TCS Daily

Between Jam and Jelly: Regulation as the Default State of Affairs

By Uriah Kriegel - October 21, 2005 12:00 AM

In her Booker Prize-winning novel The God of Small Things, the Indian writer Arundhati Roy amuses us with the following tidbit:

        "They used to make pickles, squashes, jams, curry powders, and canned 
        pineapples. And banana jam (illegally) after the FPO (Food Products 
        Organization) banned it because according to their specification it was 
        neither jam nor jelly. Too thin for jelly and too thick for jam. An ambiguous, 
        unclassifiable consistency, they said."

If you think this sort of absurdity belongs in the exclusive province of fiction, think again. With the world's fourth biggest proportion of the population making less than $2 a day, and $430 GNI per capita, Mauritania is one of the world's poorest countries. Featuring mostly camels and sand dunes, it has almost no non-oil natural resources. Yet meager resources inspire greater entrepreneurial ingenuity, and a few years ago a German company figured out a method by which to produce cheese from camel milk. A miracle for the unfortunate people of Mauritania? Not quite. The European Commission did not approve the new product. The reason: there were no regulations in place for camel-based products.

There was a time when regulation was an institution whose purpose was to put limits on an otherwise boundless liberty. Basically, as long as there was no regulation forbidding you to do something, it was allowed. In the absence of regulation, there was no question whether something was permitted or not. The absence of regulation just meant that the thing was permitted.

What the European Commission's ruling betrays is a worrying movement toward reversal of that natural order. In the minds of many, especially in continental Europe, regulation has slowly become the default state of affairs. To this way of seeing things, the absence of regulation does not amount to freedom, but to moral and legal limbo: we are to await the regulating bodies' decision whether or not to grant us the freedom in question.

When the state of default regulation obtains, the institution of regulation doesn't function merely as a stop sign for liberties. It is cast as creator of liberties. There are no liberties other than the ones bestowed by the regulator. In its hands, the regulator holds a fund of liberties, which it is its burden to distribute to us according to whatever standards it sees fit.

There is an even bigger issue here, and it concerns nothing less than the essence of liberty. It is best brought out by considering the distinction, originally due to the British philosopher Isaiah Berlin, between negative and positive freedoms. A negative freedom is a freedom from, whereas a positive freedom is a freedom to. For instance, freedom from being forced to get your neighbor ice cream is a negative freedom; freedom to get your neighbor ice cream is a positive freedom.

In the liberal-political tradition, the essence of liberty consists in an open-ended horizon of negative freedoms. Man is deemed free to do as he pleases as long as he does not infringe on the (equally valued) liberty of others. By contrast, in the socialist tradition, a man's liberty is conceived as essentially a bundle of positive freedoms. We are free to do whatever the government allows us to do. The government may make generous allowances, but unless it does, we have no freedoms we can rightfully call our own.

It is by this piece of conceptual trickery that the notion of liberty could so readily be perverted by Marx and Lenin that they could claim to promote people's freedom: under their regime, they promised, the guy on the street would be free to go get ice cream instead of going to work.

The positive conception of liberty always had a stronger footing on the European continent than in the Anglo-Saxon world. Thankfully, the negative conception of liberty is deeply entrenched in the American political culture. It is effectively set in stone in the United States Constitution. From the very opening sentence of the Constitution, it is clear that its framers were of the opinion that freedoms were not created out of thin air by governments' decrees, but existed prior to -- and independently of -- governments themselves.

All is not safe in America, however. Justice Stephen Breyer's recent book, Active Liberty: Interpreting Our Democratic Constitution, attempts to make the patently implausible argument that the Constitution was actually framed with positive liberty in mind. This proposition is belied, if by nothing else, by the simple text of the Ninth Amendment:

        "The enumeration in the Constitution, of certain rights, shall not be 
        construed to deny or disparage others retained by the people."

Justice Breyer's book has been celebrated on the left as the long overdue counterweight to the sort of sustained, systematic legal philosophy that Justice Antonin Scalia brought with him to the court. And at some places, it does press Scalia's originalist position, such as on the point that the originalist dictum is not itself enshrined in the Constitution. But how it could accommodate even this slim yet straightforward bit of text remains something of a mystery.

More deeply, the book is written in the tradition, hailing chiefly from the legal thought of John Hart Ely, that undermines the negative conception of liberty upon which our Founding Fathers wisely and soundly framed the US Constitution. It embodies the outlook under which banana puree must remain illegal as long as the government cannot determine whether it is jam or jelly. Still thankfully, however, America's political culture doesn't yet seem to have place for such fanciful absurdities.


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