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The numerous legal frameworks that purport to regulate various industries in the United States and Canada entail gross violations of individual rights, most commonly property rights and the freedom of contract. Clearly, these laws are disconnected from the fundamental justification for the government's monopoly on the retaliatory use of force.

In this context, should an Objectivist judge, tasked with the implementation of such a regulatory regime, adhere to objective principles of judicial interpretation? Should he rule according to the clear and plain meaning of the regulations (if any such thing can be said to exist, given the popularity of terms like "in the public interest" - but let us assume for the purposes of this question that an objectively ascertainable meaning of Law A is possible, and that the meaning violates right X)? Alternatively, should he bend over backwards to vindicate individual rights in the face of such a violation, perhaps by relying on obviously weak interpretations of terms or by ignoring sections of relevant laws that are adverse to his preferred interpretation? Is there a third route available to him?

Although this appears to be the quintessential "lose-lose" situation, what advice would you give such a judge in reaching the best possible verdict?

asked Nov 22 '10 at 16:47

Fortitudine's gravatar image

Fortitudine ♦

edited Nov 24 '10 at 12:57

The proper response depends on how corrupt the legal system has become. If the government has become fundamentally hostile to individual rights, as was the case in Atlas Shrugged (or in modern totalitarian states like Nazi Germany or North Korea), then withdrawing sanction and support from the system as a whole is an appropriate response. This applies to judges as much as to any other profession under a totalitarian regime.

The more interesting question is the mixed case, as in the United States today. If we take the view that an Objectivist cannot morally act as a judge in a mixed economy due to the risk of having to enforce unjust laws, we cede control of the government to those unconcerned with the justice of the laws they enforce. While every individual has their own limit, I think there would be great value in a judge who explicitly upholds the rule of law by enforcing unjust laws while simultaneously explaining the injustice of the law being applied. Mixed systems survive in part by never letting the nature of what they are doing become clear. An Objectivist judge who made clear the implications of consistent application of unjust laws might well be a great force for good in the culture. It is also worth noting that there are choices other than 'apply the law' and 'resign' -- for example, a judge might recuse himself from a particular case if he found himself unable to render objective judgment on it under the law as written.

An Objectivist judge should not subvert the rule of law by acting as though a law does not mean what it objectively does mean. That would be a form of usurpation, and accepting it as a principle by which judges in general should act would replace the rule of law with rule from the bench. Tara Smith's article "Why Originalism Won't Die: Common Mistakes in Competing Theories of Judicial Interpretation" touches on some of these issues, particularly in Section VII.

answered Dec 20 '10 at 17:58

Kyle%20Haight's gravatar image

Kyle Haight ♦

If we are talking about an Objectivist judge, he should resign -- if the law truly leaves him no legally defensible latitude. What else is a judge supposed to do if a legislature says that something shall be illegal and the judge disagrees? If the judge fails to uphold the legislature's will, he is likely to be removed from office anyway. If he wants to refuse to enforce a bad law and has no choice about it if he remains on the bench, then he should resign from the bench in protest. In fact, failure to do so could be a form of sanctioning evil.

There is actually a fictional "precedent" for this in Atlas Shrugged, in the character of Judge Naragansett.

Before resigning, however, any Objectivist judge would do well to examine closely whether or not the law truly allows him no leeway in interpretation and application.

answered Nov 24 '10 at 02:30

Ideas%20for%20Life's gravatar image

Ideas for Life ♦

My issue is narrower than your answer suggests.

Allow me to rephrase: Faced with a particular fact-pattern under which a right requires decision A but the law demands decision ~A, what should an Objectivist judge do? I don't think "quit" is the answer.

Put yet another way: The rule of law means loyalty to objective rules of interpretation. Should an Objectivist judge stay true to these rules (and perhaps register his opposition to the law in his judgment)? Or should he abandon objective interpretation to vindicate the right?

(Nov 24 '10 at 12:34) Fortitudine ♦ Fortitudine's gravatar image

The job the judge signed up for is to properly apply the rules in place, not what he believes are the proper laws. As such, if he is an Objectivist then yes I would suggest resigning if there is no way to get some form of the proper result through legal tricks or what have you, and finds having to make such an improper application of the law in that specific context to not be something ethically permissible to him. If he wishes to not resign I suppose he can register his opposition, but I am not sure how that is done.

I am just throwing this out there, but this is what makes sense to me.

(Nov 24 '10 at 15:00) capitalistswine ♦ capitalistswine's gravatar image

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Asked: Nov 22 '10 at 16:47

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Last updated: Dec 20 '10 at 17:58