Legal System of Capitalism: Objective Law

“A government is the means of placing the retaliatory use of physical force under objective control —i.e., under objectively defined laws. . . . If a society is to be free, its government has to be controlled.” — Ayn Rand

A proper government subordinates force to an objective rule of law (reason)

Political power is the power to use force legally, i.e., the police power to kill. Given the inherent dangers such power poses, the use of such power is expressly limited to enumerated powers and regulated according to an objective rule of law (under statism the government operates under a “fluid,” non-objective “rule of men.”)

“All laws,” writes Rand, “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.”

Such a system holds the private individual innocent until proven guilty in a court of law before an impartial judge operating under objectively formulated laws (“rule of law”), as opposed to guilty until “proven” innocent according to the arbitrary whims of a dictating bureaucrat (“rule of men”).

(Conversely, any action by a public official — given all such actions are a use of and backed by the threat of physical force — holds the bureaucrat as guilty of mis-using that power unless the state official can show that their use of physical force is justified.)

The purpose of the law is the protection of individual rights

The rule of law, is not an end to itself, but in a proper society is a means to a singular purpose: the protection of individual rights.

Government as a referee and not a regulator

The actions of government officials are regulated in minute detail with no room for arbitrary discretion as the government carries the legal power to use force. Under capitalism, the powers of the government are regulated so that the inalienable rights of the individual are protected, i.e., the government official operates by permission, and the private individual lives by right. This is accomplished through a written document called a constitution: a citizen’s protection against his government.

A constitutional republic organized with safeguards to protect the rights of the individual

A constitution — the supreme law of society — is a citizen’s protection against public officials who seek to imitate the private criminal’s methods of coercion to achieve their objectives. Such a written document objectively delimits, separates, and balances the powers of government amongst its branches (executive, judicial, and legislative), so that political power – the power to legally use physical force – cannot be concentrated in any single branch or faction, with each branch being a check on the power of every other.

The purpose of such constitutional “checks and balances” and “division of powers” is to prevent the majority (“Demos”) in power (“Kratos”) that runs the government from violating the rights of any minority (the greatest minority being the individual).

The political-legal structure of capitalism is not a democracy (“dictatorship of the majority”), but a constitutional republic. (“Democracy” only has value in the limited sense of “universal suffrage” where the majority selects the political representatives to run the government.)

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The result of such a legal framework is a free-society in the personal, cultural, and economic realms.

SUMMARY

Capitalism operates under a rule of objective law (as opposed to an arbitrary rule of men) whose fundamental purpose is the protection of individual rights.

• A proper government subordinates force to an objective rule of law (reason)
• The purpose of the law is the protection of rights
• Government as a referee and not a regulator
• A constitutional republic organized with safeguards to protect the rights of the individual