The Commission for Racial Equality and the Equal Opportunities Commission should be abolished, according to Equal Opportunity or More Opportunity? Professor Richard Epstein of the University of Chicago argues that the entire statutory apparatus designed to guarantee human rights and protect against discrimination should be scrapped (p.1 &12). They create more injustices than they solve by awarding special ‘rights' to one group of people, which can only be met by imposing obligations on another group. If human rights acts were known as human rights and duties acts, or just human duties acts, they would be less appealing (p.3). These statutes, which sound so unobjectionable in the abstract, impose real costs on certain individuals, and yet the costs are played down in any discussion of the benefits for the target group, if they are mentioned at all (p.4).

Instead of having these clumsy statutory bodies, subject to capture by special interest groups, Professor Epstein proposes a one-page 'Human Rights Act (Revised)' which, in six paragraphs, and using simple language, gives a comprehensive definition of all rights and duties for all individuals:

Human Rights Act (Revised)

S1. Every individual and group shall, in the use and disposition of property or labour, have the right to contract, associate or otherwise transact or do business with any other individual or group whom they choose on whatever terms and conditions they see fit, and for whatever purposes they see fit, be they commercial, social or religious.

S2. Every individual and group may refuse to contract or associate with, or to otherwise discriminate for or against any other group or individual for whatever reasons they see fit, including without limitation, race, creed, sex, religion, age, disability, marital status, or sexual orientation.

S3. (a) Every individual or group may ask of any other individual or group any question they see fit, no matter how offensive, impertinent, illegitimate, superficial or irrelevant.
(b) Every individual or group may refuse to answer any question, however tactful, pertinent, legitimate, insightful, or relevant.

S4. (a) Every agreement, contract, or association shall be construed in accordance with the ordinary meanings of its terms, as informed by custom and common usage within the relevant trade, industry, or social or religious grouping. (b) No construction or interpretation of any agreement, contract, or articles of association shall be made or influenced by principles of unconscionability, adhesion, inequality of bargaining power, contra proferentem, or any other rule that presumes one party to the agreement or contract enjoys a protected or preferred social status relative to the other.

S5. Every individual or group shall have the right to offer transportation or other services for hire on the public highways, waterways or in the public airspace, subject only to reasonable and nondiscriminatory regulations imposed in the interest of public safety.

S6. All actions brought to enforce rights under any contract, agreement or association shall be commenced in the County Court. The Commission for Racial Equality, the Equal Opportunities Commission, the Disability Rights Commission, Employment Tribunals, the ..., the ..., and the ... are hereby abolished.

When equal opportunity can mean less opportunity

Epstein does not argue that the state has no role to play in employment law. The state should guarantee ‘civil capacity' - the right to participate in a social order organised under the law of property, contract and tort. Employment law should enforce the contractual terms emerging from market transactions with the aim of providing contracts with greater stability. When governments tinker with employment relations beyond this, no matter how benevolent the intentions, the results can be damaging:

‘If you wish to create opportunity the best rule is: don't worry about equal opportunity if that quest will reduce overall opportunity. It will make it harder in some cases for members of protected classes to be hired, because it is harder to fire them once on the job. Concentrate on eliminating barriers in order to create opportunity for all (p.39).'

A warning for Britain

Professor Epstein's study forms part of a wider Civitas project to encourage discussion of liberal anti-racism and to increase awareness of the dangers inherent in the authoritarian anti-racism that currently dominates public policy. Good intentions are rarely enough and Professor Epstein's study makes a compelling case for taking stock of prevailing attitudes.

David Green, Director of Civitas, comments:

‘No reasonable person would be racist and, in a tolerant country like Britain, no reasonable person would want anyone else even to think they might be racist. For this reason we have bent over backwards to accommodate demands for anti-discrimination laws. But these laws have the opposite effect from the one claimed for them. They lead to race-conscious employment practices instead of the treatment of people according to their individual merits as fellow workers.'