Anti-discrimination law has proved to a well-intentioned mistake

Compulsory niceness is bad law and worse social dynamics.

Trump-the-Presidency 2.0 has already proved to be rather different from the 1.0 version. It is not merely that this time around he won the US popular vote. It is that he has “hit the ground running” with a whole stack of executive orders.

Watching the reaction to this has become—to put it mildly—a somewhat bifurcated experience. Lots of people, who were relieved at his victory, applaud what they see as a return to common sense; a rejection of censorship; a rejection of a politics intrusive into any and all aspects of life.

Conversely, there are also lots of—typically very online—people who see it as Fascism redux, as the equivalent of the end of Weimar Germany being live-streamed. How can an active program of ending censorship; of lauding colour blind appointment on merit; of removing DEI commissars from the US Federal Government; that includes appointment of women and persons of colour to senior positions; be Fascism redux?

The short answer is: it isn’t. The question then becomes, how can it be seen as such? This is where the long-run consequences of anti-discrimination law kicks in.

Divya Agrawal, Unsplash

Anti-discrimination law creates a legal-bureaucratic structure that operates on the basis that the general citizenry is continually hovering on the edge of wrong think (racism) and wrong act (discrimination). The presumption becomes—without all this active effort—racism and discrimination will be unleashed.

This is nonsense. Anglosphere countries have low levels of racism and anti-discrimination norms have become widely accepted. Where there are discrimination issues, they are mostly problems of cultural distance that have a significant element of practicality from differing expectations between groups.

Nevertheless, it is very much in the interests of the legal-bureaucratic structure that anti-discrimination law sets up that propensities to wrong act and wrong think be seen as real, and endemic. Even better, is if the problem is seen as even larger than originally conceived.

So, we get a double expansion. The first expansion is in the range of protected groups. This provides a broadening of the social ambit of the potential wrong thinking (racism, misogyny, homophobia, Islamophobia, transphobia …) and of the potential wrong acting (who might be discriminated against).

As this moral dimension becomes so elevated—not least because there are so much employment involved, but also as considerable social leverage is created by for those who can set what is, or is not, legitimate action and speech—there is expansion of what constitutes wrong think and wrong act. There is large, indeed expanding, ambit for intellectual and other entrepreneurs to identify new sins of discrimination, new sins of unequal consideration, new ways wrong think propagates, and new ways of signalling one’s rejection of such sins.

It is better still if uttering true things becomes a wrong act, expressing wrong think, for people are prone to do that, to notice things. Of course, if you start trying to shun, shame and punish folk for expressing true things, for noticing things, you are likely to generate quite a lot of resentment. This is useful, for such pushback just further “establishes” the propensity to wrong think and wrong act. Hence Transphobia and Islamophobia becoming such markers of wrong think—there are so many true things to not notice.

There is even a term for someone who notices inconvenient patterns—far right. A term that has become the classic thought-terminating cliche in the service of not noticing.

There are thus powerful incentives to find that oppression and marginalisation are pervasive in Western societies. Hence the need for this ever-expanding conception of wrong think and wrong act, and ever-expanding institutional effort against wrong think and wrong act.

The question then arises, why is there so much wrong think and wrong act? The answer is, of course, that there is not, hence all the hate-crime hoaxes. But there are enormous incentives not to notice this inconvenient truth.

So, there is this institutional and ideological market for identifying wrong think and wrong act, and explaining why it is so pervasive. The answer to that is provided by the oppressor-oppressed template that is adapted, via Critical Theory, to apply to group after group.

The question then becomes, how can we measure how much all this is needed, and what would constitute success? The answer to that is: unequal outcomes between social groups is the measure of the current level of moral failure and the equalising of such outcomes is the measure of moral success. This is precisely how Critical Social Justice determines how much “oppression” and “marginalisation” there is and what the proper moral benchmark for a truly moral society is.

Critical Theory evolved, quite explicitly, out of Marxism. But Marxism—while influential in academe—has always been marginal in Anglosphere politics and society.

How were these various derivatives of Marxism able to break out of the academic ghettoes and achieve such institutional reach? Because the oppressor/oppressed template provided very useful framings for the legal-bureaucratic structures set up by, and evolving out of, anti-discrimination law. It provided ready made “explanations” for why wrong think and wrong act were potentially so pervasive and of why equal outcomes between groups had not been achieved.

Moreover, it built on elevating equal outcomes as the easy to grasp, and apply, benchmark of moral worthiness. Those groups identified as being marginalised, so the objects of morally worthy action, became sanctified thereby.

The expectation that abolishing discrimination would lead to equal outcomes between groups was easy for liberal humanitarianism to adopt. Moreover, Marxist-derived framings fit very naturally with the politics of equal outcomes.

So, Christopher Caldwell and Richard Hanania are right, civil rights law in the US—and anti-discrimination law more generally—is the institutional basis of “wokery”. Nathan Cofnas is right, equalitarianism is a fundamental premise. Eric Kaufmann is right, the expectations that abolishing discrimination would lead to equal outcomes between groups led to liberal humanitarianism making sacred various marginalised groups. James Lindsay is correct, Marxism-derived ideas provided the oppressor-oppressed framing—any politics of equality of outcome easily ends up being dominated by some form or Marxism, or derivatives thereof.

Fascism as ultimate wrong think and wrong act

So, how do we get from the executive orders flowing from the pen of Trump-the-President 2.0 to Fascism is upon us?

Well, from all the above. From the notion that unless people with the correct ideas are empowered to police the benighted masses—who forever hover on the edge of wrong think and wrong act—Fascism will follow, because Fascism is THE politics of such wrong think and wrong act.

It is still utter nonsense, even in its own terms, as none of these countries were Fascist when all these wrong thinking and wrong acting was perfectly legal. They were not even Fascist when various racial, sex, sexuality, etc exclusions were the law of these lands.

But one of the basic claims of Critical Theory has been that fascism is a “natural” outcome of “late” capitalist society. Again, utter nonsense as the various liberal democracies—especially the Anglosphere democracies—fought so bitterly to defeat Nazi Germany, Fascist Italy and militarist Japan. In the contemporary world, the People’s Republic of China is way more like the institutional structure of Nazi Germany than is any liberal democracy.

But this inherent-tendency-to-Fascism claim about Western “capitalist” societies is a claim about the future, and there is no information from the future, so you claim anything you like about it, and folk do. The entire basis of Marxism—and of the stream of ideas that develop from it—is precisely about grounding claims in an imagined future from which there is no information, so one can make any claim one likes about.

This enables generating any level of moral purity and rhetorical superiority from one’s belief in the imagine future, as one is not stuck with defending anything real, with all the sins and trade-offs such entails. It also means one is not defending any actual achievement, still less with wrestling with what achievement—or even basic practicality—requires.

One ends up with bonkers morality that utterly refuses to wrestle with the problems of making societies work. So we see fighting the deportation of rapists, blocking prosecuting folk for shop-lifting, being way more concerned with controlling the narrative than industrial-level rape of young girls, and so on.

Demeaning simplicity

Equality of outcomes across individuals destroys incentives to produce, to not waste, to maintain in working order, to discover. From each according to their ability, to each according to their needs is the principle of the family when there are the intimate ties of love and affection, the principle of the cancer cell when there are not.

Equality of outcomes across groups elevates a remarkably thin moral principle over the complexities of social reality. One that classifies people by the crudest of thin categories while destroying the ability to discriminate between the feckless and the conscientious, the trustworthy and the untrustworthy, the parasitic and the productive, the protective and the destructive.

The worse the behaviour from within a group, the more one shows one’s commitment to the principle of equality by ignoring such, or blaming it on others—especially others damned by being successful. The politics of equality of outcome is forever finding kulaks. The principle of equality of outcomes turns a group’s success into a mark of being oppressors, a group’s failure into the sanctification of being marginalised, of the oppressed. This demonising of success, and valorising of failure, is deeply corrosive of social order.

Equality looks grand precisely because it says all the good things go to all, and no bad ones will fall far more on some than others. It seems to elevate all people precisely because it applies to everyone without differentiation.

Yet that is precisely the problem, as it dwindles people into integers, stripping them of the complexity of character and connection that being human entails. Our differences are what make us human, are what makes us specific. The way equality strips folk of their complexities, while seeming to be such a thing of moral grandeur as to permit any and all acts to bring it about, is precisely how equalitarian regimes can prove so tyrannical and so murderous.

To eliminate all differentiation along the dimension to be equalised—as equality of outcome requires—is to police, to control and, by attacking and trivialising the complexities that make us, us, to dehumanise. Equality before the law is a principle of fairness precisely because it does not block treating people as they are, as they reveal themselves to be.

Equality of outcome has two huge advantages: it is a very simple moral principle, one that any midwit can use to scold anyone, no matter how smarter or more productive they are, or even especially if they are. Moreover, it can never work, so the equalising apparatus can go on forever.

Professional-managerial class interest

There is also a great deal of class interest involved. The professional-managerial class gets standing and social leverage from being the superior deciders. Such claims get a huge boost from being the superior moral deciders, and (as expansively as possible) the superior knowers.

If the benighted masses need constant policing because they so hover on the edge of wrong think and wrong acts, because they are so deplorable, then such policing provides lots of status, social leverage and employment for the professional-managerial class. This pervasive, moral-policing project, is what left-progressive politics has become.

In the contemporary world, there is nothing more morally grand than fighting Fascism, which becomes the epitome of fighting racism, misogyny, homophobia, Islamophobia, Transphobia, etc. It is even better if you get maximum moral status and social leverage from doing so. Even better still if it gives you lots of employment.

For that is the final thing Trump-the-President 2.0 does. It rubs it in their faces that they lost, and that lots of people think that they are full of it. He, Trump, rubs it in their face. Doing so is central to his rhetorical style.

He is even sacking them from their roles in policing error, in policing the benighted masses. Without such policing by their moral superiors, that has to mean that Fascism and Jim Crow are upon us!

There is nothing more Fascist than public, humiliating, rejection of the left-progressive professional-managerial class’s social and political strategy of leverage, of social dominance, through its rightful policing of the language and actions of the benighted citizenry so as to force them to speak and act nice.

So, that is how we get the demented notions of Fascism redux from Trump-the-President 2.0 when the rest of us see an end to censorship, an end to the politicising of everything, and a return to being able to say things, and act upon them, that everyone believed until, as Douglas Murray says, five minutes ago.

And yes, it is the iron law of woke projection in operation. For the essence of totalitarian politics is the belief that serious dissent is illegitimate and that one’s politics rightfully intrudes into any and all areas of life: into comedy, advertising, workplaces, schools, universities, professional associations, media, journals, sport, fiction, entertainment, games, hobbies. Indeed, since serious dissent is illegitimate, that one’s politics rightfully polices any and all areas of life.

The projection is even more obvious when we consider that such politics is so obsessed with folk’s skin colour, gender, sexuality, ethno-religious identity, etc that it proceeds to generate moral hierarchies from the same. For equalising outcomes between groups is what sets moral worthiness, and so the objects of such equalising become the sanctified groups.

There are in our societies politics that do indeed look, operationally, rather Fascistic. But it is not the politics of Trump-the-President 2.0.

The folk who protest so much? They really cannot see themselves. But then, they cannot see the rest of us either.

They are shouting into a collective bubble into which remarkably little inconvenient reality intrudes, for they all share an interest in policing reality to preserve their shared sense of self. A very morally inflated sense of self. One the “manifest threat” of Fascism jointly constructs.

This is not healthy, for them or for the wider society. But the whole polarising, gimcrack structure of unreality rests ultimately on anti-discrimination law.

Yes, it would be nice if everyone was nice. But requiring everyone to be nice upon pain of fines, imprisonment, loss of jobs, loss of career? That is institutionalising totalitarian politics via the policing of speech and action in all walks of life. The DEI commissars—acting on the basis that error has no rights, and they can determine error—are simply modern inquisitors building on the foundations that anti-discrimination law lays.

Anti-discrimination law was a dreadful, albeit well-intentioned, mistake. It creates the totalitarian policing of our lives by blue-haired scolds. The question is, can we reverse it, or will it overwhelm freedom and democracy?

Trump-the-President 2.0 is seeking to reverse it. That is why those who endorse and manifest the totalitarian policing of our lives, in the name of compulsory “niceness”, by blue-haired scolds are so outraged, and so willing to reach for their ultimate rhetorical lever: it is Fascism, right in front of us, being live-streamed!

No, it is really not.

References

Nick Haslam, Brodie C. Dakin, Fabian Fabiano, Melanie J. McGrath, Joshua Rhee, Ekaterina Vylomova, Morgan Weaving and Melissa A. Wheeler, ‘Harm inflation: Making sense of concept creep,’ European Review of Social Psychology, 2020, Viol. 31, No. 1, 254–286. https://www.tandfonline.com/doi/full/10.1080/10463283.2020.1796080

Robert Jay Lipton, Thought Reform and the Psychology of Totalism: A Study of “Brainwashing” in China, Norton, [1961] 2022.