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?
kderosa,
Kant isn’t the father of Weak Rule Utilitarianism. That would be John Stuart Mill. It’s factual inaccuracies like that that indicate precisely why no one should take you seriously. As for not taking Objectivists seriously in general, I don’t take any extremists seriously as they are zealots bereft of rationality. Rationality and the ability to understand what the word “equitable” means are requisites to participate in this conversation. You must be this tall to ride this ride. It’s nothing personal, unless of course you are an extremist.
Also, if you’re going to persist in your delusions of thinking I’m someone else, I’d appreciate it if you’d think I’m Dashiell Hammett or perhaps Santa.
Congratulations, Stephen Grossman, Gene Howington’s GeneH persona doesn’t take you seriously (Howington’s Buddha is Laughing persona would have accomplished the same by calling you a propagandist and spewing personal insults), that means he’s incapable of responding to the merits of your arguments that show all the flaws in his proposed Kantian proto-totalitarian system of laws. (He’s not unwilling to engage because his fragile little ego doesn’t operate that way. That’s for your benefit, OS)
“At times her critics oversimplify Rand’s beliefs, which embody any number of contradictions and opacities. But essentially she glorifies the will and celebrates Nietzsche’s Ubermensch, the superman whose blazing passage through the world need never be impeded by the interests or opinions of mediocrities like you and me. It’s the same string of arrogant assumptions that spawned the Master Race theories of Herr Hitler: ego-deification, social Darwinism, arbitrary stratification of human types. Adapted for capitalism, it becomes the divine right to plunder — a license for those who own nearly everything to take the rest, because they wish to, because they can. Because the weak don’t matter. Let the big dogs feed. This repulsive theology was the work of a fairly repulsive person.”
Mike A,
Thanks for your link to Crowther’s “tour de force” article, quoted above. I
would only add that I referenced Teddy Roosevelt above because in rereading after 13 years Slotkin’s excellent book “Gunfighter Nation” I was reminded of his critique of TR’s books on frontier history. TR was a “Social
Darwinist” who believed in heroic men (he was somewhat misogynist) leading the masses in a series of racial wars for dominance of all of the non Anglo-Saxon/Teutonic masses. He was of the same cloth as Rand and contributed to the mythology that would lead acolytes to her. Your link relieved me from this troll interaction I’ve engaged in, which has lead the discussion of Gene’s brilliant article astray.
“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.””
Gyges,
Thank you for rescuing from the insanity which led me to actually engage in lengthy debate with Trolls, who are incapable of logically debating anything,
due to their mind blocking, religious zealotry of the secular kind. I should have known better. I do know better. I’ve actually given similar advice on other threads when the Trolls have done their hijacking. A good nights sleep and a review of my actions has restored my sanity in this instance.
Gene,
My apologies to you for allowing so much thread space to be taken up by off topic inanity. Thank you and Tony C. too, for bringing us back to the discussion at hand
Stephen Grossman,
If you’re going to address your inane comments to me, you should at least try to use proper attributions. The statement in question was made by Tony C.
>[Gene H]: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.”
Profit is a fact and objective need of man’s life, not of a particular economic system. Planting a seed must have a profit in an edible plant or the planter dies. Have you heard that a science of economics was created some time ago? Have you heard that the Soviet Union is no more? And that boiled grass a la carte is a gourmet’s delight in North Korea? And that US unfunded liabilites are $115 trillion? Wake up and smell the red tape! Civil servants as far-seeing initiators of technological-industrial progress?! Wait in line in a Registry of Motor Vehicles! Face reality fearlessly like the Greeks. Im not saying you have to pluck your eyes out but, at least, open them. Marxism is false, a mere application of Kantian nihilism.
The long run is a need of the individual’s survival. Longer than that is merely religion or the Marxist sacrifice to an impossible utopian future where all will be mindlessly selfless and milk and honey and loaves and fish will fall from the skies. Selfish long-range planning by private individuals have created more wealth than are feverishly dreamt of by commies like you.
The failures of the Randians to understand both the function of government and human needs are staggering. They are so enamored of their icon they have suspended critical thinking and logic.
That woman had no soul.
Having said that, what does the discussion of Rand and her antisocial philosophy have to do with the differences and similarities in good and bad laws? BTW, excellent discussion between Gene and Tony above.
I have always had some difficulty with the piling on of charges when there was an accomplice to a crime. Two guys are in a car. Guy #1 goes in to “buy a beer,” leaving Guy #2 behind the wheel of the car. While in the store, Guy #1 pulls out a gun, takes the cash register money and shoots the clerk, killing him.
When they are caught, both are charged with Capital Murder. Guy #2 says he knew Guy #1 had a gun, but no idea he was going to rob the store, let alone murder the clerk. Jury convicts both. Guy #1 ends up on death row awaiting execution. Later, Guy #1 is executed. Guy #2 gets two life sentences running wild, without the possibility of parole. (This was a case I worked on, with a couple of minor details changed to protect the identities of the guilty).
Stephen Grossman,
You have yet to add anything to this thread of any substantive value and as such I’m forced to consider your comments on the same par as those of kderosa; not to be taken seriously.
Tony C.,
We’ve strayed a bit from “what makes a good law” into the territory of “what’s wrong with the legal system”, which while related, are different topics.
We simply have a different definition of axiom in play here. You said axiom initially and I read that as mathematical axiom since you come from a science background. I have no issue with your expounded definition of axiomatic as it allows enough flexibility to be practical in application. Total flexibility is not required and as you point out can be detrimental. The amount of flexibility required is simply enough to be able to address facts that may not mesh perfectly with the facts a law is designed to address and enough flexibility to allow some discretion in sentencing as sentences are rarely a specific remedy but rather a range of remedy. In fact, your “Second Axiom of Axioms” is what the concept of stare decisis is designed to address. A good judge only overrules precedent in one of two situations: 1) a new and/or unique set of circumstances in which application of precedent would result in an unjust outcome (it can always be overturned on appeal) or 2) the law in application is found to be somehow prime facie unconstitutional..
On the issue of the tiered nature of the legal system, performing this kind of analysis is part of addressing that very problem. I agree 100% that the stratification of the legal systems is abhorrent to the Declaration’s axiom. The problem you are describing is three-fold in nature.
One, it is created in part by over complicated laws and procedure. As already agreed upon, simplicity in statement should always be a goal in formulation of good law. A lot of people who “get off light or completely” do so because they have enough money to hire enough lawyers to deal with the often overwrought complexity of both the law and procedure and very often it is some procedural issue that gets them off. The answer to that is minimally complex procedure and reductionist approaches to formulating substantive law.
Two, bad sentencing guidelines allow favoritism. While it’s true that judges need some discretion in their sentencing to reach equitable outcomes, the kind of favoritism that you describe can be addressed by better laws. One such law would be mandatory minimum sentencing for officers of the court or government officials found in violation of the law. While I’m generally against mandatory minimums for issues like drug possession (which should be treated as a public health issue instead of a criminal issue), I am most certainly for mandatory minimums for those who have elevated and specific duties to the legal system by the nature of their employment. They are the guardians and enforcers of the legal system and as such when they break the law, they should face the harshest of consequences because they have not just broken a law, they have broken their oath to uphold the integrity of the system. Their employment can be treated just like aggravating circumstances are treated on murder versus capital murder charges. On the issue of unconscious unequal application (specifically as it applies to the “rich and famous” problem”, I think prosecutors should be able to challenge lenient sentences just as they are allowed to challenge verdicts. A 14th Amendment argument can be made based upon median sentencing and if a person is found to have gotten a significantly lighter sentence than the average citizen due to no other consideration than their wealth or notoriety, then the median sentence should be applied. I don’t think this runs into a double jeopardy issue because the person has already been convicted, the heart of the appeal is Equal Protection. In essence, it would be an appeal that is primarily directed at the trial judge and their potential abuse of discretion in sentencing. I also don’t think this would qualify as cruel or unusual either if the procedure for it requires strict timeliness in filing such a challenge, say within 72 hours of an initial verdict being entered. There are a lot of details to iron out in a proposition such as this, but I think a workable system can be had.
It’s comical that Mike Appleton links to what is essentially an extended ad hominem (plus a few mischacterizations) and wishes he’d written it. A perfect metaphor for what the regulars have turned this forum into.
Gene H
>the first function of government is to protect the weak from the strong.
Youre commie garbage anxious that somebody may be better than you at something, anything.
The only function of govt is protecting individual rights, inc/property rights (since man is not a ghost).
Thanks for the link, Mike Appleton. From the article:
“The Alarming Revival of Ayn Rand: The Right’s Weirdest Idol of Them All
A passion for the prose and philosophy of Ayn Rand tells us a great deal about an individual, none of it good.”
Excerpt:
But Ayn Rand seems like the biggest joke of all, one that might yet blow up in the party’s face.
The plutocrats she worshiped are so few, the plebeians she scorned are so many. The GOP’s little people can’t all be totally illiterate, and Limbaugh and Glenn Beck actually urge them to read this woman’s books. It’s in-your-face deception that reminds me of the old stage villain, the silent-movie heavy with the waxed mustache, cackling behind his cloak and inviting the audience to share the cruelty he’s about to inflict on his innocent victims. It’s as if Wall Street is surreptitiously giving the finger to Main Street Republicans, laughing at the gullible recruits as they march to the polls to lower corporate taxes and deregulate markets. Ayn Rand, indeed. She would have applauded the big dogs’ ruthlessness but rolled her eyes at the Christian-family rhetoric they’re obliged to use for bait.
She wasn’t one of them, of course; she certainly wasn’t one of us. She was one of a kind, thank god. In her defense, you might argue that her love affair with capitalism was rooted in a Russian Jew’s horror of the totalitarian systems that devastated Europe in the 20th century.
That offers her a gravitas she doesn’t share with ultra-light Midwestern reactionaries like Paul Ryan or Michele Bachmann. But the more Americans read her books, the better for liberals and the worse, I think, for Republicans.
Her work illustrates conclusively what a few brave clergymen and a few ink-stained relics like me have been saying for years to anyone who would listen, and to Republicans who refuse to listen — that Christianity and the wolverine capitalism of a John Galt are totally incompatible systems, two mutually exclusive human possibilities. They cancel each other out. Any political party that pretends to integrate them is a party of liars, and doomed.
>[Gene H]: aspirational goals …. are not always going to be able to be met in practical fashion by society
Yes, your subjectivism is impractical in guiding thought and action for survival. Thus short-range Pragmatist hysteria, like a fish flopping about on land. Focus your mind onto concrete reality! There is no substitute for reason as history so sadly shows.
Anonymously Yours:
I> am sorry…It makes no sense to me…
Your a liberal skeptic. Nothing makes sense to you. I may as well talk to the wall.
For Stephen Grossman and all of the other Rand cultists on this thread, I only wish I had written this:http://www.alternet.org/story/151674/the_alarming_revival_of_ayn_rand%3A_the_right%27s_weirdest_idol_of_them_all?page=entire
@Gene H: Well, by my axiom, the slip and fall death is an accidental one; I think it is a bad law that counts that as “murder,” and a lie on the part of the law as well (in the sense that I do not consider that “murder”).
That is one of the problems I have noticed recently with law, is the piling on of ludicrous charges for a single act to try and exact greater punishment for that act. If the legislature thinks that greater punishment would better deter burglary, they should readdress the sentencing guidelines, and remove the leeway of judges in sentencing for burglary.
Flexibility is an ill all of itself, it lets people make anything out of anything, and thereby exercise their prejudice, bigotry, racism, or favoritism with impunity. I think that the flexibility granted to prosecutors and judges is directly responsible for the corruption in our legal system that has led to our current caste system of justice. The rich and famous can be caught carrying drugs and get sentenced to 30 days probation four times in a row; a kid gets caught with twenty joints and goes to jail, not just for drug possession, but some unprovable intent to “deal drugs.”
The cops (IMO) have been spared prosecution for outright murder, negligent homicide, manslaughter, torture, assault, and all sorts of minor crimes (including drug possession, theft and child abuse) because prosecutors decide on their sole authority that police should not be held to the same standard of law as civilians.
We have a multi-tiered system of justice, with one set of laws and lighter sentencing applying to politicians, celebrities, the rich, and more severe sentencing with a conflation of charges applying to the people that are none of those things.
I think flexibility in the application of law is an illness, it feeds the inequality it is supposed to prevent. It turns the police from servant bodyguards into enemy overlords. It breeds resentment, and creates more crime.
I do not believe there is anything magical about human behavior that humans cannot understand and address with axioms. We know the difference between a crime and an accident, and the difference between a fraud and a loss caused by an investment that didn’t pan out.
The First Axiom of axioms is that axioms must provide conditions that clearly divide one thing from another. It is not an axiom to say, “somettimes killing a person is not a crime.” That is a statement of fact, but there is no clear division. It rises to the level of axiom to say, “killing an unprovoked attacker in self-defense is not a crime.” (Whether we should adopt that axiom is a different question I won’t address here.)
The Second Axiom of axioms should be that a ruling set of axioms are self-consistent; adding a new axiom cannot conflict with decisions based on old axioms, unless they are removed or altered to restore self-consistency (in which case, old decisions grounded in the axioms removed or altered must be revisited, in priority of consequence).
Axioms do not require mathematical precision, they are simply codified belief made explicitly clear. They are also not permanent, but the Second Axiom of axioms makes the set relatively stiff; if every change or addition or subtraction must retain self-consistency. (It is like the Jenga game in a way! i.e. I want to add X so I must change Y in a way that the whole structure doesn’t fall apart because Y changed…)
If the first axioms adopted represent one’s true beliefs, working to get around them is working to undermine your own true beliefs. Changing an axiom requires changing one’s beliefs.
In my mind, “flexibility” in the law is an Orwellian term, intended to sound positive but actually masking unequal application. And humans being what we are, consciously or unconsciously unequal application morphs into favoritism for the rich, the famous, and fellow lawmakers and law enforcers, with unyielding and increasing severity for the rest of us: Increasing because the people making the laws and enforcing the laws and their rich friends are not really subject to it; or their penalty is just the financial cost of the attorneys that buy them “flexible” leniency or forgiveness. IMO flexibility in the application of law produces a ruling class and a working class, with different privileges and penalties for each. And to me that offends the Declarational axiom that “All men are created equal” in terms of rights, the law, and law enforcement.
**think you may have got my point**
Tony C.,
I think you may got my point although we differ slightly on terms. You also formulated a valid legal axiom to boot although felony murder does not require intent to kill, only intent to commit a felony and someone happens to die. For example, if the bank robber had broken in and was in the process of breaking the safe when a guard rushed in, went to stop him and slipped and fell down a flight of stairs, killing the guard. That would still be felony murder even though the thief took no active part in the guard’s death. The reason I know you got my point was you saw the effect of rigid thinking on examining the situation and the outcome and came to the conclusion that although the thief should not be held culpable for the murder, he still nonetheless is responsible for the attempted bank robbery. Axioms are fine in the right application (which is usually construction of laws) but can be problematic in practical usage hence laws that may be rooted in axioms but built by the methods of Weak Rule Utilitarianism. If you’re interested in finding out more about Secular Humanism so you can think it through yourself, I’d suggest looking into George Jacob Holyoake and Auguste Comte. An organization you might be interested in learning about is the Council for Secular Humanism as they are very big on a topic you seem to favor, the application of the scientific method to defining rights and ethics.
@Gene H: “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.”
Well, not on the level of my axiomatic thinking. If the law finds this a crime, it is an example of bad law.
Axiomatic thinking does not require THIS sort of fixed judgments. Here is something that might be an axiom: A crime requires either intent or uncommon irresponsibility.
That is precise enough for a human to distinguish between a crime and an accident, and humans are uniquely qualified to judge whether intent was present or not based on circumstances and evidence.
Neither occurred in this hypothetical: The burglar’s intent was to commit a felony by robbing a bank; and he should be tried for taking action on that intent, but his bank robbing was interrupted and voluntarily ended when he felt morally compelled to prevent a murder.
Even if the law does have a specific penalty for felony murder, his intent was not to commit a murder to facilitate his felony in any way; or to eliminate a witness or facilitate an escape.
Rephrase “felony murder” as a law of intent, and our hypothetical burglar is on the hook for a felony break-in, and simultaneously a hero, which I do not think mitigates the felony, but should be recognized as the heroic act that it was.
As for secular humanism, I do not know anything about it, but if they have come to similar conclusions as I, good for them. I am not opposed to good ideas from others, but I prefer to think such things through for myself, I believe it helps me to recognize better ideas when I encounter them.
You are tricky KD….Get the foil back to your momma and maybe she’ll give you a treat….now go on boy…
Elaine M.,
Of course…that was one course I had to take serious…as you can tell English not so much….
Off topic, I just heard on NPR that the National Government was developing a standardized curriculum…..When did Title IX change to allow such interference in the traditional state role?