Last Updated: Friday, 05 July 2019 15:30 | Published: Saturday, 21 October 2017 14:10 | Print |

The Legal Purpose Initiative

The Law Benefit Test - A Proposed Fundamental Principle for the Constitution of Nations

Information:

The "Rule Of Law" As An Australian Constitutionalist Promise
Author: Andrew Sykes
Deakin University School of Law
Issue:Volume 9, Number 1 (March 2002)
http://www.austlii.edu.au/au/journals/MurUEJL/2002/2.html
Sub-Reference:
Tony Blackshield and George Williams, Australian Constitutional Law & Theory (2nd ed, 1998) 7

Constitutional law has two main functions. It seeks to provide a stable and secure basis for the exercise of government power, and also seeks to limit that power. "It is both a supportive and a constraining framework".

Information:

In Australia written constitutions, such as the Commonwealth Constitution, "impose substantive and procedural limitations upon the powers of all three organs of government".

Defining the Problem

Currently in Australia (and in other countries) we have a legal system that could be described as authoritarian in nature. That is to say that the structures set up to create laws and to change laws have been set up with the view that once a law is created, it is there to bind you. Laws are there to tell you what to do and in most cases, if you behave in a way that goes against the law, there are consequences. But do our governments always know what is best?

If we think of criminals such as thieves, murderers and rapists then certainly this idea of an authoritarian rule might seem appropriate. We don't want any grey areas to get in the way of our collective ability to discourage and stop those committing the harshest of wrong actions. The problem is that laws don't just deal with such obvious wrong doings. It is not always as serious or clear as judging the wrong of a proven murder. Laws don't just say what is right and wrong, they say what is allowed and what isn't, they say what is supported and what is discouraged and those making the laws are not always the best judge of what is best for society as a whole. The prejudices of law makers, their sensitivities and subjective moral codes come into play. So for any free thinking, intelligent person, the idea of being told what to do by those who are themselves imperfect at judging right vs wrong, benefit vs detriment, this is an idea that will often seem distasteful.

Police in riot gear

Laws are used to construct and define our bureaucracies. They define the scripts that bureaucrats run to perform any of their prescribed duties. Laws are used in an authoritarian manner within our bureaucracies to define the lines of approval everywhere from what line to stand in within a government building, what products can come into the country, through to defining which people can and can't access medication, through to defining what risks a person is or isn't allowed to choose for themselves to take, through to defining how a shop owner can advertise their business on a street frontage. Laws are everywhere. Our bureaucrats have gotten so good at bureacratising that there isn't an aspect of our lives in Australia that isn't touched by one piece of legislation or another. Now before you go thinking that this is going to be an article advocating the merits of anarchy and chaos by getting rid of the rule of law, let me first start by saying that bureaucratic rule is not all bad.

As mentioned, laws can be used to keep the wrong doers at bay. Laws can be used to keep our lives free of con-artists who for example would seek to replace our food with some poison for the sake of making a few extra dollars. Laws can be used to say where and when alcohol can be consumed so that we don't have alcohol fueled brawls happening on every street corner in a crowded city. Laws can be created as a script to coordinate and align the efforts of a large number of individuals who form a bureaucracy so that they all perform their duty to the letter of the law without getting too creative. This being helpful where getting creative might lead to a corruption of the system or people just doing their own thing.

Laws can be used appropriately to protect our rights. As well as defining what we class as wrong, they can also be used to define our liberties. Unfortunately, although law is and can be a very useful invention, the people deciding what is and isn't allowed, are not always doing it with the public good as their guide. Self interest, corruption and sometimes just ignorance and incompetence on the part of law makers or law enforcers can see many wrong doings being done in the name of the law. The law itself can be used to deny us opportunity, to shape markets in the pursuit of money instead of social benefit and it can create many victims.

As an additional element to the problem with our current systems of law making, laws are sometimes created for one reason but over time, as the culture changes, the laws then get used and abused for very different reasons to those first intended. Also sometimes the events and circumstances that led to the creation of a law are emotional. Calls are made to change laws that are not always broken. Under these circumstances the action of modifying a law can be illogical and not actually connected in function to the events that caused their modification. This meaning that the result of executing the law is very different from the result that was intended.

The Proposed Solution

In order to keep all of the benefits of law as a productive social guide allowing us to collectively decide and enforce the boundaries of right vs wrong, benefit vs detriment; while at the same time removing the problems associated with imperfect law makers imposing harm and injustice through the use of law; the following solution is suggested:

As well as writing points of law as a series of demands (this being the old authoritarian model of law creation), we must now also record the purpose of the demand.
Further we must link the recorded purpose of each point of law to the fundamental principle that all laws must be created to bring social benefit.
The purpose of each law should act like a test whenever a law is applied so that if following the law produces outcomes that are outside of its stated purpose, then the wrote application of the law must be considered as wrong in some way and must therefore be removed or rewritten or extra detail added.
This solution is proposed to exist within the context of us having a system (such as Politify) to collectively discuss and poll what is considered to be socially beneficial. The result being a system of law that is dynamically self-evolving over time and evolving towards a better and better expression of social benefit.
The system evaluating social benefit must encourage good, evidence based reasoning in order to prove benefit by whatever method is appropriate for the type of benefits that are being sought. For example, if the benefit is emotional then a poll of feelings must be conducted, if the benefit is tangible, a counting of accumulated units is needed, if the benefit is philosophical or principled in nature then a polling of interpretation is needed. If the benefit is an adherence to reality vs a shedding of delusion then a recording of available facts is needed and/or a debunking of fallacy is needed. Politify will supply these benefit evaluation features.

The Benefit of the Solution

The solution that is here being proposed is designed to speak to the hearts and minds of free and intelligent people. The solution is designed to transform our legal systems from being authoritarian in nature into being public serving. With law makers being themselves required by law to create only socially beneficial laws, citizens are no longer subjugated by law. Instead they are its creators and they are its enforcement partners. The public will be surveyed to ensure that the laws being created are in fact beneficial and that the laws are indeed achieving the purpose they were created for.

The purpose that is recorded for each law will not only shape the interpretation of those laws, it will act as a test for their execution. If their execution does not match their purpose then clearly their execution is incorrect. Where bureaucrats and legislators are required to define a purpose for a law, if ever their intentions for a law are nefarious, self-serving or corrupt, this will be obvious at the time of them creating the laws. This will reduce whatever corruption currently exists within our law making processes. Currently where special interest lobby groups and self-serving entities can claw away at the good intentions of our legal institutions by slowly over time passing laws that serve only those special interests or only those self-serving entities, now their way forward will be much harder. This solution will shape what laws can and cannot get created because all laws must be serving the public. If any ill intent results that is misaligned with the stated purpose, this will quickly get found out and nullified by the test of purpose.

This solution will create a system of law that is dynamically self-evolving over time and evolving towards a better and better expression of social benefit.

Proposed Implementation

Every government constitution should start with the phrase: "We come together to form this nation for the benefit of its citizens."
The constitution should then detail measures that it will be taking to test for benefit and to make change where an intended benefit has not or cannot be realised.

The details of how to test for this social benefit should be worked up into a set of proposed legal statements. The completed document which has been contributed to in a democratic fashion, should be formally proposed to each country as an international initiative. Each country being asked to adopt this at the highest levels of its constitution.

Editor's Comment: In a world where this implementation has been formally proposed to the nations of the world, any country that does not adopt this as a part of its core construction could be considered corrupt and/or corruptible and able to be run for the benefit of individuals, family lines and special interest groups and not for the benefit of the masses.

Author

Cameron Gibbs - Politify Founder

Cameron Gibbs
Politify Founder

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