Economic Liberty: The Forgotten Rights

By Joseph Farrugia

Economic liberties such as the right to property, freedom to enter into a contract of one's choosing and pursuing a desired economic activity have in the past been attributed the same level of importance as personal rights. With the ebb and flow of time political interference has become more prominent thus eroding the concept of republic and diluting the concept of rule of law. Although economic liberty has had a short existence in human history it is still viewed as an imperative notion by some to combat special interests lobbying in government institutions and good intentions that often lead to unintended consequences. The aim of this book is to instill a point of view different than the one sold on the mainstream and to add to their knowledge that once in the past an idea emerged to protect individuals from the scourge of feudalism, monarchies and dictators and put in place a higher authority than no other man could dispossess another of his right to work and earn a living.

• Language: English
• Publisher: Joseph Farrugia
• Release date: Dec 18, 2020
• ISBN: 9781393609056

Book preview

Table of Cases

European Court of Human Rights

Adriano Borghini v. Italy, Application No. 21568/93, Judgement of 29 November 1995.

Air Canada v. The United Kingdom, Application No. 18465/91, Judgment of 5 May 1995.

Amato Gauci v. Malta, Application No. 47045/06, Judgment of 15 September 2009.

Baraona v. Portugal Application No. 10092/82, Judgment of 8 July 1987.

Bimer S.A. v. Moldova Application No. 15084/03, Judgment of 10 July 2007.

Bramelid and Malmström v. Sweden, Applications Nos. 8588/79 and 8589/79, Judgment of 1982.

Bulves AD v. Bulgaria, Application No. 3991/03, Judgment of 22 January 2009.

Companies W, X, Y & Z v. Austria, Application No. 7427/76, Judgment of 27 September 1976.

Ferrazzini v. Italy, Application No. 44759/98, Judgment of 12 July 2001.

Gillan and Quinton v United Kingdom, Application No. 4158/05, Judgment of 28 June 2010.

Heinrich v. France,  Application No. 13616/88, Judgment of 22 September 1994

Intersplav v. Ukraine,  Application No. 802/02, Judgment of 9 January 2007.

Jussila v. Finland, Application No. 73053/01. Judgment of 23 November 2006.

Kaira v. Finland, Application No. 27109/95, Judgment of 15 May 1996.

König v. Federal Republic of Germany, Application No. 6232/73, Judgment of 28 June 1978.

Mamidakis v. Greece Application No. 35533/04, Judgment of 11 January 2007.

N.K.M v. Hungary, Application No. 66529/11, Judgment of 4 November 2013.

Pudas v. Sweden, Application No. 10426/83, Judgment of 27 October 1987.

Ringeisen v. Austria, Application No. 2614/65, Judgment of 16 July 1971.

Sporrong and Lönnroth v. Sweden, Application Nos. 7151/75 and 7152/75, Judgment of 23 September 1982.

Traktörer Aktiebolag v. Sweden, Application No. 10873/84, Judgment of 7 July 1989.

Travers and Others v. Italy, Application No. 15117/89, Judgment of 16 January 1995.

Van Marle and others v. the Netherlands, Application Nos. 8543/79, 8674/79, 8675/79 and 8685/79 Judgment of 26 June 1986.

WASA Omsesidigt, Forsakringsbolaget Valands Pensionsstiftelse v. Sweden, Application No. 13013/87, Judgment of 14 December 1988.

European Court of Justice

Case C-347/09 Austria v Ömer and Dickenger [2011] ECR I-08185

Case C-240/97 Spain v European Commission [1999] ECR I-6571

Case T-170/06 Alrosa Company Ltd v European Commission [2007] ECR II-2601 

Case 178/84 Commission v Germany [1987] ECR 1227

Case C-159/94 Commission v France [1997] ECR I-5815

Joined Cases C-163/94 Emilio Sanz de Lera and others [1995] ECR I-4821

Case C-452/04 Fidium Finanz AG v Bundesanstalt für Finanzdienstleistungsaufsicht [2006] ECR I-09521

Case C-438/05 International Transport Workers’ Federation and Finnish Seamen's Union v Viking Line [2007] ECR I-10779

Case C-341/05 Laval v Svenska Byggnadsarbetareförbundet [2007] ECR I-11767

Case C-l 13/89 Rush Portuguesa Limitada v. Office National d'Immigration [1990] ECR I-1417 44

Case C-101/05, Skatteverket v A [2007] ECR 1-11531

Case C-277/05 Société thermale d’Eugénie-les-Bains v Ministère de l’Economie, des Finances et de l’Industrie [2007] ECR I-6415

Case 151/78 Sukkerfabriken Nykøbing Limiteret v. Ministry of Agriculture [1979] ECR 1

––––––––

France

Cass., 24th April 1854, Broyard, Dev., 1854

Cass., 20th August 1867, D.P., 1867

Cour de cassation, 3rd August 1915, Coquerel v. Clément-Bayard

Perren-Sarbach v. Conseil d’Etat du canton du Valais, ATF 103 Ia 259, 262-63 (1977)

Germany

Quintett-Falle Bundesfinanzhof [Federal Tax Court] [BFH], 13th September 1972, Case No. IR 130/70

Monaco-Urteil Bundesfinanzhof  [Federal Tax Court] [BFH], 29th October 1981, Case No.  IR 98/80

Niederlandische-Bruder-Fall Bundesfinanzhof [Federal Tax Court] [BFH], 11th October 1983, Case No. IV R 62/82

India

Azadi Bachao Andolan v. Union of India, 263 ITR 706

Malta

- Cases available on the Ministry of Justice website

Dr. Carmelo Vella et vs. Housing Secretary, Court of Appeal, 30th December 1993

http://www.justiceservices.gov.mt/courtservices/Judgements/script_get_judgement_document.aspx?JudgementID=2531

George Borg vs. Primrose Poultry Products Limited et, First Hall of the Civil Court, per Justice Joseph Zammit McKeon, 16th of January 2012 http://www.justiceservices.gov.mt/courtservices/judgements/script_get_judgement_document.aspx?CaseJudgementID=71749

John Geranzi Limited vs. Commissioner of Inland Revenue, Civil Court, First Hall, (Constitutional Jurisdiction), per Mr. Justice Gino Camilleri, 20th January, 2011

http://www.justiceservices.gov.mt/courtservices/Judgements/script_get_judgement_document.aspx?CaseJudgementID=65339

Nazzareno Bezzina and others vs. Attorney General, Constitutional Court, 18th September 2012

http://www.justiceservices.gov.mt/courtservices/judgements/script_get_judgement_document.aspx?CaseJudgementID=76161

Philip Grech and others vs. Director of Social Accommodation, Constitutional Court, 7th December 2010

http://www.justiceservices.gov.mt/courtservices/Judgements/script_get_judgement_document.aspx?CaseJudgementID=64887

New Zealand

Hart v. O’Connor [1985] 1 NZLR 159

United Kingdom

Alec Lobb (Garages) Ltd [1985] 1 W.L.R. at 183 (Dillon, L.J.)

Clifford Davis Management Ltd. v. W.E.A. Records Ltd [1975] 1 W.L.R. 61 (Eng. C.A.)

Darcy v. Allen, (1603) 77 Eng. Rep. 1260 (Q.B.)

Dominus Rex v. Tooley  80 Eng. Rep. 1055 (King’s Bench 1613)

Earl of Ardglasse v. v. Muschamp 23 Eng. Rep. 438 (1684)

Gwynne v. Heaton 1 Bro. C. C. 1, 9

Lloyds Bank Ltd. v. Bundy [1975] 1 Q.B. 326 (Eng. C.A.)

Rogers v. Parrey 80 Eng. Rep. 1012 (King’s Bench 1613)

Schroeder Music Publishing Co. v. Macaulay [1974] 1 W.L.R. 1308, 1315 (Eng. H.L.)

Tailors of Ipswich 77 Eng. Rep. 1218 (King’s Bench 1611)

Walford v. Miles [1992] 1 All ER 453

Wiseman v. Beake 23 Eng. Rep. 688 (1690)

––––––––

United States of America

Allgeyer v. State of Louisiana, 165 U.S. 578 (1897)

American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184 (1921)

Austin v New Hampshire, 420 U.S. 656 (1975)

Berman v. Parker, 348 U.S. 26 (1954)

Buchanan v. Warley, 245 U.S. 60 (1917)

Chisholm v. Commissioner of Internal Revenue 79 F.2d 14 (2d Cir. 1935)

Commonwealth of Massachusetts v. Mellon, Secretary of the Treasury, et al. Frothingham, 262 U.S. 447 (1923)

Corfield v. Coryll 6 Fed. Cas. 546, no. 3,230 C.C.E.D.Pa. 1823 (on circuit), Supreme Court

Coppage v. State of Kansas 236 U.S. 1 (1915)

Delaware & Hudson Co. v. Commissioner, 65 F. 2d 292 (June 5, 1933)

Dred Scott Plff. in Err., v. John F.A. Sandford, 60 U.S. 393 (1857)

Frank R. Brushaber Appt., v. Union Pacific Railroad Company, 240 U.S. 1 (1916)

Godcharles and Co v. Wigeman, 6 A. 354 (Pa. 1886)

Gregory v. Helvering 293 U.S. 465 (1935)

Hein Hettinga, et al., Appellants v. United States, 677 F.3d 471 (2012)

Herman v. State, 8 Ind. 545 (1855)

Jane Roe, et al., Appellants v. Henry Wade, District Attorney of Dallas County 410 U.S. 113 (1973)

Joseph Lochner v. People of the State of New York, 198 U.S. 45, 25 S. Ct. 539, 49 L.Ed 937 (1905)

Leep v. St. Louis Iron Mtn. & S. Ry. Co. 25 S.W. 75, 77 (Ark. 1894)

Munn v. Illinois, 94 U.S. 113 (1877)

Nebbia v. People of State of New York  291 U.S. 502, 54 S.Ct. 505 (1934)

Paul v. State of Virginia, 75 U.S. 168 (1868)

Railway Express Agency, Inc. v. New York, 336 U.S. 106 (1949)

Sacco and Vanzetti Saenz v Roe, 526 U.S. 489 (1999)

Southern Pacific Company v. Lowe, 247 U.S. 330 (1918)

The Butchers' Benevolent Association of New Orleans v. The Crescent City Live-Stock Landing and Slaughter-House Company.; Paul Esteben, L. Ruch, J. P. Rouede, W. Maylie, S. Firmberg, B. Beaubay, William Fagan, J. D. Broderick, N. Seibel, M. Lannes, J. Gitzinger, J. P. Aycock, D. Verges, The Live-Stock Dealers' and Butchers' Association of New Orleans, and Charles Cavaroc v. The State of Louisiana, ex rel. S. Belden, Attorney-General.; The Butchers' Benevolent Association of New Orleans v. The Crescent City Live-Stock Landing and Slaughter-House Company, 83 U.S. (16 Wall.) 36, 21 L. Ed. 394 (1873)

Toomer v Witsell, 334 U.S. 385 (1984)

United Building and Construction Trades Council v Mayor of Camden, 465 U.S. 208 (1984)

Washington, et al., Petitioners, v. Harold Glucksberg et al., 521 U.S. 702 (1997)

West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937)

Willaimson v. Lee Optical Co, 348 U.S. 483, 75 S.Ct. 461 (1955)

William Adair, Plff. in Err., v. United States 208 U.S. 161 (1908)

Table of Statutes

Malta

-Primary Laws

Constitution of Malta

Income Tax Act, Chapter 123

Financial Markets Act, Chapter 345

Duty on Documents and Transfers Act, Chapter 364

Investment Services Act, Chapter 370

-Subsidiary Laws

Capital Gains (Amendment) Rules, 2005 - Legal Notice 5 of 2005

Interest Rate (Financial Transactions) Order, 2005 - Legal Notice 323 of 2005

Switzerland

Swiss Federal Constitution

Italy

Costituzione della Repubblika Italiana

United States of America

Bill of Rights

Constitution of the United States

Declaration of Independence

Section 735 of US H.R. 933

Conventions

European Convention on Human Rights

Revised European Social Charter

United Nations Declaration on Human Rights

EU Law

Charter of Fundamental Rights of the European Union 

Regulation (EC) No. 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (‘Rome I’) (the ‘Rome I Regulation’)

Council Directive 87/357/EEC (Official Journal L192, 11/07/1987 p. 49-50) of 25 June 1987 on the approximation of the laws of the Member States concerning products which, appearing to be other than they are, endanger the health or safety of consumers.

Directive 2000/35/EC of the European Parliament and of the Council of 29 June 2000 on combating late payments in commercial transactions

Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC

Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’)

Chapter I

GENERAL PRINCIPLES

Brief History

The need to defend and uphold economic liberty and rights has always been felt, particularly in England. In Tailors of Ipswich[5] Edward Coke referred to trade inactivity as "the mother of all evil" while emphasizing for the right to enter into a trade and condemned monopoly as a breach of liberty and freedom[6]. In Tooley[7] the court absolved a person from apprenticeship due to an error of statute interpretation, and in the case Rogers v. Parrey[8] the notion of freedom of contract was upheld as an essential element of the free and open market place where a transaction between two private parties had to accept the limitation on one’s own freedom according to the terms of the contract. The court then recognized that market entry has to be free in order to foster competition and increase efficiency. Perhaps Coke’s most notorious case is that of Dr. Bonham in which he argued that, the imprisonment of Thomas Bonham for practicing his profession without a licence, these statutes served no purpose at all but to infringe on liberties and the court declared that the statute went against the doctrine of common law. The idea that liberty extends to the point where it does not hurt others can be seen from Cato’s Letters, discussed in Chapter 1: "the Power which every Man has over his own Actions, and his Right to enjoy the Fruits of his Labour, Art, and Industry, as far as by it he hurts not the Society, or any Members of it, by taking from any Member, or by hindering him from enjoying what he himself enjoys"[9]. A natural right imbued in an individual unimpaired from exercising his or her liberty so long as it does not infringe rights of others[10]. The economic liberty linked to the theory of Liberalism from the Scottish Enlightenment period viewed freedom of commerce as synonymous with the idea of freedom of the individual, this is reflected in the works of Adam Smith, John Locke and Hume, to nineteenth century laissez faire theorists, to the 20th  century thought of Ludwig von Mises and Hayek, and neoliberalism at the turn of the 21st  century, classical liberals safeguarded property rights, liberty of contract, the free market, and limited government. Economic liberties have seen a sharp decline particularly in the US where it has been intended by the Founders of being one of the unenumerated rights in the Constitution.  The decline of what is now known as Economic Due Process can be clearly seen in the Slaughterhouse cases, Nebbia v. New York[11] and Willaimson v. Lee Optical Co[12]. However, recently certain Court decisions have seen that the requirement of obtaining a license to protect economic interests and some have subsequently been declared as infringing the right to earn a living. After the New Deal programs the US Supreme Court has instead shown an interest to protect personal rights and discard economic liberties or their existence. Because modern American jurisprudence readily protects only those rights it can read in the text of the Constitution, unenumerated rights, like the right to make a living, are only as safe as a legislature sees fit. Once understood to lie in the Privileges and Immunities clauses of the Constitution, many of these unenumerated rights effectively were ousted from the Constitution in the 1930s in order to make room for the modern regulatory state.

The Supreme Court of the United States during the late 1930s has generally ignored property rights and economic liberties while giving other rights pre-eminence. Siegan states that "legislatures have great difficulty in restraining freedom of speech or press, and almost none in curtailing freedom of enterprise[13]. For Madison no right should be preferred to another: I see no reason why the rights of property which chiefly bears the burden of Government & is so much an object of Legislation should not be respected as well as personal rights in the choice of Rulers"[14]. Therefore, during these times economic freedom was considered at par with individual freedom. Human rights promote the right to free speech etc. However economic freedom is an important aspect and bypassed as a secondary type of liberty. Milton Friedman made the case for a basic legal constitution to act as a safeguard to economic rights and liberties which would allow the advancement of industrial and commercial activity. This would not only create a robust democratic system, but bring prosperity and the rule of law[15].

Certain British dominions such as Australia, New Zealand[16] and Canada[17]   absorbed the influence which the Magna Carta left in their legal systems, and the Charter influenced generally those states that branched out from the British Empire[18].

The 1789 French revolution introduced the notion of economic freedom based on natural law and economic theories in Switzerland transposed in the Constitution of 1874. The Constitution under the Powers of the Confederation obliges both the Confederation and the Cantons to respect economic freedom as delineated in Article 94. Other provisions include property rights[19] and expropriation[20] has to be fully compensated according to the Federal Constitution of Switzerland of 1999. Unlike the US Constitution, Article 27 guarantees Economic Freedom to private individuals including the freedom to choose one’s profession, free access and exercise of private economic activity. The protection of economic freedom in the US Constitution is protected by the Immunities and Privileges Clause, Takings Clause, Equal Protection Clause, Commerce Clause and the Contract Clause. The federal government in Switzerland can restrict the economic freedom clause if permitted by the federal constitution while the cantons are necessitated to act within the definition of economic freedoms when police power or the public interest is pursued.

Although the word ‘economic’ is not found in the US constitution, unlike the Swiss constitution, one is surely to come across the word property rights. James Madison, in a famous essay said that property includes the things that are in our soul[21]. He described the properties we have in our options and conscious which are the things most purely our own. In Herman v. State, Judge Perkins declared that the liquor prohibition law was contrarian to the natural rights and the definition of liberty as laid down in the US constitution: "the right of liberty and pursuing happiness secured by our constitution, embraces the right, in each compos mentis individual, of selecting what he will eat and drink"[22]. The material property, according to Madison, connects to the more sacred possession of each individual. The material then becomes the protector of our souls and consciousness and a government is established to protect the combination of both – a possible reference to freedom of conscience.

Economic Liberties as Natural Rights

The idea that natural rights include economic liberties is evidenced in the Ninth Amendment of the US Constitution which reads: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." Here, other rights retained by the people refer to natural rights. The Ninth and Tenth Amendments, which restricts federal government powers according to the Constitution, reiterate the initial concept of liberty found in the Declaration of Independence in that rights are both enumerated and unenumerated and the government’s power is always delegated to it, as enumerated in the Constitution or implicit in that enumeration. Thus, rights are not enacted through government as the people are endowed with rights by nature through the exercise of which they themselves create the government in order to protect these rights, and thus the concept that the government is vested with a primordial sovereignty is dispelled as legitimacy flows from the people’s political act, and therefore their will. The Constitution’s legitimacy is a function of whether the Framers consented to the government only those powers they first had, as individuals, to grant it. In summary, the Constitution is positive law to the extent that it is a reflection of natural law.

Sherman’s second amendment states that people possess natural rights retained by them when they go into society.  The meaning of natural rights can be explained by reading Sherman’s draft: "The people have certain natural rights which are retained by them when they enter into society[23]. Moreover, he uses the same terminology found in the Ninth Amendment in the following passage: The rights retained by the people are characterized as natural rights". Among the examples of natural rights is property acquisition. Natural law therefore serves as a regulator to positive law.

So if natural law is indeed an economic liberty proponent then it should be evidenced in various parts of the world.  Yet, not every advocate of economic liberty views natural law as a spring from which economic freedoms derive. Ludwig von Mises viewed liberty as appertaining to the physical world and absent from the human conscience: "It does not promise men happiness and contentment, but only the most abundant possible satisfaction of all those desires that can be satisfied by the things of outer worlds"[24]. Mises was unapologetic about what critics derided as the shallowness of liberalism, for he believed these traits had an unparalleled capacity to generate wealth. Hayek did not favour natural law as a legitimate basis for rights, in his opinion it was the process referred to as spontaneous order which created rights.

Under Roman law in general, one can notice the autonomy of the person which is the principal element of the system including enforcement and unfettered rights to enter into a contract. Principles of individual ownership constitute a wide share of which any legal system is to operate and if the idea that not everyone owes anyone a living then there is an entitlement or rather a right to be free from forceful interference. Book II of Justinian dealing with common and private property including air, beaches and seas are held common while land, chattels and other immoveables are private. The flow from the time of Justinian of natural law which has served as a basis for both civil and common law jurisdictions is often diminished by modern Constitutional theories in both systems. For Blackstone there is no one who will sow unless he is able to reap, meaning that if there are no gains in the first place the undertaking will not be pursued, which is a concept akin to the free market idea[25].

Some commentators argue that what is relevant is what is stated in the Constitution rather than what the original framers intended. Proponents of this argument fail to appreciate that natural law has a greater significance which cannot be