For God, Family and Republic

This is my proprietary review of The Law: A Classic Blueprint for a Just Society. This is a masterful treatise first published in 1850, which brilliantly elucidates the legitimate ends of the instrumentality of the law, and it likewise diagnoses the subversion of the law and the phenomenon of legal plunder.

The author Frédéric Bastiat (1801-1850) is best remembered for his tongue-in-cheek cliché, "The state is that great fiction by which everyone tries to live at the expense of everyone else." Bastiat was born as the son of a merchant in 1801 at Bayonne, France. He was later orphaned before his tenth birthday. Bastiat was a farmer by trade who became a statesmen. Hence, his observations about man and society are derived from personal experience, observation and as a student of history, rather than the abstract theories of intellectuals.

Bastiat opens his landmark treatise on the law with natural law premises acknowledging that life, liberty and property are the gift of God, in declaring:

Life, faculties, production — in other words, individuality, liberty, property — this is man. And in spite of the cunning of artful political leaders, these three gifts from God precede all human legislation, and are superior to it. Life, liberty, and property do not exist because men have made laws. On the contrary, it was the fact that life, liberty, and property existed beforehand that caused men to make laws in the first place.

Bastiat was no Enlightenment secularist, though a classical liberal in a sense, he acknowledged a deep conviction in a personal and transcendent God, and he makes this integral to his treatise on the law. The law itself is a gift of God. At the onset, Bastiat rhetorically asks, "What, then, is law? It is the collective organization of the individual right to lawful defense." He further notes, "Each of us has a natural right - from God - to defend his person, his liberty, and his property." The instrumentality of the law carries force he admits. "Such a perversion of [that] force would be, in both cases, contrary to our premise. Force has been given to us to defend our own individual rights." He summarily encapsulates the purpose and nature of the law:

The law is the organization of the natural right of lawful defense. It is the substitution of a common force for individual forces. And this common force is to do only what the individual forces have a natural and lawful right to do: to protect persons, liberties, and properties; to maintain the right of each, and to cause justice to reign over us all.

Offering a view similar to that enunciating in Adam Smith's Theory of Moral Sentiments, Bastiat postulates basic a priori presuppositions about human nature, labor and property. First, man has a rational self-interest. Second, men are most productive when they hold title to the fruits of their labor. Likewise, human beings are fragile, imperfect and inherently sinful. "The annals of history bear witness to the truth of it: the incessant wars, mass migrations, religious persecutions, universal slavery, dishonesty in commerce, and monopolies," opines Bastiat. He astutely surmises the origins of property and plunder. "Man can live and satisfy his wants only by ceaseless labor; by the ceaseless application of his faculties to natural resources. This process is the origin of property." Secondly he notes, "But it is also true that a man may live and satisfy his wants by seizing and consuming the products of the labor of others. This process is the origin of plunder." Plunder often proves more advantageous to men than labor, particularly those without moral scruples. In point of fact, the law exists to protect against plunder, but as Bastiat observes even the law itself - and its agent of force, the state - may be subverted into an instrument of plunder. He astutely enunciates upon the "legal plunder" phenomenon:

Under the pretense of organization, regulation, protection, or encouragement, the law takes property from one person and gives it to another; the law takes the wealth of all and gives it to a few — whether farmers, manufacturers, ship owners, artists, or comedians. Under these circumstances, then certainly every class will aspire to grasp the law, and logically so....

The spoliation of taxpayers for illegitimate ends, such as subsidies, wealth redistribution, government largesse for unneeded bureaucrats, and other socialistic schemes act to subvert the law. "Legal plunder has two roots: One of them, as I have said before, is in human greed; the other is in false philanthropy," he declares. How does the law quell injustice, when it simultaneously aids Peter in his efforts to plunder Paul?

Bastiat identifies two forms of legal plunder: "They are slavery and tariffs. These are the only two issues where, contrary to the general spirit of the republic of the United States, law has assumed the character of a plunderer. ¶Slavery is a violation, by law, of liberty. The protective tariff is a violation, by law, of property." Slavery represents the coercive spoliation of labor, by confinement and coercive labor. Protective tariffs represent the spoliation of various sectors of economy to the betterment of a politically-connected constituency. In point of fact, many in the American founding generation, including George Washington, as well as a subsequent generation of antebellum southern statesmen opposed protectionism and affirmed that the chief object of tariffs or duties was revenue, and they questioned the constitutionality of protective tariffs. The outrageously exorbitant confiscatory protective tariffs of the nineteenth-century in the United States had an effect of diminishing revenues because of the law of diminishing returns. By the mid-nineteenth-century, protective tariffs severely depressed agricultural prices, hurt U.S. export markets and facilitated a massive redistribution of wealth from south to north as most revenues were collected in southern ports and most expenditures were made in the north and the beneficiaries of protection were mostly northerners. Ultimately, the resistance to the legal plunder led to disunion, as onerous taxation at rates in excess of fifty and sixty percent proved detrimental to southern interests. In the U.S., the export-driven southern states shouldered over eighty-percent of the tax burden in the mid-nineteenth century. Not surprisingly, the break away Confederacy formed in 1861. The politics of plunder are conducive to war, as plundering parties may wage war to protect their spoliation. Bastiat once remarked, "When goods don't cross borders, soldiers will." This maxim is timeless.

Bastiat elaborates movingly upon the proper function of the law in remarkable detail.

When justice is organized by law — that is, by force — this excludes the idea of using law (force) to organize any human activity whatever, whether it be labor, charity, agriculture, commerce, industry, education, art, or religion. The organizing by law of any one of these would inevitably destroy the essential organization — justice. For truly, how can we imagine force being used against the liberty of citizens without it also being used against justice, and thus acting against its proper purpose?

He critiques the ideas and premises of socialist ideologues who seek to subvert the law for their utopian schemes of transforming humanity or effectuating legal plunder schemes in the name of equality and social justice.

Try to imagine a regulation of labor imposed by force that is not a violation of liberty; a transfer of wealth imposed by force that is not a violation of property. If you cannot reconcile these contradictions, then you must conclude that the law cannot organize labor and industry without organizing injustice.

Furthermore, he incisively analyzes the desire of socialist lawmakers to manage mankind, pursue redistribution schemes, and play God. Socialists and statists look upon people as raw material to be formed into social combinations. To them—"the relationship between persons and the legislator appears to be the same as the relationship between the clay and the potter." They want to play God. Bastiat recognizes that socialists fear all true liberties. Under socialist logic, voluntary freedom of association (and its attendant freedom to disassociate) is replaced by forced fraternity and corporatist schemes to form cohesive bonds among desperate elements of society with or without their consent. Likewise, the liberty of trade and of labor maybe restrained as well. Equality too, is subverted, because the only desirable equality, that is equality before the law is dispensed with, in favor of more elusive forms of equality of condition and and equality of opportunity that leftists extold. Inequalities are simply attendant to human nature.

Like the founding generation of America, Bastiat rejects legal positivism, and holds a negative concept of the law. Bastiat notes,

this negative concept of law is so true that the statement, the purpose of the law is to cause justice to reign, is not a rigorously accurate statement. It ought to be stated that the purpose of the law is to prevent injustice from reigning. In fact, it is injustice, instead of justice, that has an existence of its own. Justice is achieved only when injustice is absent.

He further critiques legal positivism, and explains:

But when the law, by means of its necessary agent, force, imposes upon men a regulation of labor, a method or a subject of education, a religious faith or creed — then the law is no longer negative; it acts positively upon people. It substitutes the will of the legislator for their own wills; the initiative of the legislator for their own initiatives. When this happens, the people no longer need to discuss, to compare, to plan ahead; the law does all this for them. Intelligence becomes a useless prop for the people; they cease to be men; they lose their personality, their liberty, their property.

The negative concept of the law is manifest in the Ten Commandments, (hence "Thou shall not...") Likewise the negative concept is manifest in the U.S. Bill of Rights, (hence "Congress shall make no law..." in the First Amendment, etc.)

Bastiat offers an astute polemic against the French Revolution, Napoleon, and various demagogues. In Bastiat's time following the Revolutions of 1848, France was precariously staged to embrace a level of socialism unprecedented of in history. Bastiat saw it as a duty to rise to the occasion as a statesmen and economist, and he sought to diagnose and analyze the socialist fallacies and the logic of legal plunder in his various writings. Likewise, he offered this cogent legal treatise to manifest the true and just purpose of the law. Bastiat has disdain for all artificial systems that seek to subvert the law whether protectionism, mercantilism, socialism or the peculiar French brand of étatism (statism) that blended all of these elements.

According to Bastiat, when society's social arrangements are not properly ordered, the lines between society and state are blurred, and the natural and spontaneous order that needs to function freely in order for social harmony to be achieved is impeded then social strife and chaos will ensue. He observed:

The doctrine that places the moving force of Society in the legislators and Government results in imposing crushing responsibilities on them in matters where they ought to have none. If there is suffering, the fault is that of the Government; if there is poverty, the fault is that of the Government - Is it not the general and sole motor of society? If the motor is not good, it must be discarded and replaced by another.

Today, sadly in the United States, the law has egregiously been subverted into an instrument of legal plunder. (Incidentally, I recommend reading a Cato Institute research paper entitled The Transfer Society by David N. Laband and George C. McClintock which documents the costs of legal plunder in America in our time.)

In conclusion, Frédéric Bastiat's legacy is being a tried and true defender of the principles of the law. Though, he was a Frenchmen, his treatise is no less valuable to those of us beholden to the Anglo-American common law tradition, as much of the vitally requisite principles of the law are transcedent and universal anyway. His work gives our generation a means of diagnosing the problems of contemporary civil society and effectuating a meaningful restoration of the law to its proper function.

Related Articles
Government by Frédéric Bastiat - Bastiat.org
The Law by Frédéric Bastiat - Bastiat.org
The Law by Frédéric Bastiat - Constitution Society