Column on Government Regulations Again

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.

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