Monday, February 04, 2002

A while ago Jim Henley put a piece up on why he is not a liberal. And while Jim apparently had the good taste to buy off my banner ad, I still have trouble buying his argument --- or, for that matter, this other argument, to the same end, by Iain Murray.

(Update: Iain thinks I misunderstood him; he's not a libertarian, and his defense of them was meant to be qualified).

Here's the nub of Jim's piece, at least as I read it, discussing the trouble with legal solutions to social problems:

Behind every law is a weapon. That goes for all the nice regulatory laws too. Sure, it's only "civil proceedings," but try telling them to tie a tail and a string to their civil proceedings and run into a headwind and its the sherrifs and marshalls who come round to uphold "the majesty of the law." Which ends up in the same place the criminal law does - jail or, if you take the armed fugitive route, death. "Contempt of Court" - dissing da judge - is the thing that judges will lock you up for indefinitely, and on their own say-so, and try checking and balancing that if you don't like it. They don't ask you to go politely, either. It's sherrifs and marshalls time again.

But you could say the exact same things about private contractual arrangements. The covenant restrictions common in gated communities, for instance, which restrict everything from the color of the house paint to the choice of plants in the garden and the height of the grass, are at least as restrictive as most towns' zoning ordinances. Borland recently tried to impose software licenses which required you to let its agents access your computers to verify compliance with the license terms. And anyone who thinks that government bureaucracies are uniquely ill-mannered, obstructive, and incompetent, has never gotten into a serious tussle with an HMO.

Violate these private contractual arrangements, and where do you wind up? Civil proceedings, in court. And, lest there be confusion, enforcement of private contracts is sherrifs and marshalls time even when the agreements in question are simply software licenses.

Ah, the libertarians will reply, but you had the private choice as to whether to enter into those private contractual arrangements in the first place, and you don't have that choice with respect to laws.


How many people are working with computers these days who can really afford not to go anywhere near a Microsoft license agreement?

And how much choice do any of us have about our listings in the credit bureaus, à la Equifax? These are huge, unaccountable bureaucracies, which keep tabs on just about everyone in the United States. When they screw up, innocent people can find it difficult, if not impossible, to buy a house or a car, to enroll at schools, due to student loan difficulties, or even to get a credit card (and have you tried to travel recently without one?). Their databases are notoriously unreliable and insecure. Plain errors can take months to correct, even if the corrections don't get mysteriously undone later when the source of the bogus data resubmits it. This sounds like a libertarian horror story about intrusive government and insensitive government bureaucracies, but it's entirely in the private sector; government has nothing to do with it. And the finance industry's lobbyists are paid princely sums to make sure that it stays that way, and that the credit bureaus don't become subject to anything like European privacy laws.

(Regarding privacy laws, by the way, libertopian fantasies sometimes have private certification agencies serving this sort of regulatory function. With regard to privacy, at least, there's a cautionary tale available on the net --- TrustE, which was started as an experiment in private-sector regulation by the folks at the EFF, and has to be counted as an egregious failure; all it does is certify that a site has a privacy policy, and when major players like Microsoft and RealAudio have been caught by others in flat violation of their stated security policies, TrustE's response has generally been to help them find ways to wriggle out of their difficulties, as it were, "on a technicality". TrustE seems terminally mired in the fundamental conflict of interest that comes from being funded by the very companies that it is supposed to regulate).

Or consider health insurance. I've actually had libertarians try to explain to me at great length that the problems with our health care system stem from excessive regulation, and if government would just get out of the way, the magic of the market would summon insurance providers from the air, to suit every need and preference. But one of the real problems with private insurance is that the providers tend, whenever they can, to engage in "cherry-picking" healthy clients. In a truly free market, why would anyone offer health insurance at affordable rates to a forty-five year old with a heart arhythmia and hereditary risk for brain cancer?

And, as I've noted before, libertarians also seem not to recognize that a lot of the regulatory structure we have was a response to massive private-sector failures of the past.

So, that's what confuses me about libertarians. They seem to combine a pathological fear of government power --- any use of government power --- with a willful blindness towards abuses of corporate power, and towards flaws in private sector "solutions", even when those flaws stem from ineluctable conflicts of interest. In fact, that's the nub of Iain Murray's argument --- that the limited lifespan of monopolies in the marketplace makes them less of a long-term threat than tyrannous governments. But I can think of quite a few monopolies that were only broken up by government action, and many that lasted longer than the average 20th-century European military dictatorship. And no one believes the limited lifespans of those dictatorships are somehow grounds for ignoring their other abuses. Which were more severe than corporate abuse, to be sure --- but that doesn't justify giving corporate abuse a free pass.

Abuse of corporate power is real. It exists. There are solutions, sometimes, in government. And while abusive governments also exist, the Federal Trade Commission and the FDA don't look much like tyranny to me, not even by Iain's definition, "the systematic deprivation of protection from arbitrary rule". What that sounds like, to me, is Equifax.

Laws are weapons, sure --- never doubt it. But I thought it was the liberals who were supposed to be in favor blindly stripping people of their weapons...


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