Friday 29 January 2021

The rule of (objective) law



"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. ... In order to define a standard for evaluating law, one must refer to the purpose of government....
    " '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.' ... not from the whim of legislators or bureaucrats but from a rational application of the principle of individual rights....
    "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.' 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 ... an objective law does not declare, for instance, Thou shalt not kill---period,' a notion which would equate murder and self-defence....
    "[I]t 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....
    "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....
    "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) ...
    "[L]aw 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 society is to be free, its government has to be controlled'."
          ~ Harry Binswanger, from his article 'What is Objective Law'
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1 comment:

Terry said...

I am glad you chose a picture of Justice without a blindfold. A personification of Justice blindfolded has historically been a critique of the courts and narrates injustice based on the idea of the wicked hoodwinking judges. That idea was prominent in Ancient times as well as in the Renaissance. It is only later that the rationalisation of impartiality arose, something that had previously been narrated by Justice's maidenhood.