Has the law been perverted? Following the French Revolution of 1848, Frédéric Bastiat pondered this question in The Law, a timeless work published in 1850. The French socialists of his time found in socialism a tangible answer to the prevailing misery of the industrial age. They sought to introduce a “right to work”, obligating the state to employ the unemployed. They proposed an economy organised by the state, believing that markets produced chaos and injustice. They hoped to turn the law into an instrument of income redistribution, which they believed would mitigate inequality. They also embraced the idea of “social engineering”, the conviction that the law could and should shape morality, create equality and “educate society”.
These idealistic thinkers acted with good intentions, and the instrument of their actions was the law. Bastiat’s central critique directed at these idealists is that the law can have only one of two mutually exclusive functions. It can either ensure justice, defending the individual against attacks upon them, their liberty and property, or it can do everything else. This article provides an overview of Bastiat’s response to this dilemma.
Bastiat begins his argument by indicating that God has bestowed upon us a gift. A gift that contains within itself all the other gifts – life, physical, intellectual, and moral. Yet life is not capable of sustaining itself, and for that reason, God endowed us with a set of extraordinary faculties. He placed us in a world with diverse elements, and it is precisely through the application of our faculties that man can survive, through a constant process of adaptation and appropriation.
Existence, faculties, and appropriation – in other words, life, liberty, and property- that is man. These three things precede any form of human legislation. Personal integrity, freedom of action, and private property do not exist because man has devised law: on the contrary, man devised law because integrity, liberty, and property preexisted him. Bastiat defines the law as “the manner in which society collectively guarantees that the rights of each individual are protected.” That right derives from the fact that these are the three fundamental elements of life. Each element complements the other and cannot be understood separately. What are our faculties if not an extension of our personality? What is property if not an extension of our faculties? If each individual has the right to defend, even by force, his life, liberty, and property, a group of individuals has the right to unite and to organise a collective force to defend each of them individually.
Collective rights, since they derive from individual ones, can have no other objective except that of the elements from which they are composed. If the individual cannot lawfully endanger another, his liberty, or his property, it rationally follows that collective force also cannot lawfully do so. So long as personal security is ensured, labor free, and its fruits protected from unjust attacks, it is highly probable that individuals would not encounter excessive difficulties within society.
Bastiat held that the law had been perverted, and with reason; he observed its application in activities that were in direct opposition to its original purpose. He noted that it had been employed to destroy the justice it was supposed to establish, and that it places collective force in the hands of those who sought to traffic the liberty and property of others. It transformed plunder into a right to defend, and legitimate defence into a crime to punish.
Bastiat explains this perversion of the law with two mechanisms. The first is an aspect of human nature. Men tend to preserve and improve their well-being, and they may do so in two ways. The continuous application of their faculties to the environment (that is, labour) is the first, and it is the origin of property. Appropriating the property of their fellow citizens is the second: it is done since labour itself is arduous, and men by nature tend to avoid effort; it is also the origin of plunder.
It follows that plunder, wherever it is less burdensome than labour, will impose itself as the predominant means of acquiring resources. Under such circumstance,s neither religion nor morality can prevent its expansion. The true purpose of the law ought to be to oppose this fatal tendency of man, to resort to plunder by means of the powerful barrier of collective force, the law. All action of the law ought therefore to be directed in favour of property and against plunder. Generally speaking, the law is created by one man or one class of men. And since the law cannot function without the consent and support of the collective force, this force must be entrusted to those who create the laws. Keeping in mind man’s tendency to satisfy his needs with the least possible effort, the legislator understandably uses the law to threaten the independence of others by slavery, their liberty by oppression, and their property by plunder.
There are many consequences of this perversion of the law: chief among them is that it erases from everyone’s consciousness the distinction between justice and injustice. When law and morality contradict one another, the individual is confronted with two equally cruel alternatives: to lose his moral sense or to lose respect for the law. Bastiat emphasises that in his time, the law had become a means by which some live and prosper at the expense of others. Once we acknowledge that the law can be diverted from its proper end, that it can violate property instead of protecting it, everyone will wish to participate in the making of the law, whether to protect himself from plunder or to ensure he is the one plundering. It is important to note that Bastiat draws a distinction between illegal plunder, which the law sanctions, and legal plunder, which the law promotes and executes itself. How are we to recognise this legal plunder? It suffices to examine whether the law confers a benefit upon one citizen at the expense of another, doing what the citizen cannot do without committing a crime.
There are only three ways to resolve the question of legal plunder: one must choose between limited plunder, where the minority plunders the majority; general plunder, where everyone plunders everyone; and no plunder. The law can pursue only one. Bastiat perceives the solution to the question of the function of the law in this simple sentence: “The law is organised justice”. Following this assertion, it is necessary to emphasise the following: when justice organises the law, this excludes the idea of using the law to organise human activity, whether labour, agriculture, industry, education or religion. Can we even conceive of the use of force against the liberty of citizens without its use against justice as well?
Bastiat points out that the most popular fallacy of his time was that it was not sufficient for the law to be just; that it must, in addition, be philanthropic. It is demanded that the law directly disseminate welfare, education and morality throughout the nation. He regards this as the seductive lure of socialism, which is in itself contradictory; the two aforementioned applications of the law are directly opposed to one another. One must be chosen, at the expense of the other. Bastiat’s position regarding the choice between the two may be summarised in his central idea, that justice is in itself a sufficient condition of social progress. According to Bastiat, equality before the law and the protection of individual responsibility should be ensured by said law, for only within such a framework may individuals freely choose between virtue and vice, in accordance with the natural and the divine order.
Bastiat conceives of the law as a negative concept: it confines the individual within bounds of justice and obliges him solely to refrain from injuring others. The law becomes positive only when, with aid of force, it begins to regulate labour, education or religion.
Bastiat provides us with insight into how the socialists of his time reasoned. They considered men to be raw material, to be deliberately moulded into social combinations. They embraced the idea that humanity ought to be passive, that human misery and prosperity, vices and virtues are caused by the external influence exerted upon them by the law and its legislators. Not once pausing to perceive that they themselves are part of that very humanity which they so arrogantly and condescendingly characterize as incapable of autonomy, unenlightened and susceptible to direction.
Do we recognize in contemporary society traces of classical doctrine, the child of antiquity and the mother of socialism? Does the law at times serve to organize society in turn neglecting justice? I leave the answer to these questions to the reader.
