Of Laws And Men Part 4: The Enforcers

One of the shibboleth phrases often heard in discussions of the American system of government is that it's "a government of laws, not of men."

Granted that that was the intention. I have no doubt that the Founding Fathers were sincere about it, having experienced the "long train of abuses" that issued from King George III's attempt to place his own decrees above all other law. But like most human intentions, in practice its fulfillment is only asymptotically approachable.

Unlike the Natural Law, man-made laws are not self-enforcing. To have impact, they must be actively enforced by men. Those who are found to have violated them must be subjected to the penalties they prescribe. Should that process be insufficiently reliable, the law will become an instrument of injustice.

Frederic Bastiat desired, most ardently, that law be merely the codification of natural justice:

The mission of the law is not to oppress persons and plunder them of their property, even though the law may be acting in a philanthropic spirit. Its mission is to protect persons and property.

Furthermore, it must not be said that the law may be philanthropic if, in the process, it refrains from oppressing persons and plundering them of their property; this would be a contradiction. The law cannot avoid having an effect upon persons and property; and if the law acts in any manner except to protect them, its actions then necessarily violate the liberty of persons and their right to own property.

The law is justice — simple and clear, precise and bounded. Every eye can see it, and every mind can grasp it; for justice is measurable, immutable, and unchangeable. Justice is neither more than this nor less than this. If you exceed this proper limit — if you attempt to make the law religious, fraternal, equalizing, philanthropic, industrial, literary, or artistic — you will then be lost in an uncharted territory, in vagueness and uncertainty, in a forced utopia or, even worse, in a multitude of utopias, each striving to seize the law and impose it upon you. This is true because fraternity and philanthropy, unlike justice, do not have precise limits. Once started, where will you stop? And where will the law stop itself?

But even if the man-made law should conform perfectly to the standard of natural justice, what use will it be if its enforcers have a different agenda?

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In his early series of essays "The Proper Sphere Of Government," Herbert Spencer quoted an unnamed observer of English law and legislation to devastating effect:

Nevertheless, in the inexplicable universal votings and debatings of these Ages, an idea or rather a dumb presumption to the contrary has gone idly abroad, and at this day, over extensive tracts of the world, poor human beings are to be found, whose practical belief it is that if we "vote" this or that, so this or that will thenceforth be. Practically men have come to imagine that the Laws of this Universe, like the laws of constitutional countries, are decided by voting. It is an idle fancy. The Laws of this Universe, of which if the Laws of England are not an exact transcript, they should passionately study to become such, are fixed by the everlasting congruity of things, and are not fixable or changeable by voting!

As accurate as that assessment is, it fails to address the critical function of enforcement. Spencer and the unnamed speaker were men of the Victorian Era, in which there was a general presumption of honesty and decency among public men. That presumption, while surely not 100% correct, was probably more correct than it would be at any prior or subsequent time in history. The great classical liberals of the era -- William Gladstone; Auberon Herbert; Richard Cobden; John Bright; Thomas Babington Macauley; Herbert Spencer himself -- did their utmost to bring the laws of England into accord with "the everlasting congruity of things." They came very close indeed. But as Hayek would tell us decades later, the growth dynamic of government guaranteed that the enforcement of the laws would diverge from the ideals they expressed. And so it was.

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Nearly a decade ago, I wrote:

Responsibility is the acceptance of the consequences for one's decisions and actions, whether those consequences were accurately foreseen or not. It's the concomitant of freedom, the price one must pay for the possession of decision-making power. One's willingness to accept his proper responsibilities is exactly equivalent to his willingness to pay for his purchases....

Only a moment's thought is required to see that the allocation of each man's proper responsibilities to him and to no one else is the essence of justice....

Another major component in character is temperance, colloquially better known as self-control. We all have desires and appetites. They vary in strength, both among individuals and within any one individual over the term of his life, but we all have them. They determine much of what we do, and nearly all of the pleasure we take from living. The precise term for a man with no desires is "corpse." But there are two possible relations between a man and his desires: either he is their master, or they are his. The former relation is that of the continent, decent man, who can be trusted with one's reputation, money or spouse. The latter is that of the dissolute glutton, unable to restrain himself in the presence of something he wants, no matter what the consequences of reaching for it will be....

When the future is unclear, our desires and fears will rise to take command of our thoughts. In seeking some good, we'll tend to underestimate the costs and minimize the prospect of negative side effects. In avoiding some bad, we'll tend to magnify the damage it would do and omit consideration of the gains that might be had from it. This is natural. It accounts for many of the worst decisions in history. Ask Adolf Hitler.

The man of strong character projects conservatively, mindful of his fallibility. He downplays the reward to be had from some attractive course and compels himself to focus on the costs and risks. He swallows the necessity of necessary pains, costs, or labors, and looks for ways to turn them to his advantage. He seeks the counsel of others who've "been there," and tries to use their knowledge even if it points in an unpalatable direction. In other words, he exercises prudence.

Finally, we have the complementary virtues of perseverance and courage. Of perseverance, C. S. Lewis wrote in The Screwtape Letters:

You see, it is so hard for these creatures to persevere. The routine of adversity, the gradual decay of youthful loves and youthful hopes, the quiet despair (hardly felt as pain) of ever overcoming the chronic temptations with which we have again and again defeated them, the drabness we create in their lives, and the inarticulate resentment with which we teach them to respond to it -- all this provide admirable opportunities of wearing out a soul by attrition.

And of courage:

We have made men proud of most vices, but not of cowardice. Whenever we have almost succeeded in doing so, the Enemy permits a war or an earthquake or some other calamity, and at once courage becomes so obviously lovely and important even in human eyes that all our work is undone, and there is still at least one vice of which they feel genuine shame....In peace we can make many of them ignore good and evil entirely; in danger, the issue is forced upon them in a guise to which even we cannot blind them....

This, indeed, is probably one of the Enemy's motives for creating a dangerous world -- a world in which moral issues really come to the point. He sees as well as you do that courage is not simply one of the virtues, but the form of every virtue at the testing point, which means, at the point of highest reality. A chastity or honesty or mercy which yields to danger will be chaste or honest or merciful only on conditions. Pilate was merciful till it became risky.

It's not for me to expand on summations so piercingly perfect. Suffice it to say that the combination of courage and perseverance, which men once called fortitude, is the virtue whose measure is most easily detected in a man, and whose insufficiency most quickly evokes contempt.

Prudence, justice, temperance, and fortitude have been called the cardinal virtues. They are the foundation for all other virtues; without them, a man is but a bundle of appetites and fears, unable to grasp an argument for resisting them or deferring their demands.

Can anyone sincerely say that our public men are paragons of those virtues? There might be a few in our legislatures who possess them, but what of our executives -- our enforcers? What would our polity be like if those who enforce the laws were fully supplied with them?

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Though George W. Bush advanced a number of policies with which I disagreed strongly, I admired him nevertheless. He was open and sincere about his convictions, though they fell short of the kind of principles I would have preferred. More, he hewed to them with greater consistency than any other public man of his time. Indeed, he saw that as his main political asset. In his 2004 campaign for re-election, he was often heard to tell crowds, "With me, you know what you're getting." And indeed, we did.

One particular Bushism rings particularly clear:

"I know who I am. If you're the president, you don't have time to figure out who you are. I think it's unfair to the American people to sit in that Oval Office and try to find your inner soul."

Indeed. If you're busy trying to "find your inner soul" -- or worse, attempting to fabricate one out of rhetoric and ostentatious posturing -- you can hardly concern yourself much with the law, its justice or the lack thereof, or its proper enforcement.

The executive branch of the federal government is currently overrun by persons without character -- persons who react to the cardinal virtues the way Dracula would react to a crucifix.. The way they treat their role as the enforcers of the law is confirmation of the criticality of that function. No matter what laws or repeals of laws Congress emits, with our current crop of enforcers, the net effect will be negative.

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Recently, I had a brief exchange with writer Tom Kratman about Natural Law. He dismisses the notion as insubstantial. He noted that there are many instances in which the perpetrator of injustice, even grotesque injustice, is not punished within his lifetime. And so it is, for man-made justice, the sort that operates in this world, is not merely fallible but corruptible, and many a miscreant escapes temporal justice by corrupting its enforcers.

But Natural Law deals with populations rather than with individuals. It operates over broad sweeps of time. It conditions the survival of the human species, rather than the profit and well-being of particular persons. That's why we add man-made laws to those written into our natures by God.

We desire that consequences be particularized to those who particularly deserve them. We seek individualized justice, to supplement the species-developmental justice enforced by our natures. And so we create governments, and corpora of laws, and executives to enforce them.

And so we are dismayed when, as the growth dynamic of governments guarantees, "The Worst Get On Top" -- when men of weak character rise to displace men of strong character from the levers of power. And so we are brought to grief and ruin when men of evil intent displace the characterless in their turn...when, as Ayn Rand warned us, "the murderer wins over the pickpocket."

And so we are led astray by our desire to keep ourselves above the mess -- to subcontract the administration and maintenance of justice to specialists who'll make it their sole responsibility.

And so we are betrayed by our own wishful thinking -- our belief that there can ever be such a thing as a completely reliable, completely self-cleansing "government of laws, not of men."