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?
@Roco: If you had no fear, no love, no desires for a particular future, no dislike of living in squalor or poverty and felt no joy or pride in your children or accomplishments, if you felt no anger at injustice, if you felt no rebellion at enslavement, what would your “values” be?
Whatever values you have, I can trace back to an emotional feeling in you, because if violating the value does not cause an emotional reaction in you then it isn’t really a value!
What does the “right to property” mean if you have no emotional reaction to somebody stealing your watch? If you have the right to do as you please with your time and your money, what does it mean if you are incapable of being “pleased”? Being pleased or wanting something, including freedom, are emotional states, Roco. Absolute freedom is being able to pursue your emotional states without restriction; Limited freedom is being able to pursue some, or most, of your emotional states without restriction or fear (another emotion) of retribution or punishment.
Your desire to not be controlled or enslaved is an emotional state. Your values spring from your emotional states, in the sense that some outcomes (like justice) please you and others anger or disgust you (like government corruption).
Your rights spring from the values that spring from emotion: Life, liberty and the pursuit of happiness.
Tony C:
“EMOTIONS are the root of values,…”
Please explain this statement.
@Roco: If you love your wife dearly, is it a sacrifice to lose every thing you have to save her life?
YES, it is, that is the definition of sacrifice! This is how you know your argument is wrong, when you have to start redefining words to make your argument work. Of course that is sacrifice, it is knowingly giving up your own welfare for that of another.
If you wish to live in freedom and are fighting tyranny which threatens your country, is it sacrifice to give your life?
YES, it is. Redefining what ‘sacrifice’ means is not an option.
If you do not wish to live in tyranny you have made a rational decision that it is better to die trying than to live in a totalitarian state.
How can that possibly be ‘rational’ using your definition of ‘values’ always springing from the preservation of life?
Fighting or living in a totalitarian state are not the only two options open to somebody before the fight begins. Running, hiding, leaving the country, getting into an “accident” that make you unfit for duty, even just doing your best to let others fight the war for you are all options that preserve LIFE, if preserving life really were the ultimate goal. And by your lights, what you WANT is always trumped by the preservation of your own life, according to you no value can be higher than that, so a life without freedom is better than no life at all.
If we avoid rewriting the dictionary to drain all meaning from the word sacrifice, then sacrifice is something real that people do every day, and sacrificing one’s life for others is something cops and firemen and soldiers and rescue workers and common citizens do every day. In the Gabrielle Giffords shooting, one of the fatalities was a husband that grabbed his wife and shielded her with his body. That was love, an emotion that trumped self-preservation, and prompted self-sacrifice.
Similar emotions prompt soldiers to die for each other, or for their country. Emotionally we know there are some things more important than our own lives, and those things all have to do with our relationships with others.
Relationships can be more important to people than their own life, literally speaking. People will sacrifice their own health, money, property, time, careers, pride, honor, or anything, really, to preserve some relationships or to save somebody they love.
But love is an emotion. It can be the reason for doing something, in the sense of that word that means it is the primary motivating factor for the action, but it is not rational or reasoned in the sense of being a logical conclusion from self-evident axioms. If you allow an emotion into the mix for what counts as “rationality,” you drain all meaning from this word too, because then there would be no distinction between “rational” and “irrational.”
Redefining the common meaning of words to prop up your argument is not an option. “Sacrifice” has a meaning, “Rational” has a meaning, if you communicate with those words they mean what the dictionary says they mean, not whatever you want them to mean. If they do not mean what you want, find other words that do.
@Roco: they produce nothing which can be used as a medium of exchange. Which is were wealth comes from.
No it isn’t. Some of the richest people in our country are actors, musicians, and sports stars. What does a performance create that acts as a medium of exchange? And don’t give me crap about a CD or DVD, people pay for performances that do not create either one; go to any Vegas Elvis impersonator or magician or stage singer, or anybody that paid to see a live performance of The Beatles.
What “medium of exchange” is produced in a restaurant? That is also performance art, they produce edible art, you eat it, there is nothing you get from that you can trade for something else of even approximately equal value. What you get for your money, at a live play, restaurant, concert, or sports game, is a sensation. Not a medium of exchange. People can get “wealthy” by delivering sensation. Watching Michael Jordan play in his prime was exciting, that is a sensation. Watching a sci-fi action thriller is fun, it is surprising, a spectacle, a sensation that lasts, and if well written will have you enjoying the memories for quite some time to come.
As a person that has been successful in three businesses, it has always been my firm belief that what makes a business successful is the moderately difficult process of making customers happy at a profit. I don’t care what you sell, when I sold my services as a consultant, the solutions I produced were not a “medium of exchange,” they could not in any way be traded or sold because they were unique to precisely the one company that needed me (or somebody like me, but the supply of people like me is rather limited).
I could just as well say your definition of producing products would be pointless without the government around it. People wouldn’t trust them, they wouldn’t be safe. Without the government, our industrial production would be about where Afghanistan’s or Pakistan’s or Yemen’s would be; namely non-existent. You won’t find an industrialized country without any government supported infrastructure; law enforcement, courts, free roads, taxes, and everything else, and that is all the proof one needs to know that the infrastructure is a necessity. The corporations do not survive without it, and that is why you don’t find them headquartering in lawless wastelands.
Instead they buy governments so they can criminally leech off of us and avoid the taxes they should be paying to use our infrastructure.
Mediums of exchange is not what creates wealth. Creating satisfaction and sensation is what creates wealth. Sometimes, but only sometimes, that sensation can be created with a machine that saves money, or works faster, or increases capacity, but nobody bought it as a medium of exchange: They bought it to solve a problem, and the value is in the satisfaction of knowing the problem is solved and the future is brighter. People trade their money for sensations, not for products. If products are involved, they are just the means to the end, which is sensation.
@Roco: I am countering your claim that all values are traceable to preserving one’s own life. They obviously cannot be if some values, like love, trump the preservation of one’s life. EMOTIONS are the root of values, and although one strongly felt emotion is the desire to continue living, it is not the only emotion, or even the strongest emotion, that produces values. We have emotions built into us by evolution that are stronger than the fear of death. Men (and women) will face death to save a child, even a child that is not their own. Your examples are examples of emotion trumping reason, they are not reason.
Tony C:
If you love your wife dearly, is it a sacrifice to lose every thing you have to save her life?
If you wish to live in freedom and are fighting tyranny which threatens your country, is it sacrifice to give your life? If you do not wish to live in tyranny you have made a rational decision that it is better to die trying than to live in a totalitarian state.
http://www.politicususa.com/en/debt-ceiling-tax-hike
67% of Voters Say A Debt Ceiling Deal Should Include Tax Hikes On The Rich
Respondents also felt that it was more important to reduce unemployment (49%) than reduce government spending (43%).
“It is immoral to ignore the needs of the least of these. But it’s also immoral to ’serve’ the poor in ways that only make more people poor, and trap them in poverty longer. And it’s immoral to amass a mountain of debt that we will pass on to later generations. I even believe it’s immoral to feed the government’s spending addiction. Since our political elites have demonstrated such remarkably poor stewardship over our common resources, it would be foolish and wrong to give them more resources to waste. . . . The religious left has monopolized the language of morality and justice when it comes to matters of government spending. If we should ask, ‘What would Jesus cut?’, then we should also ask ‘Whom would Jesus indebt?’ and ‘Whom would Jesus make dependent on government?’ Since the poor are the first ones hurt by a damaged economy and low unemployment, there is a deeply moral case to be made for serving ‘the least of these’ through policies that promote a flourishing economy and culture.” TIMOTHY DALRYMPLE
@Roco: all values stem from life and the furtherance of life. Specifically your own life.
No, they do not. All values stem from emotion. A soldier that jumps on a grenade and sacrifices his own life for others that are not even related to him is acting on a value that has nothing to do with furthering his life; in fact he is most likely ending it. Soldiers knowingly go on suicide missions to protect their country; that is an emotional decision to end their life to serve a greater cause.
If the only emotion you have is fear of death, I suggest you figure out how to get over it, because a constant fear of death will ruin your life.
@Grossman: Because you think that everybody sacrificing to everybody is self-interest.
That is a lie and an insult, I don’t have to read any further.
Tony C:
all values stem from life and the furtherance of life. Specifically your own life. To sustain your life you must be selfish. Even if you accept the tenets of altruism, you only accept it to limit where it interfers with the continuation of your life. I doubt if you were starving or very hungry you would give up your last chicken wing to someone else.
So at some level even you are rationally selfish.
Tony C.
>@Grossman: Because I do NOT think either one is rational in the least.
Because you think that everybody sacrificing to everybody is self-interest.
This is intellectually pathetic, showing modern man so much at the end of his anti-intellectual, nihilist rope that he’s returning to the moral view of primitive tribalism. It’s better than drug addiction and suicide. I assume, but maybe you know better.
Well, with your scholarly knowledge of Objectivism, you should find it easy to identify Rand’s defense of selfishness ,distinguish it from others, and refute it. I await breathlessly for the refutation I haven’t heard and you haven’t heard from academic philosophers.
On the other hand, I just returned from a university bookstore where my perusal of next semester’s books brought to light an interesting claim in an ethics text. It seems the author claims that Rand’s ethics doesn’t “seem to be a theory of ethics” at all. “Seems? Nay, I know not seems!” (Shakespeare?) He doesnt claim this about any other theory altho he doesn’t accept all the theories he presents. Only Rand. “Curiouser and curiouser”. The author does, however, rely upon the arguments from authority and popularity. This certainly seems to attack a student’s intellectual independence and ,indeed, the very cognitive functioning and biological function of mind. One of the philosophy faculty agreed when I asked if this was professional fraud.
And, in his discussion of Rand’s ethics, he finds merely what other alleged advocates of selfishness have claimed, thus finding nothing new in her explicitly stated “new theory of egoism.” Eg, her absolute moral values and virtues, her derivation of ought from is, and her grounding of value in life. The intellectual corruption in the universities continues, with this exception, your intellectual authorities now teach Rand, however dishonestly and incompetently. A mere three or four decades ago, there was only silence on Rand. Who knows what the next several decades may bring, especially from students who go on to teach?
@Grossman: Because I do NOT think either one is rational in the least.
Tony C:
they produce nothing which can be used as a medium of exchange. Which is were wealth comes from. You cannot pay for government with the civic order brought about by our legal system.
Tony C
>If you have a point you think I am dodging, write a new post and state it without lie or insult and I will answer it.
Youre dodging the issue of the rationality of selfishness and selflessness.
@Roco: that is what your policies amount to, legalized theft.
No, they don’t. They are only theft if you do not benefit from the action. The fact that you refuse to follow the logic that proves you DO benefit from the action, or you deny that logic, means nothing to me. You do benefit, and that is why it is not theft, but a service you are required to pay for. Calling it theft is analogous to calling the grocer’s demand for money in return for food you need to survive “extortion.” It isn’t extortion. It is a payment in return for somebody else’s work that ultimately benefits you. If a child is too ignorant to understand that his parents are protecting him and feeding him and clothing him and these things are not just naturally free, that does not mean the expenses were not made.
If you are unable to wrap your head around the fact that police protection reduces crime and protects you even if you were not specifically targeted for a crime, so you benefit from the presence of police even if nobody has attacked you (because one of the reasons nobody has attacked you is they were incarcerated for attacking somebody else), you are like that child, and like that child, you must be coerced into doing something against your will because you do not sufficiently comprehend the reality of the environment you live in.
@Roco: Who says government employees do not produce? Who told you that? They were lying to you, or perhaps they were just stupid.
Do cops produce anything? Ideally, I think they produce safety. Do courts produce anything? Ideally, I think they produce justice and prevent predation on the weak by the strong. Can a school produce anything? Ideally, they produce skills and knowledge and understanding that makes people more successful. Does the military produce anything? Ideally, they produce a country where people have some freedom.
Products are not the only thing of value; services are of value, and some services, like protection from predation either foreign or domestic, should be provided for all of the people by all of the people.
Tony C:
if you want to pay extra that is your right. I dont want to pay extra, I think that money can do more good in the hands of people who know how to create jobs. All your ideas will do is lead to an increase in government jobs which dont produce anything.
To consume you must produce. If you do not produce you cannot consume. You cannot fund the government on government workers. They dont produce anything.
You as an individual are not a thief but that is what your policies amount to, legalized theft.
@Kid: You claimed I was voting largess for myself, I was not. That is an insult. You claimed I was dooming democracy, I am not. That is an insult. I will not respond to insults. I answered the first statement; that I was voting largess for myself. I am not; the largess I vote for is for those that need it, and that does not include me, unless we are talking about roads and police protection and the services I think rich and poor need alike.
I am no longer in need of a better public school, but I would vote that way, regardless of the tax impact on me. I would vote for more police in the neighborhoods that need them; which is not my neighborhood. I would vote for more public health care, regardless of the tax on me, even though I and my wife are already insured on a truly excellent plan.
You are not arguing against somebody that needs any help. When you say you are, you are lying, or at a minimum trying to dismiss my argument by claiming I am the equivalent of a thief, which is an insult. I won’t read your posts any further once I detect either lie or insult. If you have a point you think I am dodging, write a new post and state it without lie or insult and I will answer it. If you are incapable of that, the it is YOU that is biased by emotion you cannot control, and I see no point in arguing with a person in that condition.
TonyC — where is this insult that you accuse me of making? You are dodging. My post, that you continue to ignore addresses the point you raise.