On Government Regulations Again

Tibor R. Machan

A recent New York Times carried an item that's of some general political philosophical interest bearing on the nature of a free society’s system of laws. In particular it relates to the discussion of whether public policy matters ought to be addressed pragmatically--that is, issue by issue, with no regard for general principles--or based on some system of ideas.

In "The Week in News" there was a report on something one Elizabeth Kolbert wrote on the New Yorker Web site concerning how Barack Obama's choice for new energy secretary, Steven Chu, once "established the country's first refrigerator-efficiency standards" back in California, in the face of industry opposition, and how the decision is now judged a roaring success. "The following decade, standards were imposed for refrigerators nationwide. Since then, the size of the average American refrigerator has increased by more than 10 percent, while the price, in inflation-adjusted dollars, has been cut in half. Meanwhile, energy has dropped by two-thirds." Ergo, it might be suggested, government imposition of standards (and, more generally, government regulation) is a jolly good thing!

Perhaps pragmatists would find this a decisive argument in favor of government regulations--or at least quite a few of such regulations. But I am not a pragmatist. I tend to approach the issue of whether government regulations are proper in a principled fashion, even if in some cases such regulations are arguably helpful. (Actually, once the law mandates refrigerator-efficiency standards, it is impossible to say how things would have turned out without this mandate! An there is that famous fallacy, post hoc, ergo propter hoc, that this line of argument commits!)

In any case, as far as I understand law and politics, whether government regulation is sound policy isn’t a matter of a few successes. It is more one of whether the general policy of the government regulating the economy is a good idea. There are several grounds to oppose it; mainly because it amounts to the insidious practice of prior restraint, namely, of limiting people’s liberty before they have done anything to deserve it. (This also is a telling objections to various precautionary public policies advocated by environmentalists--they limit liberty without having proven anyone’s culpability!)

In certain areas, of course, hardly anyone would be tempted to use such arguments. Take the case of torture! Surely some cases of torture yield desirable results--victims confess and in turn lives are saved. But, as observed by that famous ancient Greek sage, Aristotle, “one swallow does not a springtime make.” Even robberies could on rare occasions produce overall beneficial results--nay, even rape might--but they nonetheless ought to be prohibited.

Opposition to government regulation should not be based on some imagined absolutism, namely, that each instance of it will necessarily result in regrettable consequences. No opposition to this and any other coercive public policy ought to rest on grounds of its injustice, on its perpetration of prior restraint! In broader terms, government regulations treat people as if they were experimental tools that may be used as decided by government officials. Something seems (though hasn’t been proven) to be hazardous, so then those doing it may be forced to desist. This attitude, of enforced paternalism toward adults, is wrong even if once in a while acting on it will produce good results.

The debate is an old one, actually. Are there principles of human conduct in terms of which people should desist from, say, lying, cheating, misrepresentation, aggression, violence, and so forth? Or can the issue only be handled piecemeal--is this particular case of lying or cheating or stealing or using violence or, yes, rape good or bad, never mind any general principles?

Those who claim there are principles that ought to guide our actions even when ignoring them would appear convenient, practical, useful, etc., are often labeled ideologues, mindless dogmatists who want to act without thinking. But this is entirely unfair. The thinking went into the formulation of the principles--indeed, if we had to think through piece by piece every action we take, we would be paralyzed. Over centuries and centuries of human living, some principles have been identified as very worthy of being obeyed, including the principles that without a criminal conviction, no one ought to be treated as a convict, as subject to other people’s will.