The law become the tool of every kind of avarice, instead of being its check!

With these words Frédéric Bastiat (49) describes the perversion of law in his times, and which continues into our own. Indeed, his infamous 1850 pamphlet entitled The Law details this perversion in such a moving manner that it continues to serve the cause of Liberty to this very day. It is in this work that Bastiat explains the only true function of law and how it relates to what we would call Minarchy, or limited government. In light of the foolishness so commonly found in today’s political debates (if they can even be called that), I find it necessary to not only elaborate upon Bastiat’s ideas but also connect those ideas to Anarcho-Capitalism as a whole in order render those ideas more secure in footing.

Rights As Source of Law

To begin, we need to understand how Bastiat himself understood law. He understood law, correctly, as being an emanation of man’s natural rights. He describes this process in the following manner (50):

It is not because men have made laws, that personality, liberty, and property exist. On the contrary, it is because personality, liberty, and property exist beforehand, that men make laws. What, then, is law? As I have said elsewhere, it is the collective organization of the individual right to lawful defense.

Put another way, law comes from the human right of self-defence. If a single man possesses the right to defend himself, then he and others may combine efforts to extend and organize defence (52). It is in this manner that law comes about; it is right to defence organized on the social level. To put this in perspective, we can consider other rights Bastiat discusses. Property laws come from the fact that man applies his faculties to natural elements to appropriate them for his survival (49), just as one may labor freely (possess freedom in economic exchange) due to the fact that man’s faculties are an inalienable part of his personality (50). If we were to sum up Bastiat’s (correct) understanding of natural law, it would be simply this: due to man’s inherent and inalienable nature, he possesses certain natural rights and that man’s laws are established upon those rights. To deny man these rights, you would have to deny that men own themselves and therefore would be forced to support slavery, for men would have to be owned by other men. Indeed, you would also contradict yourself by the fact that you’d be forced to exercise control over your own body in the process of proving that men do not own themselves; the very act of refutation would cause you to contradict yourself.

Law Acts As Obstacle

As I previously stated, Bastiat understood law as proceeding from natural rights. The law itself, however, takes the form of a barrier or an obstacle through collective force or its threat. And if we recall, this collectively organized force is nothing more than an extension of the individually organized form of force that issues forth from the right to defend yourself. We can understand this clearly from the following passage (53):

It is very evident that the proper aim of law is to oppose the fatal tendency to plunder with the powerful obstacle of collective force; that all its measures should be in favor of property, and against plunder.

Those who are familiar with Bastiat’s writings will recognize that he uses the term “obstacle” a great deal throughout his writings. And this is important because it demonstrates his conception of law. In The Law it is used to describe how force is used to defend people. In the second chapter of his Economic Sophisms—First Series he uses the term to describe the natural (forests, rivers, mountains, etc.) and man-made (brigands, trade restrictions, prohibition of mechanization) challenges that a man’s labor must overcome to remove himself from  the natural condition of destitution.   In that same work, he also defines taxation as “an artificial obstacle that produces exactly the same result as a natural obstacle, its effect is to enhance prices.” (215) It should now be clear that Bastiat sees law as taking the form of that which constrains or inhibits the actions of men, and so it is reasonable to say that a law acts as an obstacle against what people can and cannot do.

Notice that I do not say that law is an obstacle itself. In fact, what law IS depends upon what sphere it manifests; either the proper sphere or any other sphere. The proper sphere of law is the “domain of force” (64), as the law is “the organization of the natural right of lawful defense” (51). When this is achieved, we have justice. Put another way: when law stays within its proper domain of defence, law is justice. When law goes beyond the domain of force, through perversion, there is despotism and disorder. Law stops being about defending ourselves from violent invasion of our rights, but rather it becomes a tool for social engineering and artificial organization. Put in his own words (89):

It is not true that the mission of the law is to regulate our consciences, our ideas, our will, our education, our sentiments, our works, our exchanges, our gifts, our enjoyments. Its mission is to prevent the rights of one from interfering with those of another, in any one of these things.

Law, because it has force for its necessary sanction, can only have the domain of force, which is justice.

From the misapplication of force to realms of human life where it does not belong we see problems arise of forced fraternity, monopolies, and so forth. And when these problems arise, we can know that law has become perverse and false. This perversion of law, as outlined above, comes from two causes (52):

The law has been perverted through the influence of two very different causes—naked greed and misconceived philanthropy.

And henceforth do all the errors of socialism come to us, as we will soon see below.

 

Limits of Law

We now understand man’s rights and the laws of man. We also now know how law becomes perverted and faulty. But what, then, is the limit of such laws? If man has rights, then he may delegate those rights to other parties. But man cannot delegate rights that he himself does not possess. Indeed, how could you entrust to another what you yourself don’t actually have? While this is not the precise wording of Bastiat, it is in keeping with his position stated in The Law. In that work, he asks (50):

For who will dare to say that force has been given to us, not to defend our rights, but to annihilate the equal rights of our brethren? And if this be not true of every individual force, acting independently, how can it be true of the collective force, which is only the organized union of isolated forces?

It is from this process that men have come to use law to exercise rights that they themselves do not possess; namely, the right to plunder (52):

Unhappily, law is by no means confined to its own sphere. Nor is it merely in some ambiguous and debatable views that it has left its proper sphere. It has done more than this. It has acted in direct opposition to its proper end; it has destroyed its own object; it has been employed in annihilating that justice which it ought to have established, in effacing amongst Rights, that limit which it was its true mission to respect; it has placed the collective force in the service of those who wish to traffic, without risk and without scruple, in the persons, the liberty, and the property of others; it has converted plunder into a right, that it may protect it, and lawful defense into a crime, that it may punish it.

 

From this point, we can sum everything up nicely with the following statement: man has natural rights that precede law, enable laws to come into being, and allow us to judge whether or not a law is legitimate or perverse. Laws that seek to induce friendship or aid against someone’s will are false laws. Laws that manipulate prices and prevent voluntary exchange are false laws. With this in mind, let us now take this out of the realm of theory and into our everyday lives. I have chosen three news articles, all from today and largely at random, to see how perverted law throws obstacles in front of us all.

Example #1

As of 5/9/16, Uber and Lyft have suspended services in the city of Austin. They have decided to leave because some voters have voted to require the companies to fingerprint drivers as part of their background check process (O’Brien). How does this relate to what we have learned from Bastiat? First we can clearly see that such a law, regardless of how it came to be, is a perversion rather than a thing of justice. Do men have the right to intercede between the economic exchanges of willing participants? No. If my neighbor buys cookies from Girl Scouts, I cannot run over and slap the cookies out of his hand in the name of public safety. If I cannot do it individually, neither can a collective of people do it him. Therefore, how can the state claim a right that no one actually possesses? Second we can see that this law is an obstacle between willing people exchanging goods and services. It is the direct equivalent to an individual using force, or its threat, to prevent one person from trading with another. In this regard, I find these words from Bastiat most applicable (89):

It is not true that the legislator has absolute power over our persons and property, since they pre-exist, and his work is only to secure them from injury.

It is not the place of the city of Austin to tell Uber or Lyft how to operate their business. If they injure people, then let the law come into play. But until that happens, it is not their place to use violence to stifle business.

Example #2

At a meeting regarding healthcare on 5/7/16, the Pope claimed that healthcare is a “right” and not a “privilege” (Wooden). This is not a law, though unfortunately such erroneous thinking has come to create laws across the planet that mandate universal healthcare. We can recall, for instance, the passage of the Obamacare mandate in the United States. Again, we may see two things very clearly. First man does not have the right to healthcare, or rather, man cannot force another to render him healthcare against his will. This is a so-called positive right (a right to X or Y, for instance), that when enacted in law, makes one man the slave of another; it forces the medical provider to use his property against his will. Second a law that turns healthcare into a right must force many obstacles on people. It forces people to pay a portion of their income into something they may not necessary want. It forces medical personnel to perform actions they may not otherwise perform. It is exactly the “misconceived philanthropy” (52) that Bastiat understood as a cause of the perversion of law. What say Bastiat? 

Depart from this point, make the law religious, fraternal, equalizing, industrial, literary, or artistic, and you will be lost in vagueness and uncertainty; you will be upon unknown ground, in a forced Utopia, or, what is worse, in the midst of a multitude of contending Utopias, each striving to gain possession of the law, and to impose it upon you; for fraternity and philanthropy have no fixed limits, as justice has. Where will you stop? Where is the law to stop?

Example #3

In our last article, dated 5/9/16, the various facets of the minimum wage in Maine are discussed in unfortunately brief detail (Koenig). One portion of it is worth reprinting here:

‘I’m not going to pay teenagers $10 an hour to make milkshakes,’ she told the Monitor, which reported that according to at least one study, a 10 percent rise in the minimum wage can be expected to cause at least a 1 percent drop in teen employment for reasons just like this.

Is the minimum wage a just law or a perverse one? The answer is clear. It is not just, for no man can compel his neighbor to pay him higher than what is voluntarily agreed upon. If my neighbor wants a man to do landscaping for him, he cannot be forced at gunpoint to pay the laborer higher than otherwise agreed upon. Indeed, we would recognize this behavior instantly for what it is: criminality. Likewise, we can clearly see that such a law is an obstacle between employer and employee. It forces employers to change their practices when they would not ordinarily do so, to the detriment of those workers who must now compete for higher wages. Bastiat touches upon this point as well, with a very interesting observation to go along with it (88): 

…there is not a grievance in the nation for which the Government does not voluntarily make itself responsible. Is it any wonder that every failure threatens to cause a revolution?
And what is the remedy proposed? To extend indefinitely the dominion of the law, i.e., the responsibility of Government. But if the Government undertakes to raise and to regulate wages, and is not able to do it; if it undertakes to assist all those who are in want, and is not able to do it; if it undertakes to provide work for every laborer, and is not able to do it; if it undertakes…if it fails in this, is it not obvious that after every disappointment, which, alas! is more than probable, there will be a no less inevitable revolution?

The question worth pondering is restated thusly: when the government fails to continue its bread and circus for the Average Joe, when it fails to live up to its myriad of promises, what will the result be for our society?

Bastiat and Minarchy

Let us return once more to the beginning of our discussion, namely, that of rights and the origin of law. One glaring flaw in Bastiat’s writings, one he shares with some libertarians today, is that he does not speak out against the inherent flaw within all government. This flaw is none other than the simple observation that no government, however limited, remains limited for long. Hans-Hermann Hoppe describes in regards to the history of the United States:

After more than two centuries of “constitutionally limited government,” the results are clear and incontrovertible. At the outset of the American “experiment,” the tax burden imposed on Americans was light, indeed almost negligible. Money consisted of fixed quantities of gold and silver. The definition of private property was clear and seemingly immutable, and the right to self-defense was regarded as sacrosanct. No standing army existed, and, as expressed in George Washington’s Farewell Address, a firm commitment to free trade and a noninterventionist foreign policy appeared to be in place. Two hundred years later, matters have changed dramatically.16

Now, year in and year out, the American government expropriates more than 40 percent of the incomes of private producers, making even the economic burden imposed on slaves and serfs seem moderate in comparison. Gold and silver have been replaced by government-manufactured paper money, and Americans are being robbed continually through money inflation. The meaning of private property, once seemingly clear and fixed, has become obscure, flexible, and fluid. In fact, every detail of private life, property, trade, and contract is regulated and re-regulated by ever-higher mountains of paper laws (legislation). With increasing legislation, ever more legal uncertainty and moral hazards have been created, and lawlessness has replaced law and order.

As noble as the American Experiment was, it could not escape the fatal flaw inherent within the unilateral-taxation struction of the state. While Bastiat was intensely aware of all the other flaws of government, this one seemed to have escape his razor-sharp wit. His minarchy, though never directly stated, does seem to take on the form of the classical liberal night-watchman state (51):

It seems to me that such a people would have the most simple, the most economical, the least oppressive, the least to be felt, the most restrained, the most just, and, consequently, the most stable Government that could be imagined, whatever its political form might be.

And it is further elaborated here (90):

Under such a system, there would be more well-being, and this well-being would be more equally distributed; and as to the sufferings inseparable from humanity, no one would think of
accusing the Government of them, for it would be as innocent of them as it is of the variations of the temperature. Have the people ever been known to rise against the court of appeals, or assail the justices of the peace, for the sake of claiming the rate of wages, free credit, tools of labor, the advantages of the tariff, or the social workshop?

What reason does he present for his support of a minarchical state? This is the only passage I could find in support of it (53):

But the law is made, generally, by one man, or by one class of men. And as law cannot exist without the sanction and the support of a preponderant force, it must finally place this force in the hands of those who legislate.

Why the power of law must be placed into the hands of the legislator, I cannot say. But when we stop and think about what Bastiat is proposing, I can see no reason why Bastiat’s view of governance must be incompatible with anarchism. For instance, who is to say that we must trust the power of collective force with politicians? Indeed, as Molinari explained in his work The Production of Security, there is no economically true reason why it must be so. He explains (25-26):

It offends reason to believe that a well-established natural law can admit of exceptions. A natural law must hold everywhere and always, or be invalid. I cannot believe, for example, that the  universal law of gravitation, which governs the physical world, is ever suspended in any instance or at any point of the universe.

Now I consider economic laws comparable to natural laws, and I have just as much faith in the principle of the division of labor as I have in the universal law of gravitation. I believe that while these principles can be disturbed, they admit of no exceptions. But, if this is the case, the production of security should not be removed from the jurisdiction of free competition; and if it is removed, society as a whole suffers a loss. Either this is logical and true, or else the principles on which economic science is based are invalid. 

If we can accept this to be true, then Bastiat’s primary reason for embracing minarchy is done away with. If all law is to be confined to its proper sphere, that of defence, and we can produce defence privately, then what need have we for the state? Society may manage itself properly without law pretending to solve all its woes, and defence would be produced by individuals within society just like any other good or service. What I would say to Bastiat, in this regard, is simple: the least oppressive form of government is no government at all.

Concluding Remarks

Frédéric Bastiat has rightfully earned his place within the libertarian canon. His works smash every single statist fallacy of his times and our own. And unlike many other writers, his works are easily engaged with and are very clear in their meaning. I extol them for their moving words, and recommend that everyone serious about understanding human nature pick up his collection of works. Even the one area that he errs in, the support of government itself, can hardly diminish his accomplishments. Allow me to close with his own words about the harmonizing nature of Liberty, and the path to prosperity through that uniqueness that defines man’s nature (93-94):

God has implanted in mankind also all that is necessary to enable it to accomplish its destinies. There is a providential social physiology, as well as a providential human physiology. The social organs are constituted so as to enable them to develop harmoniously in the grand air of liberty. Away, then, with quacks and organizers! Away with their rings, and their chains, and their hooks, and their pincers! Away with their artificial methods! Away with their social laboratories, their governmental whims, their centralization, their tariffs, their universities, their State religions, their inflationary or monopolizing banks, their limitations, their restrictions, their moralizations, and their equalization by taxation! And now, after having vainly inflicted upon the social body so many systems, let them end where they ought to have begun—reject all systems, and try liberty—liberty, which is an act of faith in God and in His work.

Works Cited

 

Bastiat, Frédéric. The Bastiat Collection. Auburn, Ala.: Ludwig Von Mises Institute. Print.
Hoppe, Hans-Hermann. “On the Impossibility of Limited Government and the Prospects for a Second American Revolution.” Mises Institute. Web. 09 May 2016.
Koenig, Seth. “Portland’s Minimum Wage Experiment Helped Prove Arguments on Both Sides of the Issue.” Seth and the City. 2016. Web. 09 May 2016.
Molinari, Gustave De. The Production of Security. New York: Center for Libertarian Studies, 1977. Print.
O’Brien, Sara. “Austin Drivers in the Lurch after Uber, Lyft Exit.” CNNMoney. Cable News Network. Web. 09 May 2016.
Wooden, Cindy. “Catholic News Service.” Health Care Is a Right, Not a Privilege, Pope Says. Web. 09 May 2016.