By Clement Ong
Last week, the Supreme Court of the United States laid down a controversial decision on marriage equality. Some argued it was a landmark decision, and some disagreed.
I have no intention to discuss the merit of the decision in this writing; however it is a strategic time for me to reassess the raison d’etre of the law.
For this, I reread “The Law” – a book authored in 1850 by Claude Frederic Bastiat, a classical liberal theorist.
The Purpose of Law
“The purpose of the law is to prevent injustice from reigning,” said by Bastiat. Justice is achieved only when injustice is absent.
Law keeps a person within the bounds of justice, and it imposes nothing but a mere negation. The law obliges the people only to abstain from harming others.
Thus, law is defensive – it defends equally the rights of all.
The Legislative Functions
Some argued it is not the business of the judiciary to make laws; but it is the business of a democratically elected legislature.
While leaving the above argument to legal pundits on the powers of judiciary, I am more interested to discuss the functions of legislature.
Bastiat said, “It is not true that the function of law is to regulate our consciences, our ideas, our wills, our education, our opinions, our work, our trade, our talents our pleasures. The function of law is to protect the free exercise of these rights, and to prevent any person from interfering with the free exercise of these same rights by any other person.”
Therefore the law shall never be a tool of oppression of majority against the minority.
Law and Justice
Some argued the law shall reflect the views of the majority, and the justice shall be felt by mankind.
Bastiat had a different perception. He believed, “Law is the common force organized to act as an obstacle to injustice. Law is solely the organization of the individual right of self-defense which existed before law was formalized. Law is justice.”
If we agree the right to marriage is universal, and it is just for one to exercise his right freely – then the law shall not act as an obstacle.
The Liberty and Freedom
Last but not least, let us look into the individual liberty and freedom.
Bastiat asked, “Is not liberty the freedom of every person to make full use of his faculties, so long he does not harm other persons while doing so?”
In the same tone, the late Oliver Wendell Holmes Jr, an American jurist once said, “The right to swing my fist ends where the other man’s nose begins”.
Perhaps, we should ask ourselves – “When we exercise our right to marriage, do we harm others; and when others exercise their right to marriage, do them harm us?”
If you find my writing is offensive, then allow me to reiterate the following declaration from Bastiat.
“I declare that I do not mean to attack the intentions or the morality of anyone. Rather, I am attacking an idea which I believe to be false; a system which appears to me to be unjust; an injustice so independent of personal intentions that each of us profits from it without wishing to do so, and suffers from it without knowing the cause of the suffering.”