The Law   Leave a comment

I recently re-read Frederic Bastiat’s The Law, which was published in 1850, but asks some of the same questions being debated in coffee shops, bars and churches in cities across the United States today. Police abuse of citizens are now available on YouTube. The powers that be have empowered cops to do to us what we would never been allowed to do to each other. Most of these cases never get further than YouTube, but people are asking sharp questions regarding the relationship between the state and the people.

It doesn’t really matter where the debate occurs. The disagreements tend to revolve around the motivation, character and behavior of police officers. Are they following the “regulations”? Is shooting an armed motorist an abuse of their authority? Was their action motivated by racism? What level of citizen noncompliance should justify police use of deadly force?

Bastiat asked the question that most of us are currently trying to avoid. Are the laws themselves just?

Many of the most famous beatings and killings of citizens at the hands of the police began with small infractions. Eric Garner was selling contraband cigarettes, for example. City of Anchorage killed five people in 2014 for what started out as minor traffic violations. Americans are estimated to commit five infractions of the law every day.

Last weekend, I said that if we just focused on guns or the Dallas shooter rather than on who trained him, we were ignore the disease that drives the symptom. Carrying that further, I would say that if the debate stays centered on police actions alone, we will never reach the core issue.

What is the law — and what should it be?

These are the bigger questions that haven’t yet entered public consciousness. Every law and regulation, no matter how small, is ultimately enforced by the threat of force on the part of public authority. When I first read The Law, I wasn’t quite ready to accept that laws are not “nudges”, but mandates enforced by the legal use of coercion against person and property. This time when I read it, I understood what Bastiat was talking about.

Bastiat tried to get people to think hard about what was happening and how the law had become an instrument of plunder and violence rather than a protector of property and peace. If the law itself is not just, the result is social division and widespread discontent.

What? Did I just reference the observable condition of our society and apply a diagnosis? I believe I did.

The relationship between rulers and the ruled becomes distorted when a sense of systemic injustice pervades the culture. Bastiat was aghast to observe this in 1840s France and we should be aware that it exists today:

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.

Most applicable to our time: “Sometimes the law places the whole apparatus of judges, police, prisons, and gendarmes at the service of the plunderers, and treats the victim — when he defends himself — as a criminal.”

Yeah, I know. Eerie, right?

Whether this happens at a traffic stop, at the arbitrary hands of an angry, racist or fearful cop, or due to a tax or regulation passed by a legislature doesn’t change the nature of what is happening. The people are being plundered and abused by “the system”, which treats the victims of its abuse like criminals

Bastiat’s essay asks fundamental questions that most people go through life without entertaining. The problem is that most people accept the law as a given, a fundamental fact of life. As a member of society, you obey the law or face consequences.

Increasingly, it is not safe to question why. The enforcement arm of the law (the state) has a unique power to use legal force against life and property. The state determines what what the law is. Even when the method of that determination is morally or systemically questionable, that the government is made the decision settles the matter in the minds of most people.

Bastiat refused to take an unquestioning stance. He wanted to know what the law is apart from what the state says it is. He saw that the fundamental purpose of law is to protect private property and life against invasion, or — if that isn’t always possible, at least to ensure that justice is done in cases in which such invasions do take place.

This wasn’t a unique or even new idea. Philosophers, jurists, and theologians had thought this same idea in most times and places. Intuitively, most of us agree that the law should protect us and our property from invasions or provide justice when those invasions occur. What makes Bastiat different is that he took the next step which opens the reader’s eyes as nothing else does. He applied that idea to the state itself.

In the very first paragraph of his essay, Bastiat remarked on the corruption that ensues when the state turns out to be a lawbreaker in the name of law keeping. He had noticed that the state does the very thing that law is supposed to prevent. Instead of protecting private property, it invades it. Instead of protecting life, it destroys it. Instead of guarding liberty, it violates it. And it gets worse over time. As the state “advances” and grows, it increasingly does these things, until it threatens the well-being of the society it is sworn to protect.

Worse, Bastiat observed that when you subject the state to the same standards that the law uses to judge relations between individuals, the state fails. He concluded that this failure shows that the law has been perverted in the hands of the governing elite, who use the law to do the very thing that the law is designed to prevent. The enforcer turns out to be the main violator of its own standards.

The law, wrote Bastiat, is supposed to protect property and person from arbitrary attack. When the law becomes a tool for providing legal cover for such attacks, its whole purpose has been turned upside down and inside out.

Bastiat sought a consistence ethic of justice in public life. The law should be the same for everyone. We should all obey the same rules. Neither the state nor any of its functionaries can be exempt from the rules they claim to enforce. We cannot permit the state to judge itself by a different standard than we are judged under.

Consider Marilyn Mosby, Maryland’s state attorney. When she announced that the she was prosecuting the cops who beat and killed Freddie Gray, she struck a chord that resonated far and wide. I suspect she’s a progressive Democrat who rejects most of the things I value, but when she said, “no one is above the law,” she was echoing Bastiat and the entire classical liberal tradition.

What are the social consequences of having a different sets of laws, one for state agents and one for everyone else? Bastiat believed that the result is lawlessness:

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 — then everyone will want to participate in making the law, either to protect himself against plunder or to use it for plunder.

In that circumstance, the law becomes a perpetual source of hatred and discord. It “tends to destroy society itself.” Whether this destruction takes place in the controlled environment of a legislature, the routine world of the bureaucracy, or on the streets through looting does not change the essentials of what is happening.

What does this say about abuse at the hands of the police? According to Bastiat’s standard, the law should regard such abuse as the violation of another’s rights. There’s no other option.

Nothing is the same after you read The Law. That is why this essay is famous. It is capable of shaking up whole systems of government and whole societies — a beautiful illustration of the pen’s power.

It is a habit of every generation to underestimate the importance and power of ideas. Yet the whole world that we live in is built by them. Nothing outside pure nature exists in this world that did not begin as an idea held by human beings. An essay like Bastiat’s is powerful and important because it helps you see the injustices that surround us, which we are prefer to ignore. Denial drives a lot of the problems in the world. Ignoring a problem does not make it go away. The first step to change is seeing and explaining what the actual problems are.


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