By Lee Friday on the Mises Wire

On May 11, in defiance of a government lockdown order, Elon Musk reopened Tesla’s car plant in Fremont, California, which elicited a negative reaction from Noah Feldman, professor of law at Harvard Law School:

Arguably it’s possible to conceive some circumstances where a law is morally unjust and a corporation would be justified in acting like an individual, flouting the law as an act of civil disobedience in order to get it changed. But reopening a for-profit plant—and potentially endangering workers—for the sole purpose of making money isn’t a situation where morality should trump the law.

Feldman’s statement requires clarification, but I can think of only two ways to interpret it:

1. Reopening the plant is a moral act, but morality should not trump the law in this particular situation.
2. Reopening the plant is an immoral act because it defies the government’s moral law (or edict).

In either case, Feldman appears confused about the concept of morality and/or he is not committed to the idea that morality should always trump the law.

The principles of morality are intuitive, as Frederic Bastiat explained in his essay “The Law“:

Nature, or rather God, has bestowed upon every one of us the right to defend his person, his liberty, and his property, since these are the three constituent or preserving elements of life…

Collective right [government], then, has its principle, its reason for existing, its lawfulness, in individual right; and the common force cannot rationally have any other end, or any other mission, than that of the isolated forces for which it is substituted. Thus, as the force of an individual cannot lawfully touch the person, the liberty, or the property of another individual—for the same reason, the common force cannot lawfully be used to destroy the person, the liberty, or the property of individuals or of classes.

For this perversion of force would be, in one case as in the other, in contradiction to our premises. For who will dare to say that force has been given to us, not to defend our rights, but to annihilate the equal rights of our brethren? And if this be not true of every individual force, acting independently, how can it be true of the collective force, which is only the organized union of isolated forces?

Nothing, therefore, can be more evident than this: The law is the organization of the natural right of lawful defense.

In other words, since you and I do not have lawful authority to forcibly lock down Tesla’s car plant, neither does the government. But the government did it anyway, thereby annihilating the equal rights of our brethren. Therefore, the owners, managers, and employees of the plant were simply reclaiming their lawful rights when they illegally reopened the plant. Unfortunately, laws often lack a moral basis, as Bastiat observed:

It is so much in the nature of law to support justice that in the minds of the masses they are one and the same. There is in all of us a strong disposition to regard what is lawful as legitimate, so much so that many falsely derive all justice from law….

Unhappily, law is by no means confined to its own sphere….It has acted in direct opposition to its proper end…it has been employed in annihilating that justice which it ought to have established…it has placed the collective force in the service of those who wish to traffic, without risk and without scruple, in the persons, the liberty, and the property of others; it has converted plunder into a right, that it may protect it, and lawful defense into a crime, that it may punish it.

Let’s pick up on one of Bastiat’s points. What if the reopening of Tesla’s plant had been followed by a government attempt to forcibly shut it down, thereby annihilating the equal rights of our brethren once again? And what if Tesla’s owners, managers, and employees, or their security agents, had forcibly resisted the government? In this case, both sides are using force, but only the Tesla group would have a legitimate claim to the moral high ground, because they would have been doing nothing more than defending themselves, their liberty, and their property against government aggression—in other words, they would have been engaged in lawful defense.

However, according to Bastiat’s observation that “the law converts lawful defense into a crime, that it may punish it,” the government would then have claimed legal authority to use overwhelming force to punish those evil Tesla criminals. And Feldman would likely have supported the government’s aggression,1 because, according to him, Tesla is “potentially endangering workers” by reopening the plant.

However, Feldman is assigning responsibility to the wrong party. None of Tesla’s owners or managers are forcing anyone to return to work. Each worker has the right to consider the safeguards that Tesla has or has not implemented and to make a decision about returning to work based on their subjective assessment of potential risk.

Feldman’s sophistry notwithstanding, those who decide to return to work are acknowledging and accepting the risk of potentially exposing themselves to the virus, or any number of other potential mishaps that we all face every day. For example, when we walk, cycle, or drive to work, or anywhere else, for that matter, we acknowledge and accept the potential risk of encountering careless, inexperienced drivers, as well as poor road conditions and bad weather, which we know results in millions of deaths and serious injuries every year.

To deny workers the right to make their own decisions is to “annihilate the equal rights of our brethren.” That is immoral, and morality should always trump the law. The idea that we should make exceptions to this rule is deeply troubling, as Bastiat warned us:

When law and morality are in contradiction to each other, the citizen finds himself in the cruel alternative of either losing his moral sense, or of losing his respect for the law—two evils of equal magnitude, between which it would be difficult to choose.

Professor Feldman may be a legal expert, but he seems unable to consistently identify injustice through an application of moral principles—and principles, by definition, are not open to compromise. A moral injustice is a legal injustice, period.

• 1.In another recent column, “Wisconsin Lockdown Ruling Shows Right Wing’s Paranoia” Bloomberg, May 14, 2020, https://www.bloomberg.com/opinion/articles/2020-05-14/wisconsin-lockdown-ruling-shows-right-wing-s-paranoia, Feldman wrote: “restrictions on liberty must serve a compelling government interest and must be narrowly tailored to achieving that interest. Fighting an ongoing pandemic is about as compelling as government interests get.”