Dykes on objective law
October 23, 2018 3 Comments
Nicholas Dykes has written a paper criticising objectivist criticisms of anarcho-capitalism. I’m not going to say much about most of the article in this post, except for one brief comment on note (30):
Peter Saint-Andre chided me for claiming that the Law Merchant and other customary laws are entirely objective without providing a definition of what I mean by ‘objective’ law. Since Rand did not define objective law, other than to contrast it with bureaucratic whim, we cannot turn to her for guidance. I therefore propose this definition: an objective law is a moral principle (and its derivatives) known to all adults of sound mind in a community and accepted by them as a rational and binding guide for dealings with other people.
It follows from this that if one person thinks it is acceptable to murder people when you get angry, then a law against murder wouldn’t be objective. And if all adults accepted a ridiculous principle that can’t be implemented, then that principle and all of its implications would constitute objective law. Dykes’ objective law definition is just the whim of a mob, which is not objective by any reasonable standard.
Dykes’ claim that Rand didn’t define objective law is also wrong. I found her definition of objective law in the Ayn Rand Lexicon:
All laws must be objective (and objectively justifiable): men 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.
Rand’s definition makes sense unlike Dykes’ definition. (The only part of Rand’s definition that doesn’t make sense is saying the law must be justifiable. Justification is impossible, so no law is justifiable. The rest of the definition is okay.) Rand’s definition highlights an important property a law can have by virtue of its implications, not because people happen to agree with it. Antitrust law is non-objective because it is impossible to tell in advance of taking an action whether that action breaks anti-trust law: see chapters 3 and 4 of Capitalism: The Unknown Ideal,and for discussion of more recent cases see Antitrust: The Case for Repeal by Dominick Armentano. By contrast, if you commit murder, then you know in advance that you’re breaking the law so that law is objective.
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> This definition mostly makes sense, except for the part about justification, unlike Dykes’ definition.
Minor thing: I think you may mean it *does* make sense, except the justificationism. As written with double qualifiers, it seems to suggest a part other than the justificationism doesn’t make sense (hence only “mostly” even when excepting the justificationism). (And if you do mean that the non-justificationism part only mostly makes sense, some readers may guess that’s not what you meant, since you don’t point out any other flaws. A better way to present that would be it mostly makes sense, but has some flaws, *for example* the justificationism. Presenting it as an example of one of multiple flaws, instead of an exception, would work better if that’s the goal.)
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Regarding the rest, that’s bad of Dykes. I saw a similar error a couple days ago. A guy quoted a Rand passage trashing libertarians. Then he said that since she didn’t name names, it’s hard to respond and rebut it. But she did name names, and give other details, in other passages… E.g. she called Hayek “poison” and she made some negative comments about Friedman and his *Free to Choose* TV show.
I changed the discussion of Rand’s definition to make it clearer, thanks.
People don’t look up arguments that contradict their position, sigh.
Just today, I paid for arguments that contradict my position (a Rand criticism article): https://www.newcriterion.com/issues/2010/2/ayn-rand-engineer-of-souls
The guy who didn’t look things up about Rand, while writing negatively about her, is some sort of prestigious Mises Institute scholar: https://en.wikipedia.org/wiki/Gerard_Casey_(philosopher) The material is in his very-serious-appearing book _Freedom’s Progress?: A History of Political Thought_