As many in our audience may already know, frequent ARS presenter Tara Smith (UT Austin) has a new book out, Judicial Review in an Objective Legal System (Cambridge University Press, 2015). The introductory chapter of the Cambridge volume is also available online.
Recently a number of items of interest related to Professor Smith’s book have popped up on the Internet. Here is a link to an interview she conducted with the student publication The Undercurrent. Since we’ve recently been discussing the concept of “objectivity” and its relation to Rand’s thought, here’s an excerpt from that interview that speaks to this issue:
TU: Let’s turn to your own theory, then. A distinctive feature of your approach lies in your portrait of objectivity, which you say is a method for “getting reality right.” What are some of the core features of objectivity, and why should a legal system be concerned with it?
Dr. Smith: We seek objectivity in a range of areas. I draw on the paradigm of the scientific method to explain the way in which, at its core, objectivity does revolve around the effort to “get reality right.” Sometimes, the object we want to “get right” is physical—we want scientific researchers to be objective in testing pharmaceuticals or medical treatments. But we also recognize that a historian, a journalist, a juror, a person grading students or hiring workers can be objective or non-objective. He can reach his conclusions and make his decisions for good reasons or for bad ones—on grounds that don’t truly help him understand the nature of the object in question. Will this guy be good at the job, if I hire him? Did this person commit the crime? The point is, there’s a reason to be objective—and that helps us understand what objectivity is. The aim of objectivity is to reach good answers to our questions, to get the right answers—about the efficacy of the drug, the ability of a person to do good work, etc.
Now in law, the “reality” to get right isn’t physical, it’s the law. Courts must figure out what the words of the law mean, in their full context, rationally interpreted—and what uses of government power the laws do and don’t authorize.
Professor Smith elaborates on this conception of “objectivity” in chapter 1 of her book. In particular, she takes care to distinguish what’s essential to the concept (fidelity to the facts in one’s thinking) from derivative characteristics often confused with objectivity itself (publicity, scientific replicability) and from what she (and I) take to be mistaken understandings of the concept (especially as a kind of value-neutrality). There’s a lot here that connects to last week’s post about the history of the concept of “objectivity.”
I was also pleased to see that Professor Smith recently did a Cato Institute “Free Thoughts” podcast with Trevor Burrus and Aaron Ross Powell on her book and related topics. Here is an embedded version of the audio:
Topics discussed include the relation between epistemic objectivity and the objectivity of law, the role of an objective court in interpreting and applying unjust law, and the value of the rule of law. There are also interesting discussions of the relevance of Smith’s work to debates about same-sex marriage and about the judicial nomination process.
Burrus and Powell’s interview questions often seem to dance around libertarian concerns about jury and judicial nullification of unjust laws and even about the state monopoly on the use of force. I think a suitable topic of conversation in the comments section here might be about how Rand’s understanding of epistemic objectivity informs her view of the need for objective law in relation to the state monopoly on force. Who has thoughts?
I should also note that Professor Smith’s book develops in greater detail themes touched on in her chapter on objective law in the forthcoming forthcoming Blackwell Companion to Ayn Rand, which is now available as an E-Book.