Submitted by Gene Howington, Guest Blogger
In 1780, John Adams succinctly defined the principle of the Rule of Law in the Massachusetts Constitution by seeking to establish “a government of laws and not of men”. This reflects the democratic principles enshrined in the Constitution’s preamble: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” The very foundation of our legal system says that the law should work for us all, not just a select few.
This raises the question of what is a good law that serves the majority of society and what is a bad law that doesn’t serve the majority of society?
This idea is further bolstered by the Equal Protection Clause of the 14th Amendment:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The latter addition of the 14th Amendment as well as the Preamble of the Constitution both reflect the spirit in which this country was founded as set forth in the Declaration of Independence: “When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”
Clearly, the pursuit of the Rule of Law under the Constitution as informed by the Declaration is a pursuit of the Utilitarian concept of the right course of action is the one that maximizes the overall good consequences of an action; what is in the best interest of greatest numbers of We the People is in the best interests of the country.
Utilitarianism is a quantitative and reductionist philosophical form. Utilitarianism, however, is not a unified philosophical view. It comes in different flavors with the two primary flavors being Rule Utilitarianism and Act Utilitarianism. Strong Rule Utilitarianism is an absolutist philosophical view and rules may never be broken. Like any absolutist view does not take into account that reality occasionally presents situations where breaking a rule results in the greater good. For example, the strong reductionist rule that murder is bad is countered by the exceptional example of murder is not bad if performed in self-defense or the defense of others. This result of practical application is reflected in what John Stuart Mill called Weak Rule Utilitarianism. It becomes apparent that since not all rules are absolutely enforceable when seeking the common good and exceptional circumstances require flexibility in the law, that the Utilitarian pursuit of the Rule of Law must be in Mill’s Weak Rule formulation of Utilitarianism. But is considering the greater good and circumstantial reasons for breaking or modifying rules the best way to judge whether a law is good or bad?
If one considers Kant’s Categorical Imperative – “Act only according to that maxim whereby you can, at the same time, will that it should become a universal law.” – then any law not universally applicable should not be a maxim worthy of being recognized as universal. This is contrary to Utilitarianism in general as well as Weak Rule Utilitarianism specifically, but while Kant’s view takes subjectivity into account when dealing with circumstances it does not take into account that there can be objective differences in circumstances as well. It is part of the judiciaries role as a trier of fact to consider not only subjective differences but objective differences in circumstances in formulating the most equitable and just solution to a case at bar. In seeking to be universally applicable in defining maxims, Kant is an absolutist as surely as Strong Rule Utilitarians are absolutists. As a consequence of reality not being neatly binary in nature and thus not often compatible to absolutists approaches to formulating laws for practical application, what can be done to keep Weak Rule Utilitarianism from degenerating into Act Utilitarianism where actors will seek the greatest personal pleasure when presented with a choice rather than the greater good? Utilitarianism conflicting with the Categorical Imperative? Is there a unitary philosophical approach to evaluating whether a law is good or bad?
The answer seems to be no. If there is no single view, absolutist or otherwise, that leads to a practical system for evaluating whether a law is good or bad, then there is only one option for building a framework for evaluation. That option is synthesis.
Consider that absolutist systems as they are not applicable in reality should be confined to being considered theoretical boundaries rather than practical boundaries. This does not negate the value of considering systems like Strong Rule Utilitarianism or Kant’s Categorical Imperative, but rather puts them in the place of aspirational goals rather than practically attainable goals in every circumstance. Given that Mill’s Weak Rule Utilitarianism can degrade into Act Utilitarianism and that degeneration can be compounded by the number of exceptions there are to a rule, are there ways to minimize the defects of using only Weak Rule Utilitarianism to determine the societal value of a law? What supplements can be made to that framework?
I submit that one such supplement is found in the form of Negative Utilitarianism. Negative Utilitarianism is exactly what it sounds like; the inverse function of Utilitarianism. Whereas Utilitarianism is the basic proposition that the right course of action is the one that maximizes the overall good consequences of an action, Negative Utilitarianism is the basic proposition that requires us to promote the least amount of evil or harm, or to prevent the greatest amount of suffering for the greatest number. If one takes both into account in evaluation of the social value of a law (a synthetic approach), the test becomes a balancing act. On one side of the scale is the societal value of overall good consequences, on the other side is the societal value of preventing overall harm. This proposition suggests the following framework for evaluation of whether a law is good or bad.
- How many people benefit from the good consequences of a law?
- How many people benefit from the reduction of harm as consequences of a law?
- Does the benefits from promoting good consequences outweigh the costs of reduction of harm?
- Does the benefits from reducing harm outweigh the costs to the greater good in taking no action?
- Are the net consequences of a law perfectly knowable from either perspective or does the possibility of unforeseeable consequences exist? Can the unforeseeable risks be minimized either by construction of the law(s) to allow for contingencies or by regulating other risks or contributing factors?
- Do solutions from either perspective negatively impact human and/or civil rights? Do those negative impacts outweigh the positive effects to the greater human and/or civil rights of all?
This is but one way to evaluate whether a law is good or bad for society. What are other methods? Are there ways to improve this method? What do you think?
“_Atlas Shrugged_ speaks truth to altruist power”.
Your mis-assumptions are rife but the Altruist one is particularly of mark. Who here calls themselves an “altruist” I certainly don’t. I don’t trust those who presume to be “altruists” any more than I do those who believe in a shallow, pseudo-philosophy. Both are merely self-serving constructs used to bolster weak ego’s.
Gyges,
Perhaps I should have put that down explicitly, but since the context was utilitarian analysis, enforceability seemed like a given. For the sake of clarity, we should most certainly include it as a prime criteria. There is nothing less utilitarian than an unenforceable law.
“Well I am a man and I dont go around screwing people and getting everything I can at someone else’s expense.”
We only have your word for that. I think many people who screw others don’t admit to themselves they are doing it, but supply rationales to overcome their internal qualms. For instance since I spent my career helping others I could claim to myself and others that I am an altruist. However, I’m am decidedly not an altruist, or altruistic.
The work I did, though it benefited many, was done because I enjoyed doing it and got payed in the process. There was no nobility in my work, simply self satisfaction. You on the other hand have portrayed yourself as an almost noble businessman, considerate to your employees and attentive to your customers. Smart business strategy no doubt, but a self-reported one. I’m quite sure you could rationalize every time you strayed from your purported path. We all do what we can to live, however, for every time I’ve strayed from my moral compass I’ve admitted it to myself and to others. I have no time for self-deception. Given what you espouse politically, there remains a distinct possibility that all is not what it seems to you to be and your portrayal of yourself may be ripe for self deception.
Need I say more…
>[Gene H] Objectivism is actually a pseudo-philosophy more akin to a religion built on the cult of personality both in its worship of Ayn Rand and appeals to the egos of its adherents.
Youre an intellectual fraud without even the pretense of evidence. As a rational hypothesis, your knowledge of Objectivism is limited to pop culture blather. Have you read even one essay by Rand? You evade ideas for personal attacks and beg the question of ethics by condemning the appeal to the ego without evidence. You further lie by sleazily suggesting that sacrifice has a rational justification. And your nearly psychotic, rambling “discussion” of politics was a brownnoser’s delight: memory w/o understanding and a mere rationalization of sacrifice and collectivism, for both of which there is no rational justification as your evasion of even an indication of proof clearly shows.
What, after all, has modern thought achieved beyond a debilitating skepticism? Name one problem it has solved!
It merely multiplies problems ad infinitum w/o solutions. Its base in the primacy of consciousness condemns it to puttering futility and hideously disasterous impracticality. See our ex-Constitutional Law prof President who “leads from behind.” Listen to the revealing hesitations in his speeches. He’s a modernist, unsure of anything except his humiliating ,cowardly desire for social approval at all costs. His high intelligence doesnt stop a functional stupidity. Modern man is an asshole.
_Atlas Shrugged_ speaks truth to altruist power.
“The idea that an employee of a newspaper working against the owner of the paper to bring him to his knees because he disagrees with the owners philosophy”.
You keep trying to stretch reality to make your point, but your efforts are failures. Rand set out to write a heroic novel based on Frank Lloyd Wright’s career experience of going against the flow and yet refusing to bend. So far a decent plot line. She made his best friend and great admirer a figure resembling William Randolph Hearst, who was presented as another heroic figure of vision and self enterprise. For purposes of presenting her ideology she needed for the publisher, a great man, to be brought to his knees by the snarling crowd. This was so that she could compare the architect to the publisher and have the former emerge as the truly great man standing against the collective mob. Not a bad plot device so far.
The problem was she was an intellectually lazy writer, yet a polemicist. How
delicious, she must have thought in her shallow way, to show the differences between the two men than by having the Publisher laid low by his own Architectural columnist. Thus he would be forced to turn against his best friend’s work, a work which the Publisher personally believes in. This is where her hack nature stepped in to serve her attempt at political philosophy. The idea that the general public would be so enthralled by the columns of someone commenting on architecture, to the point of boycotting the paper they love, is ludicrous. Only a hack writer would make such a pivotal plot device so unbelievable and hackneyed. This is typical of all her work where she butchers narrative structure and credibility in the service of her basically elitist pseudo-philosophy. That is not even dealing with the fact that her dialogue is unpersuasive as real human speech and her characters are so wooden as not to resemble real human beings.
In the end though what emerges from Rand, despite any protest she may make to the contrary, is a poor crib of Nietzsche’s Superman, standing out from, yet leading the herd. A rather elitist concept for one who purportedly believes in an egalitarian society for all, but really points to the strong leading the weak, which would be the inevitable climax of any nation that applied her pseudo philosophy.
Tony,
Here they are,
“What evidence is available that the reduction of harm claimed is in fact viable?”
“What evidence is available that the good consequences claimed are viable?”
Would a (admittedly theoretical) fair judge say “the evidence points to the Atheists upsetting you,” or would they say “the evidence points to you upsetting yourself about Atheists?” Further more would this judge decide that 98% of the population being upset is a more severe harm than killing 2%?
I’ll also point out that anyone remotely familiar with human history would be able to predict that the purge would result in an ever increasing definition of what’s subversive. Thus failing the “unintended consequences” prong of the test.
Although, now that I think of your kill all atheists law fails on another matter that I haven’t seen mentioned…
Gene,
You missed a big one: Is the law enforceable?
Mike Spindell:
I have and you call me a sociopath. Why would I continue in that vein?
It is your opinion she is a hack writer. Why should I take your word? Are you some sort of non-partisan literacy critic who has no political ax to grind?
I thought not.
Do you even understand your position only holds water in the leftward land of lunacy? And your mirror is others who think exactly as you do?
None of you have ever told me why her ideas wont work in reality except to say man’s nature. Well I am a man and I dont go around screwing people and getting everything I can at someone else’s expense. That flies in the face of your contention that Rand was a predator and that people who believe in rational selfishness are evil sociopaths.
One must always endeavor to provide customers with a value for a value given. You do not grow a business by selling a $5.00 hamburger made from horse meat and cooked to the point of being shoe leather.
Maybe, but at least then you’d have demonstrated that there’s something in that empty head of yours but air and the occasional conspiracy theory. That’s gotta be worth something to someone who fancies himself to be an intellectual. Intellectuals have smart things to say every now and then and aren’t so reliant on deflective ad hominem that serve to hide their lack of knowledge..
“So what is your point? You have only given ad hominem.”
I guess the new troll handbook, learned at the feet of many of their betters here, is to parrot back ones own phrases, in the vain effort to taunt. The cogent deconstruction of your Goddess has been made time and again, but to the religiously enthralled their mystical belief system underlies their own self-esteem and their needed rationale for their anti-social inclinations. Thus they are unable to even comprehend logic contrary to their beliefs.
When I use ad hominem I admit it, in fact it was via such admission that you began to parrot it back to me. Calling Rand a hack writer is not ad hominem, it is merely an informed critical description of her literary skills. You’ve never once answered criticism of her ideas with anything but vain hopes, magical thinking and attempts to change the subject. Sadly, like any Religious Fundamentalist, you are blind to anything that might shake your faith in your prophet.
Mike S.,
After reading SG’s post upon post of his expertise in philosophy…Why would anyone want to disagree…The only thing you, I or the blawg will get is some snarky response from one of the Trio’s…..
Mike Spindell:
You do understand that the Rupert Murdoch story would make a good plot for a novel dont you? I am not saying they are identical only that the notion is not absurd. The idea that an employee of a newspaper working against the owner of the paper to bring him to his knees because he disagrees with the owners philosophy. I personally would like to know the political orientation of the reporters who did the hacking, I have a feeling it might be very interesting.
Come on Mike is abstraction such a hard thing for your concrete bound mind to understand.
>Mike Spindell: What’s the matter SG, did they laugh at your trying to quote Rand as they gave you an F?
At graduation ,most seniors wore black robe and mortarboard but I paid homage to their complexity-worshipping nihilism with a Hawaiian shirt and straw hat. The dept chair/postmodernist/feminist/dyke/pseudo-expert in philosophy of science handed my diploma to me, saying, “Thank God!” After 25 or so philosophy courses, it necessary that I brand your evasive, rationalizing respect for modern thought to be branded for the intellectual absurdity it is. Modern culture is a toilet and you are one of the turds. [FLUSH!]
Considering there is really nothing completely new, I can accept that she may have read TR (although she would disagree with his progressive policies) and integrated that idea into her own personal philosophy.
The more I read philosophy, the more I see others with similar ideas about individual rights and free market capitalism.
So what is your point? You have only given ad hominem. Especially in light of the fact that her books are still selling very well.
I know you would like to believe she was a hack writer and I also know that if I was a progressive I would be smarting about what she said about progressive philosophy.
Blah, blah, she is a hack writer, blah, blah, she was a predator, blah, blah she was a sociopath. Never a cogent refutation of her ideas.
I dont think you have a cogent refutation and neither does Buddha is Laughing/GeneH or Tony C. I am still waiting to see one on this blog.
Sorry for the double post I still had the text from my first post in my leave a reply box and added to it not realizing I had already posted the first part.
“Notice how they’ll accept anything except a man who stands alone. They recognize him at once . . . . There’s a special, insidious kind of hatred for him”
This is a very interesting quote in that it mirrors Teddy Roosevelt’s theories developed in his nine books dealing with the history of the west. It seems TR believed in the theory that the history of America was driven by singular (Anglo-Saxon) heroes leading the fight against the barbarian hordes of Native American’s, Blacks and non Anglo Saxon immigrants. Naturally, he saw himself as one of those “heroes” in the making and that later informed his political career. From this he developed his theories of Nationalist Imperialism. He became a “heroic” man who stood alone by spending two years on his Wyoming Ranch hunting, driving cattle and having himself appointed Deputy Sheriff for some months. He returned to write 2 books on his adventure on the frontier and 7 on the history of the western expansion as a metaphor for the rise of the US.
In that same vein a certain author, with limited literary skills, saw herself as a person standing alone to bring leadership and focus to a nation awash in the ideology of community. Her disciples included that singular heroic figure Alan Greenspan and a young fellow she took to be, made her intellectual heir and then disowned her. The ability of a human being to add grandiosity to their own life narrative is unbounded and the reason why we should never trust easy theories of extraordinary men leading us out of our travails.
Makes me think, were any of that author’s main heroes not Teutons or Aryans?
“You mean like a reporter hacking phones and bringing a Hearst like publisher to his knees? Like life imitating art and vice versa?”
No actually, this was a columnist who led millions with his Architecture Column. Um…do you know who the NY Times Architecture Columnist is,
or the NY Post, or the London Times, or even the Wall Street Journal? go back and read the book. The true believer, under the spell of their Guru, twists all contrary evidence to somehow keep believing the Dogma they’ve swallowed whole. This is a barely conscious act since their thinking is so clouded by the Dogma and their self-esteem so bolstered by it, that their reaction is almost automatic.Interestingly that is a state so distant from Rand’s concept of a man standing alone against the tide and winning. Perhaps it is that mythology is only a metaphor taken as real by the gullible and the self-serving.
“Notice how they’ll accept anything except a man who stands alone. They recognize him at once . . . . There’s a special, insidious kind of hatred for him”
This is a very interesting quote in that it mirrors Teddy Roosevelt’s theories developed in his nine books dealing with the history of the west. It seems TR believed in the theory that the history of America was driven by singular (Anglo-Saxon) heroes leading the fight against the barbarian hordes of Native American’s, Blacks and non Anglo Saxon immigrants. Naturally, he saw himself as one of those “heroes” in the making and that later informed his political career. From this he developed his theories of Nationalist Imperialism. He became a “heroic” man who stood alone by spending two years on his Wyoming Ranch hunting, driving cattle and having himself appointed Deputy Sheriff for some months. He returned to write 2 books on his adventure on the frontier and 7 on the history of the western expansion as a metaphor for the rise of the US.
In that same vein a certain author, with limited literary skills, saw herself as a person standing alone to bring leadership and focus to a nation awash in the ideology of community. Her disciples included that singular heroic figure Alan Greenspan and a young fellow she took to be, made her intellectual heir and then disowned her. The ability of a human being to add grandiosity to their own life narrative is unbounded and the reason why we should never trust easy theories of extraordinary men leading us out of our travails.
Makes me think, were any of that author’s main heroes not Teutons or Aryans?
“It is fear that drives them to seek the warmth, the protection, the “safety” of a herd. When they speak of merging their selves into a “greater whole,” it is their fear that they hope to drown in the undemanding waves of unfastidious human bodies. And what they hope to fish out of that pool is the momentary illusion of an unearned personal significance.”
“Notice how they’ll accept anything except a man who stands alone. They recognize him at once . . . . There’s a special, insidious kind of hatred for him. They forgive criminals. They admire dictators. Crime and violence are a tie. A form of mutual dependence. They need ties. They’ve got to force their miserable little personalities on every single person they meet. The independent man kills them—because they don’t exist within him and that’s the only form of existence they know. Notice the malignant kind of resentment against any idea that propounds independence. Notice the malice toward an independent man.”
“A [second-hander] is one who regards the consciousness of other men as superior to his own and to the facts of reality. It is to a [second-hander] that the moral appraisal of himself by others is a primary concern which supersedes truth, facts, reason, logic. The disapproval of others is so shatteringly terrifying to him that nothing can withstand its impact within his consciousness; thus he would deny the evidence of his own eyes and invalidate his own consciousness for the sake of any stray charlatan’s moral sanction. It is only a [second-hander] who could conceive of such absurdity as hoping to win an intellectual argument by hinting: “But people won’t like you!””