As an immigrant to the UK, I have as much reason as the next person to be worried about the constant stream of poll statistics offering more or less reliable empirical evidence of racism, measured by factors such as the percentage of people who enjoy watching Midsomer Murders. It is therefore with great caution that I agree with one part of Richard Epstein’s well-known argument against equality legislation (Forbidden Grounds: The Case Against Employment Discrimination Laws, Harvard University Press, 1992). It is not his argument that equality law is inefficient which persuades me, but his assertion that ‘Where markets do not have formal barriers to entry, the victims of discrimination have effective strategies of self-protection and powerful allies whose own self-interest will operate on their behalf’ (at 59). This implies that effective and powerful solutions to the problems of inequality and discrimination might lie in the hands of victims of discrimination, supported by those who believe in the ideals of equality and the intrinsic worth of every human being, and also bolstered by those selfish types who don’t care about inequality but do care about hiring the best person for the job in order to turn the greatest profit (i.e. would not consider it rational to refuse to hire the best person because of that person’s race or sex).
This assertion of Epstein’s is compelling; it is attractive because it is optimistic about the potential for finding new solutions to a persistent problem. It implies that abandoning the old-style hard-law approach of legislation from the 1960s and 1970s may indeed be the better way forward. This would be more in keeping with current thinking which advocates greater reliance on self-regulation by market participants. Epstein’s analysis suggests that anti-discrimination law may have adverse unintended effects, disempowering victims of discrimination by stifling the development of their own self-protection strategies and undermining the alliances they might otherwise forge if they could reliably distinguish friend (supports equality or is not bothered one way or the other) from foe (actively hostile to equality) in a free market where there are no artificially imposed constraints on expressing one’s true preferences within the limits of the general law (so, nothing criminal), no matter how irrational or unsavoury others may consider those preferences to be.
Against this approach may be posited the idea of the ‘total constitution’ which holds that in a modern democracy there is no legitimate self-regulatory space in which it is permissible for people to violate core ideals of the liberal constitution such as non-discrimination on grounds of race, sex, and other grounds covered by equality legislation. From this perspective, the framework of constitutional law extends the protection of fundamental human rights into every area of law, life and society (Mattias Kumm, ‘Who’s Afraid of the Total Constitution? Constitutional Rights as Principles and the Constitutionalization of Private Law’ (2006) 7 German Law Journal 341). In this view there can be no such thing as too much law where fundamental rights are at stake, and there are no boundaries constraining the review jurisdiction of the courts on constitutional issues. There is no exclusive domain for private law as every aspect of the relationship between private individuals, and every legal conflict, becomes ‘constitutionalized.’ There is no ‘safe harbour’ for anyone who wishes to act in ways which denigrate the core values of a liberal society. This depicts a ‘constitutional juristocracy’ which is the natural outcome of a sophisticated modern liberal conception of human rights, democracy and equality. It derives its constitutional legitimacy from a form of deference in which an enlightened and self-restrained judiciary abstains, where appropriate, from interfering needlessly with the autonomy of private individuals.
Kumm writes in the context of the German constitution; Epstein in the context of the United States. But it is easy to see the relevance of these ideas for debates about equality legislation in the UK. The perception that the constitution functions as ‘a kind of juridical genome that contains the DNA for the development of the whole legal system’ (Kumm, at 344), and acceptance of the idea that no corner of private law lies beyond its reach, explains or at least is consistent with the way equality law has evolved to encompass more grounds and to reduce the scope for justifying discriminatory, or even apparently discriminatory, decisions. The question Epstein raises is then worth exploring further. Are there any ‘effective strategies of self-protection’ for victims of discrimination in a free society and if so, does equality law support and promote these strategies or does it undermine them?
One reason cited by Epstein for allowing all parties to freely reveal their preferences in choosing whom to interact with in the marketplace is that otherwise they simply ‘burrow in deeper so as to keep their true grounds concealed. Memos to the file, far from being candid, will now be phrased in language that tracks the statute’ (at 166). Every employer proclaims itself to value diversity and equality of opportunity. Laws which provide an incentive for employers to fabricate fictitious but justifiable reasons for not hiring people might succeed in creating the superficial impression of a society in which all is well and everybody gets along, but the effect of this on victims of discrimination can be disastrous for a number of reasons.
Suppose a woman’s application for a job is rejected because of her race, and she is given a fabricated reason linked carefully to the qualifications necessary for the job. If she assumes the reasons given to be credible, this suggests to her that there are justifiable reasons why her qualifications are unsuited to this job, and presumably any job of a similar nature. If she assumes the reasons given not to be credible, she may tend thereafter to assume that no decision to reject her is ever justified (she sees a discriminatory motive lurking behind every rejected application) and responds to this by becoming prolifically litigious or by labouring always under the conviction that she cannot trust anything she is told. All these responses are inimical to her fuller, more fulfilling, participation in the labour market. In this example, the truth is empowering to the victim. It would allow her to identify and develop effective strategies in response, which is a better starting point than the informational black-out created by equality law. Everyone is surely better off if reasons are constructed in such a way as to communicate truthful and reliable information, no matter how unpalatable, instead of reasons constructed in such a way as to avoid legal liability. Aggregate social welfare is enhanced when there are no legal penalties for revealing true preferences in choosing whom to interact with in the sphere of private law.
To answer Kumm, nobody is afraid of the total constitution; instead the fear seems to be that in the absence of a total constitution liberal democratic values would be at risk and the lessons of history would be lost. Yet the question must be asked whether freedom for every individual irrespective of colour or creed is attributable to and made possible by the existence of equality laws in itself, or whether these laws are merely the legal expression of the enduring values and ideals upheld by free societies. The latter interpretation suggests that the legal framework of equality is far less important than it appears to be in a ‘total constitution’ world view. Instead, within a self-regulatory framework equality law would continue to play an important role in setting aspirational standards and maintaining monitoring procedures to ensure that outcomes do not endanger the public interest, but there would be no role for sanctions that simply force employers to ‘burrow in deeper’ to avoid liability for discriminatory decisions.
Wanjiru Njoya is a fellow of Wadham College, and a lecturer at Oxford University.