Unjust Laws of Commerce

Tibor R. Machan

Often I think of how journalists, ministers, and others protected by the first amendment of the US Constitution have an advantage over most other professionals. What’s bad about this is that those other professionals do not have their rights to be free equally protected. This shows that there's unjust discrimination built into the most basic American law. (Check it out—there is no government agency regulating professionals in journalism or religion, while there are dozens regulating those in commerce, medicine, psychology, transportation, farming, and so forth—and ask yourself, why is this discrimination supposed to be OK!)

But there are certain other instances of unjust discrimination widespread within and fully supported by the legal system. These are perpetrated against producers, as compared with consumers, and employers as compared with employees. Producers, you see, are extensively regulated in how they choose to relate to consumers; as are employers in how they choose to deal with employees. Producers, for instance, may not discriminate as they choose their customers or clients. In a restaurant the proprietor may not bar people he or she dislikes from coming there to eat. That is against the law. So would be for a store to refuse to sell to someone based on various kinds of biases. In contrast, however, customers may avoid stores for exactly the same reason.

Sure, in some establishments there’s a sign stating: “We reserve the right refuse service to anyone,” but it is pure bunk—in America no such right of free association is protected for merchants, mainly because of an irrational backlash from widespread racism and segregation of the past. Never mind that such racism and segregation prevailed mostly because the government enforced it and when the shift began to occur, it came from the private sector first. (Yes, Virginia, it was privately owned railroads that wanted to do away with racial segregation on trains and the government resisted this! And, earlier, it was in part because private schools did not discriminate on the basis of race that public schools were established to replace them.)

In the case of employer and employee, once again the employer’s bias is prohibited but employees clearly may indulge theirs if they so choose. If someone refuses to apply for a job for which he or she is fully qualified, merely because of prejudice against the employer, this can be done with total impunity. There used to be a doctrine once, called “employment at will,” in line with which both employer and employee had their right of free association protected by law. Employers could be let go and employees could leave and no one could object, whatever the reason was, unless a contract had been violated. Not so now. In today’s employment climate only employees have their right of free association protected by law—whatever the reason, if an employee wants to leave and isn’t in violation of a contract, he or she is entirely free go and the employer has nothing to say about it.

Does it impose burdens on employers that employees can leave “at will”? Of course, but so what? If my girlfriend leaves me, that too hurts but I have no authority to keep her around against her will. Yet, employers are forbidden to exercise their right of free association; they may not follow the doctrine of “employment at will” but need umpteen formal, often economically debilitating justifications for laying someone off. They have to be fair, never mind what they want.

And this is where the ironic injustice comes in: the fact that employers don’t get to employ but employees do get to walk away at will is quite unjust. It is also unjust that merchants must serve anyone who chooses to seek their services, while customers may discriminate to their hearts’ content. Sure, the unfairness in both cases is quite unavoidable. There is nothing to be done about it, nor should anything be tried—it would give rise to a totalitarian police state to attempt to remedy such unfairness. What is not appreciated that all kinds of attempts to remedy unfairness are moving toward totalitarian regimentation. And that is entirely unbecoming a bona fide free society.

Oddly, many people on the Left denounce those on the Right for trying to regulate morality, yet attempts to enforce standards of fairness are exactly the same thing, regulation of morality, only based on a different moral standard. Both the Right and the Left are perfectly willing to deny free choice to individuals in order to promote various types of so called moral behavior while failing to acknowledge that regulated morality is no morality at all.

What is moral or ethical is often very much dependent on the context—general principles are not, but how they are acted on are. So the law must stay out of dictating to us what we ought to do except when we violate the rights of others. The discriminatory deployment of anti-discrimination laws are just one example of the mess that’s created when this is ignored.