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The Great Aim in the Struggle for Liberty is Equality before the Law.F. A. Hayek
It is hard to imagine two people more different. M. Lamartine was a poet who supported socialism; M. Bastiat was a philosopher who supported laissez-faire. Yet they were well acquaintedboth had attended the French National Assembly after the February Revolution of 1848and were at least gracious debating partners, if not outright friends.
Still, they disagreed on everything, especially economicsnational workshops, universal credit, minimum wage, protective tariffs, and industrial subsidies. One day, Lamartine wrote to Bastiat claiming to have discovered the root of their differences. Their exchange was captured in Bastiats pamphlet The Law: M. de Lamartine once wrote to me thusly: Your doctrine is only the half of my program. You have stopped at liberty; I go on to fraternity. I answered him: The second half of your program will destroy the first.
The difference between Bastiat and Lamartine was the central difference dividing classical liberals and socialists, and has since defined the philosophical debate dividing modern liberals and conservatives. Genuine justice, in the Enlightenment Classical-Liberal tradition, is fundamentally opposed to the egalitarian social justice of the modern left. The republican society based on liberty and equality under the law simply cannot coexist with the egalitarian society based on artificial equality of condition. In fact, the greatest threat to the institutions of the democratic republic comes not from the pulpits of Islamic fundamentalism, but from the mouths of well-meaning politicians preaching equality of condition, fair trade, and social justice.
The Republic: Law, Justice, and Equality
What is this strange creature called the republic? Definitions abound, but perhaps the best comes from Thomas Paines The Rights of Man. What is called a republic, is not any particular form of government... [but is rather the] object for which government ought to be instituted. [It is the] RES-PUBLICA... the Public Business of a nation. A republic is defined not by form but by function; not by organization of parts but by the object for which they are arranged.
What progress! If thats a republic, then whats the res-publica? What is the proper business of the state? To understand the answer, we must first analyze the philosophy of classical liberalism from its foundation. In the words of Samuel Adams, The Natural Rights of the Colonists are these: first, a right to life; secondly, to liberty; thirdly, to property; together with the right to support and defend them in the best manner they can. To prevent complete anarchy and chaos, man is obliged to combine his right of self-defense with those of his fellow, and delegate this defensive force to a third party called government. In the words of Bastiat, [Law] is the collective organization of the individual right to lawful defense.
Since the created cannot exceed the creator, it follows that governmental activity is limited to those instances where an individual can legitimately use force. Again, Bastiat: Government acts only by the intervention of force; hence, its action is legitimate only where the intervention of force is itself legitimate... that being the case of legitimate defense. Or, as Hayek put it, free society confronts the problems of chaos and crime by conferring the monopoly of coercion on the state and by attempting to limit this power of the state to instances where it is required to prevent coercion by private persons.
A republican government has two contractual obligations to its people. First, a republic must guarantee justice by eliminating injustice. It exists specifically for this purpose; to protect persons, liberties, and properties; to maintain the right of each, and to cause justice to reign over us all. Second, a republic must secure equality for all its citizens. Since government derives its authority from the equal input of all its citizens, it must treat each equally under the law, and not discriminate against any. Moreover, legal inequality (discrimination in enforcement of the law) is a clear injustice. If a republic is charged with eliminating injustice in society, how can injustice in its own actions be justified?
The concept of equality has been overused, abused, and reduced the level of a common cliché or political buzzword. We will take our definition from Supreme Court justice John Marshall Harlan, who wrote in his dissent in Plessy v. Ferguson, In respect of civil rights, all citizens are equal before the law. Equality is equal protection for rights. Thus, we can see that republican equality is not an act of empowerment, or some other positive action encouraging success; it is a simple act of protection, a defensive action discouraging crime and violation of human liberty.
Egalitarianism and Equality of Condition
Some want to go farther. Many today see liberty and equality as Lamartine saw them; as secondary results of another broader program of egalitarian equality of condition, which Lamartine knew as fraternity. Proponents of this social justice promote the redistribution of wealth from the haves to the have-nots, using three (seemingly formidable) arguments.
First, they claim that wealth, by its nature, causes poverty, since in the market one persons gain means anothers loss. This theory has existed since the days of Aristotle and Plato, and is the one lasting legacy from pre-Enlightenment Mercantilism. Bastiat knew this as the concept that human interests are intrinsically antagonistic. We know it today as the infamous zero-sum game that was the foundation of Marxist economic analysis. Simply, this theory claims that the accumulation of wealth, in and of itself, is an injustice to the poor, which must be corrected by government intervention.
Second, these egalitarian thinkers claim poverty, by its nature, violates human liberty. They claim that the poor are unable to fully use their faculties, or to receive the full value of their property, since their needs are greater and they cannot bargain with others on equal terms. Thus, poverty violates their ability to fully enjoy the fruits of their labor, and government must declare a war on poverty to protect their liberties.
A third argument used to support redistribution is the concept of entitlement: that every individual has a basic human right to wealth, which are a debt owed to him by society. Since poverty exists, clearly some people are not receiving their fair share from this societal spigot of prosperity, and those with excess wealth are enjoying what rightfully belongs to others. This denial of basic human rights is an unmistakable injustice, deserving governmental action.
Really? Let us cover all three arguments in turn. First, two individuals exchange commodities only if both gain through that exchange; after all, if trade meant a net loss to them, why on earth would they trade? Capitalism could not be a zero-sum game, simply because it would cease to exist if it was. This is one of the many facets of Jean-Baptiste Says Law of Markets, (more famously known as Adam Smiths invisible hand): businesses operate by satisfying the wants of others, creating products of value to trade for what they desire (money, labor, production materials, etc.) An accumulation of wealth, therefore, is not an injustice as much as a service to the community; for it indicates that an individual provided more value for his neighbors than others, and therefore received more value in return.
Second, poverty does not violate human rights. Liberty, as defined by Bastiat, is the freedom of every person to make full use of his faculties, so long as he does not harm other persons while doing so. Clearly, poverty does not threaten liberty, since it does not restrict man from using his faculties, or from enjoying the product of those faculties. Discrepancies of wealth are not the result of any societal injustice, but, in the words of James Madison, are caused naturally, by the diversity in the faculties of men, from which the rights of property originate. [Yet] the protection of those faculties is the first object of government. Wealth and poverty arise naturally from the concept of liberty; diversity in abilities creates discrepancies in wealth.
Finally, the alleged right to wealth does not exist. The right of property, as expounded by classical liberals, is best described as Thomas Jeffersons pursuit of happiness; it is the right to utilize ones faculties to produce and enjoy utility (the satisfaction derived from goods and services.) The perceived entitlement to wealth is a subtle corruption of the original republican right of property (to pursue and produce utility or happiness) into the right to property (to physically enjoy a certain level of wealth.) However appealing, this right does not exist.
Nor can it exist. We must understand that there are two classes of rights possessed by man. The first encompasses the natural rights so famously set forth in the Declaration of Independence, which exist in a state of nature and are an intrinsic component of man. The second includes civil rights, which are only extensions of natural rights to societal interaction. In other words, man has no rights, besides those which he possesses naturally in the absence of society altogether. Clearly, then, the right to wealth cannot exist since it requires the presence of other individuals (society) to provide that minimum level of wealth.
Republican Justice vs. Egalitarian Equality
From there, the egalitarian argument completely breaks down. If legitimate republican government is limited to merely removing the stain of injustice from the fabric of free society, then how can governmental redistribution of wealth be justified if poverty is not an injustice? It cannot be defended without attacking the very foundation of republican political theory. The ideals of egalitarianism contradict the ideals of republicanism; equality of condition is incompatible with equality under the law.
Thus it is that the republican institutions of justice are threatened by the very people claiming to champion those values under the name of social justice. It is not a little disconcerting to realize that the enemy of liberty is the kindly neighbor who supports welfare for the poor, the well-meaning preacher who advocates the enforcement of the voluntary model of early Christianity where no one claimed that any of his possession was his own, but they shared everything they had. Yet that is the inevitable and unfortunate conclusion: advocates of redistribution are necessarily opposed to the republic as envisioned by our Enlightenment forefathers.
The problem with redistribution should be clear. As Bastiat states, You say: There are persons who have no money, and you turn to the law. But... nothing can enter the public treasury for the benefit of one citizen or one class unless other citizens and other classes have been forced to send it in. In its proper role, the State is not a productive entity; it produces no goods or services, besides the service of protection against crime and injustice. Redistribution only spreads around existing wealth to new recipients... and in the process, confiscates that wealth from its legitimate owners. Thus, by definition, redistribution gives unequal treatment to different economic classes and individuals. Rather than ensuring equality under the law, redistribution abuses the power of government to create a new legal inequality.
This leads to the question of taxes. Insofar as they are used to protect persons and properties against crime, taxes are a legitimate exchange of property for the service of protection. After all, taxes are levied through the use or threat of force, and thus add to the level of coercion in society. Governments must compensate for the injustice inherent in taxation by using those funds to reduce and eliminate injustice elsewhere in society. However, if tax funds are diverted from this legitimate function, and used to redistribute and equalize wealth, then that compensation does not exist. The only effect of redistributive taxes is to increase the level of injustice; thus, such taxes are categorically illegitimate and necessarily contradict the republican nature of government.
Good intentions notwithstanding, redistribution is an injustice multiplied many times over. Redistribution exceeds the legitimate bounds of a republic, to use a strictly defensive force to fight injustice. Redistribution gives unequal treatment under the law, and bases the level of protection afforded to individuals by their personal wealth. Finally, redistribution neglects the duty of a republic to eradicate injustice, preferring instead to promote injustice by violating property rights. In the name of charity, the institutions of republicanism are threatened and ignored by modern society.
Like Thomas Paine, John Adams took his definition of republic from the Latin original, res-publica. Unlike Paine, he derived a completely different definition: The word res, every one knows, signified in [Latin] wealth... property; the word publicus... [meant] belonging to the people. Res publica, therefore... [meant] the property of the people.... Republic could be no other than a government in which the property of the people... was secured and protected by law. Adams further explains that this protection includes by implication a protection of liberty, since property cannot be secure unless the man be at liberty to acquire, use, or part with it, at his discretion.
The point remains: for Adams, a republic could only mean a government where property rights are protected. The protection of legitimate property was so tied to the republican concept of good government that for Adams they were one and the same. The Founders of our own American republic realized the full extent of their revolution. No longer would they tolerate the monarchial elitism where the word of a single individual was accepted as absolute law. Nor would they tolerate the mercantilist nationalism that trampled the property rights of Englishmen everywhere to give a monopoly to a favored group or individual. They designed a representative republic, where not only was everyone given a voice in government, but also where the right to life, liberty, and property were respected and defended. Their republican ideals run directly against the popular notion of social justice.
Redistribution and egalitarianism were rampant during the first half of the eighteenth century, especially in France. They are equally prevalent today. Just as Bastiat confronted Lamartine for his misguided policies, so must classical liberals of this century challenge the orthodoxy of material equality. The natural order of society is threatened by the artificial order offered by egalitarianism, and true justice is threatened by the ideals of social justice.
Frederich Hayek never spoke truer words than when he declared that the great aim in the struggle for liberty is equality before the law. But if we are to cry, as the French revolutionaries, Vive la republique! we must recognize the full implications of the republican philosophy... and the nature of our opposition. Politics may make strange bedfellows, but it makes stranger enemies; for the republics greatest enemies are those who believe themselves to be its friends. They desire the same republican institutions of justice and equality, but believe that classical liberalism doesnt go far enough to promote the ideal of fraternity. They desire perfect equality for all, but support policies that conflict with true legal equality. They perceive injustice in the vast disparity of wealth, but launch crusades against the cause of that disparity: human liberty.
Like the road to hell, the Road to Serfdom is paved with good intentions. These well-meaning but misguided advocates of egalitarianism are the great opposition to equality before the law, and the fight against redistribution is the great front in the universal struggle for liberty.
Adams, John. Defence of the Constitutions of the Governments of the United States. New York: Da Capo Press, (1797)
Adams, Sam. The Rights of the Colonists. Boston: Director of Old South Work, 1906 (1772)
Bastiat, Frèdéric. The Law. Irvington-on-Hudson, NY: Foundation for Economic Education, 1998 (1850)
. Economic Harmonies. Irvington-on-Hudson, NY: Foundation for Economic Education, 1967 (1850)
Ebenstein, Alan. Hayeks Journey. New York: Palgrave Macmillian, 2001
Hamilton, Alexander, John Jay, & James Madison. The Federalist Papers. New York: Random House, Inc., 2000 (1787-88)
Kurland, Philip, and Ralph Lerner, eds. The Founders Constitution, Volume 1. Chicago: University of Chicago Press, 1986
Life Application Study Bible, New International Version. (Grand Rapids, MI: Zondervan, 1991)
Paine, Thomas. The Rights of Man. New York: Penguin Classics, 1985 (1791-1792)
Say, Jean-Baptiste. Treatise on Political Economy. New Brunswick: Transaction Publishers, 2001 (1836)
Smith, Adam. The Wealth of Nations. Amherst: Prometheus Books, 1991 (1776)
 Bastiat, The Law, pg. 21-22
 Paine, The Rights of Man, pg. 178-179
 Adams, The Rights of the Colonists, pg. 1
 Bastiat, The Law, pg. 2
 Bastiat, Economic Harmonies, pg. 456-457
 Ebenstein, Hayeks Journey, pg. 145 (quoting The Constitution of Liberty, F. A. Hayek)
 Bastiat, The Law, pg. 3
 A product is no sooner created, than it, from that instant, affords a market for other products to the full extent of its own value... the mere circumstance of the creation of one product immediately opens a vent for other products. Say, Treatise on Political Economy, pg. 134-135
 By directing industry in such a manner as its produce may be of the greatest value, he intends only his own gain, and he is in this... led by an invisible hand to promote an end which was no part of his intention. Smith, Wealth of Nations, pg. 351-352
 Bastiat, The Law, pg. 51
 Property is the right to enjoy for oneself the fruits of ones own labor, or to surrender them to another only on the condition of equivalent efforts in return. Bastiat, Economic Harmonies, pg. 220
 For example: the right of habeas corpus (the right for the accused to know the charges against him) could not exist in a state of nature (there are no other people!) but rather extends natural liberty to societal jurisprudence.
 The Bible. Acts 4:32 (NIV)
 Bastiat, The Law, pg. 27
 Whether I guard my land myself... or pay the state to have it guarded for me, does not alter the fact that I make a sacrifice for the sake of an advantage.... This is not a loss, but an exchange. (Bastiat, Economic Harmonies, pg. 444)
 The Founders Constitution, ed. Philip Kurland, Ralph Lerner, Vol. 1., Chap. 4, pg. 119. URL: http://press-pubs.uchicago.edu/founders/print_documents/v1ch4s10.html. (quoting Defence of the Constitutions, John Adams)