The conference was entitled "Law as a Guide to Justice: A Symposium on the Philosophical and Theological Foundations of Law and Justice in Honour of Amanda Perreau-Saussine Ezcurra (1971-2012)."
Most of the participants were friends of Amanda. Although I did not know her, I can tell by the testimony of her friends that she was a remarkable human being. The last years of her life were shadowed by premature death--first, the death of her first husband, and then her own death 18 months later from cancer at the age of 41 in 2012. At the time of her death, she was a Fellow of Queens College, and University Lecturer in Law, at the University of Cambridge. Her primary academic intellectual interests were international law and the philosophy of law. She was a devout Catholic who was an energetic and faithful member of the British Catholic community, particularly British Catholic professors. Cambridge University has had some prominent Catholic philosophers--Elizabeth Anscombe, for example.
There is some oddity here considering the history of Cambridge University as an integral part of the Anglican Communion initiated by Henry VIII's secession from the Catholic Church. For a long time, degrees at Cambridge were granted only to those professing the Anglican faith, and every graduate had to declare belief in the Thirty-nine Articles.
Amanda wrote her thesis on John Finnis, another Catholic philosopher. Although she admired his work in reviving interest in natural law among analytic philosophers through his book Natural Law and Natural Rights, she differed from him in her understanding of natural law. One difference was that she thought Thomistic natural law could be rooted in some manner in the natural sociability of evolved human nature, while Finnis's Kantian interpretation of natural law rejected any such appeal to biological nature. This explains why I was invited to present a paper at this conference: my argument for a Darwinian science of Thomistic natural law echoes some of her thinking.
It seemed fitting to me that I should be travelling to Cambridge to make my Darwinian arguments just one month after returning from my second trip to the Galapagos. In 1827, after giving up his studies to become a medical doctor at the University of Edinburgh, Charles Darwin provoked the anger of his father who exploded: "You care for nothing but shooting, dogs, and rat-catching, and you will be a disgrace to yourself and all your family." His father warned him that he needed some kind of respectable profession, and his father suggested that becoming an Anglican clergyman might be just what he needed. So his father sent him to Cambridge for an Arts degree at Christ's College that would be the first step towards Holy Orders. He arrived in Cambridge in January of 1828. Although he had little interest in theology, Darwin did enjoy studying with the natural philosophers at Cambridge--particularly, John Henslow, professor of botany, and Adam Sedgwick, professor of geology.
Darwin's College Room at Christ's College, Cambridge
But then, while away from school on a holiday in August of 1831, Darwin received a letter from Henslow telling him about Captain Robert FitzRoy, who was looking for someone who would be a companion for him and a naturalist on a voyage of the Beagle to do a coastal survey of South America for the British Navy. That changed his life--instead of becoming a country clergyman, he would become a naturalist who would develop one of the biggest ideas of science.
Darwin's big idea has been elaborated in a tradition of evolutionary science that includes evolutionary explanations of morality and law that influenced some of Amanda's thinking about natural law. In an unfinished book, entitled Law as a Guide to Justice: Old Questions for New Natural Lawyers, she wanted to show how the evolutionary biology of social animals--as set forth by people like Jane Goodall and Frans de Waal--could show the evolved natural sociability manifest in human nature that might support natural law. In contrast to Kantian philosophers like Finnis, who claim that natural law depends on pure reason alone, she wanted to show that prior to human reason there are natural needs and inclinations that provide the grounds for natural law. She also wanted to show how this natural law could be seen as implicit in statutory law, customary law, and divine law.
Her untimely death kept her from developing her ideas in a finished book. The purpose of the Cambridge conference was to have the participants pursue the questions she wanted to raise and perhaps carry out some of the work she had wanted to do in her book. Previously, I have written a post with my comments on the conference papers and a link to the Dropbox file that has all the papers.
My biggest surprise is that apparently at Cambridge University they rely on lecturing rather than on open discussion among participants who have read something beforehand and are prepared to discuss what they have read. I distributed weeks ahead of time an extensive set of comments on all the papers for the conference to all the participants. Except for James Murphy and James Stoner, no one responded to my comments. No one else circulated any comments on the papers. And at the conference, I heard no evidence that anyone had read all the papers and was prepared to talk about the papers. Moreover, the organizers of the conference indicated that they had intentionally made it impossible for anyone attending the conference to read the papers for the conference. This is very different from the academic culture that I know at the University of Chicago, St. John's College, and the Liberty Fund, where one assumes that everyone participating in some discussion has read the readings for the gathering and is prepared to discuss them.
As I listened to the discussions at the conference, I thought about three main questions:
Must normative nature transcend empirical nature?
Must the Catholic tradition of philosophy be anti-liberal?
Is human law derived from natural law?
The conference began with comments by Onora O'Neill, The Baroness O'Neill of Bengarve. She is a prominent moral philosopher at Cambridge, perhaps best known for her books interpreting Kant. She spoke about her conversations with Amanda, who was interested in Kant's understanding of judgment and how that might apply to legal interpretation.
O'Neill related that Amanda once asked a Cambridge professor about whether there was any consistent theme in the work of Alasdair MacIntyre, given the many shifting positions that he has taken over his life, and the answer was one word-- "Anti-liberalism!"
I noticed that many, maybe most, of the speakers at the conference were anti-liberal Catholics like MacIntyre. I wondered about that. Aren't they happy that liberal ideas like tolerance and religious liberty have prevailed at places like Cambridge, so that the tradition of Anglican intolerance has been overturned, and Catholics are free to profess their faith without persecution? Don't Catholics like MacIntyre embrace such liberal ideas? If so, then how can they be anti-liberal?
If they are anti-liberal Catholics, does that mean that they reject Vatican II and the Catholic Church's acceptance of religious liberty and the admission that the Church's tradition of persecuting heretics was wrong? I assume not.
Anti-liberal Catholics like MacIntyre like to scorn what they see as the consumerism, materialism, and secularism of modern liberal culture and then insist that this cannot satisfy the human longing for transcendent spirituality expressed in religious communities. But they do not consider how liberalism promotes the moral and religious liberty that allows people to pursue their spiritual quest in association with others who share their spiritual commitments. Aren't British Catholics like Amanda and her friends better able to live their spiritual lives because of the triumph of liberal culture in Great Britain and elsewhere?
Anti-liberal Catholics like MacIntyre like to argue that Aristotle and Aquinas better understood the need for the moral and intellectual virtues for human flourishing than do modern liberal thinkers. But they don't confront the argument of those like Deirdre McCloskey that modern liberalism promotes the bourgeois virtues, which include all the virtues recognized by Aristotle and Aquinas, and perhaps even the supernatural virtues of faith, hope, and charity.
The second introductory speech was by Tobias Schaffner, who presented the four central questions of Amanda's book as the questions around which this conference was organized.
(1) Is there a benign law-like ordering of the world and especially of human nature? Part of Amanda's answer to this question was to point to the chimpanzee behavior studied by Goodall and de Waal as showing an animal nature that is both selfish and social that might be manifest in human nature as well.
(2) How do we derive exceptionless natural laws from our sociable nature? Amanda's answer to this question was to appeal to Aquinas's account of the precepts of natural law as corresponding to the order of the natural inclinations, which suggests that there are vital needs or desires that constrain legal and political reasoning. Whether this gives us "exceptionless" natural laws, as Amanda thought, is not so clear, it seems to me. After all, Aquinas stressed the variability in the circumstances of human social life that require prudential judgments about what is best for particular individuals in particular situations. Amanda's interest in human judgment about the indeterminate circumstances of life points to this problem.
(3) Can positive law, customary law, and divine law be our guide to natural law? If Aquinas is correct about human laws being derived from natural law, then we should be able to see human laws implicitly pointing to natural law, even when human laws do not explicitly invoke the idea of natural law. This made me want to reexamine what Aquinas says about this (ST, I-II, q. 95, a. 2). For example, the U.S. Constitution never explicitly speaks of "natural law" (unlike the Declaration of Indepedence). Does that mean that there is no natural law reasoning in the Constitution? Or is it possible that natural law reasoning is implicitly required for interpreting the Constitution? For instance, does "due process of law" in the Fifth Amendment imply some standard of natural justice? Does the Ninth Amendment's reference to unenumerated rights "retained by the people" imply natural rights?
(4) Is there a benign structure and providential ordering sustaining the natural order and representing the foundation of natural law? Does natural law depend on the theological belief in "a benign structure and providential ordering" of the world, which Christians like Amanda can embrace? If natural law is really natural, and separated from divine law, as Aquinas says, does this mean that people without such religious belief can recognize natural law through their natural experience of the world and of their human nature?
The four sessions of this conference corresponded to this four questions.
John Cottingham (University of Reading) answered the first question by arguing that natural law does indeed depend on "a benign law-like ordering of the world and human nature" by God. (I first met John in 2010 in Beijing at a conference on evolution and ethics where he made a similar argument against grounding ethics in evolutionary science.) He distinguished between two senses of the word "nature." According to the traditional premodern "theistic worldview," he explained, nature is a normative reality as created by God. According to the modern "secularist worldview," nature is an empirical reality studied by science. Nature is normative if one agrees with Cottingham that human beings by nature have a divinely implanted light of conscience by which they can see what is objectively right and wrong as determined by God. Nature is only empirical, however, if one believes that human moral judgment is rooted in human desires, inclinations, or emotions, and thus the moral standard is purely subjective. I would say that Cottingham's distinction here corresponds to Ed Wilson's distinction (in Consilience) between transcendentalist ethics and empiricist ethics, except that Wilson, in contrast to Cottingham, takes the side of empiricist ethics as rooted in the evolved moral sentiments of human nature, without any necessity for invoking God or divinely implanted conscience.
In my written comments on Cottingham's paper, I asked him whether he thought human beings could recognize and follow natural law even if they had no theistic religious beliefs. In his oral presentation, he answered yes.
This made me wonder in what way Cottingham sees the "theistic worldview" as superior to the "secularist worldview." He seemed to say that theism is intellectually superior to secularism in that theism can give a more intellectually satisfying explanation of natural law as derived from God's eternal law. But then he left it unclear as to whether theism is also practically superior to secularism in that theism is better in practically motivating good conduct. If that is what he is saying, then this is an empirically falsifiable prediction: we should be able to find evidence that moral conduct on average was better in premodern Europe as dominated by theistic belief than in modern Europe as dominated by secularism. So, for example, it would seem that Cottingham would have to challenge the evidence for declining violence in history as surveyed by Steven Pinker and others, because declining violence would seem to show moral improvement in European history. (I raised these questions in my written comments.)
Cottingham did not answer my questions in my written comments about whether he agreed with me that natural law can correct the divine law of the Bible--for instance, with respect to the violence and the support for slavery in the Bible. Nor did he answer my questions about whether he agreed with Popes John Paul II and Benedict XVI in asking forgiveness for the faults of the Catholic Church in promoting religious violence.
In the Bible and in human history generally, we often see theistic believers inflicting violence on innocent people. If natural law allows us to condemn this as wrong, doesn't that show that we need an empiricist ethics to correct the mistakes of a theistic ethics?
In the next session of the conference, Nicholas Lombardo (The Catholic University of America) and I spoke in favor of the idea that natural law can arise from our sociable nature (the second question). Lombardo argued that the Mosaic law presupposes natural law.
I then summarized some of my arguments for Darwinian science as supporting Thomistic natural law. Patrick Riordan (Heythrop College, London) responded to my paper with three points.
He questioned my methodology in arguing that I selectively picked out only those kinds of animal behavior that might look good to us (like monogamous mating and parental care of offspring) and passed over the brutal violence of animal behavior that we would see as bad.
For his second point, he quoted MacIntyre's observation (in Dependent Rational Animals) about my "illuminating argument, designed to show how Aquinas's theses about the natural law are compatible with a biological understanding of human nature" (125); and he suggested that it was better to say that human biological nature was "compatible" with Thomistic natural law than to make the stronger claim that human biological nature "supports" Thomistic natural law.
For his final point, he indicated that I had failed to properly distinguish human "goods" and the "precepts" of natural law.
I didn't respond to the last point, because I didn't understand exactly what he was saying, which is probably my fault.
To the first point, I answered by indicating that I had not in fact ignored the harsher side of animal behavior. For example, in the section of my paper on monogamy among birds, I noted that while monogamous birds might be socially monogamous, they were not always sexually monogamous or genetically monogamous, because they showed many "extra-pair copulations," and thus they did not satisfy Aquinas's standards for monogamy.
To the second point, I answered that Aquinas's heavy reliance on animal biology did seem to indicate that he saw this as "support" for natural law as rooted in biological nature.
MacIntyre's Dependent Rational Animals is a fascinating recognition by MacIntyre that Aristotelian and Thomistic moral philosophy depends upon biological nature. In After Virtue, MacIntyre had argued that he wanted his defense of Aristotelian virtue ethics to be independent of Aristotle's "metaphysical biology," which was not rationally defensible. But then after reading my Darwinian Natural Right, MacIntyre changed his mind; and in Dependent Rational Animals, he declared: "I now judge that I was in error in supposing an ethics independent of biology to be possible" (x). He saw two reasons for this. The first is that one must explain how human biology makes a moral life possible for human beings. The second is that human biology explains the human vulnerability that makes us dependent on other human beings--particularly, the dependence of the young and the old. Dependent Rational Animals lays out the biological basis of the moral life.
In the question period, James Bernard Murphy (Dartmouth College) made the argument that if our evolved natural desires were adaptive for the ancient environments of our evolutionary ancestors, they might not be adaptive for us today, and thus not normative for us. So, for example, if our ancestors evolved a taste for sugar, that would not necessarily be good for us today, where the abundance of sugar allows us to ruin our health with too much sugar. My response was to say that this illustrates the need for judgment in managing our desires. Our desire for health can motivate us to see the need to moderate our desire for sugar. This was part of the general point that I made in my oral presentation that while the good is the desirable, the desirable is not necessarily whatever we happen to desire at any moment. We often discover that we have been desiring something that is not truly desirable for us, and our practical judgment allows us to correct our mistake. Moral judgment thus requires a combination of reason and desire, as Aristotle argued.
Cottingham also questioned me about whether Thomistic natural law requires a teleology that is denied by Darwinian biology. I answered by pointing to the argument in my paper that Darwinian biology relies on immanent teleology, although it rejects cosmic teleology. Cottingham and others at the conference argue that Thomistic natural law really does require a cosmic teleology--that is, the conception of the whole world as a benign order created by a providential God.
The next session of the conference was on Amanda's third question and entitled "Positive State Law as a Guide to (Natural) Justice." Gerald Postema (University of North Carolina School of Law) spoke about his paper on Matthew Hale's "common-law naturalism." The respondent was Judge James Crawford of the International Court of Justice.
Against the claim of some scholars that Hale was a legal positivist, Postema argued that Hale saw the common law as derived from natural law. Postema did not respond to my questions in my written comments about whether Hale's endorsement of witchcraft trials and of the principle that husbands cannot be tried for raping their wives shows that Hale's judgment of natural law was distorted by his bias against women. I can only assume that Postema believes that Hale's legal judgment in these cases of witchcraft and rape is irrelevant to any account and assessment of his jurisprudence.
Judge Crawford said that he was not a scholar of Hale's jurisprudence, and therefore he could not comment on Postema's interpretation of Hale. Instead of that, he spoke about the failures of the "additive theory of international law" as proposed by legal positivists--the idea that international law can be explained as custom that has been recognized as law. He questioned whether it as possible to rccognize custom as law without seeing the norm inherent in custom, suggesting that custom must manifest some natural standard of justice. He also questioned how it was possible to do something for the first time and recognize this as custom.
The next speaker was James Stoner (Louisiana State University) summarizing his paper on how we can rightly distinguish the work of the legislator from the work of the judge in American constitutionalism by applying Aquinas's distinction between human law as a determination of natural law and human law as a deduction from natural law: the American legislator is concerned with determination, while the American judge is concerned with deduction.
In my written comments, I said that Stoner's paper is confusing, because he says that there is a "mixture of deduction and determination in legislative activity" (18), and he also says that "a mixture of deduction and determination appears as well in the reasoning of judges" (18). In an email message to me, Stoner said that in claiming that determination ought to belong to the legislative power alone, he was not saying that determination alone ought to belong to the legislative power; and he said that the mixture for judges came from judges being bound by the determinations of others.
In his oral presentation, Stone did not explain what he meant in his paper by "the natural law moment in constitutionalism" (17). But he seemed to say that even without any explicit reference to natural law in the Constitution, all law, including American constitutional law is either a determination of or a deduction from natural law.
What does this say, for example, about the antebellum debate over the constitutional status of slavery? If slavery was contrary to natural law, does that mean that the constitutional protection for slavery should have been overturned by an appeal to natural law, because an unjust law is not really a law? Or does natural law allow for some prudential compromise with slavery insofar as it is constitutionally protected?
Nigel Simmonds (University of Cambridge) was the respondent for Stoner's paper. But instead of responding to Stoner's paper, Simmonds briefly summarized the central idea of his book Law as a Moral Idea (2008). In that book, he argued that "law is the set of conditions for jointly possible freedoms." Although he presented this as a Kantian idea, it could just as easily be seen as a Lockean idea. Oliver Wendell Holmes famously ridiculed the idea that law is "a brooding omnipresence in the sky." But Simmonds argued that there is a sense in which this really is true. Law is not just a heap of statutes and precedents, as Holmes seemed to claim, because law really is an ideal edifice, in that laws must be interpreted as a good faith attempt at doing justice, and adjudication is the working out of the law as an ideal edifice of justice.
The final session of the conference was on "When and Why are Positive Laws a Guide to Justice?" James Murphy began by speaking about his paper on the modern idea of human rights as possibly an modern expression of the idea of natural law. He spoke of two possible theological arguments and one possible philosophical argument justifying human rights.
The most commonly expressed theological argument, and the one that Murphy accepts as a Catholic, is the teaching of the Old Testament that all human beings are created in the image of God, which can be interpreted as declaring the equal moral dignity of human beings as endowed by their Creator with rights, which is affirmed in the famous language of the Declaration of Independence.
The second theological argument is attributed by Murphy to Nicholas Wolterstorff, a Calvinist who affirms total human depravity and thus denies that human beings deserve to be treated with equal dignity. According to Wolterstorff, the moral dignity of human beings supporting human rights must be seen as an undeserved gift from God based on the New Testament teaching that all human beings will be redeemed on the Last Day for an eternal life in friendship with God.
The Universal Declaration of Human Rights of 1948 does not appeal to any such theological ideas, because such ideas will not be accepted by those many human beings who lack such religious beliefs. There is, however, Murphy argues, a philosophical justification for human rights that does not require religious belief--"our genetic capacities for personhood" that are shared by all human beings as long as they retain the human genome.
In fact, the Universal Declaration of the Human Genome and Human Rights, ratified by the United Nations in 1998, the 50th anniversary of the first Universal Declaration, affirms this: "The human genome underlies the fundamental unity of all members of the human family, as well as the recognition of their inherent dignity and diversity," and
And yet, Murphy's respondent--Raffael Fasel (a graduate student at the University of Cambridge)--insisted that the only philosophical justification for human rights would have to based on normativity through and through without any reference to biological facts, because there will always be human beings with genetic disorders that deprive them of any potential for full personhood. Fasel thus expressed the common assumption among many modern moral philosophers that the only proper grounding for ethics must be a transcendental normativity beyond the empirical nature of human life. Oddly, Fasel did not identify any argument for the transcendental normativity of human rights, although he seemed to think there was such an argument somewhere.
The Christian arguments for human rights based on Biblical theology fail, because the idea of the equal moral dignity of all human beings as endowed with equal human rights cannot be found in the Bible, in either the Old or the New Testaments. For the Bible, human dignity is not equal and universal, it is hierarchical and comparative. The Bible accepts the patriarchal household and social inequalities: wives are commanded to obey their husbands, and slaves are commanded to obey their masters. Moreover, those who have been chosen by God as His people are superior to those He has rejected.
One Biblical verse that might be cited as supporting the equal dignity of all human beings as created in God's image is in Psalm 8: "For thou has made him a little lower than the angels, and hast crowned him with glory and honor." But then, in the immediately following Psalm 9, the psalmist thanks God for destroying his enemies: "the enemy is wiped out--mere ruins forever--you have annihilated their cities, their memory has perished" (9:6). Of course, the Bible is full of such bloody violence as God annihilates Israel's enemies in the most brutal ways. Speaking to Moses, God commands the "curse of destruction" in which every living being in a town must be killed--men, women, and children (Deuteronomy 20:10-20)--although the young women who are still virgins should be kept alive so that they can be raped by the Hebrew men (Numbers 31). Enemies can also be enslaved. And, indeed, the Bible generally supports slavery.
Moreover, the violence commanded by God is directed not just to external enemies but also to Hebrews who displease God. A long list of crimes--including children cursing their parents, homosexuality, and blasphemy--are to be punished with death.
Some parts of the New Testament seem supportive of universal humanitarianism. But even so, Jesus is clear that when he returns for the Day of Judgment, he will separate the sheep from the goats, the sheep being rewarded with eternal life, and the goats punished with eternal fire (Matthew 25:31-46). Amazingly, Wolterstorff glosses over this, implying that all human beings will be redeemed, and none will go to Hell eternally. Moreover, the final book of the New Testament--Revelation--conjures up bloody apocalyptic battles at the end of history, which has inspired fanatical religious violence for thousands of years, including the recent terrorism of the Islamic State.
Doesn't this show us that we need natural law here to correct the Bible? Isn't that what many Christians and Jews today have done in reinterpreting the Bible as teaching love, tolerance, and liberty--in other words, liberalism?
Fasel's objection to Murphy--that biological facts cannot provide the normativity necessary for true morality--is the same objection that Frances Cobbe made to Darwin's evolutionary account of the moral sense as rooted in human nature. Cobbe insisted that human morality cannot be fully explained without some belief in "the Kantian doctrine of a Pure Reason, giving us transcendental knowledge of necessary truths," or in the idea that "the voice of Conscience is the voice of God." She warned that Darwin's rejection of the Kantian view of morality as transcending natural human experience would destroy morality. Similarly, contemporary philosophers like Richard Joyce assume that by definition moral judgments presuppose belief in a transcendent world of moral facts beyond the empirical world of natural facts. If there are no such eternal moral facts, Joyce laments, then morality becomes fictional.
But as I have argued in a previous post, Joyce admits that a strong sense of transcendent moral duty can often support an authoritarian morality that leads to atrocities. Fanatical religious believers have carried out their divinely commanded moral duty to kill infidels. Many of the Nazi philosophers were neo-Kantians who believed in "eternal values" and in Nazism as fulfilling that eternal moral order. The Nazi regime was organized around a strict communitarian morality of sacrificing selfish interests for the good of the community.
Impicitly, Joyce and other Kantians must ultimately subordinate their categorical imperatives of moral duty to the hypothetical imperatives of prudential calculation, because they recognize that we don't know whether any "must-be-doneness" really must be done unless we have judged that the outcome will be desirable for us! If so, then they end up agreeing with me that "the good is the desirable," and that as I have argued in a previous post, moral judgments are hypothetical imperatives that give us reasons for acting only insofar as they serve what is truly desirable for us.
Even Kant implicitly conceded this. In his Groundwork of the Metaphysics of Morals, he said that everyone desires to obey his categorical imperatives, because everyone--"even the most hardened scoundrel"--desires the "greater inner worth of his own person" [einen grosseren inneren Wert seiner Person] that comes only from obeying the moral law and thus becoming a "better person" (Ak 4.454). In this way, Kant's categorical imperatives are always implicitly reduced to a hypothetical imperative. If you desire to be a better person with a sense of self-worth, then you ought to obey my categorical imperatives. This, then, rests on two kinds of empirical claims--that human beings most desire personal self-worth and that obeying Kant's categorical imperatives will achieve that desired end. So, contrary to what Fasel assumed, our sense of transcendental normativity is ultimately grounded in natural human desires as shaped by human evolution.
The Universal Declaration on the Human Genome and Human Rights clearly indicates that the inherent dignity of humanity supporting human rights arises not from divine creation, nor from some cosmic normativity, but from natural human evolution. One product of human evolution is sympathy and the moral emotions of approval and disapproval. The behavior of human rights activists shows that defending human rights depends not on appealing to theological or metaphysical normativity, but on appealing to sympathy and the moral emotions. Groups like Amnesty International and Human Rights Watch tell stories or show us pictures of human cruelty. The more disturbing and vivid the stories and the pictures of cruelty, the more likely we are to feel some identification and thus sympathy with the victims. We then feel outrage against the perpetrators of such cruelty, and we want them to be stopped and perhaps punished.
William Schulz is the former Executive Director of Amnesty International USA. In his book In Our Best Interest: How Defending Human Rights Benefits Us All, he dismisses appeals to God or Nature or Reason as insufficient to sustain the morality of human rights. Instead, he agrees with David Hume's, Adam Smith's, and Charles Darwin's argument that morality depends on sympathy and the moral emotions that incline us to care for our fellow human beings. He concludes: "Robert Frost once observed that poems begin with a lump in the throat, and I think human rights do too. . . . far better than by appeals to God or Nature, is to point to the capacity to identify with others, the capacity for human empathy or solidarity" (24).
The history of the expansion of human rights is therefore to be understood as what Hume and Darwin called "a progress of sentiments" as human beings have been persuaded to extend their sympathetic concern to ever wider circles of humanity.
As I have said in previous posts (here and here), what we see here is a reflective sentimentalism. Moral judgment combines reason and emotion. Pure reason by itself cannot move us to action without the motivational power of emotion or desire. That emotional motivation is not irrational, because we can reflect on our emotions and judge them as warranted or not. So, for example, we might feel outrage against a government that we believe has violated human rights by attacking innocent people, but if we discover that those people were not really innocent, then our outrage might be allayed. Human rights activists don't make Kantian arguments about the normativity of human rights. Rather, they make factual arguments about how people are being treated designed to elicit our sympathy for the victims of cruelty and our outrage against the perpetrators of cruelty.
The failure to recognize how human rights depend on reflective sentimentalism was one weakness in the paper of the last speaker at the conference--Nicholas McBride (University of Cambridge). He identified the prohibition against torture as the classic example of an "exceptionless norm." But as I indicated in my written comments on his paper, McBride did not explain the legal history or moral psychology of this modern rule against torture.
The condemnation of legal torture as a violation of human rights--as "cruel and unusual punishment"--is a clear illustration of how sympathy and the moral emotions generally have sustained the modern movement to human rights. Historian Lynn Hunt has explained this: "Torture ended because the traditional framework of pain and personhood fell apart, to be replaced, bit by bit, by a new framework, in which individuals owned their bodies, had rights to their separateness and to bodily inviolability and recognized in other people the same passions, sentiments, and sympathies as themselves" (Inventing Human Rights, 112). Notice that the appeal here is to the natural facts of human nature and human experience without any appeal to theological or metaphysical normativity.