E. Belfort Bax, The Curse of Law, International Socialist Review, August 1889, pp.58-72. [1*]
Republished in E. Belfort Bax, Outlooks from a New Standpoint, 1891, pp.91-108.
Transcribed by Ted Crawford.
Marked up by Einde O’Callaghan for the Marxists’ Internet Archive.
Among the many curses the system of private or individual property-holding, which is the basis of what we call civilization has laid on mankind none is more conspicuous than “law.” We here refer to civil law; criminal law which, properly speaking, arrives on the scene at a later stage in social development falls under a rather different criticism. The disputes between individuals having their origin in the private ownership of property afforded the opportunity for a class of parasites to arise who could for their own purposes exploit these disputes. The earliest form of legal decision in the earliest dawn of civilization, the decision of the Basileus, Rex or head of the tribe or gens can hardly be reckoned as belonging to the domain of law proper. It is not until these primitive social unities have been broken up, or at least their cohesion essentially weakened, that the reign of law and of the lawyer begins. Rome under the mythical kings knew no law. Homeric Greece knew no law. The legislator, the more or less mythical author of the legal code, is a familiar figure in early history. Thenceforward the curse of law has established itself. The written code may only have formulated the unwritten custom which had subsisted before, but this had reference to disputes between social groups, and not between individuals except in so far as they represented social groups. It was as the importance of the individual per se emerged that the written code arose and was applied to the disputes of private persons, and with this written code men appointed to administer it. Thus the class which preys on all other classes obtained possession of the field, and in certain periods of civilization has dominated society completely.
There was a fiction of the old legends, which stated the origin of law as follows:– Once upon a time (as the fairy-tale has it) two men were disputing on the highway about the ownership of some property, a third man coming up offered to arbitrate between them, they assent, and as remuneration for his trouble he receives a share of the property. Here, then, we have origin of the judge and his salary, the counsel and his fees, and the solicitor and his costs. Many persons may be inclined to wish that they had been one of the disputants in question with a six-shooter in their pockets; in which case they might have called their adversary aside, and only agreed to accept the decision of this primeval representative of jurisprudence on the secret mutual agreement thereupon to give the said worthy, as a reward for his trouble, not a portion of the spoil, but a couple of slugs each, impartially in the lower part of his body. This would have been less likely than the former procedure to have encouraged others to pursue the calling of meddler in other men’s quarrels. But I need hardly say this pretty little myth is not exactly historical, but belongs to the a priori school of Rousseau’s Social Contract and similar fictions of the last century, and that the administrator of justice was not at any period of his development to be got rid of in such an easy and effective manner as the above. In any case what concerns us here is not so much the origin of the man of law or his position in ancient or mediaeval times as his meaning and significance in the society of to-day.
Like every other profession or subordinate class, the legal class constitutes simply a privileged wing of the great privileged class of the modern world, the class which lives on the surplus value obtained by capital. The main trunk of the capitalistic classes finds it now more than ever necessary to the carrying on of its system that it should have disputes officially decided, and contracts enforced, &c. The importance of the class which is concerned in this confers upon it certain exceptional privileges. It constitutes itself into a “ring,” ranging historically from the supreme judge to the ordinary attorney, a ring whose chief aim it is to promote the interests of the legal profession and openly pledged, by what is impudently termed professional etiquette, to stand in with each other, irrespective of inherent right or justice. Thus, after the conduct of Sir Richard Webster in the Pigott case, the legal members of the House of Commons refused to express their disapproval by voting with the minority, solely on the ground of this “professional courtesy.” The position of advantage possessed by the legal class through its knowledge of the mass of chicanery under which the whole of the wealthy classes of the community, especially in this country, find it convenient to place themselves, enables them to assume the right to extort practically any terms they please for the most trifling act which they may perform for the layman whom they succeed in forcing to resort to them.  The legal profession from one end to the other thus forms a close corporation and is therefore a fitting pediment to the main edifice of middle-class society or modern civilisation. The capitalist fleeces the workman, the lawyer fleeces all round, the capitalist allowing the lawyer to fleece even himself, as he is thereby enabled to secure his hold not only of the workman, his natural prey, but of his brother-capitalist who is poorer than himself.
Were it not for the costs attending “law” the wealthy man would obtain no special advantage from it. The dominant class – the great capitalists – therefore sanction the fleecing practised by the lawyer and the courts even though they themselves may sometimes be affected by it, knowing that it furnishes them with a weapon with which to terrorise or, if need be, ruin their poorer fellow-citizens. Let thus much suffice (as Aristotle would say) for this aspect of law as embodied in our middle-class society.
The most important question connected with the present subject is the relation of law to morality. Throughout the historical period there has always been a covert opposition between the two things, which ever and anon has broken forth into open antagonism. “Law” and “honour” have always appeared at opposite poles. This is only natural, inasmuch as morality in its original intention implied a social relation. It was that power which bound men together in the fraternal bond, real or imagined, issuing from the notion of kinship on which early society reposed. As civilisation advanced this primitive morality was obscured by the new conceptions to which I have elsewhere given the name of the “introspective morality,” which formed the Alpha and Omega of ethical sentiment in the relation of the individual soul to the divine being. But ever and anon the old instinct manifests itself, the original sense of the word was never completely lost. The bond of primitive society sprang out of the nature of the conditions of that society. If it cannot exactly be described as voluntary it was just as little coercive. Now “law” which has its raison d’ etre not in any common tie between man and man but in the very opposite, to wit, in the assumption of the isolation of the individual, nay, of the enmity between man and man, rests definitely on the notion of forcible coercion of the individual and his interest. The old principle of ethics in its turn now assumes definitely the form of the voluntary regulation by the individual of his immediate egoistic impulses in favour of others, as opposed to the new principle of law which means his forcible coercion.
We meet with this distinction in places where we might not expect. For instance, in the Pauline epistles we find it taking the form of the antagonism between “law” and “grace”: the principle of voluntariness or spontaneity from within is here opposed to the principle of forcible coercion from without. This, which is an abstract way of looking at the matter, since it only records one aspect of the antithesis, and which is used in the interests of the introspective morality, is none the less significant on that account. For this very antagonism between law and justice is susceptible of being carried out much more drastically than has ever been done hitherto. These two principles though they have existed side by side during the period of civilisation, have never really combined, but their essential incompatibility has not before been so flagrantly manifested as under the system of modern competitive commerce, which in its operations avowedly recognises no relation between man and man other than that of self-interest, and consequently in which the principle at the basis of coercive law is most fully realised. But as a matter of fact it has never been able to carry it out to its logical issue. It has been obliged to supplement it with a public opinion which exacts an adhesion to the rules of the commercial game, apart from law and on moral grounds, and stigmatises any departure from these rules as immoral and dishonourable. While on the one side it proclaims that business is business and scorns the introduction of sentiment into business operations; on the other it whiningly appeals to the sense of honour in order to supply any accidental defects in its own system of self-interest backed by coercion. The present writer was led to reflect on this subject some years ago in observing certain moral phenomena, as for instance, the readiness with which persons, whose honour was unimpeachable in private relations, did not hesitate to perpetrate a technical “fraud” on a Railway Company (and that this went on in spite of the assurances of the bourgeois press that it was quite as dishonourable to travel in a higher class to that for which you had paid your fare as to borrow money of a friend and not return it); also the difference universally recognised, implicitly or explicitly, between a debt of honour, which could not or would not be enforced legally, and a trade man’s bill which could and would be so enforced.
Now these ethical phenomena seemed to me totally inexplicable on the conventional theory which confounds legal obligations with moral obligations. Such widespread instincts do not arise, in the general way, without a very good reason. The reason I pointed out some years ago in an article on Commerce and Conscience, as being that the true moral instincts of men pierce through the hollowness of the conventional sham, which seeks to obtain a double sanction for the enforcement of commercial, i.e., legal contracts. Pursuing the same line of argument, we have only to consider the results, let us say, of a consistent and all-round non-payment of obligations incurred in the course of business to see that the sole concern of this bourgeois honour and morality is not the welfare of mankind, or any other sublime principle, but merely the perpetuation of its own economical system.
The question here is one of debt. Now debts are of two kinds. There is the debt incurred to a friend, or mayhap, to a benevolent stranger, through his voluntary act, which arises out of a personal relation between you and him. Such a debt in all probability either cannot in the nature of things or will not, for personal and social reasons, be enforced by process of law. Such debts like all others which are based on personal trust and bear no legal sanction, are matters of honour and the man who shirks them is a mean scoundrel. So far we are all agreed. But there is another class of debt which does not arise out of any personal, relation but out of a purely economic or business relation. In commerce, the human being with whom transactions take place counts merely as an engine for the transference of money. Certain Gnostic sects used to teach that the oeon Christ passed through the body of the Virgin (as they expressed it) like water through a pipe. The man in a commercial transaction is in the position of the body of the Virgin. He is merely a conduit for the passage of the Christ of the commercial system, i.e., money. All that is asked of him is that his credit should be good, that is, that he should have money at his disposal, and that it should be possible, if necessary, to coerce him legally to disgorge this money. Here, then, I say, there is no question of moral obligation. The two parties to the transaction do not trust each other as men, brethren, or fellow citizens, but merely in so far as the one sees the way to coercing the other to complete his share of the transaction. Commerce is the game that is being played.
A friend of mine in a good way of business, but whose interests as a business man do not obscure his intellectual vision, very candidly recognises this fact and gives instructions to his foreman when about to county-court a defaulting customer, to assure the said customer that he has not the least personal feeling against him, that he does not regard him as a dishonourable man merely because he seeks to evade the payment of goods obtained in an ordinary commercial way, but that he fully acknowledges that while he as dealer naturally seeks to obtain as much as he can for his goods – to sell them as dearly as possible – his customer as naturally seeks to get goods as cheaply as possible; to buy in the cheapest market and sell in the dearest being the highest acknowledged principle of that commercial system which abhors sentimentality like nature of old abhorred a vacuum. Now obviously the cheapest way of obtaining goods is not to pay for them and if a buyer can avoid payment for the goods he obtains he has quite as much right to do so as the seller has to receive for them double or treble their value and call it profit. “We are playing a game,” my friend would say to his defaulting customer, “at which we both seek to win, I hold the trump honours, law, in my hand; if by the aid of them I win – well; if in spite of them you win well also (though not so well for me.)” All is fair in love and war, and in competitive commerce, which is only war with a changed face. No one has a right to blame the tradesman for employing the natural weapon of commerce, coercive law, where we blame him is that when this fails he snivels morality and whines that his customer is a dishonourable man.  For heaven’s sake let us free our minds of this cant and recognise that as things go there is no question of morality at stake, that the one in getting as much for the goods as possible, the other is getting the goods for nothing if possible, is each pursuing a line of conduct consistent with an individualistic basis of society, logically if not economically. We have said that the system of shop-keeping morality is designed, not with a view to human utility but to commercial utility – i.e., to the maintenance of the commercial system. This is easily seen if we consider the effects of a failure to pay one’s tradesmen’s bills.
This is a disgraceful and immoral act says the morality of the commercial system. If so, it ought surely to be demonstrable that some harm results, and not merely accidentally but necessarily results, to some individual or to the community at large from such a course of conduct. But what are the facts? Let us suppose Smith fails to pay his baker’s bill; as a consequence his baker cannot meet his engagements with the flour merchant and has to go into liquidation paying something or other in the pound. The flour merchant not being able to meet his engagements with the corn-dealer has to do likewise, the corn-dealer, finding his relations with the factor considerably strained, is forced to undergo the same operation, the importer ditto; last of all the corn-grower also. The day-labourer is not affected, as the iron law of wages has already looked after him, and reduced his wages to as near the level of the means of subsistence as local circumstances will admit of. Now which of the above-mentioned persons is injured by Smith’s proceeding. They all and severally, as we know, go on in business after their bankruptcy is settled as merrily as before. But let us suppose, what is, of course, impossible, that, by some means or other, legal coercion were universally suspended or evaded, that not merely Smith and a few of his intimate friends, but that all society took to not paying its tradesmen’s bills, that in Kant’s phraseology Smith’s conduct came to be recognised “as a rule valid for all.” What would happen then? Universal bankruptcy – the whole commercial world paying nothing in the pound. But in what respect does universal bankruptcy, which pays nothing in the pound, differ from universal solvency which pays twenty shillings in the pound. Immediately – in no respect whatever. The relative positions of persons is unchanged. “Being and non-being are the same.” It is only in the qualitative differences which arise between these two extremes, within which the more concrete categories of commercialism work, that human beings are affected, There is just this ulterior difference, however, between the positive and the negative expression, that the positive, universal solvency (twenty shillings in the pound) is the ideal economic expression (albeit unattainable in reality) of a perfect commercial or individualist society, while the negative, universal bankruptcy (nothing in the pound, in short the abolition of private property) is the ideal expression of a Socialist commonwealth. So that on the Kantian maxim “so act that your conduct may be a rule valid for all,” it is quite clear that Smith’s action, if really followed by all, would, from an anti-commercial point of view, represent the highest morality. But this would not suit the commercial system, which adjusts its morality accordingly. (It may be observed, however, that since Smith’s conduct neither would nor could be followed by all, while under certain circumstances it might through the friction it produced accidentally involve suffering to individuals, the most we can say for it is that it is morally indifferent under ordinary circumstances, and apart from any personal relation unenforcible by law which may subsist between the parties.)
The distinction between a legal debt and one which is only morally enforcible, and the feelings with which they are respectively regarded, may be illustrated by the case of the dispensation of hospitality by the modern hotel and mediaeval monastery respectively. Probably no traveller who has put up at that survival of the medieval institution, the Monastery in the St. Bernard Pass, has begrudged the voluntary contribution on leaving, or has given less than an equivalent for value received. But what man with human feelings in his breast has not at times felt a desire to bilk a hotel proprietor and evade the exaction of the often extortionate tax which the law permits him to levy on the unwary traveller.
Commerce, our individualistic method of production and distribution, is but a form of war – its weapon is law. “All is fair in love and war,” we repeat. It is only the super-addition of a personal relation which gives a moral sanction to a commercial transaction. I have a friend who is in business, he gives me credit, not as an ordinary customer, but as a friend. I am morally bound to meet my obligations with him, and it is a mean and despicable thing if I do not do so. Moral obligation only obtains in the full sense, in short, where we know or believe that the “legal remedy” cannot or will not be resorted to. In a system that rests on coercive law honour has strictly no place. It is no use saying that law exists only for the man who is insusceptible of honour. It creates the man insusceptible of honour. Like the negro who was willing to accept the preaching and willing to accept the flogging, but resented the preaching and flogging too, so where you hold over a man the rod of law he naturally declines to listen to your appeals to his honour. If we are to be subject to coercive law let us be subject to it, if to morality or honour let it be so, but do not let us attempt to link in an unnatural wedlock the two principles, and appeal promiscuously first to one and then to the other.
Another point about “law,” which is persistently disregarded by those who celebrate it as against “brute force,” is that “law” is not like “conscience,” something distinct from and in itself nobler than “brute force,” but simply a hypocritical form of brute force. I say a hypocritical form of brute force because it pretends to be the exponent or embodiment of justice, and under this false pretence often enforces the perpetration of the grossest injustice. It is in the nature of things impossible to guarantee that legal decisions shall be in accordance with right. Social prejudice, personal antipathies, want of knowledge of those peculiar circumstances of a case which cannot, or do not, always come out before a court, in short the proverbial frailties of human nature which pervert the judgment, render the pretence that law, under the most favourable circumstances, even remotely represents justice a fraud of the most impudent kind. Under the present system of Courts the ruinous swindling which accompanies law proceedings under the name of costs makes “law” or, as it is ironically termed, “justice,” a mere engine of oppression. Many a man every day submits to the most flagrant extortion under the threat of “legal proceedings,” because he knows that, however clear his case is, he is just as likely to lose it as to win it,” and when the losing of it means a tenfold addition to the original fraudulent claim he naturally “grins and bears” the latter. As against this hypocritical sham which, with all the unction of solemn impartiality, forces a man to submit to being plundered, the unsophisticated “brute force” of the mediaeval robber-knight, by virtue of which without any “flam” of impartiality and justice, the traveller was despoiled cannot fail to strike an impartial thinker as noble and manly. Many persons imagine that if the civil courts did not exist and disputes were left in statu quo injustice would have to be submitted to without remedy. They forget that as things are, injustice is submitted to every day, rather than have recourse to the precious “remedy” civilisation provides, and that, generally speaking, the only effect of the “remedy” is to afford an engine of terrorism for the rich against the poor, for the strong against the weak. The fact is, that the legal method of settling disputes between individuals is a necessary bulwark of the system of individual property-holding, and of a class society on which civilisation reposes; it is simply a corollary of this system, and it is useless to seek any other justification for it.
We have alluded above to the essential uncertainty attending legal decisions, and their liability to error even under the most favourable conditions. This is a crushing argument against society in its corporate capacity undertaking any such function. When it does so, society knowingly makes itself responsible for unjust decisions, since, while it admittedly cannot guarantee the accordance of all decisions of the courts with justice, it still enforces all such decisions. It will be said, of course, that nothing is left undone to insure a fair decision, and that on the whole less injustice occurs under a judicial system than if the quarrels of individuals were allowed to take their course. Both these points, especially the latter, we should be disposed to vehemently dispute, but even granting them does not alter the case. Twenty acts of injustice for which society is not responsible do not weigh against one such act for which it is responsible. Society in using its collective power to enforce an unjust decision commits a crime. All are parties to that crime. If a man breaks a. contract he has made with me I have the simple remedy in my own hands not to enter into any further contracts with him and to denounce his conduct in the face of the world. Society is not responsible for the wrong done me. All that society is really concerned with in the matter is to see that the peace is not broken and to deal impartially with those who break the peace, no matter whether they are right or wrong in the particular question in dispute.
That ultimately civil law must disappear with the last vestiges of modern civilisation no Socialist will seriously dispute. But I still maintain, as before, that one of the first measures of a definitely Socialist administration should be the closing of all courts for the hearing of civil causes. Such a measure which would mean the definitive break on the juridical side with the old order is of too revolutionary a nature to proceed from any other than a revolutionary body, but given such a body, a new “Convention,” or “Paris Commune, it could not consistently be refused. The saving in expenditure and the freeing of now useless hands for productive labour should alone commend it from an economical point of view. The question of the settlement of disputes between public bodies rests on rather a different basis. It might be necessary to retain an intercommunal or international tribunal for the adjudication of such disputes after the State had definitely renounced interference in contracts between individuals.
A point which naturally suggests itself is, in how far the foregoing observations as to the incompatibility of the ethical and legal sides of civilised life apply to criminal law. Directly of course they do not apply. The enforcement of a penalty on the commission of a crime has no direct analogy with the coercing of men in their ordinary civil relations. But even here, in the interests of a higher social morality, the minimisation of the sphere of law is in the highest degree desirable. The ideal condition of a community is that the remorse following the commission of a crime should be an adequate prevention of its commission. Now there can be no doubt that this sentiment of honour or conscience is weakened and a criminal class created precisely by the action of criminal law. Where a certain penalty is enacted as the price of a crime, there is a natural tendency to regard one as a set-off to the other and to make a calculation of the chance of detection, etc., etc., thus reducing the matter to a commercial question. The feeling that society provides it own remedy, pays itself, so to say, out of the criminal’s skin, cannot but weaken the criminal’s inner sense of his own duty – the spontaneous ought – towards society, and we may add indirectly not only of the criminal but of every member of society. The knowledge added to this that mistakes are sometimes made and cruel suffering inflicted upon innocent men by society in its own defence must still further tend to weaken the horror of crime as crime. The point alluded to above, that twenty acts of injustice for which society is not responsible are, morally speaking, of no importance compared to one for which it is responsible, applies with tenfold force to the case of criminal conviction. Better a hundred murders which the law does not father, than one execution of an innocent person which it does. In this respect barbaric custom, which does not recognise crime in the modern sense but only restitution for an injury done to the social group, has the immense advantage over civilised law. The above is, moreover, a crushing argument against brutal punishments, or, indeed, against any punishment more than mere preventive seclusion. It is not too much to say that a society that employs the gallows and the “cat” pretty much deserves all it gets at the hands of criminals. If the criminal, when he gets the chance of doing so with impunity, commits the crime for which the gallows or the lash is reserved, society has only itself to thank. In the natural course of things mistakes must arise, and innocent persons at times suffer those punishments. It is nothing but the most dastardly and abject cowardice, joined to brutality, which makes people run the risk for the sake as they believe of warding off danger from their own skins of becoming collectively guilty of such a hideous iniquity, Happily these punishments do not succeed in their object in most cases, and would still less, if every right-minded man did his duty when on a jury, and refused to convict for any offence to which (let us say) capital punishment or the lash was attached.
To sum up: Law we find as one of the first symptoms of civilisation. In barbaric society when at its zenith there is little or no conflict of interests between individuals, inasmuch as the individual is merged in the social group. When, with civilisation the individual gradually emerges from the group conflicts of interest between individuals arise – hence law, or the coercion of one individual on behalf of another by the State, now become the representative of private interests. The sentiment of honour now assuming the form of the conscious recognition of duty as opposed to self-interest grows up side by side with law but as time goes on is sure to be more and more antithetical to law. The one is mechanism, the other life. The notion that forcible coercion from without – law – and spontaneous action from within – honour morality are radically incompatible, constantly appears, a familiar illustration in literature being the antithesis of law and grace in the Pauline epistles, and in modern life the distinction between a legal debt and a debt of honour. Under the commercial system, the man of business seeks to combine as much sentiment with his system as will suit his purpose to help out the inevitable deficiencies of law and no more. To drive a hard bargain with a needy man, to impose on ignorance, and in short to obtain as much for goods as possible, by fair means or foul, is not usually deemed dishonourable on the part of the trader though it may thought wrong but for the needy man in his turn, in the teeth of law, to get the trader’s goods for nothing – oh, that’s naughty! My contention, on the contrary, is that, morality, honour, brotherly sentiment, “do as you would be done by,” &c., presupposes a reciprocal personal or social relation, that where the relation is purely commercial and enforcible by law no such moral obligation obtains.
Again, law is only a masked form of brute force. In the same way that justice may be done by means of mere brute force of the robber-knight order, so it may be also by the brute force at the disposal of the tribunals, but injustice may likewise be effected by the same means. The important difference is that in the case of individual violence or injustice, society in its corporate capacity is not responsible, at least directly, whereas in that perpetrated in the name of law it is. Why should I be forced to participate as a member of society in the performance of an act which I regard as abominable infamy? That any consideration of mere immediate utility should outweigh this only shows the utterly low moral standpoint of the man of civilisation. Yet that it does out-weigh it we see every day in discussions on subjects of this kind. So long as a commercial system lasts a civil code will also obtain, which, under the sham of responsible justice compels Individuals to submit to its decisions, often in flagrant violation of justice.
That in the case of criminal law, mutalis mutandis, similar remark will apply indirectly, we have also pointed out. Probably few would deny the necessity for an indefinite period of a criminal code of some kind. The only thing we can do is to mitigate the inevitable evil,
The foregoing observations, however, are primarily designed to explode certain common bourgeois fallacies as regards law rather than to further any immediately practical proposals. The writer is full aware of the historical significance of “law” and that no mere edict will suffice to root it out; although this does not say that such an edict should not have its place with other measures in the opening of a new order of things.
But the chief object of a discussion like the present is to induce people to abandon current prejudices which confound law and morality, which regard legal coercion as something intrinsically superior to coercion of another kind, etc., etc. That there exists a large number of persons who need clarification of their ideas on this subject, no one can doubt, who, having thought it out to some extent, has endeavoured to elicit the views of a generally intelligent and well-meaning friend thereupon.
1. One of the most impudent legalised forms of fraud is in connection with the taxation of the solicitor’s bill, where it is only if the reduction of the bill exceeds a sixth of the total that he is compelled to pay the costs of taxation. The law in other words recognises his right to thieve, in so far as he can, up to the sixth.
2. The tremendous pull the law gives the tradesman, as such, over the consumer is proved by the fact that day after day claims are decided in favour of tradesmen on the sole evidence of the tradesman’s Ledger. Any tradesman who likes to falsify his books can win any number of county-court actions, the onus of proof lying with the defendant that the alleged debt is not owing. After this to talk of honour in connection with a debt of this kind is rather naive.
1*. The journal To-day changed its name to International Socialist Review in 1889, Hyndman becoming editor.
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