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?
Jstol:
“I disagree, kderosa cares deeply about our country and the people in it. He/she just doesnt seem to believe in unlimited government.”
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Nah. He believes in government limited by a corporate oligarchy. The oligarchy–that’s the unlimited thing.
@Lottakatz: Okay, I kind of made a mess of that middle thought, with tattoos and all. My point was that I think people are inherently free to do what pleases them if it doesn’t harm somebody else. If prostitution is voluntary, IMO it should be legal. If tattooing is voluntary, IMO it should be legal. If bare knuckle fist fighting for pay is voluntary, IMO it should be legal.
If any of those things are coerced, or intentionally harm others without their consent, or have a realizable probability of unintentionally harming others, they should be illegal.
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I will also point out another logical problem in the “I am my property” construct, the whole point of that is that you get to decide what to do with your property. But what gives the “you” doing the deciding that right, if “you” are also just property? From whence does THAT right flow? Property doesn’t have any inherent rights. So even in that construct, we run up against the conundrum of an intellect having the right to make a decision. I think we solve this problem by making the right of decision axiomatic. Which means, we take it as a fundamental truth that does not require justification: People have the inherent right to be free, which means they have the right to decide certain things, including deciding to put themselves in a certain amount of danger if they so choose. Not because they are property, but because they are people.
Jstol,
You are saying we don’t? We too believe in limited government…but some government is necessary….What I do not understand…is when RWR touted less government…we actually got more….His understudy did not increase it so much….Clinton just maintained the government….But the son of a puppet master aka son of flubber did a large increase….check the numbers for yourself…
SG,
Good cut and paste…whats the source? Other than that…it appears as a dissertation of some grad student looking for a Masters….and a poor one at that….
AY:
I disagree, kderosa cares deeply about our country and the people in it. He/she just doesnt seem to believe in unlimited government.
that doesnt make him a bad person. And if you think big government is the be all end all and panacea of human misery then you arent a bad person. It seems to me there is some sort of middle ground. Where the least of us are cared for but the best of us do not have to live in fear of nationalization of their assets.
The right to property is a fundamental construct of our country.
You all have been pretty hard on kderosa and he has some good things to say. I havent seen him say throw poor people in debtors prison or let people starve in the streets.
Kantian and utilitarian ethics are mere word-play, rationalist floating abstractions without logical tie to concrete reality. They are rationalizations of the bloody inhumanity of sacrifice, which even that depraved freak, Kant, confessed had no rational justification. The 20th century, with its mass murders, world wars and totalitarianisms, was the necessary effect. It had to happen when intellectuals spit on their own minds.
Law is the institutionalization of individual rights, the conditions for life of man, the rational animal, in society. And the basic condition is the absolute rejection of the initiation of force. America was created as such a society even tho there were contradictions (eg, slavery, altruism, some constitutional errors) some of which festered into our current movement toward dictatorship. _Atlas Shrugged_ shows how we can return to the ideal of America as the society of the rationally selfish individual, a productive trader who sacrifices neither himself nor others.
who cares nothing about the truth and intent on stirring up the stink pot who cares not where the drift goes…..
@Lottakatz: I believe it is immoral to treat persons as property, even metaphorically. I think that personhood is its own thing that cannot be summed up in the term “property.” I can sell my property to another person, that can then destroy it for their pleasure. Tobacco is a property, alcohol is a property. Shall the rich be allowed to purchase the lives of men and then kill them for their own pleasure?
Property does not have feelings of regret, shame, or despair. Property does not aspire, and cannot be heroic. Property does not love its children. Property does not OWN property, my TV cannot, in any sense, own my blender. Property cannot decide its own future, or whether or not it should harm another, or protect another.
Finally, property does not have responsibilities and obligations to perform, it does not have the right to life, or a trial, or to face its accusers.
I do believe that people are free (or technically, I believe they should be free) to do with themselves many of the things they do with property: I think if they want to tattoo themselves, engage in dangerous sports (that do not recklessly endanger others), smoke, drink, box, or prostitute themselves, I do think it is immoral for adult A to control adult B as if B is the property of A. It is immoral to treat persons as property!
That does not mean B is the property of himself. B is just a person, with a person’s rights, and is not the “property” of anybody.
You ask, “from what then does any personal freedom issue?”
The answer is simple: Your question is wrong. Your personal freedom is inherent in the fact that you are a normal adult person, it does not “issue” from anywhere. You don’t have to “own yourself.” Can your refrigerator own itself?
People should be free, there is no logic I am aware of for why people should ever be considered property. (There is logic for restraining people, or putting them under the control of guardians, or incarcerating them: But even then they are not to be treated as property, they have just proven themselves incapable of functioning in a complex society without creating harm to themselves or others).
I don’t understand why you (or anybody) needs an excuse to be free. People with minds are a unique thing all of themselves, they do not have to be **like** anything else. Nothing else on the planet fears a threat spoken over the phone, or feels joy at a marriage proposal, or dreads a number on a piece of paper, or feels pride at watching their offspring walk a stage. Humans are unique, with a unique anticipatory capacity, and language capacity, and imagination capacity, and logic capacity. Whatever freedoms and responsibilities we give them are unique to them, and need not apply to anything else on the planet, and need not derive from treating ourselves like anything else on the planet; least of all, inanimate property.
For one Jstol, You said we didn’t accept Kd because our faith is in the government….Most of us here have hope…I think that I can say this for most here is our faith has been shaken….Some of us believe in many different things…. The end result is KD is an Agent Provocateur….who cares nothing about the truth on stirring up the stink pot and cares not where the drift goes…..
AY:
so tell me why I dont.
Tony C: “I do not believe humans are property, even of themselves.”
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Why? I’m mainly one for ‘yes you are’ as a starting point and negotiating exceptions based on the the tension between the personal freedom I see such a position bestowing and the needs of a viable, generally beneficial society. If you don’t own the only object that is inherent to you, what then are you, from what then does any personal freedom issue? I’d be interested in reading your rationale for that statement. Having enjoyed your postings previously I’m sure you have an interesting rationale.
So Jstol,
This is where one can differ:
Then we realize that with each choice and act we not only make ourselves but give the universe what value it has, we have discovered the dignity inherent in mankind. We must be committed — idle opinion or belief is nothing. So liberation then, is commitment to action. Like Nietzsche, as for the existentialists, we must seek but not possess.
http://www.historyguide.org/europe/lecture12.html
You have no concept of what you have written…
Jstol,
This is where one can differ:
Then we realize that with each choice and act we not only make ourselves but give the universe what value it has, we have discovered the dignity inherent in mankind. We must be committed — idle opinion or belief is nothing. So liberation then, is commitment to action. Like Nietzsche, as for the existentialists, we must seek but not possess.
http://www.historyguide.org/europe/lecture12.html
You have no concept of what you have written…
kderosa:
or this:
“Must men then resign themselves to a total skepticism? No, says Kant, there is one means of piercing the barrier between man and existence. Since reason, logic, and science are denied access to reality, the door is now open for men to approach reality by a different, nonrational method. The door is now open to faith. Taking their cue from their needs, men can properly believe (for instance, in God and in an afterlife), even though they cannot prove the truth of their belief. . . . “I have,” writes Kant, “therefore found it necessary to deny knowledge, in order to make room for faith.””
Faith in their case is not religious faith, not a belief in God but in government. But the outcome is the same. Why do you think they go after you so hard? You are a heretic in their world view and if they could they would surely have you on the rack or subject you to some other “wonderful” device used during the Spanish Inquisition.
You are a pesky irritant, a non-conformist, an individual. Your kind are an impediment to them. A person who believes in the individual right of a man to his own life is a threat. You cannot control a human being like that, you must kill them or break them.
Hope that helps.
Jstol,
If I may offer this and at the same time agree with most of what you have said…but beg to differ in reality and contextualization….
This is out of:
The History Guide
Revolutionizing Education in the spirit of Socratic Wisdom
I aim here only at revealing myself, who will perhaps be different tomorrow, if I learn something new which changes me. I have no authority to be believed, nor do I want it, feeling myself too ill-instructed to instruct others. (Montaigne)
Lecture 12
The Existentialist Frame of Mind
…………”Existentialism is wholly subjective — that is, it begins and ends with the subject: man. In the 1780s, Immanuel Kant (1724-1804) had focused all his attention on the subject only in his case the subject was not man but the human mind. He was less interested in the objects of our knowledge — the phenomenal world — than he was with the faculties of the human mind. Kant said that the mind is rational, it is endowed with Reason. Within the mind there are the categories of judgment, cause and effect, time and space and so on. In other words, the Rational mind projects reason on the phenomenal world. The existentialist is not satisfied with Kant’s manner of thinking. Existence is not rational — it is absurd. The best we can say is that it simply is. The philosophers have invented Reason as a shield against fear or to rationalize their most irrational desires. As William Butler Yeats (1865-1939) once wrote, “We cannot know the truth but/we can live it.””
http://www.historyguide.org/index.html
Blouise
“Gene H., Please be Johnny Depp … please, please, please”
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🙂 Be still my beating heart.
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The only person on this blawg that has a right to any heartburn about the nom de plume(s) of one of the guest blawgers is the Professor- who I am sure knows all. It’s his house, his call. If one don’t like his call there are probably a bazillion other blawgs on the interwebs that one can visit. We are all guests here and should occasionally keep that in mind. This issue, like all such discussions, is just a distraction from the thread at hand.
kderosa:
“And what is up with the love affair of Kant that this forum has?”
“The “phenomenal” world, said Kant, is not real: reality, as perceived by man’s mind, is a distortion. The distorting mechanism is man’s conceptual faculty: man’s basic concepts (such as time, space, existence) are not derived from experience or reality, but come from an automatic system of filters in his consciousness (labeled “categories” and “forms of perception”) which impose their own design on his perception of the external world and make him incapable of perceiving it in any manner other than the one in which he does perceive it. This proves, said Kant, that man’s concepts are only a delusion, but a collective delusion which no one has the power to escape. Thus reason and science are “limited,” said Kant; they are valid only so long as they deal with this world, with a permanent, pre-determined collective delusion (and thus the criterion of reason’s validity was switched from the objective to the collective), but they are impotent to deal with the fundamental, metaphysical issues of existence, which belong to the “noumenal” world. The “noumenal” world is unknowable; it is the world of “real” reality, “superior” truth and “things in themselves” or “things as they are”—which means: things as they are not perceived by man.”
GeneH:
Isnt this more in line with Rousseau than Locke?
Under any name it smells like tyranny to me.
““The greatest good for the greatest number” . . .
This slogan has no concrete, specific meaning. There is no way to interpret it benevolently, but a great many ways in which it can be used to justify the most vicious actions.
What is the definition of “the good” in this slogan? None, except: whatever is good for the greatest number. Who, in any particular issue, decides what is good for the greatest number? Why, the greatest number.
If you consider this moral, you would have to approve of the following examples, which are exact applications of this slogan in practice: fifty-one percent of humanity enslaving the other forty-nine; nine hungry cannibals eating the tenth one; a lynching mob murdering a man whom they consider dangerous to the community.
There were seventy million Germans in Germany and six hundred thousand Jews. The greatest number (the Germans) supported the Nazi government which told them that their greatest good would be served by exterminating the smaller number (the Jews) and grabbing their property. This was the horror achieved in practice by a vicious slogan accepted in theory.
But, you might say, the majority in all these examples did not achieve any real good for itself either? No. It didn’t. Because “the good” is not determined by counting numbers and is not achieved by the sacrifice of anyone to anyone.”
I am My Cul Heath aka ratboy 🙂
culheath..
I forget…who are you…Now, if you were Hector Heathcoat….I’d know who you were right off the bat….