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?
“Let me know how much you’ve sent in to cover these important causes and how much and when your next payment will be.”
I’ve paid a far greater percentage of my taxes than you have, i would bet. The easier way though would be to repeal the Bush Tax cuts, the Oil Subsidy, the Farm Subsidy, the lower tax rate for hedge fund people, the refusal of government to recognize overseas tax havens by corporations and refusing to give government money to any that use them, to cut the defense budget and to tax capital gains the same way income is taxed. Debt over, game, set match, but perhaps you citizens of Bryn Mawr may have to cut down on the number of times a week you play golf.
Mike, since you think government actionis so critical to relieveing the plight of the downtrodden, have you ever done your part by contributing to reduce the national debt, so government has more money to satisfy all these causes you favor.Here’s how:
There are two ways for you to make a contribution to reduce the debt:
•You can make a contribution online either by credit card, checking or savings account at Pay.gov
•You can write a check payable to the Bureau of the Public Debt, and in the memo section, notate that it’s a Gift to reduce the Debt Held by the Public. Mail your check to:
Attn Dept G
Bureau of the Public Debt
P. O. Box 2188
Parkersburg, WV 26106-2188
Let me know how much you’ve sent in to cover these important causes and how much and when your next payment will be. I wouldn’t want you to come off as a hypocrite what with all this moral posturing of yours.
@Mike Spindell: Thanks.
@Roco: “Helping a person who has given up and expects the world to give them whatever they want …”
Why must I constantly point out the ridiculous exaggeration you employ?
People that have “given up” do not expect the world to “give them whatever they want.” They hope the world doesn’t just let them die of starvation, or the infection that is going to kill them if they cannot get a few dollars worth of antibiotic, or whatever.
That hope is not unrealistic at all, in fact that hope is entirely rational, and entirely reasonable. Their hope is for survival, and you three think you have the right to be so selfish that you can just watch them die and joke about it if you want. Which of course is why the rest of us are forced to resort to force to control people like you and protect those that have “given up” from your predations.
“Wow. You dont even know me. Do you make judgements like that all the time?”
Roco,
How many judgments have you and your mentor made about me, when despite the fact that i’m open about myself, you only know me as some construct in your mind?
“Helping a person who has given up and expects the world to give them whatever they want is not empathy it is feeding a false vision of reality.”
You see Roco, as I’ve said time and again I’ve worked with this people you deride in your fantasy of what those less fortunate than you are. Since I’ve worked with poor people and I’ve worked with addicts I know the difference. You don’t, you just know what you’ve chosen to believe and I know directly that your belief is false and an unfair judgment, made by people to relieve themselves of responsibility/guilt.
I judge you with evidence equal to that which you use to judge them. Doesn’t feel good does it? Maybe then you can understand how heartless a statement that was and how little it relates to reality.
Mike Spindell:
Wow. You dont even know me. Do you make judgements like that all the time?
So you recommend encouraging an alcoholic to continue to drink?
“Helping a person who has given up and expects the world to give them whatever they want is not empathy it is feeding a false vision of reality.”
The characterization for those approving this as revealed reason is scum. Anyone who would think this is the case knows nothing of privation and or poverty. I suppose you 3 witches watching your boiling cauldron of vitriol have never lacked for anything substantial in your lives, because if you had, you couldn’t possibly understand that most people in poverty are in that condition through the actions of society as a whole. I won’t even bother to dignify your blather by giving you literally thousands of examples of why your premise fails, because frankly you don’t deserve the courtesy and are incapable of enlightenment. It is all about “you” and your self-centered view of humanity. The only difference between you and common muggers, is you are somewhat smarter and realize that mugging is a low percentage gain, however, you exhibit a morality and ethics no higher.
It’s easy to sit in ones comfortable home, in say Bryn Mawr, or being supported by ones parents, or even having ones in-laws get you started in a successful business and think it is of your own doing. I personally know someone born to poverty, who has amassed wealth beyond what the three of you put together could ever dream of and yet he has never forgotten his roots and never voted for the pigs of the world such as yourself. To be really a success, not one made through the chance of birth, gives people insight into the struggle the many born to poverty face. It is so easy though to kick the downtrodden of this world it feeds your smug, sadistic satisfaction and keeps you from the realization of your own cowardice, incompetence and lack of humanity.
“Liberals want charity as duty, ie, an unchosen obligation without values. They see man as a herd of doomed beggars to whom one owes one’s life, happiness, and moral respect.”
On the nosey.
The sad part is that they don’t even realize this is the effect of their views. And the big government needed to effect all their favored social programs also effect all the bad things, like corporate welfare and special interest over-influence, that they also disdain.
Roco
>Helping a person who has given up and expects the world to give them whatever they want is not empathy it is feeding a false vision of reality.
Empathy is understanding and feeling what others feel. Acting on that might be providing charity. Empathy based on rational values is appropriate. (Emotions, not being under direct, volitional control, are not moral or immoral, rational or irrational) But the values which cause emotion can be chosen and judged. You are referring to rational charity, as a response to rational values in a person suffering thru no fault of their own. Charity is an option, not a moral obligation. Liberals want charity as duty, ie, an unchosen obligation without values. They see man as a herd of doomed beggars to whom one owes one’s life, happiness ,and moral respect. Munch’s “The Scream,” not Michelangelo’s “David.”
“It has been revealed to me that your revelation about rational empathy is a deception from the Devil. Evidence is needed only for those incapable of understanding. Those who understand need no evidence. Im so very pleased that we share your Sacred Common Value. We can be stupid together. What a relief! Now this is a communism I can get behind. Can you provide some more rationalizations of undeserved empathy? The Revolution continues, comrade! Display your Lenin Peace Prize with proletarian pride!”
A brief lesson on satire and irony. It has to be comprehensible to be effective.
“I dont consider that 2+2=4. It is, of course, but I dont consider it. My consciousness creates and controls reality”
Spoken like a member of the Hitler Youth. A=A, or does it?
Mike Spinwell
>I consider none of this [ie, communism] “big” government.
I dont consider that 2+2=4. It is, of course, but I dont consider it. My consciousness creates and controls reality. As the leading liberal, Kant, said, “I have denied knowledge therefore, in order to make room for faith.”
Your self-willed stupidity is an inspiration to subjectivists everywhere. Do you recommend heroin when the spirit is weak?
@Mike Spindell
“I consider none of this ‘big’ government, which is just a Right Wing meme developed in their masters desire to impose a class system in this country. All of those programs represent the responsibility of a government to its people and especially so because the government has acted preferentially towards the wealthy for two hundred years.”
If it walks like a duck and talks like a duck, it is a duck. Now, what it isn’t is limited government.If you don’t like Big government, then come up with a new, more accurate label.
“It is a false meme at that because it doesn’t take into account the largest armed forces and defense budget in the world. US armed forces based in 80 locations worldwide.”
This is one of the few aspects of Big Government that those on the left seem not to favor.
“A tax system favoring the most wealthy.”
It doesn’t.
“Government ‘handouts’ to major corporate entities and industries.”
Unfortunately, this is what you ineveitably get when you give government the power to give peopleall the other “goodies” (I’ve toned down the rhetoric here for your benefit) you favor. You can’t have it both ways.
“No you’re skipping it because you refuse to give your honest opinion on it, that would be too telling an admission and expose the innate dichotomy of your beliefs.”
Tell you what, post on the topic,and we’ll discuss it.
“Bullshit Ken, Bullshit.”
Good job on the google search. See it wasn’t that difficult. Once we’re done dealing with all the side issues you keep raising, I’ll find some time to comment on the other stuff.
Mike Spinwell
>Grossman, You poor pathetic loser. “Rational empathy” is an oxymoron and that would only not be apparent to a budding young sociopath, who lacks all empathy. I pity all those who might now, or in the future be in relationships with you. My special condolences go out to the parents that begat you.
It has been revealed to me that your revelation about rational empathy is a deception from the Devil. Evidence is needed only for those incapable of understanding. Those who understand need no evidence. Im so very pleased that we share your Sacred Common Value. We can be stupid together. What a relief! Now this is a communism I can get behind. Can you provide some more rationalizations of undeserved empathy? The Revolution continues, comrade! Display your Lenin Peace Prize with proletarian pride!
@Mike Spindell
You said to Steve Grossman: “You poor pathetic loser.”
Is that your idea of civility? Is this an attempt at disrailing the conversation?
“So you are against big government gooodies such as social security, medicare, medicaid, obamacare, SCHIP, TANF, food stamps, unemployment insurance, et al?”
How obvious you are in your tactical style, it probably works wonders at the country club over drinks. To me, being of rational mind unfettered by political dogma, these programs merely are what government should be about given that our financial system has depended upon a boom or bust economy and that our fiscal policy has required government engineering to ensure that full employment is never reached, in order to depress wages.
This is the responsibility of both parties and is why I am free to denounce either. This is neither capitalist or socialist which are merely dogmas disguising the battle against human greed and the lust for power. Concepts you are to wrapped up in to even be aware of how they’ve shaped you.
I consider none of this “big” government, which is just a Right Wing meme developed in their masters desire to impose a class system in this country. All of those programs represent the responsibility of a government to its people and especially so because the government has acted preferentially towards the wealthy for two hundred years. It is a false meme at that because it doesn’t take into account the largest armed forces and defense budget in the world. US armed forces based in 80 locations worldwide. A tax system favoring the most wealthy. Government “handouts” to major corporate entities and industries. All you’ve got is just more rote “talking points” as a good soldier for the cause. Pathetically narrow minded.
“You know my name. I’ve used this screen name since ’95. Google will tell you the rest.”
Well if it is Kenneth De Rosa I guess it does all make sense. A patent attorney involved in intellectual property, living in Bryn Mawr, PA. You’ve got money, were probably born to it and thuis have a vested interest in keeping it, no matter who else gets screwed.
“We do. [i’m skipping the labor issue as it is too tangential, too complicated, and will disrail this discussion]”
No you’re skipping it because you refuse to give your honest opinion on it, that would be too telling an admission and expose the innate dichotomy of your beliefs.
“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.”
Bullshit Ken, Bullshit.
Gene H.
>That your only concern in life is your personal happiness is quite readily apparent.
Morality obligates personal happiness as one’s BASIC value, with the happiness of those one chooses to value as hierarchically dependent, non-basic values. A man who loves a woman rationally values her happiness as a means to his end, his happiness. If he did not value her at all, he would be selfless. Sacrificing to emotions or to other people are both selfless. Happiness is the moral purpose. Reason is the standard by which that purpose is judged. You don’t have a clue about selfishness because your subjectivism forbids looking at clues.
Stephen Grossman:
I assume you mean rational empathy to be something along these lines:
A young mother of 4 is working 60 hours to make ends meet to feed and shelter her children. She doesnt ask for anything and works hard, yet she is still haveing a hard time making ends meet.
You find out and you voluntarily give her some money to help her out or you find her a better job [assuming of course she can do it] or you help her go to school.
That would be my understanding of rational empathy.
Helping a person who has given up and expects the world to give them whatever they want is not empathy it is feeding a false vision of reality.
Is that how you see it or is there more to it?
“While there is a rational empathy”
Grossman,
You poor pathetic loser. “Rational empathy” is an oxymoron and that would only not be apparent to a budding young sociopath, who lacks all empathy. I
pity all those who might now, or in the future be in relationships with you. My
special condolences go out to the parents that begat you.
Grossman,
That your only concern in life is your personal happiness is quite readily apparent.
Gene H
<Not having empathy for others is unnatural to most people.
While there is a rational empathy , the advocates of sacrifice want an unjust empathy for those whose self-destruction is caused by their choice to evade reasoning. Rot in your self-created selfless hell, Gene. Its just. And I refuse to join you there. Your suffering is yours, alone. I turn my consciousness away from your suffering and onto my happiness. I am not even pleased that you suffer. I am indifferent, as to a stone I may hit with my shoe while walking. You have done it to yourself and empathy would be improper.