My conception of Darwinian natural right includes an account of law. A full account of social order requires a nested hierarchy of three kinds of order--natural order, customary order, and rational order--so that custom is constrained by nature, and reason is constrained both by custom and by nature. Law manifests these three levels of order. The proponents of natural law are correct in seeing that law presupposes the natural desires and capacities of human beings. The proponents of customary law are correct in seeing that law presupposes custom. And the proponents of positive law are correct in seeing that law in the strict sense is the stipulation of the lawmaker. In fact, law is the joint product of nature, custom, and stipulation.
Darwinian natural right assumes that natural law reflects the twenty natural desires that constitute human nature as shaped by genetic evolution: human beings generally desire a complete life, parental care, sexual identity, sexual mating, familial bonding, friendship, social status, justice as reciprocity, political rule, war, health, beauty, property, speech, practical habituation, practical reasoning, practical arts, aesthetic pleasure, religious understanding, and intellectual understanding. These natural desires constrain but do not rigidly determine the customary evolution of law. Within the constraints of natural desires and customary traditions, there is some freedom for the exercise of prudential judgment in stipulating legal decisions and rules.
Opponents of the natural law position argue that there is no evidence for a universal human nature shaping the history of law. Cultural relativists say that law is purely a product of customary traditions that vary radically across societies and across time. Legal positivists say that law is ultimately a product of some lawmaking power unconstrained either by nature or by custom.
The study of primitive law helps to clarify this debate, and I think it provides support for Darwinian natural right. Perhaps the best single study of primitive law is E. Adamson Hoebel's The Law of Primitive Man (published first in 1954 and reprinted in 2006 by Harvard University Press). Hoebel was an anthropologist specializing in legal anthropology. He was best known for his work on the law of the Cheyenne Indians.
In the first part of this book, Hoebel lays out his general theoretical approach to the study of primitive law. He identifies himself as a "functional realist" who studies the behavioral reality of legal practice, as opposed to the conceptual abstractions of natural law or positive law theories.
In the second part of the book, he has five chapters on law in five primitive societies (ranging from the simplest to the most complex): the Eskimos, the Ifugao (in the northern Philippines), the American plains Indians (Comanche, Kiowa, and Cheyenne), the Trobriand Islanders (of the northeast coast of New Guinea), and the Ashanti (on the Gold Coast of West Africa).
In the last part of the book, he offers some general conclusions about the relation of law to religion, the functions of law, and the evolution of law. Hoebel puts his study in the context of Darwinian evolution. "Man emerged from the subhuman, supersimian state a million and more years ago" (291). As compared with chimpanzees, who are intensely social animals, who even have some rudimentary capacity for cultural learning ("protoculture"), the earliest human ancestors used their uniquely human capacity for speech to develop cultural learning far beyond anything seen in other animals (7-8). Using comparative studies of primitive foraging societies in the nineteenth and twentieth centuries, combined with archeological and fossil evidence of human evolution, allows Hoebel to infer what Paleolithic human societies were like (290-91).
Hoebel proposes a "postulation theory of law." Every group or society is organized around a set of fundamental postulates or values that represent "a limited selection from the total of human potentialities, individual and collective" (17). For each primitive society that he studies, Hoebel surveys the anthropological studies and formulates the set of postulated values that constitute the legal culture for that society.
I would say that what Hoebel calls "the total of human potentialities" corresponds to what I would call "human nature." What Hoebel calls the "limited selection" from within these potentialities corresponds to what I would describe as custom and stipulation selecting from within the potentialities of human nature those values that seem adapted to the particular needs and circumstances of a particular society.
So, for example, there is a natural desire for property expressed in every human society. But the specification of what counts as property and of the rights and duties of property varies across societies. Property in land is often not important for nomadic people. But it is very important for those like the Ifugao who get most of their food from growing rice.
I identify political rule as one of the twenty natural desires. But it might seem that primitive societies have no structure of political rule because they have no governments. "The Eskimo is what some would call an anarchist," Hoebel observes. "He has no government in the formal sense" (81). But this lack of "formal" government still leaves open the possibility of "informal" rule.
My claim is that human beings are by nature political animals, because they naturally live in social systems that require (at least occasionally) central coordination. In civilized human communities, such as bureaucratic states, this centralized coordination is formal and enduring. But in primitive human communities, such as hunter-gatherer bands, this centralized coordination of society is informal and episodic.
The Eskimos show this in their following the leadership of headmen. Hoebel explains: "The headman possesses no fixed authority; neither does he enter into formal office. He is not elected, nor is he chosen by any formal process. When other men accept his judgment and opinions, he is a headman. When they ignore him, he is not. Headmen are those who can hunt and 'who by their extended acquaintance with the traditions, customs, and rights connected with the festivals, as well as being possessed of an unusual degree of common sense, are deferred to and act as chief advisers of the community.' Such are the germs of political authority among the rude societies of mankind" (82).
This is what David Hume had in mind when he described in his essay "Of the Origin of Government" how the "love of dominion" as rooted in the "principles of human nature" would motivate leaders in savage societies who get prestige from acting as dominant individuals, although this dominance would depend on the voluntary consent, or at least acquiescence, of the other individuals in the society. In this way, the Lockean idea of "original contract" really does explain the primitive origins of law and government, although the later history of government has been decisively shaped by war and conquest.
I see in Hoebel's study confirmation of most if not all of the twenty natural desires rooted in evolved human nature, because one can see these natural desires expressed in some form in all of these primitive societies.
One can see, for instance, in all of these societies the desire for sexual mating and the need for social regulation to manage the conflicts created by sexual competition. The most common cause of homicide is men fighting over women. And this requires elaborate customary norms for marital bonding and resolving disputes over sexual partners.
Similarly, the prohibition of incest is universal in these primitive societies, although there is variation as to what counts as incest because kinship is sociologically defined. This variation is constrained by what the Darwinian would recognize as the "Westermarck effect." The incest taboo is strongest within the nuclear family, because of the tendency to feel a sexual aversion towards those with whom one has been reared from an early age. But this effect is not so strong outside the nuclear family--as with cousins. This pattern is clear in Hoebel's book, which also shows that even primitive people have some awareness of the deleterious effects of inbreeding, and thus some of their customary norms of incest avoidance could be deliberately formulated (109-10, 118-19, 131, 183-86, 191, 239, 254, 264, 291, 303).
My blog posts on the Westermarck theory of the incest taboo can be found here and here. Some of the comments on the first post offer some fascinating personal testimony.
There is some question, however, as to whether the natural desire for intellectual understanding can be found in these primitive societies. One Eskimo said this to an anthropologist: "Too much thought only leads to trouble . . . We Eskimos do not concern ourselves with solving all riddles. We repeat the old stories in the way they were told to us and with the words we ourselves remember . . . You always want these supernatural things to make sense, but we do not bother about that. We are content not to understand" (69).
Does this suggest that the desire to understand does not show itself in primitive societies? After all, as I have indicated in my post on George Anastaplo's study of non-Western cultures, there is a lot to be said for the claim that science or philosophy arose first in ancient Greece along with the discovery of the idea of nature.
At the end of Darwinian Natural Right, I argue that the desire to understand can be explained as a product of evolution, although this requires moving through the higher stages of cultural evolution. We can see in some other animals the tendency to curiosity or playful exploration that is the natural root of the human desire to understand. But the fullest development of the theoretical life as devoted to understanding for its own sake is manifested only after the cultural invention of writing. Only then was symbolic thought brought under the control of analytic reasoning through formal logic and systematic reflection. Preliterate primitive societies cannot show that search for understanding that arises in literate civilized societies, which eventually leads to philosophy and science.
Some posts on related topics can be found here, here, and here.
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