Contra the New American Thinker, there is no Libertarian Misunderstanding of Law

Selwyn Duke of the New American Thinker claims libertarians misunderstand the nature of law. Here’s Duke’s argument in summary:

Without morality, there can be no law. Therefore part of the function of law must be to enforce morality to make the general rule of law possible.

Of course, this argument is nothing new. It’s the same argument that all Statists, in the end, make: law is a positive concept, that is, the purpose of law “is to cause justice to reign.” Whether Duke realizes it or not, the Fabian Socialist and the Christian moralist are making the same argument.

Frédéric Bastiat’s “The Law” addressed these Statist claims way back in the day. Law is not a “positive” concept, it is a “negative” concept. The purpose of law is not allow justice to reign but to prevent injustice from reigning. The purpose of law is not to promote justice but rather to correct injustice. Bastiat’s famous tract serves as foundation to the radical libertarian conception of law. And it’s a very simple one. There is no other abstract requirement of law outside the absence of plunder. Simple, but remarkably clarifying.

So, to Selwyn Duke I ask a simple question. Are Christians incapable of plunder? If they are, then there is no need of law in a Christian moral society. If they are not, then there is no value in promoting a positive law to enforce such a morality. Duke’s appeals to Christianity as the historical source for laws against such things as murder, theft, etc is laughable, revisionist history. The educated person, even a modestly educated person, knows better. The educated person knows full well, from a examination of history, that Morality + State is often the source of the most putrid, systematic plunder.

Bastiat, himself, was hardly an atheist. But he addressed “Law and Morality” thusly:

You say: “Here are persons who are lacking in morality or religion,” and you turn to the law. But law is force. And need I point out what a violent and futile effort it is to use force in the matters of morality and religion?

It would seem that socialists, however self-complacent, could not avoid seeing this monstrous legal plunder that results from such systems and such efforts. But what do the socialists do? They cleverly disguise this legal plunder from others — and even from themselves — under the seductive names of fraternity, unity, organization, and association. Because we ask so little from the law — only justice — the socialists thereby assume that we reject fraternity, unity, organization, and association. The socialists brand us with the name individualist.

But we assure the socialists that we repudiate only forced organization, not natural organization. We repudiate the forms of association that are forced upon us, not free association. We repudiate forced fraternity, not true fraternity. We repudiate the artificial unity that does nothing more than deprive persons of individual responsibility. We do not repudiate the natural unity of mankind under Providence.

The language here is clear. And I would advise Mr. Duke to read it carefully because he suffers from his own misunderstanding, a non-realization of the fact that his advocacy of Christianity under the threat of the gun makes him a collectivist. In short, Mr. Duke, you sir, are a Socialist…

4 thoughts on “Contra the New American Thinker, there is no Libertarian Misunderstanding of Law

  1. Keep in mind that Bastiat was also most definitely not an anarchist. How about we consider a few of the views of law and justice put forth by Max Stirner in The Ego and its Own:

    “The same people who oppose Christianity as the basis of the State…do not tire of repeating that morality is ‘the fundamental pillar of social life and of the State.’ As if the dominion of morality were not a complete dominion of the sacred, a ‘hierarchy.'”

    “[I]f justice is the State’s end, homicide is a hallowed means.”

    “For it is not to be forgotten that hitherto concepts, ideas, or principles ruled us, and that among these rulers the concept of right, or of justice, played one of the most important parts.”

    “Since the State is the ‘lordship of law,’ its hierarchy, it follows that the egoist [in certain cases] can satisfy himself only by crime.”

    I don’t agree with everything that Stirner said, but there is nonetheless a large segment of the libertarian movement that believes that the destruction of morality is necessary for the destruction of law (and that this would be a good thing). The idea of “law,” even as a supposed negative concept, can be used by the powerful to enforce their hegemony and maintain their position within a hierarchy while simultaneously presenting the illusion that they simply want “a level playing field” and that their robbery-fueled success is the result rather of nothing more than their superiority to everyone else. (In particular, they’d likely use the illusion of property as a negative right to prevent your geoist ideas from coming to fruition.)

    1. My understanding is that Bastiat thought Molinari to be the logical inheritor of his work, so there is a thin line in dismissing Bastiat simply because he wasn’t an anarchist. In any event, I view libertarianism as type of anarchism heavily influenced by the radical liberal tradition, so in no way do I dismiss liberal thinkers just because they were not avowed anarchists. On the contrary, their ideas are crucial in the historical lineage in concluding that the State is simply not compatible with the liberal ideal. Now not all anarchists are liberals, but I am.

      Now, I don’t view Georgism as “positive law,” although I think many tend to view it as such. Instead i view it as restitution of sorts for Ricardo’s “Law of Rent.” This is George’s insight. Now many libertarians attack Georgism because it supposedly morally violates libertarian justice, but they would do better, in my mind, to demonstrate the non-validity of Ricardo’s principle. In such a case, I would reconsider.

      Now those libertarian anarchists who dismiss, say, the Georgist resolution to Ricardo’s Law will often talk up positive law emerging from voluntary contractual arrangements. Well, that’s all fine and dandy, and I have nothing against such a voluntary foundation of positive law, per se. However, much of my critique against, say, progressivism, is this notion of positive law compensating for institutional flaws, in particular, of monopoly. But, in the same vein, I would extend a similar critique against those libertarians who rely on positive law, although voluntary, to compensate for an institutional framework that potentially rewards the monopolization of of a resource like land.

      And this brings me to Stirner. Although I think a presumption of self-ownership implies what one could call natural rights, it is not self-evident at all that there is a natural tendency for institutional governance to secure these rights. In other words, in a social context, it is not necessarily natural for others to recognize and respect your own natural rights. In this sense, natural rights is meaningless, and following Stirner and Tucker, you could say that rights, in the end, have a contractual basis. But I’m also a Hayekian methodologically, and I reject the Stirner approach, which is the idea that you have to change people before you can change governance. Or as you put it, “destroy morality before law can be destroyed.” This is utter ideological pie-in-the-sky and is contrary to human nature and human institutions.

      In the Hayekian framework, which relies much more on an institutional analysis, human behavior is seen as much as function of institutional incentives. In a dialectical sense, humans build informal and formal institutions, and that is the social context in which they operate. If the incentives are good, or where there at least no incentives to behave badly, humans generally cooperate. Where the institutional incentives are bad, humans will behave badly. For example, politics.

      My Hayekian perspective also reinforces my Georgist views because Georgism is a formal institutional framework that positively reinforces human action in accordance with the liberal values of liberty and equality. Contrastly, if you have a formal framework that can be “gamed,” it will be “gamed.” You can count on that. You are never going to change that part of human nature(absent a repeal of the law of scarcity).

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