyone should take action to make me “feel seen.” I have the right to embrace my personal or cultural identity but not to force others to celebrate that identity.

Classical liberalism promotes contractual freedom, freedom of association, and free speech, freedoms that by the same token denote the right of others not to enter into contracts, not to associate with others, and not to listen to anyone demanding their attention. If people choose not to associate with us, we have no right to force them to do so. In Murray Rothbard’s example, “Suffice it to say here that any argument proclaiming the right and goodness of, say, three neighbors, who yearn to form a string quartet, forcing a fourth neighbor at bayonet point to learn and play the viola, is hardly deserving of sober comment.”

Defenders of the antidiscrimination principle would argue that such edicts only pertain to essential activities and services like housing, education, health, or employment. Their reasoning is that if something is essential to life, the person in need is entitled to force other people to provide it. This ultimately leaves anyone offering goods and services at the mercy of those who regard them as able to fulfill their needs. For example, an employer is thereby at the mercy of anyone who needs a job. He must offer the job and has no right to reject anyone at will if they have a “protected” personal trait—for example, based on their race or sex. These antidiscrimination defenders reason that if this obligation results in any employer’s bankruptcy from the cost of paying compensation or the cost of being tied up in antidiscrimination litigation, so be it. Progressives would rather see an employer go bankrupt than permit the freedom to hire and fire at will. Few companies would survive the spate of antidiscrimination lawsuits that have cost Tesla millions of dollars:

The jury in 2021 awarded Diaz nearly $7 million in compensatory damages for emotional distress, and $130 million in punitive damages, designed to punish unlawful conduct and deter it in the future. . . . Tesla also faces claims of tolerating widespread race bias at the Fremont plant in a class action in California state court and a separate lawsuit by the state’s civil rights watchdog making similar allegations.

The same reasoning applies to housing. Landlords must supply housing to those who need it, and if this results in a shortage of available housing, so be it. Progressives would prefer to collapse the housing market than to permit landlords to have contractual freedom. The slogan “Go woke, go broke” is meaningless to those who prefer to go broke than to live in a world where they have no power to police diversity, equity, and inclusion (DEI) practices. Their overriding priority is to ensure that everyone is practicing DEI values. For example, the Harvard Business Review reports on how to incorporate DEI into workplace practices: “Organizations should know, meet, and, ultimately, surpass antidiscrimination policies set forth by law. . . . Their actions could include things as subtle as microvalidations, small gestures that can help to counteract the unwelcoming and disrespectful signals that microaggressions send.”

Distinguishing Rights from “Shared Values”

The so-called right not to be discriminated against was invented by progressives who consider the outcomes of individual liberty to be unsatisfactory. Individual liberty is insufficient in promoting the values of DEI. They are also concerned that without laws prohibiting discrimination, anybody might choose not to interact with others on the grounds of their race or sex. Above all, these progressives are concerned that people will get away with discriminatory behavior. They feel entitled to mete out what they describe as “consequences” to anybody who does not want to associate with others. They cannot tolerate the idea that someone, somewhere, is discriminating against others or failing to ensure that others feel seen and heard. This is unacceptable in their vision of utopia. Their conviction is that people should be forced to behave in ways that progressives consider to be salutary and in line with what they euphemistically refer to as “our shared values” and “good democracy.”

The right to enter into contracts or to buy and sell property does not imply a right to force others to contract with us or transfer property to us, much less make us feel valued and included. Part of the conceptual confusion here arises from the presumption that “rights” reflect democratic values and any entitlements agreed upon by majority vote. Progressives suppose that any claim agreed upon by a majority is tantamount to a right, from which it follows that legal force is required to protect and enforce that right.

In truth, democratic values are not the same thing as rights. The rights to life, liberty, and property are based on self-ownership and vest equally in each human being. Life, liberty, and property are individual rights, not merely “shared values.” These rights are often described as inalienable, meaning that nobody has power or authority to abolish them. Even if a majority were to agree by democratic process to divest others of these basic rights, that agreement would not abolish those rights but would simply constitute tyranny.

Fear of Markets

Another concern giving rise to antidiscrimination laws is that without such laws, people will be left at the mercy of cruel markets. This is a concern for those who regard capitalism and free markets as tyrannical, although they do not seem to be sure what these terms mean and just use them to denote the risks, uncertainties, and general unpredictability of life. Socialist ideologies, by contrast, seem to offer a source of comfort and a safety net against life’s uncertainties. Socialism appeals to those who seek safety above all, as the state promises to protect them from the hazards of life. Their quest for safety overrides any interest in productivity or prosperity.

As they have no interest in the peaceful exchange in free markets, their only remaining option is to fight over existing resources, constantly preoccupied with wealth redistribution and how to conjure up new claims to persuade the government to implement wealth transfers from one group to another. They are not interested in breaking new ground but only in persuading the state to seize the ground already broken by others. According to Rothbard, they prefer political paths to prosperity:

The other way is simpler in that it does not require productivity; it is the way of seizure of another’s goods or services by the use of force and violence. This is the method of one-sided confiscation, of theft of the property of others. This is the method which Oppenheimer termed “the political means” to wealth.

Capitalism, which may be defined in Elaine Sternberg’s words as “an economic system characterised by comprehensive private property, free-market pricing, and the absence of coercion,” has proven over time to be the only path to prosperity. Free markets, free exchange, and human liberty are the only reliable path to peace and prosperity. As Rothbard explains:

The social path dictated by the requirements of man’s nature, therefore, is the path of “property rights” and the “free market” of gift or exchange of such rights. Through this path, men have learned how to avoid the “jungle” methods of fighting over scarce resources so that A can only acquire them at the expense of B and, instead, to multiply those resources enormously in peaceful and harmonious production and exchange.

Free markets are nothing more than free people interacting in voluntary exchange based on private property. Ludwig von Mises said, “The market process is a daily repeated plebiscite, and it ejects inevitably from the ranks of profitable people those who do not employ their property according to the orders given by the public.”

To be afraid of free markets is to be afraid of human interaction, and thus afraid of life itself. This is the fear that animates antidiscrimination law: the fear that it is not enough to have a right to enter into and enforce contracts, as there is a risk that there may be people not willing to contract with others based on their race or sex.

The error in that way of thinking is that it seeks guarantees in human interaction and harnesses the power of the state to enforce such guarantees. People are driven by fear into declaring “I wish to enter into a contract with you, therefore you MUST contract with me, or else.”

Individual liberty is essential to prosperity, and liberty entails the right of others to make their own choices, which may not coincide with our own preferences and desires. As Walter Williams put it, “All selection necessarily and simultaneously requires non-selection. Choice requires discrimination.”

Note: The views expressed on Mises.org are not necessarily those of the Mises Institute.
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