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?
Mother of My Child:
I see you are resorting to your old tricks again. The police already know you are a lying crack whore. At this point I think we need to do some DNA testing, there have been more cocks in you than KFC.
If it turns out that I am the father, I will be happy to pay what I owe but will file for custody. By the way a PI has been tailing you for about 6 weeks and has pictures of you blowing the States Attorney. I showed him the pictures a few weeks ago, he was very eager to hear my case after that.
As far as your no good brother goes, that is on the to do list. Frankie Beans from Boston is a friend if you know what I mean.
I am glad to hear little Karla is doing well. Hopefully she will not follow in her mothers footsteps and learns that personal responsibility and hard work are virtues and that collecting a government check to spend on crack and Chippendales while denying breakfast, lunch and dinner to your child is counter productive.
“There’s only one law that from its very nature needs
unanimous consent, namely the social compact; for civil
association is the most voluntary of all acts. Every man is
born free and his own master, so no-one on any pretext—any
pretext—can make any man a subject without his consent.”
~Rousseau, (Du contrat social ou Principes du droit politique) (1762)
Men all being naturally free, equal, and independent,
no-one can be deprived of this freedom etc. and subjected to
the political power of someone else, without his own consent.
The only way anyone can strip off his natural liberty and
clothe himself in the bonds of civil society is for him to
agree with other men to unite into a community, so as to
live together comfortably, safely, and peaceably, in a secure
enjoyment of their properties and a greater security against
outsiders. Any number of men can do this, because it does
no harm to the freedom of the rest; they are left with the
liberty of the state of nature, which they had all along. When
any number of men have in this way consented to make one
community or government, that immediately incorporates
them, turns them into a single body politic in which the
majority have a right to act on behalf of the rest and to
bind them by its decisions.
~Locke, Second Treatise of Government (1690)
Where the two primarily differ is that Hobbes believed in the natural rights of the individual regardless of social construct. Rousseau believed that rights flowed only from society as no rights existed in a state of nature. Locke felt the individual was not subservient to the General Will. Rousseau disagreed.
Roco,
Are you on your way here soon?
It has been very peaceful since you abandoned us, I do not have to worry about your temper and thrashing the house and hitting our other children anymore. Are you still with that man you left us for? My brother is still waiting for you to come back to town. He stated that he was going to kick your ass and I told him he better be careful because while you were down you would try and lick his. We both laughed.
I did turn all of your pipes over to the police. I heard that they are looking for you too, this is fine to. I did talk with the States assistant attorney, they hinted that if you did not pay your support this month that they would seek a felony Support warrant. I do not understand what that really means except that you would go to prison. I hope that is not true, I would hate to tell our child that you are a felon. That is fine to, because I would tell her that you would probably beat it. But you do not beat me anymore so, I am fine with that.
She is now 9 years of age. She looks like her grandmother looked when she was 9. She is growing up very fine without your help, but the state say that they will make you pay one way or the other. Please give my condolences to Steve, I am certain you beat him.
Gene H:
Rousseau is a collectivist, it ekes off the pages of his work. When i first started reading I was pleasantly surprised but by the time you get to book II it is pretty clear where he is coming from.
Mother of My Child:
how old is he/she now? The last I heard you were getting an abortion, I even gave you money to get one. I guess you spent it on crack and the Chippendales.
I think I need to take custody of the child, they will grow up with liberal bull shit since you obviously hang out with Gene H and Mespo727272.
I want my child to be able to do more than quote old dead white guys and use google. He/she is probably good at math and science since my other children are very good at those subjects. I forced them to take degrees in the sciences so their brains would have a chance. You see what a liberal arts education has done to Mespo727272 and Gene H or Bubbha Green as we like to call him.
Please send the child over as soon as possible, if he/she is over 7 dont bother. Your liberal blather has screwed them and it is too late.
Actually, it’s Rousseau, kderosa. Locke argued that government’s legitimacy comes from the citizens’ delegation to the government of their right of self-defense (mutual protection). Rousseau argued that the whole of the rule of law came from “[e]ach of us puts his person and all his power in common under the supreme direction of the general will; and in a body we receive each member as an indivisible part of the whole” and as I noted earlier “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.'” Locke’s assertion of consent is much narrower than Rousseau’s or Jefferson’s. Locke only applies consent as it applies to the abdication of defense to the state. Rousseau (and Jefferson) apply all of the rule of law to the consent of the governed.
That’s Lockean. Also, the consent of the governed part is a legal fiction, it was never obtained.
“That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed”
I’ll let you find the document.
HInt: Thomas Jefferson wrote it.
So then to the extent that Rousseau had some unique contributions to political philosophy, where are those uniquely Rousseau concepts found in the founding documents. Specifically.
Dear Roco,
We are you going to pay the support that you owe for your child? When you pay us what you owe we can get off of public assistance. Please pay your support, the children need it.
Hey Steve,
When are you coming back over? I miss our time together. Do you still have Adolph’s SS tattooed to your forehead?
I wouldn’t consider Rousseau the greatest influence on Jefferson and Madison but I consider his works influential on the men of his times and the Founders. Jefferson never mentioned Rousseau in his writings but certain concepts are clearly of Rousseau. Madison famously criticized Rousseau’s notion of “perpetual peace” in 1792 but he was clearly impressed with the man’s ideas. “Had Rousseau lived to see the rapid progress of reason and reformation, which the present day exhibits, the philanthropy which dictated his project would find a rich enjoyment in the scene before him,” Madison wrote. I would say the Founders were more influenced by classic Greek and Roman notions of republicanism, Locke’s Theory of Natural Law, Bracton’s “De Legibus Et Consuetudinibus Angliæ,” Luther’s “On Secular Authority,” “The Works of Francis Bacon,” Coke’s “The Petition of Right,” and Montesquieu’s “Spirit of the Laws,” but Rousseau’s place among those other influences is beyond question.
Grossman,
Do you have something to offer other than pimping for Ayn Rand? So far I have yet to see it. You have brought absolutely zero substance to this conversation and continue to do so.
Go for it, kedrosa. You rock. You know who you are don’t you?
I have subscribed to Dr. Leary’s thinking for way too long. We did experiments in and out of class. About half way through one semester we had a couple of people that experimented with way to much acid. I see that Kay DeRosa is here. I see that Roco, whom I used to know as Rothchild O’Hittman and Stevie Grossman, who is going by Steve Grossman.
These guys did way, way too much acid. I thought that they ended up in clinics. I see that they are back out on the streets. Please show them some indulgences as they do not think like normal or even rational people. The last I had heard about them is they were staring at rocks. They apparently are not be properly supervised by the States staff. I will see what I can do to make sure that they do not harass you good folks anymore.
“A Discourse on the Origin of Inequality” (1754), “A Discourse on Political Economy” (1755) and “The Social Contract” (1762) by Jean Jacques Rousseau are all widely taught at reputable schools as primary influential sources that the Founders drew from in drafting the Declaration of Independence and the Constitution. “The Social Contract” is part of the reading assignments on the current syllabus and reading assignments for the University of Virginia’s course “The Rule of Law: Controlling Government; Seminar in Contemporary Legal Thought”.
http://faculty.virginia.edu/jnmoore/rol/rol-syllabus.html
As to Rousseau expanding upon Locke, so what? Locke’s “Two Treatises of Government” (1689) was expanding upon Hobbes “Leviathan” (1651). Philosophy is like the study of science; it is an accretion of knowledge. If you want to play the “who came first” children’s game, you’re going to end up with everything in Western philosophy being started by either Aristotle, Plato or Socrates. Just because Rousseau expands on Locke’s ideas is not proof that Rousseau wasn’t an influence on the Founders. As a contemporaneous writer, Rousseau would have represented the then vanguard on thinking concerning social contracts and therefor was probably more influential with the Founders than either Locke or Hobbes. To say Rousseau had no influence because he was expanding upon ideas found in the works of Locke (and Hobbes) is like saying Einstein had no impact on the formation of quantum mechanics because he expanded upon the ideas of Newton or that Heisenberg had no impact on quantum mechanics because he built on the work of Einstein. It’s specious reasoning and factually untrue. Not only does the Declaration show Rousseau’s influence on Jefferson, so do Jefferson’s letters to John Adams. I respond “Make up all the history you like. We’ll be glad to correct your faulty educations and logic.” By the way, displaying your factual historical and philosophical ignorance is not furthering the conversation concerning the topic of this thread.
And let’s not forget that “we the people” and “consent of the governed” is entirely a legal fiction. The was not unanimous consent by any stretch of the imagination. Acquiescence is not consent.
Stephen Grossman: “[The Social Contract] Ie, a society of intellectual dependents who worship Consensus as an impossible substitute for independent judgment.”
Really? Is that what Locke says? Or is that a claim by you sans reason to support said claim?
Stephen Grossman: “Its product is staleness and stagnation. Its an application of Kantian nihilism in politics.”
Kant preceded the social contract? What was he 200 years old when he died?
Stephen Grossman: Everybody compromises with everybody else’s compromises.
Kant is all about compromise? On what planet and in what parallel universe?
Stephen Grossman: “[The social contract is] 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.”
Seeing that Locke was the social contractarian that Jefferson chose to plagiarize in the Declaration, you’re now contradicting yourself.
In this post, you truly sound like a ‘modern man.’
Gene H
>Rousseau was easily as great an influence on the Constitution as Locke.
This is the content of an anti-hierarchical, ie, anti-conceptual mind. There are no basics and non-basics for this kind of cognitive processing. Every fact is cognitively equal to every other fact, in ignorance or evasion of the perception-based hierarchy of reasoning. Doctors learn anatomy prior to surgery. Carpenters learn to hammer a nail prior to building a house. Egalitarian epistemology is destructive. Rousseau was basically a collectivist and Locke basically an individualist, whatever they said in a non-basic context. Our Constitution is basically an individualist document whatever contradictions in non-basic contexts. Our Founders were pop philosophers who unsystematically accepted ideas from Locke, etc. as they thought the ideas supported the historical peak of individualism in the Enlightenment. They were not profound, systematic philosophers. We should be grateful for their unsystematic individualism. It was the best they could do. And they did very well, indeed. Ayn Rand was born to late to stop the almost immediate attack on Constitutional individualism by the influence from Kant’s social subjectivism.