The Miller’s Organic Farm Case: Part 2
[Editor’s Note: Read Part 1 here.]
The laissez faire position on government regulation is that by overriding the judgment of individuals about production, trade, purchases, professional practice—virtually any and every facet of economic life—regulation violates the right to liberty and property. Because the individual’s judgments, choices, and actions—and the value he obtains thereby–equate with the process of living, regulation in the end violates our right to life.
Regulation substitutes the judgment of government, imposed by threat of fines and imprisonment, for that of individuals. It overrides the judgment of those directly involved in and responsible for every phase of economic life (and many other areas, of course), substituting government bureaucracy.
Translated into practice that means curtailment of invention, imagination, experimentation, innovation, initiative, and value preferences. Most regulation is imposed on the grounds of protecting us. But the most powerful incentive for business to offer consumers safety, quality, convenience, fair treatment, and honesty is the profit motive—as all of us know when we must sell what produce or buy what we need.
Among the worst effects of regulation, as Alan Greenspan argued in “The Assault on Integrity,” is that it pretends to guarantee all those things—ensuring us government is taking care of us–and so lessens the competitive edge that companies can achieve by earning a reputation for safety, quality, cleanliness, integrity, and much more. Consumers come to assume all companies provide those protections only because regulations require it. Consequently, companies have an economic incentive to do no more than comply with the minimum requirements of regulations. This regulation tends to achieve the lowest common denominator: uniform compliance with regulations.
What good will this argument do Amos Miller? It is an argument in principle against regulation. If Miller’s case involved “fringe regulations”—the latest bright idea for extending government control—those regulations might be rolled back.
Unfortunately, regulations had their birth in America in the realm of food safety and purity. Amos Miller’s concept of how to produce the highest quality food flies in the face of the entire regime of regulation. He cannot be treated as an exception because he is stands against regulation in principle.
An August 11, 2022, report said federal attorneys want Amos Miller jailed for failing to pay $105,065 in fines and court costs… “The United States submits that Mr. Miller’s continuing recalcitrance and flouting of the court’s orders requires…him to be incarcerated…”
And so, to return to the beginning of this article: What is the point of describing a problem that cannot be remedied? The only answer I see is that the case of Amos Miller drives us back to consideration of the fundamental clash of liberty with regulation–a clash in principle. And back to what is at stake for human productivity.
William L. Anderson, writing for the Mises Institute, traces the origins and growth of regulation, especially during the Progressive Era in the United States, and rightly concludes:
This…out-of-control system cannot be ‘fixed’ by politicians. Furthermore, no US president is going to voluntarily surrender his powers… Yet, the modern regulatory apparatus is as much a threat to the freedom and well-being of us all as was the destructive system of rules imposed by [French comptroller, 1665-1683, Jean-Baptiste] Colbert upon the hapless French populace.
It is not becoming a law unto itself; it already has reached that stage. The only thing that can be done to end this reign of terror by bureaucrats is to abolish the entire US regulatory system and return to the common law system that served this country so well for so long.
Yes, there is an alternative to regulation, one completely consistent with freedom. Any business can be sued for harm caused by its products, services, financial dealings, fraudulent claims, and misrepresentations—to take but a few examples.
(Necessary note: Today, traditional liability law has been captured and corrupted by lawyers chasing huge “contingency fees,” often 30 or 40 percent of a settlement, which they collect if they win a case. That does not negate liability law; it is an abuse, a separate problem with separate solutions for another discussion.)
Common law in fields such as liability and negligence operates on the same principle as criminal law. A person is free to act without intervention of the authorities until charged with a violation of the law—in other words, a violation of another’s rights. If the alleged violation involves (broadly speaking) some variant on fraud, the recourse is to civil law with due process and other protections.
The fundamental distinction between regulation and remedy at common law is the crucial distinction between preventive law and remedial law. No evidence has been adduced and no one has charged that Amos Miller has harmed anyone—quite the contrary. But regulations have made him a criminal facing ruinous fines and jail.
Walter Donway is an author and writer with more than a dozen books available on Amazon and an editor of the e-zine Savvy Street. He was program officer or director at two leading New York City foundations in the healthcare field: The Commonwealth Fund and the Dana Foundation. He has published almost two dozen articles in the Blockchain Healthcare Review.
READER COMMENTS
Phil H
Nov 8 2022 at 10:00pm
“Any business can be sued for harm caused by its products, services, financial dealings, fraudulent claims, and misrepresentations—to take but a few examples.”
This shows some naivety about the law, I think. Remember tort law is really new! And was created precisely in response to a food safety issue (in the UK – not sure about the US legal history). The point was that existing contract law at that time (19th century) was found to be insufficient to cover the complexities of industrial food production. So when Donaghue got sick because of a badly-manufactured bottle of pop, she couldn’t sue the cafe owner (who took no responsibility for the contents of the bottle), nor the producer (because she had no contract with the producer).
Obviously tort law fixed that particular loophole. But the idea that law can just magically remedy any wrong in a market is naive. Law has to be created (and is created on an ongoing basis) to fix problems. It’s not just a pre-existing body that’s always going to give decent answers. There are surely more loopholes to come (liability of robot chefs, anyone?).
Regulatory/administrative law is another legal response to the problems of complex industrial food production. Regulation and the law aren’t two separate things. They’re both legal responses to reality.
None of which is to say that Miller is right or wrong. I don’t know enough to say. But the idea that “regulation bad, liability law good” doesn’t make much sense.
Jon Murphy
Nov 9 2022 at 7:22am
I’m not sure tort law (at least in the Anglo-American tradition) being over two millennia old counts as “really new.” Tort law, and the broader concept that one should be compensated for harm done to them, is ancient. It did not arise out of food safety issues, but rather out of ways to settle inter-family and inter-tribal disputes in ways that did not result in wars and blood fueds. For a fascinating history of the Anglo-American tradition, see “The History of English Law Before The Time of Edward I” by Sir Frederick Pollock & Frederick William Maitland. I don’t have my copy with me so I cannot give precise page numbers, but the evolution of tort law is fascinating.
The idea that government can regulate and sue on behalf of supposed (rather than real) injury is really new; that is what you are talking about. But tort itself is ancient.
Mactoul
Nov 9 2022 at 4:03am
To say that regulation per se violates right to liberty, property and life is to call into question the legitimacy of State per se.
Which raises the question of what exactly is this right to property which is violated by mere existence of State.
And can property exist without the nexus of laws and regulations created by State?
Property, from time immemorial, has arisen within such a nexus, and from theoretical grounds, can not exist without this nexus.
Hence the laissez faire position as explicated here is untenable.
Jon Murphy
Nov 9 2022 at 10:18am
Not at all. Many liberal and laissez-faire scholars accept the state has a legitimate right to violate liberty. For example, Adam Smith discusses this at length in the Theory of Moral Sentiments (see Part 2, Section 2, Chapter 1, paragraphs 7-10, which are pages 80-82 of the Liberty Fund edition).
Regulations do indeed violate liberty. But sometimes that sacrifice of liberty is necessary in order to promote overall liberty. Some examples Smith includes in TMS are “parents
to maintain their children, and children to maintain their parents, and impose
upon men many other duties of beneficence.” In Wealth of Nations (WN), Smith includes party-walls, prohibitions on certain bank notes, and a handful of other regulations. Indeed, for party walls, Smith writes: “The obligation of building party walls, in order to prevent the communication of fire, is a violation of natural liberty, exactly of the
same kind with the regulations of the banking trade which are here proposed” (Book 2 Chapter 2, Paragraph 94, page 324 of the Liberty Fund edition).
Rather than calling into question the legitimacy of the state, the ability to sometimes violate natural liberty is what defines a state. This is a dangerous power, one that requires “the greatest delicacy and reserve to execute with propriety and judgment. To neglect it altogether exposes the commonwealth to many gross disorders and shocking enormities, and to push it too far is destructive of all liberty, security, and justice” (TMS 81).
Additionally, you write:
Logically and empirically, this is incorrect. Logically, the concept of property must predate the law (see James Coolidge Carter “Law: It’s Origin, Growth and Function” as well as Bart Wilson’s brilliant book “The Property Species”). Empirically, we find evidence of property long before any formalized system of state-sponsored law (again, see Wilson and/or Bruce Benson’s “The Enterprise of Law”). Indeed, the first universal commercial code, the Lex Mercatoria, was an extensive system of private law that existed for a few hundred years in Europe and the Middle East defining everything from property to contract disputes. Eventually, the Lex was adopted by various states, but that occurred much later.
So, your conclusion that “the laissez faire position as explicated here is untenable” is incorrect on philosophical, logical, and empirical grounds.
Mactoul
Nov 9 2022 at 8:53pm
“Formalized system of state-sponsored law”—quite delicately phrased.
I submit that the customary law that governed ancient societies played essentially the same role as the present system of formal law.
How logically property is prior to the law, I can’t conceive, but perhaps you mean merely the formal law. Ancient people were governed with customary law.
Indeed, I would say that property (as opposed to mere possession) is what which is secured by laws, and not by brute force.
Jon Murphy
Nov 9 2022 at 9:50pm
Concept comes before the rule protecting it. Property starts in the mind before it can be conceived to protect it
Pajser
Nov 10 2022 at 12:28am
I think it is not the only alternative. There may be one or more general laws, and then observer may notice that an unintended consequence of these laws is something he calls a “property.” For example, a law protecting the status quo can easily be one of them. Especially since in many cases the state will side with the status quo against property rights.
Jon Murphy
Nov 10 2022 at 6:52am
I’m not sure what you are saying here.
Jon Murphy
Nov 9 2022 at 9:52pm
In other words, you need a concept of “mine” and “thine” before the rule can even exist.
Pajser
Nov 9 2022 at 11:04pm
“In other words, you need a concept of “mine” and “thine” before the rule can even exist.”
If these concepts of “mine” and “your” are defined, any statement that uses them can be replaced by an equivalent statement that does not use them. It is the characteristics of definitions. (Even if the concepts are primitive notions, they can be usually be eliminated by introducing of a more general notion; but “mine” is certainly not a primitive notion.)
If you have time to describe that argument in sufficient details, we may be able to find logical error.
Jon Murphy
Nov 10 2022 at 6:51am
Agreed. Precisely my point and why property is antecedent to property rights.
Jon Murphy
Nov 10 2022 at 6:54am
Good. That was my point. Property exists outside the nexus of legislation and regulation by the state.
Mactoul
Nov 10 2022 at 8:12am
The state is essentially the state of laws– degree of formalization is irrelevant. The laws may be customary from time immemorial or may be passed yesterday by a legislature.
Libertarian theory is coy on what exactly is property and never considers how property differs from mere possession.
Property is lawful possession. Hence requires a state of laws. In a state of nature where there is no law that is common between men there is no fullness of property.
Jon Murphy
Nov 10 2022 at 9:29am
Define “state” here. As I read your sentence in the context of all your comments thus far the sentence doesn’t make sense because “state” is being used in two different ways.
Given all the citations I have given, the explication of property requiring a concept of “mine” and “thine”, and the centuries of liberal/libertarian theorists from Locke up through David Freidman and others in present day all of whom develop a deep theory of property beyond mere possession, I find your comment odd.
Will you cite me just one libertarian who argues that property is mere posession?
Jon Murphy
Nov 9 2022 at 7:24am
I like your use of “judgement” here as opposed to “preference.” Judgement is wider and takes into account the weighing of costs and benefts, as well as aesthetic evaluations on the part of the individual.
Jens
Nov 9 2022 at 3:52pm
The fundamental distinction between regulation and remedy at common law is the crucial distinction between preventive law and remedial law. No evidence has been adduced and no one has charged that Amos Miller has harmed anyone—quite the contrary. But regulations have made him a criminal facing ruinous fines and jail.
There are many criminal law systems in which attempted offenses (action without damage) and offenses by omission (damage without action) can lead to criminal liability. The idea that legal interests can/must be protected without a direct causal connection between the infringing act and the infringing result is not a specialty of regulatory legislation.
Monte
Nov 9 2022 at 4:04pm
Curiously, Anderson links to a bio of Colbert and what his regulatory apparatus accomplished that portrays both in a more positive light:
[Colbert] carried out the program of economic reconstruction that helped make France the dominant power in Europe.
…what he did achieve seems all the greater in view of the obstacles in his way: he raised the output of manufactures, expanded trade, set up new permanent industries, and developed communications by road and water across France (Canal du Midi, 1666–81).
I think calling an overburdensome regulatory system a “reign of terror by bureaucrats” is a bit over the top. I liken it more to an invasive species of government and its impact on the ecosystem of a free market: Mostly a menace to be eradicated, but at what cost to its intended benefits (ie. regs that focus on basic worker or consumer safety)?
And I think we should be careful about calls for returning to a strict form of common law without due consideration for civil law, the goal of which is to “create order and reduce biased systems in which laws are applied differently from case to case”, although I would agree that our civil law system is in bad need of reform.
Monte
Nov 10 2022 at 2:38pm
To further clarify my comment, federal regulations (allegedly) create a standard of ground floor conditions intended to serve the public interest, while simultaneously impeding the market’s ability to operate freely or innovate. And this is where the scales of justice become unbalanced, as these regulations, with time, tend to “become obsolete or even counter-productive – particularly from a public interest or societal perspective – as the economy evolves.” They can also be specifically designed to “favor incumbent businesses, as well (supporting “cronyism”), to the detriment of new business formation and the innovation and productivity growth of the overall economy”, victimizing business owners like Miller.
Mactoul
Nov 10 2022 at 9:25pm
Jon Murphy,
An unowned thing gets to be owned by a person mixing his labor with it. But this axiom doesn’t tell us how much labor must be mixed with this thing or that thing. This required specification is provided by particular laws of particular people.
Thus, the concept of ownership is itself dependent on the existence of state of laws. Just to take a small example, in US mineral rights go along with ownership of the land above. Not so in Britain. And there is no way theory can tell us.
Jon Murphy
Nov 11 2022 at 9:13am
Again, it’s not clear to me what “state” means here. You seem to be using “state” to mean “a condition of being” and “government of a certain territory.”
What I am objecting to is the idea that property cannot exist outside government creation and enforcement of property law. If you mean to say that property cannot be protected without the concept of law, then I have no objection.
steve
Nov 12 2022 at 5:27pm
“(Necessary note: Today, traditional liability law has been captured and corrupted by lawyers chasing huge “contingency fees,” often 30 or 40 percent of a settlement, which they collect if they win a case. That does not negate liability law; it is an abuse, a separate problem with separate solutions for another discussion.)”
The problems with using the courts far exceeds big contingency fees. Sometimes you win a case by having the better lawyers, not being correct on the law. Lawyers can be expensive. If you are in a legal battle against an entity with deeper pockets you may decide you cant afford to sue. On the issue of corruption/political influence I suspect that the courts/law is as bad or worse than any other area of government. Finally, you need government to carry out the remedies determined by the courts. This is not always done fairly or by the books.
I have yet to read a libertarian solution to these problems other than ones that either rely upon the courts and litigants to behave well, or setting up another layer of what amounts to courts, subject to the same problems fo the most part.
Steve
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