On individual freedom, equity and social justice

This material was originally delivered as a speech at the XIX GvH Conference in May 2025.

In the preface to his book “Socialism”, Ludwig von Mises warns of the threat posed by socialism to individual freedom, in particular “the desperate struggle of lovers of freedom, prosperity and civilization against the rising tide of totalitarian barbarism.” A major arena in which this struggle has unfolded is the concept of “social justice”. The ideal of social justice is politically influential and socially powerful precisely because it seems so beguiling that many people feel morally compelled to support it. Yet, as Friedrich Hayek cautioned, it is an empty slogan often used as a pretext to justify socialist policies.

This paper analyses the legal framework of social justice that is currently enforced through various forms of equality and civil rights legislation, most notably through DEI policies. The paper argues that due to the strategic decision to embed DEI in the established legal framework of equality and non-discrimination, there is very little scope to distinguish, in practical cases, between the classical ideal of formal equality and socialist notions of substantive equality or equity. In that sense, the tenets of socialism are now firmly rooted in the conceptual framework of equality. This causes many liberals, in their eagerness to promote the ideal of equality, carelessly or unwittingly to serve as foot soldiers for enforcing socialist policies.

To substantiate this argument, the paper draws upon the experience of the United States, where recent attempts to ban DEI have met with only limited success. Although President Trump has issued a series of Executive Orders banning DEI, the efforts of the new administration to “repeal” DEI by presidential decree immediately became mired in civil rights and constitutional litigation. Executive Order 14151 (Ending Radical and Wasteful
Government DEI Programs and Preferencing); 14168 (Defending Women from Gender Ideology Extremism) and 14173 (Ending Illegal Discrimination and Restoring Merit-Based Opportunity) have met with significant resistance from, among others, universities and civil rights organizations that have challenged the legality of these orders. Adding to the confusion, the Department of Justice, whose role it is to prosecute “illegal discrimination”, has conceded that the Executive Order ending federal DEI programs “does not prohibit educational, cultural, or historical observances … that celebrate diversity, recognize historical contributions, and promote awareness without engaging in exclusion or discrimination.” Paradoxically, the very attempt to root out DEI as a violation of the equal protection clause has further incentivized litigation and lawfare surrounding the equal protection clause. The cause of the problem – the law that animates DEI – is seen by liberals as the best solution to the problem: their dream is to force institutions to do DEI “properly” by prosecuting civil rights violations. Their failure to recognize the source of the problem causes them to further fuel the problem in an attempt to resolve it, as both opponents and defenders of DEI accuse each other of violating the Constitution.

It is therefore no surprise that there are already a number of federal injunctions blocking significant parts of the DEI bans, for example National Association of Diversity Officers in Higher Education, et al. v. Trump which injuncts parts of EO 14151 and 14173. The paper analyzes the legal arguments being advanced in this litigation, highlighting the ways in which both sides, in different ways, are only further entrenching socialist ideals. For example, opponents of DEI often assume that the only problem with these schemes is their failure to distinguish between “equality” and “equity”. They think DEI has gone “too far” and needs to be scaled back. They presume that enforcing equal opportunity (formal equality) is good, as long as it does not amount to the enforcement of equal outcomes (substantive equality or equity). They draw upon the work of economists like Thomas Sowell and Walter Williams who distinguish between “equality” and “equity”. However, while this is an important analytical distinction, in practice the conflation of equality with equity cannot easily be reversed. The paper shows some of the ways in which the notion of “equality” has
been transformed to such an extent that the precise terminology of its enforcement schemes pales into insignificance. The notion of “equity” is merely the latest trend in rationalizing a socialist revolution that has been well under way for decades. The “substantive equality” arguments which justified DEI merely provided an ex post rationale for the promotion of equal outcomes and wealth redistribution to which socialists were already committed. The paper therefore highlights the risk that the preoccupation with the specific forms of DEI may only further blind liberals to the many disguises of socialism. As Mises warned, socialists are constantly changing their terminology. It is therefore important to focus on the threat posed to individual liberty no matter which terminology is used to describe that threat.

To suggest solutions to this problem the paper draws upon the libertarian philosophy of Murray Rothbard to challenge the premise of the anti- discrimination principle. Anti-discrimination, in its preoccupation with identity politics and wealth redistribution, erodes the sanctity of private property which is essential to civilization. It violates freedom of contract and freedom of association. Its “harassment” provisions are a threat to free speech. DEI, like all other “social justice” concepts that march under the banner of “equality”, poses an existential threat to individual freedom. As Rothbard argues in For a New Liberty, “the individualist is not an egalitarian. Part of the reason for this is the individualist’s insight into the vast diversity and individuality within mankind, a diversity that has the chance to flower and expand as civilization and living standards progress.”