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?”

  1. That means Gene doesn’t have a good answer. He shared that same personality tic with Buddha. Coincidence? I think not.

  2. Grossman,

    I don’t think you got the gist earlier. I don’t take your religious zealotry as an indication of serious thought, but rather as a lack thereof. Rand made a real philosophy like Hot Wheels makes a real Porsche.

  3. Tony C.
    >taxation is the only form of generating revenue I am aware of that can in principle be fairly applied

    I intuit that your claim is unfair. And, if that’s bad, then, it has been revealed to me that your claim is unfair. My intuitions are unquestionably sublime. Only the morally obtuse would question them. Are you obtuse? Wait, I’m getting another revelation…

  4. Gene H.
    >http://jonathanturley.org/2011/07/16/what-makes-a-good-law-what-makes-a-bad-law-2/#comment-249646

    You can cut a 12″ ruler into a gazillion parts but when you put the pieces back together you still have a 12″ ruler. You can analyze sacrifice and collectivism as much as your scholarship permits but they remain sacrifice and collectivism. And sacrifice has never, ever been rationally justified. If you believe that you know a rational justification of sacrifice, contact Harvard and you will immediately be appointed chair of the philosophy dept or even president of the university. A Nobel Peace Prize will be yours. The lack of such justification is one of the major causes of the dominance of mysticism and subjectivism in our culture. Its considered academically respectable to babble about “moral intuitions” needing, not proof, but consensus.

    Things are changing, however and, last summer, Cambridge U published _Ayn Rand’s Normative Ethics: The Virtuous Ethics_. UPittsburgh philosopher, Allen Gotthelf, has written _Metaethics, Egoism, and Virtue: Studies in Ayn Rand’s Normative Theory_. Her ethics, dishonestly presented to be sure, has been included in beginning ethics texts for maybe 15 years. Even I was surprised, especially relative to the bizarre superficiality of a two semester ethics course I took from a Jesuit priest who had a powerful motive to rationally justify sacrifice. His particular failure used linguistic analysis and sociology, two frauds I wish only on my enemies. Your experts are worried that Rand may have something to say and they want to head her off at the pass. They will fail as her proof of selfishness becomes more widely known , partly by fools who attempt to refute it in academic jrls and partly by the implicit selfishness remaining in American culture. Note the frantic and valid attempts by religious conservatives to split Rand from conservatives who like capitalism. Better ideas win in the long run. You are on the way out. Morality is a guide to life and happiness, not a rationalization for sacrifice and suffering. Collectivism, of course, relies on sacrifice. Maybe you should grab a fishing pole and engage in more practical, less stressful, activities. Be selfish. Rationally, of course, as one must.

  6. @Roco: Or I should say, taxation is the only form of generating revenue I am aware of that can in principle be fairly applied.

  7. kderosa
    >The Constitution is a living document to the extent an amendment process was provided for.

    Amendments provide for improved protections of individual rights, not their violation. The Constitution is an individual rights document, not a living, ie, arbitrary, document. It bans govt from violating individual rights. Its a limit on govt. Its not a license for altruist power-lusters.

  9. Gene H
    >general welfare

    Some terms can have a collective (of the whole) or distributive (of the parts) meaning.

    “Modern collectivists . . . see society as a super-organism, as some supernatural entity apart from and superior to the sum of its individual members…The tribal notion of “the common good” has served as the moral justification of most social systems—and of all tyrannies—in history. The degree of a society’s enslavement or freedom corresponded to the degree to which that tribal slogan was invoked or ignored.

    “The common good” (or “the public interest”) is an undefined and undefinable concept: there is no such entity as “the tribe” or “the public”; the tribe (or the public or society) is only a number of individual men. Nothing can be good for the tribe as such; “good” and “value” pertain only to a living organism—to an individual living organism—not to a disembodied aggregate of relationships.

    “The common good” is a meaningless concept, unless taken literally, in which case its only possible meaning is: the sum of the good of all the individual men involved. But in that case, the concept is meaningless as a moral criterion: it leaves open the question of what is the good of individual men and how does one determine it

    [Ayn Rand]

    You evade 400 years of increasing individualism from the Renaissance to the Enlightenment. America was founding as an individualist society, whatever contradictions there were. There is no rational justification for claiming that Americans fought a war against the then-biggest empire in history for the purpose of institutionalizing the collectivism of almost all of history and of their imperial enemy in a declaration of independence. The collective “general welfare” of the empire was Britain’s purpose in taxing America and banning its non-empire trade.

  10. @Roco: I’m not talking about our current system, as I have said. I agree it is becoming a corrupt corpocracy / plutocracy, and that is WHY I am not talking about it. Nor am I talking about socialism, as I have said many times, the fact that you keep bringing it up means we cannot communicate and I should stop trying.

    As for your comment to Grossman; user fees favor the rich that CAN afford them over the poor that cannot afford them. If your choice is to have your rights or feed your kids or pay your mortgage, the predators will go unpunished, the poor will take the law into their own hands with a little vigilante justice, and with no checks to ensure guilt acually exists before they act.

    On top of all that, you ignore the fact that law enforcement really does deter crime, it increases the risk of committing a crime. Which means that, unless you ARE a criminal, that YOU benefit from law enforcement even if nobody ever attempts a crime against you, because some of those crimes deterred WOULD have been against you. Why, in YOUR philosophy, should MY user fees increase YOUR safety? Why do YOU get a free ride on MY property?

    The only fair system of pay is taxation.

  11. Tony C:

    a free market is not license for anarchy.

    And as I have said many times before, government should protect it’s people from the initiation of force either foreign or domestic.

    So do you pay for the court system with taxes or user fees? Or anything else for that matter.

    I think you should look at our current system, it is about as close to a plutocracy as you can get, 4 out of the last 5 presidents went to Yale or Harvard. 3 went to Yale. The children of congressmen are taking their seats. We currently have a plutocracy. That is what socialism promotes.

    Stephen Grossman:

    is it possible to pay no taxes and just pay user fees? Especially in a complex society. Would this lead to inequality? Would charitable organizations pick up the slack?

  12. @Roco: The threshold of survival is the “not dying” of a person or their bodily parts. So not becoming brain damaged due to malnutrition or starvation or exposure, not losing a limb or a digit, not being poisoned by medicinal or nutritional products just because the manufacturer thinks he can get away with it because nobody could ever trace the cause back to him, not being electrocuted by your appliances, not dying from the first whiff of smoke coming out of your burning kitchen because your cabinet lacquer was made with a molecularly bound cyanide, to save a buck, that gets released as a lethal gas when burned, and on and on.

    So fair warning, I am not discussing our current system here, or our Constitution, or anything else. This is a logical discussion from a person familiar with complex human systems. I can discuss other reasons for other things, like public education or roads, but let us stick to one point: Do we have the right to life? do we have the right to not be physically harmed for the profit of others?

    If we do not, then robbery and assault and murder should be legal.

    If we DO, then the right cannot belong only to the young bucks that can defend themselves, the right must belong to the frail, to children, to infants, to the elderly, to the low-function mentalities that cannot comprehend legalese or even the meaning of “contract,” to the rich AND to the poor, to the sick AND to the healthy, to the weak AND the strong, to the able and the paralyzed, blind, deaf, or mentally disabled.

    In my view when a right is declared, it is the majority declaring two related things: First, that a citizen shall not be punished for exercising the right, and Second, that a citizen CAN be punished for violating that right of others.

    However, rights provide a reason to be excused from punishment, and are not necessary if there is no means of punishment from which you would need to be excused. If murderers and assailants face no trial or justice system, then you don’t need any excuse to kill the bad guy, just kill them, because you won’t be punished either. You would not need a right of property to defend against thieves, just summarily shoot them, and you won’t be punished. If there is no system of justice to face that adheres to rules, then that means rights, being rules, are meaningless or pointless.

    To me that means that a formal system of justice that DOES adhere to rules is an inseparable responsibility of any group declaring a right, otherwise the declaration is just empty words. If we have the right to life, we have to enforce the right to life. That means police, and courts, and rules to prevent the police and courts from abusing us.

    The police and courts will require pay, and offices, and resources like jails, guns, armor, and office staffs to keep their books. How shall we pay for that?

    The “free market” is no better than no rights at all, the protection (and spoils) goes to those that can afford to pay the most fighters, and we are just like the warring tribes in northern Pakistan, demanding tribute (i.e. taxes) from their little towns. If my protector is motivated by profit, he is motivated to betray me for sufficient profit.

    The only logical and fair way to fund protection is through taxation of some form or another. I see no other way; it isn’t fair to tell people they have to PAY for their right by funding their specific protection, hiring their own police, or arming themselves. When my aunt was 89, she did not have the strength to cut an apple in half, and firing a gun (if she could lift it) probably would have broken her hand. But she was cognitively fine. Did she surrender her right to life by being unable to defend herself, or pay for her own protection?

    A right to life is a right to be protected from predation, and when that right is defended publicly, the entire public benefits. The fact that predators are punished discourages others from becoming predators; a criminal punished for raping a child you never met is not wandering your street and checking out your children. You benefit even if you are not aware of it, and taxation of everybody to pay for that service is a necessity, or “rights” mean nothing.

    There simply is no profit-oriented solution that does not ultimately dissolve into plutocracy; rule by the rich and subjugation of the poor. The rich have no more right to life than the poor, and their protection against predation on that right should be exactly equal.

  13. @Grossman: You are an idiot, you cannot think for yourself, so you just keep citing Rand, your religious touchstone. You do not try to argue rationally, you just crap a pile of shit and think you won because other people walk away from the stink. Your pride at your little degree combined with your spitting disdain for “PhDs” tells us all we need to know about your sour grapes, the limits of your intelligence, and your blind irrationality.

    Good riddance.

  14. Tony C
    >They did carve out a space and a system that has eventually diminished many of their irrational prejudices, but that does not mean they didn’t HAVE those irrational prejudices.

    Have you ever considered slowing your headlong rush around the data and saying something about space and system? Just a thought, but dont let me prejudice you. Free associate , freak out, do your own thing. Im not prejudiced. Im just hanging out, waiting for the E train to Flushing. I want another roast beef and gravy at Max’s Deli on 71st Av. and Queens Blvd.

    This space and system you noticed, did it have any little thing to do with 400 years of increasing individualism from the 14th century Renaissance to the 18th century Enlightenment? Just a thought. Well, Im tired now. I didnt go barhopping ,thank God, with my good bud, Bob. But I did get toasted and have a couple of drinks. Moonshine vodka and cranberry juice. A friend has a still in his apartment. Yeah, he bought it on the Web. $600. I think he’s growing his own yeast or something. America! What a place and a system! Its a good thing we have Ayn Rand to protect us. Caio!

  16. GeneH:

    so what do you want a European style multi-party system? That works oh so well.

  17. puzzling,

    It is good to hear you are searching for commonality and realize that society is a cooperative enterprise. Finding like minded people is a key to effecting positive change. I look forward to your future posts. I’m working on an article right now that touches upon the false choices of the two party system. I hope you enjoy it.

    ***************

    kderosa,

    If you can’t make your case, that’s fine too. The functions of the branches of government are defined by the Constitution and the changes over time to the Constitution are a result of those functions in action, so apparently you don’t like your contract that much. Fortunately for you, you are free to leave the relationship at any time.

  18. GeneH:

    Hell I guessed yours at 125-130. I am probably closer to being right than you are, by a very wide margin.

    I like the free market economics, however Rothbard is an anarchist and I cant go for that. Brilliant but an anarchist.

  20. Gene H,

    It’s definitely B) Criminals.

    And no offense taken.

    As for the Paul’s, I know that some libertarians have visited this blog due to Ron Paul’s long-standing endorsement of JT for the Supreme Court, or perhaps more recently JT’s recent work with Paul, Kucinich and others on the legality of the war in Libya. I am choosing to emphasize the commonalities where I can, and there are many.

    That said, I think most here are frustrated by the ferocious debate that occurs between two false choices presented by our current government.

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