On Law, Liberty and the State
Against the Wig:
Feuerbach's Line
Handwerpen — 2026
Most people have never heard of Paul Johann Anselm von Feuerbach. That ignorance is not accidental. What he established two centuries ago is the one principle the modern state cannot afford to have you know.
In 1801, in Bavaria, a thirty-year-old jurist published a legal textbook that quietly drew the outer boundary of everything the state may do to you. His A Textbook of the Common Penal Law in Force in Germany gave Western criminal law its procedural foundation: nullum crimen sine lege, nulla poena sine lege — no crime without law, no punishment without law.
But the deeper principle was substantive, not procedural. For Feuerbach, criminal law has one specific and limited object: the protection of subjective rights — the rights of identifiable persons against identifiable violations. The state's coercive apparatus could be legitimate only when deployed to protect one person's rights from violation by another.
Crime is not the violation of an abstraction — social order, public morality, the general interest. It is the violation of a specific person's specific right. Remove the identifiable victim and you have not criminalised conduct. You have simply prohibited it. Which is an entirely different act, requiring justification the state has never honestly provided.
Feuerbach — who he was and why he matters
Paul Johann Anselm von Feuerbach (1775–1833) — father of the famous atheist philosopher Ludwig, was himself the greater figure in intellectual history. Professor at Landshut and Erlangen, later President of the Court of Appeal of Ansbach in Bavaria. His Lehrbuch (1801) went through fourteen editions in his lifetime.
The nullum crimen principle he codified was subsequently enshrined in the French Penal Code (1810), the German Criminal Code, Article 7 of the European Convention on Human Rights, and Article 49 of the EU Charter of Fundamental Rights. His name is forgotten. His principle is cited daily in courts across Europe — and violated just as often.
His theory of psychological coercion (psychologischer Zwang) argued that criminal law deters not through the fear of punishment alone but through the prior announcement of a clearly defined prohibition. Law that is vague, retroactive, or defined by abstraction cannot perform this function. The citizen cannot govern their conduct by reference to what might statistically contribute to a collective harm. They can govern it by reference to a clear rule, protecting a named right.
English translation: Paul Johann Anselm Feuerbach, A Textbook of the Common Penal Law in Force in Germany (excerpts, 13th ed. 1840), in Markus D. Dubber, ed., Foundational Texts in Modern Criminal Law (Oxford University Press, 2014).
Feuerbach did not invent this. He recovered it. The Roman legal tradition from which European law descends had established the same limit seventeen centuries earlier. The Digest of Justinian (533 AD) opens with Ulpian's definition: iustitia est constans et perpetua voluntas ius suum cuique tribuendi — justice is the constant and perpetual will to give each their due. Each. Not the collective. Not the abstraction. Each person, their due.
Rome distinguished sharply between ius — law, right, the thing owed — and lex — statute, positive enactment, what the ruler decreed. A lex that violated ius was not law. It was violence with legal form. Augustine, writing four centuries after Justinian's codifiers, asked the question that has not been answered since: remota iustitia, quid sunt regna nisi magna latrocinia? Remove justice, and what are kingdoms but great robberies?
Roman law and Augustine — sources
Ulpian's definition appears in Justinian's Digest, Book 1, Title 1 (533 AD). The Roman delict of iniuria (wrongful harm) required: an act, a victim, damage, and fault. No victim, no delict. The Feuerbachian structure predates Feuerbach by seventeen centuries.
Augustine of Hippo, The City of God, Book IV, Chapter 4 (426 AD): the full passage concerns a pirate captured by Alexander the Great who tells Alexander that the only difference between them is the size of their fleet. Augustine uses this to argue that a kingdom without justice is indistinguishable from organised robbery. The argument is definitional: justice is constitutive of law, not merely a desirable attribute of it.
The lex iniusta non est lex tradition runs from Augustine through Aquinas (Summa Theologica, I-II, Q.96, A.4) to the Salamanca School and into Locke. It holds that an unjust positive enactment has the form of law but not its substance. This is the philosophical foundation for the article's closing claim.
The thread runs forward from Rome through the medieval natural law tradition and emerges, fully developed, in the Spanish School of Salamanca in the sixteenth century — a tradition Belgium's Catholic intellectual formation should recognise as its own.
Francisco de Vitoria and Francisco Suárez did not merely philosophise. They drew binding legal consequences. Political authority is legitimate only insofar as it serves the common good of individuals — not of an abstraction called society. Power that systematically violates natural rights loses its legal validity, not merely its moral authority. Suárez's distinction between potestas ordinata — power exercised according to law — and potestas absoluta — power without legal constraint — is the precise distinction between the rule of law and what Belgium operates today: administration with a legal costume.
The Salamanca School — Vitoria and Suárez
Francisco de Vitoria (1483–1546), De Iustitia and Relectio de Indis. Professor of theology at Salamanca. His argument that political authority derives from natural law — not from sovereign will — is the intellectual ancestor of constitutional constraint on legislative power.
Francisco Suárez (1548–1617), De Legibus ac Deo Legislatore (1612). The most rigorous natural law theorist of the tradition. His distinction between potestas ordinata and potestas absoluta directly addresses the question of whether a legal system that violates natural rights remains a legal system. His answer: no.
The political significance: the 1831 Belgian Constitution — one of the most liberal constitutional documents of the 19th century — was drafted in a society shaped by this tradition. The question is not whether Belgium has the intellectual resources to recognise what has been lost. It is why it has chosen not to use them.
Hassemer and the Collapse of the Legal Good
Winfried Hassemer served on the German Federal Constitutional Court. He was not an outsider agitator. He was a judge watching from inside the machine as its own operating principles were dismantled, one statute at a time.
Classical criminal law protects specific, concrete Rechtsgüter — legal goods: life, bodily integrity, property, liberty. These are individual, identifiable, and capable of being violated by specific conduct. When someone breaks your arm, there is a victim, a right, a violation. The law's object is clear.
What the modern regulatory state introduced is the universale Rechtsgut — the collective legal good: public health, environmental integrity, economic stability, social trust, or samen leven / vivre ensemble in Belgium. These sound serious. But as legal concepts, they share three structural defects:
- Abstract — they cannot be observed to be violated in any specific instance.
- Inexhaustible — any conduct can plausibly be said to threaten them.
- Non-falsifiable — there is no conduct that can demonstrably be shown not to affect them. This destroys the limiting function of the legal concept entirely.
From this structural defect flows the catastrophe Hassemer named Vorfeldkriminalisierung — the criminalisation of the preliminary field. You are not punished for what you did. You are punished for what you might, potentially, contribute to. The individual act is irrelevant. The category is everything.
This is not an extension of the Rule of Law. It is its structural negation. If abstract collective goods can ground criminalisation, there is no principled limit on what the state can prohibit — or the amount of money it can exact. This is the beginning of the totalitarian road.
Hassemer, Fuller, Mill, Hart — references
Winfried Hassemer (1940–2014): Professor of criminal law and legal philosophy at Frankfurt, Vice-President of the German Federal Constitutional Court 2002–2008. Key texts: Theorie und Soziologie des Verbrechens (1973); Symbolisches Strafrecht und Rechtsgüterschutz, NStZ 1989; Das Strafrecht und seine Grenzen (2009).
Lon Fuller, The Morality of Law (1964): Fuller argued that law has an internal morality — eight criteria a system must satisfy to count as law rather than mere coercion. These include non-retroactivity, clarity, and congruence between rules and official action. The Vorfeldkriminalisierung system fails multiple Fuller criteria simultaneously. His conclusion: a system that systematically violates these criteria is not a defective legal system. It is not a legal system at all.
Mill's harm principle, On Liberty (1859): "The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others." The word others is a hard exclusion. Self-regarding conduct, however imprudent, is entirely outside the legitimate domain of law.
HLA Hart, Law, Liberty and Morality (1963): Hart's response to Lord Devlin's claim that society may criminalise private immorality to protect social cohesion: absent the evidence, the claim is majoritarianism — the majority using law as a weapon against minorities.
Coase — The Road to Market
Ronald Coase approached the same problem from an entirely different direction and arrived at the same conclusion. The standard justification for criminalising risk-creating behaviour is that it imposes costs on others. Coase showed that this framing is structurally incomplete: externalities are reciprocal. Restricting the polluter protects the neighbour but harms the polluter. The question is not how to eliminate the harm — it is how to allocate it efficiently.
The market, with clearly defined property rights, allocates it better than administrative prohibition — because the market aggregates dispersed local knowledge that no regulator can possess. The regulator decides in advance, for everyone, based on abstractions, with devastating myopia. The market discovers, continuously, through the choices of people who bear the actual consequences.
Applied to criminal law: the criminalisation of risk-creating behaviour rather than actual harm is, in Coasian terms, the state choosing one allocation of costs — the restriction of liberty — without any evidence that this allocation is superior to what voluntary agreement, liability law, and market pricing would produce. It is administrative presumption substituting for knowledge only the market can provide.
The drug market makes this concrete. Prohibition eliminates the legal market and with it the price signals, quality controls, and liability mechanisms that would manage genuine risks. The state then uses the disorder created by the prohibition to justify its continuation. It manufactures the problem it claims to solve, then invoices you for the solution.
Coase, Hayek, Bastiat, Escohotado — references
Ronald Coase, "The Problem of Social Cost," Journal of Law and Economics 3 (1960): 1–44. The foundational paper establishing the reciprocal nature of externalities and the efficiency of market allocation under clearly defined property rights.
Friedrich Hayek, The Constitution of Liberty (1960) and Law, Legislation and Liberty (1973–79): the epistemological argument against central planning. The regulator cannot know which risks are worth which costs to which individuals in which circumstances. The market knows. The regulator guesses.
Frédéric Bastiat, The Law (1850): "The law is the collective organisation of the individual right to lawful defense." His diagnosis of legal plunder — "the law takes from some persons what belongs to them, and gives it to other persons to whom it does not belong" — is the four-step erosion mechanism in one sentence. Written 150 years before Hassemer named it.
Antonio Escohotado, Historia General de las Drogas (1989, 3 vols.): the most exhaustive historical case study of drug prohibition as a political instrument. The enemies of power are targeted through their vices; the prohibition creates the criminal class that justifies the enforcement apparatus; the revenue of the illegal market funds both criminal organisations and, through corruption, the state itself.
The Four Steps
The manner in which the state violated the liberal foundation of criminal law did not happen by decree. It followed four steps — from specific, individual, subjective rights to pervasive collectivist abstractions, each presented as a minor and reasonable extension of the last.
The identifiable victim — a person with a name and a violated right — is replaced by an abstract collective: society, public health, future generations, the social fabric. Never announced as a departure from principle. Presented as an extension: we are still protecting victims, just more of them, more diffuse, ones who haven't been harmed yet. The abstraction destroys the limiting function. A concrete victim provides a natural boundary. An abstract collective good provides none.
Actual harm — observable, attributable, specific — is replaced by statistical risk. You are not punished for what you did, but for membership in a category of conduct that correlates with harm. This makes falsification impossible while pretending to be scientifically objective. Every individual case becomes guilty by category of membership.
Once statistical risk replaces actual harm, the logic extends to precautionary prohibition — criminalising conduct not because it has been shown to cause harm but because it has not been shown not to cause harm. The burden of proof inverts. The individual must demonstrate innocence of future statistical contribution.
The public interest becomes whatever the administrative class declares it to be. It is self-authorising — the state defines the interest, assesses the threat to it, and deploys coercive measures to protect it, without any step requiring external validation. The citizen has no standing to contest it. Natural law and the freedom on which it relies are abolished. Antigoon's edulcorated poison.
The Principle, Restored
Criminal law is legitimate only when:
— There is an act, identifiable victim and harm — a specific person whose specific right has been violated
— The conduct caused that violation — causation is direct and demonstrable, not statistical
— The victim did not consent — consent transforms violation into transaction and removes the state's standing entirely
This was the mainstream of Western legal philosophy — from Roman law through the Salamanca School through Bastiat, to Feuerbach through Mill — until the twentieth century state, stained by its own totalitarian experiments, required a different theory to justify itself. The theory it produced has one purpose: to make the indefensible defensible. And succeeded, for now.
Nozick on rights as side-constraints
Robert Nozick, Anarchy, State and Utopia (1974): "Individuals have rights, and there are things no person or group may do to them without violating their rights." Rights are side-constraints — they define what cannot be done to a person regardless of consequences, not values to be balanced against competing interests. A right that can be overridden when the justification is sufficiently weighty is not a right. It is a preference with procedural protection.
The one legitimate use of proportionality: when two genuine rights conflict — freedom of expression against the defence against defamation of fact — some adjudication is needed. The proportionality framework is legitimate only when both sides of the balance are genuine rights. When one side is "the general interest of fiscal consolidation," the exercise is fraudulent from the start.
Belgium: Victimless Crimes, Victimised Citizens
The abstract principle has a concrete face. Fuelled by authoritarianism and paternalism in equal measure, the Belgian drift expands to almost all areas of life. Consider what the Belgian state currently criminalises or regulates in the absence of any identifiable victim:
- Tobacco, alcohol and vaping Display bans, plain packaging mandates, vaping restrictions — consumption by an adult of a legal substance, progressively criminalised on the basis of statistical public health projections and the presumed weakness of the consumer's will.
- Prostitution Consensual commercial exchange between adults surrounded by criminalisation of the client and practitioner, third-party involvement, and advertising — in the name of protecting a group of persons many of whom have not requested that protection.
- Soft and hard drugs Possession and use of substances whose harm, where it exists, falls primarily on the user. The prohibition creates the criminal market, the violence, the adulterated supply, and the public health emergency — then invokes all three to justify its continuation.
- Access to medicines Treatments restricted by prescription regimes and import rules that serve the interests of the regulatory-medical complex at the expense of the patient. The individual is presumed incapable of informed decisions about their own body.
- Access to financial products Leveraged instruments, certain ETFs, and structured products prohibited for retail investors under MiFID II — the citizen declared too incompetent to assess risk. The Centrale des Crédits registers every Belgian who borrows anything in a state database for ten years. Short selling banned by administrative decree without parliamentary authorisation, in the name of "market stability" — Vorfeldkriminalisierung in financial form.
- Speed limits Statistical thresholds enforced against individuals on the basis of aggregate risk modelling, generating hundreds of millions in annual revenue. The financial motive was explicitly disavowed by regulators — which tells you everything about why it had to be disavowed.
- Private agreements superseded by law Contracts between consenting adults voided or restricted because they deviate from state standards: rental agreements, employment terms, commercial arrangements. Consent, which under the Feuerbach principle transforms any transaction, is systematically overridden.
- LEZ enforcement Movement restrictions imposed via permanent camera networks where less invasive alternatives function in comparable countries — and where infrastructure built for one purpose has been quietly repurposed for expanding surveillance to Orwellian ends.
- Ecological offences and climate policy An expanding category in which harm to the environment — an abstraction with no legal personality and no mechanism of consent — substitutes for harm to persons. The perfect example of how "public interest" permits the control and planification of the entire economy, one precautionary prohibition at a time.
In each case the pattern is identical: an abstract collective good is nominated, a statistical risk is identified, precautionary prohibition follows, and the individual is left to prove their innocence of future harm they have not caused. Feuerbach's principle has not merely been qualified. It has been inverted.
EU Law: From Victimless Crimes to the Twilight of Rights
The replacement of natural rights by abstract goods overflows the fundamental barriers of society against the state. By capillarisation it seeps through the whole legal architecture, dissolves the whole spectrum of human action and choice, and finally dissolves the essence of liberty itself: Law.
The erosion is not merely Belgian. Two mechanisms deserve particular attention — not because they are the most dramatic departures from principle, but because they reveal the irredeemable nature of the institutional fraud.
The principle that law should not punish conduct that was legal when it occurred is foundational. It is the temporal expression of Feuerbach's nullum crimen sine lege: the rule must exist before the act. The ECJ has nevertheless validated retroactive tax legislation where the measure serves a sufficiently important "general interest" — typically budgetary consolidation. It has never, in its history, struck down a tax measure solely because it was retroactive. The principle survives as doctrine. As protection it is void.
ECJ retroactivity — cases and doctrine
The ECJ doctrine permits retroactive tax measures provided: the measure pursues a legitimate aim, legal certainty is "respected," and taxpayers had "reasonable time" to adapt — a standard so elastic it has never once caused the Court to strike down a budgetary retroactivity measure.
Belgium — the Fairness Tax (2013): introduced mid-year, applied retroactively to fiscal year 2013. The Belgian Constitutional Court validated it. The ECJ found it partially incompatible with EU law — on dividend distribution grounds. The retroactivity itself was never the problem, in either court.
Relevant cases: Gemeente Leusden v Staatssecretaris van Financiën (C-487/01, 2004); Test Claimants in the FII Group Litigation (C-446/04, 2006); Plantanol GmbH v Hauptzollamt Darmstadt (C-201/08, 2009).
The Rechtsstaatsprinzip: the German constitutional tradition built the Rechtsstaat on four pillars including Vertrauensschutz — protection of legitimate expectations. The citizen has a right to rely on the law as it exists when they act. Retroactive taxation is its direct negation. Transplanted into EU law. Progressively hollowed out.
Natural rights are absolute, not proportional. You cannot violate piecemeal. In its classical sense, proportionality is a limit on state power. In the hands of EU institutions and compliant national courts, it has been converted into its opposite: a framework for justifying restrictions rather than limiting them. The general interest of the budget becomes the counterweight to the individual right of property, with a thumb already on the scale. Proportionality has become Antigoon's pimp — the all-purpose solvent for inconvenient rights.
ECJ proportionality in tax — cases and Nozick
ECJ proportionality in tax: Marks & Spencer plc v Halsey (C-446/03, 2005); Cadbury Schweppes v Commissioners (C-196/04, 2006). In both, the Court applies proportionality not as a limit on what may be taxed but as a framework for deciding whether the restriction is "justified" by protecting the tax base — the budget itself becomes a constitutional value.
ECHR Article 1 Protocol 1 (protection of property): the Court applies a three-stage test — lawfulness, legitimate aim, proportionality. In tax cases, "legitimate aim" is almost always conceded and proportionality is assessed with extreme deference to the state. The right exists on paper. It has never protected a taxpayer against a tax measure a government actually wanted to implement.
The Kant foundation: rights derive from the categorical imperative, which is unconditional. A maxim that permits violation when the benefit is sufficient cannot be universalised and is therefore not a moral law. Proportionality as a rights-override is Kantianly inadmissible.
Nozick's side-constraints: once you accept that a right yields to proportionate justification, you have accepted there are no rights — only interests in a political market where the state holds most of the chips.
What both mechanisms share is the elevation of budget and fiscal stability — abstract collective goods par excellence — to constitutional values capable of overriding individual rights. The form of judicial review is preserved. The protection it was designed to provide has been methodically hollowed out.
The Connivance of the Judges
The legal profession — the advocates general, the academics who provide the intellectual scaffolding, the judges who apply the resulting doctrine — does not describe its activity as the destruction of the rule of law. It describes it as sophisticated balancing. The sophistication is real. The balance is not.
A rule of law system in which Feuerbach's principle operates cleanly requires few lawyers. An administrative system in which every regulatory intervention generates a balancing exercise between abstract collective goods and individual rights, in which retroactivity can be justified by budgetary necessity, in which proportionality means whatever the court decides it means, is a full employment guarantee for the profession.
The indictment is for both moral corruption — the treason to ius by their gatekeepers — and collective institutional failure. The legal class of Europe was given the principles. It had Feuerbach and Mill and Bastiat and Hassemer. It had Roman law and Salamanca. It chose, step by step, procedure by procedure, judgment by judgment, to concede to the administrative state what those principles were designed to withhold.
The road to Belgium
The cameras on Belgian roads are the visible, physical result of these choices. They could not exist — as a legal matter, under the principles the profession claims to uphold — if the legal class had done its job. It did not. And the record of that failure is written in every Royal Decree issued without a genuine necessity assessment, every data protection opinion noted and not acted on, every academic commentary that found sophisticated reasons why this particular departure from principle was, on balance, acceptable.
Against Privilege — the structural interest of the legal class
See the companion piece Against Privilege: the legal class has a structural interest in the expansion of the regulatory state it serves. The complexity of the legal architecture it produces is not incidental to its interests — it is central to them.
The indictment is both for individual corruption and collective institutional design: a profession whose financial incentives align with complexity, whose prestige derives from mastery of that complexity, and whose independence from the state it is supposed to constrain is structurally compromised by career paths that run through the institutions it regulates.
Wait a Moment
A vigorous argument owes itself its hardest objections. Three are routinely deployed. None survives examination.
Information asymmetry. The paternalist claim: the consumer cannot understand what they are signing, therefore the state must protect them from their own consent. It dissolves on contact with reality. Information asymmetry produces its own market remedies — intermediaries, liability law, reputational mechanisms. The cases where it genuinely harms consumers are almost invariably cases where exit has been blocked by legal monopoly or regulatory capture. The remedy is to restore exit, not remove consent. For material decisions, the individual gets counsel or does not sign. Regulatory inflation makes asymmetry worse, not better — the T&C nobody reads is that length partly because of mandatory disclosure requirements drafted by lawyers for lawyers. At its most generous, the objection justifies mandatory disclosure and functional liability law. It does not justify prohibition. There is no identifiable victim — only a hypothetical person who might have decided differently with more information.
Incapacity. The genuine cases are real and already solved: patria potestas in its modern liberal form — targeted, specific, accountable guardianship for identified persons whose incapacity can be demonstrated and whose guardian can be named and replaced. The state as universal guardian is categorically different: applied to all adults regardless of demonstrated incapacity, unaccountable, and self-expanding — today vaping, tomorrow leveraged investments, the day after any conversation the algorithm flags. It does not solve the incapacity problem. It generalises it. Patria potestas handles the real cases. The state handles itself.
Addiction and responsibility. Addiction does not happen spontaneously. The first use is a choice. The pattern that develops into dependency involves repeated choices, each made with accumulating knowledge. Impaired consent is not absent consent — every human choice is made under constraints. If addiction voids consent, so does most of human motivation. The practical refutation is decisive: remove individual responsibility and observe the society you produce. Ours. The manufacture of dependency is not compassion — it is the political outcome the administrative class requires to justify its own existence. Prohibition makes addiction worse by every measurable indicator, while expanding state power over the addict. It protects the state. Nothing more.
Public goods. The foundational move: refuse the conflation. A public good in the technical sense — non-excludable, non-rival — is a precise and narrow category. Public interest is a political claim with no analytical content. Conflating them has done more damage to individual liberty than almost any other intellectual error of the twentieth century. On the specific cases: defence is a fee for a service within a voluntary community, not a tax. Legal infrastructure developed through competing jurisdictions without central planning — common law emerged from courts competing for cases, arbitration already handles commercial disputes on a fee basis. Environmental protection is an externality problem with identifiable victims and market-compatible solutions — not a public goods problem at all. The lighthouse? Coase showed it was privately provided for centuries through port dues at the adjacent excludable transaction. Non-excludability at the point of consumption does not mean non-excludability everywhere. Entrepreneurial discovery finds the adjacent excludable point. The state forecloses that discovery by monopolising the service before the market can develop the solution. The genuine residual identifies a coordination problem. Markets solve coordination problems when the value of the solution creates the incentive to find it.
Strip the borrowed vocabulary away and what remains is the original claim: the state wishes to prohibit, regulate, surveil, and tax conduct that harms no identifiable person, justified by interests it has itself defined, enforced by a legal class that profits from the complexity it produces.
The answer, from Feuerbach through Hassemer, from Ulpian through Augustine to Vitoria, from Bastiat through Mill to Nozick, is no.
It was not acceptable.
That is not law.
That is tyranny with a legal costume.
→ Against Privilege — on the legal class and the denial of the essence of law
→ The Road to Belgium — cameras, the ratchet, and the indictment of Belgian governance