by
Larry Barnhart
March 1999
Last month the Community Issues Forum had an
interesting debate on Privacy. On one end of the table, a
representative from the FBI argued in favor of less privacy and
pointed to the value of apprehending kidnappers, robbers and
murderers. On the other end of the table, a speaker from the
Independence Institute argued in favor of more privacy, citing rumors
of government agencies using airplanes with infrared sensors to
apprehend people cultivating marijuana in their homes.
Both sides made excellent arguments for their position. Ironically, I
found the FBI agent's arguments slightly more convincing, given that
it would be nice to see government become more effective at catching
the bad guys. (Many people think I am anti-government simply because
I advocate the use of less coercion in human relations.)
Ultimately, it occurred to me that privacy is a big issue because we
have two types of crime. When we look at curbing obvious predatory
behavior, less privacy is very helpful. On the other hand, when it
comes to enforcing "consensual" crimes, many people advocate more
privacy as a way of making it harder for the government to
convict.
Unfortunately, we cannot have it both ways. If we want more privacy
for people engaged in consensual crimes, we must also give more
privacy to those engaged in predatory crimes. If we want less privacy
for predators, we must also accept less privacy for those engaged in
consensual crimes.
Of course, when I brought this up for the speakers and the audience
to consider, I was blown off as some kind of crackpot. Apparently,
the "Legal Positivists" have won the day -- law is sacred regardless
of what it does, and all that remains is to discuss the rigor with
which the law is to be enforced.
How did we reach this
point?
This debate is not new. In the couple of hundred years before the
American Revolution, Natural Law theorists had an ongoing argument
with Legal Positivists. According to ". . . legal positivists such as
Thomas HOBBES . . . an 'unjust law' is a contradiction in terms
because the existing law is itself the standard of justice." In
contrast, Natural Law theorists such as Thomas Aquinas "argued . . .
that an unjust law was not a genuine law but rather an act of
violence."
As it turned out, Natural Law philosophers like John Locke won the
day and the United States was born as the freest nation to date.
While all oppression was not rooted out of law, a principle was
established that could have evolved were it not for the future
preeminence of "Roscoe POUND and other American sociological jurists,
who focused on the notion of 'social engineering' law as a means of
social control and the relationship between law and society."
Now that we are back to Legal Positivism, liberals get to use the
force of law to make people more charitable, and conservatives get to
use the force of law to make people more moral. (Of course, there is
a hidden justice in the fact that liberals helped establish
principles which conservatives would later use to inconvenience
them.)
Prior to the American Revolution, the focus was on Kings and Monarchs
(who have since been reincarnated as "Dictators.") Many of them were
not nice people and ways had to be found to limit their power. Even
today, it is not popular to be abused by a dictator.
However, if the same abuse is perpetrated by a "majority vote," then
it becomes sanitized under the banner of "the will of the people." If
we feel oppressed by the law, our recourse is limited to winning a
popularity contest at the polls or to erect little niggling ways to
compromise enforcement efforts. Heaven forbid that we suggest that a
rational criteria might exist where we can differentiate a just law
from an unjust one, assuming that we are able to consider the
possibility of the existence of unjust laws in the first place.
"I can accomplish through law what can
only
be done otherwise through crime."
Throughout history people with the power to write laws have generally
lived much better than those who lacked that power. Except for a few
brave thinkers, this has been considered a fact of existence just
like the human body's need for water as a prerequisite of survival.
Fortunately, although brave thinkers are rare, they have on occasion
visited this planet.
One such thinker was Frederick Bastiat who did his most active
writing in the 1840s. The term he came up with was "legal plunder."
"But how is this legal plunder to be identified? Quite simply. 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." Of course, this quote is
addressed more toward property issues rather than liberty issues, but
the same principle applies to the protection of liberty as well as to
property.
At another point in his writing, Mr. Bastiat observed: "Force has
been given to us to defend our own individual rights. Who will dare
to say that force has been given to us to destroy the equal rights of
our brothers? Since no individual acting separately can lawfully use
force to destroy the rights of others, does it not logically follow
that the same principle also applies to the common force that is
nothing more than the organized combination of the individual
forces?" In other words, if I as an individual do not have the right
to storm your home in search of marijuana, what gives me the right to
empower government to do so?
One irony of our current situation is that today's legal violations
of liberty are justified by previous legal violations of property.
Earlier in this century, liberals concluded that humanity is too
mean-spirited to voluntarily give adequate charity to the right
places, so they sought the power to write laws and levy taxes to
correct this defect in human nature. Of course, whatever you
subsidize, you get more of, including irresponsibility and lack of
planning. Consequently, because irrespons-ible people can destroy
wealth faster than responsible people can create it, conservatives
try to use law to limit "irresponsible" behavior.
Protection by government vs. protection
from
government.
Ultimately, the question needs to be answered: should government
force be used only to protect us from each other, or should it be
used to protect us from ourselves? If the second premise is true, we
should be consistent by outlawing anything that has or could ever
hurt anyone at any time. (Mama Cass choked on a sandwich: outlaw
sandwiches!) Given that this hasn't happened, we can only conclude
that politically-connected people have elected to use law to force
their preferences on everyone else.
Of course, this is also the age of resurgent philosophical animism:
matter is active and humans are passive. In a Rocky Mountain
News interview with Peter McWilliams, the author of Ain't
Nobody's Business If You Do , he said, "The Los Angeles Times
recently ran a headline: 'Drugs Kill Actor, 23.' . . . I wrote them a
letter, which they didn't print, saying that was as accurate as
writing, following the 1955 death of James Dean: 'Porsche Kills
Actor, 23.'" (Of course, Americans are particularly fragile.
Colombians can make drugs by the boatload and still survive. But if
those drugs even touch American shores, Americans will self-destruct
by the millions.)
Were we to limit law to protecting us from each other, privacy would
not be such an issue. We only need privacy when others have the power
to intrude into our lives and take away our liberty and property when
they disagree with our personal choices. By limiting government to
protecting us from each other, we can expect to be more protected by
our government and to need less protection from our government.
FOOTNOTES:
1. Reviewed by Nicholas D. Constan, Jr., "Law," The Academic
American Encyclopedia, (New York: Grolier Electronic Publishing,
Inc., 1993).
2. Ibid.
3. Ibid.
4. Frederick Bastiat, translation by Dean Russell, The Law
(Irvington-On-Hudson: The Foundation for Economic Education, Inc.,
1990), p. 21.
5. Ibid.
6. Clifford D. May, "A conversation with Peter McWilliams
decriminologist," Rocky Mountain News, January 5, 1994., p.
26A.