by Mario Rizzo
As a political and legal culture, we do not know how to deal with slippery-slope tendencies. The recent discussion (here and here, and many other places) of the public-accommodations provision of the Civil Rights Act of 1964 has made me more conscious of this issue.
I am willing to agree for purposes of this post that the law forbidding private storeowners, hotels, and other merchants to discriminate on the basis of race was morally justified under the institutional conditions of the day.
The problem, from my perspective, is that the cost of making exceptions to general principles is not sufficiently appreciated. Benefits may exceed costs in a particular case, but if these costs are not fully recognized, the course of action taken may lead to bad decisions down the road.
To be more specific: I believe that freedom of association, interpreted broadly, is a very important value. Much of the classical liberal social order is based on it. People enter into transactions voluntarily. This implies, of course, that they may also refrain from transacting. Normally we do not ask why. The terms and setting of a transaction – whether it is economic or social – is up to the relevant parties. If other individuals seek either to coerce a transaction or forcibly prevent it, they violate the principle of free association (and more).
It takes serious circumstances to justify any departure from this important principle. Unlike some libertarians, I do not believe that the principle is inviolable. This is because we do not know enough to establish or, at least, support rules that admit of no exceptions. Often we do not sufficiently understand the implications of a rule until we are faced with particular circumstances.
Suppose, for example, that unless I kill a perfectly innocent individual a million other innocent people will definitely die. (This could be a variant of Bernard Williams’s story of Jim and the Indians. A madman credibly threatens to kill these people unless I kill the innocent one. No factual assumptions that permit us to get out of this dilemma are allowed, ex hypothesi) I would very reluctantly kill the innocent person.
Of course, this is a fantastic story. But I am just trying to illustrate that it is foolish to say that we should not consider making exceptions. Even David Hume admitted the appropriateness of exceptions in certain cases. He cautioned, however, that the exceptions should be rule-like and not arbitrary.
The unfortunate public-policy precedent set by the accommodations law is that the principle of freedom of association can be trumped any time some social good can be thereby attained. This goes far beyond limiting the principle in order to eradicate the Jim Crow laws and practices of the old south.
Perhaps I am stating the precedent too broadly. No one yet tells me who my friends can be or whom I must marry (although they do tell me whom I may marry). There is still a certain truly private personal sphere.
We must, however, distinguish legal precedent from the broader public-policy precedent. The latter is no respecter of state and federal distinctions or of “precise” definitions of interstate commerce. What it goes to is the idea that private persons must arrange their economic transactions in such a way as to benefit people whom they may not want to benefit.
Thus, we have moved from the original public accommodations law to laws requiring non-discrimination of other groups who were never slaves nor subject to Jim Crow. Affirmative action laws require actively searching for people who fit “special” (exceptional?) categories. Quotas are often present in every way but name.
By ignoring slippery-slope tendencies we make ourselves more vulnerable to them. “If we have done this, why should we not do that?” becomes the operative dynamic. Planners have visions of a just society in which certain criteria of association are approved and other disapproved. They seek small differences between the previous exception and a further exception and exploit the seeming continuity. The process continues.
To recognize the slippery-slope dynamic does not, in itself, mean that we must reject a particular exception to a general principle. The circumstances might warrant the exception. But if we recognize the dynamic – explicitly and with regret – we may lessen the chances that the exception will erode the general rule. Freedom of association is a broad and desirable principle of social organization. The correction of specific injustices should not be allowed to destroy it.