January 15, 2014 • No 318 | Archives | Search QL | Subscribe



"There Oughta Be a Law!"
by Adam Allouba

You may not hear that precise expression every day, but you recognize the sentiment. It’s one that you probably feel yourself now and then: The government should do something to fix some problem or another. It may be something gravely serious or nothing more than a minor nuisance; it may be something that oughta be mandatory or oughta be illegal. But whatever it is, it needs to change and using the law is the way to change it.

“There oughta be a law” is not something you’re likely to hear coming out of the mouth of a libertarian, however, except as sarcasm. Most libertarians believe that government legislation leads to bad outcomes for all kinds of reasons, from warped incentives to unintended consequences. More fundamentally, libertarians are against government legislation because we believe that it is inherently wrong to initiate coercion against other human beings. Now, that is a decidedly minority view; most people believe the state should adopt rules that govern our conduct in order to (presumably) make the world a better place. So why the disagreement on such a basic question?

In my view, the reason that non-libertarians are so comfortable with government action is that they have not thought through what exactly it means to say, “There oughta be a law.” Of course, they know that it means that something should be mandatory or illegal—but they haven’t taken a step back to think about what exactly that means in practice.

So what does it mean to assert that government should do something? Let’s start at the beginning. The textbook definition of the state is an entity with a monopoly on the legitimate use of force (within its borders). It’s vital to understand that this is not some eccentric libertarian viewpoint—any introductory political science textbook will tell you the same thing. In practice, that means that if you violate the state’s rules, you get punished through force. Drive too fast? Get fined. Flunk a health inspection? Get shut down. Sell drugs? Get arrested.

Wait a minute, you might say. I see how being thrown in jail for selling drugs is using force, but shutting down a restaurant? That doesn’t seem like force. And a speeding ticket? Getting pulled over is inconvenient and no one likes paying up, but where’s the force there? In fact, having your property seized or your business shut down is a use of force. This can be made clear by thinking about what happens to people who don’t comply.

Imagine a simple scenario: You’re a business owner who buys and sells second-hand goods. One day someone enters your store with an old baby walker that’s been sitting in their basement for the past decade. Figuring someone might be interested, you take it off their hands. Unbeknownst to either of you, however, that walker has been banned since last it was used. And because it’s your unlucky day, later that afternoon, in walks an employee of Health Canada’s product safety division. “That’s illegal!” he says, pointing to the offending device. Thinking he should mind his own business, you ignore him and, when he insists, politely ask him to leave. Unfortunately for you, our hypothetical do-gooder is fully seized of his mission to protect the public. The next day, he informs his supervisor of your contraband. When the inspector comes through the door, you tell him that your mother used a walker with you, you used own with your kids, that he’s out of his mind and that he has until the count of 10 to get out before you get him out. Undeterred, our friend returns—this time, with police backup. At this point, your choice becomes clear: Either let the man onto your property to carry out his task, or risk finding yourself staring down the barrel of a gun. Kicking out a man with a clipboard is one thing, but trying to kick out a police officer is liable to get you shot dead.


“To say that there oughta be a law is to say, People should be compelled under threat of violence. It is to say that whatever the rule is, it should be applied not by persuasion but by compulsion.”


The point is this: Every rule and regulation adopted by the state is ultimately backed up by the threat of physical force—if necessary, deadly force. That’s not to say that public workers are aspiring Robocops. The vast majority of them are ordinary people who do a job like anyone else—except that theirs grants them the right to force other people to comply with their instructions. And while it may be unheard of for, say, a workplace safety inspector to call in a SWAT team so she can check a factory floor, that’s precisely because the threat of violence hovers over her as she goes about her day. After all, if the mob showed up at your door “asking” for their cut of the day’s profits, the interaction would probably unfold very cordially, since you know what would happen if you were to refuse. The same is true of anything the state does: As people know that there are serious consequences for refusing to comply, they do so cheerfully.

To say that “there oughta be a law” is to say, “People should be compelled under threat of violence.” It is to say that whatever the rule is, it should be applied not by persuasion but by compulsion. Anyone who fails to comply should be required to yield or else to face physical force and—if it comes to that—potentially lethal consequences. Walk through the scenario with any government edict and the penalty for stubbornly refusing to obey is ultimately the same. Whether it’s extracting fossil fuels from rocks, exchanging money for healthcare or broadcasting the wrong kind of music, a persistent, stubborn refusal to follow the rules will not just get you in trouble but will ultimately result in physical damage to your person, should you refuse to cooperate.

I don’t doubt that many people would still support all kinds of laws even if they fully understood that uniformed men brandishing firearms will be called in to enforce them if necessary. Some things are arguably worse than the threat of violence, and if you think that a rule is necessary to prevent starvation or disease or societal collapse, it’s entirely reasonable to insist that it should be enforced at the barrel of a gun. But how many laws and regulations even purport to have so critical a purpose? How many are supported merely on the grounds that there is some nuisance or inconvenience that should be done away with? Put in these terms, is it right that the state mandate the colour of one’s home? Should it prevent you from accessing a Wi-Fi network? What about fixing the price of books, the hue of margarine, the layout of your keyboard, the type of bulb in your socket or how you open your bathroom door?

It’s doubtful that people would support anywhere near as large a government as they do now if they fully appreciated the implications of every law that the government adopts. And instead of casually calling for legislation to fix almost every difficulty in existence, they would be much more likely to see it as a last resort—one to be used only when there seems to be no other way to solve a major problem that simply cannot be allowed to continue. It is a very grave thing indeed to say that people should be compelled under threat of physical force to behave in a certain manner, and there should be an extremely demanding burden of proof on those who argue for such a thing, every time they argue for it.

So the next time you find yourself tempted to say, “There oughta be a law,” ask yourself whether you really mean it. Is this something that really merits the use of force? Should someone who doesn’t behave in the manner you like really be coerced into doing as you say? Or it is best to address the problem through education, persuasion, or plain and simple tolerance of one another? I’m not a pacifist through and through, but I prefer to live in a world with as little violence—actual or threatened—as humanly possible. And I suspect that, when they think about it, that’s a sentiment that most people can agree with.


Adam Allouba is a business lawyer based in Montreal and a graduate of the McGill University Faculty of Law. He also holds a B. A. and an M. A. in political science from McGill.


From the same author

Nelson Mandela, Freedom Fighter? A Libertarian Perspective
(no 317 – December 15, 2013)

No One Is Illegal: The Moral Case for a Borderless World
(no 315 – October 15, 2013)

Whose Values? Quebec's New Charter
(no 314 – Sept. 15, 2013)

The Joy of Freedom
(no 312 – June 15, 2013)

The Folly of Rent Control (or, Bad Ideas Never Die)
(no 311 – May 15, 2013)



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