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To Alter Or To AbolishChapter 15LawWritten by Darrell Anderson. The science of mine and thine — the science of justice — is the science of all human rights; of all a man’s rights of person and property; of all his rights to life, liberty, and the pursuit of happiness. Lysander Spooner, Natural Law Humans can choose whatever social system model they want for group living. Collectively, humans could choose “might makes right” over any other system. However, overwhelmingly humans prefer to choose a process promoting mutual survival. Through that process certain foundations are accepted. Accepting those foundations is an arbitrary process. At one end of that foundation is the freedom to define and pursue happiness, at the other end is a desire to prevent trespass. There is a never-ending tension between the two cornerstones of that foundation. Additionally, there is a never-ending tension between the desire for individual survival and the desire to promote mutual survival. In addition to those tensions, or perhaps because of, humans have developed concepts of self, property, rights, contracts, and consent. Those concepts help provide boundaries in the hopes of relieving some of the tensions existing between pursuing happiness and preventing trespass, and between individual and mutual survival. Social procedures are largely a result of how violence can be controlled and how individuals might use violence to defend themselves. The ultimate arbiter and boundary of all human interactions always is the willingness to use violence. The concept of government is an attempt to minimize the necessity to use violence. To promote mutual survival, humans have little choice but to embrace such ideas. At the most base level of existence, few humans could survive long without the actions of persuasion and cooperation. One could argue that survival of the individual is dependent upon mutual survival. Despite the urge to preserve self, there concurrently exists a desire to preserve humanity — and therefore mutual happiness should be just as important as individual happiness. If happiness and trespass are at tension with one another, so too are both concepts dependent upon one another. The concept of trespass has little meaning without first defining happiness. Because humans are not well adapted to self-sufficiency, individual happiness and survival depends upon mutual happiness and survival. Individual happiness and survival depends upon understanding what defines mutual happiness and survival. As long as people choose to live collectively amongst one another, there will be both natural and artificial limits to what can be reasonably defined as individual and mutual happiness and trespass. Despite the ability to choose freely, people cannot always choose blindly, nor can they always choose what they want. Scarcity limits choices and all humans are creatures of limited knowledge. Sometimes people must curtail or postpone their desires and wants. There are inherent limitations upon what they choose. Often, choices are limited because of the choices made by other people. Fundamentally, happiness has meaning only with respect to each individual. Trespass has meaning to an individual only with respect to other people. The moment two or more individuals interact there exists a never-ending balancing act between these concepts and desires. If humans collectively choose to reject the concepts of happiness and trespass, then the concepts of self, property, rights, contracts, and consent are meaningless. If humans reject those concepts then no boundaries exist and the only remaining avenue is “might makes right.” Most individuals shudder at such thoughts. If humans are going to embrace the concept of self then the concepts of property, rights, contracts, and consent must follow. The concept of self cannot exist in a vacuum. Either such concepts are accepted or the only guideline is “might makes right.” These societal principles cannot apply in some circumstances and not in others. There is no in-between area. To seek an in-between area is to attempt living simultaneously in both an objective world of free association and voluntary exchange and a world of subjectively coerced unselfishness. Survival necessarily requires self-interest. Therefore, a coerced unselfish world necessarily defies the concept of self. Disrupting these conceptual foundations will provoke and excite the fear of trespass and create an environment of perceived reduced security. The risks associated with pursuing happiness begin to increase. Once this mutual trust is violated, quieting those fears is difficult and the desire for individual survival will override the desire for mutual survival. The moment the desire for individual survival prevails over mutual survival, there no longer are any guidelines that apply except “might makes right.” Violent responses might be able to resolve some conflicts, but a healthier method is to resolve differences using the ability to think abstractly and solve problems. If all people possess the right to establish the boundary of self, then to sustain that life that right must extend to ownership of resources. Some animals seem to abide by a “might makes right” principle, and humans certainly can choose to follow that same principle. Overwhelmingly people have chosen to embrace the concepts of self, property, rights, contracts, and consent. Different people, different goals, different perspectives of happiness and trespass, such differences are bound to create tension and disagreement. All individuals desire to be autonomous yet concurrently limit the actions of other people. Complete freedom, however, is an invitation to chaos. When liberties are naked, an individual may be free to do as he wishes, but others are similarly free to interfere with his actions.[1] The word freedom implies an individual is unrestricted in any manner to act. Complete freedom implies that any action is allowed, but few individuals desire to live in such a world. Complete freedom is “might makes right.” Complete freedom erodes mutual and individual survival. Complete freedom is using the interference mode of raw acquisition. Freedom implies no boundaries to limit human actions. The concept of boundaries, however, transforms the word freedom into the word liberty. Like all words, liberty is a concept. Whereas the concept of freedom ignores the concept of obligations, the concept of liberty implies potential obligations. The word freedom ignores interactions with other humans, the word liberty acknowledges those interactions. The word liberty describes specific freedoms of action without obligations toward others,[2] but recognizes that obligations might exist. The concept of boundaries introduces obligations toward other people. The concept of freedom implies unrestricted movement and actions regardless of boundaries, but the concept of liberty implies restrictions on actions because of boundaries.[3] Liberty: the ability to be self-determining and to control the fruits of one’s labor without force and coercion, and without trespassing against that same ability in others. Nobody knows precisely how to distinguish between what actions might be allowed and what actions might be limited. As long as people remain creatures of limited knowledge and have different and continually changing ideas about defining their own happiness, such precision is impossible. However, when conflicts arise an awareness of the principle of justice is aroused. Therefore, people inherently understand that boundaries exist. What is justice? Justice: a recognition of a concept of rights, a recognition of boundaries to specific actions and claims. Justice is a recognition of a right to self-defense, a right to seek remedy for trespass. Justice is a process of recognizing a violation of boundaries and rights.[4] When boundaries are involved humans inherently seem to understand what is “right” and “wrong.” Justice is the recognition of what Lysander Spooner called “the science of mine and thine.”[5] The occasional conflicts of choice — trespass — must be reconciled. In many animal societies those conflicts often are resolved by brute force — ”might makes right.”[6] In a Hobbesian “all against all” society exercising no cooperative efforts to resolve differences, the result is essentially the same. In nature, such conflicts sometimes are “red in tooth and claw.”[7] People recognize that the concept of justice is a necessity of human life that promotes mutual survival.[8] When individuals misappropriate or damage the property of another individual they have trespassed against that individual’s recognized right to use that property. Therefore, they violate, encroach, or infringe upon the rights of other people. When individuals forcibly transfer property from one individual to another without obtaining explicit consent to the transfer, they violate the boundaries of that individual. To forcibly transfer or harm property without a titleholder’s consent is the basis for determining injustice.[9] Justice is a process, not of punishing a trespasser, but of attempting to make a victim whole.[10] Therefore, if concepts such as property, rights, contracts, and consent do not exist, there can be no concept of justice. If there is no concept of justice, there can be no concept of injustice.[11] Injustice is the recognition that no remedy for trespass is forthcoming. If there is no concept of injustice then there is no need for guidelines, principles, or concepts such as self, property, and rights. If there are no such concepts governing human action and interaction, then the only source of defining happiness and trespass must be the random will of other people. If such concepts become purely random — that only certain individuals can determine or decide what is “right” or “wrong,” then essentially all people live according to “might makes right.” That is a world with no guidelines at all. Fortunately, history shows that most people believed in human guidelines superior to “might makes right.” Some individuals disagree about the source of those guidelines, but most at least agree that such principles exist or should exist. The system model known as society needs a structure of guidelines to help people through their differences, a method that allows people to retain their liberties yet expectantly contain or resolve the inevitable trespasses that occur. Over the ages people have come to call some of those guidelines “laws.” What is law? By definition, a law describes a process possessing a repeatable, fixed, and unchangeable behavior. Anything that is a law inherently exhibits some inevitable threat or consequence for non-compliance. That definition satisfies naturally existing laws such as the law of gravity. There are consequences for defying such a law. Does the definition of law change when the source of law is derived from humans? That depends upon the foundations chosen by the members of a society. Although needing to satisfy the previous definition, law with respect to humans can have a more focused definition. Fundamentally, human-made law is an attempt by a community of people to maintain some kind of order to human actions, and can be viewed as the “enterprise of subjecting human conduct to the governance of rules.”[12] Laws regulate human behavior to promote social order.[13] Social order promotes mutual survival, which promotes individual survival. A fundamental reason for human-made law is the desire to prevent trespass — the instinct of self-preservation and protection. Therefore, human-made law also expresses the desire for self-defense. Frédéric Bastiat defined law from that perspective:[14] It is the collective organization of the individual right to lawful defense. [Emphasis added.] For thousands of years humans have recognized the concept of self-defense as an inalienable right.[15] However, human social systems are complex. All human-made laws are derived and are not naturally existing. Because of those complexities, human-made law is a process of people legislating, adjudicating, administering, negotiating, allocating rights and duties, resolving disputes and conflicts, and creating channels of cooperation.[16] Worded another way, human-made laws help protect people from each other — from their proven tendency to inflict harm and pain upon one another, both intentionally and accidentally. Human-made laws protect people from one another when their choices clash. Laws help regulate conflicts,[17] and provide an alternative to (violent) force as a means of resolving conflict.[18] Law is a process of trying to determine what actions are “right” and “wrong.” Where there is no law there is no liberty.[19] Bastiat recognized this quarrel of choices:[20] 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. Or, as Bastiat stated elsewhere:[21] Property does not exist because there are laws, but laws exist because there is property. Nearly 200 years before Bastiat, during the Putney Debates pitting the Levellers against Oliver Cromwell, William Clarke recorded that the concept of property anteceded laws:[22] . . . yet really properties are the foundation of constitutions, and not constitutions of property. For if so be there were no constitutions, yet the Law of Nature does give a principle to every man to have property of what he has, or may have, which is not another man’s. By arbitrary collective acceptance, all people possess the rights to life, liberty, and property. Therefore, a right included in these fundamentals is the right to protect and defend life, liberty, and property. Bastiat affirmed this principle:[23] 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? Individually, all people have the right to defend and retain the fruits of their labor and to prevent enslavement. Few individuals will argue that this right to defense does not exist. What often is argued, however, are the limits of self-defense. Although defense implies using force and coercion, that does not mean force and coercion requires violence. Indeed, to promote mutual survival the goal of most humans is that defense is performed peaceably. Force and coercion might be necessary to protect property, but that force and coercion hopefully is exercised through social customs, laws, and contracts, not violence. The concept of self, the desire for self-preservation and protection, and the instinct of territory, all gives rise to the concept of property. The concept of property gives rise to the concept of rights and the concept of rights gives rise to the concept of law. In ancient societies, the concept of self was recognized through the concept of family. The family was the fundamental societal unit. The purpose of human-made laws is to protect boundaries. The objective of human-made laws is to promote peace[24] and provide stability.[25] Legal systems exist to protect economic desires — the pursuit of sustaining energy flows and the desire to prevent trespass. At a fundamental level, all human-made laws are derived from social customs.[26] Small communities and cultures have survived for hundreds and thousands of years with only local customs. These customs prescribe specific boundaries and behaviors. These customs are social codes of expected behavior. There always will be social codes within any group or society. Because social groups are voluntary in nature, these social codes are self-enforcing because of expected reciprocity. Reciprocity encourages mutual survival. Customs change slowly. As a community of people grows and extends or intermingles with other cultures and communities, customs will be challenged. Humans tend to resist change, but change is a part of life and all customs are subject to change. All human action is centered directly or indirectly about self-interest and the pursuit of happiness. Therefore, humans are subjective in their methods of pursuing that happiness. Laws evolve because of the unintended consequences and outcomes of people pursuing their well-being, happiness, and self-interests, and are a result more of the unintended outcomes human action rather than human design.[27] Laws also exist because of the principle of scarcity. With no scarcity, there is no conflict over resources.[28] Laws evolve because the alternative — violence — is a costly choice. Laws provide knowable boundaries to help reduce those unintended outcomes. However, remember that scarcity still exists with respect to each human body. There is only one of every human, and the concepts of scarcity and trespass still apply to the boundary of self. The principle of scarcity means there will be competition for the exchange of goods and services.[29] This competition is verified by a quick survey of history and human nature. When this competition is embraced voluntarily then people are promoting mutual survival, when embraced involuntarily then people prefer individual survival to mutual survival. There are some individuals who have little or no respect for the property or rights of other people. Accidents also occur. Thus, although laws are a result of human action, conflict is a result of failing to recognize or accept boundaries. Humans are creatures of limited knowledge and live in a world full of choices. Sometimes those choices clash. When rights are violated, encroached, or infringed, humans feel trespassed against and expect justice to be served by reconciling the trespass. Many cultures have recognized two cornerstones as the foundation for all laws:[30]
Notice the word justice is used, not law. Justice requires correcting a trespass against an individual, whereas human “laws” often are arbitrary (for example, do not walk your goose on Sundays). Yet, how do people maintain justice? By reconciling lawful debts, upholding contractual commitments, returning borrowed or stolen property, and providing restitution or compensation for any trespass caused to another individual or property.[31] Maintaining justice also is recognized in the second element of these two cornerstones. The concept of not trespassing is self-restraint or self-government. All ordered liberty is based upon avoiding trespass. How do people refrain from trespassing? By abstaining from theft (directly or indirectly), arson, murder, or any other offense against an individual or property of another.[32] Benjamin Tucker iterated these precepts by stating that “man’s only duty is to respect others’ rights . . . [and] man’s only right over others is to enforce that duty.”[33] These two cornerstones are recognized in the two major causes of action rooted in the English common law and much of today’s civil and criminal law:[34]
These two cornerstones of justice can be further refined into the well-known Golden Rule, “Do not do unto others what you would not have them do unto you.” The version attributed to the ancient Jewish rabbi Hillel is more direct and enlightening, “What you do not like, do not do to others; that is the whole Law; the rest is commentary; go and learn!” Many individuals cite the Golden Rule in an affirmative fashion: “Do unto others what you would have them do unto you.” However, by definition laws restrict human actions by acknowledging boundaries. Human laws recognize the boundaries upon which people are condemned for failing to comply with the limitations placed upon human actions.[35] Human laws are a common influence organized to act as an obstacle to injustice,[36] and provides no intervention or direct rewards for complying with those laws. Therefore, with respect to human laws, wording the Golden Rule in a restrictive fashion is appropriate. The foundations of all human law rests upon the concept of justice and a desire for justice is a belief that trespass has occurred. Laws protect boundaries and they do so through the principles of obligation and liability. Obligations are more or less defined by understanding the two cornerstones of justice and therefore the focus of many laws is on liability. As with naturally existing laws, the two cornerstones of justice are substantive in nature. Substantive: being concerned with intent, content and understandability, as opposed to being concerned with procedures and processes. To peaceably promote mutual survival, humans have an obligation not to violate, encroach, or infringe upon the rights of other people. Ignore that obligation and a liability might arise. What creates this notion of obligation? What makes this concept effective?[37]
The Golden Rule then is not so much a rule or law, but a fundamental principle of encouraging social order and reciprocity.[38] When obligations are not maintained the offending party incurs a liability to another party and justice must be satisfied. For example, when people knowingly and willingly enter a lawful contract they create an obligation to perform according to the terms of the contract. The parties receive property in exchange for property. Break that contractual agreement and a liability is incurred. Human-made laws help people remember the limits and boundaries created by the property titles and rights of other people. Humans are capable of acting contrary to instinct. Such acts often are difficult to predict. If acting purely by instinct, then human action would be predictable and human-made laws would be unnecessary. Enforcing those laws is necessary to encourage compliance and to protect the integrity of property titles and rights. Thus, embedded within the concept of human laws is the idea of potential involuntary force and coercion. Such a foundation unsurprisingly impedes the individual pursuit of happiness. Therefore, human laws should be designed to promote voluntary persuasion and cooperation. In other words, to encourage people to respect human-made laws, the laws themselves must be respectable.[39] Legal systems are processes through which humans attempt to reduce fear by identifying knowable boundaries.[40] Subsequent remedies and enforceable actions are recognized and condoned. A fundamental reason for maintaining human legal systems is to minimize violence and increase overall prosperity.[41] Thus, humans honor legal systems only as long as the underlying principles remain stable, knowable, and provide expected reciprocity. Finis. Next: Chapter 16 — Conflicts of Law Endnotes [1] Barnett, The Structure of Liberty, p. 63. [2] Morris, “Human Autonomy and the Natural Right to Be Free,” p. 391, footnote 8. [3] Proudhon, What is Property?, footnote 1, pp. 194–195. [4] Spencer, “The Proper Sphere of Government,” The Man Versus The State, pp. 188. [5] Spooner, The Lysander Spooner Reader, “Natural Law,” p. 11. [6] Some researchers have shown that some societies, despite being “primitive” with respect to modern technological conveniences, nonetheless possess sophisticated concepts of justice and property titles. Hence, the word animalistic instead of primitive. For example, refer to Bruce. L. Benson, “Enforcement of Private Property Rights in Primitive Societies: Law Without Government.” [7] Alfred Tennyson, In Memoriam. [8] Evers, “Kropotkin’s Ethics and the Public Good,” p. 226, citing Peter Kropotkin and David Hume. [9] Smith, “William Wollaston on Property Rights,” p. 222. [10] Ruwart, Healing Our World, p. 195. [11] Watner, “The Proprietary Theory of Justice in the Libertarian Tradition,” p. 307. [12] Fuller, The Morality of Law, p. 106. [13] Osterfeld, “Anarchism and the Public Goods Issue: Law, Courts, and the Police,” p. 56. [14] Bastiat, The Law, p. 6. [15] Proudhon, General Idea of the Revolution in the Nineteenth Century, pp. 141–142. [16] Berman, Law and Revolution, p. 5. [17] Hirshleifer, “The Dark Side of the Force,” p. 5. [18] Berman, Law and Revolution, p. 153. [19] Locke, Second Treatise of Government, Sect. 57. [20] Bastiat, The Law, p. 6. [21] Bastiat, Selected Essays on Political Economy, “Property and Law,” p. 97. [22] Watner, “Oh, Ye Are For Anarchy!,” p. 117. [23] Bastiat, The Law, p. 6. [24] Love, Human Conduct and the Law, p. 5, citing Roscoe Pound, An Introduction to the Philosophy of Law. [25] Berman, Law and Revolution, p. 16. [26] Spencer, “The Great Political Superstition,” The Man Versus The State, pp. 141–142. [27] Benson, “Economic Freedom and the Evolution of Law,” p. 209. [28] Hoppe, A Theory of Socialism and Capitalism, p. 132, footnote 9. [29] Benson, “Economic Freedom and the Evolution of Law,” p. 211. [30] Spooner, The Lysander Spooner Reader, “Natural Law,” p. 11. [31] Spooner, The Lysander Spooner Reader, “Natural Law,” p. 11. [32] Spooner, The Lysander Spooner Reader, “Natural Law,” p. 11. [33] Tucker, Instead of a Book, p. 59. [34] Black’s Law Dictionary, sixth edition, “ex contractu,” “ex delicto.” [35] Fuller, The Morality of Law, p. 42. [36] Bastiat, The Law, p. 67 [37] Fuller, The Morality of Law, p. 23. [38] Proudhon, General Idea of the Revolution in the Nineteenth Century, p. 134. [39] Bastiat, The Law, p. 12. [40] Love, Human Conduct and the Law, pp. 30–32. [41] Davidson and Rees-Mogg, The Great Reckoning, pp. 101–102. |
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