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?
@Grossman: Insurance does not have to be a profit-making business, Medicare and many foreign government insurance programs prove that.
Simple logic proves that: Take any for-profit insurance company. They compute their profit. It is in the bank. At the end of the year distribute all of that profit to all the policy holders equally. Nothing else in the business need change. Result? Zero profit, working insurance.
Voila, sucker. My sympathies on your wasted life.
Tony C
>Government IS insurance, it is the insurance for your rights, and the taxes are the premium
No, govt is not business, inc. insurance. Insurance is a profit-making business. Taxes are mandatory. Premiums are voluntary. Your sleazy use of Marx’s claim that that politics is economics is, once again, exposed. Production is not the threat of destruction. Life is not death. A is A.
As one rational possibility, people would voluntarily pay for govt-enforcable contracts. The right to non-enforcable contracts would be protected. This would be sufficient to pay for a small govt limited to protecting the individual rights of man. This govt would protect the rights of those who did not pay for govt-enforcable contracts.
@Bron: Do you realize that payment for a service [insurance] is not a tax?
Taxes are payment for services, they are the payment for the service the government provides in protecting your rights and enforcing the law, the vast majority of which cannot be done on an individual basis.
Your right to life is protected by the military, they cannot be organized to protect some people from invasion without protecting all people from invasion.
Your rights to property and contract adherence are protected by the police, they also cannot be arranged to protect some rights without protecting all rights, otherwise they are not rights, and the people protecting them are not police, and court workers, they are paid mercenaries in an anarchic system.
Your rights to be protected from fraud and endangerment are the same; you have to pay because as long as you are a citizen you gain the benefit, there is no way to organize the FDA to prevent food or drugs from being poisoned for some people and not for others.
All of your “solutions” to these dilemmas demand cash and consciousness and the resources to wait months or years for a suit to be settled, while in the meantime you may be without food, shelter, or even that much life left in you. In the meantime you may not be able to even find out who poisoned your food, you may not be able to prove it was the medicine you took that gave you a stroke and left you bedridden, you may not even HAVE anybody to sue.
Plus, lawsuits cost money; lawyers charge, so the only “rights” you grant are to those with cash to buy justice. Again, that is not police, that is just paid mercenaries out for vengeance.
Plus, lawsuits demand you be conscious to prosecute or testify. If you get hit by a car and are in a coma, who files the lawsuit? If you have no family, nobody has standing, even if a charity picked up your body (because after all, if you cannot agree to pay and agree to absolve others of responsibility, why would a for-profit ambulance bother to transport you? If you woke up you might refuse to pay, or you might even sue them for touching you.) So according to your “lawsuit” and “pay as you go” solutions, you do not even have the right to life once you have been knocked unconscious, because nobody on earth has the standing to sue on your behalf.
And last, but not least, lawsuits demand information, and in your system, with no laws to prevent it, information would be held secret. Secrecy works, that is why this country has moved to a surveillance state, keeping everything minimizes the exposure of an organization to lawsuits or prosecution. So your medicine providers won’t reveal their processes or ingredients to anybody, your food providers won’t reveal the contents of their food, your commodity providers will purposely arrange to sell their grains, sugars, vegetables and meats such that it cannot be traced back to them, and everybody, everywhere, will demand you sign a contract with them before you buy anything so that they cannot be held liable for any damage ever.
So it will be anarchy plus paperwork, you won’t be able to sue anybody that sold you infected food or bad medicine, unless they are so stupid they would deal with you without a contract, in which case, in your world, they are homeless and penniless and have nothing for you to gain, so a lawsuit would be pointless.
The system you describe doesn’t work. Government IS insurance, it is the insurance for your rights, and the taxes are the premium, and they are mandatory because no other system would work: The protections are for everybody, the police cannot check for your citizenship when somebody is about to kill you with a baseball bat, or holding you hostage in a robbery gone wrong.
What do I buy a thread on its sixth month anniversary?
Tony C:
Stephen is right about the insurance company. A farmers cooperative is a collective as well. But it is voluntary and not forced.
Just admit you are a Marxist, acceptance is good for the soul.
I may be a sucker but at least I dont have the human loathing temperament to send individuals to concentration camps. Of the 2, I’ll take sucker any day of the week.
Tony C
>The insurance company is a collective effort
But collective is not collectivism. You, presumably, wear shoes but are not, presumably, a shoeist. Rational man may join with others for his own selfish benefit. Rational man does not think the joining is more important than his selfish purpose in joining. Nazis and Marxists and other collectivists, however, subordinate the individual to a mystical Society, an allegedly real thing that may forcibly collect sacrifices. The US destroyed two such polities in the 20th century. And a third self-destructed later in the century.
Individual rights are the moral purpose of govt.
Tony C:
>“Do you even realize that rebates are a form of tax policy designed to encourage a particular kind of behavior?”
This is the Marxist evasion of the mind/force difference. But Tony C denies any Marxism so I must be wrong. And yet, curiously enough, there it is ,in black and white, you should excuse the expression. Eg, a thief sticks a gun in Tony C’s face and says, “You forgot to pay your taxes! Tony C says, “Well, since you put it that way…”
Tony C:
“Do you even realize that rebates are a form of tax policy designed to encourage a particular kind of behavior?”
Do you realize that payment for a service [insurance] is not a tax? It is a mutual transaction between 2 parties. A rebate is not a tax it is a calculated sum of money to reward a company for decreasing the financial liability of another company. It is one company sharing the profits with another company who helped create those profits by means of a safe working environment. It benefits both companies. I will concede that this particular rebate changed behavior although it is not a tax.
Taxes do change behavior but most of the time the taxes are used to change some perceived social problem and have little to do with market realities, they are mostly used to subvert rational human behavior. The difference between giving someone a tax break to do something government wants them to do and giving someone a rebate because it will help your company are worlds apart. Once is force or coercion the other is a mutual, beneficial, voluntary transaction.
There is a world of difference and it is no coincidence that you dont understand that given your propensity for totalitarianism.
I may have wasted my life but at least I dont have the intellectual temperament to send people to concentration camps.
Blouise
> it takes ages to load this thread
It should be broken into pages for each month or 1/4 year, etc. Perhaps the videos should be deleted after some time or have only a link to them.
Tony C.
>@Grossman: “Definition by non-essentials” doesn’t mean anything to me,
Definition by essentials is used by everyone and has been a part of intellectual discussion since the Greeks.
So your psychological research is as important to understanding what you have done with your life as the time you spend sitting on a toilet? OK. Your social egalitarian consistency is perversely admirable. So definitions are merely social reporting rather than the widest property of a concept ,the one that explains most of the other properties and most distinguishes that concept from all others? So the color of a house and that fact that its a man-made structure for man’s habitation are both equally important in knowing what a house is? And Nazism is equally Hitler’s mustache and (as a hopefully neutral definition) elitist collectivism? Both are equally important in understanding Nazism?
Scientists must define their concepts by the contextually widest property.
The alternative is chaos, as you well know when you sneak in a little introspection. Your rationalizations of evasion are increasingly absurd.
Okay … I take this thread seriously but also want the 2.050 distinction.
Just wanted to indicate I’ve been here and read the latest …. it takes ages to load this thread
@Bron: And before you start to sputter, insurance is a collective exercise, exactly like government (except more expensive because government is a non-profit).
The entire rationale of an insurance company is that always paying something close to the average cost is far better than ever having to pay the maximum cost; that is part of the rationale in government taxation for the purpose of police and military protection as well.
Just like police protection, most people do not need it and are not victimized by criminals, but those that are get protected.
The premium to a private insurance company for protection are exactly analogous to the taxes paid to government for protection; and a rebate on safe practice is exactly analogous to a tax rebate for safe practice; such as making burglar bars or alarm systems tax deductible.
The insurance company is a collective effort (and an insurance company can be a non-profit, by the way), there is no other way to describe it. But I am sure you will try to find a way to deny it.
Grossman,
Once again, you’ve managed to type a lot of words that don’t mean anything.
*************
Bron,
Cats. No cats. I’m not the one living in a fantasy land where being a selfish greedy asshole is a positive character trait. Unless you have something to say that substantively refutes the case made against Rand and lassez-faire capitalism as a basis for law and justice (which you have proven time and again that you don’t), I’m really not interested in your opinions about me personally (or in general). I value the opinions of animals more than I value the opinions of sociopaths. However, if you simply wish to continue displaying how weak the ground you stand upon is by stomping you feet and screaming like a child who wants all the cookies in the face of logic, reason and facts? Be my guest.
@Bron: Wow, I nearly laughed out loud. Do you even realize that rebates are a form of tax policy designed to encourage a particular kind of behavior? By your own account, that tax policy worked. So exactly what was it about collectivism that failed?
You have missed the larger point that collectivism is a necessity to ensure rights. And you miss the obvious point that if everybody needs something, collectivism without profit is the cheapest way to provide it: Everybody gets it at cost.
I think I will just start pointing out the logical arguments you idiots refuse to answer. Of course neither of you can EVER refute them, so you choose to ignore them, because I have destroyed any reasoned basis for your infantile philosophy, and you would just rather not admit to yourself you have been such a gullible fool.
@Grossman: “Definition by non-essentials” doesn’t mean anything to me, so I presume you are resorting to some Randian bullshit mantra, so I stopped reading. I have no problem discussing something real with you, but I will not be dragged into your Randian fantasy camp. Use plain English or don’t waste your time, my selfish decision is to stop reading at the slightest hint of Randian dogma or rant.
My sympathies on your wasted life, sucker.
Stephan:
dont mention P.I.G.S to Gene H, he will hyperventilate as reality strikes him in the face.
I know a young kid in Spain who is not able to be paid by the Spanish government. And the Greek government wants to provide disability payments to pedophiles and fire bugs.
Tony C:
When things are good, labor get more for their time. Wages and working conditions always improve in prosperity. Capitalism creates prosperity.
I did a paper for my masters degree about construction safety. I took years of data from one company from multiple regions all over the US [yes I know I cannot necessarily extrapolate to all construction companies] but I found that the lost time accidents had a high correlation to the amount of overtime worked. I also found out that construction safety improved once insurance companies started giving rebates for good safety records.
OSHA really hasnt done shit for workers safety. And a good economy does more for workers than any government program.
You and Gene go against human nature and insist on force to conform that nature to your own view of reality. You insist collectivism works, when the great mass of empirical evidence shows it doesnt. Capitalism raised mankind from living as we had for thousands of years to a modern world in less than 100 years. It is not coincidence or critical mass, it was the ideas of political and economic freedom as formulated by the Enlightenment. The theory of individual rights and the idea that men are born free and have rights which no other man can limit.
You mock Adam Smith and Gene thinks Rousseau is the basis for our Constitution. What a motley crew.
Gene H:
I aint the one living with a bunch of cats.
The funny thing is that you read what you say you read and look for vindication for your anti-human views.
You are as angry as Oscar Wilde without the wit.
Gene H
> lassez-faire economics discounts that in a void of rules, the tyranny of bad actors rules.
Capitalism exists within the rule of individual rights. There is no such fact as a market failure because markets are the products of man’s mind ,the mind that must guide action. There is no alternative to mind, not society, emotion or faith. The implication that bureaucrats and voters somehow are a practical alternative to independent judgment is absurd. The production of material values is from man’s mind. Absent mind, there is no production. You evade the historically unique increase in wealth from capitalism and the decreasing wealth as socialism puts a gun between mind and action. The only “successful” socialism is Plato’s _Republic_.
Europe is economically disintegrating as the more capitalist economies are sacrificed to the more socialist, ie, the failures like Greece.