The Law in Blog

June 29, 2005 10:17 AM by Gary Galles (Archive)

The roots of America’s governance problems are almost continually discussed. But they are far from new, because they trace back to a mistaken approach to government. Fortunately, this problem was dissected over a century and half ago by Frederic Bastiat, among history’s most ardent and eloquent defenders of liberty, whose June 30, 1801, birthday we celebrate tomorrow.

In particular, in his 1850 classic, The Law, Bastiat laid out the appropriate role of law--that is, of government--a sharply delineated, limited role that has long been ignored. In a very small book, he clearly and powerfully laid out central principles of law which are now almost exclusively honored in the breach.

Unfortunately, however, few today, especially young people, are willing to invest the time in even a short book that promises major insights (Mises Institute readers being notable exceptions). Even the Reader’s Digest condensed books that were once popular are now too time-intensive for many.

Therefore, in the hope that some in the always-online generation might have heard about The Law, but find its brief contents too much to brave, here is a super-condensed version, offered in the hope that it will inspire more thorough, thoughtful reading.

The law perverted! And the police powers of the state perverted along with it! The law, I say, not only turned from its proper purpose but made to follow an entirely contrary purpose! The law become the weapon of every kind of greed! Instead of checking crime, the law itself guilty of the evils it is supposed to punish!

Life, faculties, production--in other words, individuality, liberty, property--this is man. And in spite of the cunning of artful political leaders, these three gifts from God precede all human legislation, and are superior to it. Life, liberty, and property do not exist because men have made laws. On the contrary, it was the fact that life, liberty, and property existed beforehand that caused men to make laws in the first place.

What, then, is law? It is the collective organization of the individual right to lawful defense.

Each of us has a natural right--from God--to defend his person, his liberty, and his property...it follows that a group of men have the right to organize and support a common force to protect these rights constantly. Thus the principle of collective right--its reason for existing, its lawfulness--is based on individual right. And the common force that protects this collective right cannot logically have any other purpose or any other mission than that for which it acts as a substitute. Thus, since an individual cannot lawfully use force against the person, liberty, or property of another individual, then the common force--for the same reason--cannot lawfully be used to destroy the person, liberty, or property of individuals or groups.

Force has been given to us to defend our own individual rights...Since no individual acting separately can lawfully use force to destroy the rights of others, does it not logically follow that the same principle also applies to the common force that is nothing more than the organized combination of the individual forces?

The law is the organization of the natural right of lawful defense. It is the substitution of a common force for individual forces. And this common force is to do only what the individual forces have a natural and lawful right to do: to protect persons, liberties, and properties; to maintain the right of each, and to cause justice to reign over us all.

No one would have any argument with government, provided that his person was respected, his labor was free, and the fruits of his labor were protected against all unjust attack...The state would be felt only by the invaluable blessings of safety provided by this concept of government.

...thanks to the non‑intervention of the state in private affairs, our wants and their satisfactions would develop themselves in a logical manner... We would not see the great displacements of capital, labor, and population that are caused by legislative decisions.

But, unfortunately, law by no means confines itself to its proper functions...it has acted in direct opposition to its own purpose. The law has been used to destroy its own objective: It has been applied to annihilating the justice that it was supposed to maintain; to limiting and destroying rights which its real purpose was to respect. The law has placed the collective force at the disposal of the unscrupulous who wish, without risk, to exploit the person, liberty, and property of others. It has converted plunder into a right, in order to protect plunder. And it has converted lawful defense into a crime, in order to punish lawful defense

The law has been perverted by the influence of two entirely different causes: stupid greed and false philanthropy.

When [people] can, they wish to live and prosper at the expense of others...

Man can live and satisfy his wants only by ceaseless labor...This process is the origin of property. But it is also true that a man may live and satisfy his wants by seizing and consuming the products of the labor of others. This process is the origin of plunder... men will resort to plunder whenever plunder is easier than work.

It is evident, then, that the proper purpose of law is to use the power of its collective force to stop this fatal tendency to plunder instead of to work. All the measures of the law should protect property and punish plunder.

...men seek to balance their conflicting interests by universal plunder. Instead of rooting out the injustices found in society, they make these injustices general. As soon as the plundered classes gain political power...They do not abolish legal plunder. Instead, they emulate their evil predecessors by participating in this legal plunder...

It is impossible to introduce into society a greater change and a greater evil than this: the conversion of the law into an instrument of plunder...

...if law were restricted to protecting all persons, all liberties, and all properties; if law were nothing more than the organized combination of the individual’s right to self defense; if law were the obstacle, the check, the punisher of all oppression and plunder…If the law were confined to its proper functions…those who voted could not inconvenience those who did not vote.

Under the pretense of organization, regulation, protection, or encouragement, the law takes property from one person and gives it to another...

As long as it is admitted that the law may be diverted from its true purpose--that it may violate property instead of protecting it…The law has come to be an instrument of injustice.

...illegal plunder, such as theft or swindling, which the penal code defines, anticipates, and punishes... is not this kind of plunder that systematically threatens the foundations of society...The war against illegal plunder has been fought since the beginning of the world...The law itself conducts this war, and…should always maintain this attitude toward plunder.

But it does not always do this. Sometimes the law defends plunder and participates in it…Sometimes the law places the whole apparatus of judges, police, prisons, and gendarmes at the service of the plunderers...

But how is this legal plunder to be identified? Quite simply. See if the law takes from some persons what belongs to them, and gives it to other persons to whom it does not belong. See if the law benefits one citizen at the expense of another by doing what the citizen himself cannot do without committing a crime.

Then abolish this law without delay, for it is not only an evil itself, but also it is a fertile source for further evils…it will spread, multiply, and develop into a system.

The person who profits from this law will complain bitterly, defending his acquired rights…Do not listen to this sophistry by vested interests. The acceptance of these arguments will build legal plunder into a whole system…an attempt to enrich everyone at the expense of everyone else; to make plunder universal under the pretense of organizing it.

...when plunder is abetted by the law, it does not fear your courts, your gendarmes, and your prisons. Rather, it may call upon them for help.

This question of legal plunder must be settled once and for all, and there are only three ways to settle it: The few plunder the many. Everybody plunders everybody. Nobody plunders anybody. We must make our choice among limited plunder, universal plunder, and no plunder.

No legal plunder: This is the principle of justice, peace, order, stability, harmony, and logic.

...can anything more than the absence of plunder be required of the law? Can the law--which necessarily requires the use of force--rationally be used for anything except protecting the rights of everyone? I defy anyone to extend it beyond this purpose without perverting it and, consequently, turning might against right. This is the most fatal and most illogical social perversion that can possibly be imagined…the true solution--so long searched for in the area of social relationships--is contained in these simple words: Law is organized justice.

When justice is organized by law--that is, by force--this excludes the idea of using law (force) to organize any human activity whatever... For truly, how can we imagine force being used against the liberty of citizens without it also being used against justice, and thus acting against its proper purpose?

...the most popular fallacy of our times. It is not considered sufficient that the law should be just; it must be philanthropic. Nor is it sufficient that the law should guarantee to every citizen the free and inoffensive use of his faculties…Instead, it is demanded that the law should directly extend welfare, education, and morality throughout the nation...These two uses of the law are in direct contradiction to each other. We must choose between them. A citizen cannot at the same time be free and not free.

Legal plunder has…roots...in false philanthropy...the idea opposite to that of property. When a portion of wealth is transferred from the person who owns it--without his consent and without compensation, and whether by force or by fraud--to anyone who does not own it, then I say that property is violated; that an act of plunder is committed.

…this act is exactly what the law is supposed to suppress, always and everywhere. When the law itself commits this act that it is supposed to suppress…plunder is still committed.

We must remember that law is force, and that, consequently, the proper functions of the law cannot lawfully extend beyond the proper functions of force.

When law and force keep a person within the bounds of justice, they impose nothing but a mere negation. They oblige him only to abstain from harming others. They violate neither his personality, his liberty, nor his property. They safeguard all of these. They are defensive; they defend equally the rights of all.

...this negative concept of law is so true that the statement, the purpose of the law is to cause justice to reign, is not a rigorously accurate statement. It ought to be stated that the purpose of the law is to prevent injustice from reigning. In fact, it is injustice, instead of justice, that has an existence of its own. Justice is achieved only when injustice is absent.

But when the law, by means of its necessary agent, force, imposes upon men a regulation of labor, a method or a subject of education, a religious faith or creed--then the law is no longer negative; it acts positively upon people. It substitutes the will of the legislator for their own wills; the initiative of the legislator for their own initiatives...they lose their personality, their liberty, their property.

Try to imagine a regulation of labor imposed by force that is not a violation of liberty; a transfer of wealth imposed by force that is not a violation of property...you must conclude that the law cannot organize labor and industry without organizing injustice.

But the politician never gives this a thought. His mind turns to organizations, combinations, and arrangements…to remedy the evil by increasing and perpetuating the very thing that caused the evil in the first place: legal plunder. We have seen that justice is a negative concept. Is there even one of these positive legal actions that does not contain the principle of plunder?

…as it takes from some persons and gives to other persons…the law…is an instrument of plunder.

...we repudiate only forced organization, not natural organization. We repudiate the forms of association that are forced upon us, not free association. We repudiate forced fraternity, not true fraternity. We repudiate the artificial unity that does nothing more than deprive persons of individual responsibility.

How did politicians ever come to believe this weird idea that the law could be made to produce what it does not contain...?

To these intellectuals and writers, the relationship between persons and the legislator appears to be the same as the relationship between the clay and the potter...While mankind tends toward evil, the legislators yearn for good…Since they have decided that this is the true state of affairs, they then demand the use of force in order to substitute their own inclinations for those of the human race.

Please remember sometimes that this clay...which you so arbitrarily dispose of, are men! They are your equals! They are intelligent and free human beings like yourselves! As you have, they too have received from God the faculty to observe, to plan ahead, to think, and to judge for themselves!

…is not liberty the freedom of every person to make full use of his faculties, so long as he does not harm other persons while doing so? Is not liberty the destruction of all despotism--including, of course, legal despotism? Finally, is not liberty the restricting of the law only to its rational sphere of organizing the right of the individual to lawful self‑defense; of punishing injustice?

…I do dispute [legislators] right to impose these plans upon us by law--by force--and to compel us to pay for them…They need only to give up the idea of forcing us to acquiesce...that we be permitted to decide upon these plans for ourselves; that we not be forced to accept them, directly or indirectly, if we find them to be contrary to our best interests or repugnant to our consciences.

It is not true that the legislator has absolute power over our persons and property. The existence of persons and property preceded the existence of the legislator, and his function is only to guarantee their safety.

It is not true that the function of law is to regulate our consciences, our ideas, our wills, our education, our opinions, our work, our trade, our talents, or our pleasures. The function of law is to protect the free exercise of these rights, and to prevent any person from interfering with the free exercise of these same rights by any other person.

Since law necessarily requires the support of force, its lawful domain is only in the areas where the use of force is necessary.

Every individual has the right to use force for lawful self‑defense. It is for this reason that the collective force --which is only the organized combination of the individual forces--may lawfully be used for the same purpose; and it cannot be used legitimately for any other purpose.

Law is solely the organization of the individual right of self‑defense which existed before law was formalized.

The mission of the law is not to oppress persons and plunder them of their property...Its mission is to protect persons and property…if the law acts in any manner except to protect them, its actions then necessarily violate the liberty of persons and their right to own property.

Law is justice. In this proposition a simple and enduring government can be conceived…a government whose organized force was confined only to suppressing injustice.

Under such a regime, there would be the most prosperity--and it would be the most equally distributed. As for the sufferings that are inseparable from humanity, no one would even think of accusing the government for them. This is true because, if the force of government were limited to suppressing injustice, then government would be as innocent of these sufferings as it is now innocent of changes in the temperature.

And if government were limited to its proper functions, everyone would soon learn that these matters are not within the jurisdiction of the law itself...

Law is justice. And it is under the law of justice--under the reign of right; under the influence of liberty, safety, stability, and responsibility--that every person will attain his real worth and the true dignity of his being. It is only under this law of justice that mankind will achieve…God’s design for the orderly and peaceful progress of humanity.

... whatever the question under discussion…whether it concerns prosperity, morality, equality, right, justice, progress, responsibility, cooperation, property, labor, trade, capital, wages, taxes, population, finance, or government...I invariably reach this one conclusion: The solution to the problems of human relationships is to be found in liberty.

And does not experience prove this? Look at the entire world. Which countries contain the most peaceful, the most moral, and the happiest people? Those people are found in the countries where the law least interferes with private affairs; where government is least felt; where the individual has the greatest scope, and free opinion the greatest influence; where administrative powers are fewest and simplest; where taxes are lightest and most nearly equal, and popular discontent the least excited and the least justifiable; where individuals and groups most actively assume their responsibilities, and, consequently, where the morals of admittedly imperfect human beings are constantly improving; where trade, assemblies, and associations are the least restricted; where labor, capital, and populations suffer the fewest forced displacements…the happiest, most moral, and most peaceful people are those who most nearly follow this principle: Although mankind is not perfect, still, all hope rests upon the free and voluntary actions of persons within the limits of right; law or force is to be used for nothing except the administration of universal justice.

...leave people alone. God has given organs to this frail creature; let them develop and grow strong by exercise, use, experience, and liberty.

Away with the whims of governmental administrators...now that the legislators and do‑gooders have so futilely inflicted so many systems upon society, may they finally end where they should have begun: May they reject all systems, and try liberty; for liberty is an acknowledgment of faith in God and His works.

No one has ever laid out more clearly than Frederic Bastiat that the only just use of law is to defend liberty and the voluntary arrangements people make when given that liberty. As The Law makes clear, no other approach is consistent with “liberty and justice for all.�