Classical liberals might find interest in a Forbes magazine column from Mark Hendrickson, fellow for economic and social policy with the Center for Vision & Values at Grove City College.
Hendrickson asks whether the federal government serves us or rules as. He contends that the answer involves addressing a related topic: whether government’s laws are positive or negative.
With apologies to the legal philosophers, I am not referring to “positive law” in the sense of “law established by governmental authority,” or as legislation embodying human will in contrast to “natural law”; rather, I am dividing human legislation into two categories: positive laws—those that stipulate what citizens must do—and negative laws—those that stipulate what they must not do.
The difference is crucial. Positive laws rest on the presupposition that government has the power to tell their citizens what they must do. This is the very essence of tyranny. Masters tell slaves what to do. Free people don’t have to obey someone else’s orders.
Negative law has a long and hallowed history in Western civilization. The Hebrew Decalogue is primarily negative, commanding us NOT to kill, NOT to steal, covet, etc. This is the essence of justice.
Justice, like law, is a negative concept. In his 1759 book, The Theory of Moral Sentiments, Adam Smith said that “justice…is but a negative virtue, and only hinders us from hurting our neighbor. The man who barely abstains from violating either the person or the estate, or the reputation, of his neighbors…fulfills…all the rules of what is peculiarly called justice…We may often fulfill all the rules of justice by sitting still and doing nothing.”
Our founders believed that the sole legitimate purpose of government was to protect the inalienable rights of Americans to be safe in the enjoyment of their life, liberty, and property—in other words, to uphold justice.
