Knowledge And Decisions

While all forms of society require some set of dependable expectations enforceable by group pressure or force, in many nations it is not enough that rights exist; they must, in principle, also be equal rights. Equality as a legal or political principle does not depend upon a belief in empirical equality of any sort. Quite the contrary. If it were literally true that “all men are created equal,” there would be no case for equal protection of the law, or perhaps even for laws at all. If every person had exactly the same intelligence, strength, aggressiveness, organizing ability, etc., there would be no need for the law to protect one from another, because one would never be in a position to successfully take advantage of the other. Even though a coalition of such equal individuals could overwhelm any isolated individual, they would all be equally capable of foreseeing this and organizing counter coalitions to offset that danger. It is precisely the inequalities of people which makes the equal protection of the law so important — that there must be an overwhelming organized force ready to be thrown into the balance, so that a weak little old lady shall have as much right to live as the most stalwart young man or that frauds that deceive the unwary shall not be immune to retribution by officials who are more knowledgeable.

There are, of course, few people who are equal in any empirical sense. Most people who are considered equal are usually regarded as such because they have offsetting inequalities — that is, neither of them is superior in every aspect, nor are they equal in every aspect. In this context, “equality” over all depends upon what weights are arbitrarily assigned to the various traits in which one or the other predominates. So too would any general notion of “superiority” or “inferiority.” All these attempts to sum up disparate characteristics ignore the diversity of personal values which makes it impossible to have objectively recognized, fungible units in which to add up totals. Most of us would give a heavy weight to the fact that individual A is not a homicidal maniac, while individual B is, and so prefer A even if B were universally recognized to have more charm or beauty. But there are few traits on which there is similar agreement, even as regards rank ordering, much less relative weights.

Where a particular segment of the population has different rights from the general population at large — either explicitly or in practice — the costs of transacting with that segment will tend also to be different. Anyone with a choice of transacting with illegal aliens, ordinary citizens, or persons with diplomatic immunity, would face different risks (costs) of legal liability against himself and different prospects of seeking legal redress for any damages he might suffer from individuals from each of these respective groups. If the individuals in these three categories were otherwise identical, any prospective transactor — whether as a prospective landlord, employer, or spouse — would face the least risk of legal trouble from an illegal alien and the most from someone with diplomatic immunity. The abuses suffered by the former and inflicted on others by the latter are both notorious. What is important here is not this retrospective experience of these two special groups, but what that implies more broadly for prospective behavior in society at large. The more special rights are created for any particular groups, the higher the transactions costs of dealing with that group and the fewer transactions that group will be able to consummate. Special health and safety legislation for youths or women make youths or women less desirable employees than others and thereby reduces their employability. This is not a phenomenon of private capitalist employers only. Soviet managers have avoided hiring younger workers whenever possible for the same reason.²² As rights of legal redress for fired workers have grown, so have hiring requirements, to eliminate many who would otherwise be employable if the employer did not need a higher level of assurance before assuming the increased risks of legal liability for firing.²³ Relatives often have special rights on a job, without any explicit agreement to that effect; antinepotism rules make them less employable to avoid these costs.