Wednesday, February 28, 2007

Free Markets & Harmful Provisions

by Tibor R. Machan

In a free society it is law and not the government bureaucracy thatadjudicates claims about people causing harm to others. In other words, ifsomeone believes another has caused harm to him or her, that's a claim tobe adjudicated. Government regulation, on the other hand, pre-empts allthis and thereby involves a kind of prior restraint, which is a grossviolation of due process.

You remember due process? It means that no one may be imposed upon withun-assumed burdens, fines, costs, etc., unless proven to have violatedanother's rights. This is one reason self-incriminatory testimony may notbe coerced out of a witness—the burden of showing that force may beinflicted upon someone lies with the prosecution, with those leveling acharge against someone. No one needs to prove his or her lack of guilt!

Government regulation violates this sterling principle of a free societyby pre-emptive intrusion on people's productive and other economicactivities. Yes, the law is contradictory—it both bans and permits suchpre-emptive intrusion. But that's not the point—the laws of countries areoften 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 thatcan reasonably be made is that the harm be noted up front. So, forexample, when cigarettes are sold, the seller needs to alert buyers thatordinary use of the product can produce maladies that no one reasonablywould want to experience. But even there, only after the fact may someonebe found guilty of having harmed someone—although if the punishment forinflicting the harm is efficient and prompt, this will send a message toproducers and pretty much eliminate the problem.

This means that, yes, a free society will welcome litigation but notgovernment regulation. (There are non-government regulations in freesocieties, of course, as when insurance companies make it a condition fortaking on a client that provision of goods and services avoid seriousrisks!)

Now why, if this is how a free country should deal with hazards in themarketplace, is there so much government meddling in market relationships?Plainly, because not enough people want to live in a free society—theywant government to run their lives. This is what some critics ofcapitalism have called "soft paternalism." Trouble is, softpaternalism is imposed on us all, not only on those who want it. I maysign up for someone caring for my health and fitness but I may not sign upsomeone 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 tosay, to foot one's own cost for precaution—it is wrong to involveunwilling others in such a scheme, ones who may well not wish to pay forthe arrangements. And it is no excuse to say, well, we have decided thisdemocratically. Democracy does not sanction rights violations—that wouldthe tyranny of the majority, not the properly limited democracy of a freesociety.

In any case, one reason these notions are strongly resisted, including bysome influential legal scholars, is that legal traditions in mostcountries, including America, have transmitted the old fashioned statismof 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 ofmonarchies are now held by the various governments of our putatively freesociety. In effect, the previous powers of the king are now those of thedemocratically elected government. That is why government regulation isstill with us—it is plainly a reactionary political economic device.

Bad habits linger on both in the lives of individuals and the legalsystems of societies. To be rid of them there needs to be constantvigilance, constant reminders that a just society must, first andforemost, be a free society.
The State versus Broadcasting

by Tibor R. Machan

In 1927 Congress nationalized the ether—now known as the electromagneticspectrum. This is the sphere where broadcast radio and television signalstravel. Instead of treating the realm as subject to homesteading and othermeans of allocation as private property—which is how it should have beendone in a bona fide free country—the politicians, led by a NebraskaSenator, just took the whole thing for the government—in the name of thatinsidious pseudo entity, "the public."

Like "the community" or "society" or "the people," "the public" is avirtually empty concept. Yes,there can be proper uses of it—such as when we say that protection ofindividual rights is a public good, meaning, it is really to everyone'sbenefit in a country. But this is very rare. Mostly "the public," as "thecommunity," is rolled out as a cover forvarious special interests.

So now when the two companies, XM and Sirius, propose merging into a $13billion satellite corporation, claiming that such consolidation providesthe only economically feasible means for saving radio, there are againvoices insisting that "the public interest" demands governmentinterference! And again, of course, it is a ruse.

In an Op Ed piece for The New York Times, sociology (1) professor EricKlinenberg who wrote the book Fighting for Air: The Battle to ControlAmerica's Media, puts in a plea thus:

"It's time for Congress and the F.C.C. to consider policy ideas intended toserve the public interest, like requiring broadcast radio stations to airoriginal programming on the new digital stations, or allowing satellitecompanies to run local news, talk and music. Mega-mergers are unlikely toprovide any real benefits to citizens and consumers. Why resort to evenmore consolidation when we already know it doesn't work?"

Notice how the interest of some people who like to listen to radio andwant it to broadcast "local news, talk and music," is used to asa justification for government requiring what a business must be requiredto do. No, let us not leave it to market forces, supply and demand—whichwould let the company sink or swim, as any other business based on itsperformance and management. Instead bring in the feds because, of course,government's running of broadcast firms, as any other kind, has proven tobe such a roaring success everywhere around the globe. And all sonecessary, given how it is in the public interest.

Here is Klinenberg's powerful case:

"Radio is our most intimate medium—it wakes us in the morning, follows usinto the shower, accompanies us during commutes and becomes a lifeline inemergencies. But radio is struggling to attract and retain an audience."

To start with, radio is not "our" medium. Listeners purchaseradio offerings just like they do other things, only in a slightly morecomplicated way; namely, through accepting advertising along with theprogramming, as it happens when we visit all those “free” web sites or paya token price for newspapers and magazines—far less, in any case, thanwhat they actually cost to produce.

Professor Klinenberg gives away his case by admitting that radio has beenhaving a problem attracting and retaining a sufficiently large audience tomake all those wishing to be in the business succeed. Which means it isclearly not a "public good," something for everyone, like policeprotection or the courts that are good candidates for what does serve agenuine public interest. In other words, millions and millions of us arequite happy living without "our" supposedly most intimatemedium. Instead of listening to radio, the members of the public oftenjust purchase CDs or buy programming from the Internet. Or, maybe, theydon't at all listen to what radio offers, not music, not talk shows, notnews, because they have different interests or sources.

But because one academic sociologist, along with maybe a pretty sizablespecial interest group, would like to have radio handed to it on the backsof the rest of us, with Congress and the FCC regimenting the industry totheir heart's content, government is supposed to treat radio servicedifferently, as if it were the legal system or the military standing indefense of everyone's rights.

I hope this isn't going to happen. Let the Republican administration atthe FCC resist this plea for the feds to get into it all again, as whenthey made that awful judgment back in 1927 to make the electromagneticspectrum "ours."

Tuesday, February 27, 2007

Europe's “Philosophical” Problem

by Tibor R. Machan

France, England, Holland, Germany and some other countries are reeling from it now. It is the controversy over young Muslim women wearing the veil in schools. But I do not agree with a recent reviewer, David A. Bell, in The New Republic, who exclaimed, "This is one of the strangest, most philosophically rattling, controversies in recent European memory ..." He said this after observing that "Jack Straw, the leader of the British House of Commons, recently attacked the wearing of veils as a 'visible statement of separation and of difference,' and requested that women remove them when visiting him."

The reason this is little more than hyperbole is that a philosophically rattling controversy would have to be far more basic, bear on far more fundamental issues, than does the one about wearing veils in public. For example, "Is there a God?" or "Are human beings free?" or "Can the human mind understand things as they really are?" Now those would be philosophical.

This isn't to say that the veil issue is insignificant. But there is a plain enough solution to it and in America that solution has been tried in some areas of our highly diverse culture. This is to significantly diminish the public square. If one keeps much of society—church, home, work, recreation, travel and the like—within the private sector, there can be an unexpected measure of diversity about how people comport themselves without this posing any kind of controversy. Yes, in America we also face the (by no means philosophically but otherwise) bothersome controversy of what to do with young people who are herded into public schools as a matter of the nearly one-size-fits-all public policy of coercive and publicly funded education. But that's kind of a relic and all the fuss about school choice and charter schools and independent schools testifies to this fact.

In a bona fide free country different groups of people with their different religious and philosophical convictions, habits, rituals and such have no trouble following their own ways. That is because of the institution of private property rights! Yes, Virginia, the right to private property accommodates all such peaceful differences among a citizenry. Only when people are drafted, conscripted into some sphere, such as primary and secondary schools, do troubles arise. (Just ask the Amish about all this; they’ll tell you a sorry story.)
Indeed, ever since the U. S. military has eliminated conscripting young citizens into the services, they, too, no longer face this problem of the impossible, uncomfortable, often offensive mix. American society, with its innumerable ethnic and religious and other culturally divers groups manages to do quite well provided people aren't coercively made to mingle. Of course, when you extort money from everyone, via taxes, so as to pay for various practices that some object to, such as stem cell or climate change research, abortion, publishing propaganda in support of (or against) sex education and so forth, then trouble is not far away. That's because peaceful mingling is, well, peaceful but coerced mingling produces considerable acrimony.

If so-called public resources or public spheres are utilized for some purposes but not others, those among the public not favoring the purpose that benefits from such resources or is provided space in such spheres will be upset. To use what is "ours" for goals that are not in fact ours at all is naturally going to be found objectionable. Why should Roman Catholics, whose religion rejects abortion, have to pay for abortion clinics? It places them into a morally unacceptable situation, namely, funding what they consider morally wrong. Why should a school that wants to make it possible for all students to learn without distraction have to admit and make room for a few who insist on displaying their faith for all to have to confront?

In a free country, however, these problems are solved by the institution of the right to private property—different groups can practice their ways without imposing them on others within their own borders. In the very few public places, such as, say, a court house, the rules of the public realm would apply to all equally! And that is hardly a source of major displeasure. But the same isn't true when it comes to such phony public places as a community swimming pool. There, if one is coerced into some uniform practice of, say, wearing a certain kind of bathing garb, members of some groups will object and justifiably feel put upon.

So, it turns out Europe's main philosophically troubling controversy is manageable along lines shown by much of American society—place borders around groups so they can exclude those who refuse to conform and subject only the very few public spaces adhere to uniform policies.