Legislation and Objective Law
by Morris & Linda Tannehill (1970)
It has been objected by advocates of government that a laissez-faire society, since it would have no legislative mechanism, would lack the objective laws necessary to maintain social order and justice. This is to assume that objective law is the product of the deliberations of some legislative body, and this assumption, in turn, springs from a confusion about the meaning and nature of law.
The adjective “objective” refers to that which has an actual existence in reality. When used to refer to the content of one’s mind, it means ideas which are in accordance with the facts of reality. Mental objectivity cannot be “apart from the human mind,” but it is the product of perceiving the facts of reality, integrating them in a non-contradictory manner into one’s consciousness, and, thereby, reaching correct conclusions. The truth to be noted here is that the mind does not create reality; the function of human consciousness is to perceive reality - reality is the object, not the subject, of the reasoning process. (As students of philosophy will recognize, this paragraph notes the distinction between metaphysical objectivity and epistemological objectivity.)
Objective laws, then, are rules, or principles, which are expressions of the nature of reality; they are not the expressions of the subjective whims and prejudices of some person or group of people or of the culture as a whole. An objective law is reality-centered. It springs from the nature of the entities and processes to which it relates and can never conflict with that nature. For this reason, an objective law always “works,” while a law based on subjective whim, not firmly tied to reality, contradicts the nature of that to which it relates and so leads to confusion and destruction.
Because it is reality-centered, an objective law is always understandable to a man using his reason - that is, it always makes sense. It is also moral when regarding a principle of human behavior, because it operates in accordance with the nature of man and so acts to further his life, his welfare, and his interests as a rational being. With regard to human behavior, objective law, because it springs from the nature of reality - from things as they really are - must be practical, rational, and moral.
It is true that objective laws governing the nature of human relationships are necessary for the maintenance of societal order, but to conclude from this that statutory laws formulated by some legislative body are necessary for societal order is to be guilty of a non sequitur. In order to understand the nature of this non sequitur, it is necessary to examine two kinds of law - statutory law and natural law.
A natural law is a causal attribute which governs an entity’s actions, which attribute is inherent in that entity’s specific nature (the adjective “natural” means “of or pertaining to the nature of” - to what a thing is in reality). Since it is inherent in the nature of the entity to which it relates, natural law is always objective. It cannot help being reality-centered, because it is inherently inseparable from the nature of a real thing. This means that it’s practical - it must always “work,” because it relates to things as they really are (it could hardly relate to things as they really aren’t). Natural law can’t be repealed, nor does it have any loopholes. A man who “breaks” a natural law does so at his own peril. Immediately or eventually, it will break him.
A familiar example of natural law is the law of gravity. It is the nature of the earth to attract other bodies to itself, so when you drop something, it falls. This law is objective, universal, and inescapable. You may fly an airplane by making use of the natural laws of aerodynamics, but you have not thereby contradicted or repealed the law of gravity - the earth is still pulling downward on your plane, as you will discover if your engine fails.
Natural law applies to man as well as to his environment, because man is also an entity with a specific nature. Some actions are possible to man, and some are not. He can walk and run, but he can’t turn into a pine tree. Since he is a being with a specific nature, man requires a specific course of action for his survival and well-being. He must eat or he will starve. His body requires certain substances to remain healthy - vitamin C to prevent scurvy, for example. If he wants to know something, he must use his senses and his mind to learn it. If he wants the great survival-values of friendship, trade, division of labor and sharing of knowledge, he must seek and merit human companionship.
While it is generally recognized that man’s physical and even his mental nature are subject to the rule of natural law, it is just as generally assumed that the area of morality, and specifically moral human relationships, is completely outside the scope of natural law. This assumption is held tacitly, rather than being identified and defended, simply because it can’t be rationally defended. It is completely foolish to assert that man is a being with a specific nature and therefore subject to the rule of principles derived from that nature in all areas … except when he deals with other men. Do men cease to have a specific nature when they come into relationship with other men? Of course not!
Natural law does apply to human relationships, and it is just as objective, universal, and inescapable in this area as in any other. The proof of this is that actions have consequences … in the area of human interaction as surely as in the area of human medicine. A man who swallows poison will become ill (even if he has complete confidence that the poison is nothing more than vitamin pills). A man who aggresses against others will be distrusted, avoided, and probably made to repay his victims (if some government doesn’t interfere). A man who cheats his customers will be driven out of business by his more reputable competitors. The consequences of “breaking” natural law cannot be avoided. No matter how cleverly a man schemes, he will suffer if he insists on acting in a manner which contradicts the nature of human existence. The consequences may not be immediate, and they may not be readily apparent, but they are inescapable.
The free market is a product of the working of natural law in the area of human relationships, specifically economic relationships. Because man’s survival and well-being are not given to him, but must be achieved, men act to maximize their welfare (if they didn’t they couldn’t keep on living). To maximize their welfare, they trade with other men, and when they trade, each man tries to get the best possible “deal.” Buyers bid against each other and push prices up. Sellers bid against each other and push prices down. At the point where the two forces meet, the market price is set, and everyone who wants to trade at that price can do so without creating surpluses or shortages. Thus, the law of supply and demand, and all other market laws, are really natural laws, directly derived from the nature and needs of that specific entity, man. The fact that market laws are natural laws explains why the free market works so well without any outside regulation. Natural law is always practical - it always “works.”
Government is an artificial construct which, because of what it is, is in opposition to natural law. There is nothing in the nature of man which demands that he be governed by other men (if there were, then we would have to find someone to govern the governors, for they, too, would be men with a need to be governed). In fact, the nature of man is such that, in order to survive and be happy, he must be able to make his own decisions and control his own life … a right which is unavoidably violated by governments. The ruinous consequences of government’s inescapable opposition to natural law are written in blood and human degradation across the pages of all man’s history.
The operations of natural law in human relationships are much less apparent in a governmental society than in a laissez-faire society, because government, in an effort to get something for nothing, tries to dissolve or ignore the laws of cause and effect and so obscures the consequences of many actions (particularly bad ones). Politicians want power which they have no right to and plaudits which they have not earned, so they promise money which isn’t theirs and favors they have no business granting. For instance, they promise to raise the wages of labor (a thing which only an increase in production can do, since the money for wages can’t come out of nothing). When they pass a minimum wage statute, they seem to have bypassed natural-economic law, but actually they’ve only obscured it. Employers are forced to compensate for the wage increases to some of their employees by laying off others, which creates a class of jobless, hopeless poor. Wage rates go up for some at the expense of falling to zero for others. Natural law can’t be legislated out of existence, no matter how hard the politicians try, because it is inherent in the nature of things. Natural law is just as operative in a governmental society as it would be in a laissez-faire one; it is simply harder to trace because of the complicated meddlings of the bureaucrats,
The tacit assumption that natural law does not apply to human relationships has led men to the belief that society must have a system of statutory laws to “fill the gap” and maintain social order. At the very least, it is believed that statutory law is necessary to codify natural law so that it will be objective, of universal application, and easily understood by all.
Statutory law is a code of rules established and enforced by governmental authority. Any particular statutory law may be based on an objective principle, or it may be based on a principle which is contrary to the nature of reality. It may even be a range-of-the-moment measure with no basis in any sort of principle at all (such laws are characteristic of governments when they feel themselves to be in crisis situations). There is nothing which can be built into the nature of a government which will guarantee that all, or even a majority, of the laws it passes will be based on objective principles - in fact, history shows that the reverse is usually the case; most laws are based on the subjective whim of some politician.
Statutory laws which are not based on objective principles are immoral and inescapably harmful; anything which is in opposition to reality - to things as they really are - can’t work. Laws which are based on objective principles are merely a legal restatement of natural law, and are thus unnecessary. A man can identify a natural law, and he can even write it down in a textbook for other men to understand, but he cannot “pass” it because it already exists - inescapably. Once the natural law has been identified and understood, nothing more can be added by restating it in legal form and “making it compulsory.” It already is compulsory, by its very nature.
A statutory law, even one based on an objective principle, must be written before the occurrence of the crimes which it is designed to inhibit or punish. Since every crime is committed by a different individual in a different set of circumstances, the law cannot possibly be made to fit all cases (except, perhaps, by making it so flexible as to nullify it altogether). This means that, although the principle behind the law was objective (reality-centered), the application of the law to specific circumstances cannot be objective. An objective principle is firm and unchanging because it is rooted in the nature of things, but the application of this unchanging principle must vary to fit the circumstances of various cases. Unless the application fits the case, it is non-objective and, therefore, unjust.
No matter how learned a body of legislators or how long and assiduously they debate, they can never reach the state of omniscience necessary to predict and allow for every circumstance of every individual case which will ever come within the jurisdiction of their law. In fact, by the very act of writing down the provisions of the law and making them binding on everyone in an equal manner regardless of individual variations, legislators freeze the application of their law so that it cannot be objective. Thus, no statutory law, even if based on objective principle, can be objective in its application.
Legislators are aware of the necessity of making laws flexible to fit a range of cases, and they do their best to solve this problem. They try to foresee and provide for as many situations as possible as they write each law, and they usually stipulate flexible punishments (a prison sentence of from two to ten years, for instance) which leaves the final decision up to the judge of each case. This sincere attempt, however, has the inevitable effect of making the law voluminous, complex, unwieldy, and difficult to interpret or even read. Legislation becomes bogged down in reams of words and men are often convicted or released on the basis of nothing more than the technical interpretation of an obscure wording in some statute. In an effort to be sufficiently flexible and yet totally precise, legislators often write laws of such appalling and complicated intricacy that even lawyers (who prosper in direct proportion to the size and complexity of the legal system) are confused. There are tens of thousands of complicated statutes, each in legal terms so specialized that it might as well be in a foreign language, and yet the puzzled citizen is curtly told that ignorance of the law is no excuse!
The attempt to make legislation flexible enough to fit individual cases also nullifies the universality of the law. A judge who has the option of giving a sentence which may be anywhere from two to ten years has nothing to guide him in his choice except his own private beliefs. Some judges are habitually lenient, and some habitually harsh, so that the fate of the accused usually depends as much on the personality and mood of his judge as on the actual circumstances of the case. Changing from a system of punishment in the form of prison sentences to a system of justice in the form of reparations payments to the victims would do nothing to solve this problem as long as the legal-judicial mechanism remained a function of government rather than of the free market. Free-market arbiters are guided in their choices by the desires of consumers, with profit and loss as a built-in “correction mechanism.” But government judges have no signals to guide their decisions. Even if they wanted to please their “customers,” they would have no signals to tell them how to do so. A government judge, faced with a flexible penalty, can have nothing to guide him but his own opinions and whims.
Natural law, as applied to human relationships in a free-market context, is objective in both its principles and its application. While the principles of natural law are unchanging, the application of these principles always fits each case, because the natural law involved in any case is derived from the nature of each individual and the unique situation in that particular case. When an aggression is committed, it results in a loss to the victim. This loss is specific and individual for each case. The victim lost a sum of money, or his car, or a leg, and reparations payments are based on the worth of that specific value. In setting the worth of losses (particularly non-exchangeable ones) the arbiters are governed by the value-structure of the consumers who purchase their service, and they have profit and loss signals to guide them. Each case is decided on its own merits. The aggressor’s fate is determined on the basis of his own past and present actions - it isn’t arbitrarily decided by a group of elected strangers acting without any knowledge of the particular case (and even before it happened).
Natural law, as applied by the free market, is also very short, simple, and easily understood. There is only one basic rule of just human relationships: No man or group of men may attempt to deprive a man of a value by the initiation of physical force, the threat of force, or any substitute for force (such as fraud). All other rules, such as prohibitions against murder, kidnapping, theft, counterfeiting, etc., are merely obvious derivatives of this one basic natural law. A man who wants to know whether he is acting properly toward his fellow man doesn’t need a library of legal tomes and a university education. All he needs to do is ask himself one simple question, “Am I causing anyone a loss of value by an act of coercion?” As long as he can honestly answer no to that one question, he need fear no law or retaliatory force.
This basic natural law of human relationships is already tacitly understood by almost everyone throughout the world. It finds common expression in such terms as, “It’s always wrong to start the fight.” It is the widespread and almost automatic compliance with this natural law by the majority of people which accounts for the fact that human relationships have not completely disintegrated into bloody chaos in spite of the constant push of governments in this direction. Most people live with their neighbors quite peacefully on the basis of this natural law, and they very rarely call on a policeman or judge to take care of their disagreements. And they do so, for the most part, without even consciously identifying the natural law which guides their actions.
The assumption that statutory law is necessary to a society involves the more basic assumption that a legislative body has the moral right to pass laws which are binding on the rest of the population. Advocates of democracy claim that the fact that legislators are elected by the people gives them the right to “represent the people” in matters of legislation. But “the people” is a collectivistic concept; there is no such entity as “the people” which lives, breathes, has interests, opinions and goals. There are only individuals. Do legislators, then, have a moral right to represent the individuals “under their jurisdiction?”
In a democracy, the function of the legislature is, theoretically, to discover what is in “the public interest” and to pass legislation governing people accordingly. But just as there is no such entity as “the people,” there is no such thing as “the public interest.” There are only the multitude of individual interests of all the great variety of people who are subject to the government. So when legislators pass a law “in the public interest,” they are actually favoring the interests of some of their citizens while sacrificing the interests of others. Since legislators, being elected officials, need money and votes, they usually favor the interests of those with political pull and sacrifice the interests of those without it. Also, since government’s only source of gain is its productive citizens (the non-productive ones have nothing for government to take), the competent are usually sacrificed in favor of the incompetent, including the politicians.
This type of injustice is inescapably built into the structure of government. A government is a coercive monopoly which forces everyone in its geographical area to deal with it. As such, it must prevent its citizens from freely choosing between competing sellers the services which suit them best. Every citizen is forced to accept government services and live by government standards, regardless of whether they are in his interest or not.
No matter how “democratic” and “limited” a government is, it cannot actually represent the interests of each one of the multitude of diverse individuals who are its citizens. But these individual interests are the only interests which really exist, because there is no such entity as “the public” and, therefore, no such thing as “the public interest.” Since government can’t represent the interests of each of its citizens, it must exist by sacrificing the interests of some to the alleged interests of others; and sacrifice always decreases the total store of value.
In a free market, there is no such thing as a coercive monopoly. Every man is free to pursue his own interests as long as he accords the same right to everyone else, and no one’s interests are sacrificed to “the public good” or “the will of the majority.” In a laissez-faire society, a man who wants to buy a good or service may patronize any business whose merchandise or service pleases him. If he prefers Brand X, he is not forced to buy Brand Y because 51% of his fellow consumers prefer Y and the system allegedly can’t be run without unanimity.
But even if they could avoid sacrificing the interests of citizens, elected legislators still wouldn’t be justified in making laws which were binding on anyone other than themselves. Opinions, even majority opinions, don’t create truth - truth is true, regardless of what anyone thinks about it. Fifty million Frenchmen can be wrong, and frequently are. So, if the majority of voters are completely wrong in their support of a candidate, or the majority of legislators are terribly mistaken in their judgment of a law, their majority opinion doesn’t change the fact that they are wrong. It is sheer superstition to believe that if enough people (or, perhaps, enough learned and influential people) think a thing is so, this will make it so. A law may be passed by a majority of legislators who were elected by a majority of citizens, and yet it may very well be immoral and destructive despite the majority’s collective delusions to the contrary. And no group of people, even if they are in the majority, have the right to force an immoral and destructive law on anyone.
Some advocates of “limited government” have attempted to get around this problem by stipulating that the government must be limited to a very strict constitution to keep it confined to its “proper” functions and prevent it from passing immoral and destructive laws. But this is to ignore the fact that those who write the constitution and those who enforce it must be elected by majority vote (or else appointed by those who are elected). A constitution is only as good as the men who write and enforce it, and if majority opinion can’t create truth in matters of legislation, it can’t create truth in matters of constitutional formulation and interpretation, either. If it is wrong to employ the mass opinion-mongering method of voting to determine the policies of a government, it is even more wrong to use it to determine the form and structure of that government.
Besides, the idea of a written constitution as a social contract between the people and their government is a myth. A contract is only binding on those who sign it, which means that a contract between the people and the government would have to be signed by every citizen in order to be binding on “the people.” The Constitution of the United States wasn’t even signed by the citizens who were alive at the time it was Written, let alone by all the millions born later who are supposedly bound by it.[1] If one were to institute a constitution and have it signed by every individual who wished to be bound by it, one would also have to admit the right of those who did not agree to refuse to sign and even to make their own arrangements for their protection, in which case one would have, not a government, but a business in competition with other businesses in a free market.
Government laws and constitutions can never be either right or practical. Statutory law, which is supposed to codify natural law to order to make it objective, of universal application, and easily understood, does just the opposite of all three. Natural law is objective in both its principles and its application because it is reality-centered and derived from the nature of the entities involved in each case. Statutory law, even when based on objective principles, cannot possibly be objective in its application because it can’t vary with varying cases. Natural law is universally applicable because it is part of the very nature of things, and nothing can be separated from its own nature. Statutory law cannot be universally and equally applicable because if written inflexibly it won’t fit individual cases, and if written flexibly it leaves judges with nothing to guide their decisions. The natural law of human relationships is easily understood and can be stated in one brief sentence. Statutory law is a writhing mass of impenetrable complexity, and it cannot avoid being so because it must attempt to fit a multitude of varying circumstances which haven’t even happened yet.
Because the free market is a product of the working of natural law, it facilitates the application of natural law to any field in which it is involved. The rules which would govern the businesses of protecting values, arbitrating disputes, and rectifying injustice are merely outgrowths of general economic law, which is an outgrowth of natural law. The same economic rules which would guarantee consumers in a free market the best possible products, service, and prices in their grocery stores and which would protect them from dishonest and unscrupulous drug manufacturers, would work in the areas of protection, arbitration, and rectification. Natural law doesn’t give up in puzzled helplessness just because some particular area has always been controlled by political bureaucrats.
Free men, acting in a free market, would manage their affairs in accordance with natural law. The market is, itself, a product of natural law and, therefore, acts to penalize those who “break” that law. Statutory law is a clumsy, anachronistic, and unjust hindrance and is no more necessary to regulate the affairs of men than are kings and tribal witch doctors.
Notes
1. For an excellent development of the invalidity of the U. S. Constitution, see NO TREASON: The Constitution of No Authority, by Lysander Spooner.
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