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?
Geno, if tribalism didn’t preexist before the colonialists, then your original claim to internecine warfare being “created by” capitalistic remapping might have been a valid argument, likely your first ever. However, now that you concede that tribalism existed beforehand, then your causal claim, cannot be accurate and you are left with your fallback position of “exacerbation” which, at best, leaves capitalism as a contributing cause.
You’ve shifted the goalposts and then tried to disguise that shift with ad hominems. Right out of the
BuddhaGeneH playbook.Countdown to more of same… 5, 4, 3, 2, 1 …
Stephen,
Hmmm for some reason my dog’s ears just pricked up.
http://en.wikipedia.org/wiki/Oyo_Empire
Those savages, with their widespread trade, skill with iron work, highly organized military, and 400 year dynasties.
http://en.wikipedia.org/wiki/Benin_Empire
Or look at those schmucks, barely better than cave men, what with their cities, huge 100 year construction projects, and refined art.
If you’re going to pull that crap about the white man’s burden, at least have the good sense to disguise it a little better.
And thank you, kderosa, for adding to the long list of reasons why nobody takes you seriously.
kderosa,
Yours and Grossman’s attempts to rewrite history to favor your mythology are your faults. It’s not my job to fill in every gap in either of yours education. As to your previous comment about Africa? That there was tribal warfare before colonialism is irrelevant to the exacerbation of said problems by colonialism. There was tribal warfare in Europe too. The tribes of Europe had evolved to be defined by nationalism instead of the pre-nationalist tribal communities that existed before colonialism. You’re very good at making irrelevant points.
Thanks, GeneH. Whomever took my bet, let me know and I’ll send you my address so you can send your $20. GeneH I’ll send you half for the assist, just tell me Buddha’s address and I’ll send your check out.
Grossman,
You get more ridiculous with each post. The false equivalences on top of your religious fervor don’t help. Capitalism is not the same thing as individual rights. The notion that capitalism didn’t drive colonialism is not only historically and factually incorrect, but absurd. If you think that is true, then you are not just ignorant of world history, but of American history. I might also point out that your suggestion there is a Marxist conspiracy in universities is also ridiculous, McCarthy. Real universities (as opposed to religious indoctrination camps like Regents or political indoctrination camps like Hillsdale) are environments that encourage a free exchange of ideas from all perspectives. Even one’s you don’t personally like.
$20 says GeneH responds to my and Steve Grossman’s comments with ad hominem attacks instead of providing support for his conclusions? Any takers?
The GeneH playbook — Make a unsupported statement, respond to criticism with evasion and ad hominems, state opponents are stupid/biased/etc., end with a catch phrase, declare victory in as smug and arrogant a way as possible. Repeat
Is this the new civility, Geno? And you wonder why you don’t get treated with any respect.
Who said the colonial peace remained or that the borders didn’t exacerbate the existing problem? My point was that there was an existing problem, which you now acknoweldge and misleadingly failed to do so in your previous comment. Typical of your tactics. Why don’t you bring up relativity or state some latin phrase, state that no one understands it but you, and declare yourself king of the argument?
Are you trying to say that any of those countries you listed aren’t socialist, undemocratic, tyranically ruled shitholes? Surely, not, Geno.
Gene H:
>Africa is the way Africa is precisely because of capitalism.
Was Africa an advanced, prosperous, individual rights civilization prior to European colonization or a bunch of primitive, collectivist tribes slightly more advanced than cavemen? Where has your undefined alternative to capitalism ever been prosperous (without stealing the wealth created by capitalism as Marx advocates)?
>The capitalism that drove colonial imperialism to be precise.
Sometimes postmodernists (advocates of the arbitrary and conventional) condemn capitalism as anarchy and sometimes as tyrannical govt. They are very dizzy people. Capitalism, ie, individual rights, is a principled rejection of any such state policy as colonial imperialism. Capitalists recognize the market as creator of wealth and govt intervention as wealth-destroyer. BTW, Britain, which lost money because of its uneconomic colonies, was imperialist because of that headless monster, prestige.
You remain consistently uneducated (as distinct, of course, from the Marxist propaganda influential in universities)
kderosa,
What a simplistic and factually incorrect answer you have there. Yes, there was tribal warfare before the colonials. Any peace that existed while the colonials were there was there was brought about by colonial force. The idea that peace remained and that the mapping issues didn’t exacerbate the tribal issues repressed by colonialism is simply not the facts. When peoples have borders they themselves established removed and replaced with artificial ones drawn up by invaders fighting over resources, you end up with a situation where people with long standing disputes are literally forced to live with each other, fostering smoldering hatred and lingering resentment that is going to manifest again once the mitigation of colonial repression is gone. If you wish to argue this off topic point, all I have to say to you is Rwanda, Zimbabwe/Rhodesia, Nigeria, the Congo, Uganda and the Sudan. I could name more examples, but what is the point? It is all outside your script.
Take what you say seriously? Not in the slightest.
Kdpanzee,
You said: kderosa
1, July 27, 2011 at 9:52 am
How about just being a little more even-handed with admonishments to stay on topic, rather than selectively criticizing only the people whose opinions you disagree with.
Condescension trolling is no more elevated than any other form of it.
What is wrong with the above communication from you? Geeze…If it were not for GOP rhetoric and double speak…what intelligent could you say…Stay with the Platform….When you try and write outside of the Notes you are given….You do a miserable job….We want a New Troll….You are getting paranoid and delusional….especially if you think people care what you write….Either your lefty side is coming out or you really are a liberal….in either case…Your writing can be better….Stick to the notes…
Once again, Mike Spinwell, provides not a lick of evidence to support his conclusions.
We are told to read our history carefully, becasue only Spinwell has apparently read it carefully enough to perceive his argument that “far from being Marxist/Socialists, Africa is made up mostly of despotic satraps of continued imperialism of the capitalistic plundering kind”
Africa is rich in natural resources, yet it produces virtually nothing in the market. That is not something you see from capitalistic countries.
Name a few of these non-socialist, capitalistic satraps and provide some evidence to support your point for a change, Spinwell.
@GeneH — “Internecine tribal warfare created by the Colonial Imperialist remapping without thought to previous existing tribal and cultural boundaries. ”
Internecine warfare existed long before the colonial powers controlled Africa.
As I recall, a colonial power once controlled America and established borders. And in those borders disparate groups managed to coexist relatively peacefully both before and after the colonial power was booted out.
So, the borders aren’t the problem.
Also, colonial powers carved up the middle east and even there the natives managed to adjust. Iranian Shia now attack Iraqi Shia and not just Iraqi Sunnis. So nationalism seems to be trumping tribal/religious loyalties.
Gee, what could the difference be?
“I respectfully disagree. Africa is a continent of Marxist/Socialist dictators or just plain old Marxists and Socialists.”
Might I suggest you go back and read your history carefully, starting from the first White incursions into Africa and then following through to today. If you really had an understanding of what’s going on you might come to see that far from being Marxist/Socialists, Africa is made up mostly of despotic satraps of continued imperialism of the capitalistic plundering kind. Socialist? Roco, you’ve got to be kidding?
Roco,
“The Imperial powers left Africa almost a half century ago and Africa has not moved forward one iota.”
What has most hindered Africa’s growth? Internecine tribal warfare created by the Colonial Imperialist remapping without thought to previous existing tribal and cultural boundaries. Capitalism may be a part of the solution to Africa, but that doesn’t change the fact that the capitalism underlying colonial expansion is the root cause of that warfare. Capitalism isn’t a religion. It’s an economic tool. To paraphrase F. Scott Fitzgerald, “Show me a tool and I’ll write you a story about some idiot misusing it.”
“But you look at life through your own philosophy and on many occasions they appear to be talking points.”
Roco,
Actually as I’ve repeated many times on this blog I have no philosophy of life except my extrapolation of the philosophy of Rabbi Hillel talking about understanding the Torah: “That which is harmful yo you do not do to others, all the rest is commentary, now go and learn”. That is how I’ve tried to live my life. That is also how I figure out what I believe in political situations. I am and have always been an iconoclast. Sometimes that has made it difficult for people to relate to me because they find it peculiar, or even arrogant that I approach life from my own sense of the “rightness” or “wrongness” of things and issues.
Part of the problem of flying by the seat of my pants as I do is in framing ideas in discussion in ways that other people might understand. A main problem of human communication is words connote different things to different people. So I’m forced at times to use words like “Rightest” and “Leftist”, even though they are at base meaningless constructs, usually used as epithets. That could possibly be why you see me as using “talking points”. They are short hand, useful because if I tried to explain to someone how I’ve reached my opinion on a particular issue it would take far to many words and people already see me as being too “wordy”..
“Law, Objective and Non-Objective
All laws must be objective (and objectively justifiable): men must know clearly, and in advance of taking an action, what the law forbids them to do (and why), what constitutes a crime and what penalty they will incur if they commit it.
The retaliatory use of force requires objective rules of evidence to establish that a crime has been committed and to prove who committed it, as well as objective rules to define punishments and enforcement procedures. Men who attempt to prosecute crimes, without such rules, are a lynch mob. If a society left the retaliatory use of force in the hands of individual citizens, it would degenerate into mob rule, lynch law and an endless series of bloody private feuds or vendettas.
If physical force is to be barred from social relationships, men need an institution charged with the task of protecting their rights under an objective code of rules.
This is the task of a government—of a proper government—its basic task, its only moral justification and the reason why men do need a government.
A government is the means of placing the retaliatory use of physical force under objective control—i.e., under objectively defined laws.”
[“The Nature of Government,” _The Virtue of Selfishness_, quoted in The Ayn Rand Lexicon, online]
Gene H:
“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.”
I respectfully disagree. Africa is a continent of Marxist/Socialist dictators or just plain old Marxists and Socialists. The Imperial powers left Africa almost a half century ago and Africa has not moved forward one iota. The poverty is horrible and corruption is all pervasive. Government workers take bribes because their own salaries are so small.
Capitalism is not Africa’s problem but it could be Africa’s solution.
Tony C:
“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?”
you dont get it do you. Here is a much better explanation than I am capable of.
“Since a value is that which one acts to gain and/or keep, and the amount of possible action is limited by the duration of one’s lifespan, it is a part of one’s life that one invests in everything one values. The years, months, days or hours of thought, of interest, of action devoted to a value are the currency with which one pays for the enjoyment one receives from it.”
If the grandfather values/loves his grandchild there is no sacrifice. And I would never tell him he was wrong, People have a right to do what they want with their lives, they own their life. [and I might add the labor they do]
It is you who do not believe that.
Mike Spinwell
>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?
I presented concrete facts, personally experienced, of the profound corruption of the universities as a context for understanding the influence of their destructive skepticism, acceptance of sacrifice and collectivism, and the resulting, modern understanding of law. I wonder if Critical Legal Studies, ie, Marxism, has any influence in this blog.
Psychology and social relations are irrelevant here.