The Scope Of Law

[Proverb]

My concept of laws I feel is skewed by my lack of understanding. I often take for granted the nature of law and seem to always liken it to the concept of a rule book.

When I think about a government formed upon a rational constitution and as an entity with a monopoly on retaliatory force, it's hard for me to see where the modern concept of law fits in. Can someone at least lead me in the right direction?

[DavidOdden]

When I think about a government formed upon a rational constitution and as an entity with a monopoly on retaliatory force, it's hard for me to see where the modern concept of law fits in. Can someone at least lead me in the right direction?

For which purpose: understanding the kind of governments that match modern legal concepts, or understanding the philosophy of law of an Objectivist government? I assume you are referring to the latter. Broadly speaking, you're referring to natural law theory. Lon Fuller has a nice short essay "Eight Ways Not to Make Law" which points to some essential desiderata (though by no means all).

[slave]

Lon Fuller has a nice short essay "Eight Ways Not to Make Law"

Do you know where I can find this essay? I tried searching for it, but I failed to locate it.

[DavidOdden]

Do you know where I can find this essay? I tried searching for it, but I failed to locate it.

The main problem you're facing is my dumb paraphrase of the title, "Eight Ways to Fail to Make Law", from his 1964 book The Morality of Law. It has been reprinted at least once, in Joel Feinberg & Jules Coleman (eds.) Philosophy of Law, 2004.

[Proverb]

I guess my short question would be: in an Objectivist government what would be parallel to the modern concept of law? And following: is law necessary in an objectivist government?

I'll look into that essay, thank you.

[DavidOdden]

I guess my short question would be: in an Objectivist government what would be parallel to the modern concept of law? And following: is law necessary in an objectivist government?

The concept "law" refers to normative statements which will be enforced by the government, and they are obligatory in an Objectivist government (or indeed any government). Which statements are valid examples of law is a more complicated issue, but one obvious example is a law prohibiting stealing; also murdering, or beating someone up. Where the particularly Objectivist content comes in is in stating general principles about what are valid laws. Scalia has good and bad aspects to his judicial behavior. What is good about him is that he rejects the modern "whatever I feel like" approach to reading law -- he thinks that words actually have somewhat fixed meanings so that you can't freely interpret a law as saying whatever random thin you want. OTOH he is rather obnoxious in considering all arbitrary pieces of legislation to be equally valid -- he sees nothing wrong with a law against abortion if that is the will of the people, and he sees nothing wrong with taxation if that is the will of the people.

An Objectivist philosophy of law will include the Scalia-like "words have meanings" POV, but it will also restrict possible laws to statements that fulfill a specific purpose -- protecting rights, which is the only function of government. That would mean (1) that any law which is expressly stated as violating that purpose would therefore be instantly stricken by the courts as invalid and (2) any law whose wording is unclear so as to allow a rights-protecting and a rights-violating interpretation must be construed as intending only the rights-protecting interpretation, and (for reasons pertaining to the "ignorance of the law is no excuse" theme that pervades Fuller's 8 ways) said law must be redrafted to eliminate the ambiguity. The central concern of law should be making explicit which actions violate rights and are therefore proscribed. Although good people should know what those acts are, sometimes there is unclarity as to how to balance opposing considerations. For example, a sophist could excuse fraud by appeal to caveat emptor: the law needs to distinguish between fraud and slovenly buying habits.