The Law; V. O. Watts

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: a.gencies 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; w'e 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. Noone has the complete knowledge necessary to do 1 According 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, politi cal, 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 ad vocated such revolutionary reform and attempted to carry it out through the use of some terrorism and assassination; hence, 3. loosely any violent revolutionary move ment involving some use of terrorism. 2 Cf. Robert M. Bleiberg, ·"Government and Business: Federal Regulation Has Reached a Dead End," Barron's, April 23, 1975, for recent examples.

474 THE FREEMAN August always what is right, either in private or in relations with other persons. Noone has the infinite wisdom or self-control necessary to avoid mis using the new opportunities which a progressive society is continually opening for its members. Doctors, nurses and teachers, as well HS poli ticians, 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 where ever 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 fool ish 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 dre1am. What, then, is "The Law" which increases freedom as contrasted with the governmental edicts,. which s~ often retard and restrict it? How do we discover "The Law" of a free society, and how do we enforce it with out 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, re,gularly 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. HumansdiffeJ; from in animate 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 in ternal structures and life forces vary from one individual to another. This individual variation is greater for the higher, more complex organ isms; and it is greatest for humans of every race, age and condition.

1975 THE LAW 475 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 hu man 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 ~ules, standards, expectations, probabilities, or "oughts" - rather than the (more nearly) invariable sequences which the physicist or the chem istmay 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 th~ sanc tioned norm. Thus, a member of a credit association may report for the benefit of 476 THE FREEMAN August 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 1975 THE LAW 477 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 com paratively advanced stage of culture do its memhers 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 ineffi ciently. They carryon 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 "primi tive." 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 establish ing 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 mem bers 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 pre vailing within and between those of more complex cultures. The reason for this apparent tranquility may be that the tribe mem bers 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 rela tions 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 la.ws - means that, in a primitive group, any 478 THE FREEMAN August individual who keeps for himself the fruits of his labor may have sanc tions 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 occu pations and techniques. These changes continually give rise to new indi vidual claims and conflicts, as, for example, claims to ownership of one's signature and conflicts with would-he 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 La.w which preserves the peace and frees the individ ual 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 Govern ment. In this view, the establishment of order, peace, and freedom must await the formation of a Government which claims and secures a monop1975 THE LAW 479 oly of the lawmaking 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 mo nopolistic, retaliatory State a lawless organization which wins power by promising peace but which always sooner or later becomes the chief lawbreaker and war-monger. Worshipful reliance upon this political juggernaut, they warn, now threatens all mankind with enslavement and destruction. The same unreason which approves retaliation and terroristic penal ties 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 La,w 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 law makers 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 peac~ who recognized and tried to practice self-responsi bility 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 df the West (Nash Publishing Corporation, Los Angeles, California, 1971), p. 27.

480 THE FREEMAN August Outlawing Retaliation The sanctions for The Law, as it has developed in the most advanced societies, no longer include retaliatory action by "unauthorized" (pri vate) persons. A private citizen may kill a trespasser or thief with impunity only when he has reason to helieve 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 ~odetn, 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 nec essary 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 i~ easy to overrate what Government can or should do in lawmaking and law enforcement. Furthermore, coercion - whether defensive or retaliatory - merely assists law enforcement in a limited numher of cases. As Dr. Bruno Leoni, late Professor of Legal Theory at the University of Pavia, Italy, well said: 1975 THE LAW 481 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 internation~1 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. (Ibid.) 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 withdravv from cooperation with the offender. These generally require the exer cise 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 mili tary 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 compli ance '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 prohib iting 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.

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).

482 THE FREEMAN August Now, especially in the United States, school attendance laws deter public school teachers from expelling them. At the same time, child support la.ws, child-labor laws, minimum-wage laws, and la.wless 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 nonretaliatory 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 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 whole some competition.