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?
@KiD: How could you possibly be upper-middle class and paying less than average taxes unless you are living off some kind of trust fund or the like?
I pay less than the average percentage of my income in my total taxation burden.
Unlike the average person, I do not have to spend most of my income, so I pay no sales taxes on it. Gasoline taxes, property taxes and sales taxes are all about half the percentage of MY income as they are of my neighbor’s income.
I am not trying to brag; the fact is I can earn more than I need and I can earn it in ways that are legally less taxed than the average person’s income.
Shame, you could have learned something.
I doubt it, but if so the shame is yours, not mine, because I was not the one that resorted to insults to try to make a point. You were. You have lost the benefit of the doubt with me; I consider the first insult you write as a signal that you are writing for your own emotional benefit, and I won’t read past it.
TonyC,
How could you possibly be upper-middle class and paying less than average taxes unless you are living off some kind of trust fund or the like?
I belive in voluntary charity, not coerced taxation in the guise of charity. So you have no idea how “selfish ” I am.
Shame, you could have learned something.
Tony C.
> If our government were not corrupted by corporate interests, I would rely on it to provide the minimal standards of nutrition, shelter, law enforcement and protection against predation that the poor.
The Soviet Union and North Korea had and have minimal standards.
This is the Marxist hatred of capitalism without Marxist ideology, ie, bits and pieces of out-of-context Marxism. This is a demand that corporations have zero political influence, that even a tiny corporate influence is improper. Of course ,many interests influence govt but Marxists are especially opposed to corporate interests. Corporate interests is code for individualism. Marxists oppose the individual as individual. They want the individual to be enslaved to society and the slavery to be enforced by govt.
This is a near-psychotic evasion of the historically unique and massive wealth created by capitalism. The implicit context is of pre-industrial poverty, as if it exists now in an economy of the highest material living standards in history. The poor in capitalism are not the poor of historical times. Marxists want to destroy the ability to produce material wealth beyond that of a primitive culture. They value equality, not helping the poor.
Marxism and postmodernism are nihilist demands to destroy man’s life, a destruction that is an end in itself. They will destroy the corporations which have lifted so many out of poverty because they accept the pseudo-morality of duty, ie, sacrifice w/o values. They worship death. Marxism was created, not in the pro-reason Enlightenment ,but in the 19th century after philosophy had rejected reason for socially approved emotion as guide to thought and action. The socialist (nationalist and Marxist) mass murders of the 20th century had to happen.
Capitalism produces wealth because its rationally selfish and thats what they want to destroy, all because of sacrifice. The advocates of sacrifice would stick a rusty knife down their throats if everyone else did it. Thats what egalitarianism concretely means. They lust for relief from the impracticality of evading independent judgment and independent action. Destroying the most productive people for Marxists is like heroin for an addict. He does not want to live anyway, so what difference does one more shot of heroin mean?
Sacrifice is immoral ,with no rational defense and thats why its advocates use personal attack. They have never learned of a rational defense. If they had, they would use it.
Selfishness is moral because its the product of man’s mind focused on his life and happiness.
@KiD: so basically what you are saying is that you are for higher taxes, just not on you and people like you.
I am not sure what you mean by “people like me,” but I am no longer in the lower middle class; by most measures I am in the upper middle class, and I earn enough that all the tax increases I advocate would apply to me. Or put another way, my tax burden as a percentage of my income is less than the average, and I do not think it should be.
You guys seem incapable of arguing against anybody that doesn’t fit your selfish model. I advocate for equality even when the inequality favors me.
I didn’t bother reading the rest of your post; once the insults and lies start I quit reading. if you want to correct course and try again, feel free.
@TonyC, so basically what you are saying is that you are for higher taxes, just not on you and people like you. Frankly, that kind of attitude is what dooms democracies. Being able to vote yourself largess from the public coffers is what kills democracies.
Also re capital gains tax. You have to bear in mind that capital has laready been taxed once as income. Now you want to tax it again as investment which is a double dip.
Look at it this way as Scott Sumner has argued (and he’s no conservative):
Suppose 2 brothers both make $100,000 a year. One spends his income on watermelon, and the other spends it on blueberries. Would it make sense to decry the inequality of this society, merely because the blueberry eater got to consume a larger number of “fruits” (because their unit price was lower?) Clearly not, and for two very good reasons.
1. They are each free to buy either type of fruit.
2. The higher unit price of watermelon indicates they are more highly valued (per individual fruit.)
Now assume it’s possible to invest income at a real rate of interest that allow one to quintuple one’s wealth between age 25 and 65. (Say a 40 year zero coupon real bond yielding around 4%.) In this example let both brothers consume nothing but blueberries. One brother chooses not to save at all, the other saves 40% of his income. One eats $100,000 worth of blueberries today; the other eats $60,000 today and saves $40,000. After 40 years the thrifty brother gets to eat $200,000 worth of blueberries. Both also get some social security at 65. Here’s my question: In this society is there any economic inequality?
I don’t see how anyone could say there is. Both have exactly the same wage income at age 25. Yes, they do different things with it, but that’s their choice. At age 65 one has zero income outside social security, and the other has $160,000 in capital gains, which is generally considered “income.” But nonetheless there is complete equality for two reasons:
1. Both are free to choose whether to save or not, so we have no evidence that one brother had more utility than the other.
2. In present value terms their total lifetime consumption of blueberries is identical.
The mistake is assuming that blueberries in 40 year are the same thing as blueberries today. Future blueberries only cost 1/5th as much, as they are much less valued than current blueberries. They are different goods just as much as watermelon and blueberries are different goods. That $160,000 gain is not “income” in the way most people think of the term, i.e. as some sort of goodie available for spending. Rather it reflects deferred consumption. The $200,000 received at 65 is exactly equal in present value to the $40,000 saved today. Indeed it is the very same wealth, simply measured at a different point in time. It is nonsensical to say the thrifty brother has income of $100,000 today plus another $160,000 at age 65, you’d be counting the same income twice.
Studies of economic inequality should completely ignore all capital income, and measure only labor income, or consumption. Indeed the present value of labor income should equal the present value of consumption. And as we will see, a labor tax (like the 2.9% Medicare tax) is identical to a consumption tax (like a VAT.)
Consider how a 50% payroll tax would affect the previous example. Every figure would be cut in half. The spendthrift would consume $50,000 today, and the thrifty guy would consume $30,000 today and $100,000 at age 65. An equal-sized VAT would have an identical effect, cutting consumption for each person in half, at each point in time.
But now consider a 50% income tax. The spendthrift would be affected in exactly the same way as with the other two taxes. But the thrifty guy would pay a much higher tax. He’d save $20,000, and that would produce $100,000 in 40 years. The government would then take $40,000 of the so-called capital “income” in taxes, leaving him with only $60,000 for consumption. If he wants to prepay his future tax liability, he must save $8,000 today in order to pay a $40,000 tax bill at 65. That means $8,000 of his current saving goes to pay future taxes, and only $12,000 goes toward future consumption. His total tax is then (in current dollars) $50,000 plus $8,000, or $58,000. His tax rate is 58%, against 50% for his spendthrift brother. And all because they have different preferences, not because one brother is in any meaningful sense “better off” than the other brother. It’s no different from putting a higher income tax rate on a brother who eats blueberries, as compared to one who eats watermelon, merely because he has more blueberries in numerical terms.
At this point you might be thinking “Yes, but wouldn’t eliminating all income and consumption taxes be a giveaway to the rich?” No, it would be restoring fairness by taxing the thrifty and spendthrift at equal rates. If we think the rich should pay more tax, then let’s put a progressive consumption tax into effect. This is easy to do, just turn the regressive FICA into a progressive payroll tax, with much higher rates for those with high wages and salaries. This sort of tax can achieve any desired degree of progressivity. Unlike most libertarians, I think a progressive payroll tax is desirable for simple utilitarian reasons. I don’t buy the “I worked hard for it, it’s my money” argument, for two reasons:
1. Most of your income comes from luck. If you’d been born in a poor peasant household in Asia or Africa, your income would be low no matter how hard you worked. You hit the jackpot just being born in a developed country.
2. Our wealth comes from living in a highly functional society, thus part of your wealth is due to the fact that your neighbors don’t go around raping and pillaging as in the old days, but rather peaceably go to polling stations to vote. Am I saying; “It Takes a Village?” Sort of, more precisely “it takes a civic-minded culture.”
@KiD: That is not even an answerable question; I am not for “higher taxes” per se. In the *current* situation I am for lower INCOME taxes on the middle class and higher INCOME taxes on the wealthy, and basically a repeal of just about all other taxes.
The average person (read “middle class” $30K-$60K family earnings) pays about 45% of their income in various taxes that support government programs. That is altogether; sales taxes, property taxes, income taxes for state and federal, medicare/medicaid/social security, gasoline taxes, ALL taxes.
The average person with investment income over $1M pays less than half that. Warren Buffett pays a total of about 20% of his income in taxes.
My tax stance (which is not implemented anywhere that I am aware of) is that there should be a survival threshold based on the cost of living beneath which NO tax is charged of any kind, and all other taxes should be unified for income ABOVE that threshold, to a standard rate for everybody.
So if the threshold is $24K, and you earn $25K, you pay the rate on just the $1000 over the $24K. I would guess that rate would be a little less than what we pay now, just because the rich would be required to pay their fair share, but I haven’t done the arithmetic.
So in essence I am for equalizing the burden of supporting government, with a very simplified tax code and no exemptions or loopholes or attempts by the government to use the tax code to either encourage or discourage any particular kind of private economic activity (like buying houses, or hiring, or making ethanol or anything else). I think such things open the door to corruption, and put the government in a superior role instead of a subordinate role, where it belongs.
We have proven before we can have an armed police force and armed military and firemen and teachers that are all the servants of the people and answer to the people. Government’s proper role is as the servant of the people. That is not how OUR government works, because it has been corrupted, but IMO it is how a government SHOULD work.
@TonyC, so you aren’t for higher taxes?
@Kid: Tony, since you think government action is so critical to relieving the plight of the downtrodden
As always, you ignore every post I have ever written about how corrupt and corporate-owned I believe the American government is. You also ignore the many posts I have written explaining why the debt is not a real problem for any American to actually be concerned with. I believe a government can be functional, but ours is not. If it were, I would rely on it to spend my tax dollars responsibly to provide the poor with the basic tools needed to become professionals and contributing citizens, which I believe (having grown up among them) is what they want. If our government were not corrupted by corporate interests, I would rely on it to provide the minimal standards of nutrition, shelter, law enforcement and protection against predation that the poor need to save the potential of their lives instead of squandering it, which is what we currently do.
But I DO believe our government is corrupted by money, along with every major charity, so instead I pay the taxes I am legally obligated to pay, but besides that, I contribute both money and time (time that I could have spent earning far more) to society in ways I am virtually certain will not be corrupted or squandered and will help the poor and everybody else.
Tony C.
> Grossman is an idiot ideologue, a religious nut, he can’t get over his anger at being mistreated by society
ideologue: one who connects facts via a principle into a system of facts ,ie, a scientist, as distinct from Pragmatism, a pseudo-practical view in which facts are isolated from each other ,as in an insect’s momentary sensations.
religious: the pseudo-realism of an impossible supernatural realm, accepted as the only realism by subjectivists who deny nature is real.
mistreated by society-After rejecting religion, modern subjectivists substitute society, inventing nearly psychotic rationalizations of why society controls their mind, eg, Marxism or any other pseudo-rational, social determinism. These subjectivists may as well wear a tin-foil hat to stop Martian rays from controlling them. Rejecting mind for society, they reject free will and thus think and feel as if they are controlled by society. Some subjectivists end in the gutters outside liquor stores or in mental hospitals or on university humanities faculties. They all want unlimited tolerance for their evasion of reason. As the founder of modern subjectivism, Descartes, said, “”I fantasize, therefore I am.” Contemporary subjectivists amend this to, “I am socially approved, therefore I am.” This is why religion is returning, ie, they are so conceptually disintegrated that even the pseudo-integration of religion is preferable. Integrating the evidence of their senses by logic is not an option for religionists or subjectivists.
@TonyC
Tony, since you think government action is so critical to relieving 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.
Roco
>Stephen Grossman: if he doesnt like A = A how about 1 = 1?
The corruption of modern mainstream philosophy is more than you may imagine. See “Identity” in the online Ayn Rand Lexicon and then in a mainstream, philosophical dictionary or encyclopedia, eg, Ency Of Philosophy. These people are one step away from psychosis. In fact, the rationalizations that schizos use to justify or describe their experiences are identical to modern philosophical subjectivism, eg, the fantasy of controlling reality with their minds, ie, subjectivism. See Leonard Peikoff’s “Madness & Modernism.”
@Roco: see kderosa’s response to Mike Spindell and let me know how much you send.
Don’t give me homework. Tell me your question and I will answer it; I have probably answered it before, if it is what I think it is.
@Roco: I dont think Tony C will understand what you just wrote.
You are technically correct, because I don’t read anything he writes after the first insult; which is usually in the first words. So even if I understood his topic in exhaustive detail, I will not even hear what he specifically wrote.
Grossman is an idiot ideologue, a religious nut, he can’t get over his anger at being mistreated by society and so he cannot help but hurl insults while doing the same thing again, and again, and again: Yelling that he is right. Why bother reading anything he writes? Once I detect he is in insult mode, I know he isn’t serious; he is just looking for catharsis in all the wrong places.
Stephen Grossman:
if he doesnt like A = A how about 1 = 1?
Mike Spindell
>>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?
I was satirizing your claim that you dont consider the posted examples of big govt to be big govt. And the Nazis, exactly like you, were subjectivists. They were racial subjectivists while you are an economic subjectivist (and maybe other kinds as well). Yes, A=A, a hated fact for subjectivists.
Stephen Grossman:
I dont think Tony C will understand what you just wrote.
Tony C
>I am aware of only one solution: Regulation.
Your inner fascist thug is showing. Man’s mind is the only solution to social problems but liberals abandoned mind for emotion a long time ago. See Michael Moore and Lady Gag. (Gaga makes me gag).
Consumers can sue retail sellers of poison. Those sellers and their insurance companies will demand that wholesalers make it possible to identify source of poison or lose retail sellers as customers. You deduce from Marxist fantasies (as others deduce from God) and then _associate_ the deduction with statistics (which can be associated with anything). You do not induce from conceptualized observations to identify causes.
You focus on a few, short-range businessmen who are corrupt (before competition by competent, long range businessmen). You evade a massive increase in material prosperity (including health and longevity) since the Industrial Revolution. You drop context as if all business, all the time, is destructive ,as if govt somehow, magically, knows how to produce. It does not. Govt is blood and the threat of blood. That is not production. Sacrifice is impractical. Selfishness is practical. And moral. There is no mind/body split. Regulation decreases production, the production needed for survival.
Your knowledge of coincidences is not knowledge of causes. Statistics is an ape in a lab coat. Coincidences suggest research to study possible cause by identifying the context of coincidences.
Mike Spindell/Tony C:
Each according to his means,Mike,right?
So if you believe taht we should pay higher taxes why don’t you just pay higher taxes voluntarily by sending in your money to the treasury? Why wait?
Tony C:
see kderosa’s response to Mike Spindell and let me know how much you send.
Do you encourage an alcoholic to drink? or do you try and do an intervention and get them real help?
Why would you want to encourage an addiction? Why do you and Mike hate humanity so much?