Before we set out to discover our natural rights and obligations, we need a reason for wanting to find them, and we need to have some reason to think such rights and obligations exist. Otherwise, if we don't care whether they exist, or if we don't believe such rights and obligations exist, it would be a waste of time to look for them. So, to encourage you to engage in this investigation, I discuss the fundamental question, Why should we be just?, and I try to show that we already believe in natural rights.
Let's try to rephrase the question so it isn't circular. Let's try: "What reason do we have for acting in a just way?"
This question doesn't work either. Acting in a just way means acting in accordance with your enforceable moral rights and duties. So this question is similar to the question: "What reason do we have for doing what we should do?" If you have moral intuitions, you would know that this is a silly question, because if A is a thing that we should do, that means it is morally right to do A, which is reason enough to do it.
For the moral intuitionist, these kinds of questions can almost always be interpreted in a circular way. On the other hand, those who lack moral intuitions cannot see the circularity in these kinds of questions. It makes sense to them to ask for justifying reasons for morality. Egoists, conformists, Christians, and legalists can give non-moral (and therefore non-circular) reasons for following their particular codes of conduct. An egoist, for example, could say that he should do the right thing because doing so is in his long-term interest. A conformist could say we should do the right thing so that others will approve of us. A Christian could say we should do the right thing so we can get into Heaven and avoid Hell. A legalist could say we should do the right thing so that we don't end up in jail.
In each of these answers, the meaning of the word should isn't "it is morally right." Instead, it means something like "it is the appropriate means to our objectives." The objectives are non-moral things such as gaining rewards or avoiding pain and punishment. Consequently, when the question is interpreted by someone who lacks moral intuitions, it is no longer a moral question.
F. H. Bradley noted that to interpret the question in a way that the answer is not self-evident, which is probably the way the question is meant by anyone who would bother to ask it, is to presuppose a particular attitude toward morality.
... the question Why should I be moral? rests on the assertion of an end in itself, which is not morality; and a point of this importance must not be taken for granted.The question assumes that those who believe that justice or virtue is an end in itself are wrong and that justice or virtue is a means to some other end. In other words, the question assumes that our moral intuitions are wrong or don't even exist.
It is quite true that to ask Why should I be moral? is ipso facto to take one view of morality, is to assume that virtue is a means to something not itself.1
But what is clear at first sight is that to take virtue as mere means to an ulterior end is in direct antagonism to the voice of the moral consciousness.People who lack moral intuitions cannot understand the moral-value-related meanings of words such as should, ought, good, bad, right, and wrong. In the English language, many of these words have multiple definitions some of which can be understood without the moral faculty. This sometimes causes miscommunication, even between people who have the ability to comprehend all the meanings, because the context in which these words are used does not always make it clear which meaning is intended. The difference between people with the moral faculty and people who lack it shows up more clearly when words that denote moral emotions are used. For example, the statement, "You did the right thing" could be interpreted in several different ways. Two possible interpretations are:
That consciousness, when unwarped by selfishness and not blinded by sophistry, is convinced that to ask for the Why? is simple immorality; to do good for its own sake is virtue, to do it for some ulterior end or object, not itself good, is never virtue; and never to act but for the sake of an end, other than doing well and right, is the mark of vice. And the theory which sees in virtue, as in money-getting, a means which is mistaken for an end, contradicts the voice which proclaims that virtue not only does seem to be, but is, an end in itself.2
The moral code of an egoist consists of the rules that lead him to achieve his long-term interests.
The moral code of the conformist is designed to achieve approval rather than integrity.
The Christian who obeys God's commandments out of fear and hope rather than belief in the righteousness of the commandments themselves, either has no internal moral compass or lets it be overruled by authority. The same goes for the legalist, who obeys the law because he doesn't want to go to jail.
None of these people need consciences.
The egoist who claims to be interested only in his rational self-interest cannot explain why we should not commit crimes. Many crimes are rational in that the criminals used sound reasoning to devise and execute plans to successfully obtain benefits that rightfully belong to others.
The conformist who only seeks the approval of others cannot explain the notion of obligation that most people understand.
The notion of obligation is neither contained in nor deducible from the notion of general approval. On the contrary it is an essential part of the moral consciousness that, if I ought to do something, I ought to do it whether others approve it or not.3The Christian who cannot see why anyone who does not believe in Heaven and Hell would be moral when they can gain more by acting immorally misses the sense of righteousness that most of his fellow Christians feel.
And even in the case of many of those who believe fully in the moral government of the world, the judgment "I ought to do this: cannot be identical with the judgment "God will punish me if I do not," since the conviction that the former proposition is true is distinctly recognized as an important part of the grounds for believing the latter. Again, when Christians speak—as they commonly do—of the "justice" (or other moral attributes) of God, as exhibited in punishing sinners and rewarding the righteous, they obviously imply not merely that God will thus punish and reward, but that it is "right" for Him to do so: which, of course, cannot be taken to mean that He is "bound under penalties."4The legalist fails to understand what right and wrong mean in many situations. If what is right and what is wrong mean only what is legal and what is illegal in one's country, then it is meaningless to say that any law of one's country is morally wrong and ought to be changed. But it is not meaningless to make such a statement, so the legalist's definitions of right and wrong must be missing something. The pure legalist does not understand the difference between moral rights and legal rights. For example, a legalist cannot follow this simple argument:
Let's consider a specific case to see how various approaches to decision-making turn out. Suppose that Linda has worked for you under terms and conditions that you and she voluntarily agreed to and that Linda's work was satisfactory and now, according to the agreement, Linda is entitled to receive payment from you for the work she did. Should you pay Linda or not? Here are some of the ways that you could decide:
There are better ways to decide than by concern for your reputation, hope for reward, and fear of punishment. There are moral reasons that apply to people who are able to judge their own actions against standards of good behavior that are sanctioned by their own consciences:
These eight different kinds of reasons why someone might chose to do the morally right thing should be enough to make the point that there are reasons to act morally. Still, some people will not be satisfied. As Bernard Gert explained:
What some people desire when they ask the question 'Why should I be moral?' is an answer that will show that reason requires acting morally, not merely that it is allowed by reason to act so.5
... in the important decisions about whether to act morally, reason does not provide the guide. When morality and self-interest conflict, even when morality and the interests of friends or family conflict, reason takes no sides.6
Some moral rules can be justified on the grounds that breaking them will cause someone to suffer pain, loss of freedom, loss of pleasure, loss of opportunity, physical disability, emotional strain, or even loss of life. No rational (non-crazy) person wants to suffer these things, so if we care about other people, we should obey the moral rules against causing such suffering. With regard to these rules the question, "Why should we be moral?" can lead to the question, "Why should we care about the suffering of other people?" The best way to answer this question is not to list the reasons why it might be in our self-interest to not cause others to suffer, because it is not true that it is always in our self-interest to not cause others to suffer. It is better to point out that we are social creatures and that it is natural for us to care about other people. But even this does not prove that reason requires us to obey such moral rules.
Our natural sympathies are like the law of gravitation, they are strongest toward our closest friends and family members, weaker with regard to distant acqaintances, and weakest toward strangers far away. For example, when Americans debate among themselves about whether to bomb Iraq, the objection that some American invaders might be killed carries more weight with most Americans than the objection that many more Iraqi civilians will be killed.
If adherence to the moral rules against inflicting pain, disablement, and death are based on natural human sympathy, then, if more Americans can be induced to feel sympathy for Iraqi civilians, more Americans will be opposed to bombing them. There is some evidence to support the theory that the most effective way to get people to treat others morally is to arouse their natural sympathy by showing them pictures of victims on the TV news programs. When pictures of starving children in Biafra were shown on the nightly news programs for several days, the Biafrans received more sympathy and more aid from Americans than the starving people in other places who were not on TV, because the TV pictures brought the Biafrans closer to us and thereby evoked more natural sympathy from us.
American military authorities act as though they believe that human sympathy is a threat to popular support for their operations. They learned from the Vietnam war that pictures of war victims shown on TV can lead to public opposition to war. So in subsequent military operations the military authorities have taken more care to restrict the movements of photographers and TV cameramen.
A picture seems to be worth thousands of words of moral argument with regard to persuading people to observe moral rules against inflicting pain, disablement, and death. However, not all moral rules deal with suffering that can be shown in pictures that arouse sympathy. Sometimes the only reason to obey a moral rule is simply because you have accepted it as a legitimate moral rule.
What reason is there for accepting and internalizing a moral rule that is not in our self-interest and that does not spring from natural sympathy?
Given that we already have moral intuitions that make us believe justice should be done, if we can discover rights and duties that are logically required by the concepts of morality and justice, our sense of justice by itself gives us a motive to respect these rights and perform these duties, even in situations where doing so is not re-enforced by our natural sympathies or self-interest.We are born with the capacity to learn and internalize moral principles, which, when we internalize them, become ends in themselves for us. Whether we learn and internalize moral principles depends on how we are raised. The capacity to learn moral principles, like the capacity to learn mathematics or a human language, is innate. It is a function of the human brain and how it is structured. The specific moral principles we learn, if any, depend on how we are raised and what ideas we are exposed to.
However, some general moral concepts and tautologies develop almost inevitably and, in that sense, we could call them innate intuitions. For example, the principle that we should give a person his due is a moral tautology that virtually everyone can understand and agree with, regardless of which culture they were raised in. The capacity to understand what should means in this tautology is ingrained in most human adults. The word should in this sense is a basic moral concept that cannot be defined without using synonyms and going in circles.
If we ask "What are the non-self-evident reasons why we should give a person his due?" it is no longer a moral tautology. It may be true that we can have non-self-evident reasons for giving a person his due, but that is not a moral issue. The non-self-evident reasons for giving a person his due are not intuitive and are not universally understood. The moral, tautological meaning of the statement that we should give a person his due is intuitively obvious and generally understood.
To someone who lacks the moral faculty, I may sound like a frustrated father who tells his daughter, "Because I said so" when she asks him why it is wrong to steal. "Because I said so" is not the correct answer. Neither is "Because God said so" or "Because your playmates won't like you if you take their toys" or "Because we couldn't have a society if stealing is allowed" or "Because you might get punished." The correct answer is "Because it's wrong" or, more elaborately, "Because stealing contradicts the self-evident principle that you should give a person his due." It is a moral obligation that is unconditionally and universally binding—a categorical imperative.
F.T. Bradley saw that it is futile to try to use arguments based on self-interest to explain why we should desire goodness, beauty, or truth.
... we desert a moral point of view... we degrade and prostitute virtue, when to those who do not love her for herself we bring ourselves to recommend her for the sake of her pleasures. ... "What is the use" of goodness or beauty or truth? there is but one fitting answer from the friends of science or art or religion or virtue, "We do not know and we do not care."7A man who lacks moral character because he has a weak conscience has trouble understanding why he should act morally when it is not in his self-interest. His moral emotions and intuitions are too weak for him to appreciate morality for its own sake. It is for people like him that Heaven, Hell, prisons, and other penalties and rewards are necessary.
Trying to explain morality to someone who lacks a conscience is like trying to explain a joke to someone who doesn't have a sense of humor or like trying to explain women to men or men to women.
Our minds naturally look for reasons and explanations of things. We ask why, and we are not satisfied with "Because" as an answer.
For example, most heterosexual men are interested in women's breasts. Some women have no understanding of this phenomenon. They are not satisfied with "Because" as an answer, so they look for cultural explanations or sociobiological explanations. They may conclude that men are victims of manipulation by a giant conspiracy in the advertising industry. Or they might adopt the theory that women's breasts grew and became sexually interesting to men because this encouraged face-to-face mating, which strengthened the emotional bonds between couples and thereby improved the support and survival chances of their offspring. This is an explanation of sorts, but it is not what a man is thinking about when he objectifies a well endowed woman.
Similarly, giving a person his due may be a rule that gives groups that practice it better chances of surviving as a group, but that is not the reason in the mind of the moral person when he does his duty. Heterosexual men are attracted to women's breasts because heterosexual men are attracted to women's breasts. Moral men believe in giving a person his due because moral men believe in giving a person his due, which means that, in their minds, it is self-evidently the right thing to do. Moral men are interested in morality because they have consciences and can stand in moral judgment over their own actions and can approve of or feel guilty about them.
... the only access to the moral world is through remorse and approval and so on; just as the only access to the world of comedy is through laughter; and the only access to the coward's world is through fear.8Sir David Ross listed some self-evident moral principles and gave a good explanation of what we mean when we say something is self-evident:
That an act, qua fulfilling a promise, or qua effecting a just distribution of good, or qua returning services rendered, or qua promoting the good of others, or qua promoting the virtue or insight of the agent, is prima facie right, is self-evident; not in the sense that it is evident from the beginning of our lives, or as soon as we attend to the proposition for the first time, but in the sense that when we have reached sufficient mental maturity and have given sufficient attention to the proposition it is evident without any need of proof, or of evidence beyond itself. It is self-evident just as a mathematical axiom, or the validity of a form of inference, is evident. The moral order expressed in these propositions is just as much part of the fundamental nature of the universe (and, we may add, of any possible universe in which there were moral agents at all) as is the spacial or numerical structure expressed in the axioms of geometry or arithmetic. In our confidence that these propositions are true there is involved the same trust in our reason that is involved in our confidence in mathematics; and we should have no justification for trusting it in the latter sphere and distrusting it in the former. In both cases we are dealing with propositions that cannot be proved, but that just as certainly need no proof.9By saying that these acts are prima facie right, Sir David means that, unless there is some other overriding moral consideration that outweighs it in the particular circumstances, then it is right to do it.
Very few people fail to learn some unquestionable moral imperatives. Almost everyone understands the moral concepts should, ought, obligation, duty, right, wrong, good, bad, righteousness, evil, shame, guilt, and so on. Almost all of us have moral emotions that are automatically elicited when we recognize virtuous acts or evil deeds. The real problem is that people learn and internalize too many moral imperatives that don't make sense, and we acquire different ideas about what it is that a person is due.
Most of us learn moral rules when we are children. If you don't learn them as a child, you never will. They have to be learned while your brain is still growing and developing so they can become ingrained. Once your brain is fully developed, it is too late to learn and internalize moral intuitions.
Now that we are adults, we need to test the moral imperatives that we learned as children to see which of them are reasonable and which are logically inconsistent or based on superstition. In other words, it is time for us to learn about natural law and natural rights.
I make this point in five different ways:
The greatest obstacle to recognition of natural law was the doctrine of positivism which equated right and might to begin with and, hence, assigned to the legislator full discretion as to the detailed content or provisions of the law, to the point of injustice, indeed to the point of complete, high-handed arbitrariness.10Any action taken by the established authorities in accordance with their own formal rules and procedures was beyond reproach. The regime of Adolf Hitler and the Nazi party, which followed the Weimar Republic, could only be opposed on technical grounds. Did they follow the established procedures for putting people in concentration camps? Was it done efficiently? Could money and other resources have been managed better while still purging the same number of undesired people? These would be legitimate questions, if the law allowed them. But the German jurists could not object to the killing or imprisoning of people or the confiscation of their property when these things were done by the legal authorities.
To object to legal activities on moral grounds is nonsensical, unless we believe there is a natural or supernatural law that is of higher authority than man-made law. Without higher law, there could be no basis for moral objections to killings and destruction done by authorized agents of the state. We could only object when these acts are performed by private individuals on their own initiative, without legal licenses. Hitler, Stalin, and other legal authorities would be above moral criticism while they were in power. If we were subjects of one of these leaders, and he decided he needed our property, or even our lives, we could be unhappy about his decision, but, unless we believed in natural rights, we would have no basis for feeling unjustly served.
If we do not believe in any principles of justice higher than man-made law, then we must believe that slavery, for example, is neither right nor wrong in itself and that slavery in the USA. was right when it was legal, became wrong when it was outlawed, and could be made right again tomorrow if the U.S. Supreme Court so decreed.11
If the conclusions that result from denying the belief in natural rights are unacceptable to you, then you should admit that you already believe in natural rights. On the other hand, if the state of mind that is implied by the denial of natural rights accurately represents the way you make moral judgments and the way you react emotionally to such things as slavery and genocide, then, and only then, you can honestly say that you do not believe in natural rights.
Perhaps the only good consequence of the horrors of the Nazi regime and the world war that overthrew it has been the revival of natural law:
From the middle of 1946 on, a revival of natural law thinking took hold of the intellectual world, especially the jurists and the members of the constituent assemblies of the Lander. ... Naturally the "system of injustice" had produced conversions, as it were, to natural law much earlier; but the Nazi authorities would not permit an open discussion. At the same time, all attempts at passive and active resistance to the regime were necessarily grounded on natural law ideas or on divine law, for legal positivism as such could offer no foundation.12
The concept of the free market has moral principles built into it. The free market is based on private property rights, freedom of contract, voluntary consent, fulfillment of personal commitments, and honest dealing as opposed to theft, fraud, extortion, and cheating. So, whether they are aware of it or not, when economists analyze the free market, even though they avoid using words that sound moralistic, they are nonetheless assuming a society based on libertarian moral principles.
Champions of the free market who think they can avoid making moral judgments by stressing how efficient the market is and by avoiding such words as right, wrong, justice, guilt, responsibility, and honesty, are mistaken. By advocating the free market, economists are advocating a system of justice that cannot operate unless people make libertarian moral judgments about being honest, keeping commitments, stealing, cheating, and so on.
Utilitarian economists who concentrate on economic analysis of laws are more explicit than other economists about the fact that they are analyzing moral rules. At least they admit they are wading into moral philosophy, even though they haven't learned how to immerse themselves in it and swim.
David Friedman was a bit confused about this when he wrote: "As a moral philosopher I am a libertarian, insofar as I am anything. As an economist I am a utilitarian."13 Strictly speaking, the last sentence is nonsense. It's like saying, "As a physicist I am a Republican."
Utilitarianism is a moral philosophy. Economics is a value-free science. As a moral philosopher David Friedman can be a utilitarian or a natural-rights libertarian, but as an economist, as a scientist, he cannot make value judgments about his findings or advocate any policy whatsoever.14
The purpose of economic analysis of law is to make logical inferences about the short- and long-term economic effects of laws. The purpose of utilitarian analysis of law is to promote laws that result in economic improvement and to oppose laws that make things economically worse.
David Friedman is excited by the fact that by starting with the goal of economic efficiency, the economic analysis of law produces what look like ethical rules such as "thou shalt not steal." It is as if he thinks he has found a way to assess laws without having to use moral philosophy. But this is a mistake. Economics as a science is neutral with regard to whether economic efficiency is desirable. Once you add the goal of economic efficiency to your economic analysis, you are crossing over from value-free economic science into utilitarian moral philosophy. It should not be surprising that you can get ethical rules from a moral philosophy, and it is nothing to get excited about.
There are many reasons why you might come to approve of human society. You can value human society as an end in itself, if you are a collectivist, or you can value society because it promotes some other, higher end. You can approve of society on religious grounds as something that conforms to a divine plan or God's laws. You can approve of society based on biological grounds as something that fits our innate nature as the most social species of primates or even the most social species of all mammals. You can approve of society on utilitarian grounds as something that promotes the greatest good for the greatest number. You can approve of society because it promotes the more fundamental value of self-fulfillment. You can favor society based on the fact that it is needed so that individuals can exercise their moral capacities. This last reason is the fundamental one for me, although I agree with some of the other reasons too.
The science of social law separates law from politics, metaphysics, theology, and moral philosophy. In this science, a law is a rule that helps human society to work. It remains a value-free science by separating the question "What is law?" from the question "Should we live according to law?"
Social law removes law from contentious questions such as "What is the purpose of law and morality?" It limits the scope of law to social cooperation. It excludes from law all aspects of personal morality that do not affect the workings of society. In contrast, the Roman Catholic natural-law does not limit law to the rules that make society work. For example, the Roman Catholic natural law prohibits contraception, because contraception violates the "natural purpose" of the sex act.
The value-free approach of social law leaves it to the individual to decide such questions as whether society and the rules that make it possible are good or bad.
Social law is immune to all the legal-positivist objections to classical natural law. In scientific social law, the laws are independent of anyone's opinions about what ought to be.
This approach not only exempts social law from the criticism that it is not a value-free science, it makes the alternative, legal positivism, seem relatively unscientific. Legal positivism amounts to a refusal to make law the subject of a critical scientific inquiry. Legal positivism is not a science. It is merely opinion sampling and record keeping. The legal-positivist approach to law consists of monitoring the latest trends in legislation, regulations, and court decisions, without any attempt to evaluate their consequences.
The science of social law is related to libertarianism in the same way as economics is related to utilitarianism. The science of social law can tell us which rules are social and which are anti-social, and the science of economics can tell us which rules are efficient and which are inefficient, but neither of these value-free sciences can tell us whether society and economic efficiency are good or bad. If we add the assumption that society is good, social law becomes libertarianism. If we add the assumption that economic efficiency is good, economics becomes utilitarianism.
Just as economics can be a value-free science if we pretend to be neutral about whether efficiency is desirable or undesirable, and just as social law can be a value-free science if when we practice it we remain neutral about whether society is good or bad, choice maximization can be a value-free science if we pretend to be noncommittal about whether maximization of the opportunities to make choices is good or bad.
The science of choice maximization leads to one fundamental (but not absolute) law: the nonaggression principle. This principle generally allows the maximum amount of personal choice that is logically possible. It restricts the use of force to stopping people from stopping people from making their own choices. This means that, in general, the laws that should be enforced to maximize choices are laws that stop people from initiating force. By enforcing such laws we maximize the freedom of everyone to make their own choices and, at the same time we maximize the opportunity for people to cooperate with one another voluntarily in society.
It turns out that choice maximization and social law end up discovering the same set of laws from different angles.
Choice maximization does not find that the nonaggression principle is absolute. If we decide that maximizing the opportunities for people to make moral decisions is a good thing, the choice-maximization approach can provide a way to justify exceptions to the nonaggression principle. Aggression can be justified in unusual situations when it results in greater overall freedom to make choices. This may be why many of us would approve of stealing someone's gun when this is the only way to stop a homicidal maniac from killing dozens of people15 or why we might approve of stealing a loaf of bread to prevent someone from starving to death.
If we adopt maximization of the opportunities to make decisions as the ultimate value, we could use choice maximization to justify the outlawing of abortions. Because forcing a woman to support her fetus until it is born is less of a restriction on the overall opportunities to make decisions than allowing her to kill the fetus and thereby terminate a whole lifetime of opportunities for someone to make decisions.
This approach could also lead to a general commandment to be fruitful and multiply to create as many new decision makers as possible—thereby increasing the overall number of opportunities for people to make decisions.
Anything that saves time would be good, because by saving time we make more time available for making decisions. Punctuality, for example, would be a virtue, because it reduces the amount of time that others waste when they have to wait for you to show up for an appointment. Consequently, choice maximization could be used to justify sanctions against tardy people.
People form their opinions based on their personal values. They cannot get their values from value-free sciences, but they can clarify or even change their values by studying moral philosophy. That is why our personal values and moral philosophy are more important than science in deciding what the laws should be. We can only approve or disapprove laws by referring to our personal values. The fact that we do make such value judgments means that we already have moral values.
When we judge laws based on our personal values, we think we are correct. In other words, we believe our opinions are not merely opinions. We believe our opinions, especially our strongly held opinions, are right, which can only be true if we believe there is such a thing as right law—natural law.
Most human beings have consciences, and they experience the emotions associated with consciences. Most people feel that some actions are intrinsically right and others are intrinsically wrong. In other words, they believe in natural law.
The question, "Why should a person do his duty or respect the rights of others?" cannot be answered to the satisfaction of skeptics. If we answer that you must do your duty because of X, the skeptic can ask, "Why is it necessary to uphold X?" which can only be answered by saying either X is self-evident (which the skeptic can deny) or that we must uphold X because of Y, which leads to the same question about Y. Thus, we find ourselves in an endless loop with no way out until we can agree on a self-evident truth. So instead of answering this way, we should simply say, "You should do your duty because it is your duty." The skeptic can then correctly point out that this is merely circular reasoning and playing with the definitions of words. He could say that, "It is true, by definition, that Martians live on Mars. But this does not prove that Martians exist. Similarly, a duty is, by definition, something that we ought to do, and a natural right is, by definition, something that we ought to respect. But this does not prove that duties and natural rights actually exist." This gets us nowhere.
So the fundamental question of justice is not "Why should a person do his duty or respect the rights of others?" but rather, "How do we know that natural rights and duties exist?" The natural rights advocate believes it is self-evident that justice is meaningful. But justice cannot be meaningful if natural rights and duties do not exist. Therefore, there must be natural rights and duties. This argument will not persuade the persistent skeptic. He will cheerfully deny that justice has any meaning other than as a mode of expressing a personal preference. The skeptic's point is that there is no such thing as objective justice.
If the skeptic is not lying when he says that he does not believe in moral rights and obligations, there is no way to convince him otherwise. The skeptic, apparently lacks the moral sense. Trying to persuade him to believe in justice is as futile as trying to seduce a eunuch or trying to get milk from a bull. The skeptic simply lacks the capacity for it. He has the rational faculty, but he has no moral emotions, no conscience, and no way to understand the psychology of normal people when they are motivated by moral considerations. He doesn't realize that he is abnormal, so when he observes other people claiming to make moral judgments, he thinks they are deluding themselves about their own motives. He thinks they have been duped or brainwashed, because he assumes that if he has no moral sense, then no one else can have a moral sense. It's as if part of his brain is missing or doesn't work.
Michael Gazzaniga reported tests he performed on a patient whose left and right brain lobes were surgically separated. He showed her a series of photographs of faces and asked her to rate their attractiveness on a scale from 1 to 10, first with one eye covered and then with the other eye covered, each eye being controlled by the opposite side of her brain. The ratings that she came up with using the right side of her brain closely matched the ratings that other normal people had previously assigned to the pictures. But when she rated the pictures with the left side of her brain, her assessments were very uneven. She was unable to distinguish a beauty from a beast.16 This could be an indication that our sense of beauty resides in the right lobe of the brain.17 If the sense of beauty can be located, the moral sense, which can be thought of as the sense of beauty in actions, might also be locatable.
The effects of a bizarre accident that occurred to Phineas Gage in 1848 indicate that the moral faculty may reside in the ventromedial frontal region of the brain. When Phineas was the foreman of a crew of workers who were leveling ground for a railroad track in New England, he inadvertently triggered a blast while leaning over a hole filled with explosive powder. Here is what happened:
The pointed tamping iron that he held in his hands was hurled like a rocket straight through his left eye, brain, and skull. Incredibly, Gage was only briefly stunned. He instantly regained consciousness and was able to walk and talk immediately afterward. The meter-long iron lay in the sand, meters away.Phineas' reaction to the accident can be interpreted in more than one way. I can't blame him for feeling grumpy, bitter, and cynical after such a horrible event. Maybe he would have reacted similarly if the accident had left his head intact but had torn off his right arm. Would we then conclude that the moral sense resides in the right arm? I don't think so.
The 25-year-old foreman recovered completely, retained all elementary mental functions, and remained able-bodied for the rest of his life. His speech was normal, he absorbed new information as before, and he showed no lapses of memory. However, his personality changed. From a pleasant and reliable fellow, popular among his peers, he turned into someone who could not hold a job because he had lost all respect for social conventions. He would lie and curse uncontrollably. Perhaps the greatest change was that his sense of responsibility vanished: he could not be trusted to honor commitments. According to his physician, the equilibrium between intellectual faculties and lower impulses had been disturbed by the accident.18
It is possible that our moral faculty is not confined to an isolatable part of the brain and that it results from the combined functions and processes of many different parts. If this is the case, then those people who do not know by first-hand experience (through introspection) that the moral sense is real will never be able to perceive it.
Even if we cannot show them where the moral sense resides, skeptics should be able to deduce that most people are social and have empathy for their own children. How else could skeptics explain the survival of human infants who are born practically helpless and who require the longest and most laborious period of parental care among all living creatures? Even though skeptics may lack empathy or a moral sense, they should be able to figure out that they owe their own existence and the existence of all human societies to the fact that most other human beings do not lack these social instincts.19
People who do not have consciences are not typical of our species—they are psychopaths:
Most clinical descriptions of the psychopath make some sort of reference to his egocentrism, lack of empathy, and inability to form warm, emotional relationships with others—characteristics that lead him to treat others as objects instead of as persons and prevent him from experiencing guilt and remorse for having done so.20True psychopaths are as rare as people who do not have the same reasoning processes as the rest of mankind. The existence of lunatics does not make us doubt that logic comports with reality. Similarly, the existence of psychopaths should not lead us to doubt that our moral faculty comports with reality.
Normal human beings raised by loving mothers develop a belief in justice and develop the ability to use logic, because that is the way we are. The seeds of the moral faculty and the rational faculty are built into our brains. We are moral and rational creatures by nature, not in the sense that we naturally behave morally or rationally, but in the sense that normal people have the natural capacity to appreciate morality and rationality and the potential to be guided by moral values and to follow logical arguments. A truly amoral person who has no conscience at all is as uncommon as a blind man and is more severely handicapped.
The universality and the irreversibility of the sequencing of moral development in children, as shown by the studies conducted by Jean Piaget, indicate that the source of our moral sense is in our genes.21
Children's brains are structured in such a way that they can learn human languages and moral habits. They must be taught while their brains are still developing. Children who can hear and whose brains, voice boxes, tongues, and other organs function normally, will learn to speak and understand their native language if they are raised in a society where they hear it spoken and they get to practice speaking it. By about the age of 11 or 12, the ability to learn human languages drops off.
Similarly, children with normal brains have a moral sense that enables them to learn the moral habits of their family if, at an early age, bonds of love develop between them and their parents, especially their mothers, and their parents reward and punish their behavior appropriately. If this process goes wrong because the child is abused rather than loved, the child's brain may pass through the crucial stage of development when moral concepts are normally internalized, and he might grow up to be a hopelessly amoral psychopath with no empathy for others and no conscience.
The ultimate basis of our belief in natural rights is an innate feeling or sense of justice. We are the kind of creatures who naturally develop a sense of justice and the emotions that go with it.
Though the emotions are popularly depicted as mere holdovers from some sort of primeval, animalistic side in our psychology that spring forth and get in the way of our more civilized, rational selves, the emotions are actually part of an incredibly sophisticated social intelligence—one that is most highly developed in humans and our close primate cousins. ... Indeed, the emotions that show in someone's face play a crucial role in how we judge a person's goals, intentions, mood, and reliability. ... Emotional cues are so important to human survival that a "universal grammar" has evolved in human facial expressions. The human facial expressions that spring from feelings of grief, sadness, anger, disgust, surprise, fear, and happiness are universal among all human societies. These emotional expressions are hard-wired into the brain.22These natural human characteristics begin to show themselves in us while we are children, before we reach the age of reason.23 In other words, we naturally develop empathy and an emotional belief in justice and fairness or right and wrong before we are mature enough to rationally work out a theory of justice. So, reason is not the basis for our belief in natural rights. Reason can only give us practical arguments for believing in rights. It cannot make us believe in doing the right thing as an end in itself. We already have the emotional basis for this belief before we develop the ability to reason.
Evidence for the physical reality of the effects of conscience or the moral sense in normal human beings comes from the results of polygraph ("lie detector") machines. These machines measure changes in a person's pulse rate, breathing, and skin conductance. Normal people cannot tell lies without spontaneously feeling anxiety that is physically detectable by polygraph machines, because lying changes a person's pulse, breathing, and skin conductance rates. Some people are able to act as pure calculators and can tell lies without showing emotional or physical changes, but these people are rare, and they are generally psychopaths.
In some but by no means all studies, psychopaths have had diminished resting levels of skin conductance, or diminished spontaneous fluctuations in skin conductance, or diminished reactivity or habituation to stimuli. There seems to be much more, though still not complete, agreement in the data that psychopaths' skin conductance responds especially weakly to adverse stimuli, such as electric shocks or injection by hypodermic needle, whether they themselves are, or anticipate, being stimulated, or they are witnessing someone else pretending to be adversely stimulated. Experts have yet to agree on precisely how to characterize the psychopath's atypical performance, but despite a mixed set of findings, the overall evidence suggests diminished autonomic functioning as expressed in skin conductivity. Lie-detection tests are, it seems, least effective with the very people we may most want to catch lying.24Our belief in the categories of right and wrong is part of the moral faculty given to us by nature. It is natural for us to be concerned with right and wrong. We have benevolent instincts that urge us to minister to the helpless and that cause us to empathize with other people when they are in distress.25 These benevolent instincts are strongest toward those who are close to us.26 27
You don't have to be as insightful as Frances Hutcheson or Adam Smith to see evidence of benevolence, gratitude, and sympathy. Even modern scientists are discovering it.28 Our sympathy with people who are suffering has scientifically observable effects. Our heart rates increase when we see other people in distress. In some cases we unconsciously mimic the facial expressions and physical movements of a victim.29 Babies will start crying if they hear another baby cry. They do not cry as much in response to equally loud nonhuman sounds.30
Often these caring instincts have nothing to do with the merit of the other person or with our own self-interest.31 Without these caring instincts our species would have become extinct long ago. Human infants are totally helpless and would die if they were neglected.
People in the legal profession are also noticing that we have a moral sense. Edmond Cahn is a good example. Instead of writing about our sense of justice, he prefers to write about our sense of injustice. He regards it as a genetically originated predisposition in humans that allows us to act on moral principles.
It [the sense of injustice] denotes that sympathetic reaction of outrage, horror, shock, resentment, and anger, those affections of the viscera and abnormal secretions of the adrenals that prepare the human animal to resist attack. Nature has thus equipped all men to regard injustice to another as personal aggression. Through a mysterious empathy or imaginative interchange, each projects himself into the shoes of the other, not in pity or compassion merely, but in the vigor of self-defense. Injustice is transmuted into assault; the sense of injustice is the implement by which assault is discerned and defense is preparedCahn describes the sense of injustice as a combination of reason and emotion that enables us to apply scientific observation and logical analysis to moral problems with emotional conviction.
Justice thus acquires its public meaning, as those in a given ethos perceive the same threat and experience the same organic reactions. It is possible to speak of justice without utter relativism or solipsism, just because of this astonishing interchangeability within man's imagination. If a man did not have the capacity to recognize oppression of another as a species of attack upon himself, he would be unready—in the glandular sense—to face the requirements of juridic survival. In fine, the human animal is predisposed to fight injustice.32
The sense of injustice now appears as an indissociable blend of reason and empathy. It is evolutionary in its manifestations. Without reason, it could not serve the ends of social utility, which only observation, analysis, and science can discern. Without empathy, it would lose its warm sensibility and its cogent natural drive. It is compounded, indissolubly, of both and can subsist on neither alone. For sheer rationality without an emphatic fundament would usually degenerate to extreme skepticism and doubt; while empathy, uninformed by reason, would serve up only the illiterate gropings of animal faith. Together reason and empathy support our juridic world. Through them men may learn to identify their own interests with those of an unlimited community, no longer doubting in philosophy what they do not doubt in their hearts.33The genetic explanation of the source of morality solves the philosophical problem of human cooperation, which cannot be solved by reasoning from the assumption that humans are always motivated by self-interest. Divine providence and evolution are the two basic explanations for why we have genes that predispose us to be cooperative and moral.
... if everyone is rational, no one initiates cooperation, and, paradoxically, everyone ends up worse off than he and everyone else could be and see they could be ...36
On the present sociobiological account, evolution cut the Gordian knot by blindly bringing forth enough mutant cooperators to make cooperation rational. The theory does not show that initiating cooperation is rational—nothing can do that—but it does show how cooperation can arise despite being irrational. What is worrisome is that the irrationality of cooperating seems to leave cooperation in danger of breaking down the moment people come to their senses. Sociobiology tells us to stop worrying. We can't help being reciprocators—or, more precisely, we are so strongly disposed to reciprocate benefits that we can be depended upon to do so even when game-theoretical reason counsels otherwise.34
For millennia, the sad fact that injustice sometimes pays has sent moralists searching for self-interested reasons for being just—a foredoomed search, since there is no way to show that justice pays when it does not. Again we find able thinkers trying to square the circle because of apprehension, this time that, once word gets out that injustice sometimes pays, people will cease being just. And again, while evolution cannot do the impossible—show that justice always pays—it makes the impossible unnecessary. ...Those prone to take opportunities when they saw 'em were selected out, leaving a filtrate strongly disposed to behave justly even when there are short-term gains in cheating. We have evolved a tendency to treat everyone, strangers included, as if we might meet them tomorrow, a tendency that withstands intellectual awareness that there is little chance of doing so.35
People who claim to be motivated to make moral decisions exclusively or primarily by rational considerations are deluding themselves. The impetus toward moral behavior in prehistoric man is better described by terms such as moral sense or moral intuition than by reason. Reason, language, and culture play a role in modern man's development of moral principles, but they cannot explain the fact that something very much like moral rules had to be obeyed by people living together in societies for generations before anything that we would recognize as reason, language, or civilization could have developed.
Like other social species, man has social instincts. But, unlike other species that we know about, man has the ability to engage in abstract reasoning. It is man's application of his reasoning ability to his innate social values that has enabled him to consciously develop principles of justice.
The rationalists are correct when they say that the principles of justice can only be thoroughly understood and applied after rigorous analysis. But they do not realize that human reasoning on such a highly abstract level would not have been possible if mankind did not have an innate moral sense. First came the moral sense. Then came human societies. Then, much later, came human languages and abstract reasoning at the level required for men to develop moral philosophies.
The moral sense is similar in some ways to the human sex drive. Both are given to us by nature—they are not man-made. Both take a while to develop. Both can be manifested in different ways depending on the individual and his personal experiences. Both promote sociability. Both tend to promote the survival and perpetuation of the species, and in both cases these are side-effects rather than motives.37
Primitive man did not know there was a cause-and-effect relationship between sexual intercourse and reproduction. Some people today still don't know the facts of life, but this does not mean they don't enjoy sex. A man's basic motive in sexual activity is natural pleasure, not perpetuation of the species. Similarly, man's basic motive in moral conduct is to have a clear conscience, not to promote his rational self-interest or the greatest good of the greatest number. Man's body and mind are so constituted that sexual activity and moral activity are gratifying in themselves.
Other natural impulses are similar to the moral sense in some of the same ways as the sex drive. The maternal instinct, for example, is not the product of man-made reason, yet it motivates behavior that is essential to the survival of our species. It is natural for mothers to derive satisfaction from nurturing their offspring and to be sad when their children suffer. Man-made laws and utilitarian considerations have no more to do with the creation of conscience than they do with the creation of maternal love or the female breast.
Natural rights exist for no man-made purpose. In this respect they are like the laws of the physical sciences. There is no reason to suppose that nature has any more purpose for the laws of justice than it has for the laws of physics. Does this mean that natural rights are totally arbitrary and indefensible? Not at all. Nature is the ultimate standard against which everything else must be judged. What is arbitrary is what goes against nature. If a judge makes a decision without considering natural rights, it is the judge who is arbitrary. To say that natural rights do not exist because they have no purpose is like saying the sun doesn't exist or gravity doesn't exist because they have no purpose.
We are not born with all the knowledge needed to survive, nor are we born with all the knowledge we need to be morally responsible. We must learn a lot before we can take care of ourselves and before we reach "the age of reason" when we attain the full status of responsible adults. It would not be possible for us to learn these things unless we were predisposed to do so. The needed predisposition is provided by our instinct for self-preservation in the first case and by our moral sense in the second.
It is natural for us to be interested in moral questions, because we are social beings. To survive we have to get along with our fellows. We are born helpless and dependent upon some form of society (usually a family) until we develop strength and coordination and enough knowledge to make our own way in the world. We learn the benefits of social cooperation implicitly from our early upbringing. After we reach the age of reason, we are able to understand the principles that make society possible.
A just man uses his intelligence to figure out how moral principles apply to each situation in his life. Then he follows his moral principles because he is governed by his conscience. His conscience motivates him to choose to do right. No other motive is needed. The just man does the right thing because justice is intrinsically valuable to him. This is part of his nature—the best part.
Morality, like love-making, is good for the survival of our species. Were this not so, the moral and the sexual drives would have been eliminated from our constitution through natural selection. Although these drives promote the survival of our species, the individual man is not usually concerned with the survival of the human race each time he exercises his moral faculty or makes love. For the individual man, morality and love-making are ends in themselves. We are so constructed that we can enjoy sex even when it does not result in offspring and we can derive satisfaction from leading moral lives even if our lives have no significant impact on the survival of our species.
The fact that the moral sense is not the product of reason does not mean it is arbitrary or unreal. Like the rest of human nature, the moral sense is either God-given or the result of natural forces operating over millions of years. If the theory of evolution is correct, the instincts that have survived the natural selection process have stood the test of time. Other species with different instincts that did not promote cooperation could not develop languages with which to manipulate abstract ideas. If highly intelligent creatures exist in other parts of the universe, they probably have consciences too, because the moral sense and sociability are prerequisites to language which, in turn, seems to be a prerequisite to high intelligence.38
While the belief in justice for its own sake is based on an innate feeling, the content of our theory of justice is not necessarily emotional, it can be rational. Our nature is such that we develop a conscience and moral emotions in the normal course of maturing, but nature does not implant in our minds any particular theory of justice. If it did, we wouldn't have so many disagreements about our rights. Our strong emotional belief in morality impels us to search for justice and gives us the motive to do the right thing for its own sake, but it does not supply the explicit principles of justice that we need. So we have to use our much less reliable and much more error-prone rational faculty to discover these principles. We develop different theories of justice because we are inept and amateurish in the way we use our reasoning ability.
Whether we are aware of it or not, we believe in natural rights. Becoming aware of this is all the motive we need to discover what those rights are. The next step is to develop a procedure for analyzing natural rights.
This page was last updated on January 1, 2003.
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