The End of the law is not to abolish or restrain but to preserve and enlarge freedom. For in all the states of created beings capable of laws, where there is no law there is no freedom. For liberty is to be free from restraint and violence from others; which cannot be where there is no law; and is not, as we are told, a liberty for every man to do what he lists (for who could be free when every man’s humour might domineer over him?), but a liberty to dispose, and order as he lists, his person, actions, possessions, and his whole property, within the allowance of those laws under which he is, and therein not to be the subject of the arbitrary will of another, but freely follow his own.
-John Locke, Second Treatise on Government
The recent rise of militant nihilism¹ in the United States is reminding liberty lovers that there can be no liberty without law. Not only is there no freedom without restraint, but we gain freedom only as we discover and obey "The Law."
Unfortunately, however, "Law" has come to mean, more and more, the decrees and dictates of the State, or Government: traffic laws, tax laws, labor laws, civil rights laws, antitrust laws, school laws, and the orders of thousands of agencies employed to interpret and enforce these measures.
The "Law" may also mean the Enforcer: agencies and procedures for enforcement — the police, courts, and penal institutions.
But not all of these government fiats and enforcement agencies are necessary to preserve peace or enlarge freedom. In fact, the people of every nation could enlarge their freedom by repealing many laws on their statute books and by reducing the number of officials now trying to enforce these restraints.
Governments impose these restraints on liberty in order, supposedly, to check abuses of freedom. And, as the victims grow accustomed to their shackles, they are apt to shudder at the evils that they imagine might ensue if they and their fellows regained their freedom.²
In other words, it is hard for us to reconcile our desire for freedom with our knowledge that freedom is so often abused. Therefore, we give lip service to freedom; we say that we really believe in free enterprise, that we honestly want more freedom for everyone. Yet most of us tolerate flagrant political infringements of freedom and then demand still more laws to deal with evils which these infringements produce.
We should know that freedom in any activity is always misused sooner or later by someone. No one has the complete knowledge necessary to do always what is right, either in private or in relations with other persons. No one has the infinite wisdom or self-control necessary to avoid misusing the new opportunities which a progressive society is continually opening for its members. Doctors, nurses and teachers, as well as politicians, bankers, salesmen and artists, often abuse whatever freedom they have.
From this fact, the unthinking conclude that humans are unfit for freedom. They think of human progress, therefore, in terms of more and more use of government force to restrict freedom whenever or wherever anyone misuses it. Moreover, they often seek to abolish it where abuses are relatively few because it is politically easier to put restraints on the few than on the many.
Yet, it is from the actions of a few whom their fellows regard as foolish or dangerous, that we sometimes reap greatest benefit. "Freedom" to do only what someone else says is right is not freedom but slavery; and a society of free persons who know and choose to do only what is wise and good is a utopian dream.
What, then, is "The Law" which increases freedom as contrasted with the governmental edicts, which so often retard and restrict it? How do we discover "The Law" of a free society, and how do we enforce it without erecting a freedom crushing State, or Government?
Law as a Regularity vs. Law as a Norm
In science and philosophy, a law is a uniform order, or sequence, of events. In human conduct, it is a pattern of behavior, regularly repeated, and therefore predictable. These regularities, or laws, of human action may be psychological, economic, moral, or juristic, and perhaps aesthetic and political.
The laws of human action, however, differ from the laws of inanimate nature as humans differ from inanimate matter. Humans differ from inanimate objects in that human actions are purposive, as are the actions of all living creatures. They act from internal motive forces necessary to maintain life, rather than in direct response to outside physical forces. This makes their conduct variable and less predictable because the internal structures and life forces vary from one individual to another. This individual variation is greater for the higher, more complex organisms; and it is greatest for humans of every race, age and condition.
More significantly, humans differ from all other living creatures by being self-responsible. That is, they can learn to be consciously self-directing. Their actions result from choice rather than from instinct; and since humans choose to pursue an endless variety of self-determined purposes, any individual in a particular instance may depart from the behavior sequence which the praxeologist (scientist in the field of human action) sets forth as a "law," or regular mode of action.
The jurist, therefore, in common with other praxeologists, finds that the regularities, or laws, with which he deals are norms — normative rules, standards, expectations, probabilities, or "oughts" — rather than the (more nearly) invariable sequences which the physicist or the chemist may discover and call "laws."
Interpreted most broadly, therefore, "The Law" in human affairs means the norms or system of norms, for human behavior. A specialist in this field (a lawyer or jurist) may concern himself only with the rules and standards actually prevailing in the community to which his clients or other parties belong.
The Law in human relations, accordingly, consists of all of the rules, customs, and standards that affect the decisions of juries and judges. It includes not only written statutes and ordinances, rules of procedure in courts of law, and prior court decisions, but also pressures and prejudices which may influence a jury’s vote or a judge’s determination of the law in a particular case.
More narrowly, philosophers of law describe it as that entire complex body of rules, judicial decisions, and usages which prescribe the actions of individuals and groups toward one another and which are enforced by sanctions.
"Sanction," in this use of the term, means "detriment, loss of reward, or coercive intervention" to restrain, injure or inconvenience offenders. The sanctions for law may consist of counter-aggressive retaliatory force: seizure of property (fines), imprisonment, or physical injury (flogging, maiming, or execution).
Or, more often, these sanctions take the form of defensive actions, such as shunning the offender and using force merely to block attempted trespass or aggression. The defensive action may be cooperative, such as, for example, the exchange of information to alert one’s neighbors or the members of an association to the offender’s variation from the sanctioned norm.
Thus, a member of a credit association may report for the benefit of other members that a customer has failed to pay his bills. Or, the action may involve forming a voluntary association to block aggression by united action in erecting defenses, such as building walls and hiring watchmen.
Let us note at this point, moreover, that the defensive responses to trespass are far more frequent and more effective than the coercive reactions.
Origins of The Law
The Law — these sanctioned norms of human conduct — originate in the claims of individuals and in their actions to gain recognition and respect by other persons for these claims. As a dog whirls in a pile of hay or straw to make his sleeping place, so each individual makes for himself a place in nature and among his fellows as he acts to support his life and rear his offspring.
It does not follow, however, that these acts to support one’s life must be predatory or that the actions to establish necessary claims (as for example, a claim to living space) must be aggressive and injurious to others. Humans make a better living by division of labor and voluntary exchange of services than by stealing or by producing merely for their own consumption.
For this reason, those who practice and defend the ways of peaceful, voluntary cooperation tend to "possess the earth." These peaceful usages become customs and mores, and finally acquire the sanctions that make them Law.
When Law and Freedom Are Underdeveloped
Members of primitive societies, of course, have only a primitive (scanty, undeveloped) understanding of The Law in the ideal sense. Therefore, their laws are primitive. This makes their culture primitive and restricts their level of living to one which makes their lives brutish and short.
That is, primitive societies recognize few claims of individuals to exclusive use (ownership) of land and its products: they recognize few claims to individual ownership of capital goods (such as a boat or even a hut); and they acknowledge few claims to control (ownership) of the individual’s own energies and person. Still less do they acknowledge an individual’s claims to private enjoyment (ownership) of what he may gain from trade with outsiders; and not until a society reaches a comparatively advanced stage of culture do its members permit individual claims to rent or interest earned by loans of property (that is, claims to gains from sale of the uses of property).
Members of such societies use their energies and resources inefficiently. They carry on little agriculture, devise few tools or machines, do little trading, do little building, and have no landlords, bankers or capitalists. That is what we mean by saying that their culture is "primitive." Their economy is "backward," or "underdeveloped"; and the people are "poor" (lacking in capital, or wealth). The individuals lack freedom (rights of ownership) to use their energies or the products of their labor and enterprise to enrich themselves. For lack of law establishing these rights, they are in bondage to the collective. This bondage restricts development of individual talents. Consequently, their social relations remain unprogressive, and their lives remain relatively mean and poor.
We should not infer from this, however, that the members of primitive societies live in a state of perpetual war with one another or with members of their communities. Popular though the notion may be, it is a myth that "savages" live in a "dog-eat-dog" state of incessant warfare and turmoil because they lack the officials and procedures of modern governments.
The contrary seems to be nearer the truth. The social relations within tribes of primitive cultures often appear more tranquil than those prevailing within and between those of more complex cultures.
The reason for this apparent tranquility may be that the tribe members punish violators with such certainty and severity that few dare to challenge the mores, as one might, for example, by trying to keep for his exclusive use what others believe should be shared. (Similarly, the relations between master and slave may appear peaceful because of the threat of dire penalties if the slave disobeys the master’s orders; and relations within a trade union or between the unions and employers may appear peaceful because no employee or employer dares challenge its rule.)
The lack of recognition for individual property claims — in other words, the lack of property laws — means that, in a primitive group, any individual who keeps for himself the fruits of his labor may have sanctions applied to him much like those which an advanced community applies to a thief.
Yet, because ambition is stifled, members of a primitive society may appear to suffer less feeling of conflict with their fellows than members of more civilized and progressive societies; and they may share their meager fare generously with a passing stranger.
Claims — Strains — Progress
In more advanced and progressive societies, the growth of wealth and changes in ways of living produce ever more numerous changes in occupations and techniques. These changes continually give rise to new individual claims and conflicts, as, for example, claims to ownership of one’s signature and conflicts with would be trespassers (forgers). Out of these claims, pressed by the actions and arguments of interested individuals, come new usages, customs and laws — but not without stress and strain.
The stresses which arise from disputes over new claims may result in dangerous outbreaks of destructive violence unless there is a general, deep commitment to nonviolent methods of settling disputes. Insofar as this commitment to peaceable settlement of conflicting claims prevails, we find peace and progress.
This commitment to peaceful methods of settling disputes requires acceptance of the basic principles of The Law while discovering and learning to accept new applications of these principles.
Whence comes this commitment to nonviolence? Whence comes the rationale for non-interference and for individual rights that permits the development of property laws necessary for the growth of capital and for the human progress which increasing capital supports? In short, whence comes The Law which preserves the peace and frees the individual to prosper and progress?
The Way to Peace
On the one hand are those who profess to find that the fountain of law and justice is the tribal Chieftain, the King, the State, or the Government. In this view, the establishment of order, peace, and freedom must await the formation of a Government which claims and secures a monopoly of the law making process, and which aggressively applies whatever coercive, retaliatory sanctions may be necessary to frighten people into obedience to its decrees.
According to this view, too, peace between these governments will come only when a World Government acquires the overpowering military forces necessary to subject all competing Lawmakers and Enforcers to its authority.
Opposing this view are those philosophers of law who see in the monopolistic, retaliatory State a lawless organization which wins power by promising peace but which always sooner or later becomes the chief lawbreaker and warmonger. Worshipful reliance upon this political juggernaut, they warn, now threatens all mankind with enslavement and destruction.
The same unreason which approves retaliation and terroristic penalties for violations of the State’s decrees gives rise to the collectivistic tyranny of the war-making State and finally produces the mob violence and civil war which mark its own decline and demise. Human progress, these juridical philosophers contend, requires an end to retaliation by States no less than by individuals, "Vengeance is mine: I will repay, saith the Lord."
In this anti-statist view, The Law is not devised but discovered; and this discovery can be made only by the exploratory actions and "right reason" of free, self-governing individuals. The truly progressive lawmakers then, are all of the countless individuals who practice, defend, and expound the norms of peaceful action in support of human life.
Thus, men of peace who recognized and tried to practice self-responsibility developed the jus gentium ("law of nations") of Ancient Rome. Similarly, their moral successors discovered, lived by and taught the medieval and modern "Law Merchant" of the Western World and the "Common Law" of the English speaking nations.³
3 In the words of Cicero, "True law is right reason in agreement with nature; it is of universal application, immutable and eternal…. We are not allowed to alter this law, nor is it allowable to attempt to repeal any part of it, and it is impossible to abolish it entirely. We cannot be freed from its obligations by Senate or by people, and we need not look outside ourselves for an interpreter of it. There is not a different law for Rome and for Athens, or one for now and one for the future, but one eternal and unchangeable law valid for all nations and all times… Whoever is disobedient is fleeing from himself and denying his human nature." De re publica, III, 22, quoted by Louis Rougier, The Genius of the West (Nash Publishing Corporation, Los Angeles, California, 1971), p. 27.
The sanctions for The Law, as it has developed in the most advanced societies, no longer include retaliatory action by "unauthorized" (private) persons. A private citizen may kill a trespasser or thief with impunity only when he has reason to believe that the trespasser menaces his own life and that of others on the property. He may not, legally, pursue and kill the thief or trespasser who is running away. The wronged husband or wife may not vengefully kill an errant spouse. That so-called "Unwritten Law" in such cases is being repealed.
Consistent with this development in recent generations would be withdrawal of authority for retaliation by any person or persons. Ideally, the sanctions of a peaceful, law-abiding, progressive society defend and preserve; they do not retaliate or destroy. We find in advanced societies therefore, growing sentiment for rehabilitation of offenders or, at most, precautionary confinement, instead of penalties intended to "make an example" of them or to make them suffer as these trespassers made their victims suffer.
To see that terroristic penalties may not be the most effective way to gain obedience to The Law of a free society we must recognize two important facts:
First, these penalties alone cannot secure compliance in an advanced society even now. To put this in another way, the police alone cannot stop crime in a modern, complex society.
Second, we must recognize the many non-political ways by which members of a comparatively free and progressive society, such as these United States of America, teach and enforce The Law necessary for voluntary cooperation.
Individual and private action must play the leading role in making the laws and in obtaining compliance. Government officials may assist the process, but often they distort and misdirect it; and it is easy to overrate what Government can or should do in law-making and law-enforcement.
Furthermore, coercion — whether defensive or retaliatory — merely assists law enforcement in a limited number of cases. As Dr. Bruno Leoni, late Professor of Legal Theory at the University of Pavia, Italy, well said:
It is curious to note how many people are so highly impressed by the peculiar nature of coercion as a purportedly typical ingredient of legal norms that they tend to overlook completely the very marginal significance of coercion in any actual legal order as a whole.4
Moreover, he continued, coercive sanctions apply only to some norms, not to all. The main norms, such as the constitutional ones, in each single nation, or the international ones concerning relationships between nations, often do not even mention sanctions or coercions, for the simple reason that no sanction or coercion could assist them in any effective way.
We should take care to note, however that Professor Leoni referred to coercive, retaliatory sanctions: for a practice that is subject to no sanctions whatever is not a law but merely a custom or usage.
Unfortunately, statist influences incline us to think of legal sanctions only in coercive, retaliatory terms (fines, imprisonment, and bodily injury), because in most cases the State must apply these or none at all.
Purely defensive sanctions, on the other hand, involve mechanisms and physical force only to block (prevent) aggression and withdraw from cooperation with the offender. These generally require the exercise of private initiative, which statism tends to discourage or suppress.
Yet, these noncoercive sanctions may be more effective and economical than retaliatory measures. This appears particularly obvious in the field of international relations. Few Americans today, probably, would favor efforts to collect a debt from a delinquent foreign government by a military expedition against it. Most would probably prefer purely defensive, noncoercive sanctions in such a case: withholding further loans until some agreement is made concerning the unpaid debts or until assurance is given that future contracts will be honored.
Many Americans would agree also that progress in obtaining compliance with The Law in domestic affairs might come more readily through greater reliance on nonretaliatory sanctions.
Juvenile delinquency, for example, has been increasing in recent decades mainly because Government has been discouraging or prohibiting use of certain defensive, noncoercive sanctions that were formerly applied. Teachers, parents, and employers once could and did withdraw their services and the opportunities of school, home, and workshop from mischievous or indolent youths.
Now, especially in the United States, school attendance laws deter public school teachers from expelling them. At the same time, child support laws, child labor laws, minimum-wage laws, and lawless actions of privileged trade unions discourage or prevent parents from requiring irresponsible juveniles to choose between accepting the disciplines of employment or leaving home. In addition, subsidies to the parents often weaken their incentive to impose the necessary sanctions.
Even more demoralizing, perhaps, has been the increase in statist control of the schools, control which deprives parents of both the means and the feeling of responsibility for educating their own offspring.
In short, Government has turned benevolent despot by subjecting youths to its own brand of maternalism and forced schooling, while it restricts their freedom to make themselves useful, reduces their parents’ financial ability to provide more suitable schooling and in other cases reduces the parents’ incentives to set an example of useful effort or to require such effort of their children.
Is it surprising, then, that juvenile victims of this irrational despotism turn, rebelliously, to mischief and crime to relieve their boredom or perhaps to supplement the unearned incomes of their subsidized families?
More freedom for the young to be useful, and more freedom for parents, employers and teachers to apply non-retaliatory sanctions, as well as to provide more productive outlets for youthful energies would be a more effective way to raise the moral level of juvenile conduct.
Progress in Private, Defensive Sanctions
Fortunately, private initiative still operates defensively in countless ways to maintain The Law: by home teaching and discipline, by locks on doors and windows, by watchdogs and burglar alarms, by private guards and watchmen, by safety deposit boxes and vaults, by cameras and recording devices, by lie detectors and reference requirements, by employment policies, by exchange of credit information, by organized or unorganized boycotts, and even by building walled cities for carefully selected residents.5
Criminality would quickly overwhelm the Government’s defenses for persons and property were it not for such private defensive actions. And, if private citizens become more aware of their responsibility and opportunities for self-defense, producers will quickly supply more effective devices and techniques for the purpose. This could do more to assure compliance with The Law than an increase in Government’s police powers.
Libertarians contend that we can promote the progress of The Law by various reductions in the size and scope of Government. How far we should go in this dismantling process, and to what extent private enterprise can progress in providing improved protection, will be matters for endless speculation and debate.
But in one essential undertaking we can go far. We can cooperate in promoting understanding of the vital role of private, individual enterprise in making — discovering, accepting, and enforcing — The Law of a free society.
Along with this private law-making and law-enforcement, members of a free society must know and appreciate that coercion of one’s fellow man — whether the coercion be legal or illegal — is not a short-cut to prosperity or welfare, but a barrier to progress for all mankind. Only by the example and freely given cooperation of our fellow humans can any of us prosper. Wrote Frederic LePlay, French engineer and sociologist, "Prosperity is a multitude of good acts." A prosperous society, then, is one consisting of individuals who love the ways of justice, freedom, and righteousness.
Self-reverence, self-knowledge, self-control,
These three alone lead life to sovereign power.
Yet, not for power, (power of herself
Would come uncall’d for) but to live by law,
Acting the law we live by without fear;
And, because right is right, to follow right
Were wisdom in the scorn of consequences.
1According to Webster’s New World Dictionary (New York: The World Publishing Co., 1964), nihilism means: 1. in philosophy, a) the denial of the existence of any basis for knowledge or truth, b) the general rejection of customary beliefs in morality, religion, etc., also ethical nihilism. 2. in politics, a) the doctrine that all social, political, and economic institutions must be completely destroyed in order to make way for new institutions: specifically, b) N- a movement in Russia (c. 1860-1917) which advocated such revolutionary reform and attempted to carry it out through the use of some terrorism and assassination; hence, 3. loosely any violent revolutionary movement involving some use of terrorism.
2Cf. Robert M. Bleiberg, -"Government and Business: Federal Regulation Has Reached a Dead End," Barron’s, April 23, 1975, for recent examples.
4 Lectures before the Rampart College Phrontistery, December 1-7, 1963. See also his published work, Freedom and The Law (New York: D. Van Nostrand Company, Inc., 1961).
5 As law-abiding citizens seek homes in "safe" communities — communities in which they are better protected against violence — they stimulate competition among politicians in performing this service for the citizens subject to their taxing authority. Unfortunately, increasing centralization of political power is restricting this wholesome competition.