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Excerpt from The Music of the Laws

In his 1982 collection of legal essays, The Music of the Laws, Daniel Kornstein includes an essay discussing "Ayn Rand's Legal World."

Ayn Rand would probably agree with the critique of "subjective judicial policy-making." "Humanity's darkest evil, the most destructive horror machine among all the devices of men," says one of Ayn Rand's fictional characters, "is non-objective law." It is hard to tell the difference between what Ayn Rand calls "nonobjective law" and what critics call "subjective judicial policy-making." They are only slightly different ways of saying the same thing.

Ayn Rand frequently talks of the need for law that is objective. "Men need an institution charged with the task of protecting their rights under an objective code of rules. This is the task of government -- of a proper government -- its basic task, its only moral justification and the reason why men do need a government. A government is the means of placing the retaliatory use of physical force under objective control -- i.e., under objectively defined laws." "All laws must be objective (and objectively justifiable)." "A complex legal system, based on objectively valid principles, is required to make a society free and to keep it free."

The highly abstract nature of such remarks makes it somewhat difficult to know precisely what "objective law" means. It is also difficult to know how legal objectivism relates to legal philosophy. Is legal objectivism another term for Legal Formalism, by which judges feigned objectivity? More concrete meaning may emerge from the clash between society and the individual as depicted by Ayn Rand.

To dramatize the clash between the individual and society, Ayn Rand often uses the device of a trial. In both The Fountainhead and Atlas Shrugged, a courtroom trial of a hero takes place. In The Fountainhead, architect Howard Roark, whose buildings challenged a tradition-bound profession, faces criminal charges for dynamiting a housing project because his original design was changed. The trial is the book's highpoint.

Roark has no lawyer; he represents himself. He picks his own jury, choosing jurors with the hardest faces. "A lawyer would have chosen the gentlest types," writes Rand, "those most likely to respond to an appeal for mercy." [...]

Roark's courtroom speech is unforgettable. [...] After Roark's speech, the hard-faced jury took no time at all to return a verdict of not guilty.

There is a similar trial scene in Atlas Shrugged. There, Hank Rearden, a steel industrialist, is charged with breaking an economic regulation. Like Roark, Rearden goes to trial without a lawyer and wins over the courtroom with a plea on his own behalf, though he refuses to present any formal defense. [...]

For another look at Ayn Rand's concept of law, we need only listen to one of the characters in Atlas Shrugged, retired Judge Narragansett, "one of those old-fashioned monks of the bench who thinks like a mathematician and never feels the human side of anything." "The law ...?" said Judge Narragansett, "What law? I did not give it up -- it has ceased to exist. But I am still working in the profession I had chosen, which was that of serving the cause of justice ... No, justice has not ceased to exist. How could it? It is possible for men to abandon their sight of it, and then it is justice that destroys them. But it is not possible for justice to go out of existence, because one is an attribute of the other, because justice is the act of acknowledging that which exists."

A little later, Judge Narragansett explains why he left the bench. "I quit when the court of appeals reversed my ruling. The purpose for which I had chosen my work, was my resolve to be a guardian of justice. But the laws they asked me to enforce made me the executor of the vilest injustice conceivable. I was asked to use force to violate the rights of disarmed men, who came before me to seek my protection for their rights. Litigants obey the verdict of a tribunal solely on the premise that there is an objective rule of conduct, which they both accept. Now I saw that justice was to consist of upholding the unjustifiable. I quit-because I could not have borne to hear the words 'Your Honor' addressed to me by an honest man." In fiction, at least, judges resign for reasons other than money.

Ayn Rand also connects law and individual liberties. "'Rights are a moral concept," she says, "the link between the moral code of a man and the legal code of a society, between ethics and politics. Individual rights are the means of subordinating society to moral law." "The purpose of law and of government is the protection of individual rights." But it is precisely in this area of individual rights that Ayn Rand makes even ardent admirers pause.

Individual rights depend on tolerance, a quality Ayn Rand lacks. "A basic premise is an absolute that permits no cooperation with its antithesis and tolerates no tolerance." That kind of rigid statement is inconsistent with pluralism. It hardly encourages dissent from the party line. If there is one basic flaw in Ayn Rand's legal philosophy, it is this contradiction between concern for individual rights and the clear tone of intolerant dogmatism. Even with this flaw, however, Ayn Rand's legal world has something to teach us lawyers. A lawyer need not agree with all of Ayn Rand's legal philosophy to be moved by her character portrayal. Ayn Rand's characters inspire. [...]

From The Music of the Laws, pp. 90-93. Omissions from the text are shown with bracketed ellipses. All other punctuation and spelling is from the original.

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