Laws Are Moral Ideas Created by the Human Mind and Expressed in Language: DeScioli and Locke

 The May 2023 issue of Evolution and Human Behavior (volume 44, number 3) is a special issue on "Evolution, Justice, and the Law."  One of the best articles is "On the Origin of Laws by Natural Selection" (pages 195-209) by Peter DeScioli.  Although he says nothing about John Locke, almost everything he says confirms Locke's explanation of morality and law as based on the law of nature that arose in the state of nature, which evolutionary psychologists identify as the human "environment of evolutionary adaptation."  Here I begin a series of posts pointing out the parallels between Locke and DeScioli with links to some of my posts on the evolutionary psychology of Lockean liberalism.

Although we might assume that laws are what is written in law books, DeScioli observes, this is mistaken for two reasons.  Laws must appear as ideas in the mind before they appear as written in a book.  And for most of human evolutionary history, over 300,000 years, before the invention of writing, human beings lived in hunter-gatherer societies with spoken laws.

The critical point here is that laws are created by the human mind as moral ideas that then are expressed in spoken or written language.  This mental capacity for creating the moral ideas of law is unique to human beings.  As Frans de Waal has explained, of the three levels of human morality, other primates show the first two levels--morality enforced through moral sentiments and social pressure--but not the third--the morality of moral judgment.

Similarly, Locke saw that human beings were the only animals with the rational capacity for creating the moral ideas of law.  "For, were there a monkey, or any other creature, to be found that had the use of reason to such a degree, as to be able to understand general ideas, he would no doubt be subject to law," and in that sense, Locke observed, that rational monkey would be a "moral man" (ECHU, III.11.16).

Darwin made the same point in The Descent of Man: "any animal whatever, endowed with well-marked social instincts, the parental and filial affections being here included, would inevitably acquire a moral sense or conscience, as soon as its intellectual powers had become as well, or nearly as well developed, as in man" (2004, 120-21).

Moral ideas in the mind arise from a symbolic inheritance system that is uniquely human because it shows the qualitative leap that defines our humanity as based on our capacity for symbolic thought and communication. Other animals can communicate through signs. But only human beings can communicate through symbols. The evolution of human language was crucial for the evolution of symbolism. Symbolic systems allow us to think about abstractions that have little to do with concrete, immediate experiences. Symbolic systems allow human beings to construct a shared imagined reality. These symbolic constructions are often fictional and future-oriented. Art, religion, science, and philosophy are all manifestations of human symbolic evolution.  Moral rules and laws are also products of this human mental capacity for symbolic thought and language.

The mind's symbolic creation of moral ideas and law corresponds to what Locke calls "mixed modes" in the mind.  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 social institutions--particularly, marriage, families, private property, economic exchange, and social norms of moral conduct that Locke calls "the law of nature." 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). 

Language creates society.  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).

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 John 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.'"

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, and murder shall be punished, but killing a sheep is not murder, 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 of 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.

In this view of moral principles and laws as inventions of the human mind, we see an empiricist ethics of moral anthropology as opposed to the transcendentalist ethics of moral cosmology.  A moral anthropology sees morality as dependent on the human mind and the symbolic world that it creates.  A moral cosmology, by contrast, sees morality as independent of the human mind in conforming to the cosmic normativity of a cosmic God, a cosmic Nature, or a cosmic Reason.

The ethical transcendentalists assume that a moral anthropology makes morality and law fictional by seeing them as arbitrary inventions of the human mind.  But the ethical empiricists argue that morality and law are not arbitrary or illusory as long as they are grounded in an enduring, although not eternal, human nature: morality and law are neither objective truths about the universe nor subjective illusions of individual fancies but intersubjective symbolic principles to which human beings have consented.

As DeScioli and Locke suggest, the moral laws of homicide illustrate this cognitive reality of moral rules and laws as the means by which human beings choose sides in conflicts.  I will explain that in the next post.