Laws, pseudolaws, and by-laws

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The most important distinction to emerge from the categories created by the periodic table of human associations is between three different meanings all commonly pointed to by the word law:

Since these three meanings are so very different, using the same word to indiscriminately refer to all of them can only produce confusion. We will therefore stipulate that the word law will be used only to refer to the first meaning: a general rule of action enforceable by sanctions. For the other two meanings we will assign the following terms (as shown in Table 2.4):

Pseudolaws: a non-general rule enforced by sanctions.

By-laws: a statement of the terms on which and with whom a government is willing to enter into voluntary associations.

The two key elements in distinguishing laws, pseudolaws, and by-laws are generality and sanctions. To be a general rule of action, it must apply to everybody without any exceptions whatever. It is because the public is defined precisely as everybody who is subject to a given government that laws are an expression of government-as-legislator and constitute public-involuntary associations. Since generality is not an issue one way or the other with by-laws, the first question to be considered, when translating the word laws as it is used by the general public into our more precise terms, is whether there is a sanction involved at all in the rule. If there is not, then the rule is a bylaw, which is "enforced" by withdrawn or denied inducements rather than by sanctions. If there is a sanction, however, we must still ascertain whether the rule is a law or a pseudolaw, and this is where we must consider generality. The following are examples of rules which are not general, and which therefore are pseudolaws rather than laws:

Any black person who does not ride in the back of the bus shall be fined USD 100.

Any Jew who does not wear a yellow star shall be punished as follows....

No woman can receive a license to work as a bartender unless the bar is owned by her husband or father.

Anybody under 21 years of age who consumes alcoholic beverages shall be fined USD 200.

Any male who does not register for the draft upon reaching age 18 shall be fined and/or imprisoned.

Rich people shall pay a 70 per cent income tax, other people shall pay 24 per cent.

Generality requires that the rule apply to the equivalent of "anybody who", and all of the above examples discriminate on the basis of race, sex, age, or wealth. People are treated not merely on the basis of how they act, but also on the basis of who they are. Pseudolaws are enacted by government-as-bandit, a term suggested by St. Augustine's famous observation: "Justice being taken away, then, what are kingdoms but great robberies?"1 The only difference between a compound-involuntary association and a private-involuntary one is that government is a party to the former. In both, individuals are arbitrarily singled out and sanctions imposed or threatened against them. If anything, government-as-bandit is even more intolerable than private robbers, for it wields the resources of the entire community and one cannot seek government protection from it. The word "by-law" reflects the fact that when Congress determines the terms on which and with whom the US government is willing to enter a voluntary association, it is doing no more and no less than is done by the boards of directors of any private corporation. By-laws apply both to compound-voluntary and to public-voluntary associations. Examples of by-laws applying to compound associations include portions of the Bacon-Davis Act, the Hatch Act, and the Philadelphia Plan. The Bacon-Davis Act prohibits the federal government from making contracts with private firms paying their employees less than "prevailing wages" as determined by the Secretary of Labor for each occupation and region of the country. The Hatch Act prohibits the federal government from retaining civil servants who engage in certain types of politicking, including addressing a political rally or holding office in a political party. (Any law prohibiting such actions and enforced by sanctions would clearly violate the First Amendment; the Supreme Court, however, has twice upheld the Hatch Act, which is enforced by withdrawn inducements.) Under the Philadelphia Plan the federal government contracts only with private construction firms that agree to hire at least a certain percentage of minority employees. The Plan is an effort to overcome racial discrimination by the building trades unions and acquiesced in by employers. By-laws applying to public associations include the Hickenlooper Amendment and the federal enactment producing the 65 (originally 55) miles per hour national speed limit. The Hickenlooper Amendment cuts off foreign aid to any country that nationalizes property owned by US citizens without paying them fair compensation. It tries, via the power of the US government purse, to extend the protection against uncompensated seizures provided domestically by the Eminent Domain Clause of the Constitution. When US President Nixon proposed a national speed limit during the 1973 Arab oil embargo, Congress lacked constitutional authority to enact a law requiring people to drive more slowly. The state governments had the power to enact such laws but were not disposed to do so. Acting on Nixon's proposal, Congress merely enacted a by-law cutting off all federal highway funds to any state whose legislature did not enact a law making the speed limit 55 or less. If any state had refused to comply, its action would not have been illegal. It would merely have been a violation of a federal by-law. But the states, sometimes with great reluctance, knuckled under unanimously—few local politicians were willing to climb off the federal gravy train.