Economic Rationalities of Governance and Ambiguity in the Criminalization of Cartels

摘要

In July 2009, Australia introduced criminal offences and jail for collusive conduct (price fixing, output restriction, market allocation and bid rigging) in markets. The substance of the justification for criminalization of cartel conduct is ‘blindly’ economic. It does not spring from a sense of moral or political outrage at collusion in the market. Rather, it is justified on the basis of effective regulatory technique, the need to deter economically harmful behaviour. This paper examines the rationality of anti-cartel law from the point of view of the ‘legal consciousness’ of 25 business people who have faced enforcement action for cartel conduct. Their justifications for their own behaviour in light of the law tell us about how they believe the law can be legitimated. This is compared with policy and scholarly rationales for criminal anti-cartel law. The paper finds that, among business people who have been made subject to the anti-cartel law, there are similar differences and ambiguities about the rationale for criminal anti-cartel law, and the very meaning of acting economically, as there are among scholars and policy elites. This pinpoints one place of instability in the legitimacy of economic rationalities of regulation and governance in action.