FREE MARKETS & HARMFUL PROVISIONS
Monday, May 14, 2007
In a free society it is law and not the government bureaucracy that adjudicates claims about people causing harm to others. In other words, if someone believes another has caused harm to him or her, that's a claim to be adjudicated. Government regulation, on the other hand, pre-empts all this and thereby involves a kind of prior restraint, which is a gross violation of due process.
You remember due process? It means that no one may be imposed upon with un-assumed burdens, fines, costs, etc., unless proven to have violated another's rights. This is one reason self-incriminatory testimony may not be coerced out of a witness-the burden of showing that force may be inflicted upon someone lies with the prosecution, with those leveling a charge against someone. No one needs to prove his or her lack of guilt!
Government regulation violates this sterling principle of a free society by pre-emptive intrusion on people's productive and other economic activities. Yes, the law is contradictory-it both bans and permits such pre-emptive intrusion. But that's not the point-the laws of countries are often terrible and it takes examination and criticism to set them right. Blind faith in the law leads to tyranny.
Even when harmful products are sold to people, the only requirement that can reasonably be made is that the harm be noted up front. So, for example, when cigarettes are sold, the seller needs to alert buyers that ordinary use of the product can produce maladies that no one reasonably would want to experience. But even there, only after the fact may someone be found guilty of having harmed someone-although if the punishment for inflicting the harm is efficient and prompt, this will send a message to producers and pretty much eliminate the problem.
This means that, yes, a free society will welcome litigation but not government regulation. (There are non-government regulations in free societies, of course, as when insurance companies make it a condition for taking on a client that provision of goods and services avoid serious risks!)
Now why, if this is how a free country should deal with hazards in the marketplace, is there so much government meddling in market relationships? Plainly, because not enough people want to live in a free society-they want government to run their lives. This is what some critics of capitalism have called "soft paternalism." Trouble is, soft paternalism is imposed on us all, not only on those who want it. I may sign up for someone caring for my health and fitness but I may not sign up someone else, who hasn't agreed to the arrangement.
So while it is quite OK to be pre-emptive with one's own risk-which is to say, to foot one's own cost for precaution-it is wrong to involve unwilling others in such a scheme, ones who may well not wish to pay for the arrangements. And it is no excuse to say, well, we have decided this democratically. Democracy does not sanction rights violations-that would the tyranny of the majority, not the properly limited democracy of a free society. In any case, one reason these notions are strongly resisted, including by some influential legal scholars, is that legal traditions in most countries, including America, have transmitted the old fashioned statism of the feudal era, when the king was deemed to be the keeper of the realm. Sure, we no longer have a king but unfortunately too many of the powers of monarchies are now held by the various governments of our putatively free society. In effect, the previous powers of the king are now those of the democratically elected government. That is why government regulation is still with us-it is plainly a reactionary political economic device.
Bad habits linger on both in the lives of individuals and the legal systems of societies. To be rid of them there needs to be constant vigilance, constant reminders that a just society must, first and foremost, be a free society.