Laws Versus Regulations

[dianahsieh]

By Diana Hsieh from NoodleFood,cross-posted by MetaBlog

I'm looking for a good source to help clarify the distinction between ordinary laws and regulations. Any suggestions? A relatively short online essay would be most helpful.

Here's why I'm asking: On Saturday, I attempted to argue against any and all regulations, on the grounds that ordinary laws would be sufficient to protect individual rights. I wasn't satisfied with my answer, as I felt like I had muddied the issue somehow. Then yesterday I was asked about the issue in e-mail, so I said the following -- tentatively:

Laws might be good (insofar as they protect rights) or bad (insofar as they violate rights). The same could be said of regulations. However, due to their different origins, regulations are dangerous to liberty, I think. How so? In essence, laws are a product of the legislative process, whereas regulations are a product of agencies of the executive branch.

Laws must be passed by our representatives: we can review the legislation, ask that they vote one way rather than another, and hold them accountable for their votes. This process is imperfect, particularly today. Yet we still find some measure of openness and accountability in it.

In contrast, regulations are passed by government bureaucrats in agencies answerable to the president. These bureaucrats may or may not court public opinion; they may have a narrow partisan agenda; they may not give a damn about public opinion. These agencies are likely to be ruled by special interests at the expense of the rest of us -- for the kinds of reasons that Milton Friedman observes in

Free to Choose

. In particular, the special interests stand to gain much by making the regulations in their favor, while each citizen (or resident) will only lose a bit. Consequently, regulations are very likely to violate rights in all kinds of horrible ways -- just as we see today.

In other words, regulations come to be when the legislative branch illegitimately cedes its power of making law to the executive branch. It's a dangerous violation of the separation of powers -- and an evasion of legislative responsibility. And the result is reams and reams of unknowable and often contradictory government edicts.

Is that basically right -- or am I totally confused? Also, as I mentioned at the outset, I am interested in any good sources on this issue of laws versus regulations.

Oh, and I should mention that I didn't cite Milton Friedman's Free to Choose because I'm a fan of the book. I'm not. However, Friedman's discussion of some of the tendencies of regulatory agencies is reasonably good, and I know that the other person has read it.

Cross-posted from Metablog

[DavidOdden]

I recommend An Introduction to American Law by G.P McAlinn, D. Rosen & J.P. Stern (Carolina Academic Press, 2005). Although I suggest reading the preceding 12 chapters as background, ch. 13 makes it especially clear why regulatory law is, in practice, the epitome of non-objective law. (This is not the conclusion they draw: theirs is a technical exposition, but when you read it you will probablyunderstand why regulations must be stopped). Separate from the decreased public scrutiny problem, there is the deference problem: courts grant wide interpretive latitude to regulatory law (in favor of the regulators), more than with statutory law.

[Old Toad]

In other words, regulations come to be when the legislative branch illegitimately cedes its power of making law to the executive branch. It's a dangerous violation of the separation of powers -- and an evasion of legislative responsibility. And the result is reams and reams of unknowable and often contradictory government edicts.Is that basically right -- or am I totally confused? Also, as I mentioned at the outset, I am interested in any good sources on this issue of laws versus regulations.

I think your question stems from the mixed political system of the United States, not from the fact that "regulations" are promulgated by the executive (or judicial) branch of a government.

It is a proper function of the executive branch of a government to promulgate objective regulations according to objective law. As you noted, it is important to recognize that the power to make regulations under a law is provided for by the particular law and limited by the law, not independent of the law. The regulations should properly deal with the specific procedures to follow under the substance of a law or to determine issues requiring special scientific expertise under the broader direction of a law. In contrast, it is impossible to expect the executive branch to promulgate objective regulations under the direction of a non-objective law. By definition, a non-objective law cannot be objectively executed.

Perhaps a trivial example of the proper use of regulations promulgated by the executive branch will help illustrate the point regarding establishing objective procedures.

The U.S. Constitution authorizes Congress: “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Section 8, Clause 8. According to this Constitutional authority, Congress enacts laws (part of the “United States Code”) for the protection of copyrights, including, for example, a provision for a “Copyright Office”:

Title 17, United States Code § 701. The Copyright Office: General responsibilities and organization

(a) All administrative functions and duties under this title, except as otherwise specified, are the responsibility of the Register of Copyrights as director of the Copyright Office of the Library of Congress. The Register of Copyrights, together with the subordinate officers and employees of the Copyright Office, shall be appointed by the Librarian of Congress, and shall act under the Librarian’s general direction and supervision.

…

Pursuant to this authority of law, the executive branch promulgates regulations, including this example:

Title 37 Code of Federal Regulations, Sec. 201.1 Communications with the Copyright Office.

(a) In general. Mail and other communications shall be addressed to the Register of Copyrights, Library of Congress, Copyright Office, 101 Independence Avenue, SE., Washington, DC 20559-6000.

...

It should be unnecessary to require an Act of Congress to change the mailing address of the Copyright Office.

Here is another trivial example regarding specific procedures from Title 37 of the "Code of Federal Regulations" promulgated by the U.S. Patent and Trademark Office regarding "Language, paper, writing, margins, compact disc specifications" for use in communicating with the Patent Office:

http://www.uspto.gov/web/offices/pac/mpep/....htm#cfr37s1.52

The regulations are promulgated because people have tried to file unreadable materials with the Patent Office, and this explains what format, not content, is required to make an application.

The promulgations of regulations regarding such granular issues of procedure are entirely proper to delegate to the executive branch. Such regulations are one of the ways that the executive branch may inform the public of how it will conduct business under a law. Such procedural details may be the subject of some discretion, of course, and may be the subject of much discussion and even disagreement, but making such executive decisions under objective laws is unlikely to violate any substantive individual rights. (Of course, I do not mean to imply that the entirety of modern U.S. copyright or patent law is objective, these are only examples of objective regulations and their relation to objective law.)

Another area that I think could properly be delegated to the executive branch would be under immigration laws against those carrying a serious communicable disease (although I am not familiar with this area of the law). For example, perhaps a law could establish that persons exhibiting signs of such a disease should not be allowed into the country, but delegate the exact listing of the diseases and health standards for immigration to the executive branch having an office employing medical professionals. See, for example, Title 42: Public Health, Part 34—Medical Examination of Aliens http://ecfr.gpoaccess.gov/cgi/t/text/text-....17&idno=42

It also gives the executive branch the power to act quickly in response to a new health threat, where legislative action is inherently much slower. I do not agree with all of 42 Code of Federal Regulations, but it gives us a concrete example of Congress delegating to the executive branch (and its specialists) regarding technical issues.

In contrast, if a law is non-objective, such as a tax law or a law for the protection of the environment without regard to individual rights, the regulations that the executive branch will promulgate under the non-objective law will likely be non-objective as well. Both the non-objective law and the non-objective regulations promulgated under the non-objective law will likely be subject to all the evils that you mention.

Edited March 20, 2009 by Old Toad

[Thomas M. Miovas Jr.]

In contrast, if a law is non-objective, such as a tax law or a law for the protection of the environment without regard to individual rights, the regulations that the executive branch will promulgate under the non-objective law will likely be non-objective as well. Both the non-objective law and the non-objective regulations promulgated under the non-objective law will likely be subject to all the evils that you mention.

Old Toad brings up an interesting issue, if I understand him correctly, that at times technical details must be left to specialists, and that's I why we have a specialized aspect of government dealing with copyrights and patents. But I think what Diana was getting at is that the alphabet regulatory agencies seem to have the power to create laws, and not just enforce regulations regarding, say, how to file a patent claim or a copyright claim. Unless I'm misunderstanding something here. Once a patent or a copyright is granted, does the copyright and patent office decide what laws govern those patents and copyrights? Or are their laws and the patent and copyright office must operate according to those laws -- i.e. the power of law instead of the power of men? This might need more clarification.

For example, one can say that the FBI, the BATE, and the CIA operate under certain specific laws, but as far as I know they don't make the laws that people must follow. And there is a difference between procedures for filing a patent or how to handle suspected criminals and spies, and coming up with laws (or regulations that have the power of laws) that hold sway over all citizens, isn't there? I can understand the need for specialization -- for example patents being sent to specialist instead of to Congress, the FBI dealing with criminals on the national level, and the CIA dealing with spies -- but do these agencies have the power to regulate our lives per se?

In other words, if individual rights are the proper standard of law, there might arise a need for specialization within the government to cover complicated technical issues, but would these specialized agencies actually make laws?

Maybe I ought to ask a related question: If the EPA says all gasoline powered cars must get at least 40 miles per gallon, is that enacting a law or a regulation? and does it make a difference to the man on the street if he is told he is violating a law or violating a regulation? In other words, it is not the job of the government to regulate our lives; it's the job of the government to protect our individual rights. So I certainly share Diana's concerns regarding the regulators, as they seem to have arbitrary power over our lives.

Or are you saying, in effect, that government agencies are there to work out the details of laws that Congress has enacted?

[DavidOdden]

But I think what Diana was getting at is that the alphabet regulatory agencies seem to have the power to create laws, and not just enforce regulations regarding, say, how to file a patent claim or a copyright claim.

Some congressionally-passed law "enables" a government agency to write laws of a specified kind. For example, the federal student privacy law FERPA limits federal funding to institutions which allow students access to their records (blah blah blah), and subsection (f) enables the Secretary of Education to promulgate regulations (these) which says what one may and may not do. They can do this because of the Administrative Procedures Act (5 USC 551), which says how you can make a rule. There is of course the question of whether the enabling legislation actually empowers the agency to make such a rule.

For example, one can say that the FBI, the BATE, and the CIA operate under certain specific laws, but as far as I know they don't make the laws that people must follow.

A regulatory agency can't create a crime, but they can create policies which must be followed lest there be consequences. Such as deportation, if you are an immigrant. At the federal level, I think the biggest stick is the funding stick. There are federal regulations requiring "human subjects review" for all sorts of stuff, but these are only based on the universally true premise that universities want federal money. Given that premise, you must follow the regulations (which are separate from the enabling statutes) if you want the money. Even if you don't want government money, in certain areas they can simply write rules (thanks to the commerce clause).

Reulatory power is not unlimited, so the EPA cannot create a regulation limiting entry into the US by certain aliens, since that is not within their statutorily-specified brief.

[Aqualyst]

May I suggest reading "Assault On Integrity" by Alan Greenspan in Capitalism: The Unknown Ideal. Greenspan has since traveled far from Objectivism, but the article, apparently written in 1963, says much about the concept of government regulation.

Also, in a Q & A following one of his lectures, Leonard Peikoff stated that regulations restrict men's activities in advance of any wrongdoing. Laws, on the other hand, should objectively state what is considered a prohibited action and prescribe appropriate penalties should that action be committed. Peikoff's comments illustrate the distinction, although sometimes subtle, between law and regulation.

[Grames]

What is a 'regulatory' agency? The EPA is an example of a regulatory agency. The USPTO and that agency that sold land under the Homestead Act (Bureau of Land Management?) are in the business of defining property rights, which is 'regularizing' function. There is something essentially different about the two kinds of enterprises. The EPA violates rights, the USPTO and BLM defend rights.

I don't see a moral distinction between laws and regulations, both can be proper or improper. The legal distinction is simply one of origination.

[DavidOdden]

I don't see a moral distinction between laws and regulations, both can be proper or improper.

The most important distinction is the political one, that it is much easier to impose a regulation than a statute (and since most new law violates rights rather than protecting them, regulation-making is more harmful). In addition, violation of statutory law is addressed in courts which have built in to them certain procedural principles designed to protect individual rights (trial by jury under the legal supervision of a disinterested and specially-trained judge). Such protections do not hold for regulatory adjudication.

[Old Toad]

In re-reading Diana’s original post and the responses, I think that we may be using the word “regulation” in different senses.

In a first sense, the word “regulation” means “1: the act of regulating : the state of being regulated,” where “regulate” is meant in the sense of: “1 a: to govern or direct according to rule b (1): to bring under the control of law or constituted authority (2): to make regulations for or concerning <regulate the industries of a country>.” Merriam-Webster Online. 20 March 2009
http://www.merriam-webster.com/dictionary/regulate

In a second sense, the word “regulation means: “2 a: an authoritative rule dealing with details or procedure <safety regulations> b: a rule or order issued by an executive authority or regulatory agency of a government and having the force of law.” Merriam-Webster Online. 20 March 2009
http://www.merriam-webster.com/dictionary/regulation

The distinction is important.

I think Aqualyst was understanding Diana’s usage of the word “regulation” in the first sense. David Odden, Grames, and I were understanding Diana’s usage of the word “regulation” in the second sense (in contrast to “law” or “statute,” that is, an act passed by the legislative branch). I think Miovas’s questions were based on not being sure which sense was intended.

In the first sense of the word, “regulation” is immoral. In the second sense of the word, “regulation” is merely a political distinction as to which branch promulgates a rule, which can either be a “law” or “have the force of law.” In the first sense, “regulation” makes a big difference to the man on the street. In the second, it makes little difference to him.

Like Aqualyst, what I suggest is that the problem of “regulation” is in the first sense, and like Grames, not so much in the second.

I think it is a fallacy to argue: “Most regulations today are bad. This is because there is insufficient political protection against bad regulations. Therefore, we should get rid of all regulations.” Such reasoning would suggest we should get rid of all laws, too. (This is hyperbole from Diana's question, of course, just for dramatic effect.)

The solution is political, and ultimately philosophical, of course. But getting rid of all regulations (and all laws) to get rid of bad ones is not the solution.

Edited March 21, 2009 by Old Toad

[Thomas M. Miovas Jr.]

I think it is a fallacy to argue: “Most regulations today are bad. This is because there is insufficient political protection against bad regulations. Therefore, we should get rid of all regulations.” Such reasoning would suggest we should get rid of all laws, too.

I think I understand your difference, so thanks for the added explanation. Objectivism most certainly says that there ought to be a government (to protect individual rights) and that the government will decide the laws (to protect individual rights). While there are a few anarchists and anarcho-capitalists on this board (or people who lean that way), Objectivists are certainly for the rule of law as opposed to mob rule or vigilantism. The government is there to protect our individual rights, and part of their job would be to lay down objective law -- objective in two senses: 1) they will protect individual rights, and 2) they will be stated clearly and unambiguously so that people know what is and is not against the law ahead of time.

Originally, The Founders set up the two branches of Congress to determine laws as a checks and balance against arbitrary power. That is, as it currently stands, one must get approximately 300 people in the government to determine the Federal level laws of the land. This is in contrast to having a King or an overlord who would, by himself, set the laws that everyone must follow in the country.

However, as we have seen recently with the House voting to garnish away the bonuses of the AIG leadership, that number can be reached quite easily if everyone voting on the law is of a like mind. So, ultimately, even a procedural check and balance system, which we have, can break down under political and / or philosophical corruption.

Bad laws most definitely need to be fought, but fighting for good laws via good philosophy will much better safeguard us from bad laws as compared to fighting bad laws one by one.

In other words, when the philosophy of this country becomes more rational and more individual rights oriented, the anti-individual rights laws can be swept aside in short order. A good rational and man centered philosophy can almost guarantee that those 300 people can vote on good laws overturning bad laws just as quickly as those 300 men today voted for a bad ex post facto and bill of attainer law.

And this is yet another reason why political action must follow philosophical action; or that a philosophical revolution must occur before we get good political laws.

The Founding Fathers just couldn't imagine that the prevailing philosophy of their day -- The Enlightenment -- would be swept away in a matter of a hundred years.

Added on Edit: And I think that is why they never really made the basis of individual rights law explicit in the Constitution. They took for granted that individual rights were at least implicitly understood throughout the land -- especially after winning their independence on such terms -- and so it wasn't made as explicit as it should have been to govern the creation of laws. Procedurally, with rare clearly stated principles, those 300 men can do what they want; and so our freedoms and liberty got slowly eroded away.

Edited March 21, 2009 by Thomas M. Miovas Jr.

[Thomas M. Miovas Jr.]

Here is an example of the type of regulations that I'm sure Diana is against: A new agency will be formed to regulate the financial industry, blaming the financial industry for the economic meltdown. Keep in mind that these are private companies taking private risks. If an insurer wants to insure the value of financial instruments -- like credit default swaps -- then they should be free to do so. If a private company does that and the market takes a significant tumble, leading to heavy loses on the part of the insurer, then they go out of business and other can learn from their mistakes. But because collectivism has raised its ugly head and the government had distorted the financial markets, the claim is that the loss of a particular business will bankrupt the entire economy. Regulations will only make everything seem to be in better shape than it is, since the government, once again, will seem to be backing up what the financial companies do.

Such regulations are a violation of individual rights, and the right to decide how to run one's business. The government made it seem like the mortgage business would continue to go up by its artificial increase in demand, so many people were willing to take the risk that the mortgage backed securities would be safe because they were led to believe that those markets would never come down. It was a bubble created by our own government that eventually popped, leading to all those bankruptcies, and now the government is blaming the financial institutions are will put chains around their necks.

The government has no business and no right to regulate the economy -- and when it does, distortions come up in the markets, like bubbles that create great havoc when they pop.And it is evil to tell businesses what to do at the point of a gun, so long as that business is not initiating force.

[A is A]

By Diana Hsieh from NoodleFood,cross-posted by MetaBlog

I'm looking for a good source to help clarify the distinction between ordinary laws and regulations. Any suggestions? A relatively short online essay would be most helpful.

-------------

There is one fundamental difference between laws and regulations. Laws are aimed at controlling behavior after rights have been violated. Regulations are aimed at controlling behavior before rights have been violated. There may be a law against spilling toxic waste into a water supply, but one does not get prosecuted until one actually spills toxic waste into a water supply. Regulations establish controls before any action is taken with respect to the toxic material and any subsequent damage. Regulations are aimed at preventing rights violations (or, more often, other regulatory rules) before they occur by establishing rules which are then enforced to the extent that if the rule is violated, it is the equivalent of violating rights. Financial and criminal action are then taken against those who violate the rules when no rights have been violated.

Regulations are inherently non-objective and should be abolished.

Edited March 27, 2009 by A is A

[A is A]

What is a 'regulatory' agency? The EPA is an example of a regulatory agency. The USPTO and that agency that sold land under the Homestead Act (Bureau of Land Management?) are in the business of defining property rights, which is 'regularizing' function. There is something essentially different about the two kinds of enterprises. The EPA violates rights, the USPTO and BLM defend rights.

I don't see a moral distinction between laws and regulations, both can be proper or improper. The legal distinction is simply one of origination.

I disagree. See my Post 12.

Please explain how the USPTO is a regulatory agency and how the BLM defends rights.

[Old Toad]

Please explain how the USPTO is a regulatory agency ....

No one on this thread wrote that the USPTO is a "regulatory agency," but it does issue "regulations." Your question is based on an equivocation on two different senses of the word "regulation." It is important to consult dictionaries and interpret which sense is intended from the context.

[A is A]

No one on this thread wrote that the USPTO is a "regulatory agency," but it does issue "regulations." Your question is based on an equivocation on two different senses of the word "regulation." It is important to consult dictionaries and interpret which sense is intended from the context.

Please explain how the USPTO issues regulations and how the BLM defends rights.

[Old Toad]

Please explain how the USPTO issues regulations and how the BLM defends rights.

Hello Paul,

Regarding the US Patent and Trademark Office, for an example of the office issuing regulations please see Post #3 on this thread. (I do not know anything about the BLM.)

Edited March 27, 2009 by Old Toad

[DavidOdden]

There is one fundamental difference between laws and regulations. Laws are aimed at controlling behavior after rights have been violated. Regulations are aimed at controlling behavior before rights have been violated.

I don't believe that you understand what the distinction between a statute and a regulation actually is. All laws (meaning statutes) are aimed at controlling behavior before rights are violated, in order to prevent rights violations. Statutes (properly) include laws against inchoate offenses. In addition, it is simply false to believe that laws in general protect rights -- vast numbers of laws do not do so. The entirety of title 13 has nothing to do with protection of rights, nor title 7, 20, 21, 26 (the biggest rights-violating part of the law). In fact, only titles 18, 28 and 50 are about rights protections. You can replicate this result for your favorite state government.

Examples of regulations designed to prevent violations of rights are 32 CFR 219 (protects the rights of experimental subjects, requires informed consent), 32 CFR 277 (fraud remedies), and 37 CFR 73 (establishes the presumptive relation between 'inventor' and 'owner of patent'). The latter is an example of a patent regulation. If you are asking "what is the procedure by which USPTO issues regulations", this is stated (broadly) in statutory terms in chapter 5 of Title 5, but maybe you want a more detailed explanation of their hearing procedures for new regulations. An example of the BLM functioning in a proper rights-protecting manner was precisely their custodianship of unclaimed land.

The point is that there is nothing inherent in the concept of "statute" versus "regulation" dictating that the content of a statute is morally better than the content of a regulation. The real difference arises from the fact that the regulatory state is a new phenomenon compared to rule by (legislatively-approved) statute. The importance of this difference is that statutes already existed which covered most of the proper rights-protecting function of government, most of are early in the creation of our nation. It follows from this fact, that any further expansion of the government from this classical rights-protecting legal base -- whether implemented by statute or regulation -- will probably be improper and rights-violating. (Except in infrequent expansions where a fact of rights-protection is related to expanding technology). The second most important fact regarding regulations vs. statutes is that, necessarily, regulatory law cannot impose criminal penalties on a violator: that requires a specific statute. Therefore, no subject matter that involves an egregious violation of rights sufficient to be considered a crime can be addressed by regulation. From this it follows that regulations will tend to have a higher percentage of bad content.

[A is A]

I don't believe that you understand what the distinction between a statute and a regulation actually is. All laws (meaning statutes) are aimed at controlling behavior before rights are violated, in order to prevent rights violations.

I beg to differ. The fact that there is a law against theft or murder has positively no effect on my actions if I have not taken steps to carry out the action. IF I steal something, then the law controls my behavior by having me arrested, putting me on trial and ultimately in jail. Such laws are objective and only effect me when I initiate force by violating rights. The fact that there are laws against theft and murder does nothing at all to prevent me from taking actions to rob or murder. Regulations, on the other hand, affect me before I have taken any action that violates rights. If I were in the business of manufacturing toxic material, I could be fined or criminally indicted because someone did not properly file some paperwork with some appropriate agency. There is no law requiring such filing, only regulations by the agency who controls manufacturing toxic materials. No one's rights have been violated and I have not initiated force.

Statutes (properly) include laws against inchoate offenses. In addition, it is simply false to believe that laws in general protect rights -- vast numbers of laws do not do so. The entirety of title 13 has nothing to do with protection of rights, nor title 7, 20, 21, 26 (the biggest rights-violating part of the law). In fact, only titles 18, 28 and 50 are about rights protections. You can replicate this result for your favorite state government.

I was answering with respect to the proper functions of a government, not to the improper ones. Laws, properly conceived, do not do anything else but protect rights. I was not implying or denying that there are laws which violate rights in today's society.

---------------------

I'll respond to some of your other points later.

[Steve D'Ippolito]

Or to put that in short form--a LOT of regulations happen to be "prior restraint."

I don't believe, however, that that's inherent to regulations.

[DavidOdden]

Regulations, on the other hand, affect me before I have taken any action that violates rights.

This is false, as I have pointed out. Regulations also have no affect on you, before you take the action that is a violation. I await your more detailed analysis of the statute / law distinction. There are proper regulations, and proper statutes; there are improper laws, and improper statutes. You are confusing proper law with statutory law -- they are different.

If I were in the business of manufacturing toxic material, I could be fined or criminally indicted because someone did not properly file some paperwork with some appropriate agency. There is no law requiring such filing

Check Title 7 esp. section 136 for some relevant federal statutes. In fact there are such laws. These are prior restrain laws, which prevent you from possibly violating someone else's rights

[RationalBiker]

The fact that there is a law against theft or murder has positively no effect on my actions if I have not taken steps to carry out the action. IF I steal something, then the law controls my behavior...

So, it would it be proper to say that the existence of a given law has no impact on whether or not you choose to take certain actions that may be in violation of a given law? Would you behave differently if you knew certain laws did not exist?

I think it is fair to say that stating a given punishment for a given action IS an attempt to control behavior by spelling potential reprecussions of that behavior. No, the existence of a law CANNOT physical stop you from doing anything, but your knowledge of the existence of a given law may affect your decision to take certain actions. That is an attempt to control behavior.

Edited March 28, 2009 by RationalBiker

[A is A]

-------------

You are confusing proper law with statutory law -- they are different.-----------

Then perhaps you could please explain what I am confusing. And show where I am confusing them rather than asserting it.

[DavidOdden]

Then perhaps you could please explain what I am confusing. And show where I am confusing them rather than asserting it.

You are confusing proper law with statutory law. This can be observed in your comparison of statutes prohibiting theft and murder (which are, we agree, proper), and environmental regulations (which are, we agree, improper). You mistakenly attribute the distinction to the fact that one is a regulation, the other a statute. The correct distinction is that one is proper law and the other is improper law, and whether or not the law is proper or improper is determined by what it holds, and not by its method of creation.

I have shown you examples of improper statutes and proper regulations. That should have been sufficient to show you that regulations are not inherently improper. I have also explained the historical basis of the myth that regulatory law is necessarily better than statutory law. You have constructed a belief that all proper law is statutory, but that ignores reality, and also attributes a really fundamental distinction in types of law (made visible in what the laws require) to an irrelevant procedural point about how the law comes into existence.

Your explanation of murder statutes vs. environment regulations also presents a false characterization of the "controlling" effect of statutes and regulations. All law, be it statutory or regulatory, describes forbidden conduct and consequences for engaging in that conduct. That is, as Ayn Rand says in "Objective Law", what is required of an objective law. This relationship of proscription and consequences is all that a law can do to control human behavior -- if you wish to murder a man regardless of the consequences, the law cannot control you. The relation between action and consequence exists whether or not the law is statutory or regulatory. To claim that there is a difference in controlling function between statutory and regulatory law thus flies in the face of reality.

[Thomas M. Miovas Jr.]

I think what David Odden is trying to get at is that just because something is a law rather than a regulation that doesn't mean that it has the proper standard of upholding individual rights --he said there were proper and improper laws, but he didn't state the standard. Regulations have their place, as Old Toad pointed out, such as saying you must submit two copies of a written work in a notebook type of presentation to the copyright office for it to be considered; presumably, if you send them a whole bunch of unbound papers, they will reject it. And there are certain laws or regulations that one must follow before one actually violates individual rights, such as a law or a regulation saying that one cannot have high explosives or hazardous materials in a densely populated area, because the potential for disaster is too high. I might even be able to accept a regulation that one cannot put flammable materials in a flammable container in populated areas -- i.e. in cities.

All of these issues must be thought through carefully with man's life as the standard and with individual rights as the guiding principle.

So the fundamental problem is that an improper standard is being used to create both laws and regulations. And they shouldn't be able to have regulations that are impossible to meet, such as saying that carbon emissions must be so low that industrialization would be halted or severely impaired. The problem is that man's life is not the standard for many laws or regulations, but rather anti-man standards have gotten into the mix -- i.e. wilderness areas must be protected rather than man, or commanding that cars must get 30 miles to the gallon when, or government regulations of the economy, etc.

In a fully capitalist government, one would be free to live one's life so long as one respected the equal individual rights of others.

[DavidOdden]

I think what David Odden is trying to get at is that just because something is a law rather than a regulation that doesn't mean that it has the proper standard of upholding individual rights --he said there were proper and improper laws, but he didn't state the standard.

That's correct. I assume we agree what the standard is for proper law, but of course the problem with much law is that there simply is no standard: law is an arbitrary declaration of what is prohibited, and it exists simply because it has been posited by those in authority. This gives rise to ethical demons like Scalia.

So the fundamental problem is that an improper standard is being used to create both laws and regulations. And they shouldn't be able to have regulations that are impossible to meet, such as saying that carbon emissions must be so low that industrialization would be halted or severely impaired.

This is the unfortunate result of the fact that the framers probably did not fully grasp the extent to which arbitrary meddlings on man's rights would develop, as a consequence of there being no unmistakable constitutional litmus test for proper law. Neither statute nor regulation should be impossible to obey -- see anti-trust statutes for a classic example of a statute that is impossible to obey while still functioning qua man.