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?
Budha disappeared and GeneH appeared practically on the same day.
Also, that guest blogging request had to have been floating out there for quite some time previous to GeneH’s appearance.
Very good observations kderosa thats partly what did it for me as well
Also how the regulars practically were tripping over their feet over him when he first started posting. AY’s comment was the dead give away for me.
Like I said I like it and it’s nice to see Buddha, I mean Gene has turned over a new leaf 🙂
Roco, Buddha is Laughing is just another of Gene Howington’s sock puppets. Budha disappeared and GeneH appeared practically on the same day. GeneH, in true sock puppet fashion, compliments Buddha. Neither have commented on the same thread. And they both use the same dopey argument techniques. Zero substance, lots of factual mistakes, continual redefinition of terms in an attempt to “win” argument, lots of repetition of trite ad hominem phrases as a deflecting technique, not afraid to take extreme positions no matte how bad or stiupid it makes him look. Also, that guest blogging request had to have been floating out there for quite some time previous to GeneH’s appearance.
Bdaman:
what are you saying?
That I got you dialed in.
http://www.sat-gps-locate.com/
AY:
that is news to kderosa and Stephen Grossman then.
We might hold similar beliefs but we are definitely not the same person.
Get out a little more AY there are plenty of people who believe capitalism is a good and moral system.
But it is funny.
Roco, et al
I don’t think. I know you are all the same. Think about it.
Bdaman:
what are you saying?
Stephen Grossman:
excellent points.
I hope you stay and post some more. I imagine others dont share my enthusiasm.
I also took your story about graduation and the turd not to be a zing to Mike Spindell but what the dean said to you. And your way of showing how truly intellectually bankrupt the dean was. Is that wrong or right.
Gene sounds like Buddha.
Gene is Buddha and I like it. Good job Gene. You are much kinder and nicer now that the mask has been taken off.
Speaking of the mask,
they call me Cuban Pete
I’m the king of the rumba beat
When I plays the maracas I go
Chick-Chickie-boom
Chick-Chickie-boom
Mike Spindell:
Well I guess he has a pretty good business sense then. I know hundreds of people who talk about their business and employees like I do. Where do you think I learned it? You talk to people and you pick up good ideas.
You must live a very sheltered life, I bet many of the government employed mental health people talk like you do.
I think AY thinks kderosa, stephen grossman and I are the same person as well.
Man you all are simple creatures. Maybe it is done so as to avoid contemplating that larger numbers are not part of the collective.
So are you saying then that since Gene H mimics Buddha is Laughing he is Buddha is Laughing? Is that what you are saying? How do you know that? I just thought Gene H said some things Buddha is Laughing has said in the past. But I see that hit some kind of nerve for a response like that.
Hmmm interesting. Others had some suspicion that Buddha and Gene were the same person. In fact I was making fun of that by saying Buddha and Gene had a collective consciousness.
Do you know something the rest of us don’t?
>I’ve read all of her major works
Curiously enough, tho, your posts contain no evidence of that. Perhaps you know youre incapable of understanding and/or refuting her ideas.
>the plentiful biological and anthropological material available that that sacrifice can have a genetic basis, even for people not directly related to one’s bloodline.
Science is based on philosophy, not the reverse. Sacrifice is a volitional, not teleological (biological) action. Genetic action is relative to life, w/o moral characteristics. A gene may split or combine, etc. These are not the moral choices of a person w/free will. Only volitional action is moral or immoral, selfish or selfless. Genetic science will discover many facts but none about morality.
>Not only are you a close-minded, religious acolyte
Religion is based on faith in an impossible supernatural realm. Rand was systematic in deriving all ideas from perception, as she frequently and explicitly stressed. Given your claim to know her ideas, your claim that her ideas are religious is a lie.
Rand opposed the active mind to both the closed and open mind. Strange that you dont know this…
> Name me one prominent person who calls themselves an altruist?
On Earth or your planet? Mainstream public voices frequently invoke altruism, whatever terms they may use, sacrifice, compassion ,helping others, duty to society, etc. Perhaps, however, you think that only ideological altruism is altruism. Americans are Pragmatists who like God, individual rights, selfishness, sacrifice, socialism and whatever strikes their fancy at any moment. Perhaps this blog’s evasion of ethics is a recognition that altruism is not rationally justified. Just a thought but worth pondering…
“Sometimes he sounds just like Buddha is Laughing.”
Ya think?
http://youtu.be/qQTqKcojrVY
“Sometimes he sounds just like Buddha is Laughing.”
Gee Roco,
Gene sounds like Buddha. That’s funny because you sound and write and believe exactly like another troll we had here sometime back, last named Byron. It’s really interesting to because he used to talk of his business the same way you talk of yours. He stopped coming around when he was found to be posting under other people’s pseudonyms, attempting disinformation.
The resemblance is amazing and I’ll bet many of the old timers around here would agree.
“Have you read even one essay by Rand?”
As I’ve said before I’ve read all of her major works. Besides that young man I listened to all night discussions with Nathaniel Brandon three times. during the late 50’s on NYC’s radio’s Long John Nebel Show.
“You further lie by sleazily suggesting that sacrifice has a rational justification.”
Not only are you a close-minded, religious acolyte, but you have little knowledge of the plentiful biological and anthropological material available that that sacrifice can have a genetic basis, even for people not directly related to one’s bloodline. Start you limited education with “The Selfish Gene” and then continue reading. Oh wait, you won’t do that because what would happen if your faith was disturbed, there would go your identity.
“_Atlas Shrugged_ speaks truth to altruist power.”
A the “strawman” argument rears its head. Name me one prominent person who calls themselves an altruist? Atruist and altruism are descriptive adjectives given of other people. Altruism barely exists”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!”
“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!”
My weren’t you the brave one in your own mind. To others it probably seemed immature and as stupid as that religion you believe in.
“Modern culture is a toilet and you are one of the turds. [FLUSH!]”
If modern culture is a toilet, your intellectual mentor bears a good deal of responsibility, Especially give her acolyte Greenspan having run the Fed and helping to create the religion of unlimited greed. As for your childish insult to me, since I know the limits of the source, it misses its mark. Especially because I think all scatological humor infantile. however, thinking about you mechanically priggish personality it might make good sense if you were as anal retentive as your screeds.
Stephen Grossman:
““Constructs” is your sleazy term for the absurd claim that ideas are subjective, a claim you implicitly deny in claiming my ideas are false and yours true. And if subjectivism was valid, then your ideas would be as worthless as any others. But contradictions dont bother nihilist destroyers.”
I was thinking the same thing myself about what Mike Spindell said about me. How can he be alone be right?
They do that a good deal, contradict themselves without evening realizing what they are doing.
My favorite one though is when they use principles to prove principles dont exist. It is quite entertaining.
Buddha is Laughing is the worst of them though followed by new comer Gene H. Sometimes he sounds just like Buddha is Laughing. I imagine they probably believe in a collective consciousness.
>[Mike Spindell] Who here calls themselves an “altruist” I certainly don’t. I don’t trust those who presume to be “altruists”
You evade identifying the necessary altruist base of the collectivism that is assumed w/o proof here.
> a shallow, pseudo-philosophy.
Arbitrary claim, w/o evidence; as if you said nothing.
>Both are merely self-serving constructs used to bolster weak ego’s.
Arbitrary claim, w/o evidence; as if you said nothing.
“Constructs” is your sleazy term for the absurd claim that ideas are subjective, a claim you implicitly deny in claiming my ideas are false and yours true. And if subjectivism was valid, then your ideas would be as worthless as any others. But contradictions dont bother nihilist destroyers.
Fallacy of psychological egoism: confuses psychological motives w/chosen ideas which are true or false. Every behavior is motivated, selfish or selfless, because man is a living organism. Motives may be moral or immoral and you evade that. More, “self-serving” depends upon what does, objectively, further man’s life and what does not. Merely because one wants something does not make it self-serving. Many wants are self-destructive. Rand’s “new” theory of egoism systematically distinguishes values which further and destroy man’s life by a rational standard.
It is obvious that a sister should not have sex with her sister, that is well understood. What you need laws for is to prevent the brother from doing both of the sisters at once.
>[Roco]“Notice how they’ll accept anything except a man who stands alone.”
Right on the ol’ schnozzola, bubie! The very thought of independence soils their pants. They have rejected man facing the universe for the blind leading the blind. From the sin of intellectual pride to the _Critique of Pure Reason_ to Timothy Leary are small steps.
Gyges,
Understood and that’s why I think explicitly adding enforceability into the criteria mix is a good idea. It was an unintentional omission on my part as I tend to keep utility and function hand in hand in my thinking. My implicit criteria is not going to be the same as others and enforceability is important enough that I should have given it more explicit mention.
Stephen Grossman,
Thank you for illustrating that yours is an absolutist (and extremist) viewpoint and therefor inappropriate for consideration in building the kind of framework for legal analysis as discussed in this column.
Gene,
I was thinking of a laws that might cause good (people feel better) without actually being enforceable.