TOS Blog: Daily Commentary from an Objectivist Perspective

Where Does Valid Law End and Regulation Begin?

In my recent post “Don’t Regulate the Innocent, Punish the Guilty,” which concerned the proper role of government in a deadly tainted medication case, a correspondent raised the question of “where valid law ends and regulation begins.” It’s a good question.

Very briefly: Valid laws are laws that are objectively defined (i.e., clearly stated and sharply delimited) and that protect and do not violate individual rights. No other kind of law is legitimate.

Setting aside special circumstances such as military law, valid law comes in two forms: (1) laws that prohibit objectively defined rights-violating acts, such as assault, fraud, robbery, rape (criminal law); and (2) laws that provide a legal pathway for harmed parties to seek restitution from those who harmed them (civil law). That, in essence, is the extent of legitimate law.

Government regulation is illegitimate because it entails the legal imposition or prohibition of courses of private action in which no actual (or intended) rights-violations are evident.

As philosopher Harry Binswanger explains in “What is Objective Law?”, objective or valid law “does not require submitting to anyone’s will; it exists to prevent others from substituting their will, their plans, their judgment for one’s own.” He continues:

[A]ll regulatory agencies—all the alphabet commissions and boards from the original ICC right through the latest “environmental” agencies—are inherently non-objective [invalid] by virtue of being regulatory agencies. Regulatory agencies deal in preventive law, law that treats men as guilty in advance, requiring them to satisfy the government that they will not bring about a certain result, in the absence of any specific evidence that they will do so.

Government regulation by definition entails the initiation of force; it is therefore rights-violating and non-objective, and it has no place in a free society.

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Posted in: Individual Rights and Law

Comments are welcome so long as they are civil.
  • Tom

    Thanks for the article. I have a question regarding endeavors that entail a lot of risk. For example, what should the law say about selling experimental medicine to patients? I am thinking of parallels to other prohibited acts, which haven’t hurt anybody but have a high risk of doing so, such as drunk driving. Maybe that isn’t the best analogy, but hopefully you see my point. I am wondering if there is ever a right to regulate super risky activity, like the experimental drugs, or say I wanted to launch a rocket in my back yard or build a nuclear reactor in my garage. Do you think these, or perhaps better examples that I am not listing, are legitimate for the government to have some sort of prohibitive check on? Thanks again for the article, and I look forward to your response. -Tom

  • Anonymous

    Wouldn’t the harm subject to civil law have to be rights-violating too?

  • Anonymous

    Trying to clarify:

    I think of regulation as government imposed standards of behavior along with an enforcement regimen which includes both some type of inspection and penalties for noncompliance. The regulators don’t need to show a real case of harm. For example, a restaurant can be penalized for unsafe food handling even if no one has proved that an illness has resulted from the unsafe food handling at the restaurant.

    But, what would be the status of a law that says that the money earned by a kid belongs to the kid? I don’t know about other contexts, but I do know that, for child actors, this is the law in California. Or, maybe there should be no special legal framework for kids?

  • Anonymous

    Personally, I’ve accepted DUI law. My thinking is that a person who is out of control is an immanent threat and can be stopped even though no one has been hurt and the driver has no intention of hurting anyone.

  • Anonymous

    Another interesting situation comes up in the context of doctors who, for religious reasons, don’t want to inform patients about their end-of-life medical options. If there’s a regulation forbidding a doctor from hiding such information, then it seems that the doctor’s right’s have been violated. Yet, a doctor withholding legitimate medical info is a menace and is hardly justified in calling himself a doctor. My question to an Objectivist lawyer was (as I recall): “Can a doctor, if he doesn’t say that he refuses to give a patient full information, be presumed, by a patient, to be not hiding medical options?” The lawyer’s, still tentative, opinion was that, yes, such a presumption could be made. I guess this would be a law setting up a pathway to civil damages. I don’t believe the lawyer tried to defend this position in his brief reply.

  • Anonymous

    Does the doctor withholding information provide that datum (that he might not fully inform you of all your options due to his beliefs) to you? Does the doctor advertise his beliefs within his practice? Are you as a patient prevented from getting a second opinion? As a patient, you may make assumptions about the doctor you engage to inform you of your condition and available options. You are also free, as an Objectivist patient, to find as much information as you can, on your own or through the productive efforts of anyone you choose. None of this necessitates a regulation from a third party (the AMA, or the State). You get what you invest in – your goal should be the improvement of your life, which means every choice you make should be governed by that goal. How do you know you can trust a doctor to tell you the truth? How do you know you can trust an auto mechanic to tell you the truth? A banker? Stock broker? Politician? President? Waitress? Airline pilot? The risk – of failing to improve your life – is different for choosing to trust or distrust each of these professions. So your decision to trust a waitress may be easier to make than that of trusting a doctor. But as the risk increases, so should your responsibility to find as much information as you can before making your decision. Which comes down to: You are the best regulatory agency for your life. No regulation defined and imposed by anyone else can match your ability to determine what you will or will not allow for your particular situation.

  • Anonymous

    Experimental drugs: Assuming no State interference in the doctor’s decision to suggest them, and no State interference in the drug company’s decision to make them, and no State interference in the patient’s decision to take them, then no regulation is required. An Objectivist patient will do their best to find as much information about options and side-effects/risks as possible. If a timely decision is required, the patient must weigh the benefits against the risks, and decide for themselves. If a drug succeeds 50% of the time and fails fatally 50% of the time, and the patient has a 99% chance of death within 12 hours without the drug, then the patient must do the calculation themselves: a 1-in-100 chance of life without the drug, a 1-in-2 chance of life with it. With State regulation of this drug, the patient’s choices are further restricted, arbitrarily (who decides what percentage of success is acceptable? how do they decide?).

  • http://www.facebook.com/people/Michael-A-LaFerrara/100001601178840 Michael A LaFerrara

    Law is complex, and I am not an expert in the field. Still, speaking as a layperson in regards to a two points raised by Tom and Mel M.:

    Clearly, a person has the right to act on his own judgement, and that includes deciding how much risk he is willing to assume, as in what medications to put into his own body. As long as the drug manufacturer is fully honest in disclosing all relevant information about its product, the patient and his doctor are fully free to investigate the product, and all are voluntarily willing to contract, the government’s job is; hands off.

    In the case of the actions of others posing an objectively demonstrable risk of real danger to one’s person or property, beyond the normal risks inherent in human interaction, the law has a role in explicitly prohibiting certain behavior. For example, there is a risk to driving in the best of circumstances, and the choice to drive implies the willingness to accept that risk. However, drunken driving involves a choice by the drinker to place others at avoidable risks that exceed normal human fallibility, and should properly be criminalized. But a clearly defined law in regards to a clearly defined act that poses an extraordinary threat to others’ life and property rights is different from a regulation, for reasons explained in Dr. Binswanger’s article.

    As to children, they obviously have rights. But, being children not yet mature enough to exercise their rights, their rights are in essence held “in trust” by the parents–but still ultimately protected by government. Since children obviously are not qualified to handle wads of money they may earn as child actors, I would think the law has some say in establishing the legal framework for how the child’s money is handled, consistent with the child’s property rights and the parents’ rights to raise their child in a manner of their choosing. How that should be sorted out is open to debate.

    These opinions are my own, of course, and I’m not qualified to provide expert legal opinions. But the bottom line is, the answers to all legal questions can and must ultimately be grounded in the principle that government’s only proper purpose is to protect everyone’s individual rights, equally and at all times. That is the “standard” for both criminal and civil law.

  • Anonymous

    Yes, there is law in California, and elsewhere, about the handling of a child performer’s earnings. The parents have considerable obligations for seeing that professional bills (and other bills) are paid and for managing the money. But, “unauthorized” use of the money is considered stealing. The law also provides that all normal child raising expenses are the responsibility of the parents., it makes sense to me, although I don’t know for sure, that earnings could also be used for expensive private schools and things like that. However, there is another feature of the law that looks dubious to me. It’s popularly called a Coogan Account (named after the child actor — Jackie Coogan — who was seriously victimized by his parents). It requires that a bank account be set up and that 15% of gross pay is sent directly by the employer into the account. Nobody can get at it until the child takes control at 18. Anyway, IMO (sorry, best I can do), I think it’s important that a child’s earnings legally belong to the child and that parents have management obligations. Without something like this, a child could be sent out to earn money for the parent’s drug habits etc — a complete ripoff of the child’s efforts. Without at least a sketch of a legal framework, advocating for child labor could certainly scare the hell out of people — indeed, appall them. I think of child rights as being converted to parental obligations to act rationally for the benefit of the child. This is why I support punishment of parents who let a child die because they used faith healing rather than seek medical assistance.

    As for the legal idea that a doctor can be presumed to not have withheld end-of-life options, I found the saved email reply to my question posed to the Objectivist lawyer. As is plain, it’s tentative. I’ll quote it here:

    “As for the doctor withholding information based on his religion, my first thought is that this is the type of issue that a patient must be sure he researches himself. If you live in Oregon or Washington especially, you should know that a doctor can prescribe drugs to end the patient’s life. So if the doctor won’t cooperate, you go to another one.

    Beyond that, I think the law would properly impose a default understanding that a doctor would communicate all options about how to deal with terminal illness, including suicide. The doctor could then contractually opt out of that, if he is say a Catholic and doesn’t want to undertake advising about abortions, suicide, etc. That way, the patient knows right up front that he’s not going to get the full story.”

    End-of-life options cover a number of things other than doctor assisted suicide, so it’s very important even in states (almost all of them) where such suicide is still against the law.

    About my question concerning civil law and rights violations, I would think that, without a rights violation, there’d be no remedies that the state could impose on a defendant.