Law and Morality

I. The Morality of Law?

Is it conceivable that a law could be written which would contain no moral judgment? Clearly it is not. For even the man who says, "The law should stay out of the business of morality!" is making his own peculiar moral judgment: that laws concerning moral judgments are wrong. But if the law should not concern itself with moral judgments, why should it concern itself with this one?

The man who makes such a statement has no grounds upon which to base his call for the repeal of the laws he is condemning; for if the law should not concern itself with moral judgments, it should not concern itself with his, either.

It is a simple axiom, then, that all laws are based upon moral judgments. The question that arises from this fact is not "Should moral judgments be made into law?" but rather, "What moral judgments should be made into law?"

Before we can address this question, there is a much more fundamental question that must first be addressed.

II. What is the Law?

It is useful to introduce this question with a common analogy--not because the analogy is true, but precisely because the failure of the analogy provides us with several insights into the nature of a legal system.

The analogy is that the laws of a country are like the rules of a game. The first point to be made about this analogy is this: a person creates a game, and then invites people to voluntarily submit to the rules in order to play the game with him. No one, however, created the reality which we all inhabit--and those who are forced to abide by the laws of the legal system did not voluntarily agree to them before entering society. Every person alive has entered involuntarily into the same objective reality. Thus, one objective morality must necessarily apply equally to every person, simply by virtue of his personhood--even those charged with the creation and operation of a given society's legal system. Those who create laws and administer them are not appointed by divine decree, and as the administers of the law, they are under a particular obligation not to violate the very moral code that they are charged with upholding. The content of this objective moral code is the remaining question to be answered.

The next point about this analogy is this: When a person playing a game breaks the rules, his penalty is only within the context of that particular game. For instance, in a game based on a scoring system, he will lose points. Life is not a game, and it has no scoreboard. What happens to a man who breaks a law? He is punished physically. There are many different types of punishment, but they all have this one thing in common: they are physically violent. To be clear, the definition of violence used throughout this articleis, "The use of force by one man against the person or property of another man." Thus, to punish a thief by using physical force against his person--to restrain him--and then against his property--to return the stolen goods--is violence. To punish a murderer by using physical force against his person--either by confining him to a jail cell or by executing him--is violence. To punish a person who drives through a red light by using physical force against his property--by demanding that he hand over a fee to the policeman--is violence.

It was explained in part I that it is axiomatic that all laws implicitly contain moral judgments. Now that we recognize what the law is--violence--we know what that moral judgment is. A law is not simply a statement that the activity in question is "bad." A law is a statement that it is just that violence be used against anyone who engages in a particular activity. This is a fundamental difference, and its importance cannot be stressed strongly enough; for to declare something wrong is not to imply that it is acceptable to use violence against someone who engages in that activity. For example, we may agree that excessive consumption of alcohol is wrong--but this would not imply that it is morally acceptable to kill or imprison alcoholics.

To answer the question, "What is the proper role of the law in society?," we must first ask ourselves a far more basic question:

III. What is the proper role of violence in society?

Suppose a thief uses force against an innocent man in order to take a sum of money from that man's possession and into his own; and that that man then in turn uses force against the thief in order to take that same a sum of money back into his own possession. Both men have committed precisely the same physical act: the violent removal of a sum of money from another man's possession. Which instance of violence was morally defensible, and which was not? The key difference--indeed, the only difference--between these two instances of violence is that one (the thief's) was committed in the absence of prior violence, while the other (the victim's) was committed in response to an instance of prior violence. And it was obviously the victim's use of violence which was morally defensible, and the thief's which was not. The key qualification for the moral defensibility of any instance of violence, then, is whether it was committed (a) in the absence of prior violence, or (b) in response to such an instance of prior violence. If (a), it is immoral; if (b), it is moral. the unjust use of violence must necessarily precede any just use of violence. The initiation of violence is unjust; and only violence in retaliation can be just.

Suppose alternatively that a man breaks into a building that happens at the time to be occupied by one man and one woman. The infiltrator kills the man, and is then in turn himself killed by the woman. Both the infiltrator and the woman have committed precisely the same physical act: the violent ending of another person's life. Which instance of violence was morally defensible, and which was not? The key difference--indeed, the only difference--between these two instances of violence is that one (the infiltrator's) was committed in the absence of prior violence, while the other (the woman's) was committed in response to such an instance of prior violence. And it was obviously the woman's use of violence which was morally defensible, and the infiltrator's which was not. The key qualification for the moral defensibility of any instance of violence, again, is whether it was committed (a) in the absence of prior violence, or (b) in response to such an instance of prior violence. If (a), it is immoral; if (b), it is moral. And again, the unjust use of violence must necessarily precede any just use of violence. The initiation of violence is unjust; only violence in retaliation can be just.

IV. Implications for the Law

I am operating here from the premise that morality exists because human happiness is an end unto itself, and that a just and free society is a necessary precondition to that happiness; and as such, I hold that the above principle: that the initiation of violence is unjust, and only the retaliation against such violence that can ever be just, is the only principle capable of meeting those criteria, and that this is the only principle that could form the basis for a society that is equally free and just to all of its members. Aside from this principle, every member of society should have the right to do as he sees fit with his own person, and with his own justly acquired property, so long as he does not directly harm the person or property of any other member of society in doing so.

So if it is true that the immoral use of violence must necessarily precede any moral use of violence; and if it is true that the law itself is, by definition, violence; what then is the proper moral role of the law in society?

The proper role of the law is exactly the same as the proper role of violence: that it be used only in response to the immoral use of violence. For only the unjust initiation of violence can justify the use of violence in retaliation. A just law is one that stands up to this criterion.

There is another side to the coin we have here been describing. This side of the coin is expressed by the question, "What is the moral status of a law that is not used in response to the immoral use of violence?" That law would itself constitute the immoral use of violence, for it is the initiation of violence that is unjust, and the retaliation again such an initiation of violence that is just. If the morality of the law derives solely from the moral right of each man to defend himself with violence from violent aggression, and the law itself becomes violent aggression, then man has the right to defend himself from it with violence.

As Frederic Bastiat wrote in The Law, "The law perverted! The law, I say, not only turned from its proper purpose but made to follow an entirely contrary purpose! The law become the weapon of every kind of greed! Instead of checking crime, the law itself guilty of the evils it is supposed to punish!"

Such is the moral status of any law that is not directly concerned with defending and protecting men's rights. Such is the moral status of any law concerning any action of any man that does not constitute violent aggression against another man's person or property.

Such, therefore, is the moral status of any law concerning such activities as gambling, the use of drugs, prostitution, or any other action that does not constitute an initiation of violence against anyone's moral right to his own person or property. Our moral judgment of these actions is entirely irrelevant to the moral question which the law is actually concerned with, which is: Is the use of violence against this activity justified? The answer to this moral question is that if the activity itself does not involve violence, NO; the use of violence is not justified.

At least in regards to our personal lives, we recognize this truth. Upon seeing a man gambling, or smoking marijuana within his own home, very few men would attempt to drag the man into a cage and confine him there for having been so "immoral," even if they might condemn the morality of the action itself; for the act of locking the gambler or stoner in a cage would itself constitute an unwarranted and immoral use of violence. The gambler or stoner would be justified--regardless of the morality of his actions, which the attacker may well be right to condemn--in defending himself from his aggressor--even with violence, if such became necessary. For the gambler and the stoner are violating no one's rights; the moralizer who breaks into the former's home and tries to confine him to a cage is. Morally speaking, however, there is no distinction whatsoever from a policeman breaking into a person's home and throwing him in jail, and a private citizen breaking into a person's home and locking him in a cage. Where the one is justified, so is the other; and where the one is not, neither is the other.

As Frederick Bastiat wrote also in The Law, "[the] law by no means confines itself to its proper functions. And when it has exceeded its proper functions, it has not done so merely in some inconsequential and debatable matters. The law has gone further than this; it has acted in direct opposition to its own purpose. The law has been used to destroy its own objective: It has been applied to annihilating the justice that it was supposed to maintain; to limiting and destroying rights which its real purpose was to respect. The law perverted!"

The issue is not that the law should not concern itself with morality; it is that a law that initiates violence against the partaker in any activity which violates no one else's rights can have no pretense to being moral at all!