I.

The current project is no less immodest than an outline of a theory of moral objectivity, and a normative justification for law, government, and the other mechanisms of the state.  My arrogance is only slightly mitigated by my claim that all of the necessary components have been well thought out by classical and contemporary thinkers.  My argument is really one of repackaging.  If we take seriously things we already know, as philosophers, political theorists, and evolutionary biologists, we have all the building blocks for a surprisingly robust form of moral realism, one that leads to a non-theological form of natural law.

Critics, of course, will not be scandalized by my approach, but rather amused.  They will take it to be obvious that the foundational step of articulating any plausible form of cross-cultural moral objectivity is doomed to failure from the very start.  Very likely they will agree with J. L. Mackie.

There are no objective values. . . . The claim that values are not objective, are not part of the fabric of the world, is meant to included not only moral goodness, which might be most naturally  equated with moral value, but also other things that could be more loosely called moral values or disvalues–rightness and wrongness, duty, obligation, an action’s be rotten and contemptible, and so on.^[1]

Moral skeptics have powerful arguments on their side.  Mackie clearly articulates two of the most compelling.  What might be a plausible ontological home for objective values?  What kind of things might they be?

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 be by some special faculty of moral perception or intuition, utterly different from ordinary ways of knowing everything else.^[2]

We know from the outset what will be unacceptable – no Platonic forms, no “brooding omnipresence in the sky,” no “ontologically queer” entities or realms of existence of any sort.  Mackie provides not a decisive argument against moral realism, but rather a serious challenge that cannot be avoided or deferred for further investigation.

Mackie backs up the challenge of ontological queerness with a powerful piece of quasi-empirical evidence.  He reminds us of:

the well-known variation in moral codes from one society to another and from one period to another, and also the differences in moral beliefs between different groups and classes within a complex community.^[3]

What best explains cross-cultural moral relativity?  Certainly the moral skeptic has a straightforward account.  Indeed, I would find the evidence overwhelming, were I convinced that there was complete cross-cultural variation in moral perceptions and standards.  I find more plausible, however, a different reading of the anthropological data.  My argument assumes an empirical starting point closer to the theologian C. S. Lewis’s.

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.^[4]

II.

The classical prisoner’s dilemma teaches a fundamental lesson.  There are some circumstances in which complete freedom to pursue individual interests works to the disadvantage, not only of others, not only to the group as a whole, but to the individual actor, herself.  This is the dilemma, the paradox if you will.  Recall the game.  You and I can either play a heart or a club.  The game is strategic, since are our payoffs are a function of our mutual plays.  Our respective payoffs look like this.

	You Play Heart	You Play Club
I Play Heart	I get 3   You get 3	I get 0   You get 5
I Play Club	I get 5   You get 0	I get 1   You get 1

The club play is dominant for each of us.  If you play heart, my club play maximizes my personal utility, since 5 is more than 3.  Similarly, if you play club, my club play is rational because 1 is more than zero.  Your strategy is the mirror image of mine, and also demands that you always play club.  Hence two rational players will doom themselves to the clearly sub-optimal payoff of one a piece.

Appeals to the prisoner’s dilemma are so ubiquitous in discussions of this sort that it is easy to dismiss them as academic fad.  But as abstract, controlled, and artificial as they are, they powerfully illustrate the value, at least the rationality, of rules that constrain free choice.  The principle – Thou shall not play club! – has clear advantages for both of us.  A world in which it is generally accepted, is a world in which you and I will usually receive 3 each time we play.  Without the rule, as we have just seen, we are rationally limited to 1.  A crucial feature of the argument so far is that the rule apply to everyone, including myself.  If I am not bound by the rule, you will never agree to play the game with me, or if you are forced to, you will protect yourself by playing club in spite of the rule.  Thus, the prisoner’s dilemma illustrates the selfish advantage of binding oneself to a rule that constrains free choice, while pursuing an otherwise utility maximizing strategy.  But the question remains, even if such a rule would be in both of our best interest, where could it come from?

III.

One context, though admittedly an abstract and certainly fictional one, that many scholars have seen as having properties similar to the prisoner’s dilemma is the Hobbsean state of nature.  To imagine life without moral rules or legal constraints, is not to imagine a paradise of no taxes and total freedom, but rather a world of chaos and anarchy, in both the colloquial and technical sense.  The rational inhabitant of the state of nature will gladly trade away complete freedom to play heart, in exchange for the security of life in a world where law and government mandate the playing of heart, and punish defectors who play club.  When stated in these terms, the prisoner’s dilemma clearly shows the practical and rational advantages of law and government.  But the social contract has a more ambitious aim.  Hobbes, Locke, and the entire tradition, seeks to demonstrate, not just the rational advantage of government, but it’s moral authority and legitimacy.

Here the social contract tradition encounters two theoretical problems that appear fatal to the project, at least in its classical articulations.  The underlying concept is one of freely given rational consent.  Government has legitimacy because I have rationally chosen to give it legitimacy.  Law is binding on me because I have agreed to allowed it to bind me.  I have traded away freedom to play club in the state of nature in exchange for a similar commitment from you.  I have freely agreed to a contract binding citizens and establishing government.  But the normative notions, consent, trade, contracting, and the like, all presuppose some preexisting moral structure.  How can I promise you that I will play heart, or enter into a contract where we both agree to mutual heart plays, without the prior existence of normative standards regarding promises and contracts?  How can you and I freely consent to law and government without moral rules outlining consent and obligation?  The social contract seems to violate the very conditions stipulated in the description of the state of nature. If we suppose, on the other hand, that there are preexisting moral standards, then it is unclear how the social contract becomes central in the normative justification of law and government.

If that were not bad enough, there is the glaring problem that the state of nature and the original contract are total fiction.  Now, no serious defender of the social contract strategy has ever been under any illusion that the state of nature really existed, or that our ancestors ever entered into a morally binding bargain.  They suggest, rather, that we can see the reasonableness of the agreement, if there had been a world without law and government.  Dworkin describes this as a “hypothetical contract,” and immediately complains:

hypothetical contracts do not supply an independent argument for the fairness of enforcing their terms.  A hypothetical contract is not simply a pale form of an actual contract; it is no contract at all.^[5]

James Rachels, makes the point more directly by reminding us of a philosophical joke, “the social contract ‘isn’t worth the paper it’s not written on.’”^[6]

How can an independent and objective moral defense of government be offered in terms of agreements that never took place, and even if they did take place, seem to require the prior existence of a whole array of normative and quasi-legal concepts and principles?  The candid answer, I fear, is that it can’t.  The social contract argument powerfully demonstrates the rationality of law and government, but fails completely as a normative defense.  The moral argument must be sought elsewhere.

IV.

Even if all of these problems could be overcome, there is a further feature of the social contract strategy that remains unsettling.  Cooperation in a prisoner’s dilemma contexts emerges less from virtue and awareness of moral principles, than from fear and selfish calculation of long-term self interest.  David Gauthier has argued that the greatest insight to be gleaned from Hobbes’s classic articulation is that morality itself provides a solution can be seen as a rational solution to the prisoner’s dilemma.^[7]  If this is right, it is a particularly attractive strategy for articulating an objective moral justification for the state.  How elegant to utilize the same argumentative framework for first establishing objective moral standards, and then reapplying it to establish the moral authority of the state.

Gauthier begins by establishing the utility of moral rules demanding cooperation in the prisoner’s dilemma.  If external laws and sanctions demanding the playing of heart have clear rational advantage to every participant, wouldn’t this utility be strengthened by more general and internal constraints against club playing?  And wouldn’t it be plausible to call these internal and non-legal constraints objective moral standards?  He argues that just as it makes sense to see government as deriving authority “by agreement,” we can morality as coming about “by argreement.”^[8]

For my purposes, the most exciting suggestion in this approach to moral objectivity is a certain kind of individual, the moral, or just, individual.

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 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]

A world of just individuals would immediately see the need of playing a heart in a prisoner’s dilemma.  They would not go through an elaborate cost-benefit analysis and come to this conclusion, and they certainly would not make the decision based merely on an economic calculation of the chances of being caught and punished for the crime of club playing.  They would naturally be inclined to heart playing, and only in very special and unusual circumstances would they seriously entertain the possibility of playing a club.

Do Gauthier’s just individuals, or what he calls “constrained-maximizers,” really exist?  I take it to be obvious that they do, and there are many more of them than Mackie’s moral skepticism would give us any reason to suspect.  The more controversial question is where do they come from.  I will suggest a couple of plausible mechanisms for the creation of co-operative groups of constrained-maximizers directly, but first I want to reject one particular mechanism that is suggested by a superficial reading of the title of Gauthier’s important book, Morals By Agreement.  A consent theory of moral authority is no more likely to succeed than consent theories of political and legal authority.  The same arguments apply, in fact we never agreed to be constrained-maximizers, and even if we had, the significance of the agreement would presuppose preexisting normative standards.

V.

One obvious source of constrained-maximization would be through cultural forces.  Legal positivists like John Austin, for example, suggested that valid law could lead to habitual behavior, so that people obeyed the law more out of ritual, then fear of punishment by the sovereign.  Such an account can easily be broadened to include moral constraints as well as legal ones.  Even moral skeptics as strident as Mackie believe that there are valid moral constraints on behavior, but he further believes that they are completely social in their origin.

The concept of habit is, of course, much too simple to account for constrained-maximization.  Much more plausible is the notion of a social convention.  A complex set of social forces creates a world of just individuals, their psychological makeup, and their most basic social and normative perceptions.  This subtle and wide-ranging approach, not just to normative considerations, but to general epistemological and metaphysical issues was articulated with particular clarity by Berger and Luckmann nearly forty years ago.

[I]magine that A and B have children. . . . A and B alone are responsible for having constructed this world.  A and B remain capable of changing or abolishing it. . . . All of this changes in the process of transmission to the new generation.  The objectivity of the institutional world “thickens” and “hardens,” not only for the children, but (by a mirror effect) for the parents as well.  The “There we go again” now becomes “This is how things are done.”  A world so regarded attains a firmness in consciousness; it becomes real in a more massive way and it can no longer be changed so readily.^[10]

Whether we talk of “the social construction of (moral) reality,” or analyze how “conventions” originate and operate, most of us understand at some pre-analytic level how culture and society could be responsible for the production of actors and thinkers who would have the general characteristics of constrained-maximizers.

This line of thought has been used in a novel and creative way in Jean Hampton’s normative defense of law and government.  Her starting point is H. L. A. Hart’s legal positivism.^[11]  Hart pointed out that the system of rules he identified as law depends on the legitimacy authority to create and change legal rules.  Thus primary rules depend on second-order rules for their legitimacy.  Second order rules, themselves, depend on other, higher level second order rules.  But this justificatory hierarchy cannot be infinite.  At a certain point the authority of the entire system must rest on a rule of recognition which is not authorized by other rules, but simple social “recognition” on the part of affected parties.  Dworkin, for example, has suggested that the acceptance of the United States Constitution was not legally or normatively mandated by anything in law, but the simple, and perhaps surprising, historical fact that the people accepted the Constitution’s legitimacy.^[12]

Hampton extends Hart’s analysis as a justification of the state.  Legitimate political authority depends on the creation of “leadership conventions.”

Creating the leadership convention involves generating these sorts of rules [Hart’s rules of recognition].  Together they constitute an impersonal authority in the legal system . . .  The rules are obligating not because they are themselves dictated by an authoritative offic-holder (this puts the cart before the horse – these rules define what counts as an authoritative office-holder), but because they are accepted, via convention by the people.^[13]

Hampton’s model fits into the social contract tradition, not because it relies on some imagined, or hypothetical, contractual agreement between individuals in an equally imagined state of nature, but because actual, living, breathing human beings embody, as a collective and unconscious level, a governing convention.

Perhaps the social construction of constrained-maximizers and governing conventions are the best that can be done in terms of defending morality and the authority of the state.  I want to explore, however, the possibility of some stronger connection between moral objectivity and the authority of the state.  Why concede that constrained-maximizers are only the product of social forces?  Might not a predisposition toward constrained-maximization be a part of our most basic nature?

VI.

The hypothesis is straightforward.  Cooperative behavior has clear advantages in prisoner’s dilemma contexts. Many of the day‑to‑day circumstances that human beings find themselves in are captured by the abstract model of the prisoner’s dilemma.  Therefore, cooperation has advantages for human beings.  This allowed us to argue that government and law were important human goods, since they furthered human cooperation.  It also allowed Gauthier to argue that developing an internal disposition to cooperate was rationally justified.  But, if human cooperation has clear advantages, might not these advantages be, at least in part, biologically based?  The sociobiologists say that they are, indeed they must be.

Our minds have been built by selfish genes, but they have been built to be social, trustworthy and cooperative. . . . Human beings have social interests.  They come into the world equipped with predispositions to learn how to cooperate, to discriminate the trustworthy from the treacherous, to commit themselves to be trustworthy, to earn good reputations, to exchange goods and information, and to divide labour. . . . Our societies and our minds evolved together, each reinforcing trends in the other.  . . [T]his instinctive cooperativeness is the very hallmark of humanity and what sets us apart from other animals.^[14]

Biologists have long been aware of a certain kind of cooperative behavior that they called altruism.  Individual members of a species are often instinctually driven to do things that are quite good for other individuals in the species, but dangerous, or even suicidal, for the individual itself.  Danger calls in the presence of predators warn others, but call attention to the caller.  Kamikaze attacks by honeybees protect the hive, but at the ultimate cost for the individual.  Altruistic behavior presented something of a scientific embarrassment, since it seemed in conflict with standard evolutionary theory.  It has always been tempting to talk about what is, not just good for the individual, or in many contexts, the gene, but also about what is good for the group.  Altruistic behavior is easy to explain from a “group selection” perspective.  Unfortunately, group selection was thought to be simply bad biology.  The mechanism of natural selection, according to the standard interpretation, works on individuals within a species (this talk can be helpfully recast in terms of genes, themselves), not on groups.  And at this level, it seemed that natural selection would work to eliminate, not encourage, altruistic behavior.  After all, the altruist decreases his or her chances of passing on the genotype for the altruistic behavioral phenotype.

This vexing biological problem was beautifully solved, however, by the theory of kin selection.  The altruist may decrease his or her chance of survival and reproduction, but may also as a consequence of the altruistic behavior increase the chances for survival and reproduction for close relatives.  Thus, a fixed percentage of the individual’s genes ‑ including, perhaps, the gene for altruism ‑ do succeed in getting passed on to the next generation.  If the altruistic phenotype typically manifests itself in contexts where enough close relatives benefit, then standard Darwinian theory explains it beautifully.

Many biologists believe that the kin selection mechanism is adequate for explaining altruism, but the fact remains that the altruist’s behavior often benefits all member of the group, not just close kin.  Some thinkers are now suggesting what would have been unimaginable a decade ago – that group selection does occur in special circumstances.^[15]  As much as a behavioral tendency toward constrained-maximization might benefit the group as a whole, and individuals within the group once it is established, the best individual strategy remains one of unconstrained-maximization within a group of constrained-maximizers.  Such an individual enjoys all the benefits of the good will of others, yet is able to maximize his own interests.  Thus, within a group, evolutionary forces may work toward cooperative behavior, but at the same time will be working to destroy it.  This mechanism can be overcome, however, when groups or isolated populations compete with one another as groups.  It is fairly easy to see how a group of individuals generally predisposed to constrained-maximization would have all sorts of competitive advantage over groups composed of “straightforward maximizers.”

VII.

There is powerful, though, indirect evidence that internal constraints on behavior – altruism, sympathy, guilt, and the like -- have clear biological advantages for our species.  It is forthcoming from three fairly disparate academic disciplines -- behavioral ecology, cognitive psychology, and what might be called, virtual social science. Robert Axelrod has made a strong case that “nice,” “cooperatvie” programs, like TIT-FOR-TAT, systematically win round-robin computer tournaments for iterated prisoner’s dilemma games.  TIT-FOR-TAT, itself, is an amazingly simple program.  It is nice, it plays cooperates (plays heart) on its first move, and indeed until its opponent defects (plays club).  It then plays whatever its opponent played the move immediately preceding.  It immediately punishes defection by its opponent and is, thus, not exploitable.  At the same time, it is forgiving and will begin to cooperate as soon as its opponent does likewise.  TIT-FOR-TAT behaves as though it had internalized Gauthier’s principle of constrained maximization.  And in a sense it has.  The program gives it an innate tendency to “refrain from the direct pursuit of [its] maximum utility, in order to achieve mutually advantageous and reasonable fair outcomes.”^[16]  And perhaps most remarkable of all, if we allow a “genetic algorithm,” which models a kind of natural selection, to produce the prisoner’s dilemma strategies, rather than human programers, programs with the basic properties of TIT-FOR-TAT naturally “evolve.”

TIT-FOR-TAT and its successor programs are just that, computer programs for playing a formal strategic game.  It appears, however, that a number of species engage in behavior that has the same structure.  “Scouting parties” of sticklebacks will leave theirs schools to investigate pike to determine if they are hungry and pose a threat.

When two sticklebacks inspect a predator together, they move forward in a series of short spurts, one fish taking the initiative and risk each time.  If the pike moves, both fish dash back again.  [Behavioral ecologists] argued that this was a small series of prisoner’s dilemmas, each fish having to offer the ‘cooperative’ gesture of the next move forward, or take the ‘defector’s’ option of letting the other fish go ahead alone. . . . It may seem absurd to look at fish, expecting to find sophisticated game theorists, but the is, in fact, no requirement in the theory that the fish understand what it is doing.  Reciprocity can evolve in an entirely unconscious automaton, provided it interact repeatedly with other automata in a situation that resembles a prisoner’s dilemma.^[17]

This is far from an isolated example; vampire bats, baboons, dolphins, chimpanzies, and many other species behave in cooperative ways, first modeled by TIT-FOR-TAT.

Finally, cognitive psychologists are uncovering tantalizing clues that certain moral sentiments are hard-wired in our species.  Consider the phenomenon of empathy.  Newborn infants will reactively cry in response to a recording of another’s cry.  By the age of two to three years children can easily experience “empathetic distress” in response to descriptions of another’s misfortune.  And fully mature moral reasoners put themselves in the shoes of others without even thinking about it.  If indeed the ability and tendency to empathize with the plight of others counts as a genuine, species-specific, innate tendency, its evolutionary story is easy to supply.  Clearly, a innate capacity to empathize with others would result in a strong tendency to behave according to the rule of constrained-maximization.  Other moral sentiments like guilt and care are easily explained in similar fashion.

VIII.

To anticipate a common objection raised by many social scientists and others, let me grant at once that the form and intensity of altruistic acts are to a large extent culturally determined.  Human social evolution is obviously more cultural than genetic.  The point is that the underlying emotion, powerfully manifested in virtually all human societies, is what is considered to evolve through genes.  The sociobiological hypothesis does not therefore account for differences among societies, but it can explain why humans differ from other mammals

Nature and nurture have never been mutually exclusive options.  The argument that our species might possess a genetic predisposition to cooperation and constrained maximization does not call into question the manifest differences in moral beliefs and practices.  Nor does it deny the importance of cultural mechanisms in transmitting, indeed in creating, concrete moral systems. Biologically based moral realism simply demands that human cooperation -- an interaction that is modeled on, but not defined by, the prisoner’s dilemma -- is every bit as objective a human good as a healthy diet, or a loving family.  It then suggests that individual utility maximization is not the only basis of human action and reason.  Since, cooperation is good for us, and undoubtedly increases our chances for survival and reproduction, it is hardly surprising that natural selection would build into our psychological makeup an inclination to reason and act according to the strategy of constrained maximization.

Consider, again, Gauthier’s definition of the constrained maximizer.

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 of these conditions are satisfied she bases her action on the joint strategy.^[18]

It would hardly be surprising to discover that different cultures might define joint outcomes that count as “fair” in very different ways.  Different “interpretive communities” within a single culture probably do the same -- Marxists and free marketeers are good examples.  Moral realists suspect, however, that there is something like a concept of fairness that underlies different cultures’ and communities’ individual conceptions.  And the evolutionary psychologist reasonably hypothesizes that we possess, as a species, a genetic ability to perceive grossly unfair arrangements.

A very useful metaphor for this model of the relationship between the concrete cultural manifestations of normative systems, ones that are almost by definition relativistic, and the underlying conceptual and biological reality that moral realists insist on, is the relationship between human evolutionary history and concrete human languages.  Linguists have long argued that humans possess an innate ability to master language. Whether there is a hard-wired grammatical “deep-structure” remains to be seen, but evidence continues to mount that there is.^[19]  No one doubts, however, that facts like the rapid acquisition of a first language, or fascinating phenomena like the transition from pidgins to creoles, all demand explanation in biological and evolutionary terms.

In spite of this, however, it is perfectly obvious that individual natural languages vary greatly in vocabulary and grammatical structure, and no one would dream of suggesting that one becomes a native speaker of Spanish because it’s in one’s genetic makeup.  The cultural relative, culturally determined, and culturally transmitted ability to speak a natural language may nevertheless, be fundamentally dependant on a species-specific genetic endowment.

IX.

Social life in a world characterized by cooperation, empathy, and altruism, is better than in imaginable worlds without them.  Both the prisoner’s dilemma game, and the thought experiment of the state of nature powerfully bring this point home.  It is rational to bind oneself a system that constrains total free choice, and to become a constrained-maximizer in a world shared by other constrained-maximizers.  We move from the economic rationality of such a system, to objective ethical rules via an interplay of nature and nurture.  Culture clearly structures the details of what counts as constrained-maximization.  But natural selection provides us with an objective starting point for such cultural construction – heart playing is intrinsically good, club playing is intrinsically evil.  There is nothing metaphysically queer about such a theory of absolute value.  And I would argue that the available evidence supports its plausibility.

Law and government are tied to objective morality, just as natural law theorists have always claimed.  Government is justified, just as morality itself was, as an objective solution to the prisoner’s dilemma.  Or, more accurately, some forms of government are morally justified.  Individuals must be better off living within their culture and government’s rules for constrained-maximization, than they would be living without it.  Thus, law and government are subject to objective normative assessment, again, just as classical natural law has always said.