What does it mean to be a nation of laws? To extend this further, what does it mean to be a nation of laws, not men? Frederic Bastiat explained this quite simply in his classic work, The Law, originally published as a pamphlet in 1850 – also the year of his death. Bastiat, a French economist, did most of his writing during the time of the Revolution of 1848, and much of “The Law” is devoted to specific critiques of the socialistic plans of many of his contemporaries.
Many classical liberals and libertarians cite his work as the definitive work on the subject of proper law. As Walter Williams writes in the foreword to this edition, “Like others, Bastiat recognized that the greatest single threat to liberty is government.”
What does Bastiat say?
We hold from God the gift which includes all others. This gift is life – physical, intellectual, and moral life.
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 preceded all human legislation, and are superior to it.
With these words, Bastiat mirrors the sentiment of the U.S. Declaration of Independence:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain Unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.
It is from this basis that Bastiat builds his support for proper law, and therefor proper government:
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….if every person has the right to defend – even by force – his person, his liberty, and his property, then it follows that a group of men have the right to organize and support a common force to protect these rights constantly….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.
If this is true, then nothing can be more evident than this: The law is the organization of the natural right of lawful defense.
It would be enough if Bastiat ended his work here – on page three. Man has a right to his property and to defend his property. As he has this right, he also has the right to join others for this purpose or to license to others for service toward this end. This is purely a defensive purpose – protection of one’s property, rightfully earned.
Force is given to man for this defense – to paraphrase Bastiat, can it be rightly said that force was given for the purpose of offense, of theft? It cannot be. As it cannot be, man can therefore not extend this license of force to others to act in an offensive manner on his behalf.
Fortunately, Bastiat did not end here. He goes on to further expand on this idea:
If a nation were founded on this basis, it seems to me that order would prevail among the people, in thought as well as in deed. It seems to me that such a nation would have the most simple, easy to accept, economical, limited, non-oppressive, just, and enduring government imaginable – whatever its political form might be.
Consider the concept often stated: ignorance of the law is no excuse. Such a concept can be a rational expectation in a nation where laws were limited to the purposes as outlined by Bastiat. If laws are limited to those required in defense of property, ignorance would be no excuse. Theft, physical aggression, and other forms of encroachment are quite readily understandable to the majority of people. A jury of one’s peers would seem quite qualified to make a determination of guilt or innocence based on concepts as defined by Bastiat – respect and protection of property and life.
In such a state, Bastiat suggests the political form matters not. Consider this: in such a state, would it matter if the form was monarchy, dictatorship, republic, or democracy? It seems as long as each individual’s property and life is respected (and not encroached) by the law, the form matters not. Yet the debate today is couched in terms of democracy good, all other forms bad. But what good is democracy if the minority can by aggressed by the majority? It is not the form that is important, but the function. Bastiat rightly recognizes that the only proper function of government- whatever its form – is to act in defense of life and property.
It is interesting how much of the United States Constitution was dedicated to form – one president, composition of the two branches of the congress, the judicial branch, recurrence and process for elections, etc. Certainly, there was also comment on function – yet the one absolute statement of protection of property rights is missing.
It is also interesting that the only thing remaining from the Constitution is the form. Nothing of the function remains (assuming there was ever an intent for the function to be limiting to the government in the first place).
Of course, Bastiat sees that government has been perverted almost everywhere, turning law into a form of legalized plunder:
But, unfortunately, law by no means confines itself to its proper functions….The law has been used to destroy its own objective: It has been applied to annihilating the justice it was supposed to maintain; to limiting and destroying the rights which its real purpose was to respect….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.
Where law has been used to take from one that which he has earned and give to another who has not properly earned it, the law has been perverted – doing that which no individual has a right to do. An individual has no license to steal, therefore cannot grant this license to the government to do so on his behalf. In such a case, everyone wants to take franchise in government – either directly or indirectly influencing plunder toward his benefit.
The result is simple: instead of law being used merely for defensive purposes, it is now a tool to be controlled by those who want to live at the expense of others. To paraphrase Hoppe, it becomes a competition for “bads” as opposed to a competition for “goods.” In the competition for “bads,” the worst tend to win – after all, what personality type desires to live at another’s expense, or dictate and control the actions that others may take, or is willing to act in a role of determining life and death over millions?
Bastiat offers his definition of legalized plunder:
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 of the law benefits one citizen at the expense of another by doing what the citizen himself cannot do without committing a crime.
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.
I say that 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, I say that plunder is still committed….
With this perversion of the law comes conflict at all levels of society. Classes are formed and are pitted against each other, each one looking for favors or for specialized protection – not in the defensive sense, but in the sense of positive “rights.” Rights to food, housing, a job, medical care, transportation, etc.
Bastiat offers an example of a government staying within its proper boundaries, looking to the United States – remember, this is 1850. He uses this to demonstrate the minimal social strife when a government stays within its proper purpose:
There is no country in the world where the law is kept more within its proper domain: the protection of every person’s liberty and property. As a consequence of this, there appears to be no country in the world where the social order rests on a firmer foundation.
Bastiat points out that even in the example of the United States, there are two significant issues – each with the potential to endanger “the public peace.”
They are slavery and tariffs. These are the only two issues where, contrary to the general spirit of the republic of the United States, law has assumed the character of a plunderer.
It is a most remarkable fact that this double legal crime – a sorrowful inheritance from the Old World – should be the only issue which can, and perhaps will, lead to the ruin of the Union.
Recall, Bastiat wrote this in 1850 – well before the war that destroyed the philosophical concept of the Union. Certainly there were rumblings even in 1850, yet Bastiat must be given credit for seeing these two issues as the issues that could, and likely would, lead to the end of the idea of law in the United States in the proper sense.
Depending on your viewpoint, there are several possible dates one might identify as the most significant in ending the idea of America. One can certainly make a case that the worst was 1865, when it was demonstrated that, by force, men must stay under a government not of their own choosing. This moved the United States into the camp occupied by virtually every other government- we will not let you leave. There is no doubt that the end of the war brought the end to slavery – unequivocally a good outcome. (It is beyond the scope of this discussion, however many have postured that there were many other, less bloody ways to achieve this result – and with mechanization, the economic advantage of slavery was in any case dying.)
Bastiat rightly saw the two issues that would cause division in the United States political body – slavery and tariffs. Whatever one’s interpretation of the roots of Lincoln’s war, the mix always includes these two as the primary if not only reasons. Bastiat wrote of this eleven years before the event.
A nation of laws, not men. When laws are made to defend that which an individual has a right to defend, these laws signify a nation of laws. When government force is limited to the force that can be justifiably exerted by an individual, again this signifies a nation of laws.
When laws are written legalizing actions that are in violation of man’s life and property, these are the laws of men. Once this line is crossed, all manner of “laws” are possible – where is the justification to draw another line? On what basis – philosophically, morally, or ethically? “This much perversion of the law, but no more.” Why? If this much is allowable, why not one step more? On what basis can you refuse?
This is the state of virtually every government around the world. Virtually anything deemed lawful by the government becomes lawful. The question is not one of absolute protection of property rights or not, the question is one only of degrees of encroachment. Once this is the discussion, law has failed its only purpose. It becomes a tool to oppress rather than a tool to defend.
Man does not need to formalize government in order to be oppressed – there are always plenty of individuals willing to take on the role of oppressor without the sanction of the victim.