The Book and Author: When a reviewer wishes to give special recognition to a book, he predicts that it will still be read “a hundred years from now.” The Law, first published as a pamphlet in June, 1850, is already more than a hundred years old. And because its truths are eternal, it will still be read when another century has passed. Frederic Bastiat (1801-1850) was a French economist, statesman, and author. He did most of his writing during the years just before – and immediately following – the Revolution of February 1848. Here’s a Bastiat biography.
- The Law
The law perverted! And the police powers of the state perverted along with it! The law, I say, not only turned from its proper purpose but made to follow an entirely contrary purpose! The law become the weapon of every kind of greed! Instead of checking crime, the law itself guilty of the evils it is supposed to punish! If this is true, it is a serious fact, and moral duty requires me to call the attention of my fellow-citizens to it.
- Life is a Gift from God
We hold from God the gift which includes all others. This gift is life-physical, intellectual, and moral life. But life cannot maintain itself alone. The Creator of life has entrusted us with the responsibility of preserving, developing, and perfecting it. In order that we may accomplish this, He has provided us with a collection of marvelous faculties. And He has put us in the midst of a variety of natural resources. By the application of our faculties to these natural resources we convert them into products, and use them. This process is necessary in order that life may run its appointed course. 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.
- What is Law?
What, then, is law? It is the collective organization of the individual right to lawful defense. Each of us has a natural right – from God – to defend his person, his liberty, and his property. These are the three basic requirements of life, and the preservation of any one of them is completely dependent upon the preservation of the other two. For what are our faculties but the extension of our individuality? And what is property but an extension of our faculties? If every person has the right to defend even by force-his person, his liberty, and his property, then it follows that a group of men have the right to organize and support a common force to protect these rights constantly. Thus the principle of collective right-its reason for existing, its lawfulness-is based on individual right. And the common force that protects this collective right cannot logically have any other purpose or any other mission than that for which it acts as a substitute. Thus, since an individual cannot lawfully use force against the person, liberty, or property of another individual, then the common force for the same reason-cannot lawfully be used to destroy the person, liberty, or property of individuals or groups. Such a perversion of force would be, in both cases, contrary to our premise. Force has been given to us to defend our own individual rights. Who will dare to say that force has been given to us to destroy the equal rights of our brothers? 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 organized combination of the individual forces? If this is true, then nothing can be more evident than this: 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.
- A Just and Enduring Government
If a nation were founded on this basis, it seems to me that order would prevail among the people, in thought as well as in deed. It seems to me that such a nation would have the most simple, easy to accept, economical, limited, non-oppressive, just, and enduring government imaginable-whatever its political form might be. Under such an administration, everyone would understand that he possessed all the privileges as well as all the responsibilities of his existence. No one would have any argument with government, provided that his person was respected, his labor was free, and the fruits of his labor were protected against all unjust attack. When successful, we would not have to thank the state for our success. And, conversely, when unsuccessful, we would no more think of blaming the state for our misfortune than would the farmers blame the state because of hail or frost. The state would be felt only by the invaluable blessings of safety provided by this concept of government. It can be further stated that, thanks to the non-intervention of the state in private affairs, our wants and their satisfactions would develop themselves in a logical manner. We would not see poor families seeking literary instruction before they have bread. We would not see cities populated at the expense of rural districts, nor rural districts at the expense of cities. We would not see the great displacements of capital, labor, and population that are caused by legislative decisions. The sources of our existence are made uncertain and precarious by these state-created displacements. And, furthermore, these acts burden the government with increased responsibilities.
- The Complete Perversion of the Law
But, unfortunately, law by no means confines itself to its proper functions. And when it has exceeded its proper functions, it has not done so merely in some inconsequential and debatable matters. The law has gone further than this; it has acted in direct opposition to its own purpose. The law has been used to destroy its own objective: It has been applied to annihilating the justice that it was supposed to maintain; to limiting and destroying rights which its real purpose was to respect. The law has placed the collective force at the disposal of the unscrupulous who wish, without risk, to exploit the person, liberty, and property of others. It has converted plunder into a right, in order to protect plunder. And it has converted lawful defense into a crime, in order to punish lawful defense. How has this perversion of the law been accomplished? And what have been the results? The law has been perverted by the influence of two entirely different causes: stupid greed and false philanthropy. Let us speak of the first.
- A Fatal Tendency of Mankind
Self-preservation and self-development are common aspirations among all people. And if everyone enjoyed the unrestricted use of his faculties and the free disposition of the fruits of his labor, social progress would be ceaseless, uninterrupted, and unfailing. But there is also another tendency that is common among people. When they can, they wish to live and prosper at the expense of others. This is no rash accusation. Nor does it come from a gloomy and uncharitable spirit. 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. 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.
- 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. 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. Now since man is naturally inclined to avoid pain-and since labor is pain in itself-it follows that men will resort to plunder whenever plunder is easier than work. History shows this quite clearly. And under these conditions, neither religion nor morality can stop it. When, then, does plunder stop? It stops when it becomes more painful and more dangerous than labor. It is evident, then, that the proper purpose of law is to use the power of its collective force to stop this fatal tendency to plunder instead of to work. All the measures of the law should protect property and punish plunder. But, generally, the law is made by one man or one class of men. And since law cannot operate without the sanction and support of a dominating force, this force must be entrusted to those who make the laws. This fact, combined with the fatal tendency that exists in the heart of man to satisfy his wants with the least possible effort, explains the almost universal perversion of the law. Thus it is easy to understand how law, instead of checking injustice, becomes the invincible weapon of injustice. It is easy to understand why the law is used by the legislator to destroy in varying degrees among the rest of the people, their personal independence by slavery, their liberty by oppression, and their property by plunder. This is done for the benefit of the person who makes the law, and in proportion to the power that he holds.
- Victims Of Lawful Plunder
Men naturally rebel against the injustice of which they are victims. Thus, when plunder is organized by law for the profit of those who make the law, all the plundered classes try somehow to enter-by peaceful or revolutionary means-into the making of laws. According to their degree of enlightenment, these plundered classes may propose one of two entirely different purposes when they attempt to attain political power: Either they may wish to stop lawful plunder, or they may wish to share in it. Woe to the nation when this latter purpose prevails among the mass victims of lawful plunder when they, in turn, seize the power to make laws! Until that happens, the few practice lawful plunder upon the many, a common practice where the right to participate in the making of law is limited to a few persons. 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. As soon as the plundered classes gain political power, they establish a system of reprisals against other classes. They do not abolish legal plunder. (This objective would demand more enlightenment than they possess.) Instead, they emulate their evil predecessors by participating in this legal plunder, even though it is against their own interests. It is as if it were necessary, before a reign of justice appears, for everyone to suffer a cruel retribution-some for their evilness, and some for their lack of understanding.
- The Results of Legal Plunder
It is impossible to introduce into society a greater change and a greater evil than this: the conversion of the law into an instrument of plunder. What are the consequences of such a perversion? It would require volumes to describe them all. Thus we must content ourselves with pointing out the most striking. In the first place, it erases from everyone’s conscience the distinction between justice and injustice. No society can exist unless the laws are respected to a certain degree. The safest way to make laws respected is to make them respectable. When law and morality contradict each other, the citizen has the cruel alternative of either losing his moral sense or losing his respect for the law. These two evils are of equal consequence, and it would be difficult for a person to choose between them. The nature of law is to maintain justice. This is so much the case that, in the minds of the people, law and justice are one and the same thing. There is in all of us a strong disposition to believe that anything lawful is also legitimate. This belief is so widespread that many persons have erroneously held that things are “just” because law makes them so. Thus, in order to make plunder appear just and sacred to many consciences, it is only necessary for the law to decree and sanction it. Slavery, re- strictions, and monopoly find defenders not only among those who profit from them but also among those who suffer from them.
- The Fate of Non-Conformists
If you suggest a doubt as to the morality of these institutions, it is boldly said that “You are a dangerous innovator, a utopian, a theorist, a subversive; you would shatter the foundation upon which society rests.” If you lecture upon morality or upon political science, there will be found official organizations petitioning the government in this vein of thought: “That science no longer be taught exclusively from the point of view of free trade (of liberty, of property, and of justice) as has been the case until now, but also, in the future, science is to be especially taught from the viewpoint of the facts and laws that regulate French industry (facts and laws which are contrary to liberty, to property, and to justice). That, in government-endowed teaching positions, the professor rigorously refrain from endangering in the slightest degree the respect due to the laws now in force.”* * General Council of Manufacturers, Agriculture, and Commerce, May 6, 1850. Thus, if there exists a law which sanctions slavery or monopoly, oppression or robbery, in any form whatever, it must not even be mentioned. For how can it be mentioned without damaging the respect which it inspires? Still further, morality and political economy must be taught from the point of view of this law; from the supposition that it must be a just law merely because it is a law. Another effect of this tragic perversion of the law is that it gives an exaggerated importance to political passions and conflicts, and to politics in general. I could prove this assertion in a thousand ways. But, by way of illustration, I shall limit myself to a subject that has lately occupied the minds of everyone: universal suffrage.
- Who Shall Judge?
The followers of Rousseau’s school of thought-who consider themselves far advanced, but whom I consider twenty centuries behind the times-will not agree with me on this. But universal suffrage-using the word in its strictest sense-is not one of those sacred dogmas which it is a crime to examine or doubt. In fact, serious objections may be made to universal suffrage. In the first place, the word universal conceals a gross fallacy. For example, there are 36 million people in France. Thus, to make the right of suffrage universal, there should be 36 million voters. But the most extended system permits only 9 million people to vote. Three persons out of four are excluded. And more than this, they are excluded by the fourth. This fourth person advances the principle of incapacity as his reason for excluding the others. Universal suffrage means, then, universal suffrage for those who are capable. But there remains this question of fact: Who is capable? Are minors, females, insane persons, and persons who have committed certain major crimes the only ones to be determined incapable?
- The Reason Why Voting is Restricted
A closer examination of the subject shows us the motive which causes the right of suffrage to be based upon the supposition of incapacity. The motive is that the elector or voter does not exercise this right for himself alone, but for everybody. The most extended elective system and the most restricted elective system are alike in this respect. They differ only in respect to what constitutes incapacity. It is not a difference of principle, but merely a difference of degree. If, as the republicans of our present-day Greek and Roman schools of thought pretend, the right of suffrage arrives with one’s birth, it would be an injustice for adults to prevent women and children from voting. Why are they prevented? Because they are presumed to be incapable. And why is incapacity a motive for exclusion? Because it is not the voter alone who suffers the consequences of his vote; because each vote touches and affects everyone in the entire community; because the people in the community have a right to demand some safeguards concerning the acts upon which their welfare and existence depend.
- The Answer is to Restrict the Law
I know what might be said in answer to this; what the objections might be. But this is not the place to exhaust a controversy of this nature. I wish merely to observe here that this controversy over universal suffrage (as well as most other political questions) which agitates, excites, and overthrows nations, would lose nearly all of its importance if the law had always been what it ought to be. In fact, if law were restricted to protecting all persons, all liberties, and all properties; if law were nothing more than the organized combination of the individual’s right to self defense; if law were the obstacle, the check, the punisher of all oppression and plunder-is it likely that we citizens would then argue much about the extent of the franchise? Under these circumstances, is it likely that the extent of the right to vote would endanger that supreme good, the public peace? Is it likely that the excluded classes would refuse to peaceably await the coming of their right to vote? Is it likely that those who had the right to vote would jealously defend their privilege? If the law were confined to its proper functions, everyone’s interest in the law would be the same. Is it not clear that, under these circumstances, those who voted could not inconvenience those who did not vote?
- The Fatal Idea of Legal Plunder
But on the other hand, imagine that this fatal principle has been introduced: 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, shipowners, artists, or comedians. Under these circumstances, then certainly every class will aspire to grasp the law, and logically so. The excluded classes will furiously demand their right to vote and will overthrow society rather than not to obtain it. Even beggars and vagabonds will then prove to you that they also have an incontestable title to vote. They will say to you: “We cannot buy wine, tobacco, or salt without paying the tax. And a part of the tax that we pay is given by law – in privileges and subsidies-to men who are richer than we are. Others use the law to raise the prices of bread, meat, iron, or cloth. Thus, since everyone else uses the law for his own profit, we also would like to use the law for our own profit. We demand from the law the right to relief, which is the poor man’s plunder. To obtain this right, we also should be voters and legislators in order that we may organize Beggary on a grand scale for our own class, as you have organized Protection on a grand scale for your class. Now don’t tell us beggars that you will act for us, and then toss us, as Mr. Mimerel proposes, 600,000 francs to keep us quiet, like throwing us a bone to gnaw. We have other claims. And anyway, we wish to bargain for ourselves as other classes have bargained for themselves!” And what can you say to answer that argument!
- Perverted Law Causes Conflict
As long as it is admitted that the law may be diverted from its true purpose-that it may violate property instead of protecting it-then everyone will want to participate in making the law, either to protect himself against plunder or to use it for plunder. Political questions will always be prejudicial, dominant, and all-absorbing. There will be fighting at the door of the Legislative Palace, and the struggle within will be no less furious. To know this, it is hardly necessary to examine what transpires in the French and English legislatures; merely to understand the issue is to know the answer. Is there any need to offer proof that this odious perversion of the law is a perpetual source of hatred and discord; that it tends to destroy society itself? If such proof is needed, look at the United States [in 1850]. There is no country in the world where the law is kept more within its proper domain: the protection of every person’s liberty and property. As a consequence of this, there appears to be no country in the world where the social order rests on a firmer foundation. But even in the United States, there are two issues-and only two-that have always endangered the public peace.
- Slavery and Tariffs are Plunder
What are these two issues? 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. It is a most remarkable fact that this double legal crime a sorrowful inheritance from the Old World-should be the only issue which can, and perhaps will, lead to the ruin of the Union. It is indeed impossible to imagine, at the very heart of a society, a more astounding fact than this: The law has come to be an instrument of injustice. And if this fact brings terrible consequences to the United States-where the proper purpose of the law has been perverted only in the instances of slavery and tariffs – what must be the consequences in Europe, where the perversion of the law is a principle; a system?
- Two Kinds of Plunder
Mr. de Montalembert [politician and writer] adopting the thought contained in a famous proclamation by Mr. Carlier, has said: “We must make war against socialism.” According to the definition of socialism advanced by Mr. Charles Dupin, he meant: “We must make war against plunder.” But of what plunder was he speaking? For there are two kinds of plunder: legal and illegal. I do not think that illegal plunder, such as theft or swindling which the penal code defines, anticipates, and punishes can be called socialism. It is not this kind of plunder that systematically threatens the foundations of society. Anyway, the war against this kind of plunder has not waited for the command of these gentlemen. The war against illegal plunder has been fought since the beginning of the world. Long before the Revolution of February 1848-long before the appearance even of socialism itself-France had provided police, judges, gendarmes, prisons, dungeons, and scaffolds for the purpose of fighting illegal plunder. The law itself conducts this war, and it is my wish and opinion that the law should always maintain this attitude toward plunder.
- The Law Defends Plunder
But it does not always do this. Sometimes the law defends plunder and participates in it. Thus the beneficiaries are spared the shame, danger, and scruple which their acts would otherwise involve. Sometimes the law places the whole apparatus of judges, police, prisons, and gendarmes at the service of the plunderers, and treats the victim-when he defends himself-as a criminal. In short, there is a legal plunder, and it is of this, no doubt, that Mr. de Montalembert speaks. This legal plunder may be only an isolated stain among the legislative measures of the people. If so, it is best to wipe it out with a minimum of speeches and denunciations-and in spite of the uproar of the vested interests.
- How to Identify Legal Plunder
But how is this legal plunder to be identified? Quite simple. 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. Then abolish this law without delay, for it is not only an evil itself, but also it is a fertile source for further evils because it invites reprisals. If such a law-which may be an isolated case-is not abolished immediately, it will spread, multiply, and develop into a system. The person who profits from this law will complain bitterly, defending his acquired rights. He will claim that the state is obligated to protect and encourage his particular industry; that this procedure enriches the state because the protected industry is thus able to spend more and to pay higher wages to the poor workingmen. Do not listen to this sophistry by vested interests. The acceptance of these arguments will build legal plunder into a whole system. In fact, this has already occurred. The present-day delusion is an attempt to enrich everyone at the expense of everyone else; to make plunder universal under the pretense of organizing it.
- Legal Plunder Has Many Names
Now, legal plunder can be committed in an infinite number of ways. Thus we have an infinite number of plans for organizing it: tariffs, protection, benefits, subsidies, encouragements, progressive taxation, public schools, guaranteed jobs, guaranteed profits, minimum wages, a right to relief, a right to the tools of labor, free credit, and so on, and so on. All these plans as a whole-with their common aim of legal plunder-constitute socialism. Now, since under this definition socialism is a body of doctrine, what attack can be made against it other than a war of doctrine? If you find this socialistic doctrine to be false, absurd, and evil, then refute it. And the more false, the more absurd, and the more evil it is, the easier it will be to refute. Above all, if you wish to be strong, begin by rooting out every particle of socialism that may have crept into your legislation. This will be no light task.
- Socialism is Legal Plunder
Mr. de Montalembert has been accused of desiring to fight socialism by the use of brute force. He ought to be exonerated from this accusation, for he has plainly said: “The war that we must fight against socialism must be in harmony with law, honor, and justice.” But why does not Mr. de Montalembert see that he has placed himself in a vicious circle? You would use the law to oppose socialism? But it is upon the law that socialism itself relies. Socialists desire to practice legal plunder, not illegal plunder. Socialists, like all other monopolists, desire to make the law their own weapon. And when once the law is on the side of socialism, how can it be used against socialism? For when plunder is abetted by the law, it does not fear your courts, your gendarmes, and your prisons. Rather, it may call upon them for help. To prevent this, you would exclude socialism from entering into the making of laws? You would prevent socialists from entering the Legislative Palace? You shall not succeed, I predict, so long as legal plunder continues to be the main business of the legislature. It is illogical – in fact, absurd – to assume otherwise.
- The Choice Before Us
This question of legal plunder must be settled once and for all, and there are only three ways to settle it: 1. The few plunder the many. 2. Everybody plunders everybody. 3. Nobody plunders anybody. We must make our choice among limited plunder, universal plunder, and no plunder. The law can follow only one of these three. Limited legal plunder: This system prevailed when the right to vote was restricted. One would turn back to this system to prevent the invasion of socialism. Universal legal plunder: We have been threatened with this system since the franchise was made universal. The newly enfranchised majority has decided to formulate law on the same principle of legal plunder that was used by their predecessors when the vote was limited. No legal plunder: This is the principle of justice, peace, order, stability, harmony, and logic. Until the day of my death, I shall proclaim this principle with all the force of my lungs (which alas! is all too inadequate).* *Translator’s note: At the time this was written, Mr. Bastiat knew that he was dying of tuberculosis. Within a year, he was dead.
- The Proper Function of the Law
And, in all sincerity, can anything more than the absence of plunder be required of the law? Can the law-which necessarily requires the use of force-rationally be used for anything except protecting the rights of everyone? I defy anyone to extend it beyond this purpose without perverting it and, consequently, turning might against right. This is the most fatal and most illogical social perversion that can possibly be imagined. It must be admitted that the true solution-so long searched for in the area of social relationships-is contained in these simple words: Law is organized justice. Now this must be said: 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?
- False Philanthropy the Seductive Lure of Socialism
Here I encounter the most popular fallacy of our times. 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 selfimprovement. Instead, it is demanded that the law should directly extend welfare, education, and morality throughout the nation. This is the seductive lure of socialism. And I repeat again: These two uses of the law are in direct contradiction to each other. We must choose between them. A citizen cannot at the same time be free and not free.
- Enforced Fraternity Destroys Liberty
Mr. De Lamartine once wrote to me thusly: “Your doctrine is only the half of my program. You have stopped at liberty; I go on to fraternity.” I answered him: “The second half of your program will destroy the first.” In fact, it is impossible for me to separate the word fraternity from the word voluntary. I cannot possibly understand how fraternity can be legally enforced without liberty being legally destroyed, and thus justice being legally trampled underfoot. Legal plunder has two roots: One of them, as I have said before, is in human greed; the other is in false philanthropy. At this point, I think that I should explain exactly what I mean by the word plunder.* *Translator’s note: The French word used by Mr. Bastiat is spoliation.
- Plunder Violates Ownership
I do not, as is often done, use the word in any vague, uncertain approximate, or metaphorical sense. I use it in its scientific acceptance – as expressing the idea opposite to that of property [wages, land, money, or whatever]. When a portion of wealth is transferred from the person who owns it-without his consent and without compensation, and whether by force or by fraud-to anyone who does not own it, then I say that property is violated; that an act of plunder is committed. I say that this act is exactly what the law is supposed to suppress, always and everywhere. When the law itself commits this act that it is supposed to suppress, I say that plunder is still committed, and I add that from the point of view of society and welfare, this agression against rights is even worse. In this case of legal plunder, however, the person who receives the benefits is not responsible for the act of plundering. The responsibility for this legal plunder rests with the law, the legislator, and society itself. Therein lies the political danger. It is to be regretted that the word plunder is offensive. I have tried in vain to find an inoffensive word, for I would not at any time- especially now-wish to add an irritating word to our dissentions. Thus, whether I am believed or not, I declare that I do not mean to attack the intentions or the morality of anyone. Rather, I am attacking an idea which I believe to be false; a system which appears to me to be unjust; an injustice so independent of personal intentions that each of us profits from it without wishing to do so, and suffers from it without knowing the cause of the suffering.
- Three Systems of Plunder
The sincerity of those who advocate protectionism, socialism, and communism is not here questioned. Any writer who would do that must be influenced by a political spirit or a political fear. It is to be pointed out, however, that protectionism, socialism, and communism are basically the same plant in three different stages of its growth. All that can be said is that legal plunder is more visible in communism because it is complete plunder; and in protectionism because the plunder is limited to specific groups and industries.* Thus it follows that, of the three systems, socialism is the vaguest, the most indecisive, and, consequently, the most sincere stage of development. *If the special privilege of government protection against competition monopoly-were granted only to one group in France, the iron workers, for instance, this act would so obviously be legal plunder that it could not last for long. It is for this reason that we see all the protected trades combined into a common cause. They even organize themselves in such a manner as to appear to represent all persons who labor. Instinctively, they feel that legal plunder is concealed by generalizing it. But sincere or insincere, the intentions of persons are not here under question. In fact, I have already said that legal plunder is based partially on philanthropy, even though it is a false philanthropy. With this explanation, let us examine the value-the origin and the tendency-of this popular aspiration which claims to accomplish the general welfare by general plunder.
- Law is Force
Since the law organizes justice, the socialists ask why the law should not also organize labor, education, and religion. Why should not law be used for these purposes? Because it could not organize labor, education, and religion without destroying justice. We must remember that law is force, and that, consequently, the proper functions of the law cannot lawfully extend beyond the proper functions of force. 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.
- Law is a Negative Concept
The harmlessness of the mission performed by law and lawful defense is self-evident; the usefulness is obvious; and the legitimacy cannot be disputed. As a friend of mine once remarked, 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. 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. 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.
- The Political Approach
When a politician views society from the seclusion of his office, he is struck by the spectacle of the inequality that he sees. He deplores the deprivations which are the lot of so many of our brothers, deprivations which appear to be even sadder when contrasted with luxury and wealth. Perhaps the politician should ask himself whether this state of affairs has not been caused by old conquests and lootings, and by more recent legal plunder. Perhaps he should consider this proposition: Since all persons seek well-being and perfection, would not a condition of justice be sufficient to cause the greatest efforts toward progress, and the greatest possible equality that is compatible with individual responsibility? Would not this be in accord with the concept of individual responsibility which God has willed in order that mankind may have the choice between vice and virtue, and the resulting punishment and reward? But the politician never gives this a thought. His mind turns to organizations, combinations, and arrangements-legal or apparently legal. He attempts to remedy the evil by increasing and perpetu- ating the very thing that caused the evil in the first place: legal plunder. We have seen that justice is a negative concept. Is there even one of these positive legal ations that does not contain the principle of plunder?
- The Law And Charity
You say: “There are persons who have no money,” and you turn to the law. But the law is not a breast that fills itself with milk. Nor are the lacteal veins of the law supplied with milk from a source outside the society. Nothing can enter the public treasury for the benefit of one citizen or one class unless other citizens and other classes have been forced to send it in. If every person draws from the treasury the amount that he has put in it, it is true that the law then plunders nobody. But this procedure does nothing for the persons who have no money. It does not promote equality of income. The law can be an instrument of equalization only as it takes from some persons and gives to other persons. When the law does this, it is an instrument of plunder. With this in mind, examine the protective tariffs, subsidies, guaranteed profits, guaranteed jobs, relief and welfare schemes, public education, progressive taxation, free credit, and public works. You will find that they are always based on legal plunder, organized injustice.
- The Law and Education
You say: “There are persons who lack education,” and you turn to the law. But the law is not, in itself, a torch of learning which shines its light abroad. The law extends over a society where some persons have knowledge and others do not; where some citizens need to learn, and others can teach. In this matter of education, the law has only two alternatives: It can permit this transaction of teaching-and-learning to operate freely and without the use of force, or it can force human wills in this matter by taking from some of them enough to pay the teachers who are appointed by government to instruct others, without charge. But in this second case, the law commits legal plunder by violating liberty and property.
- The Law and Morals
You say: “Here are persons who are lacking in morality or religion,” and you turn to the law. But law is force. And need I point out what a violent and futile effort it is to use force in the matters of morality and religion? It would seem that socialists, however self-complacent, could not avoid seeing this monstrous legal plunder that results from such systems and such efforts. But what do the socialists do? They cleverly disguise this legal plunder from others-and even from themselves-under the seductive names of fraternity, unity, organization, and association. Because we ask so little from the law – only justice-the socialists thereby assume that we reject fraternity, unity, organization, and association. The socialists brand us with the name individualist. But we assure the socialists 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. We do not repudiate the natural unity of mankind under Providence.
- A Confusion of Terms
Socialism, like the ancient ideas from which it springs, 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.
- The Influence of Socialist Writers
How did politicians ever come to believe this weird idea that the law could be made to produce what it does not contain the wealth, science, and religion that, in a positive sense, constitute prosperity? Is it due to the influence of our modern writers on public affairs? Present-day writers-especially those of the socialist school of thought-base their various theories upon one common hypothesis: They divide mankind into two parts. People in general with the exception of the writer himself-form the first group. The writer, all alone, forms the second and most important group. Surely this is the weirdest and most conceited notion that ever entered a human brain! In fact, these writers on public affairs begin by supposing that people have within themselves no means of discernment; no motivation to action. The writers assume that people are inert matter, passive particles, motion-less atoms, at best a kind of vegetation indifferent to its own manner of existence. They assume that people 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. Moreover, not one of these writers on governmental affairs hesitates to imagine that he himself-under the title of organizer, discoverer, legislator, or founder-is this will and hand, this universal motivating force, this creative power whose sublime mission is to mold these scattered materials-persons-into a society. These socialist writers look upon people in the same manner that the gardener views his trees. Just as the gardener capriciously shapes the trees into pyramids, parasols, cubes, vases, fans, and other forms, just so does the socialist writer whimsically shape human beings into groups, series, centers, subcenters, honeycombs, laborcorps, and other variations. And just as the gardener needs axes, pruning hooks, saws, and shears to shape his trees, just so does the socialist writer need the force that he can find only in law to shape human beings. For this purpose, he devises tariff laws, tax laws, relief laws, and school laws.
- The Socialists Wish to Play God
Socialists look upon people as raw material to be formed into social combinations. This is so true that, if by chance, the socialists have any doubts about the success of these combinations, they will demand that a small portion of mankind be set aside to experiment upon. The popular idea of trying all systems is well known. And one socialist leader has been known seriously to demand that the Constituent Assembly give him a small district with all its inhabitants, to try his experiments upon. In the same manner, an inventor makes a model before he constructs the full-sized machine; the chemist wastes some chemicals the farmer wastes some seeds and land – to try out an idea. But what a difference there is between the gardener and his trees, between the inventor and his machine, between the chemist and his elements, between the farmer and his seeds! And in all sincerity, the socialist thinks that there is the same difference between him and mankind! It is no wonder that the writers of the nineteenth century look upon society as an artificial creation of the legislator’s genius. This ideathe fruit of classical education-has taken possession of all the intellectuals and famous writers of our country. To these intellectuals and writers, the relationship between persons and the legislator appears to be the same as the relationship between the clay and the potter. Moreover, even where they have consented to recognize a principle of action in the heart of man-and a principle of discernment in man’s intellect-they have considered these gifts from God to be fatal gifts. They have thought that persons, under the impulse of these two gifts, would fatally tend to ruin themselves. They assume that if the legislators left persons free to follow their own inclinations, they would arrive at atheism instead of religion, ignor- ance instead of knowledge, poverty instead of production and exchange.
- The Socialists Despise Mankind
According to these writers, it is indeed fortunate that Heaven has bestowed upon certain men-governors and legislators-the exact opposite inclinations, not only for their own sake but also for the sake of the rest of the world! While mankind tends toward evil, the legislators yearn for good; while mankind advances toward darkness, the legislators aspire for enlightenment; while mankind is drawn toward vice, the legislators are attracted toward virtue. Since they have decided that this is the true state of affairs, they then demand the use of force in order to substitute their own inclinations for those of the human race. Open at random any book on philosophy, politics, or history, and you will probably see how deeply rooted in our country is this idea-the child of classical studies, the mother of socialism. In all of them, you will probably find this idea that mankind is merely inert matter, receiving life, organization, morality, and prosperity from the power of the state. And even worse, it will be stated that mankind tends toward degeneration, and is stopped from this downward course only by the mysterious hand of the legislator. Conventional classical thought everywhere says that behind passive society there is a concealed power called law or legislator (or called by some other terminology that designates some unnamed person or persons of undisputed nfluence and authority) which moves, controls, benefits, and improves mankind.
- A Defense of Compulsory Labor
Let us first consider a quotation from Bossuet [tutor to the Dauphin in the Court of Louis XIV]: One of the things most strongly impressed (by whom?) upon the minds of the Egyptians was patriotism….No one way permitted to be useless to the state. The law assigned to each one his work, which was handed down from father to son. No one was permitted to have two professions. Nor could a person change from one job to another. …But there was one task to which all were forced to conform: the study of the laws and of wisdom. Ignorance of religion and of the political regulations of the country was not excused under any circumstances. Moreover, each occupation was assigned (by whom?) to a certain district….Among the good laws, one of the best was that everyone was trained (by whom?) to obey them. As a result of this, Egypt was filled with wonderful inventions, and nothing was neglected that could make life easy and quiet. Thus, according to Bossuet, persons derive nothing from themselves. Patriotism, prosperity, inventions, husbandry, science – all of these are given to the people by the operation of the laws, the rulers. All that the people have to do is to bow to leadership.
- A Defense of Paternal Government
Bossuet carries this idea of the state as the source of all progress even so far as to defend the Egyptians against the charge that they rejected wrestling and music. He said: How is that possible? These arts were invented by Trismegistus [who was alleged to have been Chancellor to the Egyptian god Osiris]. And again among the Persians, Bossuet claims that all comes from above: One of the first responsibilities of the prince was to encourage agriculture….Just as there were offices established for the regulation of armies, just so were there offices for the direction of farm work…. The Persian people were inspired with an overwhelming respect for royal authority. And according to Bossuet, the Greek people, although exceedingly intelligent, had no sense of personal responsibility; like dogs and horses, they themselves could not have invented the most simple games: The Greeks, naturally intelligent and courageous, had been early cultivated by the kings and settlers who had come from Egypt. From these Egyptian rulers, the Greek people had learned bodily exercises, foot races, and horse and chariot races….But the best thing that the Egyptians had taught the Greeks was to become docile, and to permit themselves to be formed by the law for the public good.
- The Idea of Passive Mankind
It cannot be disputed that these classical theories [advanced by these latter-day teachers, writers, legislators, economists, and philosophers] held that everything came to the people from a source outside themselves. As another example, take Fenelon [archbishop, author, and instructor to the Duke of Burgundy]. He was a witness to the power of Louis XIV. This, plus the fact that he was nurtured in the classical studies and the admiration of antiquity, naturally caused Fenelon to accept the idea that mankind should be passive; that the misfortunes and the prosperity-vices and virtues-of people are caused by the external influence exercised upon them by the law and the legislators. Thus, in his Utopia of Salentum, he puts menwith all their interests, faculties, desires, and possessions- under the absolute discretion of the legislator. Whatever the issue may be, persons do not decide it for themselves; the prince decides for them. The prince is depicted as the soul of this shapeless mass of people who form the nation. In the prince resides the thought, the foresight, all progress, and the principle of all organization. Thus all responsibility rests with him. The whole of the tenth book of Fenelon’s Telemachus proves this. I refer the reader to it, and content myself with quoting at ran- dom from this celebrated work to which, in every other respect, I am the first to pay homage.
- Socialists Ignore Reason and Facts
With the amazing credulity which is typical of the classicists, Fenelon ignores the authority of reason and facts when he attributes the general happiness of the Egyptians, not to their own wisdom but to the wisdom of their kings: We could not turn our eyes to either shore without seeing rich towns and country estates most agreeably located; fields, never fallowed, covered with golden crops every year; meadows full of flocks; workers bending under the weight of the fruit which the earth lavished upon its cultivators; shepherds who made the echoes resound with the soft notes from their pipes and flutes. “Happy,” said Mentor, “is the people governed by a wise king.”… Later, Mentor desired that I observe the contentment and abundance which covered all Egypt, where twenty-two thousand cities could be counted. He admired the good police regulations in the cities; the justice rendered in favor of the poor against the rich; the sound education of the children in obedience, labor, sobriety, and the love of the arts and letters; the exactness with which all religious ceremonies were performed; the unselfishness, the high regard for honor, the faithfulness to men, and the fear of the gods which every father taught his children. He never stopped admiring the prosperity of the country. “Happy,” said he, “is the people ruled by a wise king in such a manner.”
- Socialists Want To Regiment People
Fenelon’s idyl on Crete is even more alluring. Mentor is made to say: All that you see in this wonderful island results from the laws of Minos. The education which he ordained for the children makes their bodies strong and robust. From the very beginning, one accustoms the children to a life of frugality and labor, because one assumes that all pleasures of the senses weaken both body and mind. Thus one allows them no pleasure except that of becoming invincible by virtue, and of acquiring glory. …Here one punishes three vices that go unpunished among other people: ingrat- itude, hypocrisy, and greed. There is no need to punish persons for pomp and dissipation, for they are unknown in Crete….No costly furniture, no magnificent clothing, no delicious feasts, no gilded palaces are permitted. Thus does Mentor prepare his student to mold and to manipulatedoubtless with the best of intentions-the people of Ithaca. And to convince the student of the wisdom of these ideas, Mentor recites to him the example of Salentum. It is from this sort of philosophy that we receive our first political ideas! We are taught to treat persons much as an instructor in agriculture teaches farmers to prepare and tend the soil.
- A Famous Name and An Evil Idea
Now listen to the great Montesquieu on this same subject: To maintain the spirit of commerce, it is necessary that all the laws must favor it. These laws, by proportionately dividing up the fortunes as they are made in commerce, should provide every poor citizen with sufficiently easy circumstances to enable him to work like the others. These same Laws should put every rich citizen in such lowered circumstances as to force him to work in order to keep or to gain. Thus the laws are to dispose of all fortunes! Although real equality is the soul of the state in a democracy, yet this is so difficult to extablish that an extreme precision in this matter would not always be desirable. It is sufficient that there be established a census to reduce or fix these differences in wealth within a certain limit. After this is done, it remains for specific laws to equalize inequality by imposing burdens upon the rich and granting relief to the poor. Here again we find the idea of equalizing fortunes by law, by force. In Greece, there were two kinds of republics, One, Sparta, was military; the other, Athens, was commercial. In the former, it was desired that the citizens be idle; in the latter, love of labor was encouraged. Note the marvelous genius of these legislators: By debasing all established customs-by mixing the usual concepts of all virtues – they knew in advance that the world Would admire their wisdom. Lycurgus gave stability to his city of Sparta by combining petty thievery with the soul of justice; by combining the most complete bondage with the most extreme liberty; by combining the most atrocious beliefs with the greatest moderation. He appeared to deprive his city of all its resources, arts, commerce, money, and defenses. In Sparta, ambition went without the hope of material reward. Natural affection found no outlet because a man was neither son, husband, nor father. Even chastity was no longer considered becoming. By this road, Lycurgus led Sparta on to greatness and glory. This boldness which was to be found in the institutions of Greece has been repeated in the midst of the degeneracy and corruption of our modern times. An occasional honest legislator has molded a people in whom integrity appears as natural as courage in the Spartans. Mr. William Penn, for example, is a true Lycurgus. Even though Mr. Penn had peace as his objective-while Lycurgus had war as his objective-they resemble each other in that their moral prestige over free men allowed them� to overcome prejudices, to subdue passions, and to lead their respective peoples into new paths. The country of Paraguay furnishes us with another example [of a people who, for their own good, are molded by their legislators].* *Translator’s note: What was then known as Paraguay was a much larger area than it is today. It was colonized by the Jesuits who settled the Indians into villages, and generally saved them from further brutalities by the avid conquerors. Now it is true that if one considers the sheer pleasure of commanding to be the greatest joy in life, he contemplates a crime against society; it will, however, always be a noble ideal to govern men in a manner that will make them happier. Those who desire to establish similar institutions must do as follows: Establish common ownership of property as in the re- public of Plato; revere the gods as Plato commanded; prevent foreigners from mingling with the people, in order to preserve the customs; let the state, instead of the citizens, establish commerce. The legislators should supply arts instead of luxuries; they should satisfy needs instead of desires.
- A Frightful Idea
Those who are subject to vulgar infatuation may exclaim: “Montesquieu has said this! So it’s magnificent! It’s sublime!” As for me, I have the courage of my own opinion. I say: What! You have the nerve to call that fine? It is frightful! It is abominable! These random selections from the writings of Montesquieu show that he considers persons, liberties, property – mankind itself-to be nothing but materials for legislators to exercise their wisdom upon.
- The Leader of The Democrats
Now let us examine Rousseau on this subject. This writer on public affairs is the supreme authority of the democrats. And although he bases the social structure upon the will of the people, he has, to a greater extent than anyone else, completely accepted the theory of the total inertness of mankind in the presence of the legislators: If it is true that a great prince is rare, then is it not true that a great legislator is even more rare? The prince has only to follow the pattern that the legislator creates. The legislator is the mechanic who invents the machine; the prince is merely the workman who sets it in motion. And what part do persons play in all this? They are merely the machine that is set in motion. In fact, are they not merely considered to be the raw material of which the machine is made? Thus the same relationship exists between the legislator and the prince as exists between the agricultural expert and the farmer; and the relationship between the prince and his subjects is the same as that between the farmer and his land. How high above mankind, then, has this writer on public affairs been placed? Rousseau rules over legislators themselves, and teaches them their trade in these imperious terms: Would you give stability to the state? Then bring the extremes as closely together as possible. Tolerate neither wealthy persons nor beggars. If the soil is poor or barren, or the country too small for its inhabitants, then turn to industry and arts, and trade these products for the foods that you need….On a fertile soil if you are short of inhabitantsdevote all your attention to agriculture, because this multiplies people; banish the arts, because they only serve to depopulate the nation…. If you have extensive and accessible coast lines, then cover the sea with merchant ships; you will have a brilliant but short existence. If your seas wash only inaccessible cliffs, let the people be barbarous and eat fish; they will live more quietlyperhaps better-and, most certainly, they will live more happily. In short, and in addition to the maxims that are common to all, every people has its own particular circumstances. And this fact in itself will cause legislation appropriate to the circumstances. This is the reason why the Hebrews formerly-and, more recently, the Arabs-had religion as their principle objective. The objective of the Athenians was literature; of Carthage and Tyre, commerce; of Rhodes, naval affairs; of Sparta, war; and of Rome, virtue. The author of The Spirit of Laws has shown by what art the legislator should direct his institutions toward each of these objectives….But suppose that the legislator mistakes his proper objective, and acts on a principle different from that indicated by the nature of things? Suppose that the selected principle sometimes creates slavery, and sometimes liberty; sometimes wealth, and sometimes population; sometimes peace, and sometimes conquest? This confusion of objective will slowly enfeeble the law and impair the constitution. The state will be subjected to ceaseless agitations until it is destroyed or changed, and invincible nature regains her empire. But if nature is sufficiently invincible to regain its empire, why does not Rousseau admit that it did not need the legislator to gain it in the first place? Why does he not see that men, by obeying their own instincts, would turn to farming on fertile soil, and to commerce on an extensive and easily accessible coast, without the interference of a Lycurgus or a Solon or a Rousseau who might easily be mistaken.
- Socialists Want Forced Conformity
Be that as it may, Rousseau invests the creators, organizers, directors, legislators, and controllers of society with a terrible responsibility. He is, therefore, most exacting with them: He who would dare to undertake the political creation of a people ought to believe that he can, in a manner of speaking, transform human nature; transform each individualwho, by himself, is a solitary and perfect whole-into a mere part of a greater whole from which the individual will henceforth receive his life and being. Thus the person who would undertake the political creation of a people should believe in his ability to alter man’s constitution; to strengthen it; to substitute for the physical and independent existence received from nature, an existence which is partial and moral.* In short, the would-be creator of political man must remove man’s own forces and endow him with others that are naturally alien to him. Poor human nature! What would become of a person’s dignity if it were entrusted to the followers of Rousseau? *Translator’s note: According to Rousseau, the existence of social man is partial in the sense that he is henceforth merely a part of society. Knowing himself as such-and thinking and feeling from the point of view of the whole-he
- Legislators Desire To Mold Mankind
Now let us examine Raynal on this subject of mankind being molded by the legislator: The legislator must first consider the climate, the air, and the soil. The resources at His disposal determine his duties. He must first consider his locality. A population living on maritime shores must have laws designed for navigation….If it is an inland settlement, the legislator must make his plans accoring to the nature and fertility of the soil…. It is especially in the distribution of property that the genius of the legislator will be found. As a general rule, when a new colony is established in any country, sufficient land should be given to each man to support his family…. On an uncultivated island that yon are populating with children, you need do nothing but let the seeds of truth germinate along with the development of reason….But when you resettle a nation with a past into a new country, the skill of the legislator rests in the policy of permitting the people to retain no injurious opinions and customs which can possibly be cured and corrected. If you desire to prevent these opinions and customs from becoming permanent, you will secure the second generation by a general system of public education for the children. A prince or a legislator should never establish a colony without first arranging to send wise men along to instruct the youth… In a new colony, ample opportunity is open to the careful legislator who desires to purify, the customs and manners of the people. If he has virtue and genius, the land and the people at his disposal will inspire his soul with a plan for society. A writer can only vaguely trace the plan in advance because it is necessarily subject to the instability of all hypotheses; the problem has many forms, complications, and circumstances that are difficult to foresee and settle in detail.
- Legislators Told How To Manage Men
Raynal’s instructions to the legislators on how to manage people may be compared to a professor of agriculture lecturing his students: “The climate is the first rule for the farmer. His resources determine his procedure. He must first consider his locality. If his sou is clay, he must do so and so. If his soil is sand, he must act in another manner. Every facility is open to the farmer who wishes to clear and improve his soil. If he is skillful enough, the manure at his disposal will suggest to him a plan of operation. A professor can only vaguely trace this plan in advance because it is necessarily subject to the instability of all hypotheses; the problem has many forms, complications, and circumstances that are difficult to foresee and settle in detail.” Oh, sublime writers! Please remember sometimes that this clay, this sand, and this manure which you so arbitrarily dispose of, are men! They are your equals! They are intelligent and free human beings like yourselves! As you have, they too have received from God the faculty to observe, to plan ahead, to think, and to judge for themselves!
- A Temporary Dictatorship
Here is Mably on this subject of the law and the legislator. In the passages preceding the one here quoted, Mably has supposed the laws, due to a neglect of security, to be worn out. He continues to address the reader thusly: Under these circumstances, it is obvious that the springs of government are slack. Give them a new tension, and the evil will be cured….Think less of punishing faults, and more of rewarding that which you need. In this manner you will restore to your republic the vigor of youth. Because free people have been ignorant of this procedure, they have lost their liberty! But if the evil has made such headway that ordinary governmental procedures are unable to cure it, then resort to an extraordinary tribunal with considerable powers for a short time. The imagination of the citizens needs to be struck a hard blow. In this manner, Mably continues through twenty volumes. Under the influence of teaching like this-which stems from classical education-there came a time when everyone wished to place himself above mankind in order to arrange, organize, and regulate it in his own way.
- Socialists Want Equality of Wealth
Next let us examine Condillac on this subject of the legislators and mankind: My Lord, assume the character of Lycurgus or of Solon. And before you finish reading this essay, amuse yourself by giving laws to some savages in America or Africa. Confine these nomads to fixed dwellings; teach them to tend flocks ….Attempt to develop the social consciousness that nature has planted in them….Force them to begin to practice the duties of humanity….Use punishment to cause sensual pleasures to become distasteful to them. Then you will see that every point of your legislation will cause these savages to lose a vice and gain a virtue. All people have had laws. But few people have been happy. Why is this so? Because the legislators themselves have almost always been ignorant of the purpose of society, which is the uniting of families by a common interest. Impartiality in law consists of two things: the establishing of equality in wealth and equality in dignity among the citizens ….As the laws establish greater equality, they become propor- tionately more precious to every citizen…. When all men are equal in wealth and dignity-and when the laws leave no hope of disturbing this equality-how can men then be agitated by greed, ambition, dissipation, idleness, sloth, envy, hatred, or jealousy? What you have learned about the republic of Sparta should enlighten you on this question. No other state has ever had laws more in accord with the order of nature; of equality.
- The Error of The Socialist Writers
Actually, it is not strange that during the seventeenth and eighteenth centuries the human race was regarded as inert matter, ready to receive everything-form, face, energy, movement, life – from a great prince or a great legislator or a great genius. These centuries were nourished on the study of antiquity. And antiquity presents everywhere-in Egypt, Persia, Greece, Rome-the spectacle of a few men molding mankind according to their whims, thanks to the prestige of force and of fraud. But this does not prove that this situation is desirable. It proves only that since men and society are capable of improvement, it is naturally to be expected that error, ignorance, despotism, slavery, and superstition should be greatest towards the origins of history. The writers quoted above were not in error when they found ancient institutions to be such, but they were in error when they offered them for the admiration and imitation of future genera- tions. Uncritical and childish conformists, they took for granted the grandeur, dignity, morality, and happiness of the artificial societies of the ancient world. 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.
- What is Liberty?
Actually, what is the political struggle that we witness? It is the instinctive struggle of all people toward liberty. And what is this liberty, whose very name makes the heart beat faster and shakes the world? Is it not the union of all libertiesliberty of conscience, of education, of association, of the press, of travel, of labor, of trade? In short, is not liberty the freedom of every person to make full use of his faculties, so long as he does not harm other persons while doing so? Is not liberty the destruction of all despotism-including, of course, legal despotism? Finally, is not liberty the restricting of the law only to its rational sphere of organizing the right of the individual to lawful selfdefense; of punishing injustice? It must be admitted that the tendency of the human race toward liberty is largely thwarted, especially in France. This is greatly due to a fatal desire-learned from the teachings of antiquity-that our writers on public affairs have in common: They desire to set themselves above mankind in order to arrange, organize, and regulate it according to their fancy.
- Philanthropic Tyranny
While society is struggling toward liberty, these famous men who put themselves at its head are filled with the spirit of the seventeenth and eighteenth centuries. They think only of subjecting mankind to the philanthropic tyranny of their own social inventions. Like Rousseau, they desire to force mankind docilely to bear this yoke of the public welfare that they have dreamed up in their own imaginations. This was especially true in 1789. No sooner was the old regime destroyed than society was subjected to still other artificial arrangements, always starting from the same point: the omnipotence of the law. Listen to the ideas of a few of the writers and politicians during that period:
Saint-Just: The legislator commands the future. It is for him to will the good of mankind. It is for him to make men what he wills them to be.
Robespierre: The function of government is to direct the physical and moral powers of the nation toward the end for which the commonwealth has come into being.
Billaud-Varennes: A people who are to be returned to liberty must be formed anew. A strong force and vigorous action are necessary to destroy old prejudices, to change old customs, to correct depraved affections, to restrict superfluous wants, and to destroy engrained vices…. Citizens, the inflexible austerity of Lycurgus created the firm foundation of the Spartan republic. The weak and trusting character of Solon plunged Athens into slavery. This parallel embraces the whole science of government.
Le Pelletier: Considering the extent of human degradation, I am convinced that it is necessary to effect a total regeneration and, if I may so express myself, of creating a new people.
- The Socialists Want Dictatorship
Again, it is claimed that persons are nothing but raw material. It is not for them to will their own improvement; they are incapable of it. According to Saint-Just, only the legislator is capable of doing this. Persons are merely to be what the legislator wills them to be. According to Robespierre, who copies Rousseau literally, the legislator begins by decreeing the end for which the commonwealth has come into being. Once this is determined, the government has only to direct the physical and moral forces of the nation toward that end. Meanwhile, the inhabitants of the nation are to remain completely passive. And according to the teachings of Billaud-Varennes, the people should have no prejudices, no affections, and no desires except those authorized by the legislator. He even goes so far as to say that the inflexible austerity of one man is the foundation of a republic. In cases where the alleged evil is so great that ordinary governmental procedures cannot cure it, Mably recommends a dictatorship to promote virtue: “Resort,” he says, “to an extraordinary tribunal with considerable powers for a short time. The imagination of the citizens needs to be struck a hard blow.” This doctrine has not been forgotten. Listen to Robespierre: The principle of the republican government is virtue, and the means required to establish virtue is terror. In our country we desire to substitute morality for selfishness, honesty for honor, principles for customs, duties for manners, the empire of reason for the tyranny of fashion, contempt of vice for contempt of poverty, pride for insolence, greatness of soul for vanity, love of glory for love of money, good people for good companions, merit for intrigue, genius for wit, truth for glitter, the charm of happiness for the boredom of pleasure, the greatness of man for the littleness of the great, a generous, strong, happy people for a good-natured, frivolous, degraded people; in short, we desire to substitute all the virtues and miracles of a republic for all the vices and absurdities of a monarchy.
- Dictatorial Arrogance
At what a tremendous height above the rest of mankind does Robespierre here place himself! And note the arrogance with which he speaks. He is not content to pray for a great reawakening of the human spirit. Nor does he expect such a result from a well-ordered government. No, he himself will remake mankind, and by means of terror. This mass of rotten and contradictory statements is extracted from a discourse by Robespierre in which he aims to explain the principles of morality which ought to guide a revolutionary government. Note that Robespierre’s request for dictatorship is not made merely for the purpose of repelling a foreign invasion or putting down the opposing groups. Rather he wants a dictatorship in order that he may use terror to force upon the country his own principles of morality. He says that this act is only to be a temporary measure preceding a new constitution. But in reality, he desires nothing short of using terror to extinguish from France selfishness, honor, customs, manners, fashion, vanity, love of money, good companionship, intrigue wit, sensuousness, and poverty. Not until he, Robespierre, shall have accomplished these miracles, as he so rightly calls them, will he permit the law to reign again.
- The Indirect Approach to Despotism
Usually, however, these gentlemen – the reformers, the legislators, and the writers on public affairs – do not desire to impose direct despotism upon mankind. Oh no, they are too moderate and philanthropic for such direct action. Instead, they turn to the law for this despotism, this absolutism, this omnipotence. They desire only to make the laws. To show the prevalence of this queer idea in France, I would need to copy not only the entire works of Mably, Raynal, Rousseau, and Fenelonplus long extracts from Bossuet and Montesquieu-but also the entire proceedings of the Convention. I shall do no such thing; I merely refer the reader to them.
- Napoleon Wanted Passive Mankind
It is, of course, not at all surprising that this same idea should have greatly appealed to Napoleon. He embraced it ardently and used it with visor. Like a chemist, Napoleon considered all Europe to be material for his experiments. But, in due course, this material reacted against him. At St. Helena, Napoleon-greatly disillusioned-seemed to recognize some initiative in mankind. Recognizing this, he became less hostile to liberty. Nevertheless, this did not prevent him from leaving this lesson to his son in his will: “To govern is to increase and spread morality, education, and happiness.” After all this, it is hardly necessary to quote the same opinions from Morelly, Babeuf, Owen, Saint-Simon, and Fourier. Here are, however, a few extracts from Louis Blanc’s book on the organization of labor: “In our plan, society receives its momentum from power.” Now consider this: The impulse behind this momentum is to be supplied by the plan of Louis Blanc; his plan is to be forced upon society; the society referred to is the human race. Thus the human race is to receive its momentum from Louis Blanc. Now it will be said that the people are free to accept or to reject this plan. Admittedly, people are free to accept or to re- ject advice from whomever they wish. But this is not the way in which Mr. Louis Blanc understands the matter. He expects that his plan will be legalized, and thus forcibly imposed upon the people by the power of the law: In our plan, the state has only to pass labor laws (nothing else?) by means of which industrial progress can and must proceed in complete liberty. The state merely places society on an incline (that is all?). Then society will slide down this incline by the mere force of things, and by the natural workings of the established mechanism. But what is this incline that is indicated by Mr. Louis Blanc? Does it not lead to an abyss? (No, it leads to happiness.) If this is true, then why does not society go there of its own choice? (Because society does not know what it wants; it must be propelled.) What is to propel it? (Power.) And who is to supply the impulse for this power? (Why, the inventor of the machine-in this instance, Mr. Louis Blanc.)
- The Vicious Circle of Socialism
We shall never escape from this circle: the idea of passive mankind, and the power of the law being used by a great man to propel the people. Once on this incline, will society enjoy some liberty? (Certainly.) And what is liberty, Mr. Louis Blanc? Once and for all, liberty is not only a mere granted right; it is also the power granted to a person to use and to develop his faculties under a reign of justice and under the protection of the law. And this is no pointless distinction; its meaning is deep and its consequences are difficult to estimate. For once it is agreed that a person, to be truly free, must have the power to use and develop his faculties, then it follows that every person has a claim on society for such education as will permit him to develop himself. It also follows that every person has a claim on society for tools of production, without which human activity cannot be fully effective. Now by what action can society give to every person the necessary education and the necessary tools of production, if not by the action of the state? Thus, again, liberty is power. Of what does this power consist? (Of being educated and of being given the tools of production.) Who is to give the education and the tools of production? (Society, which owes them to everyone.) By what action is society to give tools of production to those who do not own them? (Why, by the action of the state.) And from whom will the state take them? Let the reader answer that question. Let him also notice the direction in which this is taking us.
- The Doctrine of The Democrats
The strange phenomenon of our times-one which will probably astound our descendants-is the doctrine based on this triple hypothesis: the total inertness of mankind, the omnipotence of the law, and the infallibility of the legislator. These three ideas form the sacred symbol of those who proclaim themselves totally democratic. The advocates of this doctrine also profess to be social. So far as they are democratic, they place unlimited faith in mankind. But so far as they are social, they regard mankind as little better than mud. Let us examine this contrast in greater detail. What is the attitude of the democrat when political rights are under discussion? How does he regard the people when a legislator is to be chosen? Ah, then it is claimed that the people have an instinctive wisdom; they are gifted with the finest perception; their will is always right; the general will cannot err; voting cannot be too universal. When it is time to vote, apparently the voter is not to be asked for any guarantee of his wisdom. His will and capacity to choose wisely are taken for granted. Can the people be mistaken? Are we not living in an age of enlightenment? What! are the people always to be kept on leashes? Have they not won their rights by great effort and sacrifice? Have they not given ample proof of their intelligence and wisdom? Are they not adults? Are they not capable of judging for themselves? Do they not know what is best for themselves? Is there a class or a man who would be so bold as to set himself above the people, and judge and act for them? No, no, the people are and should be free. They desire to manage their own affairs, and they shall do so. But when the legislator is finally elected-ah! then indeed does the tone of his speech undergo a radical chance. The people are returned to passiveness, inertness, and unconsciousness; the legislator enters into omnipotence. Now it is for him to initiate, to direct, to propel, and to organize. Mankind has only to submit; the hour of despotism has struck. We now observe this fatal idea: The people who, during the election, were so wise, so moral, and so perfect, now have no tendencies whatever; or if they have any, they are tendencies that lead downward into degradation.
- The Socialist Concept of Liberty
But ought not the people be given a little liberty? But Mr. Considerant has assured us that liberty leads inevitably to monopoly! We understand that liberty means competition. But according to Mr. Louis Blanc, competition is a system that ruins the businessmen and exterminates the people. It is for this reason that free people are ruined and exterminated in proportion to their degree of freedom. (Possibly Mr. Louis Blanc should observe the results of competition in, for example, Switzerland, Holland, England, and the United States.) Mr. Louis Blanc also tells us that competition leads to monopoly. And by the same reasoning, he thus informs us that low prices lead to high prices; that competition drives production to destructive activity; that competition drains away the sources of purchasing power, that competition forces an increase in production while, at the same time, it forces a decrease in consumption. From this, it follows that free people produce for the sake of not consuming; that liberty means oppression and madness among the people; and that Mr. Louis Blanc absolutely must attend to it.
- Socialists Fear All Liberties
Well, what liberty should the legislators permit people to have? Liberty of conscience? (But if this were permitted, we would see the people taking this opportunity to become atheists.) Then liberty of education? (But parents would pay professors to teach their children immorality and falsehoods; besides, according to Mr. Thiers, if education were left to national liberty, it would cease to be national, and we would be teaching our children the ideas of the Turks or Hindus; whereas, thanks to this legal despotism over education, our children now have the good fortune to be taught the noble ideas of the Romans.) Then liberty of labor? (But that would mean competition which, in turn, leaves production unconsumed, ruins businessmen, and exterminates the people.) Perhaps liberty of trade? (But everyone knows-and the advocates of protective tariffs have proved over and over again-that freedom of trade ruins every person who engages in it, and that it is necessary to suppress freedom of trade in order to prosper.) Possibly then, liberty of association? (But, according to socialist doctrine, true liberty and voluntary association are in contradiction to each other, and the purpose of the socialists is to suppress liberty of association precisely in order to force people to associate together in true liberty.) Clearly then, the conscience of the social democrats cannot permit persons to have any liberty because they believe that the nature of mankind tends always toward every kind of degradation and disaster. Thus, of course, the legislators must make plans for the people in order to save them from themselves. This line of reasoning brings us to a challenging question: If people are as incapable, as immoral, and as ignorant as the politicians indicate, then why is the right of these same people to vote defended with such passionate insistence?
- The Superman Idea
The claims of these organizers of humanity raise another question which I have often asked them and which, so far as I know, they have never answered: If the natural tendencies of mankind are so bad that it is not safe to permit people to be free, how is it that the tendencies of these organizers are always good? Do not the legislators and their appointed agents also belong to the human race? Or do they believe that they themselves are made of a finer clay than the rest of mankind? The organizers maintain that society, when left undirected, rushes headlong to its inevitable destruction because the instincts of the people are so perverse. The legislators claim to stop this suicidal course and to give it a saner direction. Apparently, then, the legislators and the organizers have received from Heaven an intelligence and virtue that place them beyond and above mankind; if so, let them show their titles to this superiority. They would be the shepherds over us, their sheep. Certainly such an arrangement presupposes that they are naturally superior to the rest of us. And certainly we are fully justified in demanding from the legislators and organizers proof of this natural superiority.
- The Socialists Reject Free Choice
Please understand that I do not dispute their right to invent social combinations, to advertise them, to advocate them, and to try them upon themselves, at their own expense and risk. But I do dispute their right to impose these plans upon us by law-by force-and to compel us to pay for them with our taxes. I do not insist that the supporters of these various social schools of thought-the Proudhonists, the Cabetists, the Fourierists, the Universitarists, and the Protectionists renounce their various ideas. I insist only that they renounce this one idea that they have in common: They need only to give up the idea of forcing us to acquiesce to their groups and series, their socialized projects, their free-credit banks, their GraecoRoman concept of morality, and their commercial regulations. I ask only that we be permitted to decide upon these plans for ourselves; that we not be forced to accept them, directly or indirectly, if we find them to be contrary to our best interests or repugnant to our consciences. But these organizers desire access to the tax funds and to the power of the law in order to carry out their plans. In addition to being oppressive and unjust, this desire also implies the fatal supposition that the organizer is infallible and mankind is incompetent. But, again, if persons are incompetent to judge for themselves, then why all this talk about universal suffrage?
- The Cause of French Revolutions
This contradiction in ideas is, unfortunately but logically, reflected in events in France. For example, Frenchmen have led all other Europeans in obtaining their rights – or, more accurately, their political demands. Yet this fact has in no respect prevented us from becoming the most governed, the most regulated, the most imposed upon, the most harnessed, and the most exploited people in Europe. France also leads all other nations as the one where revolutions are constantly to be anticipated. And under the circumstances, it is quite natural that this should be the case. And this will remain the case so long as our politicians continue to accept this idea that has been so well expressed by Mr. Louis Blanc: “Society receives its momentum from power. ” This will remain the case so long as human beings with feelings continue to remain passive; so long as they consider themselves incapable of bettering their prosperity and happiness by their own intelligence and their own energy; so long as they expect everything from the law; in short, so long as they imagine that their rela- tionship to the state is the same as that of the sheep to the shepherd.
- The Enormous Power of Government
As long as these ideas prevail, it is clear that the responsibility of government is enormous. Good fortune and bad fortune, wealth and destitution, equality and inequality, virtue and vice – all then depend upon political administration. It is burdened with everything, it undertakes everything, it does everything; therefore it is responsible for everything. If we are fortunate, then government has a claim to our gratitude; but if we are unfortunate, then government must bear the blame. For are not our persons and property now at the disposal of government? Is not the law omnipotent? In creating a monopoly of education, the government must answer to the hopes of the fathers of families who have thus been deprived of their liberty; and if these hopes are shattered, whose fault is it? In regulating industry, the government has contracted to make it prosper; otherwise it is absurd to deprive industry of its liberty. And if industry now suffers, whose fault is it? In meddling with the balance of trade by playing with tariffs, the government thereby contracts to make trade prosper; and if this results in destruction instead of prosperity, whose fault is it? In giving the maritime industries protection in exchange for their liberty, the government undertakes to make them profitable; and if they become a burden to the taxpayers, whose fault is it? Thus there is not a grievance in the nation for which the government does not voluntarily make itself responsible. Is it surprising, then, that every failure increases the threat of another revolution in France? And what remedy is proposed for this? To extend indefinitely the domain of the law; that is, the responsibility of government. But if the government undertakes to control and to raise wages, and cannot do it; if the government undertakes to care for all who may be in want, and cannot do it; if the government undertakes to support all unemployed workers, and cannot do it; if the government undertakes to lend interest-free money to all borrowers, and cannot do it; if, in these words that we regret to say escaped from the pen of Mr. de Lamartine, “The state considers that its purpose is to enlighten, to develop, to enlarge, to strengthen, to spiritualize, and to sanctify the soul of the people”-and if the government cannot do all of these things, what then? Is it not certain that after every government failure – which, alas! is more than probable-there will be an equally inevitable revolution?
- Politics and Economics
[Now let us return to a subject that was briefly discussed in the opening pages of this thesis: the relationship of economics an of politicspolitical economy.] A science of economics must be developed before a science of politics can be logically formulated. Essentially, economics is the science of determining whether the interests of human beings are harmonious or antagonistic. This must be known before a science of politics can be formulated to determine the proper functions of government. Immediately following the development of a science of economics, and at the very beginning of the formulation of a science of politics, this all-important question must be answered: What is law? What ought it to be? What is its scope; its limits? Logically, at what point do the just powers of the legislator stop? I do not hesitate to answer: Law is the common force organized to act as an obstacle to injustice. In short, law is justice.
- Proper Legislative Functions
It is not true that the legislator has absolute power over our persons and property. The existence of persons and property preceded the existence of the legislator, and his function is only to guarantee their safety. It is not true that the function of law is to regulate our consciences, our ideas, our wigs, 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. Since law necessarily requires the support of force, its lawful domain is only in the areas where the use of force is necessary. This is justice. Every individual has the right to use force for lawful selfdefense. It is for this reason that the collective force – which is only the organized combination of the individual forces-may lawfully be used for the same purpose; and it cannot be used legitimately for any other purpose. Law is solely the organization of the individual right of selfdefense which existed before law was formalized. Law is justice.
- Law and Charity Are Not The Same
The mission of the law is not to oppress persons and plunder them of their property, even though the law may be acting in a philanthropic spirit. Its mission is to protect persons and property. Furthermore, it must not be said that the law may be philanthropic if, in the process, it refrains from oppressing persons and plundering them of their property; this would be a contradiction. The law cannot avoid having an effect upon persons and property; and if the law acts in any manner except to protect them, its actions then necessarily violate the liberty of persons and their right to own property-The law is justice-simple and clear, precise and bounded. Every eye can see it, and every mind can grasp it; for justice is measurable, immutable, and unchangeable. Justice is neither more than this nor less than this. If you exceed this proper limit, if you attempt to make the law religious, fraternal, equalizing, philanthropic, industrial, literary, or artistic-you will then be lost in an uncharted territory, in vagueness and uncertainty, in a forced utopia or, even worse, in a multitude of utopias, each striving to seize the law and impose it upon you. This is true because fraternity and philanthropy, unlike justice, do not have precise limits. Once started, where will you stop? And where will the law stop itself?
- The High Road To Communism
Mr. de Saint-Cricq would extend his philanthropy only to some of the industrial groups; he would demand that the law control the consumers to benefit the producers. Mr. Considerant would sponsor the cause of the labor groups; he would use the law to secure for them a guaranteed minimum of clothing, housing, food, and all other necessities of life. Mr. Louis Blanc would say-and with reason-that these minimum guarantees are merely the beginning of complete fraternity; he would say that the law should give tools of production and free education to all working people. Another person would observe that this arrangement would still leave room for inequality; he would claim that the law should give to everyone-even in the most inaccessible hamletluxury, literature, and art. All of these proposals are the high road to communism; legislation will then be-in fact, it already is-the battlefield for the fantasies and greed of everyone.
- The Basis For Stable Government
Law is justice. In this proposition a simple and enduring government can be conceived. And I defy anyone to say how even the thought of revolution, of insurrection, of the slightest uprising could arise against a government whose organized force was confined only to suppressing injustice. Under such a regime, there would be the most prosperity-and it would be the most equally distributed. As for the sufferings that are inseparable from humanity, no one would even think of accusing the government for them. This is true because, if the force of government were limited to suppressing injustice, then government would be as innocent of these sufferings as it is now innocent of changes in the temperature. As proof of this statement, consider this question: Have the people ever been known to rise against the Court of Appeals, or mob a Justice of the Peace, in order to get higher wages, free credit, tools of production, favorable tariffs, or government-created jobs? Everyone knows perfectly well that such matters are not within the jurisdiction of the Court of Appeals or a Justice of the Peace. And if government were limited to its proper functions, everyone would soon learn that these matters are not within the jurisdiction of the law itself. But make the laws upon the principle of fraternity, proclaim that all good, and all bad, stem from the law; that the law is responsible for all individual misfortunes and all social inequalitiesthen the door is open to an endless succession of complaints, irritations, troubles, and revolutions.
- Justice Means Equal Rights
Law is justice. And it would indeed be strange if law could properly be anything else! Is not justice right? Are not rights equal? By what right does the law force me to conform to the social plans of Mr. Mimerel, Mr. de Melun, Mr. Thiers, or Mr. Louis Blanc? If the law has a moral right to do this, why does it not, then, force these gentlemen to submit to my plans? Is it logical to suppose that nature has not given me sufficient imagination to dream up a utopia also? Should the law choose one fantasy among many, and put the organized force of government at its service only? Law is justice. And let it not be said-as it continually is saidthat under this concept, the law would be atheistic, individualistic, and heartless; that it would make mankind in its own image. This is an absurd conclusion, worthy only of those worshippers of government who believe that the law is mankind. Nonsense! Do those worshippers of government believe that free persons will cease to act? Does it follow that if we receive no energy from the law, we shall receive no energy at all? Does it follow that if the law is restricted to the function of protecting the free use of our faculties, we will be unable to use our faculties? Suppose that the law does not force us to follow certain forms of religion, or systems of association, or methods of education, or regulations of labor, or regulations of trade, or plans for charity; does it then follow that we shall eagerly plunge into atheism, hermitacy, ignorance, misery, and greed? If we are free, does it follow that we shall no longer recognize the power and goodness of God? Does it follow that we shall then cease to associate with each other, to help each other, to love and succor our unfortunate brothers, to study the secrets of nature, and to strive to improve ourselves to the best of our abilities?
- The Path To Dignity and Progress
Law is justice. And it is under the law of justice-under the rein of right; under the influence of liberty, safety, stability, and responsibility-that every person will attain his real worth and the true dignity of his being. It is only under this law of justice that mankind will achieve-slowly, no doubt, but certainly – God’s design for the orderly and peaceful progress of humanity. It seems to me that this is theoretically right, for whatever the question under discussion-whether religious, philosophical, political, or economic; whether it concerns prosperity, morality, equality, right, justice, progress, responsibility, cooperation, property, labor, trade, capital, wages, taxes, population, finance, or government-at whatever point on the scientific horizon I begin my researches, I invariably reach this one conclusion: The solution to the problems of human relationships is to be found in liberty.
- Proof of An Idea
And does not experience prove this? Look at the entire world. Which countries contain the most peaceful, the most moral, and the happiest people? Those people are found in the countries where the law least interferes with private affairs; where government is least felt; where the individual has the greatest scope, and free opinion the greatest influence; where administrative powers are fewest and simplest; where taxes are lightest and most nearly equal, and popular discontent the least excited and the least justifiable; where individuals and groups most actively assume their responsibilities, and, consequently, where the morals of admittedly imperfect human beings are constantly improving; where trade, assemblies, and associations are the least restricted; where labor, capital, and populations suffer the fewest forced displacements; where mankind most nearly follows its own natural inclinations; where the inventions of men are most nearly in harmony with the laws of God; in short, the happiest, most moral, and most peaceful people are those who most nearly follow this principle: Although mankind is not perfect, still, all hope rests upon the free and voluntary actions of persons within the limits of right; law or force is to be used for nothing except the administration of universal justice.
- The Desire To Rule Over Others
This must be said: There are too many “great” men in the world- legislators, organizers, do-gooders, leaders of the people, fathers of nations, and so on, and so on. Too many persons place themselves above mankind; they make a career of organizing it, patronizing it, and ruling it. Now someone will say: “You yourself are doing this very thing.” True. But it must be admitted that I act in an entirely different sense; if I have joined the ranks of the reformers, it is solely for the purpose of persuading them to leave people alone. I do not look upon people as Vancauson looked upon his automaton. Rather, just as the physiologist accepts the human body as it is, so do I accept people as they are. I desire only to study and admire. My attitude toward all other persons is well illustrated by this story from a celebrated traveler: He arrived one day in the midst of a tribe of savages, where a child had just been born. A crowd of soothsayers, magicians, and quacks-armed with rings, hooks, and cords-surrounded it. One said: “This child will never smell the perfume of a peace-pipe unless I stretch his nostrils.” Another said: “He will never be able to hear unless I draw his ear-lobes down to his shoulders.” A third said: “He will never see the sunshine unless I slant his eyes.” Another said: “He will never stand upright unless I bend his legs.” A fifth said: “He will never learn to think unless I flatten his skull.” “Stop,” cried the traveler. “What God does is well done. Do not claim to know more than He. God has given organs to this frail creature; let them develop and grow strong by exercise, use, experience, and liberty.”
- Let Us Now Try Liberty
God has given to men all that is necessary for them to accomplish their destinies. He has provided a social form as well as a human form. And these social organs of persons are so constituted that they will develop themselves harmoniously in the clean air of liberty. Away, then, with quacks and organizers! Away with their rings, chains, hooks, and pincers! Away with their arti- ficial systems! Away with the whims of governmental administrators, their socialized projects, their centralization, their tariffs, their government schools, their state religions, their free credit, their bank monopolies, their regulations, their restrictions, their equalization by taxation, and their pious moralizations! And now that the legislators and do-gooders have so futilely inflicted so many systems upon society, may they finally end where they should have begun: May they reject all systems, and try liberty; for liberty is an acknowledgment of faith in God and His works.
The Right to Ignore the State
by Herbert Spencer
Originally published as Chapter XIX in the 1851 edition of Social Statics.
1. As a corollary to the proposition that all institutions must be subordinated to the law of equal freedom, we cannot choose but admit the right of the citizen to adopt a condition of voluntary outlawry. If every man has freedom to do all that he wills, provided he infringes not the equal freedom of any other man, then he is free to drop connection with the state – to relinquish its protection and to refuse paying toward its support. It is self-evident that in so behaving he in no way trenches upon the liberty of others, for his position is a passive one, and while passive he cannot become an aggressor. It is equally self-evident that he cannot be compelled to continue one of a political corporation without a breach of the moral law, seeing that citizenship involves payment of taxes; and the taking away of a man’s property against his will is an infringement of his rights. Government being simply an agent employed in common by a number of individuals to secure to them certain advantages, the very nature of the connection implies that it is for each to say whether he will employ such an agent or not. If anyone of them determines to ignore this mutual-safety confederation, nothing can be said except that he loses all claim to its good offices and exposes himself to the danger of maltreatment – a thing he is quite at liberty to do if he likes. He cannot be coerced into political combination without a breach of the law of equal freedom; he can withdraw from it without committing any such breach, and he has therefore a right so to withdraw.
2. “No human laws are of any validity if contrary to the law of nature; and such of them as are valid derive all their force and all their authority mediately or immediately from this original.” Thus writes Blackstone, to whom let all honor be given for having so far outseen the ideas of his time and, indeed, we may say of our time. A good antidote, this, for those political superstitions which so widely prevail. A good check upon that sentiment of power worship which still misleads us by magnifying the prerogatives of constitutional governments as it once did those of monarchs. Let men learn that a legislature is not “our God upon earth,” though, by the authority they ascribe to it and the things they expect from it, they would seem to think it is. Let them learn rather that it is an institution serving a purely temporary purpose, whose power, when not stolen, is at best borrowed.
Nay, indeed, have we not seen that government is essentially immoral? Is it not the offspring of evil, bearing about it all the marks of its parentage? Does it not exist because crime exists? Is it not strong – or, as we say, despotic – when crime is great? Is there not more liberty – that is, less government – when crime diminishes? And must not government cease when crime ceases, for very lack of objects on which to perform its function? Not only does magisterial power exist because of evil, but it exists by evil. Violence is employed to maintain it, and all violence involves criminality. Soldiers, policemen, and jailers; swords, batons, and fetters are instruments for inflicting pain; and all inflection of pain is in the abstract wrong. The state employs evil weapons to subjugate evil and is alike contaminated by the objects with which it deals and the means by which it works. Morality cannot recognize it, for morality, being simply a statement of the perfect law, can give no countenance to anything growing out of, and living by, breaches of that law. Wherefore, legislative authority can never be ethical – must always be conventional merely.
Hence, there is a certain inconsistency in the attempt to determine the right position, structure, and conduct of a government by appeal to the first principles of rectitude. For as just pointed out, the acts of an institution which is in both nature and origin imperfect cannot be made to square with the perfect law. All that we can do is to ascertain, firstly, in what attitude a legislature must stand to the community to avoid being by its mere existence an embodied wrong; secondly, in what manner it must be constituted so as to exhibit the least incongruity with the moral law; and thirdly, to what sphere its actions must be limited to prevent it from multiplying those breaches of equity it is set up to prevent.
The first condition to be conformed to before a legislature can be established without violating the law of equal freedom is the acknowledgment of the right now under discussion – the right to ignore the state.
3. Upholders of pure despotism may fitly believe state control to be unlimited and unconditional. They who assert that men are made for governments and not governments for men may consistently hold that no one can remove himself beyond the pale of political organization. But they who maintain that the people are the only legitimate source of power – that legislative authority is not original, but deputed – cannot deny the right to ignore the state without entangling themselves in an absurdity.
For, if legislative authority is deputed, it follows that those from whom it proceeds are the masters of those on whom it is conferred; it follows further that as masters they confer the said authority voluntarily; and this implies that they may give or withhold it as they please. To call that deputed which is wrenched from men, whether they will or not, is nonsense. But what is here true of all collectively is equally true of each separately. As a government can rightly act for the people only when empowered by them, so also can it rightly act for the individual only when empowered by him. If A, B, and C debate whether they shall employ an agent to perform for them a certain service, and if while A and B agree to do so C dissents, C cannot equitably be made a party to the agreement in spite of himself. And this must be equally true of thirty as of three; and if of thirty, why not of three hundred, or three thousand, or three million?
4. Of the political superstitions lately alluded to, none is so universally diffused as the notion that majorities are omnipotent. Under the impression that the preservation of order will ever require power to be wielded by some party, the moral sense of our time feels that such power cannot rightly be conferred on any but the largest moiety of society. It interprets literally the saying that “the voice of the people is the voice of God,” and, transferring to the one the sacredness attached to the other, it concludes that from the will of the people – that is, of the majority – there can be no appeal. Yet is this belief entirely erroneous.
Suppose, for the sake of argument, that, struck by some Malthusian panic, a legislature duly representing public opinion were to enact that all children born during the next ten years should be drowned. Does anyone think such an enactment would be warrantable? If not, there is evidently a limit to the power of a majority. Suppose, again, that of two races living together – Celts and Saxons, for example – the most numerous determined to make the others their slaves. Would the authority of the greatest number be in such case valid? If not, there is something to which its authority must be subordinate. Suppose, once more, that all men having incomes under � 50 a year were to resolve upon reducing every income above that amount to their own standard, and appropriating the excess for public purposes. Could their resolution be justified? If not, it must be a third time confessed that there is a law to which the popular voice must defer. What, then, is that law, if not the law of pure equity – the law of equal freedom? These restraints, which all would put to the will of the majority, are exactly the restraints set up by that law. We deny the right of a majority to murder, to enslave, or to rob, simply because murder, enslaving, and robbery are violations of that law – violations too gross to be overlooked. But if great violations of it are wrong, so also are smaller ones. If the will of the many cannot supersede the first principle of morality in these cases, neither can it in any. So that, however insignificant the minority, and however trifling the proposed trespass against their rights, no such trespass is permissible.
When we have made our constitution purely democratic, thinks to himself the earnest reformer, we shall have brought government into harmony with absolute justice. Such a faith, though perhaps needful for the age, is a very erroneous one. By no process can coercion be made equitable. The freest form of government is only the least objectionable form. The rule of the many by the few we call tyranny; the rule of the few by the many is tyranny also, only of a less intense kind. “You shall do as we will, and not as you will,” is in either case the declaration; and if the hundred make it to the ninety-nine, instead of the ninety-nine to the hundred, it is only a fraction less immoral. Of two such parties, whichever fulfills this declaration necessarily breaks the law of equal freedom: the only difference being that by the one it is broken in the persons of ninety-nine, while by the other it is broken in the persons of a hundred. And the merit of the democratic form of government consists solely in this, that it trespasses against the smallest number.
The very existence of majorities and minorities is indicative of an immoral state. The man whose character harmonizes with the moral law, we found to be one who can obtain complete happiness without diminishing the happiness of his fellows. But the enactment of public arrangements by vote implies a society consisting of men otherwise constituted – implies that the desires of some cannot be satisfied without sacrificing the desires of others – implies in the pursuit of their happiness the majority inflict a certain amount of unhappiness on the minority – implies, therefore, organic immorality. Thus, from another point of view, we again perceive that even in its most equitable form it is impossible for government to dissociate itself from evil; and further, that unless the right to ignore the state is recognized, its acts must be essentially criminal.
5. That a man is free to abandon the benefits and throw off the burdens of citizenship may indeed be inferred from the admissions of existing authorities and of current opinion. Unprepared as they probably are for so extreme a doctrine as the one here maintained, the radicals of our day yet unwittingly profess their belief in a maxim which obviously embodies this doctrine. Do we not continually hear them quote Blackstone’s assertion that “no subject of England can be constrained to pay any aids or taxes even for the defence of the realm or the support of government, but such as are imposed by his own consent, or that of his representative in parliament?” And what does this mean? It means, say they, that every man should have a vote. True, but it means much more. If there is any sense in words it is a distinct enunciation of the right now contended for. In affirming that a man may not be taxed unless he has directly or indirectly given his consent, it affirms that he may refuse to be so taxed; and to refuse to be taxed is to cut all connection with the state. Perhaps it will be said that this consent is not a specific, but a general one, and that the citizen is understood to have assented to everything his representative may do when he voted for him. But suppose he did not vote for him, and on the contrary did all in his power to get elected someone holding opposite views – what then? The reply will probably be that, by taking part in such an election, he tacitly agreed to abide by the decision of the majority. And how if he did not vote at all? Why, then he cannot justly complain of any tax, seeing that he made no protest against its imposition. So, curiously enough, it seems that he gave his consent in whatever way he acted – whether he said yes, whether he said no, or whether he remained neuter! A rather awkward doctrine, this. Here stands an unfortunate citizen who is asked if he will pay money for a certain proffered advantage; and whether he employs the only means of expressing his refusal or does not employ it, we are told that he practically agrees, if only the number of others who agree is greater than the number of those who dissent. And thus we are introduced to the novel principle that A’s consent to a thing is not determined by what A says, but by what B may happen to say!
It is for those who quote Blackstone to choose between this absurdity and the doctrine above set forth. Either his maxim implies the right to ignore the state, or it is sheer nonsense.
6. There is a strange heterogeneity in our political faiths. Systems that have had their day and are beginning here and there to let the daylight through are patched with modern notions utterly unlike in quality and color; and men gravely display these systems, wear them, and walk about in them, quite unconscious of their grotesqueness. This transition state of ours, partaking as it does equally of the past and the future, breeds hybrid theories exhibiting the oddest union of bygone despotism and coming freedom. Here are types of the old organization curiously disguised by germs of the new, peculiarities showing adaptation to a preceding state modified by rudiments that prophesy of something to come, making altogether so chaotic a mixture of relationships that there is no saying to what class these births of the age should be referred.
As ideas must of necessity bear the stamp of the time, it is useless to lament the contentment with which these incongruous beliefs are held. Otherwise it would seem unfortunate that men do not pursue to the end the trains of reasoning which have led to these partial modifications. In the present case for example, consistency would force them to admit that, on other points besides the one just noticed, they hold opinions and use arguments in which the right to ignore the state is involved.
For what is the meaning of Dissent? The time was when a man’s faith and his mode of worship were as much determinable by law as his secular acts; and, according to provisions extant in our statute book, are so still. Thanks to the growth of a Protestant spirit, however, we have ignored the state in this matter – wholly in theory, and partly in practice. But how have we done so? By assuming an attitude which, if consistently maintained, implies a right to ignore the state entirely. Observe the positions of the two parties. “This is your creed,” says the legislator; “you must believe and openly profess what is here set down for you.” “I shall not do anything of the kind,” answers the nonconformist; “I will go to prison rather.” “Your religious ordinances,” pursues the legislator, “shall be such as we have prescribed. You shall attend the churches we have endowed and adopt the ceremonies used in them.” “Nothing shall induce me to do so,” is the reply; “I altogether deny your power to dictate to me in such matters, and mean to resist to the uttermost.” “Lastly,” adds the legislator, “we shall require you to pay such sums of money toward the support of these religious institutions as we may see fit to ask.” “Not a farthing will you have from me,” exclaims our sturdy Independent; “even did I believe in the doctrines of your church (which I do not), I should still rebel against your interference; and if you take my property, it shall be by force and under protest.”
What now does this proceeding amount to when regarded in the abstract? It amounts to an assertion by the individual of the right to exercise on of his faculties – the religious sentiment – without let or hinderance, and with no limit save that set up by the equal claims of others. And what is meant by ignoring the state? Simply an assertion of the right similarly to exercise all the faculties. The one is just an expansion of the other – rests on the same footing with the other – must stand or fall with the other. Men do indeed speak of civil and religious liberty as different things: but the distinction is quite arbitrary. They are parts of the same whole and cannot philosophically be separated.
“Yes they can,” interposes the objector; “assertion of the one is imperative as being a religious duty. The liberty to worship God in the way that seems to him right is a liberty without which a man cannot fulfill what he believes to be Divine commands, and therefore conscience requires him to maintain it.” True enough; but how if the same can be asserted of all other liberty? How if maintenance of this also turns out to be a matter of conscience? Have we not seen that human happiness is the Divine will – that only by exercising our faculties is this happiness obtainable – and that it is impossible to exercise them without freedom? And if this freedom for the exercise of faculties is a condition without which the Divine will cannot be fulfilled, the preservation of it is, by our objector’s own showing, a duty. Or, in other words, it appears not only that the maintenance of liberty of action may be a point of conscience, but that it ought to be one. And thus we are clearly shown that the claims to ignore the state in religious and in secular matters are in essence identical.
The other reason commonly assigned for nonconformity admits of similar treatment. Besides resisting state dictation in the abstract, the dissenter resists it from disapprobation of the doctrines taught. No legislative injunction will make him adopt what he considers an erroneous belief; and, bearing in mind his duty toward his fellow men, he refuses to help through the medium of his purse in disseminating this erroneous belief. The position is perfectly intelligible. But it is one which either commits its adherents to civil nonconformity also, or leaves them in a dilemma. For why do they refuse to be instrumental in spreading error? Because error is adverse to human happiness. And on what ground is any piece of secular legislation disapproved? For the same reason – because thought adverse to human happiness. How, then, can it be shown that the state ought to be resisted in the one case and not in the other? Will anyone deliberately assert that if a government demands money from us to aid in teaching what we think will produce evil we ought to refuse it, but that if the money is for the purpose of doing what we think will produce evil we ought not to refuse it? Yet such is the hopeful proposition which those have to maintain who recognize the right to ignore the state in religious matters but deny it in civil matters.
7. The substance of this chapter once more reminds us of the incongruity between a perfect law and an imperfect state. The impracticability of the principle here laid down varies directly as social morality. In a thoroughly vicious community its admission would be productive of anarchy. In a completely virtuous one its admission will be both innocuous and inevitable. Progress toward a condition of social health – a condition, that is, in which the remedial measures of legislation will no longer be needed – is progress toward a condition in which those remedial measures will be cast aside and the authority prescribing them disregarded. The two changes are of necessity co-ordinate. That moral sense whose supremacy will make society harmonious and government unnecessary is the same moral sense which will then make each man assert his freedom even to the extent of ignoring the state – is the same moral sense which, by deterring the majority from coercing the minority, will eventually render government impossible. And as what are merely different manifestations of the same sentiment must bear a constant ratio to each other, the tendency to repudiate governments will increase only at the same rate that governments become needless.
Let not any be alarmed, therefore, at the promulgation of the foregoing doctrine. There are many changes yet to be passed through before it can begin to exercise much influence. Probably a long time will elapse before the right to ignore the state will be generally admitted, even in theory. It will be still longer before it receives legislative recognition. And even then there will be plenty of checks upon the premature exercise of it. A sharp experience will sufficiently instruct those who may too soon abandon legal protection. While, in the majority of men, there is such a love of tried arrangements and so great a dread of experiments that they will probably not act upon this right until long after it is safe to do so.
Anarchy and Efficient Law
by David Friedman
A chapter from For and Against the State, John Sanders & Jan Narveson eds. (1996)
More than twenty years ago, Professor (now Judge) Richard Posner suggested that many features of the common law could be explained by the conjecture that it was a set of legal rules that maximized economic efficiency. To what degree the conjecture is correct is still a matter of debate, but, true or false, it has played a major role in the development of the economic analysis of law.
One weakness in Posner’s argument was and is the absence of a plausible mechanism to generate efficient Common Law. What he and his supporters offer instead is extensive analysis of the common law as it actually exists, designed to show that its rules are close to the rules that would have been chosen by an economist attempting to maximize economic efficiency. Lacking a compelling theory, they offer empirical evidence–although a considerable addition of economic theory is required to argue that the rules observed to exist are the efficient ones.
My project in this chapter is the mirror image of Posner’s. The legal system I will be describing does not exist, so I cannot observe its rules. What I will be proposing is a theoretical analysis of why that legal system, if it existed, could be expected to generate efficient rules.
Law as a Private Good
Imagine a society with no government. Individuals purchase law enforcement from private firms. Each such firm faces possible conflicts with other firms. Private policemen working for the enforcement agency that I employ may track down the burglar who stole my property only to discover, when they try to arrest him, that he too employs an enforcement agency.
There are three ways in which such conflicts might be dealt with. The most obvious and least likely is direct violence-a mini-war between my agency, attempting to arrest the burglar, and his agency attempting to defend him from arrest. A somewhat more plausible scenario is negotiation. Since warfare is expensive, agencies might include in the contracts they offer their customers a provision under which they are not obliged to defend customers against legitimate punishment for their actual crimes. When a conflict occured, it would then be up to the two agencies to determine whether the accused customer of one would or would not be deemed guilty and turned over to the other.
A still more attractive and more likely solution is advance contracting between the agencies. Under this scenario, any two agencies that faced a significant probability of such clashes would agree on an arbitration agency to settle them-a private court. Implicit or explicit in their agreement would be the legal rules under which such disputes were to be settled.
Under these circumstances, both law enforcement and law are private goods produced on a private market. Law enforcement is produced by enforcement agencies and sold directly to their customers. Law is produced by arbitration agencies and sold to the enforcement agencies, who resell it to their customers as one characteristic of the bundle of services they provide.
The resulting legal system might contain many different law codes. The rules governing a particular conflict will depend on the arbitration agency that the enforcement agencies employed by the parties to the conflict have agreed on. While there will be some market pressure for uniformity, it is logically possible for every pair of enforcement agencies to agree on a different arbitration agency with a different set of legal rules.
Indeed, one could have more diversity than that. Suppose there is some small group within the population with specialized legal requirements. An example might be members of a religious sect that forbade the taking of oaths, in a society where conventional legal procedure required such oaths. Such a group might have its own enforcement agency and let that agency negotiate appropriate legal rules on its behalf. Alternatively, an agency might produce a specialized product for members of the group by negotiating agreements under which those customers, if involved in litigation, were not required to swear the usual oaths.
As this example suggests, the potential legal diversity of such a system is very large; in principle, a different set of legal rules might apply between every pair of persons. In practice, such diversity will be constrained by costs of negotiation and by costs of legal diversity. The transaction costs of separately negotiating a different law code between every pair of persons would be prohibitively high, so it is likely that each pair of enforcement agencies will agree on a single law code interpreted by a single arbitration agency, with provisions for occasional variances of the sort described above.
Legal diversity has substantial costs. If, for example, contract terms enforceable against customers of agency A may be unenforceable against customers of B, that makes it more difficult and expensive for firms to draw up satisfactory contracts. Such costs will provide an incentive for arbitration agencies to adopt more uniform law, to be balanced against the incentive for non-uniform law provided by the differing desires of different customers.
Generating Efficient Law
Suppose a set of law codes of the sort I have described exists, and that that there is some potential change in the legal rules prevailing between two enforcement agencies that would yield net benefits to their customers, and thus improve the efficiency of the legal system. If the change benefits both sets of customers, it is in the interest of the enforcement agencies either to persuade their arbitration agency to make the change or to shift to one that follows the superior set of rules. If it benefits the customers of one agency but imposes costs on the customers of the other, with net costs smaller then net benefits, it is in the interest of the two agencies to agree to the change, with the loser compensated either directly or by some other change elsewhere in the legal rules. In practice, since it is the arbitration agencies that specialize in legal rules, we would expect them to try to identify all such improvements and include them in the legal codes they offer to their customers.
This argument suggests that any change in the existing set of codes that would produce a net improvement will occur. The result should be a set of legal codes that are economically efficient in the conventional sense.
That result must be qualified in several ways. To begin with, in a world of non-zero information and transaction costs, an enforcement agency does not perfectly internalize the welfare of its customers, since it cannot engage in perfect discriminatory pricing. Furthermore, negotitions between enforcement agencies are not costless, so some opportunities for mutual gain may go unexploited. For these reasons, what we would expect is not a perfectly efficient set of legal rules but a set of legal rules with tendencies towards efficiency. Where a legal change benefits almost everyone we would expect to see it, but where it generates both substantial benefits and substantial costs, we would expect the system to do an imperfect job of balancing costs and benefits, and thus to at least occasionally get the wrong answer. One additional reason why the result will fall short of complete efficiency will be discussed later in this chapter.
Competition or Monopoly
Readers familiar with the economic literature on efficiency may notice that my argument owes more to Coase than to Marshall. I have relied on the idea that parties will negotiate towards efficient contracts, rather than on the conventional analysis of a competitive industry. The reason for that choice is that this marketplace, despite the very large number of buyers and sellers, is not competive in the sense necessary for the standard economic proofs of efficiency.
To see why, let us eliminate from our analysis the intermediaries, the enforcement and arbitration agencies, and consider the market for legal agreement in terms of the individual producers and consumers of that good. Each individual wishes to buy the assent of every other individual to some legal code or codes, in order that future disputes between them, if they occur, may be peacefully resolved. Each individual is thus both a buyer and a seller of legal assent, buying from and selling to every other individual.
The reason that the large number of buyers and sellers does not produce a competitive market is that the goods they are selling are not substitutes. I desire legal agreement with both A and B; if I am equally likely to be involved in a dispute with either, I may have the same value for legal agreement with each. But getting A’s agreement to apply some legal rule in disputes with him does not eliminate the value to me of B’s agreement with regard to disputes with him, so the two are not substitutes. Unlike the case of an ordinary good, I cannot simply agree with A on a price and then buy all the agreement I want from him. It follows that despite the large number of participants, the interaction is essentially one of bilateral monopoly. Only A can sell me his assent to legal rules between me and him, and only I want to buy it.
Because of this, a conventional analysis of a uniform good sold at a single price by all sellers and to all buyers does not work for this market. One way of seeing this is to try to construct such an analysis:
Consider a particular legal change, a shift from strict liability to negligence for some class of cases. The shift benefits defendants at the expense of plaintiffs. If total benefits are larger than total costs, summed over all plaintiffs and defendants and including not only direct costs and benefits when litigation occurs but also all of the associated indirect benefits and costs, then the change increases economic efficiency.
When A and B agree to a negligence rule for disputes between them, they are agreeing to two things: that A’s liability will depend on A’s negligence when A is the defendant, and that B’s liability will depend on B’s negligence when B is the defendant. For purposes of analysis, those are separate agreements; one could imagine one without the other. We may think of A buying from B (at a positive price) B’s assent to the rule for cases in which A is the defendant and B the plaintiff, and B buying from A (at a positive price) A’s assent to the rule for cases in which B is the plaintiff and A the defendant.
Assume, for simplicity, that every pair of individuals is equally likely to become involved in a dispute and that the nature of the potential disputes is the same across individuals, so that the value to A of legal assent from B is the same as the value to him of legal assent from C, D, etc. Parties differ, however, in their value for consuming and cost of producing legal assent. Thus A may be willing to pay, if necessary, up to two dollars each to buy agreement from B, C, D, … to a negligence rule that will apply when A is the defendant. B may be similarly willing to pay up to three dollars to each of the others. Meanwhile, A may be willing to sell his assent, to agree to a negligence rule in cases where he is the plaintiff, for any price above one dollar, and B similarly for any price above two dollars. Following the analogy to an ordinary good, we would say that A values the assent of others at $2 per person, B values it at $3 per person. A’s cost of producing assent is $1 per person, B’s cost is $3 per person. The efficient rule is for each party to sell his assent to anyone who values it at more than its cost, thus maximizing the gains from trade. If B values assent at more than its cost to A (as he does: $3>$1) it is efficient for A to agree to accept a negligence rule if he sues B. If A values assent at less than its cost to B (as he does: $2<$3) it is efficient for B not to agree to accept a negligence rule if he sues A.
Suppose, in analogy to an ordinary market, that each seller specifies a price at which he will sell assent to anyone willing to pay, and that each buyer than buys assent from anyone selling it at a price less than the buyer’s value. Will this produce the efficient result?
It will not. Consider the situation from the standpoint of A. If he offers to sell his assent at $1 to any buyer, the result will be efficient, since any buyer who values it at more than $1 (A’s cost) will buy it. But A will get no benefit from the transaction, since he is selling the good for its cost to him; all of the gain from trade is going to the buyer. If A raises his price to $2, some potential sales (to buyers with a value between $1 and $2) will be lost, but the remaining sales (to buyers with a value greater than $2) will be made at a gain for A of $1 each. Exactly what price maximizes A’s net gain will depend on the distribution of values among the other sellers, but it will be more than $1. So the result will be inefficient: buyers who value A’s assent at more than its cost but less than its price will not buy.
This is the familiar deadweight problem of a single price monopoly. A monopolist maximizes his profit at a price above his cost, eliminating some efficient transactions. It seems out of place here because we seem to be dealing with a market of many buyers and many sellers. But one seller cannot substitute for another, so it is really a market with a very large number of bilateral monopolies.
One could reverse the form of the transaction by having sellers state a price and buyers decide whether to buy or not. The result would be essentially the same. Buyers would state a price below their real value, giving up some (efficient) transactions in order to increase their gain on the remaining transactions. This time we would call the situation monoposony instead of monopoly.
If this analysis is correct, and I believe it is, conventional models of perfect competition do not apply to the market for legal agreement. It is more appropriately modeled as bargaining among the parties buying and selling legal assent, as in the previous section. Such a model implies an efficient outcome subject to the limits imposed by bargaining costs.
In practice, a number of features of the situation are likely to hold down those costs. In many cases, the optimal rules (ex ante , before an actual dispute has occurred) are the same for almost everyone. This is particularly likely to be the case if the bargaining is over symmetrical rules. My agreement to accept a court that operates under negligence rules makes me worse off when I am the plaintiff, but better off when I am the defendant. If negligence is a significantly more efficient rule, it is likely that most people will prefer it.
A second reason is that I must pay for the advantages of a favorable legal rule not only in the process of negotiating it but also in the price of transactions with others who will be bound by it. Suppose, for example, I manage to get a “favorable” legal rule for conflicts between me and any attorneys I hire: if they advise against settling and I lose the case, I can sue them for malpractice with a good chance of winning. One consequence of that rule will be to raise the cost to me of hiring a lawyer. In this and in many other cases, a “favorable” legal rule, like a “favorable” term in a contract, must be paid for in every transaction it applies to, and if it is inefficient the price is likely to be more than it is worth. That is part of the reason why, as Judge Posner and others have argued, the legal system is a poor instrument for income redistribution.
These arguments suggest that the bargaining problems implied by the bilateral monopoly nature of the market for legal assent should not be insuperable, that bargaining among enforcement agencies representing groups of customers ought to be able to produce something close to an efficient outcome. Absent some theoretical structure more powerful than Coasian bargaining, it is hard to be more precise than that.
The Baseline Problem
In my discussion so far I have assumed the existence of some baseline, some initial set of law codes from which bargaining begins. While the location of that base line does not affect the argument for the efficiency of the eventual equilibrium legal rules, it does affect what that equilibrium looks like. Many steps in the process of bargaining towards efficiency will involve some parties agreeing to a legal change that makes them worse off, in exchange for some balancing benefit. If we start with a rule of strict liability, to take the example above, a shift to negligence may require individuals who prefer the latter rule to pay individuals who do not for their assent. If we start with a rule of negligence, a shift in the other direction will require payments the other way. So although the baseline does not determine the efficiency of the outcome, it may well affect the associated distribution of income.
It is not immediately obvious what that base line is. If two enforcement agencies fail to agree on a mutually acceptable arbitrator to settle their dispute, after all, the result is not that the dispute is resolved according to the UCC or the Delaware Commercial Code but that it is resolved by force.
This suggests that the ultimate baseline is the solution to a bilateral monopoly bargaining game among the agencies. Each agency can threaten to refuse to agree to any arbitrator, subjecting both to the costs of occasional violence, or at least of ad hoc negotiation to avoid violence. Each knows that the other would prefer even a rather unfavorable set of legal rules to no agreement at all. Each knows that if no agreement is reached, they are both at risk of losing their customers to other agencies that have been more successful in negotiating agreements.
The situation is analogous to a union management negotiation or the negotiations determining borders, trade policies, and the like between neighboring countries. While there is no good theoretical account of exactly what determines the outcome of bilateral monopoly bargaining, experience suggests that some tolerably stable equilibrium usually exists. Most unionized firms manage to settle their differences without lengthy strikes, and most nations are at peace with most of their neighbors most of the time.
So we may imagine the market for law as starting out with a set of default rules between each pair of protection agencies, representing the result of bargaining backed by threats of refusal to agree on an arbitrator. From there, the agencies bargain to an efficient set of rules. The distributional outcome is the result of an implicit threat game between the agencies; the allocational outcome is the result of a (logically subsequent) bargaining game to move the agencies (and their customers) from the starting point to the Pareto frontier.
Experience suggests that there is enormous inertia in mutual threat games of this sort. National boundaries do not move half a mile one way or the other each time one nation becomes a little richer or a little more powerful. In practice, an anarcho-capitalist society will probably be built not so much on an ongoing mutual threat game as on a mutual threat game played out in the distant past. That suggests that, once the initial equilibrium has been established, the success of a protection agency will be based mainly on its ability to produce protection for its customers, not its ability to defeat rivals in open warfare.
While it is always possible for one firm to threaten to withdraw from its arbitration agreement with another unless the terms are renegotiated de novo , such threats are unlikely to be either common or successful. Other agencies have a strong incentive to insist on basing their bargaining on the existing rules, in order to prevent the costs both of continual renegotiation and of violence when negotiations break down.
The stability of a status quo in part reflects the influence of Schelling Points, outcomes recognized by both parties as unique, upon the outcome of bargaining. Where the alternative to agreement is costly, almost any agreement is better than none, so both parties have an incentive to look for alternatives that they can converge on. This suggests the possibility that if anarcho-capitalist institutions evolve out of an existing state-run legal system, the rules of that legal system might function as the status quo from which further bargaining preceded. Whether or not such rules are efficient, they are familiar to the parties and they specify answers to most of the relevant questions. They therefore provide a potential point of initial agreement from which to conduct further bargaining.
Market Failure in the Market for Law
I have argued that the market will tend to generate efficient law, for much the same sort of reasons that markets in general tend to generate efficient outcomes, although the argument depends on Coasian bargaining rather than perfect competition. But even if markets tend towards efficiency, that tendency is limited by various forms of market failure. Are there forms of market failure to which this market is particularly vulnerable, and, if so, what are their implications?
The answer, I think, is that there is a special sort of market failure relevant to this market. It is plausible to imagine a pair of enforcement agencies bargaining to an outcome close to the set of rules that maximize the net welfare of their customers. It is not I think plausible, pace Coase, to imagine a set of a hundred enforcement agencies bargaining together to a single outcome maximizing the welfare of all of their customers. So we can expect the legal rules between A and B to maximize their joint welfare, even to maximize the joint welfare of all of the clients of their enforcement agencies, but we cannot expect the rules applying between A and B to maximize the joint welfare of everyone, including customers of other enforcement agencies.
It follows that the rules will be optimal only when the legal rule between A and B produces no net third party effect on C, C being a customer of some other agency. In many cases this seems plausible, at least as a reasonable approximation. The rule that determines what happens if A breaks his contract with B, or breaks into B’s house, or breaks B’s arm, should have relatively little effect on C.
Consider, however, intellectual property law. When B agrees to respect A’s intellectual property, the result is an increased incentive for A to produce such property, which may benefit others who use it. Such benefits will not be taken into account in the negotiations that determine whether or not B makes such an agreement. The result will be a lower than optimal level of intellectual property law.
Indeed, the result may well be no protection for intellectual property at all. To see why, imagine that A, a producer of intellectual property, is bargaining with B, a consumer, for protection. If they agree on protection, B will be liable to pay A $10 for each copy of A’s computer program that B makes. What are the cost and benefits of such an agreement.
The most obvious benefit is that A will receive $10/copy. This, however, is exactly balanced by the cost to B of paying $10/copy. If these were the only costs and benefits, agreement and disagreement would be equally efficient.
There are at least two other costs and one other benefit. One cost is that B will make fewer copies of the program than if copying were free–perhaps he will put a copy on his desktop machine but not on his portable. Perhaps he will buy copies of two of A’s programs, but not a third, since it is worth only $5 to him. This cost is the familiar deadweight cost of copyright–the inefficiency due to the difference between the (positive) price of making an addition copy to the user and the (zero) marginal cost of permitting an additional copy to the copyright owner, resulting in an inefficiently low number of copies.
A second cost is the cost of enforcing the agreement. Keeping track of what copies A has made will be costly, perhaps impossible, and any resulting dispute will lead to expensive litigation.
To balance these costs there is an important benefit: The incentive that A has to write computer programs if he will be paid for them and does not have if he will not. If we were considering the question of requiring or not requiring all consumers of A’s intellectual property to pay for it, that benefit might well outweigh the costs we have described, making copyright protection for programs economically efficient. After all, if A does not write any programs there will be nothing for B to copy.
But we are considering the question not with regard to the whole world but only with regard to B. The additional revenue A will receive as a result of B being covered by his copyright is very small, and will produce only a very small increase in output. That increase will benefit everyone who uses A’s programs, but only the small part of that benefit that goes to B will be relevant to the negotiation between them. It follows that the benefit is vanishingly small, implying net costs, hence no protection.
The result is similar but less extreme if we consider negotiation, not between individuals, but between enforcement agencies. The agency will take into account not merely the benefit to B from the increased output due to B being bound by A’s copyright, but the benefit to all of its customers due to the increased output from all of them being bound by A’s copyright. The result is still only a small fraction of the total benefit from copyright law, assuming that there are many enforcement agencies each serving only a small fraction of the population, but a larger fraction than in the case of individual negotiation. The fraction becomes larger still if we allow for the possibility of copyright negotiations among groups of enforcement agencies, with each agreeing to recognize the copyrights of the customers of all of the others if they will all agree similarly. Such negotiations would be analogous to the negotiations among nations by which international intellectual property rights are now established.
Even allowing for the possibility of such multiparty negotiations, our result, although weaker, still remains; we would expect an inefficiently low level of protection for intellectual property. We might well get no protection at all. This raises two questions, both outside the range of this chapter. One, whether intellectual property protection is desirable, and if so how desirable, has been discussed at some length in the intellectual property literature. The other, whether the equivalent of intellectual property protection could be provided in other ways, for instance by contract, is discussed (in the context of computer networks and encryption) in a forthcoming article of mine.
Similar problems will arise with pollution law, where A’s right to sue B for polluting his air results in a reduction of B’s emissions and thus an external benefit for A’s neighbor C. They may well arise in other important contexts as well. In all of these cases, we would expect the legal rules generated by the private market to be inefficient. Whether they will be less efficient than the rules currently generated by courts and legislatures is not clear. Pace Posner, we have no good theoretical reason to expect those legal rules to be efficient either.
While there are no modern anarcho-capitalist societies with legal system to be analyzed, there are a number of real world institutions, past and present, that are in some ways analogous. Evidence on the working of such institutions may help us answer two related questions about the private market for law: whether conflicts would be settled by law rather than violence and whether the resulting legal rules would be efficient.
Consider the settlement of legal claims between insurance companies at present. Company A’s client runs into and injures Company B’s client, giving the latter a possible tort claim against the former. The two companies can resolve the dispute at a low cost by settling out of court, provided they can agree on an outcome (or an arbitrator), or they can settle it at a high cost in court.
Their situation is analogous to the “arbitrate or fight” decision faced by a private enforcement agency every time one of its clients has a legal conflict with a client of another agency. There too, there is a low cost solution (arbitration) which depends on an agreement between the two agencies and an alternative (violence) with high costs for both parties. In both cases, the parties (insurance companies and enforcement agencies) can expect to have many such conflicts with each other, so they are engaged in a repeated game in which considerations such as reputation will play a large role.
The argument is not, of course, limited to auto accidents. It applies wherever parties are faced with the decision to settle or litigate, since that is a bilateral monopoly problem of the same sort I have been describing. The evidence suggests that the overwhelming majority of parties in such cases settle.
Evidence on settlement rates provides some reason to believe that, under the institutions I have described, almost all disputes would be settled peacefully, but it does not tell us what the rules under which disputes were settled would be like. The literature on norms as a private substitute for law suggests that such institutions might produce a reasonably efficient set of rules.
In his book Order Without Law, Robert Ellickson described his investigations into how conflicts were settled in modern day Shasta County, California. He found that interactions between neighbors, with regard to straying cattle and many other things, were controlled not by law but by a system of norms, a private law code having no connection to courts, legislatures, or any other agency of state power. When a rancher was informed that one of his animals was trespassing, he was expected to apologize, retrieve the animal, and take reasonable precautions to keep it from happening again. If significant damage had been done, the rancher was expected to make up for the damage.
The system was self enforcing. If a rancher consistently let his animals stray, or failed to offer to make up for significant damages, the victim would respond by initiating true negative gossip, spreading the word that that particular rancher was not behaving in a proper neighborly fashion. If that failed to work, straying animals could be transported far from the victim’s (and owner’s) property, imposing significant costs on the owner who had to retrieve them. In extreme cases trespassing animals might even be deliberately injured. The one thing good neighbors did not do, even under severe provocation, was go to court.
Straying cattle were not the only thing to which legal rules were irrelevant. California has quite detailed laws specifying under what circumstance one of two adjoining landowners can build a fence between their properties and charge part of the cost to his neighbor. Landowner’s in Shasta county build fences, and their neighbors sometimes end up paying for them. But what fences get built and who pays for how much of the cost are unaffected by what ought to be the relevant law. Nor do such norms apply only in modern-day Shasta County. Ellickson’s examples of societies with such norms included orchard men in the Pacific Northwest, whalers in the 19th century, and modern American academics.
Ellickson’s central thesis was that close-knit groups tend to develop efficient norms. He concluded that while formal law is important and useful in human affairs, it is less important and less useful than generally believed. In a wide variety of situations, people not only succeed in resolving their conflicts without recourse to law, they do it by mechanisms that work considerably better than the legal system.
I have discussed elsewhere the reasons why I believe that his thesis is a plausible one, and offered some evidence that the norms he describes are in fact efficient. The relevance of that discussion to this chapter is that the system of norms and norm enforcement that he describes is a simpler version of the sort of private market for law discussed in this chapter. There are no middlemen or arbitrators; everyone is his own enforcement agency; the only available court is the court of (local) public opinion. But the structure of the market for norms is the same as the structure of the market for law. Each person can choose whether to act in a neighborly fashion towards each other person, and each pair of persons must in some way reach agreement on what that implies. If individuals fail to agree (or violate their agreements), the result is costly conflict. If, as Ellickson argues, such a structure tends to generate efficient norms, that is at least some evidence that a similar structure would tend to generate efficient laws.
Efficiency, Justice and Liberty
The attentive reader, and especially the attentive libertarian reader, will have noticed that I have said nothing about what the laws generated by the market will be, other than efficient. In particular, I have said nothing about whether those laws will be consistent with either justice or liberty. That omission was deliberate. My purpose here is to discuss what outcomes we can expect a competitive market for law to produce, not what outcomes we want it to produce. This is an essay in economics, not moral philosophy.
Whether these outcomes will be consistent with either justice or liberty depends on whether either justice or liberty is economically efficient. In the case of liberty, I think there is good reason to believe that, as a general rule, it is. A considerable part of libertarian writing, my own included, as well as a good deal of economic theory from Adam Smith on, defends the thesis that, on the whole, leaving people free to run their own lives maximizes total human happiness–for which economic efficiency may be considered a rough proxy.
Whether justice is efficient is a harder problem, and comes in two parts. The first is the question of whether the rules implied by justice are themselves efficient rules; to that I have no answer, since I have no theory of justice to offer other than that implied by individual liberty. The second is the relation between individuals’ beliefs about justice and their preferences for law.
Suppose that almost everyone in a society shares certain beliefs about justice-perhaps that the conviction of innocents is a very bad thing, to be avoided even at high cost, or that murderers should be executed, or that children should not be executed, even for murder. Those beliefs will affect but not determine what laws the people in that society demand. Justice is only one of the things people value; an individual might favor a legal rule he considers unjust if he thinks it benefits him. So we would expect the efficient set of legal rules generated by the market to represent some compromise between the legal rules that would be efficient absent specific beliefs about justice and the rules implied by those beliefs. To put it differently, beliefs about justice affect the value to individuals of being under particular legal rules, which affects what legal rules are efficient, which affects what legal rules the market will produce.
Anarchy, Efficiency and the Common Law
I have argued that there is reason to expect a system in which legal rules are generated by firms competing in a private market to produce efficient rules. Richard Posner has argued that there is considerable empirical evidence to suggest that the actual rules of anglo-american common law are efficient. This raises an obvious and interesting question: can the mechanisms I have been describing explain the observed efficiency of the common law?
I do not know the answer to that question. Certainly some forms of competitive law have contributed to the creation and development of the common law. The common law had its origin in the legal system of Anglo-Saxon England, whose early form involved a large element of private enforcement and private arbitration. It evolved in an environment of multiple court systems–church, royal, and local–where litigants had at least some control over where their disputes were resolved. Some common law rules originated as private norms, and I have argued that norms are produced on something like a competitive market. Some rules may have been borrowed from the medieval Fair Courts, which had some of the characteristics of the system I have described.
It is thus possible that what Posner observes in present day common law is fossilized efficiency, produced by institutions that no longer exist and preserved by the conservative nature of the common law. That conjecture is consistent with the observation that the efficiency of the common law seems to have decreased over time, at least in this century, with the long retreat from freedom of contract providing the most striking example. It is also consistent with Posner’s claim that it is common law, not legislated law, which tends to be efficient. But it would require a much more extensive knowledge of the history and content of the common law than I have to say whether such a conjecture provides a plausible account of such efficiency as modern common law possesses.
In any case, the principal purpose of this chapter is not to offer a solution to the puzzle of why the common law is efficient, supposing that it is. My purpose is to show why the law generated by the institutions of private property anarchy would tend to be efficient, and to explore some of the limitations of that tendency. Although the arguments I offer do not imply anything like a perfectly efficient legal system, they may provide better reasons to expect efficient law under anarchy than we have to expect efficient law under other forms of legal system, including the sort we now have.
Breyer, “The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs, 84 Harvard Law Review 281, 292-301 (1970).
Buchanan, James M. 1974, review of The Machinery of Freedom: Guide to a Radical Capitalism by David D. Friedman, Journal of Economic Literature XII, 3 (September 1974), pp. 914-915.
Benson, Bruce, The Enterprise of Law.
Cowen, Tyler 1992, “Law as a Public Good: The Economics of Anarchy,” Economics and Philosophy, 8 (1992), pp. 249-267.
Danzon, Patricia Munch and Lilliard, Lee A., “Settlement ouf of Court: The Disposition of Medical Malpractice Claims, 12 Journal of Legal Studies 345-375 (1983)
Ellickson, Robert C., Order Without Law, Harvard University Press, Cambridge 1991.
Friedman, David, “A Positive Account of Property Rights,” Social Philosophy and Policy 11 no. 2 (Summer 1994) pp. 1-16.
“Private Creation and Enforcement of Law — A Historical Case.” Journal of Legal Studies 8, 399-415 (March 1979).
The Machinery of Freedom, Guide to a Radical Capitalism, 1st ed. Harper (1973), 2nd ed. La Salle, IL: Open Court (1989).
“Law as a Private Good,” Economics and Philosophy 10 (1994), 319-327.
Hammitt, James K., Automobile Accident Compensation, Volume II: Payments by Auto Insurers, Rand: Santa Monica (1985).
Landes, William and Posner, Richard, “Legal Precedent: A Theoretical and Empirical Analysis,” 19 Journal of Law and Economics 249 (1976).
“Adjudication as a Private Good,” 8 Journal of Legal Studies 235- (1979).
Machlup, “An Economic Review of the Patent System,” Study No. 15, Subcommittee on Patents, Trademarks and Copyrights, Senate Committee on the Juciciary, 85th Cong., 2d Sess. (1958)
Posner, Richard, Economic Analysis of Law, 4th edn., (Boston: Little Brown, 1992)
Priest, George L., “The Common Law Process and the Selection of Efficient Rules,” 6 Journal of Legal Studies 65-82 (1977).
Rubin, Paul H., “Why is the Common Law Efficient?” 6 Journal of Legal Studies 51-63 (1977)
Rubin, Paul H. and Bailey, Martin J., “The Role of Lawyers in Changing the Law,” 23 Journal of Legal Studies p. 807 (1994).
Thomas C. Schelling, The Strategy of Conflict, (Oxford: Oxford University Press 1960).
Shapo, Marshall S., Reporter, Towards a Jurisprudence of Injury: The Continuing Creation of a System of Substantive Justice in American Tort Law, Report to the American Bar Association, 1984.
Viscuzi, W. Kip, “The Determinants of the Disposition of Product Liability Claims and Compensation for Bodily Injury,” 15 Journal of Legal Studies 321-346 (1986).
The book was the first (1972) edition of The Economic Analysis of Law. So far as I know, this was the first appearance in print of the conjecture. In the current (1992) edition Posner writes “the theory is that the common law is best (not perfectly) explained as a system for maximizing the wealth of society.”Posner prefers the term “wealth maximization,” but uses it in a sense corresponding to conventional ideas of economic efficiency. For a more detailed discussion of such ideas, see Friedman (Price Theory) Chapter 15, Posner (1992) esp. pp. 13-16.
The original for of this argument appeared in Friedman (1973), pp. . Interested readers will also find there, and in the current (1989) edition, discussions of other problems raised by an anarcho-capitalist society, including defense against foreign states and stability against the reintroduction of the state.
Economists are accustomed to the idea that the principal justification for government is as a producer of public goods. Law enforcement, although it has some public good elements, is both crowdable–it costs a police force more to protect all the citizens of a town than to protect half of them–and excludable. Arbitration is an ordinary private good, although one of its outputs and inputs, information in the form of precendents, shares the public good characteristics of other forms of information. See Landes and Posner (1976, 1979).
A single arbitration agency might supply different law codes to different customers, so the number of law codes could be greater than the number of arbitration agencies. If, on the other hands, customers valued the simplicity and predictability of uniform law, many arbitration agencies might choose to adopt identical, or at least very similar, law codes.
In many legal systems, legal rules are not symmetrical between parties. Even in our legal system, that is true if one of the parties is a government protected by sovereign immunity, or a minor, or some other party with special status.
If one wanted to drop this assumption, one could do so by introducing a “quanity” [pi]ij, representing the probability of a dispute between i and j. A uniform price P for legal assent would then be per unit, making the price at which i bought assent from j P[pi]ij.
Imagine, for example, the baseline rules with regard to race that we might expect if an anarcho-capitalist society had somehow been established in the American south in the 1840’s. Even if the system succeeded in bargaining its way to the (efficient) outcome of freedom for slaves, it would presumably be freedom on very unfavorable terms.
Little, but not none. A might break B’s arm without first ascertaining B’s enforcement agency. If so, the fact that C’s enforcement agency has obtained severe penalties for assault in its negotiations with A’s agency may provide some protection to B.
Danzon and Lilliard (1983) found that fewer than 10% of malpractice claims were tried; Viscuzi (1986) found that 95% of product liability claims that were not dropped were settled either before or during trial. Department of Transportation research on bodily injury and uninsured motorist claims found that “less than 1% of all claimants went all the way to a verdict.” (Shapo (1984) quoting from 1 Department of Transportation, Automobile Personal Inury Claims 121 (1970)). Hammitt (1985) reported that, of the bodily injury cases in their study, only about 1% were tried to a verdict; about an additional 1/2% of the cases settled during trial. I do not know what fraction of the cases in any of these studies were conducted by insurance companies against insurance companies. I conjecture that, if one could separate out such cases, the settlement rates would be even higher, because of the discipline imposed by repeat dealing.
David Friedman, “Less Law than Meets the Eye,” a review of Order Without Law, by Robert Ellickson, The Michigan Law Review vol. 90 no. 6, (May 1992) pp. 1444-1452. In that review I suggest limitations to the efficiency of norms corresponding to those offered here with regard to the efficiency of privately generated law.
The Production of Security
Originally published as “De la production de la s�curit�,”
There are two ways of considering society. According to some, the development of human associations is not subject to providential, unchangeable laws. Rather, these associations, having originally been organized in a purely artificial manner by primeval legislators, can later be modified or remade by other legislators, in step with the progress of social science. In this system the government plays a preeminent role, because it is upon it, the custodian of the principle of authority, that the daily task of modifying and remaking society devolves.
According to others, on the contrary, society is a purely natural fact. Like the earth on which it stands, society moves in accordance with general, preexisting laws. In this system, there is no such thing, strictly speaking, as social science; there is only economic science, which studies he natural organism of society and shows how this organism functions.
We propose to examine, within the latter system, the function and natural organization of government.
THE NATURAL ORDER OF SOCIETY
In order to define and delimit the function of government, it is first necessary to investigate the essence and object of society itself.
What natural impulse do men obey when they combine into society? They are obeying the impulse, or, to speak more exactly, the instinct of sociability. The human race is essentially sociable. like beavers and the higher animal species in general, men have an instinctive inclination to live in society.
Why did this instinct come into being?
Man experiences a multitude of needs, on whose satisfaction his happiness depends, and whose non-satisfaction entails suffering. Alone and isolated, he could only provide in an incomplete, insufficient manner for these incessant needs. The instinct of sociability brings him together with similar persons, and drives him into communication with them. Therefore, impelled by the self-interest of the individuals thus brought together, a certain division of labor is established, necessarily followed by exchanges. In brief, we see an organization emerge, by means of which man can more completely satisfy his needs than he could living in isolation.
This natural organization is called society.
The object of society is therefore the most complete satisfaction of man�s needs. The division of labor and exchange are the means by which this is accomplished.
Among the needs of man, there is on particular type which plays an immense role in the history of humanity, namely the need for security.
What is this need?
Whether they live in isolation or in society, men are, above all, interested in preserving their existence and the fruits of their labor. If the sense of justice were universally prevalent on earth; if, consequently, each man confined himself to laboring and exchanging the fruits of his labor, without wishing to take away, by violence or fraud, the fruits of other men�s labor; if everyone had, in one word, an instinctive horror of any act harmful to another person, it is certain that security would exist naturally on earth, and that no artificial institution would be necessary to establish it. Unfortunately this is not the way things are. The sense of justice seems to be the perquisite of only a few eminent and exceptional temperaments. Among the inferior races, it exists only in a rudimentary state. Hence the innumerable criminal attempts, ever since the beginning of the world, since the days of Cain and Abel, against the lives and property of individuals.
Hence also the creation of establishments whose object is to guarantee to everyone the peaceful possession of his person and his goods.
These establishments were called governments.
Everywhere, even among the least enlightened tribes, one encounters a government, so universal and urgent is the need for security provided by government.
Everywhere, men resign themselves to the most extreme sacrifices rather than do without government and hence security, without realizing that in so doing, they misjudge their alternatives.
Suppose that a man found his person and his means of survival incessantly menaced; wouldn�t his first and constant preoccupation be to protect himself from the dangers that surround him? This preoccupation, these efforts, this labor, would necessarily absorb the greater portion of his time, as well as the most energetic and active faculties of his intelligence. In consequence, he could only devote insufficient and uncertain efforts, and his divided attention, to the satisfaction of his other needs.
Even though this man might be asked to surrender a very considerable portion of his time and of his labor to someone who takes it upon himself to guarantee the peaceful possession of his person and his goods, wouldn�t it be to his advantage to conclude this bargain?
Still, it would obviously be no less in his self-interest to procure his security at the lowest price possible.
COMPETITION IN SECURITY
If there is one well-established truth in political economy, it is this:
That in all cases, for all commodities that serve to provide for the tangible or intangible needs of the consumer, it is in the consumer�s best interest that labor and trade remain free, because the freedom of labor and of trade have as their necessary and permanent result the maximum reduction of price.
That the interests of the consumer of any commodity whatsoever should always prevail over the interests of the producer.
Now in pursuing these principles, one arrives at this rigorous conclusion:
That the production of security should, in the interests of the consumers of this intangible commodity, remain subject to the law of free competition.
Whence it follows:
That no government should have the right to prevent another government from going into competition with it, or to require consumers of security to come exclusively to it for this commodity.
Nevertheless, I must admit that, up until the present, one recoiled before this rigorous implication of the principle of free competition.
One economist who has done as much as anyone to extend the application of the principle of liberty, M. Charles Dunoyer, thinks �that the functions of government will never be able to fall into the domain of private activity.1
Now here is a citation of a clear and obvious exception to the principle of free competition.
This exception is all the more remarkable for being unique.
Undoubtedly, one can find economists who establish more numerous exceptions to this principle; but we may emphatically affirm that these are not pure economists. True economists are generally agreed, on the one had, that the government should restrict itself to guaranteeing the security of its citizens, and on the other hand, that the freedom of labor and of trade should otherwise be whole and absolute.
But why should there be an exception relative to security? What special reason is there that the production of security cannot be relegated to free competition? Why should it be subjected to a different principle and organized according to a different system?
On this point, the masters of the science are silent, and M. Dunoyer, who has clearly noted this exception, does not investigate the grounds on which it is based.
SECURITY AN EXCEPTION?
We are consequently led to ask ourselves whether his exception is well founded, in the eyes of the economist.
It offends reason to believe that a well established natural law can admit of exceptions. A natural law must hold everywhere and always, or be invalid. I cannot believe, for example, that the universal law of gravitation, which governs the physical world, is ever suspended in any instance or at any point of the universe. Now I consider economic laws comparable to natural laws, and I have just as much faith in the principle of the division of labor as I have in the universal law of gravitation. I believe that while these principles can be disturbed, they admit of no exceptions.
But, if this is the case, the production of security should not be removed from the jurisdiction of free competition; and if it is removed, society as a whole suffers a loss.
Either this is logical and true, or else the principles on which economic science is based are invalid.
It thus has been demonstrated a priori, to those of us who have faith in the principles of economic science, that the exception indicated above is not justified, and that the production of security, like anything else, should be subject to the law of free competition.
Once we have acquired this conviction, what remains for us to do? It remains for us to investigate how it has come about that the production of security has not been subjected to the law of free competition, but rather has been subjected to different principles.
What are those principles?
Those of monopoly and communism.
In the entire world, there is not a single establishment of the security industry that is not based on monopoly or on communism.
In this connection, we add, in passing, a simple remark.
Political economy has disapproved equally of monopoly and communism in the various branches of human activity, wherever it has found them. Is it not then strange and unreasonable that it accepts them in the security industry?
MONOPOLY AND COMMUNISM
Let us now examine how it is that all known governments have either been subjected to the law of monopoly, or else organized according to the communistic principle.
First let us investigate what is understood by the words monopoly and communism.
It is an observable truth that the more urgent and necessary are man�s needs, the greater will be the sacrifices he will be willing to endure in order to satisfy them. Now, there are some things that are found abundantly in nature, and whose production does not require a great expenditure of labor, but which, since they satisfy these urgent and necessary wants, can consequently acquire an exchange value all out of proportion with their natural value. Take salt for example. Suppose that a man or a group of men succeed in having the exclusive production and sale of salt assigned to themselves. It is apparent that this man or group could arise the price of this commodity well above its value, well above the price it would have under a regime of free competition.
One will then say that this man or this group possesses a monopoly, and that the price of salt is a monopoly price.
But it is obvious that the consumers will not consent freely to paying the abusive monopoly surtax. It will be necessary to compel them to pay it, and in order to compel them, the employment of force will be necessary.
Every monopoly necessarily rests on force.
When the monopolists are no longer as strong as the consumers they exploit, what happens?
In every instance, the monopoly finally disappears either violently or as the outcome of an amicable transaction. What is it replaced with?
If the roused and insurgent consumers secure the means of production of the salt industry, in all probability they will confiscate this industry for their own profit, and their first thought will be, not to relegate it to free competition, but rather to exploit it, in common, for their own account. They will then name a director or a directive committee to operate the saltworks, to whom they will allocate the funds necessary to defray the costs of salt production. then, since the experience of the past will have made them suspicious and distrustful, since they will be afraid that the director named by them will seize production for his own benefit, and simply reconstitute by open or hidden means the old monopoly for his own profit, they will elect delegates, representatives entrusted with appropriating the funds necessary for production, with watching over their use, and with making sure that the salt produced is equally distributed to those entitled to it. The production of salt will be organized in this manner.
This form of the organization of production has been named communism.
When this organization is applied to a single commodity, the communism is said to be partial.
When it is applied to all commodities, the communism is said to be complete.
But whether communism is partial or complete, political economy is no more tolerant of it than it is of monopoly, of which it is merely an extension.
THE MONOPOLIZATION AND COLLECTIVIZATION
OF THE SECURITY INDUSTRY
Isn�t what has just been said about salt applicable to security? Isn�t this the history of all monarchies and all republics?
Everywhere, the production of security began by being organized as a monopoly, and everywhere, nowadays, it tends to be organized communistically.
Here is why.
Among the tangible and intangible commodities necessary to man, none, with the possible exception of wheat, is more indispensable, and therefore none can support quite so large a monopoly duty.
Nor is any quite so prone to monopolization.
What, indeed, is the situation of men who need security? Weakness. What is the situation of those who undertake to provide them with this necessary security? Strength. If it were otherwise, if the consumers of security were stronger than the producers, they obviously would dispense with their assistance.
Now, if the producers of security are originally stronger than the consumers, won�t it be easy for the former to impose a monopoly on the latter?
Everywhere, when societies originate, we see the strongest, most warlike races seizing the exclusive government of the society. Everywhere we see these races seizing a monopoly on security within certain more or less extensive boundaries, depending on their number and strength.
And, this monopoly being, by its very nature, extraordinarily profitable, everywhere we see the races invested with the monopoly on security devoting themselves to bitter struggles, in order to add to the extent of their market, the number of their forced consumers, and hence the amount of their gains.
War has been the necessary and inevitable consequence of the establishment of a monopoly on security.
Another inevitable consequence has been that this monopoly has engendered all other monopolies.
When they saw the situation of the monopolizers of security, the producers of other commodities could not help but notice that nothing in the world is more advantageous than monopoly. They, in turn, were consequently tempted to add to the gains from their own industry by the same process. But what did they require in order to monopolize, to the detriment of the consumers, the commodity they produced? They required force. However, they did not possess the force necessary to constrain the consumers in question. What did they do? They borrowed it, for a consideration, from those who had it. They petitioned and obtained, at the price of an agreed upon fee, the exclusive privilege of carrying on their industry within certain determined boundaries. Since the fees for these privileges brought the producers of security a goodly sum of money, the world was soon covered with monopolies. Labor and trade were everywhere shackled, enchained, and the condition of the masses remained as miserable as possible.
Nevertheless, after long centuries of suffering, as enlightenment spread through the world little by little, the masses who had been smothered under this nexus of privileges began to rebel against the privileged, and to demand liberty, that is to say, the suppression of monopolies.
This process took many forms. What happened in England, for example? Originally, the race which governed the country and which was militarily organized (the aristocracy), having at its head a hereditary leader (the king), and an equally hereditary administrative council (the House of Lords), set the price of security, which it had monopolized, at whatever rate it pleased. There was no negotiation between the producers of security and the consumers. This was the rule of absolutism. But as time passed, the consumers, having become aware of their numbers and strength, arose against the purely arbitrary regime, and they obtained the right to negotiate with the producers over the price of the commodity. For this purpose, they sent delegates to the House of Commons to discuss the level of taxes, the price of security. They were thus able to improve their lot somewhat. Nevertheless, the producers of security had a direct say in the naming of the members of the House of Commons, so that debate was not entirely open, and the price of the commodity remained above its natural value. One day the exploited consumers rose against the producers and dispossessed them of their industry. They then undertook to carry on this industry by themselves and chose for this purpose a director of operations assisted by a Council. Thus communism replaced monopoly. But the scheme did not work, and twenty years later, primitive monopoly was re-established. Only this time the monopolists were wise enough not to restore the rule of absolutism; they accepted free debate over taxes, being careful, all the while, incessantly to corrupt the delegates of the opposition party. They gave these delegates control over various posts in the administration of security, and they even went so far as to allow the most influential into the bosom of their superior Council. Nothing could have been more clever than thus behavior. Nevertheless, the consumers of security finally became aware of these abuses, and demanded the reform of Parliament. This long contested reform was finally achieved, and since that time, the consumers have won a significant lightening of their burdens.
In France, the monopoly on security, after having similarly undergone frequent vicissitudes and various modifications, has just been overthrown for the second time. [De Molinari was writing one year after the revolutions of 1848 � Tr.] As once happened in England, monopoly for the benefit of one caste, and then in the name of a certain class of society, was finally replaced by communal production. The consumers as a whole, behaving like shareholders, named a director responsible for supervising the actions of the director and of his administration.
We will content ourselves with making one simple observation on the subject of this new regime.
Just as the monopoly on security logically had to spawn universal monopoly, so communistic security must logically spawn universal communism.
In reality, we have a choice of two things:
Either communistic production is superior to free production, or it is not.
If it is, then it must be for all things, not just for security.
If not, progress requires that it be replaced by free production.
Complete communism or complete liberty: that is the alternative!
GOVERNMENT AND SOCIETY
But is it conceivable that the production of security could be organized other than as a monopoly or communistically? Could it conceivably be relegated to free competition?
The response to this question on the part of political writers is unanimous: No.
Why? We will tell you why.
Because these writers, who are concerned especially with governments, know nothing about society. They regard it as an artificial fabrication, and believe that the mission of government is to modify and remake it constantly.
Now in order to modify or remake society, it is necessary to be empowered with a authority superior to that of the varous individuals of which it is composed.
Monopolistic governments claim to have obtained from God himself this authority which gives them the right to modify or remake society according to their fancy, and to dispose of persons and property however they please. Communistic governments appeal to human reason, as manifested in the majority of the sovereign people.
But do monopolistic governments and communistic governments truly possess this superior, irresistible authority? Do they in reality have a higher authority than that which a free government could have? This is what we must investigate.
THE DIVINE RIGHT OF KINGS AND MAJORITIES
If it were true that society were not <>naturally organized, if it were true that the laws which govern its motion were to be constantly modified or remade, the legislators would necessarily have to have an immutable, sacred authority. Being the continuators of Providence on earth, they would have to be regarded as almost equal to God. If it were otherwise, would it not be impossible for them to fulfill their mission? Indeed, one cannot intervene in human affairs, one cannot attempt to direct and regulate them, without daily offending a multitude of interests. Unless those in power are believed to have a mandate from a superior entity, the injured interests will resist.
Whence the fiction of divine right.
This fiction was certainly the best imaginable. If you succeed in persuading the multitude that God himself has chosen certain men or certain races to give laws to society and to govern it, no one will dream of revolting against these appointees of Providence, and everything the government does will be accepted. A government based on divine right is imperishable.
On one condition only, namely that divine right is believed in.
If one takes the thought into one�s head that the leaders of the people do not receive their inspirations directly from providence itself, that they obey purely human impulses, the prestige that surrounds them will disappear. One will irreverently resist their sovereign decisions, as one resists anything manmade whose utility has not been clearly demonstrated.
It is accordingly fascinating to see the pains theoreticians of the divine right take to establish the superhumanity of the races in possession of human government.
Let us listen, for example, to M. Joseph de Maistre:
Man does not make sovereigns. At the very most he can serve as an instrument for dispossessing one sovereign and handing his State over to another sovereign, himself already a prince. Moreover, there has never existed a sovereign family traceable to plebeian origins. If this phenomenon were to appear, it would mark a new epoch on earth.
… It is written: I am the Maker of sovereigns. This is not just a religious slogan, a preacher�s metaphor; it is the literal truth pure and simple. it is a law of the political world. God makes kings, word for word. He prepares royal races, nurtures them at the center of a cloud which hides their origins. Finally they appear, crowned with glory and honor; they take their places.2
According to this system, which embodies the will of Providence in certain men and which invests these chosen ones, these anointed ones with a quasi-divine authority, the subjects evidently have no rights at all. They must submit, without question, to the decrees of the sovereign authority, as if they were the decrees of Providence itself.
According to Plutarch, the body is the instrument of the soul, and the soul is the instrument of God. According to the divine right school, God selects certain souls and uses them as instruments for governing the world.
If men had faith in this theory, surely nothing could unsettle a government based on divine right.
Unfortunately, they have completely lost faith.
Because one fine day they took it into their heads to question and to reason, and in questioning, in reasoning, they discovered that their governors governed them no better than they, simply mortals out of communication with Providence, could have done themselves.
It was free inquiry that demonetized the fiction of divine right, to the point where the subjects of monarchs or of aristocracies based on divine right obey them only insofar as they think it in their own self-interest to obey them.
Has the communist fiction fared any better?
According to the communist theory, of which Rousseau is the high-priest, authority does not descend from on high, but rather comes up from below. The government no longer look to Providence for its authority, it looks to united mankind, to the one , indivisible, and sovereign nation.
Here is what the communists, the partisans of poplar sovereignty, assume. They assume that human reason has the power to discover the best laws and the organization which most perfectly suits society; and that, in practice, these laws reveal themselves at the conclusion of a free debate between conflicting opinions. If there is no unanimity, if there is still dissension after the debate, the majority is in the right, since it comprises the larger number of reasonable individuals. (These individuals are, of course, assumed to be equal, otherwise the whole structure collapses.) Consequently, they insist that the decisions of the majority must become law, and that the minority is obliged to submit to it, even if it is contrary to its most deeply rooted convictions and injures its most precious interests.
That is the theory; but, in practice, does the authority of the decision of the majority really have this irresistible, absolute character as assumed? Is it always, in every instance, respected by the minority? Could it be?
Let us take an example.
Let us suppose that socialism succeeds in propagating itself among the working classes in the countryside as it has already among the working classes in the cities; that it consequently becomes the majority in the country and that, profiting from this situation, it sends a socialist majority to the Legislative Assembly and names a socialist president. Suppose that this majority and this president, invested with sovereign authority, decrees the imposition of a tax on the rich of three billions, in order to organize the labor of the poor, as M. Proudhon demanded. Is it probable that the minority would submit peacefully to his iniquitous and absurd, yet legal, yet constituional plunder?
No, without a doubt it would not hesitate to disown the authority of the majority and to defend its property.
Under this regime, as under the preceding, one obeys the custodians of authority only insofar as one thinks it in one�s self-interest to obey them.
This leads us to affirm that the moral foundation of authority is neither as solid nor as wide, under a regime of monopoly or of communism, as it could be under a regime of liberty.
THE REGIME OF TERROR
Suppose nevertheless that the partisans of an artificial organization, either the monopolists or the communists, are right; that society is not naturally organized, and that the task of making and unmaking the laws that regulate society continuously devolves upon men, look in what a lamentable situation the world would find itself. The moral authority of governors rests, in reality, on the self-interest of the governed. The latter having a natural tendency to resist anything harmful to their self-interest, unacknowledged authority would continually require the help of physical force.
The monopolist and the communists, furthermore, completely understand this necessity.
If anyone, says M. de Maistre, attempts to detract from the authority of God�s chosen ones, let him be turned over to the secular power, let the hangman perform his office.
If anyone does not recognize the authority of those chosen by the people, say the theoreticians of the school of Rousseau, if he resists any decision whatsoever of the majority, let him be punished as an enemy of the sovereign people, let the guillotine perform justice.
These two schools, which both take artificial organization as their point of departure, necessarily lead to the same conclusion: TERROR.
THE FREE MARKET FOR SECURITY
Allow us now to fromulate a simple hypotheitcal situation.
Let us imagine a new-born society: The men who compose it are busy working and exchanging the fruits of their labor. A natural instinct reveals to these men that their persons, the land they occupy and cultivate, the fruits of their labor, are their property, and that no one, except themselves, has the right to dispose of or touch this property. This instinct is not hypothetical; it exists. But man being an imperfect creature, this awareness of the right of everyone to his person and his goods will not be found to the same degree in every soul, and certain individuals will make criminal attempts, by violence or by fraud, against the persons or the property of others.
Hence, the need for an industry that prevents or suppresses these forcible or fraudulent aggressions.
Let us suppose that a man or a combination of men comes and says:
For a recompense, I will undertake to prevent or suppress criminal attempts against persons and property.
Let those who wish their persons and property to be sheltered from all aggression apply to me.
Before striking a bargain with this producer of security, what will the consumers do?
In the first place, they will check if he is really strong enough to protect them.
In the second place, whether his character is such that they will not have to worry about his instigating the very aggressions he is supposed to suppress.
In the third place, whether any other producer of security, offering equal guarantees, is disposed to offer them this commodity on better terms.
These terms are of various kinds.
In order to be able to guarantee the consumers full security of their persons and property, and, in case of harm, to give them a compensation proportioned to the loss suffered, it would be necessary, indeed:
1. That the producer establish certain penalties against the offenders of persons and the violators of property, and that the consumers agree to submit to these penalties, in case they themselves commit offenses;
2. That he impose certain inconveniences on the consumers, with the object of facilitating the discovery of the authors of offenses;
3. That he regularly gather, in order to cover his costs of production as well as an appropriate return for his efforts, a certain sum, variable according to the situation of the consumers, the particular occupations they engage in, and the extent, value, and nature of their properties.
If these terms, necessary for carrying on this industry, are agreeable to the consumers, a bargain will be struck. Otherwise the consumers will either do without security, or else apply to another producer.
Now if we consider the particular nature of the security industry, it is apparent that the producers will necessarily restrict their clientele to certain territorial boundaries. They would be unable to cover their costs if they tried to provide police services in localities comprising only a few clients. Their clientele will naturally be clustered around the center of their activities. They would nevertheless be unable to abuse this situation by dictating to the consumers. In the event of an abusive rise in the price of security, the consumers would always have the option of giving their patronage to a new entrepreneur, or to a neighboring entrepreneur.
This option the consumer retains of being able to buy security wherever he pleases brings about a constant emulation among all the producers, each producer striving to maintain or augment his clientele with the attraction of cheapness or of faster, more complete and better justice.3
If, on the contrary, the consumer is not free to buy security wherever he pleases, you forthwith see open up a large profession dedicated to arbitrariness and bad management. justice becomes slow and costly, the police vexatious, individual liberty is no longer respected, the price of security is abusively inflated and inequitably apportioned, according to the power and influence of this or that class of consumers. The protectors engage in bitter struggles to wrest customers from one another. In a word, all the abuses inherent in monopoly or in communism crop up.
Under the rule of free competition, war between the producers of security entirely loses its justification. Why would they make war? To conquer consumers? But the consumers would not allow themselves to be conquered. They would be careful not to allow themselves to be protected by men who would unscrupulously attack the persons and property of their rivals. If some audacious conqueror tried to become dictator, they would immediately call tot heir aid all the free consumers menaced by this aggression, and they would treat him as he deserved. Just as war is the natural consequence of monopoly, peace us the natural consequence of liberty.
Under a regime of liberty, the natural organization of the security industry would not be different from that of other industries. In small districts a single entrepreneur could suffice. This entrepreneur might leave his business to his son, or sell it to another entrepreneur. In larger districts, one company by itself would bring together enough resources adequately to carry on this important and difficult business. If it were well managed, this company could easily last, and security would last with it. In the security industry, just as in most of the other branches of production, the latter mode of organization will probably replace the former, in the end.
On the one hand this would be a monarchy, and on the other hand it would be a republic; but it would be a monarchy without monopoly and a republic without communism.
On either hand, this authority would be accepted and respected in the name of utility, and would not be an authority imposed by terror.
It will undoubtedly be disputed whether such a hypothetical situation is realizable. But, at the risk of being considered utopian, we affirm that this is not disputable, that a careful examination of the facts will decide the problem of government more and more in favor of liberty, just as it does all other economic problems. We are convinced, so far as we are concerned, that one day societies will be established to agitate for the freedom of government, as they have already been established on behalf of the freedom of commerce.
And we do not hesitate to add that after this reform has been achieved, and all artificial obstacles to the free action of the natural laws that govern the economic world have disappeared, the situation of the various members of society will become the best possible.
 Adam Smith, whose remarkable spirit of observation extends to all subjects, remarks that the administration of justice gained much, in England, from the competition between the different courts of law:
The fees of court seem originally to have been the principal support of the different courts of justice in England. Each court endeavoured to draw to itself as much business as it could, and was, upon that account, willing to take cognizance of many suits which were not originally intended to fall under its jurisdiction. The court of king�s bench instituted for the trial of criminal causes only, took cognizance of civil suits; the plaintiff pretending that the defendant, in not doing him justice, had been guilty of some trespass or misdemeanor. The court of exchequer, instituted for the levying of the king�s revenue, and for enforcing the payment of such debts only as were due to the king, took cognizance of all other contract debts; the plaintiff alleging that he could not pay the king, because the defendant would not pay him. In consequence of such fictions it came, in many case, to depend altogether upon the parties before what court they would chuse to have their cause tried; and each court endeavoured, by superior dispatch and impartiality, to draw to itself as many causes as it could. The present admirable constitution of the courts of justice in England was, perhaps, originally in a great measure, formed by this emulation, which anciently took place between their respective judges; each judge endeavouring to give, in his own court, the speediest and most effectual remedy, which the law would admit, for every sort of injustice.
The Wealth of Nations (New York: Modern Library, 1937; originally 1776), p. 679.
This translation originally published as Gustave de Molinari, The Production of Security, trans. J. Huston McCulloch, Occasional Papers Series #2 (Richard M. Ebeling, Editor), New York: The Center for Libertarian Studies, May 1977. [Several typographical errors have been corrected.]
1977 note on translator:
J. HUSTON McCULLOCH is Assistant Professor of Economics at Boston College, presently on leave as Faculty Research Fellow, National Bureau of Economic Research, Stanford, California. Professor McCulloch received his B.S. in Economics at California Insitute of Technology and his Ph.D. from the University of Chicago (1973). He has published articles in Economic Inquiry, Journal of Political Economy, Journal of Finance. Professor McCulloch has also published a book entitled Money and Inflation: A Monetarist Approach (1975).
[For more up-to-date information on McCulloch, who now teaches at Ohio State, see his current webpage.]
by P. E. de Puydt
First published in French in the Revue Trimestrielle, Bruxelles, July 1860.
A contemporary has said: “If the truth were in my hands, I should be careful not to open them.” This is perhaps the saying of a savant, certainly that of an egotist. Another has written: “The truths which one least likes to hear are those which most need to be pointed out.”
Here then are two thinkers whose views differ widely. I would rather agree with the second, although in practice his outlook presents difficulties. Wise men of all nations teach me that it is not always best to tell the full truth. However that may be, the problem is how to discern the truth. Moreover, the Scriptures say: “Hide not your light under a bushel.”
Thus I am now confronted with a dilemma: I have a new theory, at least so I believe, and I feel it my duty to expound it. Although on the point of opening my hands, I hesitate; for what innovator has not been persecuted a little? The theory itself, once published, will make its way on its own merits, for I consider it advanced. My concern is rather for the author: Will he be forgiven for his idea?
There was once a man who saved Athens and Greece, who, in an argument following a discussion, said to some barbarian who was lifting a stick against him: “Strike – but listen!” Antiquity abounds with such good examples. Thus, in the matter of Themistocles, I set out my idea, saying to the public: “Read it to the end. You may stone me then if you please.”
However, I don’t expect to be stoned. The barbarian I spoke of died in Sparta 24 centuries ago, and we can all see how far humanity has come in 2,400 years. In our times ideas may be freely expressed; and if occasionally an innovator is attacked, it is not done physically, as in former times, but by calling him an agitator or utopian. Reassured by these thoughts I proceed resolutely to the thesis.
“Sirs, I am a friend of all the world.”
– Sosie, a double, in Moliere’s writings.
I have a high esteem for political economy and would that the world shared my opinion. This science, of recent origin, yet already the most significant of all, is far from reaching fulfilment. Sooner or later (I hope it is sooner) it will govern all things. I am justified in this opinion, for it is from the works of the economists that I have derived the principle whereof I propose a new application still farther reaching and no less logical than all others.
Let us first quote a few aphorisms whose connection will prepare the reader for what follows.
“Freedom and property are directly connected – one favours the distribution of wealth, the other makes production possible.”
“The value of wealth depends on the use to which it is put.”
“The price of services varies directly with demand and inversely with supply.”
“Division of labour multiplies wealth.”
“Freedom brings about competition, which in turn generates progress.”
– Ch. de Brouchere, Principes generaux politique.
Thus there is a need for free competition, first of all between individuals, later internationally – freedom to invent, work, exchange, sell, and buy, freedom to price one’s products – and simply no intervention by the State outside its special sphere. In other words: “Laissez-faire, laissez-passer!”
There, in a few lines, is the basis of political economy, a summary of the science without which there can be nothing but faulty administration and deplorable government. One can go further still, and in most cases reduce this great science to one final formula: “Laissez-faire, laissez-passer!”
I recognise this; and go on to say: In science there are no half truths. There are no truths which are true on the one side and cease to be true under another aspect. The system of the universe exhibits a wonderful simplicity, as wonderful as its infallible logic. A law is true in general; only the circumstances are different. Beings from the most noble to the lowest, from the living plant, even down to the mineral, show intimate similarities in structure, development and composition; and striking analogies link the moral and material worlds. Life is an entity, matter is an entity; only their physical manifestations vary. The combinations are innumerable, the particulars infinite; yet the general plan embraces all things. The feebleness of our understanding and our fundamentally wrong education, are alone responsible for the confusion of systems and inconsistency of ideas. Of two conflicting opinions there is one true and one false, unless both are false; they cannot both be true. A scientifically demonstrated truth cannot be true here and false elsewhere; true, e.g. for political economy and false for politics. This is what I want to prove.
Is the great law of political economy, the law of free competition, “laissez-fare, laissez-passer”, applicable only to regulate industrial and commercial affairs or, more scientifically, only to the production and exchange of wealth?
Think of the economic confusion which this law has dispelled: the permanently troubled condition, the antagonism of conflicting interests, which it has resolved. Are not these conditions equally present in the domain of politics? Does not the analogy indicate a similar remedy for both cases: “Laissez-faire, laissez-passer!”?
We should realise though that there do exist, here and there, governments as liberal as human weakness actually permits, wrong only in assuming that all is for the best in the better republics. Some say: “This is precisely because there is too much freedom”; the others: “This is because there is still not enough freedom.” The truth is that there is not enough of the right kind of freedom, the fundamental freedom to choose to be free or not to be free, according to one’s preference. Every man is a self-appointed judge, and settles this question according to his particular tastes or needs. Since there abound as many opinions as individuals, “tot homines, tot sensus”, one can see what confusion is graced by the good name of politics: The freedom of some denies the rights of others, and vice versa. The wisest and best of governments never functions with the full and free consent of all its subjects. There are parties, either victorious or defeated; there are majorities and minorities in perpetual struggle; and the more confused their notions are, the more passionately they hold to their ideals. Some oppress in the name of right, the others revolt for the sake of liberty, to become oppressors in turn, as the case may be.
“I see!” the reader might say. “You are one of those utopians who would construct out of many pieces a system wherein society would be enclosed, by force or consent. Nothing will do the way it is, and your panacea alone will save mankind. I cannot accept that!”
But you are wrong! My problem is quite a general one. I differ from no one except on one point, namely, that I am open to any persuasion whatsoever; in other words, I allow any of the forms of government – at least all those that have some adherents.
“I do not follow you.”
Well, allow me to go on. There is a general tendency to push theories too far; but does it follow that all the elements of such a theory must be wrong? It has been said that there are perversities or foolishness in the exercise of human intelligence; but to declare one does not like speculative ideas and detests theories, would that not mean a renunciation of our reasoning powers? These considerations are not my own; they were held by one of the greatest thinkers of our time � Jeremy Bentham.
Royer-Collard expressed the same thought with great succinctness: “To hold that theory is good for nothing and that experience is the sole authority, means the impertinence of acting without knowing what one does and of speaking unaware of what one is talking about.” Although nothing is perfect in human endeavours, at least things move towards an ultimate perfection; that is the law of progress. The laws of nature alone are immutable; all legislation must be based on them, for they alone have the strength to support the structure of society; but the structure itself is the work of mankind.
Each generation is like a new tenant who, before moving in, changes things around, cleans up the facade, and adds or pulls down an annex, according to his own needs. From time to time some generation more vigorous or short-sighted than its predecessors, pulls down the whole building, sleeping-out in the open until it is rebuilt. When, after a thousand privations and with enormous efforts, they have managed to rebuild it to a new plan, they are crestfallen to find it is not much more comfortable than the old one. It is true that those who drew up the plans are set up in good apartments, well situated, warm in winter and cool in summer; but the others, who had no choice, are relegated to the garrets, the basements or the lofts. So there are always enough dissenters and trouble makers, of whom some miss the old building, whilst some of the more enterprising already dream of another demolition. For the few who are satisfied there is an innumerable mass of objectors. We must remember however that a few are satisfied. The new edifice is indeed not faultless, but it has some advantages; why pull it down tomorrow, later, indeed ever, as long as it shelters enough tenants to keep it going? I myself detest the wreckers as much as the tyrants. If you feel your apartment is inadequate or too small or unhealthy, then change it – that is all I ask. Choose another place, move out quietly; but for heaven’s sake don’t blow up the whole house as you go. What you found unsuitable might delight your neighbour. Do you understand my comparison?
“Almost, but what are the consequences of this? To have no more revolutions would be fine. I feel that nine times out of ten their costs outweigh their achievements. We prefer to keep the old building, but where can you accommodate those who move out?”
Wherever they like, this is none of my business. I feel that this way liberty is best preserved. This is the basis of my system: “Laissez-faire, laissez-passer!”
“I think I understand: Anyone, not content with the government as it is, must look elsewhere for another. Actually, there has been a choice, from the time of the Moroccan empire right up the republic of San Marino, without mentioning all the other empires, from the City of London to the American Pampas. Is that all your theory amounts to? It is nothing new, I can tell you.”
It is not a matter of emigration. “A man does not carry his native land on the soles of his shoes.” As for the rest, such colossal expatriation is and always will be impracticable. The expense involved could not be met by all the wealth in the world. I have no intention of resettling the population according to its convictions, relegating Catholics to the Flemish Provinces, for example, or marking the liberalist frontier from Mons to Liege. I hope we can all go on living together wherever we are without this, however one likes but without discord, like brothers, each freely holding his opinions and submitting only to a power chosen and accepted by himself.
“I do not understand this at all.”
I am not at all surprised. My plan, my utopia, is apparently not the old story you first thought it to be; yet nothing in the world could be simpler or more natural. However, it is common knowledge that in government, as in mechanics, the simplest ideas always come last. We are coming to the point: One can found nothing lasting except on liberty. Nothing that already exists can maintain itself or operate with full efficiency without the free interplay of all its active parts. Otherwise energy is wasted, parts wear out rapidly, and there are, in fact, break-downs and serious accidents. Thus I demand, for each and every member of human society, freedom of association according to inclination and of activity according to aptitude. In other words, the absolute right to choose the political surroundings in which to live, and to ask for nothing else. For instance, suppose you were a republican…
“Me? May heaven help me!”
Just suppose you were: Monarchy does not suit you – the air is too stifling for your lungs and your body does not have the free play and action your constitution demands, According to your present frame of mind, you are inclined to tear down this edifice, you and your friends, and to build your own in its place. But to do that you would come up against all the monarchists who cling to their monument, and in general all those who do not share your convictions. Do better: assemble, declare your program, draw up your budget, open membership lists, take stock of yourself; and if numerous enough to bear the costs, establish your republic.
“Whereabouts? In the Pampas?”
No, truly not – here where you are, without moving. I agree that it is necessary, up to the present, to have the monarchists’ consent. For the sake of my argument, I suppose the matter of principle to be settled. Otherwise I am well aware of the difficulty of changing the state of affairs to the way it should be and must become. I simply express my idea, not wishing to impose it on anyone; but I see nothing which might suppress it but the routine.
Don’t we know how bad a household establishment the governed and the governments make together, everywhere? On the civil level we provide against unworkable households by legal separation or divorce. I suggest an analogous solution for politics, without having to circumscribe it with formalities and protective restrictions, for in politics previous associations leave no children or physical marks. My method differs from unjust and tyrannical procedures followed in the past in that I have no intention to do anyone violence. Those wishing to form their own political schism may be its founders, but on one condition, that is, to do so among themselves, within their group, affecting neither the rights not the creed of others. To achieve this, it is absolutely not necessary to subdivide the territory of the State into so many parts as there are known and approved forms of government. As before, I leave everyone and everything in its place. I only demand that people make room for the dissenters so that they may build their churches and serve the Almighty in their own fashion.
“And tell me, please, how are you going to put this into practice?”
This is just my strength. Are you aware of the methods of a civil registry office? It is just a matter of a new application of them. In each community a new office is opened, a “Bureau of Political Membership”. This office would send every responsible citizen a declaration form to fill in, just as for the income tax or dog registration:
Question: What form of government would you desire? Quite freely you would answer, monarchy, or democracy, or any other.
Question: If monarchy, would you have it absolute or moderate…, if moderated, how? You would answer constitutional, I suppose.
Anyway, whatever your reply, your answer would be entered in a register arranged for this purpose; and once registered, unless you withdrew your declaration, respecting the legal forms and delays, you would thereby become either a royal subject or citizen of the republic. Thereafter you are in no way involved with anyone else’s government – no more than a Prussian subject is with Belgian authorities. You would obey your own leaders, own laws, and own regulations. You would pay neither more nor less, but morally it would be a completely different situation.
Ultimately, everyone would live in his own individual political community, quite as if there were not another one near – nay, ten other political communities coexisting with his, each having its own contributors too.
If a disagreement came about between subjects of different governments, or between one government and a subject of another, it would simply be a matter of observing the principles hitherto observed between neighbouring peaceful States; and if a gap were found, it could be filled without difficulties by human rights and all other possible rights. Anything else would be the business of common courts of justice.
“This is a new gold mine for legal arguments, which would bring all lawyers on your side.”
I counted on this. These legal disputes could and should interest all inhabitants of a certain district likewise, no matter what their political allegiance is. Each government, in this case, would stand politically related to the whole nation, almost as each of the Swiss cantons, or better, the States of the American Union, stand to their federal government. Thus, all these fundamental and seemingly frightening questions are met with ready-made solutions; jurisdiction is established over most issues and would present no difficulties whatsoever.
Certainly it will happen that some malicious spirits, incorrigible dreamers and unsociable natures, will not accommodate themselves to any known form of government. Also there will be minorities too weak to cover the costs of their ideal States. So much the worse for them. These odd few are free to propagate their ideas and to recruit up to their full complement, or rather, up to the needs of their budget, after which all would resolve into a matter of finance. Until then they will have to opt for one of the established patterns. You must admit that insolvent minorities will not cause any trouble.
This is not all. The problem rarely arises over extreme opinions. One fights more often, one struggles much harder, for shades of colour than for the national flag. I have no doubt that in Belgium the overwhelming majority would opt for the flourishing institutions, a few accepted shortcomings notwithstanding; but would one be more content with their functioning? Do we not have two or three million Catholics who follow only Mr. de Theux and two or three million Liberals who owe allegiance only to themselves? How can they be reconciled? – By not trying to reconcile them at all; by letting each party govern itself. Freedom should even extend to the right not to be free, and should include it.
Due however to the fact that only shades of opinion are required to multiply the government machinery infinitely, one will exert oneself in the general interest to simplify this machinery. One will apply the same cog to achieve a double or threefold effect.
I shall explain myself: A wise and openly constitutional king could suit both Catholics and Liberals � only the ministry would have to be doubled, Mr. de Theux for some, Mr. Frere-Organ for the others, the King for all. Who would hinder certain gentlemen, whom I shall not name, if they convened to introduce absolutism, letting the same prince use his superior wisdom and rich experience to manage those gentlemen’s business, freeing them of the regretful necessity of having to express their opinions about government affairs? Truly, when I think of it, I do not see why this one prince should not make a quite acceptable president of an honest, moderate republic, if one accepts the contrary settlement. Such a plurality of offices should not be prohibited.
“Though freedom has its inconvenience and pitfalls,
in the long run it always leads to deliverance.”
– M.A. Deschamps
One of the many incomparable advantages of my system is to render unimportant, natural, and completely legal, those differences of opinion which in our time have brought some upright citizens into disrepute, and which one has cruelly condemned under the name of political apostasies. Such impatience for change, which has been considered criminal in honest people, which has caused old and new nations to be accused of wantonness and ingratitude, what is it but the will to progress?
Furthermore, is it not strange that in most cases those, accused of capriciousness and instability, are precisely those who are most loyal to themselves? The faith one would like to have in one’s party, flag, and prince, is possible if party and prince are constant; but what if they do change, or give way to others who are not their equals? Suppose I had selected as guide and master the best prince of the times, I had acquiesced to his powerful and creative will and foregone my personal initiative, to serve his genius. On his death he might be followed, by succession, by some narrow-minded individual, full of wrong ideas, who little by little squanders his father’s achievement. Would you expect me to remain his subject? Why? Simply because he would be the direct, legitimate heir? Direct, I allow; but not legitimate in the least, as far as I am concerned. I would not rebel over this matter – I have said that I detest revolutions – but I would feel injured, and entitled to change at the end of the contract. Madame de Stael once said to the Czar: “Sir, your character is your subjects’ constitution and your conscience your guaranty.” – “If that were so”, answered Alexander, “I would have been merely a happy accident.” These words, so lucid and true, completely convey my meaning.
My panacea, if you will allow this term, is simply free competition in the business of government. Everyone has the right to look after his own welfare as he sees it and to obtain security under his own conditions. On the other hand, this means progress through contest between governments forced to compete for followers. True worldwide liberty is that which is not forced upon anyone, being to each just what he wants of it; it neither suppresses nor deceives, and is always subject to a right of appeal. To bring about such a liberty, there would be no need to give up either national traditions or family ties, no need to learn to think in a new language, no need at all to cross rivers or seas, carrying the bones of one’s ancestors. It is simply a matter of declaration before one’s local political commission, for one to move from republic to monarchy, from representative government to autocracy, from oligarchy to democracy, or even to Mr. Proudhon’s anarchy – without so much as removing one’s dressing gown or slippers.
Are you tired of the agitation in the forum, the hair-splitting of the parliamentary tribune, or the rude kisses of the goddess of freedom? Are you so fed up with liberalism and clericalism as to sometimes confuse Mr. Dumortier with Mr. de Fre, to forget the exact difference between Mr. Rogier and Mr. de Decker? Would you like the stability, the soft comfort, of an honest despotism? Do you feel the need for a government which thinks for you, acts for you, sees everything and has a hand everywhere, and plays the role of deputy-providence as all governments like to do? You do not have to migrate South like the swallows in autumn or geese in November. All you desire is here, there, everywhere; enter your name and take your place!
What is most admirable about this innovation is that it does away, for ever, with revolutions, mutinies, and street fighting, down to the last tensions in the political atmosphere: Are you dissatisfied with your government? – Change over to another! – Four words, always associated with horror and bloodshed, words which all courts, high and low, military and special, without exception, unanimously find guilty of inciting to rebellion – these four words become innocent, as if in the mouths of seminarists, and as harmless as the medicine so wrongly mistrusted by Mr. de Pourceaugnac.
“Change over to another” means: Go to the Bureau for Political Membership, cap in hand, and ask politely for your name to be transferred to any list you please. The Commissioner will put on his glasses, open the register, enter your decision, and give you a receipt. You take your leave, and the revolution is accomplished without spilling any more than a drop of ink.
As it affects you alone, I cannot disagree with it. Your change affects no one else – that is its merit; it does not involve a victorious majority or a defeated minority; but nothing will prevent 4.6 million Belgians from following your example if they wish. The Bureau for Political Membership will ask the remaining individuals to declare their choice.
What, basically, all preconceptions apart, is the function of any government? – As I have indicated above, it is to supply its citizens with security, in the widest sense of the word, under optimum conditions. I am well aware that on this point our ideas are still rather confused. For some people not even an army is protection enough against outside enemies; for some not even a police force, a security force, a royal prosecutor and all the honourable judges do suffice to assure internal order and protect rights and property. Some people want a government with its hands full of well-paid positions, impressive titles, striking decorations, with customs at the frontiers to protect industry against the consumers, with legions of public servants to maintain the fine arts, theatres and actresses. I know too of the empty slogans propagated by governments playing at providence, such as we have mentioned before. Until experimental freedom has done justice to them, I see no harm in letting them continue to the satisfaction of their adherents. I ask one thing only: Freedom of choice.
In a nutshell: Freedom of choice, competition – “laissez-faire, laissez passer!” This marvellous device, inscribed on the banner of economic science, will one day be the principle of the political world too. The expression “political economy” gives some foretaste of it and, interestingly, some people have already tried to change this name, for instance, into “social economy”. The intuitive good sense of the people has disallowed this concession. The science of economics is and always will be the political science par excellence. Was it not the former which created the modern principle of non-intervention and its slogan “laissez-faire, laissez passer!”? Let us try free competition in the business of government as in all other cases.
Imagine, after the first surprise, the picture of a country exposed to governmental competition – that is to say, simultaneously possessing as many regularly competing governments as have ever been conceived and will ever be invented.
“Yes indeed, that will be a fine mess! Do you suppose we could extricate ourselves from such a confusion?”
Surely, nothing is simpler to understand if only one applies oneself to it a little. Do you remember the times when people shouted religious opinions more loudly than anyone ever shouted political arguments? When the divine creator became the Lord of Hosts, the avenging and pitiless God in whose name blood flowed in rivers? Men have always tried to take the divine cause into their own hands – to make Him an accomplice of their own bloodthirsty passions: “Kill them all! God will recognize His own!”
What has become of such implacable hatreds? – The progress of the human spirit has swept them all away, like the wind the dead leaves of autumn. The religions in whose names were set up stakes and instruments of torture, survive and live together peacefully, under the same laws, eating from the same budget. If each sect preaches only its own excellence, then it achieves more than were it to persist in condemning its rivals. Indeed, has it not become possible in this obscure, unfathomable region of the conscience (what with the proselytism of some, the intolerance of others, the fanaticism and ignorance of the masses), is it not possible to the extent that it is practised in half the world without resulting in unrest or violence? Moreover, particularly where there are divergent creeds, numerous sects exist on a footing of complete legal equality; and people are, in fact, more circumspect and careful of their moral purity and dignity than anywhere else. And what has become possible under such difficult conditions must be all the more possible in the purely secular domain of politics, where the whole science can be expressed in four words: “Laissez-faire, laissez-passer!”
Under the present conditions a government exists only by the exclusion of some, and one party can rule only after splitting its opponents; a majority is always harassed by a minority which is impatient to govern. Under such conditions it is quite inevitable that the parties hate each other and live, if not at war, at least in a state of armed peace. Who is surprised to see that minorities intrigue and agitate, and that governments put down by force aspiring political forms which would be exclusive too? So society ends up composed of ambitious resentful men, waiting for vengeance, and ambitions satisfied men, complacent on the edge of a precipice. Erroneous principles never bring about just consequences, and coercion never leads to right or truth.
All compulsion should cease. Every adult citizen should be, and remain, free to select from among the possible offered governments the one which conforms to his will and satisfies his personal needs; free not only on the day following some bloody revolution, but always, everywhere, free to select, but not to force his choice on others. Then all disorder will cease, all fruitless struggle will be avoided.
This is only one side of the questions; there remains another: From the moment when forms of government are subject to experimentation and free competition, they are bound to progress and perfect themselves; that is natural law. No more hypocrisy, no more apparent profundities which contain merely a void. No more machinations passing for diplomatic subtlety. No more cowardly moves or impropriety camouflaged as State policy. No more court or military intrigues deceitfully described as being honourable or in the national interest. In short, no more lies regarding State machinery. Everything is open to scrutiny. The subjects making and comparing observations, the governors will finally see this truth of economics and politics, that in this world there is only one condition for a solid, lasting success, and that is, to govern better and more efficiently than others. From this moment on, forces formerly wasted on useless labour – on friction and resistance – will unite to bring about an unprecedented, almost incomprehensible impulse towards the progress and happiness of mankind.
“Amen! Allow me one small objection: When all possible types of government have been tried everywhere publicly and under free competition, what will be the result? One form is sure to be recognised as the best, and thus finally everyone will choose it. This would lead us back to having one government for all, which is just where we began.”
Not so fast please, dear reader. Do you freely admit that all would then be in harmony and that this would be just as when we began? Your objection gives support to my fundamental principle, in so far as it expects this universal agreement to be established by the simple expedient of “laissez-faire, laissez-passer!”
I could seize this opportunity to declare you convinced � converted to my system – but I am not interested in half-convictions and am not looking for converts. No, we would not revert to having a single form of government, unless perhaps in the far-distant future when governmental activities will be reduced by common consent to the simplest form. We are not there yet, not anywhere near it.
It is obvious that men are neither of the same opinion or moral attitude, nor as easily reconciled as your suppose. The rule of free competition is therefore the only possible one. One man needs excitement and struggle – quietness would be deadly to him. Another, a dreamer and philosopher, is aware of the movements of society only in the corner of his eye – his thoughts are formed only in the most profound peace. One, poor, thoughtful, an unknown artist, needs encouragement and support to create his immortal work, a laboratory for his experiments, a block of marble to sculpt angels. Another, a powerful and spontaneous thinker, endures no fetters and breaks the arm that would guide him. For one a republic is satisfactory, with its dedication and self-denial; for another an absolute monarchy, with its pomp and splendour. One, an orator, would like a parliament; another, incapable of speaking ten connected words, would have nothing to do with such babblers. There are strong spirits and weak minds, some with insatiable ambitions, and some who are humble – happy with the small share which befalls them.
Finally, there are as many needs as different personalities. How could all these be reconciled by a single form of government? Clearly, people would accept it only in varying degrees. Some would be content, some indifferent, some would find faults, some would be openly dissatisfied, some would conspire against it. Whatever happens, count on human nature that the number satisfied would be smaller than the number of dissenters. However perfect a government might be – be it absolutely perfect – there will always be one opposition: the people whose natures are imperfect, to whom the whole structure is incomprehensible, even disagreeable. In my system the most extreme dissatisfaction would be similar to the marital dispute, with divorce as its final solution.
However, under the reign of competition, which government would allow itself to be overtaken by the others in the race for progress? What perfection available to one’s happy neighbour would one refuse in one’s own house? Such constant competition would work wonders. In fact, the subjects would become models of perfection too. Since they will be free to come and go, to speak or be silent, to act or to leave things alone, they would have only themselves to blame if they were not completely happy. From now on, instead of forcing attention on opposition, they will satisfy their vanity by assuring themselves and persuading others that their own government is the most perfect imaginable. Thus, between governors and governed a friendly understanding will grow up, a mutual trust and ease of relationships easily understood.
“What! You who are wide awake do seriously dream of complete harmony between parties and political movements? You expect them to live side by side in the same territory without tensions? Without the stronger seeking to subdue and annex the weaker? You imagine that such thorough confusion would produce a universal language?”
I believe in the universal language, to the same extent as I believe in the supreme power of freedom to bring about world peace. I can predict neither the hour nor the day of this universal agreement. My idea is merely a seed in the wind. Will it fall on fertile ground or on the cobbled road? I can have no say in this. I propose nothing.
Everything is just a matter of time. Who, a century ago, believed in freedom of conscience, and who, these days, would dare question it? Is it so very long since people scoffed at the idea of the Press being a power within the State? Yet now upright statesmen bow before it. Did you foresee this new force of public opinion, whose birth we have all of us witnessed, which, although still in its infancy, imposes its verdict even on empires? It is of utmost importance even in the decisions of despots. Would you not have laughed in the face of anyone daring to predict its rise?
“Now that you are not making concrete proposals, we can talk about it. Tell me for instance how anyone is to recognise his own government among this confusion of authorities? And if one may at any time join this government and resign from that, on whom or what could you rely to settle the State budget and to maintain the list of members?”
In the first case, I do not suggest one should be free to change one’s government capriciously, causing it to go bankrupt. For this sort of contract one must prescribe a minimum term � say one year. Judging from the examples of France and elsewhere, I think it might very well be possible to support for a whole year the government to which one has subscribed. Regularly approved and balanced State budgets need oblige everyone only to the extent found necessary as a result of free competition. In any disputes, regular courts would make decisions. Regarding recognition of its subjects, constituents, or taxpayers, would this really present more difficulties than for each church to account for its believers, or each company its shareholders?
“But you would have ten or twenty governments instead of one; thus, as many budgets and membership lists; and general expenses would multiply with the number of government departments.”
I do not deny the validity of this objection. Notice though that, due to the law of competition, each government would necessarily endeavour to become as simple and economical as possible. The government departments, which cost us (God knows!) our very eyes, would reduce themselves to bare necessities; and superfluous office-holders would have to give up their positions and take on productive work.
This way the question would be only half answered, and I dislike incomplete solutions. Too many governments would constitute an evil and cause expenses if not confusion. However, once one notices this evil, the remedy is at hand. The common sense of the people would do justice to any irregularities, and soon only workable governments would be able to carry on. The others would die of exhaustion. You see, freedom is the answer to everything.
“Perhaps! Do you believe that the existing dynasties, the prevailing majorities, the present corporations and accredited theories, would retreat and quietly arrange themselves behind the banner of �laissez-faire, laissez-passer�!? You have put it all very well that you are not making concrete proposals, but that does not get you out of the debate.”
Tell me first of all if you really think they would be so confident of themselves to be able always to afford to decline such large concessions? I myself would not overthrow anybody. All governments exist through some kind of innate power which they more or less skilfully use to survive. From now on they have an assured place in my system. I do not deny that at first they may lose a considerable number of their involuntary followers; but without considering the chances of it coming about, what wonderful compensations do result from the security and stability of power! Less subjects, in other words, less taxpayers; but for compensation they will have complete submission – voluntary, moreover, for the whole term of the contract. No more compulsion, fewer security officers, hardly any police, soldiers – but only for the sake of parades, therefore only the especially good-looking ones. Expenses will decrease fast enough not to decrease incomes; no more loans; and no more financial difficulties. What has so far been seen only in the New World will become reality: Economic systems which at least would make men happy. What majority would not agree to losing the whole of the minority?
At last you see how a system based on the great economic principle of “laissez-faire” can deal with all the difficulties. Truth is not only a half-truth but the whole truth, neither more nor less.
Today we have ruling dynasties as well as forsaken ones – princes wearing a crown and others who certainly would not mind a chance of wearing one. Each has his party, and each party is primarily interested in throwing sticks between the wheels of the coach of State, until they have tipped it up, thus gaining the chance of taking it over themselves, risking the same fate in turn. It is like the charming game of seesaw, which the people never seem tired of paying for, as Paul-Louis Courier said.
In our system there will be neither any more expensive balancing acts nor catastrophic downfalls, no more conspiracies or usurpations. The whole world is legitimate and everybody can be himself. One remains legitimate as long as one can keep it up, and for one’s adherents alone. Apart from this, there will be neither divine nor secular rights, no right except that to change, to perfect one’s program and to make fresh appeals to one’s followers.
No exiles, banishments, confiscations, persecutions of any kind! A governor, unable to meet the demands of his creditors, may leave his palace with raised head, if he has been honest, his book-keeping is in order, and his statutes constitutional and otherwise have been faithfully kept. He may go out into the country to justify himself in his memoirs. Under other circumstances – when ideas have changed – a deficiency is felt in society – something in particular is lacking – idle capital and discontented shareholders looking elsewhere for investments…, then one launches one’s program quickly, recruits members, and if one thinks one has got enough, instead of going into the streets, as one would call it in a rebellion, one goes to the Bureau for Political Membership. One hands in one’s declaration supported by the statutes and a register for members to enter their names – then one has a new government. The rest are internal problems, management affairs about which only the members need worry.
I propose a minimum fee for entrances and changes, raised for the benefit of the Bureau for Political Membership: Some hundred dollars for the entrance to establish a government, a few cents to change as an individual from one to another. The employees would receive no other remuneration, but I imagine that they would be well paid as I expect these offices to do plenty of business.
Are you not surprised by the simplicity of this apparatus, this powerful machinery which even a child could handle, which nevertheless would satisfy all needs?
Search, scrutinise, test, and analyse it. I defy you to find fault with it in any particular. Furthermore, I am convinced that no one will desire any more, such is human nature. It is this conviction, in fact, which induced me to publish my idea. Indeed, if I do not find followers, this is nothing but a game with words; and no existing power, no majority, no organisation, nobody – whatever he stands for – has any right to denounce me.
“And so you have converted me just by chance?”
Shhh… You might compromise me!
Footnote by John Zube:
This is the April 1998 version of the English translation, based on: A transcription of appendix 15 in PEACE PLANS No. 16-18, with some of the editorial improvements provided by David Taylor, in his edition, which was reproduced in PEACE PLANS 873. David Taylor, deceased, had put it on an electronic bulletin board years ago. I do not know whether he ever got a response to it. Nor do I have a copy of his digitized version, which he had compiled on his Amiga system. Since I have still been unable to connect my small scanner to the all too small system used here and now, I had to keyboard the whole text in. In this process I made some minor changes or corrections.
I would still like to regain a copy of the original French version. Adrian Falk, current address unknown, should possess one, as well as Eckard Duewal, but with the latter it may still be inaccessibly buried among the books of Beckerath’s remaining library. When I saw Duewal last time, he had literally filled a room with it, with no space left to take the boxes out one by one and peruse them. An attempt by a libertarian contact, Andre Spies, then living in Brussels, failed, because the library refused to make further photocopies from its original, which might have turned too brittle by now. – John Zube, 11 April 1998.
At first my wife and I produced a rough translation. Then Adrian Falk and, perhaps, his sister, put it into a better shape. It was then first reproduced in PEACE PLANS 4, with some comments by me and a draft of individual rights. Later it was reproduced in RAMPART JOURNAL OF INDIVIDUALIST THOUGHT, Fall 1966 and in PP 16-18 & 61-63 and in German in PP 399-401. Its discussion has barely begun and I reproduce it and similar ideas in my ON PANARCHY sub-series.
Max Nettlau reviewed this essay favourably and Gustav Landauer reproduced this review.
I readily accept the blame for all remaining punctuation, style and typing mistakes. If you were to point them out to me then I could change them at least in the digitized version.
Reproduction of this text in any medium and language is free and desired. Any criticism and supplementary ideas and arguments are welcomed by me, especially when I may freely reproduce them in my PEACE PLANS series and its sub-series: ON PANARCHY.
PIOT (Panarchy In Our Times), John Zube.
John Zube, POB 52 Berrima, NSW 2577, Australia, Tel. (02) 48771 436.