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What makes a "good" law?

 
 
madel
 
Reply Mon 30 Nov, 2009 11:44 pm
I tried to post this in the "ethics" subsection before I noticed this subsection and given that it hasn't gotten much over there, I figured I'd rewrite the question and post it where it should have gone in the first place Smile

I'm currently working on my thesis for my BA and this is effectively the question I'm trying to answer and though I have my thesis more or less lined out, I was curious what y'all thought.

Quote:
Prior to a bill (or like) becoming law, what criteria should one use to gauge whether it will be a "good" law, a "bad" law or a "neutral" law in terms of it living up to its 'telos' as a law?


As a point of clarification: I have tried to keep this question both broad and narrow at the same time - that is, allowing for answers to be as specific as a person wants, and as vague and broad as one wants. I've also left key words undefined for that same reason...In my thesis, I tried to keep my defitions as analytical and objective as possible, but that's not some people's style.

In my thesis, for example, I attempted to answer this question as though I were a (particularly thoughtful) senator in the USA and as such the answer relied partially on the law's Constitutionality. I took other directions as well, but perhaps that will help shed light on what I'm trying to ask.

Hopefully this question has not been asked quite like this before on these forums (I understand how certain questions become quite tedious) Smile
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Camerama
 
  1  
Reply Tue 1 Dec, 2009 01:00 am
@madel,
Jurisprudence is a negative concept. It's purpose is not utilty or public welfare, but the prevention of injustice. Justice can fundamentally be reduced to treating others as they deserved to be circumstancially treated. A law has no other purpose other than checking that which is unjust. It's efficacy is grounded in it's ability to satisfy this purpose. It's legitimacy and defendibility however, depends unequivocally on it's protection of individual rights. This is because encroaching on individual freedom is an injustice in itself.
0 Replies
 
VideCorSpoon
 
  1  
Reply Fri 4 Dec, 2009 12:14 pm
@madel,
madel;107201 wrote:
Prior to a bill (or like) becoming law, what criteria should one use to gauge whether it will be a "good" law, a "bad" law or a "neutral" law in terms of it living up to its 'telos' as a law?


Interpreting the Question

So essentially before anything article is codified (set in law), what should the framers of that particular law do to ensure it is a law meant for the good of the community (therein fulfilling the "telos" as a law). You then point out ethical components (i.e. good, bad, neutral) that attempt to lend to the end result of the law. Based on the question so far, I could make some generalizations. The first thing is that I feel I can expect for you to lean towards legal naturalismThe fundamentals of my answer

The end goal of law as I see it (the ascribed telos) is that I believe in particular rules and principles authoritatively declared by a representative body for the good of the community. I also believe that this is an obvious inference in legal positivism. This is not as much a subjective opinion as much as a historical norm. Jus positivum was coined by Thierry of Chartres in 1135 C.E. essentially underlining the fundamental Greek and Roman frameworks (like Aristotle's Nicomachean Ethics) and encapsulating law into a collection of precedent and logical substantiality. So basically, the fundamental aspects of the law are positivistic. Because the fundamental aspects of law are positivistic, I have to say that what we would consider "good" or "bad" about any particular law have little to do with legal naturalism.

Morality of Law and its precepts

Legal Positivism is essentially legal reasoning which is entirely factual. The law is whatever is codified and recognized by the populace body. So take this example; Suppose a man (Alan) is indicted for murder. And contrary to the reality of law, we know this guy is really guilty. Public opinion may say that they do not want this guy imprisoned or executed because hippie love fests have returned with a vengeance and this will subsequently end the love-in's. There are protests in the streets, etc. The judge, regardless on the outcry of the public must deliver a guilty verdict because statutes and legal economics measure the punishment commensurate with crime. The law bluntly stated that Alan be sent to jail because the law said so (note that this is a problem in itself). Legal naturalism is essentially the opposite, where the execution of law is based on moral precepts. So take the example of Alan the murderer, the protests, the sexy hippie love-ins, etc. The judge at sentencing will take the law into consideration, but the protests are too much to ignore. The guy Alan murdered was a mass murderer himself, and would have killed thousands if Alan had not bravely stepped up and killed Alan vigilante style. The judge dismisses Alan's first degree murder down to third, and Alan walks with a slap on the wrist. The last aspect is interpretative theoryMy opinion given the information

What I was just trying to prove in a nutshell

Summation: So though the question is problematic (that is, this is a matter of morality and the law, etc.), we (or the framers if you wish) have to in the end revert to fundamentals. The fundamental aspect of law (in my own opinion) is positivistic. We do acknowledge three fundamental aspects of morality in the law, that we can either take a positivistic, naturalistic, or interpretive stance in our execution of the law or even its enaction. However, the criteria used in determining whether or not a law is good, bad, or neutral is entirely dependent on a positivistic stance because a level of predictability tips the scales in favor of the more extreme aspect of legal morality.

Sources for reference

If you would like to look at any of these theories in a better context, you can refer to the following;

For legal positivism, look at H.L.A.Hart's article on Positivism and the Separation of Morals. It's actually very short, but it is jam packed with great information on both positivism and critiques of the other two moral accounts

For legal naturalism, look to Natural Law Revisited by Ronald Dworkin. Very good summary, probably the best. It comes from a larger text of his called Laws Empire.

For additional reference and matters of interpretive theory, look to two sources. The Model of Rules by Ronald Dworkin and The Dependence of Morality on Law by Tony Honore.
madel
 
  1  
Reply Sat 5 Dec, 2009 07:06 am
@VideCorSpoon,
Wow - VideCorSpoon! Thank you for taking the time to respond so thoroughly Smile

I'll respond more fully later, but I too am a fan of Dworkin and am actually making substantial use of The Model of Rules Smile

There are some angles you bring up quite succinctly that I'll have to look into more and see where in my paper I'm (inevitably) already using them without really being as clear about them as I could and should be (one of the issues I have come across in writing this...probably because I'm trying to combine positivist and natural thought...I hadn't previously thought of it that way. Not sure why, though!).

Thanks!
VideCorSpoon
 
  1  
Reply Sat 5 Dec, 2009 11:22 am
@madel,
No problem at all. The Model of Rules is an excellent central article to use. It's definitely useful to use Hart's article though to get a fair balance of opinions. I really couldn't choose between the two (Hart and Dworkin) as to who I favor better. I like how Hart frames his argument in reasoning by analogy (like the Rex example), so in a way, I find Hart easier to read. Dworkin just seems to be a reactive type of philosopher (although I certainly don't mean that anything of his is not novel in its own right). But Dworkin's responses to Positivism, especially in regards to discretion (which is basically interpretive theory) are phenomenal.

As to your paper, I hope we can discuss it when you are finished with it. It sounds like it is going to be great! The issues around combining positivist and naturalist positions are truly problematic. Like I said earlier, Dworkin uses discretion (the proverbial "hole in the doughnut") and Hart uses the penumbral theory. I have to say I really like this analogy above most others. What better way to analogize the law than with the moon itself, its either black, white, or shades of grey. It may seem obvious that the law operates in the shades of grey, but no one wants to own to it, except maybe a little by HLA Heart.

I find that whenever a legal issue arises (in regards to your issue with linking naturalism and positivism), the only way to go forward is to go backward. Philosophy attempts to dig to the substantial foundations via ontology. I think this principle can also be applied to the law as well. What is ontologically primary is arguable, but you could really just set a line depending on how far back you want to base your decisions. Most assume the U.S. constitution. But if that area does not suit you, you could dig back to the federal convention, the articles of confederation, even the body of laws and morals of the state of Massachusetts. You can even go back farther with English constitutional history. In my case from the first post, it was literally a dei fini example of law itself and the obvious (in my mind) implications of positivism.

On a side note, do I detect a prospective law student per chance?
0 Replies
 
William
 
  1  
Reply Sat 5 Dec, 2009 12:05 pm
@madel,
WHAT MAKES GOOD LAW?

madel;107201 wrote:
I tried to post this in the "ethics" subsection before I noticed this subsection and given that it hasn't gotten much over there, I figured I'd rewrite the question and post it where it should have gone in the first place

I'm currently working on my thesis for my BA and this is effectively the question I'm trying to answer and though I have my thesis more or less lined out, I was curious what y'all thought.

"Prior to a bill (or like) becoming law, what criteria should one use to gauge whether it will be a "good" law, a "bad" law or a "neutral" law in terms of it living up to its 'telos' as a law"?


As a point of clarification: I have tried to keep this question both broad and narrow at the same time - that is, allowing for answers to be as specific as a person wants, and as vague and broad as one wants. I've also left key words undefined for that same reason...In my thesis, I tried to keep my defitions as analytical and objective as possible, but that's not some people's style.

In my thesis, for example, I attempted to answer this question as though I were a (particularly thoughtful) senator in the USA and as such the answer relied partially on the law's Constitutionality. I took other directions as well, but perhaps that will help shed light on what I'm trying to ask.

Hopefully this question has not been asked quite like this before on these forums (I understand how certain questions become quite tedious)


Simple! As long as people are judged by how much their worth depends on how many coins they have, or possessions they own, their can never be a just, or good law............................NEVER!

Making the other two options moot; just rationalizations of bad laws. Such as one such bad law states a man should not steal! Perhaps we might ask why he would steal in he first place, huh? Solve that problem and there would be no need for any law demanding it. So it goes with all laws. Perhaps other than laws we need just "reminders" to aid in our just course.

How's that. :perplexed:

William
VideCorSpoon
 
  1  
Reply Sat 5 Dec, 2009 02:23 pm
@William,
Arjuna
 
  1  
Reply Sat 5 Dec, 2009 10:19 pm
@VideCorSpoon,
A "wow" from me also, Vide.

I don't know much about law, but in regard to it being predictable, I know that Thomas Jefferson was asked to oversee upgrading the statutes of Virginia to reflect the state's new status as part of the USA. One of his contemporaries was in favor of making a whole new law from scratch. Jefferson said no... that the bulk of the statutes had to be preserved and transferred to the next generation because an invisible part of the statutes is the legacy of all the wrangling over what the individual words mean. He believed that if the law was created from scratch, it would burden people for generations redoing all that arguing.

So maybe part of a making a good law is that it's vague enough to last, and uses verbage that can easily be nailed down. In regard to our offspring, we can't face their world for them, all we can do is bless them and have a little faith in them. I think the law should reflect that blessing and faith.
0 Replies
 
William
 
  1  
Reply Mon 7 Dec, 2009 07:05 am
@madel,
VideCorSpoon;108409 wrote:


Hello Vid. I understand the necessity of our present judicial system considering the world we live in. I honestly do. Is it a just system? Perhaps considering our current state of affairs, I think so. Is there a better way? Yes, I think there is and it should be based on a code of conduct that begins in the home and is followed up by our educational system and then into society at large and must be global in the application of it and no one should be exempt from it. No one

Vid, we are living in an impossible situation that involves an elaborate entrapment mechanism controlled by a few, victimizing many. We are constantly exposed to the carrots dangled in front of our noses and when we take a bite or effort to, we get our hands slapped or even worse.

We live in a reality that emphasizes more is good when most can be much happier with less but the carrot is always there and the waste it creates is evident everywhere. People are constantly entice/seduced/manipulated/coerced/tempted to want more to spend money they don't have to acquire resources they don't need.

Let's take a look at a moment at what perpetuates crime and makes a lucrative income from that crime. If no one stole, how many people would be out of work? If no one got sick, how many would be out of work? If it weren't for fines, penalties and taxes how many cities would fold up and blow away. We have become dependent on the frailties of man wanting more to be happy and enormous incomes are derived from that. A catch 22 of major proportion. Take a look at your own "stashes/caches" of "stuff" you have acquired you no longer need that you spent money on? From your view point you will do all in your power to justify all that you have; it give you power. Now please, Vid, I am not talking about you "personally" but "us" as a whole. Few are not entrapped into this elaborate "Ponzi Scheme" that will ensure in the end everyone will lose. Everyone who is so entrapped and our judicial system protects those who are involve in it's perpetuation until it does eventually collapse.

Perhaps this was meant to be? To lose all before we finally come to our senses and realize how precious the "little things" are in life and more is lure, an entrapment, an illusion. Most don't realize how much they do have and how little they need to sustain what they do have. All they need to do is turn on the greatest manipulator that has ever been devised by man to witness all they don't have. Ingenious contraption, the television and all it is capable of doing to lure innocents into the trap. I know, I made a good living convincing people to want more (money) so the would be happier.

Vid, if you do a little research it will become apparent to you how elaborate this scheme is and he safeguards it has in place to perpetuate it.
Of course it matters little to most for, hell, we are going to be dead in a few years anyway, huh? What difference does it make?

I have related many times it is not the quantity of life we have but the quality of that life we do have that is what is important. It is understandable why it can be concluded in our beginning when much of this world was alien to us, it was necessary to ensure our survival to hoard, secret, stash all we could get our hands on. Are we not beyond that?

When I stated it would be more prudent for us to investigate why people steal, kill, commit adultery, covet and so forth and eliminate or attempt to eliminate those "mores" then we can create a peace that does not involve the mandates required by law. Are we close? Not yet. The bottom it seems has to completely fall out before we will do that. Now what that will entail; your guess is as good as mine. But as I said; what the hell, we are all going to be dead in a few years anyway. What the use?

To answer your inquiry no this is not always the case positively speaking, but from my observation we can and do have the technology to change an economic system that is absolutely insane. Yes, there are responsible people who can live peacefully and legally with this system, but it plays it's havoc on them also when their "money" begins to "run out". The money that is a crucial part of what it takes that allows them to be a part of human race and participate in this thing we call life. Most of those who suffer the most fill those court rooms and are found guilty of crimes they would have never committed if they had the means to sustain them and their families.

Vid, I understand this is a novelty when it comes to theorizing an option to the economic structure we have "always" had in place. Those who are it's primary advocates are those who control the society that makes those laws that selfishly protect them and the gross stashes of financial wealth they have accumulated at the expense of others. There are many ways one can rationalize their over abundance and I disagree with all of them, yet there is a way those whose contributions to this life can be rewarded in just ways that will offer them a wealth beyond anything they can imagine that cannot be hoarded, stashed that forces them to hide from a majority that will do anything to "SURVIVE" and will illegally demand an equity that will allow all to live that, in most cases, will be against those laws in place.

VideCorSpoon;108409 wrote:
But would that also make the fact there can exist bad and neutral laws as well? I would think, at least in the case of the former, that it would actually affirm at least one of these rather than make them obsolete. What would be a rationalization of a bad law would be the fact that perhaps it is attributed as good to begin with.


You mean "the end justifies the means"? Perhaps I am not understanding what you are putting forth as to what "neutral and bad". Please, if you could give me an example of each we could get on better footing. Thanks.

VideCorSpoon;108409 wrote:
On bad laws such as a man not being allowed to steal, I don't understand your reasoning for this, although I can possibly understand where you are coming from with it. You basically say that if you solve the reason why a person steals, there is no reason for the law that prohibits them in the first place? Is life really like that where all problems of the world can be addressed in a gigantic bundle of solutions that coexist harmoniously with each other?............No, but it would sure as heck be nice though. I think that all what you wish is doing is trying to roll a problem into a paradox, dip it in secret sauce, and anonymously eat it. You still eat the thing, but you just don't know what you are eating.


Thanks Vid, brilliant analysis, but I must disagree. You have stated what all have stated in the past; "What's the use? It can never be done? Impossible? You're living in a dream world! Get a grip!" Ha, ring a bell? How about nothing ventured nothing gained? It is as it has always been and it's time for a change. The old ways just don't work anymore and now thanks to this unique method of global communication, people are beginning to "wise up". Not all people but some anyway as I said it will take a little time for all to see the light of the injustices that have been imposed on them and as Albert Finney exclaimed in the movie NETWORK, "He's mad as hell and he is not going to take it anymore"!

I have made it known I don't watch television but my "housemate" does and one of his favorite shows is LAW AND ORDER. I happen to have been passing through and became interested in the subject matter and lingered to watch. The episode was called AUTHORITY and it's special guest start was Robin Williams. In short he portrayed a victim of the system and was truly hurt by that system and beat it at it own game. His wife had bled to death as a result of a needless natural birth procedure when a caesarian was called for and the 'doctor' (authority) knew better and took his own professional opinion and did what he thought was best, all at the husbands stating otherwise.

William's was a brilliant individual not to be taken so lightly and proceeded to instill justice of his own for his loss that was no fault of his whatsoever and got that justice. Due to William's elaborate manipulation the doctor was motivated to commit suicide by Williams through a complicated communication network that hounded the doctor to insanity.
William's set it up so he would be eventually be found out so he could take it to the courts where he won there also as he served as his own defense counsel. He ate their lunch, so to speak.

It showed how inept those in authority were in the dealing with this brilliant individual such as what THE THOMAS CROWN AFFAIR was all about and he beat them and as if by a miracle of fate, disappeared in the end as if it were destined a higher justice was guiding him.

Vid, I am not advocating vigilantism but that is what occurs when individuals get "mad as hell and will not take it anymore". History is inundated with it and what revolutions are made of.

It is the primary reason why all the bloodshed we have encountered..........all of it without exception and the "list" I have stated so often. The inequity and the iniquity that is it's twin. End one and the other follows suit. Until then they will be joined at the hip. We need a rewards system that is resource based that will allow us to share in the resources the Earth has to offer; including those "human resources" and our "technology" is thwarting that all in the desire to "earn money". To hell with the rest. If you want to see a man go against his true nature, offer him enough money and stand by and watch. Not all men but those who desire to rule, in an instant as they rationalize the 'end justifies the means". What a crock!!

No, it cannot be done overnight; it will take time to change this economic structure and the laws that keep it in place. After careful analysis it always, always comes down to money and what people will do to acquire it and it does not have to be that way. We just haven't tried another and it's time we should.

VideCorSpoon;108409 wrote:
Interestingly enough though, isn't he fact that positivistic law is just a reminder to begin with. Positivism assumes that people are rational beings that have the ability to comprehend the theory of law. If people understand the nature of the laws, they would not break them in the first place. And yet we still have crime.


I hope, at least to some degree, I have shown where that statement just will not suffice any longer. I hope! No, it's a dictate Big difference. A reminder would not involve penalty. A penalty that exacerbates recidivism to pay the penalty that in most cases forces them to engage in those activities that brought them into the courts. Yes we do have crime and that is a consequence. Eliminate the inequity and the iniquity goes too.

This is just a minor point, but take the seat belt law for instance. That's a bad law, big time. If a person does not wear a seat belt the only one who will suffer is that person; no other. Yet we have a law that demands it or he will be penalized. You tell me why that is?

Now do your research. Every single year there have been automobiles on the road between 40 and 45 thousand people have and will lose their life due to automobile accidents...................PERIOD. That's a fact. It may have been different in the early days of the automobile, but the wearing of seatbelts have not altered that fact one iota. Yet we continue to make faster and faster cars. We put speedometers that show a maximum speed of 120 miles an hour and penalize anyone that goes over 70 (in most states). The autobahn being the only exception that I know of. I am not sure if it is still that way or not. I think the highest posted speed limit is in Poland where 140 klm or 87 mph is allowed (per wiki).

I am not familiar with other countries as to seatbelt laws only the U.S..
It is an "entrapping mechanism" designed to stop a car for reason to "start trouble" when no offense has been committed..............NONE other that of not wearing a seat belt. The same with lights and signals when one has a tail light out or his brake lights fail to operate. It gives them a chance to ask if one has obeyed the law and has the necessary insurance needed by law that will enable a person to operate a vehicle and those fines imposed help fill the city coffers, when a gentle reminder is all that is necessary to allow the person to realize his auto needs repair. No penalty of further inspection. No crimes have been commited that threaten any other person. Of course if one states "what if" someone failed to see you are slowing down, what then?; will not stand up in a court of law, but not have insurance will. Get my drift?

Before mandatory liability was enacted, liability insurance was the cheapest form of auto insurance, collision being the highest and understandably so. They were laws based on the "what if" factor. Again a crock. Yes actuary tables show exactly how many accidents will occur and Insurance companies rely on those figures and adjust their rates accordingly until it became mandatory and then began to take advantage of that law; just like seat belts. There is profit to be made here.

Vid, I hope this response will offer an inkling of what I meant by just laws and what makes them unjust. Please offer your response. I know it is "idealistic" to espouse what I do, but when considering the consequences of maintaining the status quo, I feel it necessary to at least try and to achieve perfection rather than get cooked in mediocrity. :a-ok:

Your friend,

William
0 Replies
 
HexHammer
 
  1  
Reply Thu 25 Feb, 2010 03:30 pm
@madel,
Imo it's when a law takes accounts for all things it is intended to cover, and are flexible.
0 Replies
 
Insty
 
  1  
Reply Fri 26 Feb, 2010 01:57 am
@madel,
Generally speaking, a good law is one that respects citizens' rights and enjoys popular support.
HexHammer
 
  1  
Reply Fri 26 Feb, 2010 02:11 am
@Insty,
Insty;132722 wrote:
Generally speaking, a good law is one that respects citizens' rights and enjoys popular support.
A permit that allows police to intrude your home, is that a bad law then?

Imo it's a good law.
Insty
 
  1  
Reply Fri 26 Feb, 2010 02:13 am
@HexHammer,
HexHammer;132731 wrote:
A permit that allows police to intrude your home, is that a bad law then?

Imo it's a good law.

Why would that be a good law?
kennethamy
 
  1  
Reply Fri 26 Feb, 2010 02:16 am
@Insty,
Insty;132722 wrote:
Generally speaking, a good law is one that respects citizens' rights and enjoys popular support.


Shouldn't you add, "And does what it is designed to do"?
0 Replies
 
HexHammer
 
  1  
Reply Fri 26 Feb, 2010 02:28 am
@Insty,
Insty;132733 wrote:
Why would that be a good law?
LOL...............?
Insty
 
  1  
Reply Fri 26 Feb, 2010 02:49 am
@HexHammer,
HexHammer;132744 wrote:
LOL...............?

I must be missing something. I imagine you're joking. But if not, Why would a law that allowed the police to intrude your home be a good law?
HexHammer
 
  1  
Reply Fri 26 Feb, 2010 03:03 am
@Insty,
Insty;132747 wrote:
I must be missing something. I imagine you're joking. But if not, Why would a law that allowed the police to intrude your home be a good law?
Omg! You must be very young.

Sorry for my lack of empathy ..uhmmmm.

You see, such law are nessesary because they serve a greater purpose. How should we catch criminals, if criminals could just hide out in their homes?
William
 
  1  
Reply Fri 26 Feb, 2010 05:10 am
@madel,
A person's private domain should be just that...........private. It becomes public when whatever goes on there becomes public and jeopardizes the public domain and those in it. If evidence warrants then that is what warrants are for. To have a police state that allows authorities to invade without probable cause is not a society anyone would want to reside in.

William
0 Replies
 
Insty
 
  1  
Reply Fri 26 Feb, 2010 09:52 am
@HexHammer,
HexHammer;132752 wrote:
Omg! You must be very young.

Sorry for my lack of empathy ..uhmmmm.

You see, such law are nessesary because they serve a greater purpose. How should we catch criminals, if criminals could just hide out in their homes?


Yes, obviously, it may be necessary for the the police to enter homes under unusual circumstances. As I said, a good law is one that respects citizens' rights. In the US, the Fourth Amendment gives citizens the right to be free from unreasonable searches and seizures. Police can enter citizens' homes only in very specific situations. Your post didn't say anything about the limitations on when the police should have the authority to enter citizens' homes. A law that gave the police a "permit" to "intrude" homes whenever they wanted to would be insane. Which is why I could only assume that you were joking.

I should also point out that the word "intrude" strongly connotes entrance of a home without justification. Which again made it sound as though you were suggesting that police should have carte blanche authority to enter citizens' homes.
HexHammer
 
  1  
Reply Fri 26 Feb, 2010 02:34 pm
@Insty,
Insty;132851 wrote:
Yes, obviously, it may be necessary for the the police to enter homes under unusual circumstances. As I said, a good law is one that respects citizens' rights. In the US, the Fourth Amendment gives citizens the right to be free from unreasonable searches and seizures. Police can enter citizens' homes only in very specific situations. Your post didn't say anything about the limitations on when the police should have the authority to enter citizens' homes. A law that gave the police a "permit" to "intrude" homes whenever they wanted to would be insane. Which is why I could only assume that you were joking.

I should also point out that the word "intrude" strongly connotes entrance of a home without justification. Which again made it sound as though you were suggesting that police should have carte blanche authority to enter citizens' homes.
Ok english isn't my first language, I apparently didn'thave the right words for the procedure. However feel free to translate it :cool: SORRY!!!
0 Replies
 
 

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