How could humans arrive at objective laws?

This question -- an epistemological question (though oft-masqueraded as a political question) -- was posted in the intellectual property rights thread.

I'll post an answer soon, but I'm interested in the thoughts of others here now.

Ed

Post 1

Monday, April 14, 2008 - 6:29pm

I don't think most humans have reached that evolutionary level, present company excluded.

I was doing the laundry and watching the news broadcast about that dirty little town in Texas, the one where law enforcement toted away several hundred young women and girls from that creepy Mormon compound. You know. Ugh, what to do?

Religion isn't going away. I can't see it ever going away.

Post 2

Monday, April 14, 2008 - 8:16pm

In the Law forum on this site, Michael Marotta posted a similar topic: "What is an Objective Justice System?"

At Post 17 of that thread, I responded:

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No point in talking about whether or how objective law is possible if you don't know what is required of 'objective law.'

I'd imagine that under Objectivism, an objective law is one that protects (morally derived) rights by (a) correctly identifying those rights, (b) correctly identifying when those rights are violated, (c) properly preventing rights violations, and (d) identifying proper consequences for rights violations.
*

How is this any different from that thread?

Jordan

Post 3

Monday, April 14, 2008 - 9:11pm

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How is this any different from that thread?
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This thread is general public, that thread is member-only.

Ed

Post 4

Monday, April 14, 2008 - 10:09pm

I see. Thank you.

Jordan

Post 5

Tuesday, April 15, 2008 - 4:42am

I'll take a stab at this.

How could humans arrive at objective laws? Objectivity, of course.

I wont say whoever asked this question wanted to dress up the old 'who am I to tell right from wrong', however, the theme is the same. The result of this question is present day law and political correctness or tolerance. Since no man, according to a subjectivist, can know everything, how can any man claim to know when he or anyone else has done something wrong? And, if no man can make this claim, then no man can create laws which are good for all men.

This reasoning is silly. A carpenter is not likely to know every detail of a building he is working on, yet this does not stop him from doing his part to erect the building. Likewise, a man cannot know every fact in the universe, but this does not and cannot stop him from making choices. If a man is faced with the choice of taking one job over another, it is irrelevant whether the deli down the street has ham on rye.

Through reason and logic a man can arrive at what is objective. He is faced with a choice or question; he thinks 'this' may be the answer; he takes the information known to him or gathers new information as needed; he reduces this information into concepts and then further reduces the concepts to axioms (such as A is A); if his original answer was wrong he will change it.

That's my Epistemology 101 answer.

Post 6

Tuesday, April 15, 2008 - 6:58am

Jordan: In the Law forum on this site, Michael Marotta posted a similar topic: "What is an Objective Justice System?"
At Post 17 of that thread, I responded:
No point in talking about whether or how objective law is possible if you don't know ...
Steve: I wont say whoever asked this question wanted to dress up the old 'who am I to tell right from wrong', however, the theme is the same. The result of this question is present day law and political correctness ...

Actually, I was assuming that reality is real and existence exists and that reason -- the faculty that identifies and integrates your perceptions -- is competent, etc., etc., etc., etc.

I was wondering what objective basis exists for trial by jury? Why a jury of 12 (or 6), as opposed to an odd number? In Athens, juries ran into the hundreds; 535 voted on Socrates, if I recall correctly.

What is the objective basis for a "speedy" trial? Long ago, I learned that a kangaroo court is one where justice proceeds by leaps and bounds. I prefer a slow, deliberative trial. Who decides how speedy a speedy trial should be. Some of them drag on for years. That can be worse, which is why there was that speedy trial mandate at first, so as not to wear down the defendant. As a child in front of a B&W TV watching 1940's B-movie westerns, I learned the line, "Let's give him a fair trial and hang him." What is the objective standard? How is it objectively applied?

Many people -- even my professors -- mistakenly quote by faulty memory the non-existent proviso for a trial by a jury of your peers. America has no peerage. That was from British law and meant that yeomen would try each other, nobles each other, and (presumably) royalty each other, though such has not been the case for centuries. But -- objectively -- should it not be? Would it not make sense to be tried by a jury of people who are -- by objective standards, if they exist -- your equals. As it is now, juries are comprised of people who really care and those who really do not. You do not get a lot of people who are tempted by $23 a day.

Maybe they should be paid more based on their experience and the correctness of their verdict? (Not overturned on appeal, for instance.)

Speaking of that, should juries not be held criminally liable for finding an innocent person guilty?
Should juries not be held criminally liable for the acts of a guilty person released to do more harm?

What is the objective standard for answering those questions and what are the objective answers?

Police officers derive their powers as officers of the court. The court is supposed to be neutral. When the police officer appears as the plaintiff -- civil infraction: traffic ticket -- should he be paid for his time? One officer here locally makes over $100,000 per year in bad tickets. People fight them; he gets paid to be in court. Who pays the defendant? If the defendant is found not guilty,the prosecutor (as plaintiff) should be required to pay for all of the expenses incurred by the accused.

Michigan has not had capital punishment since 1841... except on the street. A police officer has more power than the state. Is that objectively right? If an officer takes a life, is that not homicide, requiring a defense? (There is a hearing, but not a trial, a big difference.)

What constitutes "evidence" objectively speaking. One of my professors (Young Kim) recently garnered attention for a paper on "the CSI effect." Do jurors expect hard evidence? In one case, a juror wanted to know why the police did not check the lawn for fingerprints. In fact, few cases hinge on evidence. Most are pleaded out. The rest are settled by testimony.

We know for a hard, solid, objective fact that eye witness testimony is unreliable. Why do we allow it (objectively speaking)?

Lest there be any misunderstanding here, I know what objective reality is. I perceive iniquities and inequalities and injustices in the operation of the criminal system and I identify as the source of those problems the implicity stated mixed-premise philosophies of the uncoordinated people who built this ad hoc system. I just was looking for objectivity, nothing more, nothing less.

Post 7

Tuesday, April 15, 2008 - 7:08am

So, Ed Thompson is asking the deeper question: What are the standards of knowledge to arrive at objective law?

It is one thing to quote Ayn Rand about the protection of property rights, but as the Intellectual Property discussion showed, the devil is in the details.

It was said there that you cannot land on a planet and claim the whole thing for yourself because you cannot "mix your labor" with it. But my wife's great++grandfather came to northern Michigan in 1867 and got a square mile to himself. Where do you objectively draw those lines? -- That, as I understand it, is Ed's question. Not should he own this much or that much, but by what standard do you decide?

Furthermore, I see in Ed's "could" (rather than "can") an understanding that there may be more than one right way to do this.

Post 8

Tuesday, April 15, 2008 - 7:21am

The problem, Steve, is that men disagree with each other and that everyone has the right to be wrong. It's fine to sit in the ivory tower and point out that there is only one right answer, but unless someone has aggressed against another no one has the right to use force against him.

This would seem to significantly limit the scope of objective law.

Is it more objective to specify in minute detail all the different kinds of theft thereby implying that if it's not specified then it's not theft or would it be more objective to simply say that theft is illegal and then leave it up to the judge and court, the ones who presumably have the greatest knowledge of the particulars of the case, to decide whether this specific instance qualifies as theft?

Errors will occur whichever answer you give so the next questions are which is least likely to make an error and which is most likely to give the correct result. Those two questions are not the same so now you have the question of which of those two questions is more important?

Which is more objective: 10 (or 100 or 1000) guilty going free or one innocent being punished?

These questions cannot be answered by simply saying "Monopoly government is the only way to the truth."

Post 9

Tuesday, April 15, 2008 - 10:29am

Mike...Rick... what the hell are you guys talking about?

First to Mike. I have not read any post of yours on the issue of trials or law. I'm sure they exist. Nevertheless, I have not read them and so can't respond to them. I was responding to Ed's question: how could humans arrive at objective laws? Not anywhere in your lengthy post did I read anything about how one would come to an objective law. Any ideas?

Rick, your post is worse than Mike's. First objectivity does not require the sanction of other men. When a conclusion is right, it is irrelevant whether someone disagrees. Right is right. There are no differing levels of rightness. Rightness is not subtle. It is what it is. A is A. Because of this, there can be no limitations to objective law.

Your false alternative - a detailed description of each individual crime or judges shotgunning through cases wild west style - exhibits a lack of understanding of objectivity. I'm just a truck driving punk rocker, but I bet in a week, with enough time and thought, I could come up with a vastly superior system than the ones given.

I will agree with you on one point, but only half way. Errors will occur if we choose either of the above options. However, error is not fixed to man. Because there is a third or fourth or tenth way and because one of these ways is the right, objective, way, there need be no fear of guilty men going free and innocent men being punished. A good theory, whether it is in law or love or business, is good because it takes all the facts and uses them in a noncontradictory way. So, if the theory is right the theory will work.

That's my Epistemology 201 answer.

Post 10

Tuesday, April 15, 2008 - 4:36pm

Under Objectivism, I'd suggest that law is objective to the extent it is derived through a process of reason. So to answer the question -- we could arrive at objective laws through a process of reason.

What does a process of reason look like? Well, in terms of common law, much of such a process deals with protecting objectivity from those nasties that like to chew away at it, e.g., superstition, bias, illogic, deception, etc. There are plenty of ways that these nettles creep up, so it's no surprise that objective laws might arise in any number of ways in response.

Of course, a reasoned process also entails protecting objectivity by adhering to those goodies that comprise it, e.g., logic, temperance, deliberativeness, etc. Again, there're a bajillion fact patterns to which we might apply these lovelies, so again, objective laws need not be monolithic.

Now sure if I addressed what Ed was getting at.

Jordan

Post 11

Tuesday, April 15, 2008 - 5:10pm

First objectivity does not require the sanction of other men.

Steve, objective law absolutely requires the sanction of other men.

When a conclusion is right, it is irrelevant whether someone disagrees. Right is right. There are no differing levels of rightness. Rightness is not subtle. It is what it is. A is A. Because of this, there can be no limitations to objective law.

But rightness can be subtle. How would a right conclusion be tested in order to determine it's rightness? I know right and wrong are usually plain as day, but that's not always the case.

Mike and Rick raise interesting questions. This isn't an easy subject. How minute would crimes have to be defined? That is the object of law, isn't it? To restrict action, not to permit it. How specific would the law have to be?

For example, how would objective law treat client privilege?

I read an interesting story the other day about an innocent man convicted of murder, who's been sitting in prison for almost 20 years. The public defenders for the real killer knew he was innocent, because their own client admitted to the crime. Now, client privilege is a principle that states, in part, that defenders can't throw their own clients under the bus by revealing anything a client may say. Defenders are sworn to defend, and with rigor. They are paid advocates of the accused. How difficult would it be defend someone if you didn't really have to? How fair does an objective system of law have to be?

I personally think there needs to be a mechanism to allow lawyers to be let off the hook under circumstances like this. What say you?

Post 12

Tuesday, April 15, 2008 - 8:31pm

Sidenotes:

The way out of that mess Teresa mentioned is to make a "noisy withdrawal," which is a way to tell without using words that something is super wrong with your client's case.

Perhaps contrary to Marotta, I'd say the jury of our peers lives on in the U.S., albeit without the yeoman requirement. We took our system from the British system, and nowadays, rather than saying "peers," we say a "fair cross-section of society." The "society" comes from the district where the court sits, so the jurors are "peers" by virtue of geographic proximity.

Jordan

Post 13

Tuesday, April 15, 2008 - 8:35pm

TSI: ... an innocent man convicted of murder, who's been sitting in prison for almost 20 years. The public defenders for the real killer knew he was innocent, because their own client admitted to the crime. Now, client privilege is a principle ...

Now, there is a poser...

What would you answer? I would say that there exists a stronger test of justice that requires that the public defenders do everything they can to free the innocent man. The challenge is to do that without violating the privilege of client communication.

But in the context here, the question is "how do you decide?"

In science, we know that theory and experiment must be integrated. The test results have to fit the math and the math must describe the event.

What would the legalistic equivalent be? Is there one? In the social sciences we still claim to be a science even though we cannot meet that Newtonian standard. The reason why is that people are more complicated than billiard balls. Such is their (objective) nature.

Jordan: "Under Objectivism, I'd suggest that law is objective to the extent it is derived through a process of reason."

That is easy to agree to. The other side of that equation is the empirical. Objectivism is rational-empiricism. What does the experiential side look like when justice operates? Is it just that one side wins its case and extracts its due from the loser? Would justice display a win for both sides?

Post 14

Wednesday, April 16, 2008 - 3:54am

The challenge is to do that without violating the privilege of client communication.

The two defenders were approached by the innocent man's council on more than one occasion, but would only tell them "you are representing an innocent man." That is all they felt they could say.

These two guys even sought the help of legal scholars in an effort to get around the rule, but all told them there was nothing they could do.

Here's a link to the story.

(Edited by Teresa Summerlee Isanhart on 4/16, 4:01am)

Post 15

Wednesday, April 16, 2008 - 4:41am

For one thing, this demonstrates with a specific example the difference between absolutism and objectivism.

Client-attorney privilege is a principle, nothing less... or more. Principles exist in contextual hierarchies. Your "freedom of speech" (in public places) does not give you the right to come into my home to speak to me. Even in public places, your freedom of speech -- freedom not to be arrested by a court officer for the content of your speech -- does not give you a right to disturb the public order with an amplifier.

So, I now regret my allowing the proviso "as long as it does not violate client-attorney privilege." That violation would have been in the service of justice according to an objective standard, but was impossible according to an absolute standard.

The guilty man's admitting the crime, but relying on privilege is the same as his not admitting it.So, there is no consequential difference.

What we seek to avoid is your telling your lawyer how and why you committed a crime so that your counsel can arrange the best defense, whereas admitting it at all to the prosecutor only gets you convicted. The classic case is the alibi you cannot use -- in the arms of another mans' wife. Your lawyer can hold that secret while understanding your innocence thoroughly enough to pursue your defense.

As for privilege, it is not absolute. As Mormons and the Bishop of Rome are in the news today, it is interesting to note that the State of Utah does not recognize the privilege of the confessional. If a Catholic priest refuses to give testimony based on what he was told, he can be put in jail for contempt. (Seems there is a religious difference involved...)

Post 16

Thursday, April 17, 2008 - 7:22pm

The issues regarding the Mormon compound were well stated in today's Orange County Register editorial section. I had been wondering how long it would take for someone to step forward and point out how utterly ridiculous this whole affair is and how thoroughly the Amerikan public has become like sheep to the slaughter. How long ago was Waco and the Branch Davidian massacre? And what dark response is being plotted now against the authorities?

So, some anonymous girl - or someone with a $39.95 voice changer - calls the Texas cops and complains that she is being raped by a husband she never chose. Naturally, they send in the goon squad with the armored cars and arrest everyone in sight - hundreds of people, all because they are "victims" of a "cult." Their children are naturally taken away and put in "protective custody." Hundreds of their homes are ransacked looking for "evidence" of wrongdoing. And their cell phones are confiscated lest they get instructions from a "cult leader."

On this sort of legal basis, anyone anywhere can be arrested and kept incommunicado for any length of time without the slightest basis in fact. But that has already been the case for several years now. My deceased uncle, who had some interesting connections in high places, told me a few years ago that in the state of Massachussetts alone, he had reason to believe that several hundred people had been simply disappeared as alleged "enemy combatants."

Is that simply an old man's paranoia? How would we know? Because the administration denies it? - or refuses to discuss the matter anyway... Like they denied the secret CIA prisons?

Note that the position of the Bush administration is that any Amerikan citizen can simply be put away indefinitely - not only indefinitely with no access to counsel, but with the proviso that anyone who does know that they are being held can also be arrested and also held indefinitely without any communication if they breath a word of it to anyone else. The ACLU has been put in the position more than once, if memory serves, of not being able to tell the court who was being held or any information that would have been essential to the court making the decision to demand either their release - or even more information. I.e., you can't speak for yourself, nobody can speak for you and the courts cannot look at any evidence. You are simply gone.

In that light, the Texas affair is hardly surprising, or even that extreme, although in times past it would have been grounds for an insurrection. The War on Terror? Sorry, they won. "We have met the enemy and they are us."

Post 17

Friday, April 18, 2008 - 9:45am

Do you have any evidence this is the case Phil or is this just fear-mongering? I think it quite reasonable that 14 year old girls being forced into polygamous relationships with men 40 years their senior is a coercive relationship.

Post 18

Saturday, April 19, 2008 - 1:10pm

http://www.sltrib.com/polygamy

There was another story from a major media source that I saw this morning that I've managed to lose the link on which went into detail regarding the history of the Texas compound, as well as the presumed basis for the raid, which still remains an anonymous phone call. BTW, the latest news is that the alleged molestor of Ms. Anonymous has not even been in Texas at all for the past five years.

If indeed there were 14 year old girls being forced into anything, much less a marriage, that would constitute coercion and should be stopped. The issue is how our legal system operates. An anonymous caller claims that some law is being violated and so a hundred or more swat team goons are sent into what everyone agrees was to all outward signs, a peaceful and highly productive religious enclave. Women are siezed and sequestered as "victims," even though none of them complained - and somehow feminists are NOT outraged? What? Women have no minds of their own? Over four hundred children are placed in "protective custody," even though no evidence was available at the time of the arrests to justify the conclusion that they were being abused. Homes on a huge scale are ransacked in a fishing expedition to find evidence of some crime that could justify the raid.

Personally, I would not be surprised if there were various violations of human rights going on inside this Texas enclave's compound. However, the issue is still how the authorities responded. There is a close parallel between this and the "Enemy Combattant" or the Guantanemo prison issues in how people have responded to the authorities' behavior. So often, I hear something like, "Oh, but we can't afford to treat 'these people' with 'kid gloves.' If they're out to kill us, we have to respond appropriately."

Yes? Is anyone denying that? The response has no logical connection to the objection, but of course that logical non-sequitur is the best line that the authorities could come up with. Nobody apart from the actual criminals is objecting to the incarceration of people who represent a clear and present danger, and nobody, apart from would-be child-molestors, is arguing that 14 year old girls - or any girl - should be forced to have sex with anyone.

But is it a good idea that the chief executive of the state can simply secretly incarcerate anyone, anywhere, on the basis of whatever secret evidence just on his or her word? The point of having a legal system is to require objective verification through a transparent set of procedures, so that we will be reasonably assured that neither we nor any other person can simply be disappeared at the behest of whomever is in power. If you're going to snatch someone, then be prepared to justify it. Simply saying, "I'm the president," is not legal. Or, do we want a dictatorship here in Amerika - in order to protect our "freedoms?"

Maybe the real reason that we haven't had a repeat of 9/11 or something similar is that Osama and his cronies are sitting around laughing their heads off as Amerika does to itself what they could never have accomplished themselves. Which does their cause more good? That they blow some more stuff up and kill some more Amerikans? Or that Amerika betrays all the supposed values that made it a beacon of freedom in the name of security, in a self-sustaining frenzy of paranoia?

Post 19

Saturday, April 19, 2008 - 2:25pm