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?
Where did you state just the opposite…Show me….
All you two idiots need to do is scroll up a bit and see where I stated just the opposite
@Buddha, too clever by half you are. Your mistakes will mount as your lies persist. Also, you apparently don’t understand Rousseau’s views on general will and consent of the governed.
bare – are
kderosa,
No, it being gibberish makes it gibberish. As to your demands for perfect consensus, sorry, but that’s not the reality of democracy and it shows your confusion about legitimacy versus form. As to my knowledge of what comes up on this blog, I’ve been reading it to catch up on the topics discussed and get a feel for what kind of articles I should be posting. It seems like malfunction is a common and recurring topic. Are you always this paranoid, Pete Rose? As to “showing you where you said property rights are absolute”? Your instance that property rights are inviolate is a good indication that you think it’s an absolute right. Either the government can infringe upon your property rights in certain circumstances by operation of law (including regulation of use) or it can’t. There is no middle ground to that question.
Signed,
The Batman
I have been reading this crap that you and your crew have been spewing out and this is the first time I have had the time to post….You take one position and then like Endora you switch sides….You talk about an illusion….You sticking to one topic without subterfuging which means to use:
1. Deceit used in order to achieve one’s goal.
2. A statement or action resorted to in order to deceive.
You bare slicker than Cheney’s Oil….
KD,
I just got home and I am at a loss. Show me where you did not state that property right were not absolute.
@Buddha, show me where I stated that property rights are absolute. It’s another one of your strawmen.
@GeneH/Buddha, just because you don’t understand it doesn’t make it gibberish. And there is no grammatical error, so perhaps you are misreading it. And, yes, the “general will” depends on the consent of all. It is a matter of scale, it is a matter of consent. If political authority is will-based, as Rousseau and others have posited, how can there be a will of the people without the consent of all people.
And how would you know what always comes up on this blog since you only showed up a short time ago and by your own admission lurked for only a short time before that? See what happens when you tell lies, you start losing track of your lies, GeneH. I mean Buddha.
No. It sounds like Locke is against the arbitrary abuse of power. Having a right and having an absolute right are not the same thing. Property rights are not absolute no matter how many times you insist that they are. They are prime, they should be protected and not infringed lightly, but they are not absolute.
“The Supream Power cannot take from any Man any part of his Property without his own consent. For the preservation of Property being the end of Government, and that which Men enter Society, it necessarily supposes and requires, that the People should have Property, without which they must be suppos’d to lose that, by entering Society, which was the end for which they entered into it, too gross an absurdity for any Man to own … Hence it is a mistake to think the Supreme of Legislative power of any Commonwealth, can do what it will, and dispose of the Estates of the Subject arbitrarily, or take part of them at pleasure.” Locke, Two Treatises, 406-7
Now does that sound like Locke thought that the people should accept any abuses of power that would inevitably occur by surrendering sovereign rights and entering civil society?
Total agreement is not a requirement for democracy, kderosa. Also, this sentence? “It is unlikely that Rousseau’s notion of popular sovereignty applies to the U.S. Federal state because the conditions of the general will do not obtain in a large diverse population.” Aside from the grammatical error is complete gibberish. Scale is a non-issue. As to Rousseau’s ideas having a real effect on our rights and government? They are undeniable but it is a separate question as to how those rights and effects have been eroded over time (primarily by narrow special interests with undue influence). You are straying into the question of “what’s wrong with the government”. The topic of this thread is diagnostic processes for evaluating law. You can’t fix what’s broken unless you can diagnose the problem first. The topic of what’s wrong with the government will come up on this blog again. It always does. It’s just not the topic of this thread.
Kady,
Are you still dressing in drag and acting like a fag?
It is unlikely that Rousseau’s notion of popular sovereignty applies to the U.S. Federal state because the conditions of the general will do not obtain in a large diverse population. The people’s will cannot possibly have the authority rousseau attributed to it in the absence of the genuine consent of all. And we did not have the consent of all.
But again, as I pointed out earlier this whole business of we the people and popular sovereignty is all a political fiction. What part of Rouseau’s philosophy made it into a part of the founding documents that has a real effect on our rights and governmental power?
I will gladly accept a correction from a source of normally reliable information, mespo. Mistakes and typos happen. It’s only bad information if the correction isn’t made. So I accept your corrected summary without reservation or modification. I may not be cheap, but I am easy or in the words of that immortal 80’s Canadian power trio Triumph, “I don’t ask much, the truth will do just fine.”
Come on now Anita and Mother etc. It’s a family show and your just being rude to Roco.
Gene H:
Oops, and thanks for the vote of confidence but I meant to say “Locke believed in the natural rights etc.” Hobbes belived that men were naturally savages and in a continual state of warfare in which there “is no place for industry, because the fruit thereof is uncertain: and consequently no culture of the earth; no navigation, nor use of the commodities that may be imported by sea; no commodious building; no instruments of moving and removing such things as require much force; no knowledge of the face of the earth; no account of time; no arts; no letters; no society; and which is worst of all, continual fear, and danger of violent death; and the life of man, solitary, poor, nasty, brutish, and short.”
Men form societies to rid themselves of this condition and make themselves part of the common weal. To that end, persons subject themselves to the sovereign for protection and accept any abuses of power that will inevitably occur. Hobbes also believed that such an orderly society provided the best chance for freedom and that the sovereign as the embodiment of the commonwealth acually fostered, rather than restrained, freedom. He was decidely paternalistic in approach but with aspirations that seemed on the mark.
Roco,
I see you are resorting to your old tricks again, yes isn’t that how we met? It is true I have sold my crack, so it would be true. I guess you are a man whore, right? Oh Roco, they did run DNA from your Pedophile conviction. They are certain it is you. Yes, yes I love KFC.
Oh you are the father and yes you will pay. I am pleased to tell you that I am getting married to the states Attorney and he said he would pig screw you. I can’t wait to see how you squeal.
My brother likes Boston Baked Beans are they the same as Frankie Beans? You know what I mean?
Now you admit that you are aware of the child’s name. She carrys my last name. I too hope she does not follow in my footsteps, I want better for her. Don’t you? I hope she does not have to go on government assistance as well. If you would pay your support we would not have any problems.
I do not think that anyone I know, knew when Chippendales was going to be in town except you, why is that?
Oh we do eat breakfast, lunch and dinner unlike when you were here spending the money I made on your buddies and the one guy you called your Mandrake.
Roco,
Your subscriptions to the “American Nazi Party”, “Instinct Magazine” and your Videos “Blue Boy and Twink” came to my house again. Do you want them or should I put them in the recycle file?
Anita Dick:
I would try Gene H, I think he meets the qualities of your name.
I accept mespo’s further refinement without reservation or modification. I should have known you’d have the better summary. Anyone with a Cicero avatar must be a student of the classics. 😉