Proposition 4: Best is Best
So far we have established that law causes consequences and that the main
value of a law lies in the consequences that it determines. If this is the case it
indicates a rationale for making law that incorporates a measure of the value of
law.
There is a simple proposition. Since the main function of law is to change the
world, the only one good reason to make a new law or change an established
law is to better your position. If the law does not make society better off then
it should not be made. So, the first point is no improvement no law.
There is, however, a further point. When a government is contemplating
enacting a statute on some subject a government usually has a choice because
there is more than one version of the law that will seem to be a solution to a
problem or a procurer of some desired social benefit. Each version of the
statute, it is believed, will deliver at least some of the outcome that the
government desires. However,
each statute will deliver it in different degrees,
perhaps in different kinds and with differences in the types and extent of the
costs incurred. This means that the government has a choice.
Since a government has a choice when it is contemplating enacting a law on a
subject it is important to ascertain the basis on which this choice should be
made. Now it is axiomatic that it is rational to want the best and irrational to
want anything less. Therefore a rational and honest government when faced
with a choice of possible version of a statute should choose the one that is
predicted to cause the best outcome or effect. There is a simple proposition –
the best law is the law that delivers the best outcome. It is rational to want the
best outcome from change. It is irrational to want anything less.
Proposition 5: Net Benefit Measures Best
If the best law causes the best effect, how should lawmakers judge this? The
best effect is judged by a cost benefit analysis that determines net benefit. The
best effect is the outcome that yields the highest net benefit. Net benefit is
constituted by total benefits that a law brings less the total costs that the law
incurs. While the more usual use of net benefit confines it to benefits and costs
that can be expressed in money’s worth, this analysis includes any type of
benefits and costs. All relevant costs and benefits must be counted, including
those that are economic, financial, physical, emotional, spiritual and social.
Issues
In principle the process based on the net benefit rule is the way to go. In
practice, however, there are problems in the two major processes that are
involved in determining which law or meaning of a law yields the highest net
benefit. These processes consist of causation and evaluation.
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