The Civil Magistrate and the ‘Reformed Libertarian’ Attempt to Establish a Libertarian Framework

The Confessional Standard on ‘The Civil Magistrate’ Compared with the Rothbardian Vision

I will use the 1689 Baptist Confession of Faith (as opposed to the Westminster Confession) for four reasons.  First, I am a Reformed Baptist and thus adhere to this confession.  Two, it is, I think, far more liberty oriented than the Westminster Confession on this issue.  Three, the main points in each confession in this section are similar and thus, in drawing out the implications of the 1689 Confession, there is nothing that can possibly be used as a contradiction against the Westminster.  That is to say, I believe that any Presbyterian can profit from this analysis even though they hold to the Westminster Confession.  Finally, I am using the Confession because it is a summary of relevant verses like Romans 13 and 1 Peter 2.  To address the arguments of the Confession is to address the arguments of the relevant passages.  Therefore, even the non-confessional can profit from this analysis.

Also, I am using Rothbard to make this comparison so that, once we are done, the Christian Libertarian can be sure he has good commonality with the secular libertarians on the specific issue of the State.  In other words, our conclusion will show that we appreciate and agree with much of what Rothbard put forth.

Murray N. Rothbard, one of the most profound and productive scholars in recent times, was the father of the modern libertarian movement.  He was an enthusiastic proponent of the Non-Aggression Principle and is in my opinion the greatest libertarian thinker.  He was an anarcho-capitalist which meant that he believed so radically in NAP that he came to the realization that to allow for the presence of a State is to compromise the very principle on which libertarianism rested.  People have long understood the theory that individuals have a right to their property and capital, as well as their life and person.  But Rothbard’s conclusion was that, if such rights exist, then the State must be opposed at every level.  It was the Lockean inconsistency that his rights-theory was used as a basis for a limited government.  The State’s very essence is the antithesis of such rights.  Thus it would immediately appear that Rothbard stands in start contrast to the twenty-forth chapter of the Confession, entitled: “Of the Civil Magistrate.”

But my interjection is this: “Not so fast!”  Let’s look at the confession and then break it down.  The first paragraph (out of three) reads as follows:

“God, the supreme Lord and King of all the world, hath ordained civil magistrates to be under him, over the people, for his own glory and the public good; and to this end hath armed them with the power of the sword, for defence [sic] and encouragement of them that do good, and for the punishment of evil doers.

 “God, the supreme Lord and King of all the world, hath ordained civil magistrates to be under him…”

First, as Christians we believe that God has ordained every little thing.  So there is really nothing new here.  He ordained the street thug, Hitler, Nero, and Obama.  He ordains troubles and blessings.  Good times and bad times.

Second, these civil magistrates are under God, which indicates immediately that they are not a law unto themselves.  Being under God, as all humans are, they ought to submit to the standards and laws that God has declared.  That is to say, we know that the civil magistrate sits under the law, because the law is God’s commands and nobody sits above God’s commands.

“…over the people, for his own glory and the public good.”

Because of its nature (which is coercive) and purpose (which is justice), the office of the civil magistrate acts to carry out laws that are intended to give order to the people who sit under these laws.  The people must be subjected to the individual playing the role of “law-enforcer” to the very extent that he acts consistent with the law.  The civil magistrate is only “over the people” when exercising his specific duties and to be “over the people” outside of that is an abuse of authority.  Let’s look at two things: One, what would Rothbard say?  Two, does the Bible command that this “law-enforcer” be filled by the State?

Murrary Rothbard held that there should be no State.  But he did not believe that there should be no law.  In fact, it was precisely because he believed that his natural law should apply to every single individual that he dismissed the morality of the State.  Interestingly, the Christian too should believe that God’s laws (don’t steal, murder, etc) are applicable to every single individual as well.  So what happens then, in a free society, if there is a criminal who takes the bread of his neighbor?  For Rothbard, the victim was allowed to hire a firm (or perhaps had a firm on call for which he paid a monthly premium) to seek justice against the thief.  When justice is sought and applied, this mean ipso facto that coercion must be applied against the criminal.  But the victim is justified, says Rothbard, because the criminal was the initiator.  Here is Rothbard:

And because such coercion is the general rule in strikes, these criminal penalties would, in a libertarian society, be widespread rather than nonexistent as they are now. 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.

So therefore, we have a law (no one is allowed to steal) and it applies to every single person in the community and further, we have a law enforcer that seeks justice.  He has the right to use coercion against any criminals that rise up and thus is “over the people.”  Which people?  All people.  That is, any person who disobeys the law (no one is allowed to steal).  Justice is done.  Toward what end?  The glory of God and the good of the public (another criminal taken down!).  It is important to note that the law enforcement does not rule over the people.  God does.  God is King.  To reiterate, we hold that “over the people” refers to his capacity to punish the criminal.  Even a Rothbardian anarchical situation would provide for such a scenario.  At least that is the claim.

So then, must this civil magistrate, this law enforcer, be funded by taxes?  It is true that various places encourage the Christian to pay taxes, but that is not the question.  The question is whether or not the individuals who make up the State, who, as a reminder, must also not steal according to the law, ought to levy taxes to fund their duties at all.  Very few people make a distinction between these two questions.  Clearly it is important.  Because the answer will determine whether or not the law enforcer, the civil magistrate, is allowed to be a free market firm.  God will not count it against the Christian if he happened to live in a community without a tax-collecting State.

“…and to this end hath armed them with the power of the sword, for defence and encouragement of them that do good, and for the punishment of evil doers.”

The power of the sword means the ability to impose the death penalty.  Against whom?  Criminals.  All criminals, including the “petty thief?”  I don’t think so at all.  This was not even the punishment under the Old Covenant law.  Specifically, against criminals who have first killed.  Against murderers.  What does Rothbard think of such an allegedly primitive form of punishment?  Let’s see.

Here, in my view, the murderer loses precisely the right of which he has deprived another human being: the right to have one’s life preserved from the violence of another person. The murderer therefore deserves to be killed in return. Or, to put it more precisely, the victim — in this case his surrogate, in the form of his heir or the executor of his estate should have the right to kill the murderer in return. Libertarians can no longer afford to wait to come to grips with capital punishment.

Rothbard’s article (linked above) in its entirety is worth the read.

Beyond the specific use of the power of the sword referring to the death penalty, more generally it means that the civil magistrate has the means necessary to protect the good citizen and punish the criminal.  As established previously, in this Rothbard would have no objection.  One of the important principles of justice, especially in light of the fact that we currently live under the largest and most powerful government in the world, is that even if the State does a million things that are beyond its God given role, when it does one correct thing, that specific thing ought to be supported.  If the United States Federal Government, despite its own responsibility for the deaths of thousands of people and the rise of anti-American terrorists, rightly convicted a murderer to his sentence, we should not oppose their action here.  Even Rothbard noted:

The state now monopolizes the provision of defense, judicial, and punishment service. So long as it continues to do so, it should act as nothing more and nothing less than an agent for guarding and enforcing the rights of each person — in this case, of the victim.

I say this to convince the reader that whenever and wherever the State, despite its own monumental grievances, acts according to God’s exact command of the civil magistrate, it acts justly.  This should be interpreted to mean that if there is a tax funded government society at all, and it seems that this is God’s way of working, then we should encourage that government to do exactly what it was meant to do.  Perhaps we oppose taxation.  But in the meantime, let it fulfill its purpose.  The criminal must be punished.

The second paragraph of the Confession tells the Christian that it is acceptable for him to participate in the duties of the civil magistrate.  Thus it is not relevant to our current discussion.

A phrase from the third paragraph makes for a nice transition to the next section of the current article.  It reads: “…we ought to be subject to all their lawful commands….”  The questions then is obvious.  What are the lawful commands?  Indeed, during this entire article we have often referred to the fact that there is a law that needs to be upheld.  We have also noted, contra Rothbard, that this law is not based on the whims of man but on the standards of God.  We are back where we started, with Sproul’s insight now at the front of our attention: “The question then rightly understood isn’t whether we ought to have law as God would have us have it. The question instead is what law would God wish us to have.”

What law is to be enforced by the “law enforcer?”  The Reconstructionists have given their answer.  Let us give ours.