Spring 1994 issue of Formulations published by the Free Nation Foundation
Most people take the terms order, law, and government to be coextensive. Without government, there would be no law. Without law, there would be no social order. In fact, however, the three concepts are distinct.
Law may be defined as that institution or set of institutions in a given society that adjudicates conflicting claims and secures compliance in a formal, systematic, and orderly way. Law thus defined is one species of social order, but not the whole of it; there are also less formal mechanisms for maintaining social order. Indeed, the vast bulk of cooperation in society in fact depends on informal order rather than on law.
Law may be subdivided into voluntary and coercive law, depending on the means whereby compliance is secured. Voluntary law, as the name implies, relies solely on voluntary means, such as social pressure, boycotts, and the like, in order to secure compliance with the results of adjudication. Coercive law, on the other hand, relies at least in part on force and threats of force.
Coercive law in turn may be further subdivided into monocentric and polycentric coercive law. Under monocentric coercive law, there is a single institution that claims, and in large part achieves, a coercive monopoly on the use of force to adjudicate claims and secure compliance in a given territorial area. This institution is called a government, and everyone other than the government and its agents is forbidden to adjudicate by force. Under polycentric law, by contrast, no one agency claims or possesses such a monopoly.
An anarchist, then, is not someone who rejects order or law or even coercive law, but rather one who rejects government. The anarchist argues that informal order, voluntary law, and polycentric coercive law are sufficient to maintain social cooperation; the advocate of government argues that monocentric coercive law is needed in addition, and indeed typically maintains that the amount of social order that can be maintained through non-governmental sources alone is quite small.
Yet a great deal of social order is maintained through informal means alone. In Order Without Law: How Neighbors Settle Disputes, economist Robert Ellickson has shown how disputes over land use are frequently resolved informally, without recourse to official adjudication, and certainly without recourse to legal statutes (the relevant statutes being generally unknown to the disputing parties in any case). More broadly, Robert Axelrod in The Evolution of Cooperation has explained why cooperation is generally a successful strategy and thus why it tends to be "selected for" by the market, as cooperative relationships emerge and grow spontaneously without being directed by any authority.
When there is a need for the more formal mechanism of law, this law may be voluntary rather than coercive. An example of voluntary law is the Law Merchant, a system of commercial law that emerged in the late Middle Ages in response to the need for a common set of standards to govern international trade. The merchants, fed up with the excessive rigidity of governmental laws regulating commerce, and frustrated by the lack of uniformity among the commercial codes of different nations, simply formed their own Europe-wide system of courts and legal codes. For enforcement, the Law Merchant relied not on state-imposed penalties but on credit reports; those who refused to abide by the system's rules and decisions would have a hard time finding other merchants willing to deal with them. (The case of the Law Merchant shows that systems of private law need not depend on kinship or other local ties for their success.)
When law is coercive, it need not be monocentric. For example, under early Anglo-Saxon law, Kings made foreign policy only; domestic policy was left to local courts called Moots, which simply enforced agreed-upon local customs. Neither Kings nor Moots had any power of domestic enforcement; it was up to individuals to enforce the law by private coercion. Such individuals generally formed associations called borhs, pledging security for one another's reliability; even here, much enforcement was through social sanction (being denied membership in a borh) rather than coercion.
Public Goods vs. Public Choice
Thus private law, whether strictly voluntary or also coercive, has proven itself historically as an effective provider of social order. But the anarchist's point is not simply that monocentric law is not necessary in order to maintain social order, but more fundamentally that introducing monocentrism into the picture actually decreases social order.
Advocates of government assume that non-governmental mechanisms for achieving order will be ineffective because of public-goods problems — specifically, the problem that unless people are forced to cooperate, each person will have an incentive to free-ride on the cooperation of others without cooperating himself. This argument is often taken to show the necessity of government.
But if market solutions are beset by perverse incentives caused by public-goods problems, governmental solutions are likewise beset by perverse incentives caused by public-choice problems: monopolies that collect revenues by force are not accountable to their clients, and state officials need not bear the financial cost of their decisions; inefficiency is the inevitable result. Since both systems involve perverse incentives, the important question is: which system is better at overcoming such incentives?
And here the answer is clear. Under a market system, entrepreneurs stand to reap financial rewards by figuring out ways to supply "public" goods while excluding free riders. Thus the system that creates the perverse incentives also creates the very incentives to overcome them. That's why every so-called "public" good has been supplied privately at one time or another in history. Governments, by contrast, must by definition forbid competition. Thus governments, unlike markets, have no way of solving their incentive problems. We would be well-advised, then, to buy our law on the market rather than from the state.
Why Three Functions?
The purpose of a legal system is to provide a systematic, orderly, and predictable mechanism for resolving disagreements. In order to do its job, any such system must perform three closely connected, but nevertheless distinct, functions: adjudication, legislation, and execution.
The judicial function is the core of any legal system. In its judicial function, a legal system adjudicates disputes, issuing a decision as to how the disagreement should be settled. The other two functions are merely adjuncts to this central function.
The purpose of the legislative function is to determine the rules that will govern the process of adjudication. Legislation tells judicial function how to adjudicate. The legislative process may be distinct from the judicial process, as when the Congress passes laws and the Supreme Court then applies them; or the two processes may coincide, as when a common-law body of legislation arises through a series of judicial precedents.
Finally, the purpose of the
executive
function is to ensure, first, that the disputing parties submit to adjudication in the first place, and second, that they actually comply with the settlement eventually reached through the judicial process. In its executive function the legal system may rely on coercive force, voluntary social sanctions, or some combination of the two. The executive function gives a legal system its "teeth," providing incentives for peaceful behavior; both domestic law enforcement and national defense fall under the executive function.
Should Law Be Monopolized?
With regard to these various functions, there are three primary ways in which a legal system may be constituted:
Various combinations of these are possible, since there are legal systems under which some functions are monopolised while others are not. For example, in the Icelandic Free Commonwealth, the legislative function was monopolized by the All-Thing (althingi), or General Assembly; the judicial function was shared between the Thing courts and the private sector; and the executive function was privatized entirely. [For more information on the Icelandic system, see my "Virtual Cantons: A New Path to Freedom?" (Formulations Vol. I, No. 1), "The Decline and Fall of Private Law in Iceland" (last issue), and
Wayne Dawson's review of David Friedman's The Machinery of Freedom (this issue).] This is why the legal system of the Icelandic Free Commonwealth cannot easily be classified either as a pure government or as a pure anarchy.
Most of us have been taught to regard Constitutionalism as the best of the three options. Concentrating the three functions in a single agency avoids the chaos allegedly endemic to Anarchism; while assigning the three functions to distinct sub-agencies within the monopoly agency allows the three branches (legislative, executive, and judicial) to serve as checks on one another's excesses, thus avoiding the potential for abuse and tyranny inherent in Absolutism. This is the "separation of powers" doctrine built into the U. S. Constitution.
In practice, however, Constitutionalism has proved only marginally better than Absolutism, because there has been sufficient convergence of interests among the three branches that, despite occasional squabbles over details, each branch has been complicit with the others in expanding the power of the central government. Separation of powers, like federalism and elective democracy, merely
simulates market competition, within a fundamentally monopolistic context.
Locke's Case for Monocentric Law
In his libertarian classic
Two Treatises of Government, the 17th-century English philosopher John Locke offered one of the most famous cases ever made for the monopolization of the three functions of government. Locke believes that all human beings are naturally equal, so that in their natural state each person has as much right as any other to exercise the various functions of law:
(II. vii. 87.)
Locke concludes that these three defects may be remedied by centralizing the legislative, judicial, and executive functions in a constitutional government.
The Lockean Case Against Locke
I think Locke's arguments for a monocentric legal system contain a serious confusion: the confusion between the absence of
government and the absence of
law. Locke's arguments are good arguments for a formal, organized legal system; but Locke mistakenly assumes that such a system requires a governmental monopoly. The majority of legal systems throughout history, however, have been polycentric rather than monocentric. Locke did not have the benefit of our historical knowledge however; nor, despite his brilliance, was he able to imagine on his own a legal system that was not a government. The actual history of stateless legal orders shows that they do not noticeably suffer from any of the three defects Locke lists; on the contrary, those defects are far more prevalent under
governmental law.
Consider first the judicial defect: the worry that, in the absence of common authority, each individual would have to act as a judge in his or her own case, with all the problems of bias and partiality that entails. Locke is correct in thinking that submitting disputes to impartial third-party arbitration is generally preferable to acting as one's own judge and jury (except, of course, in emergency cases in which one must act quickly and no such impartial judge is available). But such third-party judges will always be
available, whether or not there is a government. There is a widespread tendency to suppose that if something is not supplied by the government, it cannot be supplied at all; I call this "the invisibility of the market." (The problem with invisible hands is that you need libertarian lenses in order to see them — whereas everyone can see the visible hand of government.) Polycentric legal systems have always had plenty of third-party judges, from the relatively formal Moots of early Anglo-Saxon law (in which disputants were judged by their peers on the basis of local custom) to the relatively informal arrangements of the American frontier (in which each disputant would pick an arbiter, the two arbiters together would pick a third, and the judgment of the three together would be binding). History shows that stateless legal orders tend to create powerful incentives for people to submit their disputes to arbitration wherever possible, in order to avoid the appearance of being an aggressor (and thus the target of defensive coercion oneself). Anarchy does not suffer from Locke's judicial defect.
But government does. In any dispute between a citizen and the state, the state must by necessity act as a judge in its own case — since, as a monopoly, it can recognize no judicial authority but its own. Hence governments by their nature
must be subject to the judicial defect. Constitutionalism is supposed to remedy this defect by separating the judicial branch from the executive and legislative branches, so as to prevent the judging agency from being a party to the dispute. But what if the citizen's quarrel is with the judicial branch itself? In any case, even if the quarrel is solely with the legislative or executive branch, it would be naive to assume that the judicial branch of a monopoly will be unsullied by the interests of the other branches. No one with a complaint against the marketing division of General Motors would be satisfied to have the case adjudicated by the legal division of General Motors! The solution to the judicial defect, then, is not a monocentric judiciary, but a polycentric one.
Next, consider the legislative defect: the worry that without government there will be no generally known and agreed-upon body of law. Why not? We should rather expect markets to converge on a relatively uniform set of laws for the same reason that they tend to converge on a single currency: customer demand. The late-mediæval private system of mercantile law known as the Law Merchant (lex mercatoria), for example, offered a
more unified body of law than did the governmental systems with which it competed.
This should be no surprise. Why are there no triangular credit cards? The reason is not government regulation, but rather that — given our current system that relies on rectangular cards — no one would accept it (unless the government
made them accept it, thus preventing the market drive toward uniformity). Similar reasons explain why the market no longer carries both VHS and Betamax video cartridges, but only VHS; the market creates uniformity when customers need it, and diversity when they need that instead. It's a good thing that video cassettes come with lots of different kinds of movies, and so the market ensures this; it would be a bad thing if video cassettes came in fifty different shapes and sizes, and so the market prevents this.
Indeed, it is not polycentric legal systems, but rather monocentric ones, that suffer from the legislative defect, since a mountain of bureaucratic regulations that no one can read is in effect equivalent to an absence of generally known law. Under a private legal system, changes in law occur as a response to customer needs, and so the body of law is less likely to metastasize to such unwieldy proportions. The solution to the legislative defect is not to monopolize legislation, but rather to privatize it.
Finally, consider the executive defect: the worry that without government there would be insufficient power on the part of private individuals to enforce the law. It is true that under anarchy each individual has the
right to exercise the executive function on his or her own, but it does not follow that law enforcers will in practice be solitary and unaided. On the contrary, voluntary associations of enforcers typically emerge — as in the case of the thief-takers' associations of early 19th-century England, or the vigilance committees of the old American frontier. Hollywood movies have accustomed us to think of the latter associations as unruly lynch mobs, and have depicted the frontier as nightmarishly violent; in historical fact, the level of criminal violence in frontier society was far lower than in our own, and the protective associations were, for the most part, reliable organizations that gave their defendants fair trials (at which defendants were often
acquitted — not the mark of a kangaroo court). Indeed, the whole notion of an organized police force is a relatively modern concept; police were extremely rare throughout ancient, mediæval, and modern history, until about the mid-19th century. (Indeed, even the notion of a distinct governmental
military is fairly unusual historically; in most societies, both law enforcement and national defense have been the job of the armed citizenry.)
If there is an executive defect, it applies not to private law but to
public law, in which individuals typically lack the power to withstand the arbitrary caprice of the state. Against one marauding band one can form one's defensive band; but who can resist the overwhelming force of an organized government? Let the victims of Warsaw, Tiananmen, or Waco judge whether the centralization of law enforcement enhanced the security of their lives, liberties, and estates.
Abuse of power by law enforcers is in fact much easier to keep in check under the discipline of a competitive market system. The LAPD would have gone bankrupt overnight after the Rodney King beating if it had been a private security force with competitors in the same territory; but as matters stood, despite the public outcry, the LAPD's "clients" had nowhere else to go, and so the LAPD's incentive to reform its behavior is much weaker.
In short, then, the three defects Locke cites as objections to anarchy are in fact much more effective objections to government. None of the three functions of government — executive, legislative, or judicial — should be assigned to an exclusive monopoly. In the words of F. A. Hayek: "Law is too important a matter to be left in the hands of government."
D
For more information about the stateless legal systems described in this installment, see the bibliographic essays "Polycentric Law" by Tom Bell and "Institutional Bases of the Spontaneous Order: Surety and Assurance" by Albert Loan, both in
Humane Studies Review, Vol. 7, No. 1, 1991/92, published by the Institute for Humane Studies at George Mason University, 4084 University Drive, Fairfax VA 22030.
Part III: Law
vs. Legislation
Socrates on Law
In one of Plato's philosophical dialogues, called the
Minos, Socrates asks an unnamed comrade for a definition of law. The comrade complies, offering the following definition: "Law is what is legislated." But Socrates objects: just as sight isn't
what
we see, but rather that
by
which we see, so likewise law is not
what
is legislated but that
by
which we legislate. The comrade accepts this criticism and retracts his definition. This might surprise us: surely law is the product of legislation, not vice versa. But in saying that law is that
by
which we legislate, Socrates is in fact appealing to a very old and deep-seated idea, as we shall see.
The comrade's second definition is this: "Law is the judgment of the state." But through repeated questioning Socrates quickly proves that this definition clashes with other things the comrade believes; thus the comrade is committed to an inconsistent triad of beliefs:
If the comrade accepts any two, he must reject a third.
Clearly, Socrates' comrade is attracted both to a positivist conception of law (according to which law is whatever the government says, be it just or unjust) and to a moralized conception of law (according to which law is inherently just); and Socrates exploits this tension.
So Socrates suggests a revision: "Law is the
correct
judgment of the state." Thus only those judgments of the state that are correct count as genuine laws. This may seem odd to us; when state decrees are incorrect, we tend to say that they are bad laws or unjust laws, not that they aren't laws at all. Being a law is a purely descriptive fact with no evaluative weight: anything the legislature cooks up, whether good or bad, is
ipso facto a law.
Why would anyone think otherwise? Well, consider the distinction between
power and authority. What's the difference between a command issued by a legislature, and a command issued by a mugger with a gun? Both have the power to enforce their demands; but the legislature, unlike the mugger, is presumed to have authority. Yet the legislature's authority is conditional; if Congress were to pass a bill outlawing Methodism, it would be overstepping its constitutional authority, and so its decree would not have the force of law. But if the Congress derives its authority from the Constitution, where does the Constitution get its authority? At this point we can only conclude that the Constitution's authority, if any, must be moral in character, deriving from natural justice. Only something with intrinsic normative weight could serve as the Unauthorized Authorizer that transforms all lesser decrees into laws.
But Socrates needn't be relying purely on an argument of this sort. He also has a weighty historical tradition on his side. Socrates' conception of law is arguably the
dominant
one historically, and our positivistic one a mere anomaly; the concept of law as an objective standard to be
declared
or
discovered
(rather than created) by legislators was the dominant notion both in legal practice and in legal philosophy throughout most of history — called
rta or
dharma in India,
ma'at in Egypt, and
torah in Judea. That's why Socrates can speak uncontroversially of law as not what is legislated but that by which we legislate. It was a standard principle of jurisprudence for the next two millennia that
lex injusta non est lex: an unjust law is not a law. Not until the Enlightenment did the notion of Natural Law degenerate from its original notion, a constraint on what law
was,
to a mere constraint on what law
ought
to be.
Today's positivistic conception of law is thus really something of a historical aberration; though it seems to have had some currency in ancient Greece as well, as is shown by the comrade's resistance, as well as by the fact that the Greek word
nomos
means both "law" and "convention." (A similar tension between positivist and moralized conceptions of law is found in the Greek statesman Pericles' confused responses to Alcibiades' Socratic questioning in Xenophon's
Recollections of Socrates.
Perhaps the fact that Athens was a democracy, and the average Athenian was constantly engaged in passing and repealing laws, served to weaken the traditional moralized conception of law.)
Socrates argues that only decrees based on knowledge of objective justice and injustice can count as true laws; he adds that all states legislate the just, but they make mistakes about what in fact
is
just. Socrates' point here is reminiscent of an argument by David Lyons that legal interpretation presupposes moral theory:
(David Lyons, "Constitutional Interpretation and Original Meaning."
Social Philosophy & Policy IV, pp. 85-99.)
If the law says that government employees must be paid in gold, then they may not be paid in iron pyrites, since iron pyrites is not
in fact gold, even if those who wrote the law were ignorant of the difference. If the law says that fishermen may not hunt mammals, then
in fact the law says they may not hunt dolphins, even if the lawmakers had thought dolphins were fish. Likewise, if the law says that involuntary servitude is forbidden, then the government may not conscript soldiers, since military conscription is
in fact involuntary servitude, even if those who wrote the law did not recognize this.
Professor Lyons' point is that precisely the same argument applies to moral terms: if the Constitution demands just compensation for victims of eminent domain, then such victims must receive whatever is
actually just, not what the framers thought was just, since the Constitution says to give "just compensation" rather than saying to give "what we consider just compensation." (The 19th-century abolitionist Lysander Spooner used similar arguments in his
Unconstitutionality of Slavery, claiming that slavery was outlawed by various clauses in the Constitution even if the authors of those clauses had no such intention, because such phrases as "republican form of government" and "against domestic violence," when interpreted in accordance with the correct moral and political theory, ruled out slavery.)
The conclusion of Plato's
Minos, then, might be described as follows: All states legislate both the
concept
of justice, and particular
conceptions
of it. Insofar as they legislate the concept, they all legislate the same thing, and these legislations are genuine laws. Insofar as they legislate different conceptions, their decrees (or most of them) are not genuine laws, and their legislators are simply proving themselves to be ignorant of what the law truly requires.
In Part I of this series of articles on the nature of law, I defined
law as "that institution or set of institutions in a given society that adjudicates conflicting claims and secures compliance in a formal, systematic, and orderly way." (Formulations, Vol. I, No. 3.) It should now be clear that I was there defining
positive law, not Law in the traditional strict sense discussed here. One of my principal aims in Parts I and II was to argue in favor of a specific kind of positive legal system — market anarchism — as both morally and practically superior to other systems. My conclusion there might now be rephrased as follows: market anarchism is the variety of positive law most in accordance with Law in the proper sense.
But what is the precise relation between positive law and Law proper? To that question I now turn.
My account of the traditional conception of Law proper might suggest that the content of this Law is entirely independent of human will. Some legal philosophers in this tradition have indeed thought this. Lysander Spooner, for example, insists that human legislation can neither add to nor remove from the true Law a single provision.
The more common view historically, however, has been that of the great mediæval philosopher Thomas Aquinas. Aquinas held that the content of true Law included not only Natural Law — that is, the principles of justice requisite to genuine human well-being, and inherent in human nature as created by God — but also Human Law. By Human Law Aquinas does not mean what I have been calling positive law. His idea is rather the following:
Some of the provisions of Natural Law, while absolute and binding, are often lacking in specificity. For example, it might be a provision of Natural Law that cars going in opposite directions on a highway should drive on opposite sides of the highway — but the Natural Law might be silent on the question of whether cars should drive on the left or on the right. Any decision on this latter question is a matter of indifference, from the standpoint of Natural Law, and may be left up to human convention. All the Natural Law requires is that there be
some decision on the matter, and that whichever convention is adopted should then be obeyed. Thus if a particular nation adopts the rule of driving on the right, this latter provision then acquires the force of Law, and so is morally binding. The rule "Drive on the right" is not part of the unchanging Natural Law, but is rather a provision of mutable Human Law. Mediæval jurists spoke of such rules as
reducing (that is, as
making more specific) the provisions of Natural Law; but they denied that Human Law could ever
contradict the Natural Law. Law in the strict sense, then, covers both Natural Law and Human Law, the latter being subordinate to the former; but Human Law is narrower than positive law, since only those provisions of positive law that are consistent with justice are to be counted as Human Law. The legislator may have some creative freedom, but only within the bounds of the Natural Law, and it is his or her task to discover those bounds, not to stipulate them by fiat.
I have spoken of the standard to which legislation must answer as Natural Law — a set of immutable moral principles that transcend human will. Such was indeed the view of Plato, Aristotle, Cicero, Aquinas, and indeed most legal philosophers throughout history. (For some representative quotations, see the documentary evidence below.) But legal historians point to what might seem a different conception of true Law: the practice, in most pre-modern societies, of regarding
traditional custom as the supreme standard of Law. (Again, see pp. 17-18.) The task of the legislator, in such societies, is seen as the attempt to discover, state, and apply the already existing practices of the tribe or nation — what the British jurists call the "custom of the country" — and not to appeal to some abstract standard of transcendent justice such as Natural Law.
This conflict is largely illusory, however. For we must recall that (Spooner to the contrary not withstanding) the true Law comprises not only Natural Law but also Human Law — and Human Law may be enacted not only by an official legislature but likewise, and with equal (if not greater) authority, by spontaneously evolving custom. Indeed, such customary law is probably a more reliable method for "reducing" the Natural Law, because a spontaneously evolved and voluntarily maintained custom is more likely to promote mutual advantage than a decree devised and imposed by a small group in power.
On similar grounds it has been argued, by F. A. Hayek and Bruno Leoni among others, that a common-law system, in which legislation arises through judicial precedent, is superior to a system in which judges and courts simply apply legislation created by a separate legislature. (The American system is a mixture of these two.) One advantage of the common-law system of judge-made law is that a judge cannot simply start legislating about anything that strikes his fancy, but must respond to particular claims brought by particular people, and so the system of precedents that evolves has been shaped by the needs of individuals.
Such a common-law system works best, however, if there are competing courts and competing jurisdictions, so that courts that make bad decisions will lose out over time to those with better judgment. Under a centralized judiciary with restricted choice in jurisdictions, many of the advantages of common law are lost — though even here there is a sort of competitive element, insofar as different
precedents may be thought of as competing against one another.
A common-law system will not work well if courts ignore precedents altogether; at that point a judge simply becomes a mini-legislator, rejecting the wisdom embodied in earlier judicial experience. On the other hand, a common-law system will also fail to work well if it adheres too closely to precedent; for if judicial entrepreneurs refuse to innovate or to introduce competing precedents, the invisible hand has nothing to work with. Human Law, unlike Natural Law, is
supposed to be flexible, adapting itself to changing circumstances. Tom Bethell offers the Islamic legal system as an example of a common-law system that degenerated when it lost its flexibility, thus freezing the once dynamic and progressive Islamic civilization into mediæval rigidity:
In his classic manifesto
On Liberty, John Stuart Mill pointed out the benefits of
intellectual competition in reaching the truth. It is by precisely this method that we have achieved the staggering scientific progress of the past four centuries. A judicial system that likewise incorporates the principle of competition — neither forswearing the vast information embedded in the market process, nor prostrating itself before it in such a way as to preclude entrepreneurial innovation — is more likely than any other to succeed in discovering and effectively applying the principles of Natural Law.
"Law in the sense of enforced rules of conduct is undoubtedly coeval with society; only the observance of common rules makes the peaceful existence of individuals in society possible. ... Such rules might in a sense not be known and still have to be discovered, because from 'knowing how' to act, or from being able to recognize that the acts of another did or did not conform to accepted practices, it is still a long way to being able to state such rules in words. But while it might be generally recognized that the discovery and statement of what the accepted rules were (or the articulation of rules that would be approved when acted upon) was a task requiring special wisdom, nobody yet conceived of law as something which men could make at will. It is no accident that we still use the same word 'law' for the invariable rules which govern nature and for the rules which govern men's conduct. They were both conceived at first as something existing independently of human will. ... they were regarded as eternal truths that man could try to discover but which he could not alter. To modern man, on the other hand, the belief that all law governing human action is the product of legislation appears so obvious that the contention that law is older than law-making has almost the character of a paradox. Yet there can be no doubt that law existed for ages before it occurred to man that he could make or alter it. ... A 'legislator' might endeavor to purge the law of supposed corruptions, or to restore it to its pristine purity, but it was not thought that he could make new law. The historians of law are agreed that in this respect all the famous early 'law-givers', from Ur-Nammu and Hammurabi to Solon, Lykurgus and the authors of the Roman Twelve Tables, did not intend to create new law but merely to state what law was and had always been."
— F. A. Hayek,
Law, Legislation and Liberty
— Plato,
Minos (5th c. B.C.)
— Xenophon,
Recollections of Socrates (5th c. B.C.)
— Cicero,
Laws (1st c. B.C.)
—
Institutes of Justinian (6th c. A.D.)
— Bruno Leoni,
Freedom and the Law
— Tom Bell, "Polycentric Law,"
Humane Studies Review 7, No. 1, 1991/92
— Fritz Kern,
Kingship and Law in the Middle Ages
— Thomas Aquinas,
Summa Theologiæ (13th c.)
— Francisco Suarez,
On Laws, and on God as Legislator (17th c.)
— Richard Overton,
A Defiance Against All Arbitrary Usurpations or Encroachments
(17th c.)
—
William Blackstone, Commentaries on the Laws of England (18th c.)
— James Otis,
The Rights of the British Colonies Asserted and Proved (18th c.)
It is also, at all times, and in all places, the supreme law. And being everywhere and always the supreme law, it is necessarily everywhere and always the only law. Lawmakers, as they call themselves, can add nothing to it, nor take anything from it. Therefore all their laws, as they call them, — that is, all the laws of their own making, — have no color of authority or obligation. It is a falsehood to call them laws; for there is nothing in them that either creates men's duties or rights, or enlightens them as to their duties or rights. There is consequently nothing binding or obligatory about them. ... It is intrinsically just as false, absurd, ludicrous, and ridiculous to say that lawmakers, so-called, can invent and make any laws,
of their own ... as it would be to say that they can invent and make such mathematics, chemistry, physiology, or other sciences, as they see fit ... "
— Lysander Spooner,
Letter to Grover Cleveland (19th c.)
— Rose Wilder Lane, The Lady and the Tycoon (20th c.)
Is There Room for Natural Law?
In previous sections, I have referred to Natural Law as the transcendent
standard to which manmade laws must correspond in order to be legitimate.
But is there such a thing as Natural Law? Are we justified in appealing
to such a concept? Or is it hopelessly outdated, an unscientific remnant
of a mediæval way of thinking?
Traditionally, Natural Law is called "natural" for two reasons. First,
Natural Law is distinguished from conventional law; in other words,
Natural Law does not depend on or derive from manmade institutions and
customs. (If it did, it would not be able to serve as a standard by which
to judge manmade law.) Second, Natural Law is distinguished from supernatural
law;
in other words, Natural Law is accessible to human reason rather than requiring
divine revelation. (Historically, Natural Law theorists have disagreed
with one another about whether Natural Law derives its authority from God's
commands; but even those who have held — wrongly, in my view — that Natural
Law does indeed depend on divine commands have nevertheless insisted that
Natural Law represents that portion of God's commands that we could figure
out for ourselves as being rational and reasonable, through our own unaided
intellect, without appeal to scripture or other forms of revelation.)1
But the very features of Natural Law that make it attractive — its independence
of human customs and its accessibility to reason — are also the features
that make it controversial.
How can there be a law that doesn't rest on any legal institutions or
practices? What is it grounded on instead? In other words, what is the
metaphysical
basis of Natural Law?
Likewise, how can a moral standard be ascertained by human reasoning?
How could we ever acquire objective knowledge of what is right and what
is wrong? In other words, what is the epistemological basis of Natural
Law?
Without some answers to these questions — or at least, without some
hope that they can in principle be answered — any political theory
that appeals to Natural Law is going to be on shaky ground.
At the end of Part III, in Autumn 1994, I promised that the next installment
would consider "The Basis of Natural Law." Well, it's been over two years,
but now I return at last to the promised topic. A full-scale defense of
Natural Law theory, however, is a task beyond the scope of this article;
so I will confine myself to responding to some of the most common objections
I've encountered within the libertarian community to the notion of Natural
Law (and the associated concept of natural rights).
But first let me make a point about the burden of proof. Most critics
of Natural Law assume that the burden of proof lies with the proponent
of Natural Law — presumably because they see Natural Law as something bizarre and implausible, something one couldn't sensibly believe unless there were a knock-down argument for it. But in fact, to believe in Natural Law is
simply to believe that there are moral standards that transcend the practices
and customs of any given community — that there are rational grounds for
condemning the Nazi regime as immoral, that it is possible to be justified
in so condemning it, even if we assume that what the Nazis did was perfectly
in accordance with the values of Nazi culture. When we condemn Nazism,
we don't ordinarily take ourselves to be expressing a purely personal,
subjective preference, like the preference for chocolate over vanilla;
rather, our ordinary practices of praising and condemning seem to implicitly
assume that there are objective moral standards, i.e., that there is a
Natural Law to which manmade laws are answerable.
Now of course the fact that ordinary practices implicitly assume something
is no guarantee that what they assume is true. But such a fact does seem
to shift the burden of proof.
Consider: the fact that it seems to me that I am sitting in front
of my computer typing these words doesn't guarantee that I really
am doing so; I might be dreaming, or hallucinating, or I might be trapped
in an incredibly realistic virtual-reality program. Now a philosopher like
Descartes would say that I have the burden of proving that I'm not dreaming, hallucinating, etc. — that I have to be able to rule those alternatives out before I can be justified in thinking I really am here, awake and typing.
But if Descartes were right — if we couldn't be justified in believing
anything unless we first ruled out all possibility of error — then we would never be justified in believing anything, since whatever evidence
we pointed to in order to prove our starting beliefs reliable would in turn
have to be justified by appeal to further evidence and so on ad infinitum. And if that were so, then we couldn't be justified in holding the belief that started us down this infinite regress in the first place
— namely, the belief that in order to be justified in believing anything
we must first rule out all possibility of error. So Cartesian skepticism
ultimately undermines itself: if everything should be doubted, then the
claim that everything should be doubted is itself one of the things that
should be doubted — and once we go doubting that, we lose our original reason for doubting everything else.2
What that means is that we are, after all, justified in accepting the
way things initially seem to us as a true picture of the world, despite
the possibility that those beliefs are mistaken. Now that doesn't mean we're justified in clinging to our beliefs with blind faith, defying all evidence to the contrary. But it does mean that those who oppose these ordinary
beliefs are the ones who have the burden of proof; we're justified in accepting
our initial beliefs as true until we find convincing evidence that
they're false. This must be so, because the contrary position, as we've
seen, is rationally incoherent. So if our ordinary practice of moral judgment
commits us to believing in Natural Law, then Natural Law is part of our
picture of the world, and we're justified in accepting it until someone
gives us good reason to reject it. The burden of proof thus rests with
the opponents of Natural Law.
That is not to say that I think there is no positive case to be made
for Natural Law. On the contrary, much of my own philosophical research
is devoted to making such a case, relying on the insights of the Aristotelean
tradition combined with the philosophical discoveries of the last thirty
years. My point is simply that the justifiability of accepting Natural
Law as part of one's picture of the universe does not require that the
positive case for Natural Law be established first.
Now let's turn to some of those common objections to Natural Law theory.
Objection One: Natural Law Serves No Useful Purpose
Natural Law: ineffective protection?
One objection one sometimes comes across in libertarian circles is that
Natural Law, and in particular natural rights (the rights we have under
Natural Law), are useless. A Natural Law against murder or theft
will not protect us from murderers and thieves; a natural right to life
will not turn a mugger's knifeblade or repel an assassin's bullet; a natural
right to property is not as useful as high walls and sturdy locks.
One version of this criticism is put forward by L. A. Rollins in his
pamphlet The Myth of Natural Rights (Port Townsend: Loompanics,
1983). Rollins asks:
— (Rollins, pp. 40-41.)
"Another natural rights mythologizer is Eric Mack who says, 'Lockean
rights alone provide the moral philosophical barrier against the State's
encroachment upon Society.' But a 'moral philosophical barrier' is merely
a metaphorical barrier, and it will no more prevent the State's encroachment
upon 'Society' than a moral philosophical shield will stop a physical arrow
from piercing your body.
But if natural rights are merely fake or metaphorical rights, what then
are real rights? Real rights are those rights actually conferred and enforced
by the laws of a State or the customs of a social group."
— (Rollins, p. 2.)
Natural Law's function: guidance, not protection
In ordinary speech we often switch without noticing it between different
senses of "rights." For example, we might say in one breath that citizens
in China have no right to free speech — and then say in another breath
that Chinese citizens' right to free speech is being violated. Logically,
this seems to make no sense; you can't violate a right your victims don't
even have. (No one would say, for example, that my right to rule North
America is being violated, because nobody thinks I have such a right in
the first place.) But our ordinary speech makes more sense once we realize
that the term "rights" is being used in more than one sense, so that the
kind of right that's being violated in China is a different sort form the
kind of right the Chinese don't have.
First, we can distinguish between "rights" in the normative sense
and "rights" in the descriptive sense. Normative facts are facts
about what people ought to do; descriptive facts are facts about
what people actually do.
In turn, we can distinguish two subvarieties of descriptive rights:
legal
rights and de facto rights.
This gives us a three-way distinction:
Going back to my China example, when someone switches between saying that the Chinese have no right to free speech and saying that their right to free speech is being violated, he probably means one of the following things:
(I don't know enough about Chinese law to know whether (a) or (b) is closer
to the truth, though (c) would be true in either case.)
Now we can see where Rollins' critique has gone wrong. Rollins is thinking
of natural rights as if they were a special kind of legal right — a right
legislated by God or Nature rather than by the state. Given that assumption,
what he says makes sense: legal rights are of little value unless they
are also de facto rights. (When Rollins refers to "real rights" as "those
rights actually conferred and enforced by the laws of a State or the customs
of a social group," he clearly has in mind de facto rights.) Just as it
does me no good to have a legal right on paper that the state pays lip
service to in theory but systematically ignores in practice, so it does
me no good to have a natural right inscribed in the Law of Nature if no
one is willing or able to enforce that right.
But this is the wrong way to think about natural rights. A natural right
isn't a legal right, it's a normative right. To claim that natural rights
don't protect anything is to miss the point; natural rights are supposed
to receive protection, not to provide it. Likewise, the function
of Natural Law is not to protect any claims, but rather to tell us which
claims deserve protection. As normative concepts, natural rights
provide guidance for people's conduct. Blaming natural rights for not protecting
us is like blaming a cookbook for not making dinner. Cookbooks don't make
dinner for us; their purpose is to teach us how to make dinner for ourselves.
Likewise, Natural Law doesn't lead our lives for us; its purpose is to
guide us in the living of our own lives.3
Natural Law can sometimes protect
So if natural rights don't protect us, that's no indictment of Natural
Law theory. In fact, however — even though this is not their essential
function — natural rights can and do sometimes provide people with de facto
protection. In discussing the Holocaust, Rollins takes it as obvious that
the Jews' natural rights didn't save any of them. But is this true? All
over Nazi-occupied Europe, thousands of Jewish lives were saved by brave
and committed people who were motivated by their recognition of the Jews'
rights to life and liberty — rights whose authority transcended the dictates
of the Nazi state. In fulfilling their primary normative function of guiding
the choices of the rescuers, the Jews' natural rights thereby indirectly
did what Rollins says natural rights cannot do — they saved the Jews' lives.
Now Rollins would no doubt respond that these Jews were saved not by
natural rights but by their rescuers' belief in natural rights.
Well, suppose I'm walking along absent-mindedly and I'm about to step inadvertently
into a pit of deadly scorpions, when Rollins suddenly shouts "watch out!"
I hear his warning shout, and stop just in time. Now if I said that his
warning shout had saved my life, would Rollins object that this is wrong,
that it's only my perception of a warning shout that saved my life?
In such a case this would be an idle quibble, because although my salvation
was caused by my perception of the warning shout, that perception of the
warning shout was in turn caused by the warning shout itself; so either
one can be credited as causally responsible for my escaping the scorpions.
But Rollins would presumably insist that the Holocaust rescuer case
is different, because although the Jews' salvation was caused by the rescuers'
belief in natural rights, the rescuers' belief in natural rights was not
caused by natural rights themselves. Here I must disagree, though; I don't
see why the rescuers' belief in natural rights couldn't be the result of
their having correctly recognized and identified the fact of the Jews'
natural rights, just as my avoiding the scorpion pit was the result of
my having correctly recognized and identified the fact of Rollins' warning
shout.
The only answer Rollins can give is that the rescuers can't have recognized
and identified the fact of natural rights because there is no such fact;
but in that case Rollins' argument for the uselessness of natural rights
begs the question against his opponents by presupposing that natural
rights don't exist. (After all, it's easy enough to prove something useless
if you first presuppose that it doesn't exist!)
Which are the rights that might makes?
A recent variation on the natural-rights-don't-protect argument is Rich
Hammer's article "Might Makes Right: An Observation and a Tool," (Formulations, Vol. III, No. 1 (Autumn 1995)).
Rich argues that the rights we have are the ones we are able to secure
by force:
— ("Might Makes Right," p. 14.)
Most of the arguments Rich goes on to give do seem to be intended to
apply specifically to de facto rights (and also, to some extent, to legal
rights). For example, Rich offers the following challenge to his readers:
— ("Might Makes Right," p. 15.)
But this can't be the whole story. For Rich thinks his position is going
to be a controversial and unwelcome one:
Let me make it clear that I am not saying that I want might to make
right. In many instances this thesis runs contrary to the values by which
I live. But I observe that the thesis makes sense, like it or not."
— ("Might Makes Right," p. 14.)
But what? There seem to be two salient possibilities. Either a) Rich
is saying that superior might is the source not only of de facto rights
but also of normative rights; or else b) Rich is saying that there are
no normative rights, that de facto rights are the only rights there are.
I'm inclined to doubt that (a) is what Rich means. If (a) were Rich's
thesis, then he would be committed to endorsing and approving of whatever
de facto rights actually end up getting favored by superior might. Now,
to be sure, Rich does argue that the results of superior might will generally
tend to be beneficent, at least in the long run; but he also says that
there are cases in which the might-makes-right thesis "runs counter to
the values by which I live"; by saying this, Rich seems to be denying that
in every case he will automatically regard as valuable whatever set of
arrangements wins out.4
Thus I think the most likely interpretation is (b): Rich believes that
there simply are no rights over and above de facto rights — that his occasional
aversion to the results of force is simply a matter of personal preference.
This interpretation is reinforced by the following passage:
Through tricks of language, wishes often advance in status to rights.
But one point of my writing this paper is to help us see the difference
between wishes and rights. ... In the country in which I live, most members
of the population seem to believe that they have a right to share in the
fruits of other people's labor, just so long as that sharing is passed
by the legislature. And ... they do in fact have that right, since it is
backed with willingness and ability to prevail in use of force. Of course
I favor the alternate claim, to keep all the fruits of my own labor, but
this claim diminishes to the status of a wish; it lacks force."
— ("Might Makes Right," p. 14.)
Now of course this sort of moral skepticism might be true. But
I can't see that Rich's article gives us reason to think it is true.
I find quite convincing Rich's arguments for the claim that de facto rights
are made by might; but those arguments do not seem to rule out the possibility
of normative rights that do not depend on might for their validity.
Objection Two: There Couldn't Be Such a Thing as Natural Law
Natural Law: a tool of manipulation?
Another objection that's a bit harder to get a handle on is the complaint
that there's something spooky and mysterious about Natural Law and natural
rights. In his pamphlet Natural Law: or Don't Put a Rubber on Your Willy
(Port Townsend: Loompanics, 1987), libertarian science-fiction writer Robert
Anton Wilson characterizes natural rights theory as the view that "some
sort of metaphysical entity called a 'right' resides in a human being like
a 'ghost' residing in a haunted house." (p. 4.) The implication is that
natural rights are too weird to be believable.
Like Rollins, Wilson seems to want to treat natural rights as if they
are supposed to be descriptive facts. But natural rights are normative
facts. To say that Wilson has a natural right to be treated in manner X
is not to say that there's some kind of invisible sprite lurking somewhere
inside Wilson's body. Rather, what it means is this:
In other words, natural rights consist in facts about what people
ought to do, how people ought to treat each other. Now people do sometimes
talk as though (a) and (b) are true because Wilson has a right to
be treated in manner X, as though the right were something separate, over
and above facts (a) and (b). But this strikes me as no more than a figure
of speech. Strictly speaking, there is nothing more to Wilson's having
a right to be treated in manner X than the existence of the moral obligations
and moral permissions listed in (a) and (b). So natural rights can be dismissed
as objectionably spooky and mysterious only if the entire notion of an
objective morality — of there being facts about what people ought and ought not to do — is also dismissed as objectionably spooky and mysterious.
This is indeed the position Rollins takes:
— (Rollins, p. 8-9, 19.)
More importantly, though, the question is why we should accept
Rollins' claim that nothing is right or wrong and nothing is entitled to
reverence. These are extraordinary claims, claims that run contrary to
our ordinary beliefs and practices, and so the burden of proof rests
with the person making such claims.
The metaphysical basis of Natural Law
Natural Law theorists may not have the burden of proof; but it's still
a fair question to ask what kind of facts normative facts could be, what
basis in reality they could have. This is a question to which different
Natural Law theorists provide different answers. In my philosophical work
I'm attempting to develop an answer of my own; my position is not fully
worked out yet, but what follows is a thumbnail sketch of the kind of approach
I find most plausible:
This point also applies to teleological explanations in terms of "selfish
genes." Suppose the drive for self-preservation was implanted in us because
beings that seek to preserve themselves are more likely to reproduce their
genes (as opposed to dying off before they reach mating age). In other
words, our genes "chose" the drive for self-preservation as a means to the goal of reproduction. This may make reproduction our genes'
primary goal, but it doesn't necessarily make it our primary goal;
given that our genes, in order to achieve their goals, hit upon the strategy
of giving us a drive toward a somewhat different goal, then if we end up
choosing our goal over theirs in cases where the two goals conflict, that's
our genes' problem, not ours.5 We are not mere puppets
of our genes; we have the capacity (our genes gave it to us!) to reject
our genes' goals in favor of higher ones (or, in some cases, lower ones).
In addition, I should stress that it is not primarily on the basis of
the nine steps I've just outlined that I believe in libertarian natural
rights. I feel a good deal more certain of the existence of libertarian
natural rights than I do of my ability to ground this nine-step argument.
The purpose of such an argument, if it can be made to work, is to explain
why we have the rights we do, not to justify our belief in them (though on
the other hand, the process of working through and developing such an argument
naturally induces modifications in the details of the natural-rights claims
that I think are justified).
In earlier centuries, Natural Law theorists drew a useful distinction
between Natural Law's principium essendi and its principium cognoscendi. The principium essendi of X is the basis for X's being so; the principium cognoscendi of X is the basis for knowing that X is so.
For example, sandalwood has a distinctive smell by which it can be identified;
so that smell is a principium cognoscendi of sandalwood. But that
smell is not what makes sandalwood what it is; it is not sandalwood's principium essendi. The principium essendi of sandalwood is presumably its biochemical microstructure; but the presence of the distinctive sandalwood smell is a reliable indicator of the presence of that biochemical microstructure. A principium essendi can also serve as a principium cognoscendi; that is, we can identify sandalwood by its biochemical microstructure as well as by its smell. But not every principium cognoscendi is also a principium essendi.
The purpose of the research program described in my nine-step outline
is to discover the principium essendi of Natural Law and natural
rights. But I do not think the success of such a program is required in
order for us to be able to say what natural rights we have or what Natural
Law requires of us. As we shall shortly see, there are many epistemic avenues
to moral truth; the principium essendi of Natural Law, whatever
it turns out to be, is only one of many principia cognoscendi.
Objection Three: Even If There Were a Natural Law, It Would Be Unknowable
The epistemological basis of Natural Law
One of the most common objections to Natural Law is that it is not open
to scientific test. Wilson, for example, insists that he is open-minded
and willing to accept Natural Law if only it can be provided with a scientific
basis:
— (Wilson, p. 37.)
— (pp. 35-37.)
But this is a mistake. Normative statements — moral judgments — are
as open to being tested as any other kind of judgment. For normative statements
entail empirical statements, and if the empirical statements in question
are falsified by sensory observation, then the normative statements that
entail them are likewise falsified.8
Consider the following two normative statements: "Adolf Eichmann is
a virtuous person" and "A virtuous person would never participate in genocide."
These two normative statements, taken together, entail an empirical statement,
namely, "Adolf Eichmann did not participate in genocide." This is a statement
that is open to empirical test; the clearest falsification would be one's
own eyewitness observation of Eichmann participating in genocide, but barring
that, we can still have convincing evidence that Eichmann did indeed participate
in genocide. And once the empirical conclusion has been falsified in this
way, we can infer that at least one of our normative premises must be wrong.
(From "If P & Q, then R" and "Not R," the inference "Not both P &
Q" logically follows.) So the results of empirical investigation can indeed
require us to revise our moral beliefs; in short, normative statements
are indeed testable.
Now it might be objected that all this test shows is that at least one of
our normative premises must be wrong, but it doesn't tell us which normative premises to reject.
This is true. But the same criticism applies equally well to any application
of the scientific method. Suppose I want to test the proposition that water
boils at 100° C. So I heat some water, and when it starts to boil I
stick in a sturdy thermometer and see what reading I get. Now suppose the
thermometer reads 96° C. What should I conclude? Well, I could regard
the assumption that water boils at 100° C as having been disproven.
But this is not my only option. It is also open to me to hold on to that
assumption and instead reject some auxiliary assumption — e.g., my assumption that this stuff is really water, or my assumption that the thermometer has been labeled correctly, or even my assumption that I am awake rather than dreaming.
One can never test any belief in isolation; one can only test groups
of beliefs. In natural science as in ethics, empirical tests can expose
an inconsistency in one's total belief-set, but they cannot tell one which
belief(s) to reject. How we resolve the inconsistency will depend on which
beliefs we find most plausible, how committed we are to them, how many
of our other beliefs depend on them, and so forth. In this regard, ethics
is no worse off than natural science.
The implication I would want to draw from this is "so much the better
for ethics!" But some will instead want to conclude: "so much the worse
for natural science!" If no belief can ever be tested in isolation — if
all our conclusions, in science as well as in ethics, depend on personal
and inevitably impressionistic judgments of relative plausibility — then
isn't it impossible for any belief to be justified? Instead of upgrading
our assessment of moral reasoning to place it on a par with the objectivity
of scientific reasoning, why shouldn't we downgrade our assessment of scientific
reasoning to place it on a par with the subjectivity of moral reasoning?
Well, one reason not to do so is that this would amount to the kind
of global skepticism that we've already seen to be self-defeating. If the
skeptic wants to claim that the standard scientific method does not yield
justified beliefs, then the skeptic has set the standards of justification
so high that it is very hard to see how the skeptical thesis itself could
meet those standards. And if it cannot, then the skeptic has given us no
reason to accept his claim that the standards should be set so high. We
do not have to build our system of beliefs on a bedrock foundation of self-evident truth before we are justified in accepting those beliefs as provisional starting-points. Our current beliefs deserve the benefit of the doubt until we find some positive reason to suspect them; we have to start where we are, not somewhere else. The structure of a belief-set is not hierarchical,
like a skyscraper with each floor resting on the floor below it, all the
way down to the ground; it's more like a spiderweb, a network of interrelated,
mutually supporting judgments varying in strength and centrality. In epistemology (the theory of knowledge), this spiderweb model of justification is known as coherentism, while its skyscraper rival is called foundationalism.
Thus far I've been talking about testing normative beliefs by seeing
whether they conflict with empirical observations. But if coherentism is
correct, we can also test normative beliefs by seeing whether they conflict
with each other. And we can even test descriptive beliefs by seeing whether
they conflict with normative beliefs. On the skyscraper model, higher-level
beliefs can be revised in the light of changes in lower-level beliefs,
but never vice versa; the arrow of justification points in one direction
only. But according to coherentism, any belief is in principle open to
revision if it clashes with a sufficient number of other beliefs, of whatever
kind. Which beliefs we should keep and which ones we should toss out will
depend on how central the beliefs in question are to our overall picture
of the world.
Most people, for example, have a lot more invested in the judgment that
genocide is immoral than they do in any particular view about the status
of normative judgments; so if someone like Rollins comes up with a theory
about the status of normative judgments that implies that genocide is not
immoral after all, the rational response is to hold on to one's condemnation
of genocide and reject Rollins' theory — unless Rollins can show
that his theory rests on judgments that are more central to our belief
structure than our belief that genocide is immoral. There is no fundamental
difference between moral reasoning and the experimental method of natural
science; both involve what Plato and Aristotle call dialectic, or
what John Rawls calls the method of reflective equilibrium: tracing the
implications of our beliefs and attempting to eliminate inconsistencies
among them. (And performing experiments is simply a way of adding new beliefs
to our total belief-set — and using those new beliefs to test the old ones.)
At this point the following objection might be raised: In the case of
a disagreement between two different descriptive theories, there
is a possibility of resolving the dispute by performing experiments. Perhaps,
as the coherentist claims, experiments are just a way of acquiring new
beliefs, but at least they cause the disputants to acquire the same new
beliefs, thus bringing the two belief-sets into greater alignment. But
there seems to be no analogous way to resolve disputes over different interpretations of Natural Law. For example, Stephen O'Keefe writes in his preface to Rollins' book:
For example, someone who believes that we should always do whatever
maximizes social utility may have second thoughts when asked to imagine
a case in which a doctor secretly kills a healthy patient in order to redistribute the patient's organs to five sick patients who will die unless they receive organ transplants as soon as possible. If we agree that the doctor's action maximizes social utility, but we nevertheless find ourselves inclined to
evaluate the doctor's action as wrong, then the thought-experiment has
resulted in new beliefs that conflict with our older belief that whatever
maximizes social utility is okay. Thus moral thought-experiments can also
serve the function of bringing divergent belief-systems into alignment.
An important function of new data — whether acquired through sensory
experience or through philosophical reflection — is to introduce inconsistency
into a previously consistent belief-set, thus prompting a revision in belief.
Of course, someone might choose to reject the new data rather than revise
old beliefs; and sometimes (e.g., in the case of hallucinations and the
like) this can even be the rational option. Once again, what we accept
and what we reject will depend on the number of beliefs at issue and the
weight or plausibility we assign to those beliefs. So the attempt to resolve
inconsistencies among one's beliefs may not necessarily bring one's belief-set
into greater consilience with those of others.
In the moral case, for example, Rollins, a self-proclaimed "amoralist,"
chooses to hold on to what most would view as a highly implausible belief
— the belief that there is nothing wrong with "murder, rape, robbery, or
torturing children" — and to reject more plausible beliefs whenever they
come into conflict with that one. But this is no proof that moral reasoning
is useless in reaching agreement, because the same phenomenon can show
up in natural science — as in the case of creationists who cling so stubbornly
to the belief that the universe is only a few thousand years old that they
reject countervailing evidence (whether astronomical, geological, or paleontological)
as fake clues planted by God to test our faith.
In ethics as in natural science, dialectic is a powerful tool for reaching
agreement, but in neither case does it offer any guarantee of convincing
people like amoralists and creationists, who, when confronted with inconsistencies
in their belief-set, insist on resolving these by keeping the less plausible
beliefs and rejecting the more plausible ones. (Of course both the amoralist
and the creationist will protest that the characterization I've just given
of their positions depends on my personal perspective as to what
is or is not plausible. Well, sure. My personal perspective is the only
place I have to stand.)
Wilson (in Natural Law) is skeptical about the degree of similarity
between ethical disagreement and scientific disagreement:
Prof. Rothbard tells us that this means nothing, because there are disagreements
among physicists, too: but I find this analogy totally unconvincing. ...
In the area of Natural Law and metaphysical 'morality' in general, there
is no shred of ... agreement about how to ask meaningful questions (questions
that can be experimentally or experientially answered)9
or even about what form a meaningful (answerable) question would have to
take. There is no pragmatic agreement about how to get the results you
want. There is no agreement about what models contain information and what
models contain only empty verbalism. There is, above all, no agreement
about what can be known specifically and what can only be guessed at or
left unanswered. ...
Some states and nations believe in capital punishment; others do not.
Pacifists are against killing anybody, but not all pacifists are vegetarians.
Some quasi-vegetarians will not eat the higher mammals but will eat fish.
Pure vegetarians kill vegetables to eat. And so on. ...
To compare this ontological spaghetti with the highly technical disagreements
in physics seems to me like comparing ten drunks smashing each other in
a saloon with the difference in tempo and mood between ten conductors of
a Beethoven symphony."
Should economic method be inductive or a priori? Should it aim
at prediction or at explanation? Should it employ a subjective or an objective
conception of economic value? How useful are mathematical models when applied
to human behavior? How many simplifying assumptions can we make about the
motivations of economic agents before our models cease to be useful in
elucidating social reality?
These are questions on which the economic field is not even close to
reaching a consensus. Yet, as a libertarian, Wilson would probably be unwilling
to conclude that all economic theories are equally valid and that none
is better grounded than any of its rivals, or that there is no fact of
the matter as to whether a given policy would cause a rise or a drop in
unemployment. I would bet that despite the lack of consensus among economists,
Wilson probably believes in some kind of economic truth.11
So why should an equivalent level of disagreement in ethics make us skeptical
about the possibility of ethical truth?
There's no great mystery about why agreement is harder to reach in ethics
and the social sciences than it is in the natural sciences. For one thing,
the subject matter (human activity) is both more complex and less susceptible
to mathematical analysis, thus making theoretical modeling and controlled
experimentation inherently more difficult. For another, researchers are
likely to bring more prejudice, self-interest, and ideological baggage
with them to issues in ethics and social science than to issues in natural
science, thus making the problem of bias more pervasive. It is complexity
and bias, not inherent subjectivity, that make moral disagreement so intractable.
Knowledge vs. mere justification
I've been arguing that normative beliefs can be justified. Now
someone might grant this, but still deny that our moral beliefs can count
as knowledge. At one time it was fashionable in philosophical circles
to define knowledge as justified true belief, but nowadays philosophers
recognize that a belief can be both true and justified, and yet be such
that few would be willing to call it knowledge.
The paradigm case is when a justified true belief is based on a justified
false belief. Suppose I believe that alligators are mammals. Suppose further
that I have good reasons for my mistaken belief; the encyclopedia I looked
in contained a misprint, the biologist I consulted lied to me, and so on.
So I'm justified in believing, falsely, that alligators are mammals. Since
I know that all mammals are vertebrates, I'm justified in concluding, on
the basis of my false belief that alligators are mammals, that alligators
are also vertebrates. Now it just so happens that alligators actually are
vertebrates, although my reasons for believing this truth are mistaken.
So I have a justified true belief that alligators are vertebrates, but
most people would be reluctant to say that I know that alligators
are vertebrates, and the source of their reluctance is the fact that the
connection between the belief's being true and my being justified in believing
it seems so chancy and accidental. Hence most philosophers conclude that
some sort of reliability condition, showing how our beliefs track truth,
must be added in order for justified true belief to count as knowledge.
It seems to follow that even if a) I believe that people have a right
to freedom, and b) my belief is true, and c) I am justified in holding
it, I don't count as knowing that people have a right to freedom
unless I believe this because it is true. But, the objection runs,
we can causally interact only with descriptive facts, not with normative
facts; therefore, normative beliefs can never satisfy the reliability condition,
and so can never count as knowledge.
Briefly, my response to this objection is threefold:
b) we cannot causally interact with mathematical facts, but we can nevertheless
have mathematical knowledge, so causal interaction must not be the only
possible way to satisfy the reliability condition;12
and
c) in any case, just as we do not need to be able to explain how our
eyes work before we're justified in taking ourselves to have sensory knowledge,
so likewise we do not need to be able to explain how it is that our beliefs
track moral truth before we're justified in taking ourselves to have moral
knowledge.
While I'm on the subject, I think the coherentist approach to moral
argument that I've been defending can shed some light on a topic of common
discussion among libertarians — namely, whether libertarianism should be
based a) on the consequentialist argument that we should allow people to
be free because doing so will have beneficial social consequences, or instead
b) on the deontological argument that we should allow people to be free
because doing so is mandated by our moral obligation to respect other people
as ends in themselves.13 (Generally it is only the deontological
libertarians who employ the language of Natural Law, but historically there
have been both consequentialist and deontological versions of Natural Law
theory; if you believe in a higher moral standard, independent of convention
but accessible to reason, to which manmade laws are properly answerable,
then you are a believer in Natural Law, even if your higher moral standard
is simply social welfare.)
Sometimes all the dispute between consequentialist and deontological
libertarians amounts to is simply a debate over the best way to present
libertarianism when trying to convince non-libertarians. In that case I
think the debate is a somewhat silly one; for reasons I'll soon get into,
most people will be unwilling to accept as socially beneficial a system
they think is unjust, and vice versa, so neither the consequentialist nor
the deontological argument can stand very well alone. And in any case,
since there are plenty of good consequentialist arguments for libertarianism
and
plenty of good deontological ones, why not use all the ammunition in
our arsenal?
But more often the disagreement is not about how to package libertarianism
when selling it to the infidels, but rather about which set of reasons
— the consequentialist or the deontological ones — constitutes the deepest
truth about why libertarianism is the right system. For example,
deontological libertarians often say that although it's a lucky break for
us that libertarianism is socially beneficial, we would still be obligated
to respect libertarian rights even if it turned out that doing so would
lead to social chaos and misery; and consequentialist libertarians make
similar remarks on the other side. In other words, each side of this debate
is officially committed to the view that the other side's reasons are irrelevant
to
the justification of libertarianism.
Yet, interestingly enough, although deontological libertarians don't
think it matters that libertarianism is socially beneficial, they
all seem to think that in fact it is beneficial. And likewise, although
consequentialist libertarians don't think it matters that libertarianism
expresses respect for persons, they all seem to think that in fact it does
express
respect for persons.
If deontological libertarians were to become convinced that libertarian
policies would actually cause social chaos and misery, I suspect that most
of them would find their faith in libertarianism shaken. Consequentialist
libertarians, recognizing this, often accuse the deontologists of hypocrisy,
claiming that under their deontological veneer they are crypto-consequentialists.
(I recall reading a lengthy debate on this topic in Liberty magazine
during its first few issues.) But this accusation is a two-edged sword,
since if consequentialist libertarians were to become convinced that libertarian
policies in fact express contempt for persons, I imagine their faith would
be shaken too.
So what's going on here? Well, suppose I believe that water is H2O.
Then that belief commits me to thinking that if there were no such thing
as H2O, there would also be no such thing as water (since they're the same
thing). However, if I were to become convinced that the atomic theory of
matter is wrong — if I were to come to believe that there are no hydrogen
and oxygen atoms, and thus no H2O — I would not conclude that there is
no water. Instead, I would revise my belief that water is H2O.
I have a particular theory about what the principium essendi of
water is; I think it's H2O. And that commits me to the belief "If there
were no H2O, there would be no water." But that statement does not commit
me to the belief "If I didn't believe in H2O, I wouldn't believe in water."
H2O is not my primary principium cognoscendi of water; I ordinarily
identify water by its appearance, potability, boiling and freezing points,
etc., not by its molecular composition. So if I were to learn that H2O
is nonexistent, but my ordinary principia cognoscendi still indicated
the presence of water, the most plausible way of resolving the inconsistency
would be to reject my theory about what water's principium essendi is,
rather than giving up my belief in the existence of water.
The same point applies to the dispute over the basis of libertarianism.
The disagreement is about the principium essendi of libertarianism's
validity; consequentialist libertarians think the principium essendi
is
social welfare, while the deontological libertarians think it's respect
for persons. However, libertarians, like most people (myself included),
tend to think that social welfare and respect for persons go together,
at least roughly; that is, they think that a system that respect persons
is likely to be socially beneficial, and vice versa, so that each trait
can serve as a reliable (though not exceptionless) indicator of the other's
presence. Given that belief, those who regard social welfare as the principium
essendi of rightness will tend to treat respect for persons as at least
a principium cognoscendi of rightness, just as those who regard
respect for persons as the principium essendi of rightness will
tend to treat social welfare as a principium cognoscendi.
The debate about whether social welfare or respect for persons is the
principium
essendi of libertarianism's validity is an important one (and it's
no secret that I'm in the respect camp); but I think its participants have
sometimes misconstrued what their positions commit them to. Recall the
H2O case. Those who believe that respect for persons is libertarianism's
principium essendi are indeed committed to the belief "If libertarianism
were not socially beneficial, it would still be morally obligatory." But
many of them have made the mistake, as I see it, of thinking that this
belief commits them to the further belief "If we ceased to believe that
libertarianism is socially beneficial, we would still regard it as morally
obligatory." (And likewise, mutatis mutandis, for the consequentialists.)
This further belief is rarely true, nor should it be; both consequentialist
and deontological considerations are crucial for the justification of
libertarianism, even if one is more fundamental
than the other when it
comes to explaining why libertarianism is the correct position.
Objection Four: Evolutionary Explanations Make Natural Law Obsolete
Natural Law: the product of biological evolution?
A final objection I want to consider is that Natural Law is an unnecessary
hypothesis, because moral evaluations can be explained as a product of
evolution, rather than as a response to objective moral truth.14
In a recent article, Rich Hammer writes:
So evolutionary explanations of moral disagreement seem unpromising.
Evolutionary explanations of moral agreement are on firmer ground.
But even here there is room for skepticism. It's often thought that if
the Darwinian theory of evolution through natural selection is correct,
then any central or important feature of human beings must have an evolutionary
function. But this isn't true. Consider the ability to solve mathematical
equations. This is an important and valuable skill, and arguably has survival
value; but was it selected for because of its survival value? I
doubt it. Evolutionary pressure did select for something, but what it selected
for was reason — i.e., a generic capacity for figuring things out
— and our more specialized capacity to solve mathematical equations is
a byproduct of that more generic capacity, rather than something
that was selected for directly.
So if human beings generally have a tendency to assent, upon reflection,
to the proposition that 374 times 98 equals 36652, that's not because the
belief that 374 times 98 equals 36652 has any particular survival value;
rather, it's because we have a generic capacity to figure things out (a
capacity that does have survival value), and when we apply that capacity
to the problem of what 374 times 98 equals, we come up with 36652 because
we are able to figure out that 36652 is the actual right answer.
Likewise, then, it is possible that our capacity for moral reasoning,
like our capacity for mathematical reasoning, is the byproduct of our general
ability to reason, rather than something for which natural selection is
directly
responsible. In other words, if people have a tendency to hold certain
normative beliefs, it might be because they have used their rational capacities
to figure out that certain things are right and others wrong.
Now I certainly don't mean to deny that evolutionary considerations
of the sort Robert Axelrod appeals to in his book The Evolution of Cooperation
play
an important role in explaining why we tend to favor "rules of behavior
which favor cooperation over conflict." I wholeheartedly endorse this basic
point. But these basic cooperative impulses are not specific enough, by
themselves, to ground the full spectrum of our normative attitudes.
Consider the following pattern of moral reasoning:
My present concern is not with whether this is a good or bad argument.
The point is that it is a typical, and easily understandable, mode of reasoning.
Even those who disagree with the argument can easily see the point of it.
Now suppose that we have a natural tendency to believe (1), and that
this tendency was selected for by evolution, because creatures who kill
their own kind have a harder time building cooperative networks and so
are disadvantaged in the struggle for survival.
Suppose also, on the other hand, that we have no particular tendency
to believe (3), and that the absence of such a tendency is also the product
of evolution, because before the development of agriculture, people who
were squeamish about eating animals tended to die out before they had a
chance to reproduce and pass on their genes.16
We can assume, then, that our early ancestors had no qualms about eating
animals, and did not feel any tension between their acceptance of (1) and
their rejection of (3). But the exercise of reason can prompt people to
notice the tension, and to resolve it by embracing (3). (I am not saying
that this is the only way to resolve the tension, only that it is one
salient
and intelligible way.) This is one of the modes through which people come
by their moral beliefs, and it is a mode to which evolutionary considerations
are only peripherally relevant.
We may think of our evolutionarily-implanted normative impulses as playing
a role in moral reasoning analogous to the role that sensory experience
plays in scientific reasoning. The data of the senses are one of the most
important sources of our beliefs about how the universe works. But we are
not confined to the sensory level. Our capacity for reason drives us to
try to build up a conceptual picture of the universe that makes sense;
and although we rely heavily on sensory data in building that picture,
if we have to sacrifice some sensory data in order to achieve a scientific
picture that makes a little more sense — if we have to decide that, despite
initial appearances, the earth isn't flat, the sun doesn't circle it, and
tables aren't continuously solid all the way down — then some of what the
senses tell us may have to be scrapped for the sake of a more intellectually
satisfying theory.
Likewise, our evolutionarily-implanted moral impulses are one of the
most important sources of our beliefs about how we ought to live. But we
are not confined to the instinctual level. Our capacity for reason drives
us to try to build up a conceptual picture of right and wrong that makes
sense; and although we rely heavily on innate impulses in building that
picture, if we have to disregard some of our innate impulses in order to
achieve a moral picture that makes a little more sense — if we have to
decide that, despite our initial impulses, we shouldn't kill animals for
food — then some of what our moral instincts tell us may have to be scrapped
for the sake of a more intellectually satisfying ethic. Once again, a purely
evolutionary account of our sense of morality, however illuminating, will
be importantly incomplete.
Natural Law: the product of cultural evolution?
In any case, the ratio of learned behavior to instinctual behavior is
higher in humans than in any other known organism.17
So it's not surprising that many defenders of the evolutionary objection
to Natural Law have chosen to focus on cultural evolution rather than natural
evolution. As this version of the objection has it, our moral attitudes
are by and large the result not of natural selection acting on species,
but of natural selection acting on ways of doing things. Cultural
practices that promote their society's survival tend to survive themselves,
both because the society where they originated survives and keeps those
practices, and because other societies notice their success and start imitating
them. Harmful social practices, by contrast, tend to undermine a society's
chances of survival; the society is more likely to perish, and other societies
are more likely to avoid the practice because failed societies have less
prestige and so attract fewer imitators. Thus the harmful practice dies
out.
I think there is a core of profound truth to this argument. It exemplifies
the classical liberal insight — developed in different ways by writers
like John Stuart Mill, Michael Polanyi, Friedrich Hayek, and Bruno Leoni
— that competition is above all a discovery process. Still, the argument
has its limits. To borrow a comparison from David Ramsay Steele:18
it is true that organisms with beneficial parasites are more likely to
survive than organisms with harmful parasites, but it would be rash to
conclude from this that existing parasites are likely to be beneficial.
The fact that a given society has survived is no proof that any particular
practice
of that society is beneficial.
This caveat applies to any evolutionary approach, whether biological
or cultural; but cultural evolution in particular faces special problems
as an explanatory factor. In biological evolution, mutations arise slowly
and incrementally; no species sprouts wings or antlers overnight. Thus,
when we see organisms with wings or antlers we can be sure that these features
have developed over many thousands of generations, and so the hypothesis
that these features are beneficial, or at least not inimical, is a salient
one. But in cultural evolution, mutations — i.e., new ideas and practices,
or what Richard Dawkins calls memes — are often the product of human
thought and can emerge fully developed in a single generation (examples:
Islam, the U. S. Constitution, the paper clip), and so the presence of
a meme is very weak evidence that it's been reliably selected for by evolutionary
pressures.
Worse yet, because memes, unlike genes, can reproduce via imitation,
a particular meme can spread and survive even if it kills off its host
group. The fact that a meme is good at ensuring its own survival
is no guarantee that it will be equally effective at ensuring the survival
of groups who adopt it.
For example, as the Roman Empire grew more centralized and authoritarian,
it so weakened its economic and cultural base that it essentially self-destructed,
unable to fend off marauding tribes that in earlier years it could have
crushed without blinking. Yet the fall of stagnant, ossified, hierarchical
Rome did not put an end to the Roman centralist meme, which continued to
attract admirers and imitators over the centuries. Having destroyed its
original host, the imperial virus propagated, infecting countless societies
from the Byzantine Empire to the Thousand-Year Reich, killing them off
in turn.
When we read the 14th-century Italian poet Dante singing the praises
of world government in his treatise De Monarchia, looking specifically
to Rome as his model, or treating the assassination of Caesar, in his famous
Inferno,
as a crime comparable in seriousness to the betrayal and crucifixion of
Christ,19 we recognize that the staying power of a meme
may have little to do with its success in promoting the survival of societies
that adopt it. And a glance at our own sprawling reproduction — both architectural
20 and political — of ancient Rome in full imperial
splendour on the banks of the Potomac bodes ill for the future of the United
States.
The hazards of victory: lessons from history
This distinction between the success of memes and the success of societies
that adopt those memes provides one possible response to a worry posed
by Rich Hammer that if we make anything other than evolutionary success
our normative standard, we run the risk of endangering our own welfare:
But, leaving aside the issue of violence toward outsiders, is it at
least true that dominant societies manage to minimize violence and coercion
within
the group? Not necessarily. Once a given society achieves a position
of dominance over other cultures, it tends to squelch the competitive process
that brought it to power (by conquering the competitors); and once competitive
pressure is diminished, the presumption that the dominant society's practices
enjoy the continued blessing of evolutionary selection must inevitable
be weakened.
Such a society's status is rather like that of a business enterprise
whose efficiency and innovation earns it success on the free market — but
which then uses its newfound resources, the fruits of its competitive success,
to lobby government for laws insulating it from competition. Once such
laws are passed, the company's incentives change, and it grows inefficient
and lazy because it can now afford to. It would then be a mistake to assume
that the company's continued dominance makes its top-down management structure,
unimaginative product design, and lack of responsiveness to customers a
useful model for would-be entrepreneurs to imitate.
In short, a society's dominance does not guarantee, and may even undercut,
its efficiency in any particular area, including the minimization of violence
and bloodshed. Indeed, the following pattern is a common one throughout
history:
Holding Group B in subjection is an expensive proposition; it requires
conscription, tax hikes, and perhaps a military-industrial complex, all
burdens that will end up being shouldered by the population of Group A.
Keeping an eye on potential troublemakers from Group B requires a system
of surveillance and documentation that the rulers of Group A can later
use against their own citizens. Those within Group A who criticize the
treatment of Group B threaten A's dominance over B and may find themselves
subject to censorship. Free economic transactions between members of A
and members of B may result in improvements of B's economic status that
empower it to start resisting A's authority, so the freedom of A's members
to deal with B's members will also need to be curtailed. And so on.
In the ancient world, Sparta and Rome provide paradigmatic examples
of this dynamic at work. Both began as vigorous, progressive centers of
trade and culture, but the need to maintain control over subject populations
(the Helots, in the case of Sparta; the Empire, in the case of Rome) turned
Sparta into a grim military collective and Rome into a bureaucratic, dictatorial
police state.
But there are examples closer to home as well. Consider the case of
the American Civil War. For centuries, white settlers had been using the
expanded options bequeathed to them by the progress of Western civilization
to hold blacks in servitude. Then the American Revolution brought a dramatic
increase of freedom to whites throughout the colonies. Northern whites,
still riding the wave of revolutionary libertarian fervor, actually used
their newly expanded options to increase the options of blacks,
by enacting a series of laws leading ultimately to the abolition of slavery
in the North. But in the more agrarian South, where slavery was more deeply
entrenched, whites were less attracted to the cause of the emancipation
(though they often paid it lip service).
Later economic and political developments cemented Southern whites'
attachment to slavery still more firmly. Specifically, Eli Whitney and
Katharine Greene's invention of the cotton gin made plantation farming
more profitable, while the Constitution's three-fifths compromise (treating
each slave as three-fifths of a person for purposes of representation)
gave slave states a disproportionate voting bloc in Congress, and thus
an added incentive to continue slavery. In order to take advantage of the
expanded economic options offered by the cotton gin and the expanded political
options offered by the three-fifths compromise, whites in the slave states
needed to make sure that blacks' options remained severely limited.
But to maintain the slave system, the South had to retreat from the
libertarian principles of Jefferson and the revolution. Southern governments
found it necessary to impose greater and greater restrictions on the civil
and economic liberties of whites in order to keep blacks in subjection.
Many states made it illegal for slaveowners to free their slaves; and there
was soon no freedom of speech or press for whites who advocated abolition.
In some cases, speaking against slavery was punishable by death.
Once secession finally came and the Confederacy was established, suppression
of white freedoms grew even greater, as the central government, in the
name of military necessity, extended its controls over every aspect of
life. Internal passports were required for travel, traditional civil rights
like habeas corpus were suspended, currency was devalued, and most sectors
of the economy were nationalized. In their desperate quest to maintain
their control over blacks, Southern whites found themselves compelled to
establish an authoritarian political order that ended up claiming their
own freedom as well.
This retreat from the principles of the American Revolution in political
practice
was accompanied by a parallel deterioration in political
theory
as well. During the 1810s and 1820s, the great intellectual spokesman
for the South — the defender of agrarian interests against Federalist neomercantilist
regulation — was John Taylor of Caroline (author of Arator,
Tyranny
Unmasked, and An Inquiry into the Principles of Government),
whose political outlook was deeply Jeffersonian and libertarian — with
the predictable exception of a massive blind spot about slavery. Taylor
refused to face the tension between the principles of the Declaration of
Independence and the institution of slavery; but later Southern intellectuals
would face that tension — and resolve it in the wrong direction.
In the 1830s and 1840s, the ideological champion of Southern interests
was not John Taylor but John C. Calhoun (author of A Disquisition on
Government and A Disquisition on the Constitution). To his credit,
Calhoun was a fierce opponent of centralized power, and came up with some
rather ingenious ideas for curbing its growth (e.g., veto rights for minority
factions); to this extent, Calhoun stood squarely in the Jeffersonian tradition.
But the need to avoid that tradition's radical implications for the legitimacy
of slavery drove Calhoun to repudiate the principles of '76. Human rights,
Calhoun maintained, rest on legal custom, not on the Laws of Nature — and
the exercise of political authority does not depend for its legitimacy
on the consent of the governed, but is a natural and inevitable feature
of the human condition. By tossing the Declaration of Independence out
the window, Calhoun was able to develop a Southern political ideology that
could accommodate the institution of slavery. (Blacks were not one
of the minority factions to whom Calhoun contemplated offering veto rights!)
The process of decay did not stop there. In the 1850s, the new ideological
spokesman for the South was the arch-communitarian George Fitzhugh (author
of Cannibals All! or Slaves Without Masters and Sociology for
the South, or the Failure of Free Society). In Fitzhugh's system, the
need to justify slavery resulted in a full-scale assault on the Jeffersonian
tradition in all its aspects; every vestige of libertarianism was methodically
uprooted. Combining the right-wing nostalgia for an idyllic traditionalist
feudal past and the left-wing hunger for a scientifically organized socialist
future, Fitzhugh championed the Society of Status — an organic, hierarchical
view of society in which every person has an assigned social role that
carries with it both compulsory duties of obedience to one's superiors
and a guarantee of support, security, and paternalistic oversight from
those same superiors. Black slavery, in Fitzhugh's vision, was just a special
case of the general principle that no person, black or white, is entitled
to be the master of his or her own destiny.
Not all defenders of slavery accepted Fitzhugh's philosophy, of course;
but the general way of thinking which his works represented was becoming
pervasive in Southern society. By 1862, the Confederate journal De Bow's
Review was trumpeting the slogan "The State is everything, the individual
nothing." (Some of the people who wear the Confederate flag on their jackets
might want to think that one over.) The need of the Southern white culture
to maintain dominance over its black population had led it to adopt principles
which ended up threatening the freedom of its own white members.
It was not inevitable that Southern whites would choose to close their
eyes to the injustice of slavery. That was their choice to make, and they
made it. What was inevitable, or close to inevitable, was that this choice,
once made, would have costly consequences — that it would have a corrupting
influence on both their institutions and their ideals. When we find ourselves
in a position of dominance over others, we cannot afford to excuse our
authority on the grounds that the struggle for survival has favored us.
We cannot afford to follow Calhoun and Fitzhugh in rejecting the Natural
Law that all human beings are entitled to equal respect, regardless of
who has been dealt the winning hand. For if we do, we run the risk of destroying
not only their freedom but, in the long run, our own.
I don't mean to be giving the Union a free ride here. In the Civil War,
both
the North and the South decisively turned their backs on the ideals
for which the American Revolution had been fought. 21
The North's drive to subjugate the South had an effect on the North analogous
to the effect the South's drive to preserve slavery had on the South. More
authority was centralized in Washington; civil liberties were routinely
violated; income taxation and Federally administered conscription were
introduced; and an ominous cult of national unity spread through the American
consciousness. The result was a Federal government with vast new powers
— a fledgling Leviathan that quickly proved too tasty a treat not to be
captured by the corporate élite. And so we are left, at the end
of the twentieth century, with a burgeoning American police state whose
primary victims, ironically, are the very blacks whose liberation was supposed
to be the moral justification of Union victory.
The moral of this long historical digression is that when a society
acquires a dominant position, the prospects for freedom can sometimes become
not less but more precarious, first for the society's neighbors and second
(as a result of the need to keep those neighbors in subjection) for the
society's own members. Hence we are trusting in a weak reed if we rely
on the process of cultural evolution to secure freedom for ourselves or
our neighbors. If we want the meme of liberty to prevail, we must take
the initiative and work to promulgate it, taking as our guide the polestar
of Natural Law. D
But the two senses are sometimes
linked. For example, it is a natural law, in the descriptive sense, that
if you stick your hand in the fire you'll get a sensation you won't like;
and insofar as this is taken as a reason for not sticking your hand in
the fire, the causal connection might also be counted as a Natural Law
in the normative sense.
The term "natural law" has gotten
an unusual amount of press lately because of the increasing prominence
of the Natural Law Party, and some may wonder what the relation is, if
any, between the sort of Natural Law I'm defending and the sort that the
Natural Law Party is talking about. In the recent U.S. campaign, representatives
of the Natural Law Party remarked that they agreed with America's founders
that public policy should be based on Natural Law. Now America's founders
were heavily influenced by Natural Law theorists like Cicero and John Locke,
and when they talked about Natural Law they usually (though not always
— they were fans of Newtonian physics too) meant it in the normative sense,
as when the Declaration of Independence states in its preamble that the
"Laws of Nature and of Nature's God" entitle the American colonists to
secede from the British empire. I don't know much about the Natural Law
Party's beliefs, but given their emphasis on "scientifically proven solutions,"
and their repeated statement that "government should be based on what works,"
my impression is that they are instead talking primarily about natural
law in the descriptive sense, and that what they mean is that public policy
should be framed in the light of accurate information about how the world
works. So to that extent I don't think the Natural Law Party is talking
about Natural Law in the same sense I mean here.
On the other hand, there does appear
to be a religious — specifically, a Hindu-influenced — dimension to the
Natural Law Party's perspective (its founder and recurring Presidential
candidate John Hagelin teaches at the Maharishi University in Fairfield,
Iowa, and such spiritual practices as transcendental meditation and yogic
flying are central to the party's policy proposals), so it's possible that
some of the Natural Law candidates' remarks about the need to bring our
political system into accordance with Natural Law should be interpreted
as a call to reform our system in the light of a moral order inherent
in the universe (the existence of such an order, Dharma, is a central tenet
of Hinduism), in which case the Natural Law Party's perspective would count
as a version of normative Natural Law theory after all. But once again,
my information about the Natural Law Party is too sketchy for me to offer
any interpretation with confidence.
This notion of Natural Law as self-enforcing
does still add a normative element on top of the de facto element, though.
It's one thing to say that if you do X, you will receive punishment Y.
It's another thing to say that punishment Y is so bad that it's not worth
it to do X. This last is a normative judgment; it says that the
badness of Y outweighs the goodness of X. That's something that no merely
de facto theory is qualified to pass judgment on. So even if all normative
rights turned out to be de facto rights of a sort, their status as normative
rights would not be reducible to their status as de facto rights.
The first argument can be taken from the evidence of Aristotle
at Nicomachean Ethics, Book I, chapter 7, where he says that "the proper
function of man is the activity of the soul according to reason"; for once
he had proved by various examples that there is a proper function for each
thing, he inquired what this proper function is in the case of man; this
he sought through an account of all the operations of the faculties both
vegetative and sentient, which are common to men along with animals and
plants. He arrives finally at the proper conclusion that the function
of man is activity according to reason; consequently man must perform those
actions which are dictated by reason. Likewise in Book V, chapter
7, in his division of law into civil and natural, he says that "this natural
law is that law which has everywhere the same force" ....
At this point, some object to the law of nature, claiming that
no such law exists at all, since it is discovered nowhere; for the greatest
part of mankind lives as if there were no guiding principle to life at
all .... if there were, in fact, a law of nature, knowable by the light
of reason, how does it happen that all men who are endowed with reason
know it not?
We reply: ... because a blind man cannot read a notice displayed
publicly, it does not follow that a law does not exist or is not promulgated,
nor because it is difficult for someone who has poor sight to read it;
nor because someone who is occupied with other matters does not have the
time, nor because it is not to the liking of the idle or vicious to lift
his eyes to the public notice and learn from it the statement of his duty.
I allow that reason is granted to all by nature, and I affirm that there
exists a law of nature, knowable by reason. But it does not follow
necessarily from this that it is known to each and all, for some make no
use of this light, but love the darkness .... But the sun itself reveals
the way to none but to him who opens his eyes .... Some men who are nurtured
in vices scarcely distinguish between good and evil, since evil occupations,
growing strong with the passage of time, have led them into strange dispositions,
and bad habits have corrupted their principles as well. Still others,
because of a defect of nature, have a keenness of mind too weak to allow
them to unearth these hidden secrets of nature. Indeed, how rare
is the man who yields himself to the authority of reason in matters of
daily life, or in things easily known, or follows reason's guidance?
For men are often driven off their proper course by the onrush of their
feelings or by their indifference and lack of concern or as they are corrupted
by their habitual occupations, and follow passively not what reason dictates
but what their low passions urge upon them. ...
What it is we must do we can infer... from the constitution of
man himself and the equipment of the human faculties, since man is not
made by accident, nor has he been given these faculties, which both can
and ought to be exercised, to do nothing. It seems that the function
of man is what he is naturally equipped to do; that is, since he discovers
in himself sense and reason, and perceives himself inclined and ready to
perform the works of God, as he ought, and to contemplate his power and
wisdom in these works .... Then, he perceives that he is impelled to form
and preserve a union of his life with other men, not only by the needs
and necessities of life, but he perceives also that he is driven by a certain
natural propensity to enter society and is fitted to preserve it by the
gift of speech and the commerce of language. And, indeed, there is
no need for me to stress here to what degree he is obliged to preserve
himself, since he is impelled to this part of his duty ... by an inner
instinct ....
— Questions on the Law of Nature
... we must consider what state all men are naturally in, and
that is a state of perfect freedom to order their actions and dispose of
their possessions and persons as they think fit, within the bounds of the
law of nature, without asking leave, or depending upon the will of any
other man.
A state also of equality, wherein all the power and jurisdiction
is reciprocal, no one having more than another: there being nothing
more evident than that creatures of the same species and rank, promiscuously
born to the same advantages of nature, and the use of the same faculties,
should also be equal one amongst another without subordination or subjection
....
The state of nature has a law of nature to govern it, which obliges
everyone. And reason, which is that law, teaches all mankind who
will but consult it that, being all equal and independent, no one ought
to harm another in his life, health, liberty, or possessions. ... being
furnished with like faculties, sharing all in one community of nature,
there cannot be supposed any such subordination among us that may authorize
us to destroy one another, as if we were made for one another's uses ....
For in the state of nature ... a man [may] do whatever he thinks
fit for the preservation of himself and others within the permission of
the law of nature; by which law, common to them all, he and all the rest
of mankind are one community, make up one society distinct from all other
creatures. And were it not for the corruption and viciousness of
degenerate men, there would be no need of any other; no necessity that
men should separate from this great and natural community, and by positive
agreements combine into smaller and divided associations.
— Two Treatises of Government
"Man, being born, as has been proved, with a title to perfect freedom and an uncontrolled enjoyment of all the rights and privileges of the Law of Nature, equally with any other man, or number of men in the world, hath by nature a power not only to preserve his property — that is, his life, liberty, and estate, against the injuries and attempts of other men, but to judge of and punish the breaches of that
This egalitarian distribution of political authority, Locke argues, is required by justice
unless individuals voluntarily relinquish their authority to a government. However, Locke thinks that people living in a state of anarchy
will find it rational to set up a government in order to gain greater security:
law in others, as he is persuaded the offence deserves .... each being, where there is no other, judge for himself and executioner ....""If man in the State of Nature be so free as has been said, if he be absolute lord of his own person and possessions, equal to the greatest and subject to nobody, why will he part with his freedom, this empire, and subject himself to the dominion and control of an other power? To which it is obvious to answer, that though in the State of Nature he hath such a right, yet the enjoyment of it is very uncertain and constantly exposed to the invasion of others; for all being kings as much as he, every man his equal, and the greater part no strict observers of equity and justice, the enjoyment of the property he has in this state is very unsafe, very insecure. This makes him willing to quit this condition which, however free, is full of fears and continual dangers; and it is not without reason that he seeks out and is willing to join in society with others who are already united, or have a mind to unite for the mutual preservation of their lives, liberties and estates, which I call by the general name — property. The great and chief end, therefore, of men uniting into commonwealths, and putting themselves under government, is the preservation of their property; to which in the State of Nature there are many things wanting."
(II. ix. 123-124.)
Locke then goes on to list what he sees as the three principal defects of the state of natural anarchy. Although he does not point this out explicitly, the three defects appear to correspond to the three functions of law that I have been discussing, and I have labeled them accordingly:
"Imagine that you and I disagree about the substantive requirements of social justice. We then differ as to how the concept of justice applies; we differ, that is, about the principles of justice. This is possible if the concept of justice admits of different interpretations, or competing conceptions. ... Now consider a constitutional example. ... a court applying the just compensation clause would not necessarily decide a case as the original authors would have done .... Instead, a court would understand the Constitution to mean precisely what it says and thus to require
just compensation. A court would need to defend a particular conception of just compensation ... against the most plausible alternatives. ... Contested concepts do not seem confined to morality and law. Their properties are at any rate similar to those of concepts referring to natural substances or phenomena, such as water and heat. On a plausible understanding of the development of science, for example, the caloric and kinetic theories of heat are (or at one time were) competing conceptions of the concept heat. ... If, as most people would agree, 'heat' refers to a determinate physical phenomenon, there can be, in principle, a best theory of heat. This implies that there can be a best conception of a contested concept. This suggests, in turn, that contested concepts in the Constitution might have best interpretations. ... Now if the idea that the Constitution includes contested concepts is correct, then to apply the Constitution in terms of their best interpretation is, in effect, to apply doctrines whose application is called for by the original Constitution. But, just as interpretation of the concept heat requires more than mere reflection, any interpretation of this type inevitable draws upon resources that are neither implicit in the text nor purely linguistic. It .... requires that courts applying 'vague clauses' of the Constitution interpret 'contested concepts,'
which requires reasoning about moral or political principles."
Two Senses of Law
Law vs. Legislation: Documentary Evidence
"Since it is by law that what is legislated is legislated, in virtue of
law's being what is this legislated? Is it in virtue of its being some awareness, or some showing, as what is learned is learned through the science that shows it? ... Aren't right, and law, most fine? ... And wrong, and lawlessness, most shameful? ... And the former preserves states and all other things, while the latter destroys and overturns? ... So one ought to think of law as something fine, and seek it as good? ... So it wouldn't be appropriate for the wicked official judgment to be law. ... And yet even to me law seems to be some sort of judgment; but since it's not the wicked judgment, isn't it clear that law, if indeed it is judgment, is the worthy? ... And what is worthy judgment? Is it not true judgment? ... Isn't the true, the discovery of what is so? ... Law, then, wishes to be the discovery of what is so .... but men, who (so it seems to us) do not at all times use the same laws are not at all times capable of discovering what the law wishes: what is so. ... What's right is right and what's wrong is wrong. And isn't this believed by everyone ... even among the Persians, and always? ... What is fine, no doubt, is everywhere legislated as fine, and what is shameful as shameful; but not the shameful as fine or the fine as shameful. ... And in general, what is so, rather than what is not so, is legislated as being so, both by us and by everyone else. ... So he who errs about what is so, errs about the legal. ... So in the writings about right and wrong, and in general about ordering a state and about how a state ought to be organized, what is correct is royal law, while what is not correct, what seems to be law to those who lack knowledge, is not, for it is lawless."
"But what is violence and lawlessness, Pericles? Isn't it when the stronger party compels the weaker to do what he wants by using force instead of persuasion? ... Then anything a despot enacts and compels the citizens to do instead of persuading them is an example of lawlessness? ... And if the minority enacts something not by persuading the majority but by dominating it, should we call this violence or not? It seems to me that if one party, instead of persuading another, compels him to do something, whether by enactment or not, this is always violence rather than law. Then if the people as a whole uses not persuasion but its superior power to enact measures against the propertied classes, will that be violence rather than law?"
"I find that it has been the opinion of the wisest men that law is not a product of human thought, nor is it any enactment of peoples, but something eternal .... From this point of view it can be readily understood that those who formulated wicked and unrighteous statutes for nations, thereby violating their trust and compact, put into effect anything but
laws.
It may thus be clear that in the very definition of the term law there inheres the idea and principle of choosing what is right and true. ... What of the many deadly and pestilential statutes which nations put in force? These no more deserve to be called laws than the rules a band of robbers might pass in their assembly. For if ignorant and unskillful men have prescribed deadly poisons instead of healing drugs, these cannot possibly be called physicians' prescriptions."
"Jurisprudence is acquaintance with things human and divine, the knowledge of what is right and what is wrong. ... These are the precepts of the law: to live rightly, not to wrong another, and to render to each his own."
"The Roman jurist was a sort of scientist: the objects of his research were the solutions to cases that citizens submitted to him for study, just as industrialists might today submit to a physicist or to an engineer a technical problem concerning their plants or their production. Hence, private Roman law was something to be described or to be discovered, not something to be enacted — a world of things that there were, forming part of the common heritage of all Roman citizens. Nobody enacted that law; nobody could change it by any exercise of his personal will."
"The Anglo-Saxon courts, called
moots, were public assemblies of common men and neighbors. The moots did not expend their efforts on creating or codifying the law; they left that to custom and to the essentially declaratory law codes of kings. ... As in other customary legal systems, the moots typically demanded that criminals pay restitution or composition to their victims .... The law codes of early medieval Europe consisted largely of lists of offenses and the corresponding schedules of payments. In issuing these, Kings were not legislating in the modern sense: they were rather codifying and declaring already existing custom and practice."
"When a case arises for which no valid law can be adduced, then the lawful men or doomsmen will make new law in the belief that what they are making is good old law, not indeed expressly handed-down, but tacitly existent. They do not, therefore, create the law: they 'discover' it."
"As Augustine says, that which is not right seems to be no law at all; wherefore the force of a law depends on the extent to which it is right. ... Consequently, every human law has the nature of law only to the extent that it is derived from the law of nature. But if, in any point, it deviates from the law of nature, it is no longer a law but a perversion of law. ... when an authority imposes on his subjects burdensome 'laws' conducive not to the common good but rather to his own cupidity and vainglory .... the like are acts of violence rather than laws .... wherefore such 'laws' do not bind in conscience .... A tyrannical government is not right ... Consequently, there is no sedition in disturbing a government of this kind .... Indeed, it is the tyrant, rather, that is guilty of sedition .... If a thing is of itself contrary to natural right, the human will cannot make it right ..."
"A human legislator does not have a perfect will, as God has; and therefore ... such a legislator may sometimes prescribe unjust things, a fact which is manifestly true; but he has not the power to bind through unjust laws, and consequently, even though he may indeed prescribe that which is unjust, such a precept is not law, inasmuch as it lacks the force or validity to impose a binding obligation."
"Nihil quod est contra rationem est licitum: nothing which is against reason is lawful. It is a sure maxim in law, for reason is the life of law."
"These are the eternal, immutable laws of good and evil, to which the creator himself in all his dispensations conforms; and which he has enabled human reason to discover, so far as they are necessary for the conduct of human actions. Such among others are these principles: that we should live honestly, should hurt nobody, and should render every one its due; to which three general principles Justinian has reduced the whole doctrine of law. ... [God] has graciously reduced the rule of obedience to this one paternal precept, 'that man should pursue his own happiness.' This is the foundation of what we call ethics, or natural law. ... This law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding all over the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original. ... Those rights then which God and nature have established, and are therefore called natural rights, such as are life and liberty, need not the aid of human laws to be more effectually invested in every man than they are; neither do they receive any additional strength when declared by the municipal laws to be inviolable. On the contrary, no human legislature has power to abridge or destroy them .... For that legislature in all these cases acts only, as was before observed, in subordination to the great lawgiver, transcribing and publishing his precepts. ... [A judge is] sworn to determine, not according to his own private judgment, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one. Yet .... if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was
bad law, but that it was
not law; that is, that it is not the established custom of the realm ...."
"But let the origin of government be placed where it may, the
end
of it is manifestly the good of
the whole. Salus populi suprema lex esto [let the welfare of the people be the supreme law], is of the law of nature .... To say the parliament is absolute and arbitrary, is a contradiction. The parliament cannot make 2 and 2, 5: Omnipotency cannot do it. The supreme power in a state, is
jus dicere [to state the right] only: —
jus dare [to give the right] strictly speaking, belongs alone to God. Parliaments are in all cases to
declare what is for the good of the whole; but it is not the
declaration of parliament that makes it so: There must be in every instance, a higher authority,
viz. GOD. Should an act of parliament be against any of
his natural laws, which are immutably true, their declaration would be contrary to eternal truth, equity and justice, and consequently void: and so it would be adjudged by the parliament itself, when convinced of their mistake. Upon this great principle, parliaments repeal such acts, as soon as they find they have been mistaken, in having declared them to be for the public good, when in fact they were not so."
"... justice is an immutable, natural principle; and not anything that can be made, unmade, or altered by human power. ... It does not derive its authority from the commands, will, pleasure, or discretion of any possible combination of men, whether calling themselves a government, or by any other name.
"I deny that legislators make
law.
They create legal Acts, statutes, which may or may not coincide with real Law, and in fact seldom do. ... the great majority of such legislative Acts are intended to prevent or hamper or stop harmless and useful human action, so the enforcement of them has that lamentable effect."
I do not expect the nine steps I've just set down to persuade anyone;
what I've just offered is not an argument but an outline for an argument,
and each step would have to be filled in with a lot more detail and backed
up by further arguments in order to be convincing. Indeed, this project
is one I'm pursuing in my own philosophical research. The point of setting
down these nine steps here is simply to show what kind of metaphysical
basis I think can be given for Natural Law (and in particular to show that
no supernatural basis is required).
(Wilson, pp. 33-36.)
("The Sense of Right and a Man-to-Man Talk With
Archy About Women," Formulations, Vol. IV, No. 1 (Autumn 1996),
p. 37.)
("Might Makes Right," pp. 15-16.)
1 It's worth noting that
there is another common sense of "natural law," according to which the
basic causal laws that govern the universe are called natural laws. These
two concepts are distinct. In the causal conception, natural law is descriptive;
it tells what actually happens. But Natural Law in the sense I'm concerned
with here is normative; it tells what ought to happen.
2 Descartes thinks he has
a way out of this, that he can stop the regress with some beliefs (e.g.,
my belief that I exist) that are self-evident and not subject to doubt.
But the principle that starts off the regress — the Cartesian principle
that belief is justified only when we can rule out all possibility of error
— does not seem to be one of the beliefs that are self-evident and not
subject to doubt, so it's still not clear why we should believe it.
3 It's worth noting, however,
that there are some versions of Natural Law theory that see Natural Law
as a self-enforcing set of rules, and thus see natural rights as de facto
rights of an odd sort, with the universe rather than society doing the
enforcing. According to these views, violations of Natural Law will be
punished — perhaps by God (you'll be sent to Hell for having sex with the
wrong person), perhaps by nature (if you break the Natural Law against
walking off a cliff, you'll be punished with death or injury), perhaps
by the Law of Karma (if you sin in this life you'll be punished by being
reincarnated as something icky in your next life), perhaps by the very
fact of being a worse person (if you act wickedly, your punishment is your
wicked condition itself, which is far less desirable than the condition
of being virtuous; as Socrates puts it, the worst possible punishment is
to have a corrupted soul). And if violations of natural rights are reliably
punished, then those natural rights do start to look rather like de facto
rights, at least to the extent (often minimal, alas) that the prospect
of such punishment actually deters rights-violations.
4 On the other hand, there
is one more piece of evidence for (a). Noting that our ancestors and our
civilization survived because of their success in the competitive struggle
for existence, Rich says: "If you argue for a different mode of selection,
you argue against the process which brought you and me here. We enjoy life,
health, and leisure to discuss this subject because of the process which
has brought us here." (p. 16.) Rich might be interpreted as saying that
the value we place on our own lives and welfare commits us to valuing
the triumph of superior might, because it is only through the latter's
having prevailed that we are able to enjoy the former — and that accordingly
we should always cheer for the stronger power, even when that power opposes
us. But I doubt that this passage will bear the weight of so strong an
interpretation.
5 Incidentally, this is what
is wrong with the argument (parodied in the subtitle of Wilson's book)
put forward by some Natural Law theorists that condemn contraception on
the grounds that reproduction is the natural end of sexual intercourse.
Our genes gave us a sex drive on the strategic grounds that beings with
a sex drive are more likely to reproduce. So reproduction was our genes'
goal in giving us a capacity for sexual desire, but the natural end of
sexual intercourse considered in itself is intercourse, not reproduction.
6 Isn't being human an all-or-nothing
condition, rather than a matter of degree? Well, I would reply that humanness
is like size. In one sense, size is an all-or-nothing condition; either
something has size or it doesn't. Still, among things that do have size,
some have greater size than others. By the same token, in one sense being
human is an all-or-nothing condition; either a life is human (i.e., if
it is the life of a human being) or it isn't — but among human lives, some
lives exemplify that humanness to a greater extent than others.
7 For more discussion of
this point, see my "Punishment vs. Restitution" (Formulations, Vol. I, No. 2 (Winter 1993-94)) and "Slavery Contracts and Inalienable Rights" (Formulations, Vol. II, No. 2 (Winter 1994-95)).
8 I am indebted to Nicholas
Sturgeon, Richard Boyd, and Robert Adams for many of the ideas that follow.
9 Wilson's phraseology here
suggests he is an adherent of the old positivist notion of verificationism,
which held that a statement is meaningful only if it can be tested empirically.
Wilson doesn't say how he would reply to the standard objection to verificationism,
namely that by this criterion the verificationist doctrine itself is meaningless.
(Another cure for verificationism is to consider how you would react if
you were listening in on creatures from another dimension who were incapable
of detecting you, and hearing them conclude that the hypothesis of your
existence was not only implausible (which would be fair enough) but meaningless.)
10 I say "probably" because
the extent of dissent within the natural sciences is difficult to assess,
given that such dissent is made invisible by our social customs in a way
that dissent within the field of ethics is not. For example, if a self-proclaimed
scientist argues that the earth is flat or that the Rocky Mountains are
an avant-garde sculpture carved by visitors from Venus, we decline to continue
calling him a scientist, or to grant that what he is doing is science;
but if a self-proclaimed ethicist argues that the human race is a cancer
on the earth and should be annihilated, then even if we disagree with his
position, we still grant him the title of ethicist and say he is doing
ethics. As a result, disagreement over scientific matters is rendered less
visible than disagreement over ethical matters. (The real test of "genuine
science" in our culture, I suspect, is whether it can produce military
technology for the government.)
11 I say this with caution,
as some of Wilson's other writings suggest a skepticism about the concept
of objective reality as such. Still, he does often write as though he thinks
statements about causal interactions in space and time have a kind of objectivity
to them that normative statements do not.
12 In particular, the following
provision seems to do everything we need the reliability condition to do,
without excluding moral knowledge: "The belief must not depend for its
justification on the presence of beliefs that are false or the absence
of beliefs that are true."
13 Strictly speaking, my
own position is neither consequentialist nor deontological but virtue-ethical;
but on most issues, and certainly on the present issue, it comes closer
to the deontological side, and so I will ignore the differences here (especially
since Immanuel Kant, usually regarded as the paradigmatic deontological
theorist, counts as a virtue-ethicist by my lights, since he justifies
moral rules in terms of the virtuous attitude they express, rather than
justifying the virtuous attitude in terms of its being a disposition to
obey the right rules). For more about these distinctions, see my "Slavery
Contracts and Inalienable Rights" (Formulations, Vol. II, No.
2 (Winter 1994-95)) and "Inalienable Rights and Moral
Foundations" (Formulations, Vol. II, No. 4 (Summer 1995).
14 Another way of putting
the objection is that if our moral attitudes are the result of evolution,
then we would have the moral attitudes we have whether or not they accurately
reflected a transcendent moral truth, in which case moral beliefs fail
to meet the reliability criterion for knowledge, i.e., the connection between
our believing something to be wrong and its actually being wrong is purely
accidental.
15 Actually, I'm puzzled
by the beauty example too. It seems to work only if we limit beauty to
the narrow case of sexual attractiveness. An evolutionary explanation is
pretty plausible when it comes to Rich's preference for human females over
cockroach females. But if someone finds Mozart's music more beautiful than
Haydn's, it's less obvious that an evolutionary explanation must be in
the offing. What would such an explanation look like?
16 Please note that these
are only examples; I am not making any claims about how human evolution
actually occurred. In fact, many of our most basic tendencies may have
evolved when our ancestors were still herbivorous. And in particular, I
doubt that our earliest ancestors were inclined to believe anything so
highminded as (1); indeed, they may well have held to an ethic of cooperation
within the group and indifference or hostility to those outside the group.
If so, then the widespread modern attitude that cooperation should be extended
(at least to some degree) to all fellow humans may be in part the result
of moral insight, the recognition that the differences between insiders
and outsiders are not significant enough to warrant such a disparity in
treatment.
17 For discussion, see "The
Return of Leviathan" (Formulations, Vol. III, No. 3 (Spring
1996)).
18 Let me take this opportunity
to recommend, to anyone interested in the subject, David Ramsay Steele's
illuminating article "Hayek's Theory of Cultural Group Selection" (Journal
of Libertarian Studies, Vol. VIII, No. 2 (Summer 1987), pp. 171-195),
one of the best discussions I've seen of the uses and abuses of cultural
evolution arguments.
19 At the lowest circle of
Hell (Inferno, Canto XXXIV), the three jaws of Satan are forever
gnawing on the three greatest traitors of all time: Judas (the betrayer
of Christ) — and Brutus and Cassius (the betrayers of Cæsar). This
from a supposedly Christian author, in adulation of the Roman imperial
system under whose laws Christ was executed and thousands of early Christians
martyred! The only indication that Judas' crime might be a notch more serious
than that of the two tyrannicides is that Judas has his head inside Satan's
mouth and his legs out, while Brutus and Cassius are in the presumably
comfier head-out legs-in position. (Ironically, the European cultural flowering
that produced artists like Dante — and laid the groundwork for the Renaissance
and the Scientific Revolution — seems to have been largely a result of
the West's political decentralization and fragmentation, reflecting precisely
the extent to which Dante's society had (thankfully) failed to assimilate
the Roman centralist meme.)
20 Most of the classical
marble government edifices that seem so definitive of Washington, D.C.,
date not from the time of the Founding but rather from the Progressive
Era (roughly, the late 19th and early 20th centuries), when America's romance
with fascism and imperialism was just getting into full swing.
21 Apologists for the North
like to think that the Civil War was primarily about slavery, because this
puts the Union cause in the most attractive light. Apologists for the South
like to think that the Civil War had almost nothing to do with slavery,
because this puts the Confederate cause in the most attractive light. The
actual truth casts the least flattering light possible on each side: the
preservation of slavery was central to the South's motives for seceding,
but the elimination of slavery was only peripheral to the North's motives
for invading. For a penetrating libertarian analysis that focuses on the
political, economic, and cultural rather than the military aspects of the
conflict, and avoids the temptation to glamorize either the North or the
South, see Jeffrey Rogers Hummel's Emancipating Slaves, Enslaving Free
Men: A History of the American Civil War (Chicago: Open Court, 1996).
(The bibliographical essays alone are worth the price of the book.)