Firstly, an aside. I have not posted here in many months; in fact, I believe the last time I posted here with any kind of regularity is when I began an ill-fated project to blog my way through some potential thesis research on medieval memory techniques and their influence on medieval interpretation of scripture. Since then the visicitudes of life have occasioned my flight from the groves of academia to seek my fortune in the wide world, where I met with some fortune, some misfortune, and became engaged to be married, among other things, before I returned very recently to the embrace of books, quiet morning tea, lectures, long evenings with Plato and bourbon, drizzly Moscow afternoons, and the other pleasures of an academic life. Now that I am provided with a bit more leisure for literary pursuits, I hope to post here more often, but if my adventures in the world have taught me anything, it is to make few promises.
Frédéric Bastiat’s The Law, seeks to provide a definition and a role for the law and the legislator. He begins by asserting the classical definitions of man and of justice received from the Enlightenment, that “Existence, faculties, assimilation–in other words, personality, liberty, property–this is man.” Law, he says, was created for the preservation of man, that is, these rights: “it is the collective organization of the individual right to lawful defense.”
The law, however, has been perverted through two causes, “naked greed and misconceived philanthropy”; greed, the natural tendency of legislators to use the force of law to plunder the lawfully earned goods of more industrious men; philanthropy, the misguided use of the force of law to enforce virtue and industry among the naturally lazy and dissipated populace. Both of these causes lead to what Bastiat classifies as plunder, defined as “when a portion of wealth passes out of the hands of him who has acquired it, without his consent, and without compensation, to him who has not created it, whether by force or by artifice.”
Basiat then proceeds to spend the majority of the central section of his work examining why it is inappropriate to use the law for philanthropic ends.
The Socialists say, since the law organizes justice, why should it not organize labor, instruction, and religion?
Why? Because it could not organize labor, instruction, and religion, without disorganizing justice.
For remember, that law is force, and that consequently the domain of the law cannot propertly extend beyond the domain of force.
When law and force keep a man within the bounds of justice, they impose nothing upon him but a mere negation. They only oblige him to abstain from doing harm … But when the law, through the medium of its necessary agent–force–imposes a form of labor, a method or a subject of instruction, a creed, or a worship, it is no longer negative; it acts positively upon men. It substitutes the will of the legislator for their own will, the initiative of the legislator for their own initiative.
This is the crucial distinction between postive and negative law that separates Bastiat’s plan from that of the socialists. The purpose of the law, argues Bastiat, is merely to prevent injustice, and not to force justice, for, as he later says, justice, strictly speaking, does not exist; it is simply the absense of injustice, and it is this absense of injustice which is the legislator’s duty to enforce. Note that it is difficult to imagine any philosopher prior to the Enlightenment defining justice in such a way. “What is law?” asks Bastiat. “Law is common force organized to prevent injustice;–in short, Law is Justice.”
The second distinction, which I find rather striking, is his denomination of what is within and without the “domain of force.” Labor, instruction, religion: all these things stand outside the domain of force, that is, of justice. For justice, as he defined at the very beginning of the work, is the preservation of the essential attributes of man: personality, liberty, and property. Justice for Bastiat is not a standard which should be applied to every area, that is, justice with respect to religion, or justice with respect to labor, but rather a limited sphere devoted solely to the preservation of liberty.
Bastiat puts a great deal of faith in human nature:
Law is justice.
And it is under the law of justice, under the reign of right, under the influence of liberty, security, stability, and responsibility, that every man will attain to the fullness of his worth, to all the dignity of his being, and that mankind will accomplish with order and with calmness–slowly, it is true, but with certainty–the progress ordained for it.
I believe that my theory is correct; for whatever be the question upon which I am arguing, wether it be religious, philsophical, political, or economical; whether it affects well-being, morality, equality, right, justice, progress, responsibility, property, labor, exchange, capital, wages, taxes, population, credit, or Government; at whatever point of the scientific horizon I start from, I invariably come to the same thing–the solution of the social problem is in liberty.
Bastiat, writing in the first half of the 19th century, looks to America as the great example of liberty’s success, though he warns of slavery and tariffs as America’s two great violations of the principles of liberty he sets forth, liable to break apart the union: a remarkably prescient observation.
One could argue that America’s societal decline is due to the increasing lack of the liberty which Bastiat advocates, but it seems that the lack of liberty has followed on the heals of moral dissipation, rather than the way round. For example, Theodore Roosevelt greatly expanded the force of government over the economic sphere, yet he saw this as necessary due to the avarice and trusts and monopolies, the abuses of workers, and the moral dissipation that had already rotted through the heart of America’s labor. It would not seem that liberty, in this case, quite led to man’s attaining the “fullness of his worth,” and “all the dignity of his being.” The history of America is a history of decline, and the historical ordering of events seem to dictate that we look elsewhere from political structure for the source of that decline.
Liberty, at the end of the day, must be liberty to do something. Bastiat seems to take it for granted that man’s natural tendency is to climb ever higher in order, peace, and prosperity, an assumption worth at least a second glance given the examples of history.