Two weeks ago at the American Philosophical Association’s Eastern Division Meeting, the Ayn Rand Society held an “Author Meets Critics” session on Tara Smith’s 2015 book Judicial Review in an Objective Legal System.
Dr. Smith’s critics were Timothy Sandefur (of the Goldwater Institute), Onkar Ghate (of the Ayn Rand Institute), and Mark Graber (of the University of Maryland’s School of Law).
Mr. Sandefur’s comments took the form of a paper that raises a number of interesting questions about the nature of law and its relation to the language in which laws are expressed, and about how an ideally objective judge (as, for example, Judge Narragansett from Atlas Shrugged) would deal with a number of tricky issues of legal interpretation. Dr. Smith’s reply focused on the issue of the nature of law and its relation to language.
Dr. Ghate’s comments raised questions about the book’s subject matter and basic line of argument. Dr Smith focuses on judicial review in America’s legal system, which she regards as largely objective, and one of the questions Dr. Ghate raised was about what guidance her theory gives judges for dealing with the significant elements in this system that are non-objective (by her standards)—elements such as slavery at the time of America’s founding and the anti-trust laws and welfare state today. He also asked whether any of the theories of judicial review that Smith criticizes attempt to explain how judges should proceed in a less than objective system?
Dr. Graber, who spoke from a detailed outline, rather than a written paper, focused on the role in a legal system of the institutions designed to maintain or realize its principles. He asked what set of institutions would best realize the requirements of an objective legal system as Smith understands them, and suggested that some other forms of government may come nearer than the United States’. He also raised the question of whether protecting rights, which Dr. Smith argues is the basic purpose of an objective legal system, might require a welfare state to prevent exploitation.
Members and Contributors to the Ayn Rand Society can download Sandefur’s and Ghate’s comments, Graber’s outline, and Smith’s responses to all three, from the recent papers section of the Society’s website. They can also access papers from the last three years of ARS sessions. Readers who are interested in becoming members or contributors can do so at our membership and affiliaition page.