Identity Privileges Against Liberal Rights

James Peron
Sep 25, 2018 · 9 min read

Here is a paradox I think history well supports: people were, at times, less free in terms of enjoying their rights when government was smaller, and more free when it was larger.

Government is not the only means to deny rights to individuals; it is often done privately, such as by a monopoly church or guilds. Consider a few points made by Prof. Mark Koyama of George Mason University (published in How Did the West Get Religious Freedom? from the Hoover Institution.)

In the age of weak government — which I don’t see as the same thing as limited government — private agencies restricted freedom on the basis of identity.

“In Europe, Jews were restricted from particular occupations, prohibited from hiring Christian servants, and sometimes forced to wear badges or hats to distinguish themselves. In the Middle East, both Christians and Jews paid special taxes and proselytizing to Muslims was punished by death.”

“Guilds regulated economic activity in medieval Europe. As economic historian Gary Richardson documents, guild membership was closely tied to religious identity. In 14th century Norwich, England, members of the Barbers Guild were devoted to St. John the Baptist, while members of the Artificers Guild prayed to St. Michael. Individuals who failed to attend church or participate in festivals were fined by their guild. Shared religious identity enforced guild membership.

This had costs and benefits. Reliance on identity rules is a convenient and low cost way of governing. In this case, rather than directly regulating product markets, medieval rulers outsourced regulation to local guilds. Guilds provided assurances of quality and provided training and apprenticeships.

But this also was a source of economic inefficiency. Guilds were local monopolists who restricted entry, raised prices, and discriminated against outsiders. Rules that restricted noblemen from engaging in commerce or prohibited Jews from hiring Christians restricted the division of labor and impeded trade.

Above and beyond these direct economic costs, widespread reliance on identity rules meant treating different individuals differently. Identity rules are at odds with general rules and the principle of equal treatment, which are critical elements of the rule of law, and indeed necessary conditions for religious freedom.”

Koyama argues the “weakness of premodern states encouraged reliance on religion as a source of legitimacy” instead. They lacked “the capacity to enforce general rules and hence tended to rely on identity rules to govern.” This resulted in a series of special privileges provided one had the right identity, for those with unfavored identities it meant they lacked the same rights as those favored.

Koyama says after Christianity splintered, enforcing conformity became more difficult. In fact, the various sects waged war on one another, turning Europe into a blood bath, so “by the end of the 17th century, most European rulers saw that the costs involved of enforcing conformity outweighed the benefits”

European rulers thus got rid of the so-called “private” regulators who regulated on the basis of what we could call identity politics. With trade expanding and religious conformity disappearing removing these private regulators meant replacing grants of privilege based on identity with general rules. Not only did religious freedom expand but so did economic freedom. The general rules were less restrictive than the private regulation by guilds and the church.

Koyama concludes:

“This institutional environment was crucial to the success of the classical liberal ideas of equality before the law and freedom of religion after 1750. And of course, the establishment of liberal modern states had consequences beyond religious freedom. It was part of a general transformation of society, which helped to lay the foundations for the modern world.”

This seems to fit well with the data Steven Pinker presented in The Better Angels of Our Nature.

One of the things I realized, along the way of abandoning the anarchist Nirvana fallacy is there is a “Laffer Curve” to the level of government.

Laffer noted 0% taxation produces no revenue but similarly 100% produces no revenue because there is no reason for anyone to produce.

This leads to a paradox where lowering taxes may lead to the result of higher revenue. Some point maximizes revenue but where it is varies according to the facts of reality at that time. This is likely an ever-shifting, dynamic point, not a static one, thus requiring constant reappraisal as facts change.

In poor nations, where people struggle, even low taxes can be devastating. In subsistence cultures, where production levels are just at the point of keeping people alive, a small tax would destroy them.

At the other end of the spectrum we have nations where the average surplus of wealth is rather high. A tax of 30% or 40% is not nearly as devastating because it still leaves surplus. One of the dumbest comparisons some libertarians have made is to speak of “taxes before the American Revolution were only a fraction of what they are now and people rebelled.” The assumption is we are worse off. We aren’t.

A low tax in a low surplus society can be very harmful where a higher tax in a high surplus society is far less harmful. It isn’t just the tax, but the tax relative to the surplus.

In terms of government power less may mean more individual freedom or it may mean less individual freedom. In the period Koyama writes about more state power lead to more individual rights and freedom. It replaced private, identity politics with general rules attempting to equalize access for all. It gave more freedom to those displaced under this conservative type of identity politics.

Consider the Civil Rights fight in the American South as a good example.

On July 8, 1964 in Tuscaloosa, Alabama, a group of black teens entered the Druid Movie Theater, sat down and watched a movie. As they left they were met by an angry mob of white racists.

Two cars of black men rushed to the scene and rescued the teens. But the Klan had an ambush waiting for them on the road just before they reached the black area of town. The Klan didn’t realize the men were armed and when the black defenders fired on the attacking Klanners the lily-white bigots turned even whiter and ran for shelter. Their attempt to kill the teens for desegregating the theater failed.

Perhaps unaware of the incident on the 8th, actor Jack Palance and his family went to the Druid to see the film The World of Henry Orient with Peter Sellers, Paula Prentiss and Angela Lansbury. Palance was in the area visiting nearby relatives.

Palance recounted that after taking seats three men came and sat right behind them, then two more joined them. They started insulting Palance, his wife and his children. These were bigots intent on preventing a repeat of the previous night. Palance told the men they were terrifying his children, one of whom was in tears. The men didn’t stop.

The Klanners, in all likelihood, accused Palance of being in league with the NAACP or CORE and said he was there to integrate the theater, though no local blacks were in the theater that night. Fleeing for the lobby Palance and family found “a howling, hooting, jeering mob” who threw rocks and bricks through the window of the theater. Police used gas to disperse the mob and a curfew was put in place.

Police tried to disperse the mob with a fire hose and then used tear gas. Palance fled Alabama for the safety of New York City but not before the Klan had vandalized his rental car leaving threatening messages.

The reality of the South was there was no “free market” where business owners were allowed to segregate or integrate as they saw fit. Those who didn’t segregate were attacked by mobs of Klanners, many of whom were cops during the day.

Jim Crow was a system of legislation forcing segregation, but it was also a system of informal violence used against business owners who didn’t obey the racists. The local police and state officials not only refused to protect the rights of businesses that integrated, but they winked approvingly when Klan members intimidated anyone opposing Jim Crow.

In many ways this was the same as the identity regulations practiced privately in feudal Europe and enforced by the guilds and the Church. The rise of generalized rules for entry by the nation-state reduced conflict and increased individual access to opportunities.

In the South, it was precisely because local officials and the web of bigots that controlled Southern politics refused to allow a free market, that I believe the Civil Rights Act was absolutely necessary.

The complaint that it violated “the rights” of bigots to segregate peacefully is nonsense, because the bigots never did any of it peacefully. They used incessant violence to impose segregation.

One radio station in Louisiana had editorialized against segregation. The Klan attacked the owner’s home, they threatened to kill his wife and children. His family fled the state, but he stayed to fight. Next the Klan began intimidating advertisers on the station, threatening those businesses if they didn’t remove their advertising — no free market there. Businesses that continued to advertise were vandalized, customers threatened. No one was prosecuted or arrested for the systematic intimidation.

Outsiders tried to keep the station afloat but it wasn’t possible. The lack of a free market made it impossible. A free market is one where violence is forbidden, not one where it is endemic, whether the violence is done by the state or private parties. Some so-called libertarians seems to think private violence is not unlibertarian because it is private — for instance Gary North’s advocacy of stoning gays to death in a future anarchist paradise along his theocratic lines.

The only way businesses could peacefully integrate was if the Civil Rights Act passed and they had the excuse of “obeying the law.” The Civil Rights Act reduced the level of violence substantially and made markets far freer than they had been prior to its passage. It also showed many of the bigots their fears were overblown hysteria and attitudes changed.

Of the two governments claiming jurisdiction in the South — the federal and the state — the one doing the most to violate rights was the state, not the federal. In addition, if a private property owner attempted to integrate his business the result would be swift, violent reaction by the Klan. The police, local or state, would NOT defend the business owner. In fact, many of the police were Klanners.

Was the Civil Rights Act of 1964 ideal? No. But, it was a better alternative, in the sense of protecting rights, than the status quo of the day. If our obligation is to defend rights, and not some particular political arrangement, then is it really unlibertarian to pick the Civil Rights Act over Jim Crow? I don’t think so.

I think it behooves libertarians to defend, not any particular political structure, but individual rights. What we saw in the case of the Civil Rights Act and the reduction of private coercion in feudal Europe was the “Laffer Curve” of government power at work. While in many cases, increased state power reduces individual freedom and puts rights at risk, in these cases the increase in state power increased individual freedom and expanded general rights at the expense of identity based privileges.

In closing I should note that what is precisely being pushed by the so-called Alt-Right — which is just the Klan, Nazis and other bigots in new packaging—is a return to identity politics. As is often the case with the Right these days, the sins for which they damn the Left are those the Right are most happy to commit. Identity-based privilege is what they are seeking. They want rights to differ for whites than for others, they want rights for men to be different from those of women. They demand rights for heterosexuals which will be denied to LGBT individuals. They want a return to the pre-modern system of regulation by identity precisely because it is the best means to restrict general rights for all the groups they despise.

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The Radical Center

A blog for the Moorfield Storey Institute: a liberaltarian think tank.

James Peron

Written by

James Peron is the president of the Moorfield Storey Institute, was the founding editor of Esteem a LGBT publication in South Africa under apartheid.

The Radical Center

A blog for the Moorfield Storey Institute: a liberaltarian think tank.

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