The Law: Tool of Acquisition, Redistribution, or Justice?

How To Keep The Law In Its Rightful Place

The only legitimate purpose of legislation is to establish some level of justice in society. However, it doesn’t take long for that proposed intent to be abused.

Human beings have a tendency to self-interest and legislators are no different.

The French physiocrat Frederic Bastiat, popularized the phrase “legal plunder” in his essay The Law. Legal plunder means to use legislation to accomplish exchanges of money, capital, labor, resources, etc. that one could not do without the law.

This legalization does the following:

“And, as law cannot exist without the sanction and the support of a preponderating force, it must finally place this force in the hands of those who legislate.”

Historically, how has this been manifested? How do we understand it today? What can we do about this problem in order to increase our liberty and prosperity?

Tool of Acquisition

Suppose that laws exist in nature prior to the institution of the state and call these natural laws. What happens next?

In Tolstoy’s Resurrection, the old Russian makes a cameo as a crazed man who is just crazy enough to make us think. When this man is asked what to do with those who refuse to obey the law, he states:

“‘The law!’ he repeated contemptuously. ‘First, he robbed everybody, taking for himself all the land and all the wealth that belonged to the people — converted it all to his own use — killed all those who resisted him, and then wrote laws forbidding men to rob and kill. He should have made the laws first.’”

Bastiat attacks a couple of groups for using the law for plundering others in society. Although he wrote at a time of rising socialism, he recognized that it was those who owned capital who initially used “legal plunder” to obtain financial advantage for themselves:

“But the law is made, generally, by one man or by one class of men, and…it is easy to conceive that, according to the power of the legislator, it destroys for its own profit and in different degrees amongst the rest of the community, personal independence by slavery, liberty by oppression, and property by plunder.”

Adam Smith recognizes this tendency among businessmen, merchants, capitalists, stating in The Wealth of Nations:

“The interest of the dealers…in any particular branch of trade or manufactures, is always in some respects different from, and even opposite to, that of the public. To widen the market and to narrow the competition, is always the interest of the dealers.

To widen the market may frequently be agreeable enough to the interest of the public; but to narrow the competition must always be against it, and can serve only to enable the dealers, by raising their profits above what they naturally would be, to levy, for their own benefit, an absurd tax upon the rest of their fellow-citizens.

The proposal of any new law or regulation of commerce which comes from this order, ought always to be listened to with great precaution, and ought never to be adopted till after having been long and carefully examined, not only with the most scrupulous, but with the most suspicious attention.

It comes from an order of men, whose interest is never exactly the same with that of the public, who have generally an interest to deceive and even to oppress the public, and who accordingly have, upon many occasions, both deceived and oppressed it.”

This abuse of law to generate an advantage over another (the opposite of the purpose of the law, which is to attain some level of justice) then leads the this point from Bastiat:

“All the plundered classes tend, either by peaceful or by revolutionary means, to enter in some way into the manufacturing of laws.

These classes, according to the degree of enlightenment at which they have arrived, may propose to themselves two very different ends, when they thus attempt the attainment of their political rights; wither they may wish to put an end to lawful plunder, or they may desire to take part in it. Woe to the nation where this latter thought prevails amongst the masses, at the moment when they, in their turn, seize upon the legislative power.” (emphases added)

Tool of Redistribution

Bastiat saw in his day the transition from legislative “plunder” that further enriched the rich at the expense of the poor and working classes to legislative “plunder” that redistributed property by force.

“Now, legal plunder can be committed in an infinite number of ways.

Thus we have an infinite number of plans for organizing it: tariffs, protection, benefits, subsidies, encouragements, progressive taxation, public schools, guaranteed jobs, guaranteed profits, minimum wages, a right to relief, a right to the tools of labor, free credit, and so on, and so on.

All these plans as a whole —with their common aim of legal plunder — constitute socialism.”

Options and Solutions

It is absolutely necessary that this question of legal plunder should be determines, and there are only three solutions of it:

1. when the few plunder the many (corporatism),
2. when everybody plunders everybody else (state socialism)
3. when nobody plunders anybody (freedom).” -Bastiat (italicized words are mine)

In order for the third option to win, a few things must happen:

War of Doctrine

In order to defeat an ideology or doctrine, one must “make against it…a war of doctrine.” In order to do so, we must engage in the debate, ask questions of ourselves and others.

Putting state socialism (or any other doctrine or ideology) on the “shelf of evils things not to be touched” allows the doctrine to grow and promote itself. This has been a huge problem with the doctrine of communism.

Many Americans put in on that shelf and refused to engage it openly, and thus it returns again and again as a viable economic option in poor countries.

Cease Inflammatory Presumptions

We also must be very careful about questioning the intentions of those who promote certain doctrines or ideologies; hence the problem with implying a vast conspiracy behind some of these doctrines. Bastiat states it very well:

“Thus, whether I am believed or not, I declare that I do not mean to attack the intentions or the morality of anyone.

Rather, I am attacking an idea which I believe to be false; a system which appears to me to be unjust; an injustice so independent of personal intentions that each of us profits from it without wishing to do so, and suffers from it without knowing the cause of the suffering.

The sincerity of those who advocate protectionism, socialism, and communism is not here questioned. Any writer who would do that must be influenced by a political spirit or a political fear.

It is to be pointed out, however, that protectionism, socialism, and communism are basically the same plant in three different stages of its growth.

All that can be said is that legal plunder is more visible in communism because it is complete plunder; and in protectionism because the plunder is limited to specific groups and industries.

Thus it follows that, of the three systems, socialism is the vaguest, the most indecisive, and, consequently, the most sincere stage of development.”

Recognize Reprisals Masquerading as Laws

Again from Bastiat:

“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.

Then abolish this law without delay, for it is not only an evil itself, but also it is a fertile source for further evils because it invites reprisals. If such a law — which may be an isolated case — is not abolished immediately, it will spread, multiply, and develop into a system.”

This warning applies not only to state socialism, but also to corporatism or any other doctrine that promotes the interest of one person at the expense of another.

Responsible Citizenship

If we are truly intent upon promoting freedom, prosperity and peace, we must identify the uses and abuses of the law.

We must hold accountable those who legislate so that they eliminate laws that take from the low and middle classes to give to the corporate rich or take from the middle and upper classes to give to the lower class.

We also must involve ourselves in the legislative process enough and be statesmen enough to promote the general welfare, not the interests of one group over another.

Finally, we must engage in the debate without questioning the motives of those who promote ideologies different from those we hold, attacking and debating only the ideas, not their “morality.”

****************

Mike Wilson received his B.S. degree in Chemistry from Brigham Young University and pursued graduate work at the University of California, San Diego, where he earned a M.S. degree in Biomedical Sciences prior to obtaining his M.D. at the UCSD School of Medicine.

He lives in Cedar City, Utah with his wife Jenni and their six children and practices emergency medicine in St. George, Utah while working on a Ph.D. in Constitutional Law at George Wythe University. He is also an Associate Mentor at GWU.

Mike’s passion is promoting idea that the common man has power and capacity to affect grand change in the world through true principles of love, goodness, and virtue. Because of his Jeffersonian trust in the common man, he considers himself a “little d” democrat (an ideal, not a political party).

He believes that the cause of liberty is founded essentially in widespread powerful education, checks on power, and promotion of virtue and goodness. Force is never a real solution to problems for Mike and the statesman’s role is to understand the ideal, see where society is, and then put himself in a position to move society in the direction of the ideal.