ABSTRACT
The essence of the law is to serve an ex ante purpose: to set up rules and regulations that govern behavior so that we all feel better off ex ante with the law than without. Thus the rule of law serves one single purpose: to enhance the public interest. Both the design of laws and the enforcement of laws, therefore, need to pass the ex ante benefit–cost test. That is to say: if and only if a law yields ex ante benefits that are greater than the ex ante costs, should it be enacted. Otherwise it should not be so enacted. Similarly, if and only if the marginal benefit of enforcement effort is greater than the marginal cost should the enforcement be carried out. In this context, it is important to note that costs and benefits are comprehensive social costs and benefits and include all “intangibles.” In general, society needs to incur a cost to uphold justice. As long as the perceived benefit from greater justice more than offsets the social cost required to uphold it, it should be upheld. Even for something as fundamental as justice, which is certainly important to uphold, there exists a limit beyond which upholding it further may not be justified. The essence of the law is to define behavior that is not acceptable (proscriptive), and in some exceptional cases, to define behavior that is deemed to be in the public interest (prescriptive). Thus the law may outlaw speeding (proscriptive), and may require employers to give their employees one rest day every week (prescriptive). We would argue that laws should not be intended to defend morality. The reason is that people have different ideas regarding what is moral and what is not. When some people try to use the law to dictate their moral values on others, the public interest may be sacrificed. On the other hand the public interest defined as the interest of the representative individual is beyond dispute. All that is needed is for us to put ourselves in other people’s shoes. We may strongly hold on to our own set of values, but equally other people also strongly hold on to their different values. Putting ourselves into other people’s shoes means that we would want to respect other people’s values too, as long as those values do not undermine shared core values. For example, some people may say that a victim of rape was creating trouble for herself by her sexy attire and is therefore “immoral” in the first place. But if we put ourselves in the shoes of the victim we would easily see that how she dresses herself does not give anyone the right to assault her. The rape would be seen as an act of violence and violation against the rights of other people.
