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?
Roco,
I have seen the light. It’s shinning out of your ear from the candle on the other side of your head.
Roco,
“he wishes to institute a system of laws which would legalize theft of private property”
That’s a fine straw man you’ve built there. Too bad it has absolutely no basis in reality. Your property rights can become forfeit of you abuse your property to the detriment of others. That’s not theft. That’s how equity operates in civil and criminal courts. The flaw in your absolutist thinking is showing once again. Your property rights are not absolute if you use your property to harm others or through your negligence allow it to cause harm to others.
Gene H:
Take you for example, masturbation and sodomy are illegal in some states but they are private acts. So most rational people dont care.
You keep digging, eventually you will see daylight.
kderosa:
well said. Gene H is not interested in good or bad laws, he wishes to institute a system of laws which would legalize theft of private property.
Purely and simply he wants to legislate man into a mold of his choosing-the new American man just as surely as the Soviets tried to mold man into the new Soviet man.
Objective law with a bias in property rights and individual rights will always prevent this. Therefore laws must be written to outlaw objectivity, which is precisely what he is proposing whether he understands it or not. I almost think he doesn’t understand what he is proposing and is so caught up in his belief of egalitarianism he cannot see the forest for the trees.
Even cattle breeders understand that some Bulls are for stud and some are for the meat packer. I think Gene H’s idea on good laws and bad laws is resigned to the McDonald’s of ideas. That Bull (shit) shouldn’t be allowed to reproduce.
kderosa,
“The protection of individual rights is at the core of a state’s police power. State’s may prohibit wrongful private behavior. State’s may regulate rightful private behavior that may injure the rights of others. States have the power to protect the health, safety, and public morals of the populace.” Then business and individuals must be regulated to protect the greater rights of society as a whole.
“States do not have the power to reach purely private ‘immoral’ acts.” Actually they do if that immoral act creates an injustice. Stealing is immoral. Stealing is unjust. Stealing is illegal. That it is done “in private” does not negate this fact. There are whole lists of crimes that are based on immoral and/or unethical behavior that their public or private nature is irrelevant to their commission. “State’s may regulate rightful private behavior that may injure the rights of others.” Followed by “State’s may prohibit wrongful
privatebehavior.” Really? State’s may prohibit wrongful behavior unless, as by your reasoning (such as it is), they’re done in private? How very revealing of the flaw inherent in Libertarianism. Whether you like it or not, society is a cooperative and collective effort. A society of one is just some dude standing around talking to himself. To maintain a just society, the rights of the individual must be constrained if exercising that right creates a harmful action. Your argument narrows down to the law shouldn’t apply to you if you’re discrete in committing your crimes. That’s the facile logic and specious argument of a child or a sociopath.No. Taking what you say seriously is completely out of the question. Thanks for once again illustrating why.
Correction: State’s may prohibit wrongful
privatebehavior.@GeneH/Buddha:
Let’s get away from this Kantian/Randian distraction.
Your entire argument is based on a dopey premise independent of Kant’s or Rand’s philosophy:
Trying to determine when a law is good or bad is misguided as a system for making laws. It is misguided because there are no objective bounds and without bounds, such a system will lead to tyranny. The rightness of laws should not be determined by whether the law is good or bad, but rather on whether the law does not infringe our retained natural rights.
In short, you have, after qoting the DoI, thrown out the entire Lockean political theory upon which it is based.
There is no privledge to violate the rights of others no matter how good you think the law is. Similarly, there is no immunity from liability should one violate such a right even if that violation is for the greater good.
The protection of individual rights is at the core of a state’s police power. State’s may prohibit wrongful private behavior. State’s may regulate rightful private behavior that may injure the rights of others. States have the power to protect the health, safety, and public morals of the populace. States do not have the power to reach purely private “immoral” acts.
This last part is important, were the state allowed the power to prohibit any purely private activity on the sole ground that a majority of the legislature deems it to be immoral, there would be no limit on state power since no court could regulate the rationality of such a judgment. S between a legislature and a citizen, the legislature would improperly be the judge in its own case.
How can a proper regulation of rightful activity be distinguished from an improper abridgment of the private rights of the people? The key is whether the laws are a pretext for purposes other than the prevention of future or rectification of past violations. One sign that a law is pretextural is when the law benefits a particular group rather than the general public. Does a particular law benefit every person in the community as a whole or whether it instead benefits some majority or minority faction? When a law takes from group A or individual A and gives it to group B or individual B, the law exceeds the state’s police power.
Anonymously Yours
>So which is it? A rock or an illusion of a rock? Do you tell the world often that you can see in 4D? or is this just an illusion….
Sad to say, my humor has escaped what’s left of your liberal mind.
Mike Spindell:
> Rand’s beliefs…. glorifies the will and celebrates Nietzsche’s Ubermensch,
Youre a liar. There is no evidence for this and massive, explicit, systematic, constantly repeated counter-evidence. Rand’s acceptance of realism, objectivity and reason contradicts N’s subjectivism. She repeatedly rejects predatory, pseudo-selfishness.
So which is it? A rock or an illusion of a rock? Do you tell the world often that you can see in 4D? or is this just an illusion….
ob,Esq.
>From what I’ve read, it appears that neither you nor your buddies could tell a transcendental illusion from a cleverly disguised rock
Of course, its an illusion!
Tony C. sez: “…but in reality I suspect their gullibility and inability to think logically would make them the quickly ambushed victims of their own system.”
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In the words of that iconic Guinness advertisement, “Brilliant.”
There will be no way to test that observation, but IMHO, there is great truth there. At least, I hope we never get a chance to test it.
@Gene H: …unless, of course, you are against the laws because you want to break them.
Precisely; and that is what Objectivists want to do: “Freedom” for them is the freedom to harm others with impunity, the freedom to blackmail them, mislead them, endanger them, beat them, or risk the lives of workers or customers for profit. The fig leaf they put on this naked aggression is always “well, it is their choice…” except they will adamantly and categorically refuse to discuss the myriad situations where no choice really exists. They are anarchists, really, and ignorantly self-deluded anarchists at that, because in the fantasy world they yearn for they are always the presciently accurate super heroes, but in reality I suspect their gullibility and inability to think logically would make them the quickly ambushed victims of their own system.
kderosa,
“proposed [a] Kantian proto-totalitarian system of laws”
Except that I didn’t propose any such thing. I proposed a Millisian utilitarian system of laws that specifically limited absolutist systems like Kant’s to the role of aspirational models, not practical application. There is nothing totalitarian about laws that work in application unless, of course, you are against the laws because you want to break them. The only people on this thread proposing anything that leads to totalitarianism are the Objectivists whose pseudo-philosophy can only lead to the tyranny of the strong over the weak.
Nice try, but all in all, just another example of why you are not to be taken seriously.
Tony C.,
Thanks. You gave me good material to pivot off of so you certainly deserve in on the credit of it being a good post. To address your latest addition, while it is not a separate formal requirement, any judge that doesn’t like being overturned on appeal always carefully lays out why they are going against the grain of stare decisis in an opinion. I think the appeals process can handle this adequately but that a separate review channel might just create more (and duplicative) work. It might be tenable, but I’d have to give it a lot more thought before I could come down firmly on the side of a discrete review process. Some of your concerns about peer review could be addressed by using judiciary panels (like the three judge schema seen in some appeals courts) instead of a lone judge. Such a proposal would mean hiring more judges certainly, but it would provide the instant peer review function (albeit in a small sample space, but then the appeals process would still be in play) and would allow criticism in the form of minority dissent to refine the issues at bar. However, it wouldn’t require creating an entirely separate channel of review and all the attendant support structures that discrete channel would require.
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Stephen Grossman,
The problem being that the values you (and Rand) advocate are greed and classism. Your values degrade the value of human life. The values I advocate are equity and egalitarianism. My values uplift the value of human life by encouraging fairness in the legal system and equal protection under the law for all people, as in all human life, not just those “special few” Objectivism would promote over the lives of others. That your values are the antithesis of mine does not mean I am for sacrificing values in general. Just those that are bad for society, like greed and classism. That you chose your values poorly is your choice.
You still have yet to add anything of substantive value to this thread. You’ve certainly preached a lot, but you haven’t furthered the conversation one bit. You are to be taken no more seriously than the Hellfire preacher raving from a street corner, which is to say not at all.
@GeneH/Buddha:
Nice try, but I didn’t state that “Kant isn’t the father of Weak Rule Utilitarianism.” What I actually stated was that you “proposed [a] Kantian proto-totalitarian system of laws” which merely described the nature of your proposed system, not the originator.
This demonstrates why it is better to take your opponent’s seriously and respond to the merits of their arguments, or in this case the lack of merits, and point out why they are wrong instead of deflecting by use of ad hominems, such as “don’t take you seriously,” “extremists,” “propagandist,” “zealots bereft of rationality,” “engaging in Big Lie” which merely serve to make you look foolish.
As for the definition of “equitable,” the issue is that we don’t agree with your unique definition.
@Gene H: Wow, I love that post!
The one thing I would add is this: If a judge is to rule contrary to stare decisis, then as a separate matter the judge should be required to formally “appeal the precedent,” first in written form and if necessary by appearing before a legal review board, so the circumstances that warrant a rejection of the precedent can be published as their own precedent.
I understand that with some research something like the equivalent can be done already; but in the scientific community we highlight such things in peer-reviewed journals and conferences. The only equivalent thing in the law community seems to be cases that reach Supreme Courts, and I do not think that publicizes to the law community the exceptions that, for whatever reason, were NOT appealed (or accepted) by the State or Federal Supremes.
I think that is too informal a method, and the law would be improved by making the reasoning for the exceptions explicit; this would also give both the prosecution and defense reasoned ammunition for either defending precedent or ignoring it, especially in cases where a judge is acting unreasonably with regard to precedent (unreasonably weighting it or unreasonably ignoring it).
Requiring research and peer-review of the logic of a change in axiom, and making both the logic and the peer-review of it freely available, helps to keep the judges honest and the axioms consistent. When we do not require it, everybody wanders off into their own private set of ill-formed and internally inconsistent “shadow axioms” that are not actually the will of the people at all.
>[Gene H.] Ihave yet to add anything to this thread of any substantive value.
I advocate values against your sacrifice of values.
Steve Grossman,
If you cannot explain what you wrote, then just admit it and be done….I merely asked for clarification…I suppose your words never need explaining since you are an admitted Randi….Is that anything like Commie?
>[Anon Nurse]:Christianity and the wolverine capitalism of a John Galt are totally incompatible systems
Rand has been systematically repeating this truth for decades.
Wolverine: the altruist claim that we are all morally selfless slaves of one another and that those who refuse to sacrifice themselves are predators withholding their obligation to sacrifice themselves. The possibility of non-sacrificial relationships is rejected. Man, the trader of values, is unknown to altruists.