Making Law
Making law constitutes purposive action because law changes the world.
Every law creates or causes some effect or outcome. The aim is to determine
the best outcome by reference to net benefit.
There is, however, no rational way for an institution to determine which
outcome is the best since there is not sufficient evidence to demonstrate
conclusively that humans should behave according to some comprehensive
and inviolable moral code. Consequently there is no rational way of
determining the values to use when enacting a statute. It comes down to what
the legislature wants.
On the surface, however, democracy may be the answer. There is a good
argument, it seems, that a democratically elected legislature can legitimately
determine values to be used when enacting legislation. In other words, it can
decide for itself which of the possible statutes causes the effect that possesses
the highest net benefit. A legislature can do this and claim legitimacy because it
is an elected body that democratically represents the will of the people. So, the
legislature makes its own policy in that it makes its own value judgment as to
which effect is best, but it does so in a manner that represents public opinion.
There are, however, some who criticise this view, claiming that the legislature
is not fully representative of popular will. One major argument is based on
Kenneth Arrow’s impossibility theorem which demonstrates that, after some
plausible assumptions are made, it is not logically possible for the decision of
an elected legislature to be perfectly representative of the preferences of the
individual voters. The reply to this argument is twofold. First, elected
legislatures are the best that we can do in this regard. Second, during their term
of office legislatures will be to some extent beholden to public opinion as
expressed in the media. This entails a diluted form of participatory democracy
–
while citizens do not get to participate in the decisions, potentially they can
participate in the debate that may influence how their elected representatives
will behave.
A second argument attacks not the principle but the practice. In the real world,
there are several factors which make
representative government far less
democratic than it can otherwise be. One is the government mandate in many
countries that confers the right to broadcast on free to air television (one of the
main means of public communication) on a handful of privately
owned
corporations. Another is the practice of allowing large donations to political
parties, because there must be a likelihood that these are given in return for
some form of favourable treatment. The reply to these objections is that, in
principle representative government is the best achievable but it is necessary to
take the appropriate action to make it more representative.
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