Williams, Diary of a Mad Law Professor

THE NATION
diary of a mad law professor
Economic Bad Boys
Patricia J. Williams

When the "scrawny boy from Austria" delivered his peroration against faint-hearted "economic girlie men," it was an unusually seductive, even witty, appeal to a notion of free enterprise that is not just flexible but musclebound, not just robust but smackdown and not just strong but hypersteroidal. But the American free enterprise system, particularly since the Depression, has always rested on an assumption that the marketplace would be bounded by notions of fairness, reasonableness, rationality as well as efficiency. Recently, libertarian clichés and Republican oversimplifications seem to have left many people with the impression that commerce should be utterly unbounded by any kind of regulation whatsoever. This kind of thinking is littered with references to survival of the fittest, dogs eating dogs and snarling consumption of large quantities of red meat still bloody enough to spatter impressively.

But the government's role used to mean insuring that the market was free of transactions posing great risks to life, limb or cultural capital. In such ideal circumstances, parties might bargain as wisely or foolishly as they please as long as they are capable actors, the terms are reasonable rather than unconscionable and no undue force, either public or private, is brought to bear. Where such circumstances did not exist, it was understood that public willingness to participate in the market would be affected and that participants could not be pacified by monetary damages alone but might rather be motivated by pain, fear, vengeance or fury.
Two things have happened in the years it has taken to convert Arnold Schwarzenegger into a political philosopher. One is that the pricing of risk has overtaken all other categories of analysis. From the high-flying executives at Enron to the mercenary soldiers of Executive Outcomes, every jot of daily life, from the highest ideal to the most basic principle, seems to have its price tag. Our political discourse is configured much more by models of hasta la vista baby commercialism than guided by civil libertarian or humanitarian ethics. The second thing that has happened is that the notion of the state as a monopoly of power has been under attack by antigovernment ideologues, who think the only function of government is policing a narrow range of business interests. This has resulted in broad suspicion of the judiciary as well as Congress, and an increased tendency to reduce the executive function to that of a military-minded CEO. But the degree to which this theoretical decentralization of government power also results in an unchecked aggregation of corporate power is ironic.

I guess I bother to go through this rather academic rendition because I worry that the notion of free enterprise driving the he-man model of capitalism is dangerously flawed. Let me give a bottom-line example of what's bothering me. A few months ago, National Public Radio's Talk of the Nation did a program about a Dutch physician working for Médecins Sans Frontières who was kidnapped and held for nearly two years in southern Russia. The Dutch government paid the ransom, but then sued Médecins Sans Frontières for reimbursement of about $1 million. The questions asked during the radio discussion were revealing: Did the Netherlands violate a presumably public policy principle of "not negotiating with terrorists"? Or was it simply lending Médecins Sans Frontières money under stress of a deadline, with the implicit assumption that it would be repaid? And what do corporations, if not governments, do when their employees are kidnapped?

In response to this last question, there was an interview with a man from an outfit called Corporate Risk, a service that handles the negotiation, delivery of ransom, coordination of law enforcement and communication with family. Callers seemed to relate to the mission of Corporate Risk. One listener described the world as a dangerous place generally; it was only natural to put a price on that danger. The guiding light for many seemed to be a corporation's--and ultimately a government's--willingness to absorb or dismiss beheading as the cost of doing business.

To me, there are a couple of fundamental moral mistakes here. The first is that governments, in their policy of "no negotiation" despite risk to human life, seem to be treating criminal or battlefield behavior as though it were an economic transaction--as though it were a usurious or extortive system of raising capital. Your money or your life, says the terrorist. No deal, says the wise, if short-lived, free marketeer. But if we view our bodies as beyond price, we might move heaven and earth to save a life--consider how different the Lindbergh case or the desperate negotiations for Daniel Pearl. Loss of life disorders much more than the marketplace, and that should guide our response. The second mistake is that private corporations are not really "undercutting" public policy--they are underwriting it. Politicians get to stand firm, while private companies hire desperately poor men from Nepal, Turkey, Bangladesh, to work in the line of fire--people whose lack of options become recast as "choice" or "freely assumed risk"--people whose lives are easily bought, and whose loss or injury is a transaction cost invisible to the voting public in powerful polities. In this model, neither the individual nor the state can lay claim to a value beyond price. Rather, the stock in the business enterprise itself is the prime interest to be protected.

Recently, Médecins Sans Frontières withdrew all its doctors from Afghanistan after the government there failed to investigate or prosecute the murderers of five of its doctors. As I flipped the dial through talk-radio rather farther to the right on the dial from NPR (I was driving from Boston to New York and could not identify all the voices or stations), I heard several discussions describing the decision as an unfortunate "cost of doing business," and that you can't "whine" if you put yourself "in harm's way."

The characterization of Médecins Sans Frontières, a neutral charitable organization operating in war zones around the world, as just another risk-calculating "business," is just one example of how much of what we used to think of as humanitarianism has been negotiated away in the politics of testosterone.