Some regulations ok under capitalism?

Political Philosophy
21

I don’t have the time right now to research this on Westlaw, but I know that anti-trust laws exist by statute.

15 USC 1 et seq. “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.” There are no criteria knowable in advance of the act of engaging in business that permit you to know what level of success is illegal. “Retrsaint of trade” is undefined.

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.

No, it is not just hard, it is impossible, and that is exactly what it means for a law to be non-objective. There are no objective criteria for judging that the law has been violated, only the subjective feeling of the jury.

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.

Without disparaging the valid point that too man things are criminalized, the other and most fundamental problem is that statutes are too poorly worded and that there are no objective standards for resolving the myriad referents of laws.

22

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.

My question to you is, “Is the ‘overabundance’ of things that are criminalized simply an unexplainable happening?” i.e. “So what is the cause of an overabundance of ciminalization?”.

My assertion would be that if you start needing people to prove that they are not guilty of a “real” crime, then you will inherently result in criminalization of all sort of “precrimes”, and since this is proof of a negative, the number of precrimes sufficient to assure no crime is infinite (actually arbitrary, but the net result is an explosion of criminalization of “non-crimes”)

Subjective law requires more than plain court interpretation, it will require all sorts of policy development, essentially policy as law, by the exectutive. It will require all sorts of training of the practitioners in any such field since they will not be able to tell what is criminal by the statutes. It will require guidance on how to comply with such a law, and leave the practitioners still not sure. It will essentially necessitate the big beaurocracy and “politics of pull” that Rand predicted . I’ve lived this. You won’t convince me otherwise. I googled reviews for a book on my nightstand currently (but which I have not started). Here is one reviewers comment on the FDA.

“If you’ve ever been on the receiving end of an FDA action, you know the prevailing culture inside the FDA views the entire industry as the police view criminals. The FDA often seems to doubt every iota of data, question every motive and act as if the administrative procedures which insure fairness are somehow boundaries on a power they believe should be limitless. Many parts of the FDA are an “end-justifies-the-means” culture. Staff who don’t toe the line and approach industry with all out animosity and suspicion are often suspect themselves of being deficient in intellect and/or integrity.”

Vladimir, I realize you are a law student, and I work in one of the most heavily regulated industries out there (chemical/pharmaceutical) so this should be an interesting discussion, but realize you will inherently get into the realm of the philosophy of law so I’ll at least point you to some concepts. Rand addressed her concepts here very specifically. She wrote on anti-trust, and Greenspan added an article on FDA as well in CUI.

http://www.tafol.org/bulletins/b07.html#b07whtisobjective

23

Well, but in AS Midas Mulligan actually owned the whole valley. Why shouldn’t he receive money for letting other people use his land?

Midas Mulligan indeed owned the land, but even he didn’t create it. He was, essentially, the government who collected the ground-rents from his tenants to provide for a common defense. To this extent, he was abiding by the Lockean principle (which was supported by many other Enlightenment thinkers) of private property.

But who really can lay claim to land? It isn’t *yours*, since didn’t create it (as opposed to one of Roark’s building designs or Galt’s generator, which are very clearly theirs). Nor can the government lay a natural claim to the land, since the government is simply composed of the same people that occupy it.

Now-- I should preface this next statement with saying that I am not an advocate of the tax I speak of. I’m merely exploring its philosophical implications-- thinking out-loud. But, since land itself is the product of no individual’s labor and is a finite resource, who has the right to lay claim to it? Men. Which men? What if some mean cannot afford to acquire it or have no desire to? If you consider the possibility that land itself was nature’s “gift” to the whole of mankind, and, is the physical entity upon which any exercise of liberty takes place (with liberty being the right of every man), then what we’re talking about here really isn’t a “tax” at all, but a rent due to the rightful owners-- mankind in general.

24

Because land by itself is not worth much at all; when individuals expend effort to improve it it thereby becomes their property just like anything else one might change and/or produce. If I take a piece of iron ore from the ground and make an ingot from it it would be mine, just as a piece of land would be mine if I were to make a farm there and work it.

Once that has happened the owner can sell it, and the new owner has the exact same right to the land as the original owner did.

25

15 USC 1 et seq. “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.” There are no criteria knowable in advance of the act of engaging in business that permit you to know what level of success is illegal. “Retrsaint of trade” is undefined.No, it is not just hard, it is impossible, and that is exactly what it means for a law to be non-objective. There are no objective criteria for judging that the law has been violated, only the subjective feeling of the jury.Without disparaging the valid point that too man things are criminalized, the other and most fundamental problem is that statutes are too poorly worded and that there are no objective standards for resolving the myriad referents of laws.

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.

You won’t convince me otherwise.

If neither facts or reason will convince you, then there is no point in carrying on this conversation with you.

26

When assessing what the law means, you virtually NEVER go by the plain words of the statute.

I understand that you’re describing the practice of the law: nevertheless, the case law surrounding a statute only tells you how the law has been contorted, not what it actually and objectively means. What you will no doubt have noticed is that antitrust law is based on a concept “restraint of trade” that is not defined (in the usual definitions chapter or elsewhere AFAIK).

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.)

The problem is when laws don’t even include objective criteria that the fact-finder is supposed to apply.

The best we can do is a jury or a judge, and both are inherently subjective.

Well that is plainly false, although if you mean that as a castigation of current trends in judges and juries, I might go along with that. I particularly abjure juries, in particular the random moke approach to getting justice. This is not an irresolvable problem of fact-finding, it is a parochial flaw in our justice system that could be largely cured by rejecting the fallacious assumption that all citizens are equally qualified to assess the facts and the law objectively. In other words, we need jurors with an epistemology.

27

I understand that you’re describing the practice of the law: nevertheless, the case law surrounding a statute only tells you how the law has been contorted, not what it actually and objectively means.

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.

What you will no doubt have noticed is that antitrust law is based on a concept “restraint of trade” that is not defined (in the usual definitions chapter or elsewhere AFAIK).The problem is when laws don’t even include objective criteria that the fact-finder is supposed to apply.

Again, I do not have enough knowledge of the case-law regarding anti-trust to know whether this is true or not.

Well that is plainly false, although if you mean that as a castigation of current trends in judges and juries, I might go along with that. I particularly abjure juries, in particular the random moke approach to getting justice. This is not an irresolvable problem of fact-finding, it is a parochial flaw in our justice system that could be largely cured by rejecting the fallacious assumption that all citizens are equally qualified to assess the facts and the law objectively. In other words, we need jurors with an epistemology.

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.

28

But if juries and judges are inherently subjective, does not the same hold true for everyone? What is the special thing about judicial activities that make them more subjective than other types of human activities? I doubt you are claiming that we are incapable of objective knowledge as humans. Why do you see a difference here?

The fact that they study human beings instead of other parts of reality doesn’t make the process inherently subjective, I think. Otherwise the entire humanities would be doomed by implication.

29

But if juries and judges are inherently subjective, does not the same hold true for everyone? What is the special thing about judicial activities that make them more subjective than other types of human activities? I doubt you are claiming that we are incapable of objective knowledge as humans. Why do you see a difference here?

The fact that they study human beings instead of other parts of reality doesn’t make the process inherently subjective, I think. Otherwise the entire humanities would be doomed by implication.

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.

30

I am afraid I do not see that. By correct here I assume you mean that the answer is true?; that it reflects the facts properly? How can multiple, contradictory answers all be true?

31

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.

Well, stare decisis is a principle sucked up to in common law tradition, but it is by no means a universal feature of the concept “law”. In fact, I recall that the Austrian Constitution essentially prohibited stare decisis. In addition, you’re confusing actual objective meaning with observed usage. Again you assert without evidence that there cannot be objectivity in law. The best you seem to be comping up with is the rampant subjectivity actually observed in the law, but that can be changed, as I pointed out.

In the first place, juries decide only matters of fact, not matters of law. Judges decide matters of law.

That’s really not true. Juries do decide not only what factual conclusions are reached, but also how the law applies to those conclusions. That’s why they have those damned jury instructions: to confuse the jury as to what the requirements of the law are. For example, 18 USC 1001 (a)(2) criminalizes knowingly and willfully making a material false statement, so a jury must judge whether the defendants act is described by that clause (so they must determine whether the facts that they have seen constitute material statements, false statements, and also whether the defendant must know that his statement is false (and if so, whether he did know).

Different judges and juries will have different takes on the law and the facts.

Well, yeah. That’s because almost no jurors have an epistemology, and many judges have a rotten one. Give me a panel of strict constructionists and I will give you objective justice. Scalia is right on the money in his analysis of Church of the Holy Trinity v. US. The church violated a federal law, and the Supreme Court just invented total nonsense to negate the letter of the law. Congress passed a really dumb law, and it is the height of intellectual dishonesty to claim that somehow they “must have meant something else”.

Decisions like Holy Trinity are what generates contempt for the law.

32

I am afraid I do not see that. By correct here I assume you mean that the answer is true?; that it reflects the facts properly? How can multiple, contradictory answers all be true?

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.”

Well, stare decisis is a principle sucked up to in common law tradition, but it is by no means a universal feature of the concept “law”. In fact, I recall that the Austrian Constitution essentially prohibited stare decisis. In addition, you’re confusing actual objective meaning with observed usage. Again you assert without evidence that there cannot be objectivity in law. The best you seem to be comping up with is the rampant subjectivity actually observed in the law, but that can be changed, as I pointed out.

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.

That’s really not true. Juries do decide not only what factual conclusions are reached, but also how the law applies to those conclusions. That’s why they have those damned jury instructions: to confuse the jury as to what the requirements of the law are. For example, 18 USC 1001 (a)(2) criminalizes knowingly and willfully making a material false statement, so a jury must judge whether the defendants act is described by that clause (so they must determine whether the facts that they have seen constitute material statements, false statements, and also whether the defendant must know that his statement is false (and if so, whether he did know).

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.

Well, yeah. That’s because almost no jurors have an epistemology, and many judges have a rotten one. Give me a panel of strict constructionists and I will give you objective justice. Scalia is right on the money in his analysis of Church of the Holy Trinity v. US. The church violated a federal law, and the Supreme Court just invented total nonsense to negate the letter of the law. Congress passed a really dumb law, and it is the height of intellectual dishonesty to claim that somehow they “must have meant something else”.

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.

33

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.”

Because in life 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.

You could just as easily say that; but, none of us (I would think) subscribes to the view that because there are multiple values a person could hold it is therefore somehow impossible to tell which ones are better than others. What you need is a proper hierarchy here, and a standard of some kind, to tell which of the facts is more important.

Just as human life in general requires certain objectively determinable facts or values, so does law. I mean, there is probably even more variation in how people think you should live; does that make it impossible to be Objective in ethics?

34

I am not sure how any legal system can work well without case law.

Drafting skills become important. Simply stop writing statutes that are ambiguous, make lenity be the only “interpretive” principle, and have it be a constitutional requirement that a law proven to be ambiguous must be restated within 6 months or be stricken. The only rational reason for reliance on case law is the problem of ambiguity; otherwise, precedent leads to bad 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.

On the contrary, you will be able to tell from the wording of the law itself how the law is to be applied.

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.

That’s because I’ve denied that there is subjectivity inherent in law, except of course for ill-formed laws which boil down to saying “if the jury concludes”. The federal statutes pertaining to monopolies require juries to convict based on their feelings. There is no definition of “restraint of trade” that can be applied objectively to facts that would lead a rational juror to a particular verdict. The juror must therefore use his subjective feelings. The issues are inseparable.

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.

That would be true if judges could tell jurors what “the law” is, but usually they can’t (I think “usually” is correct). Pattern instructions are often very poor in explaining what the law is, and there is little that a judge can do to overcome crappy instructions. Jurors then have to interpolate the remainder. People have died at the hand of the state because jurors had to invent law about the meaning of “mitigate”. Anyhow, there is a vast gap between the words of the pattern instructions and the grasp that jurors have of those words, and that is where jurors make stuff up. Jurors must decide what the law requires, in order to determine if a person has done the acts proscribed by the law.

It occurs to me that you may not understand the concept “subjective” versus “objective”. You seem to see “subjective” as meaning “volitional” and “objective” as meaning “autumatic”. If you are confused about the concept “subjective”, that could explain why you seem to keep insisting that all aspects of law are subjective.

35

Just as human life in general requires certain objectively determinable facts or values, so does law. I mean, there is probably even more variation in how people think you should live; does that make it impossible to be Objective in ethics?

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.

Drafting skills become important. Simply stop writing statutes that are ambiguous, make lenity be the only “interpretive” principle, and have it be a constitutional requirement that a law proven to be ambiguous must be restated within 6 months or be stricken. The only rational reason for reliance on case law is the problem of ambiguity; otherwise, precedent leads to bad law.

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.

On the contrary, you will be able to tell from the wording of the law itself how the law is to be applied.That’s because I’ve denied that there is subjectivity inherent in law, except of course for ill-formed laws which boil down to saying “if the jury concludes”.

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.

It occurs to me that you may not understand the concept “subjective” versus “objective”. You seem to see “subjective” as meaning “volitional” and “objective” as meaning “autumatic”. If you are confused about the concept “subjective”, that could explain why you seem to keep insisting that all aspects of law are subjective.

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.

36

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.

No, precedent only plays a role in correcting the mismatch between the objective meaning of the statute and either the originally intended meaning, or a twist of meaning required to get justice. The idea of a statute that “covers all possible applications” is either meaningless or trivial. A statute says what it says – it thus describes what it applies to, end of story – that’s the trivial sense. I cannot begin to guess what you mean by “applies to all situations”, for example a murder statute obviously wouldn’t apply to a parking ticket. If a statute is not ambiguous (and vast numbers are), you need nothing but the knowledge of the language of the statute plus, of course, whatever constitutional framework it is embedded in. Give me an example of a law that “isn’t applicable to all situations”, where case law clarifies anything. And don’t give me one with an ambiguity of scope or an improper confusion of “and” and “or” – we’ve already covered horrid drafting practices.

This, then, is why case law isn’t needed. (Common law is not particularly relevant anymore for criminal law – anyhow, common law intrusions actually decrease legal clarity, rather than increasing it, since nobody actually knows “the common law”).

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.”

Well, first, it’s not a law in the sense of statute, it is a constitutional provision. Also, it’s badly written though has a nice literary twist to it – stated as is, it is false and I wouild put it differently. As a constitutional provision, it limits the power of the government to make laws, just as the other constitutional provisions would (such as e.g. the 1st Amendment). The exact effect of that clause has to be determined by reference to the entire constitution (in contrast, the meaning of any statute can be determined by considering the constitution and just the particular statute – plus any “pronouns” where a statute directly references another statute).

I’m assuming a rational Objectivist-type constitution as opposed to a socialist constitution. In that case, the Free Trade clause basically says that no act shall be made illegal solely on the basis of exchange of consideration. Thus, a law against hiring a hitman is not unconstitutional, because murder is illegal.

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?

One at a time: a law against hiring children is unconstitutional; a law prohibiting children from doing certain things like flying jet planes might be. The relevant distinction is, if a child can do it at all, he can be hired to do it – that is, exchange of goods is not a valid basis for prohibiting children from working. The trade of pornography would not itself be illegal; however, sex with a child (let’s say 8 years old) would be illegal. Since receipt of money is not the distinguishing factor, a law against having sex with a child would be constitutional (and not a violation of the Free Trade clause). Software piracy is a species of theft and there would actually be a clause requiring the protection of property rights (hence clearly no unconstitutionality of such a law). A law prohibiting the production of H-bombs for money would be unconstitutional; a law prohibiting the production of H-bombs would not necessarily be (it would be a separate clause, if there were an unconstitutionality). I don’t have an answer to prisoner-rights questions in general, but one thing is clear, that if they have the right to X, then they can X for money. What the Free Trade clause does is prohibit any laws that takes mutual exchange of value (as oppose to one-way gift) to be the deciding factor in outlawing an act.

I’m still looking for even one concrete example of where the law must have a subjective element. Time’s running out.

37

No, precedent only plays a role in correcting the mismatch between the objective meaning of the statute and either the originally intended meaning, or a twist of meaning required to get justice. The idea of a statute that “covers all possible applications” is either meaningless or trivial. A statute says what it says – it thus describes what it applies to, end of story – that’s the trivial sense. I cannot begin to guess what you mean by “applies to all situations”, for example a murder statute obviously wouldn’t apply to a parking ticket. If a statute is not ambiguous (and vast numbers are), you need nothing but the knowledge of the language of the statute plus, of course, whatever constitutional framework it is embedded in. Give me an example of a law that “isn’t applicable to all situations”, where case law clarifies anything. And don’t give me one with an ambiguity of scope or an improper confusion of “and” and “or” – we’ve already covered horrid drafting practices.

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.

I’m assuming a rational Objectivist-type constitution as opposed to a socialist constitution. In that case, the Free Trade clause basically says that no act shall be made illegal solely on the basis of exchange of consideration. Thus, a law against hiring a hitman is not unconstitutional, because murder is illegal.One at a time: a law against hiring children is unconstitutional; a law prohibiting children from doing certain things like flying jet planes might be. The relevant distinction is, if a child can do it at all, he can be hired to do it – that is, exchange of goods is not a valid basis for prohibiting children from working. The trade of pornography would not itself be illegal; however, sex with a child (let’s say 8 years old) would be illegal. Since receipt of money is not the distinguishing factor, a law against having sex with a child would be constitutional (and not a violation of the Free Trade clause). Software piracy is a species of theft and there would actually be a clause requiring the protection of property rights (hence clearly no unconstitutionality of such a law). A law prohibiting the production of H-bombs for money would be unconstitutional; a law prohibiting the production of H-bombs would not necessarily be (it would be a separate clause, if there were an unconstitutionality). I don’t have an answer to prisoner-rights questions in general, but one thing is clear, that if they have the right to X, then they can X for money. What the Free Trade clause does is prohibit any laws that takes mutual exchange of value (as oppose to one-way gift) to be the deciding factor in outlawing an act.

I’m still looking for even one concrete example of where the law must have a subjective element. Time’s running out.

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.

38

Vladimir, what is non-Objective (capital ‘O’) law?

It isn’t the appellate system or principles of stare decisis which result in non-Objective law.

Your very next sentence gives a clue to what you mean:

It is the fact that most people (including lawyers and legislators) are not Objectivists and thus don’t operate by Objectivist principles.

I think you and Mr. Odden might be not talking about the same thing - or at the very least, you are equivocating - which could make this very interesting debate very difficult to follow. You used capital O, he used small o - which means he is not talking about “Objectivist law” per se, but simply “objective law”. Even bad (anti-Objectivist, anti-constitutional) laws would be much better off being objective - it would be easier (possible) to demonstrate their absurdity if they can be fixed in reality.

DavidOdden :No, it is not just hard, it is impossible, and that is exactly what it means for a law to be non-objective. There are no objective criteria for judging that the law has been violated, only the subjective feeling of the jury.

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For instance, some statutes ban “assault with a deadly weapon.” What is a deadly weapon? The statute does not and cannot say.

Ah, I think I see where your problem stems from. A deadly weapon is a specific type of weapon, one whose nature is to inflict damage on its victim that often leads to death. So it is by looking at the nature of the facts of the weapon that we determine whether a weapon is deadly or otherwise. Guns, knives and bombs would be, and pepper spray, tire irons and baseball bats wouldn’t be. It is not necessary to enumerate all such weapons, you just need to understand the concepts “deadly” and “weapon”. It is assumed, even now, that citizens understand the basic concepts contained in a statute (albeit poorly, sometimes), so no law needs to define “property” in order for us to have a statute against theft. It is rarely necessary to redefine words in order to write law, so applying ordinary meaning here would be good enough.

I could imagine the future invention of a “disrupter” gun that is a really ramped-up stun gun, which kills its victim say 10% of the time. When the day comes that such a weapon exists or even is highly likely to exist, statutes referring to the concept “deadly weapon” would have to be rewritten (presuming that there is a philosophical resolution that tells you whether the distupter whould be included or excluded) to address this new knowledge. I will continue to carp on this point, that laws must be subject to constant scrutiny to be sure that they serve the purpose that they are intended to, and rewritten to remove detected flaws.

BTW it is not at all obvious that the law should care about deadly weapons, since assault is already a crime. Without more of the context, it’s not possible to tell if the distinction “deadly weapon” vs. “non-deadly weapon” is legally valid. I have not seen any argument that supports a distinction, so I think the law should be stated simply in terms of “weapon”. Now, please note that every law must be justified and have a purpose, so if there is a purpose in making the dealy/non-deadly distinction, that purpose would be known (this is one of my constitutional hobbie-horse, namely the requirement of a “purpose clause” which is the standard for evaluating the validity and applicability of the law). Such a purpose clause to an assault statute would tell you whether the hypothetical disrupter gun would be included or excluded from this assault statute.

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.

Well, are you operating under the erroneous assumption that I think a statute can be an entirely self-contained entity? I have said nothing that would suggest that. It is obvious that ordinary meanings of words are external to the statute; it is obvious that any system of objective laws must be embedded in a constitutional framework. Why would I need to say that explicitly. I do hereby say so.

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 are not even reading what I’m saying, apparently. A law which specifically criminalized murder for hire and does not criminalize murder for free would be unconstitutional, because the Free Trade clause prohibits making “for money” be the distinguishing consideration between legal and illegal. If murder is legal, murder for hire is legal; if murder is illegal, murder for hire is illegal. No reasonable person can twist the Free Trade clause and make just murder for hire legal (or illegal).

You have essentially created an interpretive framework for assessing laws which may infringe on the clause, and that is exactly what caselaw does.

No, not even in the slightest. You can inspect the constitution and the statute and determine what the law says. Period. No precedent is needed to tell you what is legal.

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.

This is just plain silly. A law against murder is required. The Free Trade clause prohibits distinguishing “for hire” as a basis for criminalizing an act. That is the end of that. The judge in Texas is just wrong, and so plainly wrong that he should be disbarred.

As I said, your time is running out – it has run out. You do not seem to be paying enough attention to the poins that I’m making – all you’re doing is responding with unsubstantiated assertions about the value of legal precedent in discovering or creating “true meaning” for statutes. You are assuming without question or even rational thought that the current system of law as practiced in the US is the best possible system. It is not. The main problem with law is exactly the attitude that you are expressing: that law is a subjective, mysterious unknowable thing which serves no purpose other than to “be the law”. Since we are making no progress whatsoever, our discussion is over.

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