What Is or Should Be the Law?
It seems that the president is frustrated with Congress. What kind of legislature is this, he asks, that fails to immediately enact the will of the executive? The executive has been using a slightly different approach these days: He uses an executive order. Forget all that stuff you have read in the civics texts about checks and balances and the branches of government. The executive order bypasses them all.
The White House even has a name for this: “We Can’t Wait.” There is even an official “.gov” website. Hey, if you are going to shred the Constitution and pass laws like a dictator, the best approach is to do it out in the open. “If Congress refuses to act,” he says, “I’ll continue to do everything in my power to act without them.”
To be fair, he is hardly the first. The president before him did it, and the president before that and so on back to World War I and before. Every new guy cites the precedent of the old guy, as if that alone provides justification. Defying the Constitution has a long tradition, don’t you know.
But you know what this tells me? What this country needs is a good theory of law. We even lack the language to talk about what is happening to us. One party denounces the other but only in ways that exempt itself from criticism. As a result, the “man on the street” is not even prepared to talk about fundamental questions.
Example: Where did law come from, and what should it do? Sure, people get annoyed at the police, irritated by the TSA or startled to read about periodic injustices of public policy. One party gets annoyed when the other party’s president enacts laws without regard to any constitutional conventions.
But what is the law, and what should it be? These are the bigger questions that are not part of public consciousness.
The same was true in the time of Frédéric Bastiat (1801-50). At the very end of his life, he wrote an impassioned plea on the topic. He tried to get people to think hard about what was happening and how law had become an instrument of plunder, rather than a protector of property.
It is not true that the function of law is to regulate our consciences, our ideas, our wills, our education, our opinions, our work, our trade, our talents or our pleasures. The function of law is to protect the free exercise of these rights, and to prevent any person from interfering with the free exercise of these same rights by any other person.
This is from Bastiat’s The Law, one of the great political essays to emerge from the whole Continental world of the 19th century. It vanished into obscurity in France, was resurrected in late 19th century English, and then disappeared again, only to reappear in the United States in the 1950s, thanks to the efforts of the Foundation of Economic Education.
This essay asks fundamental questions that most people go through life never having thought about.
The problem is that most people accept the law as a given, a fundamental fact. As a member of society, you obey or face the consequences. It is not safe to question why. This is because the enforcement arm of the law is the state, that peculiar agency with a unique power in society to use legal force against life and property. The state says what the law is — however this decision was made — and that settles it.
Bastiat could not accept this. He wanted to know what the law is, apart from what the state says it is. He saw that the purpose of law is, most fundamentally, to protect private property and life against invasion, or at least to ensure that justice is done in cases in which such invasions do take place. This is hardly a unique idea; it is a summary of what philosophers, jurists and theologians have thought in most times and places.
Then he takes that next step, the one that opens the reader’s eyes as nothing else. He subjects the state itself to the test of whether it, the state itself, complies with that idea of law.
He takes notice, even from the first paragraph, that the state itself turns out to be a lawbreaker in the name of law keeping. It 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 as the state advances and grows, it does this ever more, until it becomes a threat to the well-being of society itself.
Even more tellingly, Bastiat observes that when you subject the state to the same standards that the law uses to judge relations between individuals, the state fails. He concludes that when this is the case, the law has been perverted in the hands of the governing elites. It is employed 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 passion, the fire, the relentless logic have the power to shake up most any reader. Nothing is the same. This is why this monograph is rightly famous. It is capable of shaking up whole systems of government and whole societies. What a beautiful illustration of the power of the pen.
But take notice of Bastiat’s rhetorical approach here. His conclusion is at the beginning. Why? He did not have that much time (he died not long after writing The Law). He knew that the reader didn’t, either. He wanted to raise consciousness and persuade in the most-effective way. Even from a stylistic point of view, there is much to learn from his approach.
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. This is why a book like this is so powerful and important. It helps you see injustices that surround us, which we are otherwise inclined to ignore. And seeing is the first step to changing.
That’s why it continues to be printed and circulated and why every living soul should read it. If we are to see a renewed appreciation of the idea of liberty in our lifetimes, this monograph written so long ago in a country so far away will deserve a great deal of the credit.