"Capitalism" - читать интересную книгу автора (Rand Ayn)

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Thus no one can tell what the law forbids or permits one to do; the interpretation of these laws is left entirely up to the courts. A businessman or his lawyer has to study the whole body of the so-called case law the whole record of court cases, precedents, and decisions in order to get even a generalized idea of the current meaning of these laws; except that the precedents may be upset and the decisions reversed tomorrow or next week or next year. "The courts in the United States have been engaged ever since 1890 in deciding case by case exactly what the law proscribes. No broad definition can really unlock the meaning of the statute . . ."2

This means that a businessman has no way of knowing in advance whether the action he takes is legal or illegal, whether he is guilty or innocent It means that a businessman has to live under the threat of a sudden, unpredictable disaster, taking the risk of losing everything he owns or being sentenced to jail, with his career, his reputation, his property, his fortune, the achievement of his whole lifetime left at the mercy of any ambitious young bureaucrat who, for any reason, public or private, may choose to start proceedings against him.

Retroactive (or ex post facto) law i.e., a law that punishes a man for an action which was not legally defined as a crime at the time he committed it is rejected by and contrary to the entire tradition of Anglo-Saxon jurisprudence. It is a form of persecution practiced only in dictatorships and forbidden by every civilized code of law. It is specifically forbidden by the United States Constitution. It is not supposed to exist in the United States and it is not applied to anyone except to businessmen. A case in which a man cannot know until he is convicted whether the action he took in the past was legal or illegal, is certainly a case of retroactive law.

I recommend to you a brilliant little book entitled Ten Thousand Commandments by Harold Fleming.8 It is written for the layman and presents in clear, simple, logical terms, with a wealth of detailed, documented evidence such a picture of the antitrust laws mat "nightmare" is too feeble a word to describe it.

One of the hazards [writes Mr. Fleming] that sales managers must now take into account is that some policy followed today in the light of the best legal opinion may next year be reinterpreted as illegal. In

'Ibid., p. 13.

" Ten Thousand Commandments: A Story of the Antitrust Laws, New York: Prentice-Hall, 1951.

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such case the crime and the penalty may be retroactive. ... Another kind of hazard consists in the possibility of treble damage suits, also possibly retroactive. Firms which, with the best of intentions, run afoul of the law on one of the above counts, are open to treble damage suits under the antitrust laws, even though their offense was a course of conduct that everyone considered, at the time, quite legal as well as ethical, but that a subsequent reinterpretation of the law found to be illegal.4

What do businessmen say about it? In a speech entitled "Guilty Before Trial" (May 18, 1950), Benjamin F. Fairless, then President of United States Steel Corporation, said:

Gentlemen, I don't have to tell you that if we persist in that kind of a system of law and if we enforce it impartially against all offenders virtually every business in America, big and small, is going to have to be run from Atlanta, Sing Sing, Leavenworth, or Alcatraz.

The legal treatment accorded to actual criminals is much superior to that accorded to businessmen. The criminal's rights are protected by objective laws, objective procedures, objective rules of evidence. A criminal is presumed to be innocent until he is proved guilty. Only businessmen the producers, the providers, the supporters, the Atlases who carry our whole economy on their shoulders are regarded as guilty by nature and are required to prove their innocence, without any definable criteria of innocence or proof, and are left at the mercy of the whim, the favor, or the malice of any publicity-seeking politician, any scheming statist, any envious mediocrity who might chance to work his way into a bureaucratic job and who feels a yen to do some trust-busting.

The better or more honorable kind of government officials have repeatedly protested against the non-objective nature of the antitrust laws. In the same speech, Mr. Fairless quotes a statement made by Lowell Mason, who was then a member of the Federal Trade Commission:

American business is being harrassed, bled, and even blackjacked under a preposterous crazyquilt system of laws, many of which are unintelligible, unenforceable

'Ibid., pp. 16-17.

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and unfair. There is such a welter of laws governing interstate commerce that the Government literally can find some charge to bring against any concern it chooses to prosecute. I say that this system is an outrage.

Further, Mr, Fairless quotes a comment written by Supreme Court Justice Jackson when he was the head of the Antitrust Division of the Department of Justice:

It is impossible for a lawyer to determine what business conduct will be pronounced lawful by the Courts. This situation is embarrassing to businessmen wishing to obey the law and to Government officials attempting to enforce it.

That embarrassment, however, is not shared by all members of the government. Mr. Fleming's book quotes the following statement made by Emanuel Celler, Chairman of the House Judiciary Committee, at a symposium of the New York State Bar Association, in January 1950:

I want to make it clear that I would vigorously oppose any antitrust laws that attempted to particularize violations, giving bills of particulars to replace general principles. The law must remain fluid, allowing for a dynamic society.8

/ want to make it clear that "fluid law" is a euphemism for "arbitrary power" that "fluidity" is the chief characteristic of the law under any dictatorship and that the sort of "dynamic society" whose laws are so fluid that they flood and drown the country may be seen in Nazi Germany or Soviet Russia.

The tragic irony of that whole issue is the fact that the antitrust laws were created and, to this day, are supported by the so-called "conservatives," by the alleged defenders of free enterprise. This is a grim proof of the fact that capitalism has never had any proper, philosophical defenders and a measure of the extent to which its alleged champions lacked any political principles, any knowledge of economics, and any understanding of the nature of political power. The concept of free competition enforced by law is a grotesque contradiction in terms. It means: forcing people to be free at the point

" Ibid., p. 22.