The eighteenth century liberal tradition opposed monopolies as being
inimical to the common weal: a monopoly denies competition in its field of
endeavour, giving total control over related endeavours to the
monopolist. Anyone dependant on what the monopolist controls can be obliged, at
the monopolist's whim, to surrender arbitrarily their liberty, either by
contractual agreement
demanded in exchange for what they need or (for
instance if what the monopolist wishes to impose would be an unenforceable term
in a contract) by the threat of refusal to fulfil that need if ever the
dependant fails to abide by the monopolist's wishes.
If any citizen's liberty is thus subjugated to the will of a monopolist, the rest of us are imperriled by it: in extremis, the monopolist's serfs can be pressured into committing crimes against us; but even prejudicing how these serfs will conduct their own trade with others suffices to harm us. In a town with a dominant employer, for instance, that employer can – e.g. by paying their employees only in a currency of their own devising – control all trade in the town; which suffices to let it control nearly all facets of life (indeed, it is by control of trade, primarily via currency, that the liberal tradition advocates government exercise the greater part of such control as it imposes on folk). Any who do not kowtow to the monopolist can be deprived not only of what the monopolist controls directly, but also of everything they would obtain from others who are beholden to the monopolist.
For reasons such as these, the liberal tradition advocates avoidance of monopolies where possible and demands intense scrutiny and limitation on the monopolist's liberty where a monopoly is unavoidable.
In many matters, monopoly can be avoided simply by leaving all folk at liberty to participate in any trade they will. A de facto monopolist with whom others can compete will lose their monopoly as soon as they so constrain folk that a competitor, willing to abstain from such constraints, is assured of the custom of those constrained. Though a monopoly may arise, its evils may thus be kept in check by any (realistic) threat of competition.
None the less, some monopolies are either unavoidable or, in some sense, necessary. Indeed, the liberal tradition itself maintains that the use of violence, other than pursuant to immediate defence, should be forbidden to all but the state, whose exercise of it should be tightly constrained. At the opposite extreme, the individual citizen's rights over their property may be construed as monopolies; indeed, the owner of the land on which the only mine is, for some essential mineral, has a consequent monopoly on that mineral.
Thus, where a monopoly exists, we must consider how it is to be regulated so as to avoid letting it fall into the evils to which monopolies are prone.
In such consideration, it must be remembered that curtailing the natural
means by which a monopoly may lead to some evil will not suffice: the monopolist
always has several ways to side-step any restrictions – for instance, if
the monopolist is obliged to deal with all who wish it, the monopolist can
demand an unaffordable price of those with whom they would otherwise have
refused to deal, thereby achieving the same effect – so one must consider
pragmatic issues as well as matters of principle
. After all, it is only
on pragmatic grounds that we accept that some monopolies must be endured.
Aside from the bare minimum required for immediate (i.e. where there is clear and present danger) defence, which the liberal tradition accepts as an inalienable right, the citizenry are forbidden to use violence. Yet it is widely accepted that even violence has its place – if only pursuant to the due process of punishing those who abuse it. To this end, the state is authorised to employ violent force in various contexts. Thus a monopoly on the use of force is created: how then should this be controlled so as to avoid its potential for evil ?
This case is particularly severe, since even the threat of violence suffices
to jeopardise all liberty: it is for this reason that the liberal tradition took
such care to see that the state is tightly constrained in what it has authority
to do. The liberal tradition's recipe for this revolves around
the separation of powers
between the executive, the legislature and the
judiciary. I aim, here, to describe a refinement on that, motivated by the
importance of overseeing the monopoly on force.
The surest guarantee that the monopoly on force will not be abused is to
insist that the body (or organ of government
) which exercises it be
watched over scrupolously and its agents subject to severe punishment for any
abuse. Yet this begs the question: who watches the watchers ? Unless
every citizen is able to scrutinise their actions, the force-wielding agency has
but to collude with its overseers (or with some parties who hold sway over
these) in order to free itself from restraint (indeed, one may fairly argue that
this has happened, mainly during the cold war era, to the force-wielding
agencies of the United States of America).
Yet what every citizen may scrutinise is surely known to enemies of the nation; and it is rightly argued that some functions of the state (notably its efforts to watch such enemies and discover those most heinous of criminals who take pains to maintain secrecy; but equally, at times, sensitive negotiations between the state and external parties) depend on secrecy. This has been used to justify allowing the force-wielding agencies to operate secretly: which has, at least, the potential to produce results prejudicial to the common weal. This argument should, more properly, be used as the knife by which to separate those organs of government which need secrecy from those which may wield force.
Thus what we presently see as police forces should properly be separated in
two: on the one hand, those authorised to use force, who must be subject to the
utmost scrutiny, their actions documented and made public in as timely a manner
as possible; on the other, detectives and their ilk who need, perforce, some
degree of secrecy. Such a separation, properly constituted, would require that
the investigators have no more authority to use force than is the right of all
citizens – namely, defence of someone (whether themselves or another) who
they see is clearly exposed to present danger; and they should be so trained and
constrained that, even in such a case, they employ minimal force
. When
their investigations reveal evidence justifying the use of force against some
person, they must bring their evidence to the enforcement agency. While this
agency may have authority to keep that information under cover for long enough
to arrest the accused – and perhaps for such brief duration as habeas
corpus will allow the accused to be held without review by the judiciary
– the investigation agency must accept that this information
shall soon
be in the hands of the public and, hence, of their
adversaries. The grounds on which someone's liberty is being curtailed should
be made known promptly.
Now it will be objected that such a separation will hamper police work,
exacerbating the existing difficulties police forces have with due
process
. Yet it is exactly the lack of such separation which has caused due
process to need such a heavy hand as has lead to these difficulties: because
those who conduct investigations are authorised to employ force, the judiciary
has to allow various presumptions prejudicial to the investigator's efficacy;
because those who employ force are entitled to some modicum of secrecy, their
word cannot be wholly relied upon by courts.
Instead, let those working for the agency authorised to use force be obliged at all times to wear such aparatus (cameras, microphones, etc.) as will ensure that their every action is a matter of public record. So long as they act within the rules laid down for them, this record shall protect them from accusations of wrong-doing; further, since various suspicions against them (notably: we only have their word against that of someone against whom they used violence) would cease being well-founded, due process could allow them greater lee-way in their actions. They would still be able to participate in investigation, though only in those parts thereof which do not require secrecy.
Meanwhile, let those authorised to keep secrets, as freely as private citizens may, be denied any greater use of force than is available to all. Then, at least, secrecy would not be a cloak under which the public must fear violence is being concealed – especially if, in fact, the investigation agency is itself bound to keep records subject to eventual public scrutiny, though with appropriate discretion to delay revelation.
Written by Eddy.