Over on Econlog, Bryan Caplan uses an example from The Big Questions to illustrate his intuitionist approach to meta-ethics: Start with concrete, specific cases where your ethical intuition is clear, and reason by analogy from there. If you have multiple intuitions that lead you down conflicting paths, give some thought to which ones you’re most willing to jettison.
Bryan’s example is about discrimination, a subject that has come up before on this blog, but I want to emphasize that the argument Bryan quotes is quite separate from the arguments we got into in that earlier thread, and, for the sake of clarity, I hope we manage to keep them separate.
Bryan (paraphrasing me!) starts with the rather strong intuition that it’s okay for tenants and workers to discriminate. If you don’t want to live in an Albanian-owned building or an work for an Albanian employer, that’s your right (no matter how strongly we might strongly disapprove of your attitude). By analogy, then, it might seem that landlords and employers should have the same right to discriminate.
Now clearly the situtation is not that simple; landlords and employers are not the same as tenants and employees. But the question is: Are they not the same in any way that is morally relevant? The most frequently cited difference (in my experience) is that landlords and employers tend to have more market power than tenants and workers. Putting aside the question of whether that’s true, it can’t possibly be a full justification for treating landords and employers differently, and here’s why: There are plenty of instances where we don’t think that market power takes away your right to discriminate. Extremely attractive people have a lot of power in the dating market, but I think it’s safe to say that almost nobody thinks the most beautiful among us should be forced to date Albanians, or to prove that they choose their partners according to some objective criterion other than national origin.
So if you think it’s okay for tenants to discriminate but not landlords, you’ve got to face the question: What is the ethically relevant distinction here? It’s clearly not market power, so what, if anything, is it?
I do not deny that there might be a good answer to that question, but I must admit I can’t imagine what it would be.
The only response that I can think of to that question is something along the lines of “The landlord is denying the tenant a necessity of life (shelter) while the tenant is only denying the landlord the opportunity to make some profit.”
I don’t actually think this objection has any merit, but I thought it should be addressed before it is brought up.
First, change this to the market for video games, which are not a necessity. Should discrimination be OK in some markets but not others? That raises another ethical distinction that needs to be made.
The second objection to this response is the topic of that other thread.
Personally, I have no clue why it would matter whether you are the buyer or seller in determining whether you can discriminate. Suppose I was selling a magical good that would turn into whatever you valued most, but only up to the value of whatever you had given me in exchange for it. Maybe you are willing to give me a month in your apartment in exchange for this magical good, because you could finally have several pet ducks instead of an extra apartment. If I refuse to sell this good to you because you are not an Albanian, is there any moral distinction between my bahavior and that of the landlord in the original example? I can’t see any. If you can’t either, go back through and replace ‘magical good’ with ‘money’ and you have the original situation.
The above is my best 3AM attempt to explain why I see no moral distinction between the buyer and the seller. In fact, from an ethical standpoint, I can’t even figure out who’s buying and who’s selling, let alone impose different rules on them.
I am struggling here to see what we mean by “moral distinction” especially when I think about discrimination (as I do) as being largely governed by the costs of indulging this particular form of preference.
Discrimination by employers may involve a different quantum of cost to discrimination by landlords. Once costs are introduced, doesn’t arguing by analogy, at least in this situation fall down – other than to say both activities involves costs?
Prof Landsburg’s piece has the merit of demonstrating (at least to me) yet again that figuring out what a “moral distinction” is or might be is tough, and, figuring how anyone could have a comparative advantage in the area of moral judgment is even tougher.
The warning then is that there are plenty who do think they have some advantage here.
The issue is not distinguishing between buyer and seller, but distinguishing between empowered and non-empowered. This is a social and political calculus, not a hard-headed one, but it’s got a strong basis in facts most of the time:
In general, the landlord is in a socially powerful position, the would-be tenant in a very unpowerful position. There are exceptions to this: If I’m a student renting a two-room apartment and I put up a paper on campus advertising one of those rooms for sub-let, I’m not in a much of a power position with respect to my would-be subletters. But that’s not the basis upon which the social calculus says “landlords are not allowed to discriminate”; rather, that calculus flows from the real-world experience of minorities being treated very badly by racist landlords.
Same with respect to employment: If I’m a self-employed blogger and I want to shop around for an assistant blog-writer/fact-checker, I’m not in a much of a position of power over my would-be employees. But the social calculus that leads to “employers shall not discriminate” arises not from that but from the real-world experience of minorities being shabbily treated by racist employers.
In short: This non-discriminate dictum is not borne of purely philosophical ideals, but of hard-earned lessons about what leads to commity and discommity in the real world. The proof of the law is in the praxis, not the theory.
I think market power is a red herring here– I think, in fact, as your ‘attractiveness’ argument suggests, that under ordinary circumstances, market power entails discrimination.
The problem is that there’s an ethical spectrum here– and you have to draw a line somewhere. And, irritatingly, but probably inevitably, the point on the spectrum where all the analogies fail is approximately where the line should go.
One difference is that landlords do not really have free will when deciding to whom to rent. In the era of segregation (or maybe even now), if I was a white landlord in an all white neighborhood, how much freedom of choice did I have on whom to rent to?
Sometimes we do restrict the ability of (potential) employees to discriminate. In many states, medical personnel cannot refuse to treat AIDS patients, for example. A doctor who refused to work for (i.e., treat) blacks might find that his license would be revoked. So, it isn’t necessarily true that the law permits employees an unlimited right to discriminate.
“In general, the landlord is in a socially powerful position, the would-be tenant in a very unpowerful position.”-Steve Harris
This statement cleverly hides behind the qualifier “socially.” Defining what “socially powerful” is squishy enough that it is meaningless. However, if Steve Harris had said that landlords are in an economically powerful position he would be wrong, so decided to use the deceptive “socially” qualifier. Steve, what do you mean by a “socially powerful position”? Could you mean that landlords are somehow more respected renters? But this is an absurd statement.
Of course, it’s categorically false to say that a landlord is in an economically more powerful position than a tenant because landlords need tenants as much as tenants need landlords.
Ken,
The landlord is in a socially powerful position because he can choose to deny someone the right to live in a particular place; that’s a lot of power, the more so if there is a fairly limited number of places of the right price and location. The would-be tenant has nothing like a comparable power; the most he can do is deny the landlord his particular rent money, which likely only delays the landlord’s renting of the property.
Possibly there is economic parity; but the social disparity is immense, as the would-be tenant is generally in need of a place *now* in a way that the landlord is not in immediate need of renting the next unit. The class of tenants and the class of landlords need one another about the same, but it is individuals being compared for social power, not classes; and one landlord seldom needs one tenant in anything like the way one tenant needs one landlord.
Furthermore, the class difference is important: The standard landlord (i.e., owner of a large apartment building) is of far higher social status than the great majority of renters. This is not an insignificant observation, as it fuels the political calculus.
If I had to take up the position that “it’s okay for tenants but not landlords to discriminate” I’d say that market transactions are mostly impersonal and that the benefits of an open society derive from working for people we don’t know and having people we don’t know working for us (I’m not talking about the direct employer-employee relationship, but more generally about the system of production). The rule that landlords shouldn’t discriminate could have evolved as an attempt to reinforce the notion that price signals should take precedence over other considerations, in fact formalizing a norm already prevalent in society. I don’t know if this counts as an ethical distinction, but it’s maybe more of a rule-utilitarian distinction.
Rethinking things:
It’s not just the landlord and the employer who are prevented from discrimination; it’s also any place of public accommodation. So you can’t open a dime store and refuse entrance to Albanians (or refuse to sell to Albanians), no matter that there’s nothing particularly of importance in your dime store. The principle is one of establishing a context of “public business”; the social structure of such establishments, including the institutionalization of commercial districts which promote the success of businesses and of business law which provides a legal context supporting businesses, is one which is deemed of sufficient importance to civil society, that civil strictures are wound into it, including the civic good of nondiscrimination. The maintenance of a public accommodation means that one can legally distinguish provider of the business from consumer of the business, and thus there is no legal–and no logical–flaw in treating provider and consumer as distinct entities with distinct responsibilities.
Steve,
You are making two awfully big and dubious assumptions:
1. tenant is generally in need of a place *now* in a way that the landlord is not in immediate need of renting the next unit
2. The standard landlord (i.e., owner of a large apartment building)
Both of those seem to be wrong. I don’t know about you, but only once in my life have I been under pressure to find a place *NOW*. That was when I rented a room from a person who turned out to be a little unstable. I lived there for two weeks before moving in temporarily with a friend. And at no time was there a lack of available places to rent. When I went looking for another place to live, there was PLENTY of places to rent. All other times, I had at least a month to look for a place.
Also, if it is so easy for landlords to rent out places quickly, why has EVERY lease I’ve signed had a clause in it where I would have had to pay a fee, close to or exceeding the monthly rent, if I broke the lease, in addition to losing my deposit? If landlords had as easy a time at getting tenants as you think, the cost of breaking a lease would be much lower.
I doubt that the standard landlord owns a large apartment building. Of all the friends I have who rent only three out of about twenty live in large apartment buildings. All the others rent rooms in a house, with the owner or multiple roommates, or rent apartments in small apartment buildings (less than 10 units). Also, in less than half the places I’ve rented have the units been in large apartment buildings. All others were renting houses with friends, or renting a room in a house through a sublet or with the owner, or a unit in a place with less than four units.
I know three landlords (I probably know more, but the topic hasn’t come up with these others). Only one owns a mutli-unit place and this multi-unit place has only eight units. One rents a room in their house; the other rents out a second house. Only the person who rents out the extra room in their house could afford to leave any unit unoccupied for any extended period of time (over three months); I think she just likes the extra money brought in from renting out this room. The other two would need to find a tenant within that three month period before money started to get tight or even start to lose money as paying two mortgages is a bitch.
However, I think people in general make the same stupid assumptions you make. You seem to forget that landlords are the ones risking anything in the rental transaction- they’re the ones who own something that can be lost or damaged. You, also, seem to think that renters rent because they can’t afford to buy. I can’t think of anyone I know who rents because they can’t afford to buy; I’m sure there are many who rent because they can’t afford to buy, my point is that I think most rent because buying a place is a big commitment. All of the renters I know rent because it makes their lives easier: they can move at any time; they have no stake in the maintenance of a particular residence, nor are they responsible for this maintenance; if their neighborhood gets to be bad, they can easily move, whereas a property owner is left with a declining property value. You should remember that renters aren’t beggars going hat in hand to a landlord asking if the landlord will deign to rent to him. Renters by and large are transient people able to pick up and move at a moments notice and often do. Before I bought a house, I moved on average every months, because I found a better deal somewhere else. I rented for eight years before buying a house.
While I think it is true that people who own property are generally better off financially than those that rent, I certainly don’t think this puts renters at a disadvantage as renters and you haven’t put forth a persuasive argument why that would be so. Nor do I think this is why people rent. I think that property owners are better off financially BECAUSE they’ve bought property. I don’t think that the financially better of buy property. Owning property makes people far more financially responsible than almost anything else.
I would, also, like to point out that in Maryland, if a landlord is renting out space in a dwelling where he lives, the landlord can discriminate for whatever reason he likes. This discrimination just can’t be advertised. After all, why would a black racist want a white guy living with him and why would a white guy want to live with a black racist? Discrimination laws don’t apply to all landlords.
What is missing is that employers and landlords can insist on numerous rules and regulations for employees and tenants, the relationships are not nearly as unbalanced as this post implies.
I thought that putting something on the open market required that you and your product would be discriminated against. When someone sells something, we are free to choose or not choose the seller’s wares for any reason, because that’s the free market. (And advertising.) To say that it’s OK for the landlord (or any seller of any product/service/etc) to be discriminated against is inherent in the concept of the open market. At least, that’s my understanding of how the marketplace works. If you want to sell something, and you aren’t successful, you have to either get out of the business because you are not good at it, or you have to come up with a new method of selling that makes your product more desirable – makes your product so worth having that it overcomes all other negatives (real or not) the buyer would have.
So I’d say that in terms of the buyer discriminating against the seller – that’s the entire basis of capitalism. To enter into a landlord/tenant system as the tenant inherently requires you to discriminate.
Now, to the other side – the seller/landlord discriminating against the buyer. This is generally only possible – that is, legally possible – through price manipulation, at least in instances where that is allowed. I can get a quality steak at any number of national chain restaurants for as little as $12 (just to make a price point), or I can go to a fantastically expensive steakhouse and be required by the proprietor/landlord to pay $120. Is this discrimination? What if I can’t tell the difference between the steaks, but I really really want to be a part of the crowd seen at the $120-per-plate restaurant? That’s not enough, I have to pay. Nobody claims that discrimination against the poor is a problem in a free market system.
Obviously I’m merely game-playing with the price distinction, but it is still present, and an “allowed” method of discriminating against certain customers. Taking it back to landlord/tenant, I can be a landlord and choose to rent an apartment for ten times the local market value in order to attract a “certain clientele.” If I am willing to wait for that one client to pay my rate, and I can keep my product on the market until it sells (or in this case rents), then I’m absolutely free to do so.
The difference is that the information of discrimination is available up front.
If a landlord is offering a rental, all information is available up front. In most cases of discrimination (I’ll keep to the Albanian in the example), the landlord never states up front that the apartment is never available to Albanians. The Albanians are simply refused from the transaction.
Which then leaves us with a specific instance. It’s not ok for a free-market seller to impose up-front limits on the transaction that have to do with a non-financial bias on the part of the seller. Transactions, generally, require that the purchaser/renter go to the seller to make the transaction happen. Which means that if the seller has any biases, they are never discovered, because they never approach the seller for the transaction to start and then be terminated by the buyer because of perceived bias.
If instead of landlord/tenant, we make this online shopping, then the counter-example would be this: if a person buys a sweater through mail order, then upon receiving the sweater discovers that the company is run by Albanians, would the purchaser be ok in returning the sweater for that reason? No. Not in the same social realm that it’s ok for the landlord to refuse to rent to Albanians. For one thing, the onus was on the purchaser to discover before the transaction if there were any reasons to be dissatisfied with the seller (not just race, but including such things as ethical conduct of the shop, if the management practices are “green,” etc).
I may be arguing against the example rather than the concept, but I think that it is ok for the buyer to discriminate but not the seller, because the entire market sphere is based on that kind of discrimination. If we change the bias against race to a bias against political party affiliation, then the discrimination is identical but slightly more acceptable in the marketplace. Change it even further to “only tenants who do not own cars” and it’s an ethical problem that barely registers.
@Ken: You touched on many of the ideas I was formulating as I read this article. It’s a fallacy to assume that landlords (and many employers, for that matter) wield enormous power in the transaction.
By mandating that landlords and employers can not discriminate, aren’t you depriving the owners of the use of their private property?
I’m in no way advocating discrimination. I think that if you refuse to conduct a transaction with a qualified individual because of race, color, sex, etc. then you are a person of questionable morals, and it’s very difficult to legislate morality.
Shouldn’t I be able use my property to my maximum benefit, so long as I don’t break any criminal or civil laws (discrimination laws notwithstanding)?
Furthermore, as an employee or a tenant, I wouldn’t want to enter into an arrangement with someone that clearly didn’t want me to be a party to the transaction.
I would suggest that nobody, tenants, online shoppers, or whoever, is allowed to discriminate based on preferences like race.
If you decided not to rent from an Albanian landlord because of his nationality no one is going to stop you. Does that make it right? No it’s still immoral it’s just been obscured by the millions of other preferences that could factor. If we could stop you we would. It’s wrong. We can stop landlords because there is a long list of potential valid preferences for tenants: location, taste, bathroom size… but a very short list for landlords. That makes the actual discrimination that each of us may participate in, secretly under the cover of thousands of other mitigating circumstances, very apparent. So we’ve chosen to make it illegal because it makes us feel icky for it to be so out in the open. But any time discrimination can be identified and litigated against it has been and will be.
If I may steal Sean’s example of an online shopper who unknowingly purchases a product from an Albanian. The purchase agreement stipulates that he may return it for any valid reason for a refund. He finds out about the Albanianness of his product and sends it back saying his reason is he doesn’t like Albanians. That’s not acceptable and as long as he maintains this position no court is allowing him to return the product. It is an invalid reason, an immoral one even. But certainly not preventable unless the shopper is unwilling to lie about his motives.
You really shouldn’t be allowed to discriminate as a shopper but you can, perhaps you do. It’s immoral but who in the world is going to stop you?
I believe it’s not moral for either group to discriminate. (In the sense that it’s no moral to sit on the couch watching Jerry springer for your whole life).
Legally, we prohibit some immoral activity, and allow some others.
You are not thinking historically.
Landlords and employers would be allowed to discriminate against left handed people, for instance, because there are no societal consequences from that.
But racial and religious discrimination in our society led to segregated neighborhoods and ghettos and the inability of citizens to travel when they could not find accommodations and food service. It led to a general economic loss to society which occurred when talented people could not gain employment which would permit them to contribute to the country’s economy. Such discrimination arguably also increased the level of poverty.
Faced with historical patterns of ingrained irrational prejudice, we made a political decision that such discrimination should be made unlawful. In a utopia which did not have such a history, such a political decision might not have occurred.
The fundamental asymmetry in these market transactions is that a fungible commodity (money) is being exchanged for something that isn’t (a house near a good school). This means that burdening the buyer has a greater effect than burdening the seller. The sellers gets no disadvantage in comparison to other sellers who are similarly burdened. The buyer, in competition with others who want houses near a good school is severely disadvantaged when systematically discriminated against.
In any case, it’s a mistake to try to analyze this in terms of the ehics of the transaction between the individuals concerned. Of course the anti-discrimination statutes are asymmetric, so is almost every other action of government, from building roads to educating children. You are resorting to a local analysis when a global analysis is needed. Once it is decided that systematic discrimination against a class of people is an injustice, the question becomes what is the minimally unjust way to address the problem.
CapitalistImperialistPig:
In the housing market, tenants exchange money for living space. In the labor market, employers exchange money for labor services. So if the use of a fungible commodity is a fundamental issue here, then we’ll want to let tenants and employers discriminate, but not landlords or workers.
Does that feel right to you?
Steve,
A good point, but I think that the core of my argument survives. The surviving point is how the individual buyer or seller is affected vis a vis his/her direct competitors. In each case, the individual discriminated against (buyer or worker) is subject to an effect that his/er competitors isn’t (discrimination against group). Neither the seller nor the employer is.
That doesn’t mean that there is no ethical content to restricting the choices of sellers and employers, but I am claiming an asymmetry of effect on the protected parties. Once again such justifications are rooted in global effects on society rather than on the local effects on individuals.
When a zillion men were drafted for WWII, they had their freedom curtailed in a very drastic way, but very few of their direct competitors escaped, so a rough justice prevailed. Not so when I and a sizable fraction of my contemporaries were drafted for Vietnam but almost every child of privilege or future Republican politician escaped.
“Possibly there is economic parity; but the social disparity is immense, as the would-be tenant is generally in need of a place *now* in a way that the landlord is not in immediate need of renting the next unit.”
Because landlords sometimes go broke for lack of tenants, this can’t possibly be generally true. In fact, as we all know, market conditions sometimes favor renters and sometimes favor landlords, so the social power certainly can shift, without anyone feeling that the law should shift with it.
I think the key difference is that it’s far easier for tenants to discriminate without making the landlord feel personally slighted or attacked for, say, their race. We tend to picture ethical situations in our heads when we gauge how hurtful and harmful they are, and it’s a lot easier to envision a someone being told they can’t live somewhere than it is to envision someone simply avoiding looking at a particular neighborhood, or simply not renting a place, and keeping their reasons to themselves.
That’s not to say that is how we SHOULD tackle ethical questions, but there’s no question that that’s a large component of how we DO tend to tackle them.