On the Justification of Antitrust

Abstract

Antitrust law exemplifies the fundamental contrast between economics, based on welfare and efficiency, 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, specifically 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.