In this paper I try to convince those who say they do not believe in natural rights that they are mistaken about their own beliefs. This sounds presumptuous. How can I know what someone else believes better than they do? The answer is that I am not questioning that they know better than I what they consciously believe. Instead, I contend that, whether they are aware of it or not, all normal people believe in natural rights at an emotional level.
I make this point in four different ways:
2. Your Conscience Implies That You Believe in Right and Wrong: I argue that normal people are aware (through introspection) that they have consciences and that a person's conscience constitutes his emotional belief in right and wrong.
3. Physical Evidence for the Moral Sense: There is some physical evidence that normal people have what I call a moral sense.
4. Belief in Morality Preceded Human Reason and Made
Reasoning Possible: I argue that the human belief in morality at
the emotional level (our moral sense) is not derived from society or from
reasoning. Instead, our moral sense came first, and it made society and,
eventually, abstract reasoning possible.
Note: In this paper, I use natural rights, natural law, right
and wrong, and morality almost interchangeably to stand for
norms that a person believes (at an emotional level) are higher than the
laws, customs, and traditions of the particular society in which the person
1. Proof by Denial
One way to prove the existence of something is to show that the denial of its existence leads to unacceptable conclusions. Suppose that all laws are man-made and there are no absolute legal principles and no natural rights. Then we could only raise procedural and practical objections to the actions of those in power. This was the position that German jurists found themselves in under the Weimar Republic (1918–1933) when:
To object to legal activities on moral grounds is nonsensical, unless we believe there is a natural law that is of higher authority than man-made law. Without natural law, there could be no basis for moral objections to killings and destruction done by authorized agents of the state. We could only object when these acts are performed by private individuals on their own initiative, without legal licenses. Hitler, Stalin, and other legal authorities would be above moral criticism while they were in power. If we were subjects of one of these leaders, and he decided he needed our property, or even our lives, we could be unhappy about his decision, but, unless we believed in natural rights, we would have no basis for feeling unjustly served.
If we do not believe in any principles of justice higher than man-made law, then we must believe that slavery, for example, is neither right nor wrong in itself and that slavery in the U.S.A. was right when it was legal, became wrong when it was outlawed, and could be made right again tomorrow if the U.S. Supreme Court so decreed.2
If the conclusions that result from denying the belief in natural rights are unacceptable to you, then you should admit that you already believe in natural rights. If the state of mind that is implied by the denial of natural rights accurately represents the way you make moral judgments and the way you react emotionally to such things as slavery and genocide, then, and only then, can you honestly say that you do not believe in natural rights.
Perhaps the only good consequence of the horrors of the Nazi regime and the world war that overthrew it has been the revival of natural law:
2. Your Conscience Implies That You Believe in Right and Wrong
Another way to determine whether you believe in natural law is to consider your conscience. If you have a conscience, you will be able to recall having experienced guilt, shame, obligation, and righteousness. If you have no conscience, you will not be able to experience these emotions, and you will probably have difficulty understanding what these words mean.
Most human beings have consciences, and they experience the emotions associated with consciences. Most people feel that some actions are intrinsically right and others are intrinsically wrong. In other words, they believe in natural law. They may disagree about what is right and what is wrong. Some may think it is right to obey the laws of the state at all times, and they will feel guilty if they break any law. The guilt they feel implies that they have a conception of justice that is higher than the state, but that morally obligates them to obey the state's laws. This is a particular belief about natural rights and duties rather than a disbelief in their existence.
The question, "Why should a person do his duty or respect the rights of others?" cannot be answered to the satisfaction of skeptics. If we answer that you must do your duty because of X, the skeptic can ask, "Why is it necessary to uphold X?" which can only be answered by saying either X is self-evident (which the skeptic can deny) or that we must uphold X because of Y, which leads to the same question about Y. Thus, we find ourselves in an endless loop with no way out until we can agree on a self-evident truth. So instead of answering this way, natural law advocates should simply say, "You should do your duty because it is your duty." The skeptic can then correctly point out that this is merely circular reasoning and playing with the definitions of words. He could say that, "It is true, by definition, that Martians live on Mars. But this does not prove that Martians exist. Similarly, a duty is, by definition, something that we ought to do, and a natural right is, by definition, something that we ought to respect. But this does not prove that duties and natural rights actually exist." This gets us nowhere.
So the fundamental question of justice is not "Why should a person do his duty or respect the rights of others?" but rather, "How do we know that natural rights and duties exist?" The natural rights advocate believes it is self-evident that justice is meaningful. But justice cannot be meaningful if natural rights and duties do not exist. Therefore, there must be natural rights and duties. This argument will not persuade the persistent skeptic. He will cheerfully deny that justice has an meaning other than as a mode of expressing the preferences of the person who uses moral terminology. The skeptic's point is that there is no such thing as objective justice.
If the skeptic is not lying when he says that he does not believe in moral rights and obligations, there is no way to convince him otherwise. The skeptic, apparently lacks the moral sense. Trying to persuade him to believe in justice is as futile as trying to seduce a eunuch or trying to get milk from a bull. The skeptic simply lacks the capacity for it. He has the rational faculty, but he has no moral emotions, no conscience, and no way to understand the psychology of normal people when they are motivated by moral considerations. He doesn't realize that he is abnormal, so when he observes other people claiming to make moral judgments, he thinks they are deluding themselves about their own motives. He thinks they have been duped or brainwashed, because he assumes that if he has no moral sense, then no one else can have a moral sense. It's as if part of his brain is missing or doesn't work.
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3. Physical Evidence for the Moral Sense
Depending on how the moral sense is implemented in the human brain, it might be possible one day to locate the part of the brain where the moral sense resides. If we could do this, the skeptic might be persuaded that the moral sense is as real for most people as the sense of smell or sight, and we might be able to pinpoint the brain deficiency of amoral people and find a cure for it. There is some scientific evidence to support this possibility.
Michael Gazzaniga reported tests he performed on a patient whose left and right brain lobes were surgically separated. He showed her a series of photographs of faces and asked her to rate their attractiveness on a scale from 1 to 10, first with one eye covered and then with the other eye covered, each eye being controlled by the opposite side of her brain. The ratings that she came up with using the right side of her brain closely matched the ratings that other normal people had previously assigned to the pictures. But when she rated the pictures with the left side of her brain, her assessments were wildly uneven. She was unable to distinguish a beauty from a beast.4 This could be an indication that our sense of beauty resides in the right lobe of the brain.5 If the sense of beauty can be located, the moral sense, which can be thought of as the sense of beauty in actions, might also be locatable.
The effects of a bizarre accident that occurred to Phineas Gage in 1848 indicate that the moral faculty may reside in the ventromedial frontal region of the brain. When Phineas was the foreman of a crew of workers who were leveling ground for a railroad track in New England, he inadvertently triggered a blast while leaning over a hole filled with explosive powder. Here is what happened:
The 25-year-old foreman recovered completely, retained all elementary mental functions, and remained able-bodied for the rest of his life. His speech was normal, he absorbed new information as before, and he showed no lapses of memory. However, his personality changed. From a pleasant and reliable fellow, popular among his peers, he turned into someone who could not hold a job because he had lost all respect for social conventions. He would lie and curse uncontrollably. Perhaps the greatest change was that his sense of responsibility vanished: he could not be trusted to honor commitments. According to his physician, the equilibrium between intellectual faculties and lower impulses had been disturbed by the accident.6
It is possible that our moral faculty is not confined to an isolatable part of the brain and that it results from the combined functions and processes of many different parts. If this is the case, then those people who do not know by first-hand experience (through introspection) that the moral sense is real will never be able to perceive it.
Even if we cannot show them where the moral sense resides, skeptics should be able to deduce that most people are social and have empathy for their own children. How else could skeptics explain the survival of human infants who are born practically helpless and who require the longest and most laborious period of parental care among all living creatures? Human society had to precede the development of human reason and language. Human society, therefore, must be based on social instincts, empathy, or a moral sense. Even though skeptics may lack empathy or a moral sense, they should be able to figure out that they owe their own existence and the existence of all human societies to the fact that most other human beings do not lack these social instincts.7
People who do not have consciences are not typical of our species—they are psychopaths:
Normal human beings raised by loving mothers develop a belief in justice and develop the ability to use logic, because that is the way we are. The seeds of the moral faculty and the rational faculty are built into our nature. We are moral and rational creature by nature, not in the sense that we naturally behave morally or rationally, but in the sense that normal people have the natural capacity to appreciate morality and rationality and the potential to be guided by moral values and to follow logical arguments. A truly amoral person who has no conscience at all is as uncommon as a blind man and is more severely handicapped.
The ultimate basis of our belief in natural rights is an innate feeling or moral sense. We are the kind of creatures who naturally develop a sense of justice and the emotions that go with it.
Evidence for the physical reality of the effects of conscience or the moral sense in normal human beings comes from the results of polygraph ("lie detector") machines. These machines measure changes in a person's pulse rate, breathing, and skin conductance. Normal people cannot tell lies without spontaneously feeling anxiety that is physically detectable by polygraph machines, because lying changes a person's pulse, breathing, and skin conductance rates. Some people are able to act as pure calculators and can tell lies without showing emotional or physical changes, but these people are rare, and they are generally psychopaths.
You don't have to be as insightful as Frances Hutcheson or Adam Smith to see evidence of benevolence, gratitude, and sympathy. Even modern scientists are discovering it.15 Our sympathy with people who are suffering has scientifically observable effects. Our heart rates increase when we see other people in distress. In some cases we unconsciously mimic the facial expressions and physical movements of a victim.16 Babies will start crying if they hear another baby cry. They do not cry as much in response to equally loud nonhuman sounds.17
Often these caring instincts have nothing to do with the merit of the other person or with our own self-interest.18 Without these caring instincts our species would have become extinct long ago. Human infants are totally helpless and would die if they were neglected.
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4. Belief in Morality Preceded Human Reason and Made Reasoning Possible
It was not until human societies had existed for many centuries by following rough, unwritten rules of justice and benevolence that we developed languages to the point where we were finally able to state principles of justice in words. It was not until then that people were able to think about the long-range benefits of justice.19
People who claim to be motivated to make moral decisions exclusively or primarily by rational considerations are deluding themselves. The impetus toward moral behavior in prehistoric man is better described by terms such as moral sense or moral intuition than by reason. Reason, language, and culture play a role in modern man's development of moral principles, but they cannot explain the fact that something very much like moral rules had to be obeyed for thousands of human generations before anything that we would recognize as reason, language, or culture could have developed.
Like other social species, man has social instincts. But, unlike other species that we know about, man has developed the ability to engage in abstract reasoning. It is man's application of his reasoning ability to his innate social values that has enabled him to consciously develop principles of justice.
The rationalists are correct when they say that the principles of justice can only be thoroughly understood and applied after rigorous analysis. But they do not realize that human reasoning on such a highly abstract level would not have been possible if mankind did not have an innate moral sense. First came the moral sense. Then came human societies. Then, much later, came human languages and abstract reasoning at the level required for men to develop moral philosophies.
_ The moral sense is similar in some ways to the human sex drive. Both are given to us by nature—they are not man-made. Both take a while to develop. Both can be manifested in different ways depending on the individual and his personal experiences. Both promote sociability. Both tend to promote the survival and perpetuation of the species, and in both cases these are side-effects rather than motives.
Primitive man did not know there was a cause-and-effect relationship between sexual intercourse and reproduction. Some people today still don't know the facts of life, but this does not mean they don't enjoy sex. A man's basic motive in sexual activity is natural pleasure, not perpetuation of the species. Similarly, man's basic motive in moral conduct is to have a clear conscience, not to promote his rational self-interest or the greatest good of the greatest number. Man's body and mind are so constituted that sexual activity and moral activity are gratifying in themselves.
Other natural impulses are similar to the moral sense in some of the same ways as the sex drive. The maternal instinct, for example, is not the product of man-made reason, yet it motivates behavior that is essential to the survival of our species. It is natural for mothers to derive satisfaction from nurturing their offspring and to be sad when their children suffer. Man-made laws and utilitarian considerations have no more to do with the creation of conscience than they do with the creation of maternal love or the female breast.
Natural rights exist for no man-made purpose. In this respect they are like the laws of the physical sciences. There is no reason to suppose that nature has any more purpose for the laws of justice than it has for the laws of physics. Does this mean that natural rights are totally arbitrary and indefensible? Not at all. Nature is the ultimate standard against which everything else must be judged. What is arbitrary is what goes against nature. If a judge makes a decision without considering natural rights, it is the judge who is arbitrary. To say that natural rights do not exist because they have no purpose is like saying the sun doesn't exist or gravity doesn't exist because they have no purpose.
We are not born with all the knowledge needed to survive, nor are we born with all the knowledge we need to be morally responsible. We must learn a lot before we can take care of ourselves and before we reach "the age of reason" when we attain the full status of responsible adults. It would not be possible for us to learn these things unless we were predisposed to do so. The needed predisposition is provided by our instinct for self-preservation in the first case and by our moral sense in the second.
It is natural for us to be interested in moral questions, because we are social beings. To survive we have to get along with our fellows. We are born helpless and dependent upon some form of society (usually a family) until we develop strength and coordination and enough knowledge to make our own way in the world. We learn the benefits of social cooperation implicitly from our early upbringing. After we reach the age of reason, we are able to understand the principles that make society possible.
A just man uses his intelligence to figure out how moral principles apply to each situation in his life. Then he follows his moral principles because he is governed by his conscience. His conscience motivates him to choose to do right. No other motive is needed. The just man does the right thing because justice is intrinsically valuable to him. This is part of his nature—the best part.
Morality, like love-making, is good for the survival of our species. Were this not so, the moral and the sexual drives would have been eliminated from our constitution through natural selection. Although these drives promote the survival of the species, the individual man is not usually concerned with the survival of the human race each time he exercises his moral faculty or makes love. For the individual man, morality and love-making are ends in themselves. We are so constructed that we can enjoy sex even when it does not result in offspring and we can derive satisfaction from leading moral lives even if our lives have no significant impact on the survival of our species.
The fact that the moral sense is not the product of reason does not mean it is arbitrary or unreal. Like the rest of human nature, the moral sense is the result of natural forces operating over millions of years. The instincts that have survived the natural selection process have stood the test of time. Other species with different instincts that did not promote social cooperation have not been able to develop languages with which to manipulate abstract ideas. If highly intelligent creatures exist in other parts of the universe, they probably have consciences too, because the moral sense and sociability are prerequisites to language which, in turn, seems to be a prerequisite to high intelligence.
While the belief in justice for its own sake is based on an innate feeling, the content of our theory of justice is not necessarily emotional, it can be rational. Our nature is such that we develop a conscience and moral emotions in the normal course of maturing, but nature does not implant in our minds any particular theory of justice. If it did, we wouldn't have so many disagreements about our rights. Our strong emotional belief in morality impels us to search for justice and gives us the motive to do the right thing for its own sake, but it does not supply the explicit principles of justice that we need. So we have to use our much less reliable and much more error-prone rational faculty to discover these principles. The inept and amateurish way in which most of us use our reasoning ability is the cause of the different conclusions that we come to in developing our theories of justice.
Whether we are aware of it or not, we believe in natural rights. Appeals to conscience and natural rights are appeals to things we have in common rather than to things that divide us. So we can use moral arguments as well as practical arguments to build a free nation. This is fortunate because some questions that people have about a free nation can be answered more readily by moral arguments than by practical ones.20 D
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1 Von Hippel, The Role of Natural Law in the Legal Decisions of the German Federal Republic, p. 109.
2 Consider the following supporting argument of Samuel Clarke (from British Moralists Volume 2 p. 8):
...if there be no such thing as Good and Evil in the Nature of Things, antecedent to all Laws, then neither can any one Law be better than another, nor any one thing whatever, be more justly established, and enforced by Laws, than the contrary; nor can any reason be given, why any Law should ever be made at all: But all Laws equally, will be either arbitrary and tyrannical, or frivolous and needless, because the contrary might with equal Reason have been established, if before the making of the Laws, all things had been alike indifferent in their own Nature.
Here is a more recent supporting argument from Leo Strauss (from Natural Right and History p. 2):
To reject natural right is tantamount to saying that all right is positive right, and this means that what is right is determined exclusively by the legislators and the courts of the various countries. Now it is obviously meaningful, and sometimes even necessary, to speak of "unjust" laws or "unjust" decisions. In passing such judgments we imply that there is a standard of right and wrong independent of positive right and higher than positive right: a standard with reference to which we are able to judge of positive right.
3 Heinrich Rommen, The Natural Law in Decisions of the Federal Supreme Court and of the Constitutional Courts in Germany p. 5.
4 Michael Gazzaniga, The Social Brain: Discovering the Networks of the Mind, p. 156.
5 William F. Allman, in The Stone Age Present p. 216, notes:
Further evidence that the brain is specially wired to enjoy music comes from people who suffer brain damage from a stroke and are afflicted with "amusia" — an inability to recognize familiar melodies and loss of musical ability— even though other mental abilities are left unimpaired. The wiring up of the brain's musical knowledge begins very early in life and, like language, is "tuned" to a particular culture. Six-month-old infants possess a rudimentary ability to perceive that a musical chord contains a "sour" note that is atonal. By age one, North American children are better at remembering a melody when the tune is created from notes in a scale found in conventional Western music, as opposed to melodies written from a more exotic scale used in Indonesia.
6 Frans de Waal, Good Natured: The Origins of Right and Wrong in Humans and Other Animals, p. 216.
7 Similarly, homosexuals who feel no sexual attraction toward the opposite sex should be able to figure out that they owe their existence to the fact that most people are heterosexuals who do feel sexually attracted to the opposite sex. Homosexuals should not regard heterosexuals as brainwashed dupes of cultural mythologists. And amoralists should not regard people who have consciences as victims of delusions.
8 Robert Hare, Psychopathy, p. 7. Cited in The Brighter Side of Human Nature, p. 308 by Alfie Kohn.
9 William F. Allman, The Stone Age Present pages 93–95. Allman continues on p. 95 with the following facts:
For most people, the facial muscles involved in shaping the face when they are experiencing emotions are not under conscious control. Only 10 percent of us, for instance, can voluntarily pull the corners of the mouth down to make the prototypically human "sad" face. The rest of us can make this face only while also moving the muscles near the chin, which is a giveaway for a phony expression. Likewise, only 15 percent of people can voluntarily raise their eyebrows at the center of their forehead to duplicate the forlorn look of grief and distress.
10 In children raised under their mother's care, empathy develops between 15 and 18 months of age. In children raised from infancy by a series of strangers, as in a daycare center, the capacity for empathy may fail to develop. See "New Light on Daycare Research" by Barbara Hattemer in Who Will Rock the Cradle?
11 James Q. Wilson and Richard J. Herrnstein, Crime and Human Nature, p. 200.
12 Adam Smith expressed it this way (British Moralists Volume 1 p. 257):
How selfish soever man may be supposed, there are evidently some principles in his nature, which interest him in the fortune of others, and render their happiness necessary to him, though he derives nothing from it except the pleasure of seeing it. Of this kind is pity or compassion, the emotion which we feel for the misery of others, when we either see it, or are made to conceive it in a very lively manner. That we often derive sorrow from the sorrow of others, is a matter of fact too obvious to require any instances to prove it; for this sentiment, like all the other original passions of human nature, is by no means confined to the virtuous and humane, though they perhaps may feel it with more exquisite sensibility. The greatest ruffian, the most hardened violator of the laws of society, is not altogether without it.
13 Frances Hutcheson likened benevolence to gravity in this respect (British Moralists Volume 1 p. 130):
This universal Benevolence toward all Men, we may compare to that Principle of Gravitation, which perhaps extends to all Bodys in the Universe; but, like the Love of Benevolence, increases as the Distance is diminish'd, and is strongest when Bodys come to touch each other.
14 It is fortunate that our emotions operate this way. As Frances Hutcheson explained op. cit. p. 129:
Now because of the vast Numbers of Mankind, their distant Habitations, and the Incapacity of any one to be remarkably useful to vast Multitudes; that our Benevolence might not be quite distracted with a multiplicity of Objects, whose equal Virtues would equally recommend them to our regard; or become useless, by being equally extended to Multitudes at vast distances, whose Interests we could not understand, nor be capable of promoting, having no Intercourse of Offices with them; Nature has more powerfully determin'd us to admire, and love the moral Qualities of others which affect our selves, and has given us more powerful Impressions of Good-will toward those who are beneficent to our selves. This we call Gratitude. And thus a Foundation is laid for joyful Associations in all kinds of Business, and virtuous Friendships.
15 Denise Foley, "The Hero in All of Us" in Prevention August 1985 p. 76:
Research indicates that the distress of another person elicits a response 80 to 90 percent of the time in children in their first years of life. In the earliest years, most children will simulate the distress themselves, often seeking comfort from a parent. Later—as young as 18 months old—the child will try to help, touching the distressed person, offering advice, a favorite toy or bring a parent to help.
16 Ibid p. 78.
17 Ibid p. 77.
18 Ibid p. 75:
We take care of infants who certainly do nothing to deserve it. They're not attractive. They wake you in the middle of the night. They urinate on you. They vomit on you. And yet we love and care for them.
19 F. A. Hayek pointed out (in Law, Legislation and Liberty Volume 1 p. 72) that moral action has historically preceded moral philosophy:
Long before man had developed language to the point where it enabled him to issue general commands, an individual would be accepted as a member of a group only so long as he conformed to its rules. Such rules might in a sense not be known and still have to be discovered, because from "knowing how" to act, or from being able to recognize that the acts of another did or did not conform to accepted practices, it is still a long way to being able to state such rules in words.
20 For example, as I pointed out in my article "A Theory of Property Rights for a Free Nation" (Formulations Vol. V, No. 2), the free market cannot establish the initial property rights in a free nation, because initial property rights must be established before the free market can begin to function. So we need a moral theory rather than an economic theory to determine how property rights come into existence in the first place.
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Roy Halliday, who serves FNF as copy editor for Formulations, would use this as a classified ad in the men-looking-for-women section:
52YO DWM 5'10" 210lbs green eyes gray hair. Retired. College educated. Dislikes camping, travel, dancing, spirituality, pets, concerts, theater, arts, crafts, NASCAR, exercise, shopping, beaches, outdoor activity, and nature in general. ISO D/SF 30–45YO financially secure with similar disinterests to share roof, couch, bed, and LTR.
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