by Pyotr of Dark Ages
What makes a good law and what makes a bad one? How can laws be made better? What is the purpose of law? Can good laws make the enforcement of acceptable public behavior simpler? Can bad laws make it more difficult? These are some of the questions we will consider in this meditation on law.
It is not my intent herein to attempt to create law, rather it is to influence the creation of law by making those who create laws consider more carefully and deeply what they seek to achieve and how best to do so. In the course of this meditation, we shall examine some existing laws, and even critique them from various positions. We may even seek to reword them to some degree, but this is not intended as offering them per se as suggested revisions to existing bodies of law, rather it is to examine the processes of making laws better or worse. Concrete examples are often useful methods of understanding better theoretical matters. As I am a citizen of Mileth, I shall employ only the body of Mileth Law for illustration. This is not to suggest the Mileth Law is better or worse than Rucesion Law.
II. The Purpose of Law
Before one can separate a good law from a bad law one must understand the purpose of law. An elegantly worded and clear law is not necessarily a good law, though both of these are attributes of good law. A poorly worded and muddled law is not necessarily a bad law, though the poor wording and muddled thought incorporated may flaw it sufficiently that it is very difficult for those entrusted with enforcing it to employ it effectively. What then is the purpose of law?
Law is a body of commonly held standards of acceptable public behavior. Its purpose is definitory: "This is not acceptable behavior, or this is acceptable, and perhaps expected, behavior." As such it is a theoretical line dividing the actions of individuals or groups of individuals into proper and improper. Those who adhere to the proper side of the line in their behavior are considered "good citizens." Those who transverse the line, or those who exist only on the side of improper behavior, are less than good citizens, or are in fact disruptive elements in a society. Law is intended to assist the authorities of a society in differentiating in a non-arbitrary fashion who is contributing positively and who is contributing negatively to the overall good of that society as a whole.
As such, the purpose of law is then to advance the good of a society as a whole. Any law that does this is at least in principle a good law. Any law that impedes the good of a society as a whole is in principle a bad law.
III. Characterizing Laws into Good and Bad Laws
From the proceeding we have already established one qualitative measure for laws: a good law contributes to the overall good, a bad law does not. This is, however, a measure of intent, of the principles behind the law, not the actual implementation of those principles into a clearly worded statement.
A second measure of quality in law must then be how well implemented are the driving principles. Perhaps an example is in order.
If a body of lawmakers looks about and sees a proliferation of heretical names, names not acceptable to the society as a whole or within the ethos of the culture, and wishes to curb this trend, they are making law from the principle that good names are important to the coherence of that society. They, in principle, have agreed that bad names, or many bad names in a society, do not contribute to the good of that society, rather they contribute to making that society less whole or wholesome. This in itself has been held by aisling and mundane lawmakers in the past as a truth. We shall not question this as it is outside the scope of the discussion, we shall simply accept it as given fact. Thus a law that seeks to support this accepted principle, that good names are good and bad names are bad, is in principle a good law within this society.
If they simply write a law which says, "all bad names are heretical and must be changed or the aisling so named exiled," they write a bad law, however. How so? First they do not give any mechanism for differentiating a bad name from a good name. This makes the enforcement of the law a purely subjective act, and one which will of necessity be enforced in different places and different times differently and probably not as the writers of the law intended at all. Second, there is no specificity in "must be changed" as to immediacy or procedure for approval of the new name (what is accomplished if the aisling renames himself to a new bad name?) Third, the temporal extension of "exiled" is unspecific. Should the aisling be exiled forever? Until the name is made good? For a specific length of time and then the bad name is somehow acceptable?
From the above it can be seen that laws must be as specific as possible as to definitions of unacceptable behaviors, penalties, and enforcement measures, while yet not losing their connection to the underlying principle, for no law can cover every possible circumstance. It must be possible to understand the intent of the writers, the principle underlying the scripting of the law, so that as circumstances vary, the law remains useful, even if it does not exactly specify the details particular to the current circumstance.
Thus we see that a good law must be as general as possible in scope while remaining as specific as possible in detail. One way to achieve this is to state the principle first, such as in the example above, then in a further expansion detail definitions, specific circumstances, and perhaps even provide a measure for additions and revisions where circumstances may later require.
A good law is clear. A measure of good and bad is the clarity of the language and of the thinking. Laws are formulations of principles into language. They are principles codified into words. The words employed are of utmost importance and must be carefully selected and arranged. A casual choice leading to contradiction can make what could have been a useful law into one totally useless.
A good law is elegant and efficient. This means that a law written in one hundred words that accomplishes exactly the same as one written in one thousand words is inherently better. Of course, exact similarity is a fiction. There will always be a trade-off of conciseness with specificity, elegance with clarity, and so on. In extreme cases it is clear that a poorly phrased and overly wordy law is the inferior of one that is sparse, to the point, and worded memorably. In many cases the variations are not so well differentiable, but the lawmakers should keep in mind that elegance aids retention in memory, a lapidary law, one which has words so well placed they seem chiseled in stone, is one the citizens will easily remember exactly.
A good law is also enforceable; a bad law often is not. An unenforceable law is a bad law because it exists, but cannot be enforced. This erodes the respect of the common citizen for the justice and universality of law. It also causes major problems for those tasked with enforcing law. They must enforce law or be held responsible for not performing their offices properly, yet they cannot enforce the law because it is unenforceable. They are placed in a situation where they cannot do their duty to the society.
A good law also fits smoothly into the body of law as a whole. This does not mean that it relates somehow to others in obvious ways, though that is not a bad thing. It means a good law does not contradict other laws. If there are two laws that in some area contradict each other, what is acceptable behavior is no longer clear to the members of that society. As a result the society can fragment into sectors, one of which holds with one law, the other with its contradictory law. The purpose of law is to further strengthen society, not to divide it and thus weaken it.
IV. Further Examination of the Quality of Existing Law
This is not intended as criticism of those who formulated these laws. It is always easier to criticize from the high ground of the future that which lays down in the valleys of the past. It is intended to promote understanding of how to judge the quality and effectiveness of law, not of lawmakers.
A. Mileth Law, Article 4, "Auto-hunting"
There is current in Mileth Law one Article 4, "Autohunting" law. I shall state it in full before discussing it.
"Consciousness of your acts is required when raising your skills or spellcasting ability. The Aisling caught "daydreaming" while conducting one or both of these actions will first be spoken to by any official. If there is no answer he will be whispered. Failure in response will the result in Banishment. Second offense will be punished with Exile."
First, this law is concise, a point in its favor. The language is clear, the principle is also clearly stated in the initial sentence to aid judges and juries. This principle is based upon higher Mundane law, and this is not mentioned. I judge that a fault as will become more apparent later. While it is strong on general principle, it lacks in specificity, though at first that is not apparent. It provides a step-by-step process for enforcement, a very good thing, but each of those steps is not clearly defined.
The law states the Aisling "will first be spoken to." The law does not make clear if this is a simple greeting, which many who are occupied might well ignore, a pleasantry or a rhetorical statement requiring no answer, a specific inquiry, such as, "are you conscious?" or a warning, "respond or I will judge you unconscious." This injects the first potential for misunderstandings. The instruction to whisper suffers the same fault. It is also unclear how much time must, or may, elapse before the Aisling is judged unconscious. All of these lead to spurious defenses often deployed by those who are in deed and in fact guilty of the offense the law specifies. It has perhaps also resulted in the loss of office of more than one official who may have been doing his duty under the law.
To further damage the quality of this law, the period of exile is not specified. There are those who feel such actions, after an initial incident and banishment, warrant severe punishment, as in permanent exile. The law, on the surface, allows this interpretation since it is vague. It is also easy to claim other law, specifically the Banishment, Exile & Sgath Law must rule on the term of exile. But the former law specifies no warnings, the latter requires at least one warning unless it is a crime "that hurt(s) other aislings directly or causes them loss," which is not obviously the case with this crime.
So, we also now have a contradiction between two laws. One clearly specifies at least one warning is required, the other does not mention, per se, warning. One is specific on lengths of exiles, the other is not. Usually, in law, the specific rules over the general, but one or the other of these two laws should make clear which must hold sway. The Banishment, Exile, and Sgath Law makes this claim, but it is problematical. We shall examine this in C below.
To further complicate the matter, Mundane law makes clear this behavior is not tolerated. Behavior falling under this category is considered to be "universally scorned." The Mileth Town Charter (art. 7d) states that "unless the crime is severe enough as to be universally scorned, a minimum of one warning is to be given," which seems to say in the case of Article 4 infractions, no warning is necessary.
Such contradictions may make Aisling legal professionals happy, as they can dispute cases for hours, but they do not at all assist those who must enforce the law on a day to day basis, and who must deal with both those ignorant of law and those who would argue the fine points of law on the spot. If a guard chooses to interpret the law as requiring no warning, he may be removed from office for violating the Banishment, Exile and Sgath Law unless he can argue successfully that his action is proper and legal. Cases deemed as severe as are Article 4 cases should not create such difficulty for enforcers.
As it stands Article 4 is not as good a law as it could be.
B. Mileth Law, Article 18c, Guard Conduct Law - Justice Cases Reports
This law is muddled. It has no structure but is a mish-mash of statements and instructions piled one atop the other. There closest to a statement of general principle is "these reports should be in depth."
What is needed is a statement of purpose for such reports. A possible example, "Justice Case Reports are meant to serve as a check against illegal activities by guards and guard captains, a defense if their actions are questioned, and as a repository of precedent to aid officials in the performance of their duty in the future," would make plain the purpose of reporting "in depth." It might even do much to encourage the officials to do so in their own positive interest, rather than in the negative, "it's the law, you must report your actions," sense. Such a statement would result in better reports which better serve the course of justice from those who are truly interested in performing their offices properly, and would assist in identifying those who impede, rather than promote, the good of society though public office.
From that statement the law could become more specific, perhaps detailing exactly the desired, or required, information, the procedure for filing the reports, and the expected timeliness for them, along with the proper penalties for not reporting correctly or in a timely fashion.
The law gets worse as it goes along as it self-contradicts in the latter part. In the discussion of how to identify a guest, a fragile aisling (one who will perhaps not retain the spark of light all aislings share), from a true aisling. The language even lapses into heresy: "If they are wearing small spinel/emerald rings, they are also most likely registered." (("Registered" in this sense refers to an outside, game-technology concept, which is not in-the-world)) This is heretical as it espouses the theory that there is the Temuarian world and a demonic world from which all Aislings are actually controlled. (Avert!) It goes further to contradict itself with the addition, "this is not true, however," making a reader wonder why it remains in the law if it is not true. Not to mention why it remains in the law, as it is heretical, which is illegal in itself.
It then lapses into personal statement, which has no place in law. Ambiguity is not a good thing in law. Generality is not ambiguity. Laws must be as general as possible and as unambiguous as possible, the two come into conflict at times, but ambiguity is never good. Ambiguity is a lack of specificity in places where specificity is required.
C. Mileth Law, Banishment, Exile & Sgath, Article 24
The preface to this law states that it "shall replace the punishments of all current laws and be future guidelines for any subsequent laws." This is problematical on several grounds. First, incorporated into Mileth Law before this, and incorporated as superior law, is the Mundane law handed down to Aislings also. As that is superior law it cannot be superceded by Aisling law. It might be argued that Mundane law specifies no punishments. This is true, literally. However, according to Mileth Town Charter, Article 7d, crimes that are "universally scorned" fall outside the normal rules for warning. Mileth Town Charter may not be modified, per its own law, except in special circumstances, and Article 24 does not make clear those requirements were met. Thus the preface to Article 24 is probably not sustainable within the body of law at least on the issues detailed in the Charter and in Mundane Law. As Article 4 is a crime under Mundane law first, it appears Article 24 punishments cannot apply to Article 4 violations. All this is problematical, to say the least.
It also says it shall be "guidelines for future laws," not that it shall apply to punishments for violations of future laws. This stipulates these punishments and this law should be considered in deciding proper punishments under new laws, but does not explicitly make clear these punishments will apply for those laws also. Another area where clarity is severely lacking.
There is some good statement of principle following this, but "the punishment should fit the severity of the crime" needs further discussion beyond some generalities. While every crime's severity need not be specified, a general listing of categories, and factors which increase the severity from category to category, would be extremely helpful to those charged with enforcing the law.
There is also a less than clear statement on the purpose of warnings. From what is said here, warnings are to educate, allowing the benefit of the doubt. The "whenever possible" stipulation is far too vague and opens the whole warning process to question. A discussion of warning theory is in order.
If warnings are meant for the education of new aislings who have not yet learned the laws, warnings for all crimes could be deemed necessary except those which violate Mundane law ((as a requirement of playing the game we all agree to those terms, so it is appropriate to deem all players "warned" of those violations)). But if they are deemed educational, they should not be required at all for aislings who clearly are advanced in insight. Perhaps they are appropriate as a measure to diminish the number of cases and reports for those enforcing the law, at least in the case of the more minor infractions (minor heresy, minor harassment, etc.) If warnings are for educational purposes, they are a courtesy to citizens and should be seen as such. The current requirement of proof of warning places a possibly unnecessary check in the swift enforcement of law, increases the time the lawbreaking subject continues his actions, and allows those who seek to disrupt society without quite being punished to continue their disruptive acts.
It seems contrary to the course of order and the general good of society to allow otherwise proper cases to be overturned because a guard did not see need to warn one who knew they were breaking the law. Balanced against this, of course, is the need to place checks on the unrestrained power of officials who do not in fact seek the public good. I do not see that a requirement for warning accomplishes this check, however. Those officials who care not for the public good ignore the requirement in any case; it is generally only those who are sincerely seeking to maintain order who run afoul of the warning requirements.
Another twist on the warnings issue is that of public, witnessed confessions of wrongdoing. As the law is currently written and enforced, a lawbreaker receives warning, perhaps several, stops their activity before the official decides to punish, then brags they knew they were breaking the law. If warnings are meant solely to educate, the necessity and validity of those warnings is null after a confession. I see no reason why evidence of this being the case, or witnesses, should not permit punishment of said lawbreakers. The object of law is to curb unacceptable behaviors. The warning system is not doing this sufficiently well; it encourages minor infractions up to the point of warning from those who know the law. It should, instead, gently instruct those who do not, while immediately and severely punishing those who profess to know better.
A body of law that encourages unacceptable behavior is a bad body of law.
In opposition to a more relaxed requirement for warning, more should be expected of officials in justifying their actions. There is already a general principle of reporting actions and acting responsibly stated, it could be more specific and clear.
There could also be in place more penalties for controlling those who repeatedly return officials to office who do not perform to the public good. Those who sponsor a bad official, or who repeatedly sponsor bad officials, should themselves be removed from office. The act of sponsorship is one of positive control over others. It should have attached an equal burden of responsibility for the act of sponsoring.
This is no exhaustive examination of Mileth Law, nor was it intended as more than a look at some laws to illustrate the ideas of good and bad law.
V. Some Principles not Covered in Existing Law
One principle not explicitly addressed at present in Mileth Law is the responsibility of citizens to report lawbreaking. The Charter grants citizens rights, but allots them no responsibilities. As a follower of Cail this imbalance disturbs me especially.
This lack (one not present in Rucesion Law, I must point out (Article 4)) creates problems in the enforcement of law. The obvious one is there is no requirement for citizens to assist officers of the law by reporting infractions. Many good citizens do routinely report such. Others turn their faces away and ignore infractions. Some even willing abet illegal acts and have publicly confessed to doing so.
Perhaps the idea of "accessory to the crime" should be considered as addition to both bodies of existing law. If a citizen is shown to be willingly assisting another in the act of lawbreaking, should they not be equally guilty and liable of punishment? This could be extended to the act of willfully ignoring the lawbreaking actions of others, at least in the most severe crimes. Perhaps one who admits to knowledge of a crime and to not having reported it should be considered guilty of the same crime? If all worked to advance order and living within the approved norms of behavior, Temuair would be a more pleasant place for all but the most socially unfit, and it is to control the actions of those that law is most required in the first place.
Another avenue to be explored might be one of "social irresponsibility," which would be exercised only against officials of respected citizen status or higher who are shown to have willingly ignored lawbreaking in their presence or knowledge. There will always be situations where officials simply cannot address all lawbreaking at once. That should be an acceptable reason to ignore another crime. Any official found guilty of ignoring lawbreaking for unacceptable reasons should be removed from office.
Accepting public office is accepting public trust. Those who ignore or abuse that trust should not retain their offices.
Likewise, receiving rights from the law should be balanced with being doled certain responsibilities. These should be the responsibility to learn and know the laws, to participate in the selection of worthy officials and the monitoring of them for proper actions, and the participation in maintaining order through reporting lawbreaking and assisting as witness in cases.
VI. In Summary
The law is a living, changing body. If a tooth becomes diseased, it must be healed or removed lest it damage the health of the whole. If a law is likewise shown to be bad, it must be fixed or removed. New ones should be added where the need is shown. Always, the process should be guided by these principles:
A good law contributes to the good of society as a whole.
A good law is as general as possible in principle, as specific as possible in details.
A good law is clear.
A good law is elegant and efficient.
A good law contributes to the whole body of law without contradiction.