I’d be curious to hear what readers of this blog think about this talk by Bernard Harcourt on "The Illusion of Free Markets: Laissez faire and Mass Incarceration.”  The talk is based on his similarly-named book, The Illusion of Free Markets: Punishment and the Myth of Natural Order.

I haven’t read the book, but the thesis of the talk seemed to consist of two main claims. The first is that there is no such thing as really free markets. There’s also no such thing as an overly-regulated market. This is because all spaces are, according to Harcourt, “fully regulated.” Though Harcourt doesn’t explain it this way, I take it the idea is something like this: every possible action within a legal regime is either legally forbidden, legally permissible, or legally obligatory. Different legal regimes will assign different statuses to different actions. But in all cases every action has some legal status – it is “regulated” in the sense that the law determines what you may or may not do.

The second claim is that there is a connection between the idea of free markets and the phenomenon of mass incarceration as we see it in countries like the United States today. The defense of free markets is often based on the belief in a “natural order.” Economic activity is thought to be self-regulating in some way. But not everyone acts in accordance with the rules of this order. People who transgress upon the persons or property of others need to be incarcerated, and doing so is one of the few things (according to the story) that government is good at and may legitimately do. Hence the incarceratory state.

I’m sure these arguments are developed in more detail in the book. And I’m hesitant to comment on them without having read it. But on the basis of the talk alone I’m a bit unsure of what to make of these claims. There’s a sense, I think, in which claim one is true. But it’s not a sense, I think, that undermines the distinction between “free” and “overly-regulated” markets in the sense that advocates of free markets use those terms. A regime in which a few acts are forbidden and most acts are permitted and a regime in which all acts are either mandatory or forbidden may both be “fully regulated” in a logical sense. But the differences that claim masks seem far more significant than the similarity it illuminates. And I’m just not sure what to make of the second claim at all. A major factor in the growth of the prison population in the second half of the twentieth century is the war on drugs – a repudiation of the free market, if anything is. I think there are probably some interesting left-libertarianish things to say about the phenomenon of mass incarceration and the lack of genuinely free markets, but it’s just not clear to me what point Harcourt is attempting to make. 

But I urge readers to listen to the talk themselves, or read the book.  Am I missing something?