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?
Ditto!
I have my own personal needs to remain as NoWay….For those that I know and have contacted off list….they know who I am…
Mike S.,
I have my own personal needs to remain as AY….For those that I know and have contacted off list….they know who I am…
Anonymously Yours,
If JT rewarded BIL’s overt violations of this blog’s civility policy, it reflects poorly on JT. Did JT do so knowingly, or is he a victim?
No other guest blogger found a need to change their “nom de plume” prior to posting an editorial. Those guests identified themselves with their real name when they accepted JT’s offer and began posting as guests. Rafflaw, NAL, Elaine M. and mespo727272 serve as examples.
Tony C.,
I have some duties here that require my attention first, but I will be getting back to you with what will probably be a fairly long answer.
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NoWay,
The rollover on my avatar does indeed say genehowington. However, if you’d bother to look, the rollover on Buddha Is Laughing says buddhaslaughing. Aside from your incredibly sketchy non-evidence, what you seem to have is a (mistaken) belief that I am the poster known as Buddha Is Laughing. You’re free to believe whatever you like, but if you’re going to believe I’m somebody other than myself, I’d appreciate it if you’d believe I’m Leonardo DiCaprio.
“Are you saying that Jonathan Turley is not aware of the fact that Gene H. and Buddha is Laughing are the same person?”
Who cares if it is true or not. It’s immaterial. Gene Howington is using his real name, unlike trolls, like yourself, who post here. You will note that almost all of the prominent posters, like myself, use their real names. Some who don’t do so for professional and/or highly personal reasons. Those such as yourself might be found to post under a variety of identities, but the actual trolls choose anonymity for the same reason that internet sex predators may not even be the age or sex they’re pretending to emulate. The troll reasons may range from getting paid to post, not wanting to reveal any personal aspect of themselves to allow more freedom to attack and for using varied pseudonyms to seem to have support for their views.
NoWay, et al nom de plumes,
What the real difference does it make? Will you suffer some irreparable harm…. Are you inquiring for KD as well? If you are concerned so much…who are you? What is your real name….Are you not the same person….
Gene H. responding to bdaman
“bdaman,
Thanks for the compliment? However, before attributing my guest blogging to someone else, you might want to consider that Jon has friends outside of this blog and that he has been known to ask favors (like guest blogging while he’s on vacation).”
Will you confess to posting as both “Buddha is Laughing” and “Gene H.”, Ms. Howington? (A rollover on your avitar brings up “genehowington”, so don’t complain that I am exposing something that is not available to those who look.)
Are you saying that Jonathan Turley is not aware of the fact that Gene H. and Buddha is Laughing are the same person?
Better than pissing on your door….
Clarification: The Constitution can be overridden by a super-majority of Congress; but that could actually be achieved by a simple majority of the population in each state, and even then, a quarter of the states could be left out.
@Gene H: To be more clear, the crux of my argument lies in the rights of a tiny minority, or even a minority of one. I believe in free speech, for example, even if it is one person against everybody in the country.
Or at least I say I do, but then, do I have the right to say something I know will almost certainly get innocent people killed?
Does the USA have the right to torture even a convicted criminal if they fee certain they will save thousands from a terrorist attack?
I believe all “greater good” arguments can be forced to fail when it comes to comparing the good of billions against the rights of one person. Thus we come to what is a civil right.
The Founders did not really address this question; although they wrote the right to life was “inalienable,” even they engaged in executions of criminals. As for our American civil rights, The Bill of Rights can be overridden by a majority vote.
I do believe there are good laws and bad laws, but I also believe that laws must be rooted, and perhaps for some this is counter-intuitive, in the rights that a minority has when confronted by an overwhelming majority.
Now I am not making some oblique approach to the silly libertarian “I own my body” argument or some “in a state of nature” argument; I think those are just bullshit. I do not believe humans are property, even of themselves. I do not believe arguments from some mythical pristine state (or religious assertion) have any weight in reality.
But I am interested in what you consider the foundational “civil rights” of the minority against an opposing majority, and under what circumstances those rights can be suspended or revoked.
Now that was a true phd level argument. How could I have ever doubted you smarts?
I always thought self-professed smart guys would be able to better keep up with internet hoaxes. Nothing more embarrassing than showing yourself to be dumber than you brag to be.
Lk,
I apply the law based upon uncharged one that I know some may be guilty of….and in most cases the SOL’s have run….
Gene H, excellent posting. Excellent posting and an excellent thread. Your bullet points seem to me to be a firm basis for an approach by the law-givers. Mespo also touches on a couple of points that are my primary concern from the position of one that has the law applied to them. He specifically addresses my two major concerns: “A good law …. is readily understood in purpose and in operation; …. enjoys overwhelming support;”
Not being a lawyer I approach the law primarily as one to whom the law applies, and have always believed that a law that is not respected is a bad law. Respect is a word that I use to mean a number of affirmative acts on the part of the citizenry. Respect is a willingness to adhere to its tenants as well as recognising the need for its existence.
A law widely ignored or broken across the entire spectrum of society is a bad law. The war on drugs falls under this category of bad law(s). Most people no longer agree that many drugs laws are needed, they have a disparate effect based on class/race and are widely ignored.
Laws that are inherently so complex as to allow disparity in outcome and application are bad laws. Tax laws fall into this category. It also fails the “readily understood” tenant Mespo postulates.
A law so complex that the citizenry can’t understand it builds in the likelihood that it will be applied unequally or can be built to have an unequal effect. It also carries the possibility that anyone, at any time might be in violation of it and subject to sanction. This is exactly the problem with the tax laws.
Thanks for a thought provoking first posting, well done.
Great deal of troll traffic today … something must be stirring the pot.
It is good to know who your enemy’s are, then those you can hold closest….. Your friends you can trust……but the problem is find out who your friends are….But you have proved on numerous occasions you are no ones friend…because, you know not how to be a friend, simply is it not…
You will find that folks who tend to lean to what is called the left/liberal side are much more intelligent than those leaning to the so called right conservative, less educated….yes there are exceptions in both parties but they are rarities…….
If your proposition is correct…how has Rick Perry exceeded the governmental spending since being in office in excess of 282 per cent….this is compared to the national governments increase in spending 1.9 per cent….There is something wrong with that picture….Obama is considered a tax and spend liberal….Perry is considered a decrease in taxes and frugal type of person….while increasing the rainy day fund to more than 80 billion dollars, 5 of it this last year…..never mind that the money that is being spent the “debt” is deferred for the next 5 to 30 years in the form of municipal bonds…is that not balancing the budget on the next 1.5 generations…the first 5 years is the debt service interest…so in real dollars it is peanuts…the debt will have to be repaid…who will pay it….these are general obligation bonds…..oh yeah the tax payers of Texas….
A Pig with lipstick is still a Pig…regardless of how you dress it…what color do you normally use?
Interesting posts for the most part. Thanks for the robust response.
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Tony C.,
You raise an interesting point that I’ll get around to addressing tomorrow some time, but right now I’ve had a most tiring day out in the heat shooting guns and eating Mexican food and my brain is just not up to the task of a detailed response at the moment.
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bdaman,
Thanks for the compliment? However, before attributing my guest blogging to someone else, you might want to consider that Jon has friends outside of this blog and that he has been known to ask favors (like guest blogging while he’s on vacation).
@AY, No doubt a person like yourself would. You’re welcome, in any event.
Kd,
Considering the source, I take this as high esteem and praise. Thank you.