I read Epstein as a much more principled thinker. I think his basic point here is that liberal individualism doesn’t explain all of society and culture. In addition to markets, bureaucracies and rational utility maximizers he recognizes informal cultural institutions—examples would include ethnic distinctions, standards of honor, sex roles and omerta—that are quite durable and affect society profoundly for good or evil. To that extent I agree with him.

The question then becomes what to do if there is an unforced social consensus that some such informal cultural institution is destructive. All he does here, I think, is reiterate his usual view that it is best to let that consensus act through voluntary initiative and agreement rather than direct government attempts to force social and cultural change. He also brings back the old distinction between government in its legislative role and government in its proprietary role (e.g., government as regulator of schools generally and government as proprietor of a school). I view his general views on both topics as a good thing.

It’s somewhat unclear—to me, anyway—exactly how far he agrees with Lowry substantively. Certainly he has some sympathy with the position. I think it’s probably inevitable that anyone who rejects the view that there are innate racial differences in average intelligence and the like would do so. Since it’s a lot of work to reject the orthodox position on race I can’t complain when someone who doesn’t claim expertise in the area accepts it.

The net effect of Epstein’s view would be that nongovernmental institutions are free to discriminate however they want, and that government institutions are free to institute affirmative action for their own operations but not to require it of others. As a matter of basic legal arrangements that doesn’t sound so bad to me. From the standpoint of self-government it would be a big step forward.

I think Mr. Kalb underestimates the extent of the racial preference policies that are already in existence in private institutions and businesses as well as government bodies and the harm they are doing. While Prof. Epstein says in an e-mail to me that he does not advocate affirmative action but only wants institutions to be free to have it if they so choose, his article clearly suggests that he sees affirmative action as a positive thing for society that ought to be expanded further. When we remember the vast size and power of the businesses, universities, and other private and public bodies that have made race preferences for unqualified blacks a religious crusade, with all the moral corruption that involves, with the systematic institutionalization of lies and intellectual dishonesty at every level of society, and with the plain injustice of it, not to mention the concrete harm and danger caused by the lowering of standards, we ought to recognize that these practices are not something we ought to look on with indifference—as simply a matter of “choice.”

The mistaken, libertarian premise I see in both Mr. Kalb’s and Prof. Epstein’s thinking is that as long as a bad thing is not being imposed on us by the government, then it is alright. In reality, a politically correct tyranny voluntarily instituted by powerful private and public entities, all sharing the same ideology and controlling most of the society, could be just as harmful as one forced on those institutions by legislative and judicial mandate.

I was talking about Epstein and his views and not the goodness of private affirmative action. I agree the latter is bad, corrupting, misconceived, oppressive and almost any other bad thing anyone wants to say about it.

Epstein’s concern here as elsewhere is with what legal regime is best in a variety of settings, and with defending his favored regime against complaints that it doesn’t adequately deal with situations in which simple atomic individualism does not account for social reality. The point of his review is that even if negative social feedback loops or whatever, by constructing racism, are responsible for all the disparities between blacks and whites in America, self-government is a better response than government-mandated affirmative action.

It’s true he expresses some sympathy for Lowry’s theory or something like it. However, he doesn’t argue in favor of the theory, claim expertise on the subject, or even specify his own views. He also expresses some doubts about the theory, but he doesn’t think an overall assessment of it is needed for the review. So I view his expressions of sympathy as a wholly subordinate aspect of what he is concerned to say.

Does Mr. Auster believe private affirmative action programs should be illegal? As far as the law goes, it seems to me making them optional would be enough. Then the problem would be persuading enough people that they are a bad idea and making that view sufficiently respectable so that some businesses and institutions would start dropping them. But that approach is consistent with the point Epstein is concerned to make here.

I believe private affirmative action programs, especially in very large corporations and universities and government departments, are bad, harmful, un-American, and ought to be opposed. Prof. Epstein looks on such programs favorably, as can be plainly seen by reading over the last third of his article.

As to whether private affirmative action programs should be illegal, under existing anti-discrimination laws they ARE illegal, or ought to be. That’s one of Epstein’s points. He wants to get rid of the non-discriminatory employment provisions of the 1964 Civil Rights Act so as to remove any remaining legal obstacle to a flourishing of affirmative action. As to whether AA should be made illegal if we were re-writing the laws, the thought has never occurred to me before. It would be interesting to hear more arguments.

I agree with what Mr. Auster says in the first paragraph of his most recent comment. All I’d add is that in this review Prof. Epstein is not concerned to argue his personal view that some sort of AA is a good thing but in favor of a legal regime that leaves AA up to the particular actors involved.

His basic concern as a libertarian and as a legal theorist is to let the people involved come to agreement on what is good and makes sense and act on the agreement. I think it mistakes his position to say that “He wants to get rid of the non-discriminatory employment provisions of the 1964 Civil Rights Act so as to remove any remaining legal obstacle to a flourishing of affirmative action.” He thinks Loury, whose fundamental concern is what he views as racial injustice, should want to get rid of them for that reason. His own fundamental loyalty as a theoretician though is not to AA or to a conception of racial justice but to self-government under equal laws. He would also (unlike Loury!) favor getting rid of the EO provisions if the social consensus and therefore the predictable consequences were quite to the contrary.

For my own part I agree that AA like other forms of employment discrimination should be a voluntary matter for the particular organization. How to deal with ethnic differences, sex roles and so on is difficult to prescribe by general legal principles. In general it seems best to let each decide, in agreement with others involved. That has normally been the law and I’m not sure what would improve on it.

Some more thoughts, possibly in part repetitious:

I think Mr. Auster has a point when he says in his original entry that “libertarian ideology, divorced as it is from any consideration of higher ends, can easily end up as the servant of whatever trends happen to be dominant in society at a given moment.” It’s not clear to me that in the long run Prof. Epstein can avoid justifying whatever happens to be the case socially, because what is the case socially can only be as it is because people accept it, and since there is no-one who in fact runs the world, social acceptance is always ultimately the outcome of “a multidimensional deliberative process that has converged on the same outcome time after time.” Still, I don’t think the point of catastrophe has been reached in this review.

Richard Epstein is a liberal proceduralist, and I think an honest one. He’s not a man with an ax to grind. In economics he accepts what the market does, because the market synthesizes far more information than one man could ever possess. For the same reason, in politics and culture he wants to accept the outcome of free self-government.

It seems to me that in the review he misapplies his own principles, but only as to matters that for him are matters of personal opinion rather than principle that is to bind others.

As to private affirmative action programs he says:

“The fact that these programs, both public and private, have been so widely adopted (even to excess) in the face of such strong opposition testifies that, in sharp contrast to Jim Crow, they are not the product of a corrupt or factional political system.

“Rather, they are an outgrowth of a multidimensional deliberative process that has converged on the same outcome time after time. That virtually every major private corporation and private university embraces some form of affirmative action suggests that state institutions doing the same tasks should be allowed the same latitude. A bar against any form of affirmative action is a tough position to defend inside any organization, public or private.”

There is something odd about the line of thought. The whole point of AA is to eradicate or at least render ineffectual “deeply rooted social prejudices and stereotypes”—that is, to destroy utterly the outgrowth of a multidimensional deliberative process that has converged on the same outcome time after time. The deliberative process that has given rise to social recognition of race has in fact been much more multidimensional, convergent, enduring, and independent of political and bureaucratic pressures than the one that has given rise to AA. Indeed, AA is in substance an attempt by a more bureaucratic and politicized process to suppress a less bureaucratic and politicized one. So it seems on Epstein’s own line of thought he ought to have serious doubts about it.

Why then does he come out in favor of AA? In part I suppose because in order to think at all one must accept most of what other people say. We can’t pull ourselves up intellectually by our bootstraps or deal with every possible issue before we say anything. That’s especially true of issues that are as sticky as racial differences. It is enough if a thinker asserts as his special contribution to the discussion only what he has thought about deeply and honestly. And that I think Epstein does. In the review he doesn’t argue or particularly assert the merits of AA, although he makes it clear that he accepts that they exist. What he does assert is that AA shouldn’t be made compulsory, because that would interfere with the free self-government that for him is what validates it in the first place.

Further, nothing Epstein argues for would change if after further reflection he decided that AA is intrinsically at odds with the principle of free self-government because it is an attempt by the managerial class to bureaucratize human interactions (I don’t know how to say that in libertarian-speak but think Epstein could do so). Even if that were his view he wouldn’t suggest making AA illegal. Self-government can’t be administered but must be defended by its own procedures. So on the matters with which, as a law professor, he is professionally concerned I think he would come out with the same view, that the law should leave it up to those involved what discriminations to make.

In relation to my previous comments, I gather Mr. Kalb is making two points: first, that Epstein is not simply saying, “let’s leave AA up to private choice,” but that he positively favors AA; and second, even if Epstein did not positively favor AA, his procedural position would still be the same: to remove AA from government mandates and let private bodies decide it as they will. I agree.

On another point, Mr. Kalb asks: “Why then does [Epstein] come out in favor of AA? In part I suppose because in order to think at all one must accept most of what other people say. We can’t pull ourselves up intellectually by our bootstraps or deal with every possible issue before we say anything.” Mr. Kalb’s idea here is strikingly similar to a point that was made about the Pope and modernity in another thread: the assumption that the Church needs to engage in modernity, to think and speak in modernist terms, in order to make itself intelligible—perhaps even to itself. As I said in that thread and reiterate here, I reject that assumption. It gives liberalism too much power. Traditionalists and non-liberals do not need—as their primary intellectual act—to engage in modernity and liberalism. They need rather to stand on their own ground apart from modernity and liberalism, to speak in non-liberal, non-modernist language. They should engage in liberalism in order to understand it, critique it, and resist it, not in order to make themselves understood in liberal terms.

It should also be reiterated that Epstein is not only in favor of private AA but also in favor of public AA where the government has become involved in the delivery of goods and services.