Friday, 26 January 2007

Laws against discrimination will not make society more tolerant

I’ve been steering clear of the Catholic adoption row so far. Nothing like coming late to a story! I think it may have been because I have found the whole affair depressing. Rather than take up arms, I’d rather put my head in my hands.

This is partly because I feel that this row has been deliberately engineered by Cabinet Ministers who want to take the opportunity to burnish their socialist credentials prior to the Labour Party's deputy leadership election by confronting both a conservative organisation (a church) and their own lame-duck leader. This is not to deny that there are real issues here, but I am sure that they could have been addressed far more maturely if there were not political points to be scored.

If the machinations of Labour politicians were enough to depress me, however, I’d have wept myself dry long ago. Instead, I have found the tenor of the debate equally depressing. This has become one of those polarised arguments where one is either manning or storming the barricades; a totemic issue around which a lot of anger and bile is being expressed while children remain to be adopted. The fact is that the Catholic adoption agencies are unusually effective at finding places for children - particularly troubled and teenaged children, who are the hardest to place. As with many religious schools, the attempt to mould society in a progressive image may result in the loss of a great deal of expertise and skill.

Not that I’m suggesting that what is required is some sort of woolly, third-way, middle-of-the-road compromise. I’ve never been that kind of liberal! I am the kind that rejects conservatism because I believe in progress, and rejects socialism because I believe in the rule of law. The rule of law is particularly important to this discussion, because it is often mistakenly assumed that the “rule of law” is synonymous with the “rule of laws”. A lot of the debate has been about how the Catholic Church must obey the law – there can be no exemption.

To make my point, I was prompted to finally break cover by a question from a friend, who asked “what are your thoughts on the homophobic Catholic Church clinging doggedly to their 'right' to discriminate, over and above the law? ”. In responding, I stated that

I am rather disturbed by what I infer as a belief that the law is something that we can use to force minorities to comply with the wishes of the majority. It was not so long ago that homosexuality was illegal. Would you then have railed against “homosexuals clinging doggedly to their ‘right’ to sodomy, over and above the law”?.

The rule of law does not mean that anything that is enacted in law is justified. The German Enabling Act that gave Adolph Hitler and his cabinet the power to enact legislation without reference to the Reichstag was a law, but it was a violation of the legal principles to which we refer when we talk about the rule of law (and should also sound eerily familiar to students of British politics).

Rather, the rule of law relies upon the fact that certain basic liberties are beyond the scope of the law to dispense with as particular parliaments choose. Younger nations have written constitutions which make this clear, but our constitution – though not enshrined in a single document – is no less rich. One of these basic liberties is freedom of association. Stepping back from adoption and looking at the law in the round, the effect is to compel people to associate (in this case conduct business) with people with whom they would otherwise choose not to associate. Furthermore, the law is arbitrary in its application: it prescribes certain types of discrimination (e.g. age) while ignoring – and thus implicitly sanctioning – others (e.g. weight).

I do not think that tolerance and understanding are best spread by law enforcement. They are best spread by interaction, debate and education. That requires openness on all sides. It is, of course, easier to get to the short-term end one wants (no discrimination against homosexual adoption, for example) by using the law to crack down on dissent. But I suspect that the longer-term ends (a society of tolerant and open-minded people based on mutual respect despite differences of lifestyle) are retarded as a result.

In the end, we create a society that does not discriminate because it is not allowed to, rather than people who do not discriminate because they do not want to.


Kit said...

I always think of Hayek's "Law, Legislation and Liberty" when issues like this crop up. Econtalk has a good explanation of the distinction between law and legislation:

This particular piece of legislation is odious. It is a vindictive attack on a minority group.

Tom Papworth said...

Thanks, Kit.

I have read a fair bit of Hayek, but I hadn't found a copy of LLL until now.

Actually, I don't think this law is intended to be "a vindictive attack on a minority group" because it is written more widely than that. It is only because the Catholic Church has objected that it has raised the adoption issue to the fore.

The general intention is to proscribe certain (albeit bigoted) opinions and to prescribe certain attitudes.

I’ve nothing against homosexuals adopting, but I fear that trying to force those who demur to go along with received wisdom is a regressive (and indeed repressive) move.

Tristan said...

It is a depressing trend amongst 'liberals' to try to force people to abandon prejudice.
Its like the free speech issue, ban the BNP and they'll only go underground as well as having the conspiracy/attacked group appeal.
With banning this sort of homophobia you only aid the homophobes in gaining support and appeal...

There should be no laws discriminating against a group (eg making homosexual sex illegal, or trying to ensure black people cannot vote) but there should be no attempt to force tolerance on people.

Milton Friedman made a very good case for free trade and liberalism being the solution to racism (a great example was the school voucher system instituted to allow racial segregation in schools had the opposite effect).