Sunday, June 28, 2015

Thomistic Natural Law in Justice Kennedy's Gay Marriage Opinion

    Chicago's Gay Pride Parade Honors the Five Justices Who Supported Gay Marriage

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" (17).  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" (10-11, 13).  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 (4).

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 (Summa Theologica, II-II, q. 57, a. 3; suppl., q. 41, a. 1).  Kennedy agrees with this, although he sees same-sex marriages as securing the same two natural ends (5, 13-16).

Aquinas accepts the biblical teaching (in Paul's Letter to the Romans, 1-2) that homosexuality is "contrary to nature" (I-II, q. 94, a. 3; II-II, qq. 153-54).  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 (I-II, q. 46, a. 5; q. 51, a. 1; q. 63, a. 1).  But he never concedes that homosexuality might also express "temperamental nature."  So here is the one fundamental point of disagreement between Aquinas and Kennedy.

Despite this disagreement over whether homosexuality is natural or unnatural, moral or immoral, Aquinas and Kennedy are close to agreeing that the religious condemnation of homosexuality should not be coercively enforced by law.  While Aquinas regards homosexuality as a vice, he also insists that it is not the proper role of human law to enforce perfect virtue, because human law should be concerned primarily with prohibiting conduct that is harmful to social order, such as murder and theft (I-II, q. 96, a. 2).  Similarly, Kennedy argues that same-sex marriages pose no risk of harm, and that those who say that legalizing same-sex marriage will destroy opposite-sex marriage are mistaken (26-27). 

So there is here--implicit in Kennedy's opinion--a natural law argument for gay marriage, in that gay marriages with adopted children can approximate heterosexual marriages in serving the two natural functions of marriage--conjugal bonding and parental care of children--without harming the institution of heterosexual marriage.

Friday, June 26, 2015

Darwinian Natural Right in the Supreme Court's Gay Marriage Decision

As I have often indicated, the general framework of Darwinian natural right is that human nature constrains but does not determine human culture, and that human nature and human culture constrain but do not determine human judgment.  Consider how that framework applies to the decision of the Supreme Court in Obergefell v. Hodges, in which, by a 5-4 decision, the Court has declared that same-sex marriage is a constitutional right.

The opinions can be found here.  Justice Kennedy delivered the opinion of the majority, with the concurrence of Justices Ginsburg, Breyer, Sotomayor, and Kagan.  Dissenting opinions were filed by Chief Justice Roberts and by Justices Scalia, Thomas, and Alito.

I have written a series of posts arguing that gay marriage can be seen as conforming to Darwinian natural right.  In particular, I have framed my arguments as responses to Robert George, Ryan Anderson, and Sherif Girgis in their natural law argument that gay marriage is not "real marriage."  My posts can be found here, here, here, here, here, here, and here.

From that point of view, my assessment of the court's opinions in this case is complicated, because I partly agree and partly disagree with all of them!

I partly agree with Kennedy's opinion in that I agree with his evolutionary libertarianism in defending the right of gays to marry.  But I partly disagree with his opinion in that I disagree with his claim that the Supreme Court has the ultimate constitutional authority to decide this issue for the entire nation.

I agree with Kennedy that marriage is a human universal that arises from "the most basic human needs" of our evolved human nature (3), and that the "immutable nature" of homosexuals dictates that same-sex marriage is the only path for homosexuals to satisfy their natural desire for marriage (4).

I also agree that gay marriage can satisfy the same natural ends that are satisfied in heterosexual marriage--parental care of children and conjugal bonding--natural ends that belong to "our common humanity" and our natural "pursuit of happiness" (11, 13-15).  I agree as well that marriage is both an expression of our natural individual liberty and "a keystone of our social order" (12, 16).

I also agree with Kennedy that while through most of our cultural history, we have seen only heterosexual marriage as real marriage, we can now recognize that same-sex marriage can satisfy the same natural desires satisfied in heterosexual marriage.  We can also see that legalizing same-sex marriage need not weaken heterosexual marriage (6-12, 17, 20-21, 26).

I also agree with Kennedy that legalizing gay marriage does not deny the freedom of those who oppose gay marriage for moral or religious reasons.  Opponents of gay marriage will be free to live in groups that condemn gay marriage for religious or secular reasons, but they will not be free to use legal coercion to deny the right to gay marriage (27).

On all of these points, I agree with Kennedy's rejection of the argument of George, Anderson, and Girgis that only heterosexual marriage is "real marriage," and that legalizing gay marriage will destroy heterosexual marriage.

I disagree with Kennedy, however, in two ways.  First, I argue that the best way to secure the libertarian right to marry is to privatize it by abolishing governmental licensing of marriage and by treating marriage as based on voluntary contracts enforced just as all contracts are enforced.

In my second point of disagreement with Kennedy's opinion, I agree with the dissenters in this case, who argue that Kennedy's majority opinion is more an expression of moral philosophy than of constitutional law, and that this opinion unconstitutionally assumes that the moral philosophizing of a majority of justices on the Supreme Court must ultimately decide the political debate over gay marriage and thus end that debate.

Constitutional law is fundamental to American political culture in establishing popular self-government primarily through electoral politics and legislative supremacy both in the state legislatures and the national Congress.  By contrast, as Scalia says, "Today's decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court" (2).  If so, then we are no longer a self-governing people.

And yet, Scalia and all of the justices, both in the minority and in the majority, are mistaken in their assumption that when the Court makes a decision like this, there are no constitutional avenues for resisting that decision.

Nowhere does the Constitution say that the Supreme Court is the ultimate and final interpreter of the Constitution.  The idea of judicial review is not even mentioned in the Constitution.  Moreover, there are many constitutional powers that can be used to overturn or to frustrate the enforcement of any Supreme Court decision.  Three-fourths of the state legislatures can ratify a constitutional amendment that overturns the decision.  The Congress can impeach the justices who voted for the decision.  Congress can abolish the appellate jurisdiction of the Supreme Court to decide cases.  The Senate can refuse to confirm any nominee to the Court who refuses to pledge to overcome an unpopular decision.  And, finally, the state legislatures, the Congress, and the President can all assert a right to interpret the Constitution for themselves.

For these reasons, Alexander Hamilton was right to declare (in Federalist number 78) that the Supreme Court has "neither force nor will, but merely judgment."  The Court can try to persuade us to accept its opinions, but it cannot enforce any opinion that is actively resisted by the states, the Congress, and the President.

In deciding whether we agree with the Court's decision, we must exercise our individual judgment about how best to specify the rights and duties of marriage.  That judgment will be constrained but not determined by the evolved human nature of marriage and the evolved human culture of American political institutions and constitutional law.

Ultimately, the cultural evolution of American constitutional law is an evolution in moral philosophy.  Kennedy's opinion is one of the clearest examples of how interpreting the words of the Constitution requires philosophic thinking, and in this case, it's the philosophic thinking of classical liberalism or libertarianism.  Kennedy declares: "the right to personal choice regarding marriage is inherent in the concept of individual autonomy" (12).  This conclusion arises from his exercise of "reasoned judgment" guided by his "new insight" into the "nature of injustice" (10-11).

Justice Roberts identifies this as an exercise in "moral philosophy" that has no basis in the Constitution (19).  But implicitly Kennedy is agreeing with Ronald Dworkin that we cannot interpret the language of the Constitution without engaging in moral philosophy.  (Dworkin's philosophic approach to constitutional interpretation has been elaborated and defended by Sotirios Barber and James Fleming in their Constitutional Interpretation: The Basic Questions [Oxford University Press, 2007].) 

In this case, the judges must interpret the language of the Fourteenth Amendment: "nor shall any State deprive any person of life, liberty, or property, without due process of law; nor to deny to any person within its jurisdiction the equal protection of the laws."  Words like "liberty," "due process of law," and "equal protection" denote moral concepts, and so if the judges are to think for themselves about the meaning of these moral concepts, they must engage in moral philosophizing.  Those who wrote the Fourteenth Amendment did not clearly define the meaning of those concepts, and thus they left it up to future judges, politicians, and citizens to think about the true meaning of those moral concepts.  There is no reason to believe that when the Fourteenth Amendment was ratified in 1868, the people of the time understood that "liberty" included the right to same-sex marriage.  But it is possible for us today, in thinking about the meaning of "liberty," to discover that it does include that right.  That's what Kennedy is saying, and that's the most interesting feature of his opinion in this case.

Another example of this philosophic approach to constitutional interpretation is George Anastaplo's Constitution of 1787, which suggests that interpreting the actual words of the Constitution requires an exercise of philosophic thinking about the moral concepts conveyed by those words.  But unlike Kennedy, Anastaplo rightly sees that this philosophic thinking about the meaning of the Constitution is an activity for all thoughtful citizens and not just for the nine lawyers on the Supreme Court.

Monday, June 22, 2015

Trumbull's "Declaration of Independence" & Raphael's "School of Athens": A Book Cover

Here is the book cover for the fourth edition of Political Questions, with the two paintings reproduced on the cover.







I thought a lot about what the cover of my new book should look like before I settled on this design, with John Trumbull's "Declaration of Independence" at the top and Raphael's "School of Athens" at the bottom.

Trumbull's painting was commissioned by the United States Congress in 1817, and it was placed in the U.S. Capitol Rotunda in 1826, where it remains today.  The painting shows the presentation of the draft of the Declaration of Independence to the Second Continental Congress at Independence Hall on June 28, 1776.  It shows 42 of the 56 signers of the Declaration.  Trumbull decided not to paint those for whom he had no likenesses.  At the center of the painting is the five-man drafting committee--John Adams, Roger Sherman, Robert Livingston, Thomas Jefferson, and Benjamin Franklin--with Jefferson standing out from the group as the one presenting the draft, and thus suggesting his primary influence in the writing of the document.

Raphael's "School of Athens" fresco was painted early in the sixteenth century for one of the walls of the library for Pope Julius II in the Apostolic Palace in Vatican City.  The ancient philosophers are painted with Plato and Aristotle at the center, who are turning their heads to look at one another.  Plato points upward with the index finger of his right hand, while holding upright in his left hand a copy of the Timaeus.  Aristotle gestures forward and downward with his open right hand, while holding flat in his left hand a copy of the Nicomachean Ethics.  On the one hand, this suggests a contrast between the vertical perspective of Plato and the horizontal perspective of Aristotle, as though Plato were saying "It's up there," and Aristotle were saying, "No, it's down here amongst us."  On the other hand, the symmetrical design of the painting suggests that the Platonic and Aristotelian perspectives complement one another.

A few years ago, I wrote a long post on Raphael's painting as part of his Stanza della Segnatura.

I decided that putting these two paintings on the cover of my book would point to some of the recurring questions raised in the book.  Raphael's painting raises questions about the relationship between Platonic cosmic transcendence and Aristotelian empirical naturalism.  Juxtaposing it with Trumbull's painting raises questions about whether the Declaration of Independence points to some of the issues debated by philosophers, which is one of the themes of my book.

Many readers of the Declaration of Independence have seen echoes of John Locke and Lockean liberalism.  Others have seen other philosophical influences (such as the Scottish Enlightenment).  Jefferson himself pointed not only to Locke but also to Aristotle, Cicero, and Algernon Sidney as authors whose ideas might be implicit in the Declaration.

Some scholars, however, have argued that it's a mistake to see the Declaration of Independence as a statement of deep philosophical principles because it actually had only one limited purpose--declaring and justifying American Independence from Great Britain.  The elevation of the Declaration to an almost sacred document stating the philosophical principles of American political life was the work of Abraham Lincoln and others.  The scholars arguing this position include Pauline Maier and Barry Alan Shain.

I am inclined to agree with Michael Zuckert and others who argue that the Declaration really does evoke the philosophic principles that Jefferson attributed to it.

In any case, I hope that the cover of my book suggests such questions about the connection between political philosophy and political practice.

Thursday, June 18, 2015

Azar Gat on War in the State of Nature: Refuting Rousseau, Vindicating Locke

The debate among the early modern political philosophers over the state of nature can be settled by modern evolutionary anthropology.  Over the years, I have argued on this blog that this is an example of how evolutionary anthropology can clarify, and perhaps even resolve, disputes in the history of political philosophy. 

Evolutionary anthropologists studying the evolution of war and peace have been divided into Hobbesians who believe that our hunter-gatherer ancestors were naturally violent and warlike and Rousseauans who believe that hunter-gatherers were naturally peaceful.  But in setting up this debate as Hobbes versus Rousseau, they have overlooked the position of Locke.  This is a serious mistake, because the weight of the evidence and argumentation on this issue today is on the side of Locke's account of the state of nature as a state of peace that tended to become a state of war.  It seems now that while Hobbes was partly right and partly wrong about the state of nature, Rousseau was mostly wrong, and Locke was mostly right.

As I have indicated in some previous posts, Azar Gat is one of the leading scholars defending the Hobbesian side of this debate and criticizing the Rousseauan side.  He concedes, however, that Hobbes was wrong on some points, because he failed to see that our hunter-gatherer ancestors were social animals and not solitary individuals, and that they were capable of living in peace for long periods of time, despite their propensity to violence and war.  Gat does not recognize that Locke was closer to the truth about the evolutionary state of nature than either Hobbes or Rousseau, and that the Hobbesians and Rousseauans today have been moving towards agreement on the Lockean account of the state of nature.

Gat elaborated his reasoning in his 2006 book War in Human Civilization (Oxford University Press).  Now he has restated some of this reasoning and surveyed some of the most recent research in an article that has just been published--"Proving Communal Warfare Among Hunter-Gatherers: The Quasi-Rousseauan Error," Evolutionary Anthropology, 24 (May/June, 2015): 111-126.

In this article, he shows that the Rousseauans have been retreating from Rousseau over the past 30 years, because the scientific evidence against the Rousseauan state of nature has been accumulating to the point that it cannot be ignored.  He shows that the Rousseauans have moved through three positions. 

First, they embraced Classical Rousseauism, which was Rousseau's original claim that human beings in the state of nature were totally peaceful, until the settlement into sedentary and agricultural life, which brought violent conflict. 

Second, they adopted Extended Rousseauism, which claimed that serious violence did not arise until the emergence of centralized states.  This position is associated with the "tribal zone theory," according to which simple hunter-gatherers and complex hunter-gatherers and horticulturalists did not become violent until they came into contact with intrusive states.  So, for example, the Yanomamo people of the Amazonian rain forest, whom Napoleon Chagnon made famous as the "fierce people," were said by Brian Ferguson to show the effects of a century of violent conflicts with European invaders.

Finally, most recently, the Rousseauans have adopted a Quasi-Rousseauism that breaks totally with Rousseau, because they concede that hunter-gatherers in the state of nature show the violence of homicide and feuds, and yet the Rousseans insist that this violence is not war.  Therefore, they can argue that war in the strict sense is not natural for human beings, but is a purely cultural invention of the states that began to appear around 5,000 years ago.  The Quasi-Rousseauans include Raymond Kelly and Douglas Fry.

Gat argues that this Rousseauan retreat from Rousseau is in response to the growing evidence from primatology, archaeology, and ethnography that largely confirms Hobbes's claim that the state of nature is a state of war.  As in his book, in surveying the evidence, Gat stresses the importance of Aboriginal Australia as the best natural laboratory for studying the hunter-gatherer way of life.

The primatological evidence includes the evidence for chimpanzee warfare, in which bands of adult male chimps belonging to one chimp community raid the territory of other communities, and if they have the numerical advantage over their opponents, the raiders attack or kill their opponents, and then the raiders return to their community, without suffering any injury to themselves.  This kind of behavior is similar to what human hunter-gatherers do when they launch raids, often at night, into the territory of other groups and make surprise attacks on their opponents.  Bonobos, however, do not show such violent behavior; and thus the Rousseauans look to the bonobos as their models for our primate ancestry.

The archaeological evidence includes skeletal evidence of injuries or lethal assaults from attacks, ancient weapons and shields, and signs of defensive fortifications.

The ethnographic evidence comes from reports of how hunter-gatherers have lived.  Since preliterate people have no written records of their history, the only records we have come from European observers.  Hobbes, Locke, and Rousseau relied on the reports of Europeans who first discovered foraging societies in Africa and the New World.  The problem here, however, is the "contact paradox":  we cannot know how these people have lived until we contact them, but then any contact can distort their behavior.

As Gat indicates, the Australian Aboriginals appear to be the only case where the contact paradox is minimized.  Until the Europeans first arrived in Australian in 1785, Australia was an isolated continent of hunter-gatherer bands and tribes, with no pastoralists, agriculturalists, or states.  The earliest English reports of how they lived showed a history of lethal feuds, raids, ambushes, with fighting between individuals, families, and tribes.

Gat shows that surveys of the evidence for violence and warfare among hunter-gatherers and prestate horticulturalists manifest rates of violent death as high as 25% of adult males and 15% of the adult population.  These rates of violent death drop dramatically with the establishment of formal government and laws, thus showing the Hobbesian pacification of life under the Leviathan.  Those rates have dropped even more in modern liberal states, as Steve Pinker and others have shown.

Oddly enough, the Quasi-Rousseauans agree that there really is a pattern of declining violence here.  Their only disagreement is their insistence that the violence in the state of nature is personal violence--homicide and feuding--that does not satisfy any proper definition of war.  Gat responds to this by arguing that Hobbes and Rousseau saw "war" as including any kind of violence, and by arguing that there is evidence for large group-against-group conflicts among hunter-gatherers (such as the Australian Aboriginals) that should count as war.

The emotional intensity of this debate over the evolution of war is explained by Gat as reflecting the false assumption that if we see war as a natural evolutionary adaptation, then we must conclude that the pursuit of peace is a futile denial of human nature.  Gat denies this by arguing that while war is a naturally evolved capacity, it is not a biologically determined necessity.  We have evolved capacities for both peace and war, and whether we have war or peace depends upon the ecological and cultural circumstances of life.  If we understand this, we can look for ways to make peaceful cooperation more likely and violent conflict less likely.

In all of this, Gat is implicitly taking Locke's position.  Locke's state of nature is a state of peace, because human beings are naturally social animals--bound together by familial, tribal, and cultural bonds--who engage in mutually beneficial cooperation, which shows how human beings with natural reason can grasp a natural moral law, and enforce that law with the natural disposition to punish offenders.  And yet, Locke's state of nature can easily become a state of war, because where everyone has the natural power to punish offenses against the natural law, with individuals tending to be partial to their own interests, people tend to fall into endless feuding and raiding.  To escape from that natural state of war, the establishment of government and law, so that there is a common judge to settle disputes under the rule of law, can provide the conditions of peace.  Nevertheless, when those with governmental power rule arbitrarily and absolutely for their own interests and against the public interest, then the people can reclaim their "natural executive power of the state of nature" in resisting that tyrannical rule. 

As the rhetoric of Lockean liberalism succeeds in promoting the ideas of government by the consent of the governed directed to securing individual rights to life, liberty, property, and the pursuit of happiness, we see ever declining violence and the spread of the liberal peace, as described by Gat, Pinker, and others.

I have developed these points in other posts here, here, here, here, here, here, here, here, and here.

Thursday, June 11, 2015

Lockean Liberalism as Symbolic Niche Construction: Locke's Mixed Modes, Searle's Institutional Facts, and McCloskey's Bourgeois Virtues

If we accept the modern scientific explanation of the natural world, how can we explain the human mind and human society?  This is the fundamental question of modern intellectual life. 

There are at least three ways to answer this question.  One way is to assume that there is only one world, and therefore the mind and society must be explained as arising somehow from the natural world as studied by modern science.  Another way is to assume that there are two worlds, because the natural world of science is separated from the human world of mind and society.  A third way is to assume that there are three worlds--the natural world of objective facts, the mental world of subjective experience, and the cultural world of social ideas and practices. 

According to the first way, the natural sciences, the social sciences, and the humanities should become parts of one universal science of nature.  According to the second way, there is an unbridgeable gulf between the natural sciences and the human sciences.  According to the third way, the unbridgeable gulf separates three realms of thought about three different worlds: the natural sciences are separated from the psychological sciences, and both are separated from the social sciences and humanities.

As should be evident from many of my posts, I think the first way is best.  There are two different intellectual strategies for achieving this one-world vision--reductive physicalism and emergent evolution.  According to reductive physicalism, the complete unification of all knowledge of the natural world would ultimately require explaining everything through physics.  According to emergent evolution, which is the position that I take, the history of the universe is a history of emergent complexity, in which higher levels of complexity arise from lower levels, and while those higher levels are consistent with the lower levels, the higher cannot be fully reduced to the lower.  

So, for example, biology must be consistent with physics and chemistry, but biological phenomena have an emergent complexity that cannot be fully reduced to physics and chemistry.  The mind and society are also emergent phenomena that must be compatible with the laws of physics and chemistry, but without being fully reducible to those physical and chemical laws.  Some of my posts elaborating these points can be found here, here, here, and here.

My thinking here largely coincides with the thinking of John Searle, particularly in his book Making the Social World: The Structure of Human Civilization (Oxford University Press, 2010).  Like me, he thinks the fundamental questions of modern intellectual life are about how to explain human life in a manner that is compatible with modern natural science.
"How can we give an account of ourselves, with our peculiar human traits--as mindful, rational, speech-act performing, free-will having, social, political human beings--in a world that we know independently consists of mindless, meaningless, physical particles?  How can we account for our social and mental existence in a realm of brute physical facts?" (ix)
Like me, Searle assumes that we live in one world--that we live in one reality with physical, mental, and social aspects--and that our explanations of mental and social life must be compatible with the physical sciences but not simply reducible to those sciences.  And so, for example, in Making the Social World he offers an explanation of social reality as created and maintained by language, while explaining language as a natural product of the human biological evolution of the brain that enabled the human mind to create social institutions through what he calls "collective intentionality."

I mostly agree with Searle about all of this.  My one major point of disagreement is that Searle fails to see how his account of how human beings create social institutions through collective recognition or acceptance of those institutions is a Lockean social contract theory of morality and politics.  If one sees this, and also sees how Lockean social contract reasoning can be understood in modern evolutionary theory as symbolic evolution and niche construction, then Lockean liberalism can be understood as the symbolic niche construction of liberal institutions.  This can also be described, as it is by Deirdre McCloskey, as a transformation in ethical ideas, moving from an aristocratic ethics that scorned the pursuit of economic gain to a bourgeois ethics in which life in a commercial society became virtuous.

We live in a world of institutional facts that constitute our social reality.  Consider one of Searle's favorite examples--the twenty dollar bill.  Because of its institutional status, I can use that twenty-dollar bill to buy goods and services.  As a physical object, it's only a piece of paper with some ink marks on it.  But as long as we accept its institutional status as currency of the United States, with its stipulated value, it has power as a medium of exchange.  Searle would say that this institutional reality of the twenty-dollar bill has been created by a linguistic or symbolic representation that we can call a Declaration of Status Function, which has the form "X counts as Y in C."  We agree that this piece of paper counts as money in the context of the monetary system of the United States.  It has the status of money that can function as currency because of our agreement to regard it as such.  Remarkably, we have created the social reality of money by declaring our agreement that it should count as such, as long as the paper money has the correct symbols, such as the words "This note is legal tender for all debts, public and private."  (Searle does not realize that he is following Locke here, because Locke stressed that the "invention of money" was "by consent" [ST, 36].)

Similarly, Barack Obama is President of the United States, and has all the rights and duties of the presidency, because we have agreed to count as president anyone who wins a presidential election according to the procedures of the United States Constitution.  I am a husband, a professor, and a citizen of the United States.  I own a house, a car, and other property.  I have the rights and duties created by the formal laws and informal social norms of my neighborhood, my city, and my country.  Social facts like these enable us to live a civilized human life.

The mystery here, as Searle indicates, is how we can have an objective knowledge of this social reality that is created by human subjective opinions.  The human capacity for language and symbolism enables us to create a reality by representing that reality as existing and agreeing among ourselves to accept that reality as existing, which allows us to create a social and institutional reality out of language, symbolism, and collective intentionality.

To explain scientifically how this subjective creation of social reality is possible in a natural world of physical facts, we would need to explain the natural evolution of the human brain that created the human capacity for language and symbolism.  Searle offers a conceptual analysis of how language as a natural, biological phenomenon could have evolved among human evolutionary ancestors as an extension of prelinguistic forms of intentionality.  Within evolutionary biology, there is continuing study of the evolution of human language.

Other animals have some capacity for communication and social learning that can create animal cultures of inherited behavioral traditions.  But human beings are probably unique in their capacity for language and symbolism that allows them to create imaginary social realities.  (As I have indicated in a previous post, Eva Jablonka argues well for the evolution of symbolic culture as being uniquely human.)

So, for example, some primates have social orders in which some individuals are treated as alpha males.  But this falls short of the human capacity of moral symbolism by which we agree to recognize some individuals in specified circumstances as having the right to rule over us.

Here we see the moral power--or "deontic power" as Searle calls it--implicit in the human creation of social reality.  "Deontic" is derived from the Greek word deon, denoting something we must do or ought to do--our ethical duty.  In creating social facts, we create ethical facts, because we create formal laws or informal norms of social life that constitute rights and duties of individuals in specified social roles.  As a husband, professor, and citizen, I have the rights and duties of those socially created roles.  Moreover, as a human being, I might have the human rights and duties that arise from my socially recognized status as a member of the human species.  Searle argues that this is indeed the case--that our social reality does include the reality of natural human rights, which include the natural rights to life, liberty, property, and the pursuit of happiness, as rights rooted in our biological human nature.

This sounds a lot like John Locke's argument for natural rights and social order constituted by a social contract.  But, oddly, Searle rejects Locke and social contract reasoning, without realizing that his thinking largely coincides with that reasoning.  Searle doesn't see that in explaining how status functions arise from "collective intentionality" or "collective acceptance or recognition of the object or person as having that status" (8), he is adopting the Lockean argument for social authority as arising from the consent of human individuals.

Searle offers two criticisms of Locke and the social contract theorists.  He says that they are wrong about the state of nature, because they don't understand that once human beings have a shared language, they have a social contract and a society.  "If by 'state of nature' is meant a state in which there are no human institutions, then for language-speaking animals, there is no such thing as a state of nature."  His second criticism is that Locke "gives no evidence of seeing that any account of language could show how language underlies society" (62).  Both of these claims are mistaken.

Locke makes it clear that in the state of nature, when human beings lived in bands of hunter-gatherers, there was no formal government, but there were human institutions--particularly, marriage, families, private property, economic exchange, and social norms of moral conduct that Locke calls "the law of nature."  There was a kind of informal government in the governing of children by their parents and in the episodic authority of military leaders in time of war (Second Treatise, pars. 74-75, 94, 105, 107-109, 170).

This was the first human society that was created by informal consent--collective recognition or acceptance--through language, and language itself was a social creation in which certain sounds were given symbolic meaning by a "tacit consent" (ECHU, III.2.8).  But this society was not a political society, because there was not yet any consent to a formal government or legal system (First Treatise, pars. 86-93; Second Treatise, pars. 6-14, 25-35, 77-90).  Searle is mistaken, therefore, in assuming that Locke thought there were no human institutions in the state of nature.

Searle is also mistaken in assuming that Locke did not recognize how language creates society.  In fact, Locke explained in the Essay Concerning Human Understanding that social institutions were created by human beings through the language of "mixed modes" for use in social intercourse (II.2.22; II.28.2-4; II.31.3; III.1.1, III.2.8; III.5).  Echoing Locke's terminology, Searle speaks of "the mode of existence of social entities" (5).

According to Locke in the Essay, all our ideas originate in experience, either in experience of the external world, which we have through sensation, or in experience of our own thinking and wishing, which we have through reflection.  We form our simple ideas in our minds directly from these experiences.  We can then form complex ideas by combining and comparing simple ideas, and we can form general ideas by abstracting one idea from others with which it is associated.  Thus, all human thought arises either as an impression from experience or as a modification of such impressions by some faculty of the mind.

Locke distinguishes the complex ideas of substances from complex ideas of modes and relations.  Complex ideas of substances are combinations of simple ideas that represent particular things that exist by themselves, for example, man, sheep, army, and gold.  Modes are complex ideas that do not contain any representation of anything existing by itself; rather, modes are ideas conceived as modifications of simple ideas.  Simple modes are combinations of a single simple idea, for example, space and duration.  Mixed modes combine several different simple ideas, for example, triangle, gratitude, obligation, and murder.  Ideas of relations are a special kind of mixed mode that arises by comparing one idea with another, for example, father, whiter, cause and effect.

Mixed modes are important for social and political thought, because most of the words used in theology, ethics, law, and politics are mixed modes.  Locke's examples of mixed modes include adultery, incest, murder, parricide, justice, gratitude, glory, and ambition.

Locke emphasizes the arbitrariness of mixed modes.  The ideas of mixed modes are "made very arbitrarily, made without patterns, or reference to any real existence.  Wherein they differ from those of substances, which carry with them the supposition of some real being, from which they are taken, and to which they are conformable.  But, in its complex ideas of mixed modes, the mind takes a liberty not to follow the existence of things exactly."  Mixed modes are "the workmanship of the mind" (III.5.3-4). 

This is the same arbitrariness that Searle sees in institutional facts that exist only because we think they exist and say that they exist.  Searle declares: "God can create light by saying 'Let there be light!'  Well, we cannot create light, but we have a similar remarkable capacity.  We can create boundaries, kings, and corporations by saying something equivalent to 'Let this be a boundary!' 'Let the oldest son be the king!'  'Let there be a corporation.'" (100)

But since both Searle and Locke stress the arbitrariness with which human beings freely create their social norms by collective consent through speech, we have to wonder whether this denies that there is any natural foundation or standard for judging our moral ideas.  And if so, wouldn't this contradict Locke's claim that there is a natural law knowable by natural human reason and Searle's claim that human rights are rooted in human nature, which suggest a natural standard rather than arbitrary creation?

Locke says that while mixed modes are made "very arbitrarily," they are not made "without reason" or "at random" (III.5.3, 6-7).  Although our moral ideas are not copied from nature, they are made by human beings for the purpose of communicating standards of conduct that facilitate human social life; and the requirements of such a life are shaped by the natural desires and inclinations of human beings.  The ultimate natural standard for judging social norms is whether they satisfy the natural human pursuit of happiness (I.2.3; III.21.42-73).  In that way, human nature does set standards for our moral ideas.

So, for example, if human beings say that intentionally killing an innocent human being is murder, but killing a sheep is not, this distinction is not simply discovered by just looking at human beings killing one another and killing sheep.  This moral distinction is made by human beings to serve the natural desire of human beings to preserve their lives against attack and to punish those that threaten them (III.5.5-6; FT, 86-88; ST, 7-11).  And if we distinguish the killing of a father or mother as worse than killing others, it's because we agree to recognize the different heinousness of the crime that demands a distinct punishment that fits the crime (III.5.7).  Similarly, if we create the idea of an incest taboo, it's because human beings naturally express moral disgust in response to incest, although there will be cultural variation in how incest is defined based on variable kinship systems.

Like Locke, Searle appeals to human biological nature as the natural standard for natural human rights.  And from that standard, Searle derives a minimal list of human rights that looks much like what Locke would endorse: "the right to life, including the right to personal liberty, the right to own personal private property (such as clothing), the right to free speech, the right to associate freely with other people and to choose with whom one associates, the right to believe what one wants to believe, including religious beliefs as well as atheism, the right to travel, and the right to privacy" (185).

But while Seale sees these rights as status functions created by human beings through their collective intentionality, he recognizes that many people have believed that such rights are insecure if they are not seen as part of the natural order of things or created by God.  He sees this in the Declaration of Independence: "We hold these truths to be self-evident" that all men "are endowed by their Creator with certain unalienable rights."  Searle suggests that this belief in divine creationism is false (107, 118-19, 183).  And he indicates that this creates a problem for his theory of social institutions.  In such cases, "the status function only works as a status function precisely because it is believed not to be a status function but a brute intentionality-independent fact about the universe."  But then, he indicates, all that matters is that the people do collectively recognize or accept the system of status functions, even though the collective acceptance is based on a false belief in a divine moral law (119).

Although Locke rejects the idea of the "divine right of kings," he does appeal to the creationist theology of human beings as having a special moral dignity because they are the "workmanship" of God who created them in His image (FT, 30, 52-54, 85-86; ST, 6, 56).  He also, however, grounds the moral dignity of human beings in their self-ownership as beings who claim a property in their own persons (ST, 27, 172-73).  And some readers have wondered whether this could provide a purely natural ground for Lockean natural rights, without the need for appealing to supernatural creationism.

But then when the Declaration of Independence appeals to "the Laws of Nature and of Nature's God," this suggests a natural creationism--that is, Nature's God creates through natural law, perhaps through a natural evolutionary process.  And indeed many Christians are theistic evolutionists who see God working through natural evolution.  Locke often speaks of the "Laws of God and Nature" (Second Treatise, pars. 1, 4, 60, 66, 142, 195).

Men might be created equal and endowed by their Creator with certain unalienable rights through the human evolution of a large and complex cerebral cortex that allows them to collectively recognize human equality of rights.

In any case, evolutionary biology can recognize the practical efficacy of religious belief--particularly, religious belief in a moral God who cares for human beings and enforces moral law through rewards and punishments.  Research in cross-cultural economic game experiments indicates that those who belong to one of the world religions tend to show a sense of fairness in their playing of the games.  And evolutionary biologists like David Sloan Wilson have argued that religious belief evolved through group selection to support cooperation within groups.

Evolutionary biology could also recognize the success of Lockean liberalism in promoting its moral and political ideas as an expression of symbolic niche construction.  "Niche construction" is a modern term in evolutionary theory (Odling-Smee, Laland, and Feldman 2003; Odling-Smee 2024) for an idea first developed in Darwin's last book--The Formation of Vegetable Mould, through the Action of Worms (1881)--in which he studied how earthworms continually alter the surface of the Earth by breaking down soil into fine particles, thus they construct the environment to which they are evolutionarily adapted.  We can also see the cultural history of animals as niche construction, in that cultural animals create cultural traditions that are inherited by later generations.  Human beings do this not only through behavioral traditions of culture but also through their uniquely human creation of symbolic realities, including the symbolic systems of religion, morality, and politics.

As a political philosopher who supported the radical Whig program, Locke was engaged in a rhetorical project to transform the religious, moral, and political ideas of England to create what would later be called liberalism.  This was an exercise in symbolic niche construction.  The success of that project began to appear with the success of the Glorious Revolution of 1688, and it emerged even more clearly later in the 18th and 19th centuries with the success of Lockean Whig ideas and the emergence of the Bourgeois Era and the Industrial Revolution.

The triumph of Locke's liberalism required a rhetorical change in moral ideas so that a bourgeois way of life could be seen as virtuous.  This is what Deirdre McCloskey has been writing about in her series of books on the "bourgeois virtues."  In a recent article, McCloskey has argued that Searle's social ontology supports her reasoning, because we can see the Bourgeois Era as arising from a status function declaration:  Commercial life counts as honorable in the Bourgeois Era ("Max U vs. Humanomics: A Critique of Neo-Institutionalism," Journal of Institutional Economics 12 [2016]: 1-27.).

Although I generally agree with McCloskey, I do have some questions about her argument.  In her criticism of Douglas North's institutional explanation for the modern move into open access societies, she sets up a stark opposition between social institutions and moral ideas, and argues that it was a change in ideas rather than a change in institutions that explains the modern revolution.  But her acceptance of Searle's social ontology suggests that what she really wants to say is that social institutions rightly understood are created by the social acceptance of the moral ideas that constitute and maintain those institutions.

Another question that I have for McCloskey is also a question for Searle:  Do they give enough weight to violence and war in shaping the moral history of social institutions?  Occasionally, Searle acknowledges that social institutions have to be backed by force, although "forms of organized coercion are themselves systems of status functions" (88, 97, 104, 141-42, 163, 171, 173). 

Locke goes farther than either Searle or McCloskey in stressing the importance of trial by battle when there is some deep controversy over who has the authority to settle disputes over political power.  This is what Locke calls the "appeal to Heaven," the appeal to the God of battles (ST, 19-21, 109, 155, 168, 176, 232, 240-43).

Locke himself was involved in the Whig conspiracies for assassinating and rebelling against Charles II and James II.  Because of that involvement, he was forced to flee to Holland to avoid being tried and executed for treason.  While he lived in Holland, he had to worry about being captured by the King's agents and extradicted to England for trial. He supported the Revolution of 1688, and despite its reputation as a "bloodless" revolution, there was a lot of violence in the Revolution (as Steven Pincus has shown in his 1688: The First Modern Revolution [2009]).  Ultimately, the success of the Revolution depended on the defeat of the Jacobite armies that tried to restore the Stuart monarchy.  The military threat of the Jacobites was not finally put down until the battle of Culloden in Scotland in 1746.

The evolutionary history of liberalism is a rhetorical history of persuasive speech, but it is also a military history of war that has turned on the unpredictable contingencies of battle.  So, for example, the Declaration of Independence was a declaration of reasoning from principles, but it was also a declaration of war.  And if the Patriots had not won some decisive battles--such as the battle of Saratoga in October of 1777--they would have lost the war (Weddle 2021).  This is part of the evolutionary history of humanity through group selection in war.

As Winston Churchill observed: "Battles are the principal milestones in secular history.  Modern opinion resents this uninspiring truth, and historians often treat the decisions of the field as incidents in the dramas of politics and diplomacy.  But great battles, whether won or lost, change the entire course of events, create new standards of values, new moods, new atmospheres, in armies and in nations, to which all must conform" (Marlborough: His Life and Times, University of Chicago Press [2002], II: 381).

Some of these points are elaborated in other posts here, here, here, here, here, here, here, here, and here.

Sunday, May 31, 2015

John Locke and the Modern Whig Revolution of 1688

In many posts, I have written about the two great revolutions in human history--the Neolithic Revolution, in which human beings moved from foraging to farming, and the Modern Revolution, in which human beings moved into commercial societies.  The Modern Revolution became most manifest in the first half of the 19th century with the Industrial Revolution in Great Britain and North America.  But the move towards the Industrial Revolution can be seen as early as the 17th century in Holland and England. 

John Locke saw this.  In his Two Treatises of Government, he suggested that human history broadly conceived could be divided into three eras--the foraging era, the farming era, and the commercial era.  As a radical Whig, Locke promoted the moral, economic, political, and philosophical ideas that would justify the Modern Revolution.  The most transformative turn in that direction during his life was the Glorious Revolution of 1688-89, in which James II was forced to abdicate the throne, and William and Mary took the throne.

To see the Glorious Revolution as part of the Modern Revolution is contrary, however, to the general view of many historians that the Revolution of 1688-89 was actually an un-revolutionary revolution, because it is seen as a bloodless and conservative revolution that restored the ancient constitution.  Thus, many historians have adopted Edmund Burke's argument (in Reflections on the French Revolution) that Richard Price was wrong to support the French Revolution of 1789 as following in the tradition of the Glorious Revolution, because that English revolution was a conservative restoration of English traditions, against the radical changes sought by King James II in his pursuit of absolute power.

And yet I have been persuaded by Steven Pincus (in 1688: The First Modern Revolution) that the Glorious Revolution really was a revolutionary transformation that prepared the way for the Industrial Revolution.  I have also been persuaded by Richard Ashcraft (in Revolutionary Politics & Locke's "Two Treatises of Government") that Locke saw this revolution as the fulfillment of his political thought and political activity as a radical Whig, and that the Two Treatises should be understood as the political manifesto of the radical Whig movement.

Locke's life as a radical Whig began in 1667, when he joined the household of Anthony Ashley Cooper, later the first Earl of Shaftesbury.  Locke became the tutor of Shaftesbury's son and grandchildren as well as Shaftesbury's personal physician, secretary, political advisor, close friend, and co-conspirator in plots for overthrowing Charles II.

Shaftesbury was one of the most prominent and controversial political leaders of the Restoration period.  Although he had fought with the Royalists in the Civil War until 1643, he joined the parliamentary side and became a member of Cromwell's Council of State.  After the Restoration in 1660, he came a strong defender of parliamentary authority and critic of royal absolutism.  He also supported the religious interests of the Dissenters and the argument for religious toleration.  And he was deeply involved in matters of trade, colonial expansion in North America, and in the advancement of the interests of merchants and traders.  As a Whig leader, he led an alliance with the lower classes of artisans and tradesmen to resist absolute power and to defend religious and political liberty.

What we today identify as Locke's liberalism was the liberalism that Locke learned from Shaftesbury.  The evidence for this is that while prior to 1667, Locke wrote essays defending royal absolutism and rejecting religious toleration, he reversed himself after 1667.

Locke shared Shaftesbury's fear that Charles II was plotting with French King Louis XIV to introduce a French Catholic absolutism to England.  In 1679-1681, they led the Whigs in agitating for the passing in Parliament of an Exclusion Bill that would exclude the brother of Charles--the Duke of York, the future James II--from succeeding to the throne.  The Whigs won three parliamentary elections, and the House of Commons passed an Exclusion Bill in 1680.  But Charles II frustrated their agenda by dissolving Parliament, and beginning in 1681, he refused to call Parliament into session for the rest of his reign.

Charles II set out to suppress his Whig opponents while supporting the Tories.  Most of the Whigs retreated and withdrew into inactivity.  But Shaftesbury led a small group of radical Whigs who were prepared for active revolutionary resistance to the King.  It was during this time that Locke began writing the Two Treatises as a theoretical defense of the radical Whig plan for violent revolution against Charles II.  The crucial doctrine for his argument was that in the state of nature, "every man hath a right to punish the offender, and be executioner of the law of nature," and when a ruler becomes an absolute tyrant, this dissolves the government, restores the state of nature, and thus restores the natural right of all men to defend themselves against those who threaten their lives, liberties, and properties (ST, 7-13).

Shaftesbury was arrested and charged with treason in 1681, but he was acquitted by the grand jury.  By the summer of 1682, Shaftesbury was actively planning a violent uprising.  In November of that year, fearing for his safety, Shaftesbury left England for Holland, where he died in January of 1683.

The plotting for overthrowing the King continued without Shaftesbury.  During this time, Locke was reading and taking notes on books about the history of political conspiracies, including Machiavelli's account of conspiracies in The Prince and the Discourses.  Locke was involved in the Rye House conspiracy, which was a plan to assassinate both Charles II and his brother James.  When the government learned about the Rye House conspiracy from informers, Locke left London in June of 1683, and went into hiding in the west of England.  In August, he left for Holland.  Throughout his time in Holland, he was in fear of being arrested and extradited to England to be tried for treason.  He moved in secret from one house to another in Holland.  An English envoy in Holland collected intelligence on the movements of Locke and the other radical Whig exiles in Holland.

Some of the Rye House conspirators were executed for treason, including Algernon Sydney, who had written his Discourses on Government as a defense of popular revolution for overthrowing tyrannical monarchs.  Sydney's arguments were similar to those in Locke's Two Treatises.

Locke had a studentship in Christ Church, Oxford University.  So he could have chosen to withdraw from political activity into a life of academic study at Oxford.  Instead, he chose to continue his participation in underground radical Whig plotting against the King.  As a consequence of this, he was expelled from his studentship at Oxford in 1684.

On February 6, 1685, Charles II died; and James II took the throne.  The radical Whigs planned a rebellion that would put the Duke of Monmouth, the son of Charles II, on the throne.  In July of 1685, Monmouth's Rebellion was defeated, and Monmouth was executed.

James II promoted a policy of religious toleration that would protect Catholicism in England.  Under the Penal Laws, anyone who did not participate in Anglican services could be fined and imprisoned.  Under the Test Acts, those who were not Anglicans could not serve in the military or in governmental offices.  In the Act of Indulgence of 1672, Charles II had used his prerogative power to suspend these laws.  James II wanted to continue this policy.  In 1687, James issued the Declaration of Indulgence that established a policy of toleration for Protestant Dissenters and for Catholics.  This created a dilemma for the proponents of religious liberty--Dissenters and radical Whigs.  On the one hand, they benefitted from the policy of toleration.  On the other hand, they rejected the King's claim that his royal prerogative included the power to dispense with the laws of Parliament.

Locke began writing his Letter Concerning Toleration in 1685, which resolved this dilemma by arguing that since "the care of each man's salvation belongs only to himself," religious belief is a matter of private conscience that is beyond any political authority (LCT, 13, 26).  Consequently, in demanding toleration, the Dissenters did not have to endorse the illegal power of the King to dispense with the laws, because they could see themselves as exercising their natural rights in rejecting any political authority over religious belief.  When any government denies religious liberty, it exercises force without right, which returns people to a state of nature, in which they may "resist force with force" in armed resistance to such oppression (LCT, 60).

With this kind of reasoning, Locke and other radical Whigs argued that in 1688, England had returned to a state of nature, because of James II's exercise of force without right, and thus the people were free to resume their natural right defend their life, liberty, and property, and to consent to the establishment of a new government.  But the moderate Whigs who joined the Tories in forcing James II to leave England and in crowning William and Mary did not agree with this radical Whig interpretation of the revolution.  When Locke returned to England in 1689, he took the side of the radical Whigs.

My point here in recounting this history is that Locke's philosophical writing was part of his active engagement in radical Whig political activity, including the Whig conspiracies for violent revolution.  So Locke's claim that all human beings have a natural executive power to defend themselves against aggressive attacks, including attacks on their rights from government, is not just a principle of abstract theorizing but a practical strategy of violent resistance to tyranny.  Locke himself chose to become an outlaw; and if he had been captured by Charles II or James II, he would have been beheaded, like Algernon Sidney and other radical Whig theorists. 

Moreover, this history also shows that Locke saw appeals to natural right as ultimately appeals to the force of arms, so that disagreements over right are settled by conspiratorial violence and military conflict.  Contrary to the common belief that the Glorious Revolution was a bloodless revolution, there were many violent clashes in the revolution; and the revolution would have failed if the military forces of James II had defeated the military forces of William III.

In a certain sense, therefore, Locke believed that "might makes right."  We can identify natural rights as those conditions for human life that cannot be denied without eventually provoking violent rebellion.  We might say that human rights are natural rights in so far as they are enforced by the natural human propensity to retaliate and take vengeance against, and feel revulsion towards, great injustices. 

This thought is developed here, here, here, and here.

To be continued . . .

Saturday, May 23, 2015

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.

Monday, May 18, 2015

The Evolution of Darwinian Liberalism


In December of 2013, I participated in a workshop on "Liberalism and the Evolutionary Agenda" in Freiburg, Germany.  I wrote a series of six posts on that workshop.

Now, the Journal of Bioeconomics (volume 17, number 1, 2015) has published some of the papers from that workshop, along with a paper by David Sloan Wilson.  Here is my article, which is a shortened version of the long paper that I presented at the workshop.


The evolution of Darwinian liberalism

Larry Arnhart

 

Abstract  From John Locke and Adam Smith to Herbert Spencer and Friedrich Hayek, the central idea of classical liberalism has been the thought that the social orders of morals, markets, laws, and politics can emerge as spontaneous orders—as largely self-regulating and unintended orders arising from the interaction of individuals pursuing their individual ends.  Darwinian evolutionary science supports this idea by showing how evolutionary order can arise from the evolution of self-ownership, property, and mammalian sociality and the evolution of exchange and the division of labor.  In developing these points, I argue for a Darwinian liberalism.

 

Keywords  Darwinism, Division of Labor, Evolutionary Psychology, Liberalism, Neuroscience, Property

 

The fundamental idea of classical liberalism is that society is largely a self-regulating, unintended order—a largely self-enforcing order created unintentionally by the free exchanges of individuals seeking to satisfy their individual desires (Barry 1982; Hamowy 1987; Raico 2012).  In this paper, I argue that Darwinian evolutionary science supports this fundamental idea of classical liberalism by sustaining an evolutionary liberalism as based on two evolutionary foundations--the evolution of self-ownership, property, and mammalian sociality and the evolution of exchange and the division of labor.  I thus add to the work of a few other scholars who have suggested ways in which an evolutionary science of human nature confirms liberal social thought (Rubin 2002; Turner and Maryanski 2008).

 

1  The evolution of self-ownership, property, and mammalian sociality

 

If classical liberalism is correct in assuming that society can arise as a largely self-regulating, unintended order from the actions of individuals seeking only the satisfaction of their individual desires, then the naturally self-seeking desires of individuals must lead them into social cooperation with others.  Adam Smith explains this as an expanding circle of human care rooted in care for oneself and then extended to care for one’s property, one’s family, and wider groups. Darwinian science supports this individualistic explanation of social order by showing how individuals are inclined by their evolved human nature as social mammals to care first for themselves, and then to extend that self-care into caring for property and for other individuals to whom they are attached.

 

1.1  Self-ownership as liberalism’s first principle of human nature

 

Classical liberalism teaches us that even if the cosmic order of the world does not care for or about us, we care for ourselves.  Consequently, the moral order of human social life conforms to the order of human care.  And having evolved to be the smart social mammals that we are, our human societies organize themselves through an expanding circle of human care.  Human beings naturally care first and foremost for themselves as individuals.  But as social animals who cannot live or thrive without the cooperative concern of others, human beings also care for and about others, and consequently they care for how they appear to others—seeking their approval and avoiding their disapproval.  Finally, through the power of our human imagination, we project our desire for social approval into a desire for the approval of an impartial spectator, which gives us a moral sense or conscience.

          Smith sketched that naturally expanding circle of human care.  Every person is first and primarily recommended to his own care, Smith observed, because every person is better situated to care for himself than for any other person, and because every person feels his own pleasures and pains more sensibly than those of others.  One’s feelings of one’s own pleasures and pains are the “original sensations,” and what one feels of the pleasures and pains of others is only “the reflected or sympathetic images of those sensations.”  After one’s care for oneself, one extends one’s affections first to one’s family—parents, children, siblings, and more distant relatives—then to one’s closer friends and neighbors, then to social relationships of gratitude and reciprocity, then to those individuals of high rank whom one admires, then to people whose suffering elicits one’s fellow-feeling, then to one’s country as stirring patriotic love, and finally, there can be some universal benevolence for all sensible beings insofar as they are brought to our attention (Smith 1982, pp. 219-35).

At the center of Smith’s expanding circle of care is one’s natural self-ownership, which is the first principle of liberalism.  Perhaps the earliest clear statement of this liberal principle was by Richard Overton in 1646.  Writing as one of the Levellers in the English Civil War, Overton began a political pamphlet by declaring: “To every individual in nature is given an individual property by nature not to be invaded or usurped by any.  For everyone, as he is himself, so he has a self-propriety, else could he not be himself.”  He saw this claim of self-ownership as an instinctive natural desire.  And insofar as every individual can recognize that every other individual naturally asserts the same claim to self-ownership, everyone can see that he must respect the natural liberty of others if he expects them to respect his natural liberty.  For if he infringes on the natural liberty of others, he will provoke their resentment and retaliation (Overton 1998, pp. 55-57).

          Later, Locke adopted this same principle of self-ownership as the ground of natural rights (Zuckert 2002, pp. 3-7, 193-97, 324-26).  In his Second Treatise of Government, Locke asserts: “Though the Earth, and all inferior Creatures be common to all Men, yet every Man has a Property in his own Person.  This no Body has any Right to but himself.  The Labour of his Body, and the Work of his Hands, we may say, are properly his.  Whatsoever then he removes out of the State that Nature has provided, and left it in, he hath mixed his Labour with, and joined to it something that is his own, and thereby makes it his Property” (par. 27).  Locke thought it self-evident that though the resources of nature are available in common for all, each man as master of himself and proprietor of his own person could extend himself through labor to claim property in those natural resources (par. 44).

Later, in the nineteenth century, British liberals like Auberon Herbert (1978) elaborated this principle that each person as “self-owner” was the “owner of his own mind and body and his own property” (pp. 369-75).  Today, classical liberals like Charles Murray (1997) continue to appeal to this principle of self-ownership.

          Locke’s understanding of self-ownership was founded in a biological conception of embodied self-awareness.  Locke was a medical doctor and a biomedical researcher who worked closely with some of the leading medical scientists of his day, such as Thomas Sydenham, Robert Boyle, and Thomas Willis (Dewhurst 1963; Woolhouse 2007).  For example, he contributed to Boyle's experiments with his air-pump to explore how air provided some element necessary for respiration, which apparently sustained the natural heat of the heart that was necessary for life.  Thus, Boyle and Locke were close to the discovery of oxygen's role in sustaining animal life.  One of Locke's earliest writings was a draft manuscript on the importance of air in respiration.  He wrote: "Nature's aim seems to have been to foster that universal heat or fire of our life. For we live as long as we burn, and are nourished by the same fire” (Woolhouse 2007, p. 68).   Here he saw the natural teleology of functional processes in biology.

Locke also learned about how the human mind emerges from the brain and nervous system from Willis, who was the founder of modern neurology (Zimmer 2004).  Like Aristotle, Willis dissected monkeys and apes to study their neurological similarities to human beings, while also looking for differences that would explain the distinctiveness of the human mind.

In his Essay Concerning Human Understanding, Locke identified a "person" or "self" as "a thinking intelligent being, that has reason and reflection, and can consider itself as itself, the same thinking thing, in different times and places."  All the parts of a human body are vitally united to this thinking self, "so that we feel when they are touched, and are affected by, and conscious of good or harm that happens to them, are a part of ourselves; i.e. of our thinking conscious self."  So that "the limbs of his body are to every one a part of himself; he sympathizes and is concerned for them."  "Self is that conscious thinking thing . . . which is sensible or conscious of pleasure and pain, capable of happiness or misery, and so is concerned for itself, as far as that consciousness extends.  Thus every one finds that, whilst comprehended under that consciousness, the little finger is as much a part of himself as what is most so” (1959, II.xxvii.9, 11, 17).

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 understood as rooted in the mammalian evolution of the human nervous system.


1.2  The neurobiology of care


The biological psychology of human care can be illuminated through Antonio Damasio’s  (1994) "somatic marker hypothesis" for explaining the importance of emotion in decision-making and consciousness.  Building on an idea proposed by William James and Carl Lange, Damasio believes that emotions arise from physiological states of the body, so that, for example, the emotion of fear arises from the physiological disturbance of the body associated with some fearful event.  Emotions help us to make decisions by assigning emotional valence to our choices. Through imaginative projection, we can foresee the emotional outcome of a choice by anticipating how we will feel--our somatic markers--if we make that choice, and thus we might avoid a choice with fearful associations.  Ultimately, this emotional decision-making mechanism is an evolutionary adaptation to secure the survival and well-being of the body.

This line of thought has been extended by A. D. (Bud) Craig, a functional neuroanatomist.  He has traced out the fundamental neuroanatomical basis for all human emotions, and he has argued that this shows how the neural substrates for human self-awareness or consciousness are based on the neural representation of the physiological state (the homeostasis) of one's body.  This manifests the embodiment of emotional self-consciousness.  In particular, he argues that there is a phylogenetically novel sensory pathway in primates, most fully developed in human beings, that provides for a self-conscious integration of the physiological condition of the body (the material "self") with one's sensory environment, with one's motivational condition, and with one's social situation in the anterior insular cortex (AIC) (Craig 2002, 2003, 2008).

In imaging studies of emotion, the AIC is jointly activated with the anterior cingulate cortex (ACC).  The AIC seems to be the primary site for generating self-awareness from representations of the feelings from the body, while the ACC seems to be the site for the initiation of behavior, which thus provides volitional agency.

This could be the evolutionary neurophysiological basis for Locke's account of natural rights.  Reasoning about natural rights ultimately depends on discerning natural human inclinations, such as self-preservation, property, social attachment, practical judgment, and intellectual understanding, which correspond to what I have identified as the twenty natural desires.  Evolutionary neuroscience explains how the human nervous system has evolved to serve those natural inclinations or desires.  The concrete expression of those natural inclinations varies according to individual temperament, individual life history, and cultural circumstances.  But there is a universal human pattern that manifests the evolved natural needs of human beings as the smart social mammals that they are.

The evolution of mammalian social behavior depends on the evolution of pain or "negative affect," which includes pain, fear, panic, and anxiety.  In all vertebrates, fear and pain are represented in the brainstem and hypothalamus as signals to elicit self-preserving behavior.  In mammalian evolution, these neural mechanisms are modified so that animals care for their offspring as well as themselves.  This includes modifying the cortex of the mammalian brain to elaborate the representation of pain to include anxiety tied to separation from or threat to loved ones.

Craig's research clarifies this neural evolution of pain by classifying pain as a homeostatic emotion rather than as a sensation of touch.  Pain belongs to "interoception"--the sense of the physiological condition of the body--and it is therefore part of the evolved mechanisms for self-preservation.  The insular cortex receives signals from all the tissues of the body, and these signals are integrated with physical and social stimuli from outside the body and with the memory of past experiences as well as imaginative projections of future experiences.  This supports a general awareness of the body's condition in space and time.  The ACC can then be activated to motivate behavior to correct whatever is wrong.  This neural processing mechanism seems to be unique to primates, but it's more highly developed in human beings.

Both the insular cortex and the ACC respond not only to physical pain from bodily injury but also social pain from social injury.  In mammalian evolution, the neural circuitry for physical pain was appropriated for registering social pain in animals adapted for social attachment.  Mammals have evolved to care for the survival and well-being not only of themselves, but also of others to whom they are attached.  Extending the neural mechanisms originally evolved for individual self-preservation to include the welfare of offspring and social partners secures mammalian social order.  The uniquely human evolution of the neocortex elaborates this mammalian development to sustain human love and concern for others.  When we use the language of physical pain to metaphorically describe our social pain, as when we speak of suffering "a broken heart,” we suggest the embodiment of our natural social consciousness, in which our mind, our brain, our body, and our social life are inseparably intertwined.  After all, being rejected by others really does hurt us, and we can see how this is rooted in our evolved nervous system (Eisenberger and Lieberman 2004).

Social neuroscience is beginning to explain the neurochemistry of mammalian attachment as the natural ground for human morality and social order as rooted in human care (Zahn, Oliveira-Souza, and Moll 2011; Churchland 2011, 2013).  As shaped by evolutionary history, nervous systems are organized to take care of the body.  Animals with neural adaptations inclined to care for themselves and for their well-being are selected over those that neglect their self-preservation.   In mammals, this caring for oneself is extended into care for others--for one's offspring, for one's mate, for one's kin, and for others in one's group.  We are now beginning to explain how this works through the neurochemistry of factors such as oxytocin and vasopressin, which support attachment and bonding.  This sustains the basic social desires or sentiments that lead to human morality.   This neurobiology of mammalian sociality confirms the argument of Locke, Smith, and other liberal thinkers about the importance of mammalian biology as the natural ground for the unintended social order of family life (Locke 1988, I.86-88, II.77-79; Smith 1982b, pp. 141-43, 438).

Because of our evolved human nature, we care not only for ourselves and other persons to whom we are attached, but also for the physical goods that have some value for us, and thus we have a natural desire for property.

 

1.3  The biology of property


A Darwinian view of human nature sustains the liberal commitment to private property as a natural propensity that is diversely expressed in custom and law.  The particular rules for property rights are determined by customary traditions and formal laws that vary across history and across societies, but that variation is constrained by the natural desire for property.  We need to understand the complexity of property across three levels--natural property, customary property, and formal property (Arnhart 2009, pp. 59-67).

This is illustrated in the historical case of mining law in California.  Once gold was discovered in northern California in 1848, hundreds of thousands of people went there to search for gold, and they showed their natural instinct for property by claiming land for mining by taking possession of it, although they were only squatters on land officially owned by the federal government of the United States.  To settle disputes over mining claims, the miners developed customary rules that they enforced among themselves by social tradition.  Then, finally, in 1866, the United States Congress passed a federal mining law that formally legalized these local customs of the miners.

Thus, the property claims of the miners moved through three levels--natural possession, customary rules, and formal laws.  This manifests the general structure of Darwinian social order as the joint product of natural desires, cultural practices, and deliberate judgments.

In recent years, a growing number of law professors have become interested in the evolutionary analysis of law, and one prime area of research has been the evolutionary analysis of property law.  This research confirms the Darwinian account of property (Krier 2009; Stake 2004; DeScioli and Wilson 2011).

This research provides a scientific confirmation for the evolutionary explanation of property laid out originally by Locke (in his Two Treatises of Government), William Blackstone (in his Commentaries on the Laws of England), and Adam Smith (in his Lectures on Jurisprudence) (Smith 1982b, pp. 13-39).   First, among ancient foraging bands, hunting territory was owned communally by the band--excluding other bands--and personal property (such as weapons, tools, and clothing) was owned individually.  These original claims to property were based on possession and occupancy, so that the first person or group to take and hold possession of some scarce resource was presumed to own it.  This was enforced by customary agreement.  But, then, when agriculture was developed, the growing scarcity and demand for land made it necessary to settle property disputes through the formal institutions of government, and the invention of writing facilitated this.  Finally, with the expansion of commerce and trade, property rights became ever more subject to rules of sale, grant, or conveyance.

We might explain part of the evolutionary logic for property through John Maynard Smith's (1982) evolutionary game theory analysis of how the "bourgeois" strategy develops among animals to settle disputes over territory and resources.  If we imagine two animals competing for access to a particular breeding territory, and if they have an equal opportunity of arriving first and possessing it or arriving later and being an intruder, we might imagine two possible strategies: the Hawk who fights until one animal is injured and retreats, and the Dove who bluffs but never fights. Under certain conditions, the best strategy is a "bourgeois" strategy that mixes the other two: "if owner, play Hawk; if intruder, play Dove."  In fact, many animals do seem to play this strategy, so that the possessor of a territory tends to have an advantage over an intruder, and consequently there is a kind of instinctive rule of property that favors possessors over intruders, because possessors will risk injury to defend their possessions, while intruders will retreat in response to the threat of injury.  Of course, explaining territorial behavior among animals requires weighing many factors that influence the costs and benefits of defending territory, which goes beyond a simple choice between two strategies (Alcock 2013, pp. 142-52).  But the general point is that it is adaptive for animals to defend their possession of appropriated resources.

The primacy of possession runs through much of our property law, and this could be because it is rooted in the evolved structure of our brains so that it feels right to us.  One lawyer concludes: "Possession, as any property lawyer knows, remains the cornerstone of most contemporary property systems--nine points of the law, the root of title, and the origin of property” (Krier 2009, p. 159).  Included in the right of possessing property is the right of exchanging one’s property for the property of others, which allows for the mutual gains from trade (Westermarck 1906, vol. 2, pp. 1-71).


2  The evolution of exchange and specialization

 

The liberal idea of society as a largely self-sustaining order assumes that this arises as an unintended outcome of the actions of individuals naturally inclined to mutual exchange and a division of labor.  Smith explained this in The Wealth of Nations as rooted in the human “propensity to truck, barter, and exchange.”  Darwinian science confirms this liberal idea by showing how a natural propensity to exchange and specialization arose in human evolution, and how the modern cultural evolution of exchange and specialization explains the explosive growth in the prosperity, population, and liberty of the modern world. 


2.1  The evolution of the “propensity to truck, barter, and exchange”

 

Smith claims in The Wealth of Nations that the "propensity to truck, barter, and exchange one thing for another" is uniquely human and not found in any other animals (1981, p. 25).  Is this true, and, if true, what would it mean for our understanding of human social life?

Haim Ofek (2001) and Matt Ridley (2010) have argued that what we now know about human evolution confirms Smith's insight about the unique importance of exchange for human history.  The whole of human history for the past 200,000 years can be understood as the progressive extension of human cooperation through exchange and the division of labor--from foraging bands to agrarian states to modern commercial societies in global networks of trade.  Both Ofek and Ridley see this as arising from a human propensity to exchange that cannot be seen in any other animal.

In the first chapter of The Wealth of Nations, Smith explains the division of labor as the primary cause for the increasing productivity, which includes the famous example of the pin factory.  In the second chapter, he explains how this division of labor arose in human history:  "This division of labour, from which so many advantages are derived, is not originally the effect of any human wisdom, which foresees and intends that general opulence to which it gives occasion.  It is the necessary, though very slow and gradual consequence of a certain propensity in human nature which has in view no such extensive utility; the propensity to truck, barter, and exchange one thing for another” (p. 25).   Smith does not see this propensity in other animals: “Nobody ever saw one animal by its gestures and natural cries signify to another, this is mine, that yours; I am willing to give this for that” (p. 26).   Animals beg for help, and human beings also do this as well.  But in a large civilized society, human beings require the cooperation of a great number of strangers who feel no love, friendship, or benevolence for them.  Consequently, in such a large human society, we must secure the cooperation of strangers through mutually beneficial trading:  “Give me that which I want, and you shall have this which you want, is the meaning of every such offer; and it is in this manner that we obtain from one another the far greater part of those offices which we stand in need of.  It is not from the benevolence of the butcher, the brewer, or the baker, that we expect our dinner, but from their regard to their own interest” (pp. 26-27).

Smith then indicates that the emergence of a division of labor through exchange appears originally among savages living as hunter-gatherers, where someone might specialize in making bows and arrows that he can trade for some meat captured by a hunter, so that each fills a particular occupation, and thus their joint labor becomes more productive than would be the case if each were working only for himself (1981, pp. 27-28; 1982b, pp. 347-49).  This is part of Smith's understanding of human social evolution as passing through four stages of social life--from foraging to herding to farming to commerce.  Smith and other Scottish philosophers developed a theory of the four stages in social evolution from their study of the reports about the native Americans in the New World.  This was the beginning of evolutionary anthropology (Meek 2011).

At the beginning of The Wealth of Nations, we see the fundamental idea that is common to Smith's social thought and Darwin's biology--the possibility of design-without-a-designer ("not originally the effect of any human wisdom") through emergent or spontaneous order.   Smith then poses an evolutionary question: Was the propensity to exchange an original principle of human evolution, or was it a late by-product of earlier evolved "faculties of reason and speech"?  Although he chooses not to take up this question here, he considers it more probable that reason and speech came first, and then the propensity to exchange came later as a by-product.  In the Lectures on Jurisprudence, Smith says that the "real foundation" of exchange and the division of labor is "that principle to persuade which so much prevails in human nature” (1982b, p. 352).   Like Aristotle, Smith believes that human beings are more political than other political animals because human beings have a capacity for logos--reason or speech--that allows them to persuade one another to cooperate for common ends, which makes exchange and the division of labor possible.  Ofek argues, however, that the evidence of human evolutionary history now suggests that exchange was an early agent of human evolution that favored the evolution of human reason and speech.

Smith goes on to suggest that while other animals can seem to act in concert when they are in passionate pursuit of the same object--like greyhounds chasing the same hare--this is the consequence not of any contract or deliberate choice but of "the accidental concurrence of their passions" in pursuing the same object at the same time.  Non-human animals are unable to communicate with one another well enough to say: "this is mine, that yours; I am willing to give this for that."

Smith does think that non-human animals can engage in persuasion by begging for attention within their families or their groups or even to elicit benevolent care from human beings.  But the range of benevolence for all animals--including human beings--is limited.  In human civilization, individuals need "the cooperation and assistance of great multitudes," and for this they must appeal not to benevolence but to self-love, by persuading other individuals to engage with them in mutually beneficial exchanges.  Indeed, Smith points out that among human beings, even beggars cannot rely totally on charitable benevolence to secure their needs, because they beg for money that they use to buy what they need.

We might wonder whether Darwin would agree with Smith about barter or exchange being unique to human beings in giving rise to the division of labor as a spontaneous order.  Remarkably, Darwin says little about exchange in human evolution.  But there are at least two passages in Darwin's writings that both Ofek and Ridley cite as supporting their arguments about the human evolution of exchange.

In the Voyage of the Beagle, Darwin described the savage people that he saw at Tierra del Fuego, at the far southern tip of South America.  He thought the Fuegians showed the most primitive level of human social life.  "Some of the Fuegians plainly showed that they had a fair notion of barter. I gave one man a large nail (a most valuable present) without making any signs for a return; but he immediately picked out two fish, and handed them up on the point of his spear. If any present was designed for one canoe, and it fell near another, it was invariably given to the right owner” (2004a, p. 201).  Darwin seems, then, to agree with Smith that even those living in the most primitive foraging societies show "the propensity to truck, barter, and exchange one thing for another."

In The Descent of Man, Darwin described how man became "the most dominant animal" through technological inventions such as tools:

To chip a flint into the rudest tool, or to form a barbed spear or hook from a bone, demands the use of a perfect hand; for, as a most capable judge, Mr. Schoolcraft, remarks, the shaping fragments of stones into knives, lances, or arrow-heads, shews 'extraordinary ability and long practice.' This is to a great extent proved by the fact that primeval men practised a division of labour; each man did not manufacture his own flint tools or rude pottery, but certain individuals appear to have devoted themselves to such work, no doubt receiving in exchange the produce of the chase (Darwin 2004b, p. 69).

Darwin implies that the complexity of artifacts in the archaeological record could be interpreted as evidence for a division of labor that promotes the dexterity and inventiveness that comes from specialization.  Ofek and Ridley have adopted this line of reasoning in arguing that the explosion of technological complexity in the Upper Paleolithic record of human evolution is a consequence of exchange and specialization, which is confirmed by evidence that some of the material in the human artifacts was transported over long distances, apparently through trade.

Darwin does not indicate, however, that this propensity for exchange and a division of labor is uniquely human, as Smith does.  Ridley argues that recent research on the evolution of cooperation confirms Smith's view.  Other animals cooperate with one another based on kinship, relatedness, and reciprocity (direct and indirect), and human cooperation shows these same evolved mechanisms at work.  But cooperation based on exchange or barter is uniquely human, and it cannot be explained as a form of reciprocity.  Reciprocity means giving each other the same thing.  I'll scratch your back if you scratch mine (direct reciprocity).  Or I'll scratch your back because you have a reputation for scratching the backs of others (indirect reciprocity).  But exchange means giving each other different things.  As Smith puts it, "Give me that which I want, and you shall have this which you want."  Other animals can't do this.

To support this conclusion, Ridley cites some experiments with chimpanzees:

The primatologist Sarah Brosnan tried to teach two different groups of chimpanzees about barter and found it very problematic. Her chimps preferred grapes to apples to cucumbers to carrots (which they liked least of all). They were prepared sometimes to give up carrots for grapes, but they almost never bartered apples for grapes (or vice versa), however advantageous the bargain. They could not see the point of giving up food they liked for food they liked even more. Chimpanzees and monkeys can be taught to exchange tokens for food, but this is a long way from spontaneously exchanging one thing for another: the tokens have no value to the chimpanzees, so they are happy to give them up. True barter requires that you give up something you value in exchange for something else you value slightly more (Ridley 2010, p. 59).

Here Ridley is obscuring some of the complexity in these experiments (see Brosnan 2008).  Brosnan and her colleagues apparently showed that chimps do barter, at least in a situation where they can trade very low valued items (carrots) for very high valued items (grapes).  But they do not barter where the gains from barter are small--as in trading valuable apples for slightly more valuable grapes.  One possible explanation that they suggest is that the chimps are less inclined to take the risk from giving up a valued food item if the possible gains are too small.

Nevertheless, these experiments do provide some support for the Smith/Ridley position.  Even if these chimps can learn to barter under some special conditions in the laboratory, they don't seem to spontaneously barter in the wild.  This is in contrast to the human situation where bartering comes easily as a spontaneous behavior, even in the most primitive human conditions, as with Darwin's Fuegians.

2.2  The neurobiology of exchange

 

If exchange has been an important factor for human evolution for a hundred thousand years or more, then we can expect that human neurobiological systems support the disposition to exchange.   Paul Zak (2012) has performed some game-theory experiments that seem to show that this disposition to exchange as based on trust is supported by the neuroactive hormone oxytocin, which is found in all mammals, and which evolved originally to support maternal care of offspring.   The ancient evolution of oxytocin in human beings and other mammals suggests deep evolutionary roots for extended human cooperation.

Zak argues that economic exchange depends upon moral values, because it depends upon the trust that makes cooperation possible.  There is evidence that this disposition to trust and cooperation has evolved to be part of human nature, although the expression of that disposition varies in response to the cultural environment.  We are now beginning to explain the neural mechanisms of this evolved moral nature.  In particular, Zak has shown experimentally that oxytocin supports moral cooperation by promoting attachment to offspring, to reproductive partners, to friends, and even to strangers.  What originally evolved to promote mammalian maternal care for offspring has been extended to embrace ever wider groups of individuals who benefit from exchange.

Zak sees economic exchange as rooted in evolved human nature:

Values are not specific to the West or East, nor are there broadly distinct Western and Eastern economic institutions.  Rather, values across all cultures are simply variations on a theme that is deeply human, strongly represented physiologically, and evolutionarily old. Similarly, the kinds of market institutions that create wealth and enable happiness and freedom of choice are those that resonate with the social nature of human beings who have an innate sense of shared values of right, wrong, and fair.  Modern economies cannot operate without these (Zak 2008, p. 276).

Zak agrees with Friedrich Hayek (1991) in seeing the modern transition from personal exchange to mostly impersonal exchange in markets as making possible the great increases in wealth and population since the Industrial Revolution.  But in contrast to Hayek, Zak sees this cultural tradition of impersonal exchange as developing an innate potentiality of evolved human nature.

One can see this in the research of Joseph Henrich and his colleagues (2010) who studied the play of the Ultimatum Game in small-scale societies around the world. Variations in the play of the game manifested variations in the cultural norms of the societies.  The higher rates of fair offers in the game were associated with those societies that had high levels of market activity.  It seemed that people who regularly engaged in trade learned that successful trading required that traders agree on a fair distribution of gains.  The genetically evolved neural mechanism of oxytocin as favoring trust will fluctuate in response to the culturally evolved social environment.  Thus, a Darwinian explanation of exchange behavior requires a coevolutionary explanation of the interaction between genetic evolution and cultural evolution, in which cultural evolution taps into human genetically evolved psychology.

 

3  Conclusion

In one of the first reviews of Darwin’s Origin of Species, Thomas Henry Huxley (1860) declared that “every philosophical thinker hails it as a veritable Whitworth gun in the armory of liberalism.”  The Whitworth gun was a new kind of breech-loading cannon.

          If the fundamental idea of liberalism is that social order can arise as a largely self-regulating and unintended order from the free exchanges of individuals seeking to satisfy their individual desires, then Darwinian evolutionary science truly is a powerful weapon for liberalism insofar as it supports that idea.  It does that by showing how an evolutionary liberalism can be grounded on the evolution of self-ownership, property, and mammalian sociality and on the evolution of exchange and the division of labor.

  

References

Alcock, J. (2013). Animal behavior. 10th ed. Sunderland, MA: Sinauer Associates.

Arnhart, L. (2009). Darwinian conservatism. Exeter, UK: Imprint Academic.

Barry, N. (1982). The tradition of spontaneous order. Literature of Liberty 5, 7-58.

Brosnan, S., Grady, M. F., Lambeth, S. P., Schapiro, S. J., & Beran, M. J. (2008). Chimpanzee autarky. PLoS ONE, 3, e1518, 1-5.

Churchland, P. (2011). Braintrust: What neuroscience tells us about morality. Princeton, NJ: Princeton University Press.

Churchland, P. (2013). Touching a nerve: The self as brain. New York: W. W. Norton.

Craig, A. D. (2002). How do you feel? Interoception: The sense of the physiological condition of the body. Nature Reviews Neuroscience, 3, 655-666.

Craig, A. D. (2003). A new view of pain as a homeostatic emotion. Trends in Neuroscience, 26, 303-307.

Craig, A. D. (2008). Interoception and emotion: A neuroanatomical perspective. In M. Lewis, J. Haviland-Jones, and L. Barrett (Eds.), Handbook of Emotions, 3rd ed. New York: Guilford (pp. 272-88).

Craig, A. D. (2009). How do you feel—now? The anterior insula and human awareness. Nature Reviews Neuroscience, 10, 59-70.

Damasio, A. (1994). Descartes’ error: Emotion, reason, and the human brain. New York: G. P. Putnam’s Sons.

Darwin, C. (2004a). The descent of man, and selection in relation to sex. New York: Penguin.

Darwin, C. (2004b). The voyage of the beagle. Washington, DC: National Geographic Society.

DeScioli, P., & Wilson, B. (2011). The territorial foundations of human property. Evolution and Human Behavior, 32, 297-304.

Dewhurst, K. (1963). John Locke (1632-1704), physician and philosopher: A medical biography. London: Wellcome Historical Medical Library.

Eisenberger, N. I., & Lieberman, M. D. (2004). Why rejection hurts: A common neural alarm system for physical and social pain. Trends in Cognitive Sciences 8, 294-300.

Hamowy, R. (1987). The Scottish enlightenment and the theory of spontaneous order. Carbondale: Southern Illinois University Press.

Hayek, F. (1991). The fatal conceit: The errors of socialism. Chicago: University of Chicago Press.

Henrich, J., Ensminger, J., McElreath, R., Barr, A., Barrett, C., Bolyanatz, A., Cardenas, J. C., Gurven, M., Gwako, E., Henrich, N., Lesorogol, C., Marlowe, F., Tracer, D., & Ziker, J. (2010). Markets, religion, community size, and the evolution of fairness and punishment. Science 327, 1480-1484.

Herbert, A. (1978). The right and wrong of compulsion by the state, and other essays. Indianapolis, IN: Liberty Fund.

Huxley, T. H. (1859). The origin of species. Westminster Review 17, 541-70.

Krier, J. E. (2009). Evolutionary theory and the origin of property rights. Cornell Law Review 95, 139-60.

Locke, J. (1959). An essay concerning human understanding. 2 vols. New York: Dover Publications.

Locke, J. (1988). Two treatises of government. Cambridge: Cambridge University Press.

Maynard Smith, J. (1982). Evolution and the theory of games. Cambridge: Cambridge University Press.

Meek, R. L. (2011). Social science and the ignoble savage. Cambridge; Cambridge University Press.

Murray, C. (1997). What it means to be a libertarian: A personal interpretation. New York: Broadway Books.

Ofek, H. (2001). Second nature: Economic origins of human evolution. Cambridge: Cambridge University Press.

Overton, R. (1998). An arrow against all tyrants. In A. Sharp (Ed.), The English levellers (pp. 54-72). Cambridge: Cambridge University Press.

Raico, R. (2012). Classical Liberalism and the Austrian School. Auburn, AL: Ludwig von Mises Institute.

Ridley, M. (2010). The rational optimist: How prosperity evolves. New York: HarperCollins.

Rubin, P. H. (2002). Darwinian politics: The evolutionary origin of freedom. New Brunswick, NJ: Rutgers University Press.

Smith, A. (1981). An inquiry into the nature and causes of the wealth of nations. Indianapolis: Liberty Fund.

Smith, A. (1982a). The theory of moral sentiments. Indianapolis: Liberty Fund.

Smith, A. (1982b). Lectures on jurisprudence. Indianapolis: Liberty Fund.

Stake, J. E. (2004). The property instinct. Philosophical Transactios of the Royal Society of London B, 359, 1763-1774.

Turner, J. H., & Maryanski, A. On the origin of societies by natural selection. (2008). Boulder, CO: Paradigm Publishers.

Westermarck, E. (1906). The origin and development of the moral ideas. 2 vols. London: Macmillan.

Woolhouse, R. (2007). Locke: A biography. Cambridge: Cambridge University Press.

Zahn, R., de Oliveira-Souza, R, & Moll, J. (2011). The neuroscience of moral cognition and emotion. In J. Decety & J. T. Cacioppo (Eds.), The Oxford handbook of social neuroscience (pp. 477-90). New York: Oxford University Press.

Zak, P. (2008). Values and value: Moral economics. In P. Zak (Ed.), Moral Markets: The Critical Role of Values in the Economy (pp. 259-79).  Princeton, NJ: Princeton University Press.

Zak, P. (2012). The moral molecule: The source of love and prosperity. New York: Dutton.

Zimmer, C. (2004). Soul made flesh: The discovery of the brain—and how it changed the world. New York: Free Press, 2004.

Zuckert, M. P. (2002). Launching liberalism: On Lockean political philosophy. Lawrence: University Press of Kansas.