When it comes to being employed by the government, membership has its privileges. How far do these privileges extend? It’s a question that is central to political philosophy. It is most poignantly addressed by one of my favorite pieces of writing, Frédéric Bastiat’s The Law (1850).
The same question is being debated on the streets in every US city today. Videos of citizen abuse at the hands of the police are everywhere. It seems the cops have been empowered to do to us what we would never be allowed to do to each other. Some cases have made it to grand juries and trial juries. People are asking pointed questions regarding the relationship between the state and its citizens.
From the mainstream media to the courts, disagreement usually revolves around questions of the motivation, the character, and the behavior of police officers. Are they following the regulations? Abusing their authority? Motivated at some level by racism? Some would like to confront the related question: What level of citizen noncompliance justly prompts the police to use extreme force?
But there’s a question everyone wants to avoid here: Are the laws themselves just?
Many of the most famous beatings and killings at the hands of the police began with small infractions such a selling contraband cigarettes, evading criminal prosecution for the failure to pay child support, carrying knives, or small-time dealing of illegal substances. Then there are the many cases of asset forfeiture that never make it to YouTube, ongoing acts of plunder that aren’t flashy enough to inspire mass protests.
If the debate stays centered on police actions alone, we will never reach the core issue.
What is the law — and what should it be?
These are the bigger questions that are not yet part of public consciousness. Every law and regulation, no matter how small, is ultimately enforced by the threat of violence on the part of public authority. Laws are not “nudges”; they are mandates enforced by the legal use of coercion against person and property.
Bastiat tried to get people to think hard about what was happening and how the law had become an instrument of plunder and violence, rather than a protector of property and peace. If the law itself is not just, the result is social division and widespread discontent. The relationship between the rulers and the ruled becomes distorted, and a sense of systemic injustice pervades the culture. Bastiat observed this in horror in his time, and it’s a good description of our own:
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.
Further, and most poignantly in our time: “Sometimes the law places the whole apparatus of judges, police, prisons, and gendarmes at the service of the plunderers, and treats the victim — when he defends himself — as a criminal.”
Whether this happens at a traffic stop, at the arbitrary hands of an angry cop, or due to a tax or regulation passed by a legislature doesn’t change the nature of what is happening.
Bastiat’s essay asks fundamental questions that most people go through life never having thought about. The problem is that most people accept the law as a given, a fundamental fact of life.
As a member of society, you obey or face the consequences. It is not safe to question why. This is because the enforcement arm of the law is the state, that peculiar agency with a unique power to use legal force against life and property. The state says what the law is — however this decision was made — and that settles it.
Bastiat could not accept this. He wanted to know what the law is, apart from what the state says it is. He saw that the purpose of law is, most fundamentally, to protect private property and life against invasion, or at least to ensure that justice is done in cases in which such invasions do take place.
This is hardly a unique idea; it is a summary of what philosophers, jurists, and theologians have thought in most times and places. It’s what most of us think, intuitively, that the law should be about. What makes Bastiat different is that he takes that next step, the one that opens the reader’s eyes as nothing else does. He subjects the state itself to the test of whether it complies with that idea of law.
He takes notice, even from the first paragraph, of the corruption that ensues when the state turns out to be a lawbreaker in the name of law keeping: the state does the very thing that law is supposed to prevent. Instead of protecting private property, it invades it. Instead of protecting life, it destroys it. Instead of guarding liberty, it violates it. And as the state advances and grows, it does these things ever more, until it threatens the well-being of society.
Even more tellingly, Bastiat observes that when you subject the state to the same standards that the law uses to judge relations between individuals, the state fails. He concludes that when this is the case, the law has been perverted in the hands of the governing elites. It is employed to do the very thing that the law is designed to prevent. The enforcer turns out to be the main violator of its own standards.
The law, wrote Bastiat, is supposed to protect property and person from arbitrary attack. When the law becomes a tool for providing legal cover for such attacks, as it has from Bastiat’s time to our own, its whole purpose has been turned upside down and inside out.
What Bastiat was seeking, as the embodiment of justice, was a consistent ethic of public life. The law should be the same for everyone. We should all obey the same rules. Neither the state nor any of its functionaries can be exempt from the rules they purport to enforce.
We cannot permit the state to judge itself by a different standard. Indeed, when Marilyn Mosby, Maryland’s state attorney, announced that the she was prosecuting the cops who beat and killed Freddie Gray, she struck a chord that resonated far and wide. She might be a left-liberal Democrat, and she might not share libertarian values across the board, but when she said, “no one is above the law,” she was echoing Bastiat and the entire liberal tradition.
What are the social consequences of having a different sets of laws, one for state agents and one for everyone else? Bastiat believed that the result is lawlessness:
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.
In this case, the law becomes a perpetual source of hatred and discord. It even “tends to destroy society itself.” Whether this destruction takes place in the controlled environment of a legislature, the routine quietude of the bureaucracy, or on the streets through looting does not change the essentials of what is happening.
What does this say about abuse at the hands of the police? According to Bastiat’s standard, the law should regard such abuse as the violation of another’s rights. Period.
The passion, the fire, the relentless logic of Bastiat’s monograph have the power to shake up any reader. Nothing is the same after you read The Law. That is why this essay is rightly famous. It is capable of shaking up whole systems of government and whole societies — a beautiful illustration of the pen’s power.
It is a habit of every generation to underestimate the importance and power of ideas. Yet the whole world that we live in is built by them. Nothing outside pure nature exists in this world that did not begin as an idea held by human beings. That’s why an essay like Bastiat's is so powerful and important. It helps you see the injustices that surround us, which we are otherwise inclined to ignore. And it helps provide the response to them.
Seeing and explaining are the first steps to changing.