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?
Gene H:
why cant insurance companies fund it equitably? They have incentive to protect their bottom lines.
I pretty much agreed with kderosa on the palin thread, palin made some blunders but she had the general idea. after reading the accounts from Revere and others, I have to give her a pass. Not an A but a pass.
Roco,
Yes, there is an equitable solution. Using tax money to adequately fund public fire departments that protect everyone equally, which strangely enough, was the equitable solution that the problems of private fire departments created (by necessity) in the first place. You don’t need to re-invent the wheel, but you do need to make sure it has enough air in the tire.
Roco,
When you make up the meanings to words, that’s a lie. Nothing is more revelatory about kderosa’s nature than this thread:
http://jonathanturley.org/2011/06/04/the-bells-are-ringing-sarah-palin-and-the-revised-story-of-paul-revere%E2%80%99s-ride/
Where great lengths are taken to present a revised version of history based on purposeful distortion of the facts (i.e. lying). Pay particular attention to his exchanges with Elaine M., Bob, Esq. and Mike Spindell.
Now are you going to stick remotely to the topic or defend your indefensible friend?
Gene H:
I am sure there is a way around your concern which would be equitable to all parties.
Gene H:
I for one would like to see where kderosa has lied. I am more than curious, everything I have checked him on appears to be correct.
Could it be that there are 2 divergent philosophies in this country which have different realities? One sees the world as you and Mike see it and one sees the world as kderosa and I see it.
There is little I agree with you or Mike about and I find sources to back up my views going back hundreds of years. And you and Mike can do the same.
People like kderosa and I are finally having our world view shared by those in power, limited though it may be. It has been at a snails pace and has taken generations such has been the strangle hold of the progressive movement in the philosophical arena. We are finally starting to see a resurgence in the concept of individual rights and a questioning of the idea of collective rights or the common good, social justice, etc.
kderosa has done a masterful job of showing you why he thinks you are wrong, that you should call him a liar is to admit your arguments do not hold up.
Please provide evidence of where he has lied.
Roco,
“But I doubt the insurance companies would go for it. They will lobby the politicians and give them millions of dollars in contributions and government will retain its monopoly on fire protection.”
One has nothing to do with the other. The real reasons insurance companies don’t want privatized fire brigades has to do with the assumption of risk and liability. If a fire gets out of control on their watch, they could be wiped out in the resulting civil suits. Force majeure would not apply to eliminate their contractual obligations as a fire that risks running out of control is a natural consequences of external forces capable of being influenced by intervening circumstances (such as weather or wind shifts exacerbating a fire).
Gene H:
if fire brigades were funded by insurance companies I dont think there would be too much of a problem. You might pay a little bit more in your premium but then you could pay a little less on your tax bill.
“The proposal also calls for increasing the fire assessment fee a total of $30. The fee, paid by property owners for fire services, would increase from $159 to $189.”
http://miami.cbslocal.com/2011/07/08/hollywood-considers-raising-tax-rates-and-fire-fees/
And banks already mandate mortgage holders have insurance so no change there. People who own their houses would still have insurance so no problem there either. And people who would not buy insurance get what they ask for.
It is eminently possible to privatize fire protection. But I doubt the insurance companies would go for it. They will lobby the politicians and give them millions of dollars in contributions and government will retain its monopoly on fire protection.
kderosa,
The evidence that you are argue in bad faith and regularly make things up trumps your hurt feelings. Ad hominem attacks are only invalid if they are false. My criticisms of your postings is both factually and logically valid. If you don’t like being impeached for offering flawed arguments based on fallacies and lies, I suggest you clean up your own house and worry less about others.
Mike Spindell:
I am glad you were able to control costs at your agency. But you only reinforce my contention that government supplies the incentive for malfeasance by stating:
“Now some of these services actually were contracted out despite the extra cost and inefficiencies, because they were either the fruit of political rhetoric and/or the largess of political support.”
It also shows you to be an honorable man to have opposed those unnecessary expenditures.
As far as medicare goes, I dont think you are taking into account the entire picture. But I will agree there are abuses at private insurance companies just as there are abuses with medicare.
I think there would be far fewer abuses if medical insurance was allowed to operate in a more free environment than it does now. Just allowing people to purchase across state lines and allowing for ala cart plans would increase competition.
Look at hamburgers, we have literally hundreds of businesses supplying hamburgers. All kinds of hamburgers, big ones, little ones, fat ones, Angus, prime, choice, bleu cheese, jalapeno, poppy seed bun, onion bun, flame broiled, grilled, and on and on. I have more choice with a friggen hamburger than I do with one of the most important aspects of my life.
And my choices are going to be even more eroded once Obama Care takes effect. There is something wrong with that picture.
My rights are being violated by government in regards to health care. If government regulated hamburger stands like they regulate health care, the hamburgers would suck.
Roco,
A fee created by underfunding public fire departments. You’d see a lot more of that if profits were involved. Also, you unattributed quote would not stop the issue of letting properties burn if there was no profit in it for the private brigade. It would only keep the brigades from fighting over jurisdiction. A solution for a problem that wouldn’t exist with adequately funded public fire departments.
Gene H:
“That’s what privatization of fire services would eventually bring about.”
It just happened recently, it might have even been mentioned on this blog. A fire department let someones house burn down because they hadnt paid a $75 fee for being out of jurisdition. And that wasnt a for profit or private fire company.
As far as the other issues here is something I found:
“The reason was jurisdiction. In the beginning, whichever fire brigade arrived first was paid for the service call. This resulted in fights between the fire brigades (Many times while the fire was still burning). Our modern communication system, along with mapped jurisdiction would alleviate the old problems.”
@GeneH — very childish.
You can’t care waht I think because my evidence against you presents you in a very poor light. It is your defense mechanism.
If you think you have evidence against me, present it. Do not rely on innuendo.
As I’ve stated, I treat other posters with the same respect they have treated me. I always start off polite and civil and moderate my replies to suit the bahavior of the poster replying to me. if you think you have contrary evidence, as you satte, present it. Don’t be a coward.
And stop dodging my evidence that I have pesented to you.
I really don’t care what you think, kderosa. You are acting like you always do though. You will continue to distort facts and make up definitions when it suits you. This is based upon the evidence of all your postings and not just your interactions with me. Don’t presume to lecture anyone about respect when you yourself have done absolutely nothing to earn any yourself to this point. You can take your condescension and save it for someone who cares what you think.
Now how about you addressing the issue of the problems inherent in the corporate veil that allow criminals and tortfeasors to go free and profit from their bad actions?
@GeneH — before I leave
“As to your notions of chivalry, I’m unconcerned. You’ve only started acting better because you have nowhere else to go without making yourself less credible than you previously have. A mask of virtue is not the same thing as actual virtue, so why not just save your personal critiques for someone who takes you seriously.”
I am acting as I always do. I treat those who deserve respect with respect. Based on your previous beahvior, you do not deseerve any respect, but for the time being I am focusing on the arguments and seeing if you continue your shenanigans or act more civilly. So far it has been the latter, as expected. It is expected because the very first words you directed to me were an unprovoked personal attack.
I’ve directed your attention this inconvenient piece of evidenec before adn you have avoiding it, no doubt on purpose. Will you at least deny it now or do you have some other excuse?
And, please, do not talk to me about masks. We both know the real story. Your mask is still as green as ever.
“Also with respest to the Reason study. You are making an ad hominem attack on the source.”
You need to look up the definition of ad hominem again, if you have already. My argument that it came from a biased group was not ad hominem since it went to the source of the issue and given that it was a political group called into question its unbiased nature. If I was to quote a report funded by the ACLU, it would not be ad hominem for you to reply to it: consider the source.
Roco,
“Why should government have a monopoly in fire protection?”
For two reasons:
1) The problems that plagued us due to private fire protection would quickly return as those problems were largely caused by profiteering and corporate rivalries.
2) Fire protection is something that is most certainly in the common good as fire runs the risk of destroying everything combustible if it’s allowed to get out of control for any reason let alone a profit motive. It won’t just damage private property covered by specific insurers, it will destroy public property and the property of others as well.
Not everything should be done on a for profit basis and fire protection is a perfect example of that. It benefits us all to put out the fires no matter if they’re under an area covered by a private contractor or not as fires by their nature do spread. Do you want a city to burn to the ground because a private contractor won’t put out a fire they aren’t being paid to put out? That’s what privatization of fire services would eventually bring about. “We didn’t fight the fire because it wouldn’t have been profitable for us to do so.” That’s putting profit in front of the common good of not burning to death and/or losing everything to an elemental force. Or would you rather have fire services that respond to put out any fire without concern for their profit motive?
“@Mike Spindell, that was not intended to be a personal attack. And it certainly is not an ad hominem. I am just stating a fact gleaned from other threads. You like big government and the goodies it dispenses, like social security and medicare.”
Kderosa,
Please don’t disabuse my intelligence. It was an attack and ad hominem because it is first simply not true. Where have I ever said “I like big government”? That is your projection on to me and I do resent it because it neither responds to anything I’ve said anywhere, or to what I actually believe. Unlike you, by the way, I’ve openly stated my basic premises and where I stand, you keep yours hidden so as to deny people discussing things with you, the same right of broad characterization that you’ve just done with me. Secondly, “goodies” as you used it is a term with pjerorative connotations and not a reasonable term of discussion. The fact that it was unresponsive to my arguments makes it ad hominem by definition.
Just so we are clear the fact that you quote a pdf from a Libertarian think tank might lead one to believe you are a Libertarian, yet you have not admitted to it. Are you a teabagger, who knows? You appear to be a male yet use a female icon. Just who are you? I know Roco, for instance is a businessman. What do we know about you. Do you have a profession, do you work for a think tank, are you an academic? You do not have to answer any of these questions of course, but by not doing so it leaves your motives open to question. The guest bloggers here a real people and given the Internet one can be certain who they are. Even some of the more anonymous regulars like AY have admitted to a profession, such as AY being a lawyer. You prefer no such disclosure and it leads one to wonder just what it is you hide? It also leads to the inescapable conclusion that your secrecy is a tactic to give you flexibility and deniability in any discussion. That may work for you but it certainly greatly reduces your credibility.
kderosa,
“How do you protect individuals from others without rules that are controls on the behavior of others? You do need laws that control the behavior of others such that that behavior does not violate or infringe the rights of others.”
In other words, you can’t protect individuals from others without rules that are controls on the behavior of others.
“How do you protect the rights of one without rules that apply to all? Laws should extend to all equally.”
In other words, you can’t protect the rights of one without rules that apply to all.
“Also, you characterize corporations as “a legal fiction that acts like a shield against liability.” Corporations have fully liability up to the amount of their assets, liability merely does not extend further to the individual’s assets except to the amount of capital that forms the investment in the corporation. People have the exact same limits to liability.”
Which does not take into account that people can both offload their personal liability (both civil and criminal) onto a corporation (which is a legal fiction, not a real person capable of incarceration for criminality) thus shielding them from personal responsibility and that people can remove assets from the reach of those taking action against a corporation by profit taking and other means (such as using their corporate position to advance the liquidation and distribution of assets before a civil or criminal court can reach them). If you’re so hot on corporate personality, then you should also have no issue with making the corporate veil easier to pierce to allow making the individual members of the group accountable for their actions both civil and criminal instead of allowing them to offload that responsibility on to the corporation. To be clear, abuse of the shield against liability is both the primary problem of corporate personality as it creates a false person to hold blame for bad acts. If you’re for equally applied laws, you should have no issue with modifying the limits on corporate liability to make it easier to get to individual criminals and tortfeasors within such organizations and hold them personally responsible in addition to any responsibility that a corporation might bear (which I remind you is strictly limited to their assets). Otherwise, you’re for a system like we currently have that allows criminal and tortious liability to be shifted under the guise of the corporate veil which was only intended to act as a protection for the assets of investors originally and to encourage R&D by limiting exposure should a product inadvertently prove harmful.
As to your notions of chivalry, I’m unconcerned. You’ve only started acting better because you have nowhere else to go without making yourself less credible than you previously have. A mask of virtue is not the same thing as actual virtue, so why not just save your personal critiques for someone who takes you seriously.
“Almost everything that can be done by government can be done by the private sector more efficiently and as we have seen Constitutionaly than by government.”
I know this is practically an article of faith with you but it is simply incorrect and I have far more expertise in this area than you can aspire to running your business. I was the Budget Director for an Agency that was perhaps a thousand times larger than any business you’ve run and the equal of many corporate entities. I was also the Agency Chief Contracting Officer for another Agency equally as large. In my first role I oversaw the entire budget creation process so I’m well aware of the costs involved. It was also my responsibility to review proposals from outside entities that were vying to assume certain functions performed government-ally.
In the second role it was my job to contract out government services, where appropriate to for-profit and non-profit entities. There was not a single instance where a private entity could perform governmental functions more cheaply then they were already being provided. In many instance they wanted our employees and infrastructure to perform the given task and beyond that they wanted extra funds.
I know this is a mythology that you’ve swallowed whole but it is a mythology with no basis in reality. Now some of these services actually were contracted out despite the extra cost and inefficiencies, because they were either the fruit of political rhetoric and/or the largess of political support. I was able to oppose them simply because I held the highest possible Civil Service title and knew the applicable law. Nevertheless, it did hinder my career because I wasn’t a “team player” meaning my responsibility was towards good government rather than changing political power. That is the advantage to Civil Service that people who believe as you do never see.
In any event your contention is easily disproved by Medicare, whose opponents even concede has admin costs which are at their highest 5%.
The admin costs of the average private health insurance provider run from 15 to 20%. The other clear reason is that a business by definition must make a profit and that is included in costs of services provided.
I need to run a few errands this afternoon, so let me address a few outstanding points briefly.
@Roco, 45, I learned it all on my own, and I’m no smarter than anyone else here. You just can’t approach topics with preconceived notions. I do not know Adam Mossoff.
@Mike Spindell, that was not intended to be a personal attack. And it certainly is not an ad hominem. I am just stating a fact gleaned from other threads. You like big government and the goodies it dispenses, like social security and medicare. There’s nothing wrong with that and there is no normative judgment being made by me. I just happen to disagree. You are being too sensitive. I do not owe you an apology, but will offer one anyway if it will make you feel better. Just be aware I will be expecting the same extreme courtesies from you from here on in.
Also with respest to the Reason study. You are making an ad hominem attack on the source. All source are biased, but that doesn’t make the source wrong. So your argument rests on a logical fallacy and as such does not rebut my source. It stands. In addition, the source cites and relies on other studies for its conslusions.
@GeneH, it does little good to answer your qustions fully without the proper mutual understandings and definitions in place. However, if it will make you feel better I’ll offer some brief answers.
How do you protect individuals from others without rules that are controls on the behavior of others? You do need laws that control the behavior of others such that that behavior does not violate or infringe the rights of others.
How do you protect the rights of one without rules that apply to all? Laws should extend to all equally.
No doubt you will have a completely different, albeit wrong in my opinion, interpretation of these answers
Also, you characterize corporations as “a legal fiction that acts like a shield against liability.” Corporations have fully liability up to the amount of their assets, liability merely does not extend further to the individual’s assets except to the amount of capital that forms the investment in the corporation. People have the exact same limits to liability.
Lastly, you are continuing on with your personal attacks and gratuitous statements. I expect Mike Spindell to step in here and do the honorable thing. Let us see how far such chavalry carries.
I’ll deal with the rest upon my return. TTFN.