Together with Filip Lubinski (EUI) I will be presenting a paper titled ‘Kant’s Theory of Law and Ordoliberal Competition Policy’ at the NOUS Network/Walter Eucken Institute Workshop on Immanuel Kant as an Inspiration for Ordoliberalism in Freiburg i.B., 5-7 December.
Our presentation will take place on Friday, 6 December, from 16:45-17:45.
Abstract
Thinking about competition and law regulating it is inherently a normative exercise. The legitimacy of competition law presupposes that even entities rationally acting in self-interest in search of the most efficient solutions can harm the socio-economic order. It leads to a normative distinction between allowed conduct and that recognized as anti-competitive. Concepts such as “abuse,” “competition on the merits,” and “exploitative abuse” are “words very much tied to fairness”; and “fairness” has gained relevance with the recent Digital Markets Act. Economic considerations play a role in interpreting and applying competition law, but they still rely on (often implied) normative justifications. Since its ordoliberal beginnings European competition policy placed the goal of establishing a common market above economic efficiency. The common market was not an end in itself but a means to pursue “a high level of employment and of social protection,” “the raising of the standard of living and quality of life,” and “economic and social cohesion and solidarity among Member States.”
Considerations on the relation between competition and the socio-economic order can also be found, at least implicitly, in the works of Immanuel Kant. The distinction between “deontological” and “effect-based” restrictions of competition recalls Kant’s duty-oriented (as opposed to consequentialist) ethics. Taking as our basis Kant’s ideas on private law, and in particular Ripstein’s conception of private law as regulating relations between individuals, we attempt to construct a Kantian concept of competition law. Although regular market competition is not an interference with another’s rights, the abuse of market power that diminishes others’ freedom may constitute such an interference. It is also noteworthy that some interferences are wrong per se, even if they do not cause any (measurable) harm. The creation of a state allows for distributive justice through legislation, enforcement of laws, and independent dispute settlement. Within a state, the idea of unfair competition inherent in Kant’s private law can be enforced by authorities and adjudicated before independent courts. This limited role of the state in private law influenced later ordoliberal thought on autonomy and private law.
Kant does not discuss the operation of markets at length, although he mentions the role of money (6:286-289, citing Adam Smith) and of taxation and welfare policies. His view of welfare is restrictive (only those members of society who cannot support themselves), but there is a role for (minor) redistribution in Kant’s economic policies. His views of history and international order also discuss the effects of trade: “the spirit of commerce, which cannot coexist with war” (8:368) leads to a more peaceful international order through the interconnecting effects of trade: an early version of the idea that a common market prevents war. Although Kant does not discuss anything resembling modern competition law, his thought on market relations between individuals and private law prepare a normative justification for state intervention in the competition process. Moreover, this model of competition regulation following Kantian considerations on the state’s role in welfare and the benefits of international trade may be an inspiration for ordoliberal competition policy.
Joris van de Riet 