Tara Smith, "Objective Law"

Session 5

Tara Smith, "Objective Law"

Session 5

Executive Summary

Tara Smith (Ph.D., Johns Hopkins University) is professor of philosophy at the University of Texas and author of Judicial Review in an Objective Legal System (Cambridge University Press, 2015). The following summarizes key points from Smith’s 13-page article “Objective Law” contrasting the Rule of Law from the Rule of Men.

  1. The rule of some men by others using physical force is a political evil. Individuals have rights that governments are empowered to protect. Objective laws establish the rules and institutions that help avoid violations of rights and specify procedures for handling suspected or actual rights violations.
  2. In general, objective means “either a fact independent of anyone’s consciousness, or is based in and determined by such facts of reality.” An objective person is committed to grasping all relevant data and integrating it consistently, i.e., by “the method of deliberate, disciplined adherence to reality by the use of logic.”
  3. Applying that to law means that laws should have stable, definite meanings specified ahead of time and be understandable by a rational person. Further, objective laws will be “widely promulgated and part of a consistent legal code.” Those specifications are what is meant by the widely used phrase “the Rule of Law.”
  4. The “Rule of Men,” by contrast, occurs when laws are created and enforced non-objectively. Under such a regime, “the individual is placed in the untenable position of not knowing what he is legally obligated to do or forbear.” Further those who enforce can “decide arbitrarily what the law means on each occasion of dispute.”  
  5. As an example of a non-objective law, Smith discusses Ayn Rand’s criticism of American obscenity law. In Miller v. California and Paris Adult Theater I v. Slaton, the Supreme Court measured obscenity by reference to what “the average person” would find “appeals to the prurient interest,” is “patently offensive,” or lacks “redeeming social value.” Such phrases are so elastic as to be undeterminable.
  6. Smith also discusses Ayn Rand’s criticism of antitrust law, which has grown into a labyrinth of “vague, complex, contradictory, and inconsistent” laws, such that a business can follow one law but thereby break another and different government officials can choose to find the same business practice legal or legal.
  7. Objective law is also to be contrasted with two other prominent legal theories, Natural Law and Positivism. Natural Law is a form of intrinsicism, holding that law is found “ready-made” and “distinguished by its independent possession of certain qualities that we can simply spot or recognize as the source of its claim to our obedience.”
  8. Positivism, by contrast, is a form of subjectivism, holding that law is “the unconstrained, amoral invention of a particular group of men.”

Tara Smith’s “Objective Law” is published in the Blackwell Companions to Philosopher series volume A Companion to Ayn Rand, edited by Allan Gotthelf and Gregory Salmieri (John Wiley and Sons, 2016). Executive Summary by Stephen Hicks, 2020.

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