Comments from NoodleFood

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Comment #1

Sunday, March 15, 2009 at 21:48:31 mdt
Name: Carl Svanberg

My dictionary defines "law" as "the system of rules that a particular country or community recognizes as regulating the action of its members and may enforce by the imposition of penalties" and "a thing regarded as having the binding force or effect of a formal system of rules". The definition says nothing of the source: the whims of a dictator, a (representative) parliament, a bureaucracy. Thus I do not think there is an important distinction between a law and a regulation.

Even if we made a distinction between a law and a regulation based on its source, I still think that a regulation would have "law" as its genus, since it would be a TYPE of law. Indeed, defines "regulation" as: "a law, rule, or other order prescribed by authority, esp. to regulate conduct".

So while your discussion about the division of power, in this context, certainly is important, I nevertheless think that the fundamental distinction between a good and bad law is whether the law serves to protect the rights of the individual or not.

Comment #2

Sunday, March 15, 2009 at 22:59:36 mdt
Name: Doug H.

The means of "regulation" don't seem to be the crucial distinction needed to explain this issue.

Whether such regulation is arrived at by an "accountable" legislative body or by an "unanswerable" clique is principally irrelevant.

I would argue that it would make little difference whether or not regulations could be "reviewed", since that does not do away the real problem: the notion that it is acceptable for government to impose controls *at all*. Can someone give an example of a regulation, real or imagined, that does not violate individual rights?

"Regulations" operate on the premise of public ownership of private property. They are necessarily economic, and are always imposed for the alleged purpose of human or environmental "safety".

By *definition* regulations violate rights. "Accountable Regulation", (if that concept is even possible), would not change this definition.

Maybe Von Mises, "A Critique of Interventionism" might be [at least indirectly] of some benefit, (I have not read it in its entirety).


Comment #3

Monday, March 16, 2009 at 0:18:10 mdt
Name: KPO'M

I don't have any references offhand, but I think you have captured the essence of it. Another thing to keep in mind is that regulations are administered and adjudicated by the same agencies that publish them. As a result, agencies like the SEC perform legislative, executive, and judicial functions. Within judicial, they play the roles of judge, jury, and prosecutor. The conflicts of interest and violations of the separations of powers should be obvious, but these arrangements have survived most court challenges.

Comment #4

Monday, March 16, 2009 at 1:12:16 mdt
Name: Park Jennings

You've gotten pretty close. The "delegation of powers" problem is solved because the power to create the regulations (which, technically, do not have the force of law until codified in the Code of Fed. Reg [CFR]) comes from Congress in the "authorizing legislation." Other than that, administrative law or "regulation" law is completely different from 'real' law. I've been in law school 2 years and have yet to see a morally justifiable regulation; not so with 'real' law. While there may be some sort of morally acceptable regulation (I haven't thought about it; maybe nuclear weapons should be regulated?), 96.43% of existing regulation is strictly immoral. (Yes, that's sarcasm)
Two other things: the standard rule-making process for federal regulatory agencies is that they gin up a new regulation, publish it for public comment, have hearings on it, then make a decision to enforce it or not. So, there is room for some 'public involvement.' However, that's generally limited to special interest groups' involvement; witness the recent Dept. of Interior's rule for national parks/forests on concealed carry, where the NRA sent out emails to all members to write in during the public comment period (as did the Brady Bunch and the other anti-rights groups). Secondly, technically, administrative hearings are not "judicial" in that they are reviewable by a trial court (Federal district court), just as traffic or magistrate's courts are nowhere near definitive forums. However, that objection is purely technical and basically B.S.; admin. hearings cost Americans and their corporations giant amounts of time, money, hassle, etc.

If you really want to ruin your day thinking about regulatory law, go look up the Chevron v NRDC case (google "chevron deference").

Comment #5

Monday, March 16, 2009 at 2:08:22 mdt
Name: Alex Knapp

"In contrast, regulations are passed by government bureaucrats in agencies answerable to the president."

Not really--some regulatory agencies are independent of the Executive Branch. And all regulatory agencies are creations of Congress and ultimately answerable to Congress. Any regulation can be overridden by legislation.

"These bureaucrats may or may not court public opinion"

Not true. The law requires review and public comment prior to any regulation going into effect.

"they may have a narrow partisan agenda"

In my experience, and I work with a lot of regulators, this is generally untrue.

"These agencies are likely to be ruled by special interests at the expense of the rest of us"

This is something of a misnomer--regulations, by their nature, are rather specific. As a general rule (because of course there are all types of regulations), regulations only affect those in a particular industry or business class--they're simply not that relevant to the general public.

"Consequently, regulations are very likely to violate rights in all kinds of horrible ways -- just as we see today."

Well, not really there, either. You'd be surprised at how many regulations are simply procedural--and put limits on the agency in question. For example, most regulations set up by, say, a Department of Transportation set up procedures for things like how and when to get a permit, when people are allowed to do work in DOT right of way, etc.

"In other words, regulations come to be when the legislative branch illegitimately cedes its power of making law to the executive branch."

I used to think that, too, but the reality is that there's nothing really illegitimate about it. Regulations are bound by their legislative mandate--that is, they are limited as to what and how they regulate. Most regulation is simply geared towards the executive branch's interpretation and enforcement of the law passed by the legislature and is largely procedural in nature.

"And the result is reams and reams of unknowable and often contradictory government edicts."

They're hardly unknowable--regulations are public and readily available. Moreso, they are available for public review and comment for a set period of time prior to taking effect. And having drafted comments on a number of pieces of proposed regulations, I can tell you that agencies take such comments quite seriously, which is more than I can say for legislators. As for the "reams and reams" of them, this has to do with the specific nature of regulation. Most regulations only apply if you're doing a particular thing and simply aren't relevant to the day-to-day lives of people.

Comment #6

Monday, March 16, 2009 at 2:19:30 mdt
Name: Alfred Centauri

According to one reference I found, a regulations are:

"Rules used to carry out a law; act of administering a law. Many government agencies prepare regulations to administer a law."

However, I don't think this is what you or I mean when we talk of regulation. As an engineer, I also associate the word regulation with the notion of "to make regular", e.g., voltage regulator, pressure regulator, speed regulator, etc.


# regulate - fix or adjust the time, amount, degree, or rate of; "regulate the temperature"; "modulate the pitch"
# regulation - the act of bringing to uniformity; making regular

Thus, for example, economic regulation is the act of "bringing to uniformity" the economy - to make the economy regular, regular in time, regular in outcome, regular in location, etc.

So, when I argue against regulations and regulatory actions by the government, I'm usually arguing against the government's power to intervene in the market and our lives in the name of making them more "regular".

Comment #7

Monday, March 16, 2009 at 2:52:11 mdt
Name: Jeff Montgomery

I've been planning to write about that word issue for the same reason: the word does not suffice, at least as currently defined.

I think someone on the OBloggers list wrote about it but I cannot locate the post at the moment (I merely saw the post title).

According to dictionary definitions, "regulation" is practically synonymous with "law", so to be against it is tantamount to advocating anarchy. Freedom advocates commonly use it to mean laws that violate individual rights, but that's not really its exact meaning.

I think a term really needs to be created, or a new meaning added to the existing word, one that means quite simply "laws that violate individual rights". The closest thing I've been able to come up with is something like "action mandates" because rights are freedoms to action, and to require a specific action (i.e. get a license, make products of a certain type, offer a specific wage, etc.) is to initiate force. But I don't know if that will hold up under close scrutiny.

Comment #8

Monday, March 16, 2009 at 2:53:33 mdt
Name: Jennifer Snow

Given my own experience, I'd say that the difference between a law and a regulation is that a law is a passive legislative mechanism--you cannot be held accountable by the government *until you have broken* said law. A regulation, on the other hand, is active law--it's assumed that you're going to try and break the law (or do so by accident) and you need a gov't watchdog and a series of hoops to jump through in order to make sure that you don't. A law affects only the guilty. A regulation affects everyone, innocent or guilty. I also think the primary, fundamental thing that is wrong with regulation (among numerous other problems) is that it punishes the people who observe it . . . for observing it. A dishonest businessman can bribe an inspector and increase his profits because he doesn't have to spend time and money jumping through all the hoops. An honest one tries to jump through the hoops and loses competitive advantage.

Comment #9

Monday, March 16, 2009 at 3:13:07 mdt
Name: Alfred Centauri

Diana, here's a reference that distinguishes between law and regulation: ...

"Once Congress passes a law, agencies must write regulations to put the law into effect"

This, and the theory of the regulatory capture of those agencies, supports part of your argument above.

Comment #10

Monday, March 16, 2009 at 4:15:50 mdt
Name: Jasmine

Speaking of non-objective laws - and regulations based on those - read this horrifiying news from U.K.:
"Christian and Muslim Parents Facing Possible Criminal Charges for Opting Out of LGBT History Month"
link at
How in the world is something like this possible in the civilized, western world that we believe is not ruled by power-lusting, control freak mullahs? Anybody have an answer?

I am working on my comment on Diane's post.

Comment #11

Monday, March 16, 2009 at 4:33:54 mdt
Name: Tony Donadio

I think that Jennifer has hit the real issue.

Comment #12

Monday, March 16, 2009 at 4:49:13 mdt
Name: Diana Hsieh

Jennifer -- Yes, I think that's kind of I was thinking about originally when I said that all regulations violate rights. But then I got caught up in the procedural distinction between regulations and legislation. However, I don't think that your characterization gets to the essence of the distinction. I'll have to think more about it -- and write a follow-up post, I think.

Comment #13

Monday, March 16, 2009 at 5:24:15 mdt
Name: Jennifer Snow

You're right, Diana, it's not a proper definition, and I know I'd have to do a lot more thinking to get at a really proper definition. I was just trying to point out the source of the differentiating principle. It's not *the* fundamental, but it's in that area.

Comment #14

Monday, March 16, 2009 at 5:43:25 mdt
Name: Jennifer Snow

No, wait, I've got it. A law merely enjoins you to *refrain* from engaging in some activity. A regulation *requires* to you undertake some action. It's like the difference between what are called "negative" and "positive" rights, and for the same reason. The one (regulation) follows from the other (positive rights). This distinguishing characteristic applies regardless of whether the law in question is a proper one, and also demonstrates why regulations *as such* are improper: the government has no proper authority to order you to do things until and unless you have actually violated someone's rights. Thus laws may be proper or improper depending upon what they forbid you to do, but regulations as such are improper because they are based on the fraudulent principle of "positive" rights.

Comment #15

Monday, March 16, 2009 at 6:42:32 mdt
Name: Mike Hardy

So the legislature decided the state transportation department gets to decide what speed limits will be posted on which roads. Is that a serious problem?

Diana, how do you feel about case law? If I understand correctly, the proof-beyond-a-reasonable doubt standard in criminal cases did not come from legislation, nor is it in the Constitution, but rather came from English case law.

Comment #16

Monday, March 16, 2009 at 6:46:41 mdt
Name: Mike Hardy

Jennifer Snow is barking up the wrong tree.

Regulations are made by agencies to which a legislature has granted authority to regulate.

Laws are made by legislatures.

Diana had that much right initially.

Comment #17

Monday, March 16, 2009 at 6:51:31 mdt
Name: Kevin Clark

I think Jennifer Snow is on the right track. I would add that Harry Binswanger once commented that regulations are wrong because they are instances of "preventative law"; ie they regard you as guilty until proven innocent. They are not instances of retaliatory force but of initiatory force and that is the fundamental reason why they are immoral. The government should not be allowed to engage in preventative law ever.

There is a complication to this though. There are some areas where a type of activity is so inherently dangerous that it represents a significant threat of harm. Here I am thinking of nuclear power plants or transporting dynamite. In these cases the government may require something that looks like "regulation" but its really not preventative law. Monitoring and overseeing these types of activities would be in line with the government's role of protecting citizens against the threat of harm I think. But this should not be called regulation. What term we should use is a good question. But I really do think some term needs to be developed for this. However, this would require that the culture be heavily influenced by Rand's view of rights and government. We are nowhere near that point yet.

Finally, in Diana's e-mail reply she focused almost exclusively on the procedural aspects of regulation. While I think she is right about the violation of the separation of powers, focusing exclusively on the procedural element leaves one vulnerable to the types of pro-regulation arguments made by Alex Knapp; ie regulations are properly delegated power and, well, most of them "simply aren't relevant to the day-to-day lives of people." With arguments like that, its no wonder we are knocking on fascism's door.

Comment #18

Monday, March 16, 2009 at 6:56:44 mdt
Name: Kevin Clark

"So the legislature decided the state transportation department gets to decide what speed limits will be posted on which roads. Is that a serious problem?"

I think it is. The government should not own the roads. What kind of involvement they would have with highway safety though is not an easy question.

Comment #19

Monday, March 16, 2009 at 7:04:00 mdt
Name: Adam Mossoff

Jennifer's new distinction (in Comment #14) isn't right either, because there are regulations that are negative, such as prohibiting adulteration of food. Congress could pass a law that says "don't adulterate food." However, what Congress has chosen to do is to create a regulatory agency, i.e., the Food & Drug Administration (FDA), authorized the FDA to maintain food safety, and the FDA has proceeded to enact regulations that enforce both negative and positive mandates.

I think the problem here is that we use "regulation" and "law" as shorthand for a political distinction between valid versus invalid government edicts. But this does not have to be the case. In fact, historically, judges and lawyers used to use the term "regulate" in a purely descriptive sense; thus, for instance, early American judges used to say that the common law "regulates" behavior. What they meant is that the common law makes the rights to life, liberty property and contract regular by ensuring their enforcement under the rule of law--ensuring due process and equal protection. The etymology of "regulation" is "regular," which is consistent with the meaning of "regulate" in its early historical usage in politics and law.

However, early legal authorities were not consistent in this usage, and they also sometimes referred to early governmental controls as "regulations," such as the early police power controls over uses of wharfs, the disposal of trash, and other such edicts that would now be issued by regulatory agencies. Early courts and legal professionals referred to these as "regulations" because these did the same thing as laws, i.e., they made people's behavior regular through active control by the state.

This history is important, because I think it shows that the distinction between "law" and "regulation" is not fundamental. Both can do the same things and achieve the same results--they can be both good and bad. In our day-to-day usage, we usually use this distinction as shorthand to refer to bad legal rules that come from the modern administrative state (a/k/a regulatory state) and good legal rules that protect individual rights, but I am not certain this is valid as a matter of political theory. I think it might be a case of differentiation by nonessentials in this context, although I think it is important to make this distinction between "law" versus "regulation" in a highly specialized legal context in which a legal system differentiates between the two and applies different substantive and procedural requirements to them.

In fact, in thinking about this more, I suspect that the legal professionals and government officials who created the modern administrative state in the Progressive Era cashed in on the earlier confused usage of "regulation" to sanction what they were doing. The Progressives were very sly about what they needed to do to create the administrative state, and they made a number of complex conceptual and legal moves that permitted them to give what they were doing the veneer of legitimacy. (I discuss this in some detail in the context of property rights in my ARI lecture, "The Rise of and Fall of Property Rights in America.") Now that we live with the modern administrative state, we tend to think of the distinction between "law" versus "regulation" as fundamental to the function of government, but this may just be a historically contingent result of living in an America that was remade by the Progressives in the early 20th century.

Anyway, these are just some thoughts off the top of my head. Now, it's back to my regular day job for me. :)

Comment #20

Monday, March 16, 2009 at 7:17:07 mdt
Name: Andrew Dalton

There are two basic questions here:

1. What is the difference, if any, between directly legislated laws versus regulations created by agencies with delegated authority from the legislature? (And is the latter improper regardless of content?)

2. What is the proper role of government in general?

I see these questions as more or less orthogonal to one another; Objectivism answers the second question based on individual rights, while the first question is a more specialized procedural/legal matter.

The question of "regulation" (with Objectivism being understood as opposed to it) has come up on blog comments before. The term is nebulously defined in popular use; for example, prosecution of securities fraud is sometimes called "regulation" of the market. I think that we should focus instead on the principle of what the government should and shouldn't be doing--in particular, that the government's proper role is in protecting rights rather than granting permissions.

Comment #21

Monday, March 16, 2009 at 7:22:11 mdt
Name: Andrew Dalton

Thanks, Adam. You must have posted while I was writing my answer, and your response seems to flesh out the same general idea that I was thinking.

Comment #22

Monday, March 16, 2009 at 9:05:40 mdt
Name: Francis Luong (Franco)

I think I'm with Adam Mossoff on this one. (#19)

Comment #23

Monday, March 16, 2009 at 9:14:38 mdt
Name: Paul Hsieh

I agree with Franco.

My rule of thumb is never argue about the law with an Objectivist who graduated with honors from U Chicago law school and is now himself a law school professor at a Top 40 law school!

Comment #24

Monday, March 16, 2009 at 9:15:18 mdt
Name: Jim May

I have always understood that the issue of prior restraint, as Jennifer originally noted, was the key differentiator here between law and regulation.

One of the things that history shows us, is that earlier Americans had a much clearer, Objectivist-like view of political issues; it can be depressing to see how much has been lost since those days.

One instance of such clarity that I recall -- though I don't recall where I saw this, alas -- was that the idea of regulation was to set limits on behaviour *before the fact* -- i.e. it represents the government mandating certain acts (either positively or negatively) before anything has been done, as a condition of engaging in certain economic actions. The advocates of regulation found it necessary to explain that regulations were not a form of prior restraint because they were only economic in nature.

This false dichotomy between economic and political freedom is therefore a key to this question IMO. Observe that regulations have been almost exclusively economic in application; their ongoing expansion is made possible by the lack of any principle defining "economic" versus "non-economic" activity. Recent torturings of the Commerce Clause to cover cases it was plainly not meant to affect (such as the Raich decision, where a man growing pot for his own use was noetheless somehow engaged in "interstate commerce" and therefore subject to federal law which forbids pot growing, rather than Oregon state law which permits it), document this process in action.

Comment #25

Monday, March 16, 2009 at 9:29:37 mdt
Name: Adam Buker

While I think the discussions of the distinction between law versus regulation are important, due to my own confusion over the term of regulation I simply refer to both laws and regulations as being either valid or invalid according to whether such laws/regulations uphold individual rights or destroy them. Using the terms valid and invalid in application to laws/regulations will bring up the question of what standard of judgement regarding the usage of such terms. In that case, one would have an opportunity to draw attention to the broader idea of what is the proper nature of government.

Comment #26

Monday, March 16, 2009 at 10:28:18 mdt
Name: Michael Labeit

I was under the impression that rights-respecting laws are tabula rasa rules of social conduct established ex ante that:

-legally outlaw specific forms of initiated coercion
-apply specific punishments to specific offenses

I've always treated regulations as instruments of preventive law. Preventive laws are rules of social conduct that render non-rights violating/non-rights threatening activities either illegal or subject to government supervision. These regulations are, by definition, rights-violating.

Regulations as Diana treats them are rules of social conduct enacted by non-legislative bodies. Such regulations would not, by definition, constitute as rights-violating rules. Imagine if Dr. Leonard Peikoff was appointed in an Objectivist society as the supreme permanent head of state and he wielded total control over the entire limited government. Even with his tremendous political power, knowing Peikoff, he would know what regulations (Diana's def of regulations) to pass and what regulations to forbid. In this way, moral regulations (Diana's def) would still be passed but still passed in a non-legislative, top-down manner which is what Diana is alarmed by. Thus, it is conceivable that such regulations could exist in a rights respecting way.

This is however an argument about the best structure of government. If we are concerned with the best structure, not the nature of government, then I would propose a heavily decentralized confederacy that avoids the passing of regulations that Diana alludes to because the structure of centralization encourages corruption and fraudulence while decentralization has the best historical track record and works in theory.

But personally, I always thought that regulations fell under preventive law, which, according to Objectivism, is immoral.

Comment #27

Monday, March 16, 2009 at 10:43:47 mdt
Name: Michael Labeit

Here's an issue. Libertarian anarchists hold that governments, by outlawing competing private defense firms, are, by definition, preventive law enterprises that, as a result, initiate force simply by existing. I don't agree that forcing people to cede to a monopoly institution, i.e., government, for law and retaliation purposes is an example of initiated force. Any takers?

Comment #28

Monday, March 16, 2009 at 11:12:42 mdt
Name: Justin O'Dell

I tend to look at this in a very (over)simplified way. Laws tell you what you can not do, and regulations tell you what you have to do. With laws you are innocent until proven guilty, but with regulations you have to prove you are innocent by jumping through their hoops.

I know in practice it is mixed up where the opposite is sometimes true. Whenever I try to introspect and figure out why some law or regulation bothers me it usually fits in my regulation category.

Sorry if someone already said as much. On break at work so I haven't read all the comments.

Comment #29

Monday, March 16, 2009 at 11:25:30 mdt
Name: William H Stoddard

Michael (#27): That's a tricky question, and defining exactly where the anarchocapitalist argument goes astray is subtler than it looks. I was persuaded of the validity of anarchocapitalism by that argument for many years. But I'll try to describe where I think it goes off course.

The argument is roughly this. If I don't use force, you are not morally entitled to use force against me; if you do, you are initiating force. If you initiate force against me, I am morally entitled to use force in response, and in doing so I am retaliating. But retaliation does NOT count as initiating force, and if I retaliate, you are not entitled to use force against me in response; if you do, your actions do not count as retaliation against my retaliation, but as a further initiation of force, just as they would if I had not used force at all. Therefore, the forcible restraint of a person or agency using retaliatory force counts as initiation of force, and an agency that engages in such forcible restraint is initiating force. So a moral society cannot have any agency that does this.

The trick question is, How do we decide whether the actions of a given agency count as retaliation or not?

In anarchocapitalist theory, there are actually two quite different answers. Murray Rothbard believed that all law enforcement agencies would rationally agree on a single uniform code of libertarian law, deducible from ethical axioms, rather in the way that he believed all of economics could be deduced from the axioms of praxeology. That leads, in my view, to an overly rationalist approach to law. Even if you stipulate that any rational philosophy of law would define the purpose of law as preserving individual rights, there are innumerable details that could not be deduced from legal axioms in this way.

On the other hand, David Friedman simply does not believe that law enforcement agencies would all have the same code of libertarian law. But that leads to grave difficulties. If agency A thinks that it is engaging in retaliatory force against a client of agency B, and agency B disagrees, it has an obligation to its client to use force against agency A in his defense. If you view law as a marketplace, this is a situation of market disequilibrium . . . and the process of establishing equilibrium in a market for force amounts to civil war. Equilibrium can only be established when, in a given region, all the agencies of retaliatory force agree on a common standard of law, and agree to accept each other's actions in enforcing that law, and agree on common procedures for resolving conflicts . . . and at that point, they are functionally a government.

Anarchocapitalism is founded on a rationalistic view of rights as existing prior to and independent of law. But in actuality, rights only exist where law exists, and law exists only when government exists . . . because if there is not a unique legal standard in a given area, inhabitants of that area do not have rights. So any appeal to a right to choose one's own agency of retaliatory force from a competing marketplace of such agencies commits the fallacy of the stolen concept, in that unequivocally defined rights can only exist if there is NOT such a competing marketplace.

At least, that's how I would construct the argument. Does it make sense to you?

Comment #30

Monday, March 16, 2009 at 11:46:50 mdt
Name: Jennifer Snow

If you're going to say that regulations are just rules created by non-legislative bodies and laws are rules created by legislative bodies, you're going to be courting a severe epistemological problem, there.

Firstly, because people DO make the conceptual distinction that regulations are prescriptive and laws are restrictive. Secondly, because there's not enough of a conceptual difference between rules made by one government agency (the legislature) and another government agency (a regulatory body) to make it worth having a separate term to refer to one or the other. If you're like me, you'll find yourself using regulation vs. law to refer to prescriptive vs. restrictive laws ANYWAY (because the terminology is quite common), and then likely back yourself into a hole when you forget that you have two clashing definitions that aren't clarified. I see this all the time on when people don't pay very close attention to how they and other people use terminology.

If you happen to be a lawyer, it may actually make some kind of difference to you who made the rule, but the rest of us have to obey them regardless and it doesn't amount to a hill of beans either way. This is why many words have alternate definitions in different contexts--for a lawyer or someone who has to deal with specific regulatory agencies a lot, this would be a valid conceptualization, you'd just have to be careful to clarify it to people when you're discussing theoretical political philosophy instead of legal terminology.

Comment #31

Monday, March 16, 2009 at 12:01:05 mdt
Name: Diana Hsieh

Thanks for all the helpful comments! I'm still somewhat confused, but less confused than I was.

Indeed, I thinking of regulations as preventative law (or prior restraint) on Saturday. However, while many regulations passed by various agencies are of that kind, certainly not all of them are. And many laws passed by the legislature are fundamentally preventative in nature: they prevent someone from acting in some way that is within his rights but that might have some consequences that the legislator dislikes, e.g. mandatory seatbelt laws to prevent highway fatalities.

So I think -- tentatively again -- that I would say two things:

(1) As a procedural matter, all laws should be legislation not regulation. In other words, the legislature should not ever cede its law-making authority to government agencies, particularly not those of the executive branch. That's a violation of the separation of powers -- and a recipe for very bad laws. (An agency could have internal regulations limiting its own activities, I suppose, but such regulations should not bind any outside person.)

(2) As substantive matter of law, no action should be forbidden to a person unless it violates another person's rights. That means no "preventative law" or other economic controls. Any law that violates rights is illegitimate, whatever its source.

These two points are separate, I think. I had them mixed together in my mind on Saturday -- and only partly untangled when I wrote this post on Sunday.

Comment #32

Monday, March 16, 2009 at 12:05:16 mdt
Name: Mike Hardy

Jennifer Snow wrote: "Firstly, because people DO make the conceptual distinction that regulations are prescriptive and laws are restrictive."

Never heard of that before. But what about this: If Congress passes a law requiring 18-year-old males to register for the draft, that's not a __law__?? I don't think that sort of characterization of what "law" is has ever been conventional.

Comment #33

Monday, March 16, 2009 at 12:08:55 mdt
Name: Mike Hardy

Jennifer Snow wrote "the terminology is quite common". I don't believe it. Can you cite some evidence?

To say that ONLY a lawyer would care who promulgated the law or regulation is to say that no one else cares about politics. Clearly false.

Comment #34

Monday, March 16, 2009 at 12:17:24 mdt
Name: Mike Hardy

Adam Mossoff wrote: "In our day-to-day usage, we usually use this distinction as shorthand to refer to bad legal rules that come from the modern administrative state (a/k/a regulatory state) and good legal rules that protect individual rights,"

"We" means you and who else? Are you claiming this is a widespread thing?

Comment #35

Monday, March 16, 2009 at 12:39:52 mdt
Name: William H Stoddard


When you make the distinction that

(1) As a procedural matter, all laws should be legislation not regulation. In other words, the legislature should not ever cede its law-making authority to government agencies, particularly not those of the executive branch. That's a violation of the separation of powers -- and a recipe for very bad laws. (An agency could have internal regulations limiting its own activities, I suppose, but such regulations should not bind any outside person.)

(2) As substantive matter of law, no action should be forbidden to a person unless it violates another person's rights. That means no "preventative law" or other economic controls. Any law that violates rights is illegitimate, whatever its source.

I think you're exactly right, and that making this kind of analytical distinction is exactly what a philosopher of law ought to be doing.

In economic terms, there is a distinction to be made between setting up a general framework of legal structures through which people can come to the agreements that suit them, and setting up specific terms for specific agreements that they are required to make. The first is a way of enabling the market economy to function; the second is a replacement for the market economy, and has all the weaknesses of any other form of socialist planning, both ethically, and practically.

Comment #36

Monday, March 16, 2009 at 13:04:57 mdt
Name: Michael Labeit


I think I see where you are going. I would say however that while disputes under libertarian anarchy could certainly lead to armed conflict, disputes could also lead to coercive intimidation. Say John and Smith have a dispute. John says Smith robbed him. Both mobilize their private police agencies. John's private judge approves of John's decision to send his private police force to collect restitution from Smith. Let's say Smith is rich and hires a more powerful police force. John, due to police conflict costs, would be reluctant to fight Smith for restitution. As a result, the dispute is settled regardless of whether we know Smith robbed John or not. Thus the dispute ends in coercive intimidation. After all, you mention that under anarchy, how do we know if force was used and if it was defensive or not?

A government could circumvent this by investigating and subjecting both.parties to testimony. The government would be retaliating against the threat of force. John claims that Smith robbed him. This claim would be treated as a threat of force as Smith remains innocent until proven guilty but John has claimed that he nevertheless used force against him. It is this threat that government is retaliating against. The threat of force compels government to take the form of a monopoly. Without a monopoly form, society cannot know whether rational law is being applied objectively or not. Again, how do we know?

Comment #37

Monday, March 16, 2009 at 14:23:01 mdt
Name: Javert

A law can be either moral (e.g., the laws against robbery) �" i.e., for the purpose of protecting the individual's right to life and property �" or immoral (e.g., laws that ban the sale and consumption of alcohol by adults) �" i.e., that violate the individual's right to life and property. And a law can be either objective (e.g., the laws protecting IP) �" i.e., based on fact and arrived at by a process of reason �" or nonobjective (e.g., a king's decree) �" i.e., divorced from facts and/or arrived at by a nonrational method.

However, regulations are per se immoral and nonobjective. What we are talking about here are the substantive regulations issued and enforced by the alphabet agencies (e.g., FDA, SEC, OSHA, EPA). We are not talking about the procedural regulations, mentioned above, that govern the alphabet agencies (e.g., there must be a 30-day period for public comments). Procedural regulations merely mask the true nature of substantive regulations by fooling the unsuspecting public into thinking that we still have a government of laws and not of men.

Regulations are immoral, in part, because they inject force into a free market transaction �" and thus violate the trader principle. Take the FDA regulations of pharmaceuticals. Those regulations force a company to get government approval before marketing and selling its products. Such a use of force is preemptive in that the government’s police power is used to bar an individual from acting until he has “proven” his innocence. (In this way, regulations are also wrong because they reverse the burden of proof, and are irrational because they demand the impossible, viz., that a man prove the negative.)

Or consider the OSHA regulations governing workplace safety, e.g., that compels carpenters to lower the guards on power saws. Carpenters are adults. If they want to raise the guards �" which is faster and often safer �" it should be their prerogative, assuming that their employer agrees. In this way, all regulations are insanely paternalistic. And this indicates just one way in which they are nonobjective �" they flout the fact man is independent and efficacious.

In addition, regulations are immoral because they are all based on altruism and collectivism. Many of them start because of a disaster or alleged disaster. (See for example how the supposed tainting of meat was the impetus behind the formation of what became the FDA.) (Many others start because of rent seeking.) But suppose there is an actual disaster, e.g., e-coli at a tomato plant. The next move is for statists to treat all tomato businessmen as collectively guilty, and compelling them all to allow government agents (i.e., FDA inspectors) on their property. The innocent businessman is treated as an interchangeable member of his industrial collective. And because some businessmen create shoddy products and some consumers aren’t careful, the innocent businessman’s right to property and the presumption of innocence are sacrificed.

It is also noteworthy that regulations allow the government to violate crucial principles of proper legal procedure. Regulators can enter and seize property without the need for evidence. They do not need search warrants. They can show up at a business any time they want, on the (arbitrary) premise that they are there to prevent the possibility of a “crime.”

Just to intrigue you a bit. Obviously, there is such a thing as a good law. However, there is no such thing as a good regulation �" even if that regulation stated that it is illegal to torture children.

Comment #38

Monday, March 16, 2009 at 14:39:15 mdt
Name: Alex Knapp


On your two points:

"(1) As a procedural matter, all laws should be legislation not regulation. In other words, the legislature should not ever cede its law-making authority to government agencies, particularly not those of the executive branch. That's a violation of the separation of powers"

I'm not sure that it really is a violation of separation of powers--more like a definition of how laws are being enforced. But even if we go that route, why is a violation of separation of powers necessarily a bad thing?

"and a recipe for very bad laws."

I think you would have to empirically demonstrate this. Frankly, in my own work I have found that laws tend to be frustratingly vague and regulations to be rather specific and precise. I prefer the specificity and precision.

"(2) As substantive matter of law, no action should be forbidden to a person unless it violates another person's rights."

What about laws or regulations that prohibit actions that, prima facie, do not harm rights, but empirically lead to greater protection? To give you a rather common example: When a person wants to excavate the ground for some kind of construction, most states require him to call a number notifying all utilities with underground facilities to go to that location and mark the depth and nature of their facilities in the ground. In addition, the law specifies the colors of the markings: different colors for different types of facilities, as well as a certain color for areas where it is safe to dig. This, obviously, places a burden on both the person excavating as well as the utilities. In the long run, though, this standardized system prevents damage to private property that would have otherwise occurred (and it did--often). Is that law illegitimate?

Comment #39

Monday, March 16, 2009 at 15:22:02 mdt
Name: Aaron Davies

It's also worth noting that most regulatory bodies are not, in fact, answerable to much of anyone, in practice, these days. Just look at the mess Bush created by trying to fire a few US Attorneys. There are quite a few people who would say that the actual functioning government of America today is entirely composed of the civil service and the congressional staff, and that the elected representatives (in both branches) serve purely ceremonial roles.

Comment #40

Monday, March 16, 2009 at 15:28:56 mdt
Name: elcidcampeador

Here's my take.

Laws, good or bad, are general edicts in support of a broad principle. Laws, as such, without regard to their character, may be issued by any kind of potentate or by a legislature, or by any other stipulated governmental mechanism, historically known or as yet untried.

Regulations, good or bad, are specific edicts that apply only to specific situations.

Laws--properly--are necessary in defense of man's rights and in order to effect the principle identified by Ayn Rand, that rights are the means of imposing morality on society.

Regulations--properly--are necessary because laws are not self-enforcing. There have to be specific means and specific instrumentalities involved in law enforcement. There is an argument to be made for the legislature not getting into every fine detail of how things go down. There are even, philosophically at least, injunctions against that kind of over-legislating; e.g., bills of attainder; ex-post facto laws; clearly corrupt laws that grant rights or privileges only to certain named parties; etc. As has been stated in this thread, every regulation is subject to review, to repeal, and to judicial review.

If laws are not enforceable (i.e., if there were no mechanisms), moreover, of what good are they?

There is no evading the fact that laws, and regulations, come from ideas, which the king, president, or legislature attempts to put into effect. If the ideas are bad, so is everything else. The badness of laws or of regulations does not arise from their character as either laws or regulations, but from their being ill-considered or immoral. Laws arising from illegitimate authority are prominent among these.

It is neither ill-considered nor immoral for men to band together in defense of their freedoms, erecting a government to that end, as per the Declaration of Independence.

I do think, as a sort of operational working rule, that the goodness of a law is directly inversely proportional to the number of regulations or court decisions that will necessarily be entailed by it on account of its being vague, or illogical, or impossible, or irresponsible, or otherwise distorted and contorted (which cases include the possiblity of it being evil).

So, as to regulations, so it is as to government in general.

Caveat emptor. Eternal vigilance is the price of liberty. Let there not be consent of the victim.

Comment #41

Monday, March 16, 2009 at 15:30:36 mdt
Name: Cecil Roe Williams

Regulations by bureaucrats are procedural in nature and must protect the individual as do laws, which are enacted by elected legislatures. For example, A regulation might define 'natural' as food which appears in nature (milk right out of cow's teat) so that milk processors would be prohibited from labeling pasteurized/homogenized milk as 'natural.' Legislative bodies would never, never/pass enact such procedural regulations.

The question would be how to solve a conflict between protecting the indivdual and obeying the legislated law.


Comment #42

Monday, March 16, 2009 at 15:31:05 mdt
Name: Cecil Roe Williams

Regulations by bureaucrats are procedural in nature and must protect the individual as do laws, which are enacted by elected legislatures. For example, A regulation might define 'natural' as food which appears in nature (milk right out of cow's teat) so that milk processors would be prohibited from labeling pasteurized/homogenized milk as 'natural.' Legislative bodies would never, never/pass enact such procedural regulations.

The question would be how to solve a conflict between protecting the indivdual and obeying the legislated law.


Comment #43

Monday, March 16, 2009 at 16:50:41 mdt
Name: KPO'M


I think a violation of the separation of powers would be worrisome since the reason for the separation is to prevent one branch of government from becoming too powerful. You are correct that federal regulations must be published in the Federal Register and the CFR to take effect. It is also correct that there can be bad law and rational regulation and vice versa. That said, the sheer volume of regulation and its specificity can make it prone to arbitrariness. I think the proper relationship is that the law should set the general principle and the regulation should apply the general principle where there is uncertainty. I think judicial courts should be able to address regulations directly. From what I understand, many federal agencies adjudicate the regulations they write. I think that creates an inherent conflict of interest.

Comment #44

Monday, March 16, 2009 at 18:27:41 mdt
Name: William H Stoddard


I think the argument in your second paragraph may not work, unless you already accept some form of the "stolen concept" argument I suggested.

Consider: If I live under a government that functions as Objectivism recommends, and I believe someone has violated my rights, I will report them to the police, and they'll be arrested and brought to trial. When they are ordered to show up in court, they have not yet been found guilty of any crime, and in fact they may not be; that's why we have trials, after all. So in ordering a possibly innocent person to submit to compulsory legal process, is the government violating their rights, or initiating force against them?

If you say yes, then you have abandoned the principle that the government can only legitimately engage in retaliatory force. And once you concede that, you have no firm ground for arguing, for example, that the government may not engage in compulsory taxation, or exercise eminent domain. This concession reduces Objectivism to classical liberalism, and replaces strict adherence to the principle of individual rights with pragmatism.

If you say no, then when a private enforcement agency compels someone to show up for trial, they are not initiating force either. And therefore the government is not, on the anarchocapitalist view, properly entitled to force them to stop.

It was seeing the implications of competing agencies with powers of compulsory process . . . the inevitability of rights not being uniquely and objectively defined in that situation . . . that convinced me that anarchocapitalism led to legal disequilibria that made it unworkable. This isn't a distinction that is addressed in anarchocapitalist theory, which focuses on "arbitration agencies" . . . not the same thing, because arbitration requires mutual consent to submit to a hearing, and a criminal has no reason to consent. And while it's implicit in Objectivist theory, it wasn't sufficient clear to me until I worked it out for myself. Or maybe I was simply looking at the whole subject too rationalistically.

Comment #45

Monday, March 16, 2009 at 20:26:52 mdt
Name: Michael Labeit


Let me summarize as I see it:

Rights- recognition requires objective law. Objective law reqires government. Thus rights-recognition presuppose laws which presuppose government.

Libertarian anarchists assert rights-recognition without government so they are "stealing" the concept of rights-recognition.

Rights-recognition presupposes government because only a monopoly on the use of force over a geographic area can properly retaliate against the threat of force posed by legal disputes. Only a monopoly agency is capable of applying laws objectively. Its legal monopoly allows it to bring opposing litigants to court to testify in order to socially demonstrate if force was used and what kind of force.

Of course far more explanation is needed but I think this is the gist of your argument.

I wouldn't strictly, as you do, say that without government rights don't exist. I would say that rights exist whether society chooses to recognize that rights of some or not. That's why I replace rights with rights-recognition as the object of theft in the stolen concept argument.

Comment #46

Tuesday, March 17, 2009 at 2:25:00 mdt
Name: William H Stoddard


You have the structure of my proposed argument exactly right. It appears that we disagree on only one point, and our disagreement there is partly (but not wholly) semantic: The existence of rights without government. I have a couple of comments to offer on that.

In the first place, you and I are capable of understanding that we have a need for legal protection for our lives, our freedom of action, and our control of the material basis of our actions and plans. But we are not capable of building up a detailed structure of legal rules to cover all the different cases that might arise between us. Even with law restricted to its proper functions, the mass of law would be so great as to require full-time study for several years to master it, and it might very well be greater than any one person could master, if you take account of specialized subdomains such as admiralty law and riparian law. All of that law creates real rights that are really enforced by the courts. But that law itself was generated by the labor of many people over a long span of time. So there are many rights that only exist because there is a legal system.

In the second place, there is a difference between ethical rights and legal rights. My ethical right to life means that I am justified in taking actions to sustain my own life, and to defend my survival against people who would threaten it. One of those actions is supporting a legal system that provides that defense. Within that legal system, I have a legal right to life. The legal right to life only exists if there is a legal system to define it, to apply it, and to enforce it.

But in the third place, the idea of an ethical right to life seems to be circular. I said that I am justified in taking actions to sustain my own life. But what justifies my taking those actions? The fact that they are needed to sustain my own life! The needs of living organisms are the only rationally valid justification for anything they do. But then sustaining my own life cannot require justification, because it's the source of justification.

I tend to view the idea of an ethical right as a Platonic idealization of legal rights. Legal rights are defined by legal rules; so there is a tendency to think that ethical rights are defined by ethical rules in the same way. But the ethical rightness of action is rather a matter of knowing how to live; it's like the rightness of a song sung in tune, or a good move in a martial art, or a sound business decision, none of which can be achieved by following rules.

Comment #47

Tuesday, March 17, 2009 at 3:18:55 mdt
Name: Andrew Dalton

We definitely need a concept of ethical rights prior to legal rights. Otherwise, we have no idea what in general the government ought to do, or even why/whether to have a government at all. We must have a basic understanding of how people ought to interact with one another (it is specifically the *social* context in which the idea of rights arises) before setting up the machinery to formalize these interactions.

But even a proper ethics and theory of rights will not lead to one, and only one, political/legal system--because the latter must always take into account historical and geographical factors, and some optional choices, that are unique and cannot be derived from philosophy. This is one of the reasons why we cannot have "competing" governments in the same geographical area.

But more fundamentally, the reason for having a government is to protect individual rights by removing the realm of force, including retaliatory force, from people's arbitrary discretion. There are two sides here: the first is the protection of individuals from predation by criminals, and the second is the protection of individuals (including those who may be suspected of crimes) from *arbitrary* retaliation by others. The first of these can be done by a private security force, which is the reason why the notion of "private government" gains plausibility among some libertarians. But the second part is where you will inevitably have conflict unless there is a single institution with a monopoly on enforcement.

Comment #48

Tuesday, March 17, 2009 at 4:11:52 mdt
Name: William H Stoddard

Andrew: It's not clear to me that we need a concept of ethical rights. But it depends on what you mean by ethical rights.

In a lot of people's usage, a "right" is a somewhat Kantian concept: it's a principle that permits and justifies our taking an action, when without that principle the action would not be permitted or justified. So, for example, a Kantian might say that we have the right to preserve our own lives (and indeed the duty to do so, even if we wholeheartedly want to die) because and only because there is an ethical rule granting us that right. The rule has priority over any means-end considerations: it authorizes us to pursue the goal of survival, and therefore to select appropriate means for doing so.

In a Randian approach (and, I believe, an Aristotelian one), no such reasoning is necessary or valid. The goal of survival does not need any justification; it is itself the source of justification for our actions. Rights are a means of attaining that goal. It's not the right to life that justifies our seeking to survive; it's our seeking to survive that justifies our seeking the things we need to survive, including a right to life.

Moreover, that need does not exist for a solitary person. Nature cannot violate our rights. Only other people can do so. So the need for rights, including the right to life, arises only in a social context.

Because we are a specific kind of entity, we need a specific kind of rights. A legal system that protects our right to life is meeting our needs.

Now, if you mean by "ethical rights" broad general principles that define what a legal system should be doing, we are in agreement. But in my view, those are still legal rights, and exist only within a legal system. The need for such rights is prior to the formation of the legal system, but the legal system creates the rights that answer that need. And then, to implement those broad general principles, the legal system develops a vast array of specific rights that are what is usually meant by "legal rights." But if there is no legal system, the right to life does not exist in some realm of disembodied moral abstractions, any more than the number one million exists in a tribal society where people do nothing more sophisticated than counting on their fingers.

Comment #49

Tuesday, March 17, 2009 at 6:06:34 mdt
Name: Andrew Dalton

We may be mostly in agreement, but I think that it is necessary to keep the concepts clear.

Objectivism (and its presentation in Peikoff's OPAR) puts the concept of rights prior to the discussion of government--including the justification for why we should have a government. These rights cannot be "legal" in nature since we have not yet gotten close to discussing law at this point.

The social context is necessary, as Rand makes clear. But a society is people living together and interacting; it is not yet government or law. We need the concept of rights as a bridge between ethics and politics.

I think that you are looking at certain legal rights--such as the right to vote, the right to sue, and so on--and seeing that they are meaningless outside of an existing context of government. That is true. But an Objectivist would simply say that there is a difference between fundamental (moral) rights and derivative (legal/procedural) rights, and that the latter are the implementation of the former. Philosophy establishes the first, while the specialized field of law establishes the second.

Comment #50

Tuesday, March 17, 2009 at 6:48:41 mdt
Name: William H Stoddard


No, actually, what I'm doing is not this:

"I think that you are looking at certain legal rights--such as the right to vote, the right to sue, and so on--and seeing that they are meaningless outside of an existing context of government. That is true. But an Objectivist would simply say that there is a difference between fundamental (moral) rights and derivative (legal/procedural) rights, and that the latter are the implementation of the former. Philosophy establishes the first, while the specialized field of law establishes the second."

Rather, I'm saying that we don't have a right to life, or a right to property, unless there is a properly functioning legal system to define, apply, and enforce those rights. We have an objective need for security against bodily harm, against forcible restraint, and against deprivation of property; that need is prior to the existence of law and government, and providing for it is the proper function of government. It's government that creates rights. We can evaluate whether government is good or bad by whether it provides rights appropriate to meeting the objective needs in question.

When I try to conceptualize a "right" that is prior to government and law, I can't make it work. A right is a moral principle that legitimizes our taking certain actions? That doesn't work for the right to life, which Rand says is the most basic right. Morality does not legitimize or justify our taking action to sustain our own lives. Rather, it is the fact that morality guides us in how to sustain our own lives that legitimizes and justifies morality. The purpose of sustaining our own lives is prior to morality. So to say that we have a moral right to life is meaningless. "I need no warrant for being, and no word of sanction upon my being. I am the warrant and the sanction."

Comment #51

Tuesday, March 17, 2009 at 7:31:05 mdt
Name: Andrew Dalton

"It's government that creates rights. We can evaluate whether government is good or bad by whether it provides rights appropriate to meeting the objective needs in question."

The problem is that government is a man-made fact. People create it for a purpose. We do not start out with government, and then try to figure out what it is supposed to do.

I really cannot say more on this subject other than to recommend that you read the chapter "Government" in OPAR.

Comment #52

Tuesday, March 17, 2009 at 8:54:39 mdt
Name: Tom Rowland

Here’s my two cents, based on my understanding of Objectivism's position.

Individual rights are a kind of natural law with respect to teleological, goal-directed action in the same way that Newton’s laws of motion are with respect to the motion of inanimate entities. A goal-directed conceptual entity requires free action to live, period. This is as true on a desert island as it is in the company of men. As soon as other men are present, the issue arises as to how to recognize the right to free action when some might take it away. “Governments are instituted among men to secure these rights,” is a remarkably well-written formulation of the fact that men recognize the need of and therefore the right to free action based on the free mind. Rights, thus, are not privileges granted by government, but natural requirements of human life, recognized by it. Law, in this sense, is the practical implementation of natural law. It does not require regulation in any meaningful sense, I think. In other words, regulation should be thought of as a means of making adjustments to the machinary, not to the men who run it.

The legislature formulates the natural law into language which defines its application in social contexts, the courts decide disputes, and the executive carries them out, defending the country against internal and external attack. The Constitution identifies the principles that guide these three functions.

Comment #53

Tuesday, March 17, 2009 at 16:53:46 mdt
Name: Dave Littel

I Think there is a difference between law and regulation in two essential respects. First, as already discussed, regulation is the product of delegated legislative authority rather than constitutionally prescribed legislative procedure.

The second essential can be captured in a word: evidence. Regulations can be enforced by quasi-judicial tribunals operated by agencies such as the EPA. These use some stand-in for rules of evidence but as I understand it they are basically at the discretion of the agencies. In a court of law, proper application of settled rules of evidence--themselves "law"--is a matter of right for each party. This is not the case for regulations. Even if the parties have a right to appeal to a court of law, the burden to take that leagal action is shifted by the outcome of the agency ruling or finding, and given the expense involved this is no small issue.

Comment #54

Wednesday, March 18, 2009 at 20:15:08 mdt
Name: Gary H. Johnson, Jr.

It seems to me that laws are principles of reasoned justice per constitutional mechanisms, while regulation is the imposition of perceived just means per will of the administrators of said justice. If laws are based on individual rights and regulations are based on collective obligation, the rights of the individual will regularly be trumped and defeated by popular will...if, however, the separation of powers and system of checks and balances is properly functioning, popular will in regulations must always submit to the terms of the individual rights contracted in the law. The source of law and rights is the problem. To say that God is the source of law is to deny the reason of man's nature which formulated the possibility of law in the first place. Regulators tend to expound upon this fundamental weakness "we are endowed by our creator with certain inalienable rights" and then derive their ethical position on the purpose of regulations from this twisted approach, which then yields regulations which seek to apply a regulator's personal interpretation and perception of what the creator sought to do by creating the law, disregarding man's nature and reason as the source of it altogether, and at the same time negating the entire purpose and value of the law at the same time.