When it comes to our view of individual liberty, one of the most unexplored areas of distinction between libertarians and religious conservatives* is how we view neutrality and bias. Because the differences are uncharted, I have no way of describing the variance without resorting to a grossly simplistic caricature—so with a grossly simplistic caricature we shall proceed:

Libertarians believe that neutrality between the various spheres of society—and especially between the government and the individual—are both possible and desirable, and so the need for bias toward a certain outcome is not only unnecessary, but contrary to liberty.

Religious conservatives, in contrast, recognize that such neutrality between individual and social spheres is illusory and that bias is an intractable aspect of human nature.

If these caricatures are generally appplicable (as I believe they mostly are), then it helps to explain how libertarians and conservatives can use language that is similar—if not exactly the same—and yet come to wildly different conclusions.

For example, over a decade ago David Boaz of the Cato Institute helpfully defined the Key Concepts of Libertarianism. One of these key concepts is the “rule of law”:

The rule of law means that individuals are governed by generally applicable and spontaneously developed legal rules, not by arbitrary commands; and that those rules should protect the freedom of individuals to pursue happiness in their own ways, not aim at any particular result or outcome.

I choose this example because it is a statement that, on initial examination, conservatives and libertarians would generally agree with. The reason for this, I believe, is that conservatives have largely adopted the libertarian way of framing such concepts. However, once we consider the statement in the light of the different views of bias and neutrality we can better understand why it is self-contradictory.

Let’s start with the claim that individuals are governed by legal rules that are “spontaneously developed.” While we can all agree that such legal rules should be applied neutrally and without bias (that is, generally speaking, what we mean by the rule of law), they are not “spontaneously developed” by a neutral and unbiased method.

All legal rules are made by humans and filtered through human institutions, such as courts and legislatures. They are therefore subject to the various biases of the people who develop the legal rules.

As the judge and legal scholar Richard Posner has said, if judges are not introspective, their candor will not illuminate the actual springs of their decisions. When asked to explain this comment he replied:

If a case is difficult in the sense that there is no precedent or other text that is authoritative, the judge has to fall back on whatever resources he has to come up with a decision that is reasonable, that other judges would also find reasonable, and ideally that he could explain to a layperson so that the latter would also think it a reasonable policy choice. To do this, the judge may fall back on some strong moral or even religious feeling. Of course, some judges fool themselves into thinking there is a correct answer, generated by a precedent or other authoritative text, to every legal question.

What Posner is saying is that the legal rules that we think are “spontaneously developed” are often influenced by “strong moral” or “religious feeling.” This complicates Boaz’s claim that these rules should,

. . . protect the freedom of individuals to pursue happiness in their own ways, not aim at any particular result or outcome. [emphasis added]

If the rules are biased in favor of a particular moral or religious feeling, then they are biased in favor of a particular result or outcome and are likely to be unsuitable for protecting the freedom of individuals to “pursue happiness in their own way.”

To take an example from the realm of bioethics, if a judge is influenced by his “religious feeling” that human life has an intrinsic dignity, then it can lead him to develop legal rules that hinder individuals from pursuing happiness in their own way (e.g., having an abortion).

When libertarians recognize this truth (which happens too infrequently) they search for ways to do the impossible: remove the human bias from the system. Or, more precisely, what they prefer is to add more libertarian bias into the system since for their conception of the rule of law to be coherent requires that the majority share the exact same bias toward the ideal of unfettered individualistic pursuit of self-defined happiness.

Needless to say (at least saith the conservatives), that ain’t gonna happen.

As I mentioned earlier, conservatives generally recognize that such neutrality is illusory and that bias is an intractable aspect of human nature. This puts us about a half-step ahead of our libertarian cousins, for while we may come to the recognition more quickly we are left with the same need for everyone (or at least the majority of folks) to share our bias in order to get what we prefer.

(This is partially why conservatives are in favor, as G.K. Chesterton said, of giving votes to the most obscure of all classes, our ancestors. By including the “democracy of the dead” we ensure we have a plurality on our side.)

Since libertarians and conservatives end up in the same place, desiring to immanetize the eschaton by getting everyone to share our general bias, why should we prefer the conservative position? Because conservatives are able, though not always willing, to harness bias and use it to our advantage by directing it toward ordered liberty—the only type of liberty that is sustainable.

By placing an overemphasis on individual liberty without an equal accent on individual virtue, the libertarian unwittingly erodes the foundation of order on which her political theory stands. Order is a necessary precondition of liberty and must be maintained from the lowest level of government (the individual conscience) to the highest (the State). The individual conscience is the most basic level of government and it is regulated by virtues. Ordered liberty, in this view, is not an end unto itself but a means by which eudaimonia (happiness or human flourishing) can most effectively be pursued. Liberty is a necessary component of virtue, but it cannot serve as a substitute.

Religious conservatives recognize that all institutions have a bias either toward or away from virtue and ordered liberty. We can either harness and direct the bias of institutions towards a free and virtuous society characterized by individual liberty and sustained by religious principles or we will lose both order and liberty. There is no neutral ground in which the seed of freedom can grow uncultivated.

*Throughout this post, the terms “religious conservatives” and “conservatives” are used interchangeably to refer to political (though not necessarily theological) conservatives whose views are influenced and sustained by religious principles. The way I use the terms here will likely also apply to many people who would self-identify as “religious libertarians.” People are free to choose their own labels, of course, but I agree with Russell Kirk that “If a person describes himself as “libertarian” because he believes in an enduring moral order, the Constitution of the United States, free enterprise, and old American ways of life-why, actually he is a conservative with imperfect understanding of the general terms of politics.”


  • Rick_millward

    I agree wholeheartedly and I’m a democrat!

  • LIBIntOrg

    Thanks for the article. Politically, Libertarians are centrist and non-partisan advocates of focus on rights and public administration through voluntary alternatives within a Liberal perspective, and so mediate neutrally between conservatives and progressives, without necessarily advocating any particular solution. Libertarianism is about process and formation of exemplar Libertarian communities, not getting people to adhere to any immanentizing belief.

    For info on people using voluntary Libertarian tools on similar and other issues, please see http://www.Libertarian-International.orgwww.Libertarian-International.org  , the non-partisan Libertarian International Organization…

    Again, many thanks for the thoughtful article.

    • http://www.facebook.com/joe.p.carter Joe Carter

      Thanks for the comment. I would agree that this is the aim of libertarianism. But I’m not sure I can agree that libertarians actually “diate neutrally between conservatives and progressives, without necessarily advocating any particular solution.”Most libertarians that I know are quite eager and willing to advocate for particular solutions. ; )

  • http://www.facebook.com/profile.php?id=19002050 Jameson Graber

    I think you’re obscuring the genuine distinction between a libertarian and a conservative, here. The question is not whether or not there should be moral order, but rather in recognizing where moral order comes from, and realizing the inherent limitations of the state in producing it. While some libertarians buy into moral relativism or a Randian type of rationalism, I think many of us follow thinkers like Hayek in understanding morals as arising “spontaneously,” not in the sense of without bias (that is a very confused interpretation of “spontaneous”) but rather in the sense of, perhaps, “organically,” i.e. without the sort of planned organization imagined by other philosophies.

    I suppose you’re a little bit right in saying that “unbiased” is not a meaningful way of talking about institutions. But I think you’re wrong to think that institutions can *deliberately* move us in the right direction, morally. Indeed, that is the “fatal conceit.” Whatever their intentions may be, the actions of powerful institutions will have unintended consequences. That is why we need the rule of law, to protect us from the designs of men. “A government of laws and not of men” is still a good idea.

    • http://www.facebook.com/joe.p.carter Joe Carter

      I suppose you’re a little bit right in saying that “unbiased” is not a meaningful way of talking about institutions. But I think you’re wrong to think that institutions can *deliberately* move us in the right direction, morally.

      I’m hoping to clarify what I mean in a later post. While I certainly don’t think everyone will agree, I think it won’t be seen as quite as radical as  some people may assume. 

      For example, government can have a bias in favor of corporatism or entrepreneurialism, but not both (I think the two are antithetical, so keep that in mind for this example). The government will deliberately move us in one direction or another, which is why I say that there is no neutral position. The question is whether we harness that bias and move it in the direction we prefer (in my case, toward entrepreneurialism). 

      I believe that because many libertarians believe neutrality is possible, they would argue that no we should not encourage the government to take sides on this issue. The result is that the government will necessarily choose a side, and it will likely be the one we do not want them to take. 

  • Roger McKinney

    I don’t know any libertarians who would characterize their ideal as an attempt at neutrality. Do you have any references? A libertarian government would encourage entrepreneurship, but without any specific intentions of doing so.

    So while conservatives would use the power of the state to favor and promote entrepreneurs, libertarians would have the state ignore them. Conservatives would destroy entrepreneurship with state favors because everyone would direct their energy to getting the government hand outs. Libertarians would promote entrepreneurship through benign neglect.

    As I wrote on another post, the state that is most blind to the needs of the poor (a libertarian state) enriches the poor the most. That’s history. But the libertarian state would have no intentional bias toward the poor even though the outcome would be to help the poor more than any other system.

    Kirk was wrong when he wrote: “If a person describes himself as “libertarian” because he believes in an enduring moral order, the Constitution of the United States, free enterprise, and old American ways of life-why, actually he is a conservative with imperfect understanding of the general terms of politics.”

    The differences between conservatives and libertarians are stark. Libertarians chose their title to distinguish themselves from modern conservatives and identify with classical liberals and pre-WWII conservatives.

    Conservatives want to use the power of big government to create their perfect society. That’s why they refuse to give up on the war on drugs in spite of its massive failure. They want to promote social values in spite of the fact that that is the job of the family and the church.
    Conservatives verge on being war-mongers. They want to have US boys fighting in some god-forsaken place all of the time. They won’t even consider reducing our military footprint around the world and letting some people rule themselves.

    Conservatives want to use the government for good, as defined by them. Libertarians only want the state to settle disputes. Conservatives also tend to oppose immigration and free trade.

    Libertarians would require that the state tax no one if it doesn’t tax everyone and at the same rate. The rule of law means that the general principals apply to every citizen equally; the state plays no favorites with anyone.

    “We can either harness and direct the bias of institutions…”

    That’s scary!

    “since for their conception of the rule of law to be coherent requires that the majority share the exact same bias toward the ideal of unfettered individualistic pursuit of self-defined happiness.”

    That’s simply not true. No libertarian other than Rand has ever advocated “unfettered individualistic pursuit of self-defined happiness.” Why is it so hard for conservatives to be honest when talking about libertarians?

    Libertarians insist on a moral code that most people can agree to – the protection of life, liberty and property. Any morality beyond that is the purview of the church and family and the state has no business directing it.

  • Roger McKinney

    Another huge difference between libertarians and conservatives is that conservatives have no respect for how dangerous government power is or how awful the unintended consequences of good intentions are.

    Libertarians are terrified of the state, a terror born of a good knowledge of history. Conservatives still cling to the illusion that the state is just a big puppy that they can control at will to do their bidding and create the good society. 

  • Roger McKinney

    “The doctrine of individualism indeed rests on the protection of individual rights – to person, property, and liberty – but that’s only the basis of the free society, not it’s perfection…

    “Perhaps the secret of the classical liberalism that undergirds the free society is that it doesn’t ask us to agree on a endless laundry list of priorities – a Complete Ethical Code – in order to belong to the Great Society. Instead, diverse people come together out of genuine mutual interests, not contrived ones that don’t hold up. It includes the good, the bad, the beautiful, and the very ugly. As far as I’m concerned it’s the only meaningful collective there is.”

    from http://www.thefreemanonline.org/headline/collectivism-as-apartism/

  • Roger McKinney

    I think it might help clear the air if conservatives made explicit what they think the state should do beyond the libertarian ideal of protecting life, liberty and property.

  • Bawest47232

    While, I give you credit for stating the obvious about human nature and bias, I do not think you understand the effort libertarians put into ignoring bias to make decisions. For instance, I am a Christian but I can support a Muslim and his right to pray completely and freely. I know he is wrong but from a legal view, I can see how increasing the Muslim’s freedom actually increases mine.

    I don’t support gay marriage because I am biased against it personally. However, at the same time, I realize the marriage of another couple has no bearing on my marriage.

    Libertarians trend to look at issues, not so much with bias, but absent emotion. The conservatives look at issues based more on emotion instead of a legal perspective.

    It is not always easy to be libertarian in thought. My brother died of a drug overdose. I don’t blame the system for not protecting him. He was going to get drugs if they were legal or not. I still support legalizing drugs because it is the personal choice and responsibility of the user.

    Really, using your logic, there is only one difference between a conservative and a liberal. The liberal wants a nanny state to take care of physical needs of the needy while the conservatives want a nanny state to take care of the morally needed. What it comes down to is two competing ideas on how best to take care of the needy. Libertarians believe the needy will learn both moral and physical support methods if they are trusted to be responsible for themselves.

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  • http://twitter.com/jurisnaturalist Nathanael Snow

    How do you respond to those who dig deeper into the origins of law and describe a spontaneous process.  I’m thinking of Bruce Benson, David Friedman, and others along those lines.  If judges have to operate within a competitive environment (a prerequisite for all emergent orders) then efficient laws, or at least laws which are as close to robustly efficient over the long run as possible, may emerge without appealing to an agreed upon set of morals.
    Your argument stands as far as it opposes your run of the mill Constitutionalist or internet-style libertarians, but I do not think it can be sustained in the face of serious anarcho-capitalism (Boettke and Leeson, not Rothbard).
    Reconciling serious anarchism through Anabaptist theological lenses is not all that difficult, it is just rare.    

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