You and I seemed doomed to both playing a spade, assuming that we are rational in the economist’s sense.  That is, assuming we are individual utility maximizers.  Consider your options.  You don’t know what my play will be, but it really doesn’t matter.  If I play a heart, you get more by playing a spade – five is more than three.  Same story if I play a spade.  You want to play the spade since one is more than zero.  Thus, the spade play is “dominant” for you, since it always yields the highest payoff.  My calculations turn out to be identical; the spade play is also dominant for me.

            It would be irrational for either of us not to make the spade play.  The prisoner’s dilemma is constructed so that we will each make plays that yield a payoff of one for each of us.  But what is maddening, to some paradoxical, is that each of us could make plays where we were both, simultaneously, better off.  Why, therefore, is the mutual play of heart not the rational thing to do?  The answer is freedom.  In the prisoner’s dilemma game we are each free to do what we want, what we feel is in our best interest.  If I believe you will play heart, why would I settle for the mere three when the five is just sitting there for the taking?  And if the truth be known, I don’t really trust you.  I fear you’re likely to play the spade, and I damn sure don’t want be the sucker who gets stuck with nothing, while you walk away with the five.  What it seems we need, therefore, is a way of limiting our choices, a way of checking our naive calculations of what is in our best interest.  What we need is a rule.

            It is the very nature of a rule to constrain possibilities.  But most of us consider freedom and choice to be a good thing.  We need, therefore, some very powerful reasons for restricting our mutual choices. 

I take it as a fundamental principle in morals a general liberty to do whatever one chooses unless someone else has a good reasons for interfering to prevent it . . . The onus of justification, in brief, lies on the advocate of restraint, not on the person restrained.^[ix]

The prisoner’s dilemma, of course, gives us the needed justification.  It is in our own best interest to severely restrict all players choices in the game, and to require them all to play hearts.  In a world where this rule is generally obeyed, players maximize their own payoffs.  They never get the absolute maximum, of course, but they significantly improve on the sub-optimal return to which they were condemned before the institution of the rule.

            To the degree that the prisoner’s dilemma is representative of the social world, we see a general forward-looking rational for having a rule or a law.  A world where players generally receive three each time they play, is better than a world in which they generally receive one.  And it is better, not just in the aggregate, but for each individual player.  Thus, it is individually rational for all players to endorse the rule, even though their choices and possible returns of five are denied to them.

            At first glance, it appears that the solution to the prisoner’s dilemma is directly available to the players themselves.  All they need to do is mutually agree to play the heart.  They can, in a sense, create their own rule through the institution of mutual promising.  The problem with this tidy solution, as Hobbes so famously saw, is that words are cheap, and promises are easy to break.  The rational thing to do, the strategy that will maximize my payoff, is to promise to play a heart and lye like a son of a gun and play a spade anyway.  You’ve promised to play a heart, so I may sucker you and get the five.  And maybe you’re a liar too – if you play a spade, I have to protect myself and play one too.  Thus, it appears that we need more than an abstract rule, but one backed up with some external form of sanction.  We need a context in which the individually rational thing to do is to play the heart.  So we need the rule to impose a cost, or at least the risk of a cost, that outweighs the naive benefit of playing the spade.

            The forward-looking perspective, therefore, gives us good reasons for the imposition of rules, even though these rules drastically reduce freedom and autonomy.  Furthermore, the forward-looking approach also justifies sanctions, financial liability, and punishment.  Even though these costs of non-compliance are negative, they are more than outweighed by their contribution to a world where hearts are generally played.

V. 

                        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.[x]

            Above I claimed that you and I needed help to escape from the prisoner’s dilemma.  The help to which we have appealed so far is distinctly external.  We discovered that mutual promises were of little value without some adjudicating body enforcing the terms of our promises as quasi-legal contracts.  Government and law seem inescapable, and in an argument devoted to establishing their necessity this may not be a bad thing.  Still, many would argue that keeping one’s promises is a moral obligation, regardless of whether the state is ready to step in the event of breach.  Suppose you and I are best friends, might we not expect the mutual play of heart, even in the complete absence of the state?  Could it be the case that there are internal constraints that allow for escape from prisoner’s dilemmas?

            David Gauthier has argued that morality is a voluntarily chosen system of rules that allow for constrained utility maximization.  Simple utility maximization is what led to the Spade play being dominant for both of us in the prisoner’s dilemma.  By constraining ourselves with a “moral rule” – thou shall not play Spade! – we maximize the best option for both of us collectively, as well as the best realistic option for each of us individually. 

Constrained maximization thus links the idea of morals by agreement to actual moral practice.  We suppose that some moral principles may be understood as representing joint strategies prescribed to each person as part of the on-going cooperative arrangements that constitute society.  These principles require each person to refrain from the direct pursuit of her maximum utility, in order to achieve mutually advantageous and reasonably fair outcomes.[xi]

            In order for constrained maximization to lead us to a solution to the prisoner’s dilemma, something of a change in human psychology must occur.  If, as neoclassical economics teaches, individual utility maximization is both a fundamental feature of human reason, and human motivation, the moral individual must somehow rise above this. 

The constrained maximizer does not reason more effectively about how to maximize her utility, but reasons in a different way. . . .  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.[xii]

The tendency to reason and act as a constrained maximizer must be truly internalized in order to escape the prisoner’s dilemma.  We must naturally think as constrained maximizers.  If I am not confident that you reason in this way, playing Spade is my only reasonable option, and again, the same reasoning applies to you.

            Rational actors, in Gauthier’s “state of nature”, are in a situation analogous to the religious skeptic faced with Pascal’s wager.  It may be rational to believe, since to costs of belief are small, and the potential rewards huge, while the costs of disbelief could conceivably be infinite.  Even if one buys the reasoning, here, how does this lead to genuine belief?  Genuine belief does not seem to be the sort of thing over which we have that kind of direct voluntary control.  Pascal realized this, of course, and suggested that the only rational thing to do was go to church, pray, and hope that genuine conversion would take place.  Gauthier says things that sound similar.  He claims that we must acquire the disposition to think morally.  If we always, or even usually, reason from straightforward utility maximization, we are doomed to the prisoner’s dilemma.  But if we succeed in acquiring this disposition to think differently, there is hope. 

At the core of our rational capacity is the ability to engage in self-critical reflection.  The fully rational being is able to reflect on his standard of deliberation, and to change that standard in light of reflection.  Thus we suppose it possible for persons, who may initially assume that it is rational to extend straightforward maximization from parametric to strategic contexts, to reflect on the implications of this extension, and to reject it in favor of constrained maximization.[xiii]

Gauthier’s overriding metaphor, as is clear from the title of his book – Morals By Agreement  – is one of rational, voluntary choice.  I will suggest below, that however rational the strategy of constrained maximization is, it is far from voluntary.  The disposition to behave morally may well be something that far, from being acquired, is actually innate.

VI.

            Legal positivists argue for rigid distinction between normative questions about the law, and empirical and conceptual question.  Austin’s famous quote gets at the heart of the positivists’ position. 

The existence of law is one thing; its merit or demerit is another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. A law, which actually exists, is a law, though we happen to dislike it, or though it vary from the text, by which we regulate our approbation and disapprobation.[xiv]

Although thoroughly modern, and quasi-empirical, in its approach, legal positivism finds as many critics as it does defenders in contemporary academic law.  Legal philosophers as diverse as Lon Fuller, John Finnis, and Ronald Dworkin all candidly acknowledge their allegiance to the much more ancient tradition of natural law.

            We have seen that the problem of moral objectivity has remain unsolved for over twenty-five hundred years.  We have also seen that any form of natural law, theological or secular, depends on a strong form of culturally independent moral absolutism.  A project that from one perspective seems hopelessly arrogant, is greatly mitigated by the fact that significant new insights and theoretical perspectives have been forthcoming in a number of apparently unrelated disciplines.  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.[xv]

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.[xvi]

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.[xvii]

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.[xviii] 

VII.

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.[xix]

            Champions of a biological approach to morality are often their own worst enemies.  They have an alarming tendency to overstate their theses, and the annoying habit of responding to their critics with ad homonyms.  Their theories have been used by others as a theoretical foundation for unjust defenses of lazier faire capitalism, as well as downright racism and sexism.  But, however extravagant their most outrageous claims, and however unfortunate the purposes of some of their most vocal supporters, sociobiologists must be separated from the scientific hypothesis of sociobiology.  And the theory itself seems a natural extension of mainstream biological thought.

            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, so conventional wisdom has it, group selection is simply bad biology.  The mechanism of natural selection 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.

And finally, even group selection may not be dead as an explanatory mechanism.  Wilson and Sober argue that meaningful group selection processes can operate when sub-populations find themselves in biological competition.[xx]  Within a single population it is hard to imagine how a genetic predisposition to constrained-maximization, or to heart-playing, could ever evolve.  The genetic strategy that would seem even more beneficial would be to be a free-ride, pretend to be cooperative, but play spade when you could get away with it.  This, of course, would seem to doom the population from ever becoming one of truly constrained maximizers.  But, if selective pressures are also working on isolated and completing sub-populations, Wilson and Soper argue group selection can take place – the survival advantages of constrained maximization can swamp the apparent advantages of free riding.

            Powerful, though, indirect evidence that internal constraints on behavior – altruism, sympathy, guilt, and the like – have clear biological advantages for our species 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,” “cooperative” 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 Spade).  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.”[xxi]  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 programmers, programs with the basic properties of TIT-FOR-TAT naturally “evolve.”[xxii]

            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.[xxiii]

This is far from an isolated example; vampire bats, baboons, dolphins, chimpanzees, 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.[xxiv]  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 tendency to empathize with others would result in a stronger dispositiopn to behave according to the rule of constrained maximization.  Other moral sentiments like guilt and care would admit to plausible evolutionary stories.

VIII.

            Once we have become constrained maximizers and internalized the no-spade rule, however, the logic of the system requires the adoption of a backward-looking perspective – that non-compliance be met with punishment.  We punish the cheaters because they have cheated, not to deter future cheaters.  We know, of course, that the actual punishment of this cheater adds credibility to the general sanction against spade playing, but the rule we agreed to in the prisoner’s dilemma requires the punishment regardless of this social bonus.

             Sarah has been the victim of a terrible crime.  A burglar has entered her home, trashed the place, ruined her collection of valuable Amish quilts, killed her beloved golden retriever, and made off with her jewelry and a good chunk of cash.  The scum is captured and successfully prosecuted.  Sarah reflects on his sentence.  It would be remarkable in the extreme were Sarah’s thoughts to turn to the deterrent value of prison as a disincentive to future burglars, or to the public safety considerations in favor of taking this particular dangerous individual off the street.  Perhaps Sarah is a legal theorist and fully endorses the utilitarian justification for the institution of criminal punishment; it is still unlikely that these theoretical considerations will occupy much of her moral reflection (as opposed to simple anger) on this criminal’s just punishment.  The rules, including the parameters for punishment, already exist.  She will expect the court to see that this criminal “gets what he deserves,” that he be forced to “repay a debt to society.”

            Robert Solomon has argued that Sarah’s reflections, though thoroughly emotional, are neither irrational, nor outside the scope of genuinely moral thinking.  Indeed, according to Solomon, the concept of justice that underlies Sarah’s thinking is biologically and etymologically natural, and relies on the moral virtue of vengeance.

[V]engeance 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 the concept of justice has 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.  “Getting even” is and has always been one of the most basic metaphors of our moral vocabulary, and the frightening emotion of righteous, wrathful anger is an essential part of the emotional basis of for our sense of justice, just as much as benign compassion and sympathy.  Our resentment of injustice is a necessary precondition of our passion for justice, and the urge to retribution its essential consequence.^[xxv]

Sarah’s thoughts of retribution or revenge are completely backward focused – to the past crime, to the rules already in place, and to the metaphorical notion of having the criminal pay for his dastardly deed.

            Both the tits and the tats are importantly different, but tort, fault, and the duty to compensate also demand attention from the backward-looking perspective.  Dudley is driving his new 4x4 pickup carefully down the road.  Sandra negligently changes lanes and smacks into him.  Dudley may be a respected economist who is taken with the steady gain in efficiency as tort rules regarding liability have evolved in the common law.  He may marvel at the way these rules have spread costs, deterred negligent behavior, and otherwise provided for a desirable legal environment for commerce and economic expansion.  But just as with Sarah, when Dudley is the victim of an accident, his focus will most naturally be to the past and seeking corrective justice for his loss. 

            Though less transparent than an instinct toward retributive restitution, I would argue that a biologically based sense of what is fair and just in the area of accidents and unintentionally caused harm is precisely what the argument above would lead us to expect.  Constrained maximizers would recognize that the equilibrium of continual heart plays would necessitate that both wrongful losses, and wrongful gains be annulled.

Corrective justice has two dimensions.  First, losses are the concern of corrective justice if they are wrongful.  They are wrongful if they result from wrongs or wrongdoings.  The wrong grounds the claim that losses are wrongful (and thus within the ambit of corrective justice.)  Secondly, the duty to repair those wrongful losses is grounded not in the fact that they are the results of wrongdoing, but in the fact that the losses are the injurer’s responsibility, the result of his agency.  The duty to repair those losses under corrective justice is grounded in the injurer’s connection to them.  They are, in a suitable sense, his responsibility, they are his, and, therefore, his responsibility to repair.[xxvi] 

Thus, the secular natural law hypothesis, accounts for the persistence of backward-looking impulses in our thinking about both criminal and private law.  None of the discussion above, however, should be taken to discount the significant role of culture that is manifest in both moral and legal thinking.  Nature and nurture have never been mutually exclusive mechanism.  Indeed, any reputable biologist will insist that environmental considerations play a huge role in the phenotypic expression of genotypes.  Still, there is something satisfying in discovering a species specific predisposition to backward-looking considerations in morality and the law.

 Endnotes