Free Association & Equality Before The Law

Guest Post by The Zman

If you are going to pick one thing that is a must-have for a liberal western society, the most likely choice is equality before the law. Things like free speech, elections and private property are important, but they are dependent upon equality before the law. After all, if the ruling class has privilege over everyone else in the law, that will turn to an advantage in disputes over property, politics and even speech. If you look at the list of “rights” we consider to be essential to a civil society, all of them count on equality before the law.

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Now, simply having equality before the law does not make for a liberal society. In theory, you could have a society with no property rights at all and still have equality before the law. A communist society, in which all property is held by the public and administered by the state, could have legal equality. Similarly, you could have a society with highly restricted speech and still have legal equality, as long as the speech limits were universally applied and enforced. In other words, equality before the law is not enough.

Obviously, equal justice may be a fundamental requirement of a liberal society, but you need other stuff to make it work. Property rights, enforcement of contracts, freedom of expression and the other items we tend to associate with civil liberty. Even though they cannot exist without equality before the law, a liberal society cannot exist without all those add-on items. This is basic civics, so what about the things that must exist in order for a society to maintain equality before the law? What is its necessary accessories?

The correct answer here is freedom of association. After all, you can have equality before the law along with limits on other rights like speech, as long as they are universally applied. Logically, there is no way to evenly administer limits on association, beyond very broad categories like segregation. Even there, the law is forced to treat one group different from others. This is the crux of Brown v. Board of Education. The material equality of education facilities did not alter the fact that segregation treated blacks unequally.

You cannot have equal justice without free association, for the simple reason the law must always put one citizen ahead of another, in order to limit association. Telling the tavern owner he cannot serve Koreans penalizes the Korean,  the tavern owner or possibly the other tavern patrons. It really does not matter who is or is not punished, as the only possible intent of the law is a bias against one group in favor of another group. There can be no equitable reason for placing such limitations on citizens.

This is why America is rapidly sliding away from liberal democracy into something closer to a corporate oligarchy. Once free association was abandoned in the 1960’s, it opened the door to endless meddling by the managerial state in the rights of the citizens. If the people can no longer decide with whom they wish to associate, or not associate, they can no longer have the right to free expression. After all, if you are forcing people together who don’t wish to be together, you better monitor their speech. Otherwise, you get a bloodbath.

Put another way, the reason that Christian bakers are being forced at gun point to bake cakes for people they see as degenerates is the state has no other choice. Once you dispense with freedom of association, you abandon equality before the law. It also means ever splintering minorities are incentivized to demand special privileges from the state, by forcing the court to choose between groups. The homosexual terrorists are attacking Christians, so they can get their group status set above that of Christians.

This explains the fracturing of American public life and the increasing anti-white hostility we see in our popular culture. Once you abandon equality before the law, people rationally seek group identity in order to press for privileges. The arbitrariness of the law creates the appearance of a zero sum game, in which the gains of one group must come at the expense of another. In the increasingly lawless free-for-all that is modern America, the rational thing for non-whites to do is agitate to get their piece of the crumbling white pie.

Of course, the reason America abandoned free association in the middle of the last century was in an effort to accommodate the minority black population. It is also why Continental societies have never bothered with free association. Wherever there are minority populations, the majority will inevitably impose its will on that minority, simply in the course of pursuing its own rational interests. Blacks in America can only be integrated by force, against the will of the white majority. That’s what happened last century.

This is probably why the managerial class has made a fetish of the downstream items we associate with liberal society, like voting, and sacrilized the positions within the political class. Any call to reform the political system and every criticism of the powerful is met with howls about “defending our democracy.” Since we now have an illiberal system, the people in charge have reached their status by illiberal means. Therefore, their legitimacy is not self-authenticating. The hooting about democracy is a defense mechanism.

One of the puzzles the libertarians have never un-puzzled is how a society can go from a non-libertarian state to a libertarian one, without a violent, miraculous blood bath. Even in theory, a libertarian state must be a starting point of a society. Once it transitions from that condition, it can never go back. Something similar is most likely true with regards to free association and equality before the law. Once these are abandoned, the interests opposed to their return grow, making a peaceful transition back to the lawful state impossible.

As a matter of simple logic, a return to liberal society now means revolution.

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