Locke's "Very Strange Doctrine" of the Natural Right to Punish

If Morris Hoffman is right that "evolution built us to punish," this could be the evolutionary basis for John Locke's argument that in the state of nature everyone has a natural right to punish offenses against the law of nature.  When people leave the state of nature by consenting to form a civil society, which establishes a government, everyone gives up that right to punish to the government.  But if that government exercises force without authority in using arbitrary, absolute power to threaten life, liberty, and property, then the people can rebel against the government in exercising force in self-defense, return to a state of nature, and reclaim their natural right to punish.

Locke originally wrote the Second Treatise of Government in 1681-1682 as a political declaration supporting the revolutionary conspiracy of the radical Whigs around Lord Shaftesbury, who were arguing that revolutionary violence was justified to defend the liberty of the people against the absolute monarchy of Charles II.  When the revolution failed, some of the radical Whigs were executed or imprisoned; and others, including Shaftesbury and Locke, were forced into exile in Holland.  Locke was in Holland from 1683 to 1689.  He was followed by spies and informers looking for the opportunity to have him arrested and extradited to England to be tried for treason.  After the Glorious Revolution of 1688, when James II was forced to leave England, and William of Orange sailed from Holland to England to take the throne with Mary, Locke revised the Second Treatise to include passages justifying the revolution by arguing that James II's claim of absolute power had thrown Great Britain into a state of nature, so that the people could exercise their natural right to resist tyranny and establish a new government.  The Second Treatise was published anonymously, and Locke never acknowledged his authorship during his lifetime.

Crucial for Locke's argument was his claim that when government becomes tyrannical, in using absolute power to threaten the lives, liberties, and property of the people, the government has been dissolved, because it violates the ends for which the people consented to the authority of the government; and if the government is dissolved, then everyone has the right to judge what is best for the public good and to engage in forceful resistance to achieve this end.

Locke recognized that it "will seem a very strange doctrine to some men" to teach that "every man hath a right to punish the offender, and be executioner of the law of nature" (ST, 8-9).  The men who think this a strange doctrine are the proponents of absolute monarchy, who cannot imagine how people could exercise such a power without creating utter confusion and disorder, because the judgment of people will be distorted by their self-love and their violent passions.  Locke conceded that government is the remedy for the violent conflict that arises in the state of nature, when people are judges in their own case.  But Locke observed that government by absolute monarchs is no remedy for these inconveniences in the state of nature, in which all are judges in their own case, because an absolute monarch is as much moved by self-love and turbulent passions as any other human being, and if he has the liberty to be judge in his own case and to execute his judgment with all the power of government, without anyone to question or control him,  this is much worse than the state of nature.  It is much better to be in a state of nature, where no one is bound to obey the unjust will of anyone else; and anyone who tries to take away the life, liberty, or property of others will provoke the retaliatory punishment that everyone can rightly inflict as executioners of the law of nature (ST, 13).

If we ask about the ground of that law of nature, Locke offers three answers: the natural equality of the human species, the equal dignity of human beings as God's workmanship, and the equality of human beings in their self-ownership.

First, Locke claims, we can see that the natural condition of human beings is a state of equality, "wherein all the power and jurisdiction is reciprocal, no one having more than another; there being nothing more evident, than that creatures of the same species and rank, promiscuously born to all the same advantages of nature, and the use of the same faculties, should also be equal one amongst another without subordination or subjection" (ST, 4).

Some readers of Locke have wondered whether this affirmation of the reality of the human species contradicts the apparent nominalism of Locke's argument in the Essay Concerning Human Understanding that we cannot know the real essence of species (III.6).  And yet, Locke affirms in the Essay that "there is nothing more obvious" than that nature makes animals of the same species "alike" (III.3.13).

If we accept evolutionary science, then we cannot believe that species are eternally fixed essences.  But still we can affirm the reality of biological species as enduring products of evolution.  Posts on this point can be found here, here, here, and here.

Still, we might wonder, how does our membership in the human species support the principles of natural law?  Locke's answer is that it supports the natural morality of the Golden Rule, or of Jesus' teaching that we should love our neighbors as ourselves.  Locke saw this a "a fundamental truth for the regulating human society" that could "determine all the cases and doubts in social morality" (Of the Conduct of the Understanding, 43). 

Locke explains his reasoning by quoting from Richard Hooker (ST, 5).  Since we are all of the same nature with similar desires, Hooker observes, I can understand that I cannot expect to have my desires satisfied by other people if I do not satisfy their desires.  "How should I look to have any part of my desire herein satisfied, unless myself be careful to satisfy the like desire, which is undoubtedly in other men, being of one and the same nature."  As I desire not to be harmed by others, they desire not to be harmed by me.  And if I do harm them, I can expect to suffer retaliatory harm from them.  If I desire to be loved by others, then I must also love them.  From this principle of reciprocity, natural reason can infer rules for the direction of life, such as these from Justinian's Code and Digest of Roman law: "What anyone approves in himself he cannot reprove in another."  "What anyone lays down as a law for another he ought also to abide by himself."  "One is entirely to abstain from all wrong and violence" (Of the Laws of Ecclesiastical Polity, I.8.7).

Locke has indicated in the First Treatise (86, 88) that natural desires create natural rights when human beings reflect on the conditions for satisfying their desires.  And so from understanding that all human beings by nature share my desire not to be harmed, I can infer that all human beings should have a natural right not to be harmed, and that when people initiate aggressive attacks on the life, liberty, or property of others, the injured parties have the right to punish them to achieve reparation of the damage they have suffered; and all others have the right to punish the offenders for the sake of restraining them and deterring others (FT, 10-11).  (We might see here the intimation in Locke that we derive "rights from wrongs," from our sense of injustice, as Alan Dershowitz argues.)

Thus, there are three levels of punishment.  By first-party punishment, those people with a conscience punish themselves by imagining the guilt they would feel if they unjustly harmed others (ST, 8, 122, 209).  By second-party punishment, the victims of aggression retaliate or seek vengeance against those who have injured them.  By third-party punishment, those who feel some concern for the victims punish the aggressors.

Morris Hoffman has shown how these three levels of punishment are expressed in the history of law as shaped by human evolutionary history, and how the evolution of the brain has shaped neural correlates for each of these three levels (Hoffman, The Punisher's Brain).  This has been the subject of a previous post.

Hoffman surveys much of the evidence and argumentation for the claim that our evolved social nature is complex.  We have evolved to cooperate, to cheat, and to punish cheaters.  We have evolved to cooperate because of the advantages of cooperative relationships.  But we have also evolved to cheat whenever that seems advantageous for us.  We have evolved to punish cheaters to restrain the propensity to cheating.  This would seem to support Locke's account in that we are naturally inclined to cooperate, but since many people are also naturally inclined to harm others, we are naturally inclined to punish those who harm us.

Evolutionary science and behavioral neuroscience also support Locke's claim that the natural law of cooperation can be understood as grounded on the Golden Rule.  Evidence from evolutionary theory and neuroscience suggests that there are complex genetic, neural, and hormonal mechanisms that have evolved for understanding and obeying the Golden Rule.  Neuroscientist Donald Pfaff has argued for this in two books--The Neuroscience of Fair Play: Why We (Usually) Follow the Golden Rule (2007) and The Altruistic Brain: How We Are Naturally Good (2015).  I have written about this kind of reasoning in various posts: here, here, and here.

But does this purely naturalistic ground for natural law and punishment--the evolved moral nature that we share with all members of the human species--contradict Locke's creationist account of natural law?  Locke often indicates that since all human beings were created in God's image, they are all his "workmanship" or property, and as such they are not to be attacked or destroyed, because this would deny their uniquely human dignity as God's special creation (FT, 30, 52-54, 85-86; ST, 6, 56; ECHU, IV.3.18).  This Lockean moral creationism is echoed in the famous language of the Declaration of Independence--that "all man have been created equal," and "endowed by their Creator with certain unalienable rights."

Some of the critics of Darwinian liberalism have argued that this shows that Lockean classical liberalism cannot be rooted in a purely natural Darwinian science without a creationist theology.  I have responded to these critics in posts here, here, here., here, and here,.

Darwin rejected the "special creation"--the idea that each living species, including human beings, had to be miraculously created by God.  But he acknowledged God as the Creator of the laws of nature, so that the Creator was the "primary cause" of everything, and the laws of nature were "secondary causes."  This kind of thinking allows many religious believers to be theistic evolutionists.

Darwin thought that "the conviction of the existence of an all-seeing Deity has had a potent influence on the advance of morality," and thus he could agree with Locke that belief in the Creator as the source of moral law could reinforce human morality (Descent of Man, 2004, 682).  But he thought the belief in a God who was omnipotent, moral, and caring for human beings arose only a few thousand years ago.  "The idea of a universal and beneficent Creator does not arise in the mind of man, until he has been elevated by long-continued culture."  He also thought that it was possible for many human beings to live by their conscience as "the supreme judge and monitor," without the necessity for believing in a God who rewards the good and punishes the bad.  We can be good without God.

So Darwin disagreed with Locke who declared--in his Letter on Toleration--that atheists could not be tolerated, because "promises, covenants, and oaths, which are the bonds of human society, can have no hold upon an atheist," and thus "the taking away of God, though but even in thought, dissolves all."

Evolutionary theorists who study the cultural evolution of religion--people like David Sloan Wilson, Ara Norenzayan, and Joseph Henrich--agree with Darwin.  They explain the appearance in the first agrarian states of prosocial religions with Big Gods or High Gods, Gods who are more powerful, more knowing, and more moralizing than the supernatural spirits of prehistoric religion.  They see this as favored by group selection in war: groups with prosocial religions were stronger than groups without such religions.  The beliefs and practices of these religions promoted social cooperation in large communities based on a shared belief in a morality enforced by an all-powerful and moralistic God.  Now the majority of human beings around the world are believers in one of the global prosocial religions--Hinduism, Buddhism, Judaism, Christianity, and Islam.  Economic game experiments with people around the world indicate that those who embrace one of these religions tend to have a stronger sense of fairness.  This could explain why Locke thought an appeal to Christian creationism could support a natural moral law of principles like the Golden Rule.

The third ground of Lockean natural law--the equality of human beings in self-ownership--can also be explained by an evolutionary account of human nature.  Everyone has property in his own person and in the extension of his person through labor, by which he appropriates things as property (ST, 27, 44, 163-64, 172).  Moreover, as a social animal dependent on parental care from birth, human beings extend their care for themselves to their sexual mates, their children, their parents, and other relatives.  These social instincts of mammalian psychology can then be extended beyond the family to others with ties of social affiliation.  Thus, human sociality is rooted in the biological inclinations for survival, mating, and reproduction (FT, 86-89; ST, 54-56, 77-84).

This Lockean conception of individual personhood as embodied self-conscious awareness of, and emotional concern for, the survival and well-being of the body can now be confirmed as manifest in the human nervous system as a product of mammalian evolution.  If we follow Antonio Damasio's "somatic marker hypothesis" and Bud Craig's neuroanatomical argument, we can identify the self-ownership of the person as an activity of the brain in constituting the subjective awareness of the individual in caring for one's self and for others to whom one is attached.

I have elaborated these points in posts here, here, and here.

Darwinian Natural Right in the Punisher's Brain

"Evolution built us to punish cheaters."

Thus does Morris Hoffman begin his fascinating new book--The Punisher's Brain: The Evolution of Judge and Jury (Cambridge University Press, 2014).  Hoffman is a trial judge in Denver, Colorado, and the most engaging feature of this book is that he speaks as a trial judge who wants to understand his experience in deciding whether and how to punish people charged with law-breaking.  The students in my course on "Biopolitics and Human Nature" this semester have enjoyed how he illustrates his points with stories about the cases he has had.

Hoffman first developed his interest in law and biology from attending the conferences of the Gruter Institute for Law and Behavioral Research organized first by Margaret Gruter and later by her granddaughter, Monika Gruter Cheney.  He was then introduced to law and neuroscience by joining the John D. and Catherine T. MacArthur Foundation's Research Network on Law and Neuroscience, directed by Owen Jones.  From these two groups, he learned how to apply evolutionary psychology and behavioral neuroscience to the study of law.

I largely agree with Hoffman, because most of what he says I see as the application of Darwinian natural right to the study of law.  My only disagreement is that in relying on neuroscience, and especially brain-scanning experiments, he does not acknowledge, much less respond to, the many criticisms of what Sally Satel and Scott Lilienfeld have called "mindless neuroscience"--the exaggerated claims for brain-scanning as mind-reading that ignore the problems in inferring the thoughts and feelings of the mind from neural correlates in the brain.

I have written posts on the "brain-imaging fallacy" here and here.  The fundamental problem is the mystery of consciousness--that our only direct access to conscious thoughts and feelings is through our own internal subjectivity, and that any inference of what's happening in the mind from what is happening in the brain must always be uncertain and imprecise.  Hoffman could have acknowledged such problems in neuroscience and brain-scanning without weakening his general argument, which is supported by many different lines of reasoning.

Hoffman begins with a story about a murder trial.

"Several years ago, I presided over a first-degree murder trial in which a young Czech émigré was charged with stabbing his Brazilian au pair girlfriend.  The crime took place in the au pair's bedroom, in the basement of her employer-family's house.  The young man stabbed her seventy-four times.  He confessed to the murder but denied it was premeditated.  Despite his denial, the premeditation evidence was pretty strong.  He not only entered the bedroom through a window, armed with a knife and carrying some duct tape, but he also admitted to police that a few days before the killing he tried to dig a small grave in a remote field but gave up because the ground was frozen."

"On the other hand, he testified that he regularly went through the window for late-night visits with her, and that he went there that night not to kill her but only to see if she would change her mind about breaking up.  he claimed he had the knife and duct tape because he was moving.  As for the grave, he testified that he started to dig the hole in the field to 'bury her memory,' and that all he intended to bury there were a few items of personal property that reminded him of her.  When he went to see her that final time, and she told him she was set on leaving him, he 'snapped.'"

"But he didn't say the word 'snapped.'  What he said was, 'A darkness came across my eyes.'  He even said it a second time in cross-examination.  It seemed oddly and rather beautifully phrased, and vaguely familiar.  Neither of the lawyers asked him about it.  Long after the jury convicted him of first-degree murder, and I sentenced him to the mandatory life in prison without the possibility of parole, it hit me.  'Darkness covered his eyes,' and variations of that phrase, are used over and over by Homer to describe many of the battle deaths in The Iliad." (1-2)

Judge Hoffman offers this as an illustration of what he has seen as a common occurrence in criminal law cases, where there is no dispute over the fact that the defendant committed the crime, but the question for judges and juries is what was going through the defendant's mind at the time of the crime.  Was the defendant acting purposefully, knowingly, recklessly, or negligently in committing the crime?  In this case, the difference was between a purposeful, first-degree murder punished with a life sentence in prison and a knowing, second-degree murder punished in Colorado with a mandatory prison sentence of 16-48 years.

In such cases, modern juries and judges must decide blameworthiness and punishment through judging the harm and the intentionality of wrongdoers' conduct.  The greater the harm and the clearer the intentionality of the conduct, the greater the blame and punishment that it will elicit.

In doing this, Hoffman argues, modern juries and judges are doing what our evolutionary ancestors have been doing for over 100,000 years in deciding how to respond to wrongdoers.  And while much of the law is a cultural construction that reflects the historical contingencies that have shaped each legal system, there is also a universal pattern in law that manifests evolved human nature.

Human beings have always faced what Hoffman calls the Social Problem, which is similar to what others have called the Collective Action Problem, the Commitment Problem, the Trust Problem, or the Altruism Problem.  The problem arises from our human nature as both selfish and social animals, so that we must always face the question: cheat or cooperate?  We are inclined to cheat others in our group whenever cheating would be to our selfish advantage.  But we are also inclined to cooperate, because living in cooperative groups has always given us long-term advantages in the struggles of life.  We have evolved instincts both to cheat and to cooperate.  But we also have a third evolved instinct--to punish cheaters in order to reduce cheating and increase cooperation by increasing the costs of cheating.

Hoffman explains our punishment of cheaters as moving through three levels.  Through first-party punishment, we punish ourselves with conscience and guilt.  Through second-party punishment, we punish our tormentors with retaliation and revenge.  Through third-party punishment, we act as a group in punishing wrongdoers with retribution.  Judges and jurors are acting as third-party punishers.  Hoffman's argument is that the human brain has been shaped by biological evolution to have the instinctive propensities for punishment at all three levels.

Moreover, he argues, at all three levels, we are guided by three rules of right and wrong rooted in our evolved human nature to secure property and promises.  Rule 1: Transfers of property must be voluntary.  Rule 2:  Promises must be kept.  Rule 3:  Serious violations of Rules 1 and 2 must be punished.

Hoffman interprets "property" in a broad sense as starting with self-ownership and encompassing one's life, health, and possessions, as well as the life, health, and possessions of one's family and others to whom one is attached.  (Although he does not mention John Locke, Hoffman here echoes Locke's argument for self-ownership as the ground of property rights.  Indeed, it seems to me that Hoffman's whole argument for the evolution of punishment supports Locke's account of how the instinctive propensities for punishment sustain social order.)  Understood in this broad way, Rule 1 embraces criminal law and tort law, while Rule 2 embraces contract law.

Classical liberals or libertarians could embrace this as a good statement of their claim that the primary purpose of law is to punish force and fraud and secure the liberty of individuals to live as they please so long as they do not harm others.

Hoffman supports his argument for these kinds of rules and punishment being rooted in evolved human nature with at least ten kinds of evidence. 

(1)  Economic game experiments (such as the Ultimatum Game, the Public Goods Game, and the Trust Game) can show, both within our culture and cross-culturally, that most human beings are inclined to cheat, to cooperate, and to punish cheaters at all three levels. 

(2)  Comparison with other species of animals can show that some other animals show similar behavioral inclinations. 

(3)  We can see how hormones (such as oxytocin and testosterone) support these inclinations. 

(4)  We can study the brain as a behavioral fossil record of evolution. 

(5)  We can look to anthropology for evidence that these instinctive inclinations are human universals. 

(6)  We can also look to anthropology for evidence of the law in primitive societies that might show instinctive behavior like that of our distant evolutionary ancestors. 

(7)  We can study experimental surveys in which people are presented with hypothetical legal scenarios, and they are asked to judge blameworthiness and punishment, which allow us to see if they show these instinctive inclinations. 

(8)  If people are in brain-scanning machines (fMRI), we can conduct surveys or have them play economic games, and then we can try to infer the neural correlates of the feelings and thoughts that drive our instincts for punishing. 

(9)  We can look at the history of law to see patterns of punishing that manifest our evolved instincts. 

(10)  Finally, we can look at young human infants for evidence of those instincts arising early in life.

Every one of these lines of evidence is rightly open to dispute.  But, at least, this wide range of evidence shows that Hoffman's biolegal theory cannot be dismissed as a "just-so story" that is untestable.

FIRST-PARTY PUNISHMENT: CONSCIENCE AND GUILT
Most human beings punish themselves for cheating through conscience and guilt.  Guilt is retroactive blame, feeling pained by the thought of our past misconduct.  Conscience is prospective blame, imagining the pain we would feel if we were to engage in some misconduct.  Such conscience and guilt requires empathy--being able to imaginatively put ourselves in the situation of others and feel the pain they might feel from our injuring them.

Hoffman points to the evidence for the neural correlates of conscience and guilt in particular parts of the brain, and for the diminished capacity for conscience and guilt when there is some innate or acquired abnormality in these parts of the brain.  So, for example, reduced connectivity in the ventromedial prefrontal cortex (vmPFC) of the brain seems to be associated with psychopathic psychology.  Psychopaths--those with little or no capacity for conscience and guilt--are the exception that proves the rule that most human beings have some instinctive propensity to punish themselves for violating moral rules against harming others.

SECOND-PARTY PUNISHMENT:  RETALIATION AND REVENGE
If conscience and guilt fail to restrain us from cheating, we must then worry about the punishment coming from our victims or their family and friends.  For most of our evolutionary history, the primary punishment of wrongdoers was retaliation and revenge (delayed retaliation). 

The law of self-defense--that everyone has the right to retaliate against attacks on their lives, their health, or their property--is universal, and it is supported by neural circuitry in the amygdala, the insula, the vmPFC, the cingulate, and the dorsolateral prefrontal cortex (dlPFC).  If people play the Ultimatum Game while they're in a brain-scanning machine, we can see the enhanced activity of this neural circuitry when they refuse unfair offers, and thus inflict a costly punishment on the other player.

And yet this propensity for retaliation and revenge is dangerous, because it can easily become too extreme.  Too much punishment can be as disruptive to social order as too little punishment.  This is what turns a state of nature from a state of peace to a state of war.  To avoid this, we need the rule of law or third-party punishment, because third-party punishers tend to be more dispassionate in their retaliation.

THIRD-PARTY PUNISHMENT: RETRIBUTION
The emotions that we feel when we punish wrongdoers for harming others can be very strong, but usually they are not as strong as they are when we are punishing those who have harmed us directly.  For that reason, third-party punishers can move towards a more impartial judgment, which is what we look for in the rule of law.

Treating our families as extensions of ourselves turns second-party punishment into third-party punishment.  But this familial third-party punishment is not likely to be as impartial as punishment coming from someone who is unrelated to the victim or the wrongdoer.  Originally, those dominant individuals who acted as mediators or judges of disputes in the band or tribe exercised third-party punishment on their own.  But in some special cases, they might have delegated this to select groups of people, which would have acted as the first juries.

From brain-scanning, there is some evidence for the neural correlates of third-party punishment.  The right dorsolateral prefrontal cortex seems to be active both when people are engaged in third-party punishment (in weighing punishment for hypothetical criminal behavior) and when they are engaged in second-party punishment (in retaliating against unfair players in economic games).  This suggests that the modern legal system--with a centralized government enforcing punishment--could have been built on the cognitive mechanisms that evolved for retaliation and revenge.

The detailed rules and procedures for third-party punishment in modern legal systems show the vagaries of historical contingency in the cultural evolution of law that is highly variable across legal systems.  But still these modern rules and procedures can manifest general patterns rooted in ancient human instincts for punishing.  For example, one ancient form of punishment for the most severe crimes was ostracism or banishment from the community.  Although prisons are a relatively new invention in legal history, Hoffman observes, imprisonment can be seen as a new way to punish people by ostracizing or banishing them from the community, either temporarily or permanently.

THE GUT FEELINGS OF LEGAL PUNISHMENT
Judge Hoffman thinks that most trial judges show "our evolved retributive feelings" when they punish.  "We get a gut, retributive, feeling about the sentence, and then move in one direction or another off that gut feeling based on information about the criminal that affects our views about special deterrence--the likelihood he will reoffend and the crimes he is likely to commit" (345). 

Surely, many readers will be disturbed to learn that most trial judges are guided in their judgments by "gut feelings."  After all, doesn't Judge Hoffman indicate that third-party punishing should be "more dispassionate" and impartial than second-party punishing (138)?  Or is he saying that even if they are "more dispassionate," judges cannot, and should not, be completely free from the moral passions that instinctively drive legal punishment?

I agree with Judge Hoffman about the importance of evolved "gut feelings" for law.  I see this as very similar to what I say in Darwinian Natural Right (61-83) about "natural morality."  The moral judgments expressed in law, like all moral judgments, require a combination of moral emotion and moral reason as evolved moral instincts.  Reason can elicit, direct, and organize feelings.  But pure reason alone could never create moral right or wrong, because it cannot create moral feelings.

We do not commit a naturalistic fallacy when we move from natural facts to moral values--or from is to ought--if we limit ourselves to the claim that for the kind of species that we are, certain feelings are predictably aroused by certain facts, and the experience of those feelings is the only ground for making moral judgments.  Except for psychopaths, most human beings feel the moral emotions of conscience, guilt, retaliation, revenge, and retribution in response to the facts of criminal misconduct.

Judge Hoffman shows this combination of evaluative emotion and factual reasoning in his book.  The gut feelings of trial judges are rational if they are "based on information about the criminal that affects our views."  In telling the stories of his trials, he always relates the facts of the case with the expectation that these facts will elicit the same "gut feelings" that they elicited in the judges and the jurors as they reached their decision.

So, for example, when Judge Hoffman relates the story of the young Czech murder, he presents the evidence that he and the jury saw as evidence that the man was lying about his murder being unpremeditated.  He assumes that his readers will agree with this factual reasoning, and that they will also feel the retributive emotions that demanded a first-degree murder conviction.

Thus, the gut feelings of Judge Hoffman and his jurors do not confirm to any cosmically objective standard of right and wrong, but neither are they expressing purely arbitrary personal emotions.  As Judge Hoffman indicates, the instinctive propensity to punish cheaters to enforce cooperation has been evolutionarily adaptive for the human species, but not necessarily for other species.  "Social cooperation is not an abstract good" (26).  That is to say that evolution does not enforce some cosmic good like Kant's Categorical Imperative.  Rather, what is good is relative to each species.

But that species-specific good for human beings does have an intersubjective objectivity, in that the facts of each case rightly understood should evoke similar moral emotions in most normal human beings.  We can agree that legal doctrines and legal decisions are just as long as they conform to our evolved instinctive feelings.

By contrast, those legal doctrines and decisions that violate our instinctive feelings can be judged to be unjust.  Judge Hoffman indicates this in his discussion of "legal dissonances."  He notes that juries can nullify laws they find offensive by refusing to convict defendants who have clearly violated those laws.  For example, jurors often acquit defendants charged with buying small amounts of illegal drugs, because the jurors don't see this as a serious crime.  Hoffman then defines "legal dissonance" as "a narrow segment of nullification involving legal rules that seem to conflict with our evolved intuitions, especially our evolved notions of blameworthiness" (252).

A good example of a legal doctrine that conflicts with our evolved intuitions is the felony murder rule, which says that if anyone dies in the commission of a felony, the felon is guilty of first-degree murder, even if the felon did not intend to cause the death.  Hoffman tells the story of a famous case in Colorado:

"In November of 1997, a nineteen-year-old woman named Lisl Auman left her abusive boyfriend, and was staying overnight at a girlfriend's apartment.  The girlfriend was having her own boyfriend problems, and she asked a couple friends of hers, including a skinhead named Matthaeus Jaehnig, to act as muscle when the two women went to retrieve her belongings from their respective exes.  Auman's ex was not at home, so one of the other men cut the lock off the apartment door, as Jaehnig stayed outside as lookout.  Auman went in and took her belongings, plus several things belonging to her ex.  Another resident of the apartment complex became suspicious, wrote down Jaehnig's license number, and called police.  A high-speed chase ensued, during which Auman told Jaaehnig several times that she was afraid, and he should stop the car.  Instead, Jaehnig drove the girlfriend's apartment, and even shot at police a few times along the way.  Before police managed to catch up to them, Jaehnig and the others split up.  Police arrested Auman, handcuffed her, and placed her in the back of a police car.  They even drove the squad car a little further away in the parking lot to get away from the scene.  Other officers pursued Jaehnig.  by the time the five-minute foot chase was over, Jaehnig had shot and killed one of the officers, and then turned the gun on himself.  At the moment of the officer's and Jaenig's deaths, Auman was cuffed and sitting in the back of the police car hundreds of feet away." (254)

Under Colorado's version of the felony murder rule, Auman was charged and convicted of first-degree murder, and sentenced to life in prison without parole.  When this case was appealed to the Colorado Supreme Court, the Court upheld this application of the felony murder rule, but the Court reversed the conviction, because it detected an error in the jury instruction on the burglary charge.  But since this error had nothing to do with the outcome of the case, this did not justify the reversal.  Clearly, Judge Hoffman observes, the Court used this as "an excuse to undue a profoundly unjust result" (255).

Hoffman points out that the felony murder rule was originally adopted by a few American states through an "academic accident" (302).  It was imported from England because some English legal commentators incorrectly reported that it was widely adopted in England.  In fact, it had been adopted in only a few cases in England in the 1880s; it was criticized by many commentators; and it was abolished by Parliament in 1957.

Hoffman thinks there are good reasons to abolish the felony murder rule in the few states were it exists.  "It conflicts with our deepest notion that we blame only intentional wrongs, it is not itself deeply-grounded in our evolution or in our jurisprudence, it grossly over-punishes in the eyes of ordinary citizens, and in its one hundred thirty years of existence, it has already winked out either by outright abolition or by exceptions that swallow it" (303-304).

Judge Hoffman never uses terms like "natural law" or "natural right."  But isn't this a clear case of natural-law reasoning, in which we see that some laws are unjust if they violate our evolved moral instincts?

Some posts on related topics can be found here, here, and here.

The Neural Correlates of First-Party Punishment: Conscience and Guilt

 "Evolution built us to punish cheaters."  That's how Judge Morris Hoffman began his brilliant book The Punisher's Brain: The Evolution of Judge and Jury (2014).  In that book, Hoffman laid out the evidence and reasoning for the claim that social life and human civilization generally depend on our evolved instinct to punish ourselves and others when we or other people violate those social norms of cooperation that sustain any social order.  

I have written about Hoffman's book in a previous post.  I have suggested that what Hoffman says about the natural instinct for punishing those who disobey social norms corresponds to what John Locke identifies as the natural right of all people to punish those who transgress the law of nature, which is that "no one ought to harm another in his Life, Health, Liberty, or Possessions" (Second Treatise, 6).  This Lockean law of nature corresponds to what Hoffman calls the three rules of right and wrong rooted in our evolved human nature to secure property and promises.  Rule 1: Transfers of property must be voluntary. Rule 2: Promises must be kept.  Rule 3: Serious violations of Rules 1 and 2 must be punished.  Like Locke, Hoffman interprets "property" in a broad sense as starting with self-ownership and encompassing one's life, health, and possessions, as well as the life, health, and possessions of one's family and others to whom one is attached.  Understood in this broad way, Rule 1 embraces criminal law and tort law, while Rule 2 embraces contract law.

Hoffman and Locke also agree in identifying three levels of natural punishment.  Through self-punishment or first-party punishment, we punish ourselves through conscience and guilt.  Through second-party punishment, we punish those who harm us by immediately retaliating against them or by later taking revenge against them.  Through third-party punishment, we punish those who have harmed other people.

If Hoffman is right in claiming that biological evolution has built our brains to express this kind of punishment, then we should expect to see neural correlates for punishment at all three levels.  Hoffman surveys the neuroscientific evidence for this.

In this post, I am beginning a series of posts reviewing this evidence, some of which was mentioned by Hoffman, but also some that has emerged over the past eight years.

Let's start with self-punishment.  We punish ourselves by blaming ourselves for our misconduct, which is expressed through feelings of conscience and guilt.  In feeling guilt, we blame ourselves for our past misconduct: we recognize that we have wrongly harmed others, and that they can rightly punish us.  In feeling a conscience, we imagine blaming ourselves for some future misconduct, and this gnaw of conscience can motivate us to refrain from that misconduct.

From Charles Darwin to Edward Westermarck to Jonathan Haidt, evolutionary psychologists have explained these feelings of conscience and guilt as instinctive evolutionary adaptations for human beings as social animals who need to enforce the social norms of cooperation by punishing themselves for cheating.  If this is true, then we should see evidence for these evolutionary adaptations in the human brain.

To search for such evidence, we need to somehow see the mind thinking in the brain.  That became possible for the first time in the late 1970s with the invention of the positron camera and positron emission tomography (PET scan).  Like magnetic resonance imaging (MRI), the PET scan depends on a fundamental postulate--"neurovascular coupling"--first proposed by neurologist Charles Sherrington in 1890: the most active parts of the brain will show an increase in blood flow in the vessels supplying them, because greater neural firing requires greater energy provided by the oxygen and glucose in the increased blood flow.  This postulate was confirmed in the 1950s by the neurosurgeon Wilder Penfield: while operating on people with severe epilepsy, he would wake them up during the surgery, ask them to move their fingers, and he could see changes in color from an influx of blood to regions of the brain active in motor control.  In the 1970s, neuroscientists David Ingvar and Niels Lassen developed a brain imaging method, by which a radioactive gas was injected into the carotid artery, so that a scintillation camera at the side of the subject's head could record the circulation of blood, which became the first functional imaging of the brain at work (Le Bihan 2015).

The PET scan also depends on radioactivity.  Water that has been made radioactive in a cyclotron is injected in a vein of the arm.  When the oxygen nucleus of water has been rendered radioactive, it ejects a positron (a positively charged electron) for a few minutes.  When the radioactive water reaches the brain, the positron camera can record the higher quantity of positrons in those regions of the brain with increased blood flow.

In 2000, experimenters used PET scanning for the first neuroimaging study of guilt (Shin et al. 2000).  They tested eight male participants for their experience of guilt.  The participants were asked to write descriptions of two kinds of past personal events--one emotionally charged event that make them feel the most guilt they had ever experienced and two other events that created no deep emotion.  These descriptions were then modified so that they were written in the second person and in the present tense.  These scripts were read and tape-recorded in a neutral male voice for playback in the PET scanner.  They were asked to listen carefully to the scripts and imagine the event as vividly as possible.  After coming out of the scanner, they were asked to rate the intensity of their emotional states during the readings of the guilt and neutral scripts on a scale from 1 to 10.

Their average subjective rating for guilt was 8.8 for the guilt script and 0 for the neutral script.  For shame, the average was 7.4 for the guilt script and 0 for the neutral script.  For disgust, the average was 6.5 for the guilt script and 0 for the neutral script.

As compared with the neutral script, the PET scans showed increased blood flow to three areas of the paralimbic regions of the brain: the anterior (front) temporal poles, the anterior cingulate gyrus, and the anterior insular cortex/inferior frontal gyrus.

The paralimbic cortex surrounds the middle and lower parts of the brain's two hemispheres.  It is a network of brain structures associated with emotional processing, goal setting, motivation, and self-control.  This PET scanning study suggests that some of the neural circuitry in this paralimbic network supports the human experience of guilt by which we punish ourselves for violating social norms.  And once we have learned how guilty we feel from our past misconduct, we will feel the pangs of conscience when we contemplate some similar misconduct in the future.

We should recognize, however, that neuroimaging studies like this have some serious limitations.  First, the sample size is small (only eight individuals).  Second, it relies on self-reporting, so that we must trust that these eight people honestly and accurately reported their experience of guilt.  Third, the spatial resolution of PET is limited in ways that can create errors in neuroanatomical localization.

Neuroimaging with MRI produces clearer, more precise images.  While PET relies on the oxygen nucleus of the water molecule and radioactivity, MRI relies on the hydrogen nucleus of water and magnetism.  MRI uses a large magnet to create an intense magnetic field that is strong enough to magnetize the proton in the nucleus of the hydrogen atom in the water molecule.  The MRI scanner uses radio waves to excite the protons so that they emit radio wave signals that can be detected by the scanner.

The hemoglobin of red blood cells attaches to oxygen in the lungs and transports the oxygen to the organs of the body through the arteries.  Hemoglobin contains an atom of iron that is magnetized.  As long as it is attached to oxygen, it is "diamagnetic"--it is repelled by a magnetic field.  When the hemoglobin has released the oxygen, the hemoglobin becomes "paramagnetic"--it is attracted by a magnetic field and becomes like a little magnet.

In the blood vessels of the brain, some of the oxygen is released, and the red blood cells are enriched with deoxygenated hemoglobin and so magnetized.  These magnetized red blood cells change the local magnetic field and disturb the magnetization of water molecules around them, which lowers the MRI signal sent by the hydrogen protons.  A computer analysis of these changing signals can then generate images showing the most active parts of the brain as indicated by variation of oxygenation of the blood.

In 1992, researchers in four groups in the United States showed how this could be done so that subjects in a MRI scanner would have visual images presented to them, and the scanner could then generate images of neural activity in the back of their brains in their primary visual fields (Ogawa et al. 1992).  This was the beginning of functional brain imaging by MRI (fMRI), using the method called BOLD (blood oxygen level dependent).

An fMRI Image of Human Neural Activity in the Primary Visual Fields at the Back of the Brain (the Occipital Lobe)

One systematic review of 16 fMRI studies of guilt found three kinds of methods for measuring guilt (Gifuni, Kendal, and Jollant 2017).  One method was to have subjects read a script involving guilt and then evaluate the emotion evoked by the script.  A second was to ask subjects to relive a guilt-causing event from their past or to imagine themselves in a imaginary guilt-causing event.  A third method was to put subjects in a social situation that might elicit guilt, such as playing economic behavioral games or other kinds of interpersonal games.  The MRI scanner would then identify the areas of their brains that were most active during their experience of guilt.

This review identified a distributed network of brain regions involved in processing guilt.  There were 12 clusters of brain activation located in the prefrontal, temporal, and parietal regions, mostly in the left hemisphere.  "Together, these interconnected regions have been associated with a wide variety of functions pertaining to guilt, including self-awareness, theory of mind, conceptual knowledge, moral values, conflict monitoring and feelings of moral disgust" (Gifuni, Kendal, and Jollant 2017, 1174).

In general, brain scanning studies have shown that moral experience elicits greater activity in brain regions for emotional processing, social cognition (including reading the minds of others), and abstract reasoning about the past and future.  These regions include the ventromedial and dorsolateral prefrontal cortex, the amygdala, superior temporal sulcus, bilateral temporoparietal junction, posterior cingulate cortex, and precuneus.  In other words, "many brain areas make important contributions to moral judgments although none is devoted specifically to it" (Greene and Haidt 2002, 517).  

Where in the brain is morality?  The answer seems to be: Everywhere and nowhere (Young and Dungan 2012).  There is no specifically moral organ or moral brain set apart from the rest of the brain: in a sense, the moral brain is the whole brain, because human morality depends on "the brain's general-purpose machinery for representing value, applying cognitive control, mentalizing, reasoning, imagining, and reading social cues" (Greene and Young 2020, 1009).

This indicates that the Kantian philosophers are wrong in assuming that morality is an autonomous human activity of pure practical reason belonging to a realm of freedom that transcends the realm of nature, including the human nature of the human body and brain.

I will say more about this in future posts. 

REFERENCES

Greene, Joshua, and Jonathan Haidt. 2002. "How (and Where) Does Moral Judgment Work?" Trends in Cognitive Sciences 6: 517-523.

Greene, Joshua, and Liane Young. 2020. "The Cognitive Neuroscience of Moral Judgment and Decision-Making." In David Poeppel, George R. Mangun, and Michael S. Gazzaniga, eds., The Cognitive Neurosciences, 1003-1013. 6th edition. Cambridge: MIT Press.

Gifuni, Anthony J., Adam Kendal, and Fabrice Joliant. 2017. "Neural Mapping of Guilt: A Quantitative Meta-Analysis of Functional Imaging Studies."  Brain Imaging and Behavior 11: 1164-1178.

Hoffman, Morris. 2014. The Punishing Brain: The Evolution of Judge and Jury. Cambridge: Cambridge University Press.

Le Bihan, Denis. 2015. Looking Inside the Brain: The Power of Neuroimaging. Princeton, NJ: Princeton University Press.

Young, Liane, and James Dugan. 2012.  "Where in the Brain is Morality? Everywhere and Maybe Nowhere."  Social Neuroscience 7: 1-10.

A Thousand Posts (7)

2015
In the spring semester, I taught my undergraduate course on "Biopolitics and Human Nature."  This course was cross-listed in the course schedule at NIU for both the political science and the biology departments. So there were biology majors as well as political science majors in the class.  This is good, because it is good for students from different departments to learn how to talk to one another about common topics. 

And in this case, the course brings together the social sciences and the life sciences through Darwinian evolutionary biology as a unifying framework of thought.  So this illustrates what I call "Darwinian liberal education" (see the post in December of 2006).

Like all of my courses, this course was organized around reading intellectually challenging texts, peer-response writing about those texts, and class discussion stimulated by the reading and writing (see the post in February of 2008 on "Liberal Learning Through Peer-Response Journal Writing").

Many of my blog posts in the spring were related to what we were doing in this class.  I also included some of my earlier blog posts as assigned readings for the class.

The course was a study of four debates.  For each debate, there were readings on opposing sides.  The students were free to make up their own minds, as long as they were able to support their positions with good evidence and arguments.


1. THE DEBATE OVER EVOLUTION, CREATION SCIENCE, AND INTELLIGENT DESIGN

The assigned readings were by Duane Gish ("Summary of the Scientific Evidence for Creation"), William Dembski ("Intelligent Design"), and me ("On the Evidence for Evolution," a blog post in January of 2011, and "Can We See Evolution in the Beak of the Finch?", a blog post in July of 2013).

Some of my students were religious believers who saw evolutionary science as a denial of their faith in God as the Creator.  This first set of readings allowed us to debate the evidence for divine creation, intelligent design, or natural evolution.  We also considered the possibility of theistic evolution.

Some of the biology majors were creationists who did not accept the idea of biological evolution.  When I asked them what happened when evolution was brought up in their biology classes, one student answered: "We keep our mouths shut!"


2.  THE DEBATE OVER HUMAN NATURE

The two main texts were my book Darwinian Natural Right, defending the idea of a biological human nature, and Jesse Prinz's book Beyond Human Nature: How Culture and Experience Shape the Human Mind, which argues against a biological human nature.

There were other readings by Carson Holloway, Anne Fausto-Sterling ("The Five Sexes"), Deirdre McCloskey, and John Hare, along with some of my blog posts.

The topics included the possibility of Darwinian natural right, whether there are more than two sexes among human beings, whether biological conceptions of human nature are sexist and racist, whether male and female brains are different, whether the importance of culture shows that there is no biological human nature, and whether the incest taboo is purely cultural and not natural.


3.  THE DEBATE OVER LAW AND EVOLUTIONARY NEUROSCIENCE

The main reading was Morris Hoffman's The Punisher's Brain: The Evolution of Judge and Jury.  Other readings were by Joshua Buckholtz, et al. ("The Neural Correlates of Third-Party Punishment") and Sally Satel and Scott Lilienfeld (Brainwashed: The Seductive Appeal of Mindless Neuroscience).

The debate here was over whether Judge Hoffman was correct in explaining law--and particularly the work of judges and jurors--as rooted in evolved human nature, and particularly in the neural circuitry of the brain that supports the human propensity to punish cheaters.


4.  THE DEBATE OVER ARTIFICIAL INTELLIGENCE AND TRANSHUMANISM

The two main readings were Ray Kurzweil's The Singularity is Near: When Humans Transcend Biology and James Barrat's Our Final Invention: Artificial Intelligence and the End of the Human Era.  Other readings were by Alan Turing ("Computing Machinery and Intelligence") and John Searle ("What Your Computer Can't Know").

The debate here was whether human thinking and consciousness could be achieved in a computer and whether artificial intelligence could ever surpass human intelligence.  If human intelligence was produced by the biological evolution of animals, could artificial intelligence be produced by the technological evolution of machines?  And if so, what would this mean for law, morality, and politics?

In January, my post on Carson Holloway's "Strauss, Darwinism, and Natural Right" was the first post coming out of this class.  Leo Strauss thought the crisis of natural right arose because the teleological view of the universe that supported classic natural right has apparently been refuted by modern natural science.  I have argued, however, that a Darwinian understanding of the immanent teleology of life, including human life, can resolve this crisis by supporting a Darwinian conception of natural right.  Holloway has criticized my argument for failing to recognize that any conception of natural right depends on a  "religiously informed cosmic teleology" that is denied by Darwinian science. He suggests that Strauss himself agreed with him on this.

Although I disagree with Holloway's general argument, I do think he has correctly pointed to a strange kind of religious or quasi-religious teleology in Strauss's writing about natural right.
Holloway notes the "certain otherworldliness" in Strauss's "transcendent" conception of the philosopher as standing at the peak of a cosmic hierarchy.  But Holloway does not reflect on how strange this is.  How can this "transcendent" conception be consistent with Strauss's denial of Platonic metaphysical dualism and his insistence that Plato was not a Platonist?  It is true that in some of the passages cited by Holloway, Strauss does seem to endorse the cosmology of the "Great Chain of Being" that dominated Western culture for two millennia through the influence of Plato's Timaeus.  But this contradicts Strauss's claim that this Platonic cosmology is Plato's exoteric teaching, not his esoteric teaching.  If there is a "benevolent cosmic intelligence," as Holloway indicates, would Strauss say that this is the philosopher?

Strauss sometimes suggested that the unnaturalness of slavery--shown by the natural resistance of the slave to his enslavement--is a good illustration of natural right.  In February, I wrote a post arguing that this does not require a "religiously informed cosmic teleology," because it expresses the immanent teleology of human nature.

This writing on Strauss and Darwinian natural right has gone into the Strauss chapter of Political Questions.

Another challenge to my argument for Darwinian natural right that we considered in class was the objection that the fact of there being as many as "five sexes," as argued by Fausto-Sterling, seemed to deny my claim that there was a natural desire for sexual identity as a male or female.

In some posts (in October of 2007 and November of 2010), I have responded by indicating that even as I stress the dualism of sexual identity as male or female, I recognize the variation from this strict bipolarity--hermaphrodites, who combine both sexes, or those who cross from one to the other.  It is natural for human beings to have a sexual identity that is either male or female. But the biological nature of sexual differentiation sometimes deviates from this central tendency.

Deciding how to handle those cases that deviate from the central tendency of sexual bipolarity is a matter of cultural tradition and prudential judgment. But the fact that biological nature throws up such exceptional cases should not obscure the fact that the central tendency of nature is to clearly distinguish male and female

In February and March, I wrote posts on Jesse Prinz's book.  I was interested in studying his book, because some of my critics have claimed that his book refutes my Darwinian natural right.  But I must say that Prinz's arguments are remarkably shallow, sophistical, and contradictory.  Oh, well, nobody's perfect!

Two contradictions run throughout Prinz's argument for going "beyond human nature."  The first contradiction is that he begins his book by saying that biological determinism is a straw man, because almost none of the naturists defend biological determinism; but then throughout the book, he criticizes the naturists as biological determinists.

The second contradiction is that he insists that he never denies the importance of biology, because explaining human traits always requires that we see the interaction between biology and culture; but then he says that culture can eliminate biology.

An example of the first contradiction is that he criticizes Richard Herrnstein and Charles Murray as biological determinists in their account of IQ in The Bell Curve, even though they clearly and emphatically reject biological determinism and acknowledge the importance of environmental factors.

Both of these contradictions arise in Prinz's account of gender differences.  First, even though he has said early in his book that naturists are not biological determinists, he declares: "Naturists tend to be biological determinists.  They tend to think that gender differences are indelibly etched in our genetic building blocks."

He also shows the second contradiction.  He insists: "An adequate theory of gender differences in cognition must implicate both biology and socialization."  But then two paragraphs later, he declares: "Culture can also erase biological differences."

Prinz argues for emotivism and cultural relativism in his account of human morality.  In doing this, he employs the sophistical technique of deceptive silence.  In presenting the research relevant to his topic, he picks out those findings that seem to support his arguments, while passing over in silence those findings that contradict his arguments. 

For example, he sets up a stark debate between Kantian rationalism and Humean emotivism in explaining the basis of human morality; and he argues that empirical research supports emotivism by showing that moral judgment is purely emotional and not rational at all.  This is deceptive in two respects.  First, he does not tell his readers that Hume argued for a combination of reason and emotion in explaining moral judgment. 

The second deception is in Prinz's reporting of the experimental research on moral judgment.  He correctly reports that the research shows the power of emotion in motivating moral judgment.  But he is silent about how that research--for example, as presented by Joshua Greene--shows the complex interaction of reason and emotion in ways that confirm Hume's position. 

According to Prinz, "every cultural trait is really a biocultural trait," because "every trait that we acquire through learning involves an interaction between biology and the environment."  Consequently, "there is no sharp contrast between nature and nurture."  "Nurture depends on nature, and nature exists in the service of nurture."

Oddly, in saying this, Prinz does not realize that he is endorsing E. O. Wilson's sociobiological argument that the necessary interaction of genes and culture constitutes human nature.  If human culture is part of human nature, then it's hard to see how Prinz's argument for the importance of human culture takes us "beyond human nature."  Strangely, only a few sentences after stating that "nurture depends on nature," Prinz concludes his book by declaring that through nurture, "we transcend nature" (368). 

Here we see the fundamental contradiction that runs throughout Prinz's book--first rejecting the nature/nurture dichotomy as a false dichotomy, but then embracing the dichotomy and insisting that nurture transcends nature.

In contrast to Prinz's transcendentalist dualism, one of the best illustrations of the gene-culture coevolution of human nature is the incest taboo as explained by Edward Westermarck's Darwinian theory.  Prinz's attempt to refute that theory shows the incoherence and deceptiveness of his reasoning.

In April, I wrote a post on Hoffman's book and his fundamental claim that "evolution built us to punish cheaters."  Hoffman explains our punishment of cheaters as moving through three levels.  Through first-party punishment, we punish ourselves with conscience and guilt.  Through second-party punishment, we punish our tormentors with retaliation and revenge.  Through third-party punishment, we act as a group in punishing wrongdoers with retribution.  Judges and jurors are acting as third-party punishers.  Hoffman's argument is that the human brain has been shaped by biological evolution to have the instinctive propensities for punishment at all three levels.

Moreover, he argues, at all three levels, we are guided by three rules of right and wrong rooted in our evolved human nature to secure property and promises.  Rule 1: Transfers of property must be voluntary.  Rule 2:  Promises must be kept.  Rule 3:  Serious violations of Rules 1 and 2 must be punished.

Hoffman interprets "property" in a broad sense as starting with self-ownership and encompassing one's life, health, and possessions, as well as the life, health, and possessions of one's family and others to whom one is attached.  (Although he does not mention John Locke, Hoffman here echoes Locke's argument for self-ownership as the ground of property rights.  Indeed, it seems to me that Hoffman's whole argument for the evolution of punishment supports Locke's account of how the instinctive propensities for punishment sustain social order.)  Understood in this broad way, Rule 1 embraces criminal law and tort law, while Rule 2 embraces contract law.

Classical liberals or libertarians could embrace this as a good statement of their claim that the primary purpose of law is to punish force and fraud and secure the liberty of individuals to live as they please so long as they do not harm others.
I largely agree with Hoffman, because most of what he says I see as the application of Darwinian natural right to the study of law.  My only disagreement is that in relying on neuroscience, and especially brain-scanning experiments, he does not acknowledge, much less respond to, the many criticisms of what Sally Satel and Scott Lilienfeld have called "mindless neuroscience"--the exaggerated claims for brain-scanning as mind-reading that ignore the problems in inferring the thoughts and feelings of the mind from neural correlates in the brain.

I have written posts on the "brain-imaging fallacy" (March 2007, June 2008).  The fundamental problem is the mystery of consciousness--that our only direct access to conscious thoughts and feelings is through our own internal subjectivity, and that any inference of what's happening in the mind from what is happening in the brain must always be uncertain and imprecise.  Hoffman could have acknowledged such problems in neuroscience and brain-scanning without weakening his general argument, which is supported by many different lines of reasoning.

Hoffman is a trial judge in Denver.  Much of the attraction of his book for my students was from his anecdotes about his experiences as a judge.  But some of my students were disturbed by his conclusion that the evolutionary science of punishment confirms his personal experience that his judgments of criminal blameworthiness are ultimately based on "gut feelings."

If that is so, could we someday replace Judge Hoffman with a judicial robot programmed with the right gut feelings and the knowledge of the law, so as to judge blameworthiness and set the appropriate punishment?  Or is it impossible for even the most artificially intelligent robot to replicate human judgment?  If Judge Hoffman's mind is the product of a natural evolutionary process, as he believes it is, then why could we not produce an artificially intelligent mind through a mechanical evolutionary process? 

We raised these questions in class, and I wrote a series of posts on this in April.  Some of this writing went into my chapter on Descartes in Political Questions.

I have argued for explaining the human mind as an emergent property of the human brain once it passed over a critical threshold of size and complexity in the evolution of the primate brain.  If that is true, then one might wonder whether technological evolution could do for robots what biological evolution has done for humans.  Is it possible that once computer technology passes over a critical threshold of complexity, comparable to the complexity of the human brain, could a mechanical brain equal or even surpass the intelligence of human beings? 

And if that is possible, what moral, legal, and political questions would this raise?  Must we soon be ruled by robots who are smarter than us?  Or will we use this technology of artificial intelligence to extend our human intelligence, so that we will be as super-intelligent as our machines?  Will our super-intelligent robots demand to be treated as persons with rights?  Will they have a morality like ours?  Or will they be moved by a will to power that is beyond human good and evil?

We can anticipate that such questions about advances in artificial intelligence will become the deepest political questions of the twenty-first century.

Many years ago, when I first began thinking about this, I was persuaded by Searle's famous Chinese Room argument against the Turing Test for human-level intelligence in a machine.  But now, I think Kurzweil is right in arguing that Searle's Chinese Room doesn't refute the Turing Test.

The Turing Test is the common name today for what Turing originally called the Imitation Game.  He proposed this as the best test of whether a digital computer has achieved intelligence comparable to human intelligence.  (Actually, Descartes proposed a similar test for machine intelligence in his Discourse on Method.)  Put a computer and a human being in separate rooms.  Ask a human being to try to detect which one is the computer by asking questions typed onto pieces of paper slipped under the doors of the rooms.  The computer and human being will answer the questions on pieces of paper, with the computer pretending to be a human being, and the human being trying to show that he is the human being.  If the computer has the intelligence for communicating in language in ways that a good human speaker of the language would interpret as showing human intelligence, then the computer has passed the test.  Writing in 1950, Turing thought that digital computers would begin to pass the test by the year 2000.

IBM built the chess-playing machine Deep Blue that defeated Gary Kasparov, the reigning world champion in chess, in 1997.  This was impressive, but it did not show that AI machines are capable of general intelligence and flexible judgment comparable to that of human beings.  Chess is a restricted domain with clear rules and a clear objective (capturing the King).  By contrast, success in playing the television game Jeopardy! requires general knowledge of history, culture, literature, and science.  It also depends on flexibility in interpreting puns, metaphors, and other nuances of language. 

The IBM scientists decided that if they could build an AI machine that could defeat a Jeopardy! champion like Ken Jennings, this would show that artificial intelligence was finally moving towards general intelligence like that of human beings.  In 2011, Watson did indeed defeat Jennings in playing the game.

From his experience in competing against Watson, Jennings decided that Watson was a lot like the human players of Jeopardy.  “Watson has lots in common with a top-ranked human Jeopardy player,” Jennings observed.  “It’s very smart, very fast, speaks in an uneven monotone, and has never known the touch of a woman.”

But does Watson really think?  John Searle answered no, the day after Watson won the Jeopardy competition.  “IBM invented an ingenious program—not a computer that can think,” he declared.  “Watson did not understand the questions, nor its answers, nor that some of its answers were right and some wrong, nor that it was playing a game, nor that it won—because it doesn’t understand anything.”

In November, I wrote a post on a movie Ex Machina that raises the question--Can robotic love pass the Turing test?  Could a young man be seduced by a beautiful robot--knowing that she is a robot--into believing that she feels love for him?  I suspect that Ava, the robot, has no moral emotions, and so she's a psychopath who can cheat without conscience.

In March, I wrote a post on the neural basis of psychopathy.  Hoffman says that pure psychopaths do not experience first-party punishment, because they do not feel guilt or shame.  And so, since they don't punish themselves for cheating, they will become successful cheaters, unless they suffer the second-party punishment from retaliation and revenge or the third-party punishment from retribution.

Kent Kiehl has shown that while the intellectual intelligence of psychopaths can be high, as indicated by high IQ, their emotional intelligence is low; and he can show that this low emotional intelligence is correlated with low activity and low gray matter density in the paralimbic and limbic systems of the brain, which include bilateral parahippocampal, amygdala, and hippocampal regions, bilateral temporal pole, posterior cingulate cortex, and orbitofrontal cortex.  Deficits in these parts of the brain are associated with deficits in emotional processing, which could explain why psychopaths lack the moral emotions of guilt, shame, love, and empathy that sustain the moral sense of most people.  (Does this cast doubt on the argument of Steven Pinker and Michael Shermer for a "moral Flynn effect"--the idea that increases in IQ can bring moral improvement?)

This is why in Darwinian Natural Right, I identify psychopaths as "moral strangers" who are not open to moral persuasion, because they lack any natural moral emotions.  This refutes any Kantian rationalist conception of morality as based on pure a priori reasoning freed from emotion or desire.  This topic of psychopathy stirred lively discussions in class.

After the spring semester was over, I turned to working on a paper for the convention of the American Political Science Association in San Francisco--"The Biopolitical Science of Locke's State of Nature."  Some of my thinking for this paper came from Hoffman, because Hoffman's argument for the naturally evolved propensity to punish cheaters largely confirms what Locke says about the natural right to punish in the state of nature.  Many of my posts from May to August went into this paper.

Some libertarian anarchists see Locke's state of nature among foraging bands as showing how human beings for most of their history have lived in anarchy without government.  Some anarchists think that much of human life even in modern states is still anarchic in being organized by private governance--through private police, private arbitration of disputes, and private courts.  Does this show how individual liberty is best secured through the evolution of spontaneous order without any need for government?  Or does an anarchic state of nature tend to fall into feuding and war if there is not at least a limited government to keep the peace?  Do government agents (politicians, regulators, police, and courts) always have the knowledge, incentives, and ability to solve public problems in a low-cost way?  Or is private governance generally better at solving public problems? 

I raised these questions about anarchism in some posts in January and December.  Much of this writing went into my chapter on Smith in Political Questions.  My post on Edward Stringham's Private Governance has been published in the Review of Austrian Economics (2017).

In the fall semester, I taught my course on "Natural Right and Law," which included Thomas Aquinas's "Treatise on Law."  From June to November, I wrote a long series of posts on the theme of Thomistic natural law as Darwinian natural right.

This began in June with posts on Thomistic natural law in Justice Anthony Kennedy's opinion in the Supreme Court's gay marriage decision--Obergefell v. Hodges. 

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."  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."  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.

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.  Kennedy agrees with this, although he sees same-sex marriages as securing the same two natural ends.

Aquinas accepts the biblical teaching (in Paul's Letter to the Romans, 1-2) that homosexuality is "contrary to nature."  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.  But he never concedes that homosexuality might also express "temperamental nature."  So here is the one fundamental point of disagreement between Aquinas and Kennedy.

As I noted in posts in October, Aquinas thought that homosexuality must be unnatural for two reasons.  Nonhuman animals do not engage in homosexual conduct.  And homosexuality does not lead to procreation and parental care of children.

We now know, however, that Thomas was mistaken about both of these points.  Scientists have observed homosexual behavior in 471 animal species.  Scientists have also observed that same-sex pairs have successfully reared young in at least 20 species.  In some cases, one or both partners are the biological parent(s) of the young they raise together.  In other cases, the partners adopt and care for young without being the biological parents.  Moreover, in some cases, the same-sex couples seem to be more successful in their parenting than opposite-sex parents.

We also now know that homosexuality is biologically natural in that it arises through the interaction of many biological factors in the early development of fetuses and children--genes and sex hormones shape the body and the brain in early life so that people are naturally predisposed to become heterosexual, bisexual, or homosexual.  And while there is no single "gay gene," there are probably many different genes interacting with one another in various ways that influence sexual orientation.

In defending the natural law of gay marriage, I continue my argument against the claim of Robert George and Ryan Anderson that only heterosexual marriage can be "real marriage."  In October, I wrote a post challenging Anderson's critique of the Obergefell decision.

Natural law reasoning is an empirical science insofar as it makes falsifiable predictions about the failure of laws that deny human nature.  So, for example, if one agrees with George and Anderson that the monogamous marriage of a man and a woman is the only kind of marriage that can secure the two natural ends of marriage--conjugal bonding and parental care of children--and that same-sex marriage is not real marriage because it cannot secure these two natural ends, then one can predict that legalizing gay marriage will fail because it cannot satisfy the natural human desires for marital bonding and parental care.  Justice Kennedy agrees that marital arrangements are to be judged by whether they can achieve these two natural ends, but he argues that same-sex marriages can be as successful as opposite-sex marriages in securing these two ends.

Now that Obergefell has established gay marriage as a national constitutional right, we can begin to accumulate the evidence for deciding between these two falsifiable predictions--George's prediction that gay marriage will fail and Kennedy's prediction that it will succeed.  But in the responses to the Obergefell decision that I have seen, I have not seen many people making this point.

Thomas agrees with Aristotle that the end of all human action is happiness.  Natural law is about how we pursue happiness by satisfying our natural inclinations.  So, for example, marriage naturally contributes to our happiness by securing two natural ends--the parental care of children and the spousal bonding of husband and wife in a household.  These natural ends are achieved most fully, Thomas argues, in a heterosexual life-long monogamous marriage.  In principle, Thomas's claim that monogamous marriage is naturally conducive to happiness is empirically testable.

Some of my students in my fall class disagreed with Thomas's claim.  They thought it was obvious that unmarried people were just as happy as married people, and that the children of unmarried single parents were just as happy as the children of married parents. 

To provoke some discussion, I distributed some excerpts from Charles Murray's book Coming Apart, presenting data about rates of marriage, divorce, and reported happiness among white Americans between the ages of 30 and 45.  In 1960, almost everyone was married, divorce rates were close to zero, and most people reported being "very happy" in their lives.  Forty years later, most of those in the upper class were still like this and still happy; but many of those in the lower class were unmarried and unhappy.  Murray worries about the condition of this new white underclass in America.  Some of the students criticized Murray's presentation and analysis of his data.  But we did agree that this does suggest ways in which Thomistic natural law might be empirically testable.  I wrote a post on this in September.

In January and July, I wrote posts on Arthur Melzer's Philosophy Between the Lines: The Lost History of Esoteric Writing (2014), which provides massive evidence and argumentation in defense of Leo Strauss's claim that political philosophers have written esoterically for thousands of years, which was necessary to protect philosophy and society from mutual harm, although in the past two centuries, this has been largely forgotten. 

And yet, Melzer's book also suggests that modern liberalism's success over the past two centuries shows that esoteric writing is not necessary or desirable in a liberal open society, which appears to refute Strauss's core teaching that the philosophic life of the few as the only naturally good life must be in conflict with the miserable life of the many that depends on moral, religious, and political delusions. That the philosophic life as based on truth must threaten the social life based on opinion is perhaps true for the traditional societies that have dominated most of human history, but it is not true for the modern liberal societies that have emerged in many parts of the world over the past two centuries. 

According to Strauss, the premodern philosophers believed that "the gulf separating 'the wise' and 'the vulgar' was a basic fact of human nature," and that "public communication of the philosophic or scientific truth was impossible or undesirable, not only for the time being but for all times."

If Strauss agreed with this, then that would mean that he thought that liberalism must be a dangerous delusion, and that he must write esoterically to hide his opposition to liberalism.  As Strauss wrote, "if I know that the principles of liberal democracy are not intrinsically superior to the principles of communism or fascism, I am incapable of whole-hearted commitment to liberal democracy."  We would then have to wonder what kind of alternative he had in mind--what kind of illiberal closed society he would prefer. 

Melzer is completely silent about Will Altman's argument that Strauss did engage in esoteric writing in promoting an illiberal alternative to liberal democracy.  He is also silent about Strauss's professed devotion to "fascistic, authoritarian, imperial principles" and his refusal to crawl to the cross of liberalism (in a letter to Lowith in 1933).  (See my post on this letter in March 2014.)

So far, I have not seen anyone who can clear up this apparent contradiction in Strauss's writing.  Nor have I seen anyone who can plausibly deny that modern liberalism really has succeeded in creating a largely open society with no need for esoteric writing.  In such a society, the philosophic life is not the only naturally good life restricted to a few, but it is rather one of the natural goods of life that is open to all human beings.

Where's Strauss's demonstration that the life of philosophy or science is the only good life for a human being? If the philosophic life is the life of relentless questioning and inquiry where one accepts nothing as true unless it has been proven to be true based on what we can see and know for ourselves, rather than relying on faith in what others have told us, then it is self-contradictory to choose such a life as the best life without demonstrative proof that it is so.

Although Strauss generally assumes that the philosophic life is superior in dignity to any moral life, I cannot think of any place in Strauss's writing where he carefully lays out a demonstrative proof that the philosophic life is the only truly good life for a human being.  (See my post on this in July 2011.)

Most of this writing on Strauss and esotericism has gone into my Strauss chapter in Political Questions and into an article in Perspectives on Political Science (July/September, 2015), which has a symposium of articles on Melzer's book. 
 

Naomi Beck on Hayek (4): The Convergent Evolution of Liberalism Through Property, Trade, and Punishment

Beck criticizes Hayek for failing to provide sufficient evidence to support his claims about history.  In particular, she complains about Hayek's "sketchy description of the origins of private property and of long-distance trade--two pillars of free market civilization," and so what we see here is "history at the service of theory" (106).

While I agree that Hayek's history is too "sketchy," I would argue that he does at least offer a rough outline of the history of property and trade that can now be supported and elaborated by the research of economic historians and evolutionary theorists over the past 40 years.  As I have indicated in a previous post, that research challenges Hayek's Freudian theory of trading behavior as requiring a repression of our evolved instincts.  That research also suggests that Hayek was wrong in not stressing the importance of the natural instinct for punishing cheaters in enforcing the laws of nature.  Beck denigrates Hayek's history while remaining silent about this research that partly confirms and partly corrects Hayek's claims.

CONVERGENT EVOLUTION
As Beck indicates (73), Hayek saw the cultural evolution of free markets as corresponding to what biologists today call "convergent evolution."  Species that are not closely related genetically can show convergent evolution in evolving to have similar solutions to an adaptive problem.  So, for example, insects, birds, and bats have all evolved wings to give them the ability to fly although these species have very different phylogenetic origins.  Similarly, Hayek suggests that the diverse cultural traditions of human beings tend to converge towards similar rules of social order that solve the problem of how to overcome conflicts of interest in achieving social cooperation.  Hayek observes:

"it is quite possible that one kind of system of such rules is so much more effective than all others in producing a comprehensive order for a Great Society that, as a result of the advantages derived from all changes in the direction towards it, there may occur in systems with very different beginnings a process corresponding to what biologists call 'convergent evolution.'  'The necessities of human society' may bring about an independent emergence, at many different times and places, of the same sort of system, such as that based on private property and contract.  It would seem that wherever a Great Society has arisen, it has been made possible by a system of rules of just conduct which included what David Hume called 'the three fundamental laws of nature, that of stability of possession, of its transference by consent, and of the performance of promises,' or, as a modern author sums up the essential content of all contemporary systems of private law, 'freedom of contract, the inviolability of property, and the duty to compensate another for damage due to his fault.'" (LLL [2], 40).

If Hayek is right, then we should see in the evolutionary history of human social order that those societies based on private property, free trade, and contract--Hume's three laws of nature--are manifestly successful in showing growing wealth and population.  Hayek sketches that history beginning with exchange and specialization in primitive groups and long-distance trade beginning at least 30,000 years ago in the Upper Paleolithic age (FC, 38-39).  He implies that the migration of human ancestors out of Africa depended on trade in an extended order (FC, 41).  Oddly, this seems to contradict Hayek's claim that trading arose so recently in human history--within the last few thousand years--that it could not have become an evolved instinct.

Hayek sees evidence that some of the ancient Greek cities--particularly, Athens--protected private property and trade in ways that promoted a surge in the growth of wealth and population and that allowed for the development of the first global trading networks.  In contrast to Athens, ancient Sparta resisted the "commercial revolution," and consequently Spartan society never achieved high civilization (FC, 31-32, 39-40, 44, 46).

Hayek also sees evidence that ancient Rome during the last years of the Republic and the first two centuries of Empire had laws protecting private property and contract in ways that promoted growth, but then "this first extended order" declined when centralized government impeded commercial freedom.  He sees this as a repeated pattern in which civilization advances when a government protects individual liberty so that there can be an increasingly complex order of spontaneous and voluntary cooperation; but then the government abuses its powers in suppressing individual liberty, so that civilization declines as wealth and population declines (FC, 32).  He sees the same pattern in ancient Egypt and imperial China: civilization advances during times of weak government control over society that allows for capitalist growth, but then the expanding power of a central government brings a decline in growth.

In the history of Europe during the later Middle Ages and the early modern period, Hayek indicates:

"It was not under the more powerful governments, but in the towns of the Italian Renaissance, of South Germany, and of the Low Countries, and finally in lightly-governed England, i.e., under the rule of the bourgeoisie rather than of warriors, that modern industrialism grew.  Protection of several property, not the direction of its use by government, laid the foundations for the growth of the dense network of exchange of services that shaped the extended order" (FC, 33).

Recent research in evolutionary science and in economic history gives some support to Hayek's history of how extended social orders of cooperation arise from the enforcement of Hume's three laws of nature.  Beck says nothing about this.

THE EVOLUTIONARY STUDY OF LAW
First, as summarized in Morris Hoffman's The Punisher's Brain, evolutionary science sustains a slightly modified form of Hume's three laws.  (Previously, I have written a post on Hoffman's work.)

Like Hayek and Hume, Hoffman thinks human beings have always faced what he calls the Social Problem.  The problem arises from our human nature as both selfish and social animals, so that we must always face the question: cheat or cooperate?  We are inclined to cheat others in our group whenever cheating would be to our selfish advantage.  But we are also inclined to cooperate, because living in cooperative groups has always given us long-term advantages in the struggles of life.  We have evolved instincts both to cheat and to cooperate.  But we also have a third evolved instinct--to punish cheaters in order to reduce cheating and increase cooperation by increasing the costs of cheating.  We are guided by three rules of right and wrong rooted in our evolved human nature to promote cooperation by securing property and promises. Rule 1: Transfers of property must be voluntary.  Rule 2: Promises must be kept.  Rule 3: Serious violations of Rules 1 and 2 must be punished.  Hoffman is a trial judge in Denver, and he thinks these rules underlie everything that is done by judges and jurors.

Hoffman interprets "property" in a broad sense as starting with self-ownership and encompassing one's life, health, and possessions, as well as the life, health, and possessions of one's family and others to whom one is attached.  Hoffman here echoes Locke's argument for self-ownership as the ground of property rights.  Understood in this broad way, Rule 1 embraces criminal law, while Rule 2 embraces contract law.

Classical liberals could accept this as a good statement of their claim that the primary purpose of law is to punish force and fraud and secure the liberty of individuals to live as they please so long as they do not harm others.

Hoffman supports his argument for these rules and punishments being rooted in evolved human nature with various kinds of empirical evidence from economic game experiments, animal behavior, behavioral endocrinology, neuroscience, brain imaging studies, evolutionary anthropology, child psychology, and legal history.

Although this largely confirms Hume's account of the "three laws of nature" as endorsed by Hayek, it emphasizes more than Hume and Hayek do the importance of the evolved instinct for punishing cheaters.  Hayek only rarely speaks of punishment, as when he says that "under the rule of law, government can infringe a person's protected private sphere only as punishment for breaking an announced general rule" (CL, 206).

By comparison with Hayek and Hume, John Locke is more emphatic in affirming the natural right to punish--the "executive power of the law of nature"--as the fundamental doctrine for liberal social order.  I have written about this here and here.

EVOLUTIONARY ECONOMIC HISTORY
The second line of recent research supporting Hayek's evolutionary history of liberal order is in economic history.  Many economic historians now agree with Hayek that throughout history those societies that have enforced institutional rules protecting private property, trade, and contracts have flourished in ways that promoted growth spurts in wealth and population.

In particular, Hayek was right about the "commercial revolution" in ancient Athens as illustrating the convergent evolution towards liberal order.  In The Rise and Fall of Classical Greece (2015), Josiah Ober has surveyed the evidence that ancient Athens in the 5th and 4th centuries BCE was one of those premodern societies that showed an "efflorescence" (in the terminology of Jack Goldstone)--a period of increased economic growth as well as increasing population and cultural achievement promoted by a vigorous commercial life that is similar to what we see today in modern liberal societies.  (I have written about this here.)

Ober argues against the common assumption of many scholars that ancient Greece was poor and experienced little or no economic growth.  He shows that Greece in the classical era had rates of growth in both consumption and population that were much higher than the premodern norm and higher than any period in Greek history until the middle of the 20th century.  He offers the sort of institutional explanation of economic growth advocated by Douglas North and others: "Fair rules and competition within a marketlike ecology of states promoted capital investment, innovation, and rational cooperation in a contest of low transaction costs" (103).

Similar conclusions about the ancient Greek economy have been supported by Alain Bresson in The Making of the Ancient Greek Economy: Institutions, Markets, and Growth in the City-States (2016). The ancient Greek economy showed some of the features of capitalist society that supported a long period of unprecedented economic growth.  The rule of law enforced property rights and contractual obligations in a way that sustained both domestic and international markets for trade.  The Greek city had two institutions for trade--the agora, or internal market, and the emporion, or market for international trade.  This trade allowed for an extensive domestic and international division of labor.  The Greek world experienced the first world economy based on long-distance trade.

This was made possible by the institutional enforcement of Hume's three laws of nature--private property, exchange, and contract.  This can also explain Goldstone's account of the other "efflorescences" in premodern history--spurts of growth in wealth and population--that include the High Middle Ages in northwestern Europe (1150-1250), Golden Age Holland (1570-1670), High Qing China (1680-1780), and Great Britain during the Industrial Revolution (1760-1830).

And yet, in none of these cases, does one see the self-sustaining and accelerating explosion in economic growth that began in Great Britain around 1850, which Deirdre McCloskey calls The Great Enrichment.  Although Northian institutionalism can explain the earlier efflorescences of economic growth in per capita income of up to 1% per year, it cannot explain the unprecedented growth in the past two centuries, in which liberal societies have seen increases in average income from 1800 to the present of over 1,000 to 3,000 per cent.  To explain that, McCloskey argues, we need to see the crucial rhetorical change that led to the great Bourgeois Revaluation that recognized and honored the moral and intellectual virtues of the bourgeois commercial society  While Hayek never developed this idea, he does perhaps point to it in speaking about modern commercial societies as being "under the rule of the bourgeoisie."

This looks like what Hayek identified as the convergent evolution of liberal social order:  whenever and wherever societies have adopted the rules of liberal order, this has produced spurts of growth in wealth, population, and cultural complexity; and now with the global spread of those rules over the past 200 years, this has produced a self-sustaining and accelerated explosion of growth beyond anything ever seen in all of human history.

Beck is silent about all of this.