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?
Steven,
Thank you for proving that the experiment is successful. You once again, are showing you are a dolt, a bonifide dolt.
dolt
A person who is stupid and entirely tedious at the same time. Many times they are oblivious to their own mental incapacity.
Mason and Chris are considered the company dolts because they screw up everything they touch.
Gene H.
>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.
And ideological, too.
Your relativist collectivist framework is destructive of individual rights. It should not be built. Nazism and Marxism are relativist collectivisms “good” for certain groups but not for man the rational animal.
Roco
>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.
Glad you think my posts informative.
A zing to Spindell via the vignettes about my former school and modern thought.
KD,
Go back to work in the circus….You are missed…Stupid human tricks are funnier there than here…
@buddha/GeneH, it must kill you to have to use that dopey “mistake me for someone who takes you seriously” line instead your old standby Big Lie/L’il Propagandist closer. Tell me how I inserted a premise into your argument just like “Buddha” used to mistakenly say. Shame about that slip up.
kderosa, bdaman, Jstol, NoWay and Steven Grossman can be called one in of the same. There is very little to almost no difference between the various postings of these trolls. I have run each ones writing style through a complex syntax development software and the probability’s that they are the same person is 89.889% the same. It is not conclusive proof but they are more likely than not the same.
kderosa,
You have really, completely mistaken me for somebody who takes what you say seriously. Concurrently, that means I take what you think as having even less value than your words.
Tony C.,
I think you’ll find those concerns addressed by allowing that absolutist systems that can point to universal truths, like Kant and the scientific method, have value as aspirational goals when defining the utility of laws. However, like perfection, these goals based on universal truth are not always going to be able to be met in practical fashion by society hence considering them aspirational. Where they can be met, they should be met, but pragmatic concerns about justiciability are going to sometimes make perfect solution unattainable as a practical matter. For example, let’s consider an instance of felony murder with the following facts: A man breaks into a bank to rob it (a felony). Once he is in the bank, he realizes that he has stumbled upon a kidnapping/hostage situation in progress being committed by another perpetrator (also a felony). The thief being armed and in reasonable apprehension that the kidnapper was about to kill a hostage, kills the kidnapper. On the level of axiomatic thinking, he has committed felony murder by killing someone while committing a felony himself; an action that merits an additional charge. That is the letter of the law. But is it justice to try him for felony murder since that murder otherwise met the affirmative defense of preventing imminent harm to others? The pursuit of justice, the ultimate goal of law, is in large part the pursuit of equitable outcomes. Since equity is a moving target dependent upon both the actions of parties involved and the circumstances under which those actions are taken, then in application the pursuit of justice must have flexibility in determining outcomes.
Your comments concern science and the value of absolutist systems is both astute and reasonable, however, still inapplicable to legal analysis of the type I’m suggesting here for a simple reason: humans and human society don’t always act with mathematical precision nor are their values necessarily static nor do they occur in a vacuum as the above example illustrates. Mathematics and geometry can operate with greater precision than law because they are “purer” abstractions. A triangle is a triangle, but felony murder might not always be felony murder. Axiomatic thinking is fine and wonderful in it’s place, but I think you may be missing where I was pointing to as a source of the underlying axioms to define human rights (as opposed to civil rights) and that is Secular Humanism. As a philosophy, it provides a fine framework for finding those absolute human rights. That the Founders did not include these human rights in the Constitution with a great degree of specificity and choose instead to focus on civil rights does not negate that the civil rights they enumerated were in large part based on Secular Humanist thought. As I said, our civil rights could use some refinement to bring them more in line with human rights. Our system is not perfect, but that does not mean we should stop seeking to perfect it or that it is not a good starting point. In that refinement, I think Secular Humanism provides a great steering mechanism toward greater perfection. Human rights should not be subject to the whims of the majority. One such human right is the freedom of religion (which I think meets the criteria to be an absolute human right). That it is also a civil right in this country merely shows were that aforementioned overlapping of human and civil rights can occur.
As an aside, that’s why I said mespo’s list points toward what makes a good civil right, but I did not say it was a definitive list. His list is more directly applicable to laws. Human rights occur by the mere existence of being a human. I think that is an axiom we can agree upon. Freedom of religion is one of those rights because belief is in one’s own mind. You and only you are the ultimate arbiter of what that will be. Consider what we see in societies where there is state religion. There has never been a theocracy where there hasn’t been an underground of those who believed differently than the majority. We are fortunate that our Founders had the foresight and hindsight to realize this so they enshrined a human right to freely exercise your religion of choice as a civil right found in the 1st Amendment. Even so, this absolute human right once it becomes a civil right must accept some limitations to serve to protect us from each other as mutual protection is one of the primary drivers of creating society in the first place (another axiom I think we can agree upon).
If you wish to put “the best of us” as a subjective quality, I have no objection, but I would point to Secular Humanism as a good guide for developing objective criteria for what makes the best of humanity. For example, a key tenet of Secular Humanism is that everyone has the right to choose and exercise their religious belief of choice. This is an absolute right. No one has the right to make up your mind on your fundamental relationship with the universe for you. Even so, it must set secondary to the idea that societies exist for mutual protection. You are free to practice any religion you want, but if you practice human sacrifice, you will go to prison for murder. In this case, what is truly an absolute human right has to pay deference to the necessities of social justice. If you want to practice a religion that demands human sacrifice, you are free to leave and find a country where this is allowable (although I imagine such a country would be a lawless Hell-hole). This brings us back around to social contracts.
On the issue of social contracts, I understand your contention but in the case of America (and most Western countries), citizenship is entirely voluntary. Although born into circumstance is involuntary, once a person reaches the age of majority, they are free to leave. Just because children don’t have opportunity to enter into a social contract willfully by the happenstance of their birth doesn’t change the fact (at least in the West anyway) that once that child has the capacity to legally contract, they are free to leave the social contract of America as defined by the Declaration and Constitution by renouncing their citizenship and living elsewhere. The voluntary nature of the contract holds, that it does not apply until legal adulthood I think is immaterial as we also prevent children from entering into all kinds of contracts before they have legal capacity (for very valid reasons), not just the social contract.
These two paragraphs I agree to without exception:
“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. [Again, this is a tenet of humanism.] 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.”
I think that our similarities in criteria selection have more commonality than not. Even though we might differ on the precise path to what makes a good law, I suspect we’d often come to the same conclusions. Since you have a fondness for axioms, let’s just say it is a reflection of the axiom that true answers may be reached by multiple paths.
Mike,
I’m just disappointed that what could have been an interesting conversation got lost in Stock Argument about Ayn Rand #2 when all anyone should ever have to say about the matter is “Sonic Death Ray.”
Orwell, Huxley (for the most part), Lem, and, as I’ve recently discovered, Banks, THEY could write science fiction with a message.
By the way, Banks has a short story collection that you should check out. I know short stories aren’t your thing, but there’s a couple biggies about “The Culture” that get revealed.
Otteray Scribe:
I wouldnt put too much stock in that who do you write like website, it will change the writer based on what you place to be reviewed. I did it with a couple of different people on different threads, there was no consistency. I guess I would have to post at least 12 for each person to get any real idea.
Didnt you say you cant make any kind of conclusion on a small sample?
So how can you say kderosa writes like Wallace? I guess you dont believe the shit your write?
@Buddha/GeneH, give it up, your subterfuge didn’t work.
For your next sock puppet, don’t try to compliment your old sock puppet so much
Did Mike Spindell just cite the Selfish Gene for the opposite proposition for which is argues? LOL
Mike, stick to ad hominems, they don’t make you look so stupid as when you try to form real arguments like big boys do.
I read your Dawkins links if that is what you are talking about. People are able to over-ride their biology (to a point) it is called free will.
When I say to a point, they cannot prevent cancer or downs syndrome, etc by free will.
There are many people who have no desire to pass on their genes. Biology is the basis of our life but it does not make our destiny. We do that. Blaming genes or the flight mechanism is an easy way out of avoiding the necessity of having to think.
“So know you are saying that someones son or daughter should have no more value to them than some random person you meet on the street?”
If you think that’s what I wrote you need a remedial reading course fast, or a lesson in how to be honest. you might have also followed the links i gave, but you are far too intellectually lazy and dishonest to do that, aren’t you?
“She’s o.k. I got a break.”
Bdaman,
Great news, keep praying. It is a blessing for your friend and the liver is a harder organ to transplant. I wish him a quick recovery. As for the storm brewing I’ll be on my toes getting it from the horses mouth so to speak.
“Have you ever listened to or read any of TR’s speeches? He was a progressive and all that implies.”
Before he was a politician he was a writer/historian, 9 books of history. As for progressivism being what you think it is: “Gunfighter Nation” by Richard Slotkin, read it and get back to me. I don’t state things I can’t back up.
Mike Spindell:
“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 know you are saying that someones son or daughter should have no more value to them than some random person you meet on the street?
You really need help. But that is what collectivists think, there is no self so what does it matter that you love your children and not some random child down the road.
I think you better take Gyges advice.
She’s o.k. I got a break. She’s been staying at her house and my sister has been taken care of her. We go back to the endocrinologist on the 28th.
My very good friend just received a blessing like you a couple of weeks ago. He got a 29 y.o. liver and came home this past Friday.
Tropics are starting to heat up. Might see Cindy in the Bahamas Monday or Tuesday. Stock up !!!!!!!
Mike Spindell:
Have you ever listened to or read any of TR’s speeches? He was a progressive and all that implies.
If you cannot see that, I don’t think you have much intellect.
But getting into it with you is really not worth the effort because you cling to your liberal bias like a tick to an old hound dog.
That was quite a speech Mike, but you didn’t say much except that you don’t have anything to say.
Keep it safe for all the little people Mike. I think you are projecting again.
Gyges,
Thank you for your concern, but until it happens to you (and may it never) it
is incomprehensible the difference a younger heart makes when it comes to stamina (wink,wink). Anyway these guys have been fun, but I am getting bored. I really do like someone intellectually challenging me, because i’m always learning. These guys not so much there that’s either new or interesting.