l WHAT IS OBJECTIVE LAW?
#7 Fall 1990
l TAFOL MAKES SUBMISSION IN SUPREME
COURT CONFIRMATION HEARINGS
l TAFOL'S CAMPAIGN AGAINST MANDATORY
PRO BONO SERVICE
l LETTERS TO THE EDITOR AND OP-ED PIECES
PUBLISHED BY TAFOL MEMBERS
1990 Page 1
WHAT IS OBJECTIVE LAW?
a later version of this article at (Vol. 6, No. 1, January 1992
of The Intellectual Activist (www.intellectualactivist.com)]
A law is a rule of social conduct enforced by the government.
In distinction to all other social rules and practices, laws are
backed up by the government's legal monopoly on the use of physical
force. Breaking the rules of a business, fraternal organization,
educational institution, or other voluntary association may meet
with disapproval, loss of privileges, or expulsion, but only a
government can enforce its rules by subjecting those who break
them to fines, imprisonment, and, ultimately, death. (Any fines
levied by private organizations are enforceable only via the government's
enforcement of contracts.)
In order to
define a standard for evaluating law, one must refer to the purpose
of government. In "The Nature of Government," Ayn
Rand writes: "Since the protection of individual rights is
the only proper purpose of a government, it is the only proper
subject of legislation: all laws must be based on individual rights
and aimed at their protection."1 Rights can be violated only
by the initiation of physical force. A proper, moral government
limits its use of physical force to retaliating against those who
initiate its use, in violation of rights.
By its monopoly
on the use of physical force, a government is potentially the
rights-violator in a society. The threat
to rights posed by private criminals is small compared to the threat
posed by governments, as the mass slaughters perpetrated by statist
governments throughout history testify. It is essential, therefore,
that the government's use of physical force be "rigidly defined,
delimited and circumscribed; no touch of whim or caprice
should be permitted in its performance; it should be an
impersonal robot, with the laws as its only motive power."2
This is the
basis of the need for objective law. Laws must be objective in
and form. And in both respects, "objective" refers
to that which is based on a rational consideration of the relevant
facts---as opposed to the subjective, the arbitrary, the whim-based.
derived law is one stemming not from the whim of legislators
but from a rational application of the
principle of individual rights. Rights tie law to reality, because
they are a recognition of a basic, unalterable fact, i.e., of "the
conditions required by man's nature for his proper survival."3
For instance, a law against murder is clearly derived from the
right to one's life, whereas a law compelling military service
is not derived from any right, but from the alleged needs of a
collective, in disdain for the individual's right to his life.
A law against
theft is objectively derived from the right to property; a law
guaranteeing "free" (i.e.,
tax supported) medical benefits is not---it violates the rights
of those whose wealth
is to be expropriated to provide such benefits.
That a law
is objectively derived does not guarantee that it is a correct
the principle of individual rights---errors
in application are possible. But it does mean that the law's validity
is defended by a rational attempt to apply the principle of individual
rights, rather than by appeal to such notions as the "public
interest," the "general welfare," or "community
legal philosophers, politicians, judges, and bureaucrats believe
that the purpose of law is to strike
#7 Fall 1990
balance between the wishes and demands of various groups. In
this chaos, no principles are invoked, only
and indefinable notions as "the public interest" or,
worse, "the needs of the environment." No stable, principled
legal code can be derived from notions detached from reality. Such
notions require a policy as "flexible," and "evolving" as
the dizzying swirl of intellectual fashion that generates them.
Ultimately, only the principle of individual rights, which
is grounded in the factual requirements of man's survival,
can provide the basis for law that is objectively defined
and objectively applied.
As the law must be objective in its source, so it must be objective
in its form: objective laws are clearly defined, consistent, unambiguous,
stable, and as straightforward and simple as possible. They are
also impartial and universal, in the sense of applying to all individuals
as individuals rather than as members of any race, creed, class
or other collective.
every regard, the law must be adapted to its essential goal: predictability. "[M]en
must know clearly, and in advance of taking an action, what the
law forbids them to do (and why), what
constitutes a crime and what penalty they will incur if they commit
The ideal is to make the laws of man like the laws of nature:
firm, stable impersonal absolutes.
Like the laws
of nature, proper laws are contextual. The laws of physics do
of sweeping, out-of-context pronouncements,
such as "Heavy objects fall---period," a notion which
would be contradicted by the flight of birds or airplanes. Rather,
physics identifies the fact that all objects are subject to a gravitational
force---as one factor in the total context of forces influencing
their behavior. Likewise, an objective law does not declare, for
instance, "Thou shalt not kill---period," a notion which
would equate murder and self-defense.
Nor does the
law against murder ignore such distinctions as that between first-degree
and second-degree murder. Objective law makes
legal distinctions according to context and circumstance---i.e.,
according to the specific nature of the act (including its level
of intent) and of the surrounding facts---not according to the
race of the accused, the eloquence of his pleas for "mercy," or
the mood of a judge.
Objective laws are abstract statements. As such they have to be
applied to the specifics of a given concrete case. This application
is not automatic, and in many instances a proper application requires
a great deal of time and effort. The opponents of objective law
use these facts to support their claim that when it comes to law,
there are no hard-and-fast rules, no absolutes. But the laws of
nature also are abstract, they also stand in need of application,
and scientists often disagree about what accounts for observed
phenomena or what the results of an experiment will be. This does
not make the laws of nature non-absolute, flexible,
or subject to anyone's whim.
such attacks on objective law reflect the false alternative of
the intrinsic versus the subjective: if the
answers to legal issues are not self-evident, then, it is claimed,
no objective answers exist and we may as well go by our emotions.
To identify this approach is to refute it.)
Not only must
a legal code have the impersonal absolutism of a law of nature,
also have the clarity and precision of a
properly drafted contract. A contract that states, "In return
for paying me $100, I will do something nice for you someday," is
no contract. Likewise, a law that states, "Obey community
standards regarding obscenity," is no law, but a grant of
element in the understanding and defense of objective law is
Ayn Rand's identification that physical force is the only basic means of violating rights. "It is only by
means of physical force that one man can deprive another of his
life, or enslave him, or rob him, or prevent him from pursuing
his own goals, or compel him to act against his own rational judgment."5
Law that is defined in terms of acts of physical force, notes Leonard
stark contrast to laws forbidding crimes which are not defined
physical acts; e.g., laws against "blasphemy," "obscenity," "immorality,"
of trade," or "unfair profits." In all such examples,
even when the terms
are philosophically definable, it is not possible
to know from the statement of the
law what existential acts are
forbidden. Men are reduced to guessing; they have
to try to enter
the mind of the legislator and divine his intentions, ideas,
philosophy---which, given the nature of such legislation,
with caprice. In practice, the meaning of such laws is decided
arbitrarily, on a case-by-case basis, by tyrants, bureaucrats,
according to methods that no one, including the interpreters,
can define or predict.6
who initiates physical force is attempting to enact a nightmare
perversion of metaphysics: the
#7 Fall 1990
consciousness. He seeks to make his arbitrary will, not the facts
of reality, the absolute to which his victim must
adjust. Non-objective law is based on the
same premise: it demands that the citizen focus on and
accept the unaccountable will of the law's interpreter
instead of the facts of reality. Objective law is based
on the primacy of existence; it reflects not anyone's will
but facts. In this sense, objective law is passive: certain
areas are clearly marked "off limits," and unless
one crosses the line, the law respects and protects one's
freedom of choice. Non-objective law is active; it is a beast
in motion. Its "flexibility" makes it the indispensable
tool of dictatorships.
"It is a grave error," writes Ayn Rand, "to suppose
that a dictatorship rules a nation by means of strict, rigid laws
which are obeyed and enforced with rigorous, military precision.
Such a rule would be evil, but almost bearable; men could endure
the harshest edicts, provided these edicts were known, specific
and stable; it is not the known that breaks men's spirits, but
concern is power. To have power over someone is to be able to
do what one wishes, not by offering him
a value as an inducement, not merely when his wishes happen to
coincide with one's own, but simply because one wishes it. The
power-luster seeks proof that you are acting from orders, not merely
in accordance with orders. To obtain that proof, he must constantly
and arbitrarily shift his orders: "there is no way to please
him; when you obey, he will reverse his orders; he seeks obedience
for the sake of obedience and destruction for the sake of destruction."8
Objective law is men's protection against power-lust. Objective
law does not require submitting to anyone's will; it exists to
prevent others from substituting their will, their plans, their
judgment for one's own.
Although the function of objective law is to protect individual
rights, the proper means for securing this protection is by bringing
a civil or criminal action after the fact, not by prior restraint.
If a plaintiff can prove that someone's planned action poses an
objective threat of damage to him, he can sue for an injunction
to prevent it. But the general possibility of human wrongdoing
provides no grounds for requiring a given individual to prove he
will not engage in it. Individuals are separate entities who possess
free will and make their own independent choices. Therefore, the
wrongful actions of some men do not cast the slightest suspicion
upon the activities of others. This is another manifestation of
the individualism embodied in objective law.
all regulatory agencies---all the alphabet commissions and boards
from the original ICC right through the
latest "environmental" agencies---are inherently non-objective
by virtue of being regulatory agencies. Regulatory agencies deal
in preventive law, law that treats men as guilty in advance,
requiring them to satisfy the government that they will not bring
about a certain result, in the absence of any specific evidence
that they will do so. Thus, businesses have to satisfy the FDA
that they will not sell adulterated food and drugs, satisfy the
SEC that they will not "take advantage of" investors,
satisfy the FTC that they will not "attempt to monopolize," satisfy
the EPA that they will not "injure the environment," satisfy
the EEOC that they will not "discriminate" in hiring
. . . and so on, without limit.
The premise of regulatory law is: since some individuals may act
irrationally and irresponsibly, all must submit to supervision.
Thus regulatory law sacrifices virtue to vice. Objective law is
designed to protect the very thing regulatory law crushes: independence.
is needed not only for the law itself, but also in regard to
every governmental activity, from the conduct of the
police to election procedures. Legal objectivity, in the widest
sense, includes objective methods of enacting law (the legislative
process), objective methods of interpreting, constitutionally validating,
and applying the law (the judicial process), and objective methods
of enforcing the law (the executive process). Each of these is
a wide and complex domain requiring multi-volume treatises to specify
proper procedures; but the required work has essentially been done
already: the original American system of constitutionally limited
government, together with 18th century English common law and rules
of parliamentary procedure, formed a nearly perfect system from
the standpoint of objectivity.
* * *
contribution to the theory of objective law is threefold. First,
she provided a rational, objective basis for individual
rights. Second, by
identifying the fact that only physical force can violate rights, she made
objective the basis for establishing when a right has been violated.
developing a full philosophic theory of objectivity as such and
this theory of objectivity with the
need for government, she solidified the Lockean defense of that
institution, showing why the law has to be objectively defined,
interpreted, applied, and enforced: "A government is the means
of placing the retaliatory use of physical force under objective
---i.e., under objectively defined laws. . . . If a
#7 Fall 1990 Page
society is to be
free, its government has to be controlled."9
1. Ayn Rand, Capitalism: The Unknown Ideal (New
American Library, 1966) 332.
2. Id. at
3. Id. at
4. Id. at
5. Id. at
Peikoff, Objectivism: The Philosophy of Ayn
Rand, Chapter 10.
7. "Antitrust: The Rule of Unreason," in
The Objectivist Newsletter (February, 1962) 5.
8. Ayn Rand,
Atlas Shrugged (New American Library,
9. Ayn Rand,
Capitalism: The Unknown Ideal (New
American Library, 1966) 331.
TAFOL MAKES SUBMISSION IN SUPREME COURT CONFIRMATION HEARINGS
On September 5, 1990, TAFOL submitted the following position paper
to the Committee on the Judiciary for consideration in the confirmation
hearings on Supreme Court nominee David H. Souter. TAFOL's position
paper will be included in the record of the testimony given during
the hearings. Copies of the Position Paper were also made available
at the press table outside the hearing room.
this confirmation process, the focus of almost every organization,
no matter where
on the political or jurisprudential
spectrum it falls, has been on the question of what David H. Souter
should reveal about his beliefs. Many on the political left have
demanded that Judge Souter state his positions on specific issues,
such as abortion. Many on the political right disagree, maintaining
that at most, Judge Souter may properly be asked his position only
on broader topics, such as "privacy," and "judicial
activism"; they praise Judge Souter as having an "open
mind" on specific issues.
of The Association for Objective Law is different: Judge Souter
must be questioned probingly on fundamental issues,
but the fundamental issues are not issues on the level of abortion,
judicial activism or even privacy.
The fundamental and crucial issue is David Souter's view
on individual rights. If David Souter is to be confirmed,
he must have a view on this issue, and his view must be
revealed. A nominee for Justice of the Supreme Court of the United
States should be asked if his vision of individual rights is the
one on which the United States is grounded. Under this view, rights
arise out of the nature of man; they are not gifts or permissions,
and may not be withdrawn for any reason. They are absolute; no
invasion of a right may be justified by "balancing" against
a so-called "public interest" or "government interest." Indeed,
the only proper purpose of government, and of laws, is to protect the rights of individuals. This principle is crystallized in the
Declaration of Independence: "To secure these rights, governments
are instituted among, men . . . For a judge to express and implement
these principles is not "judicial activism." In fact,
it is unacceptable for a judge to have an "open mind" on
such principles. They are not optional.
on narrower, more concrete issues, such as abortion, or the right
will of course be revealing. But statements
on individual rights as such are infinitely more revealing, as
the hearings on Robert Bork's nomination made chillingly clear.
To the extent that a judge is consistent, his philosophy will determine
and make predictable his view on every specific issue coming before
the court. Bork believed that there are no rights, only what the
political majority writes down as permissions. The "majoritarian" principles
Bork espoused are fundamentally opposed to individual rights, and
therefore Bork was properly adjudged unfit to serve as a Supreme
Court Justice on the basis of his philosophical approach.
What is David
Souter's philosophy of individual rights? His supporters appear
that confirmation would be doubtful if Judge
Souter revealed his views. But for the reasons stated above, a
nominee who refuses to state his fundamental principles should
be immediately rejected. Moreover, majority and dissenting opinions
written by Judge Souter as a state court judge raise many questions.
There is more to be seen in these opinions than a passionless,
antiseptic, "strict construction" approach or a hard-line
tendency towards criminals. The writings suggest an acceptance
of the notion that rights may be "balanced," and of the
notion that rights may be overridden by "public interests." There
is even some suggestion that, like Robert Bork, Judge Souter believes
that rights may be voted away by the majority. See, eg., New
Hampshire v. Koppel, 499 A.2d
#7 Fall 1990
(N.H. 1985); Cole v. Combined Insurance Co.
of America, 480 A.2d 178, 180 (N.H. 1984).
is terribly important that David Souter state forthrightly
and precisely his view of individual rights. The fate of our
should not be at the mercy of hidden standards.
* * *
with this project, special thanks are due to TAFOL member Thomas
A. Bowden, who suggested that TAFOL
make a submission on the Souter nomination,
and who contributed a great deal to the content of the submission. Mr.
Bowden, a Baltimore lawyer, also published a substantial op-ed
piece on David Souter
in the September 13, 1990 edition of The Evening Sun, a major Baltimore
daily newspaper. The op-ed, entitled "Souter Must be Forced to Reveal his Principles," stated
[I]f Souter is allowed to sneak onto the Supreme Court without
being forced to
make his principles clear, then Bush will have
accomplished a cover-up much
more heinous than Watergate---a philosophical
cover-up that could haunt us
TAFOL'S CAMPAIGN AGAINST MANDATORY PRO BONO SERVICE
TAFOL's position paper on mandatory pro bono service was distributed
to all state bar associations, certain professional and general
interest publications, and others.
A large portion
of the position paper was reprinted in the August 9, 1990 issue
of The Los Angeles Daily Journal, an important California
professional newspaper, under the title, "Mandatory Pro Bono
Equals Slavery." The portion of the position paper published
took up approximately a quarter of the newspaper page, and was
introduced by a statement identifying TAFOL as a national organization "that
aims to advance Objectivism, the philosophy of Ayn Rand, as the
basis for a proper legal system."
of the position paper were incorporated into a spirited op-ed
written by TAFOL member and Texas lawyer Michael J.
Mazzone which appeared in the October 22, 1990 issue of Texas
Mr. Mazzone's piece, published under the title, "Mandatory
Pro Bono: Slavery in Disguise," responded to a previously
published article by Charles Herring, Jr. advocating mandatory
pro bono. Mr. Mazzone argued in part:
In a civilized
society that cherishes liberty, individuals pursue their values---such
as pro bono---by mutually agreeable arrangements;
they do not instigate a mob
(the "majority," the Bar,
etc.) and take what they want by force (a law, a disciplinary
etc.). Of all people, lawyers should not advocate forcing their
others, whatever the sought-after values may be. Lawyers
have always prided
themselves on defending liberty; we should not
attack it, or sit idly by while
TAFOL's position on this issue was also aired in the form of a
letter to the editor of The Los Angeles Daily Journal submitted
by Steve Plafker and published in the June 5, 1990 issue of that
newspaper. The letter commented on an earlier editorial favorable
to the notion of mandatory pro bono service and included the following
The principles of liberty do not permit the use of licensing laws
to force any
person to provide services. If all men are endowed
with unalienable rights, no
one can be stripped of any of his
freedoms by choosing a particular
#7 Fall 1990
There is no justification for treating lawyers like public fodder,
matter how mild the imposition seems
to its proponents.
TAFOL would appreciate hearing from members who notice mentions
of TAFOL's position paper on this issue, and welcomes suggestions
for further distribution of the position paper.
LETTERS TO THE EDITOR AND OP-ED PIECES
PUBLISHED BY TAFOL MEMBERS
Steve Plafker, Vice President of TAFOL, recently had a portion
of a letter to the editor published on the topic of the integrated
bar. The letter was published in the August 1, 1990 issue of The
California Lawyer and stated:
The courts take an inherently contradictory position on the integrated
They want the states to be able to force all lawyers into
an organization that
will take public positions and, at the same
time, preserve the free speech rights
of the members. This cannot
be done. Any government that forces an individual
into an organization
thereby violates that person's rights. If the organization
takes any public position, the right of free speech
* * *
reported above, Tom Bowden, a TAFOL member,
published a hard-hitting op-ed piece on the Souter nomination
in a major Baltimore daily newspaper, and professional
publications in Texas and California published
pieces on mandatory pro bono service submitted, respectively, by Michael
Mazzone, a TAFOL member, and Steve Plafker, TAFOL's Vice
* * *
we have received word from Ivo Cerckel, a TAFOL member in
Brussels, that a Belgian financial newspaper
published an article by him entitled, "Insider
Trading, So What?"
in TAFOL's letter to members on August 20, 1990, TAFOL plans
to focus its resources on a few important (and more
outward-looking) projects in the coming year, in particular preparing
to submit an amicus curiae brief to an appellate court. Consequently,
this is the last issue of the newsletter in its current format.
Future newsletters will report briefly, informally, and intermittently
about the activities of TAFOL and its members. As always, TAFOL
welcomes submissions from members and others.
* * *
calling for volunteers to serve on the following committees:
Ayn Rand Institute Pro Bono Committee: Volunteers would
make themselves available to provide pro bono legal assistance
to the Institute.
Topic Committee: Volunteers would undertake to follow
developments in assigned areas of the law and identify amicus opportunities.
to TAFOL if you would like to work on one of these committees.
* * *
particularly to thank member Tom Bowden for his extraordinary
efforts and valuable intellectual contributions
in publishing the newsletter.
Copyright © 1990
The Association for Objective Law. All rights reserved.
The Association for Objective Law is a Missouri non-profit corporation
whose purpose is to advance Objectivism, the philosophy of Ayn
Rand, as the basis of a proper legal system.