Abstract
Twice in the Journal of Business Ethics, Walter Block provides a libertarian argument that The Civil Rights Act of 1964 is unjust because it is a violation of a business’s property rights and therefore ought to be repealed. No libertarian reply to Block has ever been given, creating the mistaken impression that his argument is the true representation of libertarian theory with regards to civil rights. This paper focuses on Title II and argues that both Block, and this prevailing opinion of libertarian theory, are wrong. There are different types of libertarian theory. Block’s theory of natural rights is one of them, but there is another strain of libertarian thought that embraces the common law, at least as it existed up until the late 1800’s. This paper explicates a libertarian argument, based on the common law, which supports and defends Title II of the 1964 Civil Rights Act. Specifically, the evolution of contracts via assumpsit arguments, found in Blackstone’s Commentaries, endogenously and consistently gives rise to the obligation to serve all. Title II of the 1964 Civil Rights Act is consistent with this common law tradition on public accommodations. Libertarian arguments that accept the common law on contracts ought also to accept common law doctrine on public accommodations and, perforce, the justness of Title II.
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Notes
Block argues against both Titles II and VII of the 1964 Civil Rights Act. In both cases his arguments depend on property rights and a nonaggression principle. In what follows I shall only focus on how they apply to Title II.
Block’s arguments focus on the supposed right to discriminate where “discriminate” means “to ignore, avoid, evade, have nothing to do with, another person” (Block, 1992, p. 242). Portillo and Block (2012) focuses on discrimination in employment but uses the same arguments and definition of discrimination as Block (1992). Block (1998) also refers to discrimination, and while it is clear that its meaning here includes disassociation, it is not clear if it also means segregation. Since this paper focuses on Block’s arguments, only the issue of discrimination, as defined by Block, will be addressed. The issue of segregation, not refusing service while separating races, is not specifically addressed in this paper. This is regrettable, but the relationship between segregation, the common law, and libertarian theory requires sufficient additional argumentation as to warrant its own paper. For an example of an endogenous common law criticism of “separate but equal” see Lofgren (1987, pp.116–147).
Further fueling the impression that any support of antidiscrimination laws, like Title II, is purely tactical and not what “libertarians really believe” is Milton Friedman’s argument that there is no principled distinction between antidiscrimination laws and laws that enforce segregation (2002, pp. 108–115).
See Hume (1998, pp. 93 and 174), footnote 65.
John Hasnas (2005a) argues that it is customary law, not common law that ensures Hayek’s principles of Justice. Still, Hasnas notes “Until the nineteenth century, there would have been little harm in identifying the common law with the customary law of England” (Hasnas, 2005a, p. 89). I extend this to the early 1900’s because many libertarians seem to be fine with property and contract as it existed in America’s gilded age. For a more popular statement of the affinity between libertarian thought and the common law see Harper (2016).
Of course, we can debate over whether the common law actually did perform these functions in the manner purportedly identified. However, the purpose here is not to foundationally justify libertarian theory, but rather to show there is an alternative avenue of thought within libertarian theory, concerning the nature of property rights and the implications of this approach for business, discrimination, and Title II.
The claim that these rights and responsibilities were "unchanged" must be taken with a grain of salt. Both Beale and Burdick are writing after Plessy and recognize the Supreme Court's decision that while innkepers and common carriers could not refuse service, they could segregate if the separate facilities were “equal.”.
Charges of racism are typically levied against capitalism and/or neoliberalism rather than the underlying common law, but the argument that the common law is racist is constructable. Notably, Sunstein (1987) argues that in Lochner, and by implication in laissez faire theory, the “market ordering under the common law was understood to be a part of nature rather than a legal construct" (Sunstein, 1987 p. 874). Sunstein argues that this construal of the common law order as natural results in legal reasoning that is opposed to anti-discrimination rules in hiring. This disproportional effect of the common law on minorities could easily be classified as racist leading to the same judgement of any system based on those underlying rules. This is why it is so important to address the anti-discrimination rules that were and are part of common law, to show, as The Harvard Law Review (1989) notes, with regards to the common law: “An understanding of the duty to serve and its relation to racial discrimination remains significant despite the existence of statutes that prohibit private racial discrimination” (p. 1993).
Some may object to the use of “flow” here, but legal reasoning is neither completely deductive nor inductive. As David Hume tells us, legal reasoning in the common law is also by analogy and imagination (1998, pp. 92, 93, 173–74). I can find no better descriptive verb as to how one analogy gives way to another than “flow.”.
See also Sir Edward Coke on Slade’s Case (Sheppard, 2003, pp. 116–124).
One notable libertarian detractor of this line of reasoning concerning contracts is Murray Rothbard. Rothbard contends that the concept of theft is the only legitimate consideration in the determination of legitimate contracts. See Rothbard (1982, Chapter 19).
The arguments of this paper should not be interpreted as solely a legal argument. Both my argument, and Hayek’s argument, share a Humean approach to property and contract. This approach is simultaneously juridical and moral in nature. As Gerald Postema observes “Hume is writing moral philosophy and.
jurisprudence simultaneously” (Postema 2019, p. 81). For a fuller account of a Humean business ethics see Kline 2012.
Of course, this is true if, and only if, there are posted prices. In the United States, specific laws on posted prices will vary by state. I am also not speaking here of legitimate errors in advertising that may excuse the merchant from charging the advertised price.
Block’s argument (1992, p. 243) on this merely states that a business could have whatever groups it wants as a clientele. It does not reference the need to broadcast this information. In Block’s view it would probably be a violation to require a business to place such a sign in the first place.
This “should” carries both a legal and a moral normativity. See note 13.
A libertarian could argue that any and every agreement is voluntary with no stipulations or constraints on the type of agreement or what constitutes “voluntary." As this would include children, the mentally impaired, and those under duress, I leave it to the reader to decide whether this is a viable position or a reductio ad absurdum.
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Kline, W. A Libertarian Defense of Title II of the 1964 Civil Rights Act. J Bus Ethics 185, 75–87 (2023). https://doi.org/10.1007/s10551-022-05200-3
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DOI: https://doi.org/10.1007/s10551-022-05200-3