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?
Gene H
>If you are not an egalitarian,…. you are a totalitarian or you favor some sort of oligarchy
Your evasion of my frequent advocacy of individual rights is noted. Your intellectual fraud in reducing constitutionalism to democracy is noted. You will now Pragmatically claim that you do favor individual rights, once in a while, when the mood strikes, now and then, but that the will of Der Fuhrer, uh…The People is Supreme. Your lust for power is noted.
> Why [society] instead of individual rights?
Cooperative effort in society produces advances beyond what can be achieved as families of hunter-gatherers. If it weren’t for society and the divisions of labor that it creates, our lifespans would be less than half what they are, half our children would die before they reached puberty, and everybody would be a day-laborer.
Nothing logically makes individual rights more important than cooperating effectively in a society, and yes, I know all about Rand’s weak rationalizations founded in stupidly fictional premises she expected me to take for granted, but which I rejected.
> You confess the depravity of the majority sacrificing the minority.
I do no such thing, that is a lie. I do not think the majority has any right to sacrifice the majority without sacrificing themselves. I think the majority has the right to set rules that bind EVERYBODY, including themselves. If that hurts the minority, it hurts the majority just as much.
> asked her classes if her lectures were fair. Maybe she had a guilty conscience.
Maybe she was a scientist and was gathering data on how her classes were perceived by her students, because she realized that their perception of her classes would necessarily differ from her own.
Many professors understand that some things they take for granted are simply not known to undergraduates, and the influence of those “why would you think anything else?” ideas can make what seems simple to them difficult to grasp for novice students.
I suspect your professor was acting professionally, and trying to ensure she was teaching at a level that would maximize the average gain in knowledge of the undergraduate. But you are a moron incapable of understanding such subtleties in motivation.
> Gene H says no one reduces reason to perception.
No, I said that, stupid.
> You obviously disagree w/”inherent” ideas, a Platonic error refuted by Aristotle.
Aristotle has not been keeping up with the literature in psychology, neurology, and evolutionary psychology, at least not as much as I have.
> Ideas are volitional.
No, they aren’t. See how your blind assertions can be countered by my own assertions? Nothing gives yours weight over mine. You can’t prove them. At least mine are supported by the evidence of brain science; ideas are far more reactive than volitional.
> You are guilty.
You are wrong. See? Blind assertions without evidence.
“You can’t expect to wield supreme executive power just ’cause some watery tart threw a sword at you.”
“SHUT UP!”
“If I went around saying I was an Emperor just because some moistened bint had lobbed a scimitar at me, they’d put me away!”
Thanks, Bob. That always makes me laugh, but it’s particularly funny in the context of watery tart Ayn Rand throwing the sword of Objectivism for her followers to promptly fall upon.
Grossman,
Thank you for making it clearer (although your fanatical zeal in promoting Objectivism already made this manifest) that you don’t believe that all men are created equal and should be treated as equals by government and have the same political, economic, social, and civil rights or in a social philosophy advocating the decentralization of power into the people, i.e. democracy. If you are not an egalitarian, that leaves only limited options. Either you are a totalitarian or you favor some sort of oligarchy, both of which are tyrannical political and legal systems that operate from the will of the few or the one instead of gaining their validity in operating from the will of “We the People” and neither of which are in the tradition of America’s founding or jurisprudence. You’re anti-democratic. America is still marginally a democratic representative republic. If you’re anti-democratic then you are anti-constitutional. Operating on the will and for the betterment of all the people is a corner stone of our government’s founding as illustrated by the Declaration of Independence and the Constitution. Thanks for illustrating that Objectivism is inherently anti-American, anti-liberty and anti-democratic. Also, our constitutional form of government derives its legitimacy from the consent of the governed. You clearly have no idea what the rule of law means as it relates to form, function and legitimacy of government. Feel free to resume your childish shouting now as it surely can’t harm your credibility any more than the sum total of your previous posts have. No one in their right mind is going to take what you say seriously.
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:
Constitutional govt is govt of laws. Democracy is govt of men. Constitutional govt is not this-moment’s-majority-screws-this moment’s-minority democracy. Youre an intellectual fraud, a perfect example of Progressive “thought.” You are confused, conceptually adrift, logically disintegrated, epistemologically sloppy, in short, an untidy mess. You will, in due time and according to the classic view of democracy, seek a Leader whose teeny, tiny perspective on reality offers illusory relief from independent judgment.
Maybe you should nurse a Jack Daniels instead of the law…
Gene H.
>Grossman, I’m not sure why you’re addressing me over a statement Tony C. made. Tony seems like an alright guy to me, but I’m not him either.
Acc/to your egalitarianism, there’s no difference between you and Tony…WE ARE THE BORG. YOU WILL BE ASSIMILATED. RESISTANCE IS FUTILE. WHERE IS 7 OF 9?!
Tony C.
.Words have definitions; and you call that “submission?”…. Anybody that is making up their own definitions or decrying standard definitions, like you, is purposely trying to reduce the efficacy of language.
Youre submitting your mind to “standard,” ie, conventional definitions and claiming the only alternative is subjective definitions. But ignorance by one person does not become knowledge in a society of ignoramuses. Definitions are contextual, ie, relative to our knowledge of reality.
The efficacy of language is relative to knowing reality, not agreement among ignoramuses.
Oh…Kdpanzee,
It must be the voices…
kderosa
1, July 24, 2011 at 1:05 pm
@AY, as I was saying.
You indicated you had something to say….guess not…or what happened…Your momma found you making another crack pipe from her foil?
Kdponzi,
What were you saying…You have said something? What, the blawg would be in shock.
@AY, as I was saying.
Kdponzi,
Get it straight…Your gripe on life appears to be slipping….sometimes reality is not what you think but merely an illusion that you have created (made in) your reality….that is ok, just because we cannot see your friends does not mean that they don’t exist for you you…When you realize it is a problem…ask for help before it gets there it is ok…
@AY, the tinfoil hat has slipped again.. Start asking non-crazy question with some factual and i’ll take you more seriously.
_Sweet Land Of Liberty: The Supreme Court And Individual Rights_ by Henry Mark Holzer shows how a consistent ,principled recognition of rights guides legal interpretation.
Get it straight…Kdpanzee has many different screen names….and goes by many different personality changes…one thing is for certain…they will never answer any of the questions posed to them, while expecting answers to their questions…
Get it straight. GeneH is Buddha is Laughing. Not TonyC.
Grossman,
I’m not sure why you’re addressing me over a statement Tony C. made. Tony seems like an alright guy to me, but I’m not him either.
Tony C.
>@Grossman: Unworkable for the creation of society,
Why that instead of individual rights?
>which the vast majority of people value,
You confess the depravity of the majority sacrificing the minority. Golly gee, moron, doesnt that recall someplace in the 1930s, uh, Germany, maybe, you think?
>and according to the standard of fairness
Another sleazeball, my subjectivist Epistemology prof, asked her classes if her lectures were fair. Maybe she had a guilty conscience. The Oxford English and Webster’s Unabridged dictionaries have 20-30 definitions of fair. Fair enough? Fair dinkum.
>the detection of which is apparently inherent in all humans with normally functioning brain parts and, reason will tell you, is the most likely root of reason itself.
Gene H says no one reduces reason to perception. You obviously disagree w/”inherent” ideas, a Platonic error refuted by Aristotle. Ideas are volitional. Nothing beyond my power to choose causes me to think that youre a fool. I choose to think it. Nothing beyond your power to choose causes you to evade. You choose to evade. Modern man is neo-primitive in being guided by whatever mental junk is created by an uncontrolled mind. Primitive man had not discovered mind. Modern man knows about mind and chooses to evade it. You are guilty.
Stop seeking wisdom within consciousness. LOOK OUT AT REALITY!
Gene H
>Nobody has reduced reason to perception
Modern thought is a rejection of the Greek discovery of man’s conceptual mind and its volitional/logical control. Modern thought substitutes automatic, immediate knowledge, ie, the perception that man shares w/brute animals. Descartes focused inward to allegedly find ,but not volitionally/logically create, ideas already formed beyond his control. Modern science is strongly influenced by formal, ie, subjective, descriptions of mere regularities. Regularities are a suggestion to study causes, not the end of science.
@Swarthmore: I’m going to Austin in September, for academic purpose. Did you find anyplace in particular (restaurants, sites) worth visiting there?