A Darwinian History of Human Rights and Empathy

Darwinian political history would be an important part of what I have called "Darwinian liberal education." Such a history would be what Dan Smail calls "deep history," which would include "neurohistory." Narrative human history always rests upon psychological assumptions by which we project ourselves into the minds of historical actors to try to understand how and why they felt, thought, and acted they way they did in the circumstances they faced. In political history, we assume that big changes in political regimes must have been associated with big changes in the psychological profile of the human beings living within those regimes.

Darwinian neuroscience should allow us to explain this as historical changes in the human brain. This is complicated, because as Wendell Berry has argued (against E. O. Wilson), we can't rely on a simple reductionistic formula: "mind = brain = machine." The correct formula is much more complex: "mind = brain + body + world + local dwelling place + community + history. 'History' here would mean not just documented events but the whole heritage of culture, language, memory, tools, and skills. Mind in this definition has become hard to locate in an organ, organism, or place. It has become an immaterial presence or possibility that is capable of being embodied and placed."

If I am right in my recent posts about the biological character and the genetic basis of human rights, then the cultural and political history of human rights should provide an illustration of Darwinian neurohistory. We should also see in this history of human rights whether a Darwinian moral psychology can respond to Nietzsche's challenge: Does the death of God--the death of all cosmic support for morality--mean the death of all morality?

In fact, we can see such a history in Lynn Hunt's Inventing Human Rights: A History (Norton, 2007). The crucial point for the history of human rights, she insists, is the claim of self-evidence, as in Jefferson's Declaration of Independence: "We hold these truths to be self-evident . . ." The self-evidence of human rights depends partially on reason, but more so on emotion, and especially the emotional experience of empathy. That human capacity for empathy is rooted in the neural structures of the human brain, but the extension of empathy to ever wider circles of humanity depends on cultural history working on the neural plasticity of the brain.

We can see, then, that Hunt follows a Darwinian moral psychology by stressing the primacy of moral emotions for moral motivation, a position elaborated by Edward Westermarck and Jonathan Haidt. She also relies on modern neuroscientific research on the neural bases of empathy. I have written many posts on the neuroscience of the moral instinct.

As I have in previous posts, Hunt indicates the problem with human rights as expressed by Jacques Maritain in 1948: "we agree about the rights on condition that no one asks us why" (20). Typically, philosophers protest that this is a scandalous situation, because we should be able to support our moral principles with logical proofs. But Hunt rightly sees that this misses the point that the morality of human rights--and perhaps all moral experience--depends more on emotion than on reason.

Writing in the middle of the 18th century, in the Encyclopedie, Denis Diderot wrote an article on "natural right" (droit naturel), explaining that "the use of this term is so familiar that there is almost no one who would not be convinced inside himself that the thing is obviously known to him. This interior feeling is common both to the philosopher and to the man who has not reflected at all" (26). A long chapter in Hunt's book is devoted to showing how early modern novels--particularly Samuel Richardson's Pamela and Clarissa and Jean-Jacques Rousseau's Julie--cultivated the "interior feeling" favorable to human rights. As Hunt indicates, Diderot seemed to agree with this in his eulogy of Richardson. "His characters are taken from ordinary society. . . the passions he depicts are those I feel in myself." Diderot goes on to write: "One feels oneself drawn to the good with an impetuosity one does not recognize. When faced with injustice, you experience a disgust that you do not know how to explain to yourself" (54-56). Thus, a novel can work its moral effect by drawing the reader into the narrative, feeling emotional resonance with the ordinary human characters of the novel, and thereby cultivating an experience of empathy that supports a humanitarian sentiment favorable to human rights.

The novels of Richardson and Rousseau were put on the papal Index of Forbidden Books, because religious leaders feared that novels were morally corrupting by appealing to human emotions contrary to the traditional Christian teaching that human emotions express a sinful nature that must be suppressed by Church discipline and legal punishment. As I have argued in some other posts, this illustrates the conflict between a metaphysical ethics of cosmic order or divine will and an empirical ethics of human nature or moral sentiment. As Hunt shows, the emergence of the modern idea of human rights shows this conflict in that proponents of human rights were ambivalent as to whether human rights depended on religious metaphysics--all human beings created in God's image--or whether human rights could be rooted in the purely secular experience of human moral emotions. According to Hunt, "the ground of all authority was shifting from a transcendental religious framework to an inner human one" (83). Scottish philosophers like David Hume and Adam Smith were contributing to that shift by their appeal to sympathy and the moral sentiments, which was later adopted by Charles Darwin and then elaborated by other proponents of Darwinian moral psychology.

One clear illustration of how empathy and the moral emotions sustained the movement to human rights is the condemnation of legal torture as a violation of human rights. Traditionally, torture was regarded as a proper means by which legal authorities could extract confessions or punish malefactors. But, then, in the 18th century, the unjustified suffering of the victims of torture was so vividly depicted by critics as a barbarous violation of human dignity, that there was a broad movement in Europe and North America to ban torture as "cruel and unusual punishment." Hunt writes: "Torture ended because the traditional framework of pain and personhood fell apart, to be replaced, bit by bit, by a new framework, in which individuals owned their bodies, had rights to their separateness and to bodily inviolability and recognized in other people the same passions, sentiments, and sympathies as themselves" (112).

In his Second Treatise, John Locke had justified the idea of natural rights with two kinds of principles--"divine workmanship" and "self-ownership." If human beings are created by God in His Image, then they have a divinely created worth that cannot be properly denied by those who would deprive them of their sacred rights. But if each human being is naturally inclined to take possession of himself in mind and body, and if each man can see that all other men assert the same self-possession, then this human experience of self-ownership could be a purely secular ground of human rights. The modern move towards understanding human rights as rooted in the secular human experience of empathy and moral emotions relies on Locke's secular principle of self-ownership without the religious principle of divine workmanship.

Even as Hunt stresses the primacy of emotion in this understanding of human rights, she also recognizes the role of reason. Human rights have a kind of "inner logic" or a "kind of conceivability or thinkability scale" (150). She illustrates this by showing how the French revolutionaries were driven by the logic of human rights to extend the circle of humanitarian concern. Declaring that all human beings are equal in their natural rights inevitably inclines us to expand that equal protection to new groups of human beings. So, for example, once the French revolutionary leaders had granted religious liberty to Protestant Christians, this made it easier to see the need for granting liberty to Jews.

Nevertheless, as Hunt shows, that logic of human rights was slowed in the 19th century by various ideological movements--nationalism, scientific racism, and Marxism--that were opposed to universal human rights. As Hunt indicates, and as I have noted in some other posts, the natural human disposition to empathy is constrained by a natural tribalism, so that we feel less concern for those we regard as strangers or enemies. The Volkish nationalism of Hitler and the Nazis was an extreme manifestation of this natural tribalism.

Eventually, however, the moral revulsion against the barbarous atrocities of the first half of the 20th century provoked a renewal of the human rights movement beginning with the Universal Declaration of Human Rights of 1948. We can continue to see the emotional psychology of human rights in the work of governmental agencies and nongovernmental organizations (like Amnesty International and Human Rights Watch) that publicize those brutal practices around the world that elicit our moral repugnance in the service of human rights.

This emotional resonance of empathy expressed in the disgust with cruelty confirms, Hunt concludes, the natural grounding of human rights in human moral emotions. "The history of human rights shows that rights are best defended in the end by the feelings, convictions, and actions of multitudes of individuals, who demand responses that accord with their inner sense of outrage" (213). "The process had and has an undeniable circularity to it: you know the meaning of human rights because you feel distressed when they are violated. The truths of human rights might be paradoxical in this sense, but they are nonetheless still self-evident" (214).

This history of human rights shows, Hunt explains, the complex interaction of genetic nature, neural structures, and cultural history.

"Needless to say, empathy was not invented in the eighteenth century. The capacity for empathy is universal because it is rooted in the biology of the brain; it depends on a biologically based ability to understand the subjectivity of other people and to be able to imagine their inner experiences are like one's own. . . ."

"Normally, everyone learns empathy at an early age. Although biology provides an essential predisposition, each culture shapes the expression of empathy in its own particular fashion. Empathy only develops through social interaction; therefore, the forms of that interaction configure empathy in important ways. In the eighteenth century, readers of novels learned to extend their purview of empathy" (39).

The Darwinian Biology of Human Rights

A Darwinian analysis of the modern conception of human rights would turn on at least two main points. The first point would be the primacy of moral emotions in our grasp of human rights. The second would be the need for analyzing human rights as passing through three levels of human moral experience: generic human nature, specified human history, and individual human judgment.

The founding document for the modern human rights movement is the Universal Declaration of Human Rights. The Economic and Social Council of the United Nations established a Commission on Human Rights and mandated that it draw up an international bill of rights. The Commission worked on this for two years, from January 1947 to December 1948, when the Third General Assembly of the UN adopted the Universal Declaration.

A fascinating study of the drafting of the Declaration, based on the extensive records of the Commission, is Johannes Morsink's The Universal Declaration of Human Rights: Origins, Drafting, & Intent (1999). Recently, Morsink has published a second book elaborating the philosophic grounds implicit in the document--Inherent Human Rights: Philosophical Roots of the Universal Declaration (2009). Morsink argues that the Declaration assumes a "doctrine of inherent human rights," which rests on two complementary theses about the universality of human rights--the metaphysical universality of human rights as inherent in the human person from birth and the epistemological universality of the outrage felt towards brutality like that of the Nazis as expressing the universal conscience of mankind. He defends "moral intuitionism" as the best philosophic position for understanding the Declaration.

Although I generally agree with Morsink, I think that his unreasonable fear of "essentialism" leads him to play down the importance of human biological nature and the evolved moral emotions as expressed in the Declaration. I also think he is not as critical as he should be in considering some of the dubious rights asserted in the Declaration.

There continues to be great debate over the effectiveness and wisdom of the Declaration and the international human rights movement that it has fostered. But in some respects, its massive influence in the global history of the past sixty years is evident. A large body of international law has been formed to implement the Declaration. Hundreds of human rights groups--like Amnesty International and Human Rights Watch--have millions of members around the world. The governments of the world are under constant scrutiny for their human rights records.

The drafting of the Universal Declaration was in itself a remarkable event, because for the first time in human history, representatives of societies from around the world were able to agree on some universal principles of global morality. From the beginning, many people warned that it was impossible to formulate any universal principles of morality. For example, the American Anthropological Association sent a long statement to the Commission suggesting that the cultural relativism of morality would subvert any attempt to agree on any supposed universal morality; and they warned against the ethnocentrism of imposing Western cultural conceptions of rights on the rest of the world. The Universal Declaration and the human rights movement continue to be criticized today for failing to recognize the cultural relativity of all values and the dangers of asserting the universality of ethnocentric values.

Here is how the Declaration begins, with the first two recitals of the Preamble:

"(1) Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,
"(2) Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people."

Article 1 declares: "All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood."

The reference to "barbarous acts which have outraged the conscience of mankind" reminds us, of course, that the Declaration was largely an expression of shared moral revulsion against the Holocaust and the other horrors of Nazism in World War II. Morsink is insightful in showing how the drafting of the document can only be explained as an expression of a universal repugnance towards the atrocities of Nazism. The phrase "conscience of mankind" generalizes from the feelings of outrage that people around the world felt in response to the radical evils of Nazism. Thus, the Universal Declaration of Human Rights shows us how we derive "rights from wrongs" (a phrase used as the title of a book by Alan Dershowitz). That is to say, we formulate "rights"--justified entitlements to special treatment--from our experience of shocking injustices. The Declaration shows how moral outrage against atrocities expresses a universal morality that can be formulated as human rights rooted in the inherent dignity of all human beings.

While the Commission on Human Rights was drafting the Declaration, UNESCO sponsored a survey of thinkers and writers who were asked to offer advice on the philosophic basis of human rights. Some of their responses were collected into a book with an Introduction by Jacques Maritain--Human Rights: Comments and Interpretations (1949). Maritain described the book as "devoted to the rational interpretation and justification of those rights of the individual which society must respect and which it is desirable for our age to strive to enumerate more fully" (9). He reports: "at one of the meetings of a UNESCO National Organization where human rights were being discussed, someone expressed astonishment that certain champions of violently opposed ideologies had agreed on a list of those rights. 'Yes,' they said, 'we agree about the rights but on condition that no one asks us why.' That 'why' is where the argument begins."

Maritain observes that the philosophic debate among those surveyed by UNESCO seemed to come down to a disagreement between those who accepted the idea of "Natural Law" and those who rejected it:

"In the eyes of the first the requirements of his being endow man with certain fundamental and inalienable rights antecedent in nature, and superior, to society, and are the source whence social life itself, with the duties and rights which that implies, originates and develops. For the second school man's rights are relative to the historical development of society, and are themselves constantly variable and in a state of flux; they are a product of society itself as it advances with the forward march of history" (13).

Although Maritain sees no theoretical resolution to this debate, he suggests that the dispute might be moderated if the disputants could see the partial truth in the opposing position. Proponents of natural law should distinguish between rights that secure a "prime necessity" and those that secure a "secondary necessity," while conceding that our knowledge of both depends on the evolution of moral consciousness in history. On the other side, opponents of natural law should see that while many rights are historically conditioned, there are "more primitive rights" that are necessary for the good order of any human society whatsoever.

Catholic Thomists like Maritain see natural law as grounded in God and Nature--or, as the American Declaration of Independence says, "the Laws of Nature and Nature's God." In the drafting of the Universal Declaration, Charles Malik of Lebanon was the leading spokesman for this Catholic Thomist position. Malik proposed an article on the family that read: "The family deriving from marriage is the natural and fundamental group unit of society. It is endowed by the Creator with inalienable rights antecedent to all positive law and as such shall be protected by the State and Society." The drafters rejected the second sentence, because they wanted to avoid any religious invocations of God as the source of rights. But they accepted the first sentence affirming the naturalness of the family as the fundamental unit of society, and this became Article 16 of the Declaration. At least implicitly, then, they accepted a purely secular version of natural law thinking, although this Article 16 is the only place where the Declaration refers explicitly to "nature."

At one point in the drafting process, there was another reference to nature. It was proposed that Article 1 should declare that all human beings "are endowed by nature with reason and conscience." As an alternative to this language, the Brazilian delegation proposed: "Created in the image and likeness of God, they are endowed with reason and conscience . . ." Similarly, the Dutch delegation proposed that the first recital of the Preamble should state: "Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family, based on man's divine origin and immortal destiny, is the foundation of freedom, justice, and peace in the world."

These proposals for religious language about human beings as created in God's image provoked intense debate. Some of the drafters saw a stark opposition between God and nature as alternative sources for human reason and conscience. Bogomolov of the USSR attributed the phrase "by nature" to "French materialist philosophers." Finally, the Brazilians agreed to withdraw their religious language if the phrase "by nature" were dropped, and a consensus formed on this resolution of the dispute.

At one point, a proposed amendment would have changed "by nature" to "by their nature," which conformed to Malik's recollection that "the intention of the Commission on Human Rights had not been to imply that man was endowed with reason and conscience by an entity beyond himself" (UDHR, 287). It is regrettable, I think, that the drafters did not go with this phrase "by their nature," because this would have clearly suggested their understanding that the source of human rights is neither a transcendent God nor a transcendent Nature, but human nature.

But then how exactly does "human nature" give rise to "human rights"? It's easy to see how legal rights are created by legal enactment. But it's harder to see how moral rights can exist as standards for judging legal systems. Legal positivists would say that the only rights are legal rights, and that the idea of human rights as moral rights that exist independently of positive law is pure fiction.

How is it that all human beings are "born" with "inherent dignity" and equal human rights? How does a physical birth as a human being translate into a moral birth as a being endowed with rights? Moral philosophers have tried to find a rational proof for the existence of moral rights or of any standard of right and wrong. But philosophers have never reached any agreement on any such rational proof.

I agree with Morsink that this futile quest of philosophers to find a rational proof for moral standards indicates the fundamental mistake in assuming that morality is a product of pure reason. The shared moral outrage against Nazi atrocities that motivated the drafting of the Universal Declaration illustrates how our moral experience arises not from pure reason alone but from moral emotions, and particularly from emotions of disapproval and disgust.

Even as the memories of World War II and the Nazis fade into distant history, we can still see how the emotions of moral revulsion support the idea of human rights. Go to the websites of Amnesty International and Human Rights Watch and scan some of their reports. Mostly what these organizations do is simply prepare reports that describe cruelty around the world--torture, rape, murder, slavery, and so on. They don't offer any logical arguments to prove that such behavior is wrong, because they assume that a vivid description of cruel behavior will elicit powerful emotions of disapproval. Those they accuse of perpetrating the cruelty will respond by trying to persuade us that the reports from these human rights groups are factually inaccurate.

So reason does have a role to play here, because we need good rational judgment in gathering and assessing information about what is happening. But once we're confident about the facts of the case, our moral judgment of right or wrong depends on our emotional reaction of approval or disapproval. The Universal Declaration is right: to recognize human rights, we need both "reason and conscience"--reason for factual judgments of truth and falsity and conscience for emotional judgments of right and wrong. Reason also allows us to generalize our moral emotions into moral rules. So that, for example, we judge that as a rule human beings have a right to life because the killing of innocent people would elicit moral emotions of disapproval from any normal human being.

This view of moral judgments as ultimately based on emotions is best elaborated in the Darwinian ethics of Edward Westermarck, which best explains the human nature of human rights. As animals formed by natural selection for social life, Westermarck argues, we are inclined to feel resentment toward conduct that we perceive as painful, and kindly emotion toward conduct that we perceive as pleasurable. The mental dispositions to feel such emotions evolved in animals by natural selection because these emotions promote survival and reproductive fitness: resentment helps to remove dangers, and kindly emotion helps to secure benefits. For the more intelligent animals, these dispositions have become conscious desires to punish enemies and reward friends.

Moral disapproval, for Westermarck, is a form of resentment, and moral approval is a form of kindly emotion. In contrast to the non-moral emotions, however, the moral emotions show apparent impartiality. (Here one can see the influence of Adam Smith's idea of the "impartial spectator.") If I feel anger toward an enemy or gratitude toward a friend, these are private emotions that express my personal interests. In contrast, if I declare some conduct of a friend or enemy to be good or bad, I implicitly assume that the conduct is good or bad regardless of the fact that the person in question is my friend or my enemy. This is because it is assumed that when I call that conduct good or bad, I would apply the same judgment to other people acting the same way in similar circumstances, independently of how it would affect me. This apparent impartiality characterizes the moral emotions, Westermarck reasons, because social life gives birth to moral consciousness. Moral rules originated as tribal customs that expressed the emotions of an entire society rather than the personal emotions of particular individuals. Thus, moral rules arise as customary generalizations of emotional tendencies to feel approval for conduct that causes pleasure and disapproval for conduct that causes pain.

Although Westermarck stresses the moral emotions as the ultimate motivation for ethics, he also recognizes the importance of reason in ethical judgment. He follows Hume, Smith, and Darwin in arguing that ethical experience combines reason and emotion. Emotions, including the moral emotions, depend upon beliefs, and those beliefs can be either true or false. For example, I might feel the moral emotion of disapproval toward someone because I believe he has injured his friends, but if I discover by reflection that the injury was accidental and not intentional, or that his action did not actually cause any injury at all, my emotion of disapproval vanishes. Moreover, since our moral judgments are generalizations of emotional tendencies, these judgments depend upon the inductive use of human reason in reflecting on our emotional experience.

Westermarck's emphasis on the variability, relativity, and subjectivity of ethical experience has provoked some critics to complain that he does not recognize any enduring or universal standards of ethical conduct. It seems to these critics that Westermarck's Darwinian ethics is radically arbitrary. And so it might seem that Westermarck would be on the side of the historical or cultural relativists who deny the very possibility of universal human rights.

Yet Westermarck clearly relies on the uniformity of human nature as a ground for universal ethical principles. One can see this in his massive two-volume survey of the cross-cultural history of morality--The Origin and Development of the Moral Ideas--which shows both the unity and diversity of human moral experience. (Don Brown's book Human Universals (1991) shows that some anthropologists are reviving Westermarck's work.) Despite radical differences in ethical judgments, Westermarck concludes, "the general uniformity of human nature accounts for the great similarities which characterize the moral ideas of mankind." Such uniformity must exist, he argues, because despite individual and social variation, human beings belong to the same animal species and therefore display similarities in their mental constitution. Thus, Westermarck's ethical theory does not promote nihilism or irrationalism, for he sees the moral emotions that constitute the basis for his ethics as manifesting the natural propensities of a universal human nature. This appeal to the natural human inclinations makes his account of ethics a restatement of natural law reasoning, but one rooted in an empirical Darwinian science of human nature.

Consider how Westermarck's reasoning would apply to the concept of human rights. A right, he would say, is rooted in the emotion of moral disapproval. To have a right to do something means that it is not wrong to do it. So, for example, that someone has a right to life means that it would be wrong for other people to prevent him from living, that it is their duty to refrain from killing him. Similarly, we could formulate a list of natural moral rights that correspond to those natural human capabilities that elicit sympathetic emotions of approval.

Morsink interprets human rights as corresponding to the "transcultural species-wide capabilities normally inherent in human beings" (IHR, 38). He relies on Martha Nussbaum's "capabilities approach" to justice. She identifies ten "central human capabilities" of which the fulfillment constitute full human flourishing: (1) life, (2) bodily health, (3) bodily integrity, (4) senses, imagination, thought, (5) emotions, (6) practical reason, (7) affiliation, (8) other species, (9) play, (10) control over one's environment. Morsink shows how the articles of the Universal Declaration correlate to Nussbaum's ten capabilities and argues that we should read the Universal Declaration as saying that all human beings have equal rights to develop the ten human functional capabilities.

There is a lot of overlap between Nussbaum's list of ten human capabilities and my list of twenty natural human desires. Both lists correspond to the moral regularities of evolved human nature that arise in Westermarck's Origin and Development of the Moral Ideas.

One problem with Morsink's argument, however, is that he fails to see the distinction between the generic propensities of human nature and the specific entitlements of human rights. Human rights can be humanly universal insofar as they satisfy the natural desires of evolved human nature. But these rights are also culturally contingent insofar as their specific entitlements depend on cultural conditions and individual judgments that are constrained but not determined by human nature.

So, for example, we can agree with the Universal Declaration that family life and marriage are natural and should be protected as human rights, because we can see that human beings as a species are familial animals. At birth, children depend on parental care, and we can agree with Darwin that natural selection has favored the social instincts of parent-child bonding as the primal root of all human sociality. We can see, then, that the physical birth of a child becomes a moral birth insofar as the parents (or other adults assuming parental roles) invest their child with the dignity that comes from their emotional attachment to the child. We know that there are complex neurophysiological mechanisms for reinforcing parental attachment to children, and these same mechanisms can be extended to other human beings.

And yet the Universal Declaration speaks of family life and marriage in generic terms without specifying any particular form of marriage or familial arrangements, which are left up to the cultural circumstances of particular societies. Whether we favor monogamous or polygamous marriages, for example, will depend upon variable cultural history.

As I have indicated in my posts on the incest taboo, Westermarck is most famous for his Darwinian account of the moral rules surround incest avoidance, which illustrates the natural universality and cultural variability of morality. We are naturally inclined to learn to avoid sex with those with whom we have been reared from an early age. So in all human societies, there is a strong tendency to prohibit the marriage of siblings or of parents and children, because this tends to arouse strong emotions of repugnance. But beyond the nuclear family, there is great variation in marriage rules. In some societies, the marriage of cousins is encouraged, while in others it is prohibited.

We should also note that not only is there variation accross societies, there is also variation across individuals. The tendency to learn incest avoidance is a natural propensity for most human beings. But some individuals will not show this propensity. We recognize such natural propensities as "normally" present in human beings. But the temperamental variability of human beings will always produce some people who lack these normal propensities. In extreme cases--psychopaths, for example--we might see human beings who have none of the normal moral emotions, and we must treat these people as moral strangers. The Nazis who carried out the Holocaust showed a "disregard and contempt for human rights" so that their natural human sympathy was somehow blunted or blinded by individual temperament or social circumstances.

One common way in which the moral sense is blunted or blinded is through xenophobia--the natural human disposition to care more for those close to us than for strangers, to distinguish friends and enemies, those in our group and those outside. In extreme cases--as with Nazi Germany--some human beings are dehumanized and thus treated as outside the circle of human sympathy.

The modern human rights movement is obviously an attempt to extend the circle of our moral emotions to embrace all of humanity, or as the Declaration says, "all members of the human family." A Darwinian ethics like that developed by Westermarck allows for such humanitarian or cosmopolitan ethics but within the realistic limits set by human nature.

Darwin saw a history of moral progress in which human sympathy has been gradually extended from the family to small tribes, then to large nations, and eventually to all of humanity. In the Descent of Man, he wrote: "As man advances in civilization, and small tribes are united into larger communities, the simplest reason would tell each individual that he ought to extend his social instincts and sympathies to all the members of the same nation, though personally unknown to him. This point being once reached, there is only an artificial barrier to prevent his sympathies extending to the men of all nations and races." Robert Wright used this quotation as the epigram for his book Nonzero in which he surveyed the entire history of the world as an ever-expanding series of nonzero-sum games of cooperation that moves ultimately to a global community. Darwin believed that this advance of sympathy would eventually extend even beyond humanity to include the lower animals, so that we would see "the most noble attribute of man" in the "disinterested love for all living creatures."

Although this can appear to be a utopian view of morality, I think Darwin indicates that he is realistic in recognizing that our moral concern will always tend to favor those close to us. Westermarck indicates this clearly, and biologists like Frans de Waal have confirmed it. Morsink recognizes this when he speaks of how human rights and duties move outward through a series of concentric circles. We care first and most strongly for ourselves and those bound to us by ties of kinship and friendship. Our moral concern can expand to ever-wider circles to include our extend kin, our clan, our group, our nation, all of humanity, and perhaps even all life forms. But the expansion to the wider circles will occur only in those cases where our provisioning of the inner circles is secure.

Here is where the utopian cosmopolitanism of someone like Peter Singer fails (as I have indicated in chapter 9 of Darwinian Conservatism). Singer is a moral rationalist, who insists--against those like Westermarck who stress the primacy of moral emotions--that morality is ultimately based on pure reason. And the logic of moral reasoning, according to Singer, leads to one fundamental principle--the impartial consideration of the similar interests of all sentient creatures. So, for example, it is immoral to spend money caring for our dying parents that could have been better spent to save distant strangers from starvation. Singer himself admits that he acted immorally when he spent money to care for his dying mother who was suffering from Alzheimer's, because he should have given this money to Oxfam to save the lives of some strangers somewhere in the world. That almost everyone recognizes the absurdity in such positions testifies to the emotional reality of our moral concern as naturally constrained by love of one's own.

Similarly, the human rights movement becomes utopian when it strives for a new world order in which patriotism has been abolished for the sake of absolute cosmopolitanism. To some degree, and in some circumstances, our moral emotions can be extended to "all members of the human family." But that humanitarian morality will always be limited by our naturally predominant concern for ourselves and those close to us.

The Genetic Basis of Human Rights

The modern human rights movement begins with The Universal Declaration of Human Rights of 1948. The idea of human rights would seem to depend on the idea of human nature. Although the Declaration never speaks of "human nature," it does refer once to nature in declaring that the family "natural"(Article 16). Moreover, the references to the "inherent dignity" of "all members of the human family" and the declaration that "all human beings are born free and equal in dignity and rights" implies some shared human nature that is the source of human rights.

Originally, Charles Malik a Lebanese Christian and Thomist proposed the following language for Article 16: "The family deriving from marriage is the natural and fundamental group unit of society. It is endowed by the Creator with inalienable rights antecedent to all positive law." The drafters accepted the first sentence but rejected the second, because they wanted a purely secular statement that did not depend on religious belief. Similarly, proposals to refer in Article 1 of the Declaration to human beings as "created in the image and likeness of God" were not adopted. According to someone like Richard Weikart, in his warnings about the "Darwin to Hitler" connection, disregarding the traditional Judeo-Christian doctrine of human beings as created in God's image makes healthy morality impossible. But clearly, the drafters of the Declaration disagreed, because they thought that the shared repulsion towards Nazi barbarism and the determination to declare a universal morality of human rights that would condemn such barbarism manifested a natural morality that did not depend on religious belief.

This cosmopolitan morality of human rights must somehow be grounded in human biological nature. And yet many of the theorists of human rights are nervous about recognizing such an appeal to human nature because they fear that this would require an indefensible "essentialism." The problem here, as I suggested in a post from a few weeks ago, arises from a false story about "essentialism"--the story that beginning with Aristotle, biological species were regarded as absolutely eternal and invariable in their logically defined "essences."

This will be the first of a series of posts on how a Darwinian conception of human nature supports the modern conception of human rights.

In at least one of the recent documents on human rights, the biological basis of human rights is explicitly recognized. The Universal Declaration on the Human Genome and Human Rights was adopted by UNESCO in 1997 and then ratified by the General Assembly of the United Nations in 1998. The text can be found here.

The first four articles are put under the title "Human dignity and the human genome":

Article 1
The human genome underlies the fundamental unity of all members of the human family, as well as the recognition of their inherent dignity and diversity. In a symbolic sense, it is the heritage of humanity.

Article 2
a. Everyone has a right to respect for their dignity and for their rights regardless of their genetic characteristics.
b. That dignity makes it imperative not to reduce individuals to their genetic characteristics and to respect their uniqueness and diversity.

Article 3
The human genome, which by its nature evolves, is subject to mutations. It contains potentialities that are expressed differently according to each individual's natural and social environment, including the individual's state of health, living conditions, nutrition and education.

Article 4
The human genome in its natural state shall not give rise to financial gains.

Here we can see much of the complexity and tension in appealing to human biology as a ground for human rights. Universal human rights assume a "fundamental unity of all members of the human family," which in turn assumes an underlying unity in the human genome, because membership in the human species requires some shared genetic basis. But the human genome brings about not only the unity of humanity but also its diversity. No two human beings are genetically identical. So even if human beings are roughly equal at birth in being identifiably human, they are not completely identical. Here we can see the implicit worry that some human beings might be excluded from the human family because of genetic differences that some people would consider abnormal or inferior.

We can also see here the fear of genetic reductionism. Although being genetically human is the precondition for being treated with the dignity that human beings deserve, human beings are not fully reducible to human genetics.

The human genome is recognized as a product of evolution and thus subject to evolutionary change through mutations. But there is enough genetic stability to sustain the reality of the human species.

That genetic humanity consists of potentialities that are diversely expressed in each individual through the interaction with the natural and social environment of the individual, which includes physical conditions, bodily functioning, and social learning.

Human genes by themselves do nothing. They shape human life only though genetic potentialities that work through complex interactions with the physical and social world. That's why human biology is much more than genetics. The biological nature of human beings depends on the coevolution of innate tendencies, social history, and individual judgment.

The universality of human genetic nature allows for universal human rights. But the moral history of human rights will reflect the complex contingencies of social and political history.

That we can treat human beings with "dignity" depends on certain natural moral sentiments and on practical judgments about how best to express those sentiments. That requires more thought about how Darwinian science might support the modern language of human rights as a language of cosmopolitan morality.

The Cambridge Conference on Natural Law: Comments on the Papers

I will be participating in a conference on natural law at the University of Cambridge on March 4th, at the Lecture Theatre LG 18, Faculty of Law.

The papers for the conference can be found in a Dropbox file.

My paper is entitled "The Darwinian Science of Thomistic Natural Law."

Here are my comments on the papers, which I have circulated among all the participants.

COYLE ON SOCIABILITY AND NATURAL LAW

Sean Coyle (“Can Natural Laws be Derived from Sociability?”) argues that Aristotle does not derive natural law from human sociability, because Aristotle “has no natural law theory” (1).  To consider the derivation of natural law from human sociability, he claims, one must look to those Christian philosophers who influenced Thomas Aquinas—particularly, Augustine.

 

I don’t find this persuasive.  It is true that Aristotle rarely uses the term “natural law.”  But he does speak of natural right or what is right or just by nature in the Nicomachean Ethics (1134b17-32).  Moreover, in the Rhetoric, he explicitly speaks about “natural law” (1373b1-22).  As Coyle indicates by his citations, much of Aquinas’s writing about natural law is in his commentaries on Aristotle.

 

Coyle ignores Aquinas’s reliance on Aristotle’s biological writings (and on Albert’s biology that builds on Aristotle) in explaining the sociability of the social and political animals, including human beings.  This is a big part of my paper.  I realize, of course, that some people will want to argue that I am wrong about this.

 

Coyle writes: “moral theory cannot rest only upon enlightened self-interest or self-interest modified by the interests of others. Such reciprocity is not morality, but merely the realization that I cannot have the things I want unless you have them too” (4).  This overlooks Aquinas’s argument that the starting point for the natural inclinations is self-love, because each person by a necessity of natural instinct must love himself, and each person extends that love of himself to others as extensions of himself (Arnhart, 15).

 

Coyle rightly emphasizes the importance for Aquinas of the order of natural inclinations in ST, I-II, q. 94, a. 2.  But he does not notice that this all comes from Aristotle’s biological writing.  And he does not notice the absence of any Biblical citations here.  Of course, Coyle might want to dispute my reading of 94/2.

 

In speaking about Aquinas on Christian charity and loving one’s enemies, Coyle (8) is silent about Aquinas’s rejection of loving enemies in arguing for the “special virtue of vengeance” (Arnhart, 62).

 

COYLE AND McBRIDE ON EXCEPTIONLESS NORMS

 

Coyle and Nicholas McBride (“Equality, Flourishing, and the Existence of Legal Absolutes”) defend the existence of exceptionless norms as part of Thomistic natural law. I doubt this.  I agree that there are enduring patterns in human life that reflect a universal human nature.  But I also see such variability in the temperamental nature of individuals and in biological historicity that make absolutely exceptionless norms unlikely (Arnhart 18-27).

 

Coyle implies that Aristotle thought there were exceptionless norms (9).  But this ignores Aristotle’s observation that while there is a natural standard of justice or right, “all is changeable” (1134b30).  Aquinas agrees.  Coyle even refers to Aquinas’s declaration that while natural law is generally the same for all human beings, as soon as one moves to particular conclusions for particular circumstances, exceptions appear, and thus the general principles are only “for the most part” (ST, I-II, q. 94, a. 4).

 

Coyle suggests that Aquinas believes that not stealing and not lying are exceptionless norms (9).  But Aquinas says that it is lawful to steal out of necessity (II-II, q. 66, aa. 6-8), and that it is “lawful to hide the truth prudently, by keeping it back” (II-II, q. 110, a. 3, ad 4).  Coyle hides this latter remark in a footnote.

 

Coyle says that not killing the innocent is another example of an exceptionless norm.  But he is silent about Aquinas’s claim that God’s command to Abraham to kill Isaac shows that killing the innocent can be right if God commands it (II-II, q. 64, a. 6, ad 1).

 

Moreover, everything Aquinas says about the virtue of prudence as the judgment of what should be done in particular circumstances suggests the absence of exceptionless norms.

 

McBride identifies the prohibition against torture as the classic example of exceptionless norms (2, 8).  But he does not explain the legal history or moral psychology of this rule against torture.

 

One clear illustration of how sympathy and the moral emotions have sustained the movement to human rights is the condemnation of legal torture as a violation of human rights.  Traditionally, torture was regarded as a proper means by which legal aauathorities could extract confessions or punish malefactors.  But, then, in the 18^th century, the unjustified suffering of the victims of torture was so vividly depicted by critics as a barbarous violation of human dignity, that there was a broad movement in Europe and North America to ban torture as “cruel and unusual punishment.” 

 

Historian Lynn Hunt writes: “Torture ended because the traditional framework of pain and personhood fell apart, to be replaced, bit by bit, by a new framework, in which individuals owned their bodies, had rights to their separateness and to bodily inviolability and recognized in other people the same passions, sentiments, and sympathies as themselves” (Inventing Human Rights, 112).

 

In his Second Treatise, John Locke had justified the idea of natural rights with two kinds of principles--"divine workmanship" and "self-ownership." If human beings are created by God in His Image, then they have a divinely created worth that cannot be properly denied by those who would deprive them of their sacred rights. But if each human being is naturally inclined to take possession of himself in mind and body, and if each man can see that all other men assert the same self-possession, then this human experience of self-ownership could be a purely secular ground of human rights. The modern move towards understanding human rights as rooted in the secular human experience of empathy and moral emotions relies on Locke's secular principle of self-ownership without the religious principle of divine workmanship.

Even as Hunt stresses the primacy of emotion in this understanding of human rights, she also recognizes the role of reason. Human rights have a kind of "inner logic" or a "kind of conceivability or thinkability scale" (150). She illustrates this by showing how the French revolutionaries were driven by the logic of human rights to extend the circle of humanitarian concern. Declaring that all human beings are equal in their natural rights inevitably inclines us to expand that equal protection to new groups of human beings. So, for example, once the French revolutionary leaders had granted religious liberty to Protestant Christians, this made it easier to see the need for granting liberty to Jews.

Nevertheless, as Hunt shows, that logic of human rights was slowed in the 19th century by various ideological movements--nationalism, scientific racism, and Marxism--that were opposed to universal human rights. The natural human disposition to empathy is constrained by a natural tribalism, so that we feel less concern for those we regard as strangers or enemies. The Volkish nationalism of Hitler and the Nazis was an extreme manifestation of this natural tribalism.

Eventually, however, the moral revulsion against the barbarous atrocities of the first half of the 20th century provoked a renewal of the human rights movement beginning with the Universal Declaration of Human Rights of 1948. We can continue to see the emotional psychology of human rights in the work of governmental agencies and nongovernmental organizations (like Amnesty International and Human Rights Watch) that publicize those brutal practices around the world that elicit our moral repugnance in the service of human rights.

This emotional resonance of empathy expressed in the disgust with cruelty confirms, Hunt concludes, the natural grounding of human rights in human moral emotions. "The history of human rights shows that rights are best defended in the end by the feelings, convictions, and actions of multitudes of individuals, who demand responses that accord with their inner sense of outrage" (213). "The process had and has an undeniable circularity to it: you know the meaning of human rights because you feel distressed when they are violated. The truths of human rights might be paradoxical in this sense, but they are nonetheless still self-evident" (214).

This history of human rights shows, Hunt explains, the complex interaction of genetic nature, neural structures, and cultural history.

"Needless to say, empathy was not invented in the eighteenth century. The capacity for empathy is universal because it is rooted in the biology of the brain; it depends on a biologically based ability to understand the subjectivity of other people and to be able to imagine their inner experiences are like one's own. . . ."

"Normally, everyone learns empathy at an early age. Although biology provides an essential predisposition, each culture shapes the expression of empathy in its own particular fashion. Empathy only develops through social interaction; therefore, the forms of that interaction configure empathy in important ways. In the eighteenth century, readers of novels learned to extend their purview of empathy" (39).

Hunt refers to biological research on the neuroscience of empathy in the brain as showing the roots of the moral emotions in evolved human biology.  This research also shows that some people—psychopaths—have abnormal brains so that they cannot feel these moral emotions, and thus they have no moral sense, because they don’t feel guilt, shame, or care for the suffering of others.  There is no deficit in their capacity for abstract reasoning—they are often very intelligent—so this shows that Kant was wrong to think that moral experience was based on pure reason alone without any emotion.

POSTEMA ON MATTHEW HALE

Gerald Postema’s paper—“Hale’s Common-Law Naturalism”—is an instructive account of Matthew Hale’s understanding of natural law, divine law, positive law, and common law.

I do wonder, however, why Postema is silent about those notorious decisions of Hale—particularly, those regarding witchcraft and rape—that cast doubt on Hale’s legal judgment and whether he rightly understood natural law.

 

Hale has had a pernicious influence on the legal history of both witchcraft and rape.  In both cases, he showed a misogynistic prejudice that violated the natural law principle of equal treatment under law.  Can Postema defend him against this criticism?

 

One of Hale’s most influential legal standards concerns rape: “it must be remembered . . . that it is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent.”  In fact, this is false.  During Hale’s own lifetime, there were few convictions for rape because of the obstacles facing women who might lodge a rape charge, and because of the likelihood of acquittals.  Moreover, while Hale was deeply skeptical of women claiming to have been raped, he was remarkably credulous in accepting the dubious claims of those who pretended to be victims of women practicing witchcraft.  As Keith Thomas said in his history of magic in 16^th and 17^th century England, “the accusation of witchcraft was easy to make and hard to disprove.”

 

In 1662, Hale presided over the trial of two women from Lowestoft who were said to be witches.  By 1662, many people were becoming skeptical of the reality of witchcraft, and as early as 1575 some people who claimed to have been bewitched were tried for perpetrating a hoax.  And yet Hale dismissed the evidence in the Lowestoft case that those claiming bewitchment were hoaxers. 

 

In the trial report, Hale’s charge to the jury was summarized: “Whereupon, the judge . . . only this acquainted them, that they had two things to inquire after. First, whether or no these children were bewitched? Secondly, whether the prisoners at the bar were guilty of it?  That there were such creatures as witches he made no doubt at all; for first, the scriptures had affirmed so much.  Secondly, the wisdom of all nations had provided laws against such persons, which is an argument of their confidence of such a crime.”  The jury returned a verdict of guilty, and the two women were hanged as witches.

 

The report of this trial and Hale’s judgment in the case was immensely influential in subsequent trials for witchcraft, partly because of Hale’s high reputation.  The report was cited at the Salem witch trials.

 

Hale cited the Bible as the evidence of divine law commanding the execution of witches. “Thou shalt not suffer a witch to live” (Exodus 22:18).  Like the Biblical teachings on slavery and homosexuality, here is a case of where we need the natural law to correct the Bible (Arnhart, 54-62, 73-77).

 

Hale has also had a bad influence on the English law of rape.  He was responsible for the legal rule that husbands cannot be charged with raping their wives.  In Historia Placitorum Coronae, Hale wrote: “the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.”  Amazingly, he offered no citation to support this statement.

 

Many commentators have recognized the absurdity of Hale’s rule.  But when Parliament debated this in 1975, the rule was upheld by MPs who quoted Hale.

 

If this shows Hale’s unreasonable bias against women, does it show his disregard for the natural law principle of equal treatment under law?  Or will Postema argue that I’m mistaken about this?

 

 MURPHY ON THE GENETIC BASIS OF HUMAN RIGHTS

 

James Murphy (“Justifying Human Rights: The Threat and the Promise”) says that those who framed the Universal Declaration of Human Rights in 1948 could agree on a list of human rights, but they could not agree on any philosophical or theological justification for those human rights.

 

As Murphy indicates, some people have argued that the only justification for human rights is theological, and there have been at least two kinds of theological justifications proposed.  The most common is the argument that the idea of human rights is justified by the Old Testament doctrine that all human beings were created in the image of God, which gives all human beings a moral dignity that they would not have without that idea. 

 

The second theological justification is Nicholas Wolterstorff’s argument that the New Testament doctrine that all human beings will be redeemed on the Last Day for an eternal life in friendship with God gives them the dignity that justifies human rights.  (Oddly, this suggests that Wolterstorff does not believe in the doctrine of Hell as the eternal punishment for most human beings.)  Murphy observes that Wolterstorff is a Calvinist, and his theological justification for human rights is Calvinist in that it teaches that human beings as totally depraved by original sin have no merit in themselves, and so whatever human dignity they have comes purely as an unearned gift of God.

 

Murphy argues against Wolterstorff’s theological justification, and Murphy indicates that he prefers the Catholic doctrine of imago Dei as the better theological justification for human rights.

 

And yet Murphy also endorses a third way of justifying human rights—a philosophical justification of human rights as grounded on “our genetic capacities for personhood” that are shared by all human beings as long as they retain the human genome (12).

 

I agree with this third way as a biological justification of human rights founded on our evolved human nature, which appeals to a moral anthropology rather than a moral cosmology.  I see evidence that this kind of biological justification of human rights is implicit in the Universal Declaration of Human Rights of 1948 and explicit in the Universal Declaration on the Human Genome and Human Rights of 1998.  (My thinking about this has been influenced by Johannes Morsink’s two books on the Universal Declaration of Human Rights.)

 

The idea of human rights would seem to depend on the idea of human nature. Although the Universal Declaration of Human Rights never speaks of "human nature," it does refer once to nature in declaring that the family is "natural" (Article 16). Moreover, the references to the "inherent dignity" of "all members of the human family" and the declaration that "all human beings are born free and equal in dignity and rights" implies some shared human nature that is the source of human rights.

Originally, in the drafting of the Universal Declaration, Charles Malik a Lebanese Christian and Thomist proposed the following language for Article 16: "The family deriving from marriage is the natural and fundamental group unit of society. It is endowed by the Creator with inalienable rights antecedent to all positive law." The drafters accepted the first sentence but rejected the second, because they wanted a purely secular statement that did not depend on religious belief. Similarly, proposals to refer in Article 1 of the Declaration to human beings as "created in the image and likeness of God" were not adopted. The drafters of the Declaration thought that the shared repulsion towards Nazi barbarism and the determination to declare a universal morality of human rights that would condemn such barbarism manifested a natural morality that did not depend on religious belief. This cosmopolitan morality of human rights must somehow be grounded in human biological nature.

 

Here is how the Declaration begins, with the first two recitals of the Preamble:

"(1) Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,


"(2) Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people."

Article 1 declares: "All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood."

The reference to "barbarous acts which have outraged the conscience of mankind" reminds us, of course, that the Declaration was largely an expression of shared moral revulsion against the Holocaust and the other horrors of Nazism in World War II.  The phrase "conscience of mankind" generalizes from the feelings of outrage that people around the world felt in response to the radical evils of Nazism. Thus, the Universal Declaration of Human Rights shows us how we derive "rights from wrongs" (a phrase used as the title of a book by Alan Dershowitz). That is to say, we formulate "rights"--justified entitlements to special treatment--from our experience of shocking injustices. The Declaration shows how moral outrage against atrocities expresses a universal morality that can be formulated as human rights rooted in the inherent dignity of all human beings.

 

At one point in the drafting process, there was another reference to nature. It was proposed that Article 1 should declare that all human beings "are endowed by nature with reason and conscience." As an alternative to this language, the Brazilian delegation proposed: "Created in the image and likeness of God, they are endowed with reason and conscience . . ." Similarly, the Dutch delegation proposed that the first recital of the Preamble should state: "Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family, based on man's divine origin and immortal destiny, is the foundation of freedom, justice, and peace in the world."

These proposals for religious language about human beings as created in God's image provoked intense debate. Some of the drafters saw a stark opposition between God and nature as alternative sources for human reason and conscience. Bogomolov of the USSR attributed the phrase "by nature" to "French materialist philosophers." Finally, the Brazilians agreed to withdraw their religious language if the phrase "by nature" were dropped, and a consensus formed on this resolution of the dispute.

At one point, a proposed amendment would have changed "by nature" to "by their nature," which conformed to Malik's recollection that "the intention of the Commission on Human Rights had not been to imply that man was endowed with reason and conscience by an entity beyond himself."  It is regrettable, I think, that the drafters did not go with this phrase "by their nature," because this would have clearly suggested their understanding that the source of human rights is neither a transcendent God nor a transcendent Nature, but human nature.

In at least one of the recent documents on human rights, the biological basis of human rights in human nature is explicitly recognized. The Universal Declaration on the Human Genome and Human Rights was adopted by UNESCO in 1997 and then ratified by the General Assembly of the United Nations in 1998.

The first three articles are put under the title "Human dignity and the human genome":

Article 1
“The human genome underlies the fundamental unity of all members of the human family, as well as the recognition of their inherent dignity and diversity. In a symbolic sense, it is the heritage of humanity.”

Article 2
“a. Everyone has a right to respect for their dignity and for their rights regardless of their genetic characteristics.
“b. That dignity makes it imperative not to reduce individuals to their genetic characteristics and to respect their uniqueness and diversity.”

Article 3
“The human genome, which by its nature evolves, is subject to mutations. It contains potentialities that are expressed differently according to each individual's natural and social environment, including the individual's state of health, living conditions, nutrition and education.”

Here we can see much of the complexity and tension in appealing to human biology as a ground for human rights. Universal human rights assume a "fundamental unity of all members of the human family," which in turn assumes an underlying unity in the human genome, because membership in the human species requires some shared genetic basis.

And yet the human genome brings about not only the unity of humanity but also its diversity. No two human beings are genetically identical. Even identical twins are not really identical.  So even if human beings are roughly equal at birth in being identifiably human, they are not completely identical. Here we can see the implicit worry that some human beings might be excluded from the human family because of genetic differences that some people would consider abnormal or inferior.

We can also see here the fear of genetic reductionism. Although being genetically human is the precondition for being treated with the dignity that human beings deserve, human beings are not fully reducible to human genetics.

The human genome is recognized as a product of evolution and thus subject to evolutionary change through mutations. But there is enough genetic stability to sustain the reality of the human species.

That genetic humanity consists of potentialities that are diversely expressed in each individual through the interaction with the natural and social environment of the individual, which includes physical conditions, bodily functions, and social learning.

Human genes by themselves do nothing. They shape human life only though genetic potentialities working through complex interactions with the physical and social world. That's why human biology is much more than genetics. The biological nature of human beings depends on the coevolution of innate tendencies, social history, and individual life history.

The universality of human genetic nature allows for universal human rights. But the moral history of human rights will reflect the complex contingencies of social and political history.

We can see then that this Universal Declaration on the Human Genome and Human Rights of 1998 supports Murphy’s claim that human rights can be rooted in the uniquely human capacities of the human genome.  Religious believers like Murphy can see that human genome as bearing God’s image.  But even those who lack such religious belief can see the grounding of human rights in human nature.  Thus, natural law can stand on its own natural ground independently of any belief in divine law (Arnhart, 69-81).

 

STONER ON LEGISLATORS AND JUDGES

James Stoner argues that we can rightly distinguish the work of the legislator from the work of the judge in American constitutionalism by applying Aquinas’s distinction between human law as a determination of natural law and human law as a deduction from natural law: the American legislator is concerned with determination, while the American judge is concerned with deduction.

Stoner’s paper is confusing, however, in that he seems to contradict himself.  He says that “determination ought to belong to the legislative power alone” (12).  But he also says that there is a “mixture of deduction and determination in legislative activity” (18).  He says that “the sort of reasoning involved in judicial decision seems to be deductive in character” (13).  But he also says that “a mixture of deduction and determination appears as well in the reasoning of judges” (19).

As far as I can tell, Aquinas does not distinguish between the legislator’s determination and the judge’s deduction.  Instead of that, Aquinas distinguishes between legislators as making general rules for the future and judges as deciding particular cases in the present (I-II, q. 95, a. 1, ad 2).

Stoner’s paper suggests other questions as well.  When he says that “common law belongs in a sense to both jury and judge” (7), does this include jury nullification as an exercise of natural law reasoning—as, for example, in the exercise of jury nullification to overturn the fugitive slave laws in the U.S. as contrary to natural justice?

What exactly does he mean by “the natural-law moment in constitutionalism” (17)?  Does he mean that the U.S. Constitution implicitly appeals to natural law?  If so, how and where?  In the Preamble?  In the 9^th Amendment?  In the 14^th Amendment?  Is the Declaration of Independence part of the constitutional system?  Some of the legislators who framed and ratified the 14^th Amendment said that the clause protecting “the privileges or immunities of citizens of the United States” incorporated all the natural rights invoked in the Declaration of Independence.  Does Stoner agree with this as part of “the natural-law moment in constitutionalism”?

If Aquinas is right that every human positive law is derived from the natural law (I-II, q. 95, a. 2), does that mean that constitutional law must be interpreted in the light of natural law?  So, for example, does that mean that the debate in Obergefell v. Hodges over whether same-sex marriage is a constitutional right is necessarily a debate over the natural law of marriage (Arnhart, 54-62)?

COTTINGHAM AND LOMBARDO ON TRANSCENDENTALIST AND EMPIRICIST ETHICS

Do we see in the papers by John Cottingham (“Nature and Natural Law: The Constraints on Practical Reasoning”) and Nicholas Lombardo (“Deriving Natural Law from Mosaic Law, Human Desire, and God’s Silence”) a fundamental choice between transcendentalist ethics and empiricist ethics?  If so, then my paper would be on the side of empiricist ethics.

Cottingham argues against an “empiricist naturalist” view that roots morality in “the sentiments and inclinations we find arising naturally within us,” because this deprives morality of any grounding in the “objective” reality of a divinely ordered cosmos, which is “to explain away all morality as an illusion arising from the projection outwards of purely subjective inclinations” (2, 8).  The morality of natural law has no objective reality unless we see that natural law as created by God as part of His teleologically ordered cosmos.  Therefore, Cottingham seems to agree with Kant that true morality necessarily requires theistic faith “beyond the reach of empirical knowledge” (9-10).

Although Lombardo sees natural law as ultimately created by God, Lombardo seems to disagree with Cottingham in suggesting that natural law can stand on its own natural ground in human nature without any necessity for appealing to faith in God as the creator of that natural order.  If so, then Lombardo would be on the side of an empiricist ethics, as I am.

Lombardo writes:

Must natural law originate with a divine legislator to command or oblige?  From the account of natural law given here, we can answer emphatically in the negative.  Our natural inclinations direct us to move toward specific goods suitable to our nature, thus commanding us, and our tendency toward the good directs us to act in accord with the rest of our natural inclinations, thus obliging us—with or without a divine legislator responsible for bringing those natural inclinations into being.  Therefore, natural law does not require a divine legislator to command or oblige (8).

Is Lombardo here agreeing with my argument that while religious faith in God’s creation of natural law can support natural law, there is no necessity for this, because natural law can be known by natural human experience even without such religious faith?

Is Cottingham arguing that it is impossible for those without religious faith to recognize and follow natural law?  If so, does this mean that natural law is actually a supernatural law or divine law?  Does he disagree with Aquinas’s separation of natural law from divine law?

Does Cottingham agree with Aquinas that faith must be supernaturally infused by God, and that “to have faith is not in human nature” (ST, II-II, q. 6, a. 1; q. 10, a. 1, ad 1)?  If so, does this mean that those in whom faith has not been infused cannot know the natural law?  And therefore natural law cannot be a universal law for all human beings regardless of whether they have any religious faith?  If natural law depends on faith, and faith is not in human nature, does this deny that natural law is really natural?

There are two possible interpretations of what Cottingham is saying.  The first is that people who have no Biblical faith that God created natural law cannot recognize or obey natural law at all.  The second is that people who lack this Biblical faith can recognize and obey natural law as rooted in their natural human inclinations, but only Biblical believers can see that this natural law really is ultimately created by God.  Which interpretation of Cottingham is correct?

Do Cottingham and Lombardo disagree with my claim that natural law can correct the Bible?  For example, can natural law teach us that the Bible is mistaken in supporting slavery?  As I have indicated in my paper, the Bible was often invoked by defenders of American slavery (Arnhart, 73-78).  And Abraham Lincoln indicated in the Second Inaugural that the Bible did not resolve the slavery debate: “Both read the same Bible and pray to the same God, and each invokes His aid against the other.” 

The defenders of American slavery cited both Aristotle and Aquinas as arguing that slavery is natural insofar as it is better for the slave to be ruled by a wiser man (ST, II-II, q. 57, a. 3, ad 2).  Does natural law allow us to see that this judgment is mistaken?

Lombardo cites some provisions of the Mosaic law that sanction violent cruelty that most of us would find wrong.  Does natural law allow us to correct this?

Aquinas supported the authority of the Church in the Inquisition to kill heretics (ST, II-II, q. 11, a. 3).  Does natural law allow us to correct this?

Popes John Paul II and Benedict XVI asked forgiveness for the faults of the Church in promoting religious violence, including the unjustified violence apparently supported by the Bible.  In 1999, Cardinal Ratzinger endorsed a statement of the International Theological Commission (ITC) on “The Church and the Faults of the Past.”  This statement recognizes that the Old Testament never shows the people of Israel asking forgiveness for their unjustified violence against their enemies.  Although we see people confessing their sins before God, we don’t see them confessing their sins before the people they have injured. Why not?  The ITC observes:

Acts of violence perpetrated by Israel against other peoples, which would seem to require a request for forgiveness from those peoples or from their descendants, are understood to be the execution of divine directives, as for example Genesis 2-11 and Deuteronomy 7:2 (the extermination of the Canaanites), or 1 Samuel 15 and Deuteronomy 25:19 (the destruction of the  Amalekites).  In such cases, the involvement of a divine command would seem to exclude any possible request for forgiveness.  The experiences of maltreatment suffered by Israel at the hands of other peoples and the animosity thus aroused could also have militated against the idea of asking pardon of these people for the evil done to them. (2.1)

If one reads this passage carefully, one can see a quiet admission that we must recognize that the Bible is mistaken when it reports God as commanding unjust violence.  The people of Israel saw no need to be forgiven for acts of violence that they “understood to be the execution of divine directives,” and thus “the involvement of a divine command would seem to exclude any possible request for forgiveness.”  Is this a hint that they were mistaken?  That what the Bible reports as “divine directives” for unjust violence is wrong?  Does this show the ITC using natural law to correct the Bible?  Would Cottingham disagree with this by arguing that since God is the creator of natural law, His command overrules natural law?

That God’s command can overrule the natural law prohibition on killing innocent people is suggested by God’s command to Abraham to kill his son Isaac (Genesis 22).  Aquinas explains:

Now man’s reason is right, insofar as it is ruled by the Divine Will, the first and supreme rule.  Wherefore that which a man does by God’s will and in obedience to His command, is not contrary to right reason, though it may seem contrary to the general order of reason: even so, that which is done miraculously by the Divine power is not contrary to nature, though it be contrary to the usual course of nature.  Therefore just as Abraham did not sin in being willing to slay his innocent son, because he obeyed God, although considered in itself it was contrary to right human reason in general, so, too, Osee sinned not in committing fornication by God’s command. (ST, II-II, q. 154, a. 2, ad 2)

Would Cottingham agree with this?

Cottingham argues that in premodern Europe there was a “theistic worldview” that provided a solid cosmic foundation for morality, in contrast to the “secularist worldview” of modern Europe that cannot provide any objective cosmic foundation for morality.  Thus, premodern Europe was intellectually superior in its moral philosophizing to modern Europe. 

Does he also imply that premodern Europe was practically superior in its moral life to modern Europe?  If he is not claiming that the moral conduct of premodern Europe was superior to that of modern Europe, is he therefore saying that the “theistic worldview” cannot improve moral conduct, and that the “secularist worldview” can support good moral conduct?  If so, doesn’t this weaken his critique of secularist morality?

If Cottingham really is saying that premodern Europe was morally superior to modern Europe, is this empirically testable?  Is there any historical evidence that premodern Europe was superior in its moral conduct to modern Europe?

Steven Pinker and others have surveyed the evidence that premodern Europe was much more violent on average than modern Europe.  The historical sociologist Norbert Elias has argued that medieval Europe was remarkably brutal in its manners and conduct, and that European modernity required a “civilizing process.”  Does this refute Cottingham’s claim that premodern Europe was morally superior to modern Europe?  Or would Cottingham deny that claim that European history has shown declining violence and increasing civility?  Or would Cottingham deny that declining violence and increasing civility are signs of moral improvement?