3. LAW (6)

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According to Tucker, from the standpoint of every one's self-interest and the equal liberty of all there is no objection to law. Legal norms are to obtain: that is, norms that are based on a general will[686] and to which obedience is enforced, if necessary, by every means,[687] even by prison, torture, and capital punishment.[688] But the law is to be "so flexible that it will shape itself to every emergency and need no alteration. And it will then be regarded as just in proportion to its flexibility, instead of as now in proportion to its rigidity."[689] The means to this end is that "juries will judge not only the facts, but the law";[690] machinery for altering the law is then unnecessary.[691]—In particular, there are to be recognized the following legal norms, whose correctness Tucker tries to deduce from the law of equal liberty:

First, a legal norm by which the person is secured against hurt. "We are the sternest enemies of invasion of the person, and, although chiefly busy in destroying the causes thereof, have no scruples against such heroic treatment of its immediate manifestations as circumstances and wisdom may dictate."[692] Capital punishment is quite compatible with the protection of the person against hurt, for its essence is not that of an act of hurting, but of an act of defence.[693]

Next, there is to be recognized a legal norm by virtue of which "ownership on a basis of labor"[694] exists. "This form of property secures each in the possession of his own products, or of such products of others as he may have obtained unconditionally without the use of fraud or force."[695] "It will be seen from this definition that Anarchistic property concerns only products. But anything is a product upon which human labor has been expended. It should be stated, however, that in the case of land, or of any other material the supply of which is so limited that all cannot hold it in unlimited quantities, Anarchism undertakes to protect no titles except such as are based on actual occupancy and use."[696] Against injury to property, as well as against injury to the person, Anarchism has no scruples against "such heroic treatment as circumstances and wisdom may dictate."[697]

Furthermore, there is to be recognized the legal norm that contracts must be lived up to. Obligation comes into existence when obligations are "consciously and voluntarily assumed";[698] and the other party thus acquires "a right."[699] To be sure, the obligatory force of contract is not without bounds. "Contract is a very serviceable and most important tool, but its usefulness has its limits; no man can employ it for the abdication of his manhood";[700] therefore "the constituting of an association in which each member waives the right of secession would be a mere form."[701] Furthermore, no one can employ it for the invasion of third parties; therefore a promise "whose fulfilment would invade third parties"[702] would be invalid.—"I deem the keeping of promises such an important matter that only in the extremest cases would I approve their violation. It is of such vital consequence that associates should be able to rely upon each other that it is better never to do anything to weaken this confidence except when it can be maintained only at the expense of some consideration of even greater importance."[703] "The man who has received a promise is defrauded by its non-fulfilment, invaded, deprived of a portion of his liberty against his will."[704] "I have no doubt of the right of any man to whom, for a consideration, a promise has been made, to insist, even by force, upon the fulfilment of that promise, provided the promise be not one whose fulfilment would invade third parties. And, if the promisee has a right to use force himself for such a purpose, he has a right to secure such co-operative force from others as they are willing to extend. These others, in turn, have a right to decide what sort of promises, if any, they will help him to enforce. When it comes to the determination of this point, the question is one of policy solely; and very likely it will be found that the best way to secure the fulfilment of promises is to have it understood in advance that the fulfilment is not to be enforced."[705]

                                                                                                                                                                                                                                                                                                           

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