What Makes A Good Law, What Makes A Bad Law?

Submitted by Gene Howington, Guest Blogger

In 1780, John Adams succinctly defined the principle of the Rule of Law in the Massachusetts Constitution by seeking to establish “a government of laws and not of men”. This reflects the democratic principles enshrined in the Constitution’s preamble: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” The very foundation of our legal system says that the law should work for us all, not just a select few.

This raises the question of what is a good law that serves the majority of society and what is a bad law that doesn’t serve the majority of society?

This idea is further bolstered by the Equal Protection Clause of the 14th Amendment:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The latter addition of the 14th Amendment as well as the Preamble of the Constitution both reflect the spirit in which this country was founded as set forth in the Declaration of Independence: “When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”

Clearly, the pursuit of the Rule of Law under the Constitution as informed by the Declaration is a pursuit of the Utilitarian concept of the right course of action is the one that maximizes the overall good consequences of an action; what is in the best interest of greatest numbers of We the People is in the best interests of the country.

Utilitarianism is a quantitative and reductionist philosophical form. Utilitarianism, however, is not a unified philosophical view. It comes in different flavors with the two primary flavors being Rule Utilitarianism and Act Utilitarianism. Strong Rule Utilitarianism is an absolutist philosophical view and rules may never be broken. Like any absolutist view does not take into account that reality occasionally presents situations where breaking a rule results in the greater good. For example, the strong reductionist rule that murder is bad is countered by the exceptional example of murder is not bad if performed in self-defense or the defense of others. This result of practical application is reflected in what John Stuart Mill called Weak Rule Utilitarianism. It becomes apparent that since not all rules are absolutely enforceable when seeking the common good and exceptional circumstances require flexibility in the law, that the Utilitarian pursuit of the Rule of Law must be in Mill’s Weak Rule formulation of Utilitarianism. But is considering the greater good and circumstantial reasons for breaking or modifying rules the best way to judge whether a law is good or bad?

If one considers Kant’s Categorical Imperative – “Act only according to that maxim whereby you can, at the same time, will that it should become a universal law.” – then any law not universally applicable should not be a maxim worthy of being recognized as universal. This is contrary to Utilitarianism in general as well as Weak Rule Utilitarianism specifically, but while Kant’s view takes subjectivity into account when dealing with circumstances it does not take into account that there can be objective differences in circumstances as well. It is part of the judiciaries role as a trier of fact to consider not only subjective differences but objective differences in circumstances in formulating the most equitable and just solution to a case at bar. In seeking to be universally applicable in defining maxims, Kant is an absolutist as surely as Strong Rule Utilitarians are absolutists. As a consequence of reality not being neatly binary in nature and thus not often compatible to absolutists approaches to formulating laws for practical application, what can be done to keep Weak Rule Utilitarianism from degenerating into Act Utilitarianism where actors will seek the greatest personal pleasure when presented with a choice rather than the greater good? Utilitarianism conflicting with the Categorical Imperative? Is there a unitary philosophical approach to evaluating whether a law is good or bad?

The answer seems to be no. If there is no single view, absolutist or otherwise, that leads to a practical system for evaluating whether a law is good or bad, then there is only one option for building a framework for evaluation. That option is synthesis.

Consider that absolutist systems as they are not applicable in reality should be confined to being considered theoretical boundaries rather than practical boundaries. This does not negate the value of considering systems like Strong Rule Utilitarianism or Kant’s Categorical Imperative, but rather puts them in the place of aspirational goals rather than practically attainable goals in every circumstance. Given that Mill’s Weak Rule Utilitarianism can degrade into Act Utilitarianism and that degeneration can be compounded by the number of exceptions there are to a rule, are there ways to minimize the defects of using only Weak Rule Utilitarianism to determine the societal value of a law? What supplements can be made to that framework?

I submit that one such supplement is found in the form of Negative Utilitarianism. Negative Utilitarianism is exactly what it sounds like; the inverse function of Utilitarianism. Whereas Utilitarianism is the basic proposition that the right course of action is the one that maximizes the overall good consequences of an action, Negative Utilitarianism is the basic proposition that requires us to promote the least amount of evil or harm, or to prevent the greatest amount of suffering for the greatest number. If one takes both into account in evaluation of the social value of a law (a synthetic approach), the test becomes a balancing act. On one side of the scale is the societal value of overall good consequences, on the other side is the societal value of preventing overall harm. This proposition suggests the following framework for evaluation of whether a law is good or bad.

  • How many people benefit from the good consequences of a law?
  • How many people benefit from the reduction of harm as consequences of a law?
  • Does the benefits from promoting good consequences outweigh the costs of reduction of harm?
  • Does the benefits from reducing harm outweigh the costs to the greater good in taking no action?
  • Are the net consequences of a law perfectly knowable from either perspective or does the possibility of unforeseeable consequences exist? Can the unforeseeable risks be minimized either by construction of the law(s) to allow for contingencies or by regulating other risks or contributing factors?
  • Do solutions from either perspective negatively impact human and/or civil rights? Do those negative impacts outweigh the positive effects to the greater human and/or civil rights of all?

This is but one way to evaluate whether a law is good or bad for society. What are other methods? Are there ways to improve this method? What do you think?

2,113 thoughts on “What Makes A Good Law, What Makes A Bad Law?

  1. Stephen:

    I figured as much, it was probably used/taught at his top tier law school.

    A mind is a terrible thing to waste and for that amount of money to boot.

    It sounds like you are saying he doesn’t have the intellectual tools to properly understand our founding? Everything will be warped toward a Marxist conception of reality. That makes a good deal of sense.

  2. Grossman,

    “>your total disregard for objective scientific evidence (biological, sociological and psychological)

    You corrupt objectivity into social agreement. And science is based on philosophy. Your philosophy of subjectivism yields specific scientific methods, premises and conclusions.”

    That should read: “You apply objectivity in the form of evidence into social agreement.”

    “And science is based on philosophy. Your philosophy of subjectivism yields specific scientific methods, premises and conclusions.”

    Empiricism is based on observation. The Scientific Method is based on observation and experimentation. It isn’t subjective in the slightest.

    “>and logically consistent and formal arguments’

    Youre a consistent subjectivist. Kyudos. Your forms are subjective.”

    [Rand] faulty premises about human nature and the nature of tyranny.

    You evade my refutation of your irrational man.”

    Randian gibberish. Nothing has been evaded in the slightest. Her premises were proved faulty. More than once.

    “>the sentence that starts “Its good, ie, selfish,” is loaded with false equivalences and more gibberish.

    Arbitrary, lacking even invalid evidence”

    Not arbitrary in the slightest. The valid evidence is your post, which is cherry picked nonsense. The post immediately afterward is literally nothing but circular logic and appeals to Rand’s authority.

    “>Seriously, critical legal studies is somehow the equivalent of Marxism? One is an analytical framework for the study of law and the other is a disproved political/economic ideology.

    “The critical legal studies (CLS) movement attempts to expand the radical aspects of legal realism [skepticism, uncertainty, self-doubt] into a Marxist critique of mainstream liberal jurisprudence.” [Internet Ency. of Philosophy, “A Peer-Reviewed Academic Resource]”

    Again with the cherry picking. There is more than once school of CLS. There is a school of CLS that runs uses some Marxist social theory. Even that is not the equivalent of Marxism. The Frankfurt School of CLS looked only to Marx for social theory, concerned that most Marxists missed the point of Marx’s social critiques by distorting or misapplying those lessons in support of one flavor of Communism or another. The Frankfurt School incorporated the work of thinkers as such Kant, Hegel, Freud, Weber and Lukács.

    Unfortunately for you, that’s not what was taught where I went to school. The other school of CLS is based on the works of Jacques Derrida and deconstructionalism. This school of thought also uses Weber’s work on social sciences but as tempered by Max Horkheimer, Deconstruction is the effort to understand a text through its relationships to various contexts. What was taught where I attended was a combination of deconstruction, the application of formal logic in that process and the scientific method as applied to the analysis of evidence, i.e. deconstruction where context is informed by best evidence. Evidence is king.

    “Is this sufficiently scholarly?”

    It’s not even close.



    “just another post that underlines your total lack of understanding of America.

    Volunteerism is what we believe in, not force.”

    Actually, we believe in the Rule of Law which by order of operation requires the use of force. Laws without enforcement are suggestions. Just another post by you that underlines your complete lack of understanding of the law.

  3. gENE h:

    my comment about volunteerism was in the context of helping those less fortunate. It had nothing to do with the law.

    But that raises a good point, the reason laws are needed is, for the most part, to protect property. Typically from people like you who think others should provide for them. I can trust Stephen with a million dollars, he would return it to me, possibly with interest. You on the other hand would give it to the needy and say it was from you. Which is what liberals do on a grand scale.

  4. Bron
    >It sounds like you are saying he doesn’t have the intellectual tools to properly understand our founding? Everything will be warped toward a Marxist conception of reality.

    Objectivity , integration and systematic reasoning have been long gone from the mainstream in the humanities. Marxism is merely one part of the the latest philosophical fad, postmodernism, a thoroughgoing nihilism composed of Pragmatism and other academic oppositions to conceptual knowledge.
    Its basic concern is rationalizing emotion-guided action.

  5. Bron,

    Too bad for you the topic of this thread is the law and the rational basis for it. You clearly have no idea what the law is for in your Randian myopia. It’s about a lot more than just protecting property. That’s one of the reasons you don’t understand the law. You see the word “property” and your brain locks up. Your right to property is protected here, but it is not absolute and it never has been in any society with laws and taxes – which is all of them since Sumer and civilization began. Law, in this country, is also about justice, equity and the common good among other things. You may read the Constitution, but you sure don’t understand it. You stop reading it and trying to understand it as soon as you see what you want to see, which in your case is an absolute right to your property that doesn’t really exist and never has.

    As to who you’d trust? Someone who is manifestly and proudly selfish versus someone who isn’t? That would be your decision to make. As to what I’d do? Liberal or not? You really don’t have a clue, but let’s look at your $1,000,000 dilemma on its face. “I trust a confessed and proudly selfish person to give me my money back more than a non-selfish person, whom I expect to take and give it away and take credit for it.”

    Do you realize exactly how ridiculous that sounds?

    Obviously, you don’t.



    Yet more gibberish on your part.

  6. Gene H:

    Interesting that you compare what our founders did to the ancients where individuals were nothing but pawns for the king/state. It took over a hundred years in this country to get to the point of taxing labor which most of the founders were manifestly against because of Locke. Property is nothing but an extension of your life, it takes effort to make a living and most people spend over 40 hours per week doing so. That 40 hours is your time, it is your life that you are expending and you are entitled by natural right to your life. It does not belong to the state to the king or to the masses.

    Property is an extension of your labor which is your life which you have a natural right to. The law should protect the individual and therefore his property as well. Locke said there are 3 things government protects: Life, Liberty and Property. Liberty and property only exist with life. Individual life I might add, not collective life.

    You are right that government can take my property but the way the founders wanted it done was in a very limited way because they, unlike you, understood property rights of the individual. The current environment of eminent domain laws is collectivist in nature, promulgated by people with a deep seated hatred of human beings and human life. Property is nothing but individual life made concrete, in the house of the working man or the factory of the industrialist, property comes from the effort of an individual life and is not the effort of the collective.


    As far as trusting Stephen or a collectivist like yourself? No question I would trust Stephen because he understands property rights while you do not. People like you take my money/life every day I work, some fraction of my daily effort goes to the collective in the form of taxes. Some are necessary for defense and police and the court system and for waste water treatment plants and maybe you could make the case for roads and bridges as well but those can just as easily be private. They also take my money for things which are not necessary and they waste it because they have not earned that money. So yes, I trust Stephen far more than I would trust you to hold my money. I already know what your kind does with my money, they piss it away.

  7. Stephen:

    I notice when Gene H doesnt have a clue he just says that the other person is talking gibberish. Is that a result of his postmodern legal education?

  8. @Grossman: science is based on philosophy.

    No it isn’t.

    Philosophies are about belief systems, and there really isn’t much of a belief system behind science, there is a principle: That hypotheses must be testable, somehow, by others.

    The testing can take many forms: Falsifiability is just one test. Predictive power is another (related) test. Improbably robust confirmatory evidence is another test, often used in topics where controlled experimentation is impossible, like astronomy, paleontology, sociology, biology, and other disciplines.

    I am a scientist, I am proud to be a scientist, but as a scientist it seems to me a little overblown to call something a “philosophy” when it is really just adhering to a single root principle: Claims must be testable.

    Everything in else in science is secondary principles about the details of the root principle: What is a valid claim (e.g. how specific must it be), and what is a valid test (e.g. does it have an unambiguous interpretation), and so on.

    Science is not based on any philosophy, it is based on the principle that claims must be testable, and thus the consequent rejection of simple assertion as fact, no matter how vehement, sincere, angry or popular the assertion (or asserter) may be.

    As far as philosophy, what we believe is that testability leads us to distinguish fact from fiction, and truth from lies, and reality from delusion.

    But our beliefs about the result of science are not necessary to conduct science, they are just what motivates us to conduct science.

  9. No. I call gibberish what it is, Bron. Grossman’s last comment was the equivalent of mental masturbation. Just like your last comment was gibberish. Taxes have been with us from day one.

    “Article I, Section 8 – Powers of Congress

    The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;”

    If you don’t like how they are spent? Feel free to leave, not pay them and suffer the consequences or petition to get how they are spent changed. Just keep in mind that the job of government in this country is as it is defined in the Preamble’s plain language and not what you think it is in your haze of selfishness and self-worship, ergo, you’re going to be in for a lot of disappointment.

    I understand your property rights far better than you do. As to what I want in re taxation, I want everybody and corporations to pay their equitable and fair share according to their ability. But I’m sure that’s a distinction incomprehensible to a black and white absolutist “thinker” such as yourself.

    In addition, your entire comment is based on your flawed Randian notion of individualism. Society exists and individuals have duties to society whether you think they do or not. In this country, most of those duties are defined by law. It’s that way in every country. I know that your religion of you keeps you from recognizing the existence and interrelation of other humans, but that is your failing as a person. Society is not all about you. It’s not about me. It’s certainly not all about Rand. It’s about everyone. The protection of your rights without the operation of law and the society it regulates extends no further than your ability to personally defend them and stop others from taking advantage of you; again the tyranny of the strong over the weak. One of these days you might grow up and realize that no, you are indeed not Superman and that society has an obligation to protect you from the predation of others; the mutually gained benefit of the social compact. It’s what you get for trading in your absolute liberty in the state of nature (which is anarchy). I kind of doubt it though. Patterns of rigid and ossified thought such as those you display are rarely overcome later in life. You’ll continue to be selfish until the day you die. Martin Luther King, Jr. said, “Every man must decide whether he will walk in the light of creative altruism or in the darkness of destructive selfishness.”

    You have made your choice.

    Objectivists aren’t builders. Objectivists are destroyers. They seek to destroy society in their infantile fantasy that they are Supermen existing in a world that revolves around them.

  10. I think Hard Facts can bring good laws too, but only if the court system takes the time to think about the future instead of focusing on the present, temporary, danger.

  11. who makes laws regarding harm is an interesting course of study throughout English and American law. If the principle of doing no harm is respected, the harm must be viewed from the perspective of the person harmed, not the person who harms – in all cases. The alternative would be ridiculous since the person who harms makes the rules.

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