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?
Tony C
>But we DO know, statistically, that the pollution causes
Environmentalists regard man, man in principle, as pollution. Man breathes out carbon dioxide, regarded as pollution by environmentalists. So less man, less products of man’s actions, means less pollution. Note the opposition to every attempt to produce energy, even wind farms and dams. Environmentalism is a consistent ideology of man’s death. Nazis wanted to kill some people. Environmentalists want to kill all people. This secularizes Original Sin. Even pollution within a rational context does not begin to equal the life-affirming effects of industrialism. Six billion people are alive precisely because of industrialism. We need more and more and more industrialism. Its selfish. Its rational. Its moral. We should not revert to hunting-gathering culture. Nature is merely man’s tool, not a secular God.
BTW, eco-wackies make good compost because of all the shit in their heads.
Tony C.
>Grossman: your puffed up assertions are neither logic nor discussion and therefore are not worth my attention
Your puffed up assertions are neither logic nor discussion and therefore are not worth my attention. Hey, this logical fraud/pretentious pseudo-intellectualism is fun. And i dont have to judge your ideas, merely rationalize my evasion of your ideas. Your psychology is politically incorrect, so your ideas are irrelevant. Farmers dont concern themselves with what their chickens may be thinking about the debt crisis. Nazis didnt bother to convince their Jewish prisoners that Nazism is good. Why should the advocates of sacrifice and collectivism concern themselves with the ideas of people who reject politically correctness? You are an intellectual fraud whose knowledge of Rand’s ideas is limited to words and their arbitrary and conventional use. You are a screaming mental hospital assfuck, the very Platonic Form of Jerk. But your memorization of meaningless words is impressive…to people who value that sort of thing.
@Grossman: your puffed up assertions are neither logic nor discussion and therefore are not worth my attention.
kderosa,
“The ability is far from absolute. Your quibble appears to be that the laws are too lenient. Welcome to democracy.”
That’s exactly my “quibble”. That the ability to shift liability isn’t absolute is irrelevant. I never said that it was an absolute liability, Straw Man. Crimes are still being committed under the protective coverage of the corporate veil. That the courts have found allowing corporate funds to pay for the defense of officers is a violation of public policy is a step in the right direction, but it is far from a solution to the level of corporate crime that exists in this country. “[I]t seems likely that provisions in executive employment agreements purporting to indemnify officers or directors against punitive damages arising out of their own conduct would be found to violate public policy” does not equate to regulation clearly spelling out that indemnification agreements such as those are a violation of public policy. That’s a lot of wiggle room in the word “likely”. It also only addresses the civil liability of directors doesn’t fully and properly address the issue of criminal liability. The issue is that corporations can engage in criminal activity and because of the veil, it’s almost impossible to criminally charge executive officers responsible for that activity. You’d realize that if you got beyond the school house rock version of law school. Or perhaps its your blatantly corporatist agenda as evidenced by your steady apologetics that makes you blind to that whole “liberty and justice for all” concept.
Also the fact that you think anything regarding the current state of corporate regulation in this country given the state of campaign finance and lobbying is anything like democracy that represents the interests and the will of the people is . . . quaint.
http://www.thenation.com/article/161969/rigging-elections
http://www.thenation.com/article/161977/business-domination-inc
Tony C
>But we DO know, statistically, that the pollution causes cancer, or brain damage, or autism, or emphysema, and is causing real damage to real people.
The primitive mind knows coincidences, ie ,statistics. Science is the study of causes, which is unknown by the neo-primiitve mind of postmodernists. For postmodern nihilists, coincidences between our life-affirming scientific-industrial civilization and events that, objectively, harm man’s life are sufficient for the Nazi Death Camp Guard inside their rotten, dead souls to initiate the use of force against those whose reason produces the material values needed for man’s life. Postmodernists regard reason as valid only for destroying reason. Look at modern art for their depraved spirits.
The law is valid when definite individuals cause objective harm to definite individuals. Beyond that, its a Nazi Death Camp in which We murder They.
This is the concrete reality of that moral depravity called sacrifice and which the thing that seems human and called Gene H shares with another thing that seems human and called Hitler. Both lust for sacrifice and both recognize independent judgment as a barrier to that sacrifice. Both basically value nothing and damn all values because they are something.
@GeneH
“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). ”
There exist laws that limit all of this ability. The ability is far from absolute. Your quibble appears to be that the laws are too lenient. Welcome to democracy.
“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.”
See above. You might want to take a look at Corporate misdeeds and their impact upon enforceability of executive employment agreement indemnification provisions and get past the school house rock version of corporate and director liability.
@GeneH
1. That is your opinion. You are entitled to it.
2. You shouldn’t try to play lawyer if you aren’t one. I am not giving testimony and I am not relying on personal observation or my credentials. So my character is not in issue and can’t be impeached. My argument speaks for itself as you’ve just admitted. That is why your continued attacks on my character are an ad hominem. If you would have looked for a cite as I requested, you might have realized you were wrong and might have spared yourself further embarrassment. Why don’t you go through that exercise now so we can get some slocure on this issue.
3. Again you are either unwilling to or are unable to provide support for your claims. It is pretty clear why not. Also, if you think I’m playing the victim, you seriously misjudge what’s going on here.
4. Again, you are merely reciting your opinion, as you did at the time, on the interpretation of Revere’s deposition and what constitutes the other available evidence. It is also your merely your ultimate opinion as to whether Palin was mistaken. All the rest of that paragraph is also your opinion. Your opinion is not fact. So your conclusions are not factually supported. Also, you again failed to cite any specific support for your opinion.
@Mike Spindell
So you are against big government gooodies such as social security, medicare, medicaid, obamacare, SCHIP, TANF, food stamps, unemployment insurance, et al?
“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.”
That does not make it an ad hominem.
“Are you a teabagger, who knows?”
Is that a pejorative term as well? Do you owe me an apology? Is it an ad hominem?
“What do we know about you.”
You know my name. I’ve used this screen name since ’95. Google will tell you the rest. I don’t like interjecting my credentials into these online discussions because my arguments speak for themselves. You, however, are free to look them up at your leisure.
“Without a history of the bill he vetoed and the special interests on either side of the issue, it fails as solid evidence, since I am sure there are many differing opinions.”
I also cited to the history of the debate during the constitutional convention where the issue wa brought up and rejected. So a majority of the founders .
“If no one has that right then it would logically follow that Government has a vested interest in assuring that Corporations are restrained from infringing on others individual rights. So then we agree?”
We do. [i’m skipping the labor issue as it is too tangential, too complicated, and will disrail this discussion]
“If this is the case can you name for me instances where a competitive free market has ever existed in any nation? If you can’t, then you can’t preclude the scenario of my statement. How would you look at OPEC a cartel that effectively controls the Oil industry?”
Define competitive free maket. Cartels are a restraint of trade and are properly prohibited.
“Show me where in the Constitution corporations are given any rights. ”
Corporations are creatures of the state. Federal chartes were denied in the Constitution. They get federal Constitutional rights via the 14th Amendment
“You actually make my point by agreeing that government has the right to exert control over corporations to ensure a competitive market. That is not ‘bridling’ their constitutional rights, merely protecting mine”
It isn’t. But denying them rights such as the freedom of speech is.
“All that I ask is that you deliver the demonstrations and proofs you proffered. Is this an unreasonable request?”
It is not. I said I would, and I will. Patience, Mike, patience.
puzzling:
“Sarna said it best when she said of AIG, “We’re not only in the business of paying claims, we’re in the business of preventing them.” ”
very interesting, I figured it was possible. when there is a buck to be made people are ingenious.
Like the little monkey who wanted the peanut and used water to float it to the top.
puzzling,
I was talking about it in a broader sense of fire fighting than the example you found. You’ll note that the richest insurance clients pay the highest premiums and have the most expensive property, thus paying the highest premiums. That kind of limited risk (as opposed to covering all their fire policy holders) might make the extra expenditures make sense from an ROI perspective. An exception does not a rule make though. Would they do this for all fire policy holders considering the aggregate risk? I really doubt it. Plus, it’s AIG you’re talking about. Not exactly a company with a sterling reputation. I suspect the first thing they’d do if hit with a broad based claim for their failure to mitigate fire damage across a broad sample of the population through the use of their private forces would be ask for another bailout.
*************
kderosa,
1. Your posts do speak for themselves, but just not in the way you think they do.
2. Learn how witness character is impeached by demonstrating a lack of veracity. Whatever kind of attorney it is you claim to be, it sure as Hell isn’t a trial attorney. Ad hominem attacks are valid when they go to veracity.
3. I don’t care what you think and I’m truly unimpressed with you playing victim.
4. Your continued arguing once Revere’s own testimony as to his actions was introduced that indicated neither you nor Palin was correct in your (mis)characterization of events and was a fine display of you trying to distort the facts to suit your defense. By the way, there is a difference between framing and distorting. That’s a long way to go when the issue could have been addressed by the following words; “She was mistaken.” Mistaken was indeed what she was at best. But you can’t have a Teabagger darling not considered perfect, can you? Add this your generally dishonest techniques in argument (multiple repeat fallacies across multiple threads), your willingness to attempt to make up the meanings of terms, your instance on making partisanship an issue when it isn’t, and your repeated attempts to (purposefully) derail threads and it all adds up to one conclusion. You shouldn’t be taken seriously.
If you’d like to take a step in the direction of being taken seriously by others, might I suggest a little more attention to staying close to on topic to start with followed up with a healthy dose of learning how argument actually works. If your case is good, it won’t require distortions to make it.
“You have provided to evidence to support your position. I’m asking you to provide it now.”
you of course ignore the central point of my post, below. I’ll answer your question after you answer this one, which was what you attack me with.
“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.”
There is no evidence of this, it is your incorrect inference based on what you imagine my political beliefs to be. Ad Hominem. Since your so good at asking rather than answering questions here’s another you’ve avoided.
“You are going to claim that it is necessary to trample on (i.e., balance away or cost/benefit away) the retained natural rights of individuals to effect your grand plans for serving society and I am going to demonstrate to you that a) this is not what the founders intended and b) there is no need, in any event, to trample on our retained natural rights to serve society. I will further demonstrate that government retaining our natural rights is not “too high a societal cost” which is unproven by you in any event.”
“I am waiting for GeneH to repsond, before embarking on such a large unertaking.”
“Your first statement above was an unqualified one that promised to deliver this demonstration, not one conditional on a response by Gene.
I needn’t remind you though that this is a forum and as such our statements are not for the benefit of one particular party, but statements made to the entire body. That you say the undertaking is too long would seem to be belied by your already copious writings. All that I ask is that you deliver the demonstrations and proofs you proffered. Is this an unreasonable request?”
The evidence is, in the absence of providing what you promised to provide, that you can’t provide it, but in fact only asserted your ability to. Anyone can make bold statements, If making bold statements were proof then we would have an interesting political system led by braggarts and fools. Oh……that’s right we do.
Gene, you stated “…Fire fighting is an area where no insurance company in their right minds would want to assume the risks for failing to perform. It could literally wipe them out.”
The market is saying otherwise.
In California, Private firefighters’ role growing in state
And (unlinkable/use google) AIG Insurance Protects Its Wealthiest Client’s Homes from Wildfire Damage
@Mike Spindell,
You are wrong. I have provided evidence showing your understanding of what constitutes an ad hominem when it comes to biased sources. You have provided to evidence to support your position. I’m asking you to provide it now. BTW, the ACLU is a biased source. They have an agenda Nonetheless it would be an ad hominem if I tried to dismissed an ACLU argument as coming from a biased source. That’s why I don’t do it.
GeneH,
1. My arguments speak for themselves. What you mischaracterize as lies and making up things is at best a difference of opinion and at worst a mistake. If you have a specific instance you’d like to accuse me of intentional wrongdoing, go ahead and make it and provide irrefutable evidence that I must be wrong or lying. Otherwise, all you have is innuendo. Your innuendo, so far, is ridiculous to say the least.
2. Now let’s move on to your understanding of what constitutes an ad hominem. You have never provided support for your claim that ad hominem arguments are only invalid if they are false. This claim is pure nonsense. As I’ve pointed out to you numerous times with support, a biased source may stay make an accurate statement and is an ad hominem to point out that the source is biased as a means of discrediting the source’s argument. This is not just a matter of opinion. You are clearly wrong here. And yet I don’t use this mistake of fact on your part to bootstrap into a personal attack as you do routinely. I’d you disagree, provide your support and make your argument.
3. Onto the personal attacks. Many personal attacks fly around on this forum which is extremely hostile to opposing viewpoints. You are one of the worst offenders. I have made my share of personal attacks, but in no instance did I ever make a comment before I was personally attacked, often repeatedly. You seem to think otherwise, yet you’ve never provided any support for this claim. In contrast, I have accused you of make personal attacks, provided support, and you have failed to rebut. I’ll take that as admission until you stop dodging the accusation.
4. If you think you have some evidence in the Revere thread don’t just allude to it, point to a specific instance and make your case.
Roco,
You see what from your side and perhaps you, don’t get about me and I think many others, is that we understand that government has always been a game rigged for the wealthy and the powerful. the “Isms” lose meaning over the years and are just used to keep us suckers in the game. Democrats used to be pro-slavery and Republican’s abolitionists. Progressives used to be war mongering imperialists believing the managerial class should rule, whereas populists used to believe in the rule of the people, but were racialists. Where I’m coming from is I want most people protected from the predatory nature of the wealthy and powerful. I also want everyone dealt from an even deck.
This is where government should come in, but it must be a government of the majority, with minority rights protected. What we have had since the adoption of the Constitution is an upper class that runs the show and tries to pit segments of the populace against each-other. I don’t really care if there are people far wealthier than I, I have friends and family that fit it that category and who I think are wonderful people. People should be allowed to become wealthy, but they shouldn’t get extra advantages and must take into account and truly assist/protect those less fortunate. That is what I mean by not treating others as you wouldn’t want yourself treated.
Mike Spindell:
Oh I know many republicans who would beat a democrat to a public dollar, they disgust me. I also know some public servants who are good stewards of the public trust.
I guess what I hope for is that government would start treating the money they receive from us with more consideration, we all work hard for our money and I for one dont like to see it wasted on all this political pork. Hell if we got rid of the pork we could probably balance the budget reduce taxes and still have enough to help little old ladies and orphans and pay for the Constitutionally mandated expenses.
Roco,
Not and be able to find an equitable plan for public coverage. Force majeure is a common liability limiting clause found in contracts that limits or removes liability from one or both parties failing to perform due to war, strike, riot, crime, or an “Act of God” (in the legal sense of the term). It doesn’t apply when failure to perform is due to negligence, malfeasance, where non-performance is caused by the usual and natural consequences of external forces (such as the previous weather exacerbating a fire example) or where specifically contemplated intervening factors prevent performance (again, the weather example). The very nature of fire fighting is going to make force majeure inapplicable to limit their liability. Any other attempt to limit their liability would most likely be unconscionably inequitable and the courts likely to void that part of the contract if challenged. Fire fighting is an area where no insurance company in their right minds would want to assume the risks for failing to perform. It could literally wipe them out.
“It also shows you to be an honorable man to have opposed those unnecessary expenditures.”
Roco,
It was in the Republican conservative Administration of Rudolph Guiliani responding to the rhetoric of privatizing government. It wasn’t privatizing government that was the issue, it was paying off people for campaign contribution. You can’t disagree with me if I say that people who believe as you do, decry the Civil Service System. The CSS is what protects the public from unneeded expenditures, rather than creates them. Government programs are not the problem, it is corporate interference in government that creates the problems and also creates the specifically corporate benefits.
Gene H:
cant they contractually limit their liability?
Roco,
It’s a limitation of liability issue, not their ability to fund it. As a contracted service provider, they could be liable for failing to stop a fire in ways government could not. Their incentive to protect their bottom line on this issue will not allow them to expose that bottom line to the risks of catastrophic failure due to massive potential civil exposure.
As to the other issue, your idea of “general idea” simply didn’t comport with the historical facts. When you do something like accidentally, which I’m willing to state that’s probably what Palin did, it’s a mistake. When you try to rationalize away a mistake with extreme misinterpretations of the historical facts, that’s both deliberate and a lie. Moving forward, I suggest you take my earlier advice and tend to yourself first and let the others fall where they may. It has been serving you well up to this point.