The State Power to Discriminate

John Locke’s idea that tyranny is defined as arbitrary power as opposed to the rule of law seems to underlie the whole classical liberal tradition (see Locke’s Second Treatise of Government [1690, Chapter 18]). Arbitrary power allows the state or any other central political authority to discriminate among its subjects by bribing its supporters and harming its opponents. In reality, public discrimination (in the sense of state discrimination) is probably a synonym of arbitrary power.

The gradual discovery of the rule of law has come with the idea that the state should not discriminate among its citizens, residents, and often even foreigners. If, in your country, you kill a foreigner with no justification, your own liberal government will come after you. John Hicks, the 1972 laureate of the Nobel prize in economics, recalled a higher form of this ideal in the 19th century (“The Pursuit of Economic Freedom,” in E.F. Jacob, Ed., What We Defend: Essays in Freedom by Members of the University of Manchester [Oxford: Oxford University Press, 1942]:

The Manchester Liberals believed in Free Trade not only on the ground of Fairness among Englishmen, but also on the ground of Fairness between Englishmen and foreigners. The State, so they held, ought not to discriminate among its own citizens; also it ought not to discriminate between its own citizens and others.

Contemporary classical liberalism is solidly anchored in that tradition. Friedrich Hayek defended the rule of law as a set of abstract and typically negative rules applying equally to all individuals (see the first volume of his Law, Legislation, and Liberty, which I reviewed at EconLib). James Buchanan’s concept of “generality” represents the same ideal with different conceptual foundations. Buchanan’s theory defines a social contract with unanimously accepted rules that also bind the state (see his The Limits of Liberty: Between Anarchy and Leviathan, which I reviewed at EconLib). He proposed constitutional amendments that would forbid government to discriminate through its expenditures (no cronies!), to incur budget deficits (in normal times), and to regulate free trade, internal and external (see his “Three Amendments: Responsibility, Generality, and Natural Liberty,” Cato Unbound, December 4, 2005).

A simple example of the generality or no-government-discrimination principle can be seen in how to determine the age of majority. If one looks at particular cases, it seems obvious that some individuals reach maturity and personal responsibility at different ages. But granting a government the power to decide individual cases would entail an unacceptable discrimination for individuals granted full individual liberty and those forced to remain in adolescence (and until when?). The only non-discriminatory solution has been (with some undefendable exceptions, such as drinking or buying tobacco) to determine a general rule, such as 21 or 18. Everybody—black or white, man or woman, rich and poor, etc.—is assumed to enjoy full liberty at the same age (or the same truncated liberty if full liberty does not exist).

Banning public discrimination is even more important given the power that contemporary states have acquired—even after the Civil War had stopped the power of governments to discriminate against the Blacks and to support slave owners in protecting their “property.” The state now seems capable of destroying any individual or group that the rulers hate. Even influential corporate executives grovel before the main ruler to avoid his wrath. We may even witness the state taking pride in its power to discriminate (sometimes under the excuse of non-discrimination), and even using the military to impose its will against some citizens.

Economist and political philosopher Anthony de Jasay refers to the discriminating state as the “adversary state” “taking sides” with some citizens against others (read his classic 1985 book The State, which I also reviewed at EconLib). The phenomenon has become so widespread that most people don’t even notice it. Just to take an example, why do governments want to reduce the price of housing (relative to other prices)? It takes sides against current homeowners, who typically have an important part of their savings in their houses. De Jasay also believed that the state is by nature discriminatory and that constitutions cannot change this—which puts him at odds with more mainstream liberals such as Hayek and Buchanan.

The objection that government discrimination is unavoidable by invoking bans on murder, theft, and other real crimes is a non sequitur. There is a virtual unanimity among citizens for banning these crimes. Even murderers don’t want to be murdered. Victimless crimes are another matter as well as the government harming Paul to help Pierre. Most drug consumers and dealers are adult citizens too!

The example of Harvard University, which has been threatened by the current administration essentially for the ideas defended there, is telling. For Buchanan and Hayek, government subsidies to Harvard are legitimate if they are also available to other universities; at any rate, they can’t be used to blackmail private institutions into accepting diktats from politicians. I suspect that de Jasay, who alas left our valley of tears in 2019, would use this case to repeat his argument that generality is impossible because the criterion to define the group of entities to be treated equally (universities? plus educational institutions? plus think tanks?) is itself discriminatory (see his book Justice and Its Surroundings, which I reviewed in Regulation). (My apologies for quoting again a book review of mine; sometimes, I get the false and dangerous impression that I have reviewed all the important books of the past 100 years.)

What is sure is that there is no classical liberal argument for supporting the naked discriminatory state. This reflection also suggests that three alternatives exist for the future of human societies: tyranny (of the left or the right, democratic or not), generality (standard classical liberalism), and anarchy (liberty without the state, if that can work).

Referee taking sides with the Black team