A blupete Essay

Positive Law, Part 10 to blupete's Essay
"Legislation: Robbers' Rules"

".. when the law, by means of its necessary agent, force, imposes upon men a regulation of labor, a method or a subject of education, a religious faith or creed - then the law is no longer negative; it acts positively upon people. It substitutes the will of the legislator for their own wills; the initiative of the legislator for their own initiatives. When this happens, the people no longer need to discuss, to compare, to plan ahead; [it being intended that] the law does all this for them. Intelligence becomes a useless prop for the people; they cease to be men; they lose their personality, their liberty, their property." (Frédéric Bastiat, 1850.)
It is not likely through any surveying techniques, now known, that any conclusions can be arrived at, as to what people want for themselves: but, even if we could list the wants and desires of mankind, the list would be as numerous and as diverse as the people themselves. The best, one might expect from a survey is that there might be some agreement, on a limited number of things, as to what is not wanted. Professor Bruno Leoni:
"The common will, conceived as the will common to each and every member of a society, is much more easily ascertainable, as far as its content is concerned, in the 'negative' way already evidenced by the Confucian principle than in any other 'positive' way. Nobody would contest the fact that an inquiry among any group whatsoever conducted with the object of ascertaining what its members do not want to suffer as a result of the direct action of other people on them would give clearer and more precise results than any inquiry relating to their wishes in other respects. Indeed, the celebrated rule of 'self-protection' propounded by John Stuart Mill not only can be reduced to the Confucian principle but becomes actually applicable only if so reduced, for nobody could effectively decide what is and what is not harmful to any particular individual in a given society without relying in the end upon the judgment of each member of that society. It is for all of them to define what is harmful, and this is, in fact, what any one of them would not want others to do to him."18
In its barest form (and likely in the only workable form) laws are those which are restrictive and which relate to the collective organization of the individual's right to lawful defense. Restrictive law in not out to get anyone to do anything in particular; it is there to forbid something: criminal law is an example of restrictive law. Restrictive laws are employed to oblige the citizen to abstain from harming others. The preference for restrictive laws arises because any other approach will likely infringe a person's natural and prior existing rights.19


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[Essays, First Series]
[Essays, Second Series]
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[Essays, Fourth Series]
[Subject Index]
Peter Landry

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2011 (2014)