Submitted by Gene Howington, Guest Blogger
In 1780, John Adams succinctly defined the principle of the Rule of Law in the Massachusetts Constitution by seeking to establish “a government of laws and not of men”. This reflects the democratic principles enshrined in the Constitution’s preamble: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” The very foundation of our legal system says that the law should work for us all, not just a select few.
This raises the question of what is a good law that serves the majority of society and what is a bad law that doesn’t serve the majority of society?
This idea is further bolstered by the Equal Protection Clause of the 14th Amendment:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The latter addition of the 14th Amendment as well as the Preamble of the Constitution both reflect the spirit in which this country was founded as set forth in the Declaration of Independence: “When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”
Clearly, the pursuit of the Rule of Law under the Constitution as informed by the Declaration is a pursuit of the Utilitarian concept of the right course of action is the one that maximizes the overall good consequences of an action; what is in the best interest of greatest numbers of We the People is in the best interests of the country.
Utilitarianism is a quantitative and reductionist philosophical form. Utilitarianism, however, is not a unified philosophical view. It comes in different flavors with the two primary flavors being Rule Utilitarianism and Act Utilitarianism. Strong Rule Utilitarianism is an absolutist philosophical view and rules may never be broken. Like any absolutist view does not take into account that reality occasionally presents situations where breaking a rule results in the greater good. For example, the strong reductionist rule that murder is bad is countered by the exceptional example of murder is not bad if performed in self-defense or the defense of others. This result of practical application is reflected in what John Stuart Mill called Weak Rule Utilitarianism. It becomes apparent that since not all rules are absolutely enforceable when seeking the common good and exceptional circumstances require flexibility in the law, that the Utilitarian pursuit of the Rule of Law must be in Mill’s Weak Rule formulation of Utilitarianism. But is considering the greater good and circumstantial reasons for breaking or modifying rules the best way to judge whether a law is good or bad?
If one considers Kant’s Categorical Imperative – “Act only according to that maxim whereby you can, at the same time, will that it should become a universal law.” – then any law not universally applicable should not be a maxim worthy of being recognized as universal. This is contrary to Utilitarianism in general as well as Weak Rule Utilitarianism specifically, but while Kant’s view takes subjectivity into account when dealing with circumstances it does not take into account that there can be objective differences in circumstances as well. It is part of the judiciaries role as a trier of fact to consider not only subjective differences but objective differences in circumstances in formulating the most equitable and just solution to a case at bar. In seeking to be universally applicable in defining maxims, Kant is an absolutist as surely as Strong Rule Utilitarians are absolutists. As a consequence of reality not being neatly binary in nature and thus not often compatible to absolutists approaches to formulating laws for practical application, what can be done to keep Weak Rule Utilitarianism from degenerating into Act Utilitarianism where actors will seek the greatest personal pleasure when presented with a choice rather than the greater good? Utilitarianism conflicting with the Categorical Imperative? Is there a unitary philosophical approach to evaluating whether a law is good or bad?
The answer seems to be no. If there is no single view, absolutist or otherwise, that leads to a practical system for evaluating whether a law is good or bad, then there is only one option for building a framework for evaluation. That option is synthesis.
Consider that absolutist systems as they are not applicable in reality should be confined to being considered theoretical boundaries rather than practical boundaries. This does not negate the value of considering systems like Strong Rule Utilitarianism or Kant’s Categorical Imperative, but rather puts them in the place of aspirational goals rather than practically attainable goals in every circumstance. Given that Mill’s Weak Rule Utilitarianism can degrade into Act Utilitarianism and that degeneration can be compounded by the number of exceptions there are to a rule, are there ways to minimize the defects of using only Weak Rule Utilitarianism to determine the societal value of a law? What supplements can be made to that framework?
I submit that one such supplement is found in the form of Negative Utilitarianism. Negative Utilitarianism is exactly what it sounds like; the inverse function of Utilitarianism. Whereas Utilitarianism is the basic proposition that the right course of action is the one that maximizes the overall good consequences of an action, Negative Utilitarianism is the basic proposition that requires us to promote the least amount of evil or harm, or to prevent the greatest amount of suffering for the greatest number. If one takes both into account in evaluation of the social value of a law (a synthetic approach), the test becomes a balancing act. On one side of the scale is the societal value of overall good consequences, on the other side is the societal value of preventing overall harm. This proposition suggests the following framework for evaluation of whether a law is good or bad.
- How many people benefit from the good consequences of a law?
- How many people benefit from the reduction of harm as consequences of a law?
- Does the benefits from promoting good consequences outweigh the costs of reduction of harm?
- Does the benefits from reducing harm outweigh the costs to the greater good in taking no action?
- Are the net consequences of a law perfectly knowable from either perspective or does the possibility of unforeseeable consequences exist? Can the unforeseeable risks be minimized either by construction of the law(s) to allow for contingencies or by regulating other risks or contributing factors?
- Do solutions from either perspective negatively impact human and/or civil rights? Do those negative impacts outweigh the positive effects to the greater human and/or civil rights of all?
This is but one way to evaluate whether a law is good or bad for society. What are other methods? Are there ways to improve this method? What do you think?
Tony C.
> are only theft if you do not benefit from the action
Notice the morality of suffering and death as the implicit context. Ie, if you benefit, its evil. If you dont benefit, its good. This was spewed out by German philosophers throughout the 19th century and the early 20th century. Nazism is the product of the morality of sacrifice.
“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.”
How does one who has never worked in his life, but always had his parents support him at school, think that he can understand the way the economy, and business work?
Immaturity and the snobbishness of the privileged.
Tony C:
State of nature is an abstract concept, it is not meant as you are proposing.
One must accept that humans are helpless and require parents and society for their existence. We are not arguing that point, what we are arguing is whether or not man gives up rights to enter into society and if he “belongs” to society or is an autonomous actor within society following the laws developed by society to protect individual rights.
Tony C:
as opposed to something that has value, such as our court system, but consumes wealth.
Tony C:
people pay to be entertained. The product of Hollywood is entertainment. It produces wealth and therefore has value.
Oops, sorry Roco, I was responding to Grossman.
@Roco: These are induced from common human experience.
NO, they are not. No human was ever plopped down in a state of nature with no parents, no family, no nuthin’. That is an imaginary construct divorced from reality.
Every human on the planet was born utterly helpless, unable to recognize objects or sounds, unable to control their own muscles, unable to feed themselves or escape from a predator, not even with the knowledge of their own limbs or hands or feet. Those are discovered by infants.
THAT is the actual “state of nature,” not a functioning adult with cognition and the ability to make choices, but a relative blank that will not survive a week without constant help and support for years.
I have discussed this already on this thread (here) and won’t repeat it, but starting from the actual state of nature produces a model of society that closely approximates reality as we see it in virtually every culture on the planet, from hunter-gatherers to industrialized nations, whereas your starting point does not.
@grossman: It functions for selfishness, not selflessness.
This comment is appropo of what, precisely? I do not think a system based on pure selfishness or pure selflessness will be functional. I consider anybody that proposes such a thing, whether they are Rand or Marx, to be simply stupid to think they would work. I have no respect for either philosophy.
Rational selfishness starts with the knowledge of the objective requirements of man’s life, a knowledge unknown to or evaded by most people in fundamental issues. [emphasis mine]
Then it makes no sense to me; I don’t know what “objective requirements” are and I don’t care because I disagree fundamentally with objectivism, if you are using Rand’s definition of it. I think it is simply idiotic. I am not going to embrace any philosophy founded on an idiotic premise.
And although I may be insulting your dead hero, I am not insulting you. I am talking about myself, it is ME that thinks that Rand is just an idiotic sociopath. And I will throw Marx into that pot as well.
They [children] owe nothing to the wider society. I disagree, they owe their lives to the wider society, the vast majority of children would not exist if not for the wider society. We didn’t grow from 50,000 people on the planet to billions without society, and wouldn’t survive without society, and wouldn’t survive without the laws that protect us.
You are not born in chains. Once you reach adulthood, you are free to do as you please. But if you want to use the machine (society) that we and our ancestors have built with blood and treasure, by our system of majority votes and representative democracy and regulations, then you will use our property by our rules, which include paying for the machine in proportion to how much it benefits you. You are born free: Free to leave our society and find your own way without our protection or help. Nobody will stop you, and there are still places in the world without society that you are welcome to wander.
If you choose to stay; you don’t get it for free, and it is a package as-is deal: Take it all or leave it all, there is no negotiation.
Tony C.
>@Grossman: I do not believe a functional system arises from selfishness of individuals.
It functions for selfishness, not selflessness.
>Greedy Algorithm
Youre confusing rational selfishness with emotion-based, short-range, predatory pseudo-selfishness. Rational selfishness starts with the knowledge of the objective requirements of man’s life, a knowledge unknown to or evaded by most people in fundamental issues. It is reality-directed, not society-directed.
>axioms about owning yourself, or your time, or anything else Ayn Rand wrote or said
These are induced from common human experience. They are not subjectivist floating abstractions.
>people have been born into families and tribes and been protected, fed, and raised by others, and in time have usually come to repay that favor by protecting, feeding and raising the next generation, including those unrelated to them, without considering it a “sacrifice.”
Its not a favor but an obligation for parents to protect their children since children are the result of the parent’s actions. Children may owe gratitude for rational parents but nothing more. They owe nothing to the wider society. We are not born in chains. Obligation is chosen. Duty is unchosen. And duty is sacrifice w/o values. And there is no duty. Whether or not somebody being sacrificed has the rationality to recognize the sacrifice is irrelevant to the fact of sacrifice.
@Roco: Emotions existed before reason and values, and all the evidence from brain science, psychology, evolutionary psychology and fMRI brain imaging studies indicate that emotions are still very much in charge of just about everything we do.
The function of the frontal cortex, the reasoning part of the brain, is essentially as a servant to the emotions. It is an add-on, evolutionarily speaking, and is used as a tool, it is not in charge. But in the case of amygdala hijack (which I have written about here before) and many other indications, people will blow off rationality and do things that are immediately emotionally satisfying that, in rational moments, they know are emotionally devastating for the long term.
Speaking metaphorically here, the emotional centers request analysis from the rational part of the brain, which provides it, and the emotional centers indicate when sufficient processing has been done, and ultimately make the decision. The value of this is that the emotional centers are then able to make decisions based on probable future emotions as well as immediate ones.
In people with brain damage to the amygdala, so it cannot control the rational part of the brain, the rational brain will basically spin forever. These people have great difficulty making even minor decisions, because they will analyze the choice indefinitely. They don’t get bored, they don’t get worried, they don’t get irritated, they will spend three hours mentally discussing the pros and cons of which tie to wear; and because their amygdalae never tell them to stop, the tool just keeps at the task, waiting for an input or command that never comes.
Emotions are first. Just about all mammals have them, it has been demonstrated that mice have them. Reason is a tool of the emotional mind.
@Roco: They produce enjoyment.
I see. That is what I was saying, basically. And you think “enjoyment” is a medium of exchange, as you demanded? Why isn’t “relief” from starvation a medium of exchange? Why isn’t a feeling of “security” in one’s home and finances a medium of exchange?
I wasn’t the one that said producing a medium of exchange was the only route to wealth, you said that.
Tony C:
your emotions are created by your values, not the other way around. Maybe you are mistaking “instincts” for emotions?
Tony C.
> values stem from emotion
“Emotions
Just as the pleasure-pain mechanism of man’s body is an automatic indicator of his body’s welfare or injury, a barometer of its basic alternative, life or death—so the emotional mechanism of man’s consciousness is geared to perform the same function, as a barometer that registers the same alternative by means of two basic emotions: joy or suffering. Emotions are the automatic results of man’s value judgments integrated by his subconscious; emotions are estimates of that which furthers man’s values or threatens them, that which is for him or against him—lightning calculators giving him the sum of his profit or loss.
But while the standard of value operating the physical pleasure-pain mechanism of man’s body is automatic and innate, determined by the nature of his body—the standard of value operating his emotional mechanism, is not. Since man has no automatic knowledge, he can have no automatic values; since he has no innate ideas, he can have no innate value judgments.
[Ayn Rand]
Tony C:
“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?”
People pay money to be entertained, it is huge business and is supported by many other industries.
They produce enjoyment.
@Grossman: To be more specific, I do not give a crap about your philosophy of self-interest, I do not believe a functional system arises from selfishness of individuals. Read my post above about Greedy Algorithms. I do not accept as self-evident your axioms about owning yourself, or your time, or anything else Ayn Rand wrote or said. What you find compelling, I find peurile and childish and illogical.
I do not think self-interest is the right starting point. For fifty thousand years people have been born into families and tribes and been protected, fed, and raised by others, and in time have usually come to repay that favor by protecting, feeding and raising the next generation, including those unrelated to them, without considering it a “sacrifice.” Most have considered it a duty or an obligation; meaning a debt to be paid, not a surrender of their property or an imposition, which is what you imply with the word “sacrifice.”
Roco
> cannot pay for government with the civic order brought about by our legal system.
Excellent, succinct! The producers of material wealth can produce w/o govt (tho anarchy exposes them to theft and murder after they have produced). But govt depends, for its financing, on the production of material wealth. And more, govt depends on somebody having the idea that govt can protect producers. Even more, govt is force and only force. Without force, it is nothing. Producers offer production on a market, to be voluntarily bought.
Try not paying taxes or even a parking ticket or not obeying a policeman’s orders or aggressively arguing with a govt clerk. Liberals evade this with the invalid concept of the social compact, as if consensus is moral justification, including justification for initiating force against dissidents. Liberals evade their complicity in the mass wars and murders of the 20th century, the century of their intellectual dominance. Govt is a gun stuck in your face. It must be limited to the protection of individual rights, including property rights.
Tony C.,
I am in awe not only of your intelligence, but your excellence in calm, but pointed rhetoric takes my breath away.
@Grossman: Well, I got further, but:
Youre claiming that disagreement on fundamentals is a lie and an insult.
That is a lie. And the second lie in this post, because I am not evading reason; I am refusing to argue with a liar. Read your earlier statement; you attribute a thought to me you cannot possibly be aware of; I have never said “everybody sacrificing to everybody is self-interest.” You claim I hold that opinion and I do not. You state that I hold that opinion as a fact and doing that is a lie. I did not read the rest of your post. Feel free to try again.
“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.”
Grossman,
As I expected you are merely a student, living off of your parent’s largess. It
is so easy to pontificate as you do, when you don’t have to actually support yourself. I present a tune that describes your callowness, but provides hope for your future maturation. you probably won’t get it now, but perhaps in the future you will.
Tony C.
>>@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.
Your ability to rationalize the evasion of reason is, well, breathtaking. Youre claiming that disagreement on fundamentals is a lie and an insult. So you debate only those who agree with the principle of sacrifice but disagree on application. You are intellectual sleaze. This is not a lie but it, most assuredly, is an insult, a just insult. Liberalism is ending. The ideological confidence of 1930s liberalism is long gone ,replaced by a psychotically narrow concern with each isolated nano-second’s concretes. “Pragmatists not out of rebellion or reformism, but out of exhaustion…who believe that nothing will work….We are drifting to the future,” [Leonard Peikoff, _Ominous Parallels_]