Rex Lex? Or Lex Rex? From King Charles I to President Trump. The Evolutionary Psychology of Natural Law and Sovereign Immunity.

On January 20, 1649, King Charles I of England was brought before a court established by Parliament--the High Court of Justice--and charged with being "tyrant, traitor, murderer."  For the first time in history, a head of state was charged in a court with the crime of tyranny.  After the charges were read, Charles was asked to plead guilty or not guilty.  He responded: "I would know by what power I am called hither."  

He was raising a good question.  Because under the common law of England, "Rex is Lex"--the King is the Law: the law is the King's instrument, and therefore the King is above the law, and he is immune from legal prosecution.  "The King can do no wrong."  Moreover, the King holds his sovereign authority by divine right, and therefore he is subject to no higher authority other than God himself (Robertson 2005: 49, 151-57).

The High Court of Justice claimed that it had the authority to try Charles under the laws of God and Nature.  The appeal to the laws of God as manifested in the Bible was dubious because the Bible was so obscure on this question of God's view of monarchy that the Bible could be cited by both the supporters and the opponents of Charles.

The court's appeal to the laws of nature was also controversial although it was strengthened forty years later by John Locke's account of the state of nature and the natural right of the people to punish tyrannical kings.  Locke's argument has been confirmed by the modern Darwinian explanation of the evolutionary state of nature in which human beings had a natural propensity to resist oppressive dominance and punish would-be tyrants for violating the law of nature.

The second time in history that a head of state was put on trial for the crime of tyranny was the trial of Louis XVI in 1792, when the French National Assembly tried and convicted the King, and then sentenced him to be executed.  At the trial, Louis argued that he was innocent of the charges against him.  But the National Assembly--acting as both judges and jurors--ruled that he was guilty and that he should be executed by being beheaded--the same punishment suffered by Charles I (Walzer 1993).

The next development came in 1945 with the Nuremberg Charter, which established the use of international criminal law to punish heads of state and political and military leaders for war crimes and crimes against humanity.  The Nuremberg Charter defined those war crimes and crimes against humanity, and it rejected the principle of "sovereign immunity" (in Article 7):  "The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment" (Robertson 2012: 313-24).

Without explicitly saying so, the Nuremberg Charter was implicitly appealing to the argument of Locke and Emer de Vattel that the international arena is a state of nature governed by a law of nature enforced by the natural right of individuals and states to punish those who violate that law.  (I have written about this in some previous posts.)

Unfortunately, the International Military Tribunal at Nuremberg (1945-1946) was not a model of fair and impartial procedures.  For example, the judges and prosecutors were from the allied countries that had fought Nazi Germany--Great Britain, the U.S., France, and the Soviet Union.  And the court ruled against tu quoque ("you too") evidence that the defendants were accused of war crimes that had been committed by the Allies in the war.  Most notably, there was no accountability for Stalin as a mass-murdering head of state.

Similarly, the International Military Tribunal of the Far East established in Tokyo by U.S. General Douglas MacArthur for trying Japanese war leaders was in many ways a mockery of justice.  The most blatant injustice was MacArthur's decision that the worst Japanese war criminal--the Emperor Hirohito, the supreme commander--would be exempt from trial, while death sentences would be given to politicians and generals who were accomplices of the Emperor. 

Neither the Nuremberg trials nor the Tokyo trials tried any heads of state.  It was not until General Augusto Pinochet's arrest in London in 1998 that an English court found that a former head of state (in Chile) who had ordered the torture of prisoners must face trial and thus does not have sovereign immunity from criminal prosecution under international humanitarian law.  But there was no trial because Pinochet was later released on medical grounds (Robertson 2012: 404-45).

Then, in 1999, Slobodan Milosevic, the President of the Federal Republic of Yugoslavia, became the first sitting head of state to be charged with war crimes (in the Yugoslav Wars).  He was indicted by an international criminal tribunal established by the United Nations in The Hague.  He was put on trial beginning in 2002.  Milosevic acted as his own defense lawyer, and his outbursts in the courtroom created chaos.  He died by heart attack in 2006 before the prolonged trial could be finished (Robertson 2012: 486-495).

Since the trial of Louis XVI, there has been only one case of a head of state being tried, convicted, and executed for crimes against his people--Saddam Hussein in 2006.  Hussein was the President of Iraq when the U.S. invaded his country and overthrew his government in the spring of 2003.  He eluded capture until December of 2003.  

Since Iraq was torn by a vicious civil war fought by opposing Shia and Sunni factions, with the U.S. military as an occupying power, it seemed impossible for Hussein to have a fair trial conducted by an Iraqi court.  There were proposals for an international tribunal in The Hague, or somewhere else outside Iraq, that would conduct Hussein's trial.  But an international court could not have imposed the death penalty, which was demanded by the Bush administration and by the Iraqi factions that wanted vengeance against Hussein.

Finally, in 2005, the Bush administration allowed a newly elected Iraqi government to set up the "Iraqi Higher Criminal Court" for trying Hussein.  There were no international judges on the court (Robertson 2012: 720-27).

It was generally thought that the best charges to be brought against Hussein would be genocide against the Kurds and the marsh Arabs.  But strangely, the case selected for trial was Hussein's alleged reprisal killing in 1982 of 143 men in the Shia village of Dujail, after a failed attempt on his life.  During the trial, it was clear that many of the villagers really had been guilty of a conspiracy to murder Hussein.

When Hussein first appeared before the examining magistrate, he spoke words that echoed the first words of Charles I questioning the authority of the court.  "Who are you?" Hussein asked.  "I want to know who you are.  What does this court want? I preserve my constitutional rights as the President of Iraq.  I do not recognize the power that authorized you . . . I do not want to make you feel uneasy, but you know this is all theatre by Bush."  He had a good point because the 1968 Iraqi Constitution gave the president absolute immuni8ty from prosecution for any crime committed while in office.  The court needed to appeal to some law higher than the constitution.  And it was not clear that the alleged killings in Dujail were an international crime in international law.

Holding the trial in the midst of a civil war created security problems that made the trial unfair to all of the participants.  Some of the judges and lawyers were assassinated.  Most of the members of the tribunal did not show their faces.  Witnesses were intimidated, and many refused to answer their summonses.

Despite all of this disorder, the trial concluded with a conviction and a death sentence for Hussein, who was executed on December 30, 2006.

What this history shows is that there has not yet been a clearly fair trial and conviction of a head of state for crimes against humanity under the modern international law of human rights.

The question of whether the head of state should have a sovereign immunity from criminal prosecution was recently raised again in the U. S. Supreme Court case of Donald Trump v. United States (2024).  As I indicated in a previous post, by a six-to-three decision, the majority of the justices decided that as a former president Trump could not be tried as a criminal for any of his "official acts" as President--such as his attempt to overturn the outcome of the presidential election of 2020.  In the words of Justice Sonia Sotomayor in her dissenting opinion, this meant that "in every use of official power, the President is now a king above the law."

Since the majority decision in this case had no clear grounding in the original meaning of the Constitution, the majority was actually amending the Constitution to say that President Trump has a sovereign immunity comparable to that claimed by King Charles I.  Not only did this decision of the Court violate the Constitution, but it also violated the law of nature as shaped in the Lockean evolutionary state of nature.

Consider Sotomayor's warning:

The Court effectively creates a law-free zone around the President. . . . The President of the United States is the most powerful person in the country, and possibly the world.  When he uses his official powers in any way, under the majority's reasoning, he now will be insulated from criminal prosecution.  Orders the Navy's Seal Team 6 to assassinate a political rival?  Immune.  Organizes a military coup to hold onto power?  Immune.  Takes a bribe in exchange for a pardon?  Immune. Immune, immune, immune (29-30).

In his opinion for the majority, Chief Justice John Roberts said nothing to show that these are not realistic possibilities under his opinion.  He did ridicule Sotomayor for "fear mongering on the basis of extreme hypotheticals" (40).  But since Roberts said that the President has absolute immunity for any exercise of his "core powers," and since the power of the President as Commander-in-Chief of the military is surely a "core power," ordering his military to assassinate a political rival must be within the absolute immunity the Court has created.

In taking vengeance against his political opponents, Trump would be following the example of King Charles II, the son of Charles I, who had almost all of the men involved in the trial of his father killed shortly after the Restoration of the Stuart monarchy in 1660.

I do need to say more about the trial of Charles I, which I will do in another post.

REFERENCES

Robertson, Geoffrey. 2005. The Tyrannicide Brief: The Story of the Man Who Sent Charles I to the Scaffold. New York: Pantheon Books.

Robertson, Geoffrey.  2012.  Crimes Against Humanity: The Struggle for Global Justice. 4th edition. New York: The New Press.

Walzer, Michael. 1993. Regicide and Revolution: Speeches at the Trial of Louis XVI. New York: Columbia University Press.

Conservatism and Religion: Moots, Koons, and the Problem of Multiple Orthodoxies

The Darwinian conservatism of the permanent things recognizes that the desire for religious transcendence is one of the twenty natural desires of our evolved human nature.  And since the good is the desirable, we can judge the goodness of a social order by how well it secures the conditions for human beings to pursue the satisfaction of those natural desires, including the natural desire for religious transcendence.

As I have indicated in previous posts, the Catholic Integralists say that a Catholic Integralist regime is the best social order because it enforces belief in the one true religion in a Catholic confessional state and thus satisfies the natural desire for religious understanding.  But they are mistaken because they fail to see that the evolved natural desire for religious transcendence is pluralistic in that human beings will always disagree in what they believe to be the true religious experience of the transcendent world.  And there has never been a divine revelation of the religious truth clear enough to bring religious believers to agreement.  Surveying the entire history of Christianity, Wikipedia has lists of over 50 schisms and over 40 heresies.  Whatever the Holy Spirit might have whispered to popes, bishops, and priests has not been clearly heard by others.

The evolutionary science of religious pluralism supports John Locke's liberal theology of Christianity--that since "everyone is orthodox to himself," and "every Church is orthodox to itself," there is no set of universal doctrines binding on all Christians, except perhaps the belief that Jesus is the Messiah; and therefore, there is no one orthodoxy strictly speaking that can be properly enforced by government.  

For this reason, a Lockean liberal social order that secures religious liberty and religious toleration is the best regime for promoting the pluralistic pursuit of religious happiness.  It does this by allowing the cultural evolution of religion in a free marketplace of religion, so that churches compete for customers, and those churches that best satisfy the desire for religious experience increase their share of the market. 

And yet metaphysical conservatives must scorn this Lockean liberal understanding of religious liberty and toleration because they believe that a conservative form of religion requires the legal enforcement of the traditional orthodoxy of the one true church.  The fundamental problem with this position is that it denies the reality of religious pluralism and mistakenly assumes that all believers can agree in identifying the one truly orthodox church.

This problem was evident at the Kirk Center conference panel on "Conservatism and Religion."  Glenn Moots (Northwood University) argued that for American and British conservatives Protestantism must be the only truly orthodox tradition.  But then he was followed by Robert Koons (University of Texas-Austin) who argued that the Catholic Church was the only truly orthodox church for conservatives, and the Protestant Reformation was the source of the three great errors that led to modernity--antipathy to medieval scholasticism, radical intellectual individualism, and radical secular egalitarianism (the "priesthood of all believers").  

There was no discussion between Moots and Koons on the panel.  So there was no attempt to resolve the obvious contradiction between their arguments.  

But from listening to their presentations and reading their texts, I could see suggestions of where they might find some common ground.  Koons conceded that it was possible to be a conservative Protestant who would deny the three errors of the Protestant Reformation: specifically, Koons identified the magisterial Protestants (Lutherans, Anglicans, and Presbyterians) as Protestants who could reject the three errors.  At the same time, Moots spoke in favor of the magisterial Protestants, as opposed to the Pietistic and evangelical Protestants.

But then Koons and Moots did not explain how it is possible to have more than one magisterium.  Isn't the magisterium by definition the authoritative Christian orthodoxy of the one true Church?  Indeed, the Oxford English Dictionary defines "magisterium" as "the teaching function of the Roman Catholic Church."

Neither did Koons and Moots explain whether or how multiple magisteria can coexist peacefully.  As traditionally understood, the magisterium of the Catholic Church requires the Church to enlist the help of governmental authorities in persecuting heretics, which includes all Protestants.  At the same time, the magisterial Protestant reformers wanted to persecute all Protestant dissenters and Catholics as heretics.  Do Koons and Moots agree with this magisterial rejection of religious liberty?

Would Koons say that the Vatican II statement on religious liberty in Dignitatis humanae is heretical, and therefore that the post-Vatican II Catholic Church is heretical?  Actually, some traditionalist Catholics say exactly that.  For example, Michael Davies (in The Second Vatican Council and Religious Liberty [1992]) argues that the Catholic Church fell into heresy at Vatican II when it was corrupted by the influence of the "Americanist" heresy promoted by Father John Courtney Murray, S.J.  Would Koons agree? 

Are Koons and Moots saying that a conservative view of religion requires the legal enforcement of one church's orthodoxy over another's?  Are they committed, therefore, to perpetual religious warfare?  If not, then don't they have to endorse religious liberty and toleration as the best response to the fact of religious pluralism--to the fact that "every church is orthodox to itself"?  In that case, they would have to accept a Darwinian conservatism that secures the freedom of individuals to pursue the satisfaction of their natural desire for religious transcendence.

And, finally, to reiterate a point I made in a previous post, it was baffling to me that while both Koons and Moots praised Scruton for his conservative understanding of religion, they were silent about Scruton's atheism.  Scruton's atheistic religiosity is most evident in his writing about Richard Wagner: religion is an "elaborate fiction," because the gods exist only in human imagination, but in Wagner's imaginative art, the gods symbolize truthfully the spiritual needs of our human psychology.  Our deepest spiritual need is redemption from a world that has no meaning.  And Scruton believes that Wagner's Ring cycle satisfies our human longing for redemption.  The incoherent self-deception of such atheistic religiosity is ultimately self-defeating.  How can a fake religiosity satisfy our religious longings when we know it's fake?

Is this the dark side of conservatism and religion--that many of the conservatives who are most emphatic about the human need for religion are actually atheists?

Darwinian Conservatism Supports Emergent Complexity and Immanent Teleology: A Response to Robert Koons

The Darwinian conservatism of the permanent things requires a biological teleology of human nature.  Because one needs to claim that evolved human nature is directed to certain ends or goals that constitute the natural norms (the permanent things) of human existence, so that the fulfillment of those norms can be understood as the human good.

By contrast, the metaphysical conservatives argue that modern science--and particularly Darwinian biology--denies teleology in denying that human beings can have natural ends.  The metaphysical conservatives claim that for modern science, all reality is understood to be nothing but the blind motion of particles in space governed by material and mechanistic laws of motion; and in such a world, there can be no final causation.  At the Kirk Center conference, that claim was made by Robert Koons (University of Texas at Austin) on a panel on "Conservatism and Religion."

Koons said this as part of his general argument that modern science has been "mostly a very bad thing."  On this point, he saw himself as agreeing with C. S. Lewis in The Abolition of Man that "modern science was born at an inauspicious hour and in an unhealthy neighborhood."

I saw two problems in Koons' presentation.  First, he identified modern science with a reductionistic physics, and he was silent about the emergent complexity of biology.  Second, in arguing that modern science rejects teleology, he ignored the distinction between cosmic teleology and immanent teleology.

EMERGENT COMPLEXITY IN DARWINIAN BIOLOGY

In my chapter on "Emergence" in Darwinian Conservatism, I argue for the "emergent evolution of the soul in the brain," and I defend the idea of emergence as an alternative to both reductionism and dualism. As I have argued in previous posts, the simplest expression of the idea of emergence is that the whole can be greater than the sum of its parts. Emergent phenomena are those complex wholes with properties that we could not explain or predict from our knowledge of the parts. For example, when hydrogen and oxygen combine chemically to form water, we see emergent properties in water that we could not have predicted from the properties of hydrogen and oxygen. This emergence of novelty is manifested throughout the evolution of the universe. As we pass through levels of complexity, we find new properties at higher levels that are not fully reducible to the lower levels. This idea of emergence denies strong reductionism, because it denies that the higher levels of organization can be completely reduced to the lower levels. But the idea of emergence also denies dualism, because it denies any radical separation of matter and mind.

In his Descent of Man, Charles Darwin recognized--if only implicitly--that human beings show an emergent difference in kind from other animals.  Darwin noted that self-consciousness is uniquely human: "It may be freely admitted that no animal is self-conscious, if by this term it is implied, that he reflects on such points, as whence he comes or whither he will go, or what is life and death, and so forth" (105).  Morality is also uniquely human: "A moral being is one who is capable of comparing his past and future actions or motives, and of approving or disapproving of them.  We have no reason to suppose that any of the lower animals have this capacity. . . . man . . . alone can with certainty be ranked as a moral being" (135).  And language is uniquely human: "The habitual use of articulate language is . . . peculiar to man" (107).

Darwin could implicitly affirm such emergent differences in kind without affirming any radical differences in kind.  Emergent differences in kind can be explained by natural science as differences in kind that naturally evolve from differences in degree that pass over a critical threshold of complexity.  So, for example, we can see the uniquely human capacities for self-consciousness, morality, and language as emerging from the evolutionary expansion of the primate brain, so that at some critical point in the evolution of our ancestors, the size and complexity of the brain (perhaps particularly in the frontal cortex) reached a point where distinctively human cognitive capacities emerged at higher levels of brain evolution that are not found in other primates.  With such emergent differences in kind, there is an underlying unbroken continuity between human beings and their hominid ancestors, so there is no need to posit some supernatural intervention in nature that would create a radical difference in kind in which there is a gap with no underlying continuity.

Now we know from the work of neuroscientist Suzana Herculano-Houzel that human beings are unique as compared with other primates in that human beings have 16 billion neurons in the cerebral cortex, which includes 1.3 billion in the prefrontal cortex.  The human mind or soul can arise from a natural process of emergent evolution in which differences in degree become differences in kind after passing over a critical threshold in the size and complexity of the primate brain.  As a consequence of her research, we can now identify that critical threshold as the remarkably large number of neurons in the human cerebral cortex and particularly in the prefrontal cortex.  That probably explains the three points of human uniqueness that Darwin saw--self-conscious awareness, morality, and language.

Koons is silent about this emergent complexity of human biology in asserting that all of modern science must reduce reality to the motion of particles in space.

IMMANENT TELEOLOGY IN DARWINIAN BIOLOGY

Koons is also silent about how Darwinian biologists recognize the immanent teleology of living beings even though they deny the cosmic teleology of the universe.  In insisting that modern science denies teleology, Koons has to assume that cosmic teleology is the only kind of teleology.  And thus he ignores the fact that for Aristotle natural teleology was more clearly biological than cosmological.

As I have argued previously, Darwin recognized the teleological character of his evolutionary science.  In an article in Nature, Asa Gray wrote: "let us recognize Darwin's great service to Natural Science in bringing back to it Teleology; so that instead of Morphology versus Teleology, we shall have Morphology wedded to Teleology."  In response to this, Darwin wrote to Gray (June 5, 1874): "What you say about Teleology pleases me especially and I do not think anyone else has ever noted that."  So, we can infer, that when Darwin read Aristotle's explanation of biological teleology in the Parts of Animals and expressed his admiration for Aristotle's biological science, Darwin saw that he really was bringing back into science a teleological conception of living nature that was originally formulated by Aristotle.

We need to see that while Darwin denied cosmic teleology, he affirmed immanent teleology. The natural evolution of living beings does not conform to any cosmic design. But that natural evolution does produce species that show an internal teleology in being directed to ends or goals. For example, a mammalian species is naturally adapted for parental care, so that mothers caring for their offspring can be explained teleologically as goal-directed behavior. Such species-specific, immanent teleology is the only kind of teleology that Aristotle saw in the living world, and modern biology confirms such Aristotelian teleology.

Insofar as Darwinian biology allows for emergent complexity and immanent teleology, this is enough for a Darwinian conservatism.

The Darwinian Evolution of Russell Kirk's Permanent Things

In 2010, The Intercollegiate Review published my article on "Darwinian Conservatism Versus Metaphysical Conservatism."  I argued that while metaphysical conservatism views human social order as grounded in a transcendent realm of cosmic design, evolutionary conservatism is empiricist in viewing human social order as grounded in common human experience as shaped by human nature, human custom, and human judgment.  I explained how that conflict had arisen in the history of conservative thought beginning with Edmund Burke's Reflections on the French Revolution, in which one could see the tension between Burke's metaphysical conservatism and his evolutionary conservatism.  I indicated what was at stake between those two positions, and I defended the evolutionary side of this dispute.  I concluded with a practical illustration of the moral implications of this debate as applied to the American moral controversy over slavery.

In some previous posts, I have defended my argument in that article against some critics.  But I now see that I was mistaken about one point.  I thought that Russell Kirk had adopted the metaphysical side of Burke's conservatism and ignored the evolutionary side that would support a Darwinian conservatism.  Now I see that Kirk's writings actually show the same tension between the metaphysical and the evolutionary that first arose in Burke's Reflections.  This thought came to me as I pondered the presentations at the Kirk Center conference on Kirk and Scruton.

KIRK AND THE PERMANENT THINGS

Kirk stated the metaphysical and religious version of conservatism in 1953 in The Conservative Mind.  The first canon of conservative thought, he declared, was "belief that a divine intent rules society as well as conscience, forging an eternal chain of right and duty which links great and obscure, living and dead."  Consequently, "politics is the art of apprehending and applying the Justice which is above nature."  In later formulations of this first canon, Kirk spoke of the conservative belief in "a transcendent moral order."  In all of his formulations, he connected this principle to "Burke's description of the state as a divinely ordained moral essence, a spiritual union of the dead, the living, and those yet unborn," and he spoke of Burke's view of history as "the unfolding of Design."  Opposed to such conservative thinking were "those scientific doctrines, Darwinism chief among them, which have done so much to undermine the first principles of conservative order" (Kirk 1985: 8-11; 1982: xv).  Here in the early Kirk, we see the common fear of many conservatives that Darwinian science denies a conservative order by denying the religious belief in a transcendent metaphysical order.

But then, in Enemies of the Permanent Things, first published in 1969, Kirk showed how enduring norms for human life, which he called "the permanent things," could be grounded empirically in human experience--human nature, human custom, and human judgment--without any necessary appeal to a metaphysical moral cosmology.  Previously, I had thought that Kirk understood the "permanent things" to be eternal things that therefore depended on a transcendent eternal order in which human nature was an unchanging eternal essence created by God.  Against this, I argued that an evolved human nature that is enduring but not eternal is enough to support an evolutionary conservatism rooted in an evolutionary moral anthropology of natural desires, customary traditions, and individual judgments.  I had not noticed that in the Enemies of the Permanent Things, Kirk had identified the permanent things as "enduring standards" set by an enduring human nature as the ground for "a law of nature."  The permanent things are "patterns or rules which recognize the enduring nature of certain moral and social qualities." Moreover, the norms vary for each species of life: "the norm for the wasp or the snake is not the norm for man" (Kirk 2016: 1, 3, 151).

That this allows for an evolutionary conservatism is particularly clear in one section of the Enemies of the Permanent Things with the title "The Doors of Normative Perception" (2016: 23-29).  The reader of this section should notice the crucial influence on Kirk of two authors C. S. Lewis (The Abolition of Man) and David Hume ("Of the Standard of Taste" and The Enquiry Concerning the Human Understanding).  Kirk cites Hume three times in this short section.  This is remarkable because Kirk identifies Hume as the "most formidable of skeptics" (6), and therefore Kirk's reasoning here is compatible with a Humean skepticism that denies religious metaphysics and affirms an evolutionary conception of human nature and the world.  Similarly, in Lewis's Abolition of Man, Lewis is clear that his argument for a natural moral law should be persuasive with skeptics because it does not require any belief in the supernatural.

Kirk says there are "three doors of normative perception: revelation, custom or common sense, and the insights of the seer" (23).  But while Kirk himself "embraces the transcendent truth of revelation," he chooses not to appeal to revelation in this book because he addresses himself "to doubters, as well as to the converted."  Moreover, Kirk observes that revelation is not a reliable source of knowledge for most human beings because "direct revelation" has been "extremely rare."  Most of the time what is presented as "divine wisdom" has come through "very human prophets" or seers who have not had a direct revelation.  Apparently, Moses had a direct revelation when God spoke to him through the burning bush.  But Moses was the only one who heard the words.  When people who claim to have had a direct revelation try to express what God told them, most of what they say is "inexpressible in language, and almost unthinkable in thought" (24).  So revelation is a source for understanding the permanent things that is incomprehensible to skeptics or unbelievers.

Custom is a better source.  To understand custom, Kirk relies on Hume.  He paraphrases a passage from Hume's "Of the Standard of Taste" (Hume 1985: 241):

In morals and taste, says Hume, we govern ourselves by custom--that is, by the habits of the human race.  The standards of morality are shown to us by study of the story of mankind, and the arbiters of those standards are men of strong sense and delicate sentiments, whose impressions force themselves upon the wills of their fellowmen (24).

He also quotes from Hume's Enquiry Concerning Human Understanding (Hume 1902: 5.1.36) about how custom is "the great guide of life."  Custom constitutes "an immemorial empiricism" (26).

But how did this "folk wisdom" embodied in custom come into being?  Kirk suggests:

The answer may be that at the beginnings of civil social order, some individuals--men whose names have perished--discovered the truths that we now call custom and common sense.  Hume's men of strong sense and delicate sentiment, or their primitive forerunners, presumably existed when man was becoming true man, and their insights were impressed upon their primitive fellows. . . . So it may be with the practices and beliefs which we call custom and common sense: originally these may have been the intuitions or the empirical conclusions of gifted individuals, who were emulated by the common man" (26-27).

Notice that Kirk suggests that human nature had to evolve from a primitive state "when man was becoming true man."  Notice also that customary norms arose as "empirical conclusions of gifted individuals."  Kirk goes on to explain that these are "empirical conclusions" about human nature.  "By definition, human nature is constant.  Because of that constancy, men of vision are able to describe the norms, the rules, for mankind" (29).

This suggests human evolution at three levels--human nature, human custom, and human judgment.  Human nature evolves from a prehuman condition.  Then human custom evolves as "gifted individuals" judge the norms or rules that best conform to that evolved human nature.  This three-leveled evolutionary analysis is even clearer in Lewis's Abolition of Man.

LEWIS AND THE TAO

Here I borrow some material from some previous posts.

Lewis sees the Tao as manifested in three levels of social order--human nature, human traditions, and human judgments. At the first level, the Tao is "Natural Law" (56, 95). "Nature" has many senses, and if we define it in opposition to "the Artificial, the Civil, the Human, the Spiritual, and the Supernatural" (81), then the Tao is not natural. But it is natural in the sense that it belongs to "the very nature of man," because it provides "a common human law of action" (31, 84). The Tao is "the Tao of Man," it is the "only known reality of conscience" that distinguishes human nature from the rest of nature (62, 90).

The nature of Lewis's natural law is not cosmic nature as a whole, but human nature in particular. Cosmic nature cannot provide values for human life, Lewis suggests, because "nature as a whole, I understand, is working steadily and irreversibly towards the final extinction of all life in every part of the universe" (50).

Although natural law is often assumed to come from a supernatural lawgiver, Lewis insists that understanding the Tao as natural law does not require any belief in the supernatural. He writes:

Though I myself am a Theist, and indeed a Christian, I am not here attempting any indirect argument for Theism. I am simply arguing that if we are to have values at all we must accept the ultimate platitudes of Practical Reasoning as having absolute validity: that any attempt, having become sceptical about these, to reintroduce value lower down on some supposedly more 'realistic' basis, is doomed. Whether this position implies a supernatural origin for the Tao is a question I am not here concerned with (61).

At the second level of social order, the Tao corresponds to human cultural traditions--"the human tradition of value," "traditional values," "traditional morality," or "traditional humanity" (54-55, 76, 78, 85). In the Appendix to his book, Lewis provides "Illustrations of the Tao" that consist of short quotations from some ancient texts of moral teaching from Egypt, Babylonia, Israel, Greece, Rome, India, China, Scandinavia, and Anglo-Saxon England, and a few texts from early modern England. Lewis's Appendix shows great cultural variability in the moral traditions of human history. But it also shows recurrent themes that reflect how universal human nature constrains these moral traditions--as manifested in Lewis's eight categories of classification: the law of general beneficence, the law of special beneficence, duties to parents, elders, and ancestors, duties to children and posterity, the law of justice, the law of good faith and veracity, the law of mercy, and the law of magnanimity.

At the third level of social order, the Tao allows for individual judgments of value, but only within the broad constraints of human nature and human tradition. Lewis admits that traditional moralities show many contradictions and some absurdities, which invite criticism and improvement. Although the Tao does not permit criticisms and changes coming from outside the Tao--because there are no standards of value outside it--the Tao does permit development from within. So, for example, we can recognize that the Christian version of the Golden Rule--"Do as you would be done by"--is a real improvement over the Confucian version--"Do not do to others what you would not like them to do to you"--because we can see that the new positive statement of the rule is an extension of the old negative statement (57-58). Individuals have authority to modify the Tao only insofar as their modifications are within the "spirit of the Tao" (59).

If you lay this alongside what Kirk says about "The Doors of Normative Perception," you'll see a coincidence of thought that shows Kirk was following the same line of reasoning.

THE DARWINIAN EVOLUTION OF THE PERMANENT THINGS

The three-leveled evolutionary analysis of norms presented by Kirk and Lewis corresponds to what I have argued for on this blog--and in various articles and books--the Darwinian evolution of human nature, human culture, and human judgment.

Moral norms are rooted in the twenty natural desires of our genetically evolved human nature:  a complete life, parental care, sexual identity, sexual mating, familial bonding, friendship, social status, justice as reciprocity, political rule, freedom from oppressive domination, courage in war, health, beauty, property, language and storytelling, practical reasoning, practical arts, aesthetic pleasure, religious transcendence, and intellectual understanding.  

And if the good is the desirable (as Aristotle and Thomas Aquinas argued), the best social order can be judged to be the one that secures the widest satisfaction of those natural desires (Adler 1992; Arnhart 1998: 21-36; Aquinas, ST, I, q. 5, a. 1).  When Kirk gives examples of norms--"a norm of charity; a norm of justice; a norm of freedom; a norm of duty; a norm of fortitude" (7)--they correspond to some of the natural desires.

The full expression of these moral norms has come through the human cultural evolution of moral tradition.  To understand this, we need an evolutionary science of cultural group selection.  This is what Kirk identifies as the cultural history of custom or tradition.

But then that cultural evolution ultimately depends on the evolution of human individuality because culture is driven by the agency of individuals who formulate the social norms for their cultural groups.  We need to understand the evolved personality and life history of those individuals who are agents of cultural change acting through coercion or persuasion.  Consider, for instance, how the cultural history of the United States was altered by the dominant individuals in the American Continental Congress that drafted and signed the Declaration of Independence, or those in the Constitutional Convention who drafted and promoted the Constitution of 1787.  What we need here is an agent-based evolutionary theory of how individual agents create, maintain, and modify group functional culture.  We need to understand how, as Kirk says, culture is "the creation of a talented little minority, over centuries" (51).

We need what I have called "Darwinian liberal education" that would develop an interdisciplinary science that would explain the evolution of human nature, human culture, and human judgment as part of a comprehensive science of nature as a whole.

That would give us a science of the permanent things.

REFERENCES

Adler, Mortimer. 1992. Desires, Right and Wrong: The Ethics of Enough. New York: Macmillan Pubishing.

Aquinas, Thomas. Summa Theologica.

Arhart, Larry.  1998. Darwinian Natural Right: The Biological Ethics of Human Nature. Albany: State University of New York Press.

Arnhart, Larry.  2010. "Darwinian Conservatism Versus Metaphysical Conservatism." The Intercollegiate Review 45: 22-32.

Hume, David.  1985.  Essays: Moral, Political, and Literary.  Ed. Eugene F. Miller. Indianapolis: Liberty Fund.

Hume, David. 1902. Enquiries Concerning the Human Understanding and Concerning the Principles of Morals. Oxford: Oxford University Press.

Kirk, Russell, ed. 1982. The Portable Conservative Reader. New York: Penguin Books.

Kirk, Russell.  1985.  The Conservative Mind from Burke to Eliot. Seventh Revised Edition. Washington, DC: Regnery Publishing.

Kirk, Russell.  2016. Enemies of the Permanent Things: Observations of Abnormality in Literature and Politics. With an Introduction by Benjamin G. Lockerd. Providence, RI: Cluny Media.

Lewis, C. S.  1947. The Abolition of Man.  New York: Macmillan.