Jurisprudence - GOOD OR BAD LAW PDF

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The question, what makes a good or bad law has been a subject of a long standing debate since time immemorial. Many jurist, and even ordinary the ordinary men in the society have their own perception of what makes a law good or bad. Whiles some determine what a good law is from the source of the law, others also measure the goodness of the law from the perspective of purpose or effect of the law (fairness, justness, common good, enforceability, simplicity, among others). Thus, in strict legal parlance, a “good law” or “bad law” is anything but a subjective assessment of a particular law in the light of what the person evaluating the law deems to be good or bad. In this essay, I will resolve the issue of what makes a good or bad law by examining the various theories, standards, perspectives by which people classify laws as bad or good. Firstly, one way to determine what makes a good law is to determine the number of people who the law serves. This idea is postulated by the proponents of a theory called the Utilitarianism, who argues that a good law is the one that maximizes the overall good consequences of an action; what is in the best interest of greatest numbers of people. According to them, the following factors, among others, can help to determine what makes a good or bad law: 

The number of people who benefit from the good consequences of a law.

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The number of people who benefit from the reduction of harm as consequences of a law.

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Whether the benefits from promoting good consequences outweigh the costs of reduction of harm?

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Whether the benefits from reducing harm outweigh the costs to the greater good in taking no action?

Arguably, this theory is practiced in the United States. For instance, in the United States of

America, the foundation of their legal system postulates that the law should work for us all, not just a select few. Thus, according to the jurisprudence of the United States of America, a good law is a law which serves the majority of society and a bad law does not serve the

majority of society. This idea is further strengthened by the Equal Protection Clause of the 14th Amendment to the United States Constitution which delineates that: “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.” However, one problem with using this theory to determine whether a law is good or not is that this theory may not often lead to justice of the law as expected, as it does not recognize the interest of the minority in the society, and this is not fair. Thus, in certain cases, the majority rule may downplay the genuine interest of the minority, however good it is. Meanwhile, it is a well-known and accepted norm that in a society everyone matters. Second, what makes a good law is determined by where the law is emanating from, and this idea is postulated by a group of legal theorist called the Positivist. According to them, law is good if emanates from the command of the sovereign whom the people have decided to obey. They further postulate that the law is exactly what it is and there is no room for morality per se. So, according to them, once the sovereign makes a law, it is good law irrespective of the consequence. And once the law is not from the sovereign then it is not a good law. However, the problem with examining whether a law is good or not under this proposition is that it may sometime lead to dictatorship which is bad. Further, from this school of thought, the law does not consider the moral values of the society. The law must always reflect the values of the society because the law is made for the people. As such, it must for efficiency reasons, be made in line with the norms of the people if the norms are not in themselves barbaric. In this light, HLA Hart, who is also a positivist, argues that a little bit of morality should be inculcated in the law in order to make the law a good law.

Third, other groups of people measure what a good or a bad law is by examining whether the law inculcates the morality of the people within the society. This theory is spearheaded by the Naturalist School of jurisprudence led by Devlin and Co. who argue that law is not valid or good unless it inculcates the morality of the people within the society. According to them, law is bad if it does not recognize the concept of morality with reference to its society. The difficulty with using this theory to determine whether a law is good or bad is due to the fact that there are many people living within a jurisdiction with diverse cultures as well as moral value and norms. The question remains, whose values and norms or standard of morality should be used in making the law? since the morality of one culture could be immoral when measured in the light of another culture. Hence, making it difficult to ascertain what morality is or should be. Further, other persons determine what makes a good or a bad law by looking at factors such as enforceability, that is whether the majority are willing to obey them, and whether the law is simple which is whether the law is easy to understand and to obey, and not too complicated that people will be unable to comprehend it. In conclusion, what makes a good law is very synonymous, and it is highly dependent on many factors, including the purpose for making the law, the school of thought of the persons who wants to enact the law, among others. Thus, there is no single rule for determining whether a law is good or bad. There seem to be, arguably, only one way of assessing what makes a good law, and that is by synthesizing the various approaches or school of thoughts on what makes a good law....