Stephen Kershnar, Justice for the Past, State University of New York Press, 2004, 158 pp.
Race (and sex) quotas are now too entrenched to be noticed. It is simply assumed that all human activity must be conspicuously “diverse;” a TV newscast with only white reporters would probably puzzle today’s viewers. Justice for the Past, by a philosopher who understands the law, is a reminder of the purpose of quotas, and why the rationale for them is so weak.
Justice may actually attract some attention. SUNY Press is a reputable scholarly publisher, a few of whose books have made a splash, and this gives Justice a chance to be widely reviewed. With luck, this book could help restart the debate about racial preferences that has sputtered out since the Supreme Court decided in last year’s Grutter decision to keep them going for another generation.
Many of Stephen Kershnar’s arguments will be familiar to AR readers. They should look at Justice anyway, for its less familiar arguments. These are followed to conclusions that, by accepted standards, are too vile to contemplate, and that even challenge some race-realist assumptions as well. At the same time, non-philosophers should be warned that Prof. Kershnar is a demanding writer. His free use of technical terms, which is understandable given his intended audience, leaves outsiders to make what they can of “fine-grained individuation,” “token harms in possible worlds” and “referential opacity.” His terse prose offers few signposts to distinguish core material from peripheral refinements, but perhaps this neutral tone will mean Justice is taken more seriously than would an anti-quota rant.
Prof. Kershnar reaches four main conclusions: superior qualifications do not create a right to a job, compensatory justice does not demand quotas for blacks, quotas promote no useful form of “diversity,” and — most daringly — “whites and Asians have greater per capita intrinsic moral value than blacks.”
As a free-marketeer on employment, Prof. Kershnar holds that a “job” is anything anyone wants done, and a “qualification” is the ability to do it, or learn how. Nevertheless, job qualifications are “a function of the demands of [the employer],” and employers are free to hire whomever they wish — even badly-qualified applicants. This may be foolish, but harms no one.
Prof. Kershnar then makes trouble for himself by trying to distinguish between rights and deserts. A job applicant may make himself most qualified by honing his skills, and may therefore deserve the job. Still, Prof. Kershnar argues, he has no right to the job because the employer can give it to anyone he likes. This sounds contradictory. Someone who deserves something ought to have it, that is, has a right to it. That’s what “deserves” means.
Of course, racial liberals always insist that a black who is no more (or perhaps a little less) qualified than his white competitors must have tried harder to reach a comparable level of skill, because he had to face racism, bad role models and other obstacles. Once it is granted that he therefore deserves the job, it pretty much follows that he should get it. Racial liberals want it both ways, however; if a black has not tried very hard, that too was due to the will-sapping effects of the same racism, bad role models, etc. Prof. Kershnar draws the line here: For him, it makes no difference why someone didn’t try hard enough. People who do not try do not deserve those things to which effort creates title.
And what should be the rewards of effort? In my view, assiduous individuals deserve no less, but no more, than credit for their pains. Blacks — and whites — who work to overcome environmental disadvantages should be praised for doing so. As for why effort should be praised, the likeliest answer is that the more people are praised for trying to do good things the harder they will try, and the harder they try to do good things — like develop skills — the more good things will be done. Nonetheless, an E for effort is not a ticket to a job or a place in medical school. It may be admirable for an employee to make great efforts to succeed, but an employer is still justified in hiring a more talented worker who does a better job with less effort.
It seems odd at first to find merit downplayed in an attack on civil-rights orthodoxy. Those who defend quotas and preferences are usually the ones who deny that the best-qualified have a right to the job. Ronald Dworkin, for instance, and the Supreme Court’s 1979 decision in Weber v. Kaiser Aluminum makes this point in order to justify passing over qualified whites. (This argument is rarely applied to the right of employers to disregard qualified blacks.)
What Prof. Kershnar opposes is the basis for anti-discrimination laws of any kind. Even many critics of quotas endorse the 1964 Civil Rights Act, for example. Its purpose, Prof. Kershnar notes, was to “protect” blacks from supposedly losing jobs to less-qualified whites, and it assumed that the best-qualified candidate does have a right to the job. Critics of quotas now say that the law was (mis)read to support “reverse discrimination,” but Prof. Kershnar rejects all anti-discrimination laws on libertarian grounds. Employers should have complete freedom to hire anyone they like.
Prof. Kershnar next considers whether quotas are just. He narrows the question to public institutions, since a private employer’s right to free association may well outweigh whatever duty he may have to hire blacks. In the case of public hiring, where freedom of association does not apply, any debt owed to blacks will stand out more clearly.
Prof. Kershnar’s analysis is thorough. The best-known argument for quotas, of course, is that blacks deserve the positions they would have gotten had not wrongs to their ancestors, chiefly slavery, impaired their abilities. Several of Prof. Kershnar’s replies are also well-known: genetic differences in intelligence, not white misdeeds, explain a large proportion of the black/white achievement gap; genes aside, the harm to contemporary blacks from long-ago wrongs cannot now be determined; most white men penalized by quotas “have not performed the relevant types of culpable wrongdoing.”
To these well-known arguments, Prof. Kershnar adds several more. Even if (some) whites are beneficiaries of past wrongs, a chance innocent beneficiary of a wrong may have no obligation to the victim. I might offer the following example: Even if some tourists go to Turkey rather than Israel only because they are afraid of bus bombs, Turkey owes Israel no part of its windfall.
Prof. Kershnar also stresses that today’s blacks would not exist were it not for the institution of slavery, which brought their ancestors together. No one can reasonably complain that he would have been better — or worse — off had he not been born.
In considering both sides of the reparations question, Prof. Kershnar raises a defense of reparations that does not depend on the current generation of blacks’ actually having been harmed by slavery. He takes the view that a slave’s descendants have inherited his claim to wages. The idea here is that the slave had a right to be paid by his master for the labor extracted from him. These unpaid wages were his property, which, like all property, he could pass on to his heirs.
In my view, Prof. Kershnar has unearthed the argument that leads many well-intentioned whites, in no way disloyal to their own race, to believe that slavery still matters. These well-intentioned whites, groping for words to express this thought, seize on nonsense about “institutional racism” or the “lingering effects” of long-ago events, and dutifully profess shock when group differences in IQ are pointed out. These whites are nonetheless getting at something real when they deny that the book on slavery closed the day the 13th Amendment was ratified. The inheritance model articulates what bothers them.
A black slave deserved remuneration. The debt to him incurred by his owner was not reduced by the possible inefficiency of slavery — the fact that his owner might have found hiring labor more profitable. The slave was owed the market value of his work. After all, the car I just stole from you does me no good if I wreck it, yet I owe you the replacement value of the car just the same, not of a pile of junk. Likewise, says Prof. Kershnar, the room and board provided by the master did not offset his debt. He had no right to his slave’s labor even if the slave would have fared worse back in Africa. I must restore the full value of your car to you even if, had I not stolen it, you would have driven it off a cliff. On the other hand, room and board intended as wages would have lessened the master’s debt.
Prof. Kershnar denies that the hereditary debt incurred by slavery can be paid now, for many of the same reasons slavery’s ill effects cannot now be compensated (or could be, if they were real). For one thing, the debt is impossible to calculate at this late date. Part of the problem is added value: if A invests the $100 he stole from B in stocks that appreciate to $1,000, how much of the $900 profit does A owe B? This calculation is particularly difficult with regard to compensation for slavery, since the prevalence among blacks of crime, out-of-wedlock births and other wasteful, destructive behavior suggests that goods stolen from blacks would have lost value if blacks had kept them. (Virtually everything left in Africa by white colonists has decayed.)
A related point is that when figuring compensation we normally require that the injured party make a good-faith effort to minimize his losses. The fact that black unemployment normally runs about twice that of whites, and that blacks (unlike, for instance, Chinese) do not have a reputation for unusual diligence in the jobs they do hold suggests blacks have not tried especially hard to make up whatever ground they might have lost because of slavery.
One way to calculate the debt would be to take as a benchmark the mean difference in wealth between living blacks and whites, but that yields an overestimate because genetic factors explain much of the wealth difference. Finally, as we have seen, even if a debt could be calculated, innocent white recipients of a slave’s unpaid wages — presumably the master’s heirs — may not be obliged to return these benefits to the slave’s estate.
Prof. Kershnar cites further complications peculiar to inheritance: claims can be sold off; descendants may be disinherited; a slave able to dispose of wages saved (at what interest rate?) might have given them to his church instead of his children. Prof. Kershnar concludes for similar reasons that no citizen today is liable for the wrongs, such as slavery, that the states and the federal government failed to prevent before the 20th century.
Nonetheless, Prof. Kershnar has convinced me there is a point that must be conceded to the reparationists. The lingering ill effects of slavery are fictions. There would have been no more black doctors or millionaires than there actually are if every black had come to America freely — discounting for quotas, there would probably have been fewer. However, the debt owed to slaves was genuine. For practical reasons it cannot be collected, yet at the level of principle, where critics have rightly sought to challenge reparations, it will not go away. The claim of blacks to have been denied their due has been wildly exaggerated, and used to extort countless unmerited concessions from guilty whites. It nonetheless contains an element of truth.
Prof. Kershnar then moves on to two issues more loosely connected to justice. The first is the diversification of opinion that — we are assured — higher black and Hispanic enrollment will bring to universities. After pointing out that less able students are unlikely to contribute much intellectually, and that minority opinions add nothing at all to science, Prof. Kershnar addresses the questions of whether the opinions blacks and Hispanics are apt to express are true.
Prof. Kershnar identifies the three “beliefs of favored minorities . . . that often receive public recognition,” and which their presence will presumably promote. The first is that justice essentially involves equality. According to Prof. Kershnar, this article of minority faith assumes, in the face of the wide variation found in every human trait, that all men have the same intelligence, virtue, or whatever else determines just treatment.
The second belief is that blacks and Hispanics are being treated unjustly, which ignores the role of genes in low minority achievement. The third is that “the government has a far-reaching mandate to aggressively combat this injustice,” an error with Orwellian potential if there is no injustice to combat. Whether such ideas are actually true is soft-pedaled when people talk of the marketplace of ideas for fear that an emphasis on truth may somehow encourage censorship of falsehood. Undaunted, Prof. Kershnar pronounces all three of these opinions false. In any case, as Prof. Kershnar remarks, these beliefs are “already far more prevalent than their competitor[s]” in American higher education, and need no extra advocates.
There is one more topic in Justice For the Past, raised in the context of compensatory justice but not really required by it. Assume, contrary to fact, that contemporary blacks are owed a measurable and collectible payment because of the wrongs of the past. Since the state is supposed to enforce debts, failure of the American government to enforce this one would show “contempt,” and “the notion that . . . blacks have less moral value than other persons.” However, argues Prof. Kershnar, non-enforcement of such debts is justified if blacks are less “intrinsically morally valuable” than whites, a view he spends seventeen pages defending.
Why make an argument that is sure to be met with outrage? Why, having already concluded that blacks are owed nothing, pursue the doubly hypothetical and radioactive question of whether, even if they were owed something, the government would be justified in doing nothing because of their lower value? I suspect Prof. Kershnar simply found the question too intriguing to pass up.
It is important to understand what Prof. Kershnar is saying. It is not, or not simply, that blacks act less morally than whites, although the rates of black crime, illegitimacy and venereal disease certainly indicate that they do. (Researchers have used the “prisoner’s dilemma,” “ultimatum games” and “Newcomb” problems to gauge a subject’s sense of justice or willingness to be cooperative, and it would be instructive to know whether there are racial differences in these findings. Probably some data have already been accumulated inadvertently but not published.) Prof. Kershnar’s claim, rather, can be expressed by saying that the disappearance of whites from the universe would be a greater loss than the disappearance of an equal number of blacks.
Logically, this view implies that if one were forced to choose between saving an anonymous white and an anonymous black, one should always choose the white. Prof. Kershnar says nothing like this explicitly, but he does say his view justifies private discrimination in favor of whites and Asians, for instance when deciding which philanthropies to support.
Prof. Kershnar bases this eyebrow-raising thesis on the greater “autonomy” of whites and Asians. Autonomy — what people have in mind by free will — is the capacity to identify one’s desires, examine them, and strengthen the more desirable ones and suppress the less desirable.
Autonomy can be expected to correlate with intelligence. Self-control requires insight into one’s own nature, and the capacity to foresee and compare the outcomes of various courses of action. Whites and Asians, because they have higher IQs than blacks, may therefore be expected to be more autonomous, a prediction for which Prof. Kershnar cites empirical evidence.
The question, of course, is why intrinsic value should depend on autonomy. Just because I’m more self-governing than you, does that make me better? Prof. Kershnar relies heavily on the observation that the belief that value “tracks” autonomy “best explains” many everyday judgments of value. If forced to choose between saving a man and a pig we would all unhesitatingly save the man; forced to choose between a pig and a radish we would save the pig — preferences which match the man > pig > radish ordering for autonomy. Now, this is undoubtedly the way we do think. People often act as if they believe that more autonomy equals more value.
Saying that “whites are intrinsically better than blacks” raises hackles and gives liberals an excuse to dismiss this book. Tactically, better results can be achieved, I suspect, merely by pointing out the values most people embrace reflect their preference for the ways whites do things. Making it clear that liberals prefer white ways by their own lights — by the neighbors they choose, by the way they want their children to grow up — is a good way to counteract liberal bromides. I don’t wish to be dogmatic; perhaps Prof. Kershnar’s audacity is a better way to shake things up, but I remain skeptical of talk of intrinsic value.
Justice for the Past may raise the consciousness of a few about quotas, but the odds of that making much practical difference are very uncertain. After 35 years, preferences for blacks have become the normal state of affairs, any departure from which, especially toward race-blindness, is treated as if it were discrimination. At the same time, a half-century after Brown v Board of Education, decades after discrimination in any plausible sense came to an end, black children and adolescents still trail whites in every category at every educational level by about as much as they did in the 1950s. Might these gaps suggest that whites are simply more able than blacks, in which case preferences were a bad idea from the start? By now this obvious question is met with the pretense that the gaps are inexplicable, or, more likely, silence.
The last opportunity to restore sanity may have been Ronald Reagan’s first term, when quotas were still considered the sort of liberal folly conservatives seriously intended to curb. In 2004, liberals are happy to let quotas continue to be part of the furniture, and conservatism seems to mean bombing Arabs. So far as I can tell, quotas were never even mentioned in the recent presidential campaign. The reception of Justice will be revealing, which is not the same as encouraging.