Frédéric Bastiat, The Law (Part I)

Frédéric Bastiat, The Law (Irvington-on-Hudson: Foundation for Economic Education, 1994).

Bastiat begins by explaining the origins of our rights, finding that they are God-given and concern the right to life, liberty, and property. Since men have the natural right to defend their life and liberty, they therefore have the right to organize collectively in order to achieve this purpose more effectively. Law, in Bastiat’s formulation, is thus “the collective organization of the individual right to lawful defense” (2). This collective force cannot transcend the mission it was created for: “Since no individual acting separately can lawfully use force to destroy the rights of others, does it not logically follow that the same principle also applies to the common force that is nothing more than the organization combination of the individual forces?” If this collective force began making rules and regulations concerning for what peaceful uses individuals can use their lawfully owned property, it would be overstepping its mission and acting unjustly. Yet, according to Bastiat, men try to substitute plunder for labor in order to “live and prosper at the expense of others” when plundering becomes less costly than labor (4-5). “This fatal desire has its origin in the very nature of man--in that primitive, universal, and insuppressible instinct that impels him to satisfy his desires with the least possible pain” (5).

Once the law becomes perverted to destroy independence, liberty, and property, society inevitably rebels against oppression and plunder, or is corrupted into sharing in the spoils. “Until that happens, the few practice plunder upon the many. . . .But then, participation in the making of law becomes universal. And then, men seek to balance their conflicting interests by universal plunder. Instead of rooting out the injustices found in society, they make these injustices general” (6). The perversion then forces them to choose between morality and injustice, a choice that will either curb his moral sensibilities or curb his respect for the law (7). And when law and morality are divorced, it engenders the individual to question whence the legitimacy of the law springs, for it is no longer immediately evident why such rules are valid when they conflict with the individual’s basic moral premises. State functionaries are then induced to imagine ingenious narratives; for the immaculate conception of the state, for positivism--the law is just because it is the law--or for the convenient lie that the law springs from the people, and it was the people themselves who authorized the law, even though no such consent has ever occurred.

Another effect identified by Bastiat is that this perversion enlarges the political sphere--shrinking individual autonomy--and thus aggrandizing the significance of politics (8). Politics would essentially be nonexistent if government only had the power to protect life, liberty and property, rather than to plunder, for where there is nothing to gain by politics very few will waste their time engaging in it. In addition, Bastiat distinguishes between legal and illegal plunder. Illegal plunder, such as bare theft, is only a small problem to the free society because it is not systematically organized and bears no stamp of legitimacy. However, plunder organized and sanctioned by the State--legal plunder--threatens society itself by creating antagonistic interests each of whom fight for a greater share of the treasure in a zero-sum game. It institutionalizes plunder and creates vested interests who benefit from it and stand to lose a great deal if and when it ceases to exist (10-13). The easiest way to define legal plunder, says Bastiat, is to “See if the law takes from some persons what belongs to them, and gives it to other persons to whom it does not belong. See if the law benefits one citizen at the expense of another by doing what the citizen himself cannot do without committing a crime” (13).

Bastiat finds the most popular fallacy of his times--”socialism”--to be that

It is not considered sufficient that the law should be just; it must be philanthropic. Nor is it sufficient that the law should guarantee to every citizen the free and inoffensive use of his faculties for physical, intellectual, and moral self-improvement. Instead, it is demanded that the law should directly extend welfare, education, and morality through the nation (16).

The problem is that in moving beyond protecting “mere” freedom through the law, we begin destroying freedom because each of these things we would hope to provide necessarily diminish the sphere of voluntary action and restrict freedom.

He defines plunder as the forced or fraudulent transfer of property from one individual to another (17). The problem of legal plunder separates the receiver of the benefits of plunder from the individuals who commit the plunder, which is very dangerous. This distancing was the same tactic used in many twentieth century acts of genocide to distance the perpetrator from the genocidal act and his victim, allowing an unprecedented scale of horrors. Bastiat identifies three systems of plunder, namely protectionism, socialism, and communism, all of which derive from the same underlying principle of plunder but have different gradations.

It is important to remember that force is only applicable and legitimate under certain circumstances, so insofar as the law is the organized use of force, to use the law to organize labor, education, religion, or other objects would destroy justice.

When law and force keep a person within the bounds of justice, they impose nothing but a mere negation. They oblige him only to abstain from harming others. They violate neither his personality, his liberty, nor his property. They safeguard all of these. They are defensive; they defend equally the rights of all (19). 

In acting positively on people, the law imposes rather than defends.

The idea that the law and charity could be compatible is inconceivable, admonishes Bastiat, for each dollar in possession of the treasury to dole out for “charity” has been taken from someone else--this is the very definition of plunder (21). It is no more charity to use the law to organize education or religion than to organize oppression. Bastiat notes that this view has been branded individualism by its opponents, no doubt to give the impression that those who oppose the organization of these needful enterprises by force are actually against fraternity, cooperation, brotherhood, charity, association etc. Yet, Bastiat points out that

we repudiate only forced organization, not natural organization. We repudiate the forms of association that are forced upon us, not free association. We repudiate forced fraternity, not true fraternity. We repudiate the artificial unity that does nothing more than deprive persons of individual responsibility (22).

In making making this charge, the socialist

confuses the distinction between government and society. As a result of this, every time we object to a thing being done by government, the socialists conclude that we object to its being done at all. We disapprove of state education. Then the socialists say that we are opposed to any education. We object to a state religion. Then the socialists say that we want no religion at all. We object to a state-enforced equality. Then they say that we are against equality. And so on, and so on. It is as if the socialists were to accuse us of not wanting persons to eat because we do not want the state to raise grain (22). 

In thinking this, Bastiat says socialist writers are under the impression that individuals “are susceptible to being shaped — by the will and hand of another person — into an infinite variety of forms, more or less symmetrical, artistic, and perfected” and that it is they, the socialist intellectual, who must do the shaping (23). Bastiat believes that socialists see mankind as possessed by inclinations to do wrong, or to do the opposite of what safety, productivity, and morality require of them. They also see, however, that some people, such as themselves, are not possessed with this disability, and it is people like themselves who ought to legislate “in order to substitute their own inclinations for those of the human race” through the use of force (25).

Montesquieu had thought that the laws ought to level incomes enough that the wealthy had to continue to labor in order to continue accumulating wealth. This view of democracy and the need for equality was pervasive among many scholars and laymen alike. However Bastiat points out that absolute equality, or even a high degree of relative equality, may be detrimental. Even if such equality could be achieved through the law, it still constitutes plunder; and the means to achieving such equality in practice would be “frightful” (30-32).

Next, Bastiat examines what Rousseau had to say on the subject. Since Rousseau thought the enlightened prince was rare, it must be that the enlightened legislator, by whom the Prince’s actions are guided, is even more rare. Under these conditions, we should expect that a legislator, choosing to direct the efforts of government after a particular object, may make mistakes in choosing the object of government desired by the people or conducive to their well-being. This will have severe consequences in the form of unanticipated effects and greater popular agitation (32-35).

The chief error of socialist writers was to assume the desirability of the structures of past societies such that they should be presently implemented: They did not understand that knowledge appears and grows with the passage of time; and that in proportion to this growth of knowledge, might takes the side of right, and society regains possession of itself” (39) And it is the desire of intellectuals “to set themselves above mankind in order to arrange, organize, and regulate it according to their fancy” that has led to the destruction of liberty wherever this tendency is found.