A blupete Essay

Prescriptive Law, Part 16 to blupete's Essay
"An Essay On Government"

Prescriptive law is a rule of conduct imposed by the authority of government, a rule which has been decided upon by a human being or human beings; it imposes a relationship that does not naturally exist (otherwise why bother); it is a law that comes purely out of the human imagination; it can never run contrary to a natural law (at least not for long); and, by its nature, can be broken by man. (Examples of prescriptive laws would be those that require that one must stop at a red light, or one must pay taxes.) The outcome in any contest between natural law and prescriptive law is inevitable. The best that can be expected by those who support prescriptive law that runs contra to natural law, is, that the inevitable outcome might be delayed; but, only at a considerable cost, usually in human misery and blood.

Before proceeding: we are obliged, for analytical purposes, to break prescriptive law down into a third level consisting of two categories: restrictive law and positive law. A restrictive law is a law which directs a person or persons not to do something; and positive law is a law that obliges one or more to do something. "Do not litter," is a example of a restrictive law, it always has a negative; this, as opposed to, "Pick up your litter," which, of course, is a example of positive law.

(Canada, as is the case in most all of the countries in the world have taken to passing prescriptive laws, most of it in the worst form, as positive laws. The reasons for this I examine elsewhere. One would think that such a fundamental question as to the type of laws a country is empowered to pass would be covered by its constitution, -- and I would argue that there is little room in the British constitution for positive law [a constitution which, with its common law heritage has been adopted by Canada], an argument that I intend to take up elsewhere -- but, at any rate, our free spending politicians and the social engineers on the payroll have paid little heed to the Canadian constitution, whatever it may be. The fact of the matter is, that, whether in pursuit of constitutional goals, or not, there has been a pouring out from our law making assemblies of prescriptive law in great smothering quantities, particularly, in the last twenty-five years; most all of this legislative law has been in the nature of positive law, made in pursuit of the great delusion, viz., we can cure all the difficulties of mankind by legislation.30 Not only have our "elected representatives," qua legislators, passed, [driven by pressures brought on by all sides] huge volumes of written law, but they have given off this power [as if they can?] to their "unelected" bureaucratic friends who have run with it in great style, loading up on all and sundry, further and much more extensive volumes of governmental regulations. Regulations made by bureaucrats under the authority of a particular act are, neither made openly like acts of the legislature, nor are they published and distributed in the same way. This domain of "government regulations" is a vast area of law, hidden and dangerous. More than enough of it is substantive law, that is law that effects the rights of citizens. Now, mind you, any citizen might, with enough money and perseverance, go up against government, test "a regulation" before a court of law, and, I believe, in the majority of instances, the judge would likely throw the offending regulation out the nearest court window; but the realization of what a judge would likely do with most of their regulations does not deter government bureaucrats from grinding out regulation after regulation, much of it substantive law, much of it harmful to our fundamental rights. As to what kind of laws legislators are allowed by our constitution to pass, is an area, I submit, which desperately needs constitutional protection; for, as we can see from the experience of the last twenty-five years, or so, our trusted leaders, the ones we elected, have exercised little control over themselves and have created a huge economic problem for the country which has caused much greater problems than any of the problems which the legislation was designed to cure.)


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Peter Landry

2011 (2019)