Trump Was Defeated by the Constitutionalism of Trump's Judges

"There is an extraordinary case."

That is how U.S. District Judge Brett Ludwig began and ended his decision in the case of Donald Trump v. The Wisconsin Elections Commission, et al. in the U.S. District Court for the Eastern District of Wisconsin.  At a hearing for the Trump suit last week, Judge Ludwig used the word "bizarre":  "the request to remand this case to the Legislature almost strikes me as bizarre."

Yesterday, Judge Ludwig ordered Trump's complaint to be "dismissed with prejudice," adding to Trump's long list of losing lawsuits.  What is remarkable about many of these cases is how often the judges ruling against Trump were appointed by Trump.  Judge Ludwig was confirmed by the Senate (in a 91-5 vote) only three months ago--on September 9.  I have written about the lawsuit in Pennsylvania and the opinion written by Judge Stephanos Bibas for the U.S. Court of Appeals for the Third Circuit.  Bibas was one of Trump's first judicial appointments, and yet he ruled against Trump in this case, using strong language in dismissing the suit as without merit.  Similarly, the refusal of the U.S. Supreme Court to take up a Trump lawsuit sent to them by the Attorney General of Texas was supported by all three of Trump's appointees--Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.  

Senator Dick Durbin of Illinois attacked Barrett during her confirmation because she was "being sent on assignment to the Supreme Court by President Trump" in order to "be there if the president needs her on an election contest."  If that was Trump's expectation, he failed because Barrett and the other judges he has appointed do not regard themselves as "his" judges who must serve his interests.

Without understanding fully what he was doing, Trump has picked his judges from lists given to him by The Federalist Society.  This is a group of conservative lawyers who want federal judges to be constitutionalists who will follow the original meaning of the law and thus enforce the rule of law without partisan political bias.  Trump did not understand that this meant that they would exercise impartial legal judgment without the personal loyalty to him that he demands from everyone he appoints.

When Senator Ron Johnson of Wisconsin supported the confirmation of Judge Ludwig, he said: "Judges, like Judge Ludwig, who are committed to applying the law as written and not acting like superlegislators from the bench are critical in upholding our system of checks and balances."  And, indeed, Ludwig has shown that he is willing to check the demands of the president who appointed him and thus vindicate the constitutional principle of separation of powers.

In 2016, Trump won Wisconsin by a narrow margin of about 22,700 votes.  This year, Biden won the state by a similarly slim margin of over 20,600 votes.  Trump's lawsuit in Wisconsin was based on the claim that this election was unconstitutional because it violated the clause in the Constitution declaring that "Each State shall appoint, in such Manner as the Legislature thereof may direct" the presidential electors for that state (Article II, section 1).  Trump's complaint quotes language in Chief Justice Rehnquist's concurring opinion in Bush v. Gore (2000) stating that "a significant departure from the legislative scheme for appointing Presidential electors presents a federal constitutional question."  

The argument is that the Wisconsin Elections Commission (WEC) did depart from the election laws enacted by the Wisconsin legislature.  The WEC did this in three ways.  It directed election clerks to "do all that they can reasonably do to obtain any missing part of the witness address" on an absentee ballot.  It allowed for a broad interpretation of what counted as "indefinitely confined status" in the COVID-19 pandemic for voters requesting absentee ballots.  And it allowed setting up many absentee ballot drop boxes.  These rules allowed for a huge increase in the number of mail-in ballots, and one can assume that many of those ballots were votes for Biden, which accounted for Trump's narrow loss in Wisconsin.  Trump's complaint asked that Judge Ludwig throw out the voting results and then ask the Republican-controlled Wisconsin Legislature to appoint their own slate of presidential electors.

These same arguments were made by Texas Attorney General Ken Paxton in his lawsuit filed with the U.S. Supreme Court.  Although the Court refused to rule on the case because they decided that Texas had no constitutional standing to sue, we can imagine that if they had ruled, they might have agreed with Judge Ludwig.  Moreover, in both cases, Trump's lawyers did not provide any evidence that anyone committed voter fraud.  Amazingly, John C. Eastman, a lawyer affiliated with the Claremont Institute, who wrote Trump's Bill of Complaint in Intervention for the Texas lawsuit, wrote: "It is not necessary for the Plaintiff in Intervention to prove that fraud occurred" (p. 13).

Judge Ludwig decided that Trump's lawyers had not shown a "significant departure" by WEC from the rules set down by the Legislature, because the WEC was explicitly given a broad discretion in clarifying the statutory rules for conducting the election.  

Ludwig declared: "Plaintiff's Electors Clause claims fail as a matter of law and fact."  He concluded:

"This is an extraordinary case.  A sitting president who did not prevail in his bid for reelection has asked for federal court help in setting aside the popular vote based on disputed issues of election administration, issues he plainly could have raised before the vote occurred.  This Court has allowed plaintiff the chance to make his case, and he has lost on the merits.  In his reply brief, plaintiff 'asks that the Rule of Law be followed.'  It has been."

Thus, Trump was defeated because his own judges are devoted to the constitutional rule of law. 

ADDENDUM (DECEMBER 20)

A few hours after I originally wrote this post, the Wisconsin Supreme Court ruled against a Trump lawsuit making almost exactly the same arguments made in the case before Judge Ludwig.  This was a 4-3 decision in which Judge Brian Hagedorn cast the deciding vote and wrote the opinion for the majority.  

This is remarkable because Hagedorn was elected to the Supreme Court in 2019 for a 10-year term in a fiercely partisan election, in which Hagedorn was supported by conservative Republicans.  Hagedorn had been chief legal counsel for Republican Governor Scott Walker.  He is a member of the Federalist Society.  In 2016, he founded a private school that forbids same-sex relationships among its employees and students.  So when he won election to the Court by a narrow margin, many people assumed that his decisions would favor the partisan political positions of conservative Republicans.  Since he is one of the 4 justices on the Court identified as conservative Republicans, the Trump lawyers thought this was their last best hope to finally win a court decision to overturn the election of Joe Biden.

Contrary to this expectation, Judge Hagedorn voted with the 3 justices identified as liberal Democrats.  The other three 3 justices identified as Republicans wrote scathing dissenting opinions with personal attacks on Judge Hagedorn.  Many Republicans in Wisconsin and across the country have denounced him as a traitor.  Some have said that he should be tried before a military tribunal once Trump declares martial law.

The New York Times has just published an interview with Judge Hagedorn.  He was asked: "What is your response to Wisconsinites who supported you when you ran for the court and now are deeply unhappy with some of the decisions you've made?"  He answered:

"When I ran, I was pretty consistent that I believe deeply that law and politics are not the same thing.  Most of us probably have some hope that our preferred candidate or our preferred policies, that the law runs in the same direction, but that isn't always the case.  And I said I was going to be a textualist and an originalist.  I believe very deeply in those things."

"And I think my decisions have reflected that.  And I made clear even when I was running that I would make decisions that I'm sure some folks, certainly conservatives, may not like from a policy outcome and that when I do, I was just following the law.  People should know that."

When he was asked whether he had voted for President Trump, he refused to answer.  "Why not?" was the next question.  He answered:

"Number 1, who I voted for didn't impact my decision and wouldn't impact my decision.  Number 2,  I don't think it's appropriate for judges to take positions on partisan candidates for office.  We also have canons of judicial ethics on not endorsing candidates.  We're a nonpartisan court.  I mean, I certainly was elected with the support of many conservatives, but I am not a Republican justice on the court."

What is most impressive about this is how it confirms the constitutional principle of separation of powers, in which judges should exercise impartial legal judgment without partisan political bias, even when judges have been elected by voters in a partisan contest to a limited judicial term. 

"I am not a Republican justice on the court."  Judges like Justice Hagedorn show that it is possible to adhere to a genuine jurisprudence of textualism and originalism, and that this conservative jurisprudence is not an insincere profession hiding a partisan political agenda.  And yet the vehement Republican denunciation of judges like Justice Hagedorn also shows the moral corruption of Republican Trumpism, which dishonestly professes a conservative jurisprudence of law separated from politics while demanding that judges manifest political loyalty to Trump.

ADDENDUM (DECEMBER 25)

Trump's record of failure in the courts continues.  On Christmas Eve, a three-judge panel of the Chicago-based U.S. Seventh Circuit Court of Appeals unanimously dismissed the arguments of Trump's lawyers appealing the decision against them in the Wisconsin case.  Once again, their claim that the Wisconsin Election Commission violated the Constitution was rejected.  These judges were all Republican appointees, and the author of the opinion--Judge Michael Scudder--was appointed by Trump.

 

Can COVID-19 Vaccines End the Pandemic? Does This Vindicate the Baconian Liberal Enlightenment?

Now that Pfizer's COVID-19 vaccine has been approved for use in Great Britain and Canada, with approval in the U.S. likely to come in a few hours, we have to think about the likelihood that this and other vaccines on the way will end the pandemic.  

We need to think about whether the pandemic shows the limits of our human mastery of nature.  We also need to consider the history of how these vaccines have been developed by reviewing the basics of how vaccines work, the eight types of COVID vaccines that have been studied, and the accelerated development and emergency use authorization for these vaccines.  Then we need to think about the possible scenarios for achieving the immunity that could slow down or end the pandemic.

THE BACONIAN CONQUEST OF INFECTIOUS DISEASES?

In his History of the Peloponnesian War, Thucydides gives a detailed account of the plague in Athens in 430-429 BC.  He says that those people who recovered from the disease could not catch it again, or if they did, they would have mild symptoms, and it would not kill them.  These people were the best ones to nurse the sick, or to study the disease, without fear of dying.  Thucydides himself had survived an attack of the disease.  So, without fully understanding it, he had observed the phenomenon of immunity and immunological memory.  (I have written about the plague in Athens--and about how the Liberal Enlightenment has brought progress in overcoming infectious diseases--here, here, and here.)

Thucydides says while plagues were commonly thought to be sent by the gods, people discovered that praying to the gods was of no use against the plague, and so they stopped appealing to the gods for help.  They also discovered that medical doctors could do little to help them, because the doctors did not understand the natural causes of the disease, and consequently they knew little about preventing or curing the disease.  

Lucretius saw that human progress had been driven by the technological conquest of nature.  He also understood that infectious diseases were probably caused by tiny "seeds" invisible to the human eye--what we today know to be bacteria or viruses.  

So one might have foreseen that better understanding infectious diseases would depend on the technology of optical instruments and other techniques that would extend human vision to microscopic phenomena, and this knowledge might lead to medical technology for what Francis Bacon called the mastery of nature for the relief of the human estate.  In The New Atlantis, Bacon described a society that supported scientific research institutions devoted to studying nature and inventing techniques for preventing and curing diseases, which would extend the human lifespan, perhaps even to immortality.

The critics of the Baconian project have complained that Bacon failed to recognize how this human power over nature would always limited by nature itself.  So, for example, while some scientists in the middle of the 20th century predicted that humanity would soon conquer infectious diseases, newly emerging infectious diseases like COVID--arising from the unpredictable transmission of a new coronavirus from bats to humans--shows the limits of human mastery of nature.  (I have written about the evolutionary history of the SARS-CoV-2 virus here, here, and here.)

Bacon understood this, however, because he observed that "Nature is conquered only by obeying her," and "all that man can do to achieve results is to bring natural bodies together and take them apart; Nature does the rest internally."  The technology of vaccines illustrates this Baconian insight, because vaccines work only by stimulating the evolved natural working of the immune system in defending the body against parasitic pathogens that threaten human survival and reproduction.

VACCINE BASICS:  HOW WE DEVELOP IMMUNITY

Natural selection favors the evolution of plants and animals that are naturally adapted for self-defense, and the immune system is one of the mechanisms of self-defense for animals.  A properly functioning immune system must distinguish self from nonself, so that the system can recognize and target foreign substances that would injure or kill their victim.  This system can fail, as in allergic reactions or autoimmune disorders, in which the immune system overreacts to a foreign body or attacks its own body.

The immune system has three features.  All animals have innate immunity, which allows recognition of traits shared by broad ranges of pathogens (such as bacteria, fungi, and viruses) using a small set of receptors and a rapid response by various cells, proteins, and inflammation.  Vertebrates have adaptive immunity, which allows recognition of traits specific to particular pathogens using a large number of receptors and a slower response by antibodies in body fluids and cytotoxic cells in body cells.  

Although it does not receive as much attention as it deserves, there is a third dimension of the immune system--behavioral immunity, which includes behavioral strategies by which animals attempt to prevent infectious pathogens from invading their bodies.  (I have written about this here.)  One of those behavioral strategies is social distancing: social animals who can be infected by social contact with infected individuals can protect themselves by avoiding contact with those individuals who appear to be infected.  But as social animals who naturally benefit from social interaction, social distancing creates a dilemma in which the animal must weigh the health benefits of avoiding infection against the social costs of being isolated from others.  We could avoid infectious diseases if we all lived as solitary hermits.  But few of us would want to live that way.  That's the Darwinian evolutionary explanation for the moral debate we are now having over the COVID-19 lockdowns--the debate over whether the benefits of lockdowns outweigh the costs.

We could avoid the costs of behavioral immunity to protect ourselves against the pandemic, without incurring the costs of allowing the infections to spread, if we could achieve adaptive immunity through vaccination.  To do this, we need vaccines that will simulate a coronavirus infection to provoke a natural immune response.  And if enough people are vaccinated, we could become immune to the virus.

The body's adaptive immune system can learn to recognize new invading pathogens such as the coronavirus SARS-CoV-2.  The virus uses its surface spike protein to lock onto receptors on the surface of human cells.  Once inside the cell, the virus releases its RNA, so that it can hijack the cellular machinery for translating the viral RNA into proteins and then assembling those proteins into a new virus, which is then released from the cell.  Viruses cannot reproduce themselves, which is why they must become parasites that use their host cells to reproduce more viruses.

Once the virus has been released from the human cell, the virus can be ingested by an antigen-presenting cell that displays viral peptides to activate T-helper cells.  The T-helper cells then enable other other immune responses: B cells make antibodies that can block the virus from infecting cells, while also marking the virus for destruction.  Cytotoxic T cells identify and destroy human cells that have been infected with the virus.  Long-lived memory B and T cells that recognize the virus can patrol the body for months or years, and this constitutes immunity.

A coronavirus vaccine must simulate this process by exposing the body to an antigen (a foreign substance that induces an immune response) without causing disease.  In the case of this virus, the antigenic target is the spike protein that is responsible for binding to the human cell receptor.

8 TYPES OF VACCINE

There are currently more than 180 COVID-19 vaccines at various stages of development.  There are basically 8 types falling under 4 categories: virus vaccines, viral vector vaccines, protein-based vaccines, and nucleic-acid vaccines (Florian Krammer, "SARS-CoV-2 Vaccines in Development," Nature 586 [October 22, 2020]: 516-527).

Virus vaccines use the SARS-CoV-2 virus itself in either a weakened or inactivated form, so that it induces an immune response but without causing the disease.  Traditionally, vaccines have all been virus vaccines--like the smallpox vaccine.  In 1796, Edward Jenner demonstrated that an infection with the relatively mild cowpox virus conferred immunity against the deadly smallpox virus.  (Of course, he did this without understanding viruses.)  Cowpox was a natural vaccine until the modern smallpox vaccine emerged in the 19th century--a live-virus preparation of vaccinia from calf lymph.

Viral-vector vaccines are those for which a virus such as measles or adenovirus has been genetically engineered to that it can produce coronavirus proteins in the body, which provoke an immune response.  These viruses are weakened so that they cannot cause disease in the body.  There are two types--those that can replicate within cells and those that cannot.

Protein-based vaccines are those in which coronavirus proteins are injected directly into the body.  There are two types.  Either fragments of proteins or protein shells mimic the coronavirus structure in such a way as to elicit an immune response, but they cannot cause disease because they lack genetic material.

Finally, nucleic-acid vaccines require injecting into the human cell either DNA or RNA with the genetic instructions for a coronavirus protein that prompts an immune response.  Both the Pfizer and the Moderna vaccines are RNA vaccines.

That the Pfizer and Moderna vaccines are being approved for use is remarkable for two reasons.  First, because no vaccines against coronaviruses have previously been licensed for use in humans.  Second, because the whole technology of RNA vaccination is new.

Consequently, it becomes important that we have confidence that these radically new vaccines have been properly tested.

ACCELERATED DEVELOPMENT AND EMERGENCY USE AUTHORIZATION

Traditional vaccine development can take 15 years or more.  So it's a big surprise that the development of the COVID-19 vaccine is occurring so quickly--with some vaccines now being approved after only 10-11 months of research.  Does this show the speeding up of Baconian scientific progress, as scientists around the world cooperate and compete in developing new biomedical technologies that might quickly slow or end the pandemic?  Or does it show undue haste that could be dangerous?  

There are good reasons for the speed of this vaccine development.  SARS-CoV-2 was first reported in China at the beginning of January.  Within weeks, the genetic sequence of the virus was worked out, which allowed scientists to begin immediately looking for vaccine technologies.  Typically, vaccine development starts with 2-4 years of preclinical research with mice before any clinical research with human subjects.  But this kind of preclinical research had already been done with SARS-CoV and MERS-CoV coronaviruses, which could be applied to the study of SARS-CoV-2.  Scientists could then move quickly to Phase I clinical trials with about 20-80 human, to Phase II with several hundred participants, and to Phase III with up to 3,000 participants.  And while normally a pharmaceutical company would wait until after FDA approval to begin large-scale production of a vaccine, in this case companies started production during the Phase III trials, which was financially risky for them.

Usually, the regulatory review by the FDA takes 1-2 years.  But in this case, an "emergency use authorization" application has prompted the FDA to do its review in 1-2 months.  This will rightly create some concern as to whether the scrutiny of the testing has been strict enough to make us confident about the safety and efficacy of these vaccines.

FOUR SCENARIOS FOR VACCINATED IMMUNITY TO COVID-19

What kind of immunity can we expect to achieve through these COVID-19 vaccines?  No one knows the answer to that question.  But there are some educated guesses.

Vineet Menachery, a coronavirus researcher at the University of Texas Medical Branch in Galveston, suggests there are four possibilities: sterilizing immunity, functional immunity, waning immunity, and lost immunity (Helen Branswell, "Four Scenarios on How We Might Develop Immunity to Covid-19," STAT, August 25, 2020).

Sterilizing immunity would mean that once we have either been infected with the COVID virus or vaccinated with the COVID vaccine, we would never be infected by it again, because our immune system will have been so reliably and durably well-armed that the infection could not return.

Although this is the most desirable immunity, most scientists think it's unlikely to be achieved.  Some scientists do believe, however, that some people are likely to achieve sterilizing immunity after an infection or a vaccination.

Functional immunity is a more likely possibility.  This means that those people who have had either an infection or a vaccination would have immune systems that might not prevent new infections, but at least the immune defenses would be strong enough to prevent severe symptoms.  And if people who are reinfected don't generate high levels of the virus, the spread of the virus might be slowed, and thus the virus might become less common and less dangerous.

Waning immunity is another possibility.  People who have been infected or vaccinated could find their immunity weakening over time.  Even so, new infections would be less severe than the first infection.

Some scientists foresee a mixed situation.  Some people will have sterilizing immunity.  But most people will have either functional or waning immunity.

Lost immunity would be the worst outcome: people who have had natural infections or vaccinations would lose all of their immunity within a short time, and so new infections would make them just as sick as they were with the first infection.  No one believes this is likely.  Anyone who generates some immunity to the SARS-CoV-2 virus is likely to hold that immunity at some level for a long time.

But then what about herd immunity?  Can we be sure that sometime soon enough of us will have immunity so that the virus can no longer spread?

As some scientists have said, vaccines don't create herd immunity--rather, vaccinations create herd immunity, if enough people have them.  And some have said that we might need to have 70% to 85% of the people vaccinated to achieve this.

There are two problems with this.  The first is the adequate production and distribution of vaccines.  The RNA vaccines require two doses.  So to have enough for everyone in the world, we'll need about 15 billion doses delivered around the world!

The second problem is convincing people to be vaccinated, which belongs to the behavioral immune system.  Some surveys have reported that a majority of Americans say they will not agree to be vaccinated.  (Remarkably, Democrats are more inclined to vaccination than are Republicans!)  If that's true, voluntary vaccination will not give us herd immunity.

Does that mean that we will have to institute mandatory vaccination?  Could we do that without violating individual liberty?  In the U.S., would that be unconstitutional?

This question will be the subject for my next post.

The Darwinian Emergence of Aristotle's Political Animals and de Waal's Moral Animals: A Reply to Cheryl Abbate

In various publications (Arnhart 1990, 1994, 1998, 2009), and in some blog posts, I have argued that a Darwinian science of animal behavior can support Aristotle's biological science of political animals.  Aristotle's statement that "man is by nature a political animal" is famous.  But it is often falsely assumed to mean that human beings are by nature the only political animals.  As Aristotle explains in his biological writings, the political animals include ants, bees, wasps, and cranes.  But even if humans are not the only political animals, Aristotle indicates, they are distinctive in that they are more political than the other political animals, because humans have a biological capacity for logos, which allows them to organize their political communities through shared symbolic conceptions of justice.

In his biological works, Aristotle sees that some animals are solitary and others gregarious.  Of the gregarious animals, some are political.  Some of the political animals have leaders, but others do not.  The distinguishing characteristic of the political animals is that they cooperate for some common work or function.  Humans, bees, ants, wasps, and cranes are all political animals in this sense.

The uniquely human capacity for speech or rhetorical persuasion makes humans more political than the other political animals, because while other animals can share their perceptions of pleasure and pain, humans can use speech to share their conceptions of the advantageous, the just, and the good.  Through speech, humans cooperate for common ends in ways that are more complex, more flexible, and more extensive than is possible for other animals.  Through speech, humans can deliberate about the common interest as the standard of justice.  A just political community can be judged to be one that serves the common interest of all or most of its members, as contrasted with an unjust political community that serves only the private interest of its ruling group.

I have argued that Charles Darwin's evolutionary theory of morality and animal social life supports Aristotle's biopolitical science.  I have also argued that the biological study of animal behavior over the past 60 years (beginning with Jane Goodall's arrival at the Gombe Stream Preserve in 1960) has largely confirmed this Aristotelian science of animal politics.

Recently, I noticed that Cheryl Abbate (2016) has disagreed with my reasoning in what is essentially a critique of my 1990 article in Social Science Information.  I also noticed that Edward Jacobs (2018) has written a response to Abbate's article, and Abbate (2018) has replied to him.

Abbate's critique consists of two arguments.  First, she claims that my defense of Aristotle's teaching contradicts the Darwinian principle of the psychic continuity between humans and animals--the idea that humans differ from other animals only in degree and not in kind.  Second, she claims that recent studies of animal behavior show that some highly social nonhuman animals have a sense of justice, and so Aristotle is wrong in thinking that this is unique to human beings.

As you might expect, I believe she's mistaken on both points.

DARWIN ON EMERGENT DIFFERENCES IN KIND

Abbate correctly quotes from the crucial passage in Aristotle's Politics (1253a) where Aristotle declares that a human is much more a political animal than other political animals, because "man alone among the animals has speech [logos]," and through speech, "he alone has a perception of good and bad and just and unjust," which is the uniquely human basis of human politics (Abbate 2016, 57).

She then claims that this contradicts the Darwinian principle of "evolutionary continuity"--that all differences between species are only differences in degree and not in kind (Abbate 2018, 160).  She correctly quotes from Darwin's apparent endorsement of this idea in The Descent of Man:

"Nevertheless, the difference in mind between man and the higher animals, great as it is, certainly is one of degree and not of kind.  We have seen the senses and intuitions, the various emotions and faculties, such as love, memory, attention, curiosity, imitation, reason, etc., of which man boasts, may be found in an incipient, or even sometimes in a well-developed condition, in the lower animals" (2004, 151).

Abbate is silent, however, about the fact that despite Darwin's explicit statement that humans differ only in degree, not in kind, from other animals, he implicitly recognized human differences in kind.  That is to say, Darwin saw that human beings have some moral and mental traits that other animals do not have at all.

In The Descent of Man, 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 was thrown into self-contradiction--both affirming and denying that humans are different in kind from other animals--because he failed to see how he could affirm emergent differences in kind without affirming any radical differences in kind.  Emergent differences in kind can be explained by evolutionary 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 development of the primate brain, so that at some critical point in the evolution of our hominid 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 primate ancestors, so there is no need to posit some supernatural intervention in nature--the divine creation of the human soul--that would create a radical difference in kind in which there is a gap with no underlying continuity of natural causes.

Edward Jacobs points to this when he describes the evolution of the human mind.  "The moment a certain threshold of mental development was reached (and logos is as good a placeholder name for this threshold as any), we became able to make and grasp persuasive accounts," which made humans more political than the other political animals (155).

Simona Ginsburg and Eva Jablonka (2019) have shown how an evolutionary neuroscience could explain this emergence of the human mind as passing through the three levels of mind identified by Aristotle in De Anima (On the Soul). The basic nutritive and reproductive soul belongs to all living things--plants and animals.  The second level--the sensitive soul--belongs to all animals.  The third level--the rational or symbolizing soul--is specific to humans.  The crucial evolutionary transition marker of the rational soul is language.  The rational soul gives humans the capacity for grasping and sharing the abstract symbolic values of the good and the just that make human politics unique.  Ginsburg and Jablonka suggest that all three levels can be explained by evolutionary biology.

I have written some previous posts on emergent evolution (here and here).;

BEKOFF AND DE WAAL ON THE MORAL LIVES OF ANIMALS

Abbate relies heavily on two cognitive ethologists--Marc Bekoff and Frans de Waal--for providing the evidence that some nonhuman animals have a sense of justice, and therefore Aristotle is wrong in saying that humans alone have a moral sense, which makes them more political than the other political animals.  For Abbate, this proves that humans differ only in degree, not in kind, from other animals.

Bekoff is best known for his studies of canid social carnivores--wolves, dogs, and coyotes--and his argument that their social play shows that they have "codes of conduct" that indicate a moral life of "wild justice" (Bekoff 1995; Bekoff and Pierce 2009; Pierce and Bekoff 2012).

De Waal is best known for his Chimpanzee Politics and other studies of primate colonies in captivity.  He has endorsed what he calls my "Darwistotelian" view of human politics and morality as showing an evolved political nature shared with chimps and other primates. A sample of my many posts on de Waal can be found here, here, here, here, and here.

She does not notice, however, that Bekoff and de Waal show the same self-contradiction that one can see in Darwin.  On the one hand, Bekoff says that "animal morality is different in degree but not in kind from human morality."  On the other hand, he says there are "bona fide differences in kind" (Bekoff and Pierce 2009, 139-40).  He admits that "human morality is unique," because humans are unique in their capacities of language and judgment (Bekoff and Pierce 2009, 132, 139-42).  Similarly, de Waal sometimes seems to say that morality is not unique to human beings, but then he concedes that morality at the level of judgment and reasoning is uniquely human (de Waal 2006, 20, 173-75).

Abbate might say, however, that this is not necessarily contradictory.  If de Waal is right about there being three levels of human morality, and if nonhuman animals show some elements of the lower levels but not of the higher levels, then the fullest expression of human morality is uniquely human, although some animals show some features of the moral life.  Thus, there is both continuity and discontinuity in the moral psychology of animals.  At some levels of morality, there is only a difference in degree.  At other levels, there is a difference in kind.  This is exactly what one would expect from the emergent evolution of animal morality.  And, I suggest, this is Aristotle's position, even though his biology did not have a fully developed evolutionary theory.

According to de Waal, the moral sentiments constitute the first level of morality--the emotional building blocks of morality that include empathy, reciprocity, retribution, a sense of fairness, and reconciliation to resolve conflicts and restore harmonious relationships (de Waal 2006, 166-75).  All of this can be seen in some form in other animals

In stressing the importance of the moral sentiments for moral psychology, de Waal belongs to the philosophic tradition of sentimentalist ethics that includes David Hume, Adam Smith, Darwin, and Edward Westermarck--a tradition that is set against the Kantian tradition of rationalist ethics.  I have written many posts on this, including here, here, here., and here.

De Waal identifies social pressure as the second level of morality.  Through social pressure, individuals are habituated to conform to the social rules of their group that maintain the good order of the community.  These rules are enforced through reward, punishment, and reputation.  In these ways, morality serves as a social contract for a cooperative society. Some of this can be seen in some nonhuman animals.  For example, high-ranking males in chimpanzee groups show "policing behavior"--males break up fights among others, and their intervention seems to be remarkably evenhanded.  Nevertheless, the human morality of social pressure goes beyond animal morality by formulating social rules that are more abstract and systematic than is the case for other animals.

Finally, judgment and reasoning constitute a third level of morality, and this is uniquely human.  So, for example, we are like other social animals in that we care about our reputations--how we appear in the eyes of others--so that we want to be praised and not blamed by others; but we can also use our distinctively human capacity for abstraction and imagination to see ourselves mirrored in the eyes of an "impartial spectator" (as Adam Smith said), so that we can want to do what is praiseworthy, regardless of whether we are actually praised by anyone. We care not only about our real reputation but also about our imaginary reputation.  From this we develop an internal sense of self-esteem or conscience.  There is no evidence for anything like this in nonhuman animals.  (I have written about Smith's concept of the "impartial spectator" here.)

Like de Waal, Aristotle saw both continuity and discontinuity between human beings and other animals in their moral psychology.  In his History of Animals (588a15), he wrote:

"In most of the other animals, there are traces of the qualities of soul that are more evidently differentiated in human beings.  For there are both gentleness and savagery, mildness and harshness, courage and timidity, fear and confidence, spiritedness and trickery, and, with respect to intelligence [dianoia], something like judgment [sunesis], similar in many ways. . . . For some of these qualities differ only more or less with reference to human beings. . . . For nature passes little by little from the inanimate to animals, so that this continuity prevents one from seeing a border or perceiving on which side an intermediate form lies."

Aristotle argues that the moral psychology of wild animals is like that of children: they can have natural virtue and habitual virtue, but they cannot have the deliberative virtue that requires fully developed logos (Politics, 1332b1; Nicomachean Ethics, 1144b1-1145a5).  They can have the natural virtue that comes from being born with a good natural temperament that inclines them to do the right actions.  And they can have the habitual virtue that comes from obeying social rules so that they habitually do the right actions.

Only human adults are capable of deliberative virtue, which requires logos. And logos is the capacity for grasping explanatory accounts--for understanding both theoretical and practical syllogisms (Moss 2014).  In ethics and politics, explanatory accounts do not just prescribe right actions, they also explain why these are right.  Children and animals can be trained to know what they ought to do but without understanding why they ought to do it.  Virtue in the strict sense requires deliberate choice and prudential judgment with full knowledge of both what should be done and why it should be done.  This deliberative virtue with prudence corresponds to what de Waal identifies as the third level of morality--reasoning and judgment.

Because of their unique capacity for logos, human beings are more political than the other political animals--and more moral than the other moral animals--because this capacity for grasping explanatory accounts means that rather than just habitually obeying social rules of justice in their group, human beings will want to know why these are the rules, and they will argue over whether there might be better rules.  For that reason, human politics is always a rhetorical activity in which people have to persuade one another that what their community is doing is just, right, or noble.  That's why Aristotle's Rhetoric is a crucial text for his moral and political philosophy.

The importance of rhetorical speech for human politics and human morality explains why language is the critical marker in the evolutionary transition to uniquely human symbolism and rationality, as Ginsburg and Jablonka have indicated.

REFERENCES

Abatte, Cheryl E. 2016. "'Higher' and 'Lower' Political Animals: A Critical Analysis of Aristotle's Account of the Political Animal." Journal of Animal Ethics 6:54-66.

Abatte, Cheryl E. 2018. "Redefending Nonhuman Justice in Complex Animal Communities: A Response to Jacobs."  Journal of Animal Ethics 8:159-165.

Arnhart, Larry. 1990. "Aristotle, Chimpanzees, and Other Political Animals." Social Science Information 29:479-559.

Arnhart, Larry. 1994. "The Darwinian Biology of Aristotle's Political Animals."  American Journal of Political Science 38:464-485.

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

Arnhart, Larry. 2009. Darwinian Conservatism: A Disputed Question.  Ed. Kenneth Blanchard. Exeter, UK: Imprint Academic Press.

Bekoff, Marc. 1995. "Play Signals as Punctuation: The Structure of Social Play in Canids." Behaviour 132:419-429.

Bekoff, Marc, and Jessica Pierce. 2009. Wild Justice: The Moral Lives of Animals. Chicago: University of Chicago Press.

Darwin, Charles. 2004. The Descent of Man.  Second edition. Ed. James Moore and Adrian Desmond. London: Penguin Classics.

de Waal, Frans. 2006. Primates and Philosophers: How Morality Evolved. Princeton, NJ: Princeton University Press

Ginsburg, Simona, and Eva Jablonka. 2019. The Evolution of the Sensitive Soul: Learning and the Origins of Consciousness.  Cambridge, MA: MIT Press.

Jacobs, Edward. 2018. "Aristotle and the Zoon Politikon: A Response to Abbate." Journal of Animal Ethics 8:150-158.

Moss, Jessica. 2014. "Right Reason in Plato and Aristotle: On the Meaning of Logos." Phronesis 59:181-230.

Pierce, Jessica, and Marc Bekoff. 2012. "Wild Justice Redux: What We Know About Social Justice in Animals and Why It Matters." Social Justice Research 25:122-139.