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?
KD,
Please stay on the subject at hand…Even if and so what….You are here and apparently you adopted a new name but not a new persona….try it sometime….
I am addressing you properly as will be revealed in due course.
It’s not my fault you adopted a nasty anonymous online persona without thinking through the ramifications adequately and have now come to realize the error in your ways now that you are required to post using your real name.
The more you lie the worse it’s going to be when the day of reckoning inevitably comes. You’ve already slipped up a few times and it’s only a matter of time before slip up so bad that you cannot deny your ruse any longer.
kderosa,
You’re either going to start addressing me by my name or you’re simply going to be ignored. Your paranoia is your problem but I’m done feeding into your fantasy. If you want to think I’m someone else, be my guest, but you are going to start addressing me properly if you want any kind of response.
Mike Spindell, why don’t you go learn something on the topic and get back to us. Edmund Morgan’s Inventing the People:The Rise of Popular Sovereignty in England and America is a good place to start and it’s available at Amazon. And, you eally need to learn how to characterize people’s arguments accurately when commenting.
MIke S:
through
MIke S:
Let’s not judge too harshly. We’ve had plenty of “March” trolls thorough here. We tend to win them over at some point.
“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.”
“It” makes another one of his “brilliant”. A slashing rejoinders, akin to his proving President Obama a “liar” for misspeaking his daughters age. When in doubt try to obfuscate, is his mantra, as he vainly attempts to make up for his deficiency in reasoning ability and tendency to prevaricate.
Tony C’s comment is incredibly thought provoking. Unfortunately I will heading to the Homestead in a few minutes for the VA State Bar Association Convention. Will consider it and see if I can reply from that venue. Regards to all.
@Mespo, Indeed. Let’s see if GeneH/Buddha feels the same way. I see TonyC is not yet convinced.
@Mespo: Every man is born free and his own master,
I disagree with Rousseau (and Locke), this is false on the face of it. Every man is born an infant, helpless and entirely dependent on his mother (or someone), incapable of anything. They haven’t even discovered they have limbs yet, they can’t go anywhere or do anything and left on their own would die in a week.
Every man is born utterly dependent on others to save the life he has been given, to feed him, to wash him, to teach him, and to protect him from the elements, from predators, from diseases, from poisons, and from other people. This dependency lasts for at least five years for children raised in non-technological hunter-gatherer societies, and in the modern world, for 15 to 25 years.
Some debt for the resources expended during that dependency, while involuntary, is real. In a technological society with necessary divisions of labor, some of the cost of protection and food and teaching are provided by society, and the bills for those services must be paid.
So what is the fair price for such? Here is a hypothetical: Say a stranger hiking sees you have fallen from a height; you are unconscious and bleeding. He applies first aid and interrupts his hike to carry you to his car and transport you to a hospital, where a doctor performs surgery to stop internal bleeding and save your life. What do you owe the heroic stranger, the doctor, and the owners of the hospital?
I do not believe, as Objectivists seem to think, that you owe them whatever they choose to charge; you could not agree to such a transaction (but any failure to agree would have ended your life). I do not believe the alternative, that since you did not agree to anything that you can consider their work an act of charity and owe them nothing.
What I do believe is fair recompense for such an involuntary “transaction” is the cost of their time, service, and materials. I do not believe anybody deserves to either earn a profit or suffer a loss over your brush with death.
It is hypotheticals like this that compel me to subscribe to the at-cost paradigm for what I regard as involuntary but necessary services, like fire protection, food inspection, health care, military protection, police protection, courts, and so on. I also believe that the people necessary to staff such services cannot be conscripted, people are free and they must voluntarily choose to work there. So their salaries are determined by the market, high enough to keep the supply of staffers steady, whether they are doctors or janitors.
However, expenses are never certain and demand fluctuates in any organization, including charities, so the only entity truly capable of operating an at-cost organization is the government. That is fine because there is a certain amount of synergy in that conclusion; since we also want government to be in control of some of these at-cost organizations that have life-altering decision making powers (like the police, courts, military, and hospitals), so we can enforce a doctrine of public accountability, transparency and unbiased application.
The point of that hypothetical is that an infant is like the fallen climber, incapable of surviving without the aid of others. Like the hiking stranger and hospital and surgeon that had nothing to do with the fall, the rest of us had nothing to do with the birth of the infant, but here it is among us, and we have the social responsibility of preserving its life. Being an advanced technological society, we have hired specialists to address those responsibilities, and they are staffing the infrastructure around us. They not only benefit the infant but all of us, and it is impossible to compute the value of that: The criminals in jail for assaulting somebody else are not assaulting me; so how do I compute the value of something that did not happen?
To be fair, we pay for the public services and staff with taxes. The infant will not be paying taxes in any significant amount for decades, so when he does, he is obligated to repay the cost of his free societal ride by paying for the free societal ride of the next generation.
My larger point is that I do not need to begin from a “born free” state of nature to achieve a viable social contract. Even from the “productivity is everything” point of view (which I reject), on average and in the long run it is always better for productivity to save a life than to let it expire. The “born free” state is false, the “born utterly dependent” state is reality, and I see no reason to reason from anything but reality.
Here’s a wonderful little debate on Hobbes’ vs. Locke’s views on the nature of man as argued by Messers. Adams and Jefferson with some fellow named Franklin serving as moderator:
Nice, a subject has righted itself without the capstan still being breached…
See KD, I did learn something at Mr. Madison’s University.
Yes, I believe that is the consensus view.
I have always viewed the Hobbes-Locke-Rousseau progression as sort of a social contract continuum with Hobbes representing the more authoritarian version, Locke the pure individualist, and Rousseau more the collectivist. Each have points to make and, as we know, Hobbes served as the foil of the American Revolution being the model Tory; Locke (along with Bacon) was Jefferson’s inspiration; and Rousseau was the intellectual fountainhead of the American Revolution’s progeny, the French Revolution.
@Buddha,
We’re talking about where the power to govern comes from. If it comes from the consent of the governed, how can you govern those who have not consented to be governed? How can you have legitimate rule over those who have not consented to be governed. Your authority only comes from their consent.
Genuine consent is an engagement of the will. It must involve a deliberate and effective communication of an intent by a person to change his status of his rights and obligations.
In fact Rousseau’s concept of popular sovereignty included more than mere consent, it required active participation of those governed (by the people). So those that don’t vote (participate) and don’t consent cannot have conferred authority according to Rouseau. This is especially true if sovereignty is inalienable as it is in the U.S.
Further, where is the supreme sovereign in our divided form of government? Where is the authority to which there is no appeal?
show me where
That is not what you said earlier Tin Foil master.
6:14 pm, tinfoil hat boy.
kderosa,
Whatever you want to think, Louis XVI. I understand Rousseau on general will and legitimacy just fine and apparently better than you. That the general will of the people at the founding of this country was the form of democracy (and democracy does not require perfect consensus, just majority consensus) and that form is legitimate because it came about by the general will of those to be governed is a distinction apparently lost on you. I’ll say it simply so maybe you’ll understand. Legitimacy requires the rule of law expressing the general will of the people. This applies to any and every form of government from constitutional democratic representative republics to constitutional monarchies. This is why totalitarian dictatorships or oligarchical theocracies are not considered legitimate forms of government because they are top down power structures where the rule of law is not derived from the general will of the people but rather from the will of the one or the few at the top. Form and legitimacy are two discrete issues.
Signed,
Elrond, Lord of Rivendell