For a vigorous debate on this freedom look at the 74 (at time of writing) comments on Kiwiblog’s link to my post on the Invercargill cafe Turks’ shunning of Israelis. It is worth also comparing the calibre and tone of the Kiwiblog comments (and ours here) with those of the more left crowd at Tumeke on the same topic.

For the record, my position on this is liberal, not libertariam.

I think that the law’s interventions against racial discrimination may be one of the few justified anti-discrimination measures.  Though race discrimination rules are often evaded, and they have incited all kinds of special interest groups to secure for themselves similar victim status, the benfits of anti-race discrimination law probably still far exceed those costs.

Race hatred is an easily roused evil genie. Once unbottled it takes generations to rebottle. Pogroms are hugely expensive to the haters and the hated. The law may act as a collective creed statement that we need precisely because the sin is so tempting to so many.

But to me there is no real sense in which Israeli in New Zealand is a ‘race’ for such purposes.  Though history shouts caution, I do not know anybody who would now discrimate against New Zealanders of Jewish heritage, even if they were hostile to Israelis.

Indeed I think our Government’s actions against a Fijian schoolboy are more sinister than the Turkish cafe owners’ actions. The government is weilding the police powers of the state against a boy who can have had no part in the mischeif they are trying to attack. That has far more potential as a precedent for abuse than a couple of private citizens who have hurt their own business.

While property rights are important, my concern about denials of the right not to associate owes little to property rights. As I tried to explain I am more concerned about prosecuting non-associating because of  what it does to powerful ‘speech". Shunning people of whom we privately disapprove is all that many less articulate people will ever be able to do to show what they want to discourage. For example, that is how pornographers and bad employers and fathers who abandon their children and wives, and bullies were normally discouraged before we started handing over all social control powers to the state.

Nor do I consider that a right to discriminate trumps all. There are businesses that must not discriminate – where they in effect have monopoly powers.

There is no reason to think that the would-be cafe patrons could not easily find another food outlet.

But there are many occupations where that would not be the case. So, for example, I support the common law position on ‘common carriers’. They should take all safe freight. A postman surrenders his or her right to discriminate in what they deliver. Perhaps schools in areas where there is no alternative are properly obliged to take all comers (though they should retain the right to exclude those who damage the education of others).

My worry is that we have now extended our gratitude for legal reinforcement of our resolution to eschew race discrimination, into a childish hostility to "discrimination" of all kinds. We’ve turned ‘discrimination’ into a useless slogan word. Until two decades ago it neatly described an essential mechanism of free civilization,.  Continuous and routine discrimination of good from bad, of the best from the mediocre, of the dirty and the feckless from the clean and reliable, is an essential social underpinning of reciprocity (call it considerate behaviour and civility or respect).

Sure, the defenders of the new law say that is still permitted, but it must not be based on stereotypes. Well that is the theory of the law. But law in practice is another thing altogether. Anti-discrimination law sends judgements underground. The clever avoid the costs.

I saw the apotheosis of discrimination as the modern evil deity six years ago, when the Human Rights Commission formally appeared before my Select Committee (considering the Clean Slate Bill) to urge an amendment to make it illegal to discriminate against people on the grounds of their criminal record. The looked confused (or was that contemptuous) when I asked why they thought it was an advance of human freedom to restrict to the state alone any power for people to take into account in their decisions on who they associate with the best possible empirical evidence of propensity to hurt and to steal and to abuse trust.