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?
@Grossman: you continue to claim sacrifice w/o rational justification.
That is an idiotic lie. The “rational justification” is simple, even in terms you can understand: a right to life does not exist if murder goes unpunished, and the only rational deterrent to murdering a helpless person is the threat of being punished for it. All other deterrents are emotional deterrents, the only rational reason is the fear that the cost will be greater than the gain. There is one, and only one way to ensure that: For the rest of a group to be obligated to make their best effort to punish the murder of anybody in their group even after that person is dead, regardless of their social status, wealth, friendships or economic productivity. What deters the rational murderer is the knowledge that it can result in dire consequences, even death, for themselves.
But of course, as usual, I expect you to respond with non-sequiters about strong healthy men that defend themselves and their family in an armed fortress, blah blah blah, because you have no ability to answer to the real question; Rand failed to address that dilemma for you.
It is not sacrifice without rational reason; the obligation to prosecute the rights violations of others, regardless of the financial or life circumstances of their existence, means they are equally obligated to prosecute any violations of your rights, regardless of the financial or life circumstances of your own existence. It is by nature perfectly fair and rational, everyone is equally obligated, and everyone is equally benefited, even the criminals and free-loaders and selfish that would prefer to opt out.
There you go making up your own definitions again, Grossman.
A society is an enduring and cooperating social group whose members have developed organized patterns of relationships through interaction with one another; a community, nation, or broad grouping of people having common traditions, institutions, and collective activities and interests. Such collective interests as expressed in the Preamble. Your statement also begs the question that society exists for trade when it does not. Your lack of understanding of the nature of social compacts is again illustrated. The foundation of societies is grouping together to attain mutually shared benefits, such as the Rule of Law, equal enforcement of said laws, common defense, and in the case of America, the promotion of the general welfare. The rational justification for sacrifices (including the limitation of absolute rights under the state of nature) is the mutually derived benefits of society. Selfishness in the pursuit of these benefits is entirely an individual motivation. Being that said motivation skews away from mutually derived benefits to individual gain of advantage, it represents at best a character flaw and at worst a social malaise. There is nothing rational about selfishness in the context of society. It is in the selfish interest of a murderer to go unpunished no matter their motive. You give up the right to kill with absolute freedom when you enter society – i.e. there are consequences if you choose to kill another. The rational justification for that sacrifice is to protect men from the predation of other men and to punish those who do prey upon others – both as a deterrent to such behavior and to give some sense of equitable resolution (justice) to those who have been harmed by said behavior.
Thanks for demonstrating once again that you don’t have a clue as to what you are talking about.
Tony C.
>society ….is a collection of individuals with a responsibility to protect each others rights.
Definition by non-essentials. Society is a large number of men who live together in the same country, and who deal with one another. Man is selfishly obligated to protect his own rights. As a means to this, he uses society on the trader principle or voluntary and mutual selfishness. Each individual protects others’ rights solely for the purpose of protecting his own rights.
Further, you continue to claim sacrifice w/o rational justification.
@Bron: The question isn’t what is a mass, the question is what is society, and society is not a mass. It is a collection of individuals with a responsibility to protect each others rights.
@Bron: I doubt you are capable of learning anything new.
Tony C.
>@Grossman: No, you sad little boy, I confess nothing,
Were you following orders?
> circular terminology.
Ie, you reject the metaphysical Law of Identity, that A is A, for social acceptance that A is not A.
>You cannot answer to the hypotheticals,
Reality is prior to and the base of hyothesis. Further, only rational hypothesis is realistic.
>you cannot answer to the means,
Agreed, selfless means don’t achieve selfish ends.
>you are not actually capable of logical inquiry.
Concrete reality, not your world of generalities, ie, mystic, Platonic Forms, is the base of logic.
Tony C:
what is the mass? It is a group of individuals, a mass is nothing but a collection of individuals. The individuals are what experience freedom, the mass cannot.
You think of men as ants. Are you to be their “Queen”?
Looking at life as a child has its benefits, I think people are good, life is grand and there is a new adventure to be had everyday even if it just learning something new. Or just sitting in the sun and watching the clouds go by and thinking how marvelous is existence. The warmth of the sun, the cool breeze from the dark woods on your face and hands, the rustling of leaves, the crackle of dried leaves as the squirrels search for nuts, the smell of pine and sight of bright white of sunlit clouds on a background of sky.
All of your senses alert, letting you know you exist.
Gene H.
>you mistake most people with a conscience for caring what someone who thinks selfishness is a virtue would think of anyone or anything
The road to Hell is paved with a “good” conscience and Hellish consequences. Yes, yes, I know, youre too good for the world, the selfish world that doesnt see the purity below the rot in your soul. If only you had the political power to create a selfless utopia, why, people would spontaneously, without the slightest thought in their interfering minds, care for each other. And if this requires a totalitarian dictatorship and the sweeping away of a class of selfish reactionaries, its a small price for your “good” conscience. Your worship of death is palpable.
@Grossman: No, you sad little boy, I confess nothing, I just recognize you are incompetent at actually making an argument for anything. All you can do is parrot Rand, and you cannot even do that without resorting to her butchered and senselessly circular terminology. You cannot answer to the hypotheticals, you cannot answer to the means, you are not actually capable of logical inquiry. It is a truly pitiful state of mind you have been trapped in, and you have my sympathies on your wasted life, sucker.
You’ve mistaken me for someone who would care what someone who thinks selfishness is a virtue would think of be, Grossman. In fact, you mistake most people with a conscience for caring what someone who thinks selfishness is a virtue would think of anyone or anything.
Tony C.
>@Grossman: I didn’t read it.
And thus you publicly confess that you cannot refute my evidence for rationally selfish individualism. As for reading it, that requires conceptualizing, which you publicly reject for perceptual association. You are an intellectual fraud seeking the earned prestige of science for your nihilist rage.
Gene H
>as much liberty to the individual as possible given the dictates of the total sum of their defined mission statement for our government.
You are a sleazy intellectual fraud. Hitler was for as much liberty to the individual as possible given the dictates of the total sum of his defined mission statement for his government. His death camp guards didnt care whether the victims of Nazi altruism slept on their right or left sides. Honest readers of this blog read you for what you are. The rest are of no concern to me.
@Bron: We pay a kings share of our productive effort to government. How is that not slavery?
How is any payment for goods and services “slavery?”
You are using our roads, our police, our military, our courts, our FBI, and our insurance policies. You pay your fair share for that usage. You have the right to stay and pay your fair share, or leave and make your own way in the world. What happens if you choose the latter is none of our concern, although our embassies and Department of State will offer a limited amount of sanctuary and defense overseas for free. Consider it birthright altruism of our group, on the house.
“Freedom” is the right to make your own choices about your life, the risks you take, the people you associate with, voicing your opinions, where you work. It is the right to live where you want, how you want. It is the right to be treated equally in court, by the law, by the police, and not punished for crimes that have never been written, or imprisoned for them, or fined for them, or otherwise punished at the whim of authority. But Freedom is always limited because it can only be secured en masse and that means it can only come packaged with a Responsibility to act en masse; both to decide what IS a “right” or a “crime” and to protect the rights and punish the crimes. (Thus Gene’s title of this thread).
“Freedom” isn’t the right to take from others and not pay for it, what you are thinking of is “theft” or “irresponsibility..”
“Our founders were trying to free mankind, not enslave the individual to the state.”
“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.”
Our Founders were trying to build a state (in Order to form a more perfect Union) that served all mankind equally and with justice, peace, and gain the mutual advantages of common defense and the promotion of the common good for all (We the People of the United States, in Order to [. . .] establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare) while maximizing as much liberty to the individual as possible given the dictates of the total sum of their defined mission statement for our government. The misunderstanding of the Constitution is entirely yours, Bron. For a layman, Tony has a very good grasp on the fundamentals.
@Grossman: I didn’t read it. Seriously, my sympathies on your wasted life.
@Bron: You do not get to redefine “selfishness” to include altruism. The word selfish means what it means, period, and the selfish person does not risk his life right now for somebody that will never, ever be able to pay back the favor.
A selfish person is not going to voluntarily defend the life of a paraplegic, there is no hope of payback EVER. Somebody that DOES risk his life to defend the life of a paraplegic does so out of his obligation to society, because it isn’t the paraplegic that will defend him: It is the rest of society that he knows is obligated to defend him.
You do not have a system, you have a wish, and it is a wish to be a parasite on others, to enjoy the fruits of them defending your rights to life and property and freedom without YOU ever being OBLIGATED to defend theirs. That is the only selfishness you understand, the selfishness of a two year old that doesn’t even remotely comprehend that the house, car, food, clothes and toys are being PAID for by his parents.
I feel sorry for you too, Bron, you have to navigate the world with the comprehension of a child.
Tony C:
In a society dedicated to individual rights, it is your right to help those people if you choose to do so. As I would choose to do so and I am betting as Stephen would choose to do so, but only voluntarily not because some one or government forced us to do so. And we would do it because we understand that we may be helpless someday and need charity.
Believing in individual rights does not mean we do not believe in the benefits of society. Society really offers little to people who can take care of themselves, oh sure infrastructure and local and national defense but a rational man would contribute to those things because it would benefit him personally.
Stephen is right about our Constitution, it was not meant to support “society” it was meant to protect the individual. And he is also right in saying that the statists have spent many years corrupting it to use as a “tool of demagogues and mobs”.
From your many posts which I have read, you dont truly understand the basis of our Constitution. Our founders were trying to free mankind, not enslave the individual to the state. We pay a kings share of our productive effort to government. How is that not slavery?
Tony C
>Grossman: No, a free society, at least, is a group of people with a common obligation to defend and protect the freedom of any individual in it, and to uphold the consensus view of what “freedom” entails, or physically withdraw from said society.
You merely restate altruist collectivism in many different ways without a rational justification. Each individual has a selfish obligation to defend himself, whether by himself or by selfishly joining others who are also selfishly defending themselves. Society is a tool for the individual’s life and happiness, not an object of mindless worship that requires sacrifice. You have the mentality of a primitive savage afraid to contradict the tribe’s customs and myths. Such a mentality could not discover, nor be motivated to discover, individual rights. But such mentalities have been given sophisticated rationalization by Kantian nihilism.
It is not consensus that politically forbids you to kill—but the inalienable individual right of another man to live. This is not a compromise between two rights—but a line of division that preserves both rights untouched. The division is not derived from an edict of society—but from your own inalienable individual right. This limit is not set arbitrarily by society—but by the basic condition of man’s survival in society: the legal ban on initiation of force. Altruist collectivism, with its primary demand for sacrificing mind to society, requires the initiation of force. Our Constitution is a political defense of man’s independent mind against the inhumanity of sacrifice and collectivism. And thats why subjectivists want a “living” constitution as a tool of demagogues
and mobs.
@Bron: I dont think most people understand individual rights.
That would include you; you obviously cannot understand what “individual rights” mean if you cannot offer any plausible means of collectively protecting them or ensuring them or punishing those that violate them.
It seems clear to me you long ago got trapped, like Grossman, in definitions that are mutually exclusive and have thus robbed all meaning from the word “rights.”
If nobody is obligated to protect the rights or lives of the helpless, friendless, destitute, mentally disabled, crippled, or just weak and elderly and addled, what is the point of claiming one has “rights”?
If the only people protected by society are the financially able that pay for their own protection, rights are meaningless, that is just the wilderness of the wild west, every man for himself against all predators, human and otherwise.
That is your problem, Bron, plain and simple. You have left the “obligation” out of the definition of society, it is not just a collection of people, it is a collection of people obligated to protect each other, and that obligation means either risking one’s life to protect others from crime, or paying obligatory taxes that pay citizen volunteers to do that for you.
The only way to get individual rights is to be bound to protect the individual rights of others, as they are bound to protect yours: It must be “With Liberty AND Justice for All.”
Any formulation of “individual rights” that does not obligate all of society to defend those “rights” for any individual is just useless semantics.
@Grossman: No, a free society, at least, is a group of people with a common obligation to defend and protect the freedom of any individual in it, and to uphold the consensus view of what “freedom” entails, or physically withdraw from said society. The option of withdrawal is what makes it free, but it can only be exercised after all societal obligations have been met; i.e. withdrawal is not an option to avoid prosecution for a crime.
I won’t answer any of your questions, you dodge every question and request I make to explain a hypothetical, or answer with unintelligible gibberish. I do not engage in one-sided conversations.
My sympathies on your utterly wasted life, sucker.
Stephan:
I dont think most people understand individual rights. It is really a difficult concept to understand. As is freedom.
So I have a feeling that individual rights society is a long way off. There are bright spots though. Light is starting to shine through the cracks in the bulwark of statism.
Tony C
>I need you to learn how to read without making up your own definitions to words.
Man rationally defines his conceptualized observation of similarities and differences. Intellectual cowardice is not definition. Independence is a moral and intellectual virtue. Your opposition to independent judgment is that of any dictator who enforces his subjective values onto others.
>Society is a voluntary association of individuals for common ends
You have validly defined irrational society of enforced sacrifice to society. Rational society, however, is merely a means to the ends of each individual, ie, knowledge and trade. Beyond knowledge and trade (of both material and spiritual values), society has no value for rational people.
[Society is] a real thing, not an abstraction
Society is a not a super-organism, not a mystically revealed, supernatural entity apart from and superior to the sum of its individual members. Its an abstraction from individual, concrete people. Its a selective mental focus on relations among real individuals.
>>“Why is the actual the Postmodern arbitrary and conventional rather than the observed similarities and differences of concrete reality?”
>Gibberish and worse gibberish that begs the question.
Why?
>The precise form of the U.S. government is a democratic representative Federal Presidential republic.
Democracy as voting but not as unlimited majority rule. Our Constitution established an individual rights govt organizationally structured as a constitutional, federal republic. Our majority rule merely selects some govt officials and the application of individual rights to concrete situations.
We are moving toward the intellectual revolution needed to defend the political revolution of 1776.
>What you don’t know about law schools and the law could fill volumes. In fact, it does. It’s called “a law library”.
In an individual rights society, lawyers who attacked individual rights would find no customers.