The perversion of the law

Book review: French economist and philosopher Frederic Bastiat wrote The Law in 1850. It should be required reading for law makers, judges and legal practitioners. Bastiat argues that the law exists in a very narrow sense to protect the individual's body, liberty and property. Beyond that, tyranny beckons. 

Bastiat, in the years immediately following the horrors of the French revolution, was moved to write The Law to warn his fellow countrymen of what happens to a society when the law becomes a weapon of those in power, rather than a tool to protect the rights and freedoms of individuals.

 
Frederic Bastiat was a man ahead of his time whose experiences in the aftermath of the French revolution and the subsequent overreach by government moved him to address his life and his studies to the examination of freedom and liberty.

His most famous work is The Law, in which he outlined the function of the law to protect everyone’s person, his liberty and his property. The law, he said, had precise limits. If government extends beyond these limits – such as into the provision of services such as education and electricity – there is no restraint on its power and it can continue to grow endlessly.

“The law, I say, not only turned from its proper purpose but was made to follow an entirely contrary purpose! The law became the weapon of every kind of greed! Instead of checking crime, the law itself became guilty of the evils it is supposed to punish.”

Bastiat wrote that the proper function of the law was to protect the rights and freedoms of individuals from those – whether individuals or groups – who would attempt to destroy these rights.

“The law is the organisation of the natural right of lawful defense. It is the substitution of 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 all.”

Bastiat emphasised what he called the negative conception of law:  the law exists to stop bad actions being done to individuals or their property.

“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 these. But when the law, by means of its necessary agent, force, imposes upon men a regulation of labour, a method or a subject of education, a religious faith of creed – then the law is no longer negative; it acts positively upon people.”

The tendency for governments and politicians to amass power and stature by imposing positive rights upon citizens demonstrates the degree to which the law has become perverted.

Bastiat saw the transfer of property through force or coercion, such as through taxation, as “legalised plunder.”

“Now since man is naturally inclined to avoid pain – and since labour is pain in itself – it follows that men will resort to plunder whenever plunder is easier than work. History has shown this quite clearly.”

When plunder is abetted by the law, it does not fear the courts, the police or the prisons. In fact, it may call upon them for help.

To rectify this, Bastiat believed plunder should be made more painful than plunder. Hence, it should not be possible for anyone to grow rich by influencing the law. Rather, the accumulation of wealth should be achieved by the time-honoured method of serving the voluntary demands of consumers.

“Men naturally rebel against the injustice of which they are victims. Thus, when plunder is organised by law for the profit of those who make the law, all the plundered classes try somehow to enter – by peaceful or revolutionary means – into the making of laws.”

Bastiat wrote that the present day delusion is an attempt to make everyone rich at the expense of everyone else, to make plunder universal under the pretence of organising it.

“When a politician views society from the seclusion of his office he is struck by the spectacle of inequality that he sees. He deplores the deprivations, which are the lot of so many of our brothers, deprivations which appear even sadder when contrasted with luxury and wealth. Perhaps the politician should ask himself whether this state of affairs has not been caused by old conquests and lootings, and by more recent legal plunder. But the politician never gives this a thought. His mind turns to organisations, combinations and arrangements – legal or apparently legal. He attempts to remedy the evil by increasing and perpetuating the very thing that caused the evil in the first place: legal plunder.”

Governments and politicians cloak their actions under false philanthropy, though Bastiat was fully in favour of voluntary philanthropy.

“Socialism,” he wrote, “like the ancient dreams from which it springs, confuses the distinction between government and society. As a result of this, every time we object to a thing being done by government, the socialists conclude that we object to it being done at all.”

Underlying this is a fatally flawed presumption among socialists and governments that free individuals are predisposed to greed, to exploitation, to monopolies, and super-individualism.

So when anyone opposes state education, or state-enforced equality, socialists assume the objectors are opposed to education, or to equality. This, of course, is nonsense. Free individuals support equality on merit. They support education, but not one that is rammed down their throats. They support free enterprise and the right to enter into agreements with who they chose (voluntary association). And experience demonstrates that given a free hand, they engage in charity and other forms of voluntary philanthropy.

At a recent US conference on affirmative action, companies were asked whether they would suspend their affirmative action programmes if the government removed this as official policy. The vast majority said they would continue voluntarily with these programmes out of a sense of social justice and because they deemed these programmes good for the business and their reputation.

“If the natural tendencies of mankind are so bad that it is not safe to permit people to be free, how is it that the tendencies of these organisers are always good?”

If we are free, the socialists assume we will cease to associate with each other or help each other, “to love and to succour our unfortunate brothers, to study the secrets of nature, and to strive to improve ourselves to the best of our abilities.”

Bastiat reminds us, from 160 years ago, that freedom and liberty are in fact the business of the law. It is good to be reminded of this.