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?
Care to tell us all again how “bringing civilization” to the natives doesn’t cause problems again? How about you go find a Cherokee or a Creek or a Blackfoot or a Shawnee or an Iroquois and ask them about that? If you can find one.
You mistake me for someone who takes you seriously, kderosa.
It’s hard to take someone seriously who purposely campaigns for the idea that technological and sociological exploitation is “civilization”.
As GeneH’s slow metamorphosis back to Buddha takes its course …
GeneH tell me your views on the Big Lie and propaganda.
Spoken like a true imperialist and oppressor, kderosa.
I’m proud of you for finally showing your true colors.
Good dog.
@GeneH — You and your crazy shifting arguments.
Here’s what you started off saying:
“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.”
A bold and unflinching statement if ever there were one. Capitalism is the “root cause.” Warfare is “caused by” capitalistic remapping.
Also, as is your custom — zero support provided for any statement, except your word.
Then you were challenged, and informed that tribal warfare existed in Africa far before the “capitalists” got there. You accepted that point and backpedalled to this new position:
“The situation in Africa today is directly attributable to the capitalism that drove imperial colonialism. Capitalism and “resource redistricting” made things worse than if Africa had been allowed to sort itself out without being the object of recent colonialism like pre-industrial Europe did.”
So, capitalism is no longer the root cause, but merely made things worse. This is itself an unproven and likely unfalsifiable conclusion.
You sounds increasingly ridiculous.
Rome was civilization. Without Rome, the natives took a millenum to reach that level of civilization on their own. Rome didn’t cause the problem or make the situation worse. That is the same situation as Africa. The European colonizers brought civilization and when they left, the place reverted back to the disfunctional shithole that it was beforehand.
SwM,
understood 🙂
“Inter-tribal warfare that the occupiers had repressed with the Legions. When it sorted itself out, the rise of European nation-states began in earnest.”
Gene,
To add to that, the sorting out really didn’t start until the 1600’s or so. There was a hangover from feudalism, even the Brits were having trouble consolidating their Isles. Germany didn’t unify until the 1800’s and the same with Italy. Since I’ve been on a Social Darwinism kick lately and tangential to this: Teddy Roosevelt and his ilk considered the Celts (Irish and Scots) to be culturally inferior (get this) “races”, to the Anglo-Saxons, nee Teutonic “Race”.
SwM,
By should have been Bi … as in two … good ol’ Byron outed himself months ago which was, hopefully, a lesson to all
By the way … on the avatar he outed himself through, he used to call me Blousi … compelling coincidence I guess.
Like I said … too easy
kderosa
1, July 28, 2011 at 12:31 pm
Is there a point in there, Blousi?. If you want to accuse me of something, go ahead and accuse me; don’t be passive aggressive about it.
————————————————————————-
I love it when you tell me what to do … so … masterful and controlling … the little woman in me is swooning …
Your love of taking things out of context and trying to conflate them into some kind of non-point is truly amusing to watch, kderosa. The situation in Africa today is directly attributable to the capitalism that drove imperial colonialism. Capitalism and “resource redistricting” made things worse than if Africa had been allowed to sort itself out without being the object of recent colonialism like pre-industrial Europe did. Europe hadn’t been subject to colonialism since the Romans. And what happened after the fall of the Roman Empire? Inter-tribal warfare that the occupiers had repressed with the Legions. When it sorted itself out, the rise of European nation-states began in earnest. That’s the struggle going on in Africa today. Same social and economic mechanic, different period in time, different players and an even greater disparity in technology. I’d never expect you to openly stipulate to anything that illustrates the faults in capitalism even though that is in fact what you did, your claim of assumption arguendo notwithstanding. The Koch Brothers would stop paying you if you said anything critical of capitalism.
Good boy.
Sit.
Rollover.
Don’t think it is Byron, Blouise.
AY,
Only if By lives there
kderosa,
No need … “Blousi” says it all …
This is just too damn easy
@GeneH — “That you cannot differentiate past and present is just one of your problems. The original response you are referring to was referencing the present.”
Another page out of the cheapshot playbook.
There is nothing in any of my statements that even suggests I believed that you were talking about anything but the present. In fact my argument wouldn’t make sense if I were referring to the past.
You are either making this “past/present” nonsense up in ant attempt to make it appear that you’ve made some non-existent point to suggest victory or you have some serious reading comprehension problems. I’m guessing it’s the former.
“If you want to stipulate that capitalism exacerbated tribal warfare in post-colonial Africa, by all means be my guest.”
What makes you think I want to stipulate anything. Assuming arguendo is not the same thing as stipulating.
So, tell me GeneH, how could “Internecine tribal warfare” have been “created by the Colonial Imperialist remapping without thought to previous existing tribal and cultural boundaries” since you concede that “there was tribal warfare before colonialism.”
How can you ceate something that existed beforehand? hhmmm, hhhmmm.
Cue the Gene, Gene the Dancing Machine video.
Grossman,
“>Objectivism, has no place in examination of the law.
Not in your selfless, collectivist, anti-individual rights law.”
Actually not in any rational examination of the law geared toward reality and creating a just society because Objectivism is psychologically flawed in its premise to the point of invalidity and as a practical matter can only lead to anarchy and tyranny because of its flaws. There is nothing rational about Rand’s “rational self-interest”. Just egotism and rationalization for being a less than human human. Have you ever wondered why you have such a battle converting people to your faith? Selfish people suck. Most people seek enlightenment for self-improvement, not self-aggrandizement.
Have a wonderful day hating the world.
Gene H.
>, like any extremist,
True
> irrational
intellectual fraud
>and psychologically invalid viewpoint.
volitional ideas are not reducible to automatic psychological effects
Note that this braindead, mental hospital screaming asshole doesnt connect his uneducated drivel to his philosophy of law, which, by his absurd standard, is reducible to HIS psychology. I believe we need a letter from his headshrinkers to properly evaluate his…uh, ideas. And, because people guided by a pseudo-morality based on concern to relieve others’ pain are psycho-cesspools of raging hostility from the belief that they have no absolute right to their own lives but that everybody else does. See: Hitler, Mao, Stalin, socialists all. Selfish people dont carry a load of resentment because others wont obey their every whim. Selfless people want collectivist politics to enforce empathy. I have empathy for businessmen terrorized by the selfless politics of such degraded souls. I have only contempt, no pity, no compassion, for selfless people. Even more, they bore me. There is nobody home in them. Their self has been replaced by social approval. Dracula was the symbol, in liberal Weimer Germany, of the selflessness-caused rage that dominated the intellectuals and artists in that nihilist culture. Kant explicitly rejected respect for other people’s interests. Weimar ideas have dominated America until recently: subjectivism, irrationalism, sacrifice, collectivism, madness as liberation. Now, religion is dominant.
>Objectivism, has no place in examination of the law.
Not in your selfless, collectivist, anti-individual rights law.
Blouise,
I think that Kdrosa….is from Florida….That is just my opinion….
kderosa,
That you cannot differentiate past and present is just one of your problems. The original response you are referring to was referencing the present. If you want to stipulate that capitalism exacerbated tribal warfare in post-colonial Africa, by all means be my guest.
Gyges, you are right, being only a millennia or so behind the Europe and Northeast Asia must count for something. It’s easier to copy than to originate, don’t you know.
Is there a point in there, Blousi?. If you want to accuse me of something, go ahead and accuse me; don’t be passive aggressive about it.
kderosa,
Rule #1 … always check the email address before posting … the more avatars one uses the greater the chance of error.
Just a friendly reminder. 🙂