On the Justification of Antitrust

• DOI: 10.1177/0003603X16646571
• Author: Mark D. White
• Date: 01 June 2016
• Published date: 01 June 2016

Article

On the Justification

of Antitrust: A Matter

of Rights and Wrongs

Mark D. White*

Abstract

Antitrust law exemplifies the fundamental contrast between economics, based on welfare and effi-

ciency, and law, traditionally rooted in rights and justice, although the latter has been mostly ignored in

the scholarly, legislative, and judicial history of antitrust. This paper adopts the perspective of property

rights and corrective justice to explore the interrelated concepts of capitalism, antitrust, and

democracy. After presenting the nature of capitalism and the role of the state as seen from each

perspective, the paper examines antitrust law and policy through the lens of rights and justice, spe-

cifically asking which and whose rights are violated by the behavior forbidden by antitrust. Next, the

paper responds to recent suggestions that antitrust can be understood as a valid response of a

democratic government to the concerns of its citizens, which returns to the issues of the function of

capitalism and the market with which the paper began.

Keywords

antitrust, democracy, capitalism, economics, corrective justice, property rights

I. Introduction

Antitrust has long been an area of law in which economic reasoning maintains a tremendous amount of

influence, due to the plainly economic nature of the matters at its core: market competition, profits, and

consumer well-being. Notwithstanding the positive microeconomic analysis at its hear t, however,

antitrust remains an area of law and, as such, necessarily involves issues of rights and justi ce as

well—aspects that are often neglected among determinations of industry concentrations, consumer

surplus, and optimal penalties.

In this paper, I examine the interrelated issues of capitalism, antitrust, and democracy from the

perspective of property rights and corrective justice, an approach that stands in stark contrast to the

utilitarian nature of welfare economics on which traditional understandings of antitrust are based. I

start with a discussion of the contrast between these two perspectives and their implications for the

nature of capitalism and the role of the state. Next, I look at antitrust through the lens of rights and

justice, asking which and whose rights are violated by the behavior forbidden by antitrust as well as

*Department of Philosophy, College of Staten Island/CUNY, New York, NY, USA

Corresponding Author:

Mark D. White, Department of Philosophy, College of Staten Island/CUNY, 2800 Victory Blvd., New York, NY, 10314, USA.

Email: profmdwhite@hotmail.com

The Antitrust Bulletin

2016, Vol. 61(2) 323-335

ªThe Author(s) 2016

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DOI: 10.1177/0003603X16646571

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