Thursday, July 30, 2020

Darwinian Conservatism, Darwinian Liberalism, and the Welfare State: A Reply to Govert Schuller

During my teaching career at Northern Illinois University, I was privileged to have many smart students who taught me a lot.  I designed my courses around three requirements: peer-response journal writing, class discussions, and a final argumentative essay.  For each week there was a reading assignment.  Each student had to bring to the first class each week a journal entry--two typed pages--on the reading for that week.  The journal entry would answer a series of questions.  What is the author saying?  Does the author present good evidence and arguments to support his position?  Or is there an alternative position that is more persuasive?  Each student would bring three copies of this journal entry--one for me and two for the two members of the student's journal group.  Then, at the second class meeting of the week, students would bring two one-page responses to the two journal entries they had received at the first class meeting.  In these responses, the students would express their points of agreement or disagreement with other students in their journal group.  This journal writing guaranteed that each student came to class prepared: they had not only read the assigned reading, but they had also thought about it in a critical way; and so they were ready to engage in a lively class discussion.

I never lectured for long periods.  Instead, I raised questions to stimulate class discussion.  And often my questions came from the students' journal writing.  The only requirement for the discussions was that the students had to support their positions with evidence and argumentation.  Occasionally, some of the assigned reading would be some writing of mine, and the students were free to disagree with me.  (This pedagogy of Socratic questioning is conveyed in my book Political Questions: Political Philosophy from Plato to Pinker.)

The final requirement for each of my courses was a paper that I called an "argumentative essay."  Each student would take up some controversial question that had come up in the readings or the class discussions.  The writer would have to develop at least three arguments supporting the author's answer to the question.  The writer would also have to state, and answer, at least two objections to the writer's position.

Typically, by the end of the semester, each student would have written at least 65 typed pages for the journals and the final paper.  Consequently, the students had a lot of practice in writing clearly and rigorously about some of the deepest questions in political science.

I was reminded of this this week when I saw that one of my former students--Govert Schuller--had just published two of his essays for me at his blog "Alpheus."  The first one--"Darwinian Conservatism and the Liberal Welfare State"--was written for my course on "Biopolitics and Human Nature" in the spring of 2013.  The second--"Nietzsche's Reluctant Acceptance of Liberal Democracy (and Later Rejection)"--was written for my seminar on "Nietzsche and Politics," also in the spring of 2013.

One of the readings for "Biopolitics and Human Nature" was my book Darwinian Conservatism: A Disputed Question.  In his paper, Schuller criticizes my argument in that book.  Darwinian biology supports conservatism, I argued, in five ways.  (1) It supports the conservative view of ordered liberty as rooted in natural desires, customary traditions, and prudential judgments.  (2)  It supports the conservative view of the moral sense as fundamental for the moral order of liberty.  (3)  It supports the conservative view of sexual differences, family life, and parental care as fundamental for the social order of liberty.  (4) It supports the conservative view of property as fundamental for the economic order of liberty.  (5) And it supports the conservative view of limited government as fundamental for the political order of liberty.

Schuller agrees with me that a good social order must conform to the natural desires of our evolved human nature, and that the utopian socialist and Marxist ideologies must be rejected insofar as they deny that evolved human nature.  And yet he makes three arguments to show that a Darwinian account of human nature does not necessarily support conservatism.

First, he claims that my criticism of utopian leftist thinking is a straw-man argument, because there are realistic leftist positions that are not utopian--particularly, the welfare-state liberalism of European social democracy, as manifested in countries like the Netherlands.

Second, he claims that I do not look at the comparative research that shows that welfare-state regimes like the Netherlands can satisfy the twenty natural desires.  Thus, I ignore the evidence that by many measurements of social health, the European social democracies rank higher than more conservative regimes like the United States.

Third, he disagrees with my suggestion that the ranking of the natural desires must be rightly left to the judgment of individuals, and so a social order cannot properly enforce a prescribed ranking.  On the contrary, he thinks that Abraham Maslow's hierarchy of human needs is a good ranking of our natural desires--starting with physiological needs and moving up to security needs, then social needs, and finally self-actualization.  Moreover, he asserts that the European social democracies do a good job of securing the basic biological needs (food, health, and shelter), while also securing the conditions for satisfying the other needs as well.  This is clearly seen, he thinks, in the Netherlands.

What Schuller does not see is that my Darwinian conservatism is a liberal conservatism that can embrace a liberal welfare state.  In previous posts, I have written (here) about Darwinian conservatism as a fusion of traditionalist conservatism (like that of Russell Kirk) and classical liberalism (like that of Friedrich Hayek).  Classical liberals like Hayek reject pure socialism and communism because these systems deny the individual liberty necessary for a free society.  But liberals like Hayek can endorse those welfare state policies that are compatible with individual liberty.  One can see this in the third part of Hayek's Constitution of Liberty, which is entitled "Freedom in the Welfare State."

As I have argued (here), the welfare state systems that one sees in the European social democracies are actually capitalist welfare states with private property and free markets.  And while these welfare state regimes do restrain individual liberty in many ways, they are largely free societies.  Schuller points to this in describing how the European welfare state secures the natural human desires: "A right to work and a minimum living wage would take care of the basic needs, including housing, and a non-corrupt government can provide safety, health insurance and affordable education.  At the same time there should be a maximum of freedom for people to pursue their social, romantic, vocational, economic, creative and spiritual needs."

When Eduard Bernstein, a leader of the German Social Democratic Party, first defended social welfare policies as "evolutionary socialism," he was criticized by the Marxists as a "revisionist."  Rosa Luxemburg complained that his so-called socialism was really a "variety of liberalism."

That she was right about this should be clear from looking at the Human Freedom Index--devised by the Cato Institute as an empirical measurement of liberty as defined by classical liberals like Hayek--and noticing that the European social democracies (including the Netherlands) rank high on that index.  As I have said in previous posts (here), this shows the human progress towards social orders that secure individual liberty

In my Nietzsche seminar, we read texts from the three periods of Nietzsche's writing--early (The Birth of Tragedy), middle (Human, All Too Human), and late (Thus Spoke Zarathustra, Beyond Good and Evil).  We saw that Human, All Too Human differs from much of his earlier and later writing in two ways.  First, he embraces a Darwinian evolutionary science: "everything has evolved" (HATH, secs. 2-3).  And he shows a moderate acceptance of liberal democratic politics and institutions, while strongly rejecting socialism.

Schuller chose to write about this second point.  He rightly sees in Human, All Too Human a "qualified endorsement of liberal democracy" as "the least bad form of government."  And he also rightly sees Nietzsche turning away from this in his later writing:
"if such ideas like democracy and human rights are tossed, then he can 'overcome' his previous reluctant acceptance of liberal democracy and go all out with a cruel, self-assertive, self-legislating, 'value-creating' (BGE, 260) upper class and reduce the rest of mankind to the status of Untermensch to be exploited, which is fine because exploitation 'belongs to the essence of what lives, as a basic organic function; it is a consequence of the will to power, which is after all the will of life' (BGE, 259).  Here we can unfortunately see the foreshadows of a fascist ideology."
As I have indicated in a previous post (here), I believe that Nietzsche's Darwinian aristocratic liberalism in Human, All Too Human can be shown to be superior--morally, politically, and intellectually--to the Dionysian aristocratic radicalism of his later writings.  That is the best answer to the Nazi and fascist interpreters of Nietzsche (like Martin Heidegger).

Thursday, July 23, 2020

Mary Trump on Donald Trump: The Man and the Myth Created by Fred Trump

One of Donald Trump's favorite statements is "Nobody knows more about [fill in the blank] than me."

Trump receives a perfect score on a mental acuity test: "Person. Woman. Man. Camera, TV"  Amazing!  What a genius!  Joe Biden could never do that!

Mary Trump is Donald's niece--the daughter of Fred Trump, Jr., Donald's oldest sibling.  In her new book--Too Much and Never Enough: How My Family Created the World's Most Dangerous Man--she explains how Donald's father created his mental disorders and his myth of himself as the self-made successful businessman--who knows more about everything than anybody.  In doing that, she supports two of the themes in my past commentary on Trump--the biopolitical study of his personality and the Aristotelian study of his rhetorical myth.  This also illustrates the importance of understanding the individual history of political actors for biopolitical science.

In this one hour interview with George Stephanopoulos, Mary speaks about most of the main points in her book.

In a way, Mary's book is less about Donald Trump that it is about Fred Trump--his father.  Speaking from her knowledge of the Trump family and her knowledge as a psychologist with a Ph.D. in clinical psychology, she says that Fred Trump was a "high-functioning sociopath" (24).  He had no real human feeling for anyone.  He was incapable of empathy.  He cared only about what was important to him--his real-estate business.  He was interested in other people only if they could help him in his business.

Fred did not think it was his job to care for young children.  He was not much interested in his two daughters--Maryanne and Elizabeth--because as women they were inferior.  He was more interested in his sons--Freddy, Donald, and Robert--but only if they could work in his business and show the "killer" personality necessary for business success.  He made all of his children uncomfortable with either expressing or confronting deep emotions, because he scorned this as showing weakness.  Being a "killer" meant being invulnerable.

Fred became a fan of Norman Vincent Peale's The Power of Positive Thinking, and he joined Peale's Marble Collegiate Church, although he rarely attended.  He had not read the book, but he liked the idea in the title--that the key to success was to always think positive.  Mary calls this his "toxic positivity"--the insistence that the best response to human suffering is to declare that everything's just great.  Fred's wife was sick for much of her life.  Because of her osteoporosis, her bones were so brittle that she often suffered excruciating pain from broken bones.  Whenever she was suffering, Fred would say something like "Everything's great.  Right. Toots?  You just have to think positive," and then he would leave her alone with her pain.  Mary repeats that line more than once.  It's even the last sentence of the book (93, 161, 211).

Fred hoped that his oldest son--Freddy (Mary's father)--would succeed in his business and carry on the Trump empire.  But when Freddy did not satisfy his expectations, he demeaned him as a failure.  Freddy enjoyed flying, and he became a pilot for TWA, but his father ridiculed this as an unimportant job.  Freddy was forced to quit that job because of his alcoholism.  His health suffered from the effects of his excessive drinking and smoking.  He died at the age of 42 in a hospital with no one from the family around him.  On the night that he died, Donald and Elizabeth went out to see a movie.

Once Freddy began to fall out of his father's favor, Donald saw the chance to take his place as the manager of the Trump businesses.  His father had built his empire of rental housing in Brooklyn, but he had never tried to enter the more glamorous real-estate world of Manhattan.  So when Donald began building projects in Manhattan, and became famous as a wildly successful builder in Manhattan in the early 1980s, this fulfilled his father's desire for recognition, although his father always told the news media that he had done little to help his son, and so Donald's success was all his own.

Until a few years ago, Mary herself believed this story of Donald as the self-made billionaire businessman with a genius for making deals.  But then one day in 2017, she answered the door at her house and met Susanne Craig, a reporter for the New York Times.  Craig told her that she was part of a team of reporters investigating the financial history of the Trump family.  When Fred Trump died in 1999, there was a long legal battle over the inheritance of his estate, because Mary and her brother had had their father's portion of the inheritance taken away from them.  They finally were forced to accept an unfair settlement based on false estimates of Trump's worth.  The New York Times reporters believed that the documents collected by Mary's lawyers could reveal the truth about Trump's financial history.  At first, Mary refused to cooperate.  Finally, she agreed, and she was able to deliver 19 banker's boxes of documents from her lawyer's office to the reporters.  This was crucial for the stunning revelations in the New York Times article published on October 2, 2018.

This was the longest article (almost 14,000 words) in the history of the New York Times, and it earned a Pulitzer Prize.  It showed that for decades, Fred Trump had been using shell companies to channel almost $1 billion to his children without having to pay gift taxes.  Donald has said that "my father never gave me much money."  This is a lie, because Donald at age 3 began receiving money from his father, and by the time he was 8 years old, he was a millionaire.  Donald received the equivalent of $413 million in today's dollars.  Moreover, his father bailed him out in all of his projects in Manhattan and Atlantic City when he could not pay his debts.  This showed that Trump was a failure in all of his business ventures, and it was only his father's money that hid the depth of his failures.

This supports Mary's claim in her book that Donald is utterly incompetent in doing anything other than shameless self-promotion of his myth of success.  As I have argued in a previous post, this refutes the rhetorical enthymeme that ran through his presidential campaign of 2016:

Major premise: Because of stupid politicians, America no longer wins; and America will not win again until a successful businessman who know how to win is elected president.

Minor premise: Donald Trump is unique in his business success and his prudence in knowing how to win, because he is a self-made multi-billionaire.

Conclusion: Therefore, Americans need to elect Trump president.

Even without the evidence from the 2018 New York Times article, one might have expected that voters in 2016 would have seen Trump's extraordinary record of 6 bankruptcies as exposing the falsity of his myth.  But the brazenness of his deceptive rhetoric was powerful enough to hide the truth.

As president, Donald has continued to lie about his intelligence and success despite the obvious evidence of his mental incompetence and failure.  Of course, his very success in lying so shamelessly testifies to his skill for rhetorical manipulation--the kind of skill that is often displayed by a narcissistic psychopath.

In previous posts, I have written about Trump's grandiose narcissism (here), about psychopaths (here and here), and about how how Trump's rhetorical success shows some of the techniques of "chimpanzee politics" (here).

Here are the diagnostic criteria for "Narcissistic Personality Disorder" in the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders:
"A pervasive pattern of grandiosity (in fantasy or behavior), need for admiration, and lack of empathy, beginning by early adulthood and present in a variety of contexts, as indicated by five (or more) of the following:
"1.  Has a grandiose sense of self-importance (e.g., exaggerates achievements and talents, expects to be recognized as superior without commensurate achievements).
"2.  Is preoccupied with fantasies of unlimited success, power, brilliance, beauty, or ideal love.
"3.  Believes that he or she is 'special' and unique and can only be understood by, or should associate with, other special or high-status people (or institutions).
"4.  Requires excessive admiration.
"5.  Has a sense of entitlement (i.e., unreasonable expectations or especially favorable treatment or automatic compliance with his or her expectations).
"6.  Is interpersonally exploitative (i.e., takes advantage of others to achieve his or her own ends).
"7.  Lacks empathy: is unwilling to recognize or identify with the feelings and needs of others.
"8.  Is often envious of others or believes that others are envious of him or her.
"9.  Shows arrogant, haughty behaviors or attitudes."
Mary says that Donald meets all nine criteria.  She also believes, however, that Donald is even more complicated in that he also satisfies the criteria for antisocial personality disorder (psychopathy), dependent personality disorder, some learning disabilities, and perhaps a self-induced sleep disorder (12-13).

But if he is so disordered, then how has he managed to survive and even succeed--to the point of becoming president of the United States?  Mary's answer is that he has been "essentially institutionalized" for most of his adult life.  First his father and then the people in government have sheltered him from the consequences of his disordered mind and behavior.  He has never had to live in the real world.

Mary's ultimate explanation is that Donald is the product of his father's abusive parenting:
"Nothing is ever good enough.  This is far beyond garden-variety narcissism; Donald is not simply weak, his ego is a fragile thing that must be bolstered every moment because he knows deep down that he is nothing of what he claims to be.  He knows that he has never been loved" (198).
"Though Donald's fundamental nature hasn't changed, since his inauguration the amount of stress he's under has changed dramatically.  It's not the stress of the job, because he isn't doing the job--unless watching TV and tweeting insults count.  It's the effort to keep the rest of us distracted from the fact that he knows nothing--about politics, civics, or simple human decency--that requires an enormous amount of work" (199).
"Every time you hear Donald talking about how something is the greatest, the best, the biggest, the most tremendous (the implication being that he made them so), you have to remember that the man speaking is still, in essential ways, the same little boy who is desperately worried that he, like his older brother, is inadequate and that he, too, will be destroyed for his inadequacy.  At a very deep level, his bragging and false bravado are not directed at the audience in front of him but at his audience of one: his long-dead father" (202).
"Donald withdraws to his comfort zones--Twitter, Fox News--casting blame from afar, protected by a figurative or literal bunker.  He rants about the weakness of others even as he demonstrates his own.  But he can never escape the fact that he is and always will be a terrified little boy" (210). 
In previous posts (here), I have argued that the bad character of a politician really does matter.  Conservative Republicans used to believe that, but now those who have embraced Trump no longer believe that.  There are some Republicans, however, who do believe that Trump's bad character--his lack of any moral or intellectual virtues--does matter.  Some of them are supporting the "Lincoln Project"--a group of leading Republicans who are sponsoring political ads recommending that Republicans should vote for Biden and against Trump--and against the Republican leaders who have enabled Trump.  For example, Jimmy Tosh is a wealthy lifelong Republican in Tennessee who has often contributed to Republican candidates, but now he is contributing to the Lincoln Project.  He was recently quoted as saying "I agree with 80% of the things he does.  I just cannot stand a liar."

Mary Trump's book supports this position by showing the depth of his bad character.

Wednesday, July 15, 2020

What Jane Goodall Has Taught Us About Biopolitical History


Yesterday was the 60th anniversary of Jane Goodall's arrival at the Gombe Stream Preserve in Tanzania on July 14, 1960.  There she initiated the first long-term study of a wild chimpanzee group.  Remarkably, she was only 26 years old; and she did not even have a college degree. She supervised the work at Gombe until 1986.  Others have continued the work at Gombe up to the present.

By the early 1970s, the National Geographic Society had crafted Goodall into one of the celebrated scientists of the 20th century--mostly through its National Geographical TV documentaries.

I can now see that Goodall was crucial in teaching me that a biopolitical science of political animals (including humans and chimps) would have to move through three levels of evolutionary history in complex interaction: the genetic history of the species, the cultural history of the group, and the individual history of animals within the group.

In 1975, I read Edward O. Wilson's Sociobiology: The New Synthesis, which planted in my mind the idea of developing a biopolitical philosophy that would be both Aristotelian and Darwinian.  Then, in 1980, I read Kenneth Bock's Human Nature and History, which was one of the first critiques of Wilson's book.  Bock argued that the biological study of animal nature cannot explain human history, because "animals other than man do not have histories," and human history in its contingency and diversity shows a human freedom from nature that transcends human biology.  Human history can be studied by historians, but not by biologists.

I saw that Bock was taking the side of Thomas Hobbes against Aristotle, because Hobbes argued that Aristotle was wrong in declaring that human beings were political animals by nature, because while human politics was a product of uniquely human social learning and individual judgment, the politics of the political animals was determined by fixed instincts.  But I wondered whether Aristotle might be right in claiming in his biological works that the political life of nonhuman animals was shaped by their cultural learning and individual personalities, just like human politics.

In 1986, I read Goodall's Chimpanzees of Gombe: Patterns of Behavior; and I was surprised to see that she took the side of Aristotle against Hobbes, because her book was a political history of the Gombe chimpanzees showing that they had distinctive cultural traditions and individual personalities.  She showed that the genetic nature of the species set the "patterns of behavior"--predictable general propensities found in every chimpanzee group, like dominance hierarchies.  But she could not predict the precise history of the "chimpanzees of Gombe," because of the historical contingences of the cultural traditions and individual personalities that made the chimpanzee group at Gombe unique.  If she was right, Bock was wrong: these Gombe chimps did have a history, and this history of animal culture and individuality would have to be part of any biological science of politics.

Also in 1986, I attended an international conference on chimpanzee studies in Chicago sponsored by the Chicago Academy of Sciences.  Goodall was there.  And one of the preeminent topics was the growing interest in chimpanzee culture.  The high point for me was sharing an elevator with Goodall!

In 1998, in Darwinian Natural Right: The Biological Ethics of Human Nature, I was able to defend Aristotle's account of political animals against the Hobbesian and Kantian claim that "culture" is the human transcendence of animal nature.  I could argue: "Like human beings and other primates, chimpanzees are cultural and historical animals."

In 2012, in my book chapter "Biopolitical Science," I gave a fuller account of the three-levelled analysis of biopolitical science--the unity of political universals, the diversity of political cultures, and the individuality of political judgments.  I worked through those three levels of biopolitical history as they are generally manifested in human politics and as they were particularly illustrated in Abraham Lincoln's decision to issue the Emancipation Proclamation in 1863.

I argued that the individual personality of animals had to be included in any biopolitical science, because biologists now recognize that personality is part of animal psychology.  One of the most extensively studied models of human personality is the Five Factor Model that describes human personality differences across five domains--Openness to Experience, Conscientiousness, Extraversion, Agreeableness, and Neuroticism (OCEAN).  Each domain corresponds to an axis running from high to low.  This same OCEAN model can be applied to the study of nonhuman animals.  And it has been shown that chimpanzee personalities display all five domains, just like human beings.

More recently, in some of my posts, I have argued that a Darwinian social psychology needs to understand the interaction of genetic history (the evolutionary psychology of Tooby and Cosmides), cultural history (the cultural group selection of Richerson, Boyd, and Henrich), and biographical history (the evolved personality and life history of self-interested individuals who are agents of cultural change acting through coercion or persuasion, as presented by Singh, Wrangham, and Glowacki).

Genetic history enables and constrains, but does not determine, cultural history.  Genetic history and cultural history jointly enable and constrain, but do not determine, biographical history.

It all began with Goodall's chimps.

Some of these points are elaborated in previous posts herehereherehereherehere, here., and here.

Monday, July 06, 2020

Should the Jefferson Memorial Be Torn Down?

In today's New York Times, there is an article by Lucian Truscott IV, a descendant of Thomas Jefferson, who argues that the Jefferson Memorial in Washington should be taken down and replaced with a memorial for Harriet Tubman.  Although Jefferson deserves to be honored for declaring that "all men are created equal" and endowed with the rights to life, liberty, and the pursuit of happiness, he should be condemned for not doing more to abolish slavery and for his shameful taking of Sally Hemings, his slave, as his concubine, who bore him six children.  The best monument to Jefferson, Truscott says, is Monticello, which includes an exhibit of Sally Hemings's bedroom, so that visitors can be reminded of Jefferson's hypocrisy and deceitfulness.

I have written about the evidence for Jefferson having made Hemings his concubine.  I have also written about Jefferson's biological science of equality, race, and slavery.

I conclude from this that Jefferson really did make the best scientific argument for human equality and the injustice of slavery, but that he lacked the good moral character to resist the degrading effects of owning slaves.

In his original draft of the Declaration of Independence, Jefferson recognized that slavery was ultimately a "cruel war against human nature itself."  And in the Notes on the State of Virginia, he warned that "the whole commerce between master and slave is a perpetual exercise of the most boisterous passions, the most unremitting despotism on the one part, and degrading submissions on the other," and he saw that "the man must be a prodigy who can retain his manners and morals undepraved by such circumstances" (Jefferson 1982, Query XVIII, p. 162).  Clearly, Jefferson was not such a prodigy.

Instead of taking down the Jefferson Memorial, wouldn't it provide great moral instruction to add a display at the Memorial explaining Jefferson's moral flaws as manifesting the degradation that Jefferson himself saw in the institution of slavery?  After all, Truscott agrees that Monticello is a properly instructive memorial to Jefferson precisely because of the Hemings display. 

If we are going to remove all of the public monuments for people who have any moral defects, then we will have no monuments at all.

Saturday, July 04, 2020

The 4th of July, Frederick Douglass, and the Neurobiology of Self-Ownership

On this 4th of July, it's good to be reminded of Frederick Douglass's speech in 1852 on "The Meaning of July Fourth for the Negro."  One of its most moving passages reads:
"What, to the American slave, is your 4th of July?  I answer; a day that reveals to him, more than all other days in the year, the gross injustice and cruelty to which he is the constant victim.  To him, your celebration is a sham; your boasted liberty, an unholy license; your national greatness, swelling vanity; your sounds of rejoicing are empty and heartless; your denunciation of tyrants, brass fronted impudence; your shouts of liberty and equality, hollow mockery; your prayers and hymns, your sermons and thanksgivings, with all your religious parades and solemnity, are, to Him, mere bombast, fraud, deception, impiety, and hypocrisy--a thin veil to cover up crimes which would disgrace a nation of savages.  There is not a nation on the earth guilty of practices more shocking and bloody than are the people of the United States, at this very hour."
Would Donald Trump scorn Douglass as one of those "far-left fascists" that he warned against last night at Mount Rushmore?

NPR has produced a video with some young descendants of Douglass reading a few passages from his speech.

This speech has a bitter tone of despair and protest like that of the Black Lives Matter movement today.  But there is also grounds for hope in this speech, because Douglass rebukes white America not for denying the principles of natural liberty and equality but for failing to live by those principles as stated in their Declaration of Independence.  That's why the American defenders of slavery had to reject the Declaration of Independence.

In this speech, Douglass also affirms the fundamental principle of his Lockean liberalism--natural self-ownership.  "Would you have me argue that man is entitled to liberty? that he is the rightful owner of his own body? You have already declared it."

In a previous post, I have argued that this principle is rooted in the Darwinian biology of human nature--in the neurobiology of self-ownership.

In 2018, I wrote a long series of posts (beginning here) on the Darwinian science of the Declaration of Independence.

By some estimates, the Black Lives Matter protests have become the largest protest movement in American history, with as many as 15 million to 25 million American people participating.  I have written (here) about non-violent resistance movements as expressions of the Lockean "executive power of the law of nature."

The Evolution of the Natural Desire for Friendship in Social Networks

                       A Short TED Talk by Nicholas Christakis on Friendship in Social Networks

         A Longer Version of the Lecture That Puts Social Networks Within Sociological Theory

My list of 20 natural human desires includes friendship.  As part of our evolved human nature, we generally desire friendship.  We seek social relationships of mutual affection and respect based on shared interests and cooperative endeavors with our friends.  Although we can be friends with our sexual partners and family members, our desire for friendship is a natural desire for a social bond of reciprocal attachment that differs from our natural desires for sexual matting or familial bonding.  We can have intense and enduring friendships with only a few people, because such friendships require shared experiences over a long period of life.

If the good is the desirable, then the 20 natural desires constitute a natural standard for judging the good society, which would include promoting the conditions for friendship.

I have written about the Darwinian evolution of the natural desire for friendship in previous posts.  I have argued that Aristotle's account of friendship (philia) is rooted in his biological science of social bonding among humans and other animals (herehere, and here).  For Aristotle, the friendship among philosophers is the highest form of friendship, and indeed the perfection of the moral and intellectual virtues.  This life of philosophic friendship could be lived in Athens, I have argued (here), because Athens was a relatively liberal commercial society that allowed philosophers to form voluntary associations devoted to the philosophic life.  Similarly, Adam Smith and David Hume could live a life of philosophic friendship because, I have argued (here and here), the modern commercial society of Scotland was liberal enough to allow such a life.

Critics of liberalism, like Patrick Deneen, have claimed that liberalism's radical individualism dissolves all the social connections of family life and friendship, and thus makes us desperately lonely.  But I have argued (here) that the modern liberal social order actually gives us the freedom to form social networks that satisfy our natural desires for social bonding and friendship.  Moreover, I have suggested (here and here) that Friedrich Hayek showed how liberal open societies allow us to live in two worlds of evolved social instincts--the small world of face-to-face personal relationships in families and groups of friends and the large world of impersonal market exchange.

Now, the work of Nicholas Christakis and his colleagues in studying the evolution of social networks of friends among humans and other animals can explain the biological science of all this.  Much of this research is surveyed in Christakis's recent book Blueprint: The Evolutionary Origins of a Good Society (Little, Brown Spark, 2019).  Christakis is a physician and sociologist, who teaches at Yale University, where he runs a "Human Nature Lab."  Unlike most sociologists, he does not scorn biological explanations of human social behavior.  On the contrary, he contends that there is a biological blueprint for human nature that shapes human social life.

At the core of all societies, Christakis claims, is what he calls a social suite of natural desires and capacities:

(1)  The capacity to have and recognize individual identity
(2)  Love for partners and offspring
(3)  Friendship
(4)  Social networks
(5)  Cooperation
(6)  Preference for one's own group (that is, "in-group bias")
(7)  Mild hierarchy (that is, relative egalitarianism)
(8)  Social learning and teaching

This social suite overlaps with my list of 20 natural desires and with much of Stephen Sanderson's list of 14 natural human preferences, except that Sanderson does not include friendship on his list.  I have written about Sanderson's list in a series of posts that begins here.  Like Christakis, Sanderson is one of those rare sociologists who embraces the biological science of human nature.

What is distinctive about Christakis's research is his adoption of "social network analysis."  (Wikipedia has a good article on this.)

In a social network diagram, each person in a population (a family, a club, an organization, a village, a school, or even a whole country) is indicated by a circle or a node in the diagram, and every connection between any two people (two friends, two relatives, two co-workers) is indicated by a line or an edge.  Connections among people are determined by asking people questions that are called a name generator.  Who are your closest friends?  Who do you prefer to spend time with?  Who can you trust to discuss your personal problems with?  To whom would you give some valuable gift?

Or researchers could map social connections by observing individuals and recording who is near whom for how long.  One could also use email or online social-network data to identify social bonds.

This is not limited to humans.  One can do a social network analysis of non-human animals to determine their patterns of friendship based on an association index of two animals, which is based on the amount of time they spend together.  Studying chimpanzees and bonobos, for example, one can see that they have social networks of friendship similar to that of human beings (Christakis 2019, 208-216).  One can also see that these primates are status seeking animals--like human beings--in that the more popular individuals are friends with one another, while the less popular individuals are also friends with one another; and the more popular ones are at the center of the network.

The popular individuals in positions of leadership in primate groups act as a kind of social police in that they mediate disputes to keep the peace in the group.  If high-ranking individuals are taken out of the group by human researchers, conflict and aggression rise, and the group collapses into chaos.  This shows how natural selection favors a desire for what Christakis calls "mild hierarchy," in which group leaders at the center of social networks lessen conflict and promote peaceful connections between high-ranking and low-ranking individuals.  This confirms Aristotle's observations of friendship and leadership among social animals.

Christakis and his colleagues have shown that there are similar networks of friendship in human groups, including bands of hunter-gatherers.  Studying the Hadza, a population of hunter-gatherers in Tanzania, they found that the networks of friendship among these foragers resembled the networks of people in modern developed societies in five or more traits (Coren Apicella, Frank Marlowe, James Fowler, and Nicholas Christakis, "Social Networks and Cooperation in Hunter-Gatherers," Nature 481 [26 January 2012]: 497-501.)

First, the likelihood of a social tie decreased with increased geographic distance and increased with increases in genetic relatedness.

Second, the networks showed reciprocity, in that if one person named another person as a friend, that second person was likely to name the first person as a friend.

Third, the networks showed transitivity, in that two of a person's friends were likely in turn to be friends with one another.

Fourth, there was degree assortativity, in that popular people tended to befriend other popular people.

Fifth, there was homophily, in that similar people tended to befriend one another, so that friends are like to resemble one another in many of their physical and social traits.

Here is a YouTube video with Coren Apicella explaining this research.

If the Hadza are a good proxy for our prehistoric hunter-gatherer ancestors, then this suggests that the desire for networks of friends is a natural instinct shaped by natural selection in our environment of evolutionary adaptation.  Of course, critics of this research will say that the Hadza have long had contacts with the modern world--including modern Western scientists!--and therefore they cannot give us any clear window into our prehistoric past.

And if hunter-gatherers really do show social networks of friendship similar to those in modern liberal societies, that suggests that critics of liberalism like Deneen are wrong in claiming that liberal social orders cannot satisfy the natural human need for social connection.  This might also suggest that Hayek was wrong in claiming that a modern open society must repress the ancient primitive instincts for social solidarity to which socialism appeals.  (I have written about this here.)

Friday, June 19, 2020

Gorsuch's Scalian Textualism Supports LGBT Rights--and the End of the Conservative Legal Movement

This week, the U.S. Supreme Court announced its decision in Bostock v. Clayton County, holding that the Civil Rights Act of 1964 forbids employment discrimination against homosexuals and transgender people, because Title VII of that Act makes it unlawful "to discriminate against any individual . . . because of . . . sex."

The big surprise is that the opinion of the majority (six justices) is written by Neil Gorsuch, Donald Trump's first Supreme Court appointee, who filled the vacancy created by Antonin Scalia's death, with the expectation that he would be a conservative justice in the tradition of Scalia.  Gorsuch does indeed apply Scalia's textualist approach to the Constitution in support of his decision, but the three dissenters (Alito, Thomas, and Kavanaugh) complain that the result in this case is just the opposite of what Scalia would have done.

This raises at least three big questions.  Does this destroy any possibility for Trump's reelection?  Does this mean the end of the conservative legal movement that supported Gorsuch?  And does this cast doubt on the intellectual coherence of Scalia's textualist jurisprudence?

Trump could not have been elected without the votes of conservative Christians--evangelicals and conservative Catholics--who were disgusted by Trump's shameless immorality and lack of any religious convictions, but who voted for him because he promised to appoint conservative constitutionalists to the Supreme Court who would uphold conservative Christian values. Preeminently, this meant legal decisions that would support the pro-life attempt to overturn Roe v. Wade, the protection of religious liberty, and slowing or reversing the expansion of LGBT rights.  It was assumed that this would be achieved by judges like Scalia who insisted that the proper role of judges is not to make the law but to interpret and apply the law as written, so that judges cannot act as legislators who change the law to advance their policy preferences.

In February of 2016, Scalia died.  A few weeks later, President Barack Obama nominated Merrick Garland to fill Scalia's vacancy on the Court.  This created a rare situation in which a Democrat president in his last year of office was nominating someone to the Supreme Court, who would have to be approved by a Senate controlled by the Republicans, and who would be replacing a conservative Republican appointed judge, so that the majority of the Supreme Court justices would swing from Republican appointees to Democrat appointees.  To prevent this from happening, Senate Majority Leader Mitch McConnell refused to even allow the Senate to consider Garland's nomination, arguing that this was inappropriate in a presidential election year, and that the new President should nominate someone in 2017.

During his campaign in 2016, Trump promised that all of his judicial appointments would come from a list of people recommended by the Federalist Society, the leading organization in the conservative legal movement devoted to packing the judicial system with conservative judges.  Conservatives claim to be constitutionalists and defenders of the rule of law who think judges should adhere to the original meaning of the Constitution and the clear textual meaning of the laws, in contrast to liberal judges who impose their liberal preferences in acting as legislators rather than judges.  Scalia was a hero of the conservative legal movement, and Trump promised that his first Supreme Court appointment would be someone like Scalia.  Religious conservatives were attracted by this because they assumed that conservative judges would favor conservative religious values.  For many religious conservatives, they could overlook all of Trump's obvious flaws and vote for him only because his judicial appointments would be good.

Trump's nomination of Gorsuch within the first weeks of his presidential term, and his later nomination of Brett Kavanaugh (to replace Antony Kennedy), seemed to satisfy the hopes of the religious conservatives that the Supreme Court would swing to their side.  No matter what Trump did to disappoint them, the religious conservatives could say: But there's Gorsuch!  But there's Kavanaugh!

What now?  Kavanaugh voted their way in Bostock.  But not Gorsuch.  And even more disturbing for them is that Gorsuch justified his vote by applying Scalia's textualist approach to the law.  If only a few religious conservatives decide that their bargain with Trump and the conservative legal movement has failed, and so they should not vote for Trump in November, that would probably cost Trump enough votes to lose.

That Gorsuch's opinion in Bostock really does mean that the bargain has failed was loudly and prominently declared by Senator Josh Hawley on the floor of the Senate this past week.  Hawley is the junior Senator from Missouri, who defeated Democrat Senator Claire McCaskill in 2018.  He's a lawyer who led the Federalist Society chapter at Yale Law School, and he's a fervent Christian conservative.  At age 40, he's the youngest person in the Senate.

In his speech, he said that the Bostock decision is "truly a historic piece of legislation" that changes the text of the 1964 Civil Rights Act to expand the protection from unfair sex discrimination in employment to include protection for gay men, lesbians, and transgender people.  But, of course, that's the problem--its a piece of legislation by judges who have acted as legislators in changing the civil rights laws rather than interpreting and applying the existing texts of the law.  This is not what he and other religious conservatives bargained for in supporting the conservative legal movement, because legal conservatives like Gorsuch were supposed to stay within the text of the law--and leave the lawmaking to the true elected legislators--in a manner that would protect the conservative values of religious believers.  In this case, religious conservatives would have expected Gorsuch to join Alito, Thomas, and Kavanaugh in resisting the demand of LGBT ideologues that judges should rewrite the laws to expand LGBT rights.

The problem, however, as Hawley indicates, is that judges like Gorsuch "invoke 'textualism' and 'originalism' in order to reach their preferred outcome."  Here Hawley seems to agree with Justice Alito that Gorsuch's textualism is fraudulent.  In his dissenting opinion in the Bostock decision, Alito warns that Gorsuch's opinion is legislation disguised as a judicial opinion interpreting a statute, and therefore it is not really anything like Scalia's textualism.
"The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled.  The Court's opinion is like a pirate ship.  It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated--the theory that courts should 'update' old statutes so that they better reflect the current values of society" (3). 
Gorsuch emphatically asserts that he is following Scalia's textualist approach in grounding his legal interpretation in the text of the law and nothing else.  "When the express terms of a statute give us one answer and extratextual considerations suggest another, it's no contest.  Only the written word is the law, and all persons are entitled to its benefit" (2).

Here's the crucial text from Title VII of the Civil Rights Act of 1964:
"It shall be an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin."
In the three cases before the Court, two individuals were allegedly fired by their employers for being homosexuals; and the third was fired when, having lived as a man, and after working for her employer for six years, she announced that she would henceforth be living as a woman.  All three argued that their firings violated Title VII declaration that an employer may not "discriminate against any individual . . . because of . . . sex."

Title VII never explicitly mentions homosexual orientation or transgender identity as illegal grounds for discrimination in employment.  There have been many attempts in the Congress to amend Title VII to define sex discrimination to include both "sexual orientation" and "gender identity."  Last year, the House of Representatives passed a bill to do this, but it has been stalled in the Senate.  The three dissenters in Bostock cite this as evidence that the text of Title VII as it now stands does not include homosexuality and transgender identity as prohibited grounds for employment discrimination, and therefore those like the plaintiffs in Bostock who want to expand Title VII's protections should have to wait until the law is changed by the legislature.

Gorsuch's argument, however, is that the present language of Title VII implicitly protects the three plaintiffs from discrimination, because when employers fire employees for being homosexual or transgender, these employers are discriminating against these individual because of sex.  If an employer would never think of firing Sally because she has a romantic interest in men, but then he fires John when he shows a romantic interest in men, that employer has treated the man differently from the woman because of his sex, which is the language of Title VII for illegal discrimination in employment.  A similar kind of reasoning would show that firing a transgender employee is forbidden by Title VII: if an employer fires his transgender female employee because he knows she was born a biological male, then he is firing her because of her sex.

Remarkably, Justice Kavanaugh concedes that "as a very literal matter," Justice Gorsuch's interpretation of the legal text is correct! But Kavanaugh argues that as a sound principle of judicial interpretation, the "ordinary meaning" of a legal phrase is to be preferred over the "literal" meaning.  So while Gorsuch is right that the literal meaning of discrimination because of sex includes discrimination against homosexuals and transgender people, the ordinary meaning accepted by reasonable people--legislators, judges, and citizens--is that prohibiting discrimination because of sex means equal treatment for men and women, which does not require prohibiting discrimination based on sexual orientation or gender identity.

Kavanaugh says that Scalia would not have accepted Gorsuch's literal interpretation of "because of sex."  After all, Scalia himself once said that "the good textualist is not a literalist" (6).  And yet Gorsuch relies heavily on a crucial interpretation of Title VII by Scalia in his opinion, writing for a unanimous court, in Oncale v. Sundowner Offshore Services (1998).  Joseph Oncale alleged that he was forced to quit his job working on an oil platform in the Gulf of Mexica because he had been sexually harassed by other men in the crew.  Oncale said that he would not have been harassed by these men if he had been a female, and therefore he had been discriminated against because of his sex, which was prohibited by the language of Title VII.

When the Congress wrote and approved Title VII in 1964, probably no one anticipated that the language of the text would prohibit the sexual harassment of men by other men in the workplace.  This was not part of Congress's original intent.  But still, Scalia concluded, if the literal interpretation of Title VII protected men from such harassment, then this was part of the original meaning of the statute, even if that meaning was not understood in 1964.

Scalia wrote:
"We see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII.  As some courts have observed male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII.  But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.  Title VII prohibits 'discriminat[ion] . . . because of . . . sex' in the 'terms' or 'conditions' of employment.  Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements."
The same literal reading of "because of sex" applied here, Gorsuch observes, also applies to employment discrimination based on the homosexuality or transgender status of employees.

This is what Walter Olson at the Cato Institute calls a "surprise plain meaning" reading of the law.  Sometimes a strict textualist reading of the law can turn up a meaning that surprises the jurisprudential textualists, a meaning that might even contradict the conservative policy preferences of the textualists.

But isn't that good for textualism, because it refutes the claim of textualism's critics that textualists use the supposed objectivity of textualism to read their own conservative ideology into the text of the law?  If textualism reveals in an unbiased way what the law really says, then one should expect that what is found in the law will sometimes surprise or even disappoint the conservative textualists.

That is the case with Gorsuch's reading of Title VII as expanding LGBT rights, against the desire of religious conservatives that those rights should be narrowed.  Similarly, as I have argued in a previous post, one can make a good textualist argument for concluding that the original meaning of the 14th Amendment supports same-sex marriage, which would provide a textualist justification for Justice Kennedy's opinion in Obergefell.  That argument has been well made by William Eskridge and Steven Calabresi in their amici curiae brief in the Obergefell case.  Eskridge and Andrew Koppelman made a similar textualist argument supporting Gorsuch's opinion in Bostock in their amici curiae brief in that case.

I doubt, however, that conservative Christians like Josh Hawley will ever be able to accept this kind of textualist jurisprudence when it supports decisions like those in Bostock and Obergefell that violate their Christian values.  And if they desert Trump in November because they think their bargain with Trump and the conservative legal movement has failed them, this could contribute to an electoral disaster for Trump and the Republican Party.

There is another fundamental problem here that Senator Hawley identifies.  He asks why most of the laws in the United States are made by unelected bureaucrats and courts rather than by the Congress, and he answers: "Because this body doesn't want to make law."  Congress has refused to claim and exercise its lawmaking authority, and consequently they have allowed the president, the administrative agencies, and the courts to make most of the laws.

And indeed here--in the interpretation of Title VII--the Congress has the power to overturn or revise the Supreme Court's interpretation of the law in Bostock by legislating a congressional interpretation of Title VII.  Congress has all the constitutional powers to be the supreme branch of the national government, but it often refuses to exercise those powers.

Wednesday, June 10, 2020

The Evolutionary Psychology of Magna Carta and the Rule of Law

                                                  The Original Latin Text of Magna Carta

In a few days, we will reach the anniversary of Magna Carta, which was a charter of rights agreed to by King John of England at Runnymede meadows, near Windsor, about 20 miles west of central London, on June 15, 1215.  For over 800 years, Magna Carta has symbolized the idea of the rule of law--the idea that freedom from unjustified force is secured under the rule of law when no person is above the law, and all people are equal before the law in the legal enforcement of their individual rights.

The power of this idea is illustrated now by the massive protests against police brutality and racial injustice sparked by the killing of George Floyd by a Minneapolis police officer on May 25.  The video of the police officer--Derek Chauvin--pressing his knee into the neck of Floyd until he died from suffocation was seen by billions of people around the world as an unjust violation of the rule of law.  This officer seemed to act as if he was not subject to the laws against violent assault and murder, and Floyd was not equal to all other citizens in having a right to life.  The many proposals for reforming police departments are designed to insure that police are under the rule of law, so that they will be punished for infringing on the rights to life, liberty, and property without due process of law.

The protests against the killing of Floyd have appeared in over a thousand locations in all 50 states of the U.S. and in over 40 other countries, including all of the European countries and around the world from Argentina and Brazil to Australia, New Zealand, and Hong Kong.  This shows a universal moral sentiment of disgust elicited by the violation of the principle of the rule of law, which suggests that this is rooted in evolved human nature.

To see Magna Carta as the original source for this idea of the rule of law has been challenged over the past one hundred years by some historians of law who ridicule this as a "myth" contrary to the historical reality of Magna Carta, which was nothing more than a failed attempt to achieve a peace treaty between King John and some rebellious barons trying to secure their baronial privileges.  The "myth of Magna Carta" was invented, the historians say, by Sir Edward Coke and other opponents of monarchic absolutism in seventeenth century England, because the idea that Magna Carta was part of an "ancient constitution" protecting the liberties of the people from monarchic tyranny was a good rhetorical weapon to use against the Stuart royalists (Herzog 2018; Jenks 1904; Pocock 1957).

But if one looks at the evolutionary history of Magna Carta--as a work of natural law, customary law, and statutory law--one can see that in advancing the aristocratic interests of their class in 1215, the English barons made an argument--that monarchic political authority could be constrained by a rule of law that protects the liberty of subjects--that could be expanded over the subsequent 800 years on a wider scale to secure the equal liberty of all individuals.  Although the "myth of Magna Carta" is not literally true, it is symbolically true as an evolutionary development of the inherent potential of Magna Carta for adapting to changing circumstances.

King John was a wretched monarch whose oppressive rule alienated many of his subjects, including his Barons, who were given their titles and their large tracts of land by the King.  Many of the Barons were angry about the King's endless increases in royal taxes and required payments and by the unjust arbitrariness of the King's courts.

Some of the Barons became so rebellious that they initiated a civil war to overthrow the King, and some tried to have him assassinated.  This was a common pattern in English history.  Almost every English King after William the Conqueror had faced a revolt by the nobility.  Failing to defeat the rebels in war, and fearing that he would be killed if he did not yield to their demands, King John was forced to meet the baronial leaders of the revolt at Runnymede and agree to affix his royal seal to Magna Carta, which declared that the King would secure a long list of "ancient liberties" for "all free men" in his kingdom.  Not trusting the King to keep his word, the Barons added a security clause at the end of the document, which provided for the election of twenty-five barons who would punish the King for any violations of the agreement by taking the King's castles, lands, and possessions.

Here we see the evolutionary origin of individual liberty, which always appears first as a by-product of a struggle for power among elite groups rather than as the result of any deliberate aim to advance liberty.  As I have suggested in some previous posts (here, here, here, here, and here), the Lockean evolutionary history of liberty is driven by the violent and non-violent resistance to tyranny, which Locke identified as the "executive power of the law of nature," and which includes civil war and killing kings.  The police protests show that same natural human propensity to resist oppressive injustice.

King John appealed to Pope Innocent III to annul Magna Carta by finding it a "shameful and demeaning agreement, forced upon the King by violence and fear."  The Pope did that, and England was thrown into what was known as the First Barons' War.  The Barons offered the crown of England to Prince Louis of France, who intervened in the civil war on the side of the Barons.  King John died in 1216 from an illness.  When the civil war ended in 1217, Magna Carta was reissued on behalf of Henry III, John's young son.  This began a long history in which Magna Carta was confirmed by later kings and revised by statutes of Parliament.

By the conventional numbering of the clauses, the original version of Magna Carta from 1215 has 63 chapters, while the version from 1225 has 37 chapters.  Most of those clauses assign rights or liberties to specified classes of people.  Six social classes are expressly mentioned: earls and barons, knights, "free men" (liberi homines), clerics, merchants, and villeins.  As Jenks and other historians have observed, nothing is said about the rights of "the people," which might seem to deny the mythic view of Magna Carta as securing the individual rights of the people.  Rather, most of the rights here are assigned to the aristocratic classes.

Most of the English people in 1215 were villeins (or serfs) who were tied to the manor of a lord, who did the servile work of the manor, and who were held by the lord as his property.  The "free men" are distinguished in Magna Carta from the villeins, and also from earls, barons, knights, clerics, and merchants.  "Free men" seem to be aristocratic landowners.

So while most of Magna Carta was written by Barons to protect their own privileges, there is some extension of rights to non-baronial classes, including the tenants of the Barons.  Chapter 60 declares: "all those customs and franchises mentioned above which we have conceded in our kingdom, and which are to be fulfilled, as far as pertains to us, in respect to our men; all men of our kingdom as well as clergy as laymen, shall observe as far as pertains to them, in respect of their men."

The two passages that were most important for Edward Coke's claim of an "ancient constitution" limiting the King's powers and protecting the rights of the people were chapters 12 and 39.  Chapter 12 reads: "No scutage or aid shall be imposed in our kingdom except by the common council of our kingdom, except for the ransoming of our body, for the making of our oldest son a knight, and for once marrying our oldest daughter, and for these purposes it shall be only a reasonable aid."  "Scutage" was a money payment in lieu of knight's service.  An "aid" was a grant by the tenant to his lord in times of distress.

Coke argued that this required parliamentary consent to royal taxation.  Some historians say this was a misinterpretation because there was no Parliament in 1215.  One could argue, however, that "the common council of our kingdom"--the "Great Council" of advisors to the King--was the predecessor of what became Parliament later in the 13th century.

The second important passage for Coke was chapter 39: "No free man [liber homo] shall be taken or imprisoned or dispossessed, or outlawed, or banished, or in any way destroyed, nor will we go upon him, nor send upon him, except by the legal judgment of his peers [nisi per legale judicium parium] or by the law of the land [per legem terrae]."

This is often said to be the first statement of the rights of the people to trial by jury, due process of law, habeas corpus, and the equal protection of the laws--traditional common law rights found in the amendments to the U.S. Constitution.

Some historians have made three arguments for why this is an unhistorical misinterpretation of this passage.  The words "no free man" implies a limitation to a small class of people.  The words "law of the land" are too vague to convey the modern idea of "due process of law."  And "legal judgment of his peers" probably meant not trial by jury but trial of barons by persons of equal rank rather than the king's judges who were of lower rank.

But while this might be true for the original meaning of chapter 39 in 1215, this ignores the fact that Coke's interpretation of this chapter was formulated as early as the 14th century in parliamentary statute.  Between 1331 and 1368, Parliament passed six statutes interpreting "no free man" to mean "no man" or "no man of whatever estate or condition he may be," interpreting "law of the land" to mean "due process of law." and interpreting "legal judgment of his peers" to mean trial by jury (Holt 2015, 39-40).

Here we see how Magna Carta fits into the evolutionary history of individual liberty under the rule of law as shaped by human nature, human custom, and human judgment, and as ultimately rooted in the evolved human instinct for resisting arbitrary absolute power over one's life, liberty, and property.


Herzog, Tamar. 2018. A Short History of European Law: The Last Two and a Half Millennia. Cambridge, MA: Harvard University Press.

Holt, J.C. 2015. Magna Carta.  Third edition. Cambridge: Cambridge University Press.

Jenks, Edward. 1904. "They Myth of Magna Carta." Independent Review 4: 260-273.

Pocock, J. G. A. 1957. The Ancient Constitution and the Feudal Law. Cambridge: Cambridge University Press.