My latest book, Rights versus Antitrust: Challenging the Ethics of Competition Law, will be published a week from today (and looks to be shipping sooner, at least from Amazon).
You can read the preface below, which should give you a good idea what the book is about.
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The right to swing my fist ends where your nose begins.
(Common aphorism)
In liberal democracies, we are accustomed to a wide range and degree of freedom, limited only by the equally valid freedom of others. In other words, individuals are presumed to have the right to pursue their interests, whatever they may be, provided they do not wrongfully interfere with others doing the same.
The word “wrongfully” is crucial here. The five people ahead of me in the line for coffee in the morning are definitely interfering with my interests, but they are not acting wrongfully if they simply arrived there before I did. However, if someone arrives after me and cuts in front of me, that person is acting wrongfully, violating an important social norm, even if not a legal one. If I manage to procure my treasured beverage and then, upon leaving the coffee shop, someone attacks me and steals my coffee, that person has violated a clear legal norm, and I can marshal the powers of the state to my side to pursue justice. (My sole recourse to the person who cut in line is to express scorn and hope my fellow patrons do the same.)
Although we may resent those who have a negative impact on our lives, we should also recognize when they had every right to their actions. Each of us interacts with countless other people in myriad ways every day, inevitably leading to blameless conflict, due only to scarcity of time and space (and coffee shops). It is only when people violate social or legal norms, implying rights held by others, do those actions become wrongful—and it is only when actions are wrongful that we feel justified in addressing them in some way, whether by scorn (in the case of social norms) or state action (in the case of legal norms). This idea applies not only to individual actions, but to those of businesses as well. Firms take many actions that affect individuals (and other firms) in positive and negative ways, but even the latter is not of concern to the state unless they violate recognized rights. Businesses can increase prices, stop producing certain products, or close locations, all of them possibly setting back the interests of individuals who enjoyed or relied on them. And these are just their activities that affect consumers: firms also take many actions with respect to employees, creditors, and other businesses they work with, all of which have effects on those other parties, for better or for worse.
Even though businesses can cause harm with all of these activities, we recognize that they have wide latitude to conduct their affairs as long as they do not violate the rights of their consumers, employees, creditors, or trading partners. We can complain when the price of coffee increases, or our local shop no longer carries our favorite roast, or shuts down completely, but we have no legal recourse to prevent these actions. The same goes for the shop’s employees, creditors, and suppliers, all of whom have the same rights to change their behavior (as do their customers), but not to interfere with those of the coffee shop. Only when the business violates rights, such as by deceptive or coercive practices, does it behave wrongfully, which can and should be addressed through the legal system.
This is what I regard as the commercial ideal in a liberal democracy: businesses and consumers (and other related parties) freely acting and interacting within constraints provided by the rights of all, with violations of these rights punished under the law. For the most part, this is the picture of commerce those of living in liberal democracies see around us. Of course, there are limitations on business in the form of regulations that govern treatment of workers, product safety, and environmental practices, which can all be formulated in the language of rights protection. Each of these is controversial, as most laws are, but they can be justified in terms of the recognized rights and protected interests of those affected, and therefore are valid interferences with the free interaction of business with their consumers, employees, and other partners.
And then we have antitrust.
I shall argue in this book that, despite the wide consensus among academics, policymakers, and elected leaders across the political spectrum, the legal institution of antitrust is anathema to liberal democracy. Antitrust betrays our most basic understandings of property rights and economic liberty—not just those of libertarians or classic liberals, but those of the majority of people living in liberal democracies with market economies, ranging from Sweden to Singapore, with the United States somewhere in the middle. Antitrust sacrifices the rights of some for the well-being of others by neglecting what rights are actually meant to do. It punishes firms, not for doing wrong, but for not doing enough good. It implies that business exists, not to express the interests and agency of individuals, but as mere means to promoting economic welfare—or, in more political orientations of antitrust, democracy itself. In other words, antitrust holds businesses responsible for a role they have no obligation to fulfill, which represents a grave misunderstanding of the nature of commerce in a free society.
If you’re not inclined to be sympathetic to the titans of industry, consider if the same obligations were imposed on you as a consumer or employee. Imagine that your choices regarding what goods and services to buy, where to shop, and what career you could pursue and for whom, were permitted only insofar as they served the interests of the state or society as a whole. If you happened to make choices that coincided with the greater good, you would never encounter any interference. But if you decided to buy beef when buying chicken would do more for the economy, or chose to be a writer (gasp) when working as an engineer is declared to be of more value, then your preferred choices would be foreclosed. You would be obligated to make choices that served the greater good, as opposed to the liberal tradition of a zone of autonomy in which you can make your choices regarding your own life, provided (once again) that your actions do not infringe on the same rights of others.
But we are not accorded this same consideration when acting commercially as businesses. In countries with antitrust or competition law—which is to say most industrialized countries—business firms are prevented from taking actions that are seen as counterproductive to broader economic well-being. This goes against the understanding of business in liberal societies as the free expression of individuals’ interests. In a market economy, some persons sell their labor (by working), some their capital (by investing), and some exercise their entrepreneurial drive through starting or joining businesses. There is no obvious reason why, when people choose the third option, their options are limited by their potential to increase societal well-being, or why they should face more scrutiny than workers or investors (provided that they are doing nothing wrongful).
In writing this book, I have tried to keep my argument as straightforward and lighthearted as I can, in hopes of inspiring readers from a variety of backgrounds to reconsider the wisdom of antitrust and competition law. To that end, I do not get into the fine details of antitrust statutes, judicial opinions, or legal cases, or the various interpretations or implementations of these laws around the globe. All I rely on are some concepts from economics, philosophy, and law, which I explain fully before applying them to the general idea of antitrust—and, most important, the basic and common belief that individuals should be free to pursue their own interests provided they do not wrongfully interfere with others doing the same.
