A while ago I had a debate that led me to write down the principles I believe are inherent to constructing a good and just law. As with most things in life there are grey zones, and places where reasonable and liberty conscious men will disagree. We all have different opinions on what “reasonable risk” is for example, and may also debate what is a “direct cause and effect.” Sometimes these concepts are agreed on by everyone, and sometimes the path from point a. to point b. is not so clear cut.
That is not what I am here to debate. I am here to refine my guidelines, to make them as robust a fortress against tyranny as can be possible. I believe that one of the reasons that we have such terrible laws in this country is because there is not a rigidly defined set of rules for what type of law can be made. Lawmakers can see an issue, any issue, and decide “there ought to be a law. . . ” whether or not a law should be or not. The Constitution and Bill of Rights attempt to set limits on how far the laws can go, but don’t actually set any limits on the construct of those laws. It is more of a boundary than a guide. And we all know politicians, like toddlers, like to test boundaries. The goal of this guide would not be to set up a wall, but rather a path. With a path we could see how far off course the politicians have wandered and it would be far easier to call them on it. This would server to protect the constitution by ensuring that the lawmakers never get close enough to its walls to test them.
So let us start by Remembering a few things about laws.
1. *every* law is ultimately backed with the threat of lethal force. It’s just a matter of how you are willing to refuse to obey. It cannot be any other way, since that is the only effective chain of enforcement. Broken law>fine>refusal>larger fine>refusal>jail time>refusal>arrest>resisting arrest>application of lethal force for resisting arrest. Are you willing to follow that chain all the way down for every law you support? Now that does not mean that I think every law I support deserves the death penalty, but I do support the chain all the way down, and you know what, there are a lot of laws I’m on the fence about.
2. No law can prevent a crime. Neither can they force a certain behavior. All they can do is punish for that behavior. The best they can hope for is a deterrence for fear of punishment, and that can only happen if the law is understood. Just like hiding the doomsday device in Dr. Strangelove a law cannot be a useful deterrent if it is buried, vague, ill-defined and misunderstood. a law like that can only be used punitively, never for deterrence.
So with that understood lets start defining a good law.
- For starters if we wish to preserve equality before the law, laws must be levies against everyone equally. No carving out special interests or exceptions. That is not saying no exceptions at all, but it is saying those exceptions should also apply to everyone. What is good for the goose is good for the gander and all that. The moment we say “Tom is special because of x” is the moment we allow politicians and their cronies to legislate themselves above the law.
- A good law should also only seek to regulate actions that are demonstrably dangerous or significantly dangerous to others around you, whether directly or through an inevitable and direct chain of events. When there is doubt as to the limits of “significantly dangerous” principle dictates that we should always err on the side of liberty. We understand that a regulation barring the storage in an open pile of enough explosives to level a city block in a city residential district is a just regulation, whereas barring such storage on a private 1000 acre ranch is unjust.
- Following this principle it is easy to see that a law that governs a private action that has no demonstrable ill effect on others is unjust. Similarly “just in case” laws and laws based on the precautionary principle are likewise unjust.
- good laws should also seek minimal intrusion and interference with personal lives as possible. the less laws you have governing your behavior the less likely you are to innocently run afoul of one of them.
- A good law should also be rigidly defined and as limited as possible in scope, with no weasel words. If you must prohibit an object that object must be rigidly defined. Though I think laws that ban objects are stupid in principle, it is much better to ban actions and intents, as those are not as easy to circumvent with clever design. I actually think there should be a list of words explicitly banned from use in laws as they give regulatory agencies far too much leeway in interpreting and enforcing laws, and leave the doors wide open for abuse.
- A good law should not be redundant. If an action is already illegal, we don’t need another law to make it more illegal, just in a different way. That is an unnecessary restriction of liberty. And for what? Absolutely nothing.
And that, as far as I can see, concludes the list.
Most of our laws today would fail the above tests I think. And perhaps many people would say that we are trying to run a country with virtual no laws at all, and that we prefer a lawless anarchy where the strong rule over the weak.
Nothing can be further from the truth. We understand that regulation of commerce is necessary and just. It is done to protect people from the maliciousness of others, to protect the weak from the mechanizations of the strong, and to give freedom an liberty to those who could be easily oppressed.
For example fraud is illegal, and rightfully so. But we should regulate in a way that is general and not specific. For example I am opposed to selling rat meat as cow meat, not because rat meat may be unsafe, but because that is the definition of fraud. If someone wanted to buy a rat meat burger knowing full well what it is I’m totally ok with that. To be blunt, I am not ok with the total ban on selling rat meat. I’m also ok with the assumption that a person selling an item for human consumption is making an implicit statement that it is fit for general human consumption. So by selling rat meat as fit for human consumption you are implying that is is free from poisons and other contaminates that would make it dangerous for humans to consume. We don’t really need a regulatory agency with thousands of pages of regulations that crush small business out of existence when a few simple common sense laws and a significant tort reform would solve the whole who-can-sell-what-when issue without miles of read tape and the need to hire a dozen lawyers. When your food regulations are so out of control that not even the agency responsible for managing them can keep them all strait you have a problem. And lets not forget the example of the EU banning the statement that drinking water prevents dehydration. . .
In conclusion laws and regulations are necessary for society to function as they set definitions and punishments for *actual* crimes. Things like rape, and murder and fraud and tax evasion and reckless endangerment. And there is give and take involved, because what one may deem reckless may be another’s good fun. What I am saying is that we should not seek to justify laws that punish the many for the sins of the few, and strip the rights of the responsible for the mistakes of the stupid, all in an attempt to have a better, “well regulated” society. We should instead understand that these laws are a travesty, and that they make society *worse*.
Furthermore we should strive to understand *why* that is. When we understand that we can begin to understand what a good and just law is, we can see its form. We can see that it shares in common with other good laws a respect for people independence, for their choices. We see that bad laws do not do this, that they restrict the innocent while they attempting to reign in the guilty. And that is a deprivation of due process, no matter how subtle, and it is ultimately a travesty of real and honest justice.