This paper was
presented at the Northwest Philosophy Conference in Portland, October, 200.
BIOLOGICALLY BASED SECULAR NATURAL
LAW
Jeffery L. Johnson
Philosophy, Politics, & Economics
Eastern Oregon University
I.
The notion of natural law means related, but
slightly different things to the theologian, the political theorist, the
academic lawyer, and the moral philosopher.
Here I will be most concerned with the notion of ethical objectivity
that clearly underlies all of these disciplinary perspectives. In what might be called “classical” natural
law theory, a very strong connection between what is rational, and what is
moral, is postulated. Objective rules
of conduct, or commandments, are then derived by the careful consideration of
human nature, and the natural laws governing the world. All of this is possible because of the
careful planning of an omnipotent and morally perfect “watchmaker.” Secular natural law proposes a similar
connection between rationality and normativity by the consideration of human
nature and the contingencies of the world, but attributes all of this to a
“blind watchmaker,” the process of natural selection.1
Secular natural law counts as a
version of moral realism because it is committed to the following.
1.
Moral statements are the sorts of statements which are (or express
propositions which are) true or false (or approximately true, largely false,
etc.);
2.
The truth (approximate truth . . .) of moral statements is largely
independent of our moral opinions, theories, etc.;
3.
Ordinary canons of moral reasoning--together with ordinary canons of
scientific and everyday factual reasoning--constitute, under many circumstances
at least, a reliable method for obtaining and improving (approximate) moral
knowledge.2
My commitment
to criteria 1 and 3, is unwavering. My
understanding of the second, however, is perhaps different enough, some might
call it weak enough, to warrant the modified title, “internal moral realism.” Here, I am consciously borrowing from the
work of Hilary Putnam. Like Putnam I
take it to be obvious that an external reality constrains all theorizing,
“there are experiential inputs to knowledge; knowledge is not a story
with no constraints except internal coherence.”3 In the realm of normative theory, however,
it is hard to argue that these “experiential inputs” provide a “God’s eye”
perspective on a single official ethical truth.
‘Truth’, in an internalist view, is
some sort of (idealized) rational acceptability -- some sort of idealized
coherence of our beliefs with each other and with our experiences as those
experiences are themselves represented in our belief system -- and not
correspondence with mind-independent or discourse- independent 'states of
affairs'.4
II.
Anti-realism is sometimes dismissed as
mere “fashionable intellectual style.”5 Whether fashionable or not, ethical
skepticism is an ancient and venerable position in moral philosophy. It is supported by powerful arguments that
have received a good deal of critical attention in recent moral theory. As John Mackie clearly saw, the skeptic’s
challenge to realism is explanatory.
Consider the classical problem of ethical relativism.
The argument from relativity has as
its premiss the well-known variation in moral codes from one society to another
and from one period to another, and also the differences in moral belief
between different groups and classes within a complex community. . . . [T]he
argument from relativity has some force simply because the actual variation in
moral codes are more readily explained by the hypothesis that they reflect ways
of life than by the hypothesis that they express perceptions, most of them
seriously inadequate and badly distorted, of objective values.6
What is the
best explanation of differing values, from person to person, from culture to
culture? Mackie considers and rejects
the conservative hypothesis that one person or group has somehow got it right,
and all the others are in error. The
only alternative he sees is that cultures produce values or “ways of life,” and
that they are epistemologically and causally relative to those cultures that
are their origin. As we shall see,
however, internal moral realism offers a different rival explanation of the
variation in moral codes between cultures, and sub-groups within cultures.
The argument from moral relativity, in
its strongest version, depends on a questionable empirical premise. It is easy enough to find dramatic diversity
of normative direction regarding the demands of honor, or what is proper or
improper in terms of sexuality. But
whether every normative value is subject to cultural variation remains at least
a matter of anthropological debate. I
find much more congenial the view that, stated at the appropriate level of
abstraction, there are certain culturally independent norms. The theologian C. S. Lewis nicely states
this side of the debate.
There have been differences between
[civilizations’] moralities, but these have never amounted to anything like
total difference. If anyone will take
the trouble to compare the moral teaching of, say, the ancient Egyptians,
Babylonians, Hindus, Chinese, Greeks, and Romans, what will really strike him
will be how very like they are to each other and to our own. . . . Think of a
country where people were admired for running away in battle, or where a man
felt proud of double-crossing all the people who had been kindest to him. You might just as well try to imagine a
country where two and two make five.7
More theoretically challenging, but
equally explanatory, is the problem of the status and properties of normative
values. Again, Mackie provides the
classic contemporary articulation.
Even more important, however, and
certainly more generally applicable, is the argument from queerness. This argument has two parts, one
metaphysical, the other epistemological.
If there were objective values, then they would be entities or qualities
or relations of a very strange sort, utterly different from anything else in
the universe. Correspondingly, if we
were aware of them, it would have to be by some special faculty of moral
perception or intuition utterly different from our ordinary ways of knowing
anything else.8
My response to
the argument from queerness echoes my strategy for answering the argument from
relativity. On the one hand I want to
accept the challenge of explaining how values could exist independent of
culture, and how human could gain knowledge of their existence and content. But, at the same time, I want to reject
important parts of Mackie’s assumptions.
In particular, secular natural law will deny that values are “utterly
different from anything else in the universe,” and that awareness of them
requires “some special faculty of moral perception or intuition utterly different
from our ordinary ways of knowing anything else.” Nevertheless, the explanatory challenge is daunting.
III.
Perhaps the key component in natural
law theory is the strong, maybe even definitional, connection between what is
rational, and what is moral. It will be
convenient to adopt the economist’s definition of rationality as that which
maximizes personal utility. The natural
lawyer needs to argue that universal normative constraint maximizes each
individual’s personal utility.
The standard way of illustrating this is through
discussions of the prisoner’s dilemma.
It is important to recognize that everyone engaged in this literature
realizes that the prisoner’s dilemma is an artificial, and very sanitized,
situation that has only tenuous connections to actual social encounters. But it is precisely the simplicity of this
model that makes it so ideal for demonstrating the personal utility of
interacting in a context of universally required constraint on free choice.
PRISONER’S
DILEMMA
Player
B
Cooperates Fails to Cooperate
Cooperates 3, 3 0, 5
Player A
Fails to Cooperate 5, 0 1,
1
Player A, whose payoff is indicated
first, reasons that failing to cooperate will maximize her utility, since if B
cooperates, 5 is greater than 3, and if B fails to cooperate, 1 is greater than
0. Failing to cooperate is A’s dominant
strategy. By exactly the same
reasoning, it is also the dominant strategy for B. Hence, both players if they are rational will fail to
cooperate. The paradox, of course, is
that utility maximization has doomed each player to a clearly sub-optimal
payoff; both could receive 3 rather than 1, if they only cooperated with each
other. A and B need to find a way to
mutually constrain their choices so that failing to cooperate is not an option.
IV.
David Gauthier has argued that morality is just such
a rational system of mutual constraint.
For Gauthier the fundamental value that emerges as a rational solution
to the prisoner’s dilemma is justice, not simply Rawlsean social justice, but
justice between any two interacting people.
Before the constraints of justice individuals will act as personal
utility maximizers, what he calls “straightforward maximizers.” They will find themselves doomed to mutual
non-cooperation. But morality allows
for the development of just individuals.
The just person is fit for society
because he has internalized the idea of mutual benefit, so that in choosing his
course of action he gives primary consideration to the prospect of realizing
the co-operative outcome. If he is able
to bring about, or may reasonably
expect to bring about, an outcome that is both (nearly) fair and (nearly) optimal,
then he chooses to do so; only if he may not reasonably expect this does he
choose to maximize his own utility.9
Just
individuals are rational actors; they agree to mutual constraint because it is
in their long-term best interest. The
become “constrained maximizers.”
The constrained maximizer considers
(i) whether the outcome, should everyone do so, be nearly fair and optimal, and
(ii) whether the outcome she realistically expects should she do so affords her
greater utility than universal non-co-operation. If both these conditions are satisfied she bases her action on
the joint strategy.10
Gauthier
is careful to note two very important considerations that are essential in
order for constrained maximization to be rational. First, the strategy only makes sense if one is reasonably
confident that one is interacting with another constrained maximizer. If one’s opponent in the prisoner’s dilemma
is a straightforward maximizer, the rational play is of course non-cooperation
– just individuals are not stupid nor suckers.
Second, constrained maximization requires a prereflective disposition to
behave justly. If one calculates their
personal utility every time they interact with another, they will simply be a
sophisticated straightforward maximizer.
And a society of straightforward maximizers, however sophisticated, will be a Hobbesian state of nature,
constrained only perhaps by the forces of law and culture.
V.
I am convinced that becoming a
constrained maximizer is a rational solution to prisoner’s dilemmas. But rationality is one thing, normativity
quite another. Secular natural law
insists that rationality is one of the defining conditions of moral truth. Some mechanism is needed for moving from the
purely rational, to the moral. The
history of ethical theory has seen several candidates for bridging the is/ought
chasm.
Since at least the work of Hobbes,
philosophers have been attracted to the idea that rational agreement is the way
to go. If constrained maximazation is
in everyone’s long-term best interest, wouldn’t rational actors engaged in
prisoner’s dilemmas simply agree to the rules of constraint? There are two obvious problems with such an
approach. First, the Hobbsean fool will
insist that straightforward maximization remains his most rational option. He will see the advantages of others
constraining their choices, and he will also see the advantages of appearing to
be a constrained maximizers, but he will still insist that when push comes to
shove, his rational moves is whatever will maximize his personal utility. Perhaps even a more serious challenge to the
contractarian tradition is a long noted embarrassment from it’s application in
political theory. I simply have not
explicitly agreed to be moral (or to obey the state, for that matter), and
neither has anyone else. After
carefully considering arguments like those so beautifully articulated by
Gauthier, I may concede that becoming a constrained maximizer would be
rational, and even concede that if presented with an ethical social
contract, I would sign. But as
Dworkin notes, hypothetical contracts are not contracts at all.11
The obvious advantages of social
interaction between constrained maximizers has such clear cultural benefits,
that we might expect that those mechanisms responsible for social and cultural
conventions – what Harris called cultural materialism – would conspire to
produce traditions, mores, and other social practices aimed at ensuring
constrained maximization. Secular
natural law insists that this has consistently happened. Indeed, it is precisely because different
societies and cultures have provided input into the concrete rules and
understandings that make up actual moral codes that we see the surface
variation that provided the empirical data for the argument from relativity of
values. Still, secular natural law
insists on a culturally invariant core or “deep structure” for moral truth,
while conceding both the logical
soundness of culture’s bridge between is and ought, and the robustness of
culture’s contribution to the substance of actual moral systems.
Constrained maximization is in
individuals’ best interest. It advances
social cohesiveness, and is undoubtedly re-enforced by cultural
conventions. Surely, given these rational
and social virtues, existence in a society of constrained maximizers would
enhance individuals’ survival prospects.
Don’t we have, here, the necessary ingredient for a strong evolutionary
argument? The idea that ethical truth
has a basis in natural selection intrigued Darwin, and evolutionary thinkers
ever since. Unfortunately, the
hypothesis has also faced immense
cultural and theoretical attack. Its
attractions are obvious, if hard-wired into human nature is a behavioral
disposition to behave as a constrained maximizer, to cooperate when possible,
to recognize and make choices on the basis of justice and fairness, then
however culture fleshed out the details, we would find underlying biological
and psychological reality for ethical truth and knowledge.
VI.
Advocates of evolutionary ethics have
often been their own worst enemies. The
have historically proposed careless versions of the central hypothesis that
have easily been exploited by theorists with racist and sexists
motivations. They have also developed
an alarming tendency to overstate their position. But the most serious problems for evolutionary ethics reside, not
with its advocates, but within evolutionary theory, itself.
Constrained maximization depends on a
fairly strong version of group selection.
To see the problem this raises, we need only return to the prisoner’s
dilemma. We have seen the rationality
of the group becoming constrained maximizers rather than continuing to interact
as straightforward maximers, but within a group of constrained maximizers,
becoming a free rider – accepting the benefits of everyone else constraining
their options, but not constraining yours – is the rational (utility
maximizing) strategy. It is well-known
that blatant cheating in iterated prisoner’s dilemma contexts will not be
tolerated, and that in repeated plays tit-for-tat retaliation should be
expected.12 Thus, a community of constrained maximizers
could probably police the most obvious sorts of uncooperative behavior, but
what about covert non-cooperation? This
would clearly be the most rational strategy – generally cooperate, but cheat
when you can get away with it. Now to
the degree that what is rational can be seen as a proxy for having survival
value, there would be enormous evolutionary pressures to become, not a
constrained maximizer, but a deceitful straightforward maximizer.
It was generally accepted in
evolutionary biology that these sorts of problems made group selection, not
impossible, but highly unlikely.
Secular natural law depends on a reappraisal of this conventional
wisdom. It is absolutely true that the
above pressures exist, and that human nature reflects this pressure. It is no part of my thesis that evolution
has produced a society of saints.
Individuals do cheat, and they are more likely to cheat when they think
they can get away with it. This is not
incompatible, however, with natural selection producing a strong predisposition
to behave as a constrained maximizer.
The key to this argument is to embrace group selection as legitimate
mechanism for evolutionary change.
Expanding on the work of George
Williams,13 Wilson and Soper
persuasively argue that group selection is a powerful force in evolutionary history,
and that it works just fine as long as a couple of conditions are satisfied.14
If we treat social groups as “vehicles” for evolutionary change, much in
the same way that selfish gene advocates treat organisms as vehicles, then
group selection requires competition between groups. If our focus is limited to a single group, a population, then the
highest level of evolutionary vehicle must remain the individual organism, and
the free rider problem virtually assures that constrained maximization will result. But if we imagine relatively isolated
subgroups, it is easy to see how a society of constrained maximizers would
genetically out perform a society of straightforward maximizers. In addition, of course, the group selection
forces would have to be stronger than the individual selection pressure that
will always be working toward free riders.
But given that the group advantages were strong enough, and we have seen
powerful reasons for supposing the are, then there is nothing theoretically
suspect in speculating that human evolutionary history has produced a strong
behavioral predisposition to behave cooperatively.
To Soper and Williams’ compelling
argument, I would add one last consideration.
We have already seen how repeated interactions within relatively small
and isolated groups would discourage blatant non-cooperation. Thus, I would venture the hypothesis that
along with a genetic predisposition to constrained maximization, we have also
inherited a fairly reliable mechanism for detecting actual and potential
cheats. It is well-known in
evolutionary biology that many advantageous phenotypic traits must evolve in
parallel. Constrained maximizers must
be sophisticated detectors of non-cooperation, and relatively impatient with
cheaters once they are discovered. Such
a hypothesis would explain, not only the apparent success of constrained
maximization, but the fairly universal inclination for revenge and retributive
punishment.
ENDNOTES
1.
See
Richard Dawkins, The Blind Watchmaker (New York: W. W. Norton, 1986).
2.
Richard
Boyd, “How to Be a Moral Realist,” in Geoffrey Sayre-McCord, editor, Essays
on Moral Realism (Ithaca: Cornell University Press, 1988), p. 182.
3.
Hilary
Putnam, Reason, Truth, and History (Cambridge: Harvard University Press,
1981), p. 54
4.
Ibid, p. 50.
5.
Ronald
Dworkin, “Objectivity and Truth: You’d Better Believe It,” Philosophy and
Public Affairs 25 (1996), p. 87.
6.
J. L.
Mackie, Ethics: Inventing Right and Wrong (New York: Penguin, 1977), p.
36.
7.
C. S.
Lewis, Mere Christianity (San
Francisco: HarperCollins, 1952), p.3
8.
Mackie,
op. cit., p. 37.
9.
David
Gauthier, Morals By Agreement,
(Oxford: Oxford University Press, 1986), p. 157.
10.
Ibid,
p. 170.
11.
Ronald
Dworkin, “Justice and Rights,”in Taking
Rights Seriously (Cambridge, MA: Harvard University Press, 1977), p. 151.
12.
See,
Robert Axelrod, The Evolution of
Cooperation (New York: Basic Books, 1984).
13.
Elliot
Sober and David Sloan Wilson, Unto
Others: The Evolution and Psychology of Unselfish Behavior (Cambridge, MA:
Harvard University Press, 1997).
14.