Vladimir Berkov

But why exactly? What is the reasoning behind this statement?

If animals indeed have no rights whatsoever, then anything done to them cannot be immoral. Torturing an animal would no more be a violation of rights than torturing a rock. Perhaps you think that mistreating or having sex with animals causes psychological harm for the human and thus should be avoided. This may or may not be true, I think it is very dependant on the person and the context. So much so, that blanket statements such as "bestiality is wrong" have no foundation in logic or fact. The fact that you don't think bestiality benefits someone's life doesn't make it immoral. You have to show that in all instances and situations, bestiality is anti-life for the idea of bestiality to be immoral. If you cannot, bestiality is then no different than any other sexual orientation which for some people can be harmful but for others completely harmless.

Still, I think it is strange to say that having sex with an animal is wrong while killing the animal is not. When dealing only with humans, for example, murder is generally seen as a worse offense than rape. This is, of course, even assuming that sex with an animal is non-consentual. Animals certainly have sexual urges and instincts of their own. Thus I think it is far from clear that bestiality is even "rape" in the real sense.

I never intended to argue it is a work of romantic fiction, simply that the work isn't malevolent. I am personally a fan of what most here would call "naturalistic" fiction, and think many of Rand's comments on it are unfounded, but that is not the purpose of this thread. My purpose was simply to defend Forrest Gump as a (relatively) good work of fiction.

I think it is rather strange to try to make the only purpose of a police force that of apprehending criminals. The essence of having a police force in the first place is to protect the public from criminal injury and activity. The apprehension of criminals, while important, is only important because you need to apprehend criminals to protect the public. This is clear in situations in which apprehending a suspect becomes a grave risk to the public. There are situations in which a chase must be abandoned because continuing it, while perhaps resulting in the suspect being caught, causes too much of a risk to other cars or pedestrians. Certainly is isn't a duty of the police to protect people from all injury. This is why you can't sue the police when you get mugged and they weren't there to save you. But it should be a duty of the police to attempt to prevent the criminal injuries they are aware of. And bombs clearly belong in this category. There is also the practical advantages of having a police bomb squad, namely the consolidation of training and equipment, and the ability to best aquire any evidence regarding the bomb to be used to catch a suspect or in a criminal trial.

First of all, Gump obviously has a mental handicap. So any assessment of his morality or virtue has to be tempered by that fact. Still, look at his actions and values. What does he value? He values doing what he enjoys, his family, and his friends. These are all rational values. What does he not value? Awards, meeting celebrities, monetary wealth, etc. People whose only goals are that sort of things are not likely to be very moral anyway. Gump doesn't act with malice or with duplicity. In fact, this in some ways hurts him because it is hard for him to see that other people DO routinely treat people that way. Forrest Gump is in large part, a comedy, although there certainly are strong dramatic elements to the story. Too, I think you have the premise of the movie wrong. It isn't that great values can be gained by having no values of your own. If it were, Gump would be living happily with his still-living mother, Bubba, Jenny and their son. Those are the things Forrest Gump values. The shrimp company, celebrity, medal of honor, etc. he doesn't see as values. That is one of the main humorous things about the movie, that this man has all these things many other men strive towards (money, fame, etc) but he doesn't care about them at all. As for the shrimp company, I think the movie is quite clear that the running of the business enterprises, investments, etc is pretty much run by Lt. Dan. Forrest Gump basically just gets checks in the mail by the end of the movie. All in all, I just think that you are being overcritical of this movie instead of looking at the positive message and the humor it contains.

Wynand and Stadler are not main protagonists in Rand's novels, they aren't really protagonists at all. And as you say, Dagny has no real internal conflict. Her mistake is more akin to one of mathematical calculation, rather than of fundemental moral conflict. Rand's ideal hero, such as Galt is a person of complete moral and physical integration and perfection. Galt has no internal conflict and no real flaws. Thus while interesting in the respect of being a depiction of the "ideal man" he is not interesting in the respect of being an interesting fictional character. The perfect may sometimes also be the boring. I don't think this was the message or point of the movie at all. The point was how Gump, though mentally slow, was moral and virtuous person whose almost childlike innocence carried him through situations in which more mentally skilled people failed. Whether what Gump does could actually happen in real life is irrelevant to the story, in the same way that the science behind Galt's motor is irrelevant to Atlas Shrugged. The essential point of Forrest Gump is how Forrest reacts to the people around him, not whether his fishing boat should have sunk in the storm or not.

I would actually say that "cardboard" characters describes romantic fiction better than naturalistic. For instance, look at characters like John Galt or Howard Roark. The fact that they are written as to emphasize one element alone makes them "cardboardish" after a fashion as they are so transparent and uncomplicated. Contrast this with the characters in many naturalistic works, where the characters, having no need of being representative or essentialized, can have lots of internal conflict, mixed motives, personality quirks, etc. This is one reason why Ayn Rand's villains are in many ways more interesting than her heroes,

Another important consideration is the effectiveness and costs of different punishments. For example, a system in which the punishment for all crimes is life in prison would likely be untenable regardless of its philosophical underpinnings. I thus think the creation of a penological system is much more economics-based than philosophy-based. A good penological system should seek to create disincentives proportional to the incentives for the offenses. For instance, life in prison is too great a disincentive for stealing a banana. Imposing such a severe punishment would reduce the number of banana thefts, but it carries a lot of "dead weight" costs because reduction of banana thefts can likely be accomplished with the imposition of a $500 fine. Too, you have to weigh the value of rehabilitation with the value of punishment. Putting people in prison causes great hardship for the inmate's ability to function in society even when they are released, and in many ways putting some people in prison makes them more dangerous to society when they get out than when they were put in. Essentially, the nature of the offense is just the starting point. You also have to look at the cost of imprisonment in monetary terms, in terms of rehabilitation, incentives/disincentives for other offenders, etc.

My point is not that that the fact that such an issue exists in another area of law means the issue is settled. I only mean to point out that the sweeping generalities often used on this thread ignore many real legal issues which would likely cause trouble for Objectivists. IE, situations where if the broad generality were adhered too it would require the abandonment of specific areas of law which I think Objectivists would want to exist. As to strict liability, I agree with you that the entire concept makes me uneasy. In some areas (strict employer liability) the concept makes sense, as it is really an outgrowth of the idea of agency. But in other areas such as strict products liability I think the concept is flawed, although the alternatives to strict liability aren't great either.

One thing you have to remember is that much of criminal law (which Objectivists would support) is based on the criminalization of conduct regardless of its actual outcome. For instance, this includes all inchoate offenses plus any the fact that criminal law does not base criminal liability on only "bad" net outcomes.

I think there is a lot of confusion of issues going on in this thread, darkunicorn, so I'll try to sort them out in a coherent way so that we may focus in on a useful discussion. There are three main issues here regarding the law. 1.) Substantive - this concerns what the statutes actually say on the books, plus the relevant case-law interpreting them. 2.) Procedural - these are the rules of legal procedure which the parties and courts must follow. 3.) Human Element - this concerns the personal decisions people make concerning the law in places where the law gives them discretion. Odden's argument was basically that our current legal system is fatally flawed in all three areas. Your argument from what I can tell is that the procedural and human elements are what are leading to the problems. I would say that you are misplacing blame on the rules of legal procedure which should instead be laid solely at the feet of the people involved in the legal system (aka the human element.) The law doesn't state what outcome a jury should reach. If you don't like the OJ Simpson verdict the blame rests with one group, the jurors, who apparently you think were irrational in their deliberations. But this is not really an argument against our legal system. It is simply a claim that the general public (and hence jurors) are irrational. The proper solution is thus not to upend the legal system but to get the general public to think and act in a more rational matter. This is from what I can tell, the essence of what the Ayn Rand Institute tries to do. Your proposal for "objectivity in the law" really has nothing to do with your claim that the system is biased in favor of plaintiffs. Whether the system is pro-plaintiff, pro-defendant, or neutral has nothing to do with whether the law is objective or not. You can have objective law which leads to any one of the aforementioned results. Whether the system should be "tweaked" to realign the balance between plaintiff and defendant is a complicated question for legal scholars. There is no objectively mandated balance which must exist, outside the requirements of justice which in general terms, require that legitimate plaintiffs should recover and innocent defendants should not be forced to pay.

The fact that legal work is largely a matter of individual judgment doesn't mean it is a matter of arbitrary opinion. For instance, the fact that different jurists will give different weights to the same factors doesn't mean their decisions were arbitrary. It simply means that people have different minds. The reason why innocent people dread going to court is that even if they "win", they still lose in the sense that they had to go through an expensive, time-consuming and stressful legal process. In civil matters, going to court is essentially weighed against the costs of settlement. Since going to trial is very expensive settlement often simply is a better option. I suppose you can blame part of this on the way our legal system works, in that plaintiffs often have little disincentive to legal action since most plaintiff's attorneys work on a contingency fee basis and if the case is lost the plaintiff is really no worse off than when he started. But changing this would be a very complex and challenging task as you wouldn't want to bias the system so much in favor of defendants that legitimate plaintiffs are unable to recover legitimate damages.

Too late.

All I can say is hopefully you never become a lawyer.

For instance, some statutes ban "assault with a deadly weapon." What is a deadly weapon? The statute does not and cannot say. If the statute drafters explicitly list what they think are deadly weapons, such as guns, knives, bombs, etc. that would serve your purpose since in your ideal world, the only valid information about a statute can come from the statute itself. The problem is that such a list is necessarily underinclusive. For instance, let's say a man tries to beat another man to death with a tire iron. Under a statute which explicitly lists the weapons, he might not be guilty of the offense since although he did assault a man with a deadly weapon, the weapon wasn't enumerated in the statute. That is why it is useful to have case law as well as the input of judges and juries, because they will over time determine what type of facts apply to the statute. For instance, you won't find many cases in which a peashooter is found to be a deadly weapon. You probably will find cases where tire-irons, baseball bats, etc. have been found to be so. The problem is, that you basically proved my point for me. In trying to assess the constitutionality of the proposed laws you used legal and ethical references OUTSIDE the words of the statute. For instance, it would be perfectly reasonable for another person to find a law against hiring a hitman IS constitutional based on the clause. You have essentially created an interpretive framework for assessing laws which may infringe on the clause, and that is exactly what caselaw does. Caselaw is where judges over time create useful frameworks for dealing with interpretive and judgemental matters. Proper precedent doesn't distort the meaning of the statute, it clarifies it and makes it easily applicable in future cases. Good precedent and case law makes the law consistant and predictable. For instance, with no case law a district judge in Kansas might find a law against hiring hitmen unconstitutional whereas a district judge in Texas finds a similar law constitutional. The options are either to let such contradictions exist or else have a higher court judge the matter itself and determine which judge's interpretation (if any) is correct. Once the higher court makes that decision, it gives all district judges in all states a way to consistantly apply the statute via prior precedent. This is why, even beyond any ethical or statutory interpretation arguments, it would be absurd to essentially deal with every legal issue de novo. Every judge would in every case have to determine for himself what the statute means, how it is applied, what factors to use, how to weigh the factors, and what decision is consistant with the statute. This would be an enormouse drain on judicial economy as well as resulting in poor decision-making. District and state judges are often bright, but also often lack the interest or skill of appellate judges in constitutional interpretation. Your method essentially requires every judge to act like a Supreme Court justice. I am not sure how to explain this better to you. I don't know if you have any legal education whatsoever, but for someone like myself who does have a legal education your proposed "solution" just appears vastly unworkable and illogical. I agree that much of the current law (both statutory and case-law) in this country is flawed. But the problem is not the system but rather the people in the system. It isn't the appellate system or principles of stare decisis which result in non-Objective law. It is the fact that most people (including lawyers and legislators) are not Objectivists and thus don't operate by Objectivist principles. The solution is not to scrap the system, but to get right-thinking people INTO the system primarily as legislators, but also as judges, who can get the law back on track. If Objectivists want to see change in the law that is the only way it is going to happen. It is not going to come about by upending the very framework of our legal system which has hundreds of years of tradition behind it. Once you see legislators and Supreme Court justices with an Objectivist mindset the problem will essentially solve itself.

The difference between law and math/science is that in math or science there is usually one correct correct answer to any given set of facts or preconditions (excluding quantum mechanics perhaps.) 2+3 will always equal 5, regardless of the person doing the calculation. In math you can't say "I think I will give the 2 less weight and thus 2+3 = 4 in this instance. In law you can and in most cases have to give weight to different factors which is a highly unscientific process. The problem is it is basically impossible to write a statute which will cover all possible applications or legal situations. If there was, there would be no need of common-law or case law because it would be obvious what the legal solution was based simply on the statute in every instance. Case law isn't required because there are ambiguous statutes, it is required because of the nature of statutes. Ok, tell me what the following law means and how it will be applied. "Congress shall make no law abridging the freedom of production and trade." Is a law outlawing child labor unconstitutional? What about a law banning the trade of child pornography? What about a law intended to stop software piracy that incidentally abridges trade? How about a law outlawing production of hydrogen bombs? Do prisoners have a right to produce and trade while serving time? Does this law apply to the states or just the federal government? Etc, etc, etc, etc. The statute as written HAS to be applied to the legal situations which the statute may never have envisoned or which occur on the boundaries of its application. Simply look at the jurisprudence which surrounds the current Bill of Rights. I have never insisted that all aspects of law are subjective. I have only said that there will always be an element of subjectivity in the law and it is insane to dismiss our current legal structure simply because those elements are present in the judge and jury system.

Because in the law there often simply isn't one correct conclusion mandated by the facts. It often involves several factors which must be weighed, or facts which may be deemed important or not. For example, there isn't even a real "scientific" definition of "reasonable doubt." I am not sure how any legal system can work well without case law. Without some type of stare decisis principle in the law there is no way for people to tell how the law will apply in future cases based on past decision, any decision could be different than any other decision. I am not sure how you pointed out that the subjectivity inherent in the law can be changed. All you said was that juries should be more qualified, which is a completely different issue. Obviously deciding matters of fact ultimately result in the application of the law, but that doesn't mean that the jury is deciding issues of law. The judge essentially tells the jury what the law is, the jury then decides based on the evidence whether the law has been violated essentially by looking at the elements of the offense. Except for in cases of jury nullification, the jury acts as the factfinder and not the decider of law. Even assuming you somehow have all judges have identical views on statutory interpretation (which is something which exists only in the realm of fantasy anyway) there is still the possibility for divergence of opinions. All "strict constructionists" don't have the exact same opinion on a given clause. Yes, there are jurists out there who try to broaden the meaning or change the meaning of a statute from the bench. And yes it is a problem. But it is a separate problem from the fact that judges inherently will always have differing opinions on the law based on the simple fact that they are all individual people rather than a collective hive-mind.

Law as a field of study is simply more subjective and is subject to different and less accurate standards of proof than other fields such as science or mathematics. With math for instance, either the math is correct or it is incorrect. In law there may be multiple correct yet contradictory answers. This does not mean all law is subjective, it simply means law always will have a subjective component.

The thing is, that the case law surrounding a statute IS what that statute means. Again you seem to think there is an objectivity in the legal system which simply does not and cannot exist. Again, I do not have enough knowledge of the case-law regarding anti-trust to know whether this is true or not. In the first place, juries decide only matters of fact, not matters of law. Judges decide matters of law. And regardless of how well-qualified juries or judges are they are inherently subjective. Different judges and juries will have different takes on the law and the facts. This is why the legal system is tiered. If every judge could always objectively come to the same conclusion there would be no need for appellate courts or even a supreme court. And often even appellate courts are split on a legal issue, or the supreme court reverses itself.

I just did a cursory search of 15 U.S.C 1, and just on Westlaw alone there are 546 pages of references, cross-indexes and the like explaining or amending the statute. Thus there is certainly more to go on than the one sentence from the statute you quoted. When assessing what the law means, you virtually NEVER go by the plain words of the statute. The job of a lawyer is to find out how past judges have interpreted the statute and what past cases with binding precedent have held. There is no law out there in which a simple reading of the words of the statute ends the inequiry into what the law means. And again, there is never an "objective" criteria to tell if the law has been violated which somehow doesn't involve a fact-finder (either jury or judge.) There isn't some all-knowing, all-seeing entity which we can ask whether the law has been violated or not. The best we can do is a jury or a judge, and both are inherently subjective. If neither facts or reason will convince you, then there is no point in carrying on this conversation with you.

But we are talking about law here, not philosophy or logic. In the law, there is not a separation between being found guilty and being guilty. Once someone is found guilty in a court of law, they ARE guilty for legal purposes. They might try to appeal their conviction alleging they are actually innocent, etc. but the way the system works is to determine as best as possible whether someone is guilty or not. Since we are talking about law here, not objective, independant reality the legal use of the word "guilty" is the only one that is relevant. Again, you need the actual complete statute and annotations to determine whether something has been sufficiently defined or not. At least, give me a cite so I can go research it on my own to verify your allegations. In a way, your complaint is simply true of our entire legal system. All people have to judge their actions on what a judge and jury may decide in the future based on any number of rational and irrational circumstances. So far, I haven't seen any evidence from anybody in this thread to show that anti-trust is any different than any of the other laws currently on the books.

Not really. And the laws in question aren't really prior restraint, any more than "attempted murder" or "driving while intoxicated" is prior restraint. I don't have the time right now to research this on Westlaw, but I know that anti-trust laws exist by statute. With any crime you "are guilty if and only if you are found guilty" as that is a logical truism. What I think you are getting at is that it is hard to tell if you have violated anti-trust until you are charged. That is a separate problem from the law being non-objective, and is rather a problem of the law being too broad or too complex for everyday people to understand and follow. Yes, some law is too broadly worded but that is assuming you only rely on the statute in question and not any case-law. All law is inherently subjective in the sense that it requires interpretation by judges. I think the big problem is not poorly worded statutes but rather the over-abudence of things which are criminalized.

Preventing possible future damage is not the same as a presumption of guilt. It merely is moving the law's intervention further up the causal ladder. Much of law is based at its root on probability. How is anti-trust non-objective? So are you saying that no law is objective? You are ignoring the fact that future value IS a value. For instance, the value in an unimproved lot covered in hardwood timber is not the present market value of cut lumber, it is the future value of the lumber discounted to the present. The monetary value of unimproved land is thus based on any future values people might have for it, plus whatever marginal present utility it has. Unimproved land can have a present utility. For instance, if I bought a large area of unimproved land for hunting or hiking or just as a nature preserve. It has a present utility even though no human effort has gone into improving it, and in fact human improvements would likely destroy such a utility. Labor-based theories of property may be useful for settling legal disputes, but it would be foolish to require labor in order to claim property rights.

Objectivists in general need to be careful in their use of the phrase "non-objective law" in that it has two meanings. First is that the law in question does not accord with the values of Objectivism as an ideology. Second is that the law has a non-objective meaning or application. A law with an objective meaning and application is one in which, "Men 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 it." Your post argues that regulation is non-objective under this second definition but I think this is clearly false. Regulation is not inherently non-objective law any more than any sub-variety of legal statutes is inherently non-objective law. The punished crime in violating a regulation is not failure to prove innocence, it is the result of the government's proof of the violated regulation. The government essentially can't say "We think you are guilty of some crime or another, you have to prove you didn't commit any violations." The government via the agency has to present some sort of concrete violation, and both sides go before the judge who decides the case. There are differences in administrative law proceedings vs. regular criminal or civil law, but those differences alone don't make regulation non-objective. A non-objective law is essentially a law which nobody can know what it means or how it applies except the enforcing authority. Thus a non-objective law is almost exclusively non-statutory and has no precedent to give any insight to its effects. Statutory law, while it may contain words which are arbitrary will eventually build up enough case precedent to give the people prior knowledge of how it applies. This is true of all statutes, whether they criminalize murder or minimum-wage violations. Some forms of regulation may be non-objective. For example, a board which has complete control over zoning with no codified rules, procedures, chance of appeal or prior precedent. In such a situation a party goes into the proceeding "blind" to both the law AND its application in his case. What I think you might have been trying to get at is that regulation is non-Objective in the sense that it doesn't accord with the principles of Objectivism as an ideology. That may actually be true, but it is also far less useful an assertion because it takes the question out of the realm of legal interpretation and into the realm of politics.