Edwin S. Rockefeller, a longtime antitrust lawyer and onetime chair of the American Bar Association’s Antitrust Section, has said, “Antitrust is a religion.” He did not mean that in a good way. His 2007 book, aptly titled The Antitrust Religion, explains that antitrust is not a form of law but rather “a mystical collection of aspirations, beliefs, suspicions, and predictions.” This “quasi-religious faith” exists independently of the text of the antitrust statutes, according to Rockefeller.
While I obviously share Rockefeller’s disdain for antitrust and its conceptual foundations, I’ve been reluctant to embrace the “antitrust is a religion” argument. Although I am not religious myself, I am neither a religion-hating Objectivist. It can be intellectually lazy to pejoratively label anything you disagree with as “religion.” As Bob Murphy has said,
[S]trictly speaking, to call something “a religion” doesn’t mean it’s thereby false. Even in a secular context, all it means is that the people who believe in the claims aren’t being objective and rational about it. So you can argue that they have no basis for believing they’re right, but strictly speaking you can’t pat yourself on the back for blowing somebody up just by demonstrating “the belief system is a religion to him.”
And to take the inverse of Murphy, calling something “science” doesn’t mean it’s thereby true. This is a common fallacy in antitrust — and government regulation generally — where the tendency is to present a scientific-sounding conclusion as fact, and subsequently reject any attempt to challenge that conclusion. This is actually an anti-scientific approach masquerading as science, since the scientific method is predicated on deductive reasoning.
In a case now before the D.C. Circuit Court of Appeals, an organization has directly challenged this type of thinking by arguing that the regulator, in this case the Federal Trade Commission, has engaged in unconstitutional “religious” activity by refusing to deviate from beliefs that lack a rational basis. What makes this more intriguing is the challenging organization is itself an admitted religious group.
Daniel Chapter One (DCO) is a nonprofit corporation organized under the laws of the State of Washington to, in its words, “do whatever will promote the Kingdom of God,” including the operation of a church and related commercial operations. As part of its ministry, DCO develops and markets dietary supplements that offer “a combined spiritual and scientific approach” to bodily health. This is what put DCO in the FTC’s crosshairs. As I’ve reported ad nauseum, the FTC wants to eradicate all “dietary supplements” from the marketplace — at least those not subject to the Food and Drug Administration’s monopoly.
The FTC filed an administrative complaint, charging DCO with “unfair competition” under § 5 of the Federal Trade Commission Act, and after an internal hearing process, the FTC imposed a censorship order on DCO’s future religious and commercial speech. DCO has appealed the order to the D.C. Circuit.
DCO made no pretensions that its products were FDA-tested or approved. DCO expressly said its purpose was to offer “a Biblically-based alternative to conventional medicine — an optional path to avoid dangerous and toxic pharmaceutical drugs that oftentimes harm rather then heal.” DCO’s marketing combined personal anecdotes with Biblical arguments in support of their supplements.
Unfortunately, the FTC doesn’t recognize Biblical arguments or personal testimonials. The FTC only recognizes what it calls “reliable and competent scientific evidence.” This standard appears nowhere in the FTC’s authorizing statutes. It is an FTC creation that equates “scientific evidence” with FDA-approved clinical trials.
The FTC claims this standard eliminates the need to establish consumer injury or prove that a speaker’s claims are false — since the burden is entirely on the speaker to prove its speech comports with the FDA’s conclusions. As DCO explained in court papers,
At the hearing before the [FTC-appointed judge], the FTC adduced no evidence of any person who was harmed by one of DCO’s products, nor any person who had filed a complaint against DCO. And no person testified that he had been misled, or deceived. The FTC never disproved any of the personal testimonies shared by DCO, or challenged the statements that DCO’s products have helped people in the treatment of cancer even after conventional methods had been tried and failed, and they were sent home by their doctors to die.
The FTC’s case against DCO boiled down to a single witness, Dr. Denis R. Miller, a retired oncologist who is an executive at PAREXEL, a consulting firm that advises pharmaceutical companies on FDA clinical trials — in other words, a man with a direct financial interest in maintaining the FDA’s monopoly over pharmaceuticals. The FTC produced (and presumably paid) Miller to testify, “there is no reliable and competent scientific evidence to substantiate [DCO's] claims that the products at issue treat, cure, or prevent cancer.” Miller said the only to way to produce such evidence was to conduct an FDA-approved clinical trial (like the ones his firm advises companies on!).
So despite labeling these types of cases as “consumer protection,” the FTC doesn’t look to consumers at all in determining liability. It only looks to expert witnesses it selects to present predetermined conclusions. There’s nothing scientific about it, to say nothing about the wholesale rejection of due process.
But DCO went one step further in its brief to the D.C. Circuit. Turning the tables, the religious group argued the FTC’s faith in Dr. Miller — and his faith in the FDA — amounted to an unconstitutional establishment of religion:
By adopting Dr. Miller’s standard for its own, the FTC has, in effect, ruled out any cancer or tumor treatment approach that did not conform to “conventional anticancer therapy,” leaving absolutely no room for “alternative medicine.” Indeed, in Dr. Miller’s — and hence in the FTC’s world: “There cannot be two kinds of medicine — conventional and alternative … Alternative treatments should be subjected to scientific testing no less rigorous than that required for conventional treatments.”
Dr. Miller’s rejection of alternative medicine, and the FTC’s adoption of that view, is based not on “competent and reliable scientific evidence,” but on his personal faith in the kind of medicine that he practices and seeks to protect. Indeed, Dr. Miller testified that he would “opt for what I am told and believe and have faith in my physician.” According to the Bible, however, God’s people are to put their faith in “Yawweh Rofekha, the Lord who heals you.” (Exodus 15:26)
[…]
By adopting the FDA standard of “controlled clinical studies,” the FTC has virtually locked out herbal remedies, disallowing claims based upon history, general science, and the revelation of God. Thus, DCO’s reliance upon Biblical revelation and personal testimonies as the source of their representations about the efficacy of their products is disallowed.
But the FTC has no proof that its empirical methodology is the only legitimate path to truth. Rather, it has simply taken its hyper-secular views and imposed them upon an otherwise viewpoint-neutral statute, and in the process has violated the Supreme Court’s per se rule against viewpoint discrimination laid down in Rosenberger v. University of Virginia, 515 U.S. 819 (1995).
[…]
Dr. Miller’s testimony that medical truth is to be found only in “competent and reliable scientific evidence” is a manifestation of a world view based on the superiority of western natural science. The notion that following one way will lead to all truth is properly described as a religion. (See John 14:6) Scientism is the view that truth can be best, if not only, known from the results of the application of a supposedly scientific methodology. For the FTC to require that all in the healing arts must adopt the standard of “competent and reliable scientific evidence” is to require the adoption of scientism — which would be an unconstitutional Establishment of Religion, violative of the prohibition contained in the First Amendment to the U.S. Constitution.
The term “scientism” appears frequently in Austrian literature to describe, as Murray Rothbard put it, “the profoundly unscientific attempt to transfer uncritically the methodology of the physical sciences to the study of human action.” And that’s exactly what’s happening here. Remember, this isn’t about the science of biology — i.e., whether dietary supplements treat the symptoms of cancer — but the “science” of politics. The question is whether the FTC has the right to commit aggression against DCO — and by extension, against anyone who wishes to receive information that has not been filtered through the “science” of FDA clinical trials. The FTC would exclude religion, history, and literature, among other things, from the sum of human knowledge, at least when it relates to any discussion about the use of herbal and non-pharmaceutical dietary supplements.
This case certainly bolsters Rockefeller’s argument for treating antitrust, which includes the FTC’s “consumer protection” activities, as a religion, and an especially violent one at that. Perhaps we need to follow the learned jurist Roy Snyder’s example, and impose a restraining order requiring the FTC and its “science” stay 500 yards from religion at all times.
{ 14 comments }
The term “antitrust” induces a psychological environment that predetermines guilt in all venues outside of the courtroom and forces the accused to prove innocence, instead of forcing the accuser to prove guilt. It’s a deeply emotional term.
Another magnificent post, Skip. You really ought to do a book or five.
I was brought up in the Christian Science church, which, as you may or may be aware of, relies on trained “practitioners” to provide spiritual assistance and guidance to Christian Scientists who feel they need it. The situations in which practitioners provide advice includes many situations in which non-Christian-Scientists might seeks medical advice or treatment. Will the FTC come after Christian Science practitioners? If not, why not?
BTW, my mother, who is 84, hasn’t been in the hospital since I was born 51 years ago and has never taken medication of any kind. She is insanely healthy for an 84 year old.
I could picture a small Christian group kneeling in prayer for a sick person. Police kick in the door and bust them all for faith healing.
Scientism was Hayek’s term in “Counter-Revolution of Science” for 1) trying to apply the methods of the natural sciences to social sciences and 2) insisting that truth can only be found in the natural sciences; everything else is opinion. Scientism opposed the logical method of Aristotle/Aquinas for deriving truth used by economists, by many in science at the time and by Christian scholars. Promoters of scientism labeled the logical method as irrational, even though it was exactly the opposite, and religious because theologians used it. Hayek defends the logical/deductive method as the correct method for doing economics. So the science/religion dichotomy never has been about rationality vs irrationality, but about the empirical methods of natural sciences vs the logical method of Aristotle/Aquinas. In the 19th century, theology was considered by many the queen of sciences, because of its use of logic. Logic lost its standing as science because of scientism.
The claim that religion is irrational is just false. Primitive religions may be ignorant, but they’re not irrational. Judaism and Christianity have never been irrational by any definition of the term. And it would be hard to make the claim of irrationality stick with Islam or Hinduism. Using religion as a synonym for irrationality does nothing but advertise the antagonism of the speaker toward religion, nothing else.
The social sciences (soft sciences) can be every bit as scientific as the hard sciences, like chemistry or physics, where the forces at work are more clearly immutable in their obedience to observable laws. It’s just that the social sciences attempt to study human beings, who are noticeably sloppy and wishy washy, and don’t always act according to predictions. One has to rely very largely on statistical data, and study the behavior of people in groups. One person is much like one atom, strongly subject to the vagaries of indeterminacy.
Natural sciences, by their use of the Scientific Method, are innately more accurate in their portrayal of the physical world than are less rigorous approaches to knowledge. So I would have to agree that they come closer to describing “the truth”. Applying the word ‘scientism’ to such a method, though, sounds like a knock on science. I hope that’s not what Hayek was saying– it would cause me to lose respect for his ideas.
Pure reason alone is an inadequate tool to arrive at accurate statements about the world. Logic, due to its limitations when allowed to wander freely, can be used to ‘prove’ nearly anything and its opposite. And nowhere is this more obvious than in the soft sciences, like economics. What is lacking in most logical proofs from deduction is a method whereby one can either disprove the universality of a logical statement by offering countering evidence or fail to disprove it with any evidence available.
Science accepts no verdict as being absolute proof. The best it can offer is a tentative “not yet disproven”.
My response to this colorful post is not surprise, but a matter-of-fact “Oh”: another clear and unequivocal example of corrupt government agents and their phony concern for consumer well being; and their contempt for the idea that we humans are self owners and that free choice as to how we conduct our lives follows naturally. They are corrupt because the governments they work for are inherently corrupt; how could it be otherwise when theft (taxation) and financial fraud are the legal methods for financing their salaries and all of government.
And as we lambaste the FTC, millions of innocent, uninformed six year olds begin government schools; and one of the first things they learn is the pledge of allegiance. Should we be surprised that few people are willing to examine and question our present form of government or to wonder if there might be different arrangements that do not require them to be imposed by force, i.e. those suitable to societies of free (self-responsible) people?
I think Oliva does a perfunctory job of distinguishing science from religion. The distinction is quite clear, and relies on no value judgments.
A religion is a belief system. Its tenets depend on articles of faith. And it addresses metaphysical questions that are largely beyond the realm of science.
Science addresses testable hypotheses about the natural world. It does not try to establish what is “true”, nor does it make the claim that religion is “false”. The two realms rarely if ever truly intersect. Science, for instance, does not attempt to either prove or disprove the existence of God. That question lies outside its realm.
To make a value judgment about something nebulous like “antitrust” is to state an article of belief. As such, it’s more nearly akin to religion. To the extent that economics considers itself to be a science, it should set value judgments aside and gather information about the practical effects of antitrust legislation, comparing them to the effects of having no antitrust legislation. Science is not in the business of forming value judgments but of giving us information on which we can base our own more intelligently.
The case in question, Daniel Chapter One, is peripheral to any issue I can think of that relates to antitrust activities. I’m not sure what the thrust of the article is.
Michael: “A religion is a belief system. Its tenets depend on articles of faith.”
As an amateur student of religions, I don’t know of any that fits your definition. Religions do rest upon unprovable assumptions, but so does natural science and any philosophy. But all religions proceed from those assumptions using reason to develop doctrines. Judaism and Christianity are the most rational of religions, and far more rational than much of modern science. Particularly in the area of evolution modern science is very irrational in the sense that it depends a great deal upon logical fallacies.
Interesting. Religions mostly deal with either ethics (a matter of opinion, objectively speaking) or with questions of existence (philosophic in nature). Since these things can’t be appraised via the Scientific Method, they are beyond the scope of science. Scientists themselves would be the first to tell you.
Philosophy is all unprovable assumptions, so far as I have seen. It rests on a priori principles that one philosopher might believe in implicitly while the next one doesn’t. These are shifting sands on which to build a creed.
Natural science, it seems to me, does not rest on unprovable assumptions, by definition. Every assumption you can identify must be falsified by the same method as every other assumption. And none more so than the working assumption that the character of the observable universe obeys natural laws, not the whims of some Creator who is free to disregard those laws.
It does not address the possibility of there being a Creator, a thousand Creators or no Creators. It does stand ready at any time to test the hypothesis that some extra-physical force can intervene, say, when a tender young child falls off a bridge and the Hand of Jesus comes to scoop her up in time. The law of gravity tells us that every time so far, the child falls until something breaks her fall. And it predicts that in the future there is a high likelihood, although not an absolute certainty, that the same will happen again and again, in just the same fashion. That would be a scientific statement.
I like specifics, not general rules. If you could offer an instance of how some tenet of the Judeo-Christian faith is more rational than “much of modern science”, I’d take a very serious look at it. I hope you don’t mean “follows the rules of logic more fully”. Because if that were so, it would just be bad science. My guess is that much of what you think of as being science is not actually science.
Should a God akin to that of the Bible have created the universe with its physical laws as we know them, that one basis alone would be sufficient to explain the process of evolution of life forms fully. There is an unbroken line, traceable in our DNA, from the first bacteria and algae to everything in your body or mine. It’s just progressive development by accrual of traits and loss of other traits, governed largely by chance as each individual interacts with a complex environment. And we still share a number of our basic genes with such distant cousins as the sulfur bacteria.
Whether you say God made us both, or you say the molecules just came together by happenstance, the end result is the same. Us.
“Natural science, it seems to me, does not rest on unprovable assumptions, by definition. ”
Yes, like induction. Oh wait.
The Inductive method is as good a way as anyone has yet found to determine what is objectively true. It’s a working method, not a statement about reality.
Where’s the flaw in it?
This is very interesting topic. Good to share and interaction of ideas is great. I learned and got some ideas from this post.
“So despite labeling these types of cases as “consumer protection,” the FTC doesn’t look to consumers at all in determining liability. It only looks to expert witnesses it selects to present predetermined conclusions. There’s nothing scientific about it, to say nothing about the wholesale rejection of due process.
But DCO went one step further in its brief to the D.C. Circuit. Turning the tables, the religious group argued the FTC’s faith in Dr. Miller — and his faith in the FDA — amounted to an unconstitutional establishment of religion:”
Should this even be in the courts.
The people who run the country wear mor close.
There for the people not running the country are “lessons”
And the people running the country are………… you guessed it.
“It is no matter what are you believing,the most important thing is the force of belief.” Julius Caesar
Comments on this entry are closed.