Battle of the Laws


Kristopher Morgan, August 14th

One of the hardest aspects of being a libertarian is being portrayed as someone who does not want any of the goods and services provided by the state.  For example,  when libertarians express the notion that government should not be involved in something like education, our opponents sometimes assume we don’t want an educated population.  Sometimes they’re just creating a strawman, but just as often they are sincere in their belief.  Why do people automatically assume if you don’t want the government to provide a service, it means you don’t want the service to exist at all?  It occurred  to me that the misunderstanding is due to competing philosophies of law.  The libertarian conclusion that natural law is just and moral, while positivism is not, is what separates us from the rest of society, and the consequences of that finding run much deeper than we realize.


Positivism dominates society in terms of what constitutes a legit approach to law.  According to the Stanford Encyclopedia of Philosophy, “Legal positivism is the thesis that the existence and content of law depends on social facts and not on its merits…  positivism is the view that law is a social construction.” In essence, in positivism law is seen as artificial, and as such, the approach isn’t limited by concerns for natural rights.  It’s no wonder there are so many laws in the US the average citizen commits three felonies every day.  Society wants legislation passed and rulers push to make it happen.  A good example is the Affordable Care Act (ACA), the bill gets voted on, approved, and signed into law by our politicians.  There is clearly demand for more affordable healthcare, so the political system proposed legislation to solve the problem, and it eventually became law.  Furthermore, the biggest supporters of the ACA paint anyone wanting it repealed as monsters who want to see tens of millions of people dying in the street.  But what if that’s not really the case?  What if the so-called monsters don’t see government as the only acting body within society?  What if we also happen to have an entirely different philosophy of law; one that is incompatible with positivism?

Natural Law

Allaboutphilosophy describes natural law as law that “finds its power in discovering certain universal standards in morality and ethics.” Basically, people who subscribe to natural law believe that concepts of right and wrong are what matter.  In natural law, rules are discovered, not legislated.  Law is not seen an artificial construct, rather we develop our understanding of right and wrong and the human condition is what determines what law ought to be.  Governments are artificial.  They don’t sprout up on their own, people have to form them.  Since they’re made of people, they are held to the same moral standards as everyone else in society.  So when a libertarian says they oppose a bill, such as the ACA, they do so because they perceive violations of natural law.  Private citizens could never get away with using an armed force to regulate local insurance companies and hospitals the way the government does.  Most of us would look at citizens behaving in such a manner and label them criminals.  Natural law does not make a distinction between governing body and private people.  Standards of behavior are universal, not dependent on artificial classes (in this case of rulers and subjects).

Which Is More Just?

Despite what goes on in politics, in private life most people are already followers of natural law.  We don’t hurt each other, we don’t steal from each other, etc. because deep down we identify those actions as flat out wrong.  In fact, if a policeman were caught observing a theft and not confronting the suspect, people would be outraged.  Nobody sits around reading gigantic books on law; but we do assume that we will not be harassed too much if we don’t harm anyone and drive safely.  Because of positivism, we have a superstructure in society that possesses the power to take money from other people through force, to ensure compliance with society’s artificial laws.  So why do we bother making theft a crime?  Why do we get so concerned if a thief knocks over a 7/11 and makes off with a few measly hundred dollars, when all children born in 2016 ‘owe’ the government $42,000?  While it may be true that security services are paid for through taxation, using taxation as a means removes the universality feature of justice.  Having one law that says you get to take through force, yet another that says nobody else can, is clearly meant to create privileges for those in power.

Positivism empowers political forces at the expense of everyone.  Artificial laws always come from politicians, regardless of what form of government.  But in natural law, we are all free to hold each other accountable to universal standards of behavior rooted in the human condition.  We all have the right to defend ourselves and what is rightfully ours.  For physical survival, the one thing everyone has to have to satisfy their needs for food, water, and shelter is property.  Property is nothing more than having control over resources.  It follows logically that interference with the property of another undermines their attempts to satisfy their needs, and so our guide for determining if natural law is violated is whether property is violated.

Society has to choose between these two philosophies.  Either legal positivism is just, in which case law has no real meaning and justice is really just about power and pandering to it; Or natural law is correct, in which case we have to start looking at government as an agency that has no right to initiate force to make its ends meet.  Justice is based on universal standards that flow consistently from the human condition which nobody has the right to take away.  The choice is ours.


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