From The Righteous State
by Severin Christensen

13.—Guidelines for the Judicial Services of the State

The question of the costs of legal aid cannot be ignored in an ethical investigation of the activities of legal institutions. As long as “the nation is governed according to a confused, even by the language incomprehensible law book”, legal help is necessary for all who become embroiled in a lawsuit. —But who will pay for it?

Free legal aid has been provided in Denmark for a number of years, philanthropically, through an association, to the poor. It provides free advice and guidance, acts as counsel for those seeking advice, but does not take over the payment of the legal costs incurred by the legal steps that must be taken. But if they cannot obtain a free process, the legal advisers often have to advise abandoning a legal claim, and this will in the long run weaken trust in the legal institutions.

One must now ask: should it be considered a philanthropic task to help people to their rights? Is it a satisfactory arrangement that only the destitute have the prospect of obtaining legal aid at no cost, from the hands of a private association, as a mercy case? Can’t all citizens claim free legal aid?

If one admits that legal protection is one of the tasks of the state and that it is the most important of the few real joint bodies that exist, one must, on the other hand, put everything into making it effective. But you don’t have effective legal protection in a state that only takes care of getting the worst criminals out of the way, you only have that when you have free access to justice and redress in all civil areas as well.

Instead of philanthropic free legal aid for the destitute, the demand for a rule of law should read: free legal aid for all.

A very common objection to the idea of general free legal aid is that people would abuse it and inconvenience the court with all sorts of trifles; if you weigh this disadvantage, which could possibly be counteracted to a certain extent, with that of letting all the poor passively accept the civil violations that are added to them, the ethical decision will not be difficult. And it must also not be forgotten that a number of the civil crimes that are now being committed are expressly done under the cover of the current difficulties in getting justice. Undoubtedly, a large number would be lost if it could be assumed that they would infallibly be prosecuted.

Free justice is one of the few issues that would place increased demands on public funds; but the most important of them, the increase in the costs of the administration of justice would mean but little in comparison with all the expenses which our theory of the rule of law would cut out.

From the area of personal law, we must raise the question of the so-called insults to honour. This problem cannot be fully resolved unless it is seen from the point of view: the rightful soul property of the individual.

A person’s rightful separate property includes not only the material goods he has acquired through his work, but also his good name and reputation, if it has been acquired honestly, through his own merit, and does not rest on deception or error. It is therefore clear that a legislation that does not equally protect these goods as well as the more material ones, only poorly fulfils the demands of justice. (By the way, the boundary is somewhat fluid, as a good name and reputation also have material value).

A particularly interesting chapter is the press offences, due to the publicity and dissemination these violations receive. Here is a point where legal protection is so vanishing that the violated sense of justice has time and again had to get air by self-arrest. The requirement for effective legal protection in this area must mean that all defamation without exception is punished, and that all accusations (regardless of whether they are true or not) that do not concern people in official business, i.e. people who owe the public an account for the matters referred to are also punished. But that’s not enough: since all private matters, family matters, homes, etc., are a person’s separate property, from which he has the perfect right to keep any intrusive person out by force if necessary, these matters should not at all, without the express sanction of the person in question, be able to be made the subject of any mention, even not the most benevolent. It is not enough, as has been thought, to consider only the messages that the person in question cannot be assumed to want published as his private property. Because thereby a right is violated, and no one has a right to know these things. No one can know in advance how unpleasant these messages can affect the person concerned, and what mischief, also purely material, they can cause.

Are these considerations then a masked, reactionary call to curtail the freedom of the press? Not in the slightest way. Introducing preventive measures against the press could never be defended from a legal point of view; no criticism must be cut off in advance. But in return, every author must take full responsibility for the consequences his publication causes. On this point, the laws leave much to be desired.

First of all, the magazines should have a publication obligation, i.e. any person attacked, mentioned or criticized should have the right to correction or defence in the same paper. For the magazine certainly belongs to the shareholders, but its mention of personal matters may lead to infringements of the legal sphere of the person concerned, and an avenue for appropriate redress must therefore be opened; no one other than the mentioned person can know whether such a counter-statement is necessary, even if it merely takes the form of supplementary information. Therefore, any attack should entail the right for the person referred to to demand an article of the same size, printed with the same types, entered in the same place in the magazine and preferably on the same day as the attack appears. Strictly factual criticism of productions that expressly appeal to the public’s judgment should be excluded from this; that such a judgment appears is not an abuse. But as soon as it is personal or contains obvious distortions or misunderstandings of the facts, it must be the right of the person referred to to respond. The decision of which of these cases are and which are not may have to be referred to a jury with literary expert assistance[1].

But then there should be access to seek full compensation for the abuse by the press. If the freedom of the press is to continue to exist unchallenged, the indemnity must, on the other hand, be effective. Notice of legal proceedings should firstly be made in the magazine in question and in a way that is just as conspicuous as the contested entry. Next, it is important to come to a clear understanding that non-economic damage requires just as much full compensation as economic damage.

Public investigation and prosecution should take place at the request of the aggrieved party, and the state should take the prosecution into its own hands, without the aggrieved party having to incur expenses.

In order to hit the really guilty, it is necessary to use the rules on criminal liability and complicity to the full. The publisher and the editor must be held responsible, the author as well; no one should be able to hide behind the other’s back. The straw man system must be opposed, i.e. the traffic that someone who is “innocent” in the magazine’s content assumes sole responsibility. And all guilty parties should fraternally share the costs or the penal work. Only by measures such as those mentioned can self-harm be reduced.

Of a significantly different kind than these violations, which extend to certain specific persons, is another group which may come to extend to everyone and anyone, and against which one cannot guard in advance; this refers to unappetizing and indecent depictions, be it in the form of pictures, theatre or variety shows or as descriptions in books and magazines. The impermissibility of these things lies in the impossibility of evading them.

Is there any need to defend the right to guard against spiritual germs of disease and all the unappetizing phenomena that through the soul life threaten our health and well being? We protect ourselves with the help of the law against intolerable noise, intolerable stench and against putrefaction and disease bacteria, and we should remain ignorant of the fact that there are at least as many spiritual attack points for the subversion of our organism! No, one can accept personal restrictions imposed by a health board to prevent the spread of epidemic disease, the logic suggests that one can also accept a spiritual health board tasked with drawing the line on how far one can go in his zeal to corrupt the spiritual atmosphere.

What is implied here is the question of whether or not to recognize concepts such as spiritual nuisance, spiritual germs of disease or not. There are aestheticians who think they can dismiss the matter with a shrug, simply because it relies on moral reasoning. They assume—and they may have had some reason to do so in the past—that morality is something about which everyone can have their own opinion. But the game will not be so easy for posterity, morality is becoming more than a parlour theme. Here, a definite answer must be given as to whether one even acknowledges that abuse is taking place. And if you want to deny the parallel between physical and spiritual abuse, you must first do away with the psychology.

Or is it the arbitrariness that you shudder at? But does not every sanitary law allow for numerous restrictions of a fairly arbitrary nature; should we therefore abolish them? —Or is it the uncertainty of the diagnosis? It must by no means be denied that the determination of what is essential is of such a nature that it must disturb the emotional life of every healthy person—and what, on the other hand, must be regarded as healthy, albeit extremely free artistic production, belongs to the most difficult, is given. But the decision must be made; rather a single mistake than to declare oneself completely powerless in the face of every spiritual trespass and treachery! Preventive censorship is not the remedy; everyone has the right to express himself or herself freely—under responsibility. The solution must be a jury with artistic assistance, with the task of holding the worst, most undoubted violators of public decency to account.

On the whole, we must emphasize that it must become a characteristic feature of the rule of law to act by means of liability legislation instead of preventive bans in all such areas where use does not demonstrably coincide with abuse (here more precisely understood as abuse towards fellow citizens). On the other hand, when we have to mention the joint-stock companies, we will see that responsibility from a legal and moral point of view is perceived in a stricter sense than has become customary in our political life.

These remarks find their full application to the so contentious issue of alcohol. Liability legislation will also relentlessly hit those who abuse their freedom in a way that demonstrably violates the rights of others. On the other hand, the rule of law cannot under any circumstances agree to restrictions on a person’s private freedom of action before he has demonstrated that he has abused it. As already shown under the section on criminal law, the rule of law does not want to punish before a crime has been committed. Demands to this effect attack the basis of peaceful coexistence between people; this rests precisely on the mutual respect for the individual’s self-governance in private matters, in views, faith and daily life. The tendency to demand laws that cut across everyone, those who have abused their freedom and those who have not, violent and peaceful, is one of the worst fruits of the “welfare state”. When prohibitionists reason: it is too late to close the well when the child has drowned, it is surely not the meaning of the proverb “that it is better to close all the wells and cause a total lack of water than to let the well be repaired and fenced in such a way that no one inadvertently chubby in it—and also take better care of the children, without preventing responsible adults from accessing the well.”[2]

The state has as little in this as in other areas the task of being the guardian of the adult citizens. It is a regrettable fact, however, that almost all movements which serve good and noble cultural purposes succumb to the temptation to call upon the state for means of force to coerce and tyrannize their fellow citizens when they find that legitimate means such as enlightenment and example are too slow effective. The state has no right, let alone duty, to prevent the individual from committing stupid things or harming himself. Nor does it have the right to exercise coercion against A., because B. may, under the influence of alcohol, become dangerous to his fellow human beings. In other words, B’s abuse cannot justify intervention against A’s harmless use.

Opinions are strongly divided about the harmful influence of alcohol. The scientific experiments which have been employed in this field have not proved anything whatsoever as to the absolute harmfulness of the small and medium doses; and as far as the influence on the offspring is concerned, the authorities in the field of heredity research have come to the conclusion that it can hardly be a question of inherited degeneration as a result of alcoholism. There is therefore no basis for preventive measures in these circumstances. Nor can one ignore the unfortunateness of making laws which a great number of people would not think it immoral to transgress; nor can it be the state’s business to weaken the individual’s sense of responsibility by removing all human temptations.

One often finds juxtaposition between alcohol and “other poisons” listed; but it is an extremely misleading juggler of words, whether it applies to drugs such as morphine and opium, where pleasure use and abuse coincide, or other drugs that are particularly suitable for murder or suicide.

While a general prohibition thus lacks any support in legal morality, one can very well sympathize with the idea of an individual prohibition (by judgment). This can be initiated when there has been abuse and violations of rights, or a person e.g. neglects his support duties due to drinking[3].

If, in the case of a habitual criminal, it can be established that alcoholism is causally linked to his crimes, it is justified for the courts to take special precautions, e.g. detention in a rehab facility in connection with work duty[4]. On the other hand, it would undoubtedly be abuse if society allowed itself to take action against the habitual drinker regardless of whether he had committed a crime or not (such as in some Swiss cantons). Only if he becomes a burden to the poor or neglects his maintenance obligation should he be placed in such an institution.

As far as acute alcoholism (general intoxication) is concerned, it has been highly offensive to legal awareness that in many places it has been allowed to act as a mitigating, even mitigating circumstance. Letting the drowned man go unpunished, as some have suggested, is quite indefensible, because he bears the responsibility for having put himself in this condition.

The remarks made above with regard to direct prohibitions apply equally to all the masked forms of prohibitions, taxation, rationing, etc. In addition to these there is the unappealing fact that they are usually justified by an unsavoury and hypocritical mix-up of moral and economic motives. One wonders that free and competent people find themselves in politicians who associate the notion of democracy with such infantile measures.

At the transition between internal and external legal protection and belonging to both stands the Health Authority. It is no infringement on the part of the state if it imposes certain necessary restrictions to protect citizens from infectious persons or objects. Quarantine measures and domestic precautions against infectious diseases are therefore in the public’s interest in the state taking it into its own hands and implementing them with the help of experts. What it is in the interest of the individual citizen to ensure is that the disadvantage of the precautionary measures does not exceed the disadvantage that had to be combated, and that the restrictions imposed in building laws and health regulations really can be justified hygienically. —It must not be forgotten, neither by doctors nor others, that the point of view of state intervention everywhere is protection against abuse, here especially against such attacks on health, which threaten us from the persons or property of others; it is unfortunate when a medical society has formulated the task of the state as that of taking precautions to protect the health of its subjects in general; the individual must generally take care of his own health, otherwise you would consistently end up in state regulations about how much and what you should eat, how long you should be in the air, etc. The only thing that can be the state’s business is to prevent the dangers that from one threaten the other, i.e. the essential concern with infectious diseases.

Under this view, several police statutes can be seen, e.g. certain precautions against noise or bad smells; while others, e.g. the traffic rules are an expression of the legitimate function of the public: to ensure the conditions of traffic. But all too easily these common views are forgotten, and official arbitrariness is given too great a scope; as in most Danish cities, where people’s free movement on the streets is subject to far too many foolish restrictions.

The state and business life. The main task of the government is to protect the right to property in all its forms. But ownership of labour-created things has two sources, an original acquisition by equal performance and a derivative acquisition by exchange for things that are legally separate property. If property rights are to be fully respected in a country, it is therefore not only required that the state remove all statutory obstacles to the equal exchange of wages, but also that commercial life be kept unhindered by all binding and inhibiting government measures. Freedom of business, freedom of trade are therefore quite clear and simple consequences of property rights. Any curtailment of the free and equal access to business, any taxation of foreign or domestic products are as many direct attacks on legitimate individual property. One can try whatever defence one wants, consideration for the common good, for the flourishing of this or that branch of industry, the national industry, even (as with the butler question) appeal to paternal feelings of care for the citizens’ (or rather “subjects”) physical and spiritual health—none of these considerations can explain away the bare fact that it is the citizens’ private property that is being preyed upon. Therefore, one should keep a watchful eye on the trend in recent public holiday legislation, which under humane pretexts amounts to gross violations of the law, as it restricts on a large scale buying and selling, work driving on certain days, the business of barbershops and factories, public meetings and amusements, etc. (However, not the operation of dairies—because who are the legislators?)

There are essentially four ways in which a state power can misunderstand its tasks vis-à-vis commercial life, either by wanting to fix the prices of certain goods by the language of power or by assisting certain companies or by throwing up artificial dams for free circulation; finally, by actively wanting to run a business. All these measures are more or less masked attacks on private property rights. A fixing of prices will not be able to avoid causing individuals to have to settle for inappropriate remuneration for their products, because the state is unable to find the right price for a product; no other measure of value is given than the free market itself; a man must have the right to receive the remuneration that one will give him of his own free will. And when the price of his commodity is not affected by any monopoly advantage, absolutely free competition will not readily admit of any exorbitant advantage; it will cause every transaction to become an exchange of labour; everyone can get products in proportion to the utility of his own labour, and money will represent nothing without labour.

Experience has also shown that all attempts to forcefully calculate the interest of buyers and sellers from the outside have failed, indeed led to disasters. Attempts to fix bread prices during a famine in Milan only resulted in the peasants withholding their grain; the provision exacerbated the famine rather than combating it. All attempts to prohibit or fix interest have had a very similar fate. Facts like these serve only further to illustrate how clumsy all such state measures must become, which aim at the promotion of the common good or the useful; man is now no wiser than the social laws.

It must be very surprising that the governments both in this country and elsewhere had to repeat these old experiences once again, during the world war.

On the other hand, state aid and inhibition still play too large a role. But while the inhibitions, both domestic and foreign (consumption taxes, customs, etc.), in large circles of the population are already judged as what they are, interference with the right to property, as the right to free movement is part of this, one tend to take a more favourable view of the benefits. And it also sounds a lot nicer for the state to help one or another business than for it to act as a hindrance, but it takes an extraordinary short-sightedness not to be able to realize that in both cases exactly the same thing is happening, only with changing front. He, who hinders the people’s consumption of fruit by laying a duty on it, is promoting a gain to the gardener that is not in natural proportion to his work; it happens through a price falsification, because the price is artificially raised above what you would have to pay for these kinds of goods if the market were free. And whoever helps domestic locomotive manufacture by directly or indirectly paying too much for locomotives, prevents people from travelling as cheaply as they could otherwise do.

Therefore the supports are exactly as malignant and wrongful as the inhibitions, since one can only help by taking from others; it is this that is important to understand, and therefore the state aid in public reputation should be treated exactly under the same point of view as the inhibitions, and not regarded with gentler feelings.

People who are principled opponents of customs protection and indirect taxes in general cannot therefore logically be supporters of a policy which assumes that the treasury’s funds, i.e. the funds, in which all citizens have an equal share, are used to help individual limited companies; for such help can always only be quite biased and its counterpart is: harm and abuse towards others.

If you take a look at the Finance Act[5], you will find it overflowing with subsidies. In almost no single area do our politicians have the confidence in the health of national companies that they dare to let them stand on their own two feet; they must all, one by one, be put in cotton wool and bottled with artificial nutrition. If one did the thought experiment (quite impossible, by the way) that this support could be distributed fairly, the result would at best be quite crazy: first collecting money from all the citizens of the country and then redistributing it to larger and smaller business circles, so that they wandered back to the same pockets from which they came. But this should not seem to be a policy for creatures endowed with reason; because it rests on the quite crazy assumption that more could come out of the box than comes in.

You probably have to give up hope of finding honourable motives if you want to make the case understandable. It rests quite simply on the existing party policy. Under the current party conditions, it is the most numerously represented classes of the population who, in this way, hope to gain a head start in usurping special advantages. Gradually, the other party groups and the parts of the population they represent come along; soon people come rushing from all sides to claim; and the result will be a race to storm the treasury, and that those who are but weakly represented will be the objects of this plunder. And thus we have ended up in the current worm-stung state, where it is considered the highest art of statecraft to be the loudest in its demands for private purposes, and where experienced responsible politicians, in order to cover the resulting bankruptcy, run a tax and loan policy so fantastically frivolous, that a private person who disposed in this way had long ago been rendered incapacitated.

The fraud mill, which the credulous electorate has not yet discovered, is this: in order to secure votes in his constituency, the politician must use the bribe, which consists in promises of railways, etc. To get money for all this, he simultaneously lines the voters’ pockets!

The freedom of turnover must also be fully respected in general legislation. Yes, the state should be regarded as the major guarantor of this freedom of trade—but nothing more.

When in the United States, in order to counteract the trusts as a state within the state, they have gone the way of prohibiting agreements on prices, or of prohibiting certain associations for the purpose of killing competitors; when, furthermore, by direct prohibition, one intends to be able to counteract unfair competition or underselling with the intention of ruining competitors, etc., this is obviously a completely flawed method, which both interferes unjustifiably with the freedom of trade and is quite useless. Here one will undoubtedly be disappointed and only achieve seeing a new example of how little a short-sighted, “well-intentioned” legislation that follows feelings instead of ethical and social laws will manage to achieve.

It is the exact opposite way to go. Instead of harbouring distrust of free competition, one must harbour even greater trust in it; one should once, for the first time in world history, try to let it unfold completely freely. But as long as the monopolies for natural goods remain, as long as free competition does not exist, and therefore it has never yet been allowed to show its effects. It is the monopoly profit which causes the goods to be overpaid, and which therefore displaces the only natural competition which should exist, the competition between the labour services laid down in the products.

The Trusts have been able to introduce a number of labour savings. But have these benefited consumers? Not at all. If, on the other hand, the monopolies (for land, means of transportation, etc.) did not exist, competition would soon force the trusts to provide the benefits to consumers.

It is not the associations in and of themselves that should be feared; not that the administration is simplified, work is saved, etc., for thereby no one is deprived of anything belonging to him; it is the enormous contractions of monopoly advantages that are the danger.

Together with the Social Democrats, we must not wish that this power must concentrate more and more, so that the state can suddenly take over everything, because we have no guarantee whatsoever that a ruling majority would abuse the terrible economic power, the thereby obtained, to a lesser extent than the current managers of the trusts do. Shifting power from a minority to a majority is in itself no legal advance; it is even a foregone conclusion that the possibility of complete repression would be far greater than now if both all economic and all political power were gathered in one focal point. We have absolutely no guarantee of individual freedom or individual rights in a direction that does not even theoretically respect these concepts, let alone make an effort to formulate them.

In general, the rule of law, where it is not a question of necessary monopolies, can neither fully nor partially act as the employer. In part, it cannot do so because it then acts as a competitor to its own citizens, and because its competition must necessarily, due to all the sources of aid available to it, become unaffordable. If the government completely took over all companies, this competition would of course disappear, but the government would then be unable to determine the fair wage, i.e. the one that corresponds to the quantity and quality of the product. This cannot be determined by the language of power from above, it is determined solely by supply and demand on the free market—well, the completely free market; not what we have now. But when the market is taken out of the game, the yardstick, the only objectively valid one that exists, has disappeared immediately.

No, the course of action against the trusts must be to take the ground out from under their feet, in the most literal sense of the word. What will be left of the immense and corrupting power of the petroleum trusts, the steel trusts, the moment the laws do their duty and enforce the equal right of all to the mines, the natural resources, which they have seized? Customs protection has also had its importance for the trusts by counteracting the competition of similar foreign products, but only to a lesser extent; at any rate, it is now so subordinate that Rockefeller has declared that at the present stage the protective tariff may well be removed for him; the property privilege is protection enough.

The trusts cannot therefore be regarded as the culmination of a normal industrial development, which must simply be allowed to run its course; on the contrary, their cause, the monopoly protected by law, is the chief obstacle to a normal industrial development, through its exclusion of competition. And if you have seen that evil is only rooted in foolish human measures, unjust laws, you also know the remedy. Competition has no natural tendency to cancel itself out; this will be possible only when the people shoot with the help of monopolies.

The state’s relationship with limited companies leads to a general consideration of the right of association.

To join together with others to pursue common interests is one of the inviolable rights of man. In the rule of law, where most of the functions of the current state are referred to private initiative, association activity will largely replace public activity, and it is therefore of particular importance that there are clear ideas about the scope and limitation of the right of association.

The most important question here is how the responsibility of the individual must be perceived when he joins an association. Very often, the view is taken that by only being a participant in an action, one becomes only partially responsible. But this view derives from practical legal decisions; it cannot be justified in legal and moral terms. For whoever participates in an action chooses for his part the whole action, not a part of it. And just as little as the result of the action allowed itself to be shared (e.g. Caesar’s murder), so little can the individual participant claim that not all the blame falls on him—even if it also falls on others. Even if lawyers can distribute alimony between several fathers, each individual “participant” in the undertaking must feel fully morally responsible (which he can hardly avoid if the others, for example, disappear). This, as far as the relationship with the others is concerned. But you also cannot, as a party to a joint action, divide your own moral being into several parts, create independent small parts of yourself and push them forward in front of you as solely responsible. This goes against the very essence of accountability; responsibility always points back to an individual’s full freedom of choice. And even less can you make dead things, economic values, accumulated capital contributions, into independent centres of responsibility, even if the laws try so hard to breathe life into them and call them “legal persons”. Such conceits do not approve of morality, and a rule of law should not play with mechanical puppets.

If A., B. and C. form a plot to assault D., and each contributes a sum for this purpose (subscribes a share in it, one might say), it would be all right—if liability was asserted—that the participants pointed to the invested capital; even if the “operating costs” had swallowed it? No, probably not. But you find it completely out of order that a joint-stock company commits itself to a third party, goes bankrupt, ruins the person in question, and the participants cover themselves snugly behind their shares. Legally speaking, however, these conditions are quite uniform; in both cases it is about fault and legal compensation[6].

There is no doubt that one is going astray when the “right of association” is used to escape responsibility for human actions. Every type of private association must in a state of law be subject to at least the following limitations: 1) Efforts must not be made to violate the legitimate interests of any individual, or to violently overthrow the public institutions that implement the principles of law. 2) The participants in any association are all personally responsible for those of the association’s actions that affect the interests of third parties. 3) Associations, like individuals, may be favoured in any way by the public sector.

1) With regard to the first point, it is important to state that no coercion of any kind may be exercised to move outsiders to enter, or to comply with the association’s instructions. In general, joining an association should be perceived as a free contractual relationship between two parties, and the general provisions for contractual relationships should be those applicable as a norm for associations.

While the right to strike is recognized in all civilized countries and should be, the issue of strike shifts has been somewhat contentious.

There is no doubt that the rule of thumb can be a particularly significant inconvenience for people outside the association. That the so-called “accompanying” is quite tantamount to harassment and threat to jobseekers, it would be cowardly to deny; the same applies to the so-called “peaceful persuasion” on the part of the strikers. In America, even the very setting up of pickets is illegal, even if they do not exhibit threatening behaviour. By contrast, in 1906 the Trade Disputes Act in England agreed to allow strikers not only to communicate and receive factual information, but also to persuade others to join the boycott.

Of course, there is no “strike time” for public sector employees. The state undertakes to give them wages, often increasing, pensions for themselves or their widows. They are “permanent” employees, cannot be dismissed without serious mistakes. Only the state is bound, the man is free. Should he now have the right, together with his fellows, to use force against the state, to stop the whole enterprise, until the whole basis of the contract is changed according to his wish? The game is unequal, because the state cannot break its obligations, cannot establish a lockout. The legislation should expressly state that the exercise of power by means of work stoppages cannot be permitted in relation to the state power or such public societal functions that are run by virtue of a public monopoly and with the obligation to operate without interruption, where lockout is therefore excluded[7].

Another question is the relationship between the contracting parties themselves, and in particular whether there are certain agreements which must be labelled invalid due to special characteristics of what was agreed upon. That freedom of contract should apply to the fullest possible extent is a generally recognized principle; but closer reflection will show the dubiousness of leaving it completely unlimited. Would a contract that involved slavery be valid? Should Shylock’s claim to his “bowl of flesh” be upheld in any court? Would a religious order be able to seek the assistance of the state to keep a nun locked up for life because she had voluntarily entered into it, etc.?

First, of course, the legal order cannot defend such agreements that would contravene the prior rights of others. But it must also be recognized that certain absolutely inalienable rights are granted. We can probably describe the relationship in the shortest way so that a claimant can only get legal protection for claims that leave certain individual life values untouched. Legal protection deals only with claims for human services or their value consideration; it covers only the distribution of values (limited benefits or objects of social value) between owners; thus it acts in everyone’s interest; but for the legal order all people are potential owners, it cannot indulge in abolishing the property of any person as owner in favour of someone else, because it considers the person and what constitutes personality itself to be of such a special kind of value that it does not can be combined with something else, i.e. not included in any remuneration calculation or contract. It cannot therefore recognize contracts that abrogate a person’s freedom, the inviolability of his body or his honour. The highest a creditor can claim, if a promised unique item cannot be provided, is as much material compensation as the individual is able to provide without giving up his essential characteristics as a legal subject. In practice, an estimate of the person’s performance cannot be dispensed with.

With regard to labour services, it must be stated that no one can bind his entire workforce indefinitely in any other way than that he must at least be able to free himself by financial remuneration. No one should be forced to enter into contracts that may entail a loss of personal freedom or other personal values, but the other party must know that it will be of no use to come to the state and demand that they be fulfilled. And it should be a criminal offense to prevent someone from calling on the help of the courts if such agreements are sought to be implemented by force. In a similar way, one must consider the self-restrictions of religious orders in freedom. The state must check that the promisee still has access to withdraw, and it cannot provide any legal protection for contracts of this kind, while it must of course respect a relationship of dependence that is maintained quite voluntarily.

It will appear from the foregoing that attempts at coercion against the members of an association will only enjoy legal protection to a small extent; in particular, it will then concern association obligations of a financial nature. Other claims usually cannot count on public support, even if they do not amount to unlawful coercion or abuse. Whether the state’s help can be required to implement the penal provisions of private associations towards the individual who violates an association’s bylaws is more than doubtful, especially when joining these associations is more or less compulsory. You cannot grant an association’s highest authority (e.g. the general meeting) the right to decide unconditionally on the obligations of the individual member. It should thus not be able to easily displace the entire contractual basis that existed at the time of enrolment, e.g. not advance the mutual legal relationship between the members to the detriment of some of them or extend the members’ financial responsibility for the association’s debts beyond what the individuals agreed to when they joined the association, nor change the provisions on the members’ right to share in the association’s assets and profits or reduce it by departures. It is therefore necessary for associations to carefully formulate their purpose and activities, so that the courts can have evidence to possibly protect the individual members.

2) The basis of all social trust is personal responsibility. In recent times, however, companies have arisen where personal responsibility is shunned; the most striking example is the limited company, where you are not liable for your entire fortune, but only for the individual deposits in shares you make. As I said, this is a modern phenomenon; originally there was no indication that the members were not liable beyond the amount of the deposit.

“This development, it is said (at Vinding Kruse: “Stock companies etc.”), which in the last 50 years has been extraordinarily large, contains a great danger in its escape from personal responsibility.” This author even uses the expression “that the personal liability is waived”[8].

Excellent premises, but unfortunately without any logical conclusion. When you are aware that you have lost one of the pillars of the old economic society, namely personal responsibility, and that all the abuse is precisely linked to its complete dissolution, it is a blow to the air to make limited company laws that allow the very evil untouched.

It is important to look to the bottom of this issue and see that the limitation of members’ liability by joining a company is an artificial, legally protected privilege that works by leaving the rights of third parties in the dark. The Belgian writer Lambert, who has illuminated this problem more sharply than anyone else, rightly says that in recognizing such irresponsible “Legal Persons” the laws constitute a danger to the morality of all social life.

Germanic law originally did not know the concept of “legal person”. Also in the case of associations, it was always the individual persons who were the owners and fully liable for the company’s debts. Even more recently, countries are given, e.g. England, where legal developments only reluctantly recognize that associations can be formed whose debts and property are different from those of the individual members.

That the anonymous companies cause many social disadvantages is quite obvious; one shows far greater frivolity, far greater desire for speculation and adventure, than if one had to vouch for one’s entire fortune; one is less scrupulous in all directions when responsibility and risk are hidden. Furthermore, capital naturally makes use of this privilege, which is unfair competition with the support of legislation. That anonymity is a privilege is not disproved by the fact that “it is available to everyone”. Of course it doesn’t, just like the land monopoly, because in both cases you have to have money.

As far as debt responsibility is concerned, our associations (co-operative societies, e.g. cooperatives) have a great handicap. There are schemes ranging from unconditional joint and several debt liability to complete exclusion of personal liability. Unfortunately, the Supreme Court has ruled that you cannot demand joint and several liability from cooperative members.

One must return to the position that the freedom to form companies is only compatible with joint and several liability; thus also a part of the parasite on the actual work will disappear; the capitalist would then employ his capital in enterprises which he himself could personally follow, and in which he was so interested that he was willing to participate fully in the responsibility; he would not, as now, deal with undertakings which he cannot control, because then the risk would be too great. The joint-stock companies should therefore be transformed into partnerships, where all the participants are liable with all their assets for the obligations incurred by this company. And the liability should be joint and several. Here, no one from the members is recognized as a separate “legal person”[9].

The main point of view in this case, however, is that the privileged irresponsibility contains an obvious wrong to the outside. A few years ago, a large Copenhagen bank issued false information to obtain credit, i.e. an obvious fraud. But when the bank went bankrupt, the shareholders were not liable for these frauds. Admittedly, the director was punished—but the compensation claim? With alms from the state, the savers were helped, while of course it should have been the shareholders who assumed full responsibility and covered the damage.

You can therefore see that the liability of the limited liability company is also limited to the company’s assets for violations of law by its bodies.

3) Other, more direct, favours are also given to associations of such a nature that they should be unthinkable in a society governed by law. In the social legislation from recent years, preferential rights are given in various ways to certain specific associations “which predominantly represent the country’s organized employers and workers”. That this is equally unfair to the individuals outside the organization is obvious. Associations of a certain size, which are made up of penniless wage workers, enjoy great state privileges and financial subsidies. Here is something that has not without reason been called “the entree of the organized workers”. The state, which should remain neutral in the relationship between worker and employer, here takes a direct side for one side and thereby contributes mightily to upsetting the natural balance between supply and demand and makes natural wage setting difficult.

When will the workers learn to realize that all such unfair gifts from above must only serve to cover up a guilty conscience? But wouldn’t it be better to demand one’s right than to beg for a wrong?

Successful legal protection also includes defending the ownership of spiritual products[10]. The person who has painted a painting or shaped a work of sculpture must undoubtedly have the ownership of these self-created products intact, including the right to market them (transfer ownership to others). A particular difficulty arises when the newly created product is not individually unique, but can be reproduced and multiplied by the artist himself as well as by others, without the value of the reproductions being significantly different from the first produced product (books, for example). Here, ownership of the product can obviously only be secured to its creator, by securing the copy or reproduction right to him; for each and every copy contains something of the spiritual work which created the value of the product, and he who could therefore distribute and sell copies and reproductions without giving remuneration would be appropriating remuneration for spiritual values that someone else had produced; it will hardly be possible to guarantee that the remuneration for such spiritual works goes into the right hands without granting the author exclusive rights to the reproductions, a right he must of course be free to assign.

It has been argued, on the other hand, that when a spiritual product has lived for a certain time and has gained wide circulation, it becomes in a certain way the property of the entire nation, so that it will be impossible to maintain separate ownership and exclusive rights. But it is not said that a spiritual value, because it has become part of a person’s consciousness, therefore becomes his property, which he can dispose of at will. A secret, for example, which is entrusted to me under oath of secrecy, is part of the content of my consciousness, but I am therefore not allowed to treat it as property, i.e. do with it what I want; it is rather like a loan to which certain conditions are attached. In the same way, I can absorb the contents of a book without this therefore becoming my property, so that I can, for example, should be allowed to plagiarize it and pass it off as a work of mine or reproduce it and do business with it. Although general truths that are preached in writing or speech must be considered common property, this cannot easily be transferred to individual designs such as works of art etc.

In this area too, there is no other legal arrangement than the completely free contract. The provision that copyright e.g. must cease 50 years or similar after the author’s death, there are restrictions in this, because they prevent an author from entering into an agreement with his publisher entirely according to his own will. There are several works of which an author must be able to estimate that in the first 50 years only a relatively small number will be sold. If his contract is now to be limited by a certain period of time, he obviously misses out on his rightful dividend; perhaps it can comfort him that it does not benefit any other individual either—but it is not fair. And even if full freedom of contract could now and then lead to a disproportionate profit for individual publishers—it would not be unfair in any case, since the risk would be mutual; it would therefore hardly harm the author in the long run if the publishers got the advantage a little too much on their side. Here, as elsewhere, one should have confidence that the free contract law is used sensibly by both parties. If some author were to have a special interest in the copyright being released after a certain period of time (e.g. for ideal reasons), the free contract law would also allow this arrangement.

As far as technical inventions are concerned, the situation is somewhat different. Because these are not individually determined to the extent that artistic productions are, and the chance that the invention can be made anew, without knowledge of the original, is infinitely greater. Making the patent right unlimited would therefore certainly be as big a mistake as if, by denying preferential rights, you would make it impossible for an inventor to reap any benefit from his intellectual activity. Most patent laws have chosen to navigate between these two considerations and grant the right to a patent for a certain, rather limited, term of years.

Even better would probably be to restrict the patent right to guarantee the inventor a certain percentage of the sales price of the patented article for a certain number of years.

A state that wants to do everything to protect legal property must necessarily pay great attention to debtor relations. It will not be able to settle for the laxity that is now being shown in relation to debt and the poor protection afforded to creditors. In general, the fulfilment of contracts is something that the rule of law must do everything in its power to control. Admittedly, one often hears the opinion put forward that contracts should rest only on words of honour. But wouldn’t it have a similar moral influence if, instead of punishing theft, violence and murder, it was left to a common sense of honour to refrain from such things?[11] The point is that here one introduces an unreasonable difference in quality between the two kinds of wrong, based on breach of promise and on assault. But the moral difference between stealing a ready-made coat from a tailor’s shop or refusing to pay for a coat ordered is too close to zero to justify state intervention in the one case and not in the other.

It is easy enough to say that the tailor should not have given credit, and that experience is the best teacher; but why should the trusting enjoy less legal protection in relation to the cunning and suspicious than the weak in relation to the brutal. It is said that a debtor can be legally forced to fulfil his obligation, but in reality the device fails in far too many cases. The measures that can be taken result in requesting that the debtor’s estate be taken under bankruptcy proceedings or—if he is obliged to perform a specific act according to a judgment or settlement—to demand that he be placed in debtor’s prison. But both of these options are of little use to the creditor if the debtor’s estate contains nothing of value. A healthier situation would be if the creditor, after having tried other solutions in vain, was enabled to have the debtor sentenced to pay off the debt from his wages (under the control of the public), or—if necessary—by forced labour. Effective legal protection here would help to counter the laxity that currently prevails in the moral perception of debt obligations.

[1] These requirements are now essentially met by §9 of the Press Act of 3 April 1938, according to which a newspaper must correct factual information when this is requested by someone to whom this is likely to cause a not inconsiderable damage in financial terms or in the public’s reputation. The correction must be recorded in the same types as the plain text of the document and in as prominent a place as can reasonably be required under the circumstances.

[2] Axel Dam: Art, in Illustreret Tidende (Illustrated Newspaper) 1921.

[3] Section 72 of the Penal Code of 1930 provides that if someone is sentenced to a custodial sentence for a crime referred to in the law, and the court finds that the crime was committed under the influence of alcoholic beverages, the convicted person can be ordered that he in a certain period, but not exceeding 5 years from his final release, may not partake of or purchase spirituous liquors. If the person concerned is due to drunkenness, the order must be given. Hosts, traders and distributors must, as far as possible, be ordered not to serve, sell or distribute spirits to a person convicted in this way.

[4] Placement in a rehabilitation centre for drunkards is authorized by §73 of the Criminal Code of 1930.

[5] State expenditure alone amounted to DKK77.5 million in 1900. In 1949 they are up to approx. DKK 2,080 million, an increase of approximately 2,600%. In the same period, the total tax burden has increased from approx. DKK174 million to approx. DKK4 billion, or approx. 2,200%; but of course one must not forget that the population has increased in the same period by approx. 1½ million and that the value of the coin is still deteriorating.

[6] In most countries, citizens are warned against the limited liability of shareholders by the fact that there is a registration obligation for limited liability companies, which ensures public disclosure of their financial responsibilities. Since citizens are free to decide whether they want to contract with a limited company and thereby incur a special financial risk, it can be debated whether the limited company form—provided public registration is required—is contrary to legal morality, cf. that it is not contrary to legal ethics for two contractors to enter into an individual agreement in which one or both parties reserve limited liability for damages.

[7] Compare Poul Andersen: Danish administrative law (Gyldendal 1946) p. 204 ff.

[8] However, Vinding Kruse later seems to have abandoned his apprehension. See the presentation in the Property Court (Arn. Busck 1929) pp. 337 and 370 f.

[9] In Danish company law, joint and several liability applies to the shareholders, but the liability is limited to their share contribution and is therefore not personal, although it is both joint and several if the company is not registered and thus not brought to the public’s knowledge through the company register.

[10] On property rights to works of art, see Torben Lund: Billedkunsten i retlig belysning. (Gad 1944).

[11] R. K. Wilson: The Province of the State. London 1911.