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What Is Law?
Part II of Understanding Liberty
Please read Part I, if you have not done so already, before reading this hub. Thank you. LINK: http://hubpages.com/hub/Understanding-Liberty
The Meanings of Law
The word “law” is used quite freely in our society and most are probably unaware that the word can refer to very different things. I can think of three ways the word can be used. The first is in reference to what is legal and not legal. There may be a law against owning a gun in your country, for example. The second use of the word is in reference to constitutional law. For example, if a constitution declares that you have a right to keep and bear arms, then that is a lawful thing to do, and any law (in the first sense) that does not abide by that constitution is itself an unlawful law.
There is yet another meaning. Lawful is what is in harmony with natural law. It is, for example, lawful that a person should be able to protect and enjoy the fruits of his own honest labour. It seems to me that today we have a tendency to use the word almost exclusively in the first meaning, whereas in the past there was more of a tendency to use it in the latter (or at least second) meaning. This has caused a lot of misunderstanding.
For example, in the British Bill of Rights protestants (Catholics were seen as enemies of the nation back then) were allowed to bear arms “according to law”. This declaration came about because kings had violated this right in the past. Clearly the document is not saying “you can bear arms, but we can change the law anytime we want”. What then would have been the purpose of it being declared in the Bill of Rights in the first place? Would the people have accepted such an absurd thing? But if we understand that the writer was using the term in the second or third sense listed above, then it makes sense. Today we are fast moving toward the belief and situation that people may bear arms in the UK only if the government says so, and the government says "no". This makes a mockery of the whole concept of just law.
Law, the Organization of the Natural Right of Lawful Defense
Frederic Bastiat defined the law as the “organization of the natural right of lawful defense” (The Law, p. 3). Let’s break this down…
1. Organization. Government is an organization. It is not anarchy. There may well be a natural right to self-defense but it alone does not inhibit anarchy. The strong or more numerous take advantage of the weak or less numerous. Bastiat added that “If every person has the right to defend – even by force – his person, liberty, and his property, then it follows that a group of men have the right to organize and support a common force to protect these rights constantly.” (Ibid. p.2)
2. Natural right. “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...” (Ibid. p. 2)
3. Lawful defense. “Each of 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?” (Ibid. p. 2)
The Proper Functions of Law
“Law is force,” Bastiat states, “…consequently, the proper functions of the law cannot lawfully extend beyond the proper functions of force.” (Ibid. p. 24)
Law is thus defensive in nature. It is a negative concept. “The purpose of the law,” says Bastiat, “is to prevent injustice from reigning” (Ibid. p. 25) which he contrasts with the technically incorrect definition - that its purpose is to “cause justice to reign”. (Ibid. p25)
When a person is, by the law (and thus force) kept within the bounds of justice, that same law imposes nothing upon him but a mere negation – that is, it obliges him to abstain from actually harming others. This law does not violate his rights, they safeguard all of them equally as they will, under such a concept, for every person.
What Is A Right?
There is a lot of confusion and misunderstanding concerning rights and duties today. The word “rights” is used with even more flexibility than “law” in the modern world.
A “right” has been defined as something you may lawfully (third definition!) do without asking permission of another, because there is no higher earthly authority than yourself. This definition thus is in perfect harmony with the view that rights are inherent, inalienable and equal. But it is a view that is entirely incompatible with what we might term the collectivist view of rights. Collectivists tend to view rights as something that are more of a social construction than naturally inherent.
And this is where the whole problem begins. To someone who espouses the view of natural rights, the word “right” is not even acceptable in the collectivist sense because it is diametrically opposed to the natural-law definition. The adherent to the concept of natural rights must rightly not only correct the collectivist definition, but change the word itself. Why? Well, despite the use of the term, collectivists actually do not believe in rights at all; they believe in “privileges”.
In the usage and documents of natural-law adherents you will see that rights are “declared”, but in collectivist literature and parlance they are “granted”. Clearly, a right cannot be granted if it is inherent.
Rights & Duties
With these concepts in mind we can proceed with understanding a bit more about the negative concept of law.
All rights have attached to them a corresponding duty in others. A simple example of this would be that if a person has a right to life, then other people have a duty not to take that life from him. The duty is a negative one. A person does not have the right to compel another to keep him alive, but he does have a right through just law to compel him not to take his life (through self-defense and/or, through extension, the mechanism of the police and court powers of government).
Today we hear many voices claiming “rights” that compel others to a positive action. When this occurs rights – or rather their exercise – is not protected but actually violated. It causes injustice to go unpunished! An example of this is the belief some have that there is a “right to be hired” which acts as a foundation for compelling business owners to have to bow to some other force and perhaps end up hiring the person they would not have freely hired if left to their own free decision. Here we can see that the so-called right to be hired actually violates the business owner’s right to contract about his own affairs about his own business and his own property (his money). This is a good test to see whether a right is genuine: if it violates another’s rights by compelling them to some positive action then the claimed right is not a right at all.
Acquired Rights & Duties
I will just mention here that there is another aspect which should be brought up, just to cover the whole ground. The right to contract about our own affairs creates what are called acquired (or assumed) rights and duties. Of course, no rights and duties are really created because they emanate from an existing right and duty which is essentially the right to contract about our own affairs – be it our life (or time), liberty or property.
For example, I cannot compel someone to give me money (that’s theft!) but if they enter into a binding agreement to pay me a certain amount of money and fail to do so then I can compel them (through the law) to fulfil their freely assumed duty to me. And the reason why is because they have agreed to have no more right to that portion of their property under the terms freely agreed in the contract (usually for some service or product) which it is their right to do because it initially belongs to them.
A Final Word
From Bastiat of course…
“Law is solely the organization of the individual right of self-defense which existed before law was formalized. Law is justice.” (Ibid, p. 69)
In the next hub we’ll be looking more at the right to own and control property and why it is so essential to liberty and how that fits in with the role of government.
Bastiat’s “The Law” can be found online in Spanish, English and the original French at: http://bastiat.org