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?
@Roco: People should not give up their “self” for others.
And why not? What makes that wrong? If a grandfather decides to donate an organ to save his grandchild, on the grounds that he loves the child and on the grounds that he is self aware enough to know his life is mostly spent anyway, so it is worth risking a dozen years of his life for the reward of 70 years for his grandchild, who are you to tell him he is wrong?
I thought you were the guy that believed the grandfather’s body was his property to do with as he saw fit. Now you are passing moral judgment upon him, saying he shouldn’t risk the surgery, or the complications, or the shortened lifespan he will almost certainly have. On what grounds?
It seems to me selfishness has nothing to do with logic in your head, it is just your knee jerk religion.
I think the question of who you would save is just silly. Selfishness in an ermergency does not justify selfish at all times.
Not all of life is an emergency. The calculus changes in an emergency. It is a reasonable response to hold a gun on an unarmed intruder in your house, until the police arrive. That does not generalize, it is not generally okay to use a gun to hold an unarmed man hostage. It is a reasonable act to pull a drowning child from a river without any permission, it is not generally okay to just grab a swimming kid and pull her out of the river without permission. It is okay to rip a woman’s blouse open if you need to stanch the bleeding wound beneath it; it is not generally okay to rip a woman’s blouse open.
Besides all of that, your statements are logically inconsistent, Roco. If you think a moment of selfishness in a moment of emergency justifies 24/7 selfishness, why wouldn’t you think a moment of altruism during somebody else’s emergency justifies 24/7 altruism? Both cannot be true, we cannot be selfish 24/7 and altruistic 24/7. If you think it is immoral to codify altruism into law, why isn’t it equally immoral to codify selfishness into law?
The answer is simple, momentary selfishness does NOT justify a policy of selfishness. Momentary altruism or charity does not justify a policy either. LOGIC justifies public policies of selfishness, altruism, and charity, where they exist. In private life, freedom to do what you want with your time and resources means that your own logic, or emotion, or any combination thereof, is what justifies your personal selfishness, altruism, and charity.
Policy and personal life are two different areas, with different justifications for acts in each. The government is not a person; and using a person as a metaphor for deciding what government should and should not do is a severe error in judgment that will produce terribly counter-productive policies.
is your point that I owe you some sort of courtesy?
Gene H:
why you insult kderosa? she know QED mean.
go eat shebingqua you feel better.
You simply keep proving my point. It’s a lovely thing to watch in that train wreck kind of way.
@buddha, there you go again. I know what QED means, but what point did you think you were making. And in any event you were ignoring my argument. So add in a cheap shot and your own discourtesy and you’ve overproven my point once again. Do I even need to add my own QED?
Mike Spindell:
I would probably do all I could to save my loved one and if I couldn’t I would save the other person.
So Gene H is probably right in his assertion. And I have probably violated my disdain for life boat ethics.
Wanting to help other people is not necessarily altruism, which I construe to be helping other people to your own detriment. Doctors often time become doctors out of a desire to help people and a love of medicine. I wouldn’t call them altruists.
People should not give up their “self” for others. That in my mind is altruism. You want to be a sidewalk mime then do it and don’t let your mother or father guilt you into being an accountant if you hate accounting.
Mike Spindell:
Then I will try to answer you with civility.
But one of the problems is that for every time you accuse us of being propagandists and spouting talking points, we believe the same of you.
I used to read the Nation and the New Republic but most of the time it was just far left talking points. There were a few articles that were actually very good but they were few and far between. You probably feel the same about National Review.
How do you adhere to a particular philosophy, study it examine it and use it in your own life and not have it appear in your thinking? From my perspective, that article you wrote on the women who lost a child and was prosecuted was near brilliant. The same thing happened to me when I was around 6 and thankfully the person who hit me was a very old man who was going very slowly. So I feel for that poor woman, my mother was a wreck and I learned later the old man was crying and very upset.
But you look at life through your own philosophy and on many occasions they appear to be talking points.
You know your philosophy is right and I know mine is right, so one of us is wrong on certain things. I imagine we agree on certain other things. The certain other things we agree on are probably universally true, such as racism is evil.
kderosa,
Quod erat demonstrandum wasn’t ignoring your argument. It was pointing out that you had just demonstrated mine. It’s no wonder nobody takes you seriously.
“Do you love someone close to you? If they were drowning and a stranger was drowning who would you save first?
If you answered your loved one, you are a selfish asshole.”
Roco,
Are you serious? I would of course save my loved one first all things being equal, only a sick altruist would react differently. Notice I said all things being equal, which is your postulation. Who to save would be as Gene put it a pragmatic choice of need. This though is part of the problem with you in that you think because I care about the lives of people I don’t and will never know that I’m an altruist. My caring equates to my own ethical and moral standards and to my sense of fair play. Altruism is just a bad name selfish people like to call those who aren’t.
“Why is it, that when you disagree with someone you say they are misguided youths supported by their parents? When clearly they are not.”
Roco,
I’ve never called you a misguided youth or DeRosa for that matter.
Mr. Grossman on the other hand argues like most young men in their early 20’s, totally convinced he knows it all. His style is the epitome of immaturity and truly how much do you sit around thinking about your former college professors? Within months of graduation, supporting myself, I didn’t think about them at all, much less refer to them in conversation. His whole outlook, forget the political philosophy for a minute and focus on his style of exposition, evinces a callow youth. I’ve never doubted you are a business owner, nor that DeRosa is an adult and i’m taking you at your word. Why, even though I disagree with you, your writing is that of a grownup. Mr. Grossman’s is of someone wet behind the ears and I suspect still living off of his parents.
“I for one would like to see a real intellectual debate on this site instead of it always being degraded to “you are a sociopath””
A debate would be really nice, but the problem is it requires a knowledge of how to debate honestly. To be quite frank none of the three of you seem inclined in that direction. I have always been quite welcoming of anyone who’s come here, despite their views. However, when I see a continuum of sleazy debating tactics and tricks it tries my patience since I am not dealing with honest actors.
My age is an advantage because as a child I watched the “Meet The Press” of Laurence Spivak, the reportage of Ed Murrow and Walter Cronkite. I watched adults like William F. Buckley, William A. Rusher and Norman Mailer debate so I’ve got a good idea of how it’s done properly.
Your tactics and those of your two amigos don’t rate anything but disdain. You all use talking points as arguments and never directly refute what is said. DeRosa, uses trickery as a matter of course and Grossman is more of a true religious zealot than Jerry Falwell. If I can’t take you seriously and you won’t be serious, then I will treat you with disdain.
You know this is true Roco, because there have been many times I’ve treated you with courtesy, when you were actually discussing rather than blathering propaganda.
“And kderosa has begged you all to be civil.”
Really Roco, you take him seriously when his chief debate tactic is akin to someone mimicking someone else, like a child? Only this isn’t a child and he uses the tactic dishonestly. Bdaman started out considered as a troll here, but through the years earned peoples respect by showing that his viewpoint is nuanced and showing the human side of himself. you too on occasion have shown the ability to be nuanced in viewpoint. DeRosa hasn’t and Grossman is incapable of it.
The other thing you all don’t seem to get is that most of the regulars here are far from rigid minded left wingers. Mespo isn’t, Gene isn’t, Bob isn’t,
neither are Elaine, FFLEO, Blouise, Buddha, Gyges, Raff, Mike A., OS, SwM, Jill etc.. There are many other valued regulars here who I apologize to for not including but it is a huge list. JT, our host is not a “Left Wing Collectivist”, yet you and yours have made that a solid part of your debating style to mis-characterize our opinions.
Roco, I for one know intimately more than anyone else here about Communism. As I’ve stated before in the 60’s and 70’s I was associated with them, as an opponent, in a labor union that I was prominent in. Some of the people I knew were high up in the Communist Party, USA, or in the Maoist Progressive Labor Party, or in the Trotskyite Movement. Because I was young and charismatic they all tried to recruit me and then began to hate me as I rejected them, mocked them and opposed them. I can remember being called “A running dog of capitalism” by a Trotskyite I was debating, as we both ran for the Union Presidency. I came in third the more organized Trotskyites a distant fourth.
I’m far too much an individualist to be for collectivism and I understand Marxist thought far too well to think it is workable or desirable. Yet you all keep tarring me and others with the same brush, when you can’t counter our arguments and that is indeed the ad hominem, you are so quick to accuse us of using. That I’ve even taken this length to try to explain to you indicates how much I would like this bullshit to end. I have vain hope of it though, because the most dangerous and thickest people in the world are “true believers” who turn their politics into catechism and are thus unable to really hear any differing points of view.
well at least buddha was nice as he ignored my argument. About as good as one can expect.
Roco,
First, Africa is the way Africa is precisely because of capitalism. The capitalism that drove colonial imperialism to be precise. The colonial powers divided up the map based on resource wars, completely disregarding any previous tribal or social boundaries that existed before they got there.
Second, I’d save the one I thought I had the greatest chance to save, preferably with an eye on optimizing the situation so as to be able to save them both. A rescue is an emergency situation. Maximizing outcomes and survivability for both victim(s) and responder should always be dealt with dispassionately. When you panic or act emotionally, people die. I know for a fact this would be my reaction, because I’ve seen me do it that way. I don’t panic in those kinds of situations nor do I make emotional decisions. Never have, not even as a child. I make practical rational decisions.
Gene H:
Africa is a festering shit hole, collectivism is the cause not rational self interest.
Good intentions pave the way to hell, it may be noble to help your brother. But as Africa proves, if there is no rice you cannot share.
Capitalism produces abundance and abundance is good for human beings, capitalism is about self interest. Therefor self interest is good for human beings.
There is nothing wrong with private charity or helping your neighbor who has found himself in a bind through no fault of his own. However it makes no sense to help your neighbor at the expense of yourself.
Free people do cooperate when they involve in mutually beneficial trade. It is the ultimate cooperation. Free people typically do not make war on their neighbors, they trade with them. Trade is much more productive and beneficial.
That some people use Objectivism to be assholes is undoubtedly true.
Do you love someone close to you? If they were drowning and a stranger was drowning who would you save first?
If you answered your loved one, you are a selfish asshole.
QED
@GeneH — “kderosa can’t even manage courtesy”
As I’ve already demonstrated, the very first statements out of you, as both GeneH and Buddha, directed to me were personal attacks. Should I provide you with the links again? You have earned the all discourtesy I now afford you. Be nice and I will be. It’s as simple as that. The problem is even as genH you are a jackass.
Also, GeneH re selfishness, that is one of our retained rights isn;t it. So long as it doesn’t affect you, why is it a problem? Let’s see how your theory of rights and equality handle that.
Roco,
You have shown that you are actually capable of conversation from time to time. kderosa can’t even manage courtesy, so you’ll pardon us if we laugh at the idea of him begging for civility and Grossman is a preacher, not a conversationalist, which is a usually crippling defect in the ability to reason. How about this for an idea? Why don’t you try for yourself and let the others fall where they will.
Just keep in mind most arguments that are set in selfishness are perceived as being made by a selfish person. There is only one way to have a dialog about bettering society and that is to recognize that society – much like conversation – is a cooperative venture. If your Objectivism is going to get in the way of that, don’t waste your time trying or learn to phrase your arguments better. If you don’t like being thought of as a sociopath? Let me give you some advice, whether you take it or not.
Whether you like it or not, most people who aren’t Objectivists think Objectivists are simply selfish assholes (which is only a small step away from being an actual sociopath). Sorry, but that’s the brutal truth of it. That’s due in large part because that’s exactly how their “philosophy” makes them sound. Not having empathy for others is unnatural to most people. Most people don’t have a problem with the concept of sharing or helping out the less fortunate therefor altruism isn’t a dirty word to them. It’s simply how humans are generally and genetically wired. However, if you want to try and join the grown up conversation table, by all means, do so. Just remember, finding solutions isn’t about personal victory. It’s about cooperating to find the best idea even if it isn’t your pet idea.
@TonyC, please, I don’t think that word (logic) means what you think it means.
@Roco, if you take away their personal attacks, what will they have left to “argue” with. All of their “ideas” are old and discredited. The test of time has not been kind to them. There are no merits to their arguments. Their arguments now run the gamut from snark to vitriol. Look how flustered GeneH has been since the switch-over from Buddha. He used to have a whole repreptoire of personal attacks to fling. No all he has is “I don’t take you seriously.” Not quite the same impact. In any event, as much as I would like civil discourse, you will never get it from any lefty. Never.
P.S. And of course the reason you do those things is because deep down, you guys know you’d LOSE if you engaged in any actual logic. From which logic tells us you have conceded on logic before we’ve even begun. I recognize and accept your surrender.
Mike Spindell:
Why is it, that when you disagree with someone you say they are misguided youths supported by their parents? When clearly they are not.
I used to comment in a civil manner but quit doing so when I was equated to terrorists, child molesters, sociopaths and other undesirable elements of society.
It is a standard tool of the left to label those they do not agree with with such negative images.
When people on this blog disagree with people who actually do believe in individual rights, they are very vicious about it. There is no actual argument just “you are a sociopath” or worse. And from what I have seen it is usually the regulars who take the first “shot” and then when responded to in kind wonder why.
I personally agree with some of what you say and even some of what Gene H says, but then I also agree with kderosa and Stephen Grossman.
I for one would like to see a real intellectual debate on this site instead of it always being degraded to “you are a sociopath”.
Maybe you would learn something and maybe we would learn something.
I would be willing to try and I am pretty sure kderosa and Stephen Grossman would give it a shot if there was no ad hominem. In fact I suspect Stephen Grossman would love it, being a philosphy major. And kderosa has begged you all to be civil.