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…