Making and executing ideal laws with the right penalty is an optimization process with debatable objectives. But at least we can list the five components of the objectives and three components of the costs in an attempt to model lawmaking. Later we can look for the prevailing approaches to combine these goals in ideal lawmaking and determine the origins of these approaches.
Goals of lawmaking
1. Change future behavior of criminals
This is often thought of as the goal of imprisonment. We would like criminals to have limited opportunities to commit another crime while in prison and less likely to commit crimes after they are released, which we attempt to achieve through enrichment programs in prison.
2. Compensate the victims
Victims can be financially compensated through fine or psychologically compensated through apology or by knowing that the criminals will be punished.
3. Deter people from committing crimes
When the punishment is severe enough, it is no longer worth it to commit a crime even when the probability of getting caught is small.
4. Improve the perceived fairness of society
Most people would like to live in a just society where people who harm others without permission are punished.
5. Make the criminals better people
Criminals are people too and many believe that the society should be responsible to help them by pulling them out of the wrong path and teaching them what’s right.
Costs of executing laws
A. Costs of crime detection and prevention
This includes the costs of hiring police and auditors and making the public aware about the laws.
B. Costs of processing the cases and running the prisons
This includes the costs of hiring lawyers, judges, and prison officers and building the infrastructures for that.
C. Worse welfare for the criminals
Since we probably count criminals as part of our society, their suffering is a cost.
The cost in passing the laws is ignored here since ideal laws are not politically achievable in the first place unless “ideal” means politically ideal.
Another aspect of lawmaking is structuring the welfare system by designing a tax system and setting price discrimination in government services such as public education. Now the victims correspond to the vulnerable groups who benefit from this system and the wealthy people are analogous to the punished criminals; the five goals and three costs still apply.
Ways of combining the goals and costs
There are at least three ways to combine these goals and costs to form the objective function which assigns different weights to each item.
Economic lawmaking seeks to consciously and rationally maximize an objective function that is carefully thought out. The cerebral cortex, as opposed to the limbic system, is heavily involved in this process. The main component in the objective function is usually the happiness or utility of a set of people in the society. There are many ways to combine the utility of multiple individuals including assigning each person’s utility a different weight. Democratic societies theoretically result in maximizing the median utility (with equal weights for every adult) because of the median voter theorem.
As an example, let’s analyze how to maximize the expected utility of society with everybody assigned an equal weight. The parameters affected by lawmaking include the degree of punishment, tax rates and welfare policies, size of the law enforcement workforce, and education that changes people’s lawmaking preference and risk of criminal behavior. Each parameter is positively or negatively related to several of the eight factors mentioned. Maximum expected utility of society is achieved when each parameter’s positive effects are equal to its negative effects (assuming no interactions among parameters). For example, using numbers and letters from the first section, a progressive tax rate is positively related to compensating the poor (2) since a higher tax rate means the government can (and we think it will) have a richer welfare system for the poor. In the same vein, the tax rate is negatively related to wealthy people’s utility (C), positively related to perceived fairness of society (but only up to a point) (4), negatively related to government workforce (A & B), and negatively related to economic prosperity (1, 3, & 5), which in turn affects everybody’s welfare.
Moral lawmaking is the opposite of economic lawmaking in that it is unconscious and emotional and utilizes the limbic system (a primitive part of the brain). The stated goal is often to make people do “the right thing”. What’s right and wrong can differ across individuals and cultures but some universalities exist. For example, anything that harms other people without their permission and benefits the culprit very little is “wrong”, such as punching a stranger in the face.
Stable lawmaking is another kind of conscious decision making that does not maximize the utility of society, but rather maximize the lifetime of the lawmaker – the government. Similar to natural selection, the states that implement laws that threaten their own existence are gradually wiped out and all surviving states have laws that result in stable governments. The prerequisites of natural selection are satisfied here since we have seen many different kinds of governments in history, some states are gone partly due to its legislation, and reproduction is achieved when new states copy their legislation from other existing countries.
However, the states don’t have to consciously utilize stable lawmaking to achieve it. For example, if democracy is stable, states can moralize democracy and use moral lawmaking or assigning an equal weight to every voter and use economic lawmaking to achieve stable legislation. On the other hand, there is evidence that some states are consciously pursuing stable lawmaking; China has a crime called “inciting subversion of state power” and in China’s promotion of Harmonious Society, any activity that threatens the government’s existence is deemed inharmonious.
In the last 200 years, the stable legislation has been shifting from autocracy to democracy. I hypothesize that both forms of government are stable but economic development is more effective with democracy (especially when compared to mediocre dictatorships), so autocracies without a great leader eventually collapse due to economic disadvantages.
Comparing economic lawmaking and moral lawmaking
In fact, almost no laws were created using economic lawmaking or moral lawmaking alone. These two approaches interact in that lawmakers often form a fast moral judgement about the issue to determine whose utility matters and then use economic lawmaking to maximize this utility function and arrive at a rationalized result similar to that of moral lawmaking.
However, the problem in this process is that the determination of utility function is interfered by factors other than moral judgment, especially by a culture that values everyone equally on every issue, which could make the two approaches produce different laws. For example, many people morally think human lives are great and the more the better and therefore euthanasia is wrong while many people advocate for euthanasia because the average happiness is increased if sufferers die.
The divergence in the results of these two approaches is possibly a recent phenomenon since egalitarianism became popular only a few hundred years ago. Some egalitarian traditional cultures are not truly so because they still have outgroup members or enemies whose utility are not of consideration. The modern egalitarianism starts when people start to care about everybody on Earth, such as starvation in Africa, and think everyone deserves the same legal rights. A necessary condition for modern egalitarianism is that there is no survival risk (i.e. there is enough food). If food is scarce, helping anyone else is killing yourself.
Moral lawmaking originated as a heuristic to maximize group fitness developed through thousands of years of gene-culture co-evolution. Values that maximize group fitness get deposited and ultimately become part of morality. Since group fitness and group utility often coincide, this explains why moral lawmaking often gives the same result as economic lawmaking.