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. “>By considering all of the evidence and applying relevant evidentiary standards, she [Rand] was manifestly wrong.

    By considering all of the evidence and applying relevant evidentiary standards, she [Rand] was manifestly right. I can make out-of-context
    claims, too. It’s certainly a lot less intellectual work than providing evidence. As subjectivist you must find this appealing.”

    First, you wouldn’t know the difference between objective evidence and subjective evidence if it bit you on the ass. This is evidenced by all of your arguments eventually being appeals to Rand’s authority and your total disregard for objective scientific evidence (biological, sociological and psychological) and logically consistent and formal arguments – which have been supplied in plenty here and elsewhere on this blog – that she was an insane clown with faulty premises about human nature and the nature of tyranny. Second, the sentence that starts “Its good, ie, selfish,” is loaded with false equivalences and more gibberish. 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. If you think they are even remotely the same thing? You’re a moron. That’s like saying the scientific method is phrenology.

    The core principles that this country were founded upon – egalitarianism, the Rule of Law, democracy and the pursuit of justice and equity – all just happen to run contrary to your religious convictions that you are somehow special and should be above the law and not required to pay for maintaining the society in which you exist.

    “>The rest of your drivel is preachy Randist dogma not worthy of address.

    Ie, you cannot refute Rand’s logically organized, observation-based proof of the virtue of selfishness and the evil of sacrifice. ”

    No. I meant exactly what I said. Simply the rest of your drivel is preachy Randist dogma not worthy of address, i.e. your statements are circular logic based on an appeals to her authority – a double logical fallacy. The objective evidence and logical arguments in this thread against Objectivism and Rand stand. What has failed is your rebuttals; to a one filled with invalid fallacious logic and/or appeals to her authority.

    But . . . whatever you brainwashed selfish clowns want to think. Worship at the alter of your choice. You’re free to pick and practice your religion of choice. Even if that religion is worshiping your own overblown egos and money.

    And I bid you good day.

  2. @Grossman: On the contrary, I refuted it completely. By the rules of logic, not the rules of Grossman or Rand, because the former matters, and the latter does not matter.

    There is no “law” in your system, Grossman, because you cannot figure out how to ensure even the right to life for the weak and poor, much less any other right to property or contracts. There is only anarchy, armed mercenaries, and the inevitable subjugation of the masses to the most brutal and ruthless psychopathic killer among them.

    My sympathies on your wasted life, sucker.

  3. Stephen:

    “You subjectivist termites have not yet completely succeeded in destroying law in favor of authority-led democracy.”

    They are trying very hard to do that.

  4. Gene H
    >By considering all of the evidence and applying relevant evidentiary standards, she [Rand] was manifestly wrong.

    By considering all of the evidence and applying relevant evidentiary standards, she [Rand] was manifestly right. I can make out-of-context
    claims, too. It’s certainly a lot less intellectual work than providing evidence. As subjectivist you must find this appealing.

    Its good, ie, selfish, however, that Aristotle’s discovery and application of systematic logic has not been completely banished from law by legal “realism,” legal positivism, critical legal studies (Marxism) or any other subjectivism. You subjectivist termites have not yet completely succeeded in destroying law in favor of authority-led democracy.

    >She [Rand] was as wrong as the Aztecs thinking the spilling of blood was required for the sun to rise.

    But you collectivist altruists think sacrifice is required for the economy to rise. Its a difference of degree, not kind, so far.

    >The rest of your drivel is preachy Randist dogma not worthy of address.

    Ie, you cannot refute Rand’s logically organized, observation-based proof of the virtue of selfishness and the evil of sacrifice. Your evasion of relevant evidence would get you disbarred in court. Here, youre merely one more pretentious, pedantic, immoralist, focused on attribution rather than doing the difficult work of judging content. But then again, the first act of sacrifice is directed at one’s mind. After that, its all downhill into the sewer of sacrifice. The Occupy savage who shit against a police car is waiting for you to complete your part of sacrifice. As communist, you won’t like this, but there’s a division of labor in destruction. First, the nihilist intellectuals. Then, the nihilist thugs. See: Weimar Germany.

  5. Bron,

    Grossman was saying (more accurately, trying to say) that determining relevance was a form of cherry picking – once again trying to make up his own definitions. The grass/spacetime statement was an example of an irrelevant relationship. Determining relevance and cherry picking are not the same thing.

    Cherry picking is making selective choices among competing evidence to emphasize results that support a given position while ignoring or dismissing any findings that do not support it. Cherry picking is a form of outcome determinism.

    Determining relevance is determining whether there is a relation between an item of evidence and a matter properly provable. Determining relevancy is a way to identify causal relationships and their importance as probative evidence.

    The entirety of the argument for Objectivism (as displayed here and elsewhere on this blog) is an exercise in outcome determinism predicated on the proposition that Rand was right that ignores huge quantities of actual relevant scientific and philosophically rhetorical evidence that she was wrong. That is because your dogmatic and slavish devotion to Rand is the equivalent of blind faith that doesn’t hold up to critical scrutiny. One cannot argue for Objectivism without cherry picking evidence. Often, as Grossman does above, by employing circular reasoning that appeals to Rand’s authority. By considering all of the evidence and applying relevant evidentiary standards, she was manifestly wrong. She was as wrong as the Aztecs thinking the spilling of blood was required for the sun to rise.

    That you won’t accept evidence to the contrary is just as ignorant of the evidence as those who deny the process of evolution.

  6. Gene H:

    Stephen isnt saying use the growth of grass during the monsoon to determine the curvature of space time.

    Why do you think he is saying that? The growth of grass during the monsoon has nothing to do with the curvature of space-time. The growth of grass may give you an insight into a possible theory which you would then develop an experiment to prove or disprove your insight/theory. But it would have nothing to do with growing grass.

  7. Gibberish, Grossman.

    “Evidence is already cherry-picking (in the widest sense) because a theory distinguishes evidence from non-evidence.”

    The word that escapes you is “relevance”. Relevancy is not an inherent characteristic of any item of evidence but exists only as a relation between an item of evidence and a matter properly provable. You don’t measure the growth of grass during Monsoon season to determine the curvature of spacetime. Why? Because it does not have an objective relationship to the matter you seek to prove. Relevancy of evidence is key to both science and law and in both fields relevancy can (and is) challenged from time to time. Relevant evidence is included in a theory or argument, irrelevant evidence is excluded, but the determination of relevance is a logical evidentiary based conclusion regarding relationship and causation.

    The rest of your drivel is preachy Randist dogma not worthy of address.

  8. Bron
    >Stephen: “The thing does not speak for itself (unless you believe in burning bushes).” You do realize that is the motto for this sight? “The thing itself speaks.” LOL

    Yes, thats why I used it, to expose the implicit mysticism of generalization without mind.

    The avowed mystics held the arbitrary, unaccountable “will of God” as the standard of the good and as the validation of their ethics. The neomystics replaced it with “the good of society,” thus collapsing into the circularity of a definition such as “the standard of the good is that which is good for society.” This meant, in logic—and, today, in worldwide practice—that “society” stands above any principles of ethics, since it is the source, standard and criterion of ethics, since “the good” is whatever it wills, whatever it happens to assert as its own welfare and pleasure. This meant that “society” may do anything it pleases, since “the good” is whatever it chooses to do because it chooses to do it. And—since there is no such entity as “society,” since society is only a number of individual men—this meant that some men (the majority or any gang that claims to be its spokesman) are ethically entitled to pursue any whims (or any atrocities) they desire to pursue, while other men are ethically obliged to spend their lives in the service of that gang’s desires.
    [“The Objectivist Ethics,” The Virtue of Selfishness, 14, Rand]

    “The social theory of ethics substitutes “society” for God—and although it claims that its chief concern is life on earth, it is not the life of man, not the life of an individual, but the life of a disembodied entity, the collective, which, in relation to every individual, consists of everybody except himself. As far as the individual is concerned, his ethical duty is to be the selfless, voiceless, rightless slave of any need, claim or demand asserted by others. The motto “dog eat dog”—which is not applicable to capitalism nor to dogs—is applicable to the social theory of ethics. The existential monuments to this theory are Nazi Germany and Soviet Russia.“
    [The Objectivist Ethics,” The Virtue of Selfishness, 34, Rand]

  9. Gene H.
    >You don’t get to make up terminology either

    The mystical “Society” reveals the politically correct terminology to an empty mind. Gene H apparently experiences his mind as empty and thus
    ready for a revelation from the mystical “Society,” an entity above and beyond mere individual, concrete humans.

    Note the evasion between terminology made up subjectively by individuals and terminology made up from logically organized observations of similarities and differences of the things in concrete reality. Note the contempt for science. Note the similarity between social subjectivists and mystics, contempt for man’s mind in favor of an alleged source of knowledge beyond mind. Does it really matter if the Mystic Entity is termed God or Society?

  10. @Bron: Apparently you do NOT understand what cherry-picking means; the data is not “cherry-picked” unless data is specifically excluded because it does not agree with the theory.

    You apparently do not understand gravity, either. Gravitational pull varies minutely because it decreases with the square of the distance, so local masses play a far greater role in the measured gravitational pull of the Earth than the remote masses do. So when some patch of Earth happens to be significantly less dense than another for several miles deep, you will measure minutely different gravitational pull there.

    For examples, mountains have roots less dense than the surrounding rock; and sedimentary rock can be relatively light compared to basalt.

    See some other examples here, if you want to know more. The theory of gravity does not exclude any data; in fact it is predictive of exactly these anomalies: If we measure greater acceleration in one area, we can be certain we will find denser masses causing it, even if we did not know they were there.

    Gravitational maps have been employed (for decades), for example, to discover hidden underground salt domes, which have a very low density, because salt domes often turn out to have large oil reserves beneath them.

    That is not cherry-picking. Cherry-picking is refusing to consider data that does not agree with your preconceived notions.

  11. Stephen:

    “The thing does not speak for itself (unless you believe in burning bushes).”

    You do realize that is the motto for this sight? “The thing itself speaks.” LOL

  12. Tony C:

    I know what cherry picking is. I was thinking about what Stephen had said about it and thought he is right about the theory cherry-picking the data.

    Think about it, if you validate a theory through experiment, the results of the experiment are “cherry-picked” by the theory if the theory is correct.

    Drop a ball a hundred times and it falls at 9.8 m/s/s almost everywhere on earth. If I remember correctly, there are some areas with gravitational anomalies.

    Stephen, please chime in if that is not what you meant.

  13. Gene H.
    > Good science considers all the evidence….theory does not dictate evidence.

    Evidence is already cherry-picking (in the widest sense) because a theory distinguishes evidence from non-evidence. Lacking a theory of what constitutes valid evidence would put fingerprints on a level playing field with trial by combat, witch-dunking and appeals to popularity and tradition. Reality does not come labeled “evidence” and “non-evidence.” The thing does not speak for itself (unless you believe in burning bushes). Man’s mind, logically focused, thru the senses, onto the concrete, material universe by means of a theory of evidence, objectively determines what is and is not evidence. After this is done, your narrow sense of cherry-picking is valid. The law requires an objective philosophy as guide. The current mainstream lack of objective philosophy has corrupted law into the will of the people and the growth of law as a mere handmaiden of religion. The power of objective philosophy is, seen in (most of) the US Constitution and its observation-based defense of man’s mind applied in action.

  14. @Bron: Although there is no specific order of steps in science, science would get pretty much nowhere if it always started with “you have a theory.”

    Theories are usually developed by a scientist trying to solve an existing puzzle, which means something they are pretty certain has occurred that surprised them.

    So they have data already (at least one instance of a surprise), they have some kind of “natural” experiment (whatever they observed that surprised them), and they want to explain that. Data, surprise, predictive hypothesis, sometimes experiment, then theory.

    I say “sometimes” because we accept some theories when we cannot DO rigorous experiments, but we can still see that the hypothesis is predictive.

    In some cases, the experiments would unethically harm the subjects, so we can only study those persons that suffer the harm by accident. We cannot do anything like a rigorous double-blind experiment with some people randomly selected to suffer harm and others not.

    In others, experiments are impossible, for one reason or another, all we can do is see if the hypotheses are predictive, both of what we see and what we will not see. So in astronomy, we cannot put sensors inside a star about to explode and get any data about what is going on. In evolution, we test some aspects with flies or bacteria, but we are pretty much limited to observation, and the theory is robust with many predictive hypotheses that work. The same can be said about geology, plate tectonics, and other such systems.

    Cherry picking, on the other hand, is a form of fraud; it is trying to convince others that a hypothesis is predictive when it is NOT.

    Cherry picking is ignoring or excusing or discarding evidence that contradicts one’s hypothesis, and would make it non-predictive. It is usually done on purpose but can sometimes be inadvertent.

    When it is done, it is often done on faith, the practitioner just truly believes the hypothesis is true, even if they cannot prove it, and they want others to believe it too. They may want fame, or to avoid the embarrassment of looking stupid for working on something that failed.

    Cherry picking can also edge into outright fraud: The practitioner is concerned their funding will not be renewed, or they won’t get tenure, because they spent too much time on a dead end, so they fake some progress to prevent those losses.

    And finally, both within science but especially outside of science, it can BE outright, purposeful fraud. Say a guy wants to sell an analysis technique for picking stocks, and shows a few dozen examples where it really did work. But they are the cherries, when the technique is applied to all stocks, it loses more money than it can win, and there are never any promises made that say otherwise, so any money paid for the technique is gone with the wind. Cherry picking can be a way to commit a fraud without ever telling an actual lie, if no claim was made that the sample was comprehensive or representative. Confidence men can count on some suckers to just assume that.

  15. You don’t get to make up terminology either, Bron. Cherry picking is making selective choices among competing evidence to emphasize results that support a given position while ignoring or dismissing any findings that do not support it. Cherry picking is bad science. Good science considers all the evidence and uses internally consistent logic, blinds, and controls for variables. Evidence dictates theory, theory does not dictate evidence.

  16. what terminology did he make up? how is he wrong?

    You have a theory, you do some experiments, you get some data, you analyze the data to see if the results confirm your theory. The theory does cherry pick the data, because you design an experiment to test your theory. So the data produced is based on your theory.

    If your theory isnt tested and no other experiments are available upon which to draw, how could you cherry pick? The theory does “cherry pick” the data, in other words it creates the data you need to either validate or falsify your theory.

  17. Not at all, Grossman. I haven’t threatened you with violence. I just know what words mean and don’t make up definitions to suit my ends. As to your opinions about my intellectual integrity? Coming from someone who just tried (again) to make up terminology to get out being busted using fallacious logic, that’s not insulting. That’s funny.

  18. Gene H
    >Sorry, Grossman, but once again you don’t get to make up your own definitions

    In your dystopia, you can enforce that w/a gun. But here, youre an intellectual coward, afraid to focus mind onto reality for fear of social disapproval. Reason includes observation-based definitions regardless of
    society, as Socrates showed. You would have voted for hemlock. Youre an intellectual fraud.

  19. Gene H
    >Cherry picking is a logical fallacy. It means the act of pointing to individual cases or data that seem to confirm a particular position, while ignoring a significant portion of related cases or data that may contradict that position. In other words, confirmation bias.

    Theory must cherrypick the selection of data. Otherwise the subconscious randomly ,Pragmatically ,selects.

    Confirmation bias is a fallacy.

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