#7 Fall 1990


#7 Fall 1990 Page 1

Harry Binswanger

[See also a later version of this article at (Vol. 6, No. 1, January 1992 of The Intellectual Activist (www.intellectualactivist.com)]

A law is a rule of social conduct enforced by the government. In distinction to all other social rules and practices, laws are backed up by the government's legal monopoly on the use of physical force. Breaking the rules of a business, fraternal organization, educational institution, or other voluntary association may meet with disapproval, loss of privileges, or expulsion, but only a government can enforce its rules by subjecting those who break them to fines, imprisonment, and, ultimately, death. (Any fines levied by private organizations are enforceable only via the government's enforcement of contracts.)

In order to define a standard for evaluating law, one must refer to the purpose of government. In "The Nature of Government," Ayn Rand writes: "Since the protection of individual rights is the only proper purpose of a government, it is the only proper subject of legislation: all laws must be based on individual rights and aimed at their protection."1 Rights can be violated only by the initiation of physical force. A proper, moral government limits its use of physical force to retaliating against those who initiate its use, in violation of rights.

By its monopoly on the use of physical force, a government is potentially the greatest rights-violator in a society. The threat to rights posed by private criminals is small compared to the threat posed by governments, as the mass slaughters perpetrated by statist governments throughout history testify. It is essential, therefore, that the government's use of physical force be "rigidly defined, delimited and circumscribed; no touch of whim or caprice
should be permitted in its performance; it should be an impersonal robot, with the laws as its only motive power."2

This is the basis of the need for objective law. Laws must be objective in both derivation and form. And in both respects, "objective" refers to that which is based on a rational consideration of the relevant facts---as opposed to the subjective, the arbitrary, the whim-based.

An objectively derived law is one stemming not from the whim of legislators or bureaucrats but from a rational application of the principle of individual rights. Rights tie law to reality, because they are a recognition of a basic, unalterable fact, i.e., of "the conditions required by man's nature for his proper survival."3

For instance, a law against murder is clearly derived from the right to one's life, whereas a law compelling military service is not derived from any right, but from the alleged needs of a collective, in disdain for the individual's right to his life.

A law against theft is objectively derived from the right to property; a law guaranteeing "free" (i.e., tax supported) medical benefits is not---it violates the rights of those whose wealth is to be expropriated to provide such benefits.

That a law is objectively derived does not guarantee that it is a correct application of the principle of individual rights---errors in application are possible. But it does mean that the law's validity is defended by a rational attempt to apply the principle of individual rights, rather than by appeal to such notions as the "public interest," the "general welfare," or "community standards."

Contemporary legal philosophers, politicians, judges, and bureaucrats believe that the purpose of law is to strike

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an ever-shifting balance between the wishes and demands of various groups. In this chaos, no principles are invoked, only such undefined and indefinable notions as "the public interest" or, worse, "the needs of the environment." No stable, principled legal code can be derived from notions detached from reality. Such notions require a policy as "flexible," and "evolving" as the dizzying swirl of intellectual fashion that generates them. Ultimately, only the principle of individual rights, which is grounded in the factual requirements of man's survival, can provide the basis for law that is objectively defined and objectively applied.

As the law must be objective in its source, so it must be objective in its form: objective laws are clearly defined, consistent, unambiguous, stable, and as straightforward and simple as possible. They are also impartial and universal, in the sense of applying to all individuals as individuals rather than as members of any race, creed, class or other collective.

In every regard, the law must be adapted to its essential goal: predictability. "[M]en 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."4

The ideal is to make the laws of man like the laws of nature: firm, stable impersonal absolutes.

Like the laws of nature, proper laws are contextual. The laws of physics do not consist of sweeping, out-of-context pronouncements, such as "Heavy objects fall---period," a notion which would be contradicted by the flight of birds or airplanes. Rather, physics identifies the fact that all objects are subject to a gravitational force---as one factor in the total context of forces influencing their behavior. Likewise, an objective law does not declare, for instance, "Thou shalt not kill---period," a notion which would equate murder and self-defense.

Nor does the law against murder ignore such distinctions as that between first-degree and second-degree murder. Objective law makes legal distinctions according to context and circumstance---i.e., according to the specific nature of the act (including its level of intent) and of the surrounding facts---not according to the race of the accused, the eloquence of his pleas for "mercy," or the mood of a judge.

Objective laws are abstract statements. As such they have to be applied to the specifics of a given concrete case. This application is not automatic, and in many instances a proper application requires a great deal of time and effort. The opponents of objective law use these facts to support their claim that when it comes to law, there are no hard-and-fast rules, no absolutes. But the laws of nature also are abstract, they also stand in need of application, and scientists often disagree about what accounts for observed phenomena or what the results of an experiment will be. This does not make the laws of nature non-absolute, flexible,
or subject to anyone's whim.

(Philosophically, such attacks on objective law reflect the false alternative of the intrinsic versus the subjective: if the answers to legal issues are not self-evident, then, it is claimed, no objective answers exist and we may as well go by our emotions. To identify this approach is to refute it.)

Not only must a legal code have the impersonal absolutism of a law of nature, it must also have the clarity and precision of a properly drafted contract. A contract that states, "In return for paying me $100, I will do something nice for you someday," is no contract. Likewise, a law that states, "Obey community standards regarding obscenity," is no law, but a grant of arbitrary power.

A crucial element in the understanding and defense of objective law is provided by Ayn Rand's identification that physical force is the only basic means of violating rights. "It is only by means of physical force that one man can deprive another of his life, or enslave him, or rob him, or prevent him from pursuing his own goals, or compel him to act against his own rational judgment."5 Law that is defined in terms of acts of physical force, notes Leonard Peikoff,

     stands in stark contrast to laws forbidding crimes which are not defined in terms
     of specific physical acts; e.g., laws against "blasphemy," "obscenity," "immorality,"
     "restraint of trade," or "unfair profits." In all such examples, even when the terms
     are philosophically definable, it is not possible to know from the statement of the
     law what existential acts are forbidden. Men are reduced to guessing; they have
     to try to enter the mind of the legislator and divine his intentions, ideas,
     value-judgments, philosophy---which, given the nature of such legislation,
     are riddled with caprice. In practice, the meaning of such laws is decided
     arbitrarily, on a case-by-case basis, by tyrants, bureaucrats, or judges,
     according to methods that no one, including the interpreters, can define or predict.6

A criminal who initiates physical force is attempting to enact a nightmare perversion of metaphysics: the

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primacy of consciousness. He seeks to make his arbitrary will, not the facts of reality, the absolute to which his victim must adjust. Non-objective law is based on the same premise: it demands that the citizen focus on and accept the unaccountable will of the law's interpreter
instead of the facts of reality. Objective law is based on the primacy of existence; it reflects not anyone's will but facts. In this sense, objective law is passive: certain definite areas are clearly marked "off limits," and unless one crosses the line, the law respects and protects one's freedom of choice. Non-objective law is active; it is a beast in motion. Its "flexibility" makes it the indispensable tool of dictatorships.

"It is a grave error," writes Ayn Rand, "to suppose that a dictatorship rules a nation by means of strict, rigid laws which are obeyed and enforced with rigorous, military precision. Such a rule would be evil, but almost bearable; men could endure the harshest edicts, provided these edicts were known, specific and stable; it is not the known that breaks men's spirits, but the unpredictable."7

The dictator's concern is power. To have power over someone is to be able to make him do what one wishes, not by offering him a value as an inducement, not merely when his wishes happen to coincide with one's own, but simply because one wishes it. The power-luster seeks proof that you are acting from orders, not merely in accordance with orders. To obtain that proof, he must constantly and arbitrarily shift his orders: "there is no way to please him; when you obey, he will reverse his orders; he seeks obedience for the sake of obedience and destruction for the sake of destruction."8

Objective law is men's protection against power-lust. Objective law does not require submitting to anyone's will; it exists to prevent others from substituting their will, their plans, their judgment for one's own.

Although the function of objective law is to protect individual rights, the proper means for securing this protection is by bringing a civil or criminal action after the fact, not by prior restraint. If a plaintiff can prove that someone's planned action poses an objective threat of damage to him, he can sue for an injunction to prevent it. But the general possibility of human wrongdoing provides no grounds for requiring a given individual to prove he will not engage in it. Individuals are separate entities who possess free will and make their own independent choices. Therefore, the wrongful actions of some men do not cast the slightest suspicion upon the activities of others. This is another manifestation of the individualism embodied in objective law.

Accordingly, all regulatory agencies---all the alphabet commissions and boards from the original ICC right through the latest "environmental" agencies---are inherently non-objective by virtue of being regulatory agencies. Regulatory agencies deal in preventive law, law that treats men as guilty in advance, requiring them to satisfy the government that they will not bring about a certain result, in the absence of any specific evidence that they will do so. Thus, businesses have to satisfy the FDA that they will not sell adulterated food and drugs, satisfy the SEC that they will not "take advantage of" investors, satisfy the FTC that they will not "attempt to monopolize," satisfy the EPA that they will not "injure the environment," satisfy the EEOC that they will not "discriminate" in hiring . . . and so on, without limit.

The premise of regulatory law is: since some individuals may act irrationally and irresponsibly, all must submit to supervision. Thus regulatory law sacrifices virtue to vice. Objective law is designed to protect the very thing regulatory law crushes: independence.

Objectivity is needed not only for the law itself, but also in regard to every governmental activity, from the conduct of the police to election procedures. Legal objectivity, in the widest sense, includes objective methods of enacting law (the legislative process), objective methods of interpreting, constitutionally validating, and applying the law (the judicial process), and objective methods of enforcing the law (the executive process). Each of these is a wide and complex domain requiring multi-volume treatises to specify proper procedures; but the required work has essentially been done already: the original American system of constitutionally limited government, together with 18th century English common law and rules of parliamentary procedure, formed a nearly perfect system from the standpoint of objectivity.

* * *

Ayn Rand's contribution to the theory of objective law is threefold. First, she provided a rational, objective basis for individual rights. Second, by identifying the fact that only physical force can violate rights, she made objective the basis for establishing when a right has been violated.

Third, by developing a full philosophic theory of objectivity as such and then connecting this theory of objectivity with the need for government, she solidified the Lockean defense of that institution, showing why the law has to be objectively defined, interpreted, applied, and enforced: "A government is the means of placing the retaliatory use of physical force under objective control ---i.e., under objectively defined laws. . . . If a

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society is to be free, its government has to be controlled."9

1. Ayn Rand, Capitalism: The Unknown Ideal (New American Library, 1966) 332.

2. Id. at 331.

3. Id. at 330.

4. Id. at 332.

5. Id. at 330.

6. Leonard Peikoff, Objectivism: The Philosophy of Ayn Rand, Chapter 10.

7. "Antitrust: The Rule of Unreason," in The Objectivist Newsletter (February, 1962) 5.

8. Ayn Rand, Atlas Shrugged (New American Library, 1957) 971.

9. Ayn Rand, Capitalism: The Unknown Ideal (New American Library, 1966) 331.


On September 5, 1990, TAFOL submitted the following position paper to the Committee on the Judiciary for consideration in the confirmation hearings on Supreme Court nominee David H. Souter. TAFOL's position paper will be included in the record of the testimony given during the hearings. Copies of the Position Paper were also made available at the press table outside the hearing room.

Throughout this confirmation process, the focus of almost every organization, no matter where on the political or jurisprudential spectrum it falls, has been on the question of what David H. Souter should reveal about his beliefs. Many on the political left have demanded that Judge Souter state his positions on specific issues, such as abortion. Many on the political right disagree, maintaining that at most, Judge Souter may properly be asked his position only on broader topics, such as "privacy," and "judicial activism"; they praise Judge Souter as having an "open mind" on specific issues.

The position of The Association for Objective Law is different: Judge Souter must be questioned probingly on fundamental issues, but the fundamental issues are not issues on the level of abortion, judicial activism or even privacy. The fundamental and crucial issue is David Souter's view on individual rights. If David Souter is to be confirmed, he must have a view on this issue, and his view must be revealed. A nominee for Justice of the Supreme Court of the United States should be asked if his vision of individual rights is the one on which the United States is grounded. Under this view, rights arise out of the nature of man; they are not gifts or permissions, and may not be withdrawn for any reason. They are absolute; no invasion of a right may be justified by "balancing" against a so-called "public interest" or "government interest." Indeed, the only proper purpose of government, and of laws, is to protect the rights of individuals. This principle is crystallized in the Declaration of Independence: "To secure these rights, governments are instituted among, men . . . For a judge to express and implement these principles is not "judicial activism." In fact, it is unacceptable for a judge to have an "open mind" on such principles. They are not optional.

Statements on narrower, more concrete issues, such as abortion, or the right of privacy, will of course be revealing. But statements on individual rights as such are infinitely more revealing, as the hearings on Robert Bork's nomination made chillingly clear. To the extent that a judge is consistent, his philosophy will determine and make predictable his view on every specific issue coming before the court. Bork believed that there are no rights, only what the political majority writes down as permissions. The "majoritarian" principles Bork espoused are fundamentally opposed to individual rights, and therefore Bork was properly adjudged unfit to serve as a Supreme Court Justice on the basis of his philosophical approach.

What is David Souter's philosophy of individual rights? His supporters appear to believe that confirmation would be doubtful if Judge Souter revealed his views. But for the reasons stated above, a nominee who refuses to state his fundamental principles should be immediately rejected. Moreover, majority and dissenting opinions written by Judge Souter as a state court judge raise many questions. There is more to be seen in these opinions than a passionless, antiseptic, "strict construction" approach or a hard-line tendency towards criminals. The writings suggest an acceptance of the notion that rights may be "balanced," and of the notion that rights may be overridden by "public interests." There is even some suggestion that, like Robert Bork, Judge Souter believes that rights may be voted away by the majority. See, eg., New Hampshire v. Koppel, 499 A.2d

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977, 984-85 (N.H. 1985); Cole v. Combined Insurance Co. of America, 480 A.2d 178, 180 (N.H. 1984).

It is terribly important that David Souter state forthrightly and precisely his view of individual rights. The fate of our freedom should not be at the mercy of hidden standards.

* * *

In connection with this project, special thanks are due to TAFOL member Thomas A. Bowden, who suggested that TAFOL make a submission on the Souter nomination, and who contributed a great deal to the content of the submission. Mr. Bowden, a Baltimore lawyer, also published a substantial op-ed piece on David Souter in the September 13, 1990 edition of The Evening Sun, a major Baltimore daily newspaper. The op-ed, entitled "Souter Must be Forced to Reveal his Principles," stated in part:

     [I]f Souter is allowed to sneak onto the Supreme Court without being forced to
     make his principles clear, then Bush will have accomplished a cover-up much
     more heinous than Watergate---a philosophical cover-up that could haunt us
     for decades.


TAFOL's position paper on mandatory pro bono service was distributed to all state bar associations, certain professional and general interest publications, and others.

A large portion of the position paper was reprinted in the August 9, 1990 issue of The Los Angeles Daily Journal, an important California professional newspaper, under the title, "Mandatory Pro Bono Equals Slavery." The portion of the position paper published took up approximately a quarter of the newspaper page, and was introduced by a statement identifying TAFOL as a national organization "that aims to advance Objectivism, the philosophy of Ayn Rand, as the basis for a proper legal system."

And portions of the position paper were incorporated into a spirited op-ed piece written by TAFOL member and Texas lawyer Michael J. Mazzone which appeared in the October 22, 1990 issue of Texas Lawyer. Mr. Mazzone's piece, published under the title, "Mandatory Pro Bono: Slavery in Disguise," responded to a previously published article by Charles Herring, Jr. advocating mandatory pro bono. Mr. Mazzone argued in part:

     In a civilized society that cherishes liberty, individuals pursue their values---such
     as pro bono---by mutually agreeable arrangements; they do not instigate a mob
     (the "majority," the Bar, etc.) and take what they want by force (a law, a disciplinary
     rule, etc.). Of all people, lawyers should not advocate forcing their values on
     others, whatever the sought-after values may be. Lawyers have always prided
     themselves on defending liberty; we should not attack it, or sit idly by while
     others do.

TAFOL's position on this issue was also aired in the form of a letter to the editor of The Los Angeles Daily Journal submitted by Steve Plafker and published in the June 5, 1990 issue of that newspaper. The letter commented on an earlier editorial favorable to the notion of mandatory pro bono service and included the following observations:

     The principles of liberty do not permit the use of licensing laws to force any
     person to provide services. If all men are endowed with unalienable rights, no
     one can be stripped of any of his freedoms by choosing a particular

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     profession. There is no justification for treating lawyers like public fodder, no
     matter how mild the imposition seems to its proponents.

TAFOL would appreciate hearing from members who notice mentions of TAFOL's position paper on this issue, and welcomes suggestions for further distribution of the position paper.


Steve Plafker, Vice President of TAFOL, recently had a portion of a letter to the editor published on the topic of the integrated bar. The letter was published in the August 1, 1990 issue of The California Lawyer and stated:

     The courts take an inherently contradictory position on the integrated bar.
     They want the states to be able to force all lawyers into an organization that
     will take public positions and, at the same time, preserve the free speech rights
     of the members. This cannot be done. Any government that forces an individual
     into an organization thereby violates that person's rights. If the organization
     takes any public position, the right of free speech is sacrificed.

* * *

As also reported above, Tom Bowden, a TAFOL member, published a hard-hitting op-ed piece on the Souter nomination in a major Baltimore daily newspaper, and professional publications in Texas and California published pieces on mandatory pro bono service submitted, respectively, by Michael Mazzone, a TAFOL member, and Steve Plafker, TAFOL's Vice President.

* * *

Finally, we have received word from Ivo Cerckel, a TAFOL member in Brussels, that a Belgian financial newspaper published an article by him entitled, "Insider Trading, So What?"


As announced in TAFOL's letter to members on August 20, 1990, TAFOL plans to focus its resources on a few important (and more outward-looking) projects in the coming year, in particular preparing to submit an amicus curiae brief to an appellate court. Consequently, this is the last issue of the newsletter in its current format. Future newsletters will report briefly, informally, and intermittently about the activities of TAFOL and its members. As always, TAFOL welcomes submissions from members and others.

* * *

TAFOL is calling for volunteers to serve on the following committees:

1. The Ayn Rand Institute Pro Bono Committee: Volunteers would make themselves available to provide pro bono legal assistance to the Institute.

2. Amicus Topic Committee: Volunteers would undertake to follow developments in assigned areas of the law and identify amicus opportunities.

Please write to TAFOL if you would like to work on one of these committees.

* * *

TAFOL wishes particularly to thank member Tom Bowden for his extraordinary efforts and valuable intellectual contributions in publishing the newsletter.

Copyright © 1990 The Association for Objective Law. All rights reserved.
The Association for Objective Law is a Missouri non-profit corporation whose purpose is to advance Objectivism, the philosophy of Ayn Rand, as the basis of a proper legal system.