Laws are moral rules of right and wrong that are created by the human mind. Human beings do this by agreeing to accept or recognize the symbolic reality of those laws as expressed in human language (spoken or written) and as enforced by the punishment of lawbreakers.
As John Locke saw, human beings recognize three kinds of laws with three kinds of punishment. Divine laws are enforced by supernatural punishments. Governmental laws are enforced by forcible punishment. The social laws of reputation are enforced by social praise and blame, so that wrongdoers are punished by their bad reputations.
NATURAL LAWS FOR INDIVIDUALS AND GROUPS
These laws are natural laws insofar as they serve the natural human pursuit of happiness. When everyone agrees that a law serves their pursuit of happiness, that law is stable and universal. But when people disagree on a law, because they disagree about what serves their pursuit of happiness, that law is unstable and variable. When they disagree, they will battle with one another as each side tries to persuade the majority to accept their view of the best laws. I agree with Peter DeScioli that people argue for laws that benefit themselves, and that people agree on those laws that benefit most people and disagree on those laws that benefit some people but harm others.
But we should understand that for social animals like ourselves, benefiting ourselves extends far beyond self-interest narrowly conceived to include all of those people who belong to our social networks. DeScioli endorses the argument of Jason Weeden and Robert Kurzban in their book The Hidden Agenda of the Political Mind: How Self-Interest Shapes Our Opinions and Why We Won't Admit It (Princeton University Press, 2014). And although the "self-interest" in their title suggests selfishness, they deny that "some narrowly defined version of self-interest is all that matters" (34). They even say that "it's probably best to jettison the term 'self-interest' altogether" (38). If we have evolved to serve our reproductive fitness, and if we understand that as "inclusive fitness"--the reproductive success of ourselves and our relatives--then, Weeden and Kurzban observe, we should see human beings as acting for their "inclusive interests." "Something is in a person's 'inclusive interests' when it advances their or their family members everyday, typical goals."
But human cooperation extends beyond the circle of family members. For our survival and reproductive success, we need the cooperation of large groups of people that we identify as being like us. We have an evolved psychology for forming coalitions with people we perceive to be our friends or allies. "Life is a team sport," Weeden and Kurzban insist, "and we're on several teams" (40). And so, we need an expansive notion of "inclusive interests": "People's everyday, real-life endeavors are enhanced by various kinds of material and nonmaterial gains, over shorter-term and longer-term horizons, received by themselves, their family members, and their friends, allies, and social networks." This "combines self-interest and group interests" (42).
Often, people will say that this human propensity to act for the good of one's group shows the self-sacrifice of the individual to the group. But I agree with Aristotle, Bernard Mandeville, and Adam Smith in arguing that acting for the good of others to whom one is attached is motivated not by selflessness but by self-love. Weeden and Kurzban agree in saying that whatever advances the interests of groups serves "the individual interests of lots of members of those groups" (42).
MURDER AND ABORTION
The law of murder--that the intentional killing of an innocent human being is unjust--is one of the best examples of a natural law that is universal because most people see that it benefits themselves and their groups: most people see that they would lose more if they and those they care about were murdered than they would gain by being free to murder.
People disagree, however, about what counts as murder or unjustified killing. Most people agree that killing in self-defense, killing the most dangerous criminals as punishment, and killing combatants in war are justified forms of killing. But people disagree about the circumstances in which such killing is justified. Some people believe that one cannot rightly kill an aggressor if one could have saved one's life by retreating. Others support "stand your ground" laws that say there is no duty to retreat from an aggressor. Some people believe that capital punishment is justified for many serious crimes. Others believe capital punishment should be reserved for only a few crimes. Some think capital punishment is never justified because life imprisonment is sufficient punishment for the most serious crimes. In the Anglo-American world, the legal codes once included hundreds of capital crimes, but now that list of capital crimes has been reduced to a very few, with a movement toward the total abolition of capital punishment. The debate here is over whether we gain more by executing dangerous criminals than we lose by the risk of our being executed by a false conviction.
People also debate over whether abortion is murder, and the debate turns on whether we should recognize the potential life in the uterus of a pregnant woman as a full human person with the same right to life that we give to all human beings. Human beings have an evolved natural desire for parental care. We tend to feel a sympathetic concern for needy children. And we condemn the unjustified killing of children as murder. Condemning abortion as murder will depend on our rational judgment as to what is being aborted and on the strength of our moral emotion of care for children. The more a zygote, an embryo, or a fetus resembles a human person, the more claims it exerts on our evolved moral feelings for children. This explains the traditional common-law standard of "quickening": when a pregnant woman first feels the movement of the life in her uterus (usually, from 16 to 20 weeks of pregnancy), then we can recognize this as a human life; and so an abortion before this point should not be considered homicide.
Today, the pro-life opponents of abortion reject this common-law standard because they claim that life begins as soon as a woman's egg is fertilized by a sperm, and therefore killing the potential life in the uterus at any time after conception is murder. But most pro-lifers contradict themselves because they support laws that allow abortion very early in a pregnancy or to protect the health of the mother or in cases of rape, incest, or fetal deformity. These exceptions are inconsistent with the claim that life begins at conception. A consistent adherence to this claim would require that any abortion after conception be punished as murder. A few state legislators in the U.S. have recently proposed such a law, but they have failed to win support from other pro-lifers.
Another argument of the pro-lifers is that Biblical divine law condemns abortion at any stage of pregnancy as murder. But, in fact, there is no clear condemnation of abortion anywhere in the Bible. Neither Moses nor Jesus condemns it.
The weakness and incoherence of these arguments should make us suspect that the public arguments of the pro-lifers are not sincere and that their true motives for opposing abortion are hidden--perhaps even from themselves.
But then, as Weeden and Kurzban have observed, we could say something similar about the arguments of the pro-choice people who defend the right to abortion in the early stages of pregnancy. While the pro-lifers claim to be defending children, the pro-choicers claim to be defending women--the right of women to control their own bodies. But this seems implausible, given that there are perhaps as many women on the pro-life side as on the pro-choice side, and given that most pro-choice people agree that women should be restricted in what they do with their bodies--as with matters such as prostitution laws and mandatory health insurance.
Just as the pro-lifers appeal to the authority of the Bible to support their position, the pro-choicers appeal to the authority of the Constitution to support a woman's right to have an abortion. But Weeden and Kurzban argue that both sides here have to employ distorted interpretations of their favored texts. Just as the Bible is silent about abortion, the Constitution is silent about any right to have an abortion. In saying this, however, Weeden and Kurzban ignore the Ninth Amendment's recognition of natural or customary rights: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." One can make a good argument that the common-law right of abortion before "quickening" was one of the rights "retained by the people."
If the public arguments on both sides of the abortion debate don't explain the real motivations of the debaters, as Weeden and Kurzban suggest, then we might have to look for some hidden motives.
FREEWHEELERS AND RING-BEARERS
To explain those hidden motives, Weeden, Kurzban, and DeScioli say that what we see in the debates over abortion and the laws of sex is the clash between different mating strategies of our human evolutionary psychology--ranging from monogamy to promiscuity. So, on the pro-choice side of the abortion debate, we see a lot of people who in their early adult lives want to be promiscuous--having sex but not having children. Later in their lives, once they have finished their education and become established in their careers, most of them will become monogamous and want to have a few children. It's in the interests of these people to have access to abortion and contraception as tools for family planning so that they can have casual sex in their youth and delay having children. By contrast, on the pro-life side of the debate, we see a lot of people who marry at an early age and have lots of children. Many of the women will be stay-at-home moms who care for their children, while the men will be the primary moneymakers for the family. These people have an interest in making casual sex costly and difficult, because in a society with lots of promiscuity, it is hard for people seeking monogamous marriages to find reliable mates. At the same time, widespread promiscuity creates temptations for men and women in monogamous marriages to cheat on their spouses. Prohibiting abortion limits family planning and thus makes promiscuity more costly and difficult.
If they were honest, Weeden and Kurzban suggest (60), people on the pro-choice side would say: We want to spend big chunks of our lives sleeping around without having babies, so it's really better for us if we have the tools (such as abortion) to make that easier. And those on the pro-life side would say: It would be better for people like us if other people didn't sleep around very much, so we favor things (like prohibiting abortion) that make casual sex riskier.
The best evidence that Weeden and Kurzban are right about this is that it explains the inconsistencies in the pro-life position that I mentioned earlier. If the pro-life side really believes that life begins at conception, and therefore abortion is always murder, they should oppose abortion in all circumstances. While pro-life Americans oppose abortion in cases where women have had sex willingly but don't want to have children, the great majority of pro-life Americans say they would allow abortion in cases of rape, incest, or fetal deformity. Why do they allow for these kinds of exceptions? As Weeden and Kurzban point out, these exceptions--such as rape and fetal deformity--are cases in which women who are not promiscuous might want abortions (60-61). Pro-life Americans don't condemn abortion as such, but rather they condemn the use of abortion to make it easier to live a lifestyle of casual sex.
Weeden and Kurzban explain the debates over abortion and the other laws of sex as a clash between two sexual and reproductive lifestyles or mating strategies--the Freewheelers versus the Ring-Bearers. Their primary data source for distinguishing these two groups is the U.S. General Social Survey for the years 2002 to 2012, with 16,128 individuals in the dataset. First, they sketch the two lifestyles:
Freewheelers include people who sleep with more people, are sexually active outside of committed relationships, have more same-sex partners, party, drink, go to bars, and use recreational drugs more, live together outside of marriage, are less likely to marry at all, get divorced more when they do marry, and have fewer kids. Ring-Bearers include people who wait longer to have sex, tend to have sex only in committed relationships (often waiting until getting engaged or married), go to bars and party less, don't cohabit outside of marriage, have long-lasting marriages, and have more kids (72).
Using the data, they can distinguish these two categories of people:
As a simple exercise, think of someone, and make the following calculations. Add 1 point for each of the following: The person has had five or more sex partners since age eighteen; the person goes to bars or taverns about once a month or more; the person is lesbian, gay, or bisexual; the person is living in a nonmarital cohabitation. And subtract 1 point for these features: The person has had none or only one sex partner since age eighteen; the person pretty much never goes to bars or taverns. If the result is a positive number, then the person you have in mind is a Freewheeler; if the result is a negative number, he or she is a Ring-Bearer. If the number is 0, then think of the person as somewhere in between the other two groups. On these very rough categories, 39% of American adults are Freewheelers, 34% are Ring-Bearers, and 27% are in the middle.
Even using this very coarse metric, the GSS data show strong connections between sexual and reproductive lifestyles on the one hand and lifestyle politics and morals on the other. Among Freewheelers, two-thirds report that they think premarital sex is "not at all wrong"; only one-third of Ring-Bearers agree. More than three-quarters of Freewheelers believe pornography should be legal for adults; only half of Ring-Bearers agree. Two-thirds of Freewheeler think that teens should have access to birth control without parental consent; less than half of Ring-Bearers agree. Most Freewheelers think marijuana should be legal; only a quarter of Ring-Bearers agree (78-79).
Notice the remarkable variety in these patterns: the Freewheelers, the Ring-Bearers, and those in the middle each represent about one-third of the adult population. About a third of Americans are neither complete Freewheelers nor complete Ring-Bearers. As Weeden and Kurzban indicate, the generation of Americans that came of age in the 1950s were mostly Ring-Bearers: a two-thirds majority of people married and never divorced. This typical pattern of the 1950s hasn't completely disappeared, but it has shrunk. America went from typicality to variety. Women having few sex partners and lots of children was once typical for most American women, but now it's one pattern among others.
We should realize, as Weeden and Kurzban say, that many Americans change their lifestyle mating strategy over their lifetime. Many might be Freewheelers in their youth, and then become Ring-Bearers as they age. 45% of the Ring-Bearers agree that teenagers should have access to birth control without parental consent. Is this because they remember their own youthful sexual adventures and their need for birth control?
There is a connection between religion and the attitudes of the Ring-Bearer mating strategy. For example, if you ask Ring-Bearers about premarital sex without considering their religious beliefs, 34% will say that premarital sex is "not wrong at all," and 39% will say it is "always wrong." But if you ask people who attend church more than once a week, only 11% will say that premarital sex is "not wrong at all," while 72% will say it is "always wrong." Or if you ask people who attend church more than once a week about abortion, the great majority will say that it should never be permitted except to protect the health of the mother.
Joining and frequently attending a church helps Ring-Bearers solve some of their fundamental problems. Weeden and Kurzban explain: "For young Ring-Bearers, a big problem is finding suitable partners to share Ring-Bearer lives with. Young women asking their boyfriends to wait for sex have to compete with young women offering more immediate rewards. For both sexes, the fewer people fooling around, the more suitable candidates there are for long-term Ring-Bearer relationships" (75-76). Moreover, once Ring-Bearers get married, they "have an increased interest in minimizing the temptations faced by their mates, and the fewer people fooling around, the less likely it is that one's mate will succumb."
One way for Ring-Bearers to escape the influence of Freewheeling is by surrounding themselves with other Ring-Bearers who will reenforce the Ring-Bearer lifestyle. The Amish do this by isolating themselves in rural communities committed to traditional family morality. A similar but less extreme strategy is for Ring-Bearer couples who are ready to have and raise children is to move to small communities and become active members of Ring-Bearer churches. This is what Rod Dreher has called "the Benedict Option."--people who want to live a life of traditional monogamous sexuality and parental care of children supported by orthodox religious beliefs withdraw into voluntary associations free from the hedonistic individualism and secular values of the larger society.
LIBERAL NATURAL LAW
But while this Benedict Option has been promoted by the religious critics of liberalism who are looking for a postliberal society, they do not recognize that this is actually a liberal conception of social order based on voluntary consent. In a liberal society like America, people are free to join Amish communities or any other kind of moral or religious community as long as membership in the community is voluntary, and they do not employ coercive force against those who disagree with their way of life.
Ring-Bearer communities and churches can enforce their moral and religious norms through what Locke called the law of reputation: those who deviate from the norms can be criticized, scorned, ostracized, and even expelled from the community or the church, but they cannot rightly be subjected to forcible coercion.
This liberal principle of voluntary associations supports a liberal natural law. People can agree on the universal laws like no murder and no stealing that can be rightly enforced by forcible punishment of lawbreakers. But when people disagree on a law, like the laws of sex and the choice between different mating strategies, people can agree on the natural law of individual liberty in the pursuit of happiness, which allows the emergence of voluntary communities with different moral and religious norms that must tolerate one another.
DeScioli implicitly points to this liberal solution to the problem of the unresolvable conflicts over the laws of sex: "Having different mating strategies, humans in every society inevitably disagree about the laws of sex. Neither coalition can realistically hope to convert their opponents by preaching, indoctrination, and persecution, whether they preach for abstinence or sexual freedom. A more practical goal is to conduct the struggle peacefully by diplomacy, tolerance, and truce" (204).
Most Americans, including even those who profess to be fervent critics of liberalism, have embraced this liberal natural law of liberty and tolerance. As I have argued in a previous post, almost all Americans have taken the side of Roger Williams in his debate with John Winthrop in the Massachusetts Bay Colony. They reject the theocratic laws of the Mosaic legal code in colonial Massachusetts. So, for example, while the Ring-Bearers will morally condemn the promiscuity and secularism of the Freewheelers, they will not argue that promiscuity and blasphemy should be capital crimes.