January 22, 2014

Reformed Libertarian Theory and the Basis of Civil Law

By In Philosophy

Let’s do another round of Reformed Libertarian theory.  It’s been a while.  But first, let’s recap.

We deny that Natural Law, as defined by the Thomists and employed by Murray Rothbard, is justifiable and we thus choose not to use it as the basis for our property rights order.  The idea that one can discover, in nature, ethical standards and propositions relating to universal laws is unconvincing.  One could certainly observe that all individuals are controlled by themselves, and no other, but to infer from this that it is wrong for someone to coerce another is to attempt to derive an ought from and is.  And we follow David Hume to point out the logical impossibility of this.  Thus, natural law does not suffice to either give us an ethic or a standard for civil law.

Equally, we deny the consequentialist defense of a libertarian political theory.  Just because something “works” for a certain end does not mean that it is justifiable morally.  We hold that libertarianism is about justice and rights, not utilitarianism.  We do not embrace something on the basis that it accomplishes a given end because the ends to not justify the means.  It is good that the starving man eat.  But this does no justify or make it permissible that he ate because he first stole his bread.  The utilitarian basis for a free society places outcome before justice.  Now, it is true that we believe a free society will produce the most prosperous society in which wealth is most completely spread to all members of society.  But this fact does in itself not provide the foundation for our libertarian theory.  In this regard, we do agree with Murray Rothbard, who held that libertarianism was the goal because it was the most ethical.

Now, if we are going to base our defense on justice and rights, but not hold to Natural Law, we must hold that justice and rights come from the Bible.  The propositions and principles given to us by God are what establishes the basis for a free society.  The theme in my post on the Civil Magistrate and the Reformed Libertarian Framework was that we ought to ask ourselves what law is consistent with Biblical principles.  A free society must be based on God’s precepts, not ours.  I wrote:

If we can establish “limited government,” let us do it because of our Biblical conviction.  And if we can conclude a more precise and consistent libertarianism that is of a similar flavor to, say, Murray Rothbard, let us draw these conclusions because of our faith.  We certainly shouldn’t look outside of our own worldview to find a premise that we can manipulate for the sake of our preferred conclusion.

Some who wish to use the Bible as the foundation for a civil society will conclude that the judicial or civil laws of Israel must be applied today.  These are the Christian Reconstructionists.  There are several reasons why we reject the conclusions of the Christian Reconstructionists, but two are most important.  First, we don’t think that the way God enforces ethical standards is by way of the State in the same sense at was done in ancient Israel.  We agree with the Westminster Confession when it states: “To [the people of Israel] also, as a body politic, [God] gave sundry judicial laws, which expired together with the state of that people, not obliging any other, now, further than the general equity thereof may require.”  Second, we believe that Christ Jesus is the King over the Kingdom of Heaven and will deal with the breach of his moral law at the time of his judgement.  Israel 9:6 reads: “For to us a child is born, to us a son is given; and the government shall be upon his shoulder.”  Christ took upon himself the duty of the State of Israel in enforcing the law of God and punishing the law-breakers (sinners).

When we consider that all individuals have rights to their life and property (this is implicit in the Ten Commandments) because God has imputed those rights, we must recognize that nearly everything that the State does is in contradiction to its own professed goals.  It states its goal to protect property, but instead it plunders it; it states its goal to punish criminals, but instead it harbors and protects them; it states its goal to carry out justice, but instead it institutionalizes injustice, by its nature and daily activity.  But, since individuals have rights, this also implies that there must be some sort of rights enforcement.  Many have argued, and I do support, the idea of free-market government services.  Such firms would not have a monopoly of their services, lest they no longer stay a government and suddenly become a State (the State is the monopolization of government services).  Now, the question is, what legal code should be enforced by these firms?  What law would serve as the basis for private prosecutors, judges, and courts?

There is usually an objection here that this is so very extreme!  But to show that it is not extreme and that we as libertarians are not alone in this desire, I want to quote from a Christian Reconstructionist who has similar goals.  Yes, even the theonomists advocate for private courts.  Joel McDurmon, in his book Restoring America One County at a Time, writes the following:

The second significant passage in regards to courts shows us a better way –private courts.  …[T]he private court system we shall see is directly revealed as the Christian idea by the apostle Paul [McDurmon quotes 1 Corinthians 6].  Thus, this should be accepted and embraced by Christians as the most biblical method for resolving judicial disputes.

[…]

For cases that do arise, private courts are usually the best alternative.  This means church courts, arbitration panels, mediation boards, and industry and professional courts.  A society neglecting these outlets and the attitude of self-government will easily be paralyzed by endless litigation, massive bureaucracies, and countless administrative laws.  Toward this aim, all contracts between Christians should include some form of private dispute settlement clause –Christian arbitration being a common one.  Christians should seek to resolve all possible contract disputes privately, between Christian brethren, and eliminate state courts in all but the most extreme cases.

Now, just to clarify, in context, McDurmon’s book is about how to “Restore America.”  Thus, he is giving practical advice and this is why he is so specific about “Christian brethren” and “but the most extreme cases.”  Ideally, McDurmon, in my estimation at least, would like all problems handled privately in every case.

Regardless, I think that McDurmon is very correct here.  But the question is, what law should these private courts uphold?  This is where McDurmon and I go our separate ways.  He would say the Judicial laws as written in the Pentateuch.  My answer is restricted only to breaches of person and property.  So here the question becomes: if the Ten Commandments provide the moral law, the ethical standard of God, why should our private government not seek to enforce the Ten Commandments?  It is easier to convince the reader, citing Christian history, that the entire judicial law should not be enforced, but what about the Ten Commandments?  Why is adultery not a civil crime?

Our answer is actually the same as our case against Israel’s judicial laws as mentioned above.  Christ, as Governor of His Kingdom, is in charge of the persecution and punishment of the law breaker and He will exercise His wrath in due time.  Thus, every one of the Ten Commandments is a law that is applicable to all individuals at all time and the King over those laws has the sole right to judge by them. But there is no command that an earthly government take them as their own and also judge by them.  To do so would be akin to the State taking over the role of Christ in the realm of justice.  And this is the very argument that we make against the State.  The entire structure of State-as-ethics-enforcement is no longer present in this post-Israel age.

Thus, when we say things like “Mr. Jones has the right to do X,” we mean it in two senses.  The first sense refers to one’s ethical rights, that is, the right to do something and not be punished by God.  The second sense refers to one’s legal right, or one’s right to do something without being physically coerced by another human.  No person has the ethical right to sin.  Adultery is a sin.  One who commits adultery, even if there is no consequence in the present life, will receive the judgement of God (unless that sinner is a member of God’s elect –in which case Christ suffered God’s wrath in the sinner’s place).  However, since no person has the right to physically coerce against the adulterer, we say that one has the “legal right” to commit adultery; that is, there are no civil punishments by a government.  Practices such as Church discipline are approved and no Church has the authority to physically coerce against its members.

Besides adultery, there are all sorts of actions that are ethically wrong (deserving of God’s judgement) but not civilly illegal.  Among them are: homosexuality, lying, dishonor towards one’s parents, and cursing the name of God.  In fact, as Paul says, “whatever is not from faith is sin.”  But not all these things are civilly illegal.  What is the basis for civil illegality?

The basis for civil illegality, since its enforcement requires aggressive and physical coercion, is any aggressive and physical coercion.  The murderer shall be prosecuted, as should the thief, the mugger, the kidnapper, and the contract breaker (the contract breaker’s most common fault is that fact that he has committed thievery in some way).  Any deed which is coercive requires coercion in order to achieve justice.  Clearly, the State, which relies on theft, murder, break of contract, and kidnapping, cannot exist.  But society does require a prosecutor: one who justly aggresses against the aggressing criminal because a criminal is one who has lost his legal rights to the very extent that he breached the rights of others (it is for this reason that we, with Rothbard, affirm the legality of the death penalty in certain circumstances).  This role might be played by a number of different firms, any number of which could reasonably be called “government.”

Because God is offended when one breaks His laws, He has every right to prosecute the law breakers.  Similarly, the recipient of aggression has the right to demand that justice be done against his perpetrator.  It is not “society” which seeks justice, nor is it “the State.”  Rather, it is the harmed individual.  Society cannot be coerced.  Only an individual can.  This is the basis for justice and a property-rights order.  It should be clear by now that the desire for government to participate in “protection of property” should actually be more focused than that.  For any private security firm can protect property.  Rather, the role of government (or “prosecution firm”) is actually one of “punishment” for breaching individual rights.  In other words, whoever is playing the role of government takes charge after the crime.  As Rothbard wrote:

For it should never be forgotten that a libertarian society does not mean the total absence of coercion but only the absence of coercion against noncriminals. Those who invade the rights of others by violence deserve their proper check and punishment by the force of law.

To the extent that the government fulfills the role of a “prosecution firm,” to that extent its activities are just.  Beyond that, it is as criminal as the criminals it seeks to eradicate, and should be referred to as a State.  In other words, laws must and do exist, but the State isn’t required for their enforcement.  As for this anarcho-capitalist, I see the State as an immoral nuisance which I do not think will ever disappear until the Second Coming of Christ, but nonetheless I wish to point out the uncountable ways in which it acts unjustly.  Although I do not think total freedom via the elimination of the State will occur in this life, there is no reason not to write toward this end.

The eternal government rests on Christ and the temporary States and Empires are a type of antichrist.

 

Written by C.Jay Engel

Editor and creator of The Reformed Libertarian. Living in Northern California with his wife, he writes on everything from politics to theology and from culture to economic theory. You can send an email to reformedlibertarian@gmail.com