Response on Harvard

Commenter Froginthewell says:

I don’t understand – Harvard is a private university, right? And this controversy is about propriety and not rights?

Well, yes. Harvard is a private university, but in this non-libertarian world, they are subject to various anti-discrimination laws which may or may not mandate or prohibit reserving a few hours for women in their gym.  I am not aware of, and I am not really very interested in the details of those laws, but start from The Volokh Conspiracy  if you are interested.

 Secondly, my point was a defence of the libertarian position, which starts from the presumption that owners should be broadly free (legally) to do what they wish within their property. If you agree with the libertarian position, then what you are saying makes sense. We can agree that Harvard should be legally free to do what it did, and then debate the propriety of that decision. Those libertarians who think that Harvard’s decision was improper would still be free to protest that decision through non-violent demostrations, signature campaigns or boycotts.

But my argument, naturally enough, was not directed at those who agree with me. It was directed at those who do not hold the libertarian position, which means that they are open to enforcing their sense of propriety through legislation, i.e. it was directed at precisely those who do not agree with the distinction that Froginthewell’s comment is drawing. I am not aware of just how many people fit that definition, but I am confident that the proportion is high enough that I can say that I was not attacking a strawman.

Finally, it so happens that I do not  agree with the view that this issue is about propriety. I think that this is, or ought to be,  a pragmatic decision, based on costs and benefits, best made at the local level on a case-by-case basis. Having a law for this is bad, but even making this into an issue of “propriety” is unwise. There is no need to bring out the heavy artillery of religious freedom, “discrimination”, women’s rights, etc. I was pointing out that this libertarian “dogmatism” on property rights is what enables us to be non-dogmatic about everything else, while those who do not agree with our dogma have no choice but to turn every issue into one of law or propriety.

21 thoughts on “Response on Harvard

  1. “case-by-case basis”. Ahem ahem.

    That aside I anticipated your response, to cut a long story short when you have a hammer everything looks like property rights. My stand is same as FiTW, it is about propriety, which is same as case by case basis, not that you will agree with it.

  2. I do not hold this so-called “libertarian position”. I hold a pragmatic position based on past experiences and human nature.

    Right to property is not outright ownership but the recognition by the whole society of such ownership subject to restrictions, explicit and implicit. Whenever society loses faith in this recognition, the rights cease to exist and have to be renegotiated, ideally in a peaceful and democratic setting.

  3. Gaurav, “moot” has two contradictory meanings. Are you saying that it is “moot” in the sense that no one is seriously disputing Harvard’s legal right to do what it did? That is not correct. Secondly, I have moved beyond the idea of legal rights – I have addressed the question of propriety etc. It is your right that is stuck.

    HiAgain, look up the definition of “pragmatic”. What you have just given me is your theoretical conception of property rights. “Pragmatic” means that one talks of consequences, and I have given pragmatic reasons why one should recognise property rights.

  4. Thanks. But are you saying that the impacts on cost-benefit situations effected by means of appeals to peoples’ senses of propriety ( say, resulting in boycott etc. ) are usually undesirable?

    Why is that ( if at all ) worse than State/judiciary factoring in retributive justice?

  5. Ravi,

    Yes, thats what I mean. To my knowledge there was no dispute on the legal right of Harvard and hardly of any legislation*, but whether it was proper to do so. However I am ready to concede this position, if there is contrary evidence.
    Further I am not sure that you have addressed issue of propriety. Basically you are identifying propriety exercised only through legal instrument, whereas I think propriety is placed within cost and benefit decision.
    Now perhaps it was your intention to present the controversy as a succesful case study of libertarian position. If that be the case, I must admit it is a curious choice because there are much better case studies to make that arguement

    * Ofcourse since Harvard gets federal funding to some extent, there is a case for applying anti discrimination laws, I am not sure about that though.

  6. Gaurav,
    You are misinformed on the first point and both you and froginthewell misunderstand the second point.
    Basically, I am saying:
    1) There are some things that should be illegal. Shooting your wife should be illegal even if it is done on within your property. I presume everyone will agree with me on that.
    2) There are some things that ought to be legal even though they are improper. Reasonable people may disagree on whether they are improper or not. Refusing to serve a paying customer because of his caste, running a prostitution ring, etc. are examples of things that people may find improper even when they think they should be legal. Those things we *should* stigmatise through social sanctions, boycotts, criticism, etc. Yes, if you wish to put it that way, we should raise the cost of doing that action, even while defending people’s legal right to do it. But this was not the thrust of my argument.
    3) There is a third category of activities which are morally neutral. I think that no social sanction should be placed on those who eat idly with tomato chutney, even though I prefer coconut chutney.
    There are other things which it is a good idea to do, but no big deal if they don’t. Smiling, being polite, being accommodative of other people’s needs etc. come into this category. We should appreciate and reward people who do these things, but we shouldn’t send to jail or boycott people who don’t.

    Now, I happen to think:
    1) that there is a danger that as a society we will put activities that come under bucket 3 into bucket 2 or worse still bucket 1, and that doing so would be a bad thing and will make society difficult to live in.
    2) that the Harvard case comes in bucket 3, and people are incorrectly classifying into bucket 2 or worse, still, bucket 1.

    And that this is a bad thing.

  7. Ravi,

    Your comment clarifies the matter a lot, even if I don’t necessarily agree with the clear cut scenarios.
    As far as harvard case is concerned I agree that people are taking it for case 2. (I am not yet aware if people are talking about legal actions, I may be wrong though)
    But I find nothing wrong with it, as morality itself is context dependent, in this case the new rule is seen as appeasement to Muslim and it is being argued that similiar favour will not be granted to conservative christians or jews ( and I agree with this line of arguement). Of couse this case might seem too trivial for getting worked up about, but a significant number of people in west are worried about creeping ogf Sharia.

  8. Same ( as what Gaurav’s first remark in above comment ) here. And I certainly misinterpreted your second point.

    Further – it seems to me that you are not necessarily questioning the wisdom of the people who, given the present scenario, are making it an issue of propriety but merely saying that such an issue with propriety wouldn’t arise in a libertarian framework – is that correct ( so non-libertarian society is ridden with more issues and that is why non-libertarians should repent ) ?

    If not consider the following scenario : country samatvapura has two communities adhamas ( A ) and bahUttamas ( B ). It has anti-discrimination laws that say that none can open colleges that selectively deny admission to either of the communities. In that situation, if a law is passed allowing colleges to selectively deny admission to members of B, would members of B be unwise in protesting against it?

  9. froginthewell, in the scenario you have outlined, yes. Members of B would be justified in protesting it, which is a good argument against having anti-discrimination laws in your statute.

    Gaurav, it also seems to me that taking such laws off the books is a good way to patch vulnerabilities in the system if you are worried about the sharia creeping up on you. Every law you have increases scope for political disputes and for gaming the system. I have argued before on the same lines when I was defending absolute freedom of speech.

  10. Ravi,

    Now hold on here, what FiTW said has nothing to do with Harvard case, we are not talking about law here but propriety, so the example that FiTW gave doesn’t apply.

  11. OK.. I realise that I haven’t mentioned my most important point.

    To say that something is improper, one needs to have a principle according to which one judges it, correct?

    What attribute do laws and principles have in common?


    Now, consistency is a good thing. It reduces the need for discretion. It keeps things fair and it reduces unrest among the populace.

    But when this consistency is overapplied, it becomes foolish consistency. So whether we are talking of a law that says that one should not discriminate or a principle that says that one should accommodate the preference of various religious groups, the need to be consistent will lead me to take decisions that fail to take into account the nuances of a situation.

    Let me clarify with an example. A Jewish employee comes to me and tells me that he has an ironclad rule that he cannot stay in office on any Friday after sundown, because of Sabbath restrictions. Should I accede to his request? It will really depend on the nature of the job, the burden of that request, and yes, the value I give to that employee, right? If I think that the person will more than make up for the productivity by working hard elsewhere, then I will say ok.

    I shouldn’t have to deal with the burden of coming up with an action that takes into account, not only this cost benefit matrix, but also a whole lot of principles about respecting people’s religious beliefs, or treating all religions equally, etc.

    So, the thing is, the reason why this trivial case should be seen as an example of the creeping advance of the Sharia is that we are afraid that this will be used as the first step down the slippery slope. But the slope is slippery only if there is an artificial need to conform to some principle, i.e. if there is a fear that once a principle is established, it will be used to make further non-trivial demands. So the remedy is to avoid the use of any principle in these cases, and let private parties resolve it whichever way they like.

  12. In the US, letting private parties resolve such things led to the continuation of segregation. In India, the practice of untouchability would have been more widespread had it not been proscribed by law. I don’t think an African-American or a formerly lower caste person would have expressed as much faith in property owners/supervisors to take the right decision on such things. To assume that they would be without bias is the ultimate naivete. Formerly upper caste Hindus in India rarely experience discrimination (and I am one, so I know.) You actually have to experience the discrimination and the powerlessness to combat it at individual level to realize why you need the law of the land to back you up in such situations.

    All of us are molded by our experiences. Those who have faced discrimination will disagree with you.

  13. Yes. Those laws are the result of past experiences. They form part of the Civil Rights Act. You cannot discriminate on the basis of some criteria. Just because you own the restaurant doesn’t mean that you can refuse to serve people of one colour. You cannot post ads for renters or roommates asking for only people one community/colour to apply (such craigslist ads were in the news recently.)

    The Civil Rights Act is federal and federal authorities had to implement in a strong way to get some states to comply. All of this happened just about 40 years back. So the memories are still fresh.

  14. Ravi *

    I am not sure it applies in this case. There are three differences one it is applied to a group of people, second I don’t see any productivity involved, third it is going to inconvenience other people. I know it may sound trivial, but I can vouch personally that for people who exercise regularly it is really very annoying to reschedule their timings.

    Even more generally (i.e. not relating to this particular case) I am not sure I agree with your premise that it is merely a question of cost benefit analysis. You take it a simplified case of employer and employee. But these situations arise mostly when some public interest is involved . I will frame it more a question of the extent to which social norms can be relaxed or how do we decide whether it is a case 2 situation or case 3 situation. This depends on the context. You yourself said that you are for stigma zing 2), irrespective of cost and benefit. The ready example that comes to mind is that Sikhs are not required to shave in Indian Army but people find it acceptable. However even for orthodox Muslims having beard is sort of sacred (not sure about how doctrinaire this is)

  15. so the gist is that a law is a blunt hammer, and can be gamed, whereas social sanction is a more fine-tuned hammer. I have lost faith in the latter because of the flux that society is in.

    But even otherwise, the problem is that those with the God complex; the “reformers”, the “legislators”, are convinced they know what society should do. They cannot change social sanctions; they can only change laws; which they do. The more pliant and feudal a peoples, like Indians for e.g., the more such laws will be passed. While one might be tempted to believe Harvard is not unlike India in that respect—I’ve always looked upon “liberal progressives” as feudal—the case here is more tricky. They set aside a ridiculously inconsequential time, Mondays from 2 to 3 or something, and that too in only one of the gyms. This was a fantastically cunning move, for any number of endgames. They knew this furore would be generated.

  16. That is interesting POV. I have a slightly different take.
    Laws are by virtue of monopoly of violence bestowed to state low mobilization instruments with nothing more than a lowly constable required for enforcement. Social sanction or coercion without the benefit of violence requires mobilization on a much higher scale. This mobilization is possible only with creation of efficient socio-cultural institutions. The corollary to this is once those institutions have been formed and wield considerable influence will be captured by those who seek power and used to magnify their influence. This may perhaps explain havoc created by caste.

  17. exactly; socio-cultural institutions themselves—close your eyes those that believe in their divinity—should be prone to corruption as well; and what’s more seem increasingly ineffectual given the faster pace of society. Which is why I’ve lost faith in their redemptive ability.

    Faith, if one must have it, should be placed instead on the singularity and post-humanism. Give scientists a century lads, without imploding, and they’d rescue humanity.

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