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?
Stephen Grossman:
I would like you to speak to the Fascism/Socialism issue. I have long said they are subtle shades of the same color.
But what about the socialist countries in Europe? They are not necessarily nationalistic and are not bent on world domination.
But when you point out fascism is nothing but socialism with a different twist, it gets people knickers in a twist.
As far as I can tell the difference is private ownership vs. government ownership but with government control of what the private owner can do.
So the distinction is quite small essentially. If i own a property but cannot do what I want with it but must do what the state deems beneficial there is no real difference.
Is that right or is there some other element I might be missing?
Still no answers to the two questions, Roco?
Mike Spindell:
this is from the same speech by Teddy in 1912:
“We wish to control big business so as to secure among other things good wages for the wage-workers and reasonable prices for the consumers. Wherever in any business the prosperity of the business man is obtained by lowering the wages of his workmen and charging an excessive price to the consumers we wish to interfere and stop such practices. We will not submit to that kind of prosperity any more than we will submit to prosperity obtained by swindling investors or getting unfair advantages over business rivals. But it is obvious that unless the business is prosperous the wage-workers employed therein will be badly paid and the consumers badly served. Therefore not merely as a matter of justice to the business man, but from the standpoint of the self-interest of the wage-worker and the consumer we desire that business shall prosper; but it should be so supervised as to make prosperity also take the shape of good wages to the wage-worker and reasonable prices to the consumer, while investors and business rivals are insured just treatment, and the farmer, the man who tills the toil, is protected as sediously as the wage worker himself.”
Sounds like a modern day democrat/progressive to me. Government is the solution to all the problems.
Mike Spinwell
>TR was all you said he was but that included and informed his belief in Anglo-Saxon “Racial” superiority. That was what justified his imperialism and love of war as a redemptive agent.
Note TR’s collectivist redemption.
TR advisor and “New Republic” co-founder, Herbert Croly, was the son of a leading American Comtean. Comte, the coiner of “altruism,” explicitly rejected rights for “the social point of view.” Croly studied under the Harvard Hegelian, Josiah Royce, who damned individualism “as the sin against the Holy Ghost.” Hegel, an advocate of waltzing contradictions, has been accepted as both nationalist and socialist. Hitler, of course, was the leader of the National Socialist Workers Party of Germany. American Progressives often justify socialism as bettering the nation. Gene H denies being a socialist, presumably because he finds its economism narrow without environmentalism, tribalism, ethnicity and race. Thus postmodernism, the end of the Kantian reality/mind split. This is why religious conservatism is reviving. Such is the cultural influence of ideas.
Mike Spindell:
this is from a speech by Teddy in 1912:
“Workingwomen have the same need to combine for protection that workingmen have; the ballot is as necessary for one class as for the other; we do not believe that with the two sexes there is identity of function; but we do believe that there should be equality of right; and therefore we favor woman suffrage.”
Mike Spindell:
I have listened to some of TR’s speechs and I found him to be a progressive in the vein of say Woodrow Wilson.
He may have busted trusts but he did not do it out of any love for capitalism, based on the speechs I listened to, I came away thinking he was decidedly not a capitalist.
But we agree that history has been way to kind to him.
Roco,
I’ve been clear, T.R. believed emphatically in the superiority of what he termed the Anglo-Saxon Teutonic “Race”, over all other “Races”. He believed the Anglo-Saxons should rule all other races and that was their destiny. That was what drove his love of warfare and was what helped to drive American Imperialism in Cuba and the Phillippines. He further believed that the violence of war was redemptive to the Anglo-Saxon spirit and all resistance to Anglo-Saxon needs should be dealt with ruthlessly, both at home and abroad.
As for his “progressive” credentials, we are not talking about people who call themselves Progressive today. The Progressiveness he believed in was
a glorification of Corporations and a protections of the rights of their managerial class, who must rule over the country because of their Anglo-Saxon civilization. He did not believe in universal male suffrage, much less female suffrage. He was a “Trust-Buster” not because he was an enemy of Corporations, but because he was a friend. He saw the “Trusts” as stifling the free market, which should be allowed to rule.
As far as his “environmentalism” he believed in preserving the wilderness, in the same way that in New York Robert Moses believed in creating Central Park. the environment should be preserved for the Anglo-Saxon uber class.
however, if there were natural resources to be found there then all bets were off since Corporations had the overriding right to develop.
History has superficially treated this egotistical monster much too kindly.
Mike Spindell:
how does that make your point further? I am not sure I follow your line of thinking.
Are you saying his “racial superiority” caused all of that or are you saying he was a believer in racial superiority because he believed in those things.
“Mike Spinwell
>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”.
TR was a Progressive, an environmentalist, an imperialist, and a lover of war as institutionalizing sacrifice.”
This is why you had trouble with your Professors, either dishonesty or intellectual incapacity. TR was all you said he was but that included and informed his belief in Anglo-Saxon “Racial” superiority. That was what justified his imperialism and love of war as a redemptive agent. you only make my point further.
“There is not even a sophisticated religion”
Um? Do you mean sophisticated as in your own, Objectivism? you ought to try Scientology also it might appeal to your cultural biases.
“This sort of thing is why I discuss my experience w/professors,”
No you discuss your experiences w/your professors because you are a callow youth unable to get beyond the rejection of your ideas by people less doctrinaire and more learned.
Gene H
> Being that an Emperor is an individual, I didn’t bother reading your drivel beyond “imperialism is essentially collectivist”. Imperialism, a type of nationalism, is the sacrifice of individuals to the nation’s expansion.
This is ignorant beyond belief, the sign of an unanchored mind. Individual people may favor the IDEA of individualism or collectivism. This sort of thing is why I discuss my experience w/professors, to show concretely that they dont teach students to reason about reality. They teach the manipulation of emotional symbols. Conceptualizing the evidence of the senses is a specific skill, w/specific properties. Arbitrarily and conventionally, ie, postmodernly, describing and classifying and inferring is not reasoning. Mind works in only one way because it is one definite thing. Hitler and Marx were wrong. Different social groups do not have different minds. There is only man’s mind. And modern thought is essentially an attack on it. Newton did not discover universal gravity by random mental processes. And neither does your car mechanic when he repairs your car. Read Socrates’ discovery of definition and induction.
Pete:
If the people are going to dump toxic waste on their property do you think they are going to do it in broad daylight whether there is a prohibition or not?
It never gets old insulting you, Buddha, because, well, you never stop with your own personal attacks. Keep on dancing, Gene.
Much like T-bone, you just don’t know when to stop, kderosa.
GeneH you need to learn what the word “or” means. Maybe then you’d make less strawman arguments. After that you should study up on the role of the aristocracy in monarchies and dictatorships. Then, you and mespo, can study up on african countries colonized by the brits and the cultural influence imparted. Maybe you could do a little compare and contrast with countries colonized by France. Finally, you both could use an introductory course on forming and presenting arguments and supporting evidence. Maybe then the discourse in this forum might improve. Old habits die hard, eh Buddha.
mespo,
Not in the slightest. It’s no wonder he has such an acrimonious relationship with his professors.
Gene:
“One such Western idea was the Greek-inspired British education that helped Africa develop the rationality missing from traditional culture.”
***********
This Grossman guy doesn’ know a wit about “African” culture does he — or even the English language?
Grossman,
Imperial means “of, relating to, befitting, or suggestive of an empire or an emperor”. Imperialism means “imperial government, authority, or system
: the policy, practice, or advocacy of extending the power and dominion of a nation especially by direct territorial acquisitions or by gaining indirect control over the political or economic life of other areas; broadly : the extension or imposition of power, authority, or influence”.
Being that an Emperor is an individual, I didn’t bother reading your drivel beyond “imperialism is essentially collectivist”.
You don’t get to make up your own meanings to words.