Thomistic Natural Law in Justice Kennedy's Gay Marriage Opinion

    Chicago's Gay Pride Parade Honors the Five Justices Who Supported Gay Marriage

I am not convinced that Mike Huckabee was right in condemning the Supreme Court for trying "to unwrite the laws of nature and the laws of nature's God" in upholding gay marriage as a constitutional right.

Although he does not explicitly appeal to Thomistic natural law, Justice Kennedy's opinion for the majority in Obergefell v. Hodges implicitly engages in Thomistic natural law reasoning.

"The limitation of marriage to opposite-sex couples may long have seemed natural and just," Kennedy observes, "but its inconsistency with the central meaning of the fundamental right to marry is now manifest" (17).  So what seemed natural and just can now be understood to be unnatural and unjust.  Natural justice requires extending the right to marry to same-sex couples.

The dissenters in this case insist that the only standards for determining constitutional rights come from "history and tradition," and therefore there can be no constitutional right for same-sex marriages, because "history and tradition" restrict marriage to opposite-sex couples.  But Kennedy argues that in exercising "reasoned judgment" about how choices about marriage express "our common humanity," "history and tradition guide and discipline this inquiry but do not set its outer boundaries" (10-11, 13).  Once we understand that sexual orientation is part of our "immutable nature," and that homosexuals have the same natural desires for marital love and parental care of children that heterosexuals do, then we can see that same-sex marriage is rooted in human nature (4).

According to Thomas Aquinas, marriage is natural insofar as it satisfies two natural ends--securing the parental care of children and securing the conjugal bonding of male and female in the household (Summa Theologica, II-II, q. 57, a. 3; suppl., q. 41, a. 1).  Kennedy agrees with this, although he sees same-sex marriages as securing the same two natural ends (5, 13-16).

Aquinas accepts the biblical teaching (in Paul's Letter to the Romans, 1-2) that homosexuality is "contrary to nature" (I-II, q. 94, a. 3; II-II, qq. 153-54).  By contrast, Kennedy believes that homosexual inclinations express the "immutable nature" of homosexuals. Aquinas concedes that in their sexual desires, human beings differ in their "temperamental nature," in that a few human beings will naturally choose to be celibate, such as those (like Aquinas himself) who choose to take religious vows of celibacy (I-II, q. 46, a. 5; q. 51, a. 1; q. 63, a. 1).  But he never concedes that homosexuality might also express "temperamental nature."  So here is the one fundamental point of disagreement between Aquinas and Kennedy.

Despite this disagreement over whether homosexuality is natural or unnatural, moral or immoral, Aquinas and Kennedy are close to agreeing that the religious condemnation of homosexuality should not be coercively enforced by law.  While Aquinas regards homosexuality as a vice, he also insists that it is not the proper role of human law to enforce perfect virtue, because human law should be concerned primarily with prohibiting conduct that is harmful to social order, such as murder and theft (I-II, q. 96, a. 2).  Similarly, Kennedy argues that same-sex marriages pose no risk of harm, and that those who say that legalizing same-sex marriage will destroy opposite-sex marriage are mistaken (26-27). 

So there is here--implicit in Kennedy's opinion--a natural law argument for gay marriage, in that gay marriages with adopted children can approximate heterosexual marriages in serving the two natural functions of marriage--conjugal bonding and parental care of children--without harming the institution of heterosexual marriage.

Darwinian Natural Right in the Supreme Court's Gay Marriage Decision

As I have often indicated, the general framework of Darwinian natural right is that human nature constrains but does not determine human culture, and that human nature and human culture constrain but do not determine human judgment.  Consider how that framework applies to the decision of the Supreme Court in Obergefell v. Hodges, in which, by a 5-4 decision, the Court has declared that same-sex marriage is a constitutional right.

The opinions can be found here.  Justice Kennedy delivered the opinion of the majority, with the concurrence of Justices Ginsburg, Breyer, Sotomayor, and Kagan.  Dissenting opinions were filed by Chief Justice Roberts and by Justices Scalia, Thomas, and Alito.

I have written a series of posts arguing that gay marriage can be seen as conforming to Darwinian natural right.  In particular, I have framed my arguments as responses to Robert George, Ryan Anderson, and Sherif Girgis in their natural law argument that gay marriage is not "real marriage."  My posts can be found here, here, here, here, here, here, and here.

From that point of view, my assessment of the court's opinions in this case is complicated, because I partly agree and partly disagree with all of them!

I partly agree with Kennedy's opinion in that I agree with his evolutionary libertarianism in defending the right of gays to marry.  But I partly disagree with his opinion in that I disagree with his claim that the Supreme Court has the ultimate constitutional authority to decide this issue for the entire nation.

I agree with Kennedy that marriage is a human universal that arises from "the most basic human needs" of our evolved human nature (3), and that the "immutable nature" of homosexuals dictates that same-sex marriage is the only path for homosexuals to satisfy their natural desire for marriage (4).

I also agree that gay marriage can satisfy the same natural ends that are satisfied in heterosexual marriage--parental care of children and conjugal bonding--natural ends that belong to "our common humanity" and our natural "pursuit of happiness" (11, 13-15).  I agree as well that marriage is both an expression of our natural individual liberty and "a keystone of our social order" (12, 16).

I also agree with Kennedy that while through most of our cultural history, we have seen only heterosexual marriage as real marriage, we can now recognize that same-sex marriage can satisfy the same natural desires satisfied in heterosexual marriage.  We can also see that legalizing same-sex marriage need not weaken heterosexual marriage (6-12, 17, 20-21, 26).

I also agree with Kennedy that legalizing gay marriage does not deny the freedom of those who oppose gay marriage for moral or religious reasons.  Opponents of gay marriage will be free to live in groups that condemn gay marriage for religious or secular reasons, but they will not be free to use legal coercion to deny the right to gay marriage (27).

On all of these points, I agree with Kennedy's rejection of the argument of George, Anderson, and Girgis that only heterosexual marriage is "real marriage," and that legalizing gay marriage will destroy heterosexual marriage.

I disagree with Kennedy, however, in two ways.  First, I argue that the best way to secure the libertarian right to marry is to privatize it by abolishing governmental licensing of marriage and by treating marriage as based on voluntary contracts enforced just as all contracts are enforced.

In my second point of disagreement with Kennedy's opinion, I agree with the dissenters in this case, who argue that Kennedy's majority opinion is more an expression of moral philosophy than of constitutional law, and that this opinion unconstitutionally assumes that the moral philosophizing of a majority of justices on the Supreme Court must ultimately decide the political debate over gay marriage and thus end that debate.

Constitutional law is fundamental to American political culture in establishing popular self-government primarily through electoral politics and legislative supremacy both in the state legislatures and the national Congress.  By contrast, as Scalia says, "Today's decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court" (2).  If so, then we are no longer a self-governing people.

And yet, Scalia and all of the justices, both in the minority and in the majority, are mistaken in their assumption that when the Court makes a decision like this, there are no constitutional avenues for resisting that decision.

Nowhere does the Constitution say that the Supreme Court is the ultimate and final interpreter of the Constitution.  The idea of judicial review is not even mentioned in the Constitution.  Moreover, there are many constitutional powers that can be used to overturn or to frustrate the enforcement of any Supreme Court decision.  Three-fourths of the state legislatures can ratify a constitutional amendment that overturns the decision.  The Congress can impeach the justices who voted for the decision.  Congress can abolish the appellate jurisdiction of the Supreme Court to decide cases.  The Senate can refuse to confirm any nominee to the Court who refuses to pledge to overcome an unpopular decision.  And, finally, the state legislatures, the Congress, and the President can all assert a right to interpret the Constitution for themselves.

For these reasons, Alexander Hamilton was right to declare (in Federalist number 78) that the Supreme Court has "neither force nor will, but merely judgment."  The Court can try to persuade us to accept its opinions, but it cannot enforce any opinion that is actively resisted by the states, the Congress, and the President.

In deciding whether we agree with the Court's decision, we must exercise our individual judgment about how best to specify the rights and duties of marriage.  That judgment will be constrained but not determined by the evolved human nature of marriage and the evolved human culture of American political institutions and constitutional law.

Ultimately, the cultural evolution of American constitutional law is an evolution in moral philosophy.  Kennedy's opinion is one of the clearest examples of how interpreting the words of the Constitution requires philosophic thinking, and in this case, it's the philosophic thinking of classical liberalism or libertarianism.  Kennedy declares: "the right to personal choice regarding marriage is inherent in the concept of individual autonomy" (12).  This conclusion arises from his exercise of "reasoned judgment" guided by his "new insight" into the "nature of injustice" (10-11).

Justice Roberts identifies this as an exercise in "moral philosophy" that has no basis in the Constitution (19).  But implicitly Kennedy is agreeing with Ronald Dworkin that we cannot interpret the language of the Constitution without engaging in moral philosophy.  (Dworkin's philosophic approach to constitutional interpretation has been elaborated and defended by Sotirios Barber and James Fleming in their Constitutional Interpretation: The Basic Questions [Oxford University Press, 2007].) 

In this case, the judges must interpret the language of the Fourteenth Amendment: "nor shall any State deprive any person of life, liberty, or property, without due process of law; nor to deny to any person within its jurisdiction the equal protection of the laws."  Words like "liberty," "due process of law," and "equal protection" denote moral concepts, and so if the judges are to think for themselves about the meaning of these moral concepts, they must engage in moral philosophizing.  Those who wrote the Fourteenth Amendment did not clearly define the meaning of those concepts, and thus they left it up to future judges, politicians, and citizens to think about the true meaning of those moral concepts.  There is no reason to believe that when the Fourteenth Amendment was ratified in 1868, the people of the time understood that "liberty" included the right to same-sex marriage.  But it is possible for us today, in thinking about the meaning of "liberty," to discover that it does include that right.  That's what Kennedy is saying, and that's the most interesting feature of his opinion in this case.

Another example of this philosophic approach to constitutional interpretation is George Anastaplo's Constitution of 1787, which suggests that interpreting the actual words of the Constitution requires an exercise of philosophic thinking about the moral concepts conveyed by those words.  But unlike Kennedy, Anastaplo rightly sees that this philosophic thinking about the meaning of the Constitution is an activity for all thoughtful citizens and not just for the nine lawyers on the Supreme Court.

Trumbull's "Declaration of Independence" & Raphael's "School of Athens": A Book Cover

Here is the book cover for the fourth edition of Political Questions, with the two paintings reproduced on the cover.

I thought a lot about what the cover of my new book should look like before I settled on this design, with John Trumbull's "Declaration of Independence" at the top and Raphael's "School of Athens" at the bottom.

Trumbull's painting was commissioned by the United States Congress in 1817, and it was placed in the U.S. Capitol Rotunda in 1826, where it remains today.  The painting shows the presentation of the draft of the Declaration of Independence to the Second Continental Congress at Independence Hall on June 28, 1776.  It shows 42 of the 56 signers of the Declaration.  Trumbull decided not to paint those for whom he had no likenesses.  At the center of the painting is the five-man drafting committee--John Adams, Roger Sherman, Robert Livingston, Thomas Jefferson, and John Adams--with Jefferson standing out from the group as the one presenting the draft, and thus suggesting his primary influence in the writing of the document.

Raphael's "School of Athens" fresco was painted early in the sixteenth century for one of the walls of the library for Pope Julius II in the Apostolic Palace in Vatican City.  The ancient philosophers are painted with Plato and Aristotle at the center, who are turning their heads to look at one another.  Plato points upward with the index finger of his right hand, while holding upright in his left hand a copy of the Timaeus.  Aristotle gestures forward and downward with his open right hand, while holding flat in his left hand a copy of the Nicomachean Ethics.  On the one hand, this suggests a contrast between the vertical perspective of Plato and the horizontal perspective of Aristotle, as though Plato were saying "It's up there," and Aristotle were saying, "No, it's down here amongst us."  On the other hand, the symmetrical design of the painting suggests that the Platonic and Aristotelian perspectives complement one another.

A few years ago, I wrote a long post on Raphael's painting as part of his Stanza della Segnatura.

I decided that putting these two paintings on the cover of my book would point to some of the recurring questions raised in the book.  Raphael's painting raises questions about the relationship between Platonic cosmic transcendence and Aristotelian empirical naturalism.  Juxtaposing it with Trumbull's painting raises questions about whether the Declaration of Independence points to some of the issues debated by philosophers, which is one of the themes of my book.

Many readers of the Declaration of Independence have seen echoes of John Locke and Lockean liberalism.  Others have seen other philosophical influences (such as the Scottish Enlightenment).  Jefferson himself pointed not only to Locke but also to Aristotle, Cicero, and Algernon Sidney as authors whose ideas might be implicit in the Declaration.

Some scholars, however, have argued that it's a mistake to see the Declaration of Independence as a statement of deep philosophical principles because it actually had only one limited purpose--declaring and justifying American Independence from Great Britain.  The elevation of the Declaration to an almost sacred document stating the philosophical principles of American political life was the work of Abraham Lincoln and others.  The scholars arguing this position include Pauline Maier and Barry Alan Shain.

I am inclined to agree with Michael Zuckert and others who argue that the Declaration really does evoke the philosophic principles that Jefferson attributed to it.

In any case, I hope that the cover of my book suggests such questions about the connection between political philosophy and political practice.

Azar Gat on War in the State of Nature: Refuting Rousseau, Vindicating Locke

The debate among the early modern political philosophers over the state of nature can be settled by modern evolutionary anthropology.  Over the years, I have argued on this blog that this is an example of how evolutionary anthropology can clarify, and perhaps even resolve, disputes in the history of political philosophy. 

Evolutionary anthropologists studying the evolution of war and peace have been divided into Hobbesians who believe that our hunter-gatherer ancestors were naturally violent and warlike and Rousseauans who believe that hunter-gatherers were naturally peaceful.  But in setting up this debate as Hobbes versus Rousseau, they have overlooked the position of Locke.  This is a serious mistake, because the weight of the evidence and argumentation on this issue today is on the side of Locke's account of the state of nature as a state of peace that tended to become a state of war.  It seems now that while Hobbes was partly right and partly wrong about the state of nature, Rousseau was mostly wrong, and Locke was mostly right.

As I have indicated in some previous posts, Azar Gat is one of the leading scholars defending the Hobbesian side of this debate and criticizing the Rousseauan side.  He concedes, however, that Hobbes was wrong on some points, because he failed to see that our hunter-gatherer ancestors were social animals and not solitary individuals, and that they were capable of living in peace for long periods of time, despite their propensity to violence and war.  Gat does not recognize that Locke was closer to the truth about the evolutionary state of nature than either Hobbes or Rousseau, and that the Hobbesians and Rousseauans today have been moving towards agreement on the Lockean account of the state of nature.

Gat elaborated his reasoning in his 2006 book War in Human Civilization (Oxford University Press).  Now he has restated some of this reasoning and surveyed some of the most recent research in an article that has just been published--"Proving Communal Warfare Among Hunter-Gatherers: The Quasi-Rousseauan Error," Evolutionary Anthropology, 24 (May/June, 2015): 111-126.

In this article, he shows that the Rousseauans have been retreating from Rousseau over the past 30 years, because the scientific evidence against the Rousseauan state of nature has been accumulating to the point that it cannot be ignored.  He shows that the Rousseauans have moved through three positions. 

First, they embraced Classical Rousseauism, which was Rousseau's original claim that human beings in the state of nature were totally peaceful, until the settlement into sedentary and agricultural life, which brought violent conflict. 

Second, they adopted Extended Rousseauism, which claimed that serious violence did not arise until the emergence of centralized states.  This position is associated with the "tribal zone theory," according to which simple hunter-gatherers and complex hunter-gatherers and horticulturalists did not become violent until they came into contact with intrusive states.  So, for example, the Yanomamo people of the Amazonian rain forest, whom Napoleon Chagnon made famous as the "fierce people," were said by Brian Ferguson to show the effects of a century of violent conflicts with European invaders.

Finally, most recently, the Rousseauans have adopted a Quasi-Rousseauism that breaks totally with Rousseau, because they concede that hunter-gatherers in the state of nature show the violence of homicide and feuds, and yet the Rousseans insist that this violence is not war.  Therefore, they can argue that war in the strict sense is not natural for human beings, but is a purely cultural invention of the states that began to appear around 5,000 years ago.  The Quasi-Rousseauans include Raymond Kelly and Douglas Fry.

Gat argues that this Rousseauan retreat from Rousseau is in response to the growing evidence from primatology, archaeology, and ethnography that largely confirms Hobbes's claim that the state of nature is a state of war.  As in his book, in surveying the evidence, Gat stresses the importance of Aboriginal Australia as the best natural laboratory for studying the hunter-gatherer way of life.

The primatological evidence includes the evidence for chimpanzee warfare, in which bands of adult male chimps belonging to one chimp community raid the territory of other communities, and if they have the numerical advantage over their opponents, the raiders attack or kill their opponents, and then the raiders return to their community, without suffering any injury to themselves.  This kind of behavior is similar to what human hunter-gatherers do when they launch raids, often at night, into the territory of other groups and make surprise attacks on their opponents.  Bonobos, however, do not show such violent behavior; and thus the Rousseauans look to the bonobos as their models for our primate ancestry.

The archaeological evidence includes skeletal evidence of injuries or lethal assaults from attacks, ancient weapons and shields, and signs of defensive fortifications.

The ethnographic evidence comes from reports of how hunter-gatherers have lived.  Since preliterate people have no written records of their history, the only records we have come from European observers.  Hobbes, Locke, and Rousseau relied on the reports of Europeans who first discovered foraging societies in Africa and the New World.  The problem here, however, is the "contact paradox":  we cannot know how these people have lived until we contact them, but then any contact can distort their behavior.

As Gat indicates, the Australian Aboriginals appear to be the only case where the contact paradox is minimized.  Until the Europeans first arrived in Australian in 1785, Australia was an isolated continent of hunter-gatherer bands and tribes, with no pastoralists, agriculturalists, or states.  The earliest English reports of how they lived showed a history of lethal feuds, raids, ambushes, with fighting between individuals, families, and tribes.

Gat shows that surveys of the evidence for violence and warfare among hunter-gatherers and prestate horticulturalists manifest rates of violent death as high as 25% of adult males and 15% of the adult population.  These rates of violent death drop dramatically with the establishment of formal government and laws, thus showing the Hobbesian pacification of life under the Leviathan.  Those rates have dropped even more in modern liberal states, as Steve Pinker and others have shown.

Oddly enough, the Quasi-Rousseauans agree that there really is a pattern of declining violence here.  Their only disagreement is their insistence that the violence in the state of nature is personal violence--homicide and feuding--that does not satisfy any proper definition of war.  Gat responds to this by arguing that Hobbes and Rousseau saw "war" as including any kind of violence, and by arguing that there is evidence for large group-against-group conflicts among hunter-gatherers (such as the Australian Aboriginals) that should count as war.

The emotional intensity of this debate over the evolution of war is explained by Gat as reflecting the false assumption that if we see war as a natural evolutionary adaptation, then we must conclude that the pursuit of peace is a futile denial of human nature.  Gat denies this by arguing that while war is a naturally evolved capacity, it is not a biologically determined necessity.  We have evolved capacities for both peace and war, and whether we have war or peace depends upon the ecological and cultural circumstances of life.  If we understand this, we can look for ways to make peaceful cooperation more likely and violent conflict less likely.

In all of this, Gat is implicitly taking Locke's position.  Locke's state of nature is a state of peace, because human beings are naturally social animals--bound together by familial, tribal, and cultural bonds--who engage in mutually beneficial cooperation, which shows how human beings with natural reason can grasp a natural moral law, and enforce that law with the natural disposition to punish offenders.  And yet, Locke's state of nature can easily become a state of war, because where everyone has the natural power to punish offenses against the natural law, with individuals tending to be partial to their own interests, people tend to fall into endless feuding and raiding.  To escape from that natural state of war, the establishment of government and law, so that there is a common judge to settle disputes under the rule of law, can provide the conditions of peace.  Nevertheless, when those with governmental power rule arbitrarily and absolutely for their own interests and against the public interest, then the people can reclaim their "natural executive power of the state of nature" in resisting that tyrannical rule. 

As the rhetoric of Lockean liberalism succeeds in promoting the ideas of government by the consent of the governed directed to securing individual rights to life, liberty, property, and the pursuit of happiness, we see ever declining violence and the spread of the liberal peace, as described by Gat, Pinker, and others.

I have developed these points in other posts here, here, here, here, here, here, here, here, and here.

Lockean Liberalism as Symbolic Niche Construction: Locke's Mixed Modes, Searle's Institutional Facts, and McCloskey's Bourgeois Virtues

If we accept the modern scientific explanation of the natural world, how can we explain the human mind and human society?  This is the fundamental question of modern intellectual life. 

There are at least three ways to answer this question.  One way is to assume that there is only one world, and therefore the mind and society must be explained as arising somehow from the natural world as studied by modern science.  Another way is to assume that there are two worlds, because the natural world of science is separated from the human world of mind and society.  A third way is to assume that there are three worlds--the natural world of objective facts, the mental world of subjective experience, and the cultural world of social ideas and practices. 

According to the first way, the natural sciences, the social sciences, and the humanities should become parts of one universal science of nature.  According to the second way, there is an unbridgeable gulf between the natural sciences and the human sciences.  According to the third way, the unbridgeable gulf separates three realms of thought about three different worlds: the natural sciences are separated from the psychological sciences, and both are separated from the social sciences and humanities.

As should be evident from many of my posts, I think the first way is best.  There are two different intellectual strategies for achieving this one-world vision--reductive physicalism and emergent evolution.  According to reductive physicalism, the complete unification of all knowledge of the natural world would ultimately require explaining everything through physics.  According to emergent evolution, which is the position that I take, the history of the universe is a history of emergent complexity, in which higher levels of complexity arise from lower levels, and while those higher levels are consistent with the lower levels, the higher cannot be fully reduced to the lower.  

So, for example, biology must be consistent with physics and chemistry, but biological phenomena have an emergent complexity that cannot be fully reduced to physics and chemistry.  The mind and society are also emergent phenomena that must be compatible with the laws of physics and chemistry, but without being fully reducible to those physical and chemical laws.  Some of my posts elaborating these points can be found here, here, here, and here.

My thinking here largely coincides with the thinking of John Searle, particularly in his book Making the Social World: The Structure of Human Civilization (Oxford University Press, 2010).  Like me, he thinks the fundamental questions of modern intellectual life are about how to explain human life in a manner that is compatible with modern natural science.

"How can we give an account of ourselves, with our peculiar human traits--as mindful, rational, speech-act performing, free-will having, social, political human beings--in a world that we know independently consists of mindless, meaningless, physical particles?  How can we account for our social and mental existence in a realm of brute physical facts?" (ix)

Like me, Searle assumes that we live in one world--that we live in one reality with physical, mental, and social aspects--and that our explanations of mental and social life must be compatible with the physical sciences but not simply reducible to those sciences.  And so, for example, in Making the Social World,  he offers an explanation of social reality as created and maintained by language, while explaining language as a natural product of the human biological evolution of the brain that enabled the human mind to create social institutions through what he calls "collective intentionality."

I mostly agree with Searle about all of this.  My one major point of disagreement is that Searle fails to see how his account of how human beings create social institutions through collective recognition or acceptance of those institutions is a Lockean social contract theory of morality and politics.  If one sees this, and also sees how Lockean social contract reasoning can be understood in modern evolutionary theory as symbolic evolution and niche construction, then Lockean liberalism can be understood as the symbolic niche construction of liberal institutions.  This can also be described, as it is by Deirdre McCloskey, as a transformation in ethical ideas, moving from an aristocratic ethics that scorned the pursuit of economic gain to a bourgeois ethics in which life in a commercial society became virtuous.

We live in a world of institutional facts that constitute our social reality.  Consider one of Searle's favorite examples--the twenty dollar bill.  Because of its institutional status, I can use that twenty-dollar bill to buy goods and services.  As a physical object, it's only a piece of paper with some ink marks on it.  But as long as we accept its institutional status as currency of the United States, with its stipulated value, it has power as a medium of exchange.  Searle would say that this institutional reality of the twenty-dollar bill has been created by a linguistic or symbolic representation that we can call a Declaration of Status Function, which has the form "X counts as Y in C."  We agree that this piece of paper counts as money in the context of the monetary system of the United States.  It has the status of money that can function as currency because of our agreement to regard it as such.  Remarkably, we have created the social reality of money by declaring our agreement that it should count as such, as long as the paper money has the correct symbols, such as the words "This note is legal tender for all debts, public and private."  (Searle does not realize that he is following Locke here, because Locke stressed that the "invention of money" was "by consent" [ST, 36].)

Similarly, Barack Obama is President of the United States, and has all the rights and duties of the presidency, because we have agreed to count as president anyone who wins a presidential election according to the procedures of the United States Constitution.  I am a husband, a professor, and a citizen of the United States.  I own a house, a car, and other property.  I have the rights and duties created by the formal laws and informal social norms of my neighborhood, my city, and my country.  Social facts like these enable us to live a civilized human life.

The mystery here, as Searle indicates, is how we can have an objective knowledge of this social reality that is created by human subjective opinions.  The human capacity for language and symbolism enables us to create a reality by representing that reality as existing and agreeing among ourselves to accept that reality as existing, which allows us to create a social and institutional reality out of language, symbolism, and collective intentionality.

To explain scientifically how this subjective creation of social reality is possible in a natural world of physical facts, we would need to explain the natural evolution of the human brain that created the human capacity for language and symbolism.  Searle offers a conceptual analysis of how language as a natural, biological phenomenon could have evolved among human evolutionary ancestors as an extension of prelinguistic forms of intentionality.  Within evolutionary biology, there is continuing study of the evolution of human language.

Other animals have some capacity for communication and social learning that can create animal cultures of inherited behavioral traditions.  But human beings are probably unique in their capacity for language and symbolism that allows them to create imaginary social realities.  (As I have indicated in a previous post, Eva Jablonka argues well for the evolution of symbolic culture as being uniquely human.)

So, for example, some primates have social orders in which some individuals are treated as alpha males.  But this falls short of the human capacity of moral symbolism by which we agree to recognize some individuals in specified circumstances as having the right to rule over us.

Here we see the moral power--or "deontic power" as Searle calls it--implicit in the human creation of social reality.  "Deontic" is derived from the Greek word deon, denoting something we must do or ought to do--our ethical duty.  In creating social facts, we create ethical facts, because we create formal laws or informal norms of social life that constitute rights and duties of individuals in specified social roles.  As a husband, professor, and citizen, I have the rights and duties of those socially created roles.  Moreover, as a human being, I might have the human rights and duties that arise from my socially recognized status as a member of the human species.  Searle argues that this is indeed the case--that our social reality does include the reality of natural human rights, which include the natural rights to life, liberty, property, and the pursuit of happiness, as rights rooted in our biological human nature.

This sounds a lot like John Locke's argument for natural rights and social order constituted by a social contract.  But, oddly, Searle rejects Locke and social contract reasoning, without realizing that his thinking largely coincides with that reasoning.  Searle doesn't see that in explaining how status functions arise from "collective intentionality" or "collective acceptance or recognition of the object or person as having that status" (8), he is adopting the Lockean argument for social authority as arising from the consent of human individuals.

Searle offers two criticisms of Locke and the social contract theorists.  He says that they are wrong about the state of nature, because they don't understand that once human beings have a shared language, they have a social contract and a society.  "If by 'state of nature' is meant a state in which there are no human institutions, then for language-speaking animals, there is no such thing as a state of nature."  His second criticism is that Locke "gives no evidence of seeing that any account of language could show how language underlies society" (62).  Both of these claims are mistaken.

Locke makes it clear that in the state of nature, when human beings lived in bands of hunter-gatherers, there was no formal government, but there were human institutions--particularly, marriage, families, private property, economic exchange, and social norms of moral conduct that Locke calls "the law of nature."  There was a kind of informal government in the governing of children by their parents and in the episodic authority of military leaders in time of war (Second Treatise, pars. 74-75, 94, 105, 107-109, 170).

This was the first human society that was created by informal consent--collective recognition or acceptance--through language, and language itself was a social creation in which certain sounds were given symbolic meaning by a "tacit consent" (ECHU, II.2).  But this society was not a political society, because there was not yet any consent to a formal government or legal system (First Treatise, pars. 86-93; Second Treatise, pars. 6-14, 25-35, 77-90).  Searle is mistaken, therefore, in assuming that Locke thought there were no human institutions in the state of nature.

Searle is also mistaken in assuming that Locke did not recognize how language creates society.  In fact, Locke explained in the Essay Concerning Human Understanding that social institutions were created by human beings through the language of "mixed modes" for use in social intercourse (II.2.22; II.28.2-4; II.31.3; III.1.1, III.2.8; III.5).  Echoing Locke's terminology, Searle speaks of "the mode of existence of social entities" (5).

According to Locke in the Essay, all our ideas originate in experience, either in experience of the external world, which we have through sensation, or in experience of our own thinking and wishing, which we have through reflection.  We form our simple ideas in our minds directly from these experiences.  We can then form complex ideas by combining and comparing simple ideas, and we can form general ideas by abstracting one idea from others with which it is associated.  Thus, all human thought arises either as an impression from experience or as a modification of such impressions by some faculty of the mind.

Locke distinguishes the complex ideas of substances from complex ideas of modes and relations.  Complex ideas of substances are combinations of simple ideas that represent particular things that exist by themselves, for example, man, sheep, army, and gold.  Modes are complex ideas that do not contain any representation of anything existing by itself; rather, modes are ideas conceived as modifications of simple ideas.  Simple modes are combinations of a single simple idea, for example, space and duration.  Mixed modes combine several different simple ideas, for example, triangle, gratitude, obligation, and murder.  Ideas of relations are a special kind of mixed mode that arises by comparing one idea with another, for example, father, whiter, cause and effect.

Mixed modes are important for social and political thought, because most of the words used in theology, ethics, law, and politics are mixed modes.  Locke's examples of mixed modes include adultery, incest, murder, parricide, justice, gratitude, glory, and ambition.

Locke emphasizes the arbitrariness of mixed modes.  The ideas of mixed modes are "made very arbitrarily, made without patterns, or reference to any real existence.  Wherein they differ from those of substances, which carry with them the supposition of some real being, from which they are taken, and to which they are conformable.  But, in its complex ideas of mixed modes, the mind takes a liberty not to follow the existence of things exactly."  Mixed modes are "the workmanship of the mind" (III.5.3-4). 

This is the same arbitrariness that Searle sees in institutional facts that exist only because we think they exist and say that they exist.  Searle declares: "God can create light by saying 'Let there be light!'  Well, we cannot create light, but we have a similar remarkable capacity.  We can create boundaries, kings, and corporations by saying something equivalent to 'Let this be a boundary!' 'Let the oldest son be the king!'  'Let there be a corporation.'" (100)

But since both Searle and Locke stress the arbitrariness with which human beings freely create their social norms by collective consent through speech, we have to wonder whether this denies that there is any natural foundation or standard for judging our moral ideas.  And if so, wouldn't this contradict Locke's claim that there is a natural law knowable by natural human reason and Searle's claim that human rights are rooted in human nature, which suggest a natural standard rather than arbitrary creation?

Locke says that while mixed modes are made "very arbitrarily," they are not made "without reason" or "at random" (III.5.3, 6-7).  Although our moral ideas are not copied from nature, they are made by human beings for the purpose of communicating standards of conduct that facilitate human social life; and the requirements of such a life are shaped by the natural desires and inclinations of human beings.  The ultimate natural standard for judging social norms is whether they satisfy the natural human pursuit of happiness (I.2.3; III.21.42-73).  In that way, human nature does set standards for our moral ideas.

So, for example, if human beings say that intentionally killing an innocent human being is murder, but killing a sheep is not, this distinction is not simply discovered by just looking at human beings killing one another and killing sheep.  This moral distinction is made by human beings to serve the natural desire of human beings to preserve their lives against attack and to punish those that threaten them (III.5.5-6; FT, 86-88; ST, 7-11).  And if we distinguish the killing of a father or mother as worse than killing others, it's because we agree to recognize the different heinousness of the crime that demands a distinct punishment that fits the crime (III.5.7).  Similarly, if we create the idea of an incest taboo, it's because human beings naturally express moral disgust in response to incest, although there will be cultural variation in how incest is defined based on variable kinship systems.

Like Locke, Searle appeals to human biological nature as the natural standard for natural human rights.  And from that standard, Searle derives a minimal list of human rights that looks much like what Locke would endorse: "the right to life, including the right to personal liberty, the right to own personal private property (such as clothing), the right to free speech, the right to associate freely with other people and to choose with whom one associates, the right to believe what one wants to believe, including religious beliefs as well as atheism, the right to travel, and the right to privacy" (185).

But while Seale sees these rights as status functions created by human beings through their collective intentionality, he recognizes that many people have believed that such rights are insecure if they are not seen as part of the natural order of things or created by God.  He sees this in the Declaration of Independence: "We hold these truths to be self-evident" that all men "are endowed by their Creator with certain unalienable rights."  Searle suggests that this belief in divine creationism is false (107, 118-19, 183).  And he indicates that this creates a problem for his theory of social institutions.  In such cases, "the status function only works as a status function precisely because it is believed not to be a status function but a brute intentionality-independent fact about the universe."  But then, he indicates, all that matters is that the people do collectively recognize or accept the system of status functions, even though the collective acceptance is based on a false belief in a divine moral law (119).

Although Locke rejects the idea of the "divine right of kings," he does appeal to the creationist theology of human beings as having a special moral dignity because they are the "workmanship" of God who created them in His image (FT, 30, 52-54, 85-86; ST, 6, 56).  He also, however, grounds the moral dignity of human beings in their self-ownership as beings who claim a property in their own persons (ST, 27, 172-73).  And some readers have wondered whether this could provide a purely natural ground for Lockean natural rights, without the need for appealing to supernatural creationism.

But then when the Declaration of Independence appeals to "the Laws of Nature and of Nature's God," this suggests a natural creationism--that is, Nature's God creates through natural law, perhaps through a natural evolutionary process.  And indeed many Christians are theistic evolutionists who see God working through natural evolution.  Locke often speaks of the "Laws of God and Nature" (Second Treatise, pars. 1, 4, 60, 66, 142, 195).

Men might be created equal and endowed by their Creator with certain unalienable rights through the human evolution of a large and complex cerebral cortex that allows them to collectively recognize human equality of rights.

In any case, evolutionary biology can recognize the practical efficacy of religious belief--particularly, religious belief in a moral God who cares for human beings and enforces moral law through rewards and punishments.  Research in cross-cultural economic game experiments indicates that those who belong to one of the world religions tend to show a sense of fairness in their playing of the games.  And evolutionary biologists like David Sloan Wilson have argued that religious belief evolved through group selection to support cooperation within groups.

Evolutionary biology could also recognize the success of Lockean liberalism in promoting its moral and political ideas as an expression of symbolic niche construction.  "Niche construction" is a modern term in evolutionary theory for an idea first developed in Darwin's last book--The Formation of Vegetable Mould, through the Action of Worms (1881)--in which he studied how earthworms continually alter the surface of the Earth by breaking down soil into fine particles, thus they construct the environment to which they are evolutionarily adapted.  We can also see the cultural history of animals as niche construction, in that cultural animals create cultural traditions that are inherited by later generations.  Human beings do this not only through behavioral traditions of culture but also through their uniquely human creation of symbolic realities, including the symbolic systems of religion, morality, and politics.

As a political philosopher who supported the radical Whig program, Locke was engaged in a rhetorical project to transform the religious, moral, and political ideas of England to create what would later be called liberalism.  This was an exercise in symbolic niche construction.  The success of that project began to appear with the success of the Glorious Revolution of 1688, and it emerged even more clearly later in the 18th and 19th centuries with the success of Lockean Whig ideas and the emergence of the Bourgeois Era and the Industrial Revolution.

The triumph of Locke's liberalism required a rhetorical change in moral ideas so that a bourgeois way of life could be seen as virtuous.  This is what Deirdre McCloskey has been writing about in her series of books on the "bourgeois virtues."  In a recent article, McCloskey has argued that Searle's social ontology supports her reasoning, because we can see the Bourgeois Era as arising from a status function declaration:  Commercial life counts as honorable in the Bourgeois Era ("Max U vs. Humanomics: A Critique of Neo-Institutionalism," Journal of Institutional Economics 12 [2016]: 1-27.).

Although I generally agree with McCloskey, I do have some questions about her argument.  In her criticism of Douglas North's institutional explanation for the modern move into open access societies, she sets up a stark opposition between social institutions and moral ideas, and argues that it was a change in ideas rather than a change in institutions that explains the modern revolution.  But her acceptance of Searle's social ontology suggests that what she really wants to say is that social institutions rightly understood are created by the social acceptance of the moral ideas that constitute and maintain those institutions.

Another question that I have for McCloskey is also a question for Searle:  Do they give enough weight to violence and war in shaping the moral history of social institutions?  Occasionally, Searle acknowledges that social institutions have to be backed by force, although "forms of organized coercion are themselves systems of status functions" (88, 97, 104, 141-42, 163, 171, 173). 

Locke goes farther than either Searle or McCloskey in stressing the importance of trial by battle when there is some deep controversy over who has the authority to settle disputes over political power.  This is what Locke calls the "appeal to Heaven," the appeal to the God of battles (ST, 19-21, 109, 155, 168, 176, 232, 240-43).

Locke himself was involved in the Whig conspiracies for assassinating and rebelling against Charles II and James II.  Because of that involvement, he was forced to flee to Holland to avoid being tried and executed for treason.  While he lived in Holland, he had to worry about being captured by the King's agents and extradicted to England for trial. He supported the Revolution of 1688, and despite its reputation as a "bloodless" revolution, there was a lot of violence in the Revolution (as Steven Pincus has shown in his 1688: The First Modern Revolution [2009]).  Ultimately, the success of the Revolution depended on the defeat of the Jacobite armies that tried to restore the Stuart monarchy.  The military threat of the Jacobites was not finally put down until the battle of Culloden in Scotland in 1746.

The evolutionary history of liberalism is a rhetorical history of persuasive speech, but it is also a military history of war that has turned on the unpredictable contingencies of battle.  So, for example, the Declaration of Independence was a declaration of reasoning from principles, but it was also a declaration of war.  This is part of the evolutionary history of humanity through group selection in war.

As Winston Churchill observed, "Great battles, whether won or lost, change the entire course of events, create new standards of values, new moods, new atmospheres, in armies and in nations, to which all must conform."

Some of these points are elaborated in other posts here, here, here, here, here, here, here, here, and here.