I had a rather exhausting discussion with Sanjeev Sabhlok in the comments of this post on whether reservations (or more generally affirmative action) contradicts basic principles of justice.
The only good thing that came out of that discussion (from my viewpoint) is it prompted me to glance through some pages of Friedrich Hayek’s Law, Legislation and Liberty. Specifically, I looked at his chapter on Social Justice. The entirety of my exposure to Hayek’s ideas is that one chapter, so I’m quite happy to be corrected.
It’s not hard to see why Hayek is held in high esteem. This small chapter covers a wide variety of issues, many of which I think are relevant to the issue of reservations and affirmative action. I find Hayek’s writing style hard to read, since his passages sound ambiguous to me. It’s probably true that he had a precise position on the issues, but his book isn’t written that way and feels somewhat open to interpretation.
I don’t claim to understand Hayek’s theories very well, but some things jumped out at me. Hayek says that we have the right to set rules, but to expect that once the rules are set and the market is set in motion, it is pointless to speak of the justice of the outcomes of the market (as long as everyone follows the rules).
This is an interesting idea, and curiously it parallels Krishna’s “Karmanyeva adhikaraste…“! We have the right to decide the rules of action, but not to decide the outcomes, which are subject to much randomness! It is widely accepted that attempts to make sure everyone has what they need is socialism; indeed, that is often treated as the definition of socialism. Hayek says that attempts to make sure everyone gets exactly what they deserve is still socialist. He calls this social justice (or rather, says this is what others mean by social justice). But Hayek goes a step further in thinking about this, and makes two apparently contradictory statements.
First, Hayek seems to agree that laws should not be predictably biased towards or against a segment of the society. This I think is fascinating and in fact a crucial consideration while framing laws. At the time we frame a law, it should not be predictably unjust.
Elucidating what “predictable” means here is an interesting exercise in itself. My interpretation is the following. A predictable set of people is at time t is a set that is determined by events occurring up to time t, and not after. Thus “Dalits in 2010” is a predictable set in 2010, but “millionaires in 2020” is not very predictable in 2010. However, “millionaires in 2010” is of course predictable in 2010. As with all social things, a certain level of fuzziness in defining sets is probably convenient. The set “billionaires in 2015” is probably predictable with 99% accuracy in 2010, although the set “millionaires in 2015” is much less predictable. Allowing for this slight fuzziness, “Dalits in 2050” is a predictable set in 2010. (People can and do “change their caste”, often through birth certificate fraud, but so few do it that the set is almost determined in 2010.) Have I defined predictability precisely? Not mathematically. But it seems precise enough for society, law and justice.
When we pass a law that increases the relative advantage or disadvantage of a predictable set of people to its complement, we are doing something wrong. Thus, if we pass a law in 2010 that will widen the advantage gap between, say, the 40-th and 60-th wealth percentile of the population in 2020, the principle of predictability does not prohibit this (since these percentiles are not very predictable sets). On the other hand, if we pass a law that will widen the advantage gap between the blind and the not-blind in 2015 (a moderately predictable set in 2010), there is something wrong with that law. Similarly, if we pass a law in 2010 that increases the advantage gap between Dalits and non-Dalits in 2050 (a highly predictable set), there’s something wrong with that law. This is the gist of my application of Hayek’s predictability criterion to the affirmative action case.
Of course, it’s not quite as simple as that. It’s not enough to say widening the gap is bad and narrowing it is good — we should also worry about whether things are getting better for everybody. If we pass a law that predictably reduces everyone to abject poverty, this might reduce the gap — but it’s not what we want. On the other hand, passing a law that predictably makes Dalits remain poor while increasing most non-Dalits’ wealth is also obviously wrong — even though it is true that some people have gained, and no one has been harmed (relative to where they started off). Also, most outcomes will invariably be biased if a short enough time-frame is chosen. For example, it’s certainly true that, no matter what anyone does, those who are poor on Jan 1, 2010 will overwhelmingly remain poor on Jan 2, 2010 — or for that matter on Jan 1, 2011. Since ALL laws are biased, should we refrain from passing any laws? A reasonable time frame has to be attached to the term “bias”.
Thus, this is a very loose principle — laws will need to balance fairness, considerations of where people start off, practicality, enforceability, acceptability in society, timeframe and a number of other factors. Indeed, I think it’s not possible to state a succinct, simple principle that can be the sole guiding principle behind all laws, or even identify all the factors that need to be considered.
Equality of Opportunity
Now, it seems as if equality of opportunity is a natural consequence of this concept of no predictable bias. After all, if there’s no predictable set of people that is better off than another, isn’t this the same as saying that the law is equally unbiased towards everybody? It seems any principle for framing laws should lead to laws that give everyone the same opportunities, even though various random events would likely lead to differences in final outcomes.
This is where Hayek seems to make a contradictory statement. Hayek says that equality of opportunity is also a socialist ideal — not a-priori, but in its implications:
To achieve this government would have to control the whole physical and human environment of all persons, and have to endeavour to provide at least equivalent chances for each; and the more government succeeded in these endeavours, the stronger would become the legitimate demand that, on the same principle, any still remaining handicaps must be removed-or compensated for by putting extra burden on the still relatively favoured. This would have to go on until government literally controlled every circumstance which could affect any person’s well-being.
This sounds correct — it is obviously impractical to demand that the government provide perfect equality of opportunity to every single individual. But Hayek himself says that
So far as [equality of opportunity] refers to such facilities and opportunities as are of necessity affected by governmental decisions (such as appointments to public office and the like), the demand was indeed one of the central points of classical liberalism, usually expressed by the French phrase ‘la carriere ouverte aux talents’. There is also much to be said in favour of the government providing on an equal basis the means for the schooling of minors who are not yet fully responsible citizens…
It seems that equality of opportunity is perhaps not inevitably socialist or classical liberal, but rather a mixture of the two tempered by the extent to which it is practical. That is, government should endeavour to provide equality of opportunity up to the point where it has to start taking socialist actions like controlling people’s lives. The line between providing equality of opportunity and socialism is blurred — so blurred that it’s silly to pretend there’s a line (my thoughts, not Hayek’s).
How does all this tie in with affirmative action? The principle that laws should not be predictably biased would seem to indicate that affirmative action is necessary. The current system is extremely harmful for Dalits and certain other backward classes. Indeed, the state completely failed them for several decades, a situation that is only now starting to be rectified. Under current laws, and under any law that completely denies all forms of affirmative action, Dalits will predictably be disadvantaged and continue to be punished by the system for several decades.
It is important to note that this reasoning does not apply to every group that is disadvantaged. If a Muslim and a Brahmin are equally smart and study in the same class in the same school (I’m establishing ceteris paribus here), I think the Brahmin has no advantage compared to the Muslim. They are equally likely, or almost equally likely, to find good jobs. In addition, opportunities available to Muslim and Brahmin kids are the same modulo their own beliefs. That is, if a community of Muslims chose to reach out and accept the available opportunities, they would be no worse off than a community of Brahmins. The same is not true for Dalits. There are active as well as passive forces arrayed against the Dalits.
Thus, Hayek’s own notion of not predictably harming someone via legislation seems to support the idea of affirmative action for Dalits.
The important question whether this can be classified as actively harming non-Dalits. I don’t believe so. Increasing opportunity for Dalits in this way certainly decreases opportunity for non-Dalits, but opportunity was lop-sided to begin with, and the lop-sidedness continues to be maintained using marginally legal methods. With affirmative action, entrance into various lucrative positions becomes tougher for non-Dalits, but still not as tough as it is for Dalits.
My Position on Affirmative Action
For the record, my own position is a guarded support for certain forms of affirmative action in the short term.
I think it’s important to base affirmative action not only on caste, but on as many major sources of predictable variability as practical. This is the topic of the MIRAA score discussed in my other post.
I also believe affirmative action is nothing but a temporary pressure valve measure to quickly correct certain imbalances. It is no substitute for free, high quality universal education. Education, not affirmative action, should be the method of choice for ensuring equality of opportunity. Education is the only useful very-long-term sustainable means for equality of opportunity. The only reason for affirmative action is that it seems impossible to equalize “predictable opportunity” using education alone in the next 30 years.