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.