The Nature of Law
Part IV: The Basis of Natural Law
by Roderick T. Long
(to table of contents of FNF archives) (to start of Part IV)
Outline (all four parts)
Part I: Law and Order Without Government
- Varieties of Law
- Public Goods vs. Public Choice
Part II: The Three Functions of Law
- Why Three Functions?
- Should Law Be Monopolized?
- Locke's Case for Monocentric Law
- The Lockean Case Against Locke
Part III: Law vs. Legislation
- Socrates on Law
- Two Senses of Law
- Natural Law and Human Law
- Natural Law and Customary Law
- Law vs. Legislation: Documentary Evidence
Part IV: The Basis of Natural Law
- Is There Room for Natural Law?
- Who Has the Burden of Proof?
- Objection One: Natural Law Serves No Useful Purpose
- Objection Two: There Couldn't Be Such a Thing as Natural Law
- Objection Three: Even If There Were a Natural Law, It Would Be Unknowable
- Objection Four: Evolutionary Explanations Make Natural Law Obsolete
- John Locke on Natural Law
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Part IV: The Basis of Natural Law
Is There Room for Natural Law?
In previous installments of this series (Vol. I, No. 3; Vol. I, No. 4; Vol. II, No. 1), 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 Or is it hopelessly outdated, an unscientific remnant of a mediæval way of thinking?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).
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Who Has the Burden of Proof?
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.
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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:
• Legal rights: the claims that a given legal institution officially announces it will respect and protect.
• De facto rights: the claims that actually receive respect and protection in a given society.
b) The Chinese have a legal right to free speech, but no de facto right.
c) The Chinese have a normative right to free speech, but no de facto right.
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.
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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:
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:
1. Skeptics about the possibility of objective morality often say that we call things good or valuable simply because we desire them. But this treats desires as if they were simply blind impulses without any cognitive content. It seems more psychologically realistic to say that desiring something involves regarding that thing as good, valuable, choiceworthy. In other words, desire is a response to apparent value; the activity of desiring implicitly commits us to accepting the existence of objective values, i.e., values independent of our desires.
2. "Good" and "value" are inherently relational concepts; to be good or valuable is to be good for or valuable to someone. After all, normative concepts are action-guiding concepts, and thus are meaningless except in the context of an agent whose actions are to be guided.
3. Thus, each of us implicitly seeks goods that are both objective (i.e, not simply a function of one's subjective preferences) and agent-relative (i.e., not intrinsic impersonal goods, but ones that are goods for oneself).
4. A living organism — be it an azalea or an accountant — cannot be fully explained without appeal to that organism's "natural ends" or goals. As Darwin himself realized, this teleological approach is only buttressed, not discredited, by the theory of evolution through natural selection. Such natural ends provide the content to the objective, agent-relative goods our desires commit us to seeking.
5. Natural ends can be rank-ordered according to centrality and importance, which in turn are functions of teleological explanatory power. If A and B are both natural ends of mine, but A explains more about me than B does, or if the facts A explains about me are more central and essential to me then the facts B explains, then A is more my end than B is. Thus, for example, the capacity for reasoning explains a greater number of a human being's characteristics than the capacity for tuning pianos.
6. Just as the end for which a thing is used may not be its most explanatory end (e.g., if I use a pinecone as a paperweight, its goal of growing into a pinetree is still more explanatory, since it explains more about the internal causal structure that makes the pinecone the kind of thing it most fundamentally is, whereas the goal of holding papers down only explains the accidental and peripheral fact of the pinecone's being where it is, when it is), so likewise even the end for which a thing is created may not be its most explanatory end.
For example, a knife is designed to cut things. But suppose I make a knife in order to scare away potential aggressors. I have no intention of cutting anybody or anything with it; if my plan works, I'll never have to use it. Still the goal of cutting is more explanatory than the goal of scaring aggressors away; as in the pinecone case, the goal of cutting explains more about the internal causal structure that makes the knife the kind of thing it most fundamentally is, whereas the goal of scaring aggressors away only explains the accidental and peripheral fact of the knife's having come into existence where it did, when it did. Likewise, if a couple procreates in order to have a convenient slave, the fact that the child was created in order to be its parents' slave doesn't mean that that external end overrides the child's own internal ends.
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).
7. The primary natural end of a human being is not to reproduce more human beings, but to live one's life as a human being. But some lives — namely, the lives that more fully express the characteristics most fundamental and essential to being human — are more human than others.6 Since reason is a human being's most explanatory feature, a life is more human (and thus, more one's end) to the extent that it expresses reason, and so the life of reason is a human being's overriding natural end. (In particular, the rationality of a life is more important than the length of that life; longevity is only one value among others, and can be overridden.) Natural Law thus represents the rules for ascertaining what our proper goals are, and acting accordingly; and the binding force of Natural Law comes from the fact that we already implicitly desire the ends to which it gives content.
8. A life that exemplifies reason only in the means one chooses to achieve one's ends is not as human as one that exemplifies reason not only in the means to one's ends but in those ends themselves. Thus, whenever we choose to let our personal lives be guided by blind emotion rather than by thoughtful reflection, we are choosing a less human life over a more human one. And likewise, whenever we choose to deal with other people through violence or intimidation rather than by reason and persuasion, we are once again choosing a less human life over a more human one. In either case, we are defeating our own desire for our objective good. Hence our natural end commits us to preferring the life of reason and cooperation.
9. If we subordinate other people to our own purposes, treating them as prey or objects of manipulation rather than as equal partners to be dealt with through persuasion, we are choosing a life that is inferior by our own standards. Thus we are obligated to choose peaceful relations whenever peaceful relations are available; we are obligated not to impose our will on other people.
On the other hand, if we insist on renouncing violence even when peaceful relations are not an option — that is, if we refuse to defend ourselves from aggression — then we are declining to extend our lives even when we could do so without decreasing the humanity of our lives. Thus, while human beings are under an obligation to respect one another's autonomy, they are not under any obligation to refrain from forcibly defending their own autonomy.7 (Indeed, they may even be obligated to defend themselves, since we have other ends (such as self-preservation) which become imperative for us when they do not conflict with higher goals.) But this means that every human has an obligation to refrain from invading the freedom of every other human, and that it is permissible for the latter to defend this freedom by force against incursions from the former. In other words, every human being has a right to freedom — a natural right, one that derives from the Natural Law specifying our natural ends.
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).
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.
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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:
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."
(Wilson, pp. 33-36.)
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
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.
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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:
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:
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
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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.
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.
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 Sokrates 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.
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.
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.)
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John Locke on Natural Law
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
Roderick T. Long's mother made the mistake of teaching him at an early age Descartes' proof of his own existence. Roderick never recovered from this early infection, and still displays troubling symptoms of the philosophical meme today. Tragically, he now seeks to infect others, through his teaching post at the University of North Carolina.
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