What Are Human Rights? (36): A “Right To Something” Always Includes a “Right Not To”

The claim that a right always includes the inverted right is obvious once you start to look at examples. The right to free speech is a right to speak but also a right not to speak and to remain silent. Evidence for this can be found in practice and in intuition. Many systems of law specifically grant a right to remain silent in certain circumstances such as criminal prosecution. However, such a right isn’t or shouldn’t be limited to specific circumstances. A general right to remain silent is intuitively appealing: the absence of a right not to speak would imply the legitimacy of compelled speech, and compelled speech is problematic in different ways. We don’t like it, and we don’t think it’s meaningful. Examples of compelled speech such as loyalty oaths, flag salutes etc. clearly show how pointless compelled speech can be. Loyalty or promises can’t be compelled, and hence it’s better to let people opt out of them if they so desire. (In the U.S., the West Virginia v. Barnette case created a First Amendment right not to speak precisely in the context of such loyalty oaths).

In addition to the factual and intuitive evidence in favor of a right not to speak, there’s also some logical support: it seems incoherent to have the freedom to speak your mind and then be compelled to say what is not on your mind.

A lot of this reasoning applies to other rights as well. Take the freedom of association. This right also includes the freedom not to associate (the freedom to stay out of groups or to leave groups). In this case, the actual phrasing of the right in human rights documents is explicit – which is not true for the right to free speech. Take article 18 of the Universal Declaration:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief [my emphasis].

Or article 20:

Everyone has the right to freedom of peaceful assembly and association.  No one may be compelled to belong to an association.

There’s also the intuitive appeal of a right not to associate. Absence of such a right would legitimize some forms of compelled association, and compelled association undermines the whole purpose of association, like compelled speech undermines he purpose of speech: people associate because they want to, and they want to because association brings certain benefits – identity, belonging etc. None of those benefits can be produced by compelled association.

However, this is as far as the analogy to free speech goes. Contrary to free speech, the inverted freedom of association seems to allow exclusion. The freedom of an association not to associate with certain persons – e.g. the Boy Scouts of America refusing to associate with a gay scoutsmaster – restricts the right to associate and perhaps even the freedom to associate of the excluded persons, and is often a violation of the right to non-discrimination. Exclusion has a bad ring to it, but I think that’s a pill we have to swallow. Without exclusion rights, association rights don’t mean a thing. If associations can’t decide who to include or exclude, what is the point of having associations? So what we have here, potentially, is a conflict between rights: a conflict between on the one hand the inverted right to free association (inverted because it’s a right not to associate with certain people) and on the other hand the right to associate (and possible also the right to non-discrimination) of the excluded.

And in many cases, there’s no easy way out of such conflicts. Decisions about the supremacy of conflicting rights have to be decided on a case by case basis taking into account the relative damage done by different decisions. In our example, if there are many different “scouts” groups and just one of them wants to exclude gays, then gays have ample opportunities to go elsewhere and the inverted association right of the bigoted scouts group should be upheld. If, on the other hand, exclusion of gays is so widespread that gays have seriously diminished opportunities in life, or if exclusion of gays is limited to scouts groups but this is still a serious limitation of opportunities (if, for example, joining a scouts group is fundamental to human life), then the inverted association right of the excluders should give way.

So these are two rights for which it is clear that they contain their inverted versions. I could make similar arguments for other rights (the right to life includes the right to suicide, the right to privacy includes the right to publicity, the right to property includes the right to live naked in the woods etc.), but I don’t want to force those of you who haven’t already stopped reading to do so now.

That’s because I still have some important general remarks about inverted rights. First, we can only talk about inverted rights for those human rights which do not already take the “not to” form. For example, it doesn’t make sense to say that the right “not to be tortured” or “not to be a slave” includes the inverted version. Second, inverting rights looks a lot like waiving rights, but it’s not quite the same. Waiving a right means that you don’t want others to enforce your right. Inverting a right means that you claim a right not to do what a right allows you to do. In the former case you give up a right, in the latter you claim an additional right.

A final remark: when people claim a “right not to” or when they want to waive their rights, we want to know that they do so freely and that their choice is an informed one. Otherwise we could simply be dealing with a covert form of oppression in which the oppressor has somehow convinced a victim to abandon his or her rights or to claim a right not to do something that annoys the oppressor.

Migration and Human Rights (29): Is Freedom of Association a Means to Promote or to Restrict Immigration?

Freedom of association is an important human right (see here for example). Linked to freedom of association is the right to exclude: groups that aren’t allowed to exclude whomever they want from membership aren’t free to associate. Another reason why the right to exclude is an important consequence of freedom of association is that association is meaningless without the concept of group identity. People associate in groups because these groups have a certain identity, and this identity is or becomes an intrinsic part of the individual identities of the members. Hence, groups should be able to have a coherent identity and that means allowing them to exclude people who don’t conform to or accept this identity.

For example, freedom of association means that Christians have a right to join a “truly” Christian group. And if the meaning of the word “truly” means excluding gay Christians or atheist (people who, according to some, don’t “conform to” or don’t accept “true Christianity” respectively), then that is what is required by freedom of association. (Which doesn’t mean that this freedom of association or this right to exclude is unlimited. Non-discrimination is also a right and sometimes we’ll have to make a trade-off. Non-discrimination can sometimes prevail over freedom of association. And yet, every exclusion from a group or every exercise of the freedom of association which in some way harms outsiders isn’t a case of discrimination. I, a non-Scot, may fail to be accepted in the clan of the MacDonalds, but I’m not discriminated against by this decision, even if it hurts my feelings and my sense of identity).

Some see a link between freedom of association and immigration restrictions. If groups are allowed to exclude, why not countries? Countries are also groups. If you force Americans, for example, to take in immigrants, despite majority opposition, then you violate their freedom of association and their right to exclude. In addition, you are accused of harming their identity – in this case national identity – because the stated reason they associated and continue to exclude, is precisely the preservation of their groups identity (made up of US values, the English language etc.).

People who don’t take a restrictionist position on immigration – such as myself – can respond in two ways.

  • First, one could claim that the rights of immigrants should be taken into account. The American freedom of association isn’t the only right in the world. When rights clash, they should be weighed against each other and the path of the “least violation” should be chosen. In the current case, one could easily argue that violations of the rights of immigrants (i.a. the right to a certain standard of living) caused by restrictions on immigration are much more severe than violations of the right to associate caused by relaxed immigration. After all, do people really believe that a culture as strong as that of the US would be harmed by immigrants? Or that immigration would change the nature of US society beyond recognition?
  • Another way to respond to the restrictionist arguments based of the right to associate, is to use the right to associate against the restrictionists. Many immigrants come or would like to come to a country because employers in that country (would) like to have them as employees. Immigration restrictions therefore violate the freedom of association of employers. Even if the country as a whole – or better the majority – feels that its right to free association is violated by immigration, it’s not obvious that the rights of the majority automatically trump the rights of a minority, however tiny this minority may be (and it’s not tiny in this case). If anything, human rights are there to protect minorities against majorities. You can make the same argument for nationals wishing to marry a foreigner, immigrants already in the country wishing their families to join them etc.

Discrimination (4): Private Discrimination, Freedom of Association and Property Rights

To what extent should anti-discrimination laws apply to private associations, to voluntary employment contracts and in private property? Let’s have a look at a number of recent news stories:

  • There was the controversy over Rand Paul’s opposition (shared by many other libertarians) to the application of the Civil Rights Act to private enterprises, which implies that a restaurant owner for example should be able to segregate his restaurant or even refuse black customers for example. (This view is based on the libertarian opposition to government regulation of the private sector).
  • Then there was the case of the Christian student’s union refusing gay members.
  • A teacher in a Christian school got herself fired because of premarital sex.
  • There’s the famous case of the Boy Scouts’ refusal to allow gay members (Boy Scouts of America v. Dale).
  • The D.C. police department recently decided to no longer intervene in an ongoing protest by Muslim women over their place in area mosques. These women have provoked confrontations in mosques by claiming the right to worship next to men, a right refused by conservative Muslim men. The police initially escorted the women out of the mosques, as requested by the men, but won’t do that anymore. The men claim that the mosques are private institutions, and private property rights should prevail. The women, they say, are trespassers.
  • And some time ago the British BNP, a racist political party, was forced to accept black members.

A similar but different case – because not based on prejudice or discrimination (except if you count PC as discriminating between views) – was the firing/quitting of journalist Helen Thomas following a politically incorrect and possibly antisemitic comment on Israel.

We can, of course, imagine an infinite number of similar cases:

  • Can a gym be held liable for dismissing a fat fitness trainer?
  • Should a business be able to offer a gays-only retirement home?
  • Can a landlord invoke religious objections to renting to an unmarried or gay couple?
  • Etc.

What all such real and imaginary cases have in common (even the Thomas case, which I’ll exclude from the current discussion because it’s slightly different and doesn’t – necessarily – involve discrimination) is that different values clash. Equality, equal treatment and the absence of discrimination on the one hand clashes with the freedom of association, the right to property and the freedom of contract on the other hand. (In the Thomas case, free speech clashes with freedom of employment contract).

If you’re a value pluralist – as I am – then these are hard cases. Property rights, freedom of association, freedom of contract (including in employment), equality and non-discrimination are all important values. It’s a right to hire or fire employees, accept or reject members of associations and serve or fail to serve customers on whatever basis you wish, even if this means discriminating certain employees, members or customers. But it’s also a right not to suffer discrimination. None of these values is by definition or a priori more important than the others. (If you think only freedom and property count, then you can wrap this up in a minute. Likewise if you think equality does count but is the automatic result of freedom. Don’t laugh, some actually think like that. Remember trickle down and the invisible hand).

All those rights are important, and when they clash, as in our examples, we’ll have to make a hard choice: which right in which case will receive priority? That will be, by definition, a case by case trade-off. You can’t use a general rule, since all these rights are – in the abstract – equally important. You can’t use a rule that says, for example, “property rights are equally important as equal treatment, except for bigots”. It’s not because you’re a bigot that you lose your property rights, your freedom of association or your freedom of contract. Those rights are human rights and intrinsically valuable.

So let’s assume that we will find many cases in which equal treatment is more important than property, contract or association rights. Pre-Civil-Rights-Act-America would be such a case. We will then engage in some justified anti-discrimination efforts that limit these other rights. And we will acknowledge that there is a limitation of rights going on. That there is a trade-off between rights and that the limitations of certain rights don’t mean that those rights are no longer important. It’s a necessary evil and an unfortunate consequence of clashing rights.

We’ll also find numerous cases in which property, contract or association rights will outweigh discrimination concerns. The example of the fitness teacher given above (who doesn’t have a right to employment in the business of his choice), or the gay retirement home (non-gay pensioners have ample opportunities elsewhere) would be cases like this. The same goes for the case of the guy protesting ladies’ night. Not all consequences of discrimination are equally harmful.

Consequently, anti-discrimination efforts can’t be an absolute concern and can’t become the only preoccupation. Otherwise, other rights would suffer needlessly. A balance has to be found. We have to decide how far our anti-discrimination measures can go without weighing too heavily on other rights, and how far bigots can be allowed to use their rights without harming the targets of their bigotry. (Or how far non-bigots can discriminate for non-bigoted reasons).

And when attempting to make this balance, we have to look at the specific circumstances and the relative harm that we can do on both sides. Small scale bigotry against a single individual who has numerous outside options – another employer, another restaurant, another organization etc. – won’t initiate anti-discrimination action, certainly not by the government. Jim Crow, on the other hand, inflicted enormous harm on large groups of people during many decades. And it would not have been abolished by a few activists, boycotts or sit-ins. Nor, for that matter, by the government ending its own discrimination. Active government action against private – and public – discrimination was required. And did happen in the Civil Rights Act of 1964 and later decisions which banned private actors from withholding services or denying employment on the basis of race (or of religion, sex, or national origin). Those anti-discrimination efforts did harm property and other rights but it’s clear that a failure to intervene would have meant perpetuating the greater harm of Jim Crow. I’ll come back to the topic of government vs private intervention against discrimination in a moment.

A parenthesis: some cases fall outside the current discussion. Government mandated discrimination in public places – trains, buses, public schools etc. – is completely and utterly unacceptable in all cases since the government can never be allowed to discriminate. Government discrimination also doesn’t cause a conflict of rights. The topic here is strictly private discrimination.

Take a look at this quote:

Wasn’t racial discrimination basically a private affair? Did we really have to enact federal laws and regulations to end it? Many of these laws dictate how people run their businesses and associations, and these restrictions are problematic to say the least. Even if we do find discrimination wrong, isn’t it a private wrong? (source)

In fairness to the author, he doesn’t seem to answer completely in the affirmative. And yet, why would you even ask those questions? Well, you should if you’re a libertarian and if liberty – including the liberty to do with your private property as you like and to freely engage in contracts and associations as you please without limitations – is the supreme value in life. However, if we accept the logic of this quote, then domestic violence and a whole bunch of other crimes are “private affairs” that shouldn’t be governed by “problematic” laws. And yet they are governed by laws, and hence we have laws “dictating how people run their associations”, and that’s a “problematic restriction”. We may think domestic violence or marital rape is wrong, but it’s a “private wrong” and hence none of our business. Domestic violence or marital rape take place within “private property” and can be seen, with a stretch of the imagination, as part of the freedom of contract (if a wife doesn’t want to be beaten or raped she should cancel the marriage contract, just like a pre-1964 African American who didn’t want to be discriminated by a restaurant owner should have gone elsewhere).

Of course, no one in his right mind would view domestic violence or marital rape like this, and no libertarian does. But the fact that libertarians – as well as many conservatives for that matter – never spill a drop of ink defending these crimes and yet fill libraries with defenses of private discrimination (and have even run a presidential campaign on the basis of this defense) just goes to show that equality and non-discrimination aren’t very important concerns for them, or at least not as important as violence and rape.

Do we really need government intervention to harmonize the two legitimate concerns? The concern for private freedom to discriminate within your property or associations, and the fight against discrimination? Some say that the fight against discrimination shouldn’t necessarily entail government coercion against private discrimination and should focus on private activism. That’s possible of course. Boycotts may help, just as minority organization, lobbying, education etc. (Another proof that free association is an important right. Minorities often depend on freedom of association and on strong property rights for their activism, and free commerce and freedom of contract tend to lower prejudice). There are also market mechanisms that counteract discrimination and fostering those mechanism might reduce discrimination without government coercion.

But that effort is certainly naive in many settings, especially when discrimination is widespread and group conformity counteracts market incentives (for example when customers are willing to pay a premium to visit segregated businesses, in which case the business owners will not be pressured by the profit motive to accept all customers; or when businesses are threatened into respect for segregation). Likewise when discrimination is government mandated. Hence the need, in many cases, for government coercion to break widespread patterns of discrimination that seriously reduce the options and opportunities of those who are discriminated against.

Why specifically state intervention? Racist business restaurant owners or bigoted employers or organizations can perhaps, sometimes, be persuaded to accept non-whites customers, employees or members through boycotts, social ostracism or the pressures of the market, but state intervention is often necessary in order to force them to do so. And they should be forced when the targets of their discrimination are seriously harmed by this discrimination, don’t have options elsewhere and can’t wait for the slow process of the market and of mentality changes. For example, a black person failing to get hired because of his or her race, after many attempts, suffers more harm than a black person failing to get served in a restaurant but having many more restaurant options close by.

It can be, in some settings, immoral to say that government shouldn’t intervene and that only social activists should struggle against racism and discrimination. In many cases, such as the southern parts of the US under Jim Crow, a struggle that isn’t backed by government often means risking life and limb. Discrimination in the US was underpinned by private terrorism (KKK) and actively supported or condoned by government law enforcement officers. Insisting that discrimination should be combated solely by private actors means exposing them to serious risks.

A final consideration: what if property is the direct result of discrimination? Can the descendants of slave owners really claim that their property rights should be a justification of their discriminatory actions? Or is their property illegitimate given the fact that it wouldn’t have existed without slavery? That would be an additional reason to favor equal treatment over property rights, when these two values clash.

Religion and Human Rights (29): When Freedom of Association and Anti-Discrimination Clash

In a recent court case in the US, a Christian student group objected to a university decision to withdraw recognition of the group. This withdrawal was justified by the university on the basis of the group’s discrimination of gays. Gays can only join the group when they “repent”. This policy by the group was deemed discriminatory by the university and in violation of its anti-discrimination policy. Withdrawal of recognition means that the group loses some subsidies and access to university resources, not that it has to cease to exist.

The group claimed that the university decision violated it’s freedom of association and freedom of religion. It also claimed that the university’s non-discrimination policy backfired and in fact created a new instance of discrimination, namely discrimination based on religion (because the group felt singled out; a Hispanic group excluding non-Hispanics did not suffer the same fate). The university contested this reasoning, claiming that the group was free to organize its activities elsewhere.

In my opinion, the Christian group is clearly bigoted and deserves condemnation for that, but groups should be free to decide who can and cannot become a member. And so there’s nothing wrong, in principle, with Christian groups banning gays. Forcing a group to accept members who violate the group’s fundamental rules and principles would empty freedom of association of any content because it would lead to the dissipation of the group’s identity. There is no group without identity, and hence no freedom of association without identity. And identity by definition means exclusion. Communist groups that are forced to accept capitalist members, or neo-Nazi groups that are forced to accept Jews, cease to exist as coherent groups. In case of religious groups, this would also violate the groups’ freedom of religion.

Also, the claim by gays that they are discriminated is weakened by the fact that they have numerous alternatives. It’s not like their non-membership of the Christian group produces a lot of harm to them, in terms of diminished choices, missed opportunities, lost resources etc.

An aside: I always fail to understand why people would want to join groups where they are manifestly unwelcome, except perhaps to cause a stir. Of course, this is no argument in favor or against any of the previous claims, except perhaps a pragmatic argument against the university’s position: if indeed gays will not join the anti-gay Christian group because they don’t have an incentive to associate with people who are hostile, then there’s no reason for the university to move against the group, since no discrimination will occur.

How is this different from what libertarians often claim about private discrimination? (Rand Paul for example recently claimed that the Civil Rights Act should not make “private segregation” illegal and should not force white restaurant owners to accept black customers). The difference is that segregation and Jim Crow were so widespread that blacks had considerably fewer options and suffered considerable disadvantage. The same isn’t true of gays on campus: there are enough associations that accept them. Hence, the discrimination that is imposed by the Christian group is real but not consequential enough to warrant a limitation of its freedom of association or religion.

Another argument in favor of the Christian group: non-discrimination policies have the laudable goal of promoting diversity and allowing every member of society to have the same options and choices. But how do you promote diversity if you don’t allow groups to have a coherent identity? And how do you promote options when you make it impossible for Christians to join a “truly” Christian group?

All this doesn’t mean that there will never be cases in which actions against groups are justified. In some instances, the demands of non-discrimination will outweigh the rights to freedom of association and religion. See here and here for more information on the need to balance different rights against each other.

The Causes of Poverty (35): The Membership Theory of Poverty

When you read about the causes of poverty you’ve probably convinced yourself that there are causes, and that the poor don’t have only themselves to blame. What you’re most likely to find are the following causes:

  • culture
  • geography, climate, resources (most notably in the work of Jeffrey Sachs)
  • institutional, political and governmental causes (e.g. the resource curse, the role of the rule of law and economic freedom etc.)
  • education
  • sociological causes (e.g. family structure)
  • etc.

It’s less common to find discussions about group affiliation as a cause of poverty. The group membership theory of poverty states that some people are poor because of the dynamics of the group(s) to which they belong. The groups may be residential areas (“ghettos”), schools, ethnic groups, workplaces etc. Poverty in this sense is “contagious”, hereditary, and self-perpetuating. It’s an example of a poverty trap.

This membership theory of poverty has a certain intuitive appeal to it. Group membership influences individual behavior and individual outcomes in various ways, so it wouldn’t be surprising to see that it influences economic status as well.

How do groups exert a negative influence over their members’ economic status? Peer pressure plays a role. The choices of some members of the group become the “natural” thing to do. The desire for social acceptance can force individuals to mimic their peers. Something similar occurs with role models. The behavior of older group members or members with some form of authority becomes standard behavior. Furthermore, when people witness high rates of failure among members, this will negatively affect their aspirations and effort. Finally, social and economic activities are highly complementary. When few group members start businesses for example, few other members will have the opportunity to work for them or trade with them. Conversely, when many members engage in economically destructive activities such as crime, other members may have no other economic opportunity than to collaborate.

You may ask, if groups are so bad, why don’t people just get out? Of course, it’s not always as easy as that. When you live in a crime infested ghetto, you don’t just move uptown. People will need some form of help. In order to break negative group dynamics, you can either work on these dynamics themselves (provide better education, crime protection, economic opportunities, affirmative action schemes etc.), or you can try to influence the prior group affiliation. How do people end up in a harmful group in the first place? There may be some room for government intervention. There’s the example of school desegregation through busing in the U.S. (not highly successful however). Governments can also tweak their social housing policies. Such policies are often called associational redistribution. One should be careful, however, not to cause harm elsewhere. There’s still a right to freedom of association and a right to privacy. Governments shouldn’t mess too much with group membership.

If you want to read more about the membership theory of poverty, I recommend two papers by Steven Durlauf, here and here. Those papers also contain an overview of the empirical evidence.