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?
Mike,
These guys ain’t worth it. Your time and passions can be better spent elsewhere, especially when they have the chance to take a greater toll on you then they do on most of us.
“I agree Mike it is what it is.
How are you doing ?”
Bdaman,
I’m great, how’s Mom? I see you’re into your schtick again, you pot boiler. 😉
I just put mine in and it says Stephen King for me too.
I have had my writing analyzed. I write mostly like Robert Louis Stephenson, with a strong touch of Stephen King and H. P. Lovecraft. Where did that come from?
I ran Kd through the “I Write Like” web site and it said the writing style is most like David Foster Wallace. Frankly, I never heard of that writer, but The Google says he hung himself in 2008. One NYT reviewer characterized his writing as, “manic, human, flawed extravaganza.”
In any event neither Gene being Buddha, nor you being Byron makes a difference.
I agree Mike it is what it is.
How are you doing ?
“That is why people dont like to help just anyone, they want to help people who have value to them.”
Spoken like a true sociopath. In your Universe “value to them” of course means people able to be used to make life better for those with your psychological deficit. Love for you is never unconditional, but only based on seeing others as “property” for your narcissism.
“so what you are saying is that I will protect my son and daughter?”
No I’m saying that it is genetically good strategy to actually protect people beyond your own family and that is what science has postulated.
“So are you saying then that since Gene H mimics Buddha is Laughing he is Buddha is Laughing?”
You know I didn’t say that, unless your reading comprehension is less than I think it is. I said you are very similar to and probably are Byron. In any event neither Gene being Buddha, nor you being Byron makes a difference. Both Buddha and Gene exhibit a brilliance, this article an example thereof, that makes the dim sparkle of you and your cohorts intellects seem shopworn and tawdry. I will admit though that it is breathtaking to observe the degree of hubris presented by all of you in your vain pretense at having anything approaching intellect. And no that is not ad hominem because it is based solely on the poor quality of your writing and of your intellects. Hilarious though that you probably see yourselves as “Superior Man Standing Alone Against the Wormy Collectivists of the World.” Superior, you guys, fat chance.
“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.”
Now to give another example of how you all have such shallow simplistic understanding of history, back then “Progressive” stood for people who felt the great industrial leaders should lead the masses who were too lowborn to play a vital role in democracy. He was a thoroughgoing capitalist/elitist. He broke up the Trusts because they interfered with market freedom, not because he was on the side of proletarians.
Roco, you really need to understand that I’m not coming after either of you with full barrels blazing, more like I’m shooting spitballs. Not because I can’t destroy your every point with facts and backup material, but because you all are far too superficial and intellectually limited by your silly beliefs to waste my time on full rebuttal. You all defend an indefensible proposition, throw up
strawmen for you to vanquish and are too religiously enthralled to even admit chinks in your armor. I’ve come by my intellect the hard way, I’ve earned it. That’s why I can admit when someone has bested an argument I’ve made. I’m invested in finding the truth, you all are invested in the mutterings of a hubris-tic hack.
Gene you might want to listen to that Styx song again.
I know and I know that you know I know.
It’s all good, I told you, I like it. I just think it’s funny cause I know your just dying to let it rip but you are having to bite your tongue.
Mike Spindell:
so what you are saying is that I will protect my son and daughter?
Doh, you needed to read a book to figure that out?
WTF?
That is why people dont like to help just anyone, they want to help people who have value to them. You do understand you just made a case for eliminating the welfare state?
Sorry to burst your bubble, bdaman, but the only thing it sounds like is that some people have an overactive imagination. In artists, that can manifest itself as creativity. In children, it can manifest in a sense of play. In misguided people, it can manifest as sense of paranoia. Once again and for the last time, if any of you want to think I’m anyone other than myself feel free to do so, but I’d appreciate it if you’d think I’m Leonardo DiCaprio or perhaps Johnny Depp since he seems to be particularly popular with the ladies posting here. Do any of you have something topical to add to this conversation? If not, then might I suggest you move your snipe hunt to an older thread. I would like to take this opportunity to remind you that the topic of this thread is what makes a good law and what makes a bad law, not “Where’s Buddha?”. If you think that I have a similar writing style to Buddha Is Laughing, being that I rather enjoyed the posts of his I’ve had opportunity to read, I’m simply going to take that as a compliment. If you want to take any similarity between how either of us writes and make me the “Buddha Boogey Man” in your mind, I am completely unconcerned although mildly amused by your overactive imaginations. He said he was taking his leave and would be back at some point. If you have issues with him, please and by all means take them up with him when he returns because, quite frankly, I don’t care aside from the fact you’re wasting space with something that is just about as off topic as it can possibly be. BiL must have really put the screws to some of you to have you jumping at shadows. For what it’s worth, the “I Write Like” website thinks I write like Edgar Allan Poe. Think what you like, but let’s try to stay at least mildly and tangentially topical before I have to send out the ravens or brick one of you up in a wall.
As an aside, you’ve once again mistaken me for somebody who takes anything you say seriously, kderosa.
@Gene H: I’d like to make it clear my criticisms below are analytical arguments in the style of peer-review (but I am not an attorney). A criticism does not mean I reject your thesis, or even your conclusion, it means I think some assumptions or claims are unjustified.
I spent 25 years as an industry consultant, but I am currently an NTT full-time research scientist at a university. So with that background context:
1) “These parameters include the ‘truths self-evident that all men are created equal, …’ ”
2) From the standpoint of logic, I have no problem with simple axiomatic principles. Anybody that disagree with an axiom are free to try and develop a coherent system without it; that is how alternative geometries are made! But of course in any argument the axioms in use are the common ground; if we do not share those we have no common ground for discussion.
To be clear about what I mean by “axiom” (since some readers seem to have a different definition than mine), an axiom is a statement that is so self-evidently true that no proof is needed. For example, Euclid claimed as axioms that parallel lines never meet, and that the shortest distance between two points was a straight line, that points had no dimension, that only one line could be drawn between two points, etc. To Euclid these were too obviously true to be broken down any further; to him and his peers these were the indivisible units of geometric argument. The proofs in standard middle-school geometry all rest upon the axioms collected by Euclid and the conclusions one can draw from them. Self-evident claims lead to not-so-self-evident truths; like the sum of the interior angles of a triangle is PI radians, or the Pythagorean theorem.
However, as I said to Gyges above (not realizing you had posted), these rights the Founders proposed in the Declaration are not so unalienable; from the point of view of a 1790 horse thief about to be legally hanged. If they are not always true (as in, one forfeits a right to life for stealing a horse) that implies some further structure beneath the veneer; it implies there is some more fundamental axioms that are always true.
3) “Absolutism allows for neither unforeseen circumstance nor effect. It is a rigid form of thought. This is why I was careful to point out that absolutist systems are incompatible with formulation of a framework for deciding what makes a good law or a bad law.”
I’m not so sure of that! Geometry is absolute, mathematics is absolute, physics is absolute, even chemistry is considered absolute. Even if these sciences are all imperfectly understood (as is my professional opinion), at the bottom of the pile we know that protons are not electrons, and one plus one really is two, and the Pythagorean theorem applies to absolutely all right triangles (in Euclidean geometry).
Our most successful systems on this planet, in terms of efficacy and understanding and applicability, have an absolutist foundation, and I believe we can find an absolutist set of axioms for governance. I believe politics CAN be treated as a science of governance; in my view that is what you attempt to do even now. Why not figure out the axioms first, and prove from the axioms the necessity of any less-self-evident-law?
Then if, in the future, an application of the law produces some abhorrent result that is itself self-evidently wrong, if metaphorically speaking 1+1+1 turns out to be 3.01, then this is the beauty of science: We can trace the discrepancy to an axiom that can be corrected or replaced. Newton’s laws were absolute, but failed to explain the Michelson-Morley experiment. Newton’s axiomatic assumptions required change; eventually those changes became special relativity, which also explained a few other anomalies, like the orbit of Mercury (always off by a bit using Newtonian gravitation). Special relativity is (almost certainly) known to be flawed as well, with no evident replacement in sight.
For another example, the Greek idea that an atom of an element could not be divided was proven wrong. But physics did not collapse; it discovered a more powerful predictor and rewrote its axioms. Now protons and neutrons and electrons could not be sub-divided, and we discovered the science of isotopes, anions and cations, we understood electricity. Then the indivisibility of protons and neutrons was proven wrong. But physics did not collapse, it discovered a more powerful system of quarks and a zoo of observable particles that led to quantum electrodynamics that can explain 99.9999% of experimental outcomes.
The flexibility in science does not arise at the end, as with judges having the discretion to bend the law to create equitable outcomes. In science our flexibility is in the foundational assumptions: If some experimental result in science contradicts our predictions, then that means somewhere in our chain of reasoning, something we are certain is true is actually not always true. We have an axiom that is not absolute, but is conditional. It has a sub-structure. For example, atoms are usually indivisible, but experiments prove not always indivisible. It needs to be fixed, but in a way consistent with all previous experiments, while simultaneously explaining the newly found discrepancy.
The Founders failed to establish their axiomatic truths. They proposed a few unalienable rights, then immediately passed laws that made them alienable (like the death penalty). To their credit they included the Bill of Rights as an Amendment to the Constitution, but Amendments can be legally overridden by a super-majority vote. That hardly seems “unalienable” to me.
4) “Inevitably entering into the social contract of a society requires some sacrifices of rights …”
Although I agree with the sentiment, I disagree with the formulation of this sentence; because it implies the social contract is a choice. It typically is not; infants are born and start involuntarily accumulating a debt to the society into which they were born. This is the nature of humans, we do not choose to be American or Egyptian, or to be raised Christian or Muslim or Buddhist, we do not choose our first language as French or Swahili. We do not choose our formative society; it is, in essence, imposed upon us.
As I have discussed with Buddha in the past, the “social contract” is a bad metaphor. By the time we mature to the point where a choice could be made, the effects of growing our brain in our birth society are already accomplished, for good or ill, and cannot be undone without enormous difficulty.
5) “It is this very intrusion upon rights to create justice that mandates flexibility in the evaluation of what constitutes a good law.”
I suppose flexibility in evaluation is okay, I am not sure if you intend an escape hatch here or not. If I review a paper for a journal (and I have done several times) I expect originality, that is the point. In fact I will reject the paper if it is not original — So is that flexible, or inflexible?
Were I a lawmaker, I suppose it is entirely possible a proposed law addresses a problem that I had never considered before. I am not sure why flexibility is “mandated” however; if the problem is real, why wouldn’t we consider solutions to the problem just like anything else?
I guess I do not understand this demand.
6) “Mespo’s list:
6.1. addresses a need;
6.2. is readily understood in purpose and in operation;
6.3. conforms to our principles;
6.4. enjoys overwhelming support;
6.5. affects and protects everyone;
6.6. and reflects what is best about us — not what is worst”
Why 6.4? Civil rights should not be subject to majority rule. Otherwise, 98% of Christians can deny life to 2% of atheists. Atheism does not enjoy overwhelming support, and I doubt it will anytime in the next hundred years. By majority rule, the 90% of heterosexuals can persecute the 10% of gays, the Christians can persecute the Jews and Muslims, the whites can persecute the non-whites.
What happens if a super-majority of people do not believe in freedom of religion, or freedom of speech, or freedom of the press? Take a poll of Americans today on whether Julian Assange (Wikileaks) is a journalist or a criminal (or possibly a terrorist) and the results are both alarming and pitiful; more than half of our population does NOT believe in freedom of the press they do not like, or freedom of speech they do not like.
Civil rights should not depend upon popular support; the whole point of a civil right is that one does not require the approval of the majority to exercise it.
I disagree completely with 6.6, it is far too subjective. Who decides “what is best about us,” and using what axioms? Show me the rules or the axioms and let us debate those, not platitudes with no concrete meaning. I know you cite the Constitutional principles, but I disagree. The Constitution is subject to change by even a 50.1% majority of citizens, if they play their cards right, and I do not think human or civil rights should be up for a vote. I think the Founders got that wrong.
For example, some people think that religion IS what is best about us; and in their eyes “sin” is what is worst about us, and therefore murdering an abortion doctor is justice in the name of God Almighty: A life for a life, after all. By the same token the homophobes believe that restricting the freedom of gays to keep them away from their kids and keeping their views out of the public square is the best for society and as kind as we need be to them; the Bible mandates death for homosexuals as well. The homophobic say that kids are our future, unless the kids are gay, then they are a biological dead end and should be forced to procreate heterosexually.
I like Mespo, but what is best and worst about us is in the eye of the beholder, we certainly need something less aspirational and more precise than that.
7) “Laws should be as simple as possible.”
Agreed, and agreed on the tax code.
8) “The 1st Amendment provides a fine example of a good civil right that can be protected in such a way to make infringing upon it extremely difficult if not impossible.”
Not really. We have had Amendments to the Constitution before, the First can be amended too. That may be “impossible” in the current political context, but in the wake of 9/11, the American people seem willing to tolerate an awful lot of abridgment of their rights in the name of “safety.”
9) “So what makes a good civil right?”
I submit the answer to that can be found by applying a version of the scientific method to politics; which to my knowledge has not been done (but I am not a political historian; either).
Although the Declaration and Constitution espouse principles with which I wholeheartedly agree, I think the current state of corruption in American government, from the city councils to the US Senate, clearly indicate a failure in the design of our Constitution and political system that should be rectified.
There is one Tea Party demand that, as a scientist, I would modify slightly and make a part of the Constitution: I too would like to see every law passed “proven” by citing the relevant Supreme Court rulings and constitutional paragraphs that the lawmaker believes gives his body the authority to pass said law. I would also require such “proofs” pass peer review with a randomly selected jury of qualified judges / attorneys; and referred to open court review if they fail in that review.
My interpretation is that most of the Constitutional Rights were designed to restrain the government from tyrannizing the citizenry. I think that is a result of the Founders solving the most recent big problem they had, being tyrannized by a King. Which is fine; but it doesn’t go far enough in preventing the other forms of tyranny that arose in the industrial revolution.
To me, the first function of government is to protect the weak from the strong. There are other functions; such as exploiting the economies of scale that can be achieved on many products and services we all need anyway, combined with the savings that can be achieved by doing what only a government can do: Running a zero-profit operation with civil servants. Government can also take a far longer view on investment and research than any private industry or individual that needs a return within a lifetime.
But I see the primary function of good government, from the tribal leader of twenty on up to the national stage, as keeping the bullies at bay. It is why we have the military, the police, the courts and criminal law, it is why we enforce contracts and lawsuits even on huge corporations, it is why we have anti-trust laws, and OSHA, and employment laws, and product and food and medicine safety laws.
I am not sure there is just one fundamental qualification for what should be a good civil right, but I think one candidate qualification is if it serves to protect the weak from the strong that would exploit their desperation, gullibility, ignorance, poverty, fear, pain or disability for personal gain. Among the strong would be the government itself; and the Bill of Rights is a valiant attempt to handcuff government tyranny. I just do not think that is sufficient to meet what I regard as the first function of government, to protect the weak from the strong.
bdaman:
you are a comedic genius, that has to be a classic and so apropos.
Roco here’s one just for you.
Buddha where ever you are and who ever you are. This is for you buddy.
Get up, get back on your feet
You’re the one they can’t beat and you know it
Come on, let’s see what you’ve got
Just take your best shot and don’t blow it
You see the world through your cynical eyes
You’re a troubled young man i can tell
You’ve got it all in the palm of your hand
But your hand’s wet with sweat and your head needs a rest
And you’re fooling yourself if you don’t believe it
You’re kidding yourself if you don’t believe it
How can you be such an angry young man
When your future looks quite bright to me
How can there be such a sinister plan
That could hide such a lamb, such a caring young man
“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.”
You really are a stupid clown, smug in your ignorance. The Selfish Gene, the book I referenced about genetics was written by Richard Dawkins. Do you even know who Richard Dawkins is, you ill mannered lout?
http://en.wikipedia.org/wiki/The_Selfish_Gene
http://en.wikipedia.org/wiki/Richard_Dawkins
I made it easy for you to realize what an ignorant young man you are. Dawkins is probably the leading Atheist in the world, in addition he was the
University of Oxford’s Professor for Public Understanding of Science from 1995 until 2008. I quote:
“From the gene-centred view follows that the more two individuals are genetically related, the more sense (at the level of the genes) it makes for them to behave selflessly with each other. Therefore the concept is especially good at explaining many forms of altruism, regardless of a common misuse of the term along the lines of a selfishness gene.”
You a biologist SG, or does reading Rand give you more scientific knowledge than biologists? Do you think biologists writing about biology are writing philosophy? Dawkins book was published in 1976 adding to the work of Williams another biologist. After Dawkins came many more scientific theses backing up that human selflessness has many positive biological and anthropological characteristics. This is just a brief example of how smugly ignorant you and your “wingman” are.
Better watch it, now that the mask is off, GeneH might evert back to his nasty Buddha ways. Though, honestly, the GeneH persona isn’t much better.
Buddha will post a comment again to maintain the illusion, like he did a couple of days ago.
He turned the bag into a bowl OMG
People always told me
Be careful what you do
Don’t go around breaking young girls’ hearts
And mama always told me
Be careful who you love
Be careful what you do
Because a lie becomes the truth heh heh
Buddha Gene is not my lover
She’s just a girl who
says that I am the one
But the kid is not my son
She says that I am the one
But the kid is not my son
Almost forgot: they both have fragile little egos. GeneH appeared right after Buddha was mocked for not being asked to guest blog. Then he got mocked for being a bad writer and an unstable personality. That must have driven him over the edge– and he pulled the old switcheroo. You can bet that Buddha will post a comment again to maintain the illusion, like he did a couple of days ago.