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: show me why a selfish rational actor that is virtually certain he can get away undetected with harming somebody else and earn a profit doing so should not do so
This metaphysical fear is the necessary effect of evading man’s mind as the basic tool of survival. The mind as the source of production is not even a thought. Ayn Rand ridiculed the anti-capitalist mentality as, “The goods are here. How? Somehow.”
Everything, nature (environmentalism) and society (socialism) becomes a deadly threat or a short-range relief from the paranoia. Other people, the paranoid feels after spitting on his own mind, are as irrational, short-range and self-destructive as he is. So, like any street thief, the socialist tries to sacrifice others before they sacrifice him. A very stupid philosopher, Hobbes, expressed this absurdity by calling man a “wolf among wolves” and calling for state control of the individual in almost psychotic ignorance of the bloody, dirt-poor, history of statism, a condition he claimed would exist only in anarchy.
In reality from a rational perspective, beyond the anti-capitalist’s skeptically empty skull, everything is connected to everything else. What goes around, comes around. The world inhabited by thieves and murderers is an uncertain, violent world in which predators and prey change randomly change places. And the predators know this, which is why their entire lives are an anxiety-ridden attempt to avoid being prey. This is not selfish. The anti-capitalist obsession with creating ever-more elaborate fantasies of omnipotent “capitalist” predation merely reveals the method that socialists use in a futile attempt to evade the laws of economics.
In reality, the dirt-poor history of man was ended over the last few centuries as businessmen, inspired by the new respect for reason and (implicitly) selfishness and partially freed from the state, used the new sciences to create life-enchancing and labor- and time-saving products for millions. This, somehow (sarcasm!), is missing from your view, a view in which predators, but not businessmen, are independent thinkers. But who is independent, the producer or the thief? What could a thief steal in the millenia prior to the rise of capitalism? Socialists look at our capitalist prosperity and drool mindlessly at the ecstasy of looting it from the productive. We even have creatures in our universities who provide sophisticated, abstract, pseudo-scientific rationalizations for looting. One such creature is now our President, a man who claimed recently that machines decrease jobs.
From Marx’s academically-trained philosophy to Michael Moore’s emotionalism is a long way down. Intellectuals are turning against the scarecrow of socialism.
And just exactly how stupid did you have to make yourself to claim that there was a society without regulations? Look out the window, moron, at the government street and at the government license plates of the cars. We have socialism, not complete, but socialism. Our schools are mostly socialist, too, explaining your chaotic mind and fear of those who do use their minds. As Rand said, there is no giant behind all the evils in history, just a scurrying rat. As one such rat said, “I have denied knowledge therefore, in order to make room for faith.” (Kant, 1st preface, _CPR_). One of his students, Homer Simpson, in obvious respect for his teacher, said, “D’oh!”
The alternative to Marx’s love-and-granola utopia is mind and production. Who would you seek for investment advice, Paul Krugman or Steve Jobs? Is this the Summer of Recovery? How many more $trillions of “stimulus” are needed for prosperity and jobs? What, exactly, does Bernanke produce beyond out-of-context statistics? If offered a Federal Reserve Note or a gold coin, which would you take? If businessmen were free of regulations (and subsidies and unjust taxes), how much new material wealth and jobs would they create?
@kderosa: What a hypocrite you are. A hundred years before 2005 is 1905, and aren’t you guys the ones complaining about all the regulation, social safety net, unemployment insurance and other regulations that produced the wonderful results you will now attribute to “capitalism?”
If anything, these results were accomplished almost entirely in the wake of the Great Depression the pure capitalism approach engendered, and are proof of the value of regulation and progressive policy.
We have nothing to show for the evils of capitalism, except for a bunch of stuff in industries that are largely unregulated:
(Source)
“Your ignorance of the content of _Atlas Shrugged_ is nearly total. The greatest novel in history is a rejection of all regulations, not an acceptance of “low regulations.”
Like Mespo I am bemused by SG’s callin this the greatest novel in history. SG, really? I mean do you really believe that, really? My guess is that you are some 20 year old, with limited breadth of reading experience and/or skills. “Shrugged” is a potboiler of a novel written pompously in a style that is common today as romantic fantasy. The plot is ill-constructed and unbelievable, even in the SciFi genre it adopts, in an ill advised attempt to emulate Orwell’s “1984”, but with a happy ending. The characters are wooden and unreal. Dagny Taggart, the powerful woman, nevertheless ravished by “real” men. Ragnar Daneskjold, a Jules Verne ripoff, with his Captain Nemo super-submarine under the sea and finally John Galt, superhero extraordinaire, who emulates Tom Swift a children’s book hero.
The truth is that “Shrugged” is book for immature teens and gullible adults, both incapable of seeing the logical results of its proposition. In literary terms it probably ranks below 10,000 books written in the English language alone. The fatal flaw of “Objectivist Pseudo-Philosophy is that it posits a society where inevitably the richest, most powerful and most sociopathic people take over everything and make the rest of the population serfs. It would be feudalism on steroids, because at least feudalism had some checks and balances. However, if you are to dense to see its’ flaws then you are merely a mindless, religious zealot, incapable of rational thought.
“your conception of individual liberty would create misery, unpunished criminality, fraud, disease, death and destruction, but you are so irrationally selfish and adamantly devoted to a philosophy that excuses your vile selfishness”
Who are you going to believe? TonyC or your own lying eyes?
@Roco: And I have explained in great detail with plenty of logic that you refuse to answer why your conception of individual liberty would create misery, unpunished criminality, fraud, disease, death and destruction, but you are so irrationally selfish and adamantly devoted to a philosophy that excuses your vile selfishness that you persist in your stupidity even when you cannot explain it.
Stephen Grossman:
I think you should explain individual rights to Tony C, I am convinced he does not know what they are. I am further convinced he is a totalitarian in sheep’s clothing.
I have tried, but failed to explain individual liberty to him. I think he rejects it at a very visceral level.
I think I just asked the source so I could read it for myself…to see if I was taking anything out of context….I generally provide a source of things stated unless they are Original to my mind or generally understood to be generally accepted as accurate….I do expect to be called out when I misquote a source or stated something incorrect…..SWM did me an honor this morning….I’d much rather be thought a fool than have written proof of the same….lol
@Blouise: Of course it is only absurd for him to be called upon to prove anything, but notice he can demand that AY prove the rationality of Kantian, Utilitarian philosophy.
Of course I didn’t call upon him to prove anything, I simply noted that his economic philosophy is just as unprovable as anybody else’s. I should also add that if Randist philosophy is NO regulation, then we have certainly tried that as well, and the result was pretty much immediate despotism, kings, dictators, pharoahs, emperors and others that exercised absolute rule and the minimum of freedom. It has taken us about 10,000 years and we are still not completely over that.
“Your ignorance of the content of _Atlas Shrugged_ is nearly total. The greatest novel in history is a rejection of all regulations, not an acceptance of “low regulations.”
***********************
LOL. Move over Dostoevsky, that conservative hack Ayn Rand scribbled out some diatribe and now Crime & Punishment,and The Brothers Karamazov sit in the bargain bin along with Tolstoy’s War & Peace and James Joyce’s Ulysses. And that Dickens fellow? Who’s that? Proust! An obvious know-nothing. As for Melville,de Balzac,Twain, Fitzgerald,and Flaubert, what did they ever do?
Off the top of my head I can think of 25 better authors with more to say and a better style of saying it.
Say, Stephen Grossman, do you read?
“But, perhaps, youre merely dumb as a doorknob as your emotionalist “understanding” of my ideas indicates. ” (Stephen Grossman to Tony C)
Turn off
“Your ignorance of the content of _Atlas Shrugged_ is nearly total.” (Stephen Grossman to Tony C)
You’re a day late and several dollars short … check back to a few weeks ago when Ayn Rand, her writings, and philosophy were discussed ad nauseam.
“It’s absurd to suggest that I must provide a full proof of everything here. This is an informal forum ,not an academic journal.”(Stephen Grossman to Tony C)
Citing is considered a courtesy here and everybody does it.
A purist bore is still, nevertheless, a bore.
Plus Grossman is so hypocritical it is funny. He says to AY, “you cannot prove that Kantian and utilitarian law are rational so you descend to personal attack,” then when I say he cannot rationally defend his no regulation Randist philosophy either, he descends to … personal attack!!
What a buffoon.
@Grossman: Ha! Define “individual rights,” tell me who decided that “productivity” is the be-all and end-all of human existence, show me how a finite supply (of, say, Emergency Medical care) combined with an infinite need (of, say, life-saving intervention after a car accident) produces a fair price; show me why a selfish rational actor that is virtually certain he can get away undetected with harming somebody else and earn a profit doing so should not do so, show me how we fund the police and courts that will FAIRLY enforce these Randian contracts and prevent murder and slow poisoning and arson of others, WITHOUT collecting taxes at the point of a gun, and without reserving “justice” only for the rich that can afford to pay for it.
You are just another religious nut. Price signals are ignored when people are not held to account, and without laws restraining them, people will do anything, including engaging in murder, arson, assault, kidnapping and slavery to get their way and earn their money. The lawless Mafias (Italian and otherwise) and gangs and human traffickers and drug dealers have not arisen for nothing, exploiting humanity is profitable. They engage despite the laws and punishments; I can only imagine a world in which there is no law or government, and that reality would make Mad Max look tame by comparison.
Tony C: Your appeal to popularity is an illogical evasion of your need to judge ideas. But, perhaps, youre merely dumb as a doorknob as your emotionalist “understanding” of my ideas indicates. You merely assert, without even a faint whisper of evidence, that _Atlas Shrugged_ and rational selfishness are illogical. It’s absurd to suggest that I must provide a full proof of everything here. This is an informal forum ,not an academic journal. We can only indicate the evidence.
Your ignorance of the content of _Atlas Shrugged_ is nearly total. The greatest novel in history is a rejection of all regulations, not an acceptance of “low regulations.” The early 20th century rejection of capitalism is merely unpopularity, not any evidence that capitalism is unproductive. The 1920s saw the massive spread of capitalist technology and prosperity in America. But also the Progressive-guided, Federal Reserve counterfeiting of money and bank accounts, an inflation that created economic bubbles in, among other areas, housing and stocks. The 1929 Depression was the correction, a correction that would have quickly (see the one-year-only, 1920 Depression) reallocated investment back into the most productive hands. But Progressives Hoover and Roosevelt piled more govt onto prior govt interventions. This would be familiar but a century of sleazily dishonest and ignorant Progressive journalists evaded this.
Americans falsely thought that capitalism is predatory because they heard no moral defense of capitalism, merely the ignorant conservative’s cowardly, evasive, superficial, compromising desire for a pragmatic capitalism in randomly selected concrete situations.
The self-correcting nature of capitalism has been known by economists since, perhaps, Adam Smith’s, 1776(!) _Wealth Of Nations_ and, certainly by Mises, 1949 _Human Action_. Every supply and demand sends price signals throughout the entire economy, telling people the real costs of their economic values. But govt economic intervention ,always at the point of a gun, hides these price signals, misleading people into bad decisions. You sleazily dishonest anti-capitalists evade intervention in your condemnation.
Your concern with majority and minority rule merely reveals your stomach-turning lust for power at the expense of individual rights, the only rational function of govt. Rand discussed, at length, the need for ideas before voting.
@Stephen Grossman: Likewise, Atlas Shrugged is full of logical holes we can drive a truck through, and so is the “rational selfish” hypothesis. Your claim that it “shows the way” is nothing but an assertion. To a large extent that world of low regulation with enforced contracts has been tried, including here in the USA in the 1700s and 1800s and early 1900s, and was rejected by the populace. They hated it. Should people be governed by a philosophy they think screws them over, just because some handful of people have raw faith that someday it will correct itself?
You may not believe in majority rule, but do you truly believe in minority rule? Because that is what forcing a Randian system onto the people again would be; the majority doesn’t believe in it.
>Anonymously Yours: a dissertation….and a poor one at that….
Ie ,you cannot prove that Kantian and utilitarian law are rational so you descend to personal attack.
As my 3 year old grandchild says, “Goood job!”
Wait on there Gene…Ya’ll make meth?
Tony C.,
I hate to do this to you, but I’m going to put you off until tomorrow to answer for a couple of reasons.
1. I’m dog tired and want to watch Breaking Bad and then go to bed. I had a late day family car emergency thing that turned into a dinner and see the new baby kind of thing.
2. It looks like you and Lottakatz have a good thing going and I’d like to let it cook before adding back my part.
Great thread, Regulars! Thank you all for your participation. It makes me feel like my debut effort was successful. Now if you’ll pardon me, I’m going to go watch Walt make some meth followed by an in-depth review of the insides of my eyelids.
Alright!! Lottakatz and Tony C discussing this topic … I’m in heaven.