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?
Perhaps if you hadn’t slept through Con Law and weren’t so busy sucking up to your IP professor’s, none of this would escape your simple grasp, kderosa.
Here’s an idea. Why don’t you cite some Madison that demonstrate your point? While you’re at it, why don’t you find out whether the Constitution is a living document or not, the value of stare decisis, familiarize yourself with the rulings of the Douglas Court, the Due Process Clause of the 14th Amendment and the formal amendment process as outlined in Art. V, the informal amendment process as exemplified by the Judiciary Act of 1789 and the Civil Rights Act of 1964, Missouri v. Holland, and read Lawrence v. Texas (not that you’ll understand it). Strict constructionists are little better than Luddite clowns (if it’s any consolation, I mean Scalia too). Times change and so has the Constitution to adjust for those changes. It’s a template for government, not a death pact.
@rafflaw, if you want a more detailed answer you’re going to have to put a little more meat on the bones of your argument so I know exactly what you are talking about and what your points are. I know you are trying to get to something; I’m just not sure what exactly.
Kderosa,
With all due respect, that answer is a cop out.
You need to get beyond the schoolhouse rock version of government, Geno.
“All of these functions require equity.”
Equality of opportunity and opportunity in the eyes of the law. Otherwise, this is pure nonsense.
We didn’t have a revolution to go from the tyranny of King George to the tyranny of Dictator Buddha. Your understanding of our Madisonian constitution is sorely lacking, which is why you always talk in simple platitudes. Cite some of these Madison quotes that demonstrate your point.
@rafflaw, as long as we have progressive taxation and social welfare, there will be redistribution of wealth regardless of changes in across the board marginal tax rates.
kderosa,
Out come the talking points again. Redistributing the wealth? Was it redistributing the wealth when 95% of Americans got their Federal taxes reduced? Was it redistributing the wealth when the Bush tax give aways to the wealthy were granted and then extended? Was it a redistribution of wealth when many Corporations paid little or no Fed taxes and some actually paid zero taxes and got millions in tax refunds? Where is the equity in that?
“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 these are the function of the United States government, kderosa.
All of these functions require equity. Justice requires equitable outcomes (hint: the scales mean something). You don’t get domestic tranquility when there is no justice. Providing for the common defense requires doing so for everyone. Promoting the general welfare requires equity as it is the general welfare; it applies to everyone. If you’ve got a problem with realizing that society is a collective endeavor and that the functions of our government as related to our society are spelled out in the Preamble and the rest of the Constitution and that forming an equitable form of government was a driving force behind what they did in response to the tyranny of King George, then I suggest you take it up with James Madison and the rest of the Founders. As far as “my view” goes? Thanks for the promotion, but I wasn’t on the Court that decided Griswold or any of the cases leading up to it nor am I a Founding Father. Fortunately, I do have a 3 digit IQ and a compassionate soul which keeps me from being a Libertarian.
“I’m for the maximum allowable liberty while maintaining as just a society as possible that operates off the rule of law. ”
There’s the rub, Roco. The exception that swallows up the rule.
“The entrance into society via the social contract comes with costs to absolute liberties as some liberties do need to be curtailed in defining illegal actions.”
There are a bunch of enumerated rights we gave up for the gov’t to police as civil rights. Otehrwise, we retained the rest. unfortunately, acording to your view, we gave up a whole bunch more for you to operate your totalitarian regime, to dole out/redistribute goods/services/money in the name of “fairness.” “utility,” or “equity.”
I understand anarchy just fine, Roco. It’s you who doesn’t understand the idea of the social contract. There is no form of government that doesn’t require the limitation of some liberties in exchange for the mutually derived benefits of society under government. None. From hereditary monarchy to democratic representative republic to feudal city states to totalitarian dictatorships, there is no form of government that does not require this sacrifice. An absence of government is called anarchy. Anarchy is a state of inherent lawlessness. You have every liberty you can imagine to act upon in a state of anarchy, but only in a state of anarchy.
there you go again throwing that anarchy strawman into the mix.
Actually I am pretty sure you dont understand it.
False dilemma, Roco. I understand perfectly what I’m saying, but you apparently don’t understand what the social contract is. I’m for the maximum allowable liberty while maintaining as just a society as possible that operates off the rule of law. The entrance into society via the social contract comes with costs to absolute liberties as some liberties do need to be curtailed in defining illegal actions. That’s not totalitarianism. That’s reality. If you want perfect liberty, you need to live without a government. Political scientists have a word for that. Anarchy. The problem with anarchy is that it is anarchy and anarchy always devolves into tyranny. It is an inherently unjust state. If you want a government, you will give up some of your liberty.
kderosa:
“Why are you citing to a general encycopedia entry, when Locke’s Two treatise’s is oublically available. Cite the primary source and provide your quotes instead of beating around the bush with your obfuscation.”
Probably because his progressive puppet masters [his teachers and professors] told him otherwise and he believes what they have taught him, hook, line and sinker.
“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.”
A free people do not need permission to enjoy social, political or economic rights and privileges.
You truly do not understand what you are saying or you are a totalitarian.
So which is it?
Tony C:
“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.”
So how much is enough and what is the threshold of “survival”?
You really dont know what you mean and you are a collectivist/totalitarian at your core.
Mespo727272:
“Roco, I thought this was your book. How come you guys get to have it both ways?”
I dont have it both ways.
Tony C.
>Cooperative effort in society produces advances
Society is merely a means for the end of each individual as individual to himself alone. Relations among people are mere means.
>Nothing logically makes individual rights more important than cooperating effectively in a society,
More important for the individual or for society? Logic requires holding the context, not dropping it.
>Rand’s weak rationalizations founded in stupidly fictional premises
You evade her explicit, classical philosophy that she concretized as a whole in her fiction.
> the majority has the right to set rules that bind EVERYBODY, including themselves.
The context of rights is the individual’s life in society. And the basic requirement is freedom from the initiation of force. Socialist thugs have no right to stick guns in the face of productive businessmen and demand obedience. Self-sacrifice does not justify sacrificing others. Even Kant, the most sophisticated advocate of sacrifice, explicitly confessed that sacrifice is irrational.
>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.
Teachers know this from their understanding of how man reasons, the curriculum, their teaching method, and tests. The democratic fanaticism of public opinion polls is a rationalization for intellectual dependence. But, like you, she was a sleazily dishonest social subjectivist (Kant) whose context for thinking was not reality as known by her mind, but what others thought or felt about her.
>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.
She was a professional fraud and incompetent. Her Kant seminar was so poorly taught that I had to translate between her lectures and her student’s questions. Both thanked me. The nitwit used Heidegger to “explain” Kant, as if a drunk and a drug addict babbling to each other produce rational clarity.
> Gene H says no one reduces reason to perception.
>Aristotle has not been keeping up with the literature in psychology, neurology, and evolutionary psychology, at least not as much as I have.
Philosophy is the context for the special sciences. The power to volitionally conceptualize the evidence of our senses is a common human experience. The quacks w/Ph.Ds. evade this power and rationalize the evasion w/the materialism refuted by Plato and Aristotle.
Science is what philosophy says it it and nothing more. Greek reason created science and Kantian subjectivism is ending it.
> Ideas are volitional.
No, they aren’t. See how your blind assertions can be countered by my own assertions?
My assertion is a reflection upon common human experience, which you evade. I choose to think of you as a turd. Now I choose to not think of you at all. See how easy it is! Try focusing your mind, thru your senses, onto the concrete, material universe. Given your philosophical irrationalism, this will be painful at first, with some horrific recognitions. Have a bottle of Jack Daniels handy, perhaps some Rachmaninoff to help you over the really bad parts.
The contradiction of determinism is that its advocacy is itself determined, with thus no claim to objectivity. Leaves waving in the wind are not “true” in one direction and “false” in another. They merely respond to the laws of nature as they must. And, if determinism is true, so must the determinist. We don’t tell leaves that they are scientists and should do the same for determinists. Unfortunately, these creatures have faculty posts and intellectual prestige.
>You can’t prove [ideas are volitional].
Youre dropping the context of the volitional nature of proof and refutation, ie, man’s power to conceptually identify the logical link or lack thereof between ideas and reality. Unless, of course, you were determined to think that determinism is true, without ability to monitor and regulate your mind, lost in fantasy, symbol manipulations, word salads, metaphors and emotions. See: Munch’s “The Scream.” Man without mind is a self-created freak without survival ability. Thus such short-range depravities as sacrifice and collectivism.
> the evidence of brain science;
Evidence is a fact logically/volitionally linked to an idea.
>ideas are far more reactive than volitional.
1. A car is faster than a turtle but both have movement. If ideas are less volitional than reactive, they must be volitional.
2. Ideas are either reactive or volitional.
>> You are guilty.
>You are wrong. See? Blind assertions without evidence.
Your nihilist hatred of man’s mind ,the mind that created law, is evidence.
Gene,
Kdanoid is running scared….he is having trouble making coherent arguments…regardless of how many times you read his drivel…it is getting worse…
@Howington,
You get more and more confused with each comment you make.
Why are you citing to a general encycopedia entry, when Locke’s Two treatise’s is oublically available. Cite the primary source and provide your quotes instead of beating around the bush with your obfuscation.
Again, you aeer looking for liberty, natural rights, license, equality.
Your paranoia is truly astounding, kderosa.
Clearly you’ve never read or understood Locke or you’d know my definition is quite in line with his. http://plato.stanford.edu/entries/locke-political/ You mistake the State of Nature for being liberty under a legitimate political system. This indicates that you do not think our legal system is legitimate which, abuses aside, it is quite legitimate in the form the Founder’s laid out initially, that being a democratic representative republic. The State of Nature and liberty under law are not the same thing no matter how much you’d like to think they are. That you make up your own definitions or distort them to suit your needs is quite well established at this point. Under the social contract, you give up parts of your “total” liberty under the State of Nature for the mutual advantage that government and society provides which in our case are defined in the Preamble. Again, if the rule of law does not suit you, you are free to find a nice lawless wasteland to practice your unlimited rights under the State of Nature. No one is forcing you to keep your citizenship.
Also, thanks for admitting you were using a straw man. It further shows that you are willingly dishonest in your argument(s). There is no reason anyone should take you seriously and you keep demonstrating that with every post. Instead of being so concerned over my “identity”, perhaps you should start to mind your own better. Claims from a perpetually discredited poster become exactly that: perpetually discredited. You are useless to your masters if no one takes you seriously. Your persecution complex does nothing to add to your credibility and in fact seems to be eroding your already weak credibility even further.
@Howington,
“Liberty is a state of being free to enjoying various social, political, or economic rights and privileges.”
Clearly you are not using the Lockean definition the founders used. Did you make this definition up your self? It is amateurish. And wrong.
“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.”
Again, you failed to note the Lockean distinction. this is why your subsequent argument is so far off.
“it demonstrates that you are squarely against the rule of law.”
How so?
“By the way, ‘total equality’ are your words, not mine.”
They are, but as soon as you define equality, it will become clear that taht is what you mean, not just equality of opportunity like the founders intended.