By Butler Shaffer June 15, 2017
When law and morality contradict each other, the citizen
has the cruel alternative of either losing his moral
sense or losing his respect for the law. – Frederic Bastiat
A seemingly well-planned and directed campaign against Sharia Law has been taking place in a number of American cities. While the obvious purpose of this effort has been to drum up support for anything anti-Muslim, it does raise some interesting inquiries. In asking “what is Sharia Law, and who would be bound by it?”, much deeper political questions are implicated.
An initial question to be asked is “what is law?” A superficial answer is that it is rules set by government that the state will enforce through coercion. While the word includes that, an understanding of the concept involves so much more. At its core, “law” is unavoidably tied up with the property question: who gets to make decisions about what? Every dispute or conflict we have with others comes down to a property question: “did my dog trespass on your lawn?” The distinction between “victimizing” and “victimless” crimes turns on the question of whether a property interest was trespassed. Murder is the intentional taking of the life of another, a violation of the victim’s ownership of self; prostitution, if based on a voluntary transaction between two adults, involves no property violation. Do some people get to establish enforceable rules against others and, if so, how does such authority arise? In a society that respects the inviolability of the private property principle, only owners of what is theirs can rightfully make such decisions. If Muslims in America wish to create and enforce rules of conduct – under the name “Sharia Law” – who would be bound to observe such standards? If you are not a Muslim, would you be bound? If you are a Muslim, but have not agreed to obey such rules, could they nonetheless be enforced against you and, if so, by whom?
An understanding of the property principle provides an answer to such questions. While the state – a non-owner – presumes to make coercively enforceable rules about the property interests of everyone, property owners can make rules, quite peaceably, with one another. Such practices are something we engage in every day: the making of contracts. A “contract” is nothing more than an agreement, by two or more persons, to exchange property claims. I agree to sell you my car for $5,000, and you agree to pay me $5,000. What we are agreeing to do is to exchange our claims to things we presently own. That courts of law respect the property interests of contracting parties is reflected in a recognition of “equitable title” the parties acquire. If, prior to the exchange of legal title to you, I decide to remove the engine of the car and replace it with another – a transfer to which you have not agreed – a court will likely issue an injunction to prevent my doing so. Contract rights – which you and I create for ourselves – are property rights.
This is something all of us do on a regular basis. When I go to the grocery store to buy groceries, I am not buying tomatoes, milk, pork chops, or other items, I am purchasing the grocer’s claim of ownership to such items, and I do so by transferring my claim to the money I give up in exchange.
Political intervention in our individual relationships promotes conflict and, consequently, a need to resort to the very agencies that created the conflict to resolve it! Throughout the rest of nature – animals as well as vegetables – intra-special property trespasses create conflicts. Political structuring greatly expands the scope of conflicts in that governmental rules tend to be expressed in general terms, while you and I will more likely employ greater specificity. When making decisions directing the conduct of hundreds of thousands or tens of millions of people, it is difficult for the state to individualize standards that will satisfy the intentions – or interests – of individual parties. Thus, a statute might provide a remedy for a debtor’s obligation to pay a “fair rate of interest” for the unpaid portion of his obligation. Private parties are more likely to specify that the debtor shall “pay a seven percent (7%) rate of interest for that portion of the debt payment in default.” Which of these approaches is more likely to end up in court, with parties having to hire lawyers and await a decision before the dispute is settled? This is just one of the many ways in which governmental regulation hampers creativity and productive efforts.
Can someone who has not agreed to be bound by Sharia Law have such rules enforced against them? Does this question apply not only to Muslims, as well as non-Muslims, but also to efforts by anyone to mandate standards of conduct upon individuals who have not agreed to be bound? Among people who respect the property principle and the attendant proposition that obligations can arise only through contract, duties may not legitimately be imposed by force. If I do not choose to purchase health or automobile insurance from an insurance company, should such companies be entitled to call upon the coercive arm of the state to force me to purchase what I do not want? Since insurance carriers have done this, should believers in Sharia Law likewise be entitled to go to Congress and get their practices enforced against non-believers? Is the First Amendment – whose words are always subject to interpretation by the state – the only answer we can come up with?
The anti-Sharia protesters emphasize the practice of female circumcision practiced by members of that religion. Arrrghh!, we are expected to moan or shout in response to this practice. Do not misunderstand what I am asking: I am not a defender of the circumcision of children, but what about the practice by many parents, particularly by members of the Jewish faith, who circumcise males at birth? Infant children are in no realistic position to enter into contracts with adult authorities. But what about the infants’ parents? Do parents own their children, or do they have a property interest in a relationship with them such that others may not preempt parental decision-making? If infant males can be circumcised because of parental preference, why should young females be excluded?
Does the state have such an interest? For centuries political systems have asserted the parens patriae principle, the underlying premise of which is that the state is the “super-parent” of all its citizens. But from what source did this idea emerge? Isn’t it evident that, as with all political systems, it was simply taken by force? Along with the collectivist doctrine of eminent domain, such thinking presumes the state to be the owner – i.e., decision-maker – over all property and persons within its domain. This generally unasked question by those content to be treated as “resources” for establishment purposes also underlies the current “immigration” issue: is the U.S. government the “owner” of America, such that it can decide who can and who cannot enter?
Is “law” a concept, or a system, by which property owners freely and peacefully negotiate transactions with one another; or is it what the owners of the established order insist that it be: a system of lawful violence that permits a few – the elitist rulers – to dominate the many with threats, coercion, or even death, in order to accomplish their ends? Does it matter to you? What are the likely consequences for you, your children and grandchildren, and the rest of mankind for living by either alternative?
In matters religious, I am a confirmed agnostic. I believe all of us – in varying degrees – have a need for religious experiences; a need to seek an understanding of how we connect up with the rest of the universe. Religious and scientific minds are alike in asking these questions: how did everything begin, how will it all end, and what rules are in place in the meantime? The conclusions that other people embrace are of little concern to me so long as they do not resort to the coercive tools of the state to compel others to adhere to their beliefs. Burnings at the stake, or the stoning of infidels, are practices for which I draw the line. If you follow this through to its logical conclusion, you can see why I also reject the violence of the state.
The late and great science philosopher, Paul Feyerabend, characterized himself an “epistemological anarchist,” that in the search for truth “anything goes.” I share his view, and extend it to how we are to live in society with one another. As long as you are making decisions with what it is you own, “anything goes.” My decision-making ends at the boundary line of what is mine, and if I desire to make use of your property, I must get your permission, via contract, to do so.
Does this mean that I consider myself to be “above the law?” If by “the law” one means being obedient to the violence-enforced edicts of the state, my answer is “yes.” The alternative is to regard myself as one who is subservient to whatever dictates are imposed upon me by those who presume to rule humanity. As a moral proposition, I consider myself “above the law” that designs ever-more powerful mass weapons to be employed against innocent men, women, and children in the world. Likewise, I am “above the laws” that restrict what people can produce and sell to one another; that prohibit what they ingest; or punish those who would speak the truth not so much to the powerful – who are already aware of the evils in which they engage – but to the powerless – whose enlightenment the rulers fear the most.
“Law” is too important a concept to be left to lawyers, judges, and politicians. It is a means by which free and responsible individuals bargain peacefully for their expectations with one another. To look upon law as a coercive tool to be exclusively employed by the state is to surrender not only control over one’s life, but all existential meaning as well.