Originally from Antitrust and Competition Laws
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Chapter Two - PRE-MODERN ERA BEFORE 1880
The parents of the predecessors of modern antitrust or competition laws were food rioters. For millennia, sudden increases in grain prices were blamed on speculative traders and producers who often were condemned as “monopolists.” People threatened and often used violence to support their demand for official action. Rulers responded to the demands out of political concern for social stability (prevention of revolution or regime change) and moral concern for social justice (promotion of the welfare of subjects and citizens).
The pre-industrial popular demands for official action against price-raising “monopolists” and its attendant violence contrast sharply with the more genteel rule of law in the modern world. Today, when the consumer price of gasoline increases in the United States, people clamor for official action against oil producers for ill-defined if not undefined practices. When academics and public intellectuals clamor for action against successful firms in digital platform markets and other high technology sectors, they write books and articles. Concerns about economic concentration and wealth inequality are debated in academic and political circles, like an enlightenment salon of 18th century Paris. The government reacts by holding legislative hearings and announcing antitrust investigations.
To get a flavor of the pre-industrial world, replace online searching and gasoline with grain, a subsistence good necessary for survival. Replace the scholarly articles and congressional hearings with violence and threats of regime change if the “monopolists” are not stopped. Replace modern competition laws with a broad bundle of measures that included bans on hoarding, forestalling, price speculation and price fixing. Replace modern competition law’s enforcement by permanent and specialized government officials against multiple sectors of the economy with the episodic enforcement of forestalling bans by medieval French magistrates during periods of famine. Replace modern fines with confiscation of goods and execution. Replace modern policy objectives like consumer welfare and competition as a process with social justice and social stability. Voilà the pre-modern world of competition law.
Pre-modern competition laws were aimed at a broad panoply of laws that differ from modern laws in three important respects: categories of offenses, policy rationales and enforcement institutions.
Barry E. Hawk is former Director of the Fordham Competition (formally Corporate) Law Institute and former Partner with Skadden Arps (New York and Brussels). He is former Vice Chair of the ABA Antitrust Section and former Chair of the New York State Bar Association Antitrust Section, as well as Professor at Fordham Law School and Visiting Professor at Michigan Law School, Monash University Law School, New York University Law School and the University of Paris.