Friday, August 7, 2020

"For the common good"

Aquinas thinks that for something to be a law, it must be “for the common good” (in addition to satisfying other conditions). Otherwise, the legislation (as we might still call it) is not really a law, and does not morally require obedience except to avoid chaos.

But suppose we have a cynical view of legislative activity, thinking that many cases of legislation are imposed not in order to the further the common good but in order to get the legislators reelected. One may worry that even if such a piece of legislation happens to further the common good, it is not for the common good but for reelection, and hence is not a valid law on Aquinas’ criteria.

Here is a possible way out. We should limit our cynicism. Start with a multiplicity of different options here, perhaps importantly different: the legislator may think the law would be popular with their constituents; voting for the law may help the legislator get an alliance with other legislators that will help getting reelected; or, the legislation will secure a large campaign contribution from an interested party. The last is the most crass, of course. But even so, it is reasonable to think that in most cases the legislator thinks that their getting reelected serves the common good. There may be some cases of serious corruption or power pursuit where even this is gone, but in those cases we really should worry about the validity of the supposed law. But in many cases even when there is corruption, I expect the legislators think it is good for their country that they be in office.

This solution reads “for the common good” broadly. The having of the legislation need not be aimed at the common good, but it is enough if the passing of the legislation—or maybe just the legislator’s voting in favor of it—is aimed at the common good. One may worry that this is overbroad: that the content of the legislation has to serve the public good.

But that would be too strict a criterion. The common good is the common good of the relevant political entity, say a country. But international negotiation can result in treaties where two countries each pass a coordinated piece of legislation such that: (a) the content of each piece of legislation harms the citizens of the country it is passed in and benefits the citizens of the other country; but (b) the benefits outweigh the harms in such a way that the coordinated deal is for the common good of each country. In this case, it is not the content of the legislation that serves the good of the people governed by it, but the fact of there being such legislation serves their good, by getting the other country to pass the coordinated legislation. And this seems like it could be a perfectly legitimate case of valid legislation, assuming the harms are not of a kind that are morally impermissible (e.g., the legislation invidiously harming a vulnerable group).

In fact, the case of the legislator voting for a piece of legislation in order to get reelected is not very different from such international negotiation. In each case, the legislation as such may not directly serve the common good, but its promotion is nonetheless thought to lead to the common good. So it is important to read the “for the common good” criterion broadly. But if we read it this broadly, then apart from really serious cases of corruption or power madness, we have good reason to think that most of the legislation we are under in democratic societies is “for the common good”, unless it is clearly immoral (further discussion here would require separate analysis of the two ways legislation can be immoral: by requiring immoral action from one or by being an immoral imposition that doesn’t require immoral action from one).

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