Justice, Society, Uncategorized

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?”

  3. What a bunch of gibberish.

    There is always a much simpler meaning to things than the obfuscating Byzantine intellectual gymnastics of the alleged intellectual classes “above” us would like to admit. They want life’s truths to appear incomprehensible in order to justify their own existence (and perhaps their paycheck).

    Yes, if it is as complicated as “they” suggest, then there must be the over-arching official dogma, the official propaganda promoted by the official propagandists. And there must be the official education to imbue the official propaganda, and the official officials to certify that the new official has taken all the official steps officially approved by the officials of officialdom who win careers by insisting on having it there way.

    Bastiat tells us what law is.

    He writes

    “What Is Law ?

    What, then, is law? It is the collective organization of the individual right to lawful defense.

    Each of us has a natural right–from God–to defend his person, his liberty, and his property. These are the three basic requirements of life, and the preservation of any one of them is completely dependent upon the preservation of the other two.”

    It is as simple as that. Good and evil are determined by that alone.

    And so you can determine thus. Is Obamacare lawful? No. I lose my liberty (completely). I also lose my property (a lot of it). The government has complete control over every aspect of my life by gunpoint (a simple definition of totalitarianism). And know you know why Obama likes it. Liberty completely dies thereby. And know you know what Obama and his dangerous, extremist, fanatics like it. But, I repeat myself. If I don’t have Obamacare no one else is hurt by by me by my not having it. Thus you know the law requiring it is a fraud and a crime itself.

    Is Social Security lawful? No. I lose my liberty to do what I will with my property (my own money). And government invades my place of work and interferes with me and my employer and I lose the liberty to contract. No one else is hurt if I do not participate in the program. It is not like I robbed a person so they could not save for the future or slugged someone and prevented them from working. I have done nothing to harm the other and yet a law was written to punish me about retirement and steal my money. Which it appears, now, that I will not receive. Thus: the theft by government.

    And on and on you go comparing every law with the right to your person, liberty, and property as long as you do not assault another or his stuff or actively stop him from living.

    http://www.constitution.org/law/bastiat.htm

  5. Are we are supposed to act like Gene H. is a recent arrival? The question is; Would JT hand over the care of his children to Casey Anthony just because she changes her name?

  6. The absolutists, in an attempt to thwart the spirit of state law, have mounted an attack.

    They seek to supplant the sovereign state legislative mechanism for making good law.

    They seek to do it via ALEC.

  7. oops typo: “We have 50 such experiments now.

    We all all to adhere to the federal Constitution”

    should be:

    “We have 50 such experiments now.

    We all have to adhere to the federal Constitution”

  8. Thank you, Gene. This is, quite literally, a breath-taking thread.

    Tony C has inserted a most important thought into the discussion.

    I am awaiting the arrival of lottakatz as I am one of her ardent fans … also Bob Esq. should have some astute insights.

    I will sit quietly at the back of the Hall and absorb the brilliance … this is exactly why I started reading this blog 2 years ago!

  9. Good work Gene.

    Taking, as you did, direction from the Constitution to derive the notion of ‘States’, or experiments as Justice Brandeis nicknamed them, we can see that circumstances are such that we must allow others to find what is good law and what is bad law on their own, in their own lab, their own State.

    We have 50 such experiments now.

    We all all to adhere to the federal Constitution, yet we as sovereign States can form sub-Constitutions which allow specific experiments to take place to synthesize law formed by the facts of our State.

    States rights, state law.

    How much mythology is built into this constitutional system is, I think, revealed by the “Full Faith and Credit Clause” where we respect the experiments of the other State, or States, even in the face of a law in our own State that is different or perhaps even opposite.

    That clause has never gained full traction, full implementation, because there are active absolutists always at work.

    The absolutists among us, and there are and always have been plenty of them, do not grasp the live and let live essences in our supreme law.

    They seek to change its nature into an inflexible control freak system.

    Good law is part of a system of law that does not think it knows everything at the beginning so it allows experimentation then tests the results to see if another State had a good idea, more good law. If so use it, if not reject it and find out for yourself instead. Meanwhile the other state who’s law was rejected does not take it personally. Live and let live, live and let die, or die and let live as the case may be.

    Progress.

  10. If I had a dime for every time I posted this quote…

    “Everyone must admit that if a law is to be morally valid as a ground of obligation, then it must carry with it absolute necessity. [One] must concede that the ground of obligation here must therefore be sought not in the nature of man, nor in the circumstances of the world in which man is placed, but must be sought a priori solely in the concepts of pure reason; he must grant that every other precept which is founded on principles of mere experience-even a precept that may in certain respects be universal-in so far as it rests in the least on empirical grounds-perhaps only in its motive–can indeed be called a practical rule, but never a moral law.” — Immanuel Kant

  11. Gene says: “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.”

    I do not believe negative utilitarianism corrects the defect. Consider, I am an atheist, and a non-supernaturalist to boot (some people are only technically atheists; they do not believe in God or a creator but do believe in something like Karmic Justice or reincarnation or souls or witchcraft or magics — I do not believe supernatural phenomena exist).

    My particular breed of religious view is somewhere around 2% of the population. Say 2/3 of the population, definitely religious, is screaming that my views corrupt their children, promote promiscuity, disease, malaise and crime by denying the existence of supernatural punishment, threatens the future of humanity and bands together to put my kind to death. So:

    1) How many people benefit from the good consequences of a law?
    I compute 2/3 of the population.

    2) How many people benefit from the reduction of harm as consequences of a law?
    2/3 of the people fervently believe that they do.

    3) Does the benefits from promoting good consequences outweigh the costs of reduction of harm?
    2/3 of the people believe it is saving their children from burning forever in Hell, which is far more people than the 2% that must die and were going to burn in Hell anyway.

    4) Does the benefits from reducing harm outweigh the costs to the greater good in taking no action?
    2/3 of the people believe it does.

    5) 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?

    The consequences are not perfectly knowable and unforeseeable consequences may exist, other choices of law may exist, but 2/3 of people think a horrific crime of fraud is being perpetrated on their children and leading them to damnation and they want it stopped.

    6) 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?

    Absolutely, they intend to kill 2% of the population. But how do you define civil rights? Is putting a serial killer to death a violation of his civil rights? If freedom of (or from) religion is a civil right, then that begs a recursive question:

    What makes a good civil right?

  12. Good post, Gene ,but a bit too heavy for me on a hot Texas morning. I can tell much thought went into it.

  14. Gene,

    That was a breathtaking first post. You provided a framework for considering the utility of a law, that perhaps I have superficially considered, but never viewed structurally from a legal/philosophical viewpoint. Would that our legislator’s past and present used this type of structure to consider proposed laws/regulation, rather than aiming to score political points with their constituents.

    The six bullet points of your proposition seem as fine a framework to me for considering new legislation. I might add though something like:

    “What evidence is available that the reduction of harm claimed is in fact viable?”

    “What evidence is available that the good consequences claimed are viable?”

    Now your fifth bullet down might subsume the above, but that is not clear to me. What makes this topic so pertinent at this time is the move to enact “Cayley’s Law” in Florida based on the general anger at the trial’s outcome.
    Usually such laws, like the previously enacted Megan’s Law in California and Kendra’s Law in NY, are riddled with flaws and not very effective in redressing the problems they address.

    We would hope that Legislators in considering legislation would act with the intelligent questioning you outline. Sadly, as you well know, this is not the case.

  15. Your post directly addresses what I would consider problems of the SCOTUS. In the Roberts confirmation hearings we repeatedly heard “stare decisis” —yet, the Roberts wing has consistently overturned established law. This may be material for another post, Gene.
    Revisiting the philosophical and historical underpinnings of our current system of laws is refreshing. I can’t help asking, How did we get to THIS pretty pass?! Citizens United? really.

  16. Umm… delicious post.

    It seems to be that trying to create a universal template for law construction is majorly hampered by the fact that society’s measure of what is “good” or “harmful” is itself is a moving target. Therefore, the answer to your question:

    ” 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?”

    …would at first glance be “no”, since how can we be in a position to minimize the unpredictable or that which is beyond our present ken? The solution I see to that dilemma is the one applied by those who view the constitution as a living document, to be interpreted relative to the circumstances of the societal moving target.

    Isn’t that the point of a judiciary – to interpret – to add context and flexibility?

  17. A good law:

    addresses a need;
    is readily understood in purpose and in operation;
    conforms to our principles;
    enjoys overwhelming support;
    affects and protects everyone;
    and reflects what is best about us — not what is worst

  18. A Good law is one that can be enforced evenly….with the Judiciary as the final interpretater of the laws intent evenly handed……

    Good post but heavy…..

  19. Thanks, OS. I wondered if it was a bit too heavy a topic for my first post, but since so many of the threads here seem to ultimately revolve around not just Constitutionality but a question of good law versus bad law it was a topic worth throwing out for discussion.

  20. Gene, congrats on an excellent first front page post. There is a lot of information there and will take a while to fully digest.

    Seems to me that one of the criteria for a good law is to try an anticipate all the permutations of the Law of Unintended Consequences. Many laws (and projects) that sounded good on the front side turned out to be disastrous. I recall one of the so-called “defense of marriage” laws passed by a state legislature was worded in such a way as to outlaw marriage. Of any kind.

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