Copyright © 1999 by Paul F. deLespinasse, Adrian College

For details of generous permission to copy or link, click here. Document may not print if you have not clicked here first.

Footnotes are at the end of the chapter.

"Some writers have so confounded society with
government, as to leave little or no distinction
between them; whereas they are not only different,
but have different origins. Society is produced
by our wants, and government by our wickedness . . . .
Society in every state is a blessing, but
government even in its best state is but a
necessary evil; in its worst state an intolerable
one. . . ." Thomas Paine, Common Sense(1776)

The Limits of Law

The United States has more lawyers per capita than any other country. The plenitude of attorneys, though, does not necessarily produce more justice. People seeking racial justice need to realize that law can play only a limited role in human affairs.

Some evils cannot be rectified by law. Laws against murder may deter some killings. But they cannot bring murder victims back to life. Law may provide civil remedies for people intentionally or negligently injured by others. But monetary compensation cannot restore an arm or leg amputated because of the injury.

Many people are injured by natural disasters: earthquakes, floods, tornadoes, hurricanes. Who are we supposed to blame in cases like these? Who will provide compensation? What can law do about it?

What can law do even for people who are injured in incidents where human agency was more involved: plane crashes, wars, civil unrest? As Humpty Dumpty's case reminds us, there is no such thing as an egg unscrambler. If something is impossible, it doesn't improve things to pass a law about it.

Law can punish someone for lynching another person. The threat of punishment may deter some bigots from expressing their feelings in this fashion. But no law can make a bigot love a person of another race.

Law can punish people who inflict involuntary associations upon others. But no law can punish people who refuse to enter into a voluntary association for to do so would be paradoxical. Surely a person who "consents" to associate merely to escape sanctions is doing so under "duress," which has long been considered to negate an otherwise valid contract. An association entered at the point of a sword is not a voluntary association, not even when the sword is wielded by government.

Especially relevant for race relations, law cannot eliminate all of the continuing consequences caused by bad actions taken in times past. The people who were most directly harmed by American slavery, for example, have all died. Since there is nothing anybody can do to help them, there is nothing that law can do.

True, the direct victims of slavery produced heirs and descendants who are still alive. These people are indirect victims of slavery. They are also direct victims of attitudes which are residues of slavery among other elements of the population.

A very effective civil rights strategy has been to refresh our collective memories of the many terrible things done to black people in America's past. But this backwards looking strategy lately may have become counterproductive, and there are limits to how far it can be pushed. Looking backward all the time is an awkward posture for people who are trying to move forward. Obsession with past evils may distract attention from opportunities that lie in front of us.

Let us also remember that the grandchildren of slaves are not merely victims of past events. They are also, paradoxically, beneficiaries. Each person presently alive was born as the result of a large number of highly unlikely past events. Great-grandfather A met and married great- grandmother B, producing grandfather C, who in turn intermarried with grandmother D, and so forth. If any one of these people had not met one another, today's specific descendents would never have been born.

Today's black Americans are grandchildren of people who lived in many different parts of Africa. If it had not been for the admittedly evil things done by the slavetraders, their ancestors would never have lived in the same place, would never have met each other, and would never have produced the children in the chain connecting them to their descendents today. Without the evil things done to their grandparents, these grandchildren would not be living here. Indeed, they would not be living anywhere, never having been born!

Black Americans, of course, are not the only people who have benefited from past atrocities. I owe my own existence in part to "the Catholics" who ran some of my ancestors out of France over 300 years ago. If my French ancestors had been allowed to live peacefully in their native land, they would never have met and married my Dutch, Spanish, and English ancestors. Most Americans probably would probably find similar events in their family histories if they looked into them.

Given the ambiguous nature of our status as victims of the past, people of all races would do better to get on with life. We need to seize the day and look to the future. In a sense, there is a statute of historical limitations which tells us: beyond a certain point, past evils cannot be remedied, and there are limits even on the ability of today's people to call them evils in any unambiguous sense. Certainly there is nothing that law can do about this kind of thing.

We Must Go Forward, Not Backward

As we have already seen, wiping out antidiscrimination law will not set black people back to 1896 or even to 1954. The principles requiring us to get rid of antidiscrimination rules are exactly the same ones that required us to repudiate the rules requiring racial discrimination and segregation. These principles tell us that all pseudolaws must go, no matter how fine-sounding their supposed goals may be. Segregation and Jim Crow were pseudolaws; we are well rid of them and must not allow them to return. Antidiscrimination rules are pseudolaws; they too must be discarded.

The legal context after antidiscrimination rules have been discarded will be very different from the situation which existed in the U.S. before they were enacted. For the first time we will have a situation where market forces, unhindered by the racist pseudolaws which prevailed before the current era, can undermine and ultimately destroy racial discrimination as a major social problem.

As previously noted, once antidiscrimination rules are gone, affirmative action will become completely legal. Repealing the rules against discrimination will restore full freedom of voluntary association. Each person and organization will be free to decide with whom and on what terms they are willing to enter into voluntary associations. Any organization whose leaders believe that something should be done to remedy any continuing consequences of past atrocities will be completely free to express that belief in its decisions and actions.

The University of Michigan, for example, at time of writing was being sued by several white people. These people, not accepted by the University, claimed that the University's affirmative action program had led it to admit black applicants whose SAT scores and high school records were inferior to their own. In a country without any "laws" against discrimination such a case would have to be thrown unceremoniously out of court. In a country where full freedom of voluntary association exists, every potential party to a voluntary association is free to decide with whom it prefers to associate, and no external judge, jury, or bureaucrat has any right to second guess its decisions.

The judge in a case like that against the University of Michigan would dismiss the suit, explaining that even if all of the facts alleged by the white plaintiffs were true, it would not give them standing to sue. Since no one has any right to associate with anyone in the absence of mutuality of consent, the white students have suffered no legally cognizable injury.

One doubts that University of Michigan officials would welcome my proposed defense of their affirmative action program. The same principle that would allow affirmative action at schools desiring such programs would also prohibit second-guessing admission decisions at universities that decided to reject minority students because of their race. In a society characterized by freedom of voluntary association, some institutions would likely be all-white (or all-black) because some people, rightly or wrongly, prefer to be in a one-race institution. In other words, there would probably be a diversity of organizations.

The fact that some institutions in such a world might be all black or all white would not mean that the age of segregation had returned. There could be no legal duty to segregate on the basis of race as there was in the old days. Decisions about who would associate with whom would be far more decentralized than they were during the age of segregation and than they have been during the age of antidiscrimination. People who oppose discrimination would be totally free to express that opposition in their own decisions regarding purchases, employment, and education. Affirmative action ("reverse discrimination") and old fashioned "forward" discrimination would depend on cost-benefit analysis done in a very decentralized way by diverse individuals and organizations responding to very diverse values and goals.

It is obvious that repealing the antidiscrimination rules will not produce disastrous results from the viewpoint of persons concerned with racial justice. It is equally obvious that repealing such rules will not, by itself, be enough to end the scourge of racism. The market forces unleashed by getting the law right will do part of the job. But something more than law will be needed to apply the coup de grace to racism.

Towards An Etiquette of Race Relations

Although the racial oppression created by governmental misbehavior greatly amplified the damage caused by individual racists , racism is a problem for society, not just for government.

In the past, government has been a particularly obnoxious participant in aggravating racial problems. Pseudolaws requiring racial discrimination and segregation of the races could not have existed if government had not created them.

Once government has ended racial oppression by repealing all pseudolaws, though, it has largely done what it can. The rest of the job of combating racism then will be mostly up to society, since there is little more that government can contribute.

Who is society? It is you. It is me. It is, in short, everybody. But precisely because it is everybody, "society" cannot act. It cannot do anything at all.

You and I, on the other hand, can act. Of course as individuals we have limited leverage, but "it is better to light a candle than to curse the darkness." By our actions, we can employ the "force of example." We can, in limited ways, act on behalf of society. We can apply "social pressure." Perhaps we can help develop an etiquette of race relations.

Etiquette, by definition, refers to widely shared concepts of proper and improper behavior "enforced" by social approbation and reinforcement of proper actions and a certain turning up of the social nose towards improper actions. A fundamental element in etiquette is concern for the feelings and sensibilities of other people, a belief that it is good to be kind and bad to hurt other people's feelings.

Etiquette may incorporate a certain amount of expression of regrets that one has acted improperly, apologies if you will, but it is basically forward-looking rather than backward looking. It seeks to avoid the need for apologies by making perfectly clear what the socially correct thing to do is in every type of situation.

Let us consider a few examples of the guidance etiquette might give us regarding racial problems. A major controversy in recent years broke out in connection with what is often called "the I.Q. controversy." (Footnote 1) The controversy is about conflicting opinions on how to interpret data purporting to show that the distribution of IQs of black people (a bell-shaped curve, or "bell-curve") is skewed noticeably to the left of the curve summarizing the distribution of white IQs.

As a technical matter, let us remember that only individual human beings exist. Individuals are what count. Statistics, even when based on meaningful measurements and properly interpreted, cannot tell us anything about the qualities of a specific individual with whom we come into contact. Even if the race-based IQ tests in question measure what they purport to measure, which is debatable, it is still quite possible that if we have two individuals, one black, one white, in a room, that the black individual will have a higher IQ than the white person. We can only draw conclusions about specific individuals from such statistics by combining mathematics with stereotyping.

It is perfectly possible, of course, to calculate the numerical average (mean) of the IQ's of the people whose scores are distributed along a standard curve. You just add up all the IQ's and then divide the sum by the number of black people involved. You thereby get a number which represents the "average" IQ of these black people. You can then do the same thing with the IQ scores of white people as summarized in the other standard distribution curve. Thus, you obtain the "average" IQ of these white people. If the data on which the two curves were based is correct (which I repeat is a big if), then one might argue that the average white IQ is higher than the average black IQ.

The trouble is that this still does not give you any basis for deciding how to treat individuals even in situations where IQ might be an appropriate basis for treating them. The fact that the average black IQ is such and such tells us nothing about just where a given black person comes in relative to that average. Nor does the same fact about the average white IQ tell us where a specific white person comes in. We are not dealing with an "average" person in either case, but with a concrete individual who is almost certainly not average. Only if we throw in assumptions that all black people are the same and all white people are the same, which is obviously nonsense---where would the bell-shaped distributions for black and white IQs come from if this were so?!---can we come to the conclusion (without further evidence) that the specific white person is smarter than the specific black person. But to assume that by knowing one thing about somebody, such as his race, means we know everything about that person, is stereotyping.

Thus even if the statistics forming the basis for these bell curves were correct, they do not lead to racist conclusions unless they are combined with stereotyping. But in fact the statistics themselves are very dubious, and the interpretations which have been placed on them are even more dubious.

First of all, as commonly pointed out by critics, IQ tests may well be culturally biased. They may assume certain kinds of background knowledge, including vocabulary, that are not distributed evenly among different groups in the population of the U.S.

I ran into a minor but illuminating case of cultural bias many years when our daughter was in one of the earlier years in grade school. I will warn you in advance that she was always an excellent student; when she graduated from high school she was awarded a National Merit Scholarship to Michigan State University, where she completed a degree in physics. But on this one test back in grade school she missed a question because it assumed that students would know what a goal post is, and it happens that our family never went to football games and never, ever, watched them on television. Our daughter was, in this respect anyhow, culturally deprived! It can happen in the best families.

If you are not persuaded that IQ tests may not get a handle on a particular person's intelligence because that person's background differs from the people for whom the test is meaningful, just imagine how well you would do taking an IQ test conducted in Arabic. (Or, if by some chance you happen to speak fluent Arabic, make it Chinese.)

Another problem with drawing conclusions about the correlation of intelligence with race is that the tests of white people are not tests of white people in general but rather they are tests of white people who happen to live in the United States. These people may not be a random sample of white people living on the planet in general. Likewise with black people; the black people in the U.S. are only a small percentage of black people in the world as a whole, and it would be difficult to prove that the American black people are a random sample of black people in general. So the very most that bell-curve type analysis would show would be that white Americans have higher average IQ's than do black Americans. To extrapolate from this to conclusions about white people in general and black people in general is not supported by the data.

It has sometimes been said that there are lies, damned lies (even worse than lies), and statistics (worst of all!). The least that we can demand is that when people employ statistics, they not do so in absurd ways.

In the case of the IQs of racial groups, however, there is another question that must be asked: Why bother to gather such data in the first place? Research costs money. When money is spent, it ought to be for purposes which are worth as much or more than the expense. What use is information about the relative IQ's of members of different racial groups, assuming that reliable and meaningful information about this can be gotten in the first place? What decisions need to be made in which this kind of information will make it possible to get better consequences? We normally decide how to treat people either on an individualized, case by case basis--decisions to hire, promote, fire, admit to college, etc--or on the basis of a general rule of action. Since data about differences between average IQ of members of different races tell us nothing about specific individuals, such data can have no utility for individualized decisions. If this were the only kind of decision for which the data was needed it would not be worth gathering even if it only cost a nominal amount.

On the other hand, the race of a person is totally irrelevant in deciding how to act on the basis of a general rule of action, since a general rule of action by definition must be general--it must apply to all individuals and not just those of one race. Again, gathering race-based IQ statistics contributes nothing to such decisions and does not justify spending anything at all to gather such data.

Apparently the only types of decision in which race-based IQs could be relevant are those in which people of one race are to be treated one way and those of another race another way--that is, cases of discrimination. While discrimination is always possible in a free society, this is no justification for spending money on research to gather such data. In fact, if people of one race are to be treated differently from people of another race, what does differential information about IQ's add to the situation?

Take all of the reasons why data about racial IQ may not mean very much, add in the reasons why such data is not worth very much, and you have a strong case for arguing that such data should not be gathered in the first place. Save some money! Save some scarce professional talent! Save the trees from which the paper on which the IQ tests are printed was produced! But beyond the economics, we must recognize that the implications of such testing and the resulting discussion are not very polite. Although they in fact do not support any grand generalizations about intelligence and race, they appear to do so. They provide ammunition for proponents of racial superiority, or inferiority. In short, the whole thing is extremely poor manners. It is a breech of etiquette. It does not contribute anything positive to race relations problems.

Of course applying principles of etiquette here, as always, cuts both ways. That is both the glory, and the problem, with principles. Principles have side effects! And remember that it is totally unprincipled to apply principles in situations where one likes the results, but then ignore the same principles or invoke other principles which contradict them, when this produces results one likes.

In recent decades, for example, we have been inundated with statistics about the numbers of people of different races to be found in specific schools, programs, and types of employment. On the basis of the numbers, racial "balance" is said to exist or not exist in certain organizations. As in the case of IQ scores, though, we must ask whether benefits are produced that justify the considerable expense of producing and analyzing this data.

In the first place, racial "imbalance" does not prove that any discrimination is going on, although discrimination is obviously one possible reason an imbalance exists. In the second place, the belief that racial balance ought to exist is frequently asserted but never proved. Moreover, this belief tends to be asserted in contexts in which minorities are "underrepresented" in desirable or high status roles but not when they are "overrepresented" in such roles. Perhaps there are hate- group Web-sites which maintain that there is something wrong about the predominance of black players in professional basketball, but I cannot recall seeing any such claim in respectable publications. As Thomas Sowell has often noted, in real life people never distribute themselves across occupational categories in a totally random way, and there is no reason to think that they should do so.

The costs of gathering, analyzing, and publishing data about the racial distribution of organizational status are not merely a matter of money, though a good deal of money is in fact spent in such projects. An even more significant cost may lie in the fact that the mere existence of such studies implies that a person's race is important. Big money is not spent studying matters that are unimportant. The whole enterprise, then, may serve to bolster whatever natural tendencies people have to think in racial terms and to let another person's race be an important element in deciding how to treat that person. This could actually retard efforts to reduce the amount of racism in society.

And again, there are etiquette issues. Is it not a putdown for members of a minority group to constantly be reminded that "disproportionately" small numbers of their race are medical doctors, lawyers, or other professionals? Do such statistics not imply a whiff of inferiority? If there are no particular benefits to be obtained by gathering and publishing such statistics, why would it not be polite to shut up about it and stop harping about it?

Finally, good manners requires that we lean over backwards to avoid coming to negative conclusions about another person. For the well-mannered, other people are presumed to be good and decent and honorable until they show otherwise by their actions. Etiquette always gives the other guy the benefit of the doubt.

Most situations in real life are ambiguous, and in ambiguous situations it is all too easy to decide that racial discrimination is going on whether this is actually the case or not. My own experiences have given me a good deal of food for thought in this regard. As an umpteenth- generation American of western European descent, I do not belong to an ethnic group that has ever been oppressed in the United States. However I have experienced many situations in which, if I were a black person, I would find it highly plausible to conclude that I was being discriminated against because of my race. Whenever someone makes a decision involving me that I don't like, or says something unkind, or fails to say something kind, or does not include me in the "loop" on some important matter, it would make a lot of sense to conclude that racial discrimination was taking place.

My situation in life, I would hasten to add, does not appear to be all that untypical. I have had many disappointments, but also a fair number of accomplishments. Most people probably could say much the same thing, whatever their race might be.

My point is that we should all, whatever our race, resist interpreting ambiguous situations in ways which assume the worst about the intentions of the people with whom we are interacting. This principle is just as much in the interests of black people as it is of white people.

There is an etiquette problem when anybody gets bogged down into a "culture of victimization". This mentality assumes that all of a person's problems are caused by other people, which is impolite towards those people; its default option is to assume the worst, not the best. The resulting chip on the shoulder will not make a favorable impression on others and will discourage them rather than encourage them to make decisions favorable to the interests of the person whose shoulder the chip is on. Assuming victimization undermines any incentive we might have to examine our own performance and try to figure out how to act more effectively.

By assuming the best of other people, by interpreting ambiguous situations as favorably as possible to other people, people of all races can contribute to a reduction in the social problems caused by racism. A black person who assumes that the white people with whom he comes into contact mean well and have honorable intentions will help those people in fact to do good things. A white person who refrains from assuming that black people automatically regard all whites as racists will help the black people in her vicinity not to entertain such assumptions.

Racism and the Choir Conductor: Revisited

An ambiguous situation is one which can be interpreted in many different ways. The situation at Gung Ho College discussed in chapter 1 was certainly ambiguous. Different people at Gung Ho placed a wide variety of strongly felt interpretations on the actions of the choir conductor.

Some people felt that Elmer Gibson was a racist who ought to be chastised, humiliated, and fired from his teaching position for what he had done. Others thought that Gibson's actions only reflected sincere concern for the welfare of all of his students, whatever their race.

Etiquette suggests that it is not polite to stomp all over people who have tried to do the right thing, even when we do not see things quite the same way that they do and do not share all of their priorities. Etiquette gives other people the benefit of the doubt. Etiquette above all tries to avoid acting on the basis of the cynical witticism: "No good deed goes unpunished!" From this point of view, whatever the actual merits of Professor Gibson's position and those of his most severe critics, there can be no doubt that the 1990 affair at Gung Ho College was handled very improperly.

Nevertheless we should avoid drawing harsh conclusions about the administrators and faculty members who led the 1990 discussions at Gung Ho College. The same principle of etiquette that would give Elmer Gibson the benefit of the doubt when evaluating his actions as choir conductor should also be applied to the other actors in this drama. The situation arose abruptly in an institution that was totally unprepared to cope with it. President Guy Fox was new on the job, did not know the other principals very well, and under the circumstances found it hard to figure out what was actually going on. He too must be presumed to have acted sincerely and honestly to protect the welfare of Gung Ho College as he saw it. And the same can be said of all the other actors, many of who must have done what they did for thoroughly idealistic reasons.

It was, however, disheartening that this situation managed to get so inflamed in an academic institution. It is my hope that if more people in the United States start thinking about racial problems at least partly in terms of etiquette, this may help to prevent similar outbreaks of hard feelings and may thus help us to get a constructive handle to our racial problems.

Beyond Racism: Unfinished Business

The purpose of this book has been to examine America's racial problems in a framework that clarifies where we have gone wrong in our recent efforts to deal with them. Our basic frame of reference was a concept of government visualized as the ultimate result of a lengthy historical process. At the beginning of this process we found protection rackets that governed exclusively with the aid of pseudolaws. Progress consisted of replacing more and more of the pseudolaws with genuine laws, such laws being defined as general rules of action which are enforced with sanctions.

Segregation and Jim Crow rules were pseudolaws rather than laws because they lacked generality. The civil rights movement moved America forward by removing these race-based pseudolaws from the books. The movement erred, however, when it came out for antidiscrimination rules, which themselves were pseudolaws because they were rules of motivation rather than rules of action. According to this analysis, therefore, to resume moving the United States forward we must abandon the antidiscrimination rules.

In conclusion I would like to point out that race is not the only problem with American government. Important though race has been, we should still see it in perspective. There are a number of other pseudolaws abolition of which must remain on society's action agenda.

The whole concept of an "illegal alien," for example, will have to go. To be an alien is a status, and it is not a status which is determined by a general rule of action. It is not "illegal" in the U.S. for anybody to enter the country, crossing the boundary line without the permission of the government; such an action is illegal only for some people, namely those whose status is "alien." It appears to me that the concept of an illegal alien is both a philosophical and a legal abomination.

In recent years Congress has seen fit to mandate that all U.S. employers discriminate against illegal aliens by refusing to employ them. There is no "willing buyer, willing seller" rule any more for illegal aliens! The logic motivating this rule was clear: the main reason aliens enter the U.S. without government permission is to take advantage of economic opportunities presented by employment here. Since the government has been unable to control the borders, maybe we can get equivalent results by making it illegal to employ such people. For some reason Congress refrained from enacting rules prohibiting anybody from selling or giving food to illegal aliens, which would reduce the temptation to come in illegally even further, or allowing good citizens to shoot them on sight! Such self-restraint was commendable.

Of course we would all rather live in a country people want to enter "illegally" than in one people are trying to get out of "illegally." But the fact remains that the rules dealing with aliens remain a major body of pseudolaws in the U.S. And as long as they are on the books, they remain a potentially dangerous precedent for racial minorities as well.

Another major body of pseudolaws can be found in the U.S. federal income tax code. The progressive income tax is a pseudolaw, as is the implicitly regressive F.I.C.A. tax supporting Social Security. Only flat rate taxes can be genuine laws. For practical purposes these tax pseudolaws more or less come out in the wash. When you add together the various progressive, flat, and regressive taxes the net result closely approximates the results that would be produced if all federal taxes were replaced with a flat-rate income tax. However the resulting tax system is far too complex to be meaningfully controlled by public opinion via elections, and it is incredibly inefficient as a result of the transaction costs imposed both on the government in collecting taxes and on citizens as taxpayers. As a matter of principle we ought not to tolerate any pseudolaws, even if they are relatively harmless.

Still another remaining body of pseudolaws includes the current rules requiring males of certain ages to register for a possible future military draft and the methods by which particular people are rounded up to serve as jurors in trials.

Even eliminating all remaining pseudolaws will not make our government a perfect one. The possibility of bad laws and unwise policies will always remain. But such a government could be considered "ideal" in the sense that it will come as close to perfection as mortal humans can ever expect to attain.


To access other chapters,
go back to the Table of Contents.


1 See Mark Snyderman and Stanley Rothman, The IQ Controversy: The Media and Public Policy. New Brunswick (U.S.A.): Transaction Publishers, 1988.