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?
Oh look, a solo act of a trio…speaks…to which he is THE master.
Look the ad hominem brothers are disrupting the thread again. As usual, no substantive arguments. Two fine examples of trolling at its worst.
Mike S.,
It would be even more of a bummer if he took the course “Pass/Fail.”……
“Youre as stupid as most of my former philosophy profs.”
What’s the matter SG, did they laugh at your trying to quote Rand as they gave you an F?
I have to agree with Mespo here, you don’t need to ring a bell to get his attention. He’s so desperate to make a point, no matter how minor or irrelevant, he doesn’t need encouragement. Take this current “dispute” for example, what bearing does mespo’s point matter apart from some sort of reverse ad hominem–he must be right because he spots typos better than most.
“Apart from your argument from authority, youve changed the topic from business competence to politics”
SG,
The analogy made was, not by me, was whose advice would one take Krugman or Jobs? The obvious point was that jobs would know better how to handle the posited situation. Compared to Buffett who were from little to becoming the world’s richest individual, Jobs is an amateur in business competence.
bit = bite
SG,
Just because your professor had education does not mean that he was able to teach you anything worthwhile…Just because you are bit by a snake does not mean you are going to be the one to die…The analogy is….Just because you went….does not mean you were bit….
If you went to a catholic university the chances are the professor held classes at the local tavern…aka bar, aka saloon…aka you get the point don’t you?
I came, I saw, I conquered….Veni, vidi, vici….This can be read on a pack of Marlboro.. It still does not mean you know what it means…
“Youre as stupid as most of my former philosophy profs.”
***********************
SG:
I am absolutely certain of that as I am that you are the intellectual equal of my schnauzer. If you’re going to assert something around here how about some vague notion of what you’re talking about? Try that instead of those talking points some Republicon typed up for you and you futily try to inject. Btw the way I’ll be in front of the curtain every time I see some inept political hack maquerade as a political philosopher.
“That which is harmful to you do not do to another.”
Roco,
Attempted cool move that, trying a bit of petard hoisting eh? Doesn’t work.
The combination of “It”, S.G. and your writings adds up to the fact that all of you might mouth that, but then follow it with a belief that is antithetical to it.
Rand wasn’t a charitable person in any sense of the word. She was selfish, egotistical and predatory, just ask Nathaniel Brandon’s wife.
“can you please provide a point by point refutation of what Stephen Grossman said without any ad hominem?”
Roco,
No. Ayn Rand was an author with less talent than most hack, bodice busting romance writers of today. She propounded an absurd pseudo-philosophy that anyone with a modicum of intelligence can see is unworkable given the
nature of the past and present of humanity. The implementation of objectivism would inevitably lead to sociopaths taking control of this country and or the world. It exists as an excuse for a human’s lack of empathy towards anyone but themselves. Even Nathaniel Brandon, who Rand proclaimed her intellectual heir has denounced her.
I discovered Rand through the movie The Fountainhead, which had Gary Cooper and Patricia Neal and so seemed good. Then I read the book and began to wonder how an Architecture critic could bring a powerful Hearst
like publisher to his knees. something didn’t compute. Then I read Atlas Shrugged and not only did it seem poor Science Fiction, but the system was totally unworkable and lead eventually to feudalism. I was 19 then, an orphan and fully self-supporting. The world was fresh, my future was unlimited, but I understood nevertheless that Rand’s theories were cracked and ridiculous.
So now 47 years later you want me to engage in serious debate with someone even more in Rand’s thrall than you? You can’t debate with someone who believes in an inane pseudo-Philosophy, without elevating that persons points to having rationales. Rand is terribly wrong on the surface and Grossman is merely some young twit, with a selfish heart and a one track mind. By the way it’s not ad hominem if it relates directly to the argument and my statements do. He is a true believer as much as any
religious fundamentalist is and you really cannot profitably debate them about their beliefs, since their belief structure is one of faith, not reason.
Even you, a Rand enthusiast, doen’t swallow her whole. That is a small credit to you, but he is Orthodox and I’m not talking about the Jewish religion.
Stephen Grossman:
“Please stand behind a curtain until I ring a bell for a trivial fact.”
kderosa and I have been trying to figure out something Mespo727272 is good for, thank you.
Gene,
I am late to the party, but a great first post!!
I think a good law is any law that cures a societal ill or prevents injustice from occurring or continuing.
mespo727272: Hobbes actually said “Man to Man is an arrant Wolfe” in his preface to De Cive
My source is a philosophy professor/Jesuit priest/Fordham grad with five degrees, several languages and who taught internationally. He may have been wrong. However, your pedantry is noted. Please stand behind a curtain until I ring a bell for a trivial fact. Youre as stupid as most of my former philosophy profs. You feel as if a big random memory is a substitute for facts rationally organized. Its not. Scholarship is a means, not an end. Man’s mind is a tool of survival, not an intellectual kalEIDOScope. Navel-gazing doesn’t become respectable with a Ph.D. Modern philosophy is an unsustainable, intellectual bubble. That sound you hear in our culture is escaping hot air.
Gentlemen, there’s no fighting in the war room.
Tony,
I’m curious as to what you think the impact of Mike S’s additions would be to your hypothetical.To me, that’d be the key, could an unbiased observer really say “getting rid of that 2% is demonstrably better for that 98%?”
Gene,
In so far as I consider ethical behavior as that which is aimed at causing the least amount of harm for others, I’d say the main difference between your definition a good law and mine of an ethical law lie in the last two points. All good laws are ethical, not all ethical laws would be good.
>kderosa: What regulation mostly brings is stagnation, slowing down improvement
Let’s concretize this idea: a doctor operating on you with a bureaucrat’s gun pointed at his head.
@Roco: What? What in the world is “lawful” business in your book? You don’t believe in regulation, remember? What do you think laws are? REGULATION!
@Roco: “there is no conflict among men of good will trading with other men of good will whose metric is individual liberty, reason and personal responsibility.”
Wonderful; and the cons, liars, frauds, and thieves will be kept at bay by… Invisible unicorns and magic amulets?
“That which is harmful to you do not do to another.”
Unless it would turn a profit and the chance of somebody realizing you harmed them was nearly nil, since in your system you are not violating any pesky non-existent regulations, and covering your tracks is precisely what “selfish rationality” would demand. You are being emotional. If you follow this rule, the conniving and ruthless rational bastards will eat you alive.
“I owe my fellow man nothing except the respect they deserve as fellow human beings, they owe me nothing except that same consideration.”
More bullshit; you owe others your very life. You owe the police and courts and military that kept you safe as an infant, that kept your parents safe when they were infants, you owe the citizens that paid for the free roads that bring your food, you owe the dead, maimed and disabled soldiers that preserved liberty in your country, you owe ME and my colleagues for earning half of what we could earn (and what I did earn) in industry in order to conduct research we give away for free to make your life safer instead of working to make some factory owner richer, you owe the firemen and civil servants and research chemists that made sure your home and offices more secure, and the engineers that gave away their work to reduce the chance of you being killed in a collapse and to increase your chances of survival if your building catches on fire, and reducing the chances of it catching on fire about 100 fold.
If you want to pretend everything this country has given you and is giving you for free is worthless, you go ahead. I blame raw stupidity, piggish selfishness, and your runaway ego.
>Roco: I had not thought Homer Simpson was a Kantian. Can you please give a concrete example
Homer is a satire of stupidity. And Kant’s basic theme is the alleged unknowablity of reality. Don’t be fooled by sophisticated style. Philosophers and factory workers equally have the common human experience of choosing to reason or evade.
>Does that imply that Bart is a young Hegelian? Wouldnt that make Bart Karl Marx?
Never thought of it! ;>) One of Rand’s important points was the guiding influence of philosophy on everything in a culture, even cartoons. Hegel called this the spirit of the age.
Mespo727272:
have you ever read Hobbes? Or did you just go and find a couple of quotes?
If you like Hobbes, I bet you really like Rousseau.