Psst, Selwyn Duke, Libertarianism is not Dependent on Legislating Morality

Self-proclaimed former “libertarian” Selwyn Duke is at again with this new article, Yes, Folks, We All Would Legislate Morality (Psst, Even You Libertarians). Apparently, this article was response to the criticism(including my own) his previous articles, here and here, elicited in the blogosphere. In my piece, I did call him a socialist, which he found humorous. However, I would encourage Mr. Duke to read Bastiat’s “The Law,” which is where I drawing my criticism from. It’s a short tract. Anyone who claims or has claimed the mettle of “libertarian” should be familiar with it.

Let’s at Duke’s latest effort to discredit the libertarian position. Here’s the lead intro of his argument:

… a law states that there is something you must or must not do, ostensibly because the action is a moral imperative, is morally wrong, or is a corollary thereof [emphasis added]. If this is not the case, with what credibility do you legislate in the given area? After all, why prohibit something if it doesn’t prevent some wrong? Why force citizens to do something if it doesn’t effect some good?

He then argues that laws protecting life and property rights follow the exact same moral principle:

But unless one objects to governmental use of force to apprehend a murderer or citizens’ exercise of self-defense, moral distinctions must be made. Moreover, we couldn’t credibly prohibit force, protect property rights, or prevent harm in the first place unless unjustly using the first, violating the second, or causing the third wasn’t “wrong.” Ergo, morality.

He then claims because some libertarians emphasized the negative justice aspect of law(as I did) and yet others spoke of the non-aggression principle as being a moral principle that libertarianism is guilty of moral relativism:

Yet while I realize many different conceptions of libertarianism exist, absent an authoritative “Church of Libertarianism” to establish official dogma, I have no choice but to draw my conclusions from libertarians’ consensus pronouncements. After all, there are textbook/dictionary definitions of liberalism that sound pretty good, too, yet they describe no liberals I’ve ever met. I live in the real world; if you seek a denizen of textbook dream-world, I suggest you visit your local college campus.

And if you look at these pronouncements, something becomes clear: The problem here isn’t just one of libertarians, but of moderns themselves. It is a deep problem that concerns not just the nature of man’s law. It concerns the nature of morality itself.

Duke then proceeds to argue for the necessity of “Absolute Truth.”

[There are only two possibilities:] [e]ither man does or something outside man does. The idea that man determines right and wrong is known as “moral relativism”; this means that morals are relative to the time, place and people. The idea that right and wrong are determined by something outside of man is known as “Absolute Truth.”

And, of course, the latter implies God. After all, if we’re saying that “Truth” is something existing apart from man, that it is inerrant, and that we must abide by it — which means it’s above man — what are we actually describing? But, now, what are the implications of relativism? I continued:

… [Moral relativism] states that morality is determined by man; what is rarely recognized, though, is that if this is so then there is no right and wrong, objectively speaking. Think about it: If 90 percent of humanity said it preferred chocolate ice cream over vanilla, it wouldn’t mean that chocolate was “right” and vanilla “wrong.” Nor would it mean that chocolate was better in any objective sense — it would simply mean that people happened to like chocolate better. It’s illogical to say otherwise. But would it be any more logical to say that murder was wrong for no other reason than the fact that 90 percent of all people preferred that others not kill in a way that we call unjust? Of course not. But if the idea that murder is wrong is simply a function of man’s collective preference, it then falls into the exact same realm as the collective preference for a type of ice cream: the realm of taste.

Duke finishes with an appeal to the “Founders,” who he claims were largely “men of faith” and heroes to many of today’s libertarians, to boot. Throwing up a quote by Madison, “Religion is the basis and Foundation of government,” Duke concludes that he will stick with the “Founders” and reject the moral relativism of libertarianism.

Now, allow me to dispose of Duke’s argument from a libertarian perspective. Once again, let us appeal to Bastiat:

(1) Law is Force
(2) The only legitimate application of this force is the correction of injustice

That is the crux of his argument. Most of “The Law” is actually dedicated to the various Socialist objections or arguments of exception to this simple principle. For example this passage:

Socialists Fear All Liberties
Well, what liberty should the legislators permit people to have? Liberty of conscience? (But if this were permitted, we would see the people taking this opportunity to become atheists.)

Then liberty of education? (But parents would pay professors to teach their children immorality and falsehoods; besides, according to Mr. Thiers, if education were left to national liberty, it would cease to be national, and we would be teaching our children the ideas of the Turks or Hindus; whereas, thanks to this legal despotism over education, our children now have the good fortune to be taught the noble ideas of the Romans.)

Then liberty of labor? (But that would mean competition which, in turn, leaves production unconsumed, ruins businessmen, and exterminates the people.)

Perhaps liberty of trade? (But everyone knows — and the advocates of protective tariffs have proved over and over again — that freedom of trade ruins every person who engages in it, and that it is necessary to suppress freedom of trade in order to prosper.)

Possibly then, liberty of association? (But, according to socialist doctrine, true liberty and voluntary association are in contradiction to each other, and the purpose of the socialists is to suppress liberty of association precisely in order to force people to associate together in true liberty.)

Clearly then, the conscience of the social democrats cannot permit persons to have any liberty because they believe that the nature of mankind tends always toward every kind of degradation and disaster. Thus, of course, the legislators must make plans for the people in order to save them from themselves.

This line of reasoning brings us to a challenging question: If people are as incapable, as immoral, and as ignorant as the politicians indicate, then why is the right of these same people to vote defended with such passionate insistence?

Bastiat was addressing the “Socialists” of his day but this passage certainly applies today to Mr. Duke. Duke, in his earlier criticisms(“live and let live”), was just repeating old arguments.

Now, let me address the “morality” of Libertarian Justice. The foundation of Libertarian Justice is actually Self-ownership. NAP is a derivative from this. Now Self-ownership can certainly be thought of as a moral principle but it can’t be legislated. That is, understanding law to be force whose only legitimately function is to correct injustice, there can be no legitimate application of force to correct an injustice of an individual against himself/herself. Now, an atheist libertarian may have a moral judgement about those religious types who declare themselves, say, “slaves to Christ.” Christian libertarians, say, may have moral judgments about those who are “slaves to drugs or alcohol.” But to legislate self-ownership, that is, to preserve it by force, by, say, outlawing religion or alcohol, based on moral judgments about what is necessary to preserve an individual actually owning oneself, is a violation of self-ownership and derivative principles such as NAP. In the case of libertarian justice, the the issues of correcting unjust violations of life and property do not flow from any legislating of moral judgments.

Frankly, this whole business about “morality and law” can be substantially clarified if we use the term “moral judgments” instead of “morality” and think of law of in the negative sense, that is, as a correction of injustice, and not in the positive sense, that is, as a promoter of justice. Things then become much more clearer. Certainly, without doubt, libertarians have relativistic moral judgments about a wide number of things. However, in casting the purpose of law as a correction of injustice, libertarianism suffers no “relativistic problems” in terms of social/political theory primarily concerned with the absence of plunder.

Conversely, the likes of Duke, with their insistence on legislating moral judgments in the context of positive law, spin moral rationales for plunder. His case for “God as the moral source for absolute truth” isn’t compelling. Without debating the conceptual problems with that statement, there is a bit of an inconvenient empirical problem of there being no rational proof of any such god and that there is no consensus, from those compelled by faith or speculation, on the nature of such god, nor of the moral imperative supposedly implied by the faith-based existence of such a god. We are not talking about absolute morality here; rather, we are talking about moral judgments. Notice how Duke substitutes “murder” for “kill” when referencing the 1st 6th commandment of the ten commandments in the old testament. Is that a new translation? A bit of a convenient translation for those interested in rationalizing US perpetual war. He then mentions the “The Principle of Double Effect” justification for killing. I would say Christianity suffers from a bit of moral relativism when it comes to killing; i.e., war. Are we going to go with the Augustine rationale or the Aquinas one? And those are just two of the competing rationales among countless others. Are we talking about morality based on absolute truth or simply moral judgments based on texts written by men and interpreted by men?

Lastly, I think Duke’s appeal to the “Founders” is a bit of a mixed bag in trying to conjure a Coup de grâce to libertarianism. Sure, there is a Madison quote,”Religion is the basis and Foundation of government.” But rather than dredge up a plethora of counter quotes that paint a much less sympathetic picture regarding religion, I will just mention the inconvenient historical fact that Madison’s writings and legislative work on religious liberty served as the intellectual basis for the 1st Amendment. He obviously had a problem with “The Religious pretext of moral judgments being the foundation of government.” Frankly, other than Thomas Paine and Thomas Jefferson in Paris, there is nothing particularly libertarian about the “founding fathers.” Libertarianism is much more radical than the political philosophy held by most of them. The constitution, itself, is not a libertarian document. The only thing remotely libertarian was the bill of rights. The 1st Amendment is a radical amendment. It violates the very fibre of Duke and his Socialist comrades’ positive law gobbledygook. In the cultural haze that celebrates the constitutional exceptionalism of “American Liberty,” it is the 1st Amendment that is actually being celebrated. Nothing else…

3 thoughts on “Psst, Selwyn Duke, Libertarianism is not Dependent on Legislating Morality

  1. The statement “The only legitimate application of this force is the correction of injustice” is most definitely a moral one. (Or, it would be without the word ‘legitimate.’ With that word, it’s just a bit odd since the successful use of force is how we determine whether a government is ‘legitimate.’) The NAP or equivalent formation is likewise a moral statement, when made in the context of limited-government libertarianism. It is only possible to obtain a completely morally-relative version on libertarianism in anarchism, in which the NAP could be positively held but not considered morally obligatory as a value imposed on society.

    Sartre came the closest to providing an amoral basis for libertarianism (although he wasn’t a political libertarian and so didn’t realize this): there is no god, hence humans are free, hence to live in good faith (in the existentialist usage of that term) we must acknowledge that we are free, hence we must acknowledge that we choose to be free, hence we must acknowledge that choosing to free is a choice that is worthy of being made by all others, hence we must respect the freedom of all sentient beings if we are to live a virtuous life (in the existential usage of that term).

    Notice how Duke substitutes “murder” for “kill” when referencing the 1st commandment of the ten commandments

    If so, something is seriously wrong, since the 1st commandment is about divine exclusivity. Regarding the 5th/6th (depending on how you count) commandment, “murder” instead of “kill” has been standard in Protestant translations starting with NIV in 1978 and present in some Jewish translations from at least six decades earlier. Looking at the Hebrew text, the translation “kill” is almost certainly wrong, although the interpretation “murder” has some issues of its own too.

  2. @ Miko

    I agree with you. I think Libertarianism is indeed justified on moral grounds, and it is on those grounds that one must ultimately argue. My favorite line in this article is “Things then become much more clearer.” Not to me. Doesn’t “correcting injustice” necessarily “promote justice?” How can the two be different concepts? Similarly, can’t all “negative” rights be phrased positively?

    “Others may not kill you” vs. “others must act in a non-lethal way”
    “others may not take your property” vs. “others must command only their own property”


    No, I think you must ultimately say that law is the expression of communal values, and good law is the expression of good communal values. What are good communal values? Why, libertarian values, of course.

  3. Thanks for the comments…

    @ Miko

    Yes, i had a brain fart in listing that commandment as 1st rather than 6th. i’ve corrected it.

    My position is that libertarianism as a social/political theory is primarily concerned with injustice and not morality. There is a distinction between morality and justice. Following Bastiat, I would define justice not as thing in itself. Injustice is what exists. Justice is only achieved when injustice is absent. For morality, however, it would be absurd to define it as the absence of immorality. Therein lies the distinction.

    This distinction is important when analyzing “the moral basis for law.” All to often it seems this “moral basis,” which is meant the wide scope of moral judgements supposedly serving as the foundation of law, has to be enforced, which, means, that this so-called moral basis is not actually a basis for anything. Legislating morality is using force to condition the moral judgements of humans as a necessary means for the legitimacy/acceptance of the use of force by the State(or governing body) regarding property,labor,capital, contracts etc. This is the same ideology of the Collectivist, the State Socialist, and the Totalitarian.

    Duke’s rebuttal was that libertarianism is legislating morality as well. And as i wrote, no it is not. You can’t legislate the moral judgments of self-ownership.

    Now commentary in a previous post addressed “the destruction of morality is necessary for the destruction of law.” I wrote that i disagreed with that. To the extent that my position of libertarian justice can construed as “amoral,” I still, nonetheless, am not adovcating the evisceration of moral judgments as a necessary precusor to law, nor the destruction of law itself. My conception of libertarianism,as a social theory, has to account for moral judgements. And I’m not a utopian, in that I think that something like all crime,injustice is a function of the false consciousness of the State. In a reality of scarcity, there will be crime and injustice, and thus a need for law; it’s proper function is to correct the injustice.

    @Robb Ross

    The distinction between negative rights and positive rights is that positive rights have duties attached to them. You are merely playing word games.

    You say: “I think you must ultimately say that law is the expression of communal values.”

    I say: “is everyone having the same moral judgments a necessary or sufficient condition for the absence of injustice? Nope, otherwise there would be no need for law. When I read things like positive rights and law as an expression of community values in the same thought, I think pretty soon the community is going to be using the law to make sure everyone keeps having those same “communal values.”

    Lastly, my statement “Things then become much more clearer” was in regard to the charge of moral relativism; specifically the fact that relative moral judgments on such things as manners, drinking, smoking, sex, marriage, church attendance should have no bearing on the role of law to correct plunder. The “bad” form of moral realtivism is the use of morality to justify and exonerate plunder.

    When plunder has become a way of life for a group of men living together in society, they create for themselves in the course of time a legal system that authorizes it and a moral code that glorifies it.

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