SECULAR NATURAL LAW AND THE
NORMATIVE JUSTIFICATION OF THE STATE
Jeffery L. Johnson
Professor of Philosophy
Philosophy, Politics, & Economics
Eastern Oregon University
What I have tried to do is to discern and articulate the natural laws of a particular kind of human undertaking, which I have described as "the enterprise of subjecting human conduct to the governance of rules." These natural laws have nothing to do with any "brooding omnipresence in the skies." . . . They remain entirely terrestrial in origin. They are not "higher" laws; if any metaphor of elevation is appropriate they should be called "lower" laws. They are like the natural laws of carpentry, or at least those laws respected by a carpenter who wants the house he builds to remain standing and serve the purpose of those who live in it.(1)
I.
My question is: how the state, or again how government can be justified.
The question may seem a silly one because, like it or not, we are stuck with the state. But it is after all not silly, because we can take up different attitudes to being governed.(2)
Anscombe's question regarding the justification of the state might be considered the fundamental question of political theory, and is definitely not silly. Fuller's answer in terms of natural law is much more likely to strike contemporary thinkers as being the silly one. Part of this is because talk of natural law makes immediate connections for most of us with a theistic world view. But that is only part of the story. Even if the theorist presents a secular vision of natural law, as of course, was Fuller's stated goal, it will strike may contemporary humanists and social scientists as, at best, old fashioned. I want to argue, in contrast, that such an approach to the question of political legitimacy represents some of our best, most up-to-date, and scientifically respectable, social thinking.
The task before us is normative. It will not do simply to show that the state is a practical necessity, or that it is a reasonable thing to endorse. We must show that institutions of law and government are morally justified. Exercise and a healthy diet are good for you, but the good in question has no moral force. We need to show that the state's making explicit demands on your time, behavior, and pocketbook is not just good for you, but good in the abstract - that it would be wrong for it not to exist and make these demands. Further, we must present arguments in support of this thesis that are independent of our culture's particular normative values, or even independent of the twenty-five hundred year western intellectual tradition. And not only must the argument apply to any conceivable culture, it must be stated in objective terms that would intellectually accessible to any rational human being. A tall order, indeed.
One should not expect that such an immodest project will be all that original. Western political theory has been articulating and refining all of the necessary ingredients since at least the time of Plato. I have no great insight to add to this remarkably successful tradition. What I do hope to show, however, is that recent developments in game theory, metaethics, moral psychology, and evolutionary biology give us the requisite theoretical basis for casting the long appreciated rational justification of law and government as a kind of secular natural law theory.
II.
According to moral realism:
The history of western ethical thinking is a history of moral objectivism. There were exceptions, of course, but most of the significant ethical theories from Plato to G. E. Moore were stated as conceptual, and occasionally empirical, truths that were applicable to any culture or historical context. Much of early twentieth century moral thinking, however, was anti-objectivist - either relativistic, or simply skeptical. It came as a surprise to many contemporary moral philosophers, therefore, to see a kind of robust moral objectivism vigorously defended once again from within mainstream analytic metaethics. But just such a defense has been mounted, and it appears only to be gaining momentum.
Moral realism is jargon for a family of positions held by contemporary ethical theorists committed to objective moral truth, cultural independence, and moral knowledge. Moral realists are first of all realists. They are firmly committed to the independent existence of an external world. Consider the thoughts of Hilary Putnam.
[T]o hold that every conceptual system is therefore just as good as every other would be something else. If anyone really believed that, and if they were foolish enough to pick a conceptual system that told them they could fly and to act upon it by jumping out of a window, they would, if they were lucky enough to survive, see the weakness of the latter view at once. . . . [T]here are experiential inputs to knowledge; knowledge is not a story with no constraints except internal coherence.(4)
The scientific realist would insist that we have much more than "experiential inputs to knowledge." Modern natural science has discovered much about the physical-chemical- biological world that is the source of these inputs and part of the mechanism. Scientific realists insist that these are genuine discoveries, and not simply conventionally sanctioned constructions.
When viewed from a sufficiently wide-angled perspective we can see science as progressive and slowly converging toward the idealization of a single true description and understanding of the world. This general model is offered as an empirically testable hypothesis, not as a question-begging metaphysical pronouncement from a God's Eye perspective. The scientific realist claims that the best explanation of scientific success -- the only one that does not make this success a miracle -- is robust scientific realism.(5)
Scientific realism is one thing, moral realism is quite another. Moral realists have tried to model their theory as closely as possible on that of scientific realists. Moral realism is obviously more problematic, however, on epistemological grounds -- philosophers have been trying for two millennia to articulate a reliable framework for moral knowledge. Perhaps the major source of skepticism about moral realism derives from logical positivism, and is basically metaphysical. If an independent moral reality is connected in some non-subjective way with the truth or falsity of our moral theories, the required moral facts seem metaphysically and epistemologically "queer." "If there were objective values, then they would be entities or qualities or relations of a very strange sort, utterly different from anything in the universe."(6)
One plausible version of moral realism starts wit h what might be called empirical value naturalism.
There are a number of important human goods, things which satisfy important human needs. Some of these needs are physical or medical. Others are psychological or social . . . The question of just which important human needs there are is a potentially difficult and complex empirical question.(7)
Value naturalism does not automatically entail moral realism, since the human needs and corresponding human goods in question may still be non-moral. Thus, the moral realist must go one step further and identify a cluster of human goods that are genuinely moral.
Moral goodness is defined by [a particular] cluster of goods . . . Actions, policies, character traits, etc. are morally good to the extent to which they tend to foster the realization of these goods.(8)
It goes without saying that, if the question of which just human physical, medical, and social needs there are is a difficult empirical question, the corresponding question about moral goods will be even more complex and controversial.
Still, the moral realist has made the first step toward a response to the charge of metaphysical and epistemological queerness. There is nothing epistemologically untoward in the empirical discovery that certain diets are good for human beings. What, however, of the ontological status of values? Here, again, the modest connection between diet and health does not seem to raise serious ontological worries. It is certainly not in any way dependant on any "brooding omnipresence in the skies." At the same time, when the values in question a robust enough to provide a moral justification for the state, it is hard to see how they could simply be natural features of the natural world. The key to an adequate theory of the ontological status of natural values is the concept of supervenience.
There were times in the history of human knowledge when it must have seemed hard to understand how ice could ontologically reduce to water. Even in the age of contemporary natural science, many find it hard to understand how the concept of life can ontologically reduce to biochemistry. Similarly, one of the most pressing questions of cognitive science is how the consciousness can ontologically reduce to neurophysiology. The modern, secular, scientific ontology, at least within our culture's paradigm, is one of microphysics. We tell stories about atoms and molecules. Features of chemical, biological, and psychological reality require descriptions and explanations at higher, more general, and often more abstract levels. These other levels of description do not commit us to mysterious realms of existence -- in one sense, it's still just the atoms and molecules. We talk about physical properties, like being frozen solid, as a supervenient characteristic of those atoms and molecules. More complicated supervenience occurs with accounts of life, consciousness, and social-political behavior. The realist, moral or scientific, need not be committed to full-blown reductionism. At this point, it is unlikely that properties like being alive, or being conscious, or being objectively good, can be reduced in any law-like way to current theories in physics or chemistry. We need to be able to tell some story, of course, about the process of supervenience -- going in one direction -- and the process of reduction -- going in the other. This sketchy story can sound remarkably plausible when told by the molecular biologist, or cognitive scientist, or sociobiologist.
Moral realists claim that moral facts are simply facts about the natural world, stated at an appropriate level of generality and abstraction. Human beings, their interactions with their fellows, and their social and political arrangements, are part of the natural world that is the concern of the scientific realist. The sciences -- not just the natural sciences, but the social and human sciences, as well -- must describe and explain this aspect of reality just like any other. Moral facts -- this circumstance is better than that; this arrangement is more just than some other -- are simply facts (or more modestly, factual hypotheses) about this complicated level of reality. So too, the moral realist asserts, features of human existence require description and explanation at the levels of sociology, anthropology, ethics, and political theory. None of this requires ontologically queer modes of existence.
If moral facts supervene on physical and biological facts, this not only allays many potential ontological worries, it also beautifully handles a major source of epistemological problems. Moral knowledge, according to the moral realist, is acquired in the same way as other sorts of knowledge. We observe the world, gather data, offer explanatory hypotheses, devise experiments, consult respected authorities and texts, discuss and debate with colleagues, and generally engage in those activities -- imperfect, but mostly reliable -- that have allowed us to survive in the world, and to amass the impressive collection of knowledge that constitutes the institutions of science and the humanities. Neither scientific realism, nor moral realism, solves the age old problems of epistemology -- skepticism, the debate between foundationalism and coherentism, and the like. The moral realist's modest response at this juncture is simply to point out that the theory does not create additional epistemological worries.
III.
The theory of the social contract . . . concerns the rationale of relationships among persons, and between society and its members, rather than the cause of those relationships. The justification of rights and duties, institutions and practices, is to be found by regarding them as if they were contractual, and showing the rationality of this hypothetical contractual base.(9)
Several contemporary political theorists have appealed to the Prisoner's Dilemma as an important part of the normative justification of the state.(10) It would be extravagant to suggest that an abstract model in game theory could, by itself, justify anything. It does, however, have a lot to teach us, both about a moral defense of law and government, and the origins of ethical norms themselves.
Consider a "game" with the following matrix of payoffs.
|
ME
YOU |
|
D |
|
C
|
3
3 |
5
0 |
|
D
|
0
5 |
1
1 |
My payoff is shown in the northwest portion of each cell and is italicized; yours is in the southeast and is non-italicized. The goal of the game is to earn as many points as possible.
The Prisoner's Dilemma is a strategic game, in the technical sense, because the payoffs depend on the plays of both participants. The play that will guarantee me the highest possible payoff, the one that is rational in the economist's sense of maximizing personal utility, is obvious with just a little reflection. I have no control over what you play anyway, so I simply consider what I will in response to both of you possible plays. If you play C, the rational thing for me is to play D: 5, after all, is more than 3. If you play D, I still play D, since 1 is better than 0. The D play is dominant; it always returns the highest possible score. Exactly the same reasoning shows that D is also dominant for you.
The Prisoner's Dilemma is insidious because rational players will each play D, thus dooming themselves to the second lowest payoff possible. The dilemma is that by simple reflection on the payoff matrix, it is perfectly obvious that there is play open to each of us that will simultaneously improve both of our lots. If each of us play C, each receives 3. How can it be that rationality leads to a sub-optimal outcome?
You and I need some kind of external help to escape from the prisoner's dilemma. We need a way of constraining each of our short-term, selfish tendencies. If we are mutually denied the option of playing D, we are both better off. One of the obvious external mechanisms is the institution of promising. We might simply agree with one another to play C. Unfortunately, promises can be broken. In its own way, your agreement to play D makes it even more tempting to play C, since it perhaps increases the odds of a 5 payoff for me. Similarly, my agreeing to play C sets me up for the "sucker's payoff", and perhaps makes me more inclined to renege on our deal. Once again, exactly the same considerations apply to your play in the context of mutual promises. Two very interesting consequences come from this simple thought experiment. One is the discovery that unenforceable promises to do not adequately remove us from Prisoner's Dilemmas. Secondly, we see that it is crucial that our own behavior be constrained, not simply that of our opponent. My problem is not really helped at all if I have 100% assurance that you will keep your word, but you have no assurance that I will keep mine. You would never be foolish enough to promise to play C in such a context.
The other external solution is the existence of some coercive authority that "forces" us to play C. It has seemed obvious to many contemporary commentators that Hobbes' famous thought experiment of the state of nature is nicely captured as a kind of prisoner's dilemma.(11) It might be perfectly rational to bargain away the total freedom to play either C or D, to limit ourselves to plays of C only, and to authorize (a significant word!) some external sovereign to ruthlessly enforce the bargain. It is a rational tradeoff, of course, because it creates an environment in which there is a significantly greater chance of receiving payoffs of 3 every time we play the game, rather than the payoffs of 1 to which we are doomed without the bargain, the constraint on selfish behavior, and the external agent of enforcement.
This reasoning constitutes a very interesting economic analysis of contract law.(12) Of more importance to the current project, however, it provides a very significant step toward the normative justification of the state. The social contract becomes, neither a historical, nor hypothetical bargain. The justification of law and government is one of practical, economic rationality. We are better off with them than without them. Order, stability, and a social environment that encourages productive interaction are obviously, though contingently, important human needs. The state is a human good that is directly responsive to those needs. The only question that remains is whether this good is "merely" a contingent, rational response to the human condition - as is a healthy diet - or whether is a moral good - one that it would be wrong not to pursue. The moral realist in political theory, of course, will endorse the latter reading. But, this will require a further argument.
IV.
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.(13)
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 C, 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 D play being dominant for both of us in the prisoner's dilemma. By constraining ourselves with a "moral rule" - thou shall not play D! - 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.(14)
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.(15)
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 D 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.(16)
Gauthier's overriding metaphor, as is clear from the title of his book - Morals By Argreement - 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.
Before leaving Gauthier's project, however, we should note how clearly it fits in the spirit of moral realism. The appeal to the economist's notion of utility maximization embodies the moral realist's desire for culturally independent standard for establishing the rationality of a moral system. Cooperation, in Gauthier's technical sense - "an outcome that is both (nearly) fair and (nearly) optimal" - is a natural human good. There is nothing metaphysically, nor epistemologically, queer about such arrangements. Constrained maximization is objectively rational, and its actualization in human reasoning and affairs is a perfectly natural, supervenient, feature of human biology, psychology, and political economy.
V.
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.(17)
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.
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 hominems. 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, 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.
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," "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 C) on its first move, and indeed until its opponent defects (plays D). 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."(18) 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."(19)
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.(20)
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.(21) 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 strong affect to behave according to the rule of constrained maximization. Other moral sentiments like guilt and care would admit to similar evolutionary "just so" stories.
VI.
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.(22)
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.(23)
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.(24) 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.
Culture is vitally important to the story to be told here. I take it to be partial confirmation, rather than an embarrassing anomaly, that there wide cultural variance in concrete moral systems, and in political intuitions about legitimacy, justice, and the like. The moral realist would expect this to be the case. In addition, culture plays a large role in the construction of political legitimacy. Even if law and government count as objectively good, from the moral realist's perspective, there is still the empirical question of how political authority becomes established. A question to which we now turn.
VII.
The state is an institution whose primary role is to deter, prevent, and forestall conflict among people through the use of legislators, adjudicators, and coercive enforcers, and it is maintained by convention in which the people are "in agreement" about what their government will be and who will rule in it; specifically, it establishes the offices of government and procedures for filling those offices, and it grants punishment power to some of these office holders. Participating in that convention means, at the very least, not interfering with, and perhaps actively assisting in, the state's punishment activities.(25)
Moral realism, whether biologically based or not, articulates moral principles at a very high level of generality and abstraction. It is highly unlikely that we could ever expect universal, objective, and culturally independent answers to contemporary moral controversies surrounding issues like abortion or capital punishment. Defenders of specific positions on these debated moral conundrums, no doubt, appeal to the sorts of social goods that moral realists believe are objective and universally knowable. Their arguments are very likely to include broader appeals to cultural traditions, and perhaps even personal biases. No reasonable moral realist would want to suggest that every moral question or pronouncement counts as true or knowable from a culturally independent perspective. I am arguing, however, that at least some traditional questions in moral philosophy and political theory do admit to a more robust solution in terms of moral realism. The traditional question of the legitimate authority of the state is a perfect example.
To establish that institutions of law and government are morally good, we must begin by drawing a couple of crucial distinctions. One is fairly obvious. There are important historical and sociological questions about the mechanisms and intricacies of how political power comes to be exercised. These are important empirical questions that may be addressed at levels of great generality - sweeping anthropological theories of power - or careful historical detail - scholarly analysis of the first Constitutional Convention. There is no contradiction in the discovery that the origins of political authority, either generally or specifically, are morally suspect. Nations may have bloody histories in which their origins have much more to do with greed, egotism, and deep psychological pathologies, than with solutions to abstract coordination problems and prisoner's dilemmas. Such states may, nevertheless, exercise completely legitimate political authority. Our primary interest is legitimate law and government, and only indirectly in their proto-legitimate ancestors.
The second necessary distinction is much less apparent. I am arguing that the abstract institutions of law and government are among the fundamental human goods which count as genuinely moral, and are universally required, given the contingent realities of human nature and this world. Actual political regimes constitute concrete instantiations of the general types. One can, and should, address the traditional normative questions of legitimacy and justice to actual states. But the argument being presented here, attempts to justify law and government in the abstract, not actual legal systems or nation-states.
Jean Hampton, who was always careful to observe this distinction, argued that legitimate political authority depends, first (conceptually, not temporally), 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, and I would argue that it is a part of the conceptual analysis of the state that this impersonal authority exists. The rules are obligating not because they are themselves dictated by an authoritative office-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.(26)
Her analysis of this conventional relationship, like H. L. A. Hart, from whom she borrows the central idea, falls in the tradition of legal positivism. It is offered as a conceptual, and perhaps sociological, model of the origins of political and legal authority; it specifically eschews normative commitments.
The moral realist is perfectly happy to accept this account of how human conventions become generated and maintained. Culture is clearly the primary causal mechanism. Hampton is attracted to David Lewis' detailed analysis of conventions,(27) but for my money no theorist has ever improved on Berger and Luckmann's account.
Let us push our paradigm one step further and imagine 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 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 these things are done." A world so regarded attains a firmness in consciousness; it becomes real in an more massive way and it can no longer be changed so readily.(28)
Hart's rules of recognition, or Hampton's governing conventions, come into existence through actual human contingencies, and the historian or anthropologist, is better able than the moral philosophers to explain this process. Moral realists simply remind us that the general process granting authority to the state is not an idiosyncratic action on the part of particular culture, but is something that is rationally justified and normatively required, and therefore, expected to be a fairly universal feature of social reality.
Hampton's model counts as a consent based theory, not because it relies on some imagined, or hypothetical, contractual arrangement between individuals in an equally imagined state of nature, but because actual, living, breathing, human beings embody, at some unconscious level, a governing convention. Moral realist say that this is as it should be, in a full-fledged normative sense.
Government has the moral authority to intrude on total human freedom, and to make other demands as well, because unchecked liberty constitutes a prisoner's dilemma in which everyone is doomed to a dramatically sub-optimal payoff. Law and government are objective and universal -- though thoroughly contingent - human and social goods because they provide an external constraint that allows escape from the prisoner's dilemma. Once we have established the authority of these institutions, in the abstract, we can then proceed to investigate the normative status of particular forms of government, or actually existing states. Constrained maximization plays a dual role in this latter process. First of all, it provides a theoretical foundation for objective moral realism, itself, since it too constitutes an internal constraint and solution to prisoner's dilemmas. Secondly, it remains an objective social and political benchmark that has clear cross-cultural applications.
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