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Chapter 6: Legal and

Constitutional Concepts

In the last chapter, we explored the concept of law indirectly as a result of considering the nature and functions of government. This was necessary because law is the primary tool that government uses to control people. However, the chapter on government was becoming too long and there was still more to be said. Consequently, this chapter has been written to finish the job. There may be some repetition or overlapping of ideas, but because some of these ideas are unique, a little repetition shouldn't hurt.

What is Law?

Like most subjects of import, intellectuals find it hard to define law. As evidence: "The question 'What is law?' has elicited a myriad of answers throughout human history, ranging from the Old Testament's assertion of law as the will of God to the thesis of Karl Marx and Friedrich Engels that law is an expression of class ideology."¹

For the most part, law is what those in power say it is. This might seem harsh, but it is basic reality. Whoever has the power gets to tell everyone else what to do. Of course, brute force is seldom enough to maintain power by itself, so some form of justification is required in order to hold authority in the minds of those being governed. This is where tricky word-play comes in handy. As Bismarck once observed, "It is just as well not to know too much about how laws or sausages are made."

Bismarck's advice would be good, except for the fact that what we do not know can hurt us. Keeping issues hidden in a fog of euphemization works in the best interests of those in power. And because intellectuals generally fare better under political patronage than they do in a free market, we can be sure they will avoid "simplistic" definitions. This means that it is the responsibility of those who suffer at the hands of the law to cut through this fog of euphemism.

Law is simply force or the threat of force . If people do things which are prohibited by law, or if they fail to do what is mandated by law, they risk losing their property, their freedom, and in some cases, even their lives. Of course, this definition is too cut and dry for some, so they will object by saying as much.

The most popular objection says that law is persuasion so long as people obey the law--it only becomes coercion when they do not obey the law . That objection is useful for people who want to feel good by softening the hard edges of reality with words. But from a logical standpoint, they are, in effect, saying the equivalent of "an engine is an engine only when it is running." In reality, an engine remains an engine regardless of whether or not it's running.

In fact, the engine analogy can offer us even more understanding about the workings of law. Engines are respected as engines only when the people know that all you have to do to start it is to turn the key. The same is true for law. Law is respected only when there is sufficient force behind it to make it meaningful. When engines can no longer offer motive power, they run the risk of going to the scrapyard. When laws cease to guide human passion, they and the societies guided by them run the risk of ending up in the dustbin of history.

Of course, lack of power is not the only way a vehicle can end up in a scrap yard. If that power is used carelessly, or at the wrong times, disaster can strike. In America, for instance, thousands of people die every year when their vehicles go out of control. Regarding law, millions suffer yearly at the hands of laws that are arbitrarily written and arbitrarily enforced. In fact, history is little more than a record of civilizations that have gone to the scrapyard because of the misuse of force--most often by force which was sanctioned by and embodied in law.

What are we saying when we declare that "there ought to be a law"? We are saying that we believe a problem cannot be solved through voluntary cooperation and that coercion is the superior method. Sadly, this truth is seldom admitted to directly by either the proponents or opponents of new laws.

When we take away the euphemistic language, we raise the debate to a new level. It would be very useful if both proponents and opponents of laws would ask, "does this problem justify the use of coercion in order to solve it?" From there, the opposing sides of the debate share a common language.

Types of Law

Overall, law can be divided into two basic categories: private law and public law. Private law is aimed at settling disputes among citizens, and public law is aimed at defining the private citizen's relationship with the government.

Private Law or Civil Law

Private law, through the civil courts, arbitrates disputes between "sovereign" citizens. The primary focus of civil law is to settle claims and recover damages. Although in recent years extremely punitive damage awards have been made by civil courts, the primary purpose of civil law is to help citizens seek recompense from one another without the retribution of fines and jail time associated with criminal law.

Another confusing development that has taken place in recent decades is that government agencies will often take people to either civil or criminal courts according to their best advantage. The best known example is the Internal Revenue Service in the United States, which performs audits in a civil law framework, but if the audit reveals any transgressions against the code that is subject to criminal penalties, the jurisdiction changes immediately from the civil courts to the criminal courts.

Public Law

Public law is that part of law which defines the relationship between citizens and their government. Through public law, government leaders hope to impose costs on people in order to discourage some types of behavior, or to confer benefits to encourage other types of behavior. Public law, in addition to demanding payments for damages, also imposes fines and jail time when it believes the transgression against "society" is serious enough.

Public law can be divided into four types: (1) criminal law, (2) administrative law, (3) constitutional law, and (4) international law.²

Criminal Law

Criminal Law is that law which defines transgressions against the state and prescribes punishments for those transgressions. While many transgressions of criminal law are in fact violations of one citizen's rights by another citizen, they are dealt with primarily as offenses against the state. This approach makes the state the primary victim and places the suffering individual in a secondary position. Consequently, the emphasis of criminal law tends to be more on punishment than on compensating victims.

Crimes, as defined by the state, are of two predominant types. First, we have crimes against people and property. These crimes usually afford the suspect protections as provided for in the constitution. The second type of crime is defying the edicts of "moral guardians" and "economic planners." While defying the edicts of moral guardians will most often place one in criminal jurisdiction, being accused of an economic crime will not allow one any protection by the constitution. However, with the new tool of "civil asset forfeiture," the moral guardians are enjoying even more freedom from constitutional restraints.

Because the line between civil and criminal law is becoming hazy, a new form of law is gaining force in America. Indications are that administrative law has been going strong in many places around the world for some time.

Administrative Law

Administrative Law is popular in societies where legislators have written so many laws that they cannot even define their application to individual cases--much less enforce them. "Administrative law is a response to the growth of the governmental administrative process . . . "³

Administrative law is generally justified on the basis of efficiency. In a sense, administrative law has been the most prevalent kind of law throughout history. Around the world, large bodies of "efficient" laws have been developed by regulatory agencies in order to anticipate every possible contingency. Possibly the highest possible expression of administrative law was developed by one Mr. Krylenko of Bolshevik fame. According to him, humans were simply "carriers of specific ideas. . . . No matter what the individual qualities [of the defendant], only one method of evaluating him is to be applied: evaluation from the point of view of class expediency ."⁴

In America, administrative law is blurring the line between private and public law. Agencies such as the IRS can attack a citizen in civil court, and then if it suits their convenience, they can switch a case over to criminal jurisdiction in order to assess criminal penalties. While this is inconvenient to individuals and tends to erode their rights, it is consistent with a philosophy that declares: "Expediency or opportunism is the rule of statesmanship, not abstraction as to the philosophic nature of the state. . ."⁵

One example of such efficiency is the case of "a deputy fire marshal in Ohio who sentenced a man to jail after holding a secret inquisitorial proceeding. The defendant was not even allowed to have his own attorney present. The Supreme Court upheld the sentence because the trial 'was not a criminal trial'; it was 'an administrative investigation of incidents damaging to the economy.'"⁶ The poor man apparently should have killed someone so that he could enjoy the protection of the constitution.

More recently, administrative law has been perfected to a new level unknown in the United States previously. Civil asset forfeiture has become the new rage. "In 1990, a Justice Department bulletin was sent to U.S. Attorneys, urging them to seize more property in order to meet budget projections. 'Every effort must be made to increase forfeiture income during the remaining three months of 1990.'"⁷ How is this justified? "The law pretends that the property, not the person, is the defendant. By going after a person's property, government agents can bypass protections afforded criminal defendants under the Bill of Rights. Moreover, the government cannot arrest a person before a crime is committed, but it can arrest the person's money or car."⁸

Today, "the administrative process has become a fourth branch of government, comparable in the scope of its authority to the three traditional branches--the executive, the legislative, and the judicial. In fact, the decisions of administrative agencies probably affect the lives of ordinary citizens more pervasively and more intimately than the decisions of the federal courts."⁹ How did it get this way? "The small beginnings of the Populist era have yielded a fulsome harvest of bureaucracy blessed by the older traditions of colonial America and its mercantilist and Britannic parent."¹⁰ That's a nice way of saying people have more faith in force than they do in voluntary trade.

Constitutional Law

Until now, we have discussed different types of law which are supposed to place limits on the use of illegal coercion. On the other hand, constitutional law is supposed to place limits on the use of legal coercion. According to Fred Holden, "Law is where the government tells the people what to do--constitutions are where the people tell the government what to do."

"The idea of a fundamental law, a law so fundamental that it limited even the King's power, runs far back into English history. The common law and the coronation oath limited the power of the Anglo-Saxon Kings. Henry First's Charter 1100 A.D. and the first and second charters of Stephen 1135, and 1136 A.D. placed definite, written limitations on the royal power."¹¹ Following those oaths came the Magna Carta in 1215. While none of these documents were given the title of constitution , they did have the effect of limiting political power.

In the last two centuries, nations having written constitutions have almost become a fad. Even the former Soviet Union had a written constitution, which was quite remarkable given that the only true limitation on power was their leaders' "proclivity to shoot each other."¹² This means that constitutions come in all forms. "Between the regimes of anarchy and equal rights there are many constitutional contracts or institutional frameworks in which rights are distributed asymmetrically among the parties."¹³ Consequently, simply saying that a nation or society has a constitution is not particularly informative. One must still inquire as to the nature of actual limits being placed on that government.

International Law

Finally, we have international law. "One of the first jurists to produce a systematic treatise on international law was the Dutch philosopher Hugo Grotius" in 1625.¹⁴ Other philosophers also contributed to the development of the concept of international law. "In the 17th century the Society of Friends, the Quakers, with their feeling against the use of arms which amounted to what we now call pacifism, had an undisputed influence on the currents of thinking, both in Great Britain and America. William Penn, in his 'Essay toward the Present and Future Peace of Europe' (1693), developed the concept of an international court of arbitration. And then there were men like Jeremy Bentham and Immanuel Kant. Bentham (1789) followed Penn's idea, but called it an 'International Court of Judicature.' Kant (1795) suggested a 'Federation of Free States' to maintain peace."¹⁵ Since then, many more legal and philosophical theorists have contemplated the development of international law.

To be effective, law must have force available to back it up. Along with the development of theories of international law and world government, there have been attempts to bring the world closer to that end. In a sense, every world leader throughout history who tried to conquer the world has sought to create a world government--his government.

More recently, there have been collaborative attempts to unite nations in the cause of peace. "Beginning with the efforts of Tsar Alexander I of Russia, the nineteenth century witnessed a number of attempts to organize the principal powers to provide for peace and international security. A number of high-level conferences -- notably those at Vienna in 1815, Verona in 1822, London in 1832 and 1871, Paris in 1856, and Berlin in 1878 and 1885 -- laid valuable ground work for international cooperation for peace. A further impetus toward a viable institutionalized way of promoting world peace was provided by the Hague conferences of 1899 and 1907, which emphasized arbitration and juridical settlements of international disputes."¹⁶ After these attempts had fallen by the wayside, the League of Nations was created in 1919, and later the United Nations was created in 1945.

The first international law to be accepted was the law of the seas, which dates back more than three hundred years.¹⁷ In this century, the most well known international laws are the UN Charter, The Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights.

Opinions vary regarding where the most international law is derived from. According to Robert Muller, "the UN has created and codified more international and world law than the entire previous human history."¹⁸ According to the encyclopedia, "Some people equate international law with the United Nations and its component institutions such as the International Court Of Justice (ICJ). In fact, only a very small proportion of international law is generated by such institutions. Most is created from three generally recognized sources: treaties, custom, and 'general principles of law'."¹⁹ Regardless of where most of the international law is coming from, its development indicates that we are living in a world that keeps getting smaller.

Thus far, it appears that the most effective form of international law is treaties formed among sovereign states. The treaty is generally considered superior to even the constitutions of the respective states. This necessity is explained well by John Jay in Federalist Paper #64 : "Others, though content that treaties should be made in the mode proposed, are averse to their being the supreme law of the land. . . . These gentlemen would do well to reflect that a treaty is only another name for a bargain; and that it would be impossible to find a nation who would make any bargain with us, which should be binding on them absolutely but on us only so long and so far as we may think proper to be bound by it."²⁰ In other words, when we, either as individuals or as nations, violate contracts, we teach others that we cannot be trusted, which in turn limits the possibility of future joint ventures for mutual benefit.

A major frustration to those who look to international law for world peace is the fact that the law must be enforced by those who routinely violate it. This has led to calls for an independent United Nations military force with the power to back its resolutions.

Origins and Justifications of Law

Since humanity's arrival on this planet, people have had to convert raw materials into life-sustaining commodities in order to exist. This process is better known as production. However, a second alternative also existed then as it does now. That alternative is to use force to take the fruits of other peoples' production so that one does not have to be productive personally.

In short, one is either producing goods and services for voluntary exchange, or one is forcing people to make involuntary exchanges. Therefore, if humanity is to be divided along class lines, the distinction between producers and predators might be more useful than the usual approach of inciting war among the different components of the production process.²¹

In any case, if the predators were not going to kill all the producers, some means of protection had to be devised. Two possible theories can be developed to explain why law first came into being. Both scenarios have probably taken place at some time in history.

The first scenario suggests that the producers got tired of being plundered and organized a means of common defense against the predators. In rare instances, otherwise peaceful working people have joined together to take their oppressors into account. For the most part, however, governments are usually the result of the strongest gang of thugs claiming to be a legitimate government. This, of course, leads us to the second option.

The second scenario is where a very powerful predator who did not like competition from other predators decided to organize a system of defense. By protecting the producers from other predators, much like a farmer would build a fence to keep livestock from falling into the hands of other farmers or stray travelers, the predator started to enjoy greater profit.

Ultimately, the purpose of law is to foster peaceful productivity in the society for which the law is developed. The effectiveness of a system of law can be gauged by looking at how a society develops in response to the incentive structure provided by that system.

Philosophical Basis for Law

To be effective, law must also carry moral and philosophical authority in the minds of those subject to the law. There are two reasons why law must successfully claim the moral high ground. The first reason is that law must "morally disarm" the majority of people. Otherwise, there is no way a small minority of people (who call themselves a government) can control a large mass of citizens. The second reason was stated best by Frederick Bastiat, "The safest way to make laws respected is to make them respectable."²² Those who aspire to remain in power for a long time must appeal to a "higher principle" that legitimizes their authority in the eyes of the general population.

Another reason for basing law on a set of rational principles is that it fosters consistency in its application. Not everyone can be philosophically neutralized, so a "tax" in the form of legal penalties needs to be placed on people who are only motivated economically. Some stop plundering only when it "becomes more painful and more dangerous than labor."²³ Hopefully, between moral disarmament and the threat of punishment, all but a few recalcitrant souls will be brought in line.

According to Machiavelli, morally disarming the majority is not too difficult: "A prince must take care that nothing goes out of his mouth which is not full of the above-named five qualities, and, to see and hear him, he should seem to be all mercy, faith, integrity, humanity, and religion. And nothing is more necessary than to seem to have this last quality, . . . the world consists only of the vulgar, and the few who are not vulgar are isolated when the many have a rallying point in the prince."²⁴

In short, the larger portion of law acquires its power and authority from four sources: 1. revelation from God, 2. the incontestable wisdom of community leaders, 3. the establishment of legal precedent, and 4. natural law--"True law is right reason in accord with nature; it is of universal application, unchanging and everlasting. . . ."²⁵

A Brief History of Law

The development of law can be traced back to 4000 B.C. and the courts of ancient Egypt. In this early system of law, the law of the land and God's edicts were one and the same. While it may be hard to argue with a man who can assess penalties both in this life and in the next, the succession of thirty dynasties indicates that there was competition even for the control of God (and in turn for control of the community).

The first attempt at codifying law took place in Rome with the Twelve Tables (451-450 BC) and from there evolved to the Justinian Code (533-534 AD) which is the basis of much of civil law even today.²⁶ The judgment of wise men and the impartiality of a written code replaced religion as the main source of legal authority.

After the fall of Rome, power diffused among many different leaders in the feudal states. Law was then formulated primarily in terms of customary practices, some of which were eventually codified in an effort to eliminate contradictions (and to consolidate the power of the king over feudal land owners.) Out of the middle ages came two types of law that even today influence most of the world: Common Law and Romano-Germanic Law.

In addition to the above secular approaches to law, religious laws have also developed over the centuries. However, Islam has been the most successful in offering a comprehensive system of law that included relations among people in everyday life. Canon law deferred to the state by giving "unto Caesar that which is Caesar's". Hindu law offered a great deal of guidance, but it has since been modified considerably by the English occupation. In recent times, even Muslim law has had to find creative work-arounds in order to address modern commercial issues. This new development has also affected marriage contracts which were previously under the pervue of religious law.

Most recently, we have seen the development of Socialist Law. Socialist Law eliminates private law and replaces it with public law because the means of production is owned by the state (which is in turn owned by the bureaucratic elite). While it prides itself on being a total departure from any law that has heretofore oppressed mankind, observers have noted some similarities to Romano-Germanic Law. While its goals are different, it has retained the trappings of courts and rules and defends itself through an elaborate system of legal logic.

Considering the Different Legal Systems

According to Rene David and John E. C. Brierley, there are four families of law: Romano-Germanic Law, Common Law, Socialist Law, and Religious Law.²⁷ For their authority, Romano-Germanic Law looks to legislators, Common Law looks to judges, Socialist Law looks to "the people", and Religious Law looks to God.

Of course, theirs isn't the only system for defining the different types of law. For instance, it has been stated that Roman Law was greatly influenced by Greek philosophy which shifted the focus from legal status (slave or free man) to the nature of contractual arrangements.²⁸ Another author approached the divisions thusly: "Modern civil law is sometimes divided into two families. French law and the systems allied to it form the Romanistic legal family; the Germanic legal family is the other division."²⁹

Given that the authors in the first book cited above are French, and that they have submerged themselves into the Romano-Germanic Law category, I vote on using their system simply in deference to their humility.

Romano-Germanic Law

Romano-Germanic Law is noted for its insistence on codification. Referring back to the Twelve Tablets, codification is useful because it limits those enforcing the law by making those laws more widely known to the citizenry. Of course, that assumes that legislators have not made so many laws that no one can know them all. Because laws are made by legislators in response to problems of the day, and the decision of one legislature is not binding on the next, the political and economic ground can shift rapidly under people's feet. While this has the advantage of eradicating injustices more quickly, it also allows for injustices to be done just as quickly.

The Romano-Germanic system also draws a clear distinction between public and private law. Public law governs relations between citizens and the state, while private law governs relations among citizens. The idea of limiting state power is not a compelling theme for those who support a system of legislative law. In mild form, advocacy of legislative law takes the form of statements like: "The growth of the law is legislative. . . . And . . . law is administered by able and experienced men, who know too much to sacrifice good sense to a syllogism, . . ."³⁰ Further developed, advocacy of legislative law starts to sound like, "the functions of the state are not susceptible of abstract, a priori deductions. Each proposal must be decided by the time and the conditions. If it seems advisable for the state to own an industry it should proceed to own it; if it is wise to curb any class or interest it should be curbed. Expediency or opportunism is the rule of statesmanship, not abstraction as to the philosophic nature of the state. . ."³¹

Obviously, the judgment of legislators can only be as good as the philosophies that guide them. And of course, those who are most successful at advancing to the top of the political ladder are not always the wisest.

Common Law

Common Law is associated with England, the Commonwealth countries, and the United States (except for Louisiana). A key feature of common law is the notion of placing limits on government power. "The common law and the coronation oath limited the power of the Anglo-Saxon Kings. Henry First's Charter 1100 A.D. and the first and second charters of Stephen 1135, and 1136 A.D. placed definite, written limitations on the royal power. Then Magna Carta 1215 imposed a written limitation on the crown."³² With the help of Natural Law theory, Common Law undermined the sharp distinctions between public law and private law.³³ In recent years, Common Law countries are losing their distinction as they rely more and more on legislative law where edicts of one legislature are not binding on the next.

Common law relies heavily on precedent, making the decisions of today's judges binding on future judicial decisions. Making laws harder to change has the positive attribute of leaving people more secure in their property. According to Gerald Skully, legal change under civil law is approximately twice as fast as change under common law. "In general, law that arises from the custom of exchange and human intercourse (common law) fosters private wealth maximization and minimizes rent-seeking (income distribution). . . . Civil law (statutes and administrative rules) is crafted in a political market."³⁴

Common law systems generally are more conservative, and today people advocating the return to common law generally come from the conservative side of the political landscape. Historically, societies have prospered economically under common law, but not everything has been sweetness and light. Unfortunately, much oppression in the form of pushing religious mores also came with common law. "Common Law itself was distasteful to the colonists because in many cases they had been forced to emigrate to escape persecution in England and they were not at all ready to share the English view that the Common Law was the bastion of personal liberties."³⁵

Looking back, not everyone was thrilled with precedent. Jonathan Swift, for one, was not enamored with the rule of precedent. "It is a maxim among lawyers that whatever hath been done before may legally be done again: and therefore they take special care to record all the decisions formerly made against common justice and the general reason of mankind. These, under the name of precedents , they produce as authorities to justify the most iniquitous opinions; and the judges never fail of directing accordingly."³⁶ On a lighter note, Gurdjieff described law based on precedent in this way: "a code of laws collated on the basis of former similar 'puppet plays' by beings called 'old fossils.'"³⁷

Due to some philosophical weaknesses underlying Common Law, Courts of Equity were developed in order to increase the fairness of judicial decisions. Most notably, the Common Law concept of duress "covered only physical violence and not moral coercion."³⁸ In Chapter 3 , a lot of energy was put on exposing guilt as a form of coercion and how it can be used both defensively and offensively. While we can be sure that Courts of Equity were not always equitable, its development demonstrates that Common Law judges did not have a monopoly on good judgment.

Summed up, Common Law has the virtue of maintaining good laws that protect people for a longer period of time than does legislative law, but it also carries the risk of perpetuating injustices for a longer time as well. Once again, the law is only as good as the philosophies and the motives of those writing it.

Socialist Law

Socialist Law is the third family of law. "While it is distinct from the previous two . . . members of the socialist camp are those countries which formerly had laws belonging to the Romano-Germanic family, and they have preserved some of the characteristics of Romano-Germanic law."³⁹ Although socialist laws share some things in common with other types of law, such as the use of trials, courts and legal argumentation, it is unique in openly declaring that the state should own everything. It also greatly narrows the scope of law. No less of an authority than Lenin declared: "We have no more private law, for with us all has become public law."⁴⁰

Soviet Law has an abiding faith in the wisdom of political leaders. "Soviet leaders are placed above law by Marxist doctrine itself, for law is considered simply as a means at their disposal, not as an absolute value dictating their conduct."⁴¹

Once again, however, we are faced with the problems that attend blind faith in the wisdom of those who successfully muscle their way to the top of the political pyramid. Common Law is the slowest at making changes, Romano-Germanic Law is faster, and we can expect Socialist bureaucrats to change the law very quickly, given that there is no public censure, electoral process or constitutional restraints on their decision-making powers.

Religious Law

One can speculate with reasonable certainty that the earliest forms of law were based on religious teachings. Although Religious Law is not as powerful as it was in earlier centuries, it is still a force to be reckoned with. Religious Law, by claiming divine inspiration, enjoys the advantage of claiming the moral high ground in the minds of its adherents.

"The Hebrew, Islamic, Hindu, and Roman Catholic canon legal systems. . ."⁴² are the major systems of religious law. According to David and Brierley, "Muslim law is the most important of these systems."⁴³ Muslim law, as was mentioned earlier, is the most complete and self-contained of all the systems of religious law. Being divinely inspired, only interpretations are supposed to be made by scholars. No new law is supposed to be written. In addition, it is supposed to be a limiting force on the use of political power.

Of course, there are problems that arise from the limits of Muslim law. For instance, wives and their property are supposed to become the property of their husbands. However, through the use of a contract, a couple can "stipulate at marriage that the wife will be allowed to exercise her husband's prerogatives and, therefore, will be at liberty to repudiate herself, or that she will be able to do so if the husband does not remain monogamous."⁴⁴ Also, it is not legal under Muslim law to charge interest. However, there are several ways to get around that requirement.

Fortunately, religious laws have been somewhat responsive to the changing needs of the societies they dominate. However, religious leaders suffer from the same frailties as do legislators, judges and commissars. Their laws can only be as good as the "divine inspiration" that guides them.

Basic Issues Regarding Law

There is still a great deal of debate about whether law is simply the subjective expression of the will of the leader or whether there are boundaries set by nature and reason which should serve as a guide. Also, there is another question to be addressed: should law follow a certain set of principles, or should it be malleable in order to pursue the expedience of the moment?

Natural Law and Manmade Law

The debate between natural law theorists and legal positivists has been raging for thousands of years (as usual). "In the 5th century BC the Sophists and Socrates, along with his followers, took up the question of the nature of law. Both recognized a distinction between things that exist by nature (physics) and those that exist by human-made convention (nomos). The Sophists, however, tended to place law in the latter category, whereas Socrates put it in the former, as did Plato and Aristotle."⁴⁵

With the onset of the Dark Ages and the Middles Ages, it appeared that Legal Positivism was winning. Law was certainly nothing more than the opinion of whoever held power at that moment. However, Saint Thomas Aquinas revived the idea of Natural Law just in time for the Renaissance. The honeymoon with Natural Law lasted a couple of centuries, assisted in the forming of the United States Constitution, and provided the legal framework for the beginning of the industrial revolution. By the 19th Century, Legal Positivism made a comeback. Once again, law became whatever the temporary sovereign said it was. After the massive blood-letting that has been the hallmark of the 20th Century, some philosophers are taking another look at Natural Law.

A central point of disagreement is to be found over the issue of "unjust laws." The Legal Positivist hold that "an 'unjust law' is a contradiction in terms because the existing law is itself the standard of justice."⁴⁶ In opposition, the Natural Law theorists declared that "an unjust law was not a genuine law but rather an act of violence."⁴⁷ Underneath these debates lies an even more fundamental question: is life, law and relationships simply what we say they are, or is there a world out there that makes demands on us as the price of a good life?

Principle verses Precedent

At this point we are faced with a dilemma. On the one hand, precedent has been shown to create a more stable social and economic environment, and yet it has not been free from weakness and ridicule. On the other hand, those who would write the law according to some form of principle have only succeeded in making the law even more changeable and capricious.

Two such examples are the principles of Socialist Law espoused by Karl Marx which was supposed to transform human nature, and "social engineering" laws such as those promoted by Roscoe Pound and other American sociological jurists who sought the same ends through gentler means. Given that the former Soviet Union is called "former" and that America is besieged with most of the symptoms of a declining civilization, we can conclude that merely calling ideas principles does not necessarily make them so.

Generally, the principles that these left-leaning intellectuals referred to were the principles of coercive charity, or what Frederick Bastiat called "false Philanthropy." As for procedural principles, they could best be described as "the expediency of the moment."

Some Thoughts about Principled Law

What is the nature of a principle? A principle is either an inescapable fact of nature or a consistent logical thought construction. The first part is a given, but principles as defined by thought may or may not be useful. It is possible to develop elaborate maps of reality that are logically consistent within their own framework, and still have no relation to our physical or psychological world. Consequently, such maps often have us trying to cross California with a map of South Dakota as our guide, figuratively speaking, leaving us in the ditch much of the time. Ultimately, law and ethics must work together if it is to be a benefactor for humanity rather than a slavemaster. If the goal of law is to support human life, it must be compatible with a system of ethics that holds life as its standard of value.

In Chapter 3 , I suggested that I would capitulate to ethical relativism in as much as not everyone holds life as the supreme goal. For a person who holds death as the highest goal, an ethical system that encourages destructive behavior is an appropriate system. On the other hand, I also said I would not support the next step that often follows tirades about ethical and moral relativism--metaphysical relativism.

The difference between food and poison is not simply a matter of opinion. Constructive activity begets constructive results no matter the justification, and destructive activity begets destruction. A weightlifter with a goal of bench-pressing 400 pounds does not accomplish that goal by cutting off his arms, no matter how "positive" his thoughts are about it.

The same holds true with law. Law that interferes with destructive behavior favors the producer while law that interferes with production favors the destroyer.

Because we live in nature and are obliged to support bodies that must consume the products of nature, law, if it is to be life-supporting, must recognize that fact. Law that is to be life-supporting must interfere with destructive behavior and stay out of the way of productive behavior.

Resource Control, Property Rights, and Law

In the introduction, a lot of energy was spent emphasizing that survival in material bodies requires access to material resources. In this debate, people have taken two basic positions. The most common position has been that resources should be the common property of all, with community leaders directing their use for the good of all. The other position insists that individuals should have the right to acquire and control the means of their subsistence because, "Give me control over a man's economic actions, and hence over his means of survival, and except for a few occasional heroes, I'll promise to deliver to you men who think and write and behave as you want them to."⁴⁸

In the 17th century, John Locke suggested that the right to own property comes from mixing labor with land. This theory became the guiding principle behind the "homesteading" acts of 19th Century America during the westward expansion. (In their zeal over "Manifest Destiny" they conveniently overlooked the labor that the Indians' had already mixed with the land.)

However, once all of the land has been claimed, we have a new problem. Instead of mixing labor with land, the next generation must be prepared to exchange labor for land. This brings up some difficult problems that must be resolved. After all, if we fail to demonstrate a more universal application of this principle, we will be hard pressed to explain how property is created or to justify the right to defend property.

Generally, the first person who mixes their labor with the land will have done some work to improve it. That work will not have to be done by the next person. Consequently, the next person will at least be paying in part for the labor of the first person when they purchase that land and any improvements. Of course, there are factors that affect the value of the land apart from what the former owner has done for it. However, if the former land owner should not enjoy an additional windfall due to factors such as favorable location, the question then becomes, "who should?" Should the seller be forced to sell it to a buyer for a lower price than the buyer will willingly pay, or should the government take the windfall for some other purpose?

Hopefully, chapters 2 and 4 have made a substantial case in favor of people acquiring the right to control resources/own property as a result of voluntary transactions with others. If people cannot control the resources on which their subsistence depends, they are the vassals of those who can. Also, without individual property ownership, with its attendant opportunities and liabilities, we find ourselves faced with the tragedy of the commons --that which is owned by everyone is taken care of by no one.

Legal positivists have a point when they assert that individual property ownership is simply a mental construct with no basis in reality. However, the same can be said for communal ownership as well. While both theories may be mental constructs, we must still account for the inconvenient fact that cultures who entertain the "individual property" notion tend to generate wealth more effectively than cultures who cling to the "communal property" notion.

Joining Together Legal Issues and Ethical Issues

Earlier, law was defined as the threat of force made by government for the purpose of either encouraging or discouraging various types of behavior. Our question then, is what types of behavior should be discouraged? Stated differently, which social problems require the use of coercion and which ones are better left to those concerned?

Chapter 3 introduced a new approach to evaluating ethical issues. Instead of looking toward political or religious dogma as a guide, it suggested we use behavioral descriptions. While this system does not clear up every problem or disagreement, it does offer the possibility of helping people with different perspectives speak a common language. The "ethics chapter" went into great detail about the nature of voluntary association and many of the subtleties of coercion strategies.

This chapter will only address the major categories of voluntary and coercive transactions, and how they are juxtaposed to the categories of "legal" and "illegal." (Figure 6-1 below illustrates the resulting four categories of law.)
Let's look at each of these four categories:

1. Legal Voluntary Transactions

A legal voluntary transaction is a transaction that the government has decided to leave completely to the discretion of those making the agreement. As long as each party fulfills their end of the bargain, there is no call for intervention. Of course, should someone renege, then suit is filed for breach of contract (which fits under category #4).

2. Illegal Voluntary Transactions

Every society has some voluntary transactions that are held to be illegal by those who control the "rule space." Drugs, gambling and prostitution are three common examples where it is possible for citizens to make a voluntary transaction were it not prohibited by the government. Those opposed to such rules speak of "victimless crimes," while those who advocate prohibition point to occasions when someone is hurt by someone who had just made the "immoral" transaction.

Along with morality crimes, we have economic crimes. Minimum wage laws prohibit employees from accepting a lower wage, which would enable employers to provide on-the-job training. If an orange grower wishes to sell a fresh orange under a certain size to someone who wishes to purchase it for a cheaper price, they are prohibited from making that transaction. (In both cases, the poor person is then told to go to the government for both their training, so they can hopefully get a job, and for money, so they can afford the higher prices that have been mandated for anyone wanting to eat oranges.)

3. Legal Coercive Transactions

Along with prohibitions of voluntary transactions, governments frequently pass laws mandating transactions people would not agree to otherwise. Taxation is the most common form of coercion. Those opposed to any form of taxation insist that enough people would contribute voluntarily in order to provide for common defense against both domestic and foreign predators. Others are not so idealistic. Finally, there are vast differences among people's definitions of what constitutes "common defense."

For some people, "common defense" simply means having enough government force available to enforce sanctions against coercive transactions. In other words, enough laws to protect people from murder, rape, burglary and violations of contractual agreements. Other people, like our friendly orange growers mentioned above, add to the definition of "common defense" protection from domestic and foreign competitors who would threaten their profit margin. Consequently, "Orange juice is cheaper in Canada than in the U.S. largely because the Canadians do not have any orange growers--and thus have no tariff on orange juice imports."⁴⁹

Another popular form of legal coercion is funding charity through taxation. Add to that education systems that are funded by taxes and find customers with the help of compulsory education laws. Around the world, it is considered common wisdom that people will neither give to the poor nor will they educate themselves unless they are forced to do so. For instance, Horace Mann declared, "a republican government, without well-appointed and efficient means for the universal education of the people, is the most rash and foolish experiment ever tried by man."⁵⁰

Ironically, there are nations around the world where common wisdom has decided that people will not make food unless they are forced to do so. Coincidentally, they also have the least food.

4. Illegal Coercive Transactions

This is the category of laws against common crime--where one person seeks a gain from another person without the other's consent. Murder, rape, robbery, theft and breaches of contract fit this category. It is in this category of law that government finds its primary purpose for existence. Unfortunately, as government finds itself embroiled in mandating coercive transactions and in prohibiting voluntary transactions, the people find themselves proportionately less protected against common crime.

Fundamental Ethical Issues and the Law

Ultimately, designers of laws and regulations need to ask themselves; what ethical category does this proposed law fit under. If we can agree that law is itself the threat of force against those who fail to comply, both sides of the debate can at least start with a common language. Unless we are simply self-absorbed opportunists, we need to be careful of our rhetoric as we advocate welfare for either the poor (distributive justice) or welfare for the rich (tariffs and subsidies). The more functions government performs which are still considered crimes for anyone else, the more it encourages boldness in "criminal imitators engaging in individual 'redistribution.'"⁵¹

Some Additional Thoughts on Government and Law

If people have a right to life, a right to the bodies that sustain their life, and a right to the property which sustains those bodies, then it follows that they have a right to defend themselves when attacked by those who seek a value without offering anything in return. "Law is solely the organization of the individual right of self-defense which existed before law was formalized."⁵² From there governments gain their legitimacy and functionality. "Force has been given to us to defend our own individual rights. . . . 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?"⁵³

Productive people are often not skilled in the art of violence. Consequently, it is prudent to hire professionals who are adept in the art of violence just the same as it is prudent to hire other people to make cars, build houses or to perform a host of other specialized functions. In this way we benefit from economies of scale.

Hiring protective services carries risks uniquely its own. If we are not careful, our protectors can quickly become our oppressors. One reason this happens so often, is that the term "government" tends to be shrouded with a mystical aura. In the minds of many, government and God are the two entities which are never to be questioned.

In contrast, try to imagine contracting with the Human Predator Control Division of Farm Boy Pest Control, Inc In this case, we would be more clear about the nature of the services being purchased. (See Figure 6-2.) Unfortunately, because our vision is clouded, we allow government to accomplish legally many goals that private citizens would be assessed criminal penalties for.

This brings us to the question. Is it possible to combine the ethical with the legal? From the viewpoint of "behavioral ethics" discussed in Chapter 3 , it is possible. According to the chart of "Available Relationship Strategies," law falls into the category of force. That force can either be defensive or offensive. Law can work simply to protect people from the predators, or it can be co-opted by the predators, leading to a situation described by Frederick Bastiat. "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."⁵⁴ Without the masses having a clear comprehension of ethical principles, it is the easiest thing in the world for shrewd predators to take over the reigns of political power.

Making Work More Attractive Than Crime

From the viewpoint of supporting life, law must support the lives of honest and productive people. Also, by imposing penalties on predatory behavior, it can be expected that many would-be predators will find work more lucrative. Contrary to the glorious myths of the noble "shock workers" of Bolshevik fame, work for most people is anything but glorious. In the language of economists, work is a disutility that must be compensated for by the rewards of work if people are to turn leisure time into work time.

Many moralists object to utilitarian attitudes toward work by pointing to the spiritual value of work. "Through work man not only transforms nature, adapting it to his own needs, but he also achieves fulfillment as a human being and indeed, in a sense, becomes more a human being."⁵⁵ "One of the main dogmas of socialism is that labor has disutility only within the capitalistic system of production, while under socialism it will be a pure delight."⁵⁶ E.F. Schumacher noted that people do not only work for money. "[W]hen a worker, asked why he only worked four shifts last week, answers: 'Because I couldn't make ends meet on three shifts' wages,' everybody is stunned and feels check-mated."⁵⁷ In short, people work for their own very individual reasons, including reasons that are unfathomable to even politicians and intellectuals.

Once again, if we look for the one formula that fits all people, we are in trouble. For some people, work is so valuable in itself that they will accept high taxes and other such disincentives in exchange for the privilege of working. Other people will go to great lengths to lower their standard of living in order to reduce their need to work to a minimum. Most people will be found somewhere in between.

This leads us to a simple question? Why not simply reduce the number of disincentives attached to labor and then let everyone sort themselves out? Isn't requiring everyone to be a spiritual adept before any work gets done kind of extreme?

Criminalizing Crime (What a Concept!)

How do we tell when the law is acting like a predator instead of a protector? Once again Frederick Bastiat comes to our rescue: "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."⁵⁸ This suggests that lawmakers need to "[a]ct only according to that maxim by which you can at the same time will that it should become universal law."⁵⁹ If the ruled and the rulers live under different laws, one can be certain that the law has become a predator.

This is why philosophers like John Locke appealed to natural law . "Locke argued that the political state is created by a Social Contract in which individuals give up their personal right to interpret the laws of nature in return for a guarantee that the community (or state) protect their natural rights of life, liberty, and property. If the state does not fulfill that guarantee, the people have the right to overthrow the government."⁶⁰ If the Ruler is violating the very right of self-defense which he is on the payroll to protect, the citizens have a right to fire him.

Of course, it is easier to determine when a monarchy or an oligarchy is using the law to violate people's rights rather than to protect them. In a democracy it is not so easy. When totalitarian governments embrace the principle of legal positivism, they are generally condemned by other freer societies. However, if legal positivism is embraced by a democracy, it is considered enlightened government. Of course, we are still hard-pressed to explain what is so enlightened about putting everyone's life, liberty and property up for a vote.

The Constitutional Structure and the Life-Cycle of Cultures

"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."⁶¹ As a culture becomes more political, the focus of attention shifts for competition in the marketplace to control the "rule space."

If people desire a peaceful society and an ascending culture over the long run, it is important that laws be limited to defensive force. However, this has never happened in history. "In Continuum of a Civilization , Dean Russell shows how societies begin and end. Nineteen of the world's greatest civilizations have died, not as a direct result of destruction by an outside enemy, but from internal decay. The average age of these civilizations was about 200 years. Each civilization's lifetime, with few exceptions, passed through this sequence of conditions: . . . From Bondage to Spiritual Faith, From Spiritual Faith to Great Courage, From Great Courage to Liberty, From Liberty to Abundance, From Abundance to Selfishness, From Selfishness to Complacency, From Complacency to Apathy, From Apathy to Dependency, From Dependency back to Bondage."⁶²

What is interesting to note is that these nine steps take place over a span of eight or nine generations, each generation being 25 to 35 years long. Add to that observation a bit of wisdom etched over the archway of the main library at the Colorado University at Boulder, and we have another clue about why this cycle is so hard to break: "Who knows only his own generation remains always a child."⁶³

Without an historical perspective, people do not learn from their ancestors because the knowledge of previous generations dies with them. In the words of Willa Cather, "The dead might as well try to speak to the living as the old to the young." Consequently, as long as we lack an inter-generational perspective, we are obliged to fulfill George Santayana's famous prophesy: "Those who cannot remember the past are condemned to repeat it." Hence, Figure 6-3 .

Constitutional Structures and Economic Performance

Gerald Skully explains the cycle of the birth and death of cultures through an analysis of constitutional environments. According to him, "The constitutional setting is the economic, legal, and political environment in which production, exchange, and human intercourse occur. The rules of the game, under which citizens live and work, give rise to the production of income in the private sector and determines who gets to compete for income streams and who does not." Furthermore, constitutional settings are not static. "In the early stages of the constitutional setting, the returns from legally sanctioned activities are high. As capital and labor accumulate, marginal returns fall. At some point in time, the returns from change in the rule space become competitive with the returns from legally sanctioned activities. This is when the process of rule space change sets in and rent-seeking begins."⁶⁵ To illustrate this point, I have developed Figure 6 4 :

Step One in the diagram depicts a society that has suffered from despotism (at the hands of one, a few, or many), and has learned the value of order and peace. Suffering tends to be a subtle reminder that consumption is possible only after production, and that as more people take to fighting, less wealth exists to fight over.

When people stop fighting and go back to work, life gets better rapidly. When the old government becomes history, massive amounts of creative energy are released. Entrepreneurs work hard and discover creative ways to create better and cheaper goods and services. (Keynes was right that war can be good for the economy, but not because destruction creates work. Rather, it is because the constrictions caused by massive regulations are lifted when a government collapses.)

Step Two indicates that as people become more productive, competition increases. This, in turn, reduces the rate of return on investments of labor and capital. Of course, when profits sag, and the competition is threatening, it becomes desirable to start competing "by other means."
By Step Three , the first wave of entrepreneurs shifts from being innovative to seeking protection from the next generation of talented innovators. These business leaders, in a typically short-sighted view, decide that investing in government coercion is more profitable than investing in research and development.

Controlling the market through government coercion is not that difficult. As we discussed in Chapter 4 , regulation that is intended to help the consumer, or even regulations that are plainly hostile to business interests, in the end help the established firms while hurting any newcomers.

Then comes Step Four . Like any new field of opportunity, the advantages of government regulation does not escape notice by those who lack that advantage. Over time, as more and more people decide that it is futile to compete in the arena of production, the whole culture's focus shifts toward competing in the arena of coercion. Or, as Gerald Skully says in semi-euphemistic language, people start putting more energy into controlling the "rule space".

Unfortunately, when a culture decides that coercion should be the primary arena of opportunity, the cycle does not stop until it collapses completely. For a long time the whole process seems legitimate as leaders strive to "make plunder universal under the pretense of organizing it."⁶⁶ If the cycle is allowed to go far enough, millions suffer and die miserable deaths. Why? Because, "[w]hen force is the standard, the murderer wins out over the pickpocket."⁶⁷

Some Final Thoughts

In Chapter 4 I deferred to advocates of ethical relativism in as much as we are all entitled to our opinions. I even went so far as to agree that we are in fact free to do anything we want--all we have to do is pay the consequences. Nevertheless, I stopped short of granting them the idea that the physical world will conform itself to their fantasies. Life-supporting behavior increases the quantity and quality of life, and life-destroying behavior does the opposite no matter how eloquently we might assert the contrary.

The same is true for law. Life-supporting laws make for healthy and growing cultures, and life-destroying laws make for sick and dying cultures. Once again, we are free to do anything we want--all we have to do is pay the consequences. Happy decision-making!

Footnotes for Chapter 6: