All Commentary
Tuesday, March 1, 1983

A Legal System for a Free Society

Bertel M. Sparks is Professor of Law at Duke University School of Law, Durham, North Carolina.

The idea of a legal system for a free society might appear to be a contradiction of terms. The existence of a legal system implies that there are laws; there are rules of conduct; there is authority; there are penalties for disobedience. Law necessarily involves the application of some kind of force to some fellow human beings. That is the law’s method of enforcing its rules, and without enforcement there is no law.

On the other hand, a free society tends to suggest an atmosphere of freedom, a freedom to follow one’s own inclinations, a freedom to pursue one’s own happiness without taking thought of the happiness of others, a freedom to act upon one’s own desires regardless of what those desires might be, an absence of restraints.

The apparent contrast thus presented is a contrast between freedom and authority. And when presented in that form, not only do the two concepts appear to be mutually exclusive, but the free society appears more attractive than law. This even suggests the conclusion that the enhancement of freedom depends upon the curtailment of law, and that total freedom requires the total absence of law.

In spite of any apparent attractiveness the absence of law might have, it is doubtful if it offers a satisfactory route to a free society. If individuals are to be free there must be a system of law with power to prevent the violation of that freedom. From this it follows that if either freedom or law is absolute the other cannot exist. If the two are to be brought into harmony in order that both may survive, both must be clearly defined and the limitations on each must be clearly understood.

There are almost as many definitions of law as there are lawyers. But when all these definitions are distilled and reduced to their most elementary forms, they all involve the application of force to fellow human beings. The method of the law is to place the power to use force in the hands of certain human beings in order that it may be used to prohibit, punish, or restrain certain kinds of action by other human beings. But a statement of that process fails to explain how the application of force by some human beings against other human beings can en hance the freedom of all, including even the persons being restrained. But unless that is its result, there is something wrong with the assertion that law is a preserver of freedom.

In Case of Conflict

A free society is sometimes defined as a society where individuals are free to act according to their own wishes. But that state of affairs cannot exist unless there are no conflicting wishes. And it is highly unlikely, as well as less than desirable, that the total absence of conflicting wishes could ever exist among humankind. If John wishes to kill Sam and Sam wishes to stay alive, it is impossible to carry out both of their wishes. In like manner, if both John and Sam wish to occupy exactly the same space as a home, either one or the other of them will be frustrated in his purpose.

Neither John nor Sam can enjoy any freedom that is not available to the other. If Sam’s life is to be preserved, John’s desire to kill Sam must be restrained. If Sam is to have any absolute right that his life will not be molested by John, it is necessary that he submit himself to an absolute guarantee that John’s life will not be molested by Sam. If even minimum freedom is to be accorded to any individual, some system of restraint must be applied to those who are inclined to interfere with that freedom. No one can be free unless there is law and a government with power to enforce that law.

It should come as no surprise that the most frequently offered justification for the use of force by one human being against another is that it is necessary to the protection of freedom. It is a means of restraining one individual from interfering with the freedom of another. Probably the most frequently expressed fear of the use of force is that it might be used to enslave rather than to protect. And the experience of humankind is that it will be used to enslave unless the area for its permitted use is clearly understood and rigidly observed.

Since the method of the law is to employ a kind of organized force to prohibit, punish, or restrain certain kinds of human action, the problem is one of developing a clear understanding of what human action must be prohibited, punished, or restrained and what human action must be protected. Just as the citizen must not be permitted to murder, steal, or perform other antisocial acts under the pretext of exercising his freedom, so must a government be restrained from enslaving its citizens under the pretext of exercising some proper governmental function. The solution of the problem lies in finding a workable concept of limited government. Almost everyone is willing to declare a belief in limited government, but very few are prepared to define limited government or to explain what limits should be employed.

The Limits of Government

Too often it is assumed that a government whose officials are chosen by the governed is a limited government, and that one whose officials are determined by heredity or other means where the citizens have less participation in the choice is not a limited government. Such a distinction is spurious at best and has very little, if anything, to do with the presence or absence of freedom. Systems of comparative freedom as well as systems of extreme tyranny have existed in monarchies, republics, democracies, and every other form of government the human mind has thus far been able to design.

The form doesn’t seem to control the rules that are enforced. The significant limits that go into the making of a “limited government” are limits upon what the rulers may do rather than upon how they get their jobs. Too much emphasis upon how the rulers are chosen might even have a tendency to mislead the citizenry into a readiness to accept absolute tyranny so long as they are permitted to vote for the tyrant.

If the term “limited government” has any meaning at all, it must mean that there are limits upon the rules, restrictions, or restraints that may be enforced against individual human beings regardless of the form of the enforcing power. But that ]eaves open the question as to what those limits are. What standard should be applied to determine whether a particular restraint upon individual human action is within the limits permitted in a free society?

Approval of a proposed restraint by the ruling monarch, the elected officials, or even a majority of the citizens in a popular plebiscite is not necessarily sufficient justification for its application. There must be some external standard, some recognizable guide, by which a particular restraint might conceivably be found unacceptable in a free society regardless of the universality of its approval. Unless such a standard does exist, there is no freedom for the individual whose thoughts are not inharmony with the thoughts of the majority. Such a predicament can hardly be described as the hallmark of a free society.

Since law is a form of organized force applied by one individual to restrain or control the conduct of another individual, its every action should be exposed to the most careful scrutiny of which the human mind is capable. There must be an answer to the question, “From whence comes the authority of one individual to use force to restrict or control the conduct of another and for what purpose may that force be applied?”

A Society Without Laws

The inquiry might begin with an examination of the possibility of a society without a legal system, a society where everyone is free to do his own thing. That would mean taking a look at what is sometimes portrayed as the romantic view that human life on earth began with a population of autonomous individuals freely roaming the countryside with each one gathering his fruits and capturing his game wherever and whenever he could find them. But on the doubtful assumption that such a period did in fact exist, its romantic aspect tends to fade when it is remembered how little it must have offered in the way of either material well-being or personal freedom.

There is little freedom for the individual when he is surrounded by other individuals who might take his life at any moment. Once primitive man had gathered his fruit or captured his game under these conditions, he had no assurance that he could eat his newly acquired provisions before they were snatched from him by an intruder. Whatever freedom he had, he was not free from attack. The defense of his person, like the defense of the possessions which he claimed as his own by virtue of his having taken possession of them, required that he be constantly on the alert. His freedom was limited by the dangers that were always around him and always ready to close in upon him if he allowed his attention to drift.

In such a society there was little inclination to gather more food than could be consumed on the spot. But in light of the existing conditions, that might not have been a particularly severe restriction. Primitive man was faced with more immediate problems. His primary concern was for survival, and his struggle for survival took most of his time. He was in a hostile world where almost everything he needed was in short supply. The food was there but it was not often in a form to be taken and eaten without effort. He obtained his bread by the sweat of his brow. Appropriate materials for clothing and housing were also present, but work was required to reduce them to possession and put them into usable form. Being without tools and compelled to rely upon the cunning and skill of his own body for defending his own life, capturing his food, and defending his food after it was captured, he had difficulty finding time for gathering more than the necess ities of the day. The division of labor had not been discovered; the friendly neighborhood policeman had not arrived.

The Practice of Self-Defense

Even before primitive man had articulated any theory concerning his existence or his right to the earth’s resources, his actions laid the foundation for a theory that has not been improved upon to this day. Long before he was able to formulate any justification for his action, the aboriginal was ready to fight back when he was pushed to the wall. He was ready to defend his own existence, his life. Without offering any definition of self-defense, he practiced self-defense. In like manner, once he had reduced the wild game, fruits, or other natural resources to possession, he didn’t hesitate to defend his possession. He claimed the captured product as his own.

Future philosophers might explain that he had a right to defend his life simply because he was alive; he had a right to defend his prey because it was the product of his own labor. But primitive man offered no explanation, at least none that could be passed on to future generations. Whether it was a problem of defending his life or his property he didn’t philosophize about his right to use force against his fellow creatures; he used force. He was in a harsh world and he acted accordingly. But there were limits.

As soon as he extended his use of force beyond the defense of his person and the defense of the goods he possessed as the fruit of his own labor, he found himself encroaching upon the person or the goods of some fellow creature. He met resistance. He learned that his fellow creatures claimed the same right to self-defense that he claimed for himself. And both he and they learned that if they were to improve their material well-being, or even survive, they had to find some way of defending their lives and their property.

The Division of Labor

In such a world the day must have arrived when, instead of being content with either climbing a tree in pursuit of his fruit or taking only what he could reach from the ground, somebody somewhere picked up a long pole, made a sweeping strike at the branches, and brought down a whole shower of fruit. That strike was more than a significant technological step forward in the use of tools. It brought with it a complex economic problem and an even more complex legal problem. Here was a man with more food than he could possibly consume at one sitting. What could he do with it? Maybe he could trade it to someone else for skins he could use for clothing. But then there was the problem of protecting the goods while the lucky entrepreneur looked for customers. He needed some rules that could be enforced against intruders. Could he signal to other members of the family and begin the assignment of jobs? Maybe someone would guard the store while others continued to use the newly discovered club to gather more fruit with increased efficiency and still others would search for customers. The division of labor had been launched; the seeds of government were being sown.

As to whether a development ever took place in the precise manner just described, we can only guess. What we do know is that either it or some similar transaction did take place. There was a transition from an individualistic to a shared system for the acquisition of the necessities of life. A division of tasks and an elementary form of trade or barter did develop.

Private Property and Trade

A serious problem remained. A surplus of food in the hands of a producer, any producer, was a fortunate development. But the thought of using that surplus in trade was both revolutionary and dangerous. A search for customers meant revealing the existence of the surplus to an uncertain number of prospects. It was just possible that any one of these prospects might choose to get the merchandise by deception or force rather than by honest trade. A means of self-defense was still necessary. That defense had to extend to one’s property as well as his person.

As long as each individual was compelled to look out for his own defense of both his person and his goods even while he continued his search for food, the time available for the search remained quite limited. And there was almost no time at all left for the development of improved methods of production, the designing and making of tools, or the doing of other things essential to the accumulation of another surplus.

Some advantage was gained when the head of the family assumed authority over the entire family group and began the assignment of duties and responsibilities within that group. A rudimentary form of organized self-defense was being born. What had been each individual’s right and responsibility to provide for his own self-defense became an organized self-defense under the direction of the head of the family.

But this was a family of farmers. Their specialty was raising fruits and vegetables. Their limited practice of the division of labor within the family group had taught them the advantages to be gained from such an arrangement. In order to develop their specialty more fully, they desired and needed a broader base of operations. They began a search for trade with other families specializing in the hunting of game, the making of clothes, or the supplying of other goods and services the farmers could use. But if such trade and such a division of labor was to succeed, each producer needed some assurance that his store of goods would be protected while he was waiting for buyers. He also needed some assurance that his contracts would be carried out and that both he and his family would be protected from violence. A need for someone who could be made responsible for the maintenance of order throughout the whole community became apparent.

An Organized Defense Mechanism

To meet that need, the social unit was extended beyond the family group to include the tribe or other intermediate organization and eventually the national state. Governments evolved and systems of law were established. Even that development occurred at such an early date that history is unable to record when or how it happened. Maybe it began with a group of individuals coming together to employ a guard, or a policeman if you like, for their mutual protection. Maybe it began when a particularly strong man with a unique skill for swinging a club offered to protect anyone who would submit himself to the strong man’s control. The strong man provided protection while the person making the commitment gave services. The arrangement was beneficial to both parties.

As the strong man became more powerful, it is quite likely that there were times when he used force to enlarge his dominion to include even those who were unwilling to come in voluntarily. These and other theories have been put forward on many occasions and need not be restated here. Whatever the process by which the transition took place, and whether it occurred by voluntary or involuntary means, the significant thing is that a time did arrive when individuals and families gave up their responsibilities for their own self-defense and depended upon the organized defense mechanism of the appropriate social unit.

The individual still fought back to defend himself when set upon by intruders at a time when no policeman was available. But this was only in case of emergencies. Otherwise the exclusive right to use force upon other human beings was placed in the hands of government; and therein were planted the seeds of conflict, tyranny, and deprivation, as well as the seeds of peace, prosperity, and freedom. It all depended upon whether the right to use force could be held within proper bounds.

Clothed with the exclusive right to use force, governments had the power to prevent murder, stealing, and other forms of violence, as well as to restrain deceit, perjury, the breaking of contracts, and other forms of antisocial behavior. An organized self-defense was substituted for what had been an individual, or at most a family, self-defense. With the protection afforded by this arrangement, the farmer, the hunter, the shoemaker, and other entrepreneurs were free to enter into trade with each other in comparative safety. Their contractual arrangements would be carried out and their stocks of goods would be protected. Specialties were developed, tools were improved, and the material well-being of all concerned was elevated.

Government as Plunderer

But what about the dangers? A government clothed with the exclusive right to use force against its citizens had power to use that force for the benefit of those in control of the government and to the detriment of those out of control. It could be used to enslave as well as to protect. And all this could arise from apparently good intentions.

The advantages of organized self-defense were so obvious that other temptations soon presented themselves. Why not use this organized force for humanitarian purposes? When fires, floods, droughts, and other fortuitous disasters struck one segment of the population, there was a tendency for those in power and possessing the exclusive right to use force for one purpose to use that force to seize the produce of the more fortunate citizens for the benefit of the less fortunate. It seemed the humane thing to do.

The apparent worthiness of purpose tended to obscure the fact that organized force was being used to seize the fruit of one person’s labor for the benefit of another. The person whose goods were seized was having his substance plundered by the very government that was organized for his protection. If that process has the appearance of slavery, it should be remembered that slavery usually begins as a humanitarian enterprise. It is not often revealed for what it is, even to its own perpetrators, until its chains are securely fastened.

Distributing the Wealth

As the power of organized force began to be used as a means of redistributing the fruits of human labor, acts which would have been thievery and robbery if performed by individuals appeared to be humanitarian when done by an organized group of individuals. As soon as the product was routed through the hands of government, all parties concerned began to lose sight of nature’s balance which from the beginning dictated that any time anyone received a benefit he did not earn someone else was deprived of a benefit he did earn. There could be no deviation from that principle; and when the transfer was effected by force, it made little difference to the victim whether the act of force was performed by an individual or by a group of individuals who were organized into a government. In either event the producer was deprived of the product of his labor without compensation.

What was even worse, when the crisis that produced the excuse for a government’s engaging in such organized plunder had passed, there was little inclination on the part of those in control to relinquish their new-found power. Instead of surrendering the power to plunder, they tended to search for new ways to use the plunder. The most common approach was to enter upon a scheme for seizing the products of some of the more efficient producers for the benefit of the less efficient.

A program for the promotion of enforced equality was embarked upon without remembering that the only means of achieving that end was to use force to push everyone toward the standard of the most inefficient producer in the market place. That was always undertaken in the name of charity and good will. The fact was that such acts were the antitheses of both charity and good will. The bounty offered to the needy was being forcibly taken from persons who had earned it. For a time the citizenry, whether producers or non-producers, tended to believe the falsehood that was being perpetrated upon them. Eventually the more efficient producers began to wonder why they should continue their efforts if the product they produced was going to be seized for the benefit of those who failed to produce.

From Whence the Authority?

At that point there arose an inquiry into the source of the government’s power. The more thoughtful citizens began to ask where the government got its power to enact laws designed to take property from the producer in order to reward the non-producer. Any serious consideration of that question led to a deeper question concerning the source of any power in any government to do anything.

When primitive man surrendered to his government the exclusive right to use force, what limits did he place upon the manner in which that force could be used? So far as anyone has yet discovered, there were no express limits whatever. However that may be, the haunting, or even frightening, question remained: Was the power surrendered to government indeed without limits? If not, has it become so in practice? If there are limits, what are they? How can the limits be defined? What is limited government anyway? These are questions the advocates of freedom must answer. Furthermore, the answers must be clear and unequivocal.

The limits defining the extent to which organized force may be used by a government against its citizens are to be found through an examination of the self-enforcing limits upon the individual’s use of force in defending himself prior to the existence of government. Primitive man’s practice of self-defense had become commonplace long before any thought of a “right” of self-defense had entered his vocabulary. For him it was enough to know that a self-defense of some kind was essential to his survival. He had to defend both his person and his acquired possessions against hostile attack whether that attack came from the forces of nature or from fellow human beings. But it was left to John Locke and several centuries later for humanity to be offered a well-articulated philosophical basis for what had long been true in practice. Locke was not the first to give expression to the idea nor was he the last. But it was his Two Treatises of Civil Government, published in 1690, that provided one of the clearest statements of individual human rights and the function of civil government in the protection of those rights that has ever been written.

Life, Liberty and Property

Locke saw human life as a gift from the creator. From that he concluded that the giver of life gave a right to defend it. He also regarded the wealth of the world as being the bounty of all humankind in common. But since every individual had a right to the integrity of his own body, everyone had a right to the product of his body, the product of his own labor. Therefore, the indi vidual could by his own labor, by exercising his own liberty, remove a thing from its state of nature and place it within his private domain. Once that was accomplished, he had a right to defend his possession just as he had a right to defend his life and his liberty to use his life in a manner pleasing to him, that is to say, he had a right to be let alone.

Although Locke stated his thesis in several different forms, it is often summarized as a declaration that every individual has a right to life, liberty, and property. The same doctrine is expressed in the American Declaration of Independence where it is expressly declared that all in dividuals have been endowed by their creator with the rights to “life, liberty, and the pursuit of happiness,” and that these rights are “unalienable” (sic).

While expressed in different words, the statement from Locke and the one from the Declaration of Independence appear to be identical in their meaning. Each of them means that every human being is entitled to life, a freedom to use that life as he wishes, and possession and enjoyment of all things acquired through the legitimate use of that life in the performance of his own work and labor. An analysis of these basic principles provides an incontrovertible definition of limited government.

Government Empowered to Defend

Locke used the Judaeo-Christian religious tradition, which was his religious background, as the reference point for his reasoning, but that tradition is not essential to the validity of his thesis. The thesis itself concerns the inherent right of every human being to defend his own life. That concept is applicable to every religious tradition or even the absence of any tradition at all.

Since the law is a form of organized force and since government is the instrumentality through which the law operates, the problem is one of defining the limits to the force that may rightfully be applied to individual human beings. It is a matter of identifying the boundaries within which organized force may be used to compel human action in a free society. Government is a human institution and possesses only such powers as it has received from individual human beings. It has no other source of power, and it cannot receive from individuals any right or power which the individuals did not have.

Primitive man used force against his fellow creatures when force was necessary to provide his own self-defense. When he surrendered to government the right to use the force in his behalf, he surrendered to government the right to use that same force to provide an organized self-defense. Organized self-defense was substituted for individual self-defense. The individual did not confer upon government any right to use the force for any other purpose. He did not because he could not; he could not because he didn’t have that right in the first place.

The Use and Abuse of Force

As a human being the individual had a right to life. That included a right to defend that life, a right of self-defense. Such a right could not exist in any one person unless it existed in all persons. If any one individual used force against another human being for any purpose other than self-defense, he would be infringing upon that other person’s right to life, liberty, or property. It would be an attempt to take from that other person an inalienable right.

This is not to say that primitive man never used force and violence against his fellow creatures in a

wrongful manner. So far as is known, a tendency toward excessive use of force for all kinds of purposes, both worthy and unworthy, were there from the beginning of human existence. At least the tendency was there from the time a certain crop farmer named Cain murdered a meat farmer named Abel as a means of settling a trade war between crop farmers and meat farmers. But any such excessive use of force was a wrongful act, not an act that could be exercised as a matter of right. And to characterize it as a wrongful act is far more than a value judgment arrived at by modern humanity. It was always wrong; and, in the nature of things, it can be demonstrated as being wrong.

Rights of Universal Applicability

In order for anything to be right as a matter of principle it has to be capable of universal application. It has to work. If Cain had an unqualified right to slay Abel without cause, it must be equally correct to say that Abel had an unqualified right to slay Cain without cause. To state such a proposition is to illustrate its self-contradictory aspect. The sound conclusion has to be that neither Cain nor Abel had any arbitrary right to slay the other, but that each of them had a right to life which entitled each of them to defend his own existence.

Abel’s right to his own life entitled him to fight back against Cain’s unprovoked attack if he had chosen to do so. Abel had a right to defend himself. Why he did not exercise that right is not known. The circumstances seem to indicate the likelihood that the attack came so quickly and with such finality that there was no opportunity for its exercise. In any event, the right itself was there; otherwise, there could be no right to life.

The individual’s right to life included a right to use that life as he saw fit. He could work or play; travel or remain at home; study, learn, and improve his intellect or loaf and remain dull. This right to use one’s life in a manner most pleasing to himself was identified by Locke as a right to liberty. Since every individual had a right to liberty, no individual could have a right to interfere with the liberty of another. Such interference provoked in the individual whose liberty was being curtailed a right of self-defense. The aggrieved party could fight back in defense of his own liberty. He had a right to liberty as well as a right to life in its more narrow or restricted sense.

The individual might use his liberty, his right to use his life in a manner pleasing to him, to capture game, gather fruits and berries, or otherwise extend his dominion over the available goods of the earth. When he did so, he removed the goods from the common storehouse and reduced them to his private ownership. It was his right to life, his own person, his own labor, that gave him a right to claim that particular portion of the earth’s bounty as his own. It was his because it was the product of his labor. No other person had a right to interfere with his ownership. His right to life plus his right to liberty in the use of that life combined to give him a right to the product of his own body. He had a right to defend that product of his life just as he had a right to defend life itself. He had a right to life, liberty, and property, thus completing the trilogy made famous by Locke long after it came into operation as a fact of common experience. The individual’s right to self-defense was a right to defend and protect his life, his liberty, and his property.

A Self-Limiting Right

The exercise of the right of self-defense is the only circumstance in which any individual is entitled to use force against another individual. The right itself is a negative right, a right to fight back when one’s life, liberty, or property is being molested or threatened. It does not include any right to take affirmative action against one’s fellow creatures except when the action taken is in defense of these basic rights.

When Cain launched his physical attack upon Abel, he was in direct conflict with Abel’s right to life. A similar right of self-defense would have been encountered if the attack had been upon Abel’s liberty or his property. Thus it is that the right to use force in one’s own defense is a self- limiting right. It is made self-limiting by its universal quality.

Since everyone has a right of self-defense, no one can have a right to play the role of an aggressor. The very law that gives everyone a right to use force in his own defense prohibits everyone from using force for any other purpose. Anyone who attempts to do so infringes upon the right of self-defense in someone else. The law of self-defense says thus far and no farther. And in making that assertion, it sets forth the boundaries of limited government.

Hiring a Policeman

If government exists for people, not people for government, then government can have only those powers it receives from the people. And people cannot confer upon or surrender to government any power which they do not have. As a primitive, uncivilized man, a fellow named Johnny might have stood alone in his struggle to defend and protect his life, his liberty, and his property. In doing so, Johnny was fighting for his own protection, his own freedom. The task was a difficult one. It consumed a major portion of Johnny’s time and attention. It restricted the amount of time Johnny could devote to his search for food, clothing, shelter, or other comforts of life. What is worse, anything Johnny acquired increased his burden of protecting and defending his possessions.

Under these circumstances, Johnny found it advantageous to join with all other Johnnys who were similarly situated in the organization of a protective agency of some sort to provide for their common defense. They were searching for ways to increase their freedom, their freedom to pursue their occupations rather than having to devote so much time to their defense. They established a system of organized force, that is to say, they hired a policeman. They surrendered to their newly created organization a right to use force for the protection of the whole community. Whether or not there were any express limitations upon the extent to which that organized force could be used against individual citizens is unimportant. The limits were set by the nature of the rights held by the individuals who surrendered them to the government in the first place. The only rights the individuals had to use force upon their fellow creatures were rights of self- defense.

The Uses of Government

The legal system appropriate for a free society would appear to be a system where the only laws are those designed to provide an organized self-defense for all citizens within its jurisdiction. Since the only purpose for which the individual had a right to use force against his fellow creatures was in the defense of his rights to life, liberty, and property, his government could not receive from him any right to use force for any wider purpose.

Any attempt by government to use force against a citizen for any purpose other than the defense of other citizens is a usurpation of power to perpetrate the very thing government was established to prevent. It is an invasion of the citizen’s inalienable right to be let alone. Furthermore, it is incumbent upon any individual who claims any greater right for his government to set forth the source of the authority for the right claimed.

There might be situations where it is difficult to decide whether a particular law is in the interest of self-defense. A law denying carriers of communicable diseases access to public places might present such an example. So might a law prohibiting the building of houses in a manner to constitute fire hazards to neighboring structures. No doubt many other such examples can be expected to arise from time to time. But if there is agreement upon the meaning of limited government, ways can be found to solve these particular problems as they arise. That is the function of the courts.

The important thing is to maintain a known and workable standard. The law of organized self-defense founded upon the inherent right of individuals to defend their lives, their liberties, and their property provides that standard. It includes the right of society to restrain or prevent antisocial conduct, antisocial conduct being defined as any conduct that infringes upon the life, liberty, or property of any other person. These are defensive acts employed to prevent human behavior that is inconsistent with the freedom of others. They had their origin in the individual’s right to self-defense. They are designed to preserve freedom. They derive their validity from their having been surrendered to government by individuals who claimed them as part of their inherent rights to life.

A More Efficient Procedure

The economic advantages of organized self-defense over individual self-defense were readily apparent as soon as the organized type was put to use. A comparatively few people armed with the exclusive right to use force could maintain the peace throughout an entire city, county, state, or other geographic area. Other citizens could devote their full time to the production of goods and services they could use in trading with each other to the mutual benefit of all concerned.

A division of labor where everyone tended to devote his best efforts to his chosen specialty began to develop. It did not arise from any planning committee, government agency, or any other group effort. It was the natural consequence of each individual doing what was in his own best interest within the confines of his not interfering with the life, liberty, or property of another. And the only thing that was in any individual’s best interest within that restriction was to produce something or provide some service that someone else wanted at a price such other person was willing and able to pay.

So long as all trading was entirely voluntary, that is to say without government intervention by force, every trade was advantageous to both parties to the trade. Each party received something he wanted more than he wanted the thing he gave up; otherwise, there would be no trade. The skilled shoemaker could devote his time to the making of shoes without worrying about the prospect of having his goods plundered by an intruder before they were used. The neighbor next door might have been a farmer who was growing wheat. Surplus wheat could be traded for shoes to the mutual advantage of both parties. In such a society a skilled builder was likely to emerge who could offer to build houses for both the shoemaker and the farmer as a means of obtaining both his shoes and his bread. Other specialties were developed and the division of labor became a way of life.

Progress through Freedom

The more complex and the more diversified the economic affairs of the society became, the more destructive were any efforts toward control or central planning. The key to continued improvement in the individual citizen’s economic well-being was always and at every stage of development a freedom to make one’s own choices. Where that freedom has been preserved, the standard of living for those at the lowest level of the economic scale has tended to increase at an accelerating rate.

But even if the economic advantages of organized self-defense did not exist, the continued importance of the doctrine could still be justified. It is the most effective instrument yet discovered for the protection of individual human rights. It recognizes law as being a system of organized force. In doing so it limits the use of that force to the protection of the individual’s rights to life, liberty, and property. By prescribing these basic rights to be inviolate, it encompas ses all those other concepts popularly referred to as “civil rights” but which tend to get lost when they are discussed without reference to the foundation upon which they all rest.

The boundary placed upon the use of force not only supplies a concrete and clearly understood definition of limited government; it also defines the function of government, a concept too often ignored! It prescribes that government exists for only one purpose. That purpose is to protect individuals in the exercise of their rights to life, liberty, and property. It demands that otherwise all people be let alone; or as Jefferson put it in his first inaugural address in 1801, “. . . a wise and frugal Government, which shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned. This is the sum of good government.”

  • Bertel Sparks, a native of Jackson County, Ky., was a professor of law at Duke University and taught in Harlan and Jackson County Schools. During World War II, he served as a special agent with the Counter Intelligence Corps. He was professor of law at New York University from 1949 to 1967.