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?
Tony,
The word might be an invention of man, but I’m not sure that rights are.
It seems to me that with all social animals is an arrangement that every member of the group has the ability to do certain things. In a group of primates, there’s a leader. They get to be the leader as long as they beat the challengers to their status. Implicate in that arrangement is that every non-alpha has the ability to challenge that alpha.
Just because we’re the only ones that have the ability to express (or for that matter conceptualize) these sorts of arrangements, doesn’t mean we’re the only ones that have them.
@Buddha/GeneH
I’m going to ignore your nonsense about “society” since it is irrelevant (or as you might say irregardless) to any point in dispute in the interest of saving time and effort.
You’re the one who keeps insisting that your individual property rights trump the common good.
Wrong. I, or rather Locke, said people form government to secure their rights of liberty and property more effectively than they can secure them in their own. As such, the executive or police power must be limited to the advancement of the common good, which is accomplished by protecting those same retained rights. In this way, Lockean theory provides both a rationale and an important limit upon the powers of government.
The “common good” is advanced by protecting citizens’ retained natural rights. There is no trumping going on.
And where did I say anything about rights being absolute? Rights are not absolute. Your rights stop where another’s rights are infringed or violated.
You need to clarify this “thought.”
Actually it wasn’t, but let’s not get off-track. Why don’t you write a post on this idea and I’ll slap you around with the facts in that post.
“Youre a liar. There is no evidence for this and massive, explicit, systematic, constantly repeated counter-evidence.”
http://www.alternet.org/teaparty/151674/the_alarming_revival_of_ayn_rand%3A_the_right%27s_weirdest_idol_of_them_all/?page=1
As Jack Nicholson said to little Tommy Cruise “You can’t handle the truth!”
Mespo: “Tell me again how your crude construct that “The state has the right to regulate what goes on in Public, even the morals of the community. Otherwise, if you aren’t infringing upon anyone else’s rights in the course of your private activity, then you have not surrendered these rights to Government to regulate/prohibit.” applies? This ought to be good.”
Not for nothing, but without a trespass, you’re talking about a duty of virtue as opposed to a duty of right.
“All duties are either duties of right, that is, juridical duties (officia juris), or duties of virtue, that is, ethical duties (officia virtutis s. ethica). Juridical duties are such as may be promulgated by external legislation; ethical duties are those for which such legislation is not possible. The reason why the latter cannot be properly made the subject of external legislation is because they relate to an end or final purpose, which is itself, at the same time, embraced in these duties, and which it is a duty for the individual to have as such. But no external legislation can cause any one to adopt a particular intention, or to propose to himself a certain purpose; for this depends upon an internal condition or act of the mind itself. However, external actions conducive to such a mental condition may be commanded, without its being implied that the individual will of necessity make them an end to himself.”
http://www.constitution.org/kant/ntrometa.htm
A government has no legitimate power to promulgate duties of virtue as if they were duties of right.
@Gyges: Except I am talking about rights, they are an invention of man. A car is an invention of man, it may be made of natural substances but is not itself a product of nature, but of the mind of humans.
I also reject the idea of transference on the grounds that it renders words meaningless; “natural” does not mean anything if absolutely everything is “natural” because it consists of natural atoms. So the fact that people and their minds are a product of nature does not mean the products of people and minds are also a product of nature; the state of “being a product of nature” is not automatically transferred. “Natural” things occur, in principle, without artifice. An apple is natural. A tool, created by a human or crow or dolphin, is not. Rights are an invention of man, a tool (albeit political) that provides benefits. They are an artificial construct.
mespo:
he also said this:
“our rulers can have authority over such natural rights as we have submitted to them.”
“Laws abridging the natural rights of the citizen, should be restrained by rigorous constructions within their narrowest limits.”
“Bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will, to be rightful, must be reasonable; that the minority possess their equal rights, which equal laws must protect and to violate would be oppression.”
Stephen Grossman,
Neville Chamberlain is an example of why extremists shouldn’t be taken seriously on issues of compromise. They’re ideologically and dogmatically driven liars when it suits their agenda.
Roco:
“so Jefferson thought that successive generations could vote themselves into tyranny?”
*****************************
No. He assumed they weren’t idiots who would postulate this type of question or perform this type of self-immolation. Silly him.
kderosa,
“First, There is no society. There is just a collection of individuals.”
You lose with that statement right there. It’s a falsity that begs the question that your Objectivist fantasy about lone individuals is correct. An individual is a country of one. A society exists anywhere there is a group of people related to each other through persistent relations, shares territory and are subject to the same political authority and dominant cultural expectations. A group is a number of individuals assembled together or having some unifying relationship – like sharing a common body of laws. Not only do societies exist, they are groups and groups by nature are collective as a collective is nothing more than a number of persons or things considered as one group. Anywhere there is more than two people with sufficient cultural commonality, there is society.
As far as Locke goes, what I’m saying goes perfectly to Locke’s statements. You’re the one who keeps insisting that your individual property rights trump the common good. Your rights are not absolute yet you seem to be stuck on the idea that your property rights are absolute. Protecting your rights from unjust infringement is not the same as removing your rights as punishment for abusing your rights and causing others to come to harm. They are flip sides of the same coin that is a social contract. The point I get is that you don’t understand Locke (or Rousseau). Your natural rights are balanced against the natural rights of others. Others that make up society and are just as valid as humans as you think you are. We are a democracy which means like it or not that the will and rights of others count. You give up absolute rights when you become part of a social contract. It should go without saying that you do not realize that commerce is a synonym for business. Congress can regulate business. If that interferes with your greed, too bad. The rest of what you say is drivel. If that was your idea of a cogent rebuttal, it’s just another example of why you shouldn’t be taken seriously.
Signed,
Santa
kd:
“Oh, look, Mespo’s come out to play again with his conspiracy theories still intact. That’s nice.”
******************
One cannot conspire with one’s self.
Your lack of logic notwithstanding, I am even less than impressed with your/Roco’s implicit attack on child pornography laws which certainly involve “private” viewing of children and whose exploitation was done by others and, in some cases, perpetrated years before the viewing by the current perpetrator. Tell me again how your crude construct that “The state has the right to regulate what goes on in Public, even the morals of the community. Otherwise, if you aren’t infringing upon anyone else’s rights in the course of your private activity, then you have not surrendered these rights to Government to regulate/prohibit.” applies? This ought to be good.
@AY, are you never not stupid? All wrongful acts that violate another’s property/liberty rights are properly regulated/prohibited. Rightful acts which are done in private that don’t do harm to others might be regulated but not prohibited. rightful acts which are done in public that do no harm to others may be regulated/prohibited if against community morals.
So taking your example, if you fuck your neighbor’s sheep you may be prosecuted since you’ve violated your neighbor’s property rights. If you fuck your own or your neighbor’s sheep in the public square then you can be prosecuted as the Government has the right to regulate what goes on in public. However, if you fuck your own sheep in your house, under Lockean political theory you have not violated anyone’s rights and the Government should not have any power to prosecute you. But, we all know that most Government’s have usurped your rights in this area and have taken the power to prosecute people. That doesn’t make it right under Lockean political theory upon whihhc our system of Government is supposedly founded.
Tony: “all rights are grounded in the threat of forceful retaliation by a group against an individual: A murder is not punished by the victim, it is punished by others.”
Wrong.
The system upon which our republic is founded is called the social contract. It is a term of art denoting the order of operation per the allocation of rights and power in forming society and government.
Unlike what you suggest above, rights exist before the formation of a ‘threatening society.’ Rights existing in a state of nature, i.e. pre-society, constitute the source of power of the government to be.
Rights confer power. By conferring power to society as man leaves nature and enters society, government is formed. That is the order of operations; whether you like it or not. The reason we have a Ninth Amendment and the reason Hamilton wrote what he did in Federalist 84 was to ensure that people like you didn’t re-write the order of operations making government far more powerful than it was ever meant to be.
Mespo727272:
so Jefferson thought that successive generations could vote themselves into tyranny?
If you had actually read the letter, you’d know Jefferson also said that “every man is under the natural duty of contributing to the necessities of society, and this is all the law should enforce on him.” Jefferson also felt each successive generation was free to establish what those “necessities” might be within the bounds of natural law. This is what conservatives forget about Jefferson, i.e.,he understood the inextricable link between freedom and duty that separates freedom from licentiousness.
Stephen Grossman:
Did I just call Gene H a Hitler? Whoops.
Tony,
I wouldn’t think an Atheist Non-super-naturalist like you would have a non-overlapping division of society and nature.
Stephen Grossman:
He only compromises with compromisers because he is the extremist.
Ay…..
Are you being a naughty elf again….tsk tsk 😛
I also forgot you have and roco, jstol, et al have also gone and done and committed a conspiracy…..which in of itself prosecutable,,,,,,
Mespo727272:
we are not the same person. Aren’t you going to throw in some pithy comment from Balzac or Tolstoy?
“Illusion is but the mirror reflecting our silent unfulfilled desires…”