Rights from Wrongs: The Sense of Injustice

From its first publication in 1975, Edward O. Wilson's book Sociobiology has stirred disputes over his claim that ethics is rooted in human biology. Our deepest intuitions of right and wrong, he asserted on the first page of the book, are guided by the emotional control centers of the brain, which evolved by natural selection to help the human animal exploit opportunities and avoid threats in the natural and social environment. In 1998, Wilson's book Consilience renewed the controversy as he continued to argue for explaining ethics through the biology of the moral sentiments. Human nature is not a product of genes alone or of culture alone, Wilson insisted. Rather, human nature is constituted by "the epigenetic rules, the hereditary regularities of mental development that bias cultural evolution in one direction rather than another, and thus connect the genes to culture" (164). The biology of the moral sentiments would be the study of the "epigenetic rules" of moral experience as shaped by the complex interaction of genetic propensities and cultural learning. Wilson has often used Edward Westermarck's theory of the incest taboo as a good example of this. (Westermarck's theory has been the subject of various posts on this blog.)

When I first read Wilson's Sociobiology in 1975, I initially rejected his biological explanation of ethics as being too crudely reductionistic in its appeal to mere emotion as the ultimate ground of ethical experience. At the time, I was a graduate student at the University of Chicago writing a dissertation on Aristotle's Rhetoric, and I noticed that Aristotle invoked a natural moral sense as expressed in moral emotions such as anger, indignation, shame, kindness, and pity, which made me think that Wilson's reliance on the moral emotions might be more defensible that I had at first believed. I also became interested in Aristotle's biological writing and in how his biological reasoning influenced his moral and political philosophy. Like Wilson, Aristotle explained the natural sociality of human beings by comparing them with other social animals such as the social insects. When Aristotle spoke of "natural right"--natural standards of right and wrong--he appealed to the biological propensities of human nature. Eventually, I changed my mind about Wilson's argument and concluded that his Darwinian explanation of ethics could be defended as a modern biological restatement of a tradition of ethical naturalism that began with Aristotle. Later, I began to see how the rhetorical tradition of studying the moral psychology of the emotions, which began in Book 2 of the Rhetoric, was renewed by David Hume and Adam Smith, in their moral philosophizing on the moral sentiments, which then shaped the moral philosophy of Darwin and Westermarck.

In the Rhetoric, Aristotle suggests that natural justice or natural law is enforced by moral passions such as anger and indignation. The fearful inclination of human beings to commit injustice is balanced by the fearful desire of the victims of injustice for retribution. Natural justice is expressed most clearly and powerfully not as a sense of justice, but as a sense of injustice.

This Aristotelian idea has been elaborated in two recent books--Edmond Cahn's The Sense of Injustice (1964) and Alan Dershowitz's Rights from Wrongs: A Secular Theory of the Origin of Rights (2004). Both are lawyers--and thus following in Aristotle's tradition of legal rhetoric--and both see the sense of injustice forcefully expressed in the revulsion against Nazism and the Holocaust. Both find the sense of justice unreliable because perfect justice is too abstract to be practically applicable and too vague to be generally comprehensible. Our direct conception of justice requires some contemplative or theoretical grasping of the mind that cannot move us to action. As Aristotle said, thought by itself moves nothing. But our response to some real or imagined act of injustice is passionate and active. Rather than philosophizing about justice, which requires a top-down deductive reasoning, our experience with injustice moves through a bottom-up inductive process of emotional engagement, in which justice becomes the active process of preventing or remedying whatever evokes moral emotions of disgust. As practicing lawyers, both Cahn and Dershowitz are dissatisfied by legal philosophizing about perfect justice abstracted from the realities of human experience. But both see a passionate sense of injustice in human beings that animates law. (Is this what Leon Kass means by the "wisdom of repugnance"?)

Although Cahn does not cite Westermarck, he follows a Westermarckian line of thought in suggesting that this sense of injustice could be rooted in a biological nature shaped by evolutionary history in which animals are naturally inclined to resist attack. In social animals, this natural resistance to attack can be extended by sympathy or empathy to one's fellow animals, so that one perceives an attack on others as an attack on oneself. The intellectual capacities of human beings allow them to extend this sympathetic concern to ever wider circles of human community and to formulate rules of justice as generalizations of our experience of retributive emotions directed against aggressors and cheaters.

Consequently, this sense of injustice requires a blending of reason and emotion. Marlene Sokolon develops this point well in her reading of Aristotle in Political Emotions: Aristotle and the Symphony of Reason and Emotion (2006). Marlene also shows how Aristotle's moral and political psychology of reason and emotion in combination as shaping political judgment has been confirmed by recent research in neuroscience and evolutionary theory. The human brain as a product of evolutionary history serves the needs of the human animal through a complex interaction of cognitive reasoning and affective responsiveness. (Marlene originally wrote her book as a dissertation under my direction at Northern Illinois University, where she combined the fields of political philosophy and biopolitics.)

Cahn captures this same point when he writes:

"The sense of injustice now appears as an indissociable blend of reason and empathy. It is evolutionary in is manifestations. Without reason, it could not serve the ends of social utility, which only observation, analysis, and science can discern. Without empathy, it would lose its warm sensibility and its cogent natural drive. It is compounded, indissolubly, of both and can subsist on neither alone. For sheer rationality without an empathic fundament would usually degenerate to extreme skepticism and doubt; while empathy, uninformed by reason, would serve up only the illiterate gropings of animal faith. Together reason and empathy support our juridic world. Through them men may learn to identify their own interests with those of an unlimited community, no longer doubting in philosophy what they do not doubt in their hearts" (26).

Like Cahn, Dershowitz argues that there is less agreement about perfect justice than there is about gross injustice. He conveys his thought through the snappy title of his book--"rights from wrongs." Rejecting both natural law theory and legal positivism as inadequate, he summarizes his position in this way:

"Rights do not come from God, because God does not speak to human beings in a single voice, and rights should exist even if there is no God.
"Rights do not come from nature, because nature is value-neutral.
"Rights do not come from logic, because there is little consensus about the a priori premises from which rights may be deduced.
"Rights do not come from the law alone, because if they did, there would be no basis on which to judge a given legal system.
"Rights come from human experience, particularly experience with injustice. We learn from the mistakes of history that a rights-based system and certain fundamental rights--such as freedom of expression, freedom of and from religion, equal protection of the laws, due process, and participatory democracy--are essential to avoid repetition of the grievous injustices of the past. Working from the bottom up, from a dystopian view of our experiences with injustice, rather than from the top down, from a utopian theory of perfect justice, we build rights on a foundation of trial, error, and our uniquely human ability to learn from our mistakes in order to avoid replicating them.
"In a word, rights come from wrongs" (8-9).

As distinguished from "natural rights" and "positive rights," Dershowitz is concerned with "nurtural rights," because he explains the need for moral rights as something that human beings have discovered by experience over history. Human beings have discovered by painful experience that they need to secure certain rights--life, liberty, property, freedom of speech, freedom of religion, and so on--to protect themselves from the gross injustices that human beings have experienced when those rights are not secured. The very idea of "rights" is a historical invention. (The Straussians would say it was invented by the early modern political philosophers.) And for that reason, Dershowitz identifies himself as a historical relativist. Rights are not discovered as inherent within nature or as commands of God. There are no external sources of rights, because rights arise within human historical experience.

But still Dershowitz does not see these rights as capriciously arbitrary. Rights work to protect us against injustices only if they are stable over time. But they do change over time. And unlike most of his fellow liberals, Dershowitz notes that historical experience can lead not just to the expansion of rights but also to their contraction, because we can decide that excessive concern for rights has made us less secure. For example, the experience of facing great emergencies, such as terrorist attacks, might push us towards contracting some individual rights in order to make government more effective in capturing and punishing our enemies. The process of learning by trial and error the lessons of history as to resolving conflicts of rights and the balance between liberty and security is fallible. But there is no infallible alternative. And because learning from historical experience with rights is so fallible, there will always be some honest disagreement.

In effect, Dershowitz is restating what Aristotle recognized as the inescapable uncertainty and variability in practical affairs for which we need prudence or practical judgment where demonstrative proof is impossible. That's why rhetorical argumentation is so important. With its appeal to both reason and emotion and its reliance on historical experience and common opinions, rhetorical persuasion prevails where abstract logic would fail. That's why it's so hard to understand why political theorists and political scientists pay so little attention to rhetorical theory. By contrast, lawyers like Dershowitz and Cahn understand from their legal practice the primacy of rhetorical persuasion in practical life.

Dershowitz admits that there is no absolute line of separation between rights and preferences. Rights are just strong preferences, and the strength of those preferences can change over time. But still we can identify rights as "those fundamental preferences that experience and history--especially of great injustices--have taught are so essential that the citizenry should be persuaded to entrench them and not make them subject to easy change by shifting majorities" (81).

Slavery and the Holocaust are paradigms of injustice. And so the modern consensus that slavery and genocide violate human rights is strong. But this emerged only through historical experience. After all, for thousands of years, many people thought slavery was naturally rooted or divinely commanded or both. But eventually, the sense of the injustice of slavery evoked by empathy for the slaves and antipathy towards the slavemasters convinced most people that freedom from slavery should be a human right. Actually, the fight against slavery continues today, because while the open practice of chattel slavery has mostly disappeared, various kinds of disguised slavery continue.

In his effort to avoid the mistakes of both the absolutist natural law position and the absolutist positive law position, Dershowitz sometimes suggests a culturalist relativism that would provide no stable ground at all for justice or rights. If rights are nothing more than cultural preferences that arbitrarily change across time and across cultures, then it's hard to see that rights have any compelling force.

Dershowitz would benefit from adopting the three-leveled analysis that I have defended on this blog, by which moral and political order can be seen as requiring natural law, customary law, and positive law. From the position of Darwinian natural right, we could say that human moral experience arises from the complex interaction of moral instincts, moral traditions, and moral judgments. Contemporary scientific research on Darwinian moral psychology supports this. For example, neuroscience is uncovering the neural bases for these three levels of moral experience. As a product of evolutionary history, the human brain is instinctively endowed with natural propensities to moral emotions such as anger, indignation, love, and empathy. The human brain is also adapted for social learning in which our moral emotions are specified with social content reflecting our individual and cultural history. The human brain is also adapted for individual judgment by which we respond as unique individuals to unique circumstances constrained by our moral instincts and our moral traditions.

Moreover, the neuroscientific study of moral experience confirms the Darwinian and Westermarckian understanding of moral life as requiring a combination of cognitive reasoning and emotional response. Behavioral game theory provides experimental evidence for this biological moral pscyhology.

Actually, Dershowitz himself comes close to this Darwinian understanding when he concedes that although he wants to avoid the "naturalistic fallacy" of inferring a moral "ought" from a natural "is," he also wants to avoid the "nurturalistic fallacy" of assuming that nurture determines the content of morality without any influence from nature (35). He notes that moral experience requires the interaction of nature and nurture. After all, his general argument about "rights from wrongs" assumes a natural human propensity for moral emotions of disapproval or disgust in response to gross injustices (8-9, 17, 31-32, 35, 62-63, 79, 112, 121-25, 134-36).

Dershowitz is famous for being one of the most vigorous defenders of Israel. In books like The Case for Israel and The Case Against Israel's Enemies, he has argued that those who have turned the international human rights movement against Israel fail to see that the human rights record of Israel is far superior to that of its Islamic enemies.

I will be writing some future posts on this, because this illustrates how human rights become contested. Originally, the modern human rights movement was unanimous in its moral revulsion against the Holocaust and anti-Semitism, which favored the establishment of Israel. But now the enemies of Israel try to evoke a similar moral revulsion against Israel's treatment of the Palestinians as a violation of human rights. The disagreement in this debate is both rational and emotional--rational in so far as it turns on a disagreement about the relevant facts and emotional in so far as it turns on differing emotional responses. Even if we cannot resolve such disagreement through demonstrative reasoning, we can arrive at some judgment through rhetorical debate between the advocates on both sides.

For a small sample of the many posts pertinent to this topic, go here, here, here, here, and here.