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?
Gene H:
How do you respond to kderosa above? Since Rousseau was definitely trying to expand or explain Locke it would be natural for Locke to be in Rousseau’s writings. Which you then mistakenly believe to be an influence on our founding.
Stephen Grossman:
“Don’t you have anything intelligent to say? I’m getting bored with amusing myself with your pretentious pseudo-education. Say one profound thing, however absurd. Just one, please.”
You figured that out in 2 days? Wow you are good.
Roco,
Unfortunately for you, reading and comprehension are two different skills.
**************
Stephen Grossman,
I’m sorry but I must inform you that intellectual and educational assessments of an Objectivist are just as meaningful to me as those same assessments from a Fundamentalists Muslim or a child. I am quite unconcerned about what you think of me. However, this is a free country and a free Internet. If you find this place so devoid of intellectual stimulation, you are quite free to seek your entertainment elsewhere. Have I mentioned that you have a most poetically fit surname for an Objectivist?
Neither of you have added anything of value to this conversation.
Of course, Locke came up with the consent of the free and equal citizens first and there’s no question that the founders relied on Locke. So merely pointing out that that concept is in the founding documents doesn’t prove that Rousseau was being referenced. So that’s a fail.
mespo:
well for that matter the Athenian Constitution influenced our Constitution and so did many others.
Rousseau was also influenced by the Athenian Constitution and its ideas about democracy.
But the main idea of our founding is decidedly not based on Rousseau.
Gene H.
>“The Social Contract”.
Ie, a society of intellectual dependents who worship Consensus as an impossible substitute for independent judgment. Its product is staleness and stagnation. Its an application of Kantian nihilism in politics. Everybody compromises with everybody else’s compromises. Its worse than religious traditionalism which provides some continuity and absolutes however irrational. Plato and Aristotle recognized the anarchistic/democratic path to tyranny. Locke and Rand, of course, are the reason-based, individual rights basic alternative.
Don’t you have anything intelligent to say? I’m getting bored with amusing myself with your pretentious pseudo-education. Say one profound thing, however absurd. Just one, please.
Gene H:
I am reading the Social Contract right now as a matter of fact.
Also Rousseau was trying to expand on Locke which is what you see. Locke did not get expanded upon but dumped on as you can clearly see above.
mespo,
I suspect you are correct.
Roco,
“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.”
What I said was “If you understood the Constitution, you’d know that both of their ideas and ideals are incorporated into the document.” Rousseau’s are not the only ideas found in the Constitution and the Declaration and I stipulated that fact with that previous statement. Not only does the Constitution contain the influences of Rousseau and Locke, but Hobbes and Paine as well. You wanted to claim Rousseau had no influence, which is either 1) a deliberate lie or 2) a reflection of your staggering ignorance. But like I said, don’t let facts stop you from “[making] shit up to suit your view of the world.” The only person making something up here is you. Rousseau was easily as great an influence on the Constitution as Locke. Disbelieve it all you like. I am unconcerned with your willful ignorance. If you want to wallow in your factual inaccuracies and intellectual laziness some more, be my guest.
Gene H:
if this guy doesn’t understand by now that Rousseau’s argument that governments attain their right to exist by “consent of the governed,” and further that the American Revolution has this notion as one of its bedrock principles, I suspect he was educated in another country. Maybe another planet. He’s hung up on General Will and social equality which he deplores and blinds him to all else good with the learned Frenchman.
kinda like how the french revolution was about the consent of the governed
Gene H:
since you don’t think in abstractions, I will point out the difference between Jefferson and our Constitution and Rousseau.
Rousseau – “his life is no longer the bounty of nature but a gift he has received conditionally from the state.”
Jefferson – ““that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.”
You see the difference? It is quite stark. Life from the state life or from their Creator. Since the DOI gives the Constitution its power which comes from the people how can the government give the people their life?
Rousseau therefore does not believe in property rights which the founders did. But it is quite apparent to all but the most partisan hack, Rousseau had little or no influence in our founding. And quite understandable why you, as a Marxist/Socialist/Fascist/Collectivist would want to believe that fallacy. Rousseau gives license for your supreme state.
Roco
>I have tried on very many occasions to try and get him to understand he is a tool of the left.
Left is merely an ideology, ie, social and political philosophy split from more basic issues. Philosophy is the basic cause of our ideas. And most Americans are anti-ideological, Dewey-eyed Pragmatists who compartmentalize facts from each other as an intellectual habit. So they value a changing chaos of contradictory ideas. Few leftists are Marxist ideologists. They dip into Marx or Marcuse or even Locke as their emotions guide them in any concrete situation. Not even Obama is an ideologist, tho he is a hard leftist Pragmatist. See Rand’s “For The New Intellectual” in her book by that name.
Pardon my typo. “The Social Contract”.
Roco,
I’m pretty sure I don’t care about your evaluation of what holds water because like all your evaluations it is faulty. All your statement shows is that you’ve never actually read Rousseau. “[D]eriving their just power from the consent of the governed”? Is a major theme in “The Social Compact”. It is, in fact, the central argument of the book.
mespo727272:
to what are you refering?
By the way I am not kderosa, but thank you for the compliment.
mespo, yet it’s still better than yours. Funny how you missed the issue. You appear to be arguing a point no one cares about.
GeneH:
Sorry, but your position is not holding water.
From Book II Chapter 5:
“Whoever wishes to preserve his own life at the expense of others must give his life for them when it is necessary. Now, as citizen, no man is judge any longer of the dange to which the law requires him to expose himself, and when the prince [sovereign] says to him: “It is expedient for the state that you should die”, then he should die, because it is only on such terms that he has lived in security as long as he has and also because his life is no longer the bounty of nature but a gift he has received conditionally from the state.”
Compare that to:
“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.”
Personally I dont see much Rosseau in that. In fact I dont see any.
kderoco:
Your logic is as good as your legal analysis.
mespo:
“he was convicted of violating a state statute prohibiting any person from possessing or viewing any material or performance showing a minor who is not his child or ward in a state of nudity unless (a) the material or performance is presented for a bona fide purpose by or to a person having a proper interest therein, or (b) the possessor knows that the minor’s parents or guardian has consented in writing to such photographing or use of the minor.”
Which kinda jibes with the child does not have the ability to consent as I stated above.