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?
@Mespo, oh look at you and your fancy lawyer’s tricks. Is that all you have in your quiver? The article I cited referred to plenty of court cases on the child pornography issue.
Also your case citation is not dispositive on the question at issue — whather child pornography laws which criminilize purely private acts in which no harm has been done to another violate any retained natural rights of the viwer and thus ought not to be prohibited by the state under Lockean political theory. As far as we know the case was decided wrongly.
Roco,
You mean make shit up like you are trying to do right now? I wouldn’t dream of infringing upon your specialty, Roco.
Rousseau’s ideas are found all over the Declaration of Independence and the Constitution. I’ll give you a couple of examples.
In “Declaration of the Rights of Man and the Citizen”, Rousseau defines the law as “the expression of the general will. All citizens have the right to contribute personally, or through their representatives, to its formation. It must be the same for all, whether it protects or punishes. All citizens, being equal in its eyes, are equally admissible to all public dignities, positions, and employments, according to their capacities, and without any other distinction than that of their virtues and their talents.” This is reflected in the language of the Declaration (“all men are created equal”), the Preamble of the Constitution (“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.”) and 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.”).
Rousseau’s 1762 treatise “The Social Contract” was a veritable blueprint for a democratic representative republic, which coincidentally, is the form of government established by the Constitution.
Rousseau’s philosophy had a direct impact on the Founders. Jefferson and his writings (including the Declaration) were deeply influenced by Rousseau. Here’s a lovely summary of some more examples of their common thinking: http://almostchosenpeople.wordpress.com/2010/01/07/jefferson-and-rousseau-on-democracy/#more-327
Like it or not, Rousseau’s thoughts left an indelible impression on the Founders and their fingerprints all over the Declaration and Constitution. However, don’t let that stop you from “[making] shit up to suit your view of the world.”
Mespo727272:
“Revealing evasion. The point, my dear Roco/derosa, is that the child’s rights were not violated by the viewer by any stretch of the imagination yet we punish him–rightfully, I think — for a private act. Your construct falls apart here since, by your definition, his perversion is a protected from government intervention. I find your views awfully radical, oh conservative one.”
the childs rights were violated by having a picture taken of him. The viewer is the cause of the pictures being taken. If there were no child molesters there would be no need for child porn. So most definitely the childs rights have been violated by the viewer. The child has not given consent to be viewed by anyone at any time.
Therefor I think the viewer of child pornography is subject to the same penalties as the photographer.
I dont believe I ever said a child pornographer was protected, but nice try at putting words in my mouth.
Here is what I said:
“Mespo, a child does not have the right of consent. So therefore his rights are violated by the person who has taken the picture. He cannot assent to the picture being taken. Especially if his picture is going to be sold, he cannot enter into a contract.”
So lets see, the child’s rights are violated. That means there is action that can be taken in law. So I would like to know how you come up with me thinking a pervert should be protected?
You truly are an idiot. Stick to quoting old dead white guys. Leave the heavy thinking to someone else.
kd:
“Wikipedia has a good page on the Debate Regarding Child Pornograph Lawsy where the private/public issues are brought up in the case law and whether there is a harm or trespass being committed.”
*********************
While a one page summary written by, perhaps, a bright undergraduate, likely satisfies your curiosity on the topic, I prefer a little more depth. Here’s something you can look at to view the issues. The law however is clear:
http://supreme.justia.com/us/495/103/case.html
Mespo727272:
There is no way you are not a socialist. It emanates from your pudenda (Latin not anatomy).
Gene H:
“Roco,
If you understood the Constitution, you’d know that both of their ideas and ideals are incorporated into the document.”
Ooh, you really dont have a clue do you. That was a pretty stupid statement to make. Locke did have great influence. You merely think/wish Rousseau had influence. It would then jibe with your world/philosophical view.
Sorry dude, you dont get to make shit up to suit your view of the world.
Edsel Ford,
“There is nothing in ‘society’ as you’ve defined it that affects anything I’ve stated.”
Except for your denial of its existence as a predicate for what you stated.
Mike S:
You’re right, of course, but why let a manifest fact get in the way of our little rocoderosa’s fun.
@Gyges: I was careful to include a few other animals that engage in the manufacture of non-natural products; such as tools. I do not believe your example of primates challenging an alpha male constitute a “right,” any more than a cheetah has a “right” to chase down a gazelle. Young primates challenge the alpha male because they are horny and he is monopolizing the horniness relief resources.
A “right” is an artificially constructed protection of some sort. The right of free speech protects us from retaliation by the government for our speech (theoretically speaking). A “right” is a privilege you get even if you do not personally have the muscle or firepower to just force your action upon others; the rights are (in principle) enforced by the strength of the entire society.
But in primate societies the group does not punish the alpha male for murdering a young buck rival (which happens) or an infant (which happens) or for just beating up the Omega male for no reason (which happens). The Alpha male does not engage in these “crimes” because it is his right, he does it because he has the muscle to do it and feels like it, and afterward nobody denies his desire to mate or eat first, there is no punishment.
Animals can be kind, they feel empathy and engage in consolation over losses and unfair treatment. But Rights (and law in general) require a level of abstraction and foresight that is apparently beyond the smart animals. At least as far as we can tell, so far, Rights are a uniquely human invention. We didn’t just invent the word, it may require words to invent Rights.
Revealing evasion. The point, my dear Roco/derosa, is that the child’s rights were not violated by the viewer by any stretch of the imagination yet we punish him–rightfully, I think — for a private act. Your construct falls apart here since, by your definition, his perversion is a protected from government intervention. I find your views awfully radical, oh conservative one.
@Rocco
I’m assuming the sheep was an unwilling participant.
@Buddha
There is nothing in “society” as you’ve defined it that affects anything I’ve stated. But, if that’s how you’re going to save faec in this debate, by all means rely on that thin reed of yours, rather than enage in your usual circular arguments that stream forth after you realize you’ve painted yourself into a corner of illogic. Much like your correlation equals causation argument. And your fascism equals whatever-you-finally-defined-it-to-be argument.
“So taking your example, if you fuck your neighbor’s sheep you may be prosecuted since you’ve violated your neighbor’s property rights.”
How have you violated your neighbors property rights? What if the sheep strayed onto your pasture? Since the sheep is not harmed is there any violation of property?
And wouldnt trespass be the violation?
@Mespo,
Wikipedia has a good page on the Debate Regarding Child Pornograph Lawsy where the private/public issues are brought up in the case law and whether there is a harm or trespass being committed.
Also, a person can have conspiracy theories without conspiring with another. It appears that your desire to rush snarky comments interferes with your limited powers of thought. You should probably just give up the former and concentrate on the latter for all our benefit.
Roco,
If you understood the Constitution, you’d know that both of their ideas and ideals are incorporated into the document.
Gene H:
if you understood Locke you would not mention him with Rousseau. They are 2 separate animals.
“I just figured you are chomping at the bit to make every man a slave in your socialist utopia.”
Mespo,
It’s funny because after years of reading your opinions I never even thought of you as being on the Left. Maybe I lack the X Ray vision that others here seem to have gotten from their Tom Swift Decoder Rings.
Well now Mespo is bringing out the child molesters. Typical. I think you need a better MO.
Mespo, a child does not have the right of consent. So therefore his rights are violated by the person who has taken the picture. He cannot assent to the picture being taken. Especially if his picture is going to be sold, he cannot enter into a contract.
kderosa,
You’re going to ignore those facts about society because they destroy the (false) premise of your arguments. As for the rest of your comment, it’s still drivel. I’ve never said that the power of government was not restrained by rights, quite the contrary, much of my discussion with Tony has been over that very subject of what the boundaries are in formulating what makes a law good or bad. What I said was that rights are not absolute under a social contract. Some are going to be impinged upon to allow for the pursuit of justice and as required by mutual protection. If you want to talk about the government exceeding their grasp in the name of mutual protection, why not wait until the next column on the TSA and/or the Patriot Act. Here, the discussion is limited to frameworks for legal analysis despite yours and Grossman’s efforts to make it a preaching forum for Objectivism.
Signed,
Leo D.
mespo727272:
I wasnt the one that brought it up you were, and knowing your position on issues I just figured you are chomping at the bit to make every man a slave in your socialist utopia.