Libertarian versus Conservative Theories of Law
Conservatives do not make a fetish of property rights
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Instead of blanket rules, we seek to comprehend the divine intent, groping towards it through history, myth, fable, custom, and tradition.
It’s my experience that most conservatives are far more interested in myths and fables than in history or custom. They reveal an astonishing ignorance of historical evidence and their understandings of customs are in fact themselves myths, such as the myths about the essential nature of families (derived from 1950s sitcoms), or of sexuality, or of forms or origins of social order. (I once heard Irving Kristol dismiss libertarian ideas of property in one’s person as “an invention of some hippies in the 1960s.” I challenged him to explain his unusual historical claim in the context of documents such as the Decretal of Innocent IV (c. 1250), the writings of Henry of Ghent (c. 1217-1293), the Defensor Pacis of Marsilius of Padua (1324), the writings of Francisco de Vitoria (De Indis, 1524) and Bartolome de las Casas (In Defense of the Indians, 1550), Richard Overton (An Arrow Against All Tyrants, 1646), John Locke (Two Treatises of Government, 1689), and more. He looked at his wife, the distinguished historian Gertrude Himmelfarb, who shook her head, and charmingly replied that “On the advice of counsel, I decline to answer the question.”
I also once took part in a conference on Chinese thought during which a conservative intellectual participant stated that the writings of Confucius resulted in Maoism and those of Aristotle in the U.S. Constitution, with little awareness that a few things had happened in between, such as the Mongol non-conquest of Europe (thanks to the accident of the poisoning of Ogedai Khan on December 11, 1241), followed by their conquest of China.
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Libertarians love tradition as much as conservatives. We just don’t think people’s rights should be restricted while we (through our politicians, naturally) decide whether a given tradition is just. The presumption should not be stasis but liberty.
My experience is similar to Tom’s.
Sometimes it’s difficult to avoid concluding that the appeal to the inexplicit knowledge embedded in custom and tradition (a valid concern) is often just an excuse to maintain an unwarranted prejudice.
Regarding the point about Aristotle vs. Confucius:
This is something that often disappoints me in people’s assessments of history: the notion that everything can be related back to basic ideas and beliefs recorded thousands of years ago, with no consideration for the actual events that take place in the interim. I agree with Mr. Palmer in that this sort of mis-assessment seems particularly characteristic of conservatives, although I do not have a documented body of evidence to that effect.
The conservative’s comment about Confucius is especially stupid given that a) the Confucians were even bigger fans of tradition than Aristotle was, so conservatives ought to like them, and b) as I argue here
http://mises.org/journals/jls/17_3/17_3_3.pdf
they were fierce critics of government power and so an odd group to saddle with responsibility for Maoism.
Indeed; one might as well blame Immanuel Kant for Nazism. No…I don’t know anyone *that* crazy. There is no idea so stupid that it cannot survive by aiding and abetting irrational prejudice.