Western culture is currently locked in a heated and impassioned civil war.
This probably doesn’t surprise you.
But the root might.
The culture war is not about LGBTQ rights, reproductive rights, or islamophobia.
Even though those are the things you see in the news, there is a much deeper divide. And most people are oblivious to it.
Why Don’t We Understand Each Other?
The debate really comes down to two opposing views on the purpose of law and government.
Except for Britain and the U.S., much of the western world lives under a ‘positive’ law mindset. Meaning, things are illegal unless the government states that are permissible.
Whereas the U.S. and Britain tend to operate under a ‘restrictive’ law mindset. Meaning everything is legal unless there is a law against it.
This mindset is also prevalent in the United States, it just isn’t the dominate view. As an example, most conservative Christians oppose decriminalizing gay marriage because they don’t want to endorse that behavior.
You can see the difference between these two mindsets in the language people use. Should we decriminalize gay marriage? Or legalize it? The positive law mindset wants to legalize it, that is, to endorse its use. The restrictive law mindset wants to decriminalize it, that is, no longer make it illegal.
Those are two very different positions separated by one word.
Legalizing something means we are accepting it as an appropriate activity. Decriminalizing something means we will no longer prosecute someone for doing that activity.
It doesn’t mean the government condones that activity. It just means the government isn’t going to punish you for doing it.
This is a BIG difference in culture. And it explains why we see such a big disparity between European democracies, and the United States.
Freedom Is Not Positive. It is Restrictive.
Restrictive laws assume that people are free and can do as they choose, so long as it doesn’t harm others.
Positive laws assume that people are not free, and must be given permission to do certain activities.
These assumptions are required. You cannot have a restrictive law without assuming that people are inherently free.
And you cannot have a positive law without assuming that people are inherently subjects.
Positive Laws Are Anything But Positive
The positive-law mindset assumes a person who has no freedoms. They have no control. They are completely subject to someone or something else.
Think of a father and his child. The child has no rights. But the father can grant certain freedoms to his child if he chooses. However, until the child is old enough, the father can revoke those freedoms whenever he wishes.
Think of royalty and the feudal system. Think of every form of government that has ever existed in the world (up until the last few hundred years).
Kings, emperors, or democratic socialists controlled everything, and they proscribed what their subjects or citizens could or could not do.
This mindset does not require a dictator or tyrant. Positive-law type governments can be (and many are) democratic. And good things can happen to society under these governments (think of a benevolent king who truly cares for his people). But, it inherently requires that we believe we are not free, and that some higher power must grant freedoms to us.
Restrictive Laws Are Anything But Restrictive
Restrictive laws must assume that people are inherently free, and that government only exists to protect that freedom. People do not need a king or a congress to tell them they are free.
The restrictive-law mindset requires that people assume responsibility for their own lives (and happiness), and live accordingly. Don’t just read over that statement. Truly ponder it, and how that is different from positive-law governments.
In a positive-law culture, the people’s happiness depends on the government. The government must ensure that people are cared for. Just as a father must guarantee food, shelter, and education for his children, so must the government provide education, healthcare, employment, and decent living conditions.
In order for the government to be moral and upright, the positive-law government must do this. Because without these activities, the people would perish. Just like children would perish if their fathers stopped looking after them.
The restrictive-law government has nothing to do with your happiness. Your happiness and success in life is of your own doing, and no one else’s. In this world, the government only exists to make sure your right to pursue your happiness is protected. It does not–and cannot–give it to you.
To do so would require that it no longer assume you are free.
Yeah, That Sounds Good,
But Our System Is Rigged!
At this point, many of my socially conscious friends would say “Yeah, that sounds good if everyone starts from the same place and has a fair chance of succeeding, but our system is rigged for the rich. The 1% control the wealth, and the government. So people aren’t truly free to pursue their own happiness.”
Ultimately this statement is correct.
However, I would argue that introducing positive laws into the government made way for this. Now that the government can dole out rights, politicians can be bought to provide “special” rights.
Now that the government can dole out rights, politicians can be bought to provide “special” rights.
Our system is rigged. It isn’t fair. But taking away more freedom is not the answer.
How Restriction Changed History
This is the reason the United States changed history. We were the first country in the history of the world to build a restrictive-law government from the ground up. The whole purpose of our government was to protect people’s freedom.
The government did not dole out rights. The people gave the government rights. The government is not responsible for people’s happiness. The people are. The government merely protects people to pursue that happiness.
At the time of our revolution, England and other western countries had blended restrictive-law principles into their governments. But they never full adopted them like we did.
To this day, people living in the UK are not citizens, they are subjects. This symbolizes the somewhat contradictory mindset Brits can have about government. They were born into a monarchy (positive-law), birthed the philosophy of modern political freedom (restrictive-law), but only partially adopted it in their culture.
A License To Be Free
Despite what the news outlets say, our biggest culture war is not about gay or transgender rights.
It is about power and freedom. Are people truly equal and free? Or do they need a higher power to proscribe their ‘freedom’ and ‘equality’ to them?
As I’ve stated before, the United States have become divided on this. Our proud heritage has been lost in the murky waters of confusion.
The term ‘license’ is good sign you’re talking about a positive law.
By definition, a license gives you permission to do something that would otherwise be illegal. This lends itself to positive-law thinking.
Not every license comes from a positive-law mindset, but many do.
For example, a driver’s license makes sense. You are controlling a machine that has the power to cause a lot harm to a lot of people.
You need to demonstrate that you know how to safely operate it on the road.
However, most places don’t require a license or registration if you’re driving a car on your own property. Why? Because you’re not risking the lives of others on your property.
This license is ultimately restrictive in nature. It assumes that you are free to do as you please, until you pose a risk to other people. Once you threaten the lives of others (and therefore their rights), we need laws to mitigate that threat.
A marriage license, however, makes no sense. That is a positive-law through and through.
A marriage license assumes that it is illegal to be married without government approval. Period. Do we really believe it is illegal for people to be married without government permission?
You don’t need permission to have children. You already have that right.
You don’t get a ‘birth license.’ You get a birth certificate.
In what situation would getting married harm another individual? Assuming everyone is consenting, there is no reason for such a license to exist.
If I live under a pure restrictive-law government, I would be free to marry whom I want, when I want. There wouldn’t be a license. If anything, there would be a certificate or government record for tax purposes.
A business license is another positive-law. A business license assumes it is illegal to do business without special permission. Why? What harm am I doing to anyone for opening a coffee shop? Or book store? Or mill?
Am I not free to do business with whom I see fit, when I see fit, how I see fit? Why do I need permission to do that?
A Confused People Are A Doomed People
Our confusion over the purpose of government has made good intentioned legislators use restrictive-law language to accomplish positive-law goals.
For instance, several cities are starting to pass $15 minimum wage laws. Why? Because they believe people deserve to earn a living wage.
They believe the government is at least partially responsible for people’s happiness and success. Therefore, the government should guarantee access to a ‘living wage.’ So they pass a law that says, “You cannot pay your workers less than $15 an hour.”
That is technically a restrictive-law. You’re free to pay your employees whatever you want, unless it goes below $15.
But this is not a true restrictive-law. Restrictive-laws only exist to protect your freedom from others. It assumes that you are responsible for your happiness and success.
How does paying someone $10 an hour directly harm an individual? Are you physically harming them? No. You may not ever touch them.
Are you forcing them to work against their will? No. You are not conscripting them into forced labor. They can quit whenever they want.
Are you stealing from them? No. You are not physically reaching into their pockets and taking money from them. You are not withdrawing funds from their bank. You are not holding them at gunpoint, demanding their money.
Are Your Values Making You A Thief?
Some might argue that you are denying them access to a ‘livable wage,’ and are thus robbing them that way.
However, this is not theft. And it can never been seen as such.
Withholding money from someone is not the same as taking money from them. If that were true, everyone on the planet would be guilty of stealing from everyone else.
Imagine that you’re sitting at a stop light with one car in front of you. On the side walk to your left is a homeless person asking for help (in the form of money). Once traffic is clear, the car in front of you drives off without giving the homeless person a penny.
You would not say, “That driver just stole from that homeless person!”
Furthermore, you wouldn’t get their license plate number and call the police.
However, you would do that to someone who did actually steal from another. And you would be right to do it!
Failure to give is not the same thing as stealing.
Minimum wage laws say that a person’s happiness and/or success must be guaranteed and/or given to them by the government. Ultimately, it says that people are powerless to achieve happiness and success on their own.
These laws are not restrictive. They are positive. They are merely dressed up in restrictive language. Our government operates under countless other laws just like it.
This is the real culture war: Restrictive vs positive laws. Are people inherently free, or subjects? Are they responsible for themselves? Or do they need a paternalistic government to guarantee their happiness?
When you support a law or a movement, what are you saying about people and humanity?
How do you want to solve the world’s problem? By taking freedom away from people? Or by allowing them to keep it?
Even though most positive laws want to change the world for the better, they fundamentally require that we accept a poor view of humanity and the world.
We must also take away people’s freedom by assumption, and then dole it back out when we see fit.
A truly free and progressive society would not do this. A truly free society would vigorously fight against any form of positive law, and its philosophical underpinning.
Libertarian movements are not backwards. They are not super-conservative. Paternalistic governments have been around since the dawn of time. Socialism, welfarism, and modern liberalism are the same old thing we’ve seen for all of human history. They are just dressed up a little different. Governments based on individual rights and equality are radically progressive.
This means that to truly be progressive, radical, and on the cutting edge, you have to be libertarian. Otherwise, you’re just a pawn of history.
We Find Ourselves At A Crossroads
Before us lie two paths.
To the left are positive laws, and all of history with them. That is an ancient path. Some good has come from it, but it is mostly paved with centuries of oppression and control.
To the right are restrictive-laws, and the freedom that comes with them. It is a fairly new path in human history. Only a few have walked down it. Most fear it.
You have to choose: Do you walk down the path humanity has taken since the rise of civilization? Will you accept a government that wears the clothes of democracy, but is the same thing we’ve seen since the dawn of time?
Or will you take the road less traveled? The road that fiercely protects people’s equality? The road that believes in the power of freedom?
Which side of the culture war are you on?
To learn more about these issues, download a complete version of my book below for free. In it, we go over how to establish true freedom, equality, and fairness in America today.
Originally published at www.seanedwards.com on July 26, 2016.
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