Freeman

ARTICLE

The Law Also Is Polluted

JULY 01, 1978 by ROBERT E. HOOD

Mr. Hood is a businessman in Meredith, New Hamp­shire.

Someone once suggested that the ultimate test of character would be to ask yourself what crimes, if any, you would commit if you could be absolutely certain that you would not be caught or even suspected. Obvi­ously there are many people who, assured of such immunity, would take advantage of the situation—people who would otherwise be law-abiding citizens. A few might choose to harm or even kill someone they particularly dislike. Some would perhaps destroy the property of another. There are many who would be inclined to steal an enor­mous sum of money in order to in­sure a comfortable or even luxurious life style. Some might limit their greed to stealing one particular item or art object they have always co­veted.

The possibilities are infinite but one thing is shared in common by all who would succumb to this gift of legal license by either stealing or otherwise infringing on the rights of someone else. They generally stay within the law not because they live by a rational moral code but simply because they are deterred from crime by fear of apprehension and punishment. They are the amoral pragmatists among us and their number is legion.

Obviously, the reality of the situation makes it unlikely that anyone would ever really be con­fronted with this test of character. It is nonetheless intriguing to specu­late on this hypothetical opportu­nity to commit a crime and get away with it, each of us calling upon his values and moral code in arriving at a decision. The first time I consid­ered it I quickly concluded that I was guided by moral values and respect for the rights of others; therefore, detection and punishment were not the primary deterrent for me. Later it occurred to me that I was not being asked if I would in­fringe on the rights of another. The question is: What "crimes" would I commit?

A crime is: "An act or omission forbidden by law and punishable upon conviction." Hence, there is not a single human action or thought which could not conceivably be a "crime." The most moral of human activity has only to be declared il­legal by either a legislative body or a dictator and we have the potential for more crime. Therefore, crime be­comes relative to the time and place in which we find ourselves. Had I lived as a serf in feudal Europe, there were probably a great many "crimes" I would have committed if assured immunity. Had I the misfor­tune to be born in contemporary Russia or any one of the many dic­tatorships, I would surely be a "criminal" under such a system, especially if I were certain I could get away with it.

Two Kinds of Law

We find ourselves today in a con­stitutional republic. Ours is a gov­ernment by law rather than by dic­tatorial whim. There was a time when ours was largely a govern­ment by moral law and therein lies the perplexing situation which must be considered when applying our test of character today. I expect that there are literally hundreds of laws which I would prefer breaking if guaranteed immunity, "crimes" no one of which infringes on a single right of a single other individual.

If I decided to alter or build an addition to my home, I might pro­ceed without so much as a by-your-leave from the local planning board, zoning board, building inspector, electrical inspector, plumbing in­spector, or other official. In fact, I probably wouldn’t even refer to local building codes and such. If I made my living in one of the many licensed trades or professions, I would probably choose not to renew a license which has little if any bearing on my professional ability.

If I were an employer I might choose to hire someone for less than the minimum wage if the prospec­tive employee were agreeable. Or, I might even allow an employee to work hours in excess of labor law standards. I probably would have a great deal more time to devote to constructive and creative efforts than my competitors because I might devote no time at all to bu­reaucratic paper work. I might even hire a 17-year-old high school stu­dent to mow the lawn with a power mower or clear the parking lot with a snow blower, in flagrant violation of a law that frequently is over­looked.

If I were in the trucking business I would on occasion consider trans­porting goods beyond the borders restricted to me by state and federal franchise limitations and I might even try to snatch a little business from my competitors by offering lower prices and better service.

If I were a farmer in one of the many restricted areas of agricul­ture, I might plant whatever I wanted on as many acres as I could plow, sow, maintain, and reap, and I would sell the harvest for the best price I could get. All of this with unconscionable disregard for laws intended to "protect the public interest" but which in reality pre­vent my serving the public.

The Tax Dilemma

There are many taxes which I would certainly prefer not to pay, my premise being that property earned by honest effort cannot right­fully be expropriated by government however lofty the intended use. I must admit that I pay my taxes only because I fear the consequences of not doing so. I am not in the least motivated by a philanthropic love of Washington.

Thus, as moral individuals, if we are to test our character by this hypothesis in today’s society we in­evitably are confronted with a sig­nificant dilemma. If we are to pre­serve our semi-free system in the hope that right ultimately will pre­vail, then we must uphold the law. It is not our option as individuals to pick and choose the law which suits us, although we do obey many of them only through intimidation rather than in conformity to our personal moral code. That we are forced to obey many laws which, in fact, violate moral law may lead to the root of our dilemma: the pollu­tion of our law.

There is moral law, the purpose of which is to protect the life, liberty, and property of every individual with complete equality. And there is immoral law which seeks only to expropriate the rights and property of some for the supposed benefit of others. One is no less "the law" than the other but clearly there is an enormous difference in their treat­ment of the rights of individuals. One secures these rights; the other expropriates them. One is justice; the other injustice.

Moral law (justice) is simply the codification of the natural right of self-defense—the right of each indi­vidual to protect his own life, lib­erty, and property. "It is the sub­stitution of a common force (gov­ernment) for individual forces," ac­cording to Frederic Bastiat. "And this common force is to do only what the individual forces have a natural and lawful right to do: to protect persons, liberties, and properties; to maintain the right of each, and to cause justice to reign over us all."

Bastiat applied this simple test to distinguish one type of law from the other: "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. . . . If such a law is not abolished immediately, it will spread, multiply, and develop into a system." Prophetic words from well over a century ago, for we surely have developed such a system.

Justice or Plunder?

The vast majority of people make no attempt to distinguish between justice and injustice within the law. It is a vast gray area of an obscure process whereby the severest injus­tice acquires an aura of respect sim­ply by its enactment into law. We are all, including the most undis­cerning among us, the victims of this pollution of our law. When the law ceases to be an instrument of justice it inevitably becomes less re­spected. It should come as no sur­prise that the laws of the United States are held in such low esteem today; not just immoral law, but all law, since most persons fail to dif­ferentiate.

Bastiat warned us that, "It is im­possible to introduce into society a greater change and a greater evil than this: the conversion of the law into an instrument of plunder. What are the consequences of such a per­version? . . . it erases from everyone’s conscience the distinc­tion between justice and injustice. No society can exist unless the laws are respected to a certain degree. The safest way to make laws re­spected is to make them respectable. When law and morality contradict each other, the citizen has the cruel alternative of either losing his moral sense or losing his respect for the law."

To respect the law today is to subjugate moral values to the irra­tional whims of legislative bodies. To respect our natural right to life, lib­erty and property and to live by that moral standard is to disrespect con­temporary law. This poses a dif­ficult, if not impossible, choice—a "cruel alternative," as Bastiat phrased it. But choose, we must. We can pursue our present course of law pollution with the result that we ultimately will be forced to pick and choose the laws we will obey; the course which inevitably leads to anarchy and dictatorship. Or, we could begin to devote as much effort and energy to cleaning up the law as we have devoted to cleaning our rivers and air. We could re-establish a government of morally pure law with the result that the law would be upheld largely by moral convic­tion rather than at the point of a gun.

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July 1978

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