Regulatory Vengeance

By skepticlawyer

power-control-levers-submarine-4174-600x3501[SL: I’ve brought this piece over from Thoughts on Liberty for two reasons: (1) a friend asked me to, and (2), it had its origins in a conversation with other Australian classical liberals in the wake of David Leyonhjelm winning a senate spot in New South Wales.

I wrote it because it seems to me, these days, that governments don’t seek to seize the means of production anymore. Instead, they grasp at the means of regulation, trying to deprive their political opponents of economic and social wiggle-room. And ultimately, liberty is the loser.]

“Before you embark on a journey of revenge, first dig two graves.” This is the best bit of advice I’ve ever had: it came via my pupil-master, and differed from the “revenge is a dish best served cold” with which I was familiar as a wee girl.

He always coupled it with a resonant respect for “the favor bank.” That is, no matter how large the dispute, sometimes it pays to help your opponent: whether it’s drawing his attention to a costly pleading error, or disclosing relevant documents without being asked. You never know when the boot may be on the other foot.

I’ve had this in mind a great deal, lately, when I’ve wanted to argue that giving the state greater powers to do one’s moral bidding is dangerous. Yes, you may currently have your hands on the levers of power, as well as be in the position to manufacture more levers, but in a democracy, you will lose an election at some point. And then those opposed to you get their hands on (a) the levers you used against them, as well as on (b) all the new levers you’ve made.

Those levers are laws, by the way.

This, of course, is the great lesson of the Wars of Religion: as people with differing views took turns at the top, they used the state’s immense but clumsy power to destroy their opponents. It took a long time for us to learn to step away from the levers (UK and much of Western Europe) or put them beyond religion’s reach altogether (the US and France).

However, while we no longer kill our opponents, the desire to bend the state to one’s moral will still manifests as a willingness to regulate and control. And often, that desire is borne of vengeance, just as it was during the Wars of Religion: “well, see how you like it, then.”

I’ve come to call this phenomenon “vengeance regulation.”

Even worse, I’ve watched as groups with opposed moral visions use my profession to exact their regulatory revenge. Confronted by nuisance abortion regulations about doorway widths or clinic administration? No problem, lobby the legislature to tighten up charity regulations, whipping your religious opponents’ fundraising capacity out from under them. Sick of homophobic bigotry pouring out of the churches? Use anti-discrimination law to shut down their adoption agencies. Fed up with wealthy people able to hide behind corporate structures while engaging in commercial activity you don’t like? Use publicly available company registers to locate shareholders and then pay them paint-strewn, vandalizing “home visits.”

That last one invited a counter-regulation: it is now possible, in the UK, to get a non-disclosure ruling making some records at Companies House private. So much for the “publicity principle” when it comes to determining property ownership.

This simply has to stop. And it doesn’t matter what your actual moral views are, either: abortion is murder, meat is murder, gays are going to hell, whatever. The attempt to bury one’s moral opponents under a mountain of red tape in response to their regulatory excesses not only brings the law into disrepute (it becomes a roadblock instead of a facilitator), but it will be used against you sooner rather than later.

And that’s when you’ll need that second grave.

Yes, that means giving up on seeing some precious beliefs enacted into law. I get that. Think of it, however, in the same way as unilateral free trade: eventually, we all win when we set markets free, and we’ll also win when we let go of the impulse to try to pull the levers of power and tilt the playing field in our favor.


  1. Ken Nielsen
    Posted September 24, 2013 at 6:47 pm | Permalink

    Very good piece, Helen. Insightful and thoughtful – as always. I would like to see you develop these thoughts further.

  2. Posted September 25, 2013 at 7:28 am | Permalink

    ‘Vengeance is MINE!’ sayeth the Lord. Curious to note that some human beings seem to have mis-interpreted that bit.

  3. Posted September 25, 2013 at 10:54 am | Permalink

    This reads more as a cautionary tale against aggressive partisan politics than one against regulations in general. The reactionary cycle has the capacity to manifest on the liberty/authority axis just as much as another (left/right) political axis. Aggressive deregulation policies can cause more authoritarian leaning politicians to react by introducing new regulation. This could result in mature and accepted regulation being replaced with a disruptive cycle of deregulation followed by immature or excessive regulation. The end result being less satisfactory to both sides than the original position.

  4. Mel
    Posted September 25, 2013 at 5:18 pm | Permalink

    Is this the same Skeptic Lawyer who wanted a gay man dragged before the courts on a secondary boycott charge for suggesting private companies disassociate themselves from OO after it ran some bigoted anti-gay articles?

    Sorry, couldn’t resist the gotcha 😉

  5. Posted September 30, 2013 at 8:32 am | Permalink

    Where’s the evidence that vengeance is the motive?

    It seems to me that what you really take exception to is regulation: the more regulation the more scope for political intervention (and oscillation) and also for abuse of regulation or its use for collateral purposes.

    As to the latter: think the application of the dictation text in Gaelic to Egon Kisch.

    As to regulation of charity status – charity status is itself an immunity from certain regulation (perpetuity of a trust; taxation privileges) so it stands to reason it needs to be regulated itself.

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