Law as a Weapon

As turmoil brews in various countries and the U.S. struggles with what to do about it, I consider the historical development that makes the peaceful sharing and transition of power possible. Many new institutionalist scholars talk about the need for the cultivation of credible commitments among members of a society that each will refrain from plundering the other. This anti-plunder norm requires large-scale adoption to be effective and a stable mechanism of enforcement at the margins. This development takes time and a lot of luck. Even as the U.S. contemplates “sending a message” to a Syrian regime which has violated international norms against the use of chemical weapons, I think it remains helpful to consider what cannot be achieved by military force: the instantiation of a stable and democratic government absent the prerequisite historical institutional development. The society must gradually appreciate what the purpose of law is in a diverse community. Frederic Bastiat put it this way:

Men naturally rebel against the injustice of which they are victims. Thus, when plunder is organized by law for the profit of those who make the law, all the plundered classes try somehow to enter—by peaceful or revolutionary means—into the making of laws.

 

According to their degree of enlightenment, these plundered classes may propose one of two entirely different purposes when they attempt to attain political power: Either they may wish to stop lawful plunder, or they may wish to share in it.

 

Woe to the nation when this latter purpose prevails among the mass victims of lawful plunder when they, in turn, seize the power to make laws!

 

Until that happens, the few practice lawful plunder upon the many, a common practice where the right to participate in the making of law is limited to a few persons. But then, participation in the making of law becomes universal. And then, men seek to balance their conflicting interests by universal plunder. Instead of rooting out the injustices found in society, they make these injustices general.

 

As soon as the plundered classes gain political power, they establish a system of reprisals against other classes. They do not abolish legal plunder. (This objective would demand more enlightenment than they possess.) Instead, they emulate their evil predecessors by participating in this legal plunder, even though it is against their own interests.

 

It is as if it were necessary, before a reign of justice appears, for everyone to suffer a cruel retribution—some for their evilness, and some for their lack of understanding.

Frederic Bastiat’s The Law

A.K.

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