The Moral Compass of Legislation: Why a Lawmaker's Conscience Defines "Good Law

By M. Inerikumo Tina and P.L. Osakwe

Abstract
Defining "law" has always been a fascinating challenge. In this article, my co-author and I explore the major legal theories: Positivism, Natural Law, Utilitarianism, and Marxism. We’ll look at what each one brings to the table and where they fall short. Our core argument? While these frameworks help us understand law, the real test of a "good law" comes down to the moral compass of the lawmaker. This ethical side, often clear in court decisions, is vital for creating truly fair and effective legal systems that genuinely serve people.

1. Introduction

■ Beyond the Rulebook – What Makes Law "Good"?

For as long as I can remember, the question of what "law" truly is has intrigued me. Is it just a set of rules? Is it something divinely inspired? Or is it a tool of power? The answers are as varied as the societies that ask them. My personal exploration into jurisprudence—the deeper study of law—goes beyond just the written code. It's about understanding the spirit of law, its origins, and its ultimate purpose.
In this article, my co-author and I invite you on a journey through the major legal theories: Positivism, Natural Law, Utilitarianism, and Marxism. We’ll see what each one offers, where they shine, and where they miss the mark. Our aim is to show you that while these theories provide crucial frameworks, the very essence of "good law" isn't found in abstract concepts alone. Instead, it lives deep within the moral and ethical considerations of the people who create it: the lawmakers. This human element, in our view, is what truly transforms a dry set of rules into a vibrant instrument of justice.
2. Understanding the Building Blocks: Our Take on Key Legal Theories
To truly appreciate the lawmaker's role, let's first quickly unpack the foundational ideas that have shaped our understanding of law, from my perspective.

A. Positivism: Law As It Is, Not As It Should Be.

Imagine a legal system where a rule is a rule simply because someone in power said so. That's the heart of Positivism, famously championed by brilliant minds like John Austin and Hans Kelsen. For them, law is a set of rules, clearly separate from morality. Its validity comes from its source—who made it, and how—not from whether it feels "right" or "just."

John Austin, for instance, famously saw law as a "command from a sovereign backed by a sanction." Think of it like a strict order from a ruler, with a penalty if you disobey. For him, the law's legitimacy was all about this chain of command. But, as I've found, this view has its limits. What about laws governing voluntary agreements, like signing a contract or getting married? They don’t quite fit the "command" mold.
Hans Kelsen built on this with his "Pure Theory of Law." He envisioned law as a hierarchy of norms, all stemming from a foundational "grundnorm"—a basic, unchallengeable rule that gives legitimacy to the entire legal system. Kelsen really wanted to strip law of any moral or political "impurities," aiming for a pure, objective science of law.

■ The Catch: For me, the biggest problem with pure Positivism became glaringly obvious after historical events like the Nazi regime. Actions deemed "legal" under Nazi law were profoundly immoral. The Nuremberg Trials, for example, couldn't just say, "Well, it was legal, so it's fine." They appealed to a higher sense of justice, showing us that strict legality doesn't always equal morality. Positivism, on its own, can dangerously detach law from ethical accountability.
B. Natural Law: The Moral Imperative in Legislation
In sharp contrast to Positivism, Natural Law theorists, like St. Augustine and Thomas Aquinas, believe law is deeply intertwined with universal moral principles. For them, law isn't just a human invention; it's a reflection of a higher moral or divine order. They suggest that we, as humans, can use our reason to figure out what's inherently right or wrong, and these truths should guide our laws.
Aquinas, a thinker I deeply admire, famously argued that a law is "just only when it aligns with the moral order." If a law goes against this moral truth, he believed it was a "perversion of law," not true law at all. This perspective champions the idea of inherent human rights and universal justice, which I find incredibly compelling.
The Catch: While appealing, Natural Law does face challenges. Its "universal moral order" can feel subjective and hard to prove. What one culture sees as inherently moral, another might not. Also, applying these grand moral principles to everyday legal matters, like property deeds or traffic rules, can be tricky since these don't seem inherently "moral" or "immoral." Still, its powerful influence is undeniable, shaping movements for human rights (like the Universal Declaration of Human Rights) and, I believe, subtly guiding the conscience of lawmakers striving for fairness

C. Marxism: Law as a Tool of Power?

The Marxist view, led by Karl Marx, offers a truly critical perspective that I find thought-provoking: law, they argue, isn't neutral at all. Instead, it's a tool used by the dominant capitalist class (the bourgeoisie) to maintain control over the working class (the proletariat). For Marxists, law simply reflects the economic power structure of society, often enforcing inequality. They even predicted that in a truly classless society, law would eventually "wither away" as it became obsolete.

■ The Catch: While Marxism powerfully highlights how economic power can distort legal systems, its vision of a lawless, classless society has, in my opinion, proven impractical. Historically, many self-proclaimed Marxist states ended up using law to oppress, rather than liberate. This shows that abandoning the rule of law can be disastrous for individual rights. It underscores that even with the best social intentions, lawmakers must balance ideals with respect for individual liberty and established legal frameworks.

D. Utilitarianism: The Pursuit of "Greatest Happiness"
Imagine laws designed to bring the most good to the most people. That's the essence of Utilitarianism, championed by Jeremy Bentham and John Stuart Mill. The goal of law, for them, is to maximize overall happiness and minimize suffering. Bentham even proposed a "felicific calculus"—a sort of happiness spreadsheet—to help guide legislation.
The Catch: The biggest flaw here, in my view, is the sheer difficulty in truly measuring subjective "happiness" or "pain." What brings joy to one person might not to another. More critically, a strict utilitarian approach can dangerously justify harming a minority if it supposedly benefits the majority. This raises serious ethical questions. For me, it's clear that most conscientious lawmakers would say no to sacrificing the rights of a small group for the supposed greater good. This limitation highlights that while "greatest happiness" is a worthy goal, it absolutely needs the lawmaker’s ethical judgment to ensure it doesn't trample on individual rights or justice.

3. The Crucial Role of the Lawmaker's Conscience: My Core Argument.

As I've explored these legal theories, a powerful conclusion emerges: while legal systems can be shaped by all these different philosophies, the ultimate measure of a truly "good law" rests squarely on the conscience of the lawmaker.
A purely positivist approach, without a moral compass, risks allowing injustice to flourish. A rigid adherence to natural law can become too inflexible or dogmatic. Utilitarianism, unchecked by ethics, might inadvertently sacrifice vulnerable groups. And Marxism, while insightful about power dynamics, can abandon the very legal structures necessary for a just society.

In practice, it is the lawmaker's ethical judgment—their inner moral compass—that navigates these complex tensions and bridges the gaps between theory and reality. This isn't just about what's "legal" or "efficient" or "ideologically pure"; for me, it's profoundly about what’s right.

Let's look at some powerful examples. Consider the landmark case of Brown v. Board of Education, 347 U.S. 483 (1954). The U.S. Supreme Court unanimously declared state-sponsored school segregation unconstitutional, effectively overturning the "separate but equal" doctrine that had been legally sanctioned for decades. Chief Justice Earl Warren, in his powerful judgment, stated:

"To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone."

This wasn't just a dry, positivist interpretation of legal rules. It was a profound moral judgment reflecting the Justices' collective conscience regarding the inherent injustice and deep psychological harm caused by segregation. It shows how the conscience of those interpreting and applying law can fundamentally reshape its meaning and impact, even challenging deeply entrenched "legal" forms.

Here in Nigeria, our Constitution (specifically Section 8 of the Constitution of the Federal Republic of Nigeria 1999 (as amended)) empowers courts to determine if laws made by our legislators are constitutional. This power to "quash any law made which is unconstitutional" acts as a vital check, ensuring that even if a law passes through all formal legislative stages, it must still align with fundamental principles of justice and human rights. This judicial review implicitly calls upon a moral judgment, reflecting an underlying societal expectation that laws, regardless of their source, must be "good" in a deeper, ethical sense. For me, law is deeply tied to conscience, just as equity is often based on the conscience of a judge.

Globally, efforts like the Paris Agreement (2015) on climate change further illustrate this point. Here, lawmakers worldwide grappled with the moral imperative to protect future generations from environmental catastrophe, even when it meant overriding immediate economic interests. Such legislative endeavors aren't driven purely by utilitarian calculations or sovereign commands, but by a collective conscience recognizing a profound responsibility to humanity and the planet.

4. Conclusion: The Ethical Imperative of Lawmaking.

My exploration of legal theories—Positivism, Natural Law, Utilitarianism, and Marxism—has shown me the incredible diversity in legal philosophy and the enduring challenge of truly defining "good law." Each theory offers crucial insights: Positivism highlights formal validity, Natural Law universal moral principles, Utilitarianism collective well-being, and Marxism a sharp critique of power.
However, a critical look at these theories, through my lens, reveals a common thread: none can fully capture the crucial element that truly distinguishes "good law" from mere legal pronouncements. That element, as I firmly believe, is the conscience of the lawmaker.
Law is a human construct, created by humans to regulate human interactions. While its forms may vary—commands, divine reflections, economic tools, or calculations for maximizing happiness—its ultimate quality is inextricably linked to the ethical and moral compass of its creators. These theories provide essential frameworks, but it is the lawmaker's conscience that truly imbues them with justice and legitimacy.
Ultimately, a truly just and enduring law emerges from the lawmaker's ethical commitments. It is their deliberate decision to prioritize fairness, equity, human rights, and the common good, even amidst pragmatic or ideological pressures, that transforms a mere rule into a truly just and effective law. The specific form a law takes may be influenced by prevailing theories, but its essence as "good law" is undeniably determined by the conscience of its maker, ensuring law remains a force for justice, equity, and the common good.