- 07 Jan 2012 16:56
That depends on whether you believe that a law can be either "good" or "bad". In Law there are two schools of thought relating to this issue, the first is Natural Law and the other is Legal Positivism. I would recommend reading H.L.A Hart's The Concept of Law, as well as John Austin's The Province of Jurisprudence Determined. Both were Positivists who, in a nutshell, believe that if a rule is valid (i.e. the source of law is one that forms 'legitimate' rules in a legal system, or is from the 'sovereign') then it is a proper law, regardless of its ethical or moral implications or consequences. Whether they agree with it is, to them, irrelevant because a law is a law. An obvious example would be human rights. Should they exist, and are they "good" laws? Are there any laws that 'aught' to exist or not exist, or do all laws exist independent of morality?
For natural lawyers, rules draw their foundation from the distinction of what is innately right and wrong. To them a law cannot be a law if it is, as Coke LJ said in Bonham's Case, "against common right and reason, or repugnant, or impossible to be performed" Coke said that where that happens, "the common law [should] control it, and adjudge such an Act to be void." For natural Law, I would recommend Coke's judgement in Dr Bonham's Case, as well as his other writings on the subject, and Henry De Bracton's On the Laws and Customs of England. A good way to illustrate this point would be to question whether the law governing single yellow, 'No Waiting' lines on a road is a 'good' law, or is it an impartial rule governing how we drive, with no moral impact?
As far as I believe, there is no natural law, and no rules based on what 'aught' to be. Parliament legislates according to necessity, and creates positivist Acts; the common law decides whether it is a law that should exist, and creates a Natural Law framework to constrain parliament's whim. In this way, both schools of thought play their part to control the whim of Parliament in the name of the Public good.