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?
Howington, are you editing my posts without noting the that you are editing out the GeneH — Buddha connection?
If GeneH were a new avatar, as you claim, I can’t see why you would care one way or the other that I’ve noted some connection since it is preseumably false.
However, I do see why you’d care about having the connection noted repeatedly if the conection were true.
In any event, you should have the decency to note that you are editing my posts and why.
Gene,
Kdnoid is probably getting in trouble with the Koch’s that is why he is either scapegoating or projecting…Not to worry….Elaine is hot and on his case….I do not think I’d want her PO’d at me…
@KD: Another liar. How do YOU know what the founder’s meant by “liberty?” We know from their writing they believed the government had the right to assess taxes on people, we know from their writing they believed the government had the right to compel citizens to certain actions, and we know they were setting up a system to pass laws that would compel citizens and those engaged in commerice because they believed in passing laws that would compel citizens and those engaged in commerce. This is why they invented procedural machinery for new laws that they hoped would reflect the will of the majority, albeit filtered through some checks and balances, as opposed to just setting some absolute rules that would last forever.
Further, the founders clearly did not collectively believe in “equality,” they did not abolish slavery and they reserved the right to vote to land-owning white males. For whatever political reasons, the founders took positive action to preserve a political system of wealthy white male supremacy, with females and non-caucasians and non-property owners all second-class citizens. These prejudices have slowly been undone, but I think pretending they were anything but the humans they were is a severe error in logic. They did carve out a space and a system that has eventually diminished many of their irrational prejudices, but that does not mean they didn’t HAVE those irrational prejudices.
I have been reticent in defining nothing, kderosa. As I previously said, “Liberty is a state of being free to enjoying various social, political, or economic rights and privileges. License is a permission granted by competent authority to exercise a certain privilege that, without such authorization, would constitute an illegal act. License (or forbidding license) is the essence of the rule of law. You saying I don’t understand is not a rebuttal or a history lesson, but it demonstrates that you are squarely against the rule of law.”
I trust I have made my point this time.
By the way, “total equality” are your words, not mine. Do you ever make a statement without a logical fallacy? Also, the quote is “What we got here is… failure to communicate.” I guess getting quotes wrong is a hard habit for you to break.
The problem we have hear is a failure in communication.
Gene’s reticence in defining liberty (rights) and equality is leading to his cognitive disonance. What the founders meant by these terms is not what Gene understands these terms to mean. from what I can glean from Gene’s understanding, his conception of liberty is in direct conflict with equality. You can’t have it both ways under that understanding. So GeneH, the good totalitarian that he is, needs to sacrifice our liberty rights in his Harrison Bergeron quest for total equality.
@Roco: And we are NOT talking about somebody keeping the fruits of his labor, we are talking about people paying their fair share of the expenses that produce the entirely artificial environment around them that multiplies the VALUE of their labor twenty-fold.
@Roco: So what you are saying is that an individual has a duty to the state to provide for everyone equally.
NO, that is total bullshit and you know it, so you are lying like a petulant child, it is NOT what I am saying. What is your pathological aversion to numbers between zero and a hundred? I am saying that an individual has a duty to the state, or society, or tribe or collective or anything ELSE you want to call it, to help others survive.
Survival is not equal provisions. Nobody owes 100% of their time to their society, nobody owes ZERO percent of their time to their society, everybody owes a PORTION of their time to their society, and the state has the right to collect that portion by force, or imprison the person, or eject the person from the state and thus terminate the benefits of the state’s laws and legal protections and benefits and the economic opportunities those create. Once again, little man, I have no problem with income disparity or some people being billionaires while others wait tables. I have no problem with skill, or talent, or creativity, or even genetic exceptionalism being heavily rewarded, such as it is in the sports and entertainment industries.
Why do you insist on this fiction about my beliefs? Is 100% Socialism or Communism really the ONLY thing you can argue against? Because if that is the case, you argue against completely imaginary foes, like the tinfoil hat guy living in his cardboard tent in the alley. I don’t think anybody here subscribes to those philosophies, and I certainly do not.
Roco, I thought this was your book. How come you guys get to have it both ways?
Roco:
“So what you are saying is that an individual has a duty to the state to provide for everyone equally. What I am saying is that an individual has a duty to himself to provide for himself.”
******************
The LORD asked Cain, “Where is your brother Abel?” “I don’t know,” he answered. “Am I supposed to take care of my brother?”
The LORD asked, “What have you done? Your brother’s blood is crying out to me from the ground.
So now you are cursed from the ground, which has received the blood of your brother whom you killed.
~Genesis 4:9-11 (GOD’S WORD ed. 1995)
Roco, I thought this was your book. How come you guys get to have it both ways?
Gene H:
the founders werent Marxists, that is not what WE the People means and if you think it does, I cannot help you.
It means that they all were socialist. Right Gene?
Gene H:
the founders werent Marxists, that is not what WE the People means and if you think it does, I cannot help you.
I disagree, it is the very framework a law should be evaluated under. Is a law moral, does it respect the rights of indivduals as individuals or does it not? We the People does not give license to politicians to take from some and give to others in the name of equality.
Tony C:
we are not talking about profits, here. But the right of an individual to keep the fruits of his labor which is his life.
So what you are saying is that an individual has a duty to the state to provide for everyone equally. What I am saying is that an individual has a duty to himself to provide for himself.
@Roco: She does not have a moral claim on the plumber due to her lack of skills or due to the needs of her children.
How many times must we say that we simply do not believe this? She DOES have a moral claim on the plumber, as they have a moral claim on her. Maybe YOUR morals afford her nothing, but the majority believes it is the moral duty of everybody, including you and the plumber, that her and her children’s lives are worth preserving. The majority believe that life is more important than profit, and that everybody (including them) must be compelled to contribute something to the preservation of the lives and future potential of others when either may be lost.
She does have a moral claim, and the morals of that are built in to our psyche. It is, indeed, immoral to demand that one person give up everything for another. But it is also immoral to allow a member of your community to die or starve because you cannot be bothered to give up 60 seconds of your day.
Some day, when you are mature, you will see that “one hundred percent” and “zero” are not the only choices available to us, and that neither of those choices is moral, and the truth is some fuzzy number in the middle that fluctuates based on externalities beyond our control.
“Another sleazeball, my subjectivist Epistemology prof, asked her classes if her lectures were fair. Maybe she had a guilty conscience.”
College must have been really traumatizing for you, you keep bringing it up so much. Must be either a recent experience and you’re just another youngster living off of his parents in their basement. Because if you’re over 25 and still talking about your college professors you’ve got some real issues son.
Well, Roco, you can’t make a just world when – like Objectivism encourages – you don’t even try. Our Founding Fathers felt differently than you do. That’s why the Constitution starts off with “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.” All of the goals set forth in the Preamble require equity both under the law and in its application. That avarice and ego have led our politicians astray from that basic fact is a matter of discussion for the topic of what has gone wrong with government, not analytical frameworks for evaluating if a law is both beneficial to society and just.
Gene H:
the world isnt just, there is no way to create a “just” world except by the use of force. You cannot make the single mother of 4 working at McDondalds to make ends meet, equal to the plumber who has 10 people working for him without taking from the plumber and the 10 people working for him.
There is no justice in taking from one to builder another up.
What the mother does deserve though, is to be treated as an individual and equally in the eyes of the law as if she were Bill Gates. She does not have a moral claim on the plumber due to her lack of skills or due to the needs of her children. That is what charity is for, private charity not government taking from one to give to another.
GeneH
“as you can’t be for justice without being for equality and equity.”
do you mean equality under the law and equity in its application?
If so Mr. Grossman believes in the same thing. He is all about the rights of man/individuals.
Grossman,
“Your evasion of my frequent advocacy of individual rights is noted.”
Your blatant hypocrisy is noted. I suggest you learn to deal with the fact that you cannot be for individual rights without being for equal rights just as you can’t be for justice without being for equality and equity. Objectivists always seem to fail to realize that’s one of largest weak points in Rand’s ridiculous pseudo-philosophy. If your “philosophy” isn’t for creating a just world. It’s for creating an unjust world where some animals are more equal than others. It’s getting late, Squealer. I bet Napoleon is wondering what you’re up to.
Retained natural rights are all rights/liberties not specifically delegated to
government no enforce/protect. As long as you understand what right is, unlike Gene/Buddha, it’s easy.
@Grossman: You’ve got nuthin. Who decide on what individual rights are? The majority. You will say ‘reason,’ but who decides what is a valid argument and what is not? The majority. Who decides what an acceptable premise, or self-evident statement, or axiom is? The majority. You’ve got nuthin’, there is no form of reasoning that does not ultimately rest upon the authority of common acceptance of what is and is not an acceptable logical conclusion, which is always the rule of the majority because we will always have to exclude the insane and others with brain damage and emotional problems incapable of proper reasoning. And what constitutes proper reasoning? The Majority.