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,
Did I strike a nerve? The lady doth protest too much, methinks. Are you going to call me a Pinko next? I hate to break this to you, but being an extremist doesn’t equate to being a free thinker by its very nature of being polar. A free thinker considers all options and decides on their own. The consequence of this action is that they quickly realize that a polar solution is rarely if ever the solution to a problem. Being an extremist does however equate to both a purposeful strategy and/or a pathology. It is rigid thought, not free thought. Thanks for chiming in from the children’s table though.
“Gene H:
you clearly have lost the argument and that post is proof.”
“Gene H:
all collectivists think exactly the same way you do. The Soviets used to put free thinkers in psychiatric hospitals and say they were nuts, the Nazis did it. It was the ending of 1984. It is a common theme with people like you.”
Roco,
Stay classy. When unable to form a cogent argument, while encased mentally in a ridiculous, religious belief system, that prevents you from understanding nuance, attack. Neither Tony, nor Gene has lost anything. You merely lack the ability to grasp what they’re saying since your “reality” is the ravings of a hack writer, with a narcissistic personality disorder. The proof is in your comparing her to Tolstoy, etc. That declaration alone indicates that you lack the capacity to understand good literature. No wonder, your “wunderkind” Grossman has trouble with his professors, you two think alike. You bandy about words like communist, fascist and collectivist as if you know anything about those types, when you’ve never even met one. You are a religious fundamentalist believing in an atheistic religion. That sounds just like a communist to me.
Gene H:
all collectivists think exactly the same way you do. The Soviets used to put free thinkers in psychiatric hospitals and say they were nuts, the Nazis did it. It was the ending of 1984. It is a common theme with people like you.
I am pretty sure you would do the same thing or worse if you had power. One can only hope that minds as small as yours never have that power again.
Gene H:
you clearly have lost the argument and that post is proof.
Tony C:
“You believe it (and I do, and Einstein did) not because we have seen anything concrete at all; but because we believe the equations that generalize physics.”
Correct me if I am wrong but hasnt there been multiple experiments to prove that equation and havent all of them worked?
Same thing can be said for gravity and F=ma.
I am not sure what you are saying.
@Roco: My knowledge of the tree extends to E=mc^2 …
Why do you think that E=MC^2? Have you ever seen that “concretized?” Even if you have seen a video of a nuclear explosion: How did you measure the energy released by it, and how did you measure the mass of the fissile material, and are you aware that the energetic yield was just a small percent of mass * C^2?
You believe it (and I do, and Einstein did) not because we have seen anything concrete at all; but because we believe the equations that generalize physics. I say “generalize” in the sense that the equations describe idealized interactions between particles in the absence of any extraneous atoms, charges, gravitational and magnetic fields, which in nature may actually be present.
Even if you follow the proof that E=MC^2, you are referring to abstract models of particle interaction that were never actually seen, but derived from statistical information, that guided the imagination of physicists to invent mechanisms that, if present, could predict the behavior recorded. The best of those imaginary, invented mechanisms have been mathematical descriptions stunningly accurate in their predictions, and that is why we believe them to be “true,” because as mathematical models of particle interaction and behavior (like decay) they consistently give the right answers. Not because we have “seen” anything concrete.
@Gene H: I agree, about the only “fact” that dislodges those beliefs is massive loss or emotional trauma that proves the lie. For example, I know of one devout couple that lost their religion after the murder of their child, and in another case I know of a girl that lost her religion some months after being violently raped. They believed in supernatural protection against evil, and evil found them anyway, and the pain would not let them accept the platitudes of their priests.
It comes back to the emotional centers. I think extremists rely on their beliefs to relieve their mediocrity, it makes them feel like they know something about life and purpose that nobody else knows and they are operating on a plane above the rabble. Extremism makes them feel special and superior, confident and chosen. Heroic. That feels good, and the emotional centers will then reject whatever threatens that positive feeling, and especially anything that would prove they were duped and all those feelings were simply false all along, including facts and logic. Especially if those threats can be dismissed or rationalized away without causing any significant emotional pain or loss.
The emotions are in charge, and the more deeply seated the emotional commitment to something, the greater the emotional trauma it takes to dislodge it. I don’t wish deep emotional trauma on any innocent, and being reality-impaired is not a crime in my book. I think we probably all are to some extent!
Tony,
By the same token, you can’t expect something like facts to get in the way of extremist beliefs. When not played as a rational strategy to gain power, it is at best a manifestation of a pathological problem. In the first instance, its a strategy that takes a lot of investment and usually continued escalation as a strategy to make it work so the person will be loathe to abandon it once started. In the second instance, short of psychotherapy and/or psycho-pharmaceuticals, the person is unlikely to escape the pathology on their own. Those two drivers of extremist beliefs are a large part of the reason I’m dismissive of extremists in the pursuit of rational conversation in the first place.
@Grossman: I won’t read your scripture; you are wasting your time.
@Roco: And I must add that I find it rather ironic that the people that demand “objectivism” reject the science based upon observing, testing, stressing, recording, and in general hacking into actual neurons in actual living brains to see how they work, how they signal, what sets them off and how and why they grow and form new branches and synapses (we observe this via chemical markers and stains) and how they learn. Why do the “objectivists” that worship “concrete” based knowledge reject this science and understanding of “concrete” neurons?
Because it categorically does not match Ayn Rand’s 1957 uneducated, uninformed cartoon sketch of an idea of how she guessed the mind might work (without any proof, or experimentation, or predictive value, or any evidence whatsoever but stories from her own fevered imagination).
Tony C.
@Grossman: I do not deny concretes are real, I deny that anything real is “knowable” without generalizations and expectations and rules to work with.
“A mind’s cognitive development involves a continual process of automatization. For example, you cannot perceive a table as an infant perceives it—as a mysterious object with four legs. You perceive it as a table, i.e., a man-made piece of furniture, serving a certain purpose belonging to a human habitation, etc.; you cannot separate these attributes from your sight of the table, you experience it as a single, indivisible percept—yet all you see is a four-legged object; the rest is an automatized integration of a vast amount of conceptual knowledge which, at one time, you had to learn bit by bit. The same is true of everything you perceive or experience; as an adult, you cannot perceive or experience in a vacuum, you do it in a certain automatized context—and the efficiency of your mental operations depends on the kind of context your subconscious has automatized.” Rand
@Roco: what do you mean anything real is not knowable? I see a tree in the forest and generally know it is a tree. I can do further study and know how the leaves process light for energy …
You know a generalization of a tree. You have a mental model of how photosynthesis works; you understand a mechanism, and the behavior of atoms, and how a photon can change the potential of an electron. You have never captured a photon; you only know they exist by the behavior they cause; the electrons they release in the rods of your eye or the energy they impart. You have never seen an electron; that is impossible, I know because of the mathematical model of an electron. I believe electrons are real, but we only know them by a very detailed characterization of atoms, which until recently nobody had ever “seen.” Atoms, and their shape, were inferred by the behavior of particles being fired at a super thin gold film, and detected on the other side. Recently, we have imaged individual atoms using scanning tunnelling electron microscopy; but we haven’t SEEN them with our eyes, or felt them with our skin: What you feel when you “touch” an object is electromagnetic repulsion; you have never touched an atom and aren’t doing so now.
When you say you “know” a tree, what you know is a mental model of how trees work. If you knew that particular tree, I could pick some random square inch of its surface and ask you to sketch the bark at that point precisely. I can’t do that for the tree that’s been growing in my front yard for 30 years. I could ask you how many leaves are on this tree you know so well, or how many branches, or how many bird nests it has hosted. You don’t know anything about the specific tree you see for the first time, what you know, and what I know, is a generalized model of trees. If you are good, you may have a generalized model of oaks or bristlecone pines or redwoods, or cherry trees or maples.
This is true of everything. Everything you know is filtered through your senses (and our senses are woefully low resolution), which translate the sense into electrical impulses. It is the correlation of related signals that excites a neural group in your brain, and that neural group excites other neural groups that correspond to specific features and models of how trees ‘behave,’ meaning how they live, grow, and die.
The only way you know anything about the tree is through these neural groups that correspond to models. Models of trees, composed of models of branches, roots, leaves, and bark and wood and internal vascular systems transporting nutrients it draws from the air (in the form of carbon dioxide and water) and soil.
When it comes to a specific tree, when we remember specifics we remember (because it is less information to encode and retain, probably) deviations from the model, not the whole tree.
It is true you know more than a caveman, but that is because you have more detailed models; the chemistry lab and microscope helped those models be developed and they were passed on to you. But they are models. They are generalizations of how photosythesis works and carbon is fixed into new cells.
You admit as much when you say a man 100 years from now will know more about a tree than we do today: I agree, because what we know are generalizations about trees that are pretty good but still innacurate; and what he will know is a generalization about trees that is better because it is more accurate, but it still will not be 100% accurate. There is too much information to record about a specific tree, and it is pointless. The mind condenses the information into generalized models and remembers those, sometimes plus deviations linked to mental pictures, but even those pictures (say of an unusual tangle of roots at the base) are not photographic; they are composed of instances of other neural groupings which are also neural models of shapes.
Stephen Grossman brings up a good point above. My knowledge of the tree extends to E=mc^2 and stress = load/area and many other chemical and physical formulas.
All of these things must enter into my knowledge of a tree so I can understand the tree and determine what I can use the tree for. If i dont know about stress I cannot use the tree for building, if I dont know about chemistry I cannot use the tree to make paper. If I dont understand how light works I cannot understand how a tree uses light to make energy.
All knowledge is connected.
Tony C:
what do you mean anything real is not knowable? I see a tree in the forest and generally know it is a tree. I can do further study and know how the leaves process light for energy for the tree and how the wood fibres give strength to the tree for support and how the roots use osmosis to obtain moisture. I can also further know what the wood from the tree can become which is limited by the properties of the cells making up the tree.
So I know a tree pretty well, far better than a man who lived 50,000 thousand years ago. And I know far less than the man who is a botanist today or a wood scientist. But a tree is knowable as a real thing, as a concrete. Further more I cant really know too much about the tree if I just generalize and think of a leafy tall plant in my back yard. I can use the generalization along with observations to come to knowledge of a tree or trees which would then become “rules” for describing a tree and categorizing and differentiating from other trees.
So I feel fairly certain I can know a real, concrete tree. Granted there will always be some information I dont have but that is just because at this time my observations are limited by technology. The man 50,000 years ago did not have a microscope so he would not know the cellular structure of wood. And the man 100 years in the future will know more about a tree than we do today.
So what do you mean anything real is not knowable? What am I missing?
Tony C
>Rand is wrong because it is easy to construct plausible hypotheticals in which her claims are simply untrue
Your imagination says nothing about reality. You define reality and knowledge as social. Thus claiming Rand’s ideas are false is claiming she rejects this moments social agreement. You claim science is basic but have not identified the necessary context of philosophy. Science is not basic. Its an application of basic knowledge of the universe as a whole. And the human sciences, regardless of isolated facts they may have discovered, are profoundly corrupted by subjectivist philosophy which you uncritically accept. Eg, your reliance on unconceptualized patterns. Regularity is merely an aid to science, a suggestion for studying a cause in a particular context. Knowledge of regularity is the limit of the primitive mind to which the modern mind has returned (with a veneer of bits and pieces of scientific method). You even admit to a lack of certainty, exactly the situation of the primitive mind except when worshipping his gods. .
@Grossman: I do not deny concretes are real, I deny that anything real is “knowable” without generalizations and expectations and rules to work with. Otherwise you are restricted to simple memory; and memory without generalizations of behavior and models of behavior is not intelligence, it is a recording. A camera is not a mind.
@Grossman: I stopped reading the second you started quoting your scripture; I think it is nonsense.
Tony C
>A generalization is not an unsupported claim, it is a rule or model that fits a general category.
This is rationalism, “a miasma of floating abstractions” [Rand], from generalization to rule to model to general category, all not abstracted, as you confess, from the concretes which you deny are real. I listened to professional frauds in a university philosophy dept, for four years, do this in much more abstractness and complexity. So its easy now to identify your intellectual fraud. Youre a babbling fool. Now you will shift to a chaos of unintegrated concretes (“generalizations”) you call brain science. You careen back and forth between empiricism and rationalism. Do you get dizzy?
Tony C
>some of those [moral rules] are artificial and chosen
Are you certain that you want to be judged on your choices? Recall the foolishness of the paper trail left by the Nazis and used against them at
Nuremberg. On the other hand, they justified their actions by saying they were doing their duty to their society, so, perhaps, youre safe…
>Morality is, by [socially subjective] definition, what one’s society deems right and wrong, not what one personally [personally subjective] defines as right and wrong.
This is subjectivism is the claim that one’s first concern should be emotion, not concrete reality as judged by one’s mind. The only conflict here is whose emotions are the ruling emotions, society or the individual. Mysticism is the claim of a supernatural consciousness beyond the concrete, material universe, which is contacted by revelation, ie, an empty passive mind. Mysticism, thus, is the claim that certain emotions are the voice of this alleged supernatural consciousness. Subjectivism (personal and social) and mysticism are merely different applications of what the Dark Ages philosopher, Augustine, called “the prior certainty of consciousness” and the Cartesian cogito (“I think, therefore I am”). Rand calls it the primacy of consciousness. Both subjectivism and mysticism are rejections of the primacy of existence, of realism. Both retreat into emotions, be they personal, social or divine.
>Morality (and ultimately law) springs from an inherent sense
“Trust your instincts, your feelings, or whatever you like to call them.”
[Hitler, to reporter Herman Rauschning, _Voice of Destruction_, 1940, Google Books, p184]
And when there’s the inevitable conflicts between different “inherent senses” of individuals and societies, those who have evaded reason have only one method of resolving the conflicts, force. Nazis accepted that Jewish social rules were valid for Jews but not for those with an Aryan “inherent sense.” Even more, this social subjectivism, with its basic lack of concern w/the concrete, material universe, guides people away from practical action in surviving in concrete reality. Even a tradition-based tribal culture is better. For the social subjectivist, life is a stream of emergencies with no relief. See: Nazism, Woodstock. At this point, people reject subjectivism for mysticism and religious conservatism, as happened in Greece and Rome and is happening now.
>morality is not your choice…society is responsible for deciding what is acceptable conduct and what is not, and it is up to society to shun or punish those that act immorally.
From intellectual cowardice to Nazi thuggery, a reasonable inference and historical fact. “…these are times when not the mind but the fist decides…”
[Hitler, _Mein Kampf_]
“Reason is the basic method of human survival.” Rand
@Grossman: You confess that your “reasoning” begins in “generalizations.” Eg, God is real.
Bullshit. You are purposely using the wrong definition of generalization when I specifically said it was a model. A generalization is not an unsupported claim, it is a rule or model that fits a general category.
The generalization of a chair contains the elements necessary to make a chair, which in turn are the elements necessary to accomplish the general function of a chair, which is to support the ass and back some significant distance from the ground when the person is in a typical (i.e. average) sitting position. Can a bean-bag be a chair, even though it has no legs, seat, or back? Yes, because it can serve the function of a chair (albeit poorly, in my view, which makes it a marginal chair). More typically, the generalization of a chair includes supports for a seat at least knee-height off the ground, for one person, and a back (without which it is more of a stool). But those are probabilities, the final determinant of chair-ness is if it can serve the function of supporting a sittiing person or not.
If you have to resort to disingenuous to continue your arguments, you have already lost them.