SECULAR NATURAL LAW AND CORRECTIVE JUSTICE

Jeffery L. Johnson

Philosophy, Politics, & Economics

Eastern Oregon University

SECULAR NATURAL LAW AND CORRECTIVE JUSTICE

The most interesting work in the social and human sciences has always been candidly normative. It is hardly surprising, therefore, that strong disciplinary passions have been elicited whenever scholars have taken a step back and examined the theoretical credentials of normative thinking itself. I want to suggest that two ancient views about morality and justice have surprising currency in contemporary jurisprudence. Natural law and corrective justice provide, not just attractive standpoints for the normative evaluation of legal practices, but explanatory models that help us better common law evolution and the workings of the legal system itself.

Natural law postulates a deep theoretical connection between the way the world operates, fundamental facts about basic human nature, human reason, and the moral rules and laws that govern human behavior. In its classical formulation, this happy marriage of fact and value is the product of omniscient and omnipotent design and execution. Natural law’s association with theistic religion, of course, has been the source of profound skepticism. But even in its most classical statements, God’s involvement, though candidly assumed, was never taken as theoretically necessary. Certainly in contemporary jurisprudence, the work of Fuller, Dworkin, and even Finnis, should provide ample reminders that a robust normative approach to the law remains possible in contexts where religion is totally absent.[1] It is in this context that I want to sketch a thoroughly secular version of natural law.

II.

Natural law, in both its classical and secular incarnations, is a version of moral realism. Richard Boyd nicely summarizes moral realism:

1. Moral statements are the sorts of statements which … are … true or false;

2. The truth of falsity … of moral statements is largely independent of our moral opinions, theories, etc.;

3. Ordinary cannon of moral reasoning—together with ordinary cannons of scientific and everyday factual reasoning—constitute, under many circumstances at least, a reliable method of obtaining and improving (approximate) moral knowledge.[2]

Although the articulation is clearly contemporary, the basic theory is of course quite ancient, and probably best captures the way non-academic thinking about morality has always been. Still, moral realism is committed to some very strong metaphysical and epistemological assumptions. Moral truth and falsity is objective, absolute, and thoroughly cross-cultural. Furthermore, normal human beings possess reliable cognitive resources for knowing these normative truths and falsities. Once these necessary presuppositions are candidly recognized, they have always seemed problematic to scholars with theoretical bents of minds.

John Mackie phrased his arguments against any form of moral realism as explanatory questions. How could the underlying metaphysics and epistemology possibly be true? Consider his famous argument from “queerness.”

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 very special faculty of moral perception or intuition, utterly different from our ordinary ways of knowing everything else.[3]

Actually, moral realism often commits itself to a third queer property. Secular natural law asserts a surprising motivational component to the recognition of moral truth. “If the requirements of ethics are rational requirements, it follows that the motive for submitting to them which it would be contrary to reason to ignore.”[4] Secular natural law forthrightly accepts these daunting explanatory challenges. If it cannot plausibly explain how objective values could exist in a secular world, how normal human beings could come to know them, and how they could exert a motivational push to action, then skeptics are certainly justified as dismissing the theory as mysterious to the point of magical.

Mackie raises a second explanatory challenge that has wider appeal outside of technical metaethics. How can moral realism be squared with known facts about human cultures?

The argument from relativity has as its premises 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.[5]

Again the questions are relevant and to the point. Secular natural law will need to satisfactorily account for differences in moral perceptions from culture to culture, group to group. And to forestall the obvious worry, it will be completely unacceptable for the realist to assert that one culture is simply morally blind, while another possesses unique insight into the moral truth.

III.

The version of natural law that I seek to defend looks to evolutionary biology for responses to these theoretical challenges to realism. I want to ease into this argument by suggesting an analogy with human linguistic competence. Consider Pinker and Bloom’s summary of some fascinating data.

All human societies have language. As far as we know they always did; language was not invented by some groups and spread to others like agriculture or the alphabet. . . . The grammars of industrial societies are no more complex than the grammars of hunter-gatherers. . . . Within societies, individual humans are proficient language users regardless of intelligence, social status, or level of education. Children are fluent speakers of complex grammatical sentences by the age of three, without benefit of formal instruction. They are capable of inventing languages that are more systematic than those they hear, showing resemblances to languages that they have never heard, and obey grammatical principles for which there is no evidence in their environments.^[6]

They then draw the obvious conclusion.

[T]he ability to use a natural language belongs more to the study of human biology than human culture; it is a topic like echolocation in bats or steropsis in monkeys, not like writing or the wheel.^[7]

Noam Chomsky used intentionally loaded language in describing the biological approach to language. He spoke of an innate, indeed candidly Cartesian, knowledge of the underlying grammar of human natural languages. Now, since the surface grammars of languages can vary in significant ways (one need only think of native English speakers trying to master German as adults), the knowledge would have to be of a “deep structure,” abstract, and somehow encoded in the human brain. Chomsky has, for fifty years, remained confident that something like this deep structure would be discovered by linguists analyzing natural languages, and cognitive scientists analyzing the human central nervous system.[8]

IV.

Secular natural law postulates an analogous underlying moral syntax to most, if not all, culturally embodied moral systems – a deep-structure, if you will, to human moral thinking and perception. This hypothesis provides a starting point for explaining all of Mackie’s queer properties. The ontological home for objective values is a behavioral and neural phenotype. Our knowledge of them is a direct intuition, but not a philosophically mysterious one, but similar to the immediate perception of correct grammar in Chomsky’s famous piece of non-sense – “Colorless green ideas sleep ferociously.” And there is nothing motivationally peculiar in humans having an innate inclination to behave morally. Indeed, on the evolutionary account it was precisely this behavioral phenotype that was being selected for.

Certainly two defining properties of our species are our ability to use language, and to develop culture. The ability to adapt to social and environmental circumstances in a time frame of years and decades, rather than generations and eons, has given human beings a flexibility that is probably unique in the biological world. It is no particular explanatory mystery, therefore, that we see apparently great cultural diversity in human moral practices and perceptions. Again, to push the analogy with language, human natural languages exhibit great diversity in semantics and “surface-grammar.” The question, of course, is ultimately empirical. Can we discover an underlying deep-structure to human moral and legal practices? At the level of morality, I stand with the theologian C. S. Lewis.

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.^[9]

The famous prisoner’s dilemma beautifully demonstrates one abstract context where objective constraints on behavior work, not only to the group’s advantage, but the selfish advantage of the agent herself. I need some assurance that you will not defect, and you need similar assurance that I will not defect. If some system or another does not provide this assurance, we are both forced to defect, and are accordingly both the losers. Thus, we can each selfishly improve our lot by a “moral” (or legal) prohibition on defection. This line of reasoning is the heart and soul of the social contract tradition, and convincingly demonstrates the rationality of both government and moral codes.[10] Life in a state of nature would be, in Hobbes unforgettable words, “solitary, poor, nasty, brutish, and short.”[11]

No one, of course, believes that states of nature ever existed, at least for our species. But it may well be that something like them existed for ancestor species. And a solitary, poor, nasty, brutish and short existence is not optimal for passing along one’s genes. It is quite easy to see, therefore, the adaptive value of a biological predisposition to cooperate. To many this is almost trivial common sense – of course humans are a social species. To others, however, this opens the door to biological determinism, and possible theoretical defenses of violence, racism, and sexism. I confess to allegiance with the former group of scholars, though I do concede that defenders of biological ethics have often been their own worst enemies – carelessly overstating their positions, and in some cases, providing a kind of comfort to those with racist and sexist motives.[12]

A full blown defense of secular natural law would need to marshal a fair amount of the varied evidence that points to a disposition to cooperation as a basic component of human nature.[13] It would also need to undertake a cross-cultural survey of normative systems to demonstrate that there really is a moral “deep-structure.”[14] Finally, it will need to address the biological workability of such a genotype ever thriving in a human population.[15] All of this, of course, is the work of a lengthy monograph, if not an entire academic career. Short of the attendant endnotes in this section, I make no effort to prosecute this case in this context. I am heartened, however, at just how much cutting-edge work in evolutionary biology, cognitive and evolutionary psychology, and cultural anthropology all points in the direction of biologically base moral realism.

VI.

Jerry Foder, described his important book, The Language of Thought, as an essay in

speculative psychology. It wasn’t quite philosophy because it was concerned with empirical theory construction. It wasn’t quite psychology because it wasn’t an empirical science. But it used the methods of both philosophy and psychology because it was dedicated to the notion that scientific theories should be both conceptually disciplined and empirically constrained.[16]

Foder believed in 1975, and continues to believe, that something like Chomsky’s universal grammar underlies, not just human natural language, but much of human thought itself. Much of contemporary cognitive science, with little acknowledgement of Fodor, can be seen as a sustained effort to test this provocative and controversial hypothesis.

Secular natural law might be seen as a kind of speculative moral and legal psychology. Very general and abstract models will be offered as candidates for the deep structure of moral and legal thinking. It is almost impossible to over-stress that these models will be intentionally over simple. They will provide, not a complete representation of a legal system, let alone the detailed architecture of human neural structure which constrains human normative and legal thinking.

One very intriguing abstract model comes from contemporary game theory. Consider the classic prisoner’s dilemma.

PRISONER’S DILEMMA

Player A

Cooperates Fails to

Cooperate

Cooperate 3,3 0,5

Player B

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.

The best strategy in a single encounter prisoner’s dilemma game is not necessarily the best in circumstances where there are repeated encounters. It remains true, of course, that the non-cooperative play will always yield the maximum payoff, but it appears that trust and cooperation can “evolve” through a process of mutual reward and punishment. This was convincingly shown in a fascinating line of research conducted by Robert Axelrod.^[17] He conducted tournaments for computer programs where the contestants played “iterated” prisoner’s dilemma games. Each program played all others 200 times consecutively in the first tournament, and approximately 200 times in the second. All of the submitted programs were required to play each other, as well as a copy of themselves, and a program that randomly cooperated. Both tournaments had a clear winner.

It is almost impossible to talk about Tit-for-tat without resorting to anthropomorphic language – the program is “nice” because it cooperates on the first play. It “rewards” cooperation by its opponent by continuing to cooperate as long as its opponent cooperates. It “refuses to be exploited” by retaliating with non-cooperation whenever the opponents fails to cooperate. And it “doesn’t hold grudges,” “forgives,” and begins to cooperate again as soon as the opponent does. All of this is the product of amazingly simple programmed instructions. Tit-for-tat cooperates on the first play, and on any subsequent play n, it plays what the opponent played previously on n-1.

It is worth remembering that Tit-for-tat can never “win” any single contest during the tournament. The best it can do is when it plays a universally cooperative program, or itself, is to end in a tie. Tit-for-tat could easily have lost in Axelrod’s tournament. All we need do is consider its fate had all of its opponents been straightforward utility maximizers. Had there been at least eighty-one competing programs in the tournament, Tit-for-tat loses to all of them. Furthermore, the relatively high number of opponents required for Tit-for-tat’s loss is something of an artifact of the rules of the tournament. Had Tit-for-tat not been allowed to play itself – and thereby rack up 600 points in this one round of the tournament – it would have lost to a field of non-cooperators of any size. Tit-for-tat’s fate is even more disappointing in a field of suckers who cooperate no matter what, with one straightforward maximer. Here it loses dramatically, with the scale getting worse the higher number of naive cooperators.

But, by far the most artificial aspect of Tit-for-tat’s remarkable success is a taken for granted part of the prisoner’s dilemma. Every single play in Axelrod’s tournament is perfectly transparent. Each opponent knows exactly what plays have previously been made. There is no opportunity for covert cheating and non-cooperation. There would be, of course, significantly less crime and non-cooperation in the human social world, were every single one of our actions knowable by anyone who was curious. Both happily (for those of us who value personal privacy), and sadly (for efficient law enforcement and general cooperation), however, the world of the iterated prisoner’s dilemma is not the contingent world that humans find themselves operating in.

None of this is meant to disparage Tit-for-tat, or Axelrod’s methodology. The strategy proved remarkably robust in the original tournaments. And, most intriguing of all, it seems to be instantiated in some general form in the biological world. Several examples have been discussed, most of them somewhat grisly. Consider the case of:

vampire bats, which spend the day in hollow trees and the night searching for large animals whose blood they can quietly sip from small cuts surreptitiously made in their skin. It is a precarious life, because a bat occasionally returns hungry, having either failed to find an animal or been prevented from drinking its fill from the wound. . . . Luckily, however, for the bats, when they do get a meal they can usually drink more than they immediately need and the surplus can be donated to another bat by regurgitating some blood. This is a generous act, and the bats find themselves in a prisoner’s dilemma . . . [The bats] seem to play Tit-for-tat. A bat that has donated blood in the past will receive blood from a previous donee; a bat that has refused blood will be refused blood in turn.^[18]

Natural selection has clearly stumbled on a strategy for ensuring cooperation between vampire bats. Might not a very similar strategy apply to humans? Indeed, I am suggesting that Tit-for-tat articulates at some very basic, and of course, grossly oversimplified level the deep-structure of interpersonal justice, at least within the context of two-person prisoner’s dilemma interactions.

VII.

The last section did not argue that Tit-for-tat was the deep-structure of justice or moral truth, but that it provided oversimplified model of what it might be. Recognition of this point is crucial as we turn or attention to corrective justice. I will be treating this ancient theory of legal justice as another candidate for the deep-structure of biologically based moral realism, of secular natural law. This model, however, will clearly be closer to the “surface” than Tit-for-tat. Rather than focusing on game theory, computer tournaments, and totally abstract and fictitious payoffs, we will be forced to consider real people engaged in real disputes and instance of non-cooperation. My strategy, here, will mirror that of Rawls in A Theory of Justice.[19] I will argue that corrective justice much better explains our considered intuitions about what the law should be doing, and actual legal practice and common law evolution, than teleological theories like utilitarianism and law as economics.[20]

Corrective justice goes back to Aristotle’s Nicomachean Ethics.

[J]ustice in transactions between man and man is a sort of equality indeed and injustice is a sort of inequality. . . . [Therefore] the judge tries to equalize things by means of the penalty, taking away the gain of the assailant.[21]

The view is candidly, unapologetically, backward focused. Justice, and ultimately the purpose of law, is to reinstitute cooperation between parties by restoring them, as far as is possible, to the conditions they found themselves in before the breakdown in cooperation. It goes without saying, of course, that many circumstances will require that the “equalization” be highly symbolic – prison time for a vehicular manslaughter, or financial compensation for a wrongful death. Corrective justice sees the basic atoms out of which the system is derived as individuals encountering, cooperating and failing to cooperate, and wrongfully harming one another. The law is a mechanism superimposed on these individuals for reestablishing cooperation when it has been threatened or broken down completely.

Teleological theories of law, utilitarianism and law and economics, also treat law as a mechanism for maintaining and enhancing social cooperation. It is essentially forward-looking, and is an appropriate way of conceiving law when one is concerned with designing good social policy. The questions that dominate when law is understood teleologically concern future outcomes – what will the effect of this legislation or ruling be for social cooperation in the future? Will there be less crime?, more contracts?, fewer accidents?, greater economic efficiency? The corrective justice/law and economics debate is often conducted as if the scholar had to choose sides in a war of fundamental values.[22] But as John Rawls clear saw over fifty years ago, there are two concepts of legal rules, or better, two ways of thinking about the law.[23] Champions of each side in the contemporary debate – Richard Posner and Jules Coleman – have each conceded that legal thinking is concerned with both corrective justice and economic efficiency.[24]

I am anxious to defend more than an academic compromise. I fully concede the insights that the economic study of law provide. And I further concede that appeals court judges, not just professional policy makers, are professionally required to take the future social costs and benefits of their decisions into account when ruling in a “hard case.”[25] Secular natural law insists, nevertheless, that the corrective justice reading of legal justice is closer to our biological deep-structure, and best accords with our considered intuitions about what is right and fair in controversial legal circumstances. I will take a very small step to defending that very large claim with two brief case studies.

VIII.

The retributive theory of criminal punishment has always had the faint odor of paradox. Why is not the state’s investment of time, money, and emotion all for the sake of making a criminal’s life miserable an exercise in two wrongs trying to make a right. The fine, after all, or the prison sentence, or the execution is hardly going to undo the previous wrong that criminal has already produced. Now from a teleological perspective, of course, there is no mystery at all. If the point of law, of legal punishment, is trying to most effectively manage future criminal behavior, the price paid for punishment may well more than compensated for through the deterrence, or in the case of the criminal himself, the prevention, of future crimes. But the retributivist seems left with little more than vague metaphors of cosmic scales of justice being thrown out of balance, and the function of punishment being an attempt to bring those scales back into balance.

Our culture seems preoccupied with retribution. When there is a concern with crime, the result seems always a “get tough” policy – three strikes, mandatory sentencing, and the like. It seems to matter little that these policies are hugely expensive, and that there is little empirical evidence that accomplish much. In my home state of Oregon, more tax dollars are spent on keeping inmates in prison, than on public education.[26] Nevertheless, ordinary citizens seem convinced that serious crime demands serious legal punishment. And although there seems little consensus at all about what “serious punishment” should amount to, there seems to be wide consensus, at least among my students, that the current system is too soft on criminals.

I am not arguing for a second that I agree with my students, or the more red neck of my fellow citizens. But I think that this widely held sentiment tells us something about the objective soundness of the retributive instinct. The intuition that it would be unjust not to punish criminals is precisely what biologically based secular natural law would lead us to expect. Our moral deep-structure was formed in ancestor species, long before the advent of complex societies and sophisticated legal systems. Justice in this context was always a matter of cooperation between individuals. Corrective justice quite correctly focuses precisely on these kinds of interactions. Parties occasionally harm one another (they act uncooperatively), and something must be done about it. The focus is to the past. How can I (we?) do something about it? The criminal must pay a kind of compensation. We must equalize the past transaction, so that there can be cooperation in future ones. This is precisely what Tit-for-tat did when opponents acted uncooperatively, the program “retaliated.” Once the debt was paid, however, Tit-for-tat was willing to begin cooperating again.

One philosopher who has seen all of this very clearly is Robert Solomon. His frustratingly ignored book, A Passion for Justice, argues that justice is as much of a deep human emotion, as it is an intellectual or normative ideal.[27] Solomon discusses the retributive theory in terms of vengence, and categorizes it as a negative emotion.

However problematic its current role in justice, there is no doubt that vengeance is the original passion for justice. The word justice in the Old Testament and in Homer too virtually always refers to revenge. Throughout most of history of the concept of justice has always been far more concerned with the punishment of crimes and the balancing of wrongs than it has been with the fair distribution of goods and services.[28]

But if we soften the language just a little bit, the feeling of the objective rightness of retributive punishment is in no way a negative emotion. According to secular natural law, it is a basic component of human nature, and one that has clear adaptive value for our species.

IX.

I want to conclude our discussion of corrective justice by examining a very famous case in the history of tort law. In November of 1905 the steamship Reynolds was docked in Duluth. As she finished discharging her cargo a severe storm developed and the ship’s master, after failing to find a tug, kept his ship moored to the dock, and weathered the storm. Unfortunately, the ship was constantly thrown against the dock, causing damages of as much as $1,200 to the dock owner. He sued to recover the damages, and the trial court ruled in his favor, awarding the plaintiffs $500. The defendant then appealed.

The case is such a puzzle to tort scholars because of the principle of negligence in accident law. Simply causing damage to someone is almost never sufficient grounds for recovery. My company makes a better mousetrap, and your mousetrap factory goes belly up. Certainly I have harmed you in a significant way, but absent special, almost certainly illegal, circumstances, you have not legitimate against me. By 1905 American tort law had firmly adopted the negligence principle. In order to recover, you must show that I failed to take appropriate precautions, that I act negligently, in causing your loss. Indeed, the plaintiffs claimed that the master had acted negligently by leaving his steamship tightly lashed to the dock throughout the storm.

The Minnesota Supreme Court rejected that argument.

We are satisfied that the character of the storm was such that it would have been highly imprudent for the master of the Reynolds to have attempted to leave the dock or to have permitted his vessel to drift away from it. . . . It is claimed by the respondent that it was negligence to moor the boat at an exposed part of the wharf, and to continue in that position after it became apparent that the storm was to be more than usually severe. We do not agree with this position.[29]

Since the Minnesota Supreme Court failed to see negligence on the master’s part, one would have expected that the judgment would have been reversed. But this was not the Court’s reasoning at all.

This is not a case where life or property was menaced by any object or thing belonging to the plaintiffs, the destruction of which became necessary to prevent the threatened disaster. Nor it is a case where, because of the act of God, or unavoidable accident, the infliction of the injury was beyond the control of the defendant, but one where the defendant prudently and advisedly availed itself of the plaintiffs’ property for the purpose of preserving its own more valuable property, and the plaintiffs are entitled to compensation for the injury done.

Order affirmed.[30]

The question that has vexed tort scholars is why the plaintiffs are entitled to compensation.

Economic law theorists can easily spin plausible account of the efficiency of such a precedent.[31] Corrective justice advocates have had a much harder time, at least those wedded to the Aristotlean articulation:

it makes no difference whether a good man has defrauded a bad man or a bad man a good one, nor whether is is a good or bad man that has committed adultery; the law looks only to the distinctive character of the injury, and treats the parties as equal, if one is in the wrong and the other is being wronged, and if one inflicted injury and the other has received it.[32]

As Richard Posner has stressed for Aristotle’s concept of corrective justice, “the duty to rectify is based not on the fact of injury alone but on the conjunction of injury and wrongdoing.”[33] And as we have seen, there is no wrongdoing on the part of anyone.

Different scholars aligning themselves with the corrective justice camp have suggested different ways to avoid the problem. Richard Epstein argues that the concept of negligence is morally otiose, and tort law should return to a standard of strict liability.[34] George Fletcher sees the ruling as correct because of an inequality of risks the parties imposed on each other – the ship’s master clearly put the dock owner at risk, but the inverse of the risk placing clearly does not hold.[35] Earnest Weinrib claims that the dispute should not have been seen as a tort at all, but as a case of restitution.[36] And Jules Coleman argues that cases like Vincent show us that there is such a thing as wrongful loss that corrective justice must redress even in the absence of wrong doing on the part of the defendant.[37]

Secular natural law is neutral between these attempts to square standard tort theory with the ruling in Vincent, though I confess to more comfort with Coleman’s analysis. What I do want to argue, however, that the court’s ruling makes, not only legal, but normative sense. Through the fault of no one, a seriously uncooperative situation between the ship’s owners, and the dock owners’ had arisen. The court saw that this was unjust, and that correction was required. The intuition that there was an inequity or injustice is obvious to anyone with a normal normative deep-structure. And the court’s backward-looking attempt at correction also makes sense from this perspective.