Good laws

       The raison d'etre of government is to maintain the fabric of society. The only legitimate tool that any and every government has ever had to accomplish this task is the use of laws. Each society has proliferated more and more laws with every successive generation, while rarely stopping to review the laws already in existence to confirm their worth and pertinence. Even more rarely, practically never in fact, has anyone considered at length what attributes constitute a good and worthy law, so that potential future laws may be held against such a standard in consideration of passage. But there are surely some common characteristics that every law that would generally be considered good possesses. I will attempt to define what seem to me to be the essentials.

       It has been acknowledged by every democratic society in history that one of the fundamental rights of all people is the right to liberty. I will simply state that I agree with this view. Any law by definition is an abridgment of individual liberty for some or all of the citizens of a society. This means that it is important to denote exactly what the right to liberty indicates. While “liberty” is a nebulous term, laws must deal with concrete occurrences. I posit that the most concrete and universal definition of liberty is the freedom of choice in both thought and action. It is the freedom to think or not think on any subject and to act or not act under any given circumstance. Given this definition, there are two ways in which individual liberty can be violated: by another individual (or group of individuals) or by the state. An environment with no government, and therefore no state interference, in which any person can violate any other person's liberty is anarchy. Since a society with a government is the opposite of anarchy, it follows that the purpose of the state is to prevent the violation of a person's freedom to choose by another person. However, as previously defined, a law is an abridgment of liberty. This, then, is my first qualification for a good law: a law abridging an individual choice should only be passed if deemed absolutely necessary to protect society.

Generally, protecting society implies protecting the individuals who make up the society from explicit harm. Only a fairly narrow band of activities brings direct willful harm to people. Thus, when a law is deemed necessary, it should abridge the smallest amount of freedom of individual choice required to insure protection from denial of choice by other individuals. In effect, a law should only deny citizens the right to violate other citizens' freedom of choice.

        This qualification applies to virtually every type of violent and property crime. Murder, rape, robbery, theft, fraud, etc. are all violations of choice. As such, they should be punished by law. However, many, if not most, laws not dealing with what would commonly be termed criminality aim to deny the choice to think or act to consenting rational adults. Such laws include virtually every vice law ever conceived, the majority of personal property use restrictions, and the bulk of economic policy laws. This denial does not serve to protect individual liberty in any way, but rather wantonly increases the influence of the state. As such, no such law can qualify as good under the first requirement. The second requirement is, then, not so much an independent requisite as a corollary to the first, but needs to be stated independently and in positive terms. No law should restrict the participation of consenting rational adults in any activity performed in private. The specific indication of privacy is a necessity because a controversial activity, if performed in public, even if it is by consenting adults, is a violation of the liberty of non-participants to utilize public space without having to witness objectionable activities.

       This condition eliminates such groups as drug enforcement laws and sexual prohibitions from the realm of good laws. The thing that such laws tend to have in common is that they are passed on the basis of emotional or moral bias, quite often advocated by a vocal minority. The resulting effect is that people pursuing activities, even hazardous ones, that they might be interested in are criminalized despite the absence of any harm performed to anyone other than themselves or other willing participants. Since bias is a choice, any law based on bias is effectively declaring the choices of one person or group as superior to those of another person or group. The perfect example of this is the issue of abortion. Pro-life advocates lobby for anti-abortion laws based on their belief that life begins at conception. But belief is a personal bias. It has no universally acceptable rational backing. Once a child is born, there is no denying that he or she is alive and thus clearly definable as a citizen with individual rights. But prior to this point, there is little agreement as to when exactly a child becomes alive. On a matter like this, the safest path for a government is to go with the most rational solution based on undeniable facts. That is, a law should always be founded on a rational basis rather than on bias.

       Following this last principle, vice laws should be abolished entirely, and drug abusers, for instance, only punished if they perform a direct crime, such as robbery or murder, but not the mere fact that they use drugs. Taxation is also covered by the rationality principle. Since the only way the state can perform its duties is by collecting revenue from its populace, the need for taxation is justified. The merits of any particular tax law are, of course, still debatable.

       Few existing laws would meet all four of the previous qualifications. If all laws failing any of them were to be abolished, it would become painfully obvious how few laws would actually be necessary. This relative scarcity of the number of laws would also bring to the forefront the last requirement that they should meet. Laws should be universally and justly enforceable. Every murder, rape, and fraud can and should be pursued by the justice system. Every tax can be reasonably collected and a person refusing to pay a tax can be readily identified and punished. By contrast, it is impossible to track down and arrest every drug user, nor is it reasonable or just to do so. Any law that criminalizes a significant portion of the populace for acting in a way that does not violate other people's freedom of choice is fundamentally unenforceable. A law that the state cannot possibly enforce has no rational purpose, and as such should not exist.

        Finally, although this is strictly speaking not a requirement of necessary and good laws, I think it would be a good idea to build in automatic review dates for laws rather than writing them in perpetuity. A law that demands its own periodic review to continue in force would be more likely to remain valid.

Gay rights

       The debate over gay rights has been raging for so long that it seems to have become so convoluted that no simple solution is feasible. This is not, however, the case. The entire discussion really only centers around two fundamental points: how to define relationships between homosexuals and what, if any, rights are they entitled to before the law. Both of these questions, to my mind, have fairly straightforward solutions.
       The first question is whether homosexuals are entitled to any rights at all. This question seemingly depends on where homosexuality comes from. Is it a genetic trait, such as race, gender, hair color, or is it a lifestyle choice that an individual consciously commits to? The answer here is that in either case homosexuals are entitled to the same rights as heterosexuals, but let me clarify each argument separately.
       If you take the standpoint that homosexuality is genetic, then gays have no more choice about who they are sexually attracted to than what color their hair is or how tall they are. In the same way that it is unreasonable to deny someone legal status based on height, it is equally unreasonable to deny legal status based on sexual preference. US laws, and particularly, the US Constitution, has specific provisions today that forbid discrimination against and require protection of all US citizens. Namely, “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” (Amendment XIV). In other words, if you have committed, you are entitled to the same rights as everyone else. The various versions of defense-of-marriage acts and amendments to state constitutions patently abridge certain privileges of homosexuals and deny equal protection of the laws. These are absolutely civil rights violations. Since Amendment XIV was added to the Constitution, additional laws have been put in place to stop discrimination based on gender and race. Discrimination of sexual preference is the last legal bastion of bigotry left in this country. As such, it is well past time to quash this prejudice and begin truly following the precepts of equal civil rights protection before the law.
       But what if homosexuality is a lifestyle choice? If people choose to kill or rape others, they are punished by the law, so if they choose to engage in homosexuality, should they not also be legally reprimanded? The answer is simply no, and the reason is that a choice of sexual partnership neither restricts the liberties and choices of others nor brings harm to others. A criminal is (or ought to be) defined as one who brings harm to others or, more generally, denies them their liberties. Consenting sexual relationships do no such thing. The popular position taken up by opponents of gay rights is that homosexuality (or sodomy, as they often prefer to call it) is sinful or inappropriate behavior, but this is a strictly religious moral position and should have no bearing on what is written down in secular law. Much as they don't like homosexuals, they have no legal right to restrict their liberty. Thomas Jefferson wrote in the Declaration of Independence “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.” Well, choosing your life partner undeniably qualifies as Liberty and the Pursuit of Happiness. What right has any one person to tell another with whom he can and cannot build a life? And if a couple chooses to have children, who can deny them this right? And if they cannot have children of their own, and wish to adopt a child and provide her a safe, caring, loving home, who can deny them this right? And if a person falls ill, who is better qualified to make medical decisions about him than his life partner? How can anyone deny another human being these rights under any pretense, let alone the things they do privately and consentually? But that is exactly what is happening in America today. Under the earlier definition, it is the people that would seek to deny the civil rights of homosexuals who are the criminals in our society, not the homosexuals themselves.
       As I stated earlier, using either the argument of genetics or of lifestyle choice is irrelevant. Both lead to the conclusion that homosexuals are entitled to the same civil rights as heterosexuals. So much for point number one. As for point number two, how exactly are they currently being denied their rights and why? The crux here is what has seemingly become the focal point of the entire debate, and that is the definition of the word “marriage.” This, despite all appearances, is actually the simple half of the question.
       The word “marriage” has come to us purely out of religious texts, in particularly, in our society, the Bible. Marriage is an ancient social institution, but it has historically always been first and foremost a religious institution. The ceremony of marriage is a public display before people and God of two people's commitment to each other as life partners, and since Western religions have traditionally considered homosexuality sinful, the ceremony has always implicitly meant the union of one man and one woman. The problem with this implication arose when religious morality was carried over into legal doctrine, in the case of the United States through British common law. Legal texts pertaining to property rights, adoption rights, medical treatment, in short, all legal texts pertaining to civil domestic rights used marriage as the basis for recognition of such rights. At the time of their writing, these laws had no need to make a distinction as to what marriage meant as society did not recognize homosexual partnerships. However, now that committed homosexual relationships are more recognized and gays are seeking recognition of their domestic rights, they have run into the impenetrable wall of that single word. Since marriage is historically between man and woman, any union between two men and two women cannot be recognized before the law. But I emphatically state again that the definition of marriage is a religious moral one. The laws of the United States are meant to protect a secular society where a separation of church and state is demanded by the citizens to protect their liberties from oppression by the religious majority. Thus the real problem is not the definition of marriage, on which the proponents of the Defense of Marriage Act harp so insistently, but the use of the word itself in the legal texts of the land.
       I propose an elegant solution to this problem. From the gay community, I ask simply that they concede the use of the word marriage to its religious definition. After all, it is only a word, and this is a tiny compromise. The commonly accepted alternate term is “civil union,” but I honestly could not care less what you choose to call it because the importance lies in the nature of the relationship and not in its name. From everyone opposed to “gay marriage,” I ask that the alternate term for a union of two men or two women is written into the laws as defining such a relationship and furthermore, and most importantly, that this term is given equal status with marriage in legal terms. The two terms should have equal meaning and indicate equal protection of civil rights. Thus the religious definition of marriage is not impugned by the “sinful” homosexuals, and the secular civil liberties of homosexuals are not infringed by the religious community morally opposed to them. I put forth that this is the most equitable solution for all citizens of the United States and that we can put to rest this argument that, for all its biliousness, should never have happened at all. It is time to close another chapter in the history of American intolerance and move forward to the actual problems facing our society rather than the imagined ones.

Dig Deeper

As a preamble, a brief mission statement of this blog: I am out to find the Truth. Looking for the Truth always requires digging deeper. If you are interested in digging deeper, I offer this blog to be a bigger shovel.