08/09/2010 02:19 pm ET | Updated May 25, 2011

Three Out of Ten?

It is often said that the biblical Ten Commandments form the basis of our legal system. So I thought I would do a quick review to see how that founding basis fares in contemporary American legal practice.

  • Thou shalt have no other gods before me - is the fundamental tenet of monotheism, the founding strain in Judiasm that extends into Christianity and Islam. The notion of separation of church and state entered Western thought in the 1500s with Spinoza. Through the crucible of centuries of religious wars in Europe, it became one of the founding tenets of the United States. Here it is perfectly legal to be Hindu, or to subscribe to the polytheistic views of native Americans.
  • No idols. One of the most popular shows on television is American Idol, which not only worships singing idols, but tries to make new ones. I rest this case.
  • Thou shalt not use the Lord's name in vain -- is commonly accepted as a ban on profanity, although a narrower interpretation would hold it only to ban perjury under oath. The latter definition is still very much a part of our legal system, but the broader interpretation fell away steadily during the 20th Century, until there is little left of it.
  • Keep the Sabbath -- The last vestige of this in our legal system can be found in a handfull of states that limit liquor sales on Sunday morning. My favorite retailer's hours are "daily 9 to 9." It does not matter to the law whether one spends Sabbath attending services or out shopping.
  • Honor thy Father and thy Mother -- at least don't mess with their Social Security and Medicare.
  • Thou shalt not murder -- is still on the books.
  • Thou shalt not commit adultery -- is now grounds for unflattering publicity, but not criminal indictment, or even divorce in the majority of states with "no-fault" laws.
  • Thou shalt not steal -- is still on the books. Behavior on Wall Street makes one wonder if enforcement is selective and lax.
  • Thou shalt not bear false witness -- is still on the books and stronger than ever. When prosecutors can't make the case for the real crime, they often press for a conviction on charges of lying to officials, which they can prove more easily.
  • Thou shalt not covet they neighbor's goods -- Take a walk down Madison Avenue to see an entire industry based on the opposite premise.

So how do the Ten Commandments hold up? I count only three that are still fully enshrined in our legal system in a way that Moses would recognize.

From Spinoza to the British Empiricists to the Founding Fathers, we inherit a notion that society can, and should, make laws to create conditions in which society can stay in existence and flourish. If an idea is thought good, but not necessary for society's continued existence, than it should be a matter of private advocacy, but not a matter of law.

Proper laws can be much more detailed and situational than the Ten Commandments. The notion that everyone should drive their vehicle on the same side of the road was probably not important in Biblical times, but the mayhem and chaos that would result in a world of planes, trains, and automobiles without such restrictions almost defies imagination.

Also, that something is not a matter of law does not mean it is still not a cherished value of society. Individuals and groups may still chose to adhere to a principle without the lash of the law. The Commandment for monotheism is not the law in the United States, but a higher percentage of Americans regularly attend church, synagogue, or mosque than almost anywhere else in the world.

Which brings me to two debates that bring the libertarian tradition of our legal system into focus: abortion and gay marriage. For both issues, one side wants to make their position a matter of law, enforcing it on the entire population. The other side wants to leave it as a matter of individual choice, which is different from wanting to impose a different set of ideas on the entire population.

The asymmetry of the intent of the sides is too often overlooked. Advocates of gay marriage do not want to change traditional marriage in any way. They do not want gay people who do not believe in gay marriage, for whatever reason including religious beliefs, to have to marry. They want the choice available to people; the other side wants to eliminate the choice by force of law.

One can believe that a thing is wrong and still not want to legally proscribe it. Barry Goldwater was no advocate of abortion, but he believed it was not a proper subject for state control. He held to the clarity of this distinction despite howls of disappointment and disapprobation from fellow Conservatives.

The history of centuries of evolution of our legal system shows that short run noise and emotion eventually give way to the view of Spinoza, Locke, and Jefferson: society can only really enforce those laws truly necessary to the survival of society. Can society survive abortion and gay marriage? Most likely we will persist and persevere, no worse than we are doing without seven of the Ten Commandments.