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?
What utility is there in deconstructing a literalistic interpretation of the social contract?
Why not analyze the theories of Hobbes by first disproving the existence of sea monsters?
Of course, most educated people know not to use “irregardless” becasue it is improper usage. It’s just coincidental, I suppose, that “Buddha’ and “GeneH” has the same grammatical tics. But, I’m just cataloging all these similarities between “Buddha” and “GeneH,” you can go about your business of deception and ignore me.
Also, I called you Genie on purpose.
@TonyC
Rights should be thought of liberties and freedoms to believe or act in cerain ways. They are not positive claims on government or on others. It is not possible to enumerate all the rights we have retained, i.e., not surrendered to government upon entering civil society. Natural rights are synonymous with liberties as is exemplified in the official letter to Congress by the memebrs of the Constitutional Convention: “[i]ndividuals entering into society must give up a share of liberty to preserve the rest … It is at all times difficult to draw with precision the line between those rights which must be surrendered, and those which may be reserved.” See Madison Notes on debates 627. Also, see Eliot, Debates 2:201-2 (speech of Oliver Wolcott to the Connecticut ratifying convention, Friday, January 18, 1788)
kderosa,
So what? Many people use non-standard English in conversations, but if you’re so desperate in your paranoid fantasy that you are reviewing posts on other threads for grammar as if that would be proof? I’ll have to admit that makes me pity you just a bit. I’m starting to suspect that if Buddha Is Laughing weren’t a real (other) person, you’d have to invent him.
Also, it’s Gene, not Genie. I don’t live in a bottle and I don’t grant wishes. I will give you partial credit though for at least attempting to get it right.
@Gyges: Rights are entitlements (not) to perform certain actions, or (not) to be in certain states; or entitlements that others (not) perform certain actions or (not) be in certain states.
I think the trouble with this definition is the word “entitlement.” An entitlement is actually defined as a right, which makes this definition circular.
I prefer the definition of Right that calls it that which is due by just claim, legal guarantee, or moral principle.
Chimpanzees do not have a sense of a just claim, or a legal guarantee, or moral principle. This is why my personal sense of a right is something that defends an individual from being strong-armed or subjugated by the powerful, and the defense has to be provided by a group on the grounds of principle. Although chimpanzees do commit murder and mayhem upon their own tribe members, they do not seem to engage in police actions against their own tribal members, or gang up to prevent an alpha male from exercising his will. They have a social structure and a culture, but IMO it does not meet the minimal functionality requirements for them to have “rights” within that structure.
Oh, Genie, yo hoo.
I spotted another of your slip ups.
That would be the same non-standard usage that good old Buddha favors.
Let’s just pretend I proof read that.
@TonyC, yes, what could possibly go wrong with a system that has changed the incentives so drastically? Are you certain that your new potential pool of doctors would be the same as the existing pool?
Now for a little arithmetic. For those that do not think that professionals would not take a medium-pay job as a civil servant if they could make more money as a private citizen; let me point at our all volunteer military.
The top rate for an army doctor (which includes neurosurgeons) was $134K in 2008. To become an Army doctor, one requires a medical school education, which they will provide free, in return for an enlistment commitment of 7 years post residency, and 7 years of reserve duty after that. Medical school is 4 years and the average value of that is $150K; that is followed by 2 years of residency, then 7 years of service. During medical school, the student is paid as an officer; which is about $38K, and that is about $18K more than the typical income of a medical student. During Residency, the graduate earns about $69K.
Up until the time he becomes an MD, the student received about $262K more than the typical medical student. Divided by his seven year commitment (and the fact that he pays on loan interest) that works out to about $40K per year, on top of his $134K salary and benefits. Since the Army has a fine supply of doctors (and some military doctors are considered the world experts in their specialty) I do not see why we couldn’t use a similar program to recruit civilian doctors, for about $175K per year each, plus benefits, to serve the public in an at-cost institution.
I am not saying we should militarize medicine; I am just pointing to a proof by existence that it is possible, people will volunteer, and for some that want to become doctors but cannot begin to afford it, we would probably be providing a path to help them reach a potential (and benefit to society) that would have otherwise been lost.
Just like the military, if the doctor leaves service after their commitment, they can enter private practice and earn whatever the market will bear. Or choose to continue in public service: Many doctors choose to serve their entire career in the military, and I am sure we would see the same thing in our civilian version of it.
Tony,
I think we need to define rights: I’m going to suggest this one from the Stamphord Encyclopedia of Philosophy: “Rights are entitlements (not) to perform certain actions, or (not) to be in certain states; or entitlements that others (not) perform certain actions or (not) be in certain states.” If you don’t like that definition, we can work on hammering out another one.
Now, the primate in my example has the ability to either challenge the alpha or not. The fact that at any time for any reason the alpha has the ability to come smash his head in doesn’t mean that the other primate can’t challenge the alpha. If it did, gays don’t have any rights in the U.S. because gay people can’t get married, and felons have none because they can’t buy guns.
I realize that Chimps don’t sit around discussing the difference between natural* and legal rights. However that doesn’t mean that they don’t have a structure to their society that gives some members the ability to perform certain actions.
To help explain, let’s look at something completely different. Let’s look at a trout rising to a fly. To get to that fly, the trout has to adjust to several factors, current, the difference between where the fly appears to be relative to the trout and where it actually is (being as the fly is above the water, and this fish in the water), that sort of thing. Now the words I used to describe those factors, and indeed even the very idea that things can be described, don’t exist to the trout. He makes the necessary changes to his behavior based on instinct. Those changes are natural, the way we describe them is not.
Now, there is that word “entitlements.” I’ll freely admit, this is the weakest part of my argument, because animal societies have no laws, they just have innate structures. To me those structures are a close enough analog that we can say that each member of the society is entitled to things. Not everyone gets the same entitlements, and most of the time it’s an incredibly inequitable distribution, but everybody gets something.
Thus, my claim that groups of animals are naturally organized in such a way that their members have the right to do or not do certain things within that structure. In some flocks of birds each member effects the direction the flock goes, same with schools of fish. Granted I can’t think of an example pf negative rights existing in nature, but they’re just one type among many.
*This whole thing discussion is based on your equivocating two different uses of the word “natural.” The “natural rights” in question have nothing to do with the biosphere. They’re the outgrowth of a thought experiment: what would some one have the ability to do with no society to stop him? Those abilities are natural rights, the ones that require other people (and societies permission) are not (see Bob, I was paying attention). It’s a term that’s based on an uncommon use of the word nature, but words have different uses and that doesn’t mean one of them is right or wrong..
As I said, you will do as you see fit, Buddha/GeneH.
This might be a good time to have Budha temporarily reappear to deny that GeneH and Buddha are one in the same. Of course, that’s a mighty risky maneuver given the likelihood that you’ll eventually have to own up the ruse. I’m waiting with bated breath to see how you play this.
In any event, now that I know how to keep you on your leash, I’ll be sure to take advantage of it.
Here’s how it works, kderosa.
If you address me by my proper name, I’ll respond as I see fit. If you don’t address me properly, I’m going to treat it as if you’re talking to your imaginary friend. If you don’t address me at all, I can address any inaccuracies and falsehoods in your posts without addressing you at all.
Enjoy your “win”.
Here’s how it works, Howington.
I will address you as I see fit. I owe you no deference or respect. You have earned neither.
You will respond as you see fit. When you think you have a point to make you will likely respond as is your custom regardless (or irregardless as you used to say when you were Buddha) of how I address you. When you have no substantiev response, you will obfuscate and engage in your typical diversionary tactics as is also your custom. In any event by calling you by your real name, to the extent you don’t respond, merely reduces the amount of your nonsense I have to deal with if you stick to your promise. It’s win-win for me.
Oh, Buddha, you are so cute when you get angry.
kderosa,
When someone is addressed, even improperly, it usually denotes an expected response. That’s how conversations work; address/response/address/response. If you don’t want a response either continue to address me improperly (like the paranoid you apparently are) or don’t address me at all.
Also, in case you haven’t noticed, Howington old boy, your geneH persona is starting to undergo a perceptible personality change back to your Buddha persona in your various comments. Merely eliminating the worst of your personal attacks does not a difference make. You might want to look into that. Just from friendly advice.
Do you really think I care if I get a response from you?
The lady doth protest too much, methinks.
kderosa,
I do not care if you think I’m Buddha Is Laughing or if you think I’m St. John the Baptist. If you want a response going forward, you will use my proper name or you will be ignored.
I’ve read through this entire debate fascinated by the knowledge I’m accruing. Gene, Mespo, Bob and Tony are providing me with knowledge I
didn’t have, lacking a classical education due to the dissipation of my youth.
Our Trolls are providing a service acting as ignorant foils, so that lessons can be taught. The trolls may attack the admission of my admitted ignorance, as a lack of ability to discern the correctness of the argumentation put forth. However, while I haven’t read the classic philosophers I am blessed with excellent reading skills and logic. We are seeing a seminar in philosophical and constitutional history taught to the simple and the wicked, who lack the skills to respond in kind, but have provided the foreground for the teaching to succeed. Bravo!
@Buddha/GeneH
You should heed your own words yesterday:
@AY, et to quoque?