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Religious Liberty or Religious License? Legal Schizophrenia and the Case against Exemptions

Tara Smith – Journal of Law and Politics (25 April 2017)



This paper seeks to demonstrate that religious exemptions are unjustified in theory and corrosive, in practice. By splintering the ultimate sovereignty of a legal system, they fracture its integrity and undermine its ability to fulfill its mission.

My analysis proceeds from the function of the legal system – which is the basis of the system’s authority – to show how the practice of granting standing permission for some people to violate generally applicable laws is inimical to that system’s efficacy and an abuse of its authority. The injection of conflicting directives to the officials charged to enforce the law (Go by the law; Go by those people’s consciences) necessarily subjectivizes the use of the government’s coercive power, since those officials have no principled means of deciding between the two directives. The tremendous proliferation of exemptions over the years testifies to the absence of an objective standard for governing this.

After establishing the central failings of exemptions, the paper takes up four specific arguments that are frequently offered in their defense: appeals to First Amendment text, the ideal of equality, the ideal of personal liberty, and the profound value of religious identity for many individuals. Careful examination demonstrates that none of these successfully justifies exemptions.

Finally, the paper considers the grounds on which differential application of generally sound law might ever be appropriate, finding an important difference between religiously based exemptions and other legitimately exceptional treatment.


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On 9/13/2013 at 9:16 AM, Boydstun said:

Robert Nozick (1938–2002)

2001 Interview


Reading Nozick – Essays on Anarchy, State, and Utopia

Jeffrey Paul, editor (1981)

This collection includes Nozick’s 1971 paper “On the Randian Argument” (which is also contained in Nozick’s own collection Socratic Puzzles and has been put online), and it includes the 1978 response “Nozick on the Randian Argument” by Douglas Den Uyl and Douglas Rasmussen.


The Cambridge Companion to Nozick’s Anarchy, State, and Utopia

Ralf Bader and John Meadowcroft, editors (2011)

More recently: ASU - An Advanced Guide --Lester Hunt (2015)

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Objectivism does not need academic recognition. If it does get it, all the better, if it doesn't get it, too bad. But philosophy is not made for discussions between professional philosophers. Objectivism was not designed in this purpose. Otherwise Ayn Rand would not have expressed her ideas that way, and she was perfectly aware of what she was doing.

Edited by gio

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I either agree or disagree, depending on what it would mean for a philosophy to ‘need’ something. Given what I take to be our individual yet shared long-term interests, we need it.

It is true that Objectivism was not created for the narrow purpose of discussion just between people who are paid to teach philosophy; it was created for general use by all people, who have a philosophy (my punctuation is correct). Insofar as it is in our best interest to live in a rational society, it is in our best interest that rational ideas be widely accepted. This implies that they should be widely understood, which in turn implies that they should be widely heard of. In light of the nature of contemporary civilization and culture, today’s academicians are the precursors to tomorrow’s intellectuals and academicians. Academicians are not the sole forces shaping future culture, but they are extremely important, and thus I cannot accept “too bad for you” as the proper response to any academic resistance. On the contrary, we “need” to redouble our efforts, to the extent that we can figure out how to do so. Which is not to deny that banging one’s head on the wall can cause headaches.

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23 February 2018, 7-10pm, APA Central, Palmer House, Chicago 

American Association for the Philosophic Study of Society Topic:

Arguments For and Against Liberalism

Chair: Shawn Klein (Arizona State University)

Speaker: Stephen Hicks (Rockford University)

Commentators: Jonathan Anomaly (University of Arizona) / Asborn Melkevik (Harvard University) / Kevin Vallier (Bowling Green State University)


Of related interest at the same APA Meeting:

The Promise of Lockean Tacit Consent Theory

Jeff Carroll (University of Virginia)

ABSTRACT - John Locke is strongly committed to both voluntarism and a consent theory of political obligation. John Simmons has defended both Locke’s voluntarism and Locke’s consent theory of political obligation as being true. Obviously, there have been very few express consenters. This means that Locke’s concept of tacit consent has to do most of the heavy lifting in generating political obligation. Simmons argues that it is not sufficiently strong. The implication is philosophical anarchism. I believe that tacit consent has spent more time in the gym than Simmons. Though mere residence does not qualify as tacitly consenting, a not too distant scenario in which individuals are presented the choice to “emigrate or stay and consent” and they opt to stay, I believe, would. By responding to Simmons’s critique of “emigrate or stay and consent” choice situations, I provide a Lockean path out of philosophical anarchism.


A Conventionalist Account of “Natural” Rights

Tristan Rogers (University of Arizona)

ABSTRACT - Hume observes in the Treatise that the “rules, by which properties, rights, and obligations are determin’d, have in them no marks of a natural origin, but many of artifice and contrivance” (p. 528). Consequently, when we talk of property as a natural right, it is difficult to do so without noticing things like easements, liabilities, zoning, licensing, etc. Call that the conventionalist challenge. Eric Mack, in a series of papers, attempts to mitigate the force of the conventionalist challenge in defending what he calls a natural right of property (Mack, “The Natural Right of Property,” 2010). This paper argues that Mack’s natural rights view does not successfully meet the conventionalist challenge, and further, that a suitably modified Humean conventionalist account can explain the conviction that we have rights without appealing to natural rights.


Edited by Boydstun

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