Chapter 21: Government Shall Punish Nothing Except the Intentional Violation of Duties—Licensing Laws
Prefatory Statement
By enforcing licensing laws, governments not only punish those who lack an evil intent, but they enforce rights which do not exist. Such laws have the effect of destroying freedom by destroying the right of private property. They deny the people their inalienable right to make a living and, at the same time, prevent the buying public from purchasing goods and services from whom they choose.
We shall first define licensing laws and then show that they are not adopted either to punish crime or to protect property rights. Their enforcement constitutes a violation of the Golden Rule. Finally we shall discuss why some people favor them.
Licensing Laws Have the Effect of Condemning the Righteous
In prior chapters we observed that when the Nephites corrupted their laws, one of the sins of which they were guilty was that of “condemning the righteous because of their righteousness.” (Hel. 7:5) The Book of Mormon does not state what particular type of righteousness was being condemned. But does it matter? The condemnation and punishment of a righteous act is wicked regardless of the type.
The Lord has issued the commandment, “six days shalt thou labor.” He has also condemned idleness. Therefore any law which condemns a man for working at a legitimate occupation is evil. In this chapter we [p. 148] shall demonstrate that by enforcing licensing laws, we are using government to commit the same sin of which the Nephites were guilty: that of punishing the righteous.
What Is a Licensing Law?
A licensing law is one which makes it a crime for a person to enter into some particular profession, trade, business or occupation without first obtaining permission from the state. Permission is granted only to those who fulfill certain requirements which vary from one type of occupation to another.
For the professions and trades such as medicine, law, engineering, dentistry, plumbing, electrical contracting, general contracting, barbering, burying the dead and nursing, etc., the applicant is usually required to graduate from some professional or trade school, obtain a minimum amount of experience, and pass an examination. The level of difficulty of the exam is varied from time to time so that only a limited number will be able to successfully pass it and obtain a license. Or as an alternative, the number permitted to apprentice or to enter college to take the required course work, may be limited for the same reason.
Usually licenses to enter businesses such as banking, insurance, savings and loan associations, etc., may be obtained only by those who have a specified minimum amount of investment capital and a business location situated in an area zoned for that purpose. Experience in the business may also be required.
Licenses to carry on a transportation or communication business are usually difficult to obtain because the number issued is ofttimes limited to a favored few. Certificates of convenience and necessity are usually required. With respect to licenses to operate a utilities business such as a water, electricity or gas company, there is usually one license granted for each type of service in a given area and that licence is usually given to a local government. This, of course, constitutes socialism.
Certain types of labor laws also have the effect of granting monopolies to a favored group. Laws which make it difficult or impossible for those who lack membership in a union to obtain employment are of this type. The employer is forbidden by law to make his own contract with the employee, and the law may also prevent the employee from [p. 149] obtaining employment in the unionized industry otherwise.
Licenses called quotas or bases, are sometimes required before one can produce and sell certain types of dairy and agriculture products. Following is an example of a licensing law:
It is unlawful to engage in the practice of medicine in this state without first obtaining a license. Any person who engages in the practice of medicine without a license shall be guilty of a felony—UTAH CODE ANN. SEC. 58-12-30
Licensing Laws Neither Punish Evil Nor Enforce Rights; They Do Restrain Competition
Although licensing laws always provide for punishing those who violate them, it is not necessary to prove that the defendant either intended evil or caused harm in order to convict him. Such laws can have no effect on the punishment of crime. The reason is that existing criminal laws already cover every type of criminal offence which one might commit in carrying on a business or trade.
Neither are they necessary to permit an injured party to recover damages. Tort and contract laws exist which provide relief for such injuries.
Licensing laws restrain competition. They grant exclusive monopolies to those who hold them and make it a crime for others to compete. They also prevent the buying public from purchasing goods and services from anyone except the licensees. Although the law seldom mentions buyers, the restriction on their freedom is the same as if they did for if the seller cannot sell, the buyer cannot buy.
Licensing Laws Violate the Golden Rule By Creating Duties
Not only do licensing laws violate the Golden Rule by punishing the innocent, but they have the effect of creating duties which should not exist.
By enforcing licensing laws, governments create new rights in the licensees and in doing so they create new duties in all others. All unlicensed people lose certain rights because they are forbidden to enter the [p. 150] licensed occupation except at a cost in time and money they do not feel they can afford. Also they are forbidden to patronize anyone except the licensees.
No one has a duty to refrain from entering a legitimate occupation and selling his products and services to anyone he chooses. Nor does the buying public have a duty to refrain from patronizing anyone they choose. Nevertheless by adopting licensing laws, governments undertake to create and enforce all of these duties. But it lacks the power to do so. All power it has comes from the people and since the people have no right to create such duties, neither does government.
Do Licensing Laws Protect the Public Against Incompetence?
One argument used to justify licensing laws is that they serve to protect the public against incompetence, inexperience and lack of adequate training. The feeling seems to be that only those who are the best qualified have a right to serve the public.
Let us examine this argument.
We will commence with the trite observation that no one is perfect. No matter how old or young, how educated or ignorant, how experienced or untried, everyone is subject to making mistakes. Each person who lives a full and ordinary life, commences in a state of utter incompetence at birth, increases in ability until he reaches his prime (which is always short of perfection), and then returns again to utter incompetence at death. While some may largely retain their mental faculties until the end, physical deterioration is as certain as death itself.
Since all men are imperfect and prone to make mistakes, virtually every act of any consequence we perform might possibly injure someone. No matter how careful, how well-trained or well-intentioned we may be, the possibility of human error is always present to threaten the well-being of others.
No physician or nurse ever becomes so skillful and wise that he is free from the danger of taking the life he/she is trying to save. No mechanic, builder, machine operator or craftsman ever becomes so proficient that he can claim that his efforts will always be constructive but never destructive; or that the product of his work will be free from dangerous [p. 151] defects. No teacher ever becomes so knowledgeable and wise that he can be certain that he will always teach truth and never error.
Being human beings that we are, we are forever subject to failure of mind and body; to malfunction of brain and muscle; to heart attack, lapse of memory and mistake of judgment. Especially is this true in view of man’s inability to fully understand and control the elements of nature. Who can erect a structure which will withstand every earthquake or storm? Who can construct a piece of machinery so perfectly that it might not fail because of metal fatigue or some other unpredictable defect? Who understands the diversity of minds and bodies well enough that he can foresee the effect of a given medicine or piece of information on any particular person?
Furthermore everyone is constantly changing. We are continually learning and forgetting; acquiring a skill only to lose it again; gaining vigor and health during one period and then losing them in another.
Now is it possible for any licensing agency (who are erring humans themselves) to classify this infinite and ever-changing diversity of human imperfection into two groups—the qualified, and the unquali- fied-and be just to everyone? Any line which is drawn must be purely arbitrary with nothing more to support it than the prejudice or selfish interest of the one who drew it because all he has to choose between is varying degrees of constantly changing ignorance, incompetence and inexperience.
And even though it were possible to distinguish between the fit and the unfit, due to the constant changes taking place in people, this classification would not be valid for more than a brief period. There would be those close to the line who would be constantly crossing over it going both directions.
One of the worst aspects of licensing laws is that those who already hold the licenses wield the political power by which they prevent those on the outside from getting in. They make the rules and erect the hurdles which prevent others from competing. In many instances they erect those hurdles just high enough to maximize their own incomes. [p. 152]
Do Not Licensing Laws Provide the Public with Only Those Who Are Best Qualified?
Even admitting the practical impossibility of distinguishing between the qualified and the unqualified, some may contend that licensing laws protect the public by allowing only the best qualified to serve them.
But who are the best qualified? If there is a sound reason why only the most superior should be permitted to make a living at law, medicine, engineering, banking and plumbing, then why don’t we permit only the top ten percent of those now engaging in these activities to have licenses? If the public is entitled to have only the best, why allow this other ninety percent to sell their inferior goods and services?
The obvious answer to this proposal is that it would have the effect of eliminating approximately ninety percent of the goods and services now being produced. That which the less qualified group is providing is needed even though it is somewhat inferior. It would be harmful to the public to prevent them from working merely because they are less skillful and more apt to make mistakes than the superior ten percent.
But where does this argument lead to? If we follow it through the next step, we must conclude that existing licensing laws are even now denying the public an untold amount of goods and services which would otherwise be available. If they were abolished so that twice as many people could enter into a given trade or occupation, we might find approximately twice as much being produced. If that were true, the buying public would be benefitted enormously because the price would necessarily have to be lowered to sell that much.
The demand for goods and services is literally unlimited. There are millions of people who now need dental, medical, legal, engineering and other professional assistance who cannot afford to pay the fees charged by those who have been compelled to spend a large portion of their lives and tens of thousands of dollars obtaining a license. The same can be said of trades, occupations and businesses of all kinds. If the bars were removed, the unemployed and other venturesome souls would flood into these areas, become proficient and begin exchanging goods and services with each other to the benefit of everyone—except possibly present license holders and the bureaucrats who serve them. [p. 153]
Do Not Licensing Boards Provide the Public with Valuable Information?
It is generally true that those who serve the public the best, gain a deserved reputation for doing so. Nevertheless there are those who feel that licensing laws serve a valuable purpose in compelling those who hold licenses to attain some minimum level of education, experience and competence. Thus in the absence of a reputation, the public can use this fact to help them choose someone who is qualified. Are not licensing laws valuable for this purpose?
It is assumed that in the absence of licensing laws, those who consider themselves professionals in a given field, would band together in a professional association, establish minimum standards for membership, and proceed to advertise their superiority. Thus the public would still be provided with information regarding who the professionals consider professional. And certainly it is the right of doctors, lawyers, engineers, accountants and others to do this very thing. Furthermore anyone who falsely claimed membership in such a group, should be prosecuted for false advertising. No harm would result from such associations and doubtless much good would be accomplished by them.
If those who consider themselves better qualified want to prove their excellence, they could then do so in the open market. But why should they be allowed to establish government enforced monopolies which compel customers to patronize them or go without? If they feel that buyers might not be able to distinguish between them and those less skilled, they can still set up their own rules for membership in their organization and deny admittance to any they feel to be unqualified.
But at the same time why should the public be denied their freedom to reject their claims of superiority? Or why should not the public be permitted to purchase products and services of an inferior quality and doubtless at a cheaper price if they desire? In other words, why should we continue to allow licensing laws to deny people their freedom of contract?
Why Are Licensing Laws Adopted?
In an unregulated economy, the only ones in business are those who [p. 154] have customers who come to them voluntarily and in preference to anyone else. They are producing goods and services which the public want and are willing to pay for. What other test is there for being qualified? This is the only one which is relevant and fair, and many there are who have failed it. The consuming public is discriminating and demanding. They are also merciless. They can be counted on to keep the unqualified from serving them. No licensing board or government agency is needed for this purpose.
When we deny men their freedom to be productive because we fear they might possibly cause harm, we act foolishly and unjustly. If a person intends to do good, he will do infinitely more good than harm. One who enters a business or profession, is well aware that he must serve the public satisfactorily or go bankrupt.
No honest and sensible person will undertake a job which he knows he cannot do even if he could find a customer who would permit him to try. He knows that he must produce what is contracted for or subject himself to lawsuits for breach of contract, false advertising and even criminal negligence. If he is not honest and sensible, if he misleads the public by false advertising, or injures them by selling injurious goods and services, then of course he should be punished and compelled to make restitution. But before we convict him, let us give him a fair trial before an impartial tribunal. Let us not send him before a board of licensees or their hirelings who have already judged him guilty even though he has intended no evil and caused no harm. Let us not prevent him from making a living at our licensed profession solely on the arrogant supposition that we are better qualified than he to serve the public.
Licensing Laws Are Adopted Because of Pride
In D&C Sec. 121, the Lord has said that many are called but few are chosen because the many set their hearts “so much upon the things of this world and aspire to the honors of men” that they fail to learn a crucial lesson regarding the principles of righteousness. He also says in this same section that:
When we undertake to cover our sins, or to gratify our pride, our vain ambition, or to exercise control or dominion or compulsion upon the souls of the children of men in any degree of unrighteousness . . . . Amen to the [p. 155] priesthood or the authority of that man. (V. 37)
Is there a person who cherishes and utilizes a government issued license who is not guilty of each of the sins mentioned in this scripture? If we tried to use force to prevent competition outside of government we would be guilty of racketeering and extortion. Do we not cover these sins with licensing laws? Are we not gratifying our pride, our vain ambition, and exercising unrighteous compulsion when we forcibly prevent others from competing?
There is scarcely an adult in our society today who does not hold one or more government granted licenses, certificates, honors, titles, degrees, letters or privileges, affirming him to be something special and/or granting him some economic advantage. The Nephites were destroyed for their pride. Is not the time ripe for us to repent of this sin and repeal those laws which are enabling government to gratify it in this manner?
Of course it must be recognized that since licenses are required for virtually all occupations, if we are to earn a living in these areas and at the same time obey the law, we must obtain the required license. However if we befriend, uphold and support laws which are so clearly contrary to the principles of the Constitution, how can we hope to escape the condemnation of a just God? And if we fail to abolish them voluntarily, will not the Lord force a cleansing as he did when the Nephites corrupted their laws? [p. 156]
Words of President Benson
My attitude toward government is succinctly expressed be the following provision taken from the Alabama Constitution:
That the sole object and only legitimate end of government is to protect the citizen in the enjoyment of life, liberty, and property, and when the government assumes other functions it is usurpation and oppression. (Art. 1, Sec. 35)
An important test I use in passing judgment upon an act of government is this: If it were up to me as an individual to punish my neighbor for violating a given law, would it offend my conscience to do so? Since my conscience will never permit me to physically punish my fellowman unless he has done something evil, or unless he has failed to do something which I have a moral right to require of him to do, I will never knowingly authorize my agent, the government, to do this on my behalf.
I realize that when I give my consent to the adoption of a law, I specifically instruct the police—the government—to take either the life, liberty, or property of anyone who disobeys that law. Furthermore, I tell them if anyone resists the enforcement of the law, they are to use any means necessary—yes, even putting the law-breaker to death or putting him in jail—to overcome such resistance. These are extreme measures but unless laws are enforced, anarchy results.
As John Locke explained many years ago:
The end of law is not to abolish or restrain, but to preserve and enlarge freedom. For in all the states of created beings, capable of laws, where there is no law there is no freedom. For liberty is to be free from restraint and violence from others, which cannot be where there is no law; and is not, as we are told, “a liberty for every man to do what he lists.” For who could be free, when every other man’s humour might domineer over him? But a liberty to dispose and order freely as he lists his person, actions, possessions, and his whole property within the allowance of those laws under which he is, and therein not to be subject to the arbitrary will of another, but freely follow his own. [Two Treatises of Civil Government, II, 57; P.P.N.S., p. 101]
(Ezra Taft Benson, An Enemy Hath Done This, p. 132-33) [p. 157]
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