An Introduction to Frédéric Bastiat’s The Law

Bastiat begins his essay by lamenting the degraded state of the law in France. According to Bastiat, the law has been diverted from its original purpose of securing justice and instead has become a tool of promoting injustice.

Bastiat did not believe that the law was merely the commands and dictates delivered by politicians. Instead, Bastiat believed the law ought to be based on the fundamental nature of humans and universal moral principles. Being a devout Catholic, Bastiat believes that God has given humans the gift of life and left them fundamentally free. However, as Bastiat points out, “life cannot support itself” (Bastiat 2007, p. 1). Humans cannot simply stand like inanimate objects; so God has given us “faculties,” the ability to gather resources and manipulate our environment using reason, something we can do to an extent beyond other creatures.

For Bastiat, the defining features of humans are personality, liberty, and property. Some liberals since have argued that private property and liberty are inventions of the state, but Bastiat sharply disagrees. He writes, “It is not because men have made laws that personality, property and liberty exist” (p. 2). In fact, for Bastiat this trio pre-​date laws; laws were then created and instituted to protect these three gifts, which are “anterior and superior to all human legislation” (p. 2).

Bastiat, like many natural rights theorists, argues that God has given every person a right to defend their person, property, and liberty from the attacks of others. Since every person individually has the right to protect themselves, Bastiat explains, then they are perfectly justified in banding together and organizing a system that provides for every member’s defense against their personality, liberty, or property.

But Bastiat stresses that when people come together to form a state, they do not magically gain new powers or authorities. At all times, the collective right of defense “has its principle, its reason for existing, its lawfulness, in individual right” (p. 2). Therefore, a group of people together cannot do anything that an individual would not be permitted to undertake alone. If it is unjust for one person to steal from another, then it cannot magically be made acceptable if any collective force or government does the same. Bastiat, throughout his essay, repeats this line: “the law is the organization of the natural right of lawful defence,” (p. 3) nothing more, nothing less.

For Bastiat, the law does not exist to regulate our personal lives, to redistribute wealth, or to organize and command people. At its best, the law is “a mere negation,” (p. 19) only requiring us not to harm others. What God we pray to, who we associate with, and how we earn an honest living are questions that the law itself cannot answer. We are left free by God to decide how best to answer these questions ourselves. Bastiat goes so far as to express that the law’s primary purpose is “to prevent injustice from reigning” (p. 19).

However, Bastiat believes it rare for nations to properly relegate the law to its legitimate role of protecting people from the infringements, fraud, and attacks of others. Increasingly, the law perpetuates the very crimes it was established to prevent, and doing so on an unprecedented scale.

If people are allowed to use their property as they pleased and were free to trade with whomever they please, Bastiat argues that progress would be “incessant, uninterrupted and inevitable” (p. 5). According to Bastiat, humans can only live if they constantly produce the necessary goods that make life bearable. This natural fact of life cements private property as a vital institution for Bastiat.

But humans are not perfect. Bastiat refers to labor as “itself a pain” (p. 5) and says that humans are naturally hardwired to avoid pain. Knowing labor takes an awful lot of blood, sweat, and tears, Bastiat believes that despite any social norms or morality, people will often live “when they can, at the expense of another” (p. 5). For example, cooking a meal requires knowledge, time, and effort. Taking someone else’s dish is an awful lot less work than cooking one’s own from scratch. Bastiat argues that this “fatal tendency” (p. 6) in the heart of humanity is the origin of plunder, the opposite of property.

But since people are rational, there is a solution to this conundrum: making labor preferable to plunder. Bastiat argues that “wherever plunder is less burdensome than labor, it prevails” (p. 5) despite a society’s moral principles. Ideally, the law checks humanity’s “fatal tendency” by punishing those who try to live off the fruits of other’s labor, making plunder a more costly and dangerous endeavor than labor.

Going back to the example of cooking, I might think of stealing someone else’s dish for a lovely meal; but if I do, I might have to compensate the victim or even be punished for my crime. The chance of being caught makes me more likely to cook for myself since theft could be an awful lot more trouble than buying a few cookbooks.

To protect property and civil society, Bastiat advocates that laws ought to always be “in favour of property, and against plunder” (p. 6). But while humanity’s fatal tendency is thus subdued, another, even more complex problem rears its ugly head.

Laws are not handed to us on a silver platter; they must be conceived, created, and upheld by people. Yet those in power are not demi-​gods. What Bastiat describes as the fatal tendency is universal. Politicians share that same flaw in their nature.

Bastiat laments that often “the law is made by one man or class of men” (p. 6) who are entrusted to make laws. Since everyone wishes to live with as little labor as possible, Bastiat explains that those in charge of the laws invariably will use them to plunder the population at large.

When this perversion of law takes place, society is separated into two classes, the plunderers and the plundered. The law now sanctions what Bastiat calls “legal plunder” (p. 13). Bastiat then identifies two kinds of plunder, illegal and legal plunder. Illegal plunder is straightforward. It occurs when a person takes a portion of another’s property through theft, fraud, or force. Legal plunder is a more complex issue.

The law, when steered away from its proper sphere, can become a tool of plunder. Unlike illegal plunder, legal plunder has the power of the state to back it. Bastiat explains, “Sometimes the law places the whole apparatus of judges, police, and gendarmes at the service of plunderers” (p. 13). Worse yet, when legal plunder occurs the victim has no recourse as the law will treat them like a criminal if they attempt to defend their rights.

Bastiat provides two simple criteria for deciding whether or not a law may be considered legal plunder. Firstly, he writes, “See whether the law takes from some persons what belongs to them, and gives it to other persons to whom it does not belong” (p. 14). If a law benefits one person at the expense of another, there is a high probability it is legal plunder. Secondly, if the law takes an action which a regular citizen cannot undertake without committing a crime, then legal plunder is likely afoot. When the law takes from one person and gives to another and, in the process, partakes in activities that would usually be a crime if perpetrated by a regular citizen, then it may be considered legal plunder. Any law that promotes legal plunder is a threat to society. Upon identifying legal plunder, Bastiat advises the reader to “abolish this law without delay” (p. 14).

In a perfect world, the plundered would overthrow their current oppressors and abolish all legal plunder. However, Bastiat believes this is a rarity. Instead, often the plundered may wish to share the benefits of legal plunder. All of the competing interest groups, classes, and aggrieved begin to see the law, not as a check on injustice but a source of wealth hidden in the pockets of their neighbors.

Every group tries their best to acquire as large a share of legal plunder as they can by appealing to those who legislate. Bastiat laments that “the present-​day delusion is an attempt to enrich everyone at the expense of everyone else” (p. 14). Taking from one and giving to another merely moves pre-​existing wealth around; new wealth is not created. Bastiat argues the state can actually drain wealth, as when state cronies dole out legal plunder to favored parties while, of course, taking a cut for themselves.

But this is all very abstract. What does legal plunder look like in the real world? Bastiat believes that plunder can be committed through tariffs, protectionist policies, subsidizing industries, guaranteed jobs, guaranteed profits, public schools, minimum wages, and free credit. Bastiat is an advocate of what theorists call a night-​watchman state, a minimal state that only functions are to protect people’s rights. For Bastiat, the state ought only protect the trio of personality, liberty, and property.

Under his ideal regime, issues of education, healthcare, and housing would be decided by the voluntary interactions of everyday people engaging in commerce and serving one another’s needs in a free market system. Bastiat’s vision of limited government is radical. If Bastiat could observe contemporary America, he would be appalled by the colossal size and scope of a state that creeps further and further into our everyday lives.

A non-​libertarian might reasonably ask, “why should the law just be used to protect rights? What about healthcare, education, roads, scientific research, or even cultural heritage?”

Despite having written about the harmful effects of legal plunder throughout his life, in The Law Bastiat restricts himself to talking about two major effects that dramatically alter society for the worse.

Firstly, Bastiat argues that constant state intervention confuses people’s sense of morality. Despite our best efforts, Bastiat explains, “there is in all of us a strong disposition to regard what is lawful as legitimate” (p. 7). A quick glance at the atrocities of history shows us that the law and justice are often not on the same side. Usually, the law is used to exploit, oppress, and demean people of various religions, genders, sexualities, races, etc. Bastiat argues that when the law and morality are in such stark contrast, the average citizen finds themselves either losing their “moral sense” or “respect for the law” (p. 7).

Next, when the law is not restricted, it becomes involved in every aspect of life. The FDA tells Americans the approved food they can eat and what medicines they are allowed to use. The department of education dictates how American our children ought to be educated. Zoning laws decide what people are allowed to do with their property. Occupational licensing determines what jobs people can and cannot work. The law has crept into every single aspect of life. Bastiat states that when the law is diverted from its proper purpose, politics will always exercise an “exaggerated importance” in our lives. When the law decides so much, Bastiat writes, “The political question will always be prejudicial, predominant, and absorbing” (p. 12).

The same non-​libertarian might say, “Well, maybe Bastiat might be convincing about what the law ought to be, but without the government’s intervention, who will run the country? Who will build hospitals, maintain roads, and educate the population?” For many, the society Bastiat describes sounds like a dystopia.

But as Bastiat explains, this is a misconception arising from socialist ideas and which often forgets the line between government and civil society. Bastiat explains that when he explained his idea to French socialists, they replied to him that if he didn’t want state-​run education, or a mandated religion, or legally enforced equality, he was thus entirely opposed to education, religion, and equality.

However, people do amazing things all of the time with little to no government support. Today, private companies are capable of launching rockets into space, a feat we used to think only governments could achieve. Bastiat did not oppose education, religion, or equality, and in fact, he cared deeply about all of these things. But Bastiat did vehemently oppose the state’s relentless efforts to regulate and legislate the minutiae of life that is best figured out by free individuals.