What is a good example of an objective law?

[Dr. Radiaki]

Ayn Rand stresses the importance of a government that supports and enforces objective law. What might be a good example of an objective law? Does objective law exist in North America today in any form? What makes a law subjective, as opposed to objective?

[Chops]

An objective law is one that is clear in its definition. One knows the punishment and the specific crime.

An example of an objective law would be "no driving faster than 55 miles per hour" under penalty of $10 per mph over the limit. The definitions are clear. (The morality of such a law isn't in question, but the limitations are clear, making them objective).

The classic example of a subjective law is antitrust. As an exercise, try to define the clear line that someone crosses to violate antitrust. It can't be done, because the rules aren't objective. They are exclusively on a "case-by-case" basis, and different judges would rule differently.

[EC]

I disagree with the above answer an "objective law" is a law that is created by objective principles, such as every man has a right to life therefore objective laws are created outlawing murder, etc. In Chops example what would be the principle behind creating a law such that one can't drive over 55 mph? There is none, it's arbitrary, and not objective.

[DavidOdden]

Chops gives the correct answer from the Objectivist perspective. See the interview "Objective Law" at 2:25.

An objective law is a law which defines objectively what constitutes a crime or what is forbidden, and the kind of penalties that a man would incur if he performs the forbidden action. "Objective" means defineable, graspable by a rational consciousness.

There is a distinction between a just law and an objective law, and laws should be both just and objective.

[eriatarka]

An objective law is one that is clear in its definition. One knows the punishment and the specific crime.

An example of an objective law would be "no driving faster than 55 miles per hour" under penalty of $10 per mph over the limit. The definitions are clear. (The morality of such a law isn't in question, but the limitations are clear, making them objective).

Does this imply that common-law is essentially non-objective?

[EC]

Chops gives the correct answer from the Objectivist perspective...

Thanks for the clarification David.

[DavidV]

Does this imply that common-law is essentially non-objective?

Why do you think that? As long as court rulings are clear and unambitious, I don't see any reason why it should be any less objective. You could even argue that it is superior to statutory law, since it has been tested and applied in practice.

[DavidOdden]

Does this imply that common-law is essentially non-objective?

Not per se, if you understand "common law" to refer to "judge-written law". Statutory / regulatory law and common law have in common the fact of being actually recorded in an objective form. The most important difference is that statutory law is usually shorter and more direct in its statement, and of course people that is what people usually think of as being "the law". A common law precedent is usually harder for citizens to understand and concretize, although the common law prohibition against murder is pretty simple (such common law crimes don't seem to exist in the US anymore, having been put within the purvue of statutory law). There is a real difference between "actually graspable" and "theoretically graspable", so I find the Fair Use concept to be only theoretically graspable, though I know that some people who have gone to law school and focused on IP law can actually get a good grasp of Fair Use law. Whereas your average law against murder is pretty trivial to grasp. The Bronston standard for perjury is also pretty easy to grasp, even though it's not encoded in any statute.

[Qwertz]

ARB offers an audio lecture by Arline Mann called The Rationality of the Common Law, which is on my list of things to buy.

Lots of the common law is pretty objective. For example, waste (in property). It happens when the holder of a tenancy does damage to the reversionary interest. It's all very straightforward and well-defined, without resort to the sort of "balancing tests" that are the hallmark of non-objective law.

~Q

[adrock3215]

An objective law is a law which defines objectively what constitutes a crime or what is forbidden, and the kind of penalties that a man would incur if he performs the forbidden action. "Objective" means defineable, graspable by a rational consciousness.

I'm not sure I understand what this means. If I substitute the second sentence into the first, I end up with: "An objective law is a law which defines a definition graspable by a rational consciousness what constitutes a crime or what is forbidden..."

[ruveyn ben yosef]

An objective law is one that is clear in its definition. One knows the punishment and the specific crime.

An example of an objective law would be "no driving faster than 55 miles per hour" under penalty of $10 per mph over the limit. The definitions are clear. (The morality of such a law isn't in question, but the limitations are clear, making them objective).

The classic example of a subjective law is antitrust. As an exercise, try to define the clear line that someone crosses to violate antitrust. It can't be done, because the rules aren't objective. They are exclusively on a "case-by-case" basis, and different judges would rule differently.

Does an Objective law have to be just?

If not, and your conditions of definiteness and clarity are all there is, then the nasty Nazi racial laws fits your description. I suspect you did not have this in mind.

Objectively determined conditions and properties might be necessary for Objective law, but I doubt whether they are sufficient.

ruveyn

[DavidOdden]

I'm not sure I understand what this means. If I substitute the second sentence into the first, I end up with: "An objective law is a law which defines a definition graspable by a rational consciousness what constitutes a crime or what is forbidden..."

Try this: "An objective law is a law which defines in a manner that is defineable and graspable by a rational consciousness what constitutes a crime or what is forbidden, and the kind of penalties that a man would incur if he performs the forbidden action." Edited June 16, 2008 by DavidOdden

[DavidOdden]

Noting the content of the first post in this thread, I think it would be useful for those interested in the topic to listen to the lecture "Objective Law", available via the registered users' page on the ARI website. Rand starts by discussing the proper function of law, and its relationship to "rights", and then moves specifically (and more extensively) to the notion of "objective law".

[adrock3215]

Try this: "An objective law is a law which defines in a manner that is defineable and graspable by a rational consciousness what constitutes a crime or what is forbidden, and the kind of penalties that a man would incur if he performs the forbidden action."

I suppose my error is in the fact that I associated "objective law" with proper, moral principles. But, as I am now seeing, there can be an improper objective law, right?

[DavidOdden]

I suppose my error is in the fact that I associated "objective law" with proper, moral principles. But, as I am now seeing, there can be an improper objective law, right?

I find that the right way to understand such notions is in genus-species terms. The most basic question is "What is law?", something that requires reference to the purpose of law, and the proper purpose of law (as distinct from the much broader question "What is morality?") is the protection of rights. Once we are clear on what law is, we can distinguish between objective and subjective law. There are many objectively stated laws which nevertheless do not satisfy the proper purpose of law, given man's nature as a rational being. For millenia, that nature simply was not correctly understood, and the law was not proper law. But for millenia, man has had objective laws (alongside totally subjective "whim of the sovereign" law).

[RationalBiker]

Does an Objective law have to be just?

I think you may be inadvertently equivocating Objective (big O associate with Objectivism) with objective. Chops defines it properly, and David points out that there is a distinction between objective law and just law. So yes, Nazi law may have been objective, but it was not just.

[softwareNerd]

There are various aspects to law, and objectivity must be applied to each aspect. So, a law may be non-objectively derived, but objectively formulated. In his lecture "Concretizing the Principles of Objective Law", Thomas Bowden walks through these two (derivation and formulation) , and a couple of other aspects, and shows how each aspect can be objective or non-objective.

[eriatarka]

Not per se, if you understand "common law" to refer to "judge-written law". Statutory / regulatory law and common law have in common the fact of being actually recorded in an objective form. The most important difference is that statutory law is usually shorter and more direct in its statement, and of course people that is what people usually think of as being "the law". A common law precedent is usually harder for citizens to understand and concretize, although the common law prohibition against murder is pretty simple (such common law crimes don't seem to exist in the US anymore, having been put within the purvue of statutory law). There is a real difference between "actually graspable" and "theoretically graspable", so I find the Fair Use concept to be only theoretically graspable, though I know that some people who have gone to law school and focused on IP law can actually get a good grasp of Fair Use law. Whereas your average law against murder is pretty trivial to grasp. The Bronston standard for perjury is also pretty easy to grasp, even though it's not encoded in any statute.

Ok thats reasonable. I was thinking more how its not clear in which way judges/juries will rule on new cases based on past law unless you have extensive legal training (and sometimes not even then). Its not always that past rulings are hard to understand, its that if youre a non-lawyer then its not even clear what the relevant decisions to look at are. Self-defence is quite nebulous for instance, with it not being immediately clear what constitutes 'reasonable force'. Or when a piece of law has been passed by the government, but which judges have chosen to interpret in ways which would not be obvious from reading the law itself - the US constitution being an example (and not just absurdities like the interstate commerce clause, but more mundane rulings too).

Ideally there would be a list of laws written in basic English which would be publically available for anyone to read. But no law is going to be able to cover every circumstance of its application, so theres always going to be interpretation on the part of courts, and this will create situations where it's not clear whether a particular action is legal until someone has done it and forced a court to make a ruling. And I think this is probably an intrinsic problem to law, which isnt going to be solved by any new legal system no matter how objective it claims to be. Objective law is something to strive for, and some legal systems can certainly be more objective than others (the laws the UK government has been passing over the last 10 years which have followed the paradigm 'make pretty much everything illegal so that judges have the power to convict if they need it' is about as non-objective as you can get - eg the Sexual Offences Act 2003), but no legal system is going to be entirely objective since interpretation will always be needed.

Edited June 17, 2008 by eriatarka

[DavidOdden]

I was thinking more how its not clear in which way judges/juries will rule on new cases based on past law unless you have extensive legal training (and sometimes not even then).

Okay; you're pointing to the jury problem, which is a big problem, but it's a separate complication. Juries don't and often can't grasp the law (if there is some relevant precedent, they will be instructed that "If you find that X is the case you must convict", where X summarizes the relevant point embodied in the precedent -- juries don't need to and should not do research on the law prior to a trial).

but no legal system is going to be entirely objective since interpretation will always be needed.

I disagree since that presupposes that meaning is intrinsically subjective, but it isn't.

[eriatarka]

Okay; you're pointing to the jury problem, which is a big problem, but it's a separate complication.

It isnt limited to jury trials though - even in judge trials, it isnt always obvious which way a ruling will go if it differs from precedent. US Supreme Court rulings are a good example.

I disagree since that presupposes that meaning is intrinsically subjective, but it isn't.

Its not about meaning being subjective, its about general statements needing to be interpreted in terms of the context theyre being applied in.

Its easy to make general statements ('stealing is forbidden') but over the course of centuries youre going to be faced with cases where it isnt clear how existing laws should be applied. Just how much force is it reasonable to use to defend yourself against someone unarmed? Could you write a law which covers every possible case and leaves everyone in no doubt exactly what is legal? What about one which defines exactly what the 'reasonable man' believes in all situations? I think that if you tried to write laws to cover every possible eventuality,youd end up with thousands of pages of special cases, and even then its likely that some new development would create circumstances your laws dont cover (should copyright infringement be classed as theft or is it a new type of crime?).

Edited June 17, 2008 by eriatarka

[EC]

Try this: "An objective law is a law which defines in a manner that is defineable and graspable by a rational consciousness what constitutes a crime or what is forbidden, and the kind of penalties that a man would incur if he performs the forbidden action."

By this definition an "objective law" could be a law that states all women must wear burkas while out in public in the Peoples Replublic of Islamofascistan or by penalty of law they have their Achilles tendons cut to make sure that they don't make that mistake again. I respect your opinion when comes to matters of the law, David, but I think that for a law to be objective it must also be just. I was thinking about this before I fell asleep last night.

Edited June 17, 2008 by EC

[DavidOdden]

Its not about meaning being subjective, its about general statements needing to be interpreted in terms of the context theyre being applied in.

That is clear, but you said "no legal system is going to be entirely objective since interpretation will always be needed". That implies ("since") a relationship between interpretation and subjectivity. The only sensible way that I can see to understand that claim is if meaning itself is subjective (which it isn't). There is no denying that judges and juries do simply ignore the law, and act on the basis of some emotion rather than the law, but this is not a problem regarding the interpretation of the law. I tend to think that it's juries that more often ignore the law, but that's just an impression.

BTW there is a real problem in law that relates to interpretation (which is meaning), where judges don't simply ignore the law, and that is when a statement is in error because has more than one meaning. This has become a source of subjectivity because judges have a strong tendency to see unambiguity where actual ambiguity exists. This is a subspecies of ignoring the law, aided with a dose of rationalization which allows them to ignore what the law actually says (pretending that it says one thing and not two things, as an objective analysis of the meaning would show).

Could you write a law which covers every possible case and leaves everyone in no doubt exactly what is legal?

I propose that it is possible. That is the central thesis of the "objective law" program, that it is possible. I don't know that I could do it on the first draft, but application of Objectivist epistemology will tell you that it isn't required that you get it right the first time. I have concluded that the most significant source of subjectivity in the law is the desire to never revise laws.

[DavidOdden]

I respect your opinion when comes to matters of the law, David, but I think that for a law to be objective it must also be just.

I take it then you also disagree with Rand on what objective law is, and in the context of a question about Rand's emphasis on government supporting and enforcing objective law, we have to construe "objective law" the way Rand did. But supposing this were not a question about Objectivism, and were just a general question "What is objective law"; do you have an argument to support your conclusion?

[Old Toad]

I think it is possible David Odden and EC (and others on this thread) have been using the word “objective” in two senses that are subtlely different.

David Odden (in quoting Ayn Rand?) is using the word in the sense of "objective in expression" or “emphasizing or expressing things as perceived without distortion of personal feelings or interpretation,” as in “objective art.” In this sense, an “objective law” would merely be a law that is expressed in such clear terms that anyone would know what it means and how to apply it, whereas a “non-objective law” would be one that has no clear, objective meaning. In this sense, an example of a "non-objective law" would be antitrust law.

EC is using the word in the sense of "objective in derivation" or “undistorted by emotion or personal bias; based on observable phenomena,” as in “objective value.” In this sense, an “objective law” would be just, whereas a “non-objective law” would be unjust. In this sense, an example of a "non-objective law" would be one based on the whim of a dictator even if perfectly clear in its expression.

An objectively-expressed law can be either objectively derived (a just law) or subjectively derived (an unjust law). But a non-objectively-expressed law is always unjust, at least for failing to give notice of what it means. An objectively-derived law can be either objectively expressed or non-objectively expressed (through error). But a non-objectively-derived law is always expected to be unjust (except possibly in the case of a "benevolent dictatorship").

Requiring that a law be objectively expressed is one line of defense against the subjective use of governmental power.

There. Clear as mud.

Edited June 17, 2008 by Old Toad

[DavidOdden]

(in quoting Ayn Rand?)

Right, from the interview "Objective Law", which I take to be her definitive statement on the topic, just as ITOE is The Reference for OE.

“emphasizing or expressing things as perceived without distortion of personal feelings or interpretation,” as in “objective art.”

I disagree that this contrasts with "undistorted by emotion or personal bias; based on observable phenomena". Rand's discussion focuses on the knowability of the law, thus making a division between requirements which you cannot know in advance (such as antitrust, also fair use in copyright law), which are not instances of objective law, versus rules which in terms graspable by a rational being state what is forbidden and what the penalty for performing the act is. The problem with "emphasizing or expressing things as perceived" is that it's too broad -- it could apply to the purpose of a law as well as the application of the law to a specific event (is this an instance of the concept "theft" as defined by law?). The interpretation of an objective law (in Rand's sense) is indeed based on observable phenomena, namely the words of the law and the meaning of the words (and the rules of English grammar that compose words into propositions). That interpretation, if done by reference to the words, meaning and rules that do objectively exist, is thus undistorted by emotion or personal bias, and it is objective.

EC is using the word in the sense of “undistorted by emotion or personal bias; based on observable phenomena,” as in “objective value.” In this sense, an “objective law” would also have to be a just law, whereas a “non-objective law” would be unjust, such as one that is based on the whim of a dictator.

This is what I'm trying to figure out. You have to consider all 4 combinations of purpose and application -- laws whose purpose is objectively justified (by reference to the proper function of law and the cold hard facts of reality), and laws which are stated objectively so that one can know by reference to the cold hard facts of reality what is required. An ideal law is objectively justified in terms of its purpose, and objectively expressed. A subjectively-stated statute which encodes the proper function of law is also possible -- "A man shall be punished according to the gravity of his offense, if he has been objectively found in a court of law to have knowingly violated the rights of another individual".

Given that a law may be objectively expressed or objectively justified (or both, or neither), the question that I am looking into is how these concepts of objectivity are related. It seems to me (for no known reason in the world ) that the greatest emphasis for philosophy and science of law should be on objective expression. The question of the purpose of law is properly a part of general moral philosophy, and the question of whether we should have altruistic laws versus individual-rights protecting laws is a socio-political one. If people hold that the purpose of law is to maximally spread the wealth, then we don't even have agreement on what constitutes a just law, and discussions of whether such-and-such law is objective because it is "just" will fail, when people do not correctly grasp the concept of "justice". OTOH, in the context of a particular view of the purpose of law (for example "protects the rights of individuals against initiation of force"), then the problem of validating a law mostly (perhaps entirely) reduces to asking whether the objective interpretation of the law does describe an instance of the moral concept "protects the rights of individuals against initiation of force".