CHAPTER XI
FREEDOM AND STATUTE LAW
Where liberty is established, justice reigns.
A law that suppresses fools may also hamper genius.
To cancel liberty by law is a legal crime. Law must have equal freedom as a basis or it will be unjust.
It is illegal to fight against arbitrary authority. It is unjust not to do so.
One must understand the principle of justice before he can administer it to others.
There is no danger to justice arising from freedom of thought and speech.
Justice demands full freedom for yourself and granting a like amount to others.
Few understand the principle of justice, yet many are administering the law.
Good citizenship is not established by upholding unjust laws, but by vigorous opposition to them.
Injustice in courts is acknowledged by governments, when it sets up one court above another, to reverse decisions.
A real tyrant is he who has a law enacted to further his economic interests, and the real slaves are those who submit to it because it is a law.
An oppressive law would not be so objectionable if it were applied only to those who approved it, instead of being forced alike upon all.
Statute Law – Some writers on this subject have made justice the basis of law, while others have made law the basis of justice; but, as a matter of fact, statute law did not have its source in justice, nor is justice the outcome of such law. Lawmakers as a rule are not imbued with the idea of arriving at justice. The motive most prevalent among them is that of personal or class benefit, benefit to the makers of the law or to the makers of the lawmakers. Benefit to them means property getting. They find that law is of great assistance both in acquiring and defending property. These lawmakers believe that the law should reflect their interests; and as they enact nearly all laws they see to it that the law represents their desires and not the ideas of equity.
If all men had the same interests, there would be less harm in permitting a part of the people to legislate for all; but this is not the case. There is a great conflict of interests between the possessed and the dispossessed, between the poor and the rich, between the weak and the strong, between the ruler and the ruled, between the workers and the shirker, between the producer and the appropriator, which is apparent in existing laws made by those powerful enough to take advantage of the State and of the law-abiding sentiment of the people. That their laws conflict with justice is no concern of theirs, for profit and not justice is their object. The object is legitimate because they make it legitimate. The game they play is lawful because they make the law to uphold their game; but they raise a hue and cry for “law and order,” if they find any game conflicting with theirs, and declare it unlawful. It is easy to see that laws thus enacted are unjust, for to be just a law must be enacted for the benefit of all; thus it is in no wise logical to presume that the “legal” is the just.
When we compare most laws made today, and the method and purpose of their making, with those of the past, we find them to be in perfect harmony. It was the law and custom of the past to provide for a class of idlers; it was customary for the powerful to enslave the weak, for the rich to rob the poor, for the unscrupulous to make laws in their own interests, even as it is the law and custom today. Surely it must be evident that law does not have its basis in justice, but rather in custom. To both statute law and custom justice is a total stranger.
When we know the source of law, we cease to wonder at the conduct of those who accept law as a guiding principle; we understand why they conduct themselves so badly from the standpoint of justice and still keep out of jail; we also understand why some who have violated no rule of justice go to jail. Most people accept law as their guide to conduct; they find it to be more profitable than following the rules of justice. They are always asking, “What is the law?” “Can I do that and not be arrested?” To them anything within the law is right; yet we know that the greatest injustices are committed within the law. They would see nothing wrong in murder, if it was lawful.
And who can know what the law really is? In the United States we have over 2,000,000 laws, most of which conflict with each other, and to interpret them we employ an army of lawyers and judges, who disagree as to the intent or applicability of every law.
There are so many complicated laws that the individual is bound to break some of them. No lawyer or judge pretends that he knows five per cent of them; yet the layman may be held to a strict obedience of any or all of them, and if he pleads that he did not know the law, he is told that ignorance of the law is no excuse for its breach. He is supposed to know ninety-five per cent more of law than its students, practitioners and makers. The more laws, the more ignorance of them; the more ignorance of the law the more the laws are broken; the more the laws are broken the more criminals there are; and the more criminals, the more policemen, detectives, lawyers, judges and other officials that go to make up a strong and expensive government. All of this is good for government officials, but bad for the citizens who carry the load. Rulers have always profited by the mistakes of individuals, and have always made conditions such that mistakes were unavoidable.
The writers on the theory of law are equally perplexed. Sir Henry Maine says: “There is much widespread dissatisfaction with existing theories of jurisprudence, and so general a conviction that they do not really solve the questions they pretend to dispose of, as to justify the suspicion that some line of inquiry necessary to a perfect result has been incompletely followed or altogether omitted by their authors.” Perceiving, like Sir Henry Maine and other honest writers on law and justice, the “widespread dissatisfaction with existing theories of jurisprudence,” Libertarians reject them altogether as the basis of justice. Natural Law and State Law – Some authorities on law hold that statute law is based on natural law and therefore in perfect harmony with it, but this will not bear analysis. The natural law of evolution of development is variation, differentiation; statute law is intended to produce similarity and uniformity. The first depends upon dynamic forces, the second upon customs of the dead. The first is the law of the new; the second the law of the old. The first does its own enforcing; the second needs to be enforced. The first cannot be suspended; the second is changed to suit the lawmakers. The law of variation has guided us in the path of progression, while statute law has tended toward retrogression.
Rights – The word “Right” has many meanings; and unfortunately it has two contradictory ones-legal rights and ethical rights-that lead to much confusion of thought. Legal rights are: “Any power or privilege vested in a person by the law” ; “A claim or title to or interest in anything whatsoever that is enforceable by law”; “A franchise-a specific right or privilege granted or established by governmental authority”; “A capacity or privilege the enjoyment of which is secured to a person by law, hence the interest or share which anyone has in a piece of property, title, claim, interest.” It will be seen from these accepted definitions that legal right is synonymous with power; whoever or whatsoever has the power, has the right. Now, governments have most power, therefore have most rights. If individuals have any legal rights, it is because governments have granted them in the way of “franchise,” “title,” “privilege,” etc. Legal rights mean to take, to have and to hold. There is no sentiment in legal right; it is the offspring of power only Might is right!”
Right in its ethical sense is defined thus: “Right is in accordance with equity”; “Conformity to the standard of justice”; “Right is identical with the good, not deviating from the true and just”; “Freedom from guilt.” A comparison of these two conceptions of right will disclose the fundamental disagreement between them. Although the legal and ethical definitions of right are the antithesis of each other, most writers use them as synonyms. They confuse power with goodness, and mistake law for justice.
Ethical right is largely abstract; legal right is mostly concrete. Ethical right the just man wishes to be established; legal right is already established. Ethical right and legal right mutually exclude each other; where one prevails the other cannot endure. One is founded on power, on might; the other on justice, on equality. One appeals to the sword to settle matters; the other appeals to the judgment of men. For illustration: Governments have the right to do wrong; that is, they have the power, the legal right, to do anything they choose, regardless of whether it is good or badand their choice is usually bad from the ethical standpoint. Governments can and do invade nations, rob the people of their property, enslave or kill the inhabitants; all in perfect accord with legal rights, but in gross violation of ethical right. Let it be understood that the right of a government is coextensive with its power; it has not the right to invade, enslave or kill the people of a stronger nation or government, for it lacks the power on which this right is based; but having the power, it has the right to commit these acts against a weaker nation. Let us not mistake things as they are for things as they ought to be.
It is absurd to speak of the slave having the “right” to liberty. It is a curious sort of right that could in no way be exercised during the thousands of years in which slavery existed; surely not a legal right, for slavery was legal then. Neither had the slave an ethical right; for ethical right means “justice,” “equity,” “liberty,” the very things he did not have; it is even doubtful if many of the slaves had the least idea of justice and liberty. It is only correct to say that they should have had such a right. To say they had it, is like saying one already has a fortune that he is hoping to acquire.
Justice – Some of the accepted definitions of Justice are: “Conformity to truth, fact or right reason; fairness; rightfulness; truth; impartiality”; “The rendering to everyone his due or right; just treatment” ; “To do justice; to treat with fairness or according to merit; to render what is due to” ; “Rightfulness; uprightness; equitableness, as the justice of a cause.” These definitions are accepted by Libertarians who believe that justice is that which ought to be done by one to another. But what is the true criterion of the conduct we expect from another? How are we to know it is just? By what standard is justice to be judged?
Our authorities on law answer, “Custom” : whatever is customary is just. Therefore the lawyer looks for “precedents.” No lawyer will declare, “My client broke this law, and he did right, for it is a bad law”; that would be in violation of custom and precedent, and he dare not say it; but he will ransack the maze of law for a precedent-and will find one, too.
To quote only one of the great authorities on law: James Coolidge Carter in his “Law:
Its Origin, Growth and Function,” page 163, says: “Justice consists ‘in the compliance with custom in all matters of difference between men,” and he tells us on the same page that “This accords with the definition of the Roman Law.” But custom and precedent are defective as a basis for that conception of justice which recognizes good acts only; for custom and precedent can be found for all kinds of acts, good, bad and indifferent. Some of our savage ancestors had the habit, or “custom,” of eating their dead parents; so, by proving the precedent or “custom,” we can prove that cannibalism is just!
Now, custom is inadequate as the basis of law or justice. Tyranny, not liberty, has been the custom in the past; and so Libertarians reject custom as a guiding principle, just as they reject power or might. They know that justice is not something that way, or is, but that is to be. Pascal saw the absurdity of law and justice that have their source in custom, for he says: “In the just and unjust we find hardly anything which does not change its character in changing its climate. Three degrees of elevation of the pole reverse the whole of jurisprudence. A meridian is decisive of truth, or a few years of possession. Fundamental laws change! Right has its epochs. A pleasant justice that, which a river or a mountain limits! Truth on this side the Pyrenees, error on the other!”
The Law of Equal Freedom is the principle that is offered by Libertarians as a substitute for these conflicting and unjust customs of the past. This gives us a basis for justice in perfect harmony with the idea of equity. Equal freedom is the essence of equity, and is not equity just? If there are to be laws in a free society, they must be based upon equal freedom or they will be unjust.