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Bodin, Beccaria, and Bastiat

By Dave Kopel

[A shorter version of this article, just discussing Beccaria, appeared in the September 1999 issue of Liberty, under the title "It Usually Begins with Beccaria."]

The right to keep and bear arms is a human right that transcends cultures and nationality. In this article, let’s examine three leading French and Italian political philosophers, to see the connection that they found between liberty and the possession of arms.

During the middle ages and renaissance, Great Britain evolved in the direction of limited government, with a monarchy subordinate to the rule of law. France, however, was moving in other direction, towards an absolutist monarchy with supreme control over the entire society. Perhaps no French political philosopher was more important to the development of absolutism than Jean Bodin.

Bodin’s major work was Six Livres de la République (Six Book of a Commonweale), published in 1576. France in the sixteenth century had suffered terrible religious wars between French Catholics and French Protestants (Huguenots). Bodin’s solution to the strife was to make the subject’s obedience to the king the central fact of life. One’s duty to God was subordinate to one’s duty to the king.

At the same time, the king had no obligation to obey the laws he made. (Or as Bodin put it, in Latin, “majestas est summa in cives ac subditos legibusque soluta potestas.”)

Bodin’s theory that rulers need not obey the laws is quite consistent with the attitudes of many anti-gun politicians. Like the Louisiana Congressman who voted for the Brady Bill, and then was enraged when a gun store clerk told him he would have to wait a week to buy a handgun. Or the California Assemblyman who votes against gun owners one hundred percent of the time, but who has his own concealed carry permit. Or Bill Clinton, whose Secret Service bodyguards carry the very firearms which Clinton claims are owned only by psychopaths who want to kill lots of innocent people.

Indeed, President Bill Clinton, like President Richard Nixon, used the Department of Justice to argue to federal courts that the President is above the law, and therefore immune from the orders of a court. Noting that the Constitution “does not create a monarchy,” the Eighth Circuit Court of Appeals rejected Clinton’s Bodin-like claim in the Paula Jones case, and the Supreme Court affirmed.

Bodin hated the idea of regular people having guns. First, like Sarah Brady, he thought that guns cause crime: "the cause of an infinite number of murders, he which weareth a sword, a dagger, or a pistol."

But the more fundamental problem was that a free people could not be subjugated if they possessed arms: "we may not think ever to keep that people in subjection which hath always lived in liberty, if they be not disarmed."

And thus, depriving people of the right to arms was the way to deprive them of freedom of speech: The “most usual way to prevent seditions is to take away the subjects’ arms” to stop the “subjects” from exercising “the immoderate liberty of speech given orators.”

Conversely, if the people exercised the right to arms and the right to speech, the people would take away political power from the small elite that ruled the nation. Historically, an armed populace with free speech has “translated the sovereignty from the nobility into the people, and changed the Aristocracy into a Democratic or Popular estate.” (All quotes are from Jean Bodin, The Six Books of Commonweale, pages 106, 389, 542-44, 599, 610-11, 614 [R. Knolles, trans. London, 1606].)

There was one other feature of Bodin in which we can see the outlines of the modern gun prohibition movement. In 1563, a German doctor named Johan Weyer wrote a book called De Praestigiis Daemonum. Campaigning against the tide of witch hysteria that prevailed in much of Europe, Dr. Weyer argued that most “witches” were just mentally disturbed elderly women; these women did not need to be burned at the stake or otherwise abused, since they were not capable of harming anyone. Bodin denounced Weyer’s book.

And anyone who thinks that the evils of witch hunts and searches for imaginary enemies have disappeared should take a look at the United States after the Columbine High School murders, in which gun owners in general and NRA members in particular were denounced in terms that Cotton Mather (and Joseph Goebbels) would have understood.

Italy, the birthplace of the Renaissance, continued for centuries to lead Europe in the evolution of humane thought. One of the great Italian thinkers in the post-renaissance period was Cesare Beccaria of Milan.

At the age of 26, Beccaria found himself an international celebrity, with the publication of his masterwork On Crimes and Punishments (Dei Delitti e Delle Pene). First published in 1764, On Crimes and Punishments was soon translated in French, German, Polish, Spanish, Dutch, and English. The first of three American editions was published in 1777. Eventually, the book appeared in twenty-two languages.

America’s Founding Fathers were familiar with the works of Beccaria (whom they admired) and Bodin (with whom they agreed that the people can only be subjugated if they are disarmed).

John Adams apparently got ahold of a European edition of On Crimes and Punishments before the book was published in the United States. Adams quoted Beccaria in his opening statement at the Boston Massacre trial in 1770, for which Adams served as defense counsel for the British soldiers. “I am for the prisoners at the bar,” said Adams, explaining why he would defend such unpopular clients, “and shall apologize for it only in the words of Marquis Beccaria: ‘If I can but be the instrument of preserving one life, his blessings and tears of transport, shall be a sufficient consolation to me, for the contempt of all mankind.’" [Francis Kidder, History of the Boston Massacre(Albany: Joel Nunsell, 1870), p. 232.]

Beccaria's book created the modern social science of Criminology. Beccaria created the first systematic theory of criminal behavior and public policy control of crime. He denounced torture, secret trial, corrupt judges, and degrading punishments.

Dubbed “Newtoncino” by his admirers, Beccaria said that was applying geometric principles to criminal law. He reasoned that a penal system should provide punishment only severe enough to preserve security; any punishment above this level was a form of tyranny. As Beccaria put it, the criminal law should provide, “That bond which is necessary to keep the interest of individuals united, without which men would return to their original state of barbarity.” And thus, “Punishments which exceed the necessity of preserving this bond are in their nature unjust."

Contrast Beccaria's view with that expressed in Senator Orrin Hatch’s juvenile crime bill (S.. 254) currently moving through Congress. That bill provides mandatory five, ten, and twenty year prison sentences for violations of laws about gun possession, and other non-aggressive offenses. (For more, see my report Unfair and Unconstitutional: The New Federal Juvenile Crime and Gun Control Proposals.)

The people influenced by Beccaria included English philosopher Jeremy Bentham, English legal theorist William Blackstone, and many French philosophers, including Voltaire, Diderot, and Buffon. Sweden’s Gustavus III, the very enlightened Empress Maria Theresa of the Austro-Hungarian Empire, and the Empress Catherine the Great of Russia all reformed their criminal justice systems along Beccaria's suggestions.(Piers Beirne, “Inventing Criminology: The ‘Science of Man’ in Cesare Beccaria’s Dei Delliti E Delle Pene (1764),” Criminology, vol. 29, no. 4, Nov. 1991: 777-820.)

Beccaria’s influence can be seen in the Eighth Amendment to the United States Constitution, which outlaws “cruel and unusual” punishment.

Beccaria’s ideas are also visible today in the movement to abolish the death penalty, a punishment which Beccaria was the first notable thinker to oppose.

In the United States, the most prominent movement to put Beccaria’s ideas into practice is the movement to allow citizens to carry handguns for protection.

Thomas Jefferson liked On Crimes and Punishments so much that he carefully copied many lengthy passages into his “Commonplace Book” containing Jefferson’s favorite sayings. Jefferson used Beccaria "as his principal modern authority for revising the laws of Virginia.” (Garry Wills, Inventing America(Doubleday, 1979), p. 94. Here is what Jefferson copied from Beccaria about firearms, a succinct and powerful statement of how gun control laws harm the innocent and assist the criminal:

“False is the idea of utility that sacrifices a thousand real advantages for one imaginary or trifling inconvenience; that would take fire from men because it burns, and water because one may drown in it; that has no remedy for evils, except destruction. The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes. Can it be supposed that those who have the courage to violate the most sacred laws of humanity, the most important of the code, will respect the less important and arbitrary ones, which can be violated with ease and impunity, and which, if strictly obeyed, would put an end to personal liberty--so dear to men, so dear to the enlightened legislator--and subject innocent persons to all the vexations that the guilty alone ought to suffer? Such laws make things worse for the assaulted and better for the assailants; they serve to rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man. They ought to be designated as laws not preventative but fearful of crimes, produced by the tumultuous impression of a few isolated facts, and not by thoughtful consideration of the inconveniences and advantages of a universal decree.”

In other words, laws against carrying guns make things easy for criminals (who won’t obey them anyway) and hard for victims.

The third “B” philosopher for today is another Frenchman, Frederic Bastiat. While Bodin and Beccaria's books are today read only be intellectual historians, Bastiat books enjoy a wide circulation. His great classic is The Law, which you can find today in libertarian book catalogues (such as Laissez-Faire Books. 800-326-0996 ) and on the Internet.

Bastiat had a sense of humor. He once circulated a petition of candle-makers urging the government to eliminate the sun, since that celestial body created so much unfair competition for candle producers.

But The Law is a serious, intense book. Although the argument progresses quickly--the book is only 120 pages long--Bastiat’s passion does not allow for much mirth along the way. The Law does not directly discuss arms policy, but right of self-defense is the central principle of the book, and indeed of Bastiat’s political theory.

“What, then, is law?” asks Bastiat. “It is the collective organization of the individual right to lawful defense.”

Echoing John Locke and Thomas Jefferson, Bastiat continues: “Each of us has a natural right -- from God -- to defend his person, his liberty, and his property. These are the three basic requirements of life, and the preservation of any one of them is completely dependent upon the preservation of the other two.”

Like John Locke and Thomas Hobbes, Bastiat bases the organization of society on the right to self-defense: “If every person has the right to defend -- even by force -- his person, his liberty, and his property, then it follows that a group of men have the right to organize and support a common force to protect these rights constantly. Thus the principle of collective right - its reason for existing, its lawfulness - is based on individual right. And the common force that protects this collective right cannot logically have any other purpose or any other mission than that for which it acts as a substitute.”

For Bastiat, collective self-defense is the only legitimate purpose of the state. Just as individuals have no right to harm each other, the state has no right to harm people, except defensively: “Thus, since an individual cannot lawfully use force against the person, liberty, or property of another individual, then the common force - for the same reason - cannot lawfully be used to destroy the person, liberty, or property of individuals or groups.”

“Such a perversion of force would be, in both cases, contrary to our premise. Force has been given to us to defend our own individual rights. Who will dare to say that force has been given to us to destroy the equal rights of our brothers? Since no individual acting separately can lawfully use force to destroy the rights of others, does it not logically follow that the same principle also applies to the common force that is nothing more than the organized combination of the individual forces?”

Unfortunately, rather than being used for defense, law is often used to take property from one person, and give it to another, in what Bastiat calls “The Complete Perversion of the Law.”

When law is used to take property and liberty rather than to defend property and liberty, “The law has been used to destroy its own objective: It has been applied to annihilating the justice that it was supposed to maintain; to limiting and destroying rights which its real purpose was to respect. The law has placed the collective force at the disposal of the unscrupulous who wish, without risk, to exploit the person, liberty, and property of others. It has converted plunder into a right, defense into a crime, in order to punish lawful defense.”

Of course modern law often does “punish lawful defense,” in jurisdictions such as New York City, Canada, Australia, and England, where people who use guns to shoot violent attacking criminals are vigorously prosecuted.

One reason that Bastiat remains popular among modern political readers is that his words have such direct relevance to contemporary life. When the Branch Davidians were illegally attacked by an unjustifiably violent group of raiders from the Bureau of Alcohol, Tobacco and Firearms, the Davidians were prosecuted and convicted for defending themselves. As Bastiat noted, “Sometimes the law places the whole apparatus of judges, police, prisons, and gendarmes at the service of the plunderers, and treats the victim -- when he defends himself -- as a criminal. In short, there is a legal plunder...”

 

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