Americans have just been through the latest set of Supreme Court nomination hearings. As is commonly the case, they involved grandstanding and gotcha efforts. But they also opened up discussions about the Constitution and law, which are important to have in a country where we are surrounded by laws, for good and for ill.
Consider how frequently we use the word, law. “That’s against the law” pops up when someone wants someone else not to do something. “There ought to be a law” pops up when someone wants to further restrict others.
There are arguments about what it really means to say that the Constitution is the highest law of the land. But few people seem to think more than a millimeter deep about law — Is there any law beyond civil law? What do we mean when we say “law” in a given context? What are the current limitations on law? What should the limits be?
In particular, as Bruno Leoni wrote in Freedom and the Law, “Individual freedom … has been gradually reduced … (because) statutory law entitled officials to behave in ways that, according to the previous law, would have been judged as usurpations of power and encroachments upon the individual freedom of the citizens.”
Leonard Read considered such issues in “Law Versus Tyranny,” in his 1975 Castles in the Air. At a time when even muddy thinking on that subject is uncommon, and clear thinking all but unheard of, that topic deserves more careful attention, because if “eternal vigilance is the price of liberty,” Americans have been insufficiently willing to pay that price, forcing us to pay a different, far higher price as a result.
Moral law or legal edicts?
What is law? Is it a body of legal edicts backed by force? Or a consciousness of moral obligations? … Which takes precedence?…The latter … (not) an outpouring of legal edicts … designed to control the affairs of society.
All man-made laws — legal edicts — which go beyond codifying and complementing the moral law serve not to bind men together but to spread them asunder, creating chaos rather than harmony, tyranny rather than peaceful order.
Who is sovereign?
Fundamental to my faith is the rejection of government as the sovereign power. This puts me on the side of the writers of the Declaration of Independence … By proclaiming the Creator as the endower of men’s rights, they proclaimed the Creator as sovereign, denying government that ancient and medieval role … We agree on being moralists … moral values being the correct vantage point from which to look for improvement, refinement.
What are the foundations of morality?… My foundations are the Golden Rule and the Ten Commandments. The Golden Rule, in my view, is the prime tenet of sound economics and, doubtless, the oldest ethical proposition of distinctly universal character. Let no one do to others that which he would not have them do to him; that would be just about the ideal, economically, socially, morally, ethically.
What is the relationship between moral law and man-made law?
There are moral values which are appropriately reinforced by man-made law, and other moral values which do not lend themselves to legal implementation … where man-made laws are appropriate … is where they are complementary to the moral law.
Man-made laws — legal edicts backed by force — are inappropriate when directed at what the individual thinks or believes or does to himself. A man’s inner life can only be impaired, never improved, by coercive forces. Government is but an arm of society and its only proper role is to codify and inhibit injuries inflicted on society, that is, on others than self. Self-injury is subject to self-correction — none other!
Take the Commandment, “Thou shalt not covet.” Enforce this by a man-made law? The absurdity is obvious. Envy is the root of many evils — stealing, killing, and the like — yet it cannot be done away with by the gun, billy club, fist, or any other physical force.
The moralist (claims) … there is a moral law by which one may distinguish the good from the evil. But he knows that he is powerless to relieve any individual of the certain consequences of that person’s immoral actions … Such human enactments … would indeed be a form of tyranny, an invitation to lawlessness in the mistaken belief that one might violate the moral law with impunity.
Clearly, the moral law takes precedence over the legal edicts of civil law. The latter serves a useful purpose provided its limited role is understood and heeded. When statutory law invades the domain of the moral law, it is itself ineffective and it paralyzes moral action.
Coercively enforce an observation of the Golden Rule when only self-enforcement is possible? Nonsensical! Can the government stop covetousness by making it illegal? Of course not! The role of civil law should be limited exclusively to inhibiting such injuries as some inflict on others, never directed at injuries we inflict on ourselves.
My moral code is founded on the Golden Rule and the Ten Commandments, and I would call upon the civil law to help enforce only these: “Thou shalt not kill,” “Thou shalt not steal,” and “Thou shalt not bear false witness” … each of these evils inflicts injuries on others … Such destructive behavior should be inhibited, insofar as possible, by the organized and legal arm of society — government.
Who does “Thou shalt not steal” apply to?
Only those who reason clearly from cause to consequence stand foursquare in support of “Thou shalt not steal.” True, not one in a thousand would steal … another’s loaf of bread. Full respect for private property at the you-and-me level! Yet, people by the millions will ask the government to do the taking for them … Plunder at the impersonal level! Why? The same old reason: government out of bounds, that is, government as sovereign. “The king can do no wrong; therefore, what he does for me at the expense of others is right.” Sound reasoning? Hardly!
Those who cherish liberty are well advised to respect and defend the rightful claims of others…Observe that “Thou shalt not steal” presupposes private ownership, the bedrock or foundation of individual liberty …To disregard this moral law is to deny being one’s own man; disobedience invites enslavement — being owned.
Observe how the fruits of individual effort are increasingly expropriated by the collective, how our options of ownership are being diminished…the way to reverse this dreadful trend is to heed the Commandment against theft. Government’s role here, as in the case of murder, is to inhibit these infractions of the moral law, not to promote them.
Leonard Read was already swimming against the modern stream when he wrote “Liberty Versus Tyranny.” How much legislation and regulation today inhibits infractions of the moral law compared to how much enables them to be violated? For instance, “thou shalt not steal” seems to have lost even more ground to government domination. So it is worth rethinking Read’s thoughts on the subject, which echo Frederic Bastiat’s inspirational classic, The Law:
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…this act that it is supposed to suppress.
The law…is to protect persons and property…if the law acts in any manner except to protect them, its actions then necessarily violate the liberty of persons and their right to own property.
Gary M. Galles is a professor of economics at Pepperdine University.