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

By GENE HOWINGTON

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?

Note: This column was originally published at Res Ipsa Loquitur (jonathanturley.org) on July 16, 2001.  This column has been re-edited for publication here.  It was, and is, at the time of this reprinting the most commented upon column in that blog’s history.

About Gene Howington

I write and do other stuff.
This entry was posted in Jurisprudence, Legal Theory, Philosophy, Political Science and tagged , , . Bookmark the permalink.

4 Responses to What Makes A Good Law, What Makes A Bad Law?

  1. rafflaw says:

    Great job Gene! Good luck with your new venture!

  2. Anonymously Yours says:

    Make it count…. You are a good man….

  3. James Knauer says:

    “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?”

    What if you aren’t allowed to know? That’s where we are now. Between the NSA on one side and zero consequences for war crimes on t’other, how can we come to any objective conclusion? We can only guess, and that makes for dumb voting.

    But there is this: any politician who claims privacy was ceded with the digital age is telling The Big Lie. This outcome is neither inevitable nor irreversible. The technology to achieve it has existed for some time now. Anyone who disagrees really needs to get a warrant or quit.

    Thank you, Gene, for keeping the debate alive. The unequal application of the law is the civil rights struggle of our modern era.

  4. Tony C. says:

    Gene says: What are other methods? [alternatives to negative utilitarianism]

    Let me approach this obliquely. Consider a business that competes by producing a truly superior product that consumers prefer. It enjoys selfish gain at the expense of its competitors, even to the point of bankrupting them. It does that as a redirection of predatory behavior; hunting for prospects, stealing customers, luring them, locking them in, bribing them with discounts, sales and rewards programs. Frequently with the objective of killing, crushing, wiping out, and destroying the competition, to stand victorious on the field of battle, to dominate or own the market.

    In the case of business, we encourage competition on product features like quality, price, reliability, safety, warranties, guarantees of efficacy and satisfaction. As long as consumers are not coerced (by monopoly for example) or deceived, as long as consumers can voluntary choose amongst competitors and walk away without harm, we do not regard an improved product offering as being unfair, unjust, inequitable, or fundamentally wrong.

    Even if it results in financial disaster for vendors, and even if their demise is in no plausible way their own fault. It is not the candle-maker’s error that he did not invent the electric light bulb. It is not the buggy-whip maker’s fault he did not invent the automobile that replaced the horse and buggy, and it is not the bookkeeper’s fault he did not invent the modern computer or write the software QuickBooks.

    I do not believe that model applies to life as a whole; it is too cruel and inhumane to let people starve, die, or live without respite in sickness and misery because they did not compete well. So why are some forms of selfish gain fine with us, and others reviled by us?

    I think because it isn’t the end we revile, it is the means to that end. (For those that do revile the end [wealth], I think that is due to correlative error, an assumption the wealth is achieved by wrongful means, or an assumption that great wealth is an indicator of great selfishness).

    Selfish gain is just the most frequent goal of coercion, extortion, or the exploitation of dire circumstance, poverty, illness, or some other form of weakness, either literally (as in the cases of illness, mental or physical disability) or figuratively (as in the case of financial weakness, poverty, a lack of any alternative options, or a lack of time in which to do something, like receive medical care or shelter a child).

    The means to selfish gain are at issue, and the reason we celebrate some selfish gains and revile others. In fact, we revile the means whether they succeed or not!

    I do not want to discuss Rights and Property and all that now, because (in disagreement with some legal scholars) I think those are things we determine by law, and this is about how to determine law in the first place, so I think discussing them results in a circular argument.

    What I do think is that most people (and even many animals) have a natural emotional perception of “fair treatment.” Not necessarily a propensity for it, but a perception of fair and unfair treatment. That emotion, when processed rationally, can guide the development of rules that decrease behavior we see as unfair treatment. Those rationally determined rules, in service to the perception of fairness, we will call equitable rules.

    We don’t mind selfish gain in business if it was achieved with respect to equitable rules; competing on product with consumers given a choice. The demise of a competitor’s business can be an equitable outcome too, we see business as a gamble, and some gambles result in losses.

    It is the means to selfish gain we wish to prohibit. Lying, force, threats, taking unfair advantage, sabotage, hold-ups, circumventing or preventing consumer choice as a competitive tactic, selling beneath cost to drive a competitor out of business to create a monopoly that denies consumer’s choice, and on and on.

    We need laws because there are many, many paths to profit or personal satisfaction by harming others, denying them choice or freedom or liberty. We have to punish theft because theft is profitable, even though harmful, and we do not want people to profit by harm.

    I think one of the primary justifications for a government in the first place is to protect the weak from the strong, and to punish the strong that exploit the weak for personal gain, even if they did not create the weakness.

    With enough people, we are never going to be able to absolutely prevent inequity. So
    what makes a good law is one that statistically reduces harm by inequity, unfair treatment, coercion or restriction of choices, or people taking advantage of the dire circumstances of others to extract unfair concessions. I will add to that, a good law can also prevent unfair treatment and demands by addressing the causes of dire circumstances and restricted choice that are often used by those with money or power to bend arms and exploit others, to increase selfish gain at the expense of misery.

    What makes a bad law is one that, statistically speaking, increases harm by inequity, or that purports to address harm by inequity but does not, and by being “on the books” can even impede laws that would actually decrease harm by inequity.

    Good law and bad law are not about money or property; they are about people. We band together in societies in the first place because of the benefits of sharing resources. If I am one of a hundred men that build a wall around a compound to keep out predators (human and otherwise), the 1% of the wall built by me, my fair share, would not protect me in the least. Without my 1%, the remaining 99% of the wall would not protect the other men as we sleep, it would be a gap in the wall. It is, in effect, everybody sharing their 1% of the wall that can effectively protect them all.

    Could 50 men build a shared wall instead? Sure, but the benefit of sharing is much less, because the area enclosed by a circle (pi*r*r) increases proportional to the square of the circumference (pi*2*r); it isn’t linear. The more men building the wall, the bigger the area for each within the wall.

    The benefit of much sharing follows a similar rule. Two people can live together for 75% of the cost of each living separately, because they share space, heat, cooling, food (and shopping for it), cooking, the kitchen and appliances, even entertainment and chores and more that would all be doubled if they lived separately. Four people, by sharing, can live for 60% of the cost of each living separately.

    The larger a society, the larger the sharing dividend. By making things less “expensive” in terms of effort and risk, we could have more time to laze about; but typically we tend to accomplish more instead; we become more secure, safe, and prosperous in a cooperative society. We become better entertained and more content with our lives.

    But human nature is what it is, we aren’t machines. We are driven by emotions refined over perhaps a billion years, and rationality is a recent add-on in the last few hundred thousand that is, in the end, still completely subordinate to, and a servant of, emotionality.

    Good reasoning is not enough to prevent people from reaping gain by harming others, in the heat of emotion (anger, greed, hate) there must be an emotional consequence to such action that counters the emotional urge to commit it. That is the prospect of punishment for harm; and the punishment must be carried out or it won’t be a plausible deterrent to harm.

    The anger that urges me to punch out a jerk must be countered with the prospect of misery at the likely punishment for hitting them. So a good law is also one that is clear and understandable with clear and understandable consequences, sufficient to outweigh the benefit of breaking the law. Good law must be simple enough, and understandable enough, to be processed by humans even when they are in the heat of passions, negative or positive. Or more accurately speaking, even when their rationality is weak or impaired, permanently or temporarily, the consequences of illegal action should remain clear.

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