Bastiat, The Law, Part III, Episode 21

We continue our reading of Frederic Bastiat's famous essay, The Law.  The full text is available for free here: https://cdn.mises.org/thelaw.pdf

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Transcript

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Welcome back to Love and Hard Money. I'm Brian, and this is episode 21 of the podcast. Today I'm starting part three of our Bastiat series, reading his famous essay, The Law. If you haven't heard the first one, I recommend starting there. In the last episode, Bastiat laid out his foundation. Law exists to protect life, liberty, and property. Simple, just, defensible. In today's reading, Bastiat's gonna break your heart a little bit, because he turns to what actually happens. What the law becomes when it's captured by people who want to use it for their own benefit. He calls this legal plunder, and his definition of it is one of the most elegant things I've ever read in political philosophy. He says, if the law takes from some people what belongs to them and gives it to others to whom it does not belong, then the law is being used for plunder. He also gives you a simple test to know when you're looking at legal plunder. Ask, if this act were performed by a private citizen, would it be called theft? If yes, and the only difference is that the government is doing it, then it's legal plunder. Run that test on monetary policy. If I ran a printing press in my garage and used the output to pay my bills or buy Bitcoin, I'd be arrested for counterfeiting. The Federal Reserve does it at scale, and we call it quantitative easing. Bastiat's test catches it immediately. Bitcoin again closes this loophole, not through better laws, but through better architecture. You can't print more Bitcoin. The protocol won't allow it. No vote, no emergency, no political consensus can change the supply cap. That's not a policy position. It's math. And math, unlike law, can't be perverted. Let's read. How has this perversion of the law been accomplished and what has resulted from it? The law has been perverted through the influence of two very different causes naked greed and misconceived philanthropy. Let us speak of the former. Self preservation and development is the common aspiration of all men in such a way that if everyone enjoyed the free exercise of his faculties and the free disposition of their fruits, social progress would be incessant, uninterrupted, inevitable. But there is also another disposition which is common to them. This is to live and to develop when they can at the expense of one another. This is no rash imputation emanating from a gloomy, uncharitable spirit. History bears witness to the truth of it, by the incessant wars, the migrations of races, sectarian oppressions, the universality of slavery, the frauds in trade, and the monopolies with which its annals abound. This fatal disposition has its origin in the very constitution of man, in that primitive and universal and invincible sentiment that urges it toward its well-being and makes it seek to escape pain. Man can only derive life and enjoyment from perpetual search and appropriation, that is, from a perpetual application of his faculties to objects, or from labor. This is the origin of property, but also he may live and enjoy by seizing and appropriating the productions and the faculties of his fellow men. This is the origin of plunder. Now labor being in itself a pain, and man being naturally inclined to avoid pain, it follows, and history proves it, that wherever plunder is less burdensome than labor, it prevails, and neither religion nor morality can in this case prevent it from prevailing. When does plunder cease then? When it becomes more burdensome and more dangerous than labor. It is very evident that the proper aim of law is to oppose the fatal tendency to plunder with the powerful obstacle of collective force, that all its measures should be in favor of property and against plunder. But the law is made, generally, by one man or by one class of men. And as law cannot exist without the sanction and the support of a preponderant force, it must finally place this force in the hands of those who legislate. This inevitable phenomenon, combined with the fatal tendency that, we have said, exists in the heart of men, explains the most universal perversion of the law. It is easy to conceive that instead of being a check upon justice, it becomes its most invincible instrument. It is easy to conceive that according to the power of the legislator, it destroys for its own profit and in different degrees, amongst the rest of the community, personal independence by slavery, liberty by oppression, and property by plunder. It is the nature of men to rise against the injustice of which they are the victims. When, therefore, plunder is organized by law for the profit of those who perpetuate it, all the plundered classes tend, either by peaceful or revolutionary means, to enter in some way into the manufacturing of laws. These classes, according to the degree of enlightenment at which they have arrived, may propose to themselves two very different ends. When they thus attempt the attainment of their political rights, either they may wish to put an end to lawful plunder, or they may desire to take part in it. Woe to the nation where the latter thought prevails amongst the masses at the moment when they, in their turn, seize upon the legislative power. Up to that time lawful plunder has been exercised by the few upon the many, as is the case in countries where the right of legislating is confined to a few hands, but now it has become universal, and the equilibrium is sought in universal plunder. The injustice that society contains, instead of being rooted out of it, is generalized. As soon as the injured classes have recovered their political rights, their first thought is not to abolish plunder. This would suppose them to possess enlightenment, which they cannot have, but to organize against the other classes, and to their own detriment, a system of reprisals, as if it was necessary before the reign of justice arrives, that all should undergo cruel retribution, some for their inequity, and some for their ignorance. It would be impossible, therefore, to introduce into society a greater change and a greater evil than this, the conversion of the law into an instrument of plunder. What would be the consequences of such a perversion? It would require volumes to describe them all. We must content ourselves with pointing out the most striking. In the first place, it would efface from everybody's conscience the distinction between justice and injustice. No society can exist unless the laws are respected to a certain degree, but the safest way to make them respected is to make them respectable. When law and morality are in contradiction to each other, the citizen finds himself in the cruel alternative of either losing his moral sense or of losing his respect for the law, two evils of equal magnitude between which it would be difficult to choose. It is so much in the nature of law to support justice that in the minds of the masses they are one and the same. There is in all of us a strong disposition to regard what is lawful as legitimate, so much so that many falsely derive all justice from law. It is sufficient then for the law to order and sanction plunder, that it may appear to many consciences just and sacred. Slavery, protection, and monopoly find defenders, not only in those who profit by them, but in those who suffer by them. If you suggest a doubt as to the morality of these institutions, it is said directly you are a dangerous experimenter, a utopian, a theorist, a despiser of laws, you would shake the basis upon which society rests. If you lecture upon morality or political economy, official bodies will be found to make this request to the government. That henceforth science be taught not only with sole reference to free exchange, to liberty, property, and justice, as has been the case to the present time, but also and especially with reference to the facts and legislation contrary to liberty, property, and justice that regulate French industry, that, in public lecterns salaried by the treasury, the professor abstain rigorously from endangerment in the slightest degree to the respect due to the laws now in force. So that if a law exists that sanctions slavery or monopoly, oppression or plunder in any form whatever, it must not even be mentioned, for how can it be mentioned without damaging the respect that it inspires? Still further, morality and political economy must be taught in connection with this law, that is, under the supposition that it must be just only because it is law. Another effect of this deplorable perversion of the law is that it gives to human passions and to political struggles, and in general, to politics, properly so called, an exaggerated importance. I could prove this assertion a thousand ways, but I shall confine myself by way of an illustration to bringing it to bear upon a subject which has of late occupied everybody's mind universal suffrage. Whatever may be thought of it by the adepts of the school of Rousseau, which professes to be very far advanced, but which I consider twenty centuries behind, universal suffrage, taking the word in its strictest sense, is not one of those sacred dogmas with respect to which examination and doubt are crimes. Serious objections may be made to it. In the first place, the word universal conceals a gross sophism. There are, in France, thirty six million inhabitants. To make the right of suffrage universal, thirty six million electors should be reckoned. The most extended system reckons only nine million. Three persons out of four then are excluded, and more than this, they are excluded by the fourth. Upon what principle is this exclusion founded? Upon the principle of incapacity. Universal suffrage then means universal suffrage of those who are capable. In point of fact, who are the capable? Are age, sex, and judicial condemnations the only conditions which incapacity is attached to? On taking a nearer view of the subject, we may soon perceive the reason why the right of suffrage depends upon the presumption of incapacity, the most extended system differing from the most restricted in the conditions on which the incapacity depends, and which constitutes not a difference in principle, but in degree. The motive is that the elector does not stipulate for himself but for everybody. If, as the Republicans of the Greek and Roman tone pretend, the right of suffrage had fallen to the lot of everyone at his birth, it would be an injustice to adults to prevent women and children from voting. Why are they prevented? Because they are presumed to be incapable. And why is incapacity a reason for exclusion? Because the elector does not reap alone the responsibility of his vote, because every vote engages and affects the community at large, because the community has a right to demand some assurances, as regards the acts upon which its well being and its existence depend. I know what might be said in answer to this, I know what might be objected, but this is not the place to settle a controversy of this kind. What I wish to observe in this is that this same controversy, in common with the greater part of political questions, that agitates, excites, and unsettles nations, would lose almost all its importance if the law had always been what it ought to be. In fact, if law were confined to causing all persons, all liberties, and all properties to be respected, if it were merely the organization of individual right and individual defense, if it were the obstacle, the check, the chastisement, opposed to all oppression, to all plunder, is it likely that we should dispute much as citizens on the subject of the greater or lesser universality of suffrage? Is it likely that we would compromise that greatest of advantages, the public peace? Is it likely that the excluded classes would not quietly wait for their turn? Is it likely that the enfranchised classes would be very jealous of their privilege? And is it not clear that the interest of all being one and the same, some would act without much inconvenience to the others? But, if the fatal principle should come to be introduced, that under pretense of organization, regulation, protection, or encouragement, the law may take from one party in order to give to another, help itself to the wealth acquired by all classes, that it may increase that of one class, whether that of the agriculturalists, the manufacturers, the shipowners, or artists and comedians, then certainly, in this case, there is no class which may not try, and with reason, to place its hand upon the law, that would not demand with fury its right of election and eligibility, and that would overturn society rather than not obtain it. Even beggars and vagabonds would prove to you that they have an incontestable title to it. They will say, We never buy wine, tobacco, or salt without paying the tax, and a part of this tax is given in law by perquisite and gratitudes to men who are richer than we are. Others make use of the law to create an artificial rise in the price of bread, meat, iron, or cloth. Since everybody traffics in law for his own profit, we should like to do the same. We should like to make it produce the right to assistance, which is the poor man's plunder. To effect this, we ought to be electors and legislators, that we may organize on a large scale alms for our own class, as you have organized on a large scale, protection for yours. Don't tell us that you will take our cause upon yourselves, and throw to us six hundred thousand francs to keep us quiet, like giving us a bone to pick. We have other claims, and at any rate, we wish to stipulate for ourselves, as other classes have stipulated for themselves. How is this argument to be answered? Yes, as long as it is to be admitted that the law may be diverted from its true mission, that it may violate property instead of securing it. Everybody will be wanting to manufacture law, either to defend himself against plunder, or to organize it for his own profit. The political question will always be prejudicial, predominant, and absorbing. In a word, there will be fighting around the door of the legislative palace. The struggle will be no less furious within it. To be convinced of this is hardly necessary to look at what passes in the chambers of France and England is enough to know how the question stands. Is there any need to prove that this odious perversion of the law is a perpetual source of hatred and discord, that it even tends to social disorganization? Look at the United States. There is no country in the world where the law is kept more within its proper domain, which is to secure to everyone his liberty and his property. Therefore, there is no country in the world where social order appears to rest more upon a solid basis. Nevertheless, even in the United States there are two questions, and only two, that from the beginning have endangered political order. And what are these two questions? That of slavery and that of tariffs. That is, precisely, the only two questions in which, contrary to the general spirit of this republic, law has taken the character of plunderer. Slavery is a violation sanctioned by law of the rights of the person. Protection is the violation perpetrated by the law upon the rights of property, and certainly it is very remarkable that in the midst of so many other debates, this double legal scourge, this sorrowful inheritance of the old world, should be the only one which can and perhaps will cause the rupture of the Union. Indeed, a more astounding fact in the heart of society cannot be conceived than this, that law should have become an instrument of injustice. And if this fact occasions consequences so formidable in the United States where there is but one exception, what must it be with us in Europe where it is a principle, a system? Mr Montalembert, adopting the thought of the famous proclamation of Mr. Carlyre, said We must make war against socialism, and by socialism, according to the definition of Mr Charles Dupin, he meant plunder. But what plunder did he mean? For there are two sorts extra legal and legal plunder. As to extra legal plunder, such as theft or swindling, which is defined, foreseen, and punished by the penal code, I do not think it can be adorned by the name of socialism. It is not this that systematically threatens the foundations of society. Besides, the war against this kind of plunder has not waited for the signal of Mr. Montalembert or Mr. Carlyre. It has gone on since the beginning of the world. France was carrying it on long before the revolution of February, long before the appearance of socialism, with all the ceremonies of magistracy, police, gendarmerie, prisons, dungeons, and scaffolds. It is the law itself that has conducted this war, and it is to be wished, in my opinion, that the law should always maintain this attitude with respect to plunder. But this is not the case. The law sometimes takes its own part, sometimes it accomplishes it with its own hands, in order to save the parties benefited the shame, the danger, and the scruple. Sometimes it places all the ceremony of magistracy, police, gendarmerie, and prisons at the The service of the plunderer and treats the plundered party when he defends himself as a criminal. In a word, there is legal plunder, and it is no doubt this that was meant by Mr. Montalambert. The plunder may be only an exceptional blemish in the legislation of a people, and in this case the best thing that can be done is, without so many speeches and lamentations, to do away with it as soon as possible, notwithstanding the clamors of interested parties. But how is it to be distinguished? Very easily. See whether the law takes from some persons that which belongs to them, to give to others what does not belong to them. See whether the law performs for the profit of one citizen and to the injury of others an act that this citizen cannot perform without committing a crime. Abolish this law without delay. It is not merely iniquity. It is fertile source of inequities, for it invites reprisals, and if you do not take care of it, the exceptional case will extend, multiply, and become systemic. No doubt that the party benefited will exclaim loudly, he will assert his acquired rights, he will say that the state is bound to protect and encourage his industry, he will plead that it is a good thing for the state to be enriched, and that it may spend the more, and thus shower down salaries upon the poor workmen. Take care not to listen to this sophistry, for it is just by the systematizing of these arguments that legal plunder becomes systematized. And this is what has taken place. The delusion of the day is to enrich all classes at the expense of each other. It is to generalize plunder under the pretense of organizing it. Now legal plunder may be exercised in an infinite multitude of ways. Hence come an infinite multitude of plans for organizations, tariffs, protection, perquisites, gratuities, encouragements, progressive taxation, free public education, right to work, right to profit, right to wages, right to assistance, right to instruments of labor, gratuity of credit, etc, etc And it is all these plans taken as a whole with what they have in common, legal plunder that takes the name of socialism. Now socialism, thus defined, and forming a doctrinal body, what other war would you make against it than a war of doctrine? You find this doctrine false, absurd abominable. Refute it. This will be all the easier, the more false, absurd and abominable it is. Above all, if you wish to be strong, begin by rooting out of your legislation every particle of socialism which may have crept into it, and this will be no light work. Mr. Montalambert has been reproached with wishing to turn brute force against socialism. He ought to be exonerated from this reproach, for he has plainly said the war that we must make against socialism must be one that is compatible with the law, honor, and justice. But how is it that Mr. Montalambert does not see that he is placing himself in a vicious circle? You would oppose the law to socialism. But it is the law that socialism invokes. It aspires to legal, not extra legal plunder. It is the law itself, like monopolies of all kinds, that it wants to make an instrument, and when once it has the law on its side, how will you be able to turn the law against it? How will you place it under the power of your tribunals, your gendarmeries, and your prisons? What will you do then? You wish to prevent it from taking any part in the making of laws. You would keep it outside the legislative palace. In this you will not succeed, I venture to prophecy, so long as legal plunder is the basis of the legislation within. It is absolutely necessary that this question of legal plunder should be determined, and there are only three solutions of it one when the few plunder the many, two when everybody plunders everybody else, and three when nobody plunders anybody partial plunder, universal plunder, absence of plunder. Amongst these we have to make our choice. Okay, let's wrap up there for this week. I want to circle back on his point of universal suffrage because he lost me there in this essay, and I had to do a little more research to understand what he was saying. His language feels slippery because he's arguing on two different tracks simultaneously, defending suffrage, which is essentially the right of every person to a vote, a hot button issue in France at the time that he wrote this, while also saying suffrage alone solves nothing without legal restraint. He's not really writing about voting rights as a primary topic. He's using the suffrage debate as an entry point to his central thesis about the proper and improper functions of the law. So his position was universal suffrage is good as a matter of justice. The fear of mob plunder is a legitimate concern, but misdirected. And the real fix is limiting the scope of the law, not the franchise. This is similar to the way Bitcoiners say fix the money, fix the world. It's not about voting harder for who should control the money printer. The problem is that the money printer exists in the first place. Alright, this has been Love and Hard Money. I'll be back next week to continue this series. If you want to skip ahead, the law is available for free, along with a ton of other great books and resources at my sis.org. Thanks for listening.