Translated from GegenStandpunkt 2-2005

A new law for fair competition:

A sigh of relief for gays, wheelchair users, blacks, Muslims, and all ‘vulnerable groups’ – from now on discrimination is prohibited by law!

Even if people in this business location have nothing to laugh about: its government managers have certainly not lost their humanist ethos. After passing a lot of laws that make life more difficult for their citizens, they took a moment to think about how they could do something socially beneficial and came up with this: a little law specifically for those who are humiliated and demeaned in this country, one that prevents discrimination against them and “sets certain standards to protect vulnerable members of society and thus set certain limits to freedom of contract” – that’s it. A nice move on the part of the legislators, no doubt, although the question arises whether the fattest fox hasn’t been appointed guardian of humanity’s tenderest hens. After all, discrimination, which humanists want to make illegal purely out of sympathy for the “vulnerable,” doesn’t come from nowhere: It comes into the world first and foremost via the state that manages it.

The laws of the state that create disparities between its citizens

Starting with the distinction between foreigners and nationals with special rights in each case, over to school children, students, teachers and other public servants on one side, vocational trainees and foremen, workers, non-workers and other property owners on the other, all the way down to pensioners with their entitlements and the sick whose disability status is certified in percentage terms by medical officials: The state codifies all sorts of differences between its citizens with the power of its law and that’s why, in the first place, they are accorded the special characteristics that constitute their ‘social status’ in general and that of a ‘vulnerable member’ in particular. Then, when the state has finished with its discriminations, it refers to the same people in its society with the same law and to others with another: That’s the beautiful bourgeois world of “equal treatment” which, since it is its own work, it can of course only congratulate itself on – “equality before the law and the protection of all people against discrimination is a human right that is enshrined in Germany in particular in Article 3 of the Basic Law. In the relationship between citizens and the state, the constitutional principles of equality already bind all areas of state action” (http://www.spdfraktion.de/rs) – and with this it really gets going in producing the social disparities that are the trademark of the freedom-based order. Everyone really does have the right to earn money with their means and abilities, in principle even a disabled lesbian from Senegal, even if until yesterday the state was of the opinion that disabled people belong in wheelchairs, blacks belong in Africa, and lesbian activities are disabilities. The fact that one type of citizen becomes notoriously richer in making money, the other poorer and poorer, is indeed a rather stark social disparity, but it is in no way due to ‘discrimination’: All citizens are also equal in terms of the right to property, which some have and others are permitted to increase with their labor-power. And even when there is no longer any chance of doing so for a significant portion of the vast majority who are allowed to make a small entrepreneurial minority richer through their employment: The principle of equality, the fact that money for a livelihood is always a cost for those who pay it and acquire in exchange the results of others’ labor, applies to them as well. No one discriminates against them, they are just deemed not worth the investment in a wage that they can live on, and then they no longer have anything to live on. In this respect, for the state, capitalist class society, insofar as it is responsible for it, is simply the realization of the human right to ‘equal treatment’. The kind of political-legal and political-economic discrimination that it is interested in, and which it creates, is for it simply not discrimination. For the state, ‘discrimination’ is a moral violation which it also then morally condemns, and it only exists where it does not use its law to make distinctions and to allocate positions of power, but where its citizens abuse their positions of power in their dealings with one another. And because an EU directive has brought this to its attention, it declares its own need for action: “The EU directives ... establishing a general framework for equal treatment in employment and occupations, implementing the principle of equal treatment between men and women as regards access to employment, vocational training and promotion, and working conditions oblige us to implement this protection in the field of employment and occupation with regard to the characteristics of racial and ethnic origin, religion and belief, disability, age, sexual identity and gender also simply by law, in particular for the relationship between employers and employees.”

As always, when the state wants to prohibit something by law, it first of all provides clues about the norms of the society under its sovereign legal supervision, in this case the fine

customs of a capitalistic society of competitors

It’s clear that the wonderful ‘equality before the law’ not only sorts people apart into classes, so that a few people decide who of the many other people should even have the opportunity to earn a living through “employment” and on what terms. It’s also obvious that one section of society has exclusive control over “access” to every possible other vital necessity because it has the “freedom” to offer “contracts” to the others, or not to: The private power of property, concentrated in the hands of the wealthy, decrees over “access to and supply of goods and services which are available to the public” (ibid.) according to their own interests and discretion, as they do over the chances of the rest to get affordable “housing.” The legislator who advocates ‘equal treatment’ holds it to be self-evident that the free and equal legal persons who look after their own advancement in the El Dorado of contractual freedom are characters of quite different means; therefore, that anything that opens up life opportunities for the vast majority of his citizens is only granted to them in return for the services by which they prove to the wealthy minority that they are useful as workers, tenants, and consumers. And the state deludes itself even less about the criteria that is regularly used in its egalitarian civil society to determine this usefulness. Where capitalists, landlords, and other businessmen have, along with the power of their money, the services of an entire society at their disposal for the sacrosanct right to increase their property, they are also completely free to decide who they do the great favor of letting them make themselves useful to them, and who not. So they are also completely free to make the differentiations that are in their interests, according to their discretion: ‘race’, ‘ethnicity’, ‘religion’, ‘disability’, ‘age’, ‘sexual identity’ and 'gender' are 'characteristics' according to which they determine the suitability of human material for whatever they want to use it for. They are concerned solely with assessing a person’s suitability for their business interests, and they examine and screen people’s natural characteristics as well as acquired or otherwise acquired moral habits and other defects. Without prejudice, they take a look at the whole person from the point of view of their usefulness, then reflect on the irrefutable prejudices that are familiar to them based on their own moral norms or even just in the form of idiosyncrasies which solidify from ‘experiences’ – not necessarily their own – and in one case find a Negro acceptable for an apartment, in another a woman for a workplace, a disabled person for a restaurant, or a gay person not at all acceptable for anything or at best conditionally and under certain restrictions. Sometimes, however, they overcome their fears, have nothing against women and students from Ghana who work hard for low pay, or all at once permit a bunch of garlic-eaters with preyer carpets to move into housing in short supply, even with a rental contract. All this and much more in capriciousness and meanness is part of the self-evident and commonplace practices of class society, and if it were not so, the red-green government coalition would not even be able to name the tip of the iceberg that it would nevertheless like to “put an end to”: “up to now, women have often paid higher rates for private health and life insurance policies, for example. Homosexuals are refused life insurance policies across the board. Foreign-looking young men are often denied access to discos. Disabled people are not admitted to vacation hotels because it is assumed that they would disturb guests. We want to put an end to this. Disadvantages in working life are particularly serious: In recruitment, in career advancement, in working conditions, in pay.” (http://www.Gruene-fraktion.de). And because these delights in interpersonal money and power relations necessarily belong to capitalistic acquisitiveness and the liberties it takes when concluding its various contracts, there is also a special reason for ‘putting an end’ to these ‘disadvantages’ by law. The ‘certain limits to freedom of contract’ that the legislator wishes to set already indicate that he does not seriously intend to interfere with the private power of money in the freedom to form contracts. After all, it only takes umbrage at some of the iniquities of its citizens that the money vultures commit in their dealings with their public. It defines these as excesses of the otherwise self-evidently not at all objectionable principles of capitalist acquisitiveness, and uses its law to draw the line between where what is permitted ends and what is forbidden begins in sorting people according to the criteria of usefulness: the state, as a role model of non-discrimination and equal treatment of all, makes the kind of respect it pays to people of color, women, the disabled, and nowadays even deviating ‘sexual identities’ also binding for private individuals in how they treat each other. Everything that legal persons stipulate against each other in their freedom is also okay for the state – if and as long as they do not violate each other’s dignity, which for the state is their highest legally protected right. So there is a law that ensures that the exclusion of blacks, Muslims, the disabled, the elderly, gays and women from one contractual relationship or another does not touch the human right to non-discrimination: From now on, it is forbidden to justify a rejection letter in matters of economic usefulness on the grounds that the contractual partner is black, gay, disabled or female. Otherwise,“discrimination” has occurred, those affected may complain in court, and their opponents must demonstrate that their selection criteria was “objectively justified by a legitimate objective” and that the selection was “appropriate and necessary to achieve this objective” (http://www.spdfraktion.de/rs). What’s offered, conversely, is the grandiose hypocrisy that the state mandates for a respectful interaction between citizens when slugging out their conflicts: The – even usable in court! – convincingly staged appearance that someone has been found unfit for business out of perfectly objective and not at all personal reasons therefore only guarantees that one will be allowed to work at a job for lower wages or not at all: This is the great advance of ‘equal treatment’ that the red-green government is bestowing on its less well-off citizens. And even this ridiculously mild intervention in the tried-and-true capitalist recruitment process is for many

fans of unadulterated free competition

a single attack on all good capitalist business customs. They rail against the “job-destroying bureaucracy” that they find wherever a law does not directly and explicitly promote the interests of entrepreneurs. At least for them, the whole business location of Germany is suffering because the coalition is not just implementing the EU requirement for an anti-discrimination law one-to-one, but it also wants to add certain red-green accents here and there. Without the freedom to discriminate uninhibitedly, they believe that Germany will lose in international competition, which of course means that entrepreneurs and their journalistic mouthpieces do not have anything against Muslims, the elderly, gays, or the disabled. They, too, are absolutely not in favor of discrimination. They are simply pointing out that, unlike in all other cases, where they always find the call for tougher laws to be the perfect thing, in this case, exceptionally, a law would not help at all: “What distinguishes us is that we don’t think it’s possible to hammer it into people’s heads that discrimination is bad solely with laws. If we want this change in thinking, we have to find ways to get people to go along with us.” (Christian Democratic Union politician Hannelore Roedel, in the Süddeutsche Zeitung newspaper, March 7) More decency between people is certainly needed; but, like all truly beautiful things, it must come from within: “Unfortunately, however, decent behavior cannot be universally prescribed by a law.” (SZ, March 5./6) Yes, unfortunately, and unfortunately this time the FAZ [the Frankfurter Allgemeine Zeitung newspaper, generally pro-business – trans.] is not so good at beating down the purely humanitarian impulse of the legislator with the tried and true club of ‘socialism’. But world history is full of anti-market economy monsters: “We are approaching the terror of virtue of a Robespierre – only without the guillotine ... The legal system guarantees citizens the right – especially in the area of civil law – to act freely, even arbitrarily, with one another. They are not only allowed to have convictions, prejudices and preferences, but also to live them out ... Of course, this includes being able to discriminate – that is, to distinguish – with whom one wishes to have private or business dealings.” (January 21) Of course, the FAZ is a fervent defender of the right of employees to discriminate against their employer by looking for another one. But precisely for this reason it must also hold that entrepreneurs, landlords, and insurance agents can continue to make it clear to gays, the disabled, and other inferior people that, according to their “convictions,” they are inferior: After all, in a free country, people still need to be able to “live out their preferences.”

So it all fits together perfectly in the country of human rights. In any case, the public assumes that a solid capitalist business life is simply not possible without a little racism, sexism, and contempt for less useful lives. With their humanitarian legislative proposal, the public authorities testify to the fact that they are very familiar with the nastiness that is relevant to the corresponding practical opinion-forming processes and also recognizes the reasons for it – but they no longer have any sympathy for it when it comes across as such in a completely unvarnished manner. And even with this delicate etiquette decree to the businessmen to please do not discriminate against anyone when nevertheless discriminating, Robespierre beckons with the guillotine on the horizon for fans of the free market economy: because the virtues of the capitalistic combination of money, power, and idiocies in the form of ‘prejudices and preferences’ seem so extremely natural to them, they immediately consider it to be a “terror of virtue” if there is even the slightest insistence on more morality in competition.