The Darwinian Biology of Human Rights

A Darwinian analysis of the modern conception of human rights would turn on at least two main points. The first point would be the primacy of moral emotions in our grasp of human rights. The second would be the need for analyzing human rights as passing through three levels of human moral experience: generic human nature, specified human history, and individual human judgment.

The founding document for the modern human rights movement is the Universal Declaration of Human Rights. The Economic and Social Council of the United Nations established a Commission on Human Rights and mandated that it draw up an international bill of rights. The Commission worked on this for two years, from January 1947 to December 1948, when the Third General Assembly of the UN adopted the Universal Declaration.

A fascinating study of the drafting of the Declaration, based on the extensive records of the Commission, is Johannes Morsink's The Universal Declaration of Human Rights: Origins, Drafting, & Intent (1999). Recently, Morsink has published a second book elaborating the philosophic grounds implicit in the document--Inherent Human Rights: Philosophical Roots of the Universal Declaration (2009). Morsink argues that the Declaration assumes a "doctrine of inherent human rights," which rests on two complementary theses about the universality of human rights--the metaphysical universality of human rights as inherent in the human person from birth and the epistemological universality of the outrage felt towards brutality like that of the Nazis as expressing the universal conscience of mankind. He defends "moral intuitionism" as the best philosophic position for understanding the Declaration.

Although I generally agree with Morsink, I think that his unreasonable fear of "essentialism" leads him to play down the importance of human biological nature and the evolved moral emotions as expressed in the Declaration. I also think he is not as critical as he should be in considering some of the dubious rights asserted in the Declaration.

There continues to be great debate over the effectiveness and wisdom of the Declaration and the international human rights movement that it has fostered. But in some respects, its massive influence in the global history of the past sixty years is evident. A large body of international law has been formed to implement the Declaration. Hundreds of human rights groups--like Amnesty International and Human Rights Watch--have millions of members around the world. The governments of the world are under constant scrutiny for their human rights records.

The drafting of the Universal Declaration was in itself a remarkable event, because for the first time in human history, representatives of societies from around the world were able to agree on some universal principles of global morality. From the beginning, many people warned that it was impossible to formulate any universal principles of morality. For example, the American Anthropological Association sent a long statement to the Commission suggesting that the cultural relativism of morality would subvert any attempt to agree on any supposed universal morality; and they warned against the ethnocentrism of imposing Western cultural conceptions of rights on the rest of the world. The Universal Declaration and the human rights movement continue to be criticized today for failing to recognize the cultural relativity of all values and the dangers of asserting the universality of ethnocentric values.

Here is how the Declaration begins, with the first two recitals of the Preamble:

"(1) Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,
"(2) Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people."

Article 1 declares: "All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood."

The reference to "barbarous acts which have outraged the conscience of mankind" reminds us, of course, that the Declaration was largely an expression of shared moral revulsion against the Holocaust and the other horrors of Nazism in World War II. Morsink is insightful in showing how the drafting of the document can only be explained as an expression of a universal repugnance towards the atrocities of Nazism. The phrase "conscience of mankind" generalizes from the feelings of outrage that people around the world felt in response to the radical evils of Nazism. Thus, the Universal Declaration of Human Rights shows us how we derive "rights from wrongs" (a phrase used as the title of a book by Alan Dershowitz). That is to say, we formulate "rights"--justified entitlements to special treatment--from our experience of shocking injustices. The Declaration shows how moral outrage against atrocities expresses a universal morality that can be formulated as human rights rooted in the inherent dignity of all human beings.

While the Commission on Human Rights was drafting the Declaration, UNESCO sponsored a survey of thinkers and writers who were asked to offer advice on the philosophic basis of human rights. Some of their responses were collected into a book with an Introduction by Jacques Maritain--Human Rights: Comments and Interpretations (1949). Maritain described the book as "devoted to the rational interpretation and justification of those rights of the individual which society must respect and which it is desirable for our age to strive to enumerate more fully" (9). He reports: "at one of the meetings of a UNESCO National Organization where human rights were being discussed, someone expressed astonishment that certain champions of violently opposed ideologies had agreed on a list of those rights. 'Yes,' they said, 'we agree about the rights but on condition that no one asks us why.' That 'why' is where the argument begins."

Maritain observes that the philosophic debate among those surveyed by UNESCO seemed to come down to a disagreement between those who accepted the idea of "Natural Law" and those who rejected it:

"In the eyes of the first the requirements of his being endow man with certain fundamental and inalienable rights antecedent in nature, and superior, to society, and are the source whence social life itself, with the duties and rights which that implies, originates and develops. For the second school man's rights are relative to the historical development of society, and are themselves constantly variable and in a state of flux; they are a product of society itself as it advances with the forward march of history" (13).

Although Maritain sees no theoretical resolution to this debate, he suggests that the dispute might be moderated if the disputants could see the partial truth in the opposing position. Proponents of natural law should distinguish between rights that secure a "prime necessity" and those that secure a "secondary necessity," while conceding that our knowledge of both depends on the evolution of moral consciousness in history. On the other side, opponents of natural law should see that while many rights are historically conditioned, there are "more primitive rights" that are necessary for the good order of any human society whatsoever.

Catholic Thomists like Maritain see natural law as grounded in God and Nature--or, as the American Declaration of Independence says, "the Laws of Nature and Nature's God." In the drafting of the Universal Declaration, Charles Malik of Lebanon was the leading spokesman for this Catholic Thomist position. Malik proposed an article on the family that read: "The family deriving from marriage is the natural and fundamental group unit of society. It is endowed by the Creator with inalienable rights antecedent to all positive law and as such shall be protected by the State and Society." The drafters rejected the second sentence, because they wanted to avoid any religious invocations of God as the source of rights. But they accepted the first sentence affirming the naturalness of the family as the fundamental unit of society, and this became Article 16 of the Declaration. At least implicitly, then, they accepted a purely secular version of natural law thinking, although this Article 16 is the only place where the Declaration refers explicitly to "nature."

At one point in the drafting process, there was another reference to nature. It was proposed that Article 1 should declare that all human beings "are endowed by nature with reason and conscience." As an alternative to this language, the Brazilian delegation proposed: "Created in the image and likeness of God, they are endowed with reason and conscience . . ." Similarly, the Dutch delegation proposed that the first recital of the Preamble should state: "Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family, based on man's divine origin and immortal destiny, is the foundation of freedom, justice, and peace in the world."

These proposals for religious language about human beings as created in God's image provoked intense debate. Some of the drafters saw a stark opposition between God and nature as alternative sources for human reason and conscience. Bogomolov of the USSR attributed the phrase "by nature" to "French materialist philosophers." Finally, the Brazilians agreed to withdraw their religious language if the phrase "by nature" were dropped, and a consensus formed on this resolution of the dispute.

At one point, a proposed amendment would have changed "by nature" to "by their nature," which conformed to Malik's recollection that "the intention of the Commission on Human Rights had not been to imply that man was endowed with reason and conscience by an entity beyond himself" (UDHR, 287). It is regrettable, I think, that the drafters did not go with this phrase "by their nature," because this would have clearly suggested their understanding that the source of human rights is neither a transcendent God nor a transcendent Nature, but human nature.

But then how exactly does "human nature" give rise to "human rights"? It's easy to see how legal rights are created by legal enactment. But it's harder to see how moral rights can exist as standards for judging legal systems. Legal positivists would say that the only rights are legal rights, and that the idea of human rights as moral rights that exist independently of positive law is pure fiction.

How is it that all human beings are "born" with "inherent dignity" and equal human rights? How does a physical birth as a human being translate into a moral birth as a being endowed with rights? Moral philosophers have tried to find a rational proof for the existence of moral rights or of any standard of right and wrong. But philosophers have never reached any agreement on any such rational proof.

I agree with Morsink that this futile quest of philosophers to find a rational proof for moral standards indicates the fundamental mistake in assuming that morality is a product of pure reason. The shared moral outrage against Nazi atrocities that motivated the drafting of the Universal Declaration illustrates how our moral experience arises not from pure reason alone but from moral emotions, and particularly from emotions of disapproval and disgust.

Even as the memories of World War II and the Nazis fade into distant history, we can still see how the emotions of moral revulsion support the idea of human rights. Go to the websites of Amnesty International and Human Rights Watch and scan some of their reports. Mostly what these organizations do is simply prepare reports that describe cruelty around the world--torture, rape, murder, slavery, and so on. They don't offer any logical arguments to prove that such behavior is wrong, because they assume that a vivid description of cruel behavior will elicit powerful emotions of disapproval. Those they accuse of perpetrating the cruelty will respond by trying to persuade us that the reports from these human rights groups are factually inaccurate.

So reason does have a role to play here, because we need good rational judgment in gathering and assessing information about what is happening. But once we're confident about the facts of the case, our moral judgment of right or wrong depends on our emotional reaction of approval or disapproval. The Universal Declaration is right: to recognize human rights, we need both "reason and conscience"--reason for factual judgments of truth and falsity and conscience for emotional judgments of right and wrong. Reason also allows us to generalize our moral emotions into moral rules. So that, for example, we judge that as a rule human beings have a right to life because the killing of innocent people would elicit moral emotions of disapproval from any normal human being.

This view of moral judgments as ultimately based on emotions is best elaborated in the Darwinian ethics of Edward Westermarck, which best explains the human nature of human rights. As animals formed by natural selection for social life, Westermarck argues, we are inclined to feel resentment toward conduct that we perceive as painful, and kindly emotion toward conduct that we perceive as pleasurable. The mental dispositions to feel such emotions evolved in animals by natural selection because these emotions promote survival and reproductive fitness: resentment helps to remove dangers, and kindly emotion helps to secure benefits. For the more intelligent animals, these dispositions have become conscious desires to punish enemies and reward friends.

Moral disapproval, for Westermarck, is a form of resentment, and moral approval is a form of kindly emotion. In contrast to the non-moral emotions, however, the moral emotions show apparent impartiality. (Here one can see the influence of Adam Smith's idea of the "impartial spectator.") If I feel anger toward an enemy or gratitude toward a friend, these are private emotions that express my personal interests. In contrast, if I declare some conduct of a friend or enemy to be good or bad, I implicitly assume that the conduct is good or bad regardless of the fact that the person in question is my friend or my enemy. This is because it is assumed that when I call that conduct good or bad, I would apply the same judgment to other people acting the same way in similar circumstances, independently of how it would affect me. This apparent impartiality characterizes the moral emotions, Westermarck reasons, because social life gives birth to moral consciousness. Moral rules originated as tribal customs that expressed the emotions of an entire society rather than the personal emotions of particular individuals. Thus, moral rules arise as customary generalizations of emotional tendencies to feel approval for conduct that causes pleasure and disapproval for conduct that causes pain.

Although Westermarck stresses the moral emotions as the ultimate motivation for ethics, he also recognizes the importance of reason in ethical judgment. He follows Hume, Smith, and Darwin in arguing that ethical experience combines reason and emotion. Emotions, including the moral emotions, depend upon beliefs, and those beliefs can be either true or false. For example, I might feel the moral emotion of disapproval toward someone because I believe he has injured his friends, but if I discover by reflection that the injury was accidental and not intentional, or that his action did not actually cause any injury at all, my emotion of disapproval vanishes. Moreover, since our moral judgments are generalizations of emotional tendencies, these judgments depend upon the inductive use of human reason in reflecting on our emotional experience.

Westermarck's emphasis on the variability, relativity, and subjectivity of ethical experience has provoked some critics to complain that he does not recognize any enduring or universal standards of ethical conduct. It seems to these critics that Westermarck's Darwinian ethics is radically arbitrary. And so it might seem that Westermarck would be on the side of the historical or cultural relativists who deny the very possibility of universal human rights.

Yet Westermarck clearly relies on the uniformity of human nature as a ground for universal ethical principles. One can see this in his massive two-volume survey of the cross-cultural history of morality--The Origin and Development of the Moral Ideas--which shows both the unity and diversity of human moral experience. (Don Brown's book Human Universals (1991) shows that some anthropologists are reviving Westermarck's work.) Despite radical differences in ethical judgments, Westermarck concludes, "the general uniformity of human nature accounts for the great similarities which characterize the moral ideas of mankind." Such uniformity must exist, he argues, because despite individual and social variation, human beings belong to the same animal species and therefore display similarities in their mental constitution. Thus, Westermarck's ethical theory does not promote nihilism or irrationalism, for he sees the moral emotions that constitute the basis for his ethics as manifesting the natural propensities of a universal human nature. This appeal to the natural human inclinations makes his account of ethics a restatement of natural law reasoning, but one rooted in an empirical Darwinian science of human nature.

Consider how Westermarck's reasoning would apply to the concept of human rights. A right, he would say, is rooted in the emotion of moral disapproval. To have a right to do something means that it is not wrong to do it. So, for example, that someone has a right to life means that it would be wrong for other people to prevent him from living, that it is their duty to refrain from killing him. Similarly, we could formulate a list of natural moral rights that correspond to those natural human capabilities that elicit sympathetic emotions of approval.

Morsink interprets human rights as corresponding to the "transcultural species-wide capabilities normally inherent in human beings" (IHR, 38). He relies on Martha Nussbaum's "capabilities approach" to justice. She identifies ten "central human capabilities" of which the fulfillment constitute full human flourishing: (1) life, (2) bodily health, (3) bodily integrity, (4) senses, imagination, thought, (5) emotions, (6) practical reason, (7) affiliation, (8) other species, (9) play, (10) control over one's environment. Morsink shows how the articles of the Universal Declaration correlate to Nussbaum's ten capabilities and argues that we should read the Universal Declaration as saying that all human beings have equal rights to develop the ten human functional capabilities.

There is a lot of overlap between Nussbaum's list of ten human capabilities and my list of twenty natural human desires. Both lists correspond to the moral regularities of evolved human nature that arise in Westermarck's Origin and Development of the Moral Ideas.

One problem with Morsink's argument, however, is that he fails to see the distinction between the generic propensities of human nature and the specific entitlements of human rights. Human rights can be humanly universal insofar as they satisfy the natural desires of evolved human nature. But these rights are also culturally contingent insofar as their specific entitlements depend on cultural conditions and individual judgments that are constrained but not determined by human nature.

So, for example, we can agree with the Universal Declaration that family life and marriage are natural and should be protected as human rights, because we can see that human beings as a species are familial animals. At birth, children depend on parental care, and we can agree with Darwin that natural selection has favored the social instincts of parent-child bonding as the primal root of all human sociality. We can see, then, that the physical birth of a child becomes a moral birth insofar as the parents (or other adults assuming parental roles) invest their child with the dignity that comes from their emotional attachment to the child. We know that there are complex neurophysiological mechanisms for reinforcing parental attachment to children, and these same mechanisms can be extended to other human beings.

And yet the Universal Declaration speaks of family life and marriage in generic terms without specifying any particular form of marriage or familial arrangements, which are left up to the cultural circumstances of particular societies. Whether we favor monogamous or polygamous marriages, for example, will depend upon variable cultural history.

As I have indicated in my posts on the incest taboo, Westermarck is most famous for his Darwinian account of the moral rules surround incest avoidance, which illustrates the natural universality and cultural variability of morality. We are naturally inclined to learn to avoid sex with those with whom we have been reared from an early age. So in all human societies, there is a strong tendency to prohibit the marriage of siblings or of parents and children, because this tends to arouse strong emotions of repugnance. But beyond the nuclear family, there is great variation in marriage rules. In some societies, the marriage of cousins is encouraged, while in others it is prohibited.

We should also note that not only is there variation accross societies, there is also variation across individuals. The tendency to learn incest avoidance is a natural propensity for most human beings. But some individuals will not show this propensity. We recognize such natural propensities as "normally" present in human beings. But the temperamental variability of human beings will always produce some people who lack these normal propensities. In extreme cases--psychopaths, for example--we might see human beings who have none of the normal moral emotions, and we must treat these people as moral strangers. The Nazis who carried out the Holocaust showed a "disregard and contempt for human rights" so that their natural human sympathy was somehow blunted or blinded by individual temperament or social circumstances.

One common way in which the moral sense is blunted or blinded is through xenophobia--the natural human disposition to care more for those close to us than for strangers, to distinguish friends and enemies, those in our group and those outside. In extreme cases--as with Nazi Germany--some human beings are dehumanized and thus treated as outside the circle of human sympathy.

The modern human rights movement is obviously an attempt to extend the circle of our moral emotions to embrace all of humanity, or as the Declaration says, "all members of the human family." A Darwinian ethics like that developed by Westermarck allows for such humanitarian or cosmopolitan ethics but within the realistic limits set by human nature.

Darwin saw a history of moral progress in which human sympathy has been gradually extended from the family to small tribes, then to large nations, and eventually to all of humanity. In the Descent of Man, he wrote: "As man advances in civilization, and small tribes are united into larger communities, the simplest reason would tell each individual that he ought to extend his social instincts and sympathies to all the members of the same nation, though personally unknown to him. This point being once reached, there is only an artificial barrier to prevent his sympathies extending to the men of all nations and races." Robert Wright used this quotation as the epigram for his book Nonzero in which he surveyed the entire history of the world as an ever-expanding series of nonzero-sum games of cooperation that moves ultimately to a global community. Darwin believed that this advance of sympathy would eventually extend even beyond humanity to include the lower animals, so that we would see "the most noble attribute of man" in the "disinterested love for all living creatures."

Although this can appear to be a utopian view of morality, I think Darwin indicates that he is realistic in recognizing that our moral concern will always tend to favor those close to us. Westermarck indicates this clearly, and biologists like Frans de Waal have confirmed it. Morsink recognizes this when he speaks of how human rights and duties move outward through a series of concentric circles. We care first and most strongly for ourselves and those bound to us by ties of kinship and friendship. Our moral concern can expand to ever-wider circles to include our extend kin, our clan, our group, our nation, all of humanity, and perhaps even all life forms. But the expansion to the wider circles will occur only in those cases where our provisioning of the inner circles is secure.

Here is where the utopian cosmopolitanism of someone like Peter Singer fails (as I have indicated in chapter 9 of Darwinian Conservatism). Singer is a moral rationalist, who insists--against those like Westermarck who stress the primacy of moral emotions--that morality is ultimately based on pure reason. And the logic of moral reasoning, according to Singer, leads to one fundamental principle--the impartial consideration of the similar interests of all sentient creatures. So, for example, it is immoral to spend money caring for our dying parents that could have been better spent to save distant strangers from starvation. Singer himself admits that he acted immorally when he spent money to care for his dying mother who was suffering from Alzheimer's, because he should have given this money to Oxfam to save the lives of some strangers somewhere in the world. That almost everyone recognizes the absurdity in such positions testifies to the emotional reality of our moral concern as naturally constrained by love of one's own.

Similarly, the human rights movement becomes utopian when it strives for a new world order in which patriotism has been abolished for the sake of absolute cosmopolitanism. To some degree, and in some circumstances, our moral emotions can be extended to "all members of the human family." But that humanitarian morality will always be limited by our naturally predominant concern for ourselves and those close to us.