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Does The Libertarian Left Legislate Morality? March 13, 2007

Posted by Daniel Downs in Constitution, law, Libertarian, morality, politics, religion, sex, Ten Commandments.
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“The Left are libertarian in that they do not seek to legislate morality.” That was an interesting response to a recent post entitled A Vote For National Morality in 2008. The million dollar question is whether it is true or not; does libertarians-cultural left-legislate morality?

D. Eric Schansberg wrote Common Ground Between the Philosophies of Christianity and Libertarianism.” This excellent article was published on the Acton Institute website in 2002. He made an important distinction between morality and justice. In defining legislating morality and justice he wrote the following:

I will use “legislating morality” to refer to efforts to regulate and restrict consensual but “sinful” acts between two adults in which no significant, direct costs are imposed on others. Although both parties enter the agreement willingly and expect to benefit, Christians believe that, as sin, the activity is, on net, harmful.10 The key point is that the behavior is voluntary for both parties and both expect to benefit in what economists call “mutually beneficial trade.” Examples of this include gambling, homosexual conduct, prostitution, and illegal drugs.11

In contrast, “justice” issues are those in which someone’s rights are directly violated. Examples of this include murder, rape, and theft. In other words, one party uses force of some type directly to harm another party; someone benefits directly at the expense of another. It follows that “legislating justice” is the use of government to try to improve justice and to reduce injustice.

Schansberg refers the above distinction as personal morality and social justice. The former government has no right to interfere, and the latter is government’s proper sphere of authority.

In what follows, it will be shown no clear distinction actually exists under American principles of government. American founders, early American justices, and legal texts they used or wrote regarded the Ten Commandments as the foundation of all societal law. Taking this foundation as a premise, let us consider each commandment to determine whether a distinction exists between morality and justice.

The first commandment is “I am the Lord your God….”Our nation was established as an independent nation based on God who created nature and its laws. It was written in the Declaration of Independence. The Declaration and Constitutions conformed to international law, which was called Law of Nations. It is found specifically mentioned in the Constitution. The Law of Nations was an application of Natural Law, which was regarded by Americans moral law, higher law, and divine law—all synonyms. As Thomas Jefferson said, all of American rights are the gifts of God. In the Declaration of Independence, Jefferson also wrote that all inherent rights were derived from God. Consequently, three moral agents entered into legal agreement at the establishment of American society. Those moral agents are God, founding generation and their prodigy (us), and rest of world society.

Second commandment is “you shall have no other gods besides me.” (My paraphrase) American law has no other has a specific religious, moral, legal relationship between this God. It is part of our federal and state legal documents. Breaching this covenantal type of relationship is a legal and moral breach. Religion calls it sin but it is also a contractual crime.

The third commandment, “you shall keep the Sabbath,” will not be commented on except to say it was written in the Constitution to regulate the President’s behavior. Here is a religious law applied to the highest office of state. It was included to regulate otherwise beneficial behavior for the good of the state and people. It was meant to keep Presidents from neglecting the need for rest. No direct injustice can be found in this law.

“You shall not murder” is the fourth commandment. It is regarded by many as a universal law. According to one legal dictionary, murder is defined as “intentional homicide (the taking of another person’s life), without legal justification or provocation.” If Schansberg’s position is taken, then murder must be regarded as both a personal moral and a part of social justice. As you can see, libertarians do in fact legislate morality. Otherwise, they would be true anarchists. A society under anarchy could not long exist.

As John Locke summarized American legal ideology, society exists for the mutual protection and defense of each individual’s person and property. When a government ceases to fulfill that part of legal agreement, society in effect ceases to exist. By such failure, members of society are forced into a state of nature, and must protect themselves.

Murder robs more than one’s future good on earth, but it also robs family, friends, co-workers or associates, society, and God of much benefit. Murder is more than a violation of our inherent right to life; it is an act of robbery against all of society. This also extends to the next commandment, “you shall not steal.” One’s own life is the most fundamental property of all. The biblical injunction you are not your own is equally true.

The remaining commandments could be demonstrated to be both serve both person morality and social justice. The primary reason why both apply to these commands is because no real distinction exists. Moral behavior is not private but social. The gay rights movement is an example of private behavior and social injustice. The politics of sex in its entirety is no different. No real private morality (or immorality) exists apart from its social manifestation.

Schansberg claims mutually consensual behavior like gambling, homosexual conduct, and prostitution are beyond government authority. He justifies this position by the claim that the mutual agreement causes no harm. If, however, the gambler loses his money his children and spouse are directly harmed. The problems caused also have their adverse effect on society as well. Sodomy is an unnatural act. It is an act in defiance of nature and it’s Creator. It does harm society when government attempts to normalize and socialize aberrant sexual behavior of any kind. It is an affront to all others in society. Sodomy is especially harmful when the same influences young formative minds. Prostitution maybe a social service, but it is not private. It too harms others in similar ways. If one or both parties is also married, the act cause great harm to family relationships. Because of this, society is also adversely affected. Each diminishes the trust, threatens normal relationships, sometimes security, work performance, and other social relations.

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