You and I are neighbors. Between our properties is a fence. There is an invisible surveyed boundary between our properties, but that is not why we have a fence. There are nearby neighbors who do not have fences. Neither of us has cattle or sheep but we choose to mark our properties with a fence. It may be a sturdy 6-foot cedar fence or a decorative split rail fence. However strong, it will never prevent a child’s ball from sailing over it, never prevent a dog from digging under it or muffle a loud party. So what is the purpose of the fence? I suggest that our fence and many others are symbols of liberty that rests on our mutual acknowledgments of our individual rights.
This does not apply to fences and walls intended to protect or prevent escape. Erecting a high fence around a prison protects the lives of people living near a prison and keeps the prisoners confined. Nor does it apply to walls and fences intended to keep a people enslaved, as in North Korea. I am talking about fences and walls that we erect around property. It might be one we build together as neighbors or a 12-foot-high concrete wall around a celebrity’s estate. The 12′ wall is imposing, but it can never ensure privacy or security. Given sufficient malicious intent, the wall is a minor obstacle.
Walls and fences are symbols that mark what is mine, which requires me to acknowledge what is yours. I strengthen and protect my ownership by that acknowledgment. All this takes place in history before the law of trespass was invented. You as my neighbor recognize my property and I recognize yours simultaneously. We do not do this because there is a law of trespass. We do it primarily because it is the virtuous thing to do. My liberty requires that I honor yours.
This is not to say that we will never violate the sanctity of our neighbor’s property. As a group, we acquiesce to taxes with an element of choice and the sanctioning of force. What I suggest here is that law is not the significant mover of ethical behavior. Law is the statues created by federal, state and local governments and the legal system (police, prosecutors, judges, and juries) that enforce the law. They are our agents. Laws exist because enough people agree that specific behaviors are anathema to the public interest. The laws are enacted to provide disincentives to that behavior with punishment. It is safe to say that while many of us have said “I’ll kill you” when angry, most of us will never commit murder. Why? Because killing another person is wrong. The wrongness exists before the law.
We are becoming unmoored from historical transformations that elevated the individual from generations where a man’s life was no different than his grandfather’s. It is almost absolute throughout history that the nodding of a king’s head determined whether a man died or became wealthy. The last century saw millions of people killed by communists, Nazis, and authoritarian regimes in pursuit of a better world. Their rationale and their vehicle was the same as the Egyptian Pharaoh with the Jews. Laws will never prevent the killing of an individual nor the killing of millions. Negating the sacredness of the individual permits death camps and drive-by shootings.
About 3,000 years ago, Jewish men, women, and children stepped from slavery into a personal relationship with G-d. The individual was sanctified and had the choice to live by transcendental rules. In America, we are heirs to that legacy. So I enjoy the appeal of the fence that is the symbol the liberty each of us has by the grace of virtue we choose to exhibit and the grace of G-d.