Chapter ǴǷ: Mises and His Critics on Ethics, Rights, and Law ȃȂȆ
of affairs—a utilitarian exercise—provides the answer. Legally prohibit-
ing all sorts of undesirable actions, including inappropriate sulkiness, and
legally requiring all sorts of desirable actions, including kind words when
appropriate, would be downright impossible. Ļe very attempt to make
law completely coincide with ethics, though doomed to failure, would
bring an oppressive totalitarianism and would give the rulers vast oppor-
tunities to prosecute individuals selectively and arbitrarily. We should
be chary about applying and threatening violence, on which enforce-
ment of the law ultimately rests. Use and threat of force is tolerable only
when—but not whenever—the cases in which it is applied are clearly
specified and when individuals can know how they must behave to avoid
having force applied to them. Ļe law must content itself, therefore, with
proscribing and punishing acts that can be defined fairly definitely and
detected fairly straightforwardly, without unacceptable side effects.
Ļe greatest range of human behavior must remain outside the direct
purview of the law—kind words and charitable actions on the one hand,
perverted ambition, careless gossip, and malicious lies on the other hand.
Encouragement and discouragement of most actions and attitudes must
be left to the flexible, informal, and decentralized application of eth-
ical precepts. Ethics, by its very logic, must be flexible in its applica-
tion to particular cases and capable of evolving as knowledge grows and
conditions change (HazlittȀȈȅȃ, pp.Ȁȇȃ–ȀȇȄ). Whether the law should
forbid certain unethical actions, such as blackmail and default on con-
tractual promises, cannot sensibly be decided directly from first princi-
ples alone. Utilitarian considerations must carry weight, including the
importance of keeping the law definite and concentrated power con-
strained.
Why don’t we want to go to the other extreme, with law so divorced
from ethics as not to exist at all? Not even actual anarchists like Rothbard
would go that far. (Rothbard expects law to persist even in the absence
of government; private enterprises would ascertain and enforce it;ȀȈȆȂ,
chap.ȀȀ.) Allowing even murder and theft to go legally unpunished would
put relatively ethical people at the mercy of the unethical, and a Hobbe-
sian war of all against all would rage. When it can be framed and applied
fairly definitely, furthermore, the law has educative value: it can help teach
ethically rather dense people that certain acts are wrong, or at least that
committing them puts themselves at risk.
On one point I emphatically agree with what I think is Rothbard’s
and Block’s position: the law does not and should not be expected or