Edited and written by David Gordon, senior fellow of the Mises Institute and author of four books and thousands of essays.

Central Planning for Self-Esteem

Winter 1997

ANTIDISCRIMINATION LAW AND SOCIAL EQUALITY
Andrew Koppelman
Yale University Press, 1996, x + 276 pgs.

Andrew Koppelman is clearly a writer of considerable intelligence, and exceptionally well-read in political philosophy, ethics, and law. But he puts his talent in the service of a bizarre idea.

As our author sees matters, "many, and perhaps most Americans" endorse two contradictory propositions: "(1) Part of what defines a free society is that it is none of the government's business what citizens believe and that the shaping of citizens' beliefs is not a legitimate task of a liberal state, (2) Racism, sexism, and similar ideologies are so evil and destructive of the proper workings of society that the state should do whatever it can to eradicate them" (p. 1).

Koppelman proposes to resolve the contradiction by weakening the first proposition. Because everyone has a right to equal concern and respect, preferences of people that violate these rights have no moral standing. Hence in pursuit of the "antidiscrimination project" the state may proceed quite radically to attempt to transform its citizens into Good Little Liberals.

Unfortunately for his project, but fortunately for liberty, Koppelman offers no justification for the alleged right of equal concern and respect on which his whole edifice rests. The closest he comes to an argument is found in his discussion of Ronald Dworkin, but his (and Dworkin's) remarks evince numerous fallacies.

Dworkin begins from a utilitarian view in which policy is determined by people's preferences. But, he (and Koppelman following him) suggests, we cannot take account of external preferences; i.e., preferences people have about the welfare of others. To do so is to fail to count everyone's preferences equally. Suppose someone hates androgynous dwarfs and wishes them ill. If the hater's preference that the dwarf be frustrated is allowed into our calculus, then the dwarf's preferences are diluted.

I entirely fail to see the force of this. In the imagined circumstance, everyone's preference is being counted equally. If the dwarf wants a door three feet high and the hater wants him not to get the door, why is it unequal counting to include both preferences?

Well, you might say, the dwarf has less chance to have his preferences realized, other things being equal, than someone whose preferences are not opposed by others. True enough, but so what? Someone with idiosyncratic preferences has, other things being equal, less chance of having his preferences realized than someone with tastes closer to the standard.

If I am the only member of a large club who wishes to buy a bull to sacrifice to Jupiter, I am unlikely to get what I want, even if no one else in the club wishes my preference frustrated. The others simply wish to spend the club's money on less exotic projects. Am I being treated unequally? It hardly seems plausible.

Further, if external preferences cannot be counted, then preferences that certain people receive what they want must also be cast out. And this blocks Koppelman's project from the start: one cannot count his preference that his favored groups have their preferences realized.

And suppose the Dworkin Koppelman argument is correct. How does a right to equal concern and respect follow? All the argument claims to prove is that certain preferences must not be counted. Nothing has been shown about how each person ought to treat others. (I owe this point to Michael Levin.)

But what if everyone should be treated with equal concern and respect? Koppelman needs a further premise to get his antidiscrimination project going, and he fares even worse here than in his attempt to justify equal concern and respect. Not only does he fail to justify the new premise, he does not even see that his argument requires it.

Imagine that I have a moral obligation to treat politely any book that I review. (Let us hope and pray that I do not lie under this obligation otherwise I am finished.) If I fail to be polite in a review, it does not follow that the book's author has a right of redress against me. Perhaps I have just failed to do what I ought, and that ends the matter. If, per impossible, it transpires that I have been grossly unfair to Koppelman, it does not follow that he has the right to reply to me in The Mises Review.

Note that I do not claim that he lacks such a right; rather, the claim is that my bad treatment of him does not by itself entail that he does have it. (Just let him try....) The application to Koppelman's argument is obvious. Suppose that the groups about which he is concerned blacks, women, and homosexuals have been treated without equal consideration and respect. It does not follow that they are entitled to remedial action. Once more, perhaps all that we are justified in asserting is that those who treat them in this malign way should not do so.

Koppelman takes it as obvious that failure to be treated with equal consideration is an injury that calls for remedy. Put crudely, his view is that we all have the right to a certain level of self-esteem. We must not be stigmatized; otherwise, we might not feel good about ourselves. And, especially if you are a member of at least one of Koppelman's Big Three groups, you may enlist the state to mold your detractors so that they behave more suitably.

The antidiscrimination project appears vulnerable on yet another ground. Even if you accept Koppelman's view of rights, you do not yet have enough to set the state going on its reconditioning program. It must first be shown that the relevant groups have in fact been stigmatized in the morally forbidden way.

Koppelman frequently is quite lax about showing this. Too often, he accepts without question statements by radical propagandists. He takes at face value the following gems from Catharine MacKinnon: "Men's...perspectives and concern define quality in scholarship, their experiences and obsessions define merit, their objectification of life defines art...their genitals define sex" (pp. 122 23, quoting MacKinnon, Feminism Unmodified). What the radical feminist said is not evidence.

Furthermore, he regards blacks as one of the main stigmatized groups in American society. But "[w]hile it is evident that some blacks do suffer this kind of damage, the most thorough aggregate studies of self-concept among blacks have found that 'personal self-esteem among black population [is] either equal to or greater than that among whites'" (p. 61; the internal quotation is from a paper by Judith R. Porter and Robert E. Washington).

Koppelman responds that even if blacks have satisfactory self- esteem, they may be made angry and resentful by unequal treatment. This seems to me entirely plausible; but how did we get from a right to self-esteem to a right not to be made angry and resentful? If we are supposed to have only "good," non-angry thoughts, we have entered Never Never Land.

The extreme nature of Koppelman's project emerges most clearly in the chapter "Lesbians and Gay Men." As he himself acknowledges, we are not obligated to treat immoral conduct with equal concern and respect. We should not accord equal respect to Jeffrey Dahmer and his less omnivorous fellow citizens. But many people think homosexual conduct immoral: must their position not be shown false before gays and lesbians are welcomed into Koppelman's project?

Koppelman addresses this concern in exactly two sentences: "This is not the place to refute the various justifications for the stigmatization of homosexuality that are on offer. That has been done elsewhere" (p. 151). Well, so much for that.

By "justification" Koppelman means secular arguments. Religious arguments in his view merit no consideration whatsoever: "The only arguments for the stigma that seem unanswerable are the religious ones, and by their terms they are not open to philosophical critique. [Why not?] For example, many Americans are Christians or Jews who interpret the Bible as forbidding homosexual conduct, and that settles the issues for them" (p. 151). Our supposed champion of equal respect feels entitled to dismiss the main religions of the West without a moment's concern.

I fear that the Christians and Jews in question would not fare very well in a state run as Koppelman would like. "Inevitably, state efforts to reduce any kind of discrimination will implicitly tell those whose religious beliefs sanction such discrimination that their religious beliefs are false and that they ought to change them" (p. 152). Koppelman's project is a recipe for totalitarianism a fact he regards as a weighty but not conclusive objection to it.


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