“Law professors and lawyers instinctively shy away from considering the problem of law’s violence,” says Yale law professor Stephen L. Carter. “Every law is violent. We try not to think about this, but we should.”
Carter, one of the most astute legal minds in America, rightfully points out the inherent violence embedded in the law. But he draws some unfortunate conclusions from this fact:
On the first day of law school, I tell my Contracts students never to argue for invoking the power of law except in a cause for which they are willing to kill. They are suitably astonished, and often annoyed. But I point out that even a breach of contract requires a judicial remedy; and if the breacher will not pay damages, the sheriff will sequester his house and goods; and if he resists the forced sale of his property, the sheriff might have to shoot him.
This is by no means an argument against having laws.
It is an argument for a degree of humility as we choose which of the many things we may not like to make illegal. Behind every exercise of law stands the sheriff – or the SWAT team – or if necessary the National Guard. Is this an exaggeration? Ask the family of Eric Garner, who died as a result of a decision to crack down on the sale of untaxed cigarettes. That’s the crime for which he was being arrested. Yes, yes, the police were the proximate cause of his death, but the crackdown was a political decree.
The statute or regulation we like best carries the same risk that some violator will die at the hands of a law enforcement officer who will go too far. And whether that officer acts out of overzealousness, recklessness, or simply the need to make a fast choice to do the job right, the violence inherent in law will be on display. This seems to me the fundamental problem that none of us who do law for a living want to face.
But all of us should.
On my first reading of this passage I completely agreed with Professor Carter (who is, unfortunately, no relation). But after giving it some thought I realized it obscures more than it illuminates. To understand where he errs, we must first ask, “What is the law?”
My answer to that question is the same as that of Frederic Bastiat: civil law is the collective organization of the individual right to lawful defense. As Bastiat wrote in his essay, The Law,
Nature, or rather God, has bestowed upon every one of us the right to defend his person, his liberty, and his property, since these are the three constituent or preserving elements of life; elements, each of which is rendered complete by the others, and that cannot be understood without them. For what are our faculties, but the extension of our personality? and what is property, but an extension of our faculties?
If every man has the right of defending, even by force, his person, his liberty, and his property, a number of men have the right to combine together to extend, to organize a common force to provide regularly for this defense.
I have a God-given right to protect my property, and in some cases, to do so by force. But that does not mean I have the right to intentionally use lethal force to protect my property. Also, the mere possibility that the use of force could unintentionally cause death does not negate my right to use force in protecting my property.
Say, for example, that I catch a thief at the top of my stairs stealing my laptop. In grabbing it out of his hands I twist his arm, causing him to lose balance. The thief tumbles down the staircase and breaks his neck. He dies instantly.
I had no intention of killing the thief, and yet I would have to admit that death was always a possibility when applying physical force. Does that mean that since the punishment for the crime would be death — a price too high to pay for my laptop — that there should be no laws against stealing? Of course not. Intentionality carries a lot of weight in such scenarios, whether the force is being applied by me or by the Sheriff.
Despite his own statement to the contrary, Professor Carter’s framing of the issue could lead some people to the conclusion that because the law can lead to violence and death, it must therefore be immoral to have any civil laws at all (anarcho-pacifism?). But that’s not what he is getting or why he thinks we need more humility in legislation. I think what he objects to is using the law in ways that Bastiat calls a “perversion of force”:
Collective right, then, has its principle, its reason for existing, its lawfulness, in individual right; and the common force cannot rationally have any other end, or any other mission, than that of the isolated forces for which it is substituted. Thus, as the force of an individual cannot lawfully touch the person, the liberty, or the property of another individual—for the same reason, the common force cannot lawfully be used to destroy the person, the liberty, or the property of individuals or of classes.
For this perversion of force would be, in one case as in the other, in contradiction to our premises. For who will dare to say that force has been given to us, not to defend our rights, but to annihilate the equal rights of our brethren? And if this be not true of every individual force, acting independently, how can it be true of the collective force, which is only the organized union of isolated forces?
Nothing, therefore, can be more evident than this: The law is the organization of the natural right of lawful defense; it is the substitution of collective for individual forces, for the purpose of acting in the sphere in which they have a right to act, of doing what they have a right to do, to secure persons, liberties, and properties, and to maintain each in its right, so as to cause justice to reign over all.
The problem is not that the law is forceful or violent — it can and sometimes must be. The real problem is that the violence and force are too often used by the government to enforce laws that are not justifiable and have neither a moral basis or a grounding in natural rights. In other words, the problem is not the violence, the problem is the injustice.