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You do not need to spend much time talking to libertarians to know that they think that the law is essentially coercive. This belief lies behind their conviction that that those governments are best that govern least. If a law deprives people of their liberty to do what they want, by threatening them with a penalty if they do not comply with the law’s demands, then, so the argument runs, individuals’ freedom has been diminished.
Holding that those governments are best that govern least does not make all libertarians anarchists of course. You can be a libertarian and still see a role for the law in such matters as preventing force and theft. But the libertarian ideal is to keep the use of law to a minimum, favouring what is sometimes called the ‘night watchman state’. Above that minimum, the use of the law, for example to raise taxes to finance public goods, should be avoided.
The fallacy underlying this view is a common one. It consists of confusing the distinctive with the representative. It is certainly a distinctive feature of the law that it is sometimes coercive, providing for penalties for breaching its rules. In this respect it differs from social conventions. If I get drunk at a wedding and embarrass the bride, the groom and the guests, I have breached convention. I will probably have reduced my chances of being invited to other weddings. But I will not be fined or put in gaol. By contrast, if, after the wedding, I step into my car and drive away blind drunk I am committing a legal offence and I am liable to be imprisoned, fined or banned from driving.
However, although the use of penalties is distinctive of the law, the law is not coextensive with a regime of penalties. Many laws define roles along with the rights and responsibilities that make up those roles. Marriage is a good example. What it means to be married and who is qualified to create the status of being married is defined by the law. So it is with matters like who is qualified to vote, what financial liabilities are owed by corporations, which educational institutions qualify as universities, what procedures are needed to register as a charity, who can dispense medicines and so on. In short, the law has the function in defining the rules, roles and relations that are central to social and economic life.
Noting that coercion is not the essence of law is not to deny that some laws are oppressive. For many years laws forbidding same-sex relations blighted the lives of many men and women. But fully to stop that blight required more than the simple abolition of the law. It required creating the possibility of same-sex marriage. The duty of government was not to have just one less law; it was to have a new type of law that created the freedom for same-sex couples to enjoy the rights others had.
If coercion is not the essential element of a body of rules that makes for law, what is? The answer was given some sixty years by H.L.A. Hart in The Concept of Law. Hart said that what makes rules legal rules is that they are made by a process that is recognised as authoritative by those who have to devise and administer the public constitution of a society. In a society the public constitution of which is democratic public officials have an incentive to make rules in the public interest rather than in the interests of a brigand elite who have captured the machinery of state. That is one of the advantages of living in a democratic society.
Even when the distinctive element of coercion plays a role as an instrument of policy, this does not mean that it restricts the freedom of all of those subject to it. The coercion of the law provides assurance to those who would follow its precepts that their efforts will not be undermined by the free-riding of others. Our freedom to use the roads is enhanced by the requirement that motorists are legally required to have insurance cover in case of an accident, just as our freedom to use deposit-taking banks is enhanced by their being subject to legal restrictions on the use they can make of our money.
In any particular case of public policy, it is of course an open question as to what is the best instrument to secure what is in the general interest. Life-boats are provided by charitable donations in what seems to be a satisfactory way, so there is no need to dip into the public purse funded by taxation beyond the benefits of being a charity. But there are many public goods where funding by voluntary donations is not possible. That government is best not that governs least, but uses the instrument of the law well to achieve public purposes.
