Evolution and Natural Law

Toward a Basis for Human Values

Frederick Turner

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Contents

Acknowledgements

Chapter

1. The General Argument

2. Two Versions of Natural Law: Thomist and Enlightenment

3. The Challenge to Natural Law

4. A New Natural Law

5. Evolution and Design

6. Human Ancestral Conditions and Natural Law

7. Biomedical and Reproductive Implications

8. Property

9. Environmentalism

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 10. Government

11. Punishment and War

12. Religion and State

13. Truth, Goodness and Beauty

14. The Resistance to Evolutionary Natural Law

15. Conclusion: A Research Program in Evolutionary Natural Law

Texts Referenced

1. The General Argument

This book is an attempt to recover a great tradition of moral and legal justice that

looked to nature (including human nature) as a consensual basis for the assignment of

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value to actions, things, and ideas. But that tradition needs updating, both because of

disuse and because some of its foundations in nature were misplaced or mistaken. We

now possess a powerful and detailed body of international research by which morality

and legal norms can be provided with a sound and agreed-upon basis: the theory of

evolution.1

Almost all cultures on this planet have created systems of values and codes of

behavior, and have looked both to nature around them and to human nature as a

foundation and justification for their systems and codes. Every creation myth, every

founding myth, every hero myth implicitly or explicitly bases its distinctions between

good and bad, noble and base, fine and coarse, honor and shame, virtue and vice, holiness

and evil, right and wrong, upon its account of the universe and its meaning, including the

human race and its natural powers, excellences, and inclinations. Many of the world’s

greatest epic poems and creation stories contain episodes, like the taming of Enkidu in

Gilgamesh, the escape from Polyphemus in the Odyssey, the overcoming of Seven

Macaw by the hero twins Xbalanque and Hunahpu in the Mayan Popol Vuh, and the

1
The usual biological definition of evolution includes the change in gene populations
through such processes as adaptive and sexual selection, genetic drift, population
isolation, and the emergence of new species from common ancestors. I will use it here,
amended to include symbiogenesis, the direct transfer of genetic material across species,
and epigenesis, the systemic and often very swift effects of genes that control the
operations of whole patterns of other genes during the individual’s process of
development. I believe also that the strange attractors of the nonlinear dynamical
processes that constitute future possible species may also exist in an abstract sense as
basins of attraction, awaiting a close enough combination of genes and proteins to be
instantiated. The concept of evolution is speculatively expanded to include the evolution
of the universe as a whole.

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forest journeys of the Pandava brothers in the Mahabharata, in which human cultural

norms are built upon natural foundations.

Certainly the wishes and commands of divine beings also provide a source of moral,

ethical, and legal guidance; but in many traditional religions the divine is itself the spirit

—or spirits—of nature, and even in religions where the divine transcends nature, the

creation itself expresses the moral will of the gods. The value-implications of facts are

embedded in the idioms and proverbs of ordinary language everywhere. The facts of the

case, we say, “cry out for redress”. The soil is “good” and “ought” to be looked after. He

has a fine mind that “should not” be wasted. “Better” a live dog than a dead lion. And so

on. For almost all human cultures, then, facts imply values.

Some civilizations have codified natural law in philosophical and legal systems, and

have been enabled by those systems to keep the peace and allow the arts of peace to

flourish among large numbers of people not otherwise committed to each other. Chapter

2 of this book will trace the broad outline of European thought on the subject, from

Aristotle through Aquinas and the thinkers of the Enlightenment. But natural law

philosophy is by no means an exclusively European or "Western" phenomenon. Similar

systems include the Indian Vedic synthesis and the Chinese Confucian and Taoist

traditions. Only one culture has broken with this pan-human tradition and insisted that no

values can be inferred from the facts of nature. That culture was the culture of the

educated elites of the post-enlightenment West. In Chapter 3 we will look at the

intellectual crisis of the late eighteenth, nineteenth and early twentieth centuries that led

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to the discarding of what came to be called “the naturalistic fallacy” and to the separation

of facts and values—a separation now frozen into the barrier between the sciences and

the humanities and hardened into the conflict between science and religion. Here I would

note that the discarding of natural law did not prevent, if it did not indeed cause, the

appalling barbarities of twentieth-century Europe that immediately followed, in which

old racial hatreds and atavistic madness, armed with advanced technology, ravaged a

continent.

Today we are threatened by a similar collapse of human consensus, in the worldwide

phenomenon of violent religious fundamentalism. Paradoxically, it has taken a cue from

the modern West (in the writings of Sayyid Qutb, for instance) to reject any claim for

value or morality based upon the nature that we all share. But instead of trying to do

without any encompassing system of secular or religious values, as in some Western

societies, it substitutes—with a rather daunting logical consistency--one system imposed

from on high.

It is therefore the more urgent that we recover natural law and put it on a sound and

thus persuasive evolutionary footing. This book begins with a review of the history of

the idea of natural law from Aristotle and Aquinas through Locke, Rousseau, and the

American Federalists, to today. It shows how the limitations of Enlightenment science

led to the discarding of natural law, before it could be amended to reflect the insights of

Darwinian evolution. It points out the many dangerous and tragic consequences of that

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loss, and argues that natural law needs to be updated and reestablished as a guide to our

legal and moral practice.

The book then presents a case for the full reconciliation and consilience of religious

and scientific accounts of the universe. It defends the thesis that our nomadic past is

relevant to our technological present. Commonsense policies and moral norms for

abortion, cloning, stem cell research, gay civil unions, etc, emerge from a good

understanding of our embryonic development and our nature as social animals.

Classic issues of political philosophy and political economy can be re-founded upon

an understanding of our natural moral emotions, evolved to favor the species over the

individual. The book suggests the following hypotheses. Property can be refounded on

the natural territoriality of living organisms. Government must avoid the trap of our

natural “wolfpack” allegiance to a leader or patriarch, which can become pathological

when group numbers exceed a few hundred; democratic institutions mitigate that problem

by a market-like competitive mechanism, itself naturally derived. Social contract theory,

long the basis of political philosophy, needs to be rethought in the light of our natural

sociability. Religion seems to be natural to human beings, at least as an inducement to

cooperation, and should be welcomed but not legally endorsed by the state. Justice and

war should be recognized as based on the natural emotion of revenge, which in

individuals is often a beneficial sanction to discourage threats to the survival needs of the

cooperative group, but which on a collective level can lead to the insanities of war. But

we must recognize that justice is a sublimation of the revenge instinct and withers if it is

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cut off from its natural emotive roots. Human virtues—in love, compassion, art,

spirituality, the pursuit of truth, and so on—are likewise natural as beneficial to the

species, and require free conditions for their flourishing.

The penultimate chapter attempts to explain the strong resistance in some quarters to

the idea of evolutionary natural law, and dispels some misconceptions that might justify

such resistance. The book concludes by suggesting a system for the discovery and testing

of natural-law principles.

The key argument that this book makes is that traditional natural law, though valid and

valuable in many ways as a foundation for moral and legal codes, was deeply flawed

because it regarded the species as fixed and unchanging. As a result it evaluated

physical structures and behaviors on the basis of fixed and unchanging functions,

purposes, and ends. It could not conceive of the change of species and the emergence of

new species, and thus of such changes in function and purpose as the evolutionary

transformation of the swim-bladder of the marine fish into the lung of the lungfish, the

rewiring of part of the primate olfactory region of the primate brain into the emotional

center of the human brain, or the use of formerly reproductive behaviors for social

bonding as in bonobos and other social species. If nature has its own very orderly ways

of changing species and altering natural functions and ends, natural law needs to be

revised to reflect nature’s own creativity and open-endedness. But natural law was

essentially discarded by the modern western world before it could be corrected by

evolutionary theory. We have now come to understand the complexities and freedoms of

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evolution better than did its earliest misinterpreters, and may be ready to revamp our

basic values in its light.

The result, I argue, would offer solutions to many of our knottiest moral and legal

problems, both old and new. Evolutionary principles can, I argue, be grafted on to the

time-tested and reliable tradition of morality and legality without loss and perhaps with

great advantage.

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 2. Two Versions of Natural Law: Thomist and Enlightenment

At the bottom of many of our current controversies is a deep, hidden, and partly

unconscious debate about natural law. The bitter disputes over abortion, cloning, gene

therapy, parental morality and sexual freedom, free markets and regulation, private

property and public takings, environmental responsibilities, human rights and religious

culture, just war, strict construction and pragmatic interpretation of national constitutions

—all these are symptoms of a fundamental and unaddressed problem.

There are two main versions of natural law in the Western tradition. Both have their

roots in Aristotle. One branch of natural law is the extraordinary system of the great

medieval philosopher and theologian Thomas Aquinas; the other, coming out of the work

of Francis Bacon and René Descartes, is the equally remarkable synthesis of the

European and American Enlightenment.

Aristotle analyzed natural order in terms of an entity’s suitability to its function, a

mode of thought that comes easy to a biologist, as he was, because the bodies of animals

and plants are so obviously and beautifully expressive of their organic purpose. His

natural law is based on the idea of the appropriate end of something—indeed, two of his

four causes, the formal and the final, have to do with the way in which the action or

development of something serves its proper destiny.

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 In place of Aristotle’s unmoved mover and final cause, Aquinas put the Christian God.

Everything in the universe had a purpose, which was the working out of God’s

providence and the expression of his glory. Human reason could read the functions of

natural objects and human organs and proclivities. A value system with universal moral

injunctions could be developed out of that reading, which would supplement and buttress

the ethical code embedded in sacred scripture, and provide a natural-reason pathway for

the unbeliever to the threshold of revelation. Thus, for instance, the organs of generation

were obviously for the purpose of reproduction, and should not be used for another

purpose. Since money was not of the category of things that can reproduce, it was wrong

to make money multiply by the taking of interest. Since the species of things living and

dead were established by God at the beginning of the universe, it was a perversion to mix

them or to try to turn one into another. Since the function of human history was to bring

all men to the knowledge of God, war was sometimes necessary to clear the way. Even

among Christian kingdoms sinful transgression could be punished by military force.

The other strand of natural law resulted from the centuries-long crisis of European

religious wars and from a new socially activist interpretation of the Biblical injunction to

feed the hungry, heal the sick, shelter the homeless and serve one’s fellow-man. The

interpretation of scripture was now deeply problematic—different according to whether

one was an Anglican, a Calvinist, a Hussite, an orthodox Catholic, or a Jansenist, or some

other sectarian devotee. The only way one could find the peace among men that God

commanded was by the use of natural reason playing upon the book of nature, which is

open to all men and whose conclusions and injunctions are provable by a combination of

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logic and empirical evidence—what would evolve into scientific method. Note that the

function of nature is now changed: it is to serve the greater good of humanity. “Nature

and nature’s God,” as Jefferson put it, gave us natural law for the sake of human

happiness and only secondarily as setting the conditions of the individual’s search for

spiritual salvation and declaring the glory of God. In Europe Hugo Grotius and Samuel

von Pufendorf had elaborated a vision of natural justice that could transcend national

cultures and even religious differences. It was this notion of natural law that forms the

basis of the US Constitution and that most conservative jurists tend to want to defend.

It differs from Thomist natural law in various ways. It is much less literalistic about

the functions of natural objects and human organs and inclinations. Since the purpose of

nature is to promote human wellbeing—a recovery of the Edenic grant to humanity of

sovereignty over nature—reason must go further than merely sticking to the given

functions of nature. In Eden we were entrusted by God with the scientific task of naming

the creation, and thus, since a name is also a human use, of assigning our own uses to

animals, vegetables, and minerals. We may legitimately change natural functions and

harness them to human welfare. The artificial is not necessarily an adulteration of the

natural, but can be the proper extension of it. Thus the function of human sexuality is not

just the production of offspring, but also the fuel of higher human passions and loves,

which are in turn part of the natural path to salvation. Likewise, it is more than proper to

use financial interest and the institutions of banking and investment if they contribute, as

they do, to a multifold increase in production and stability in the economy, resulting in

greater general wealth and welfare. War was not justifiable on the basis of uncertain

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claims of divine support, but had a natural justification in self-defense (including defense

against international crimes and thefts). Enlightenment natural law has as its basis the

supreme value of freedom, while the equivalent value in Aquinas is obedience to God.

Most of these differences, however, are not necessarily fatal to an accommodation

between the two positions. The immutability of natural species was still upheld in the

Enlightenment version of natural law. The Catholic Church, where the Thomist system

was most faithfully preserved, was able to adapt itself in time to most of the

Enlightenment program. After all, Aquinas would agree that obedience should be given

freely, and Enlightenment Christians would recognize that the best use of freedom was

obedience to due authority. Thomas himself conceded that the sexual pleasure of the

unfallen Adam was greater than that of any fallen man, and the bond of pleasure can

serve the preservation of the family and the rearing of offspring. Milton’s Paradise Lost

is a magnificent early attempt to reconcile the two systems. The Catholic Church

voluntarily came to renounce the right to religious war, on the grounds that one catches

more flies with honey. Where the Catholic Church never quite abandoned Thomism or

adapted itself ideologically to Enlightenment natural law was in three areas: the specific

use of the sexual organs, the practice of modern business, with its key instruments of

interest and profit, and the dangers to the soul of objective science and technology.

Though the Church itself traditionally defended the rights of those who marry for love

against arranged marriage, it feared and still fears any use of the sexual organs for

nonreproductive purposes. Though it has a bank and investments and universities, the

Church is still deeply suspicious of capitalism, as tending toward unnatural and prideful

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human incursions into the realm of morality. Though its intellectuals once led the world

in scientific discovery, it now treats the advances of science and technological innovation

as a potential threat to the humility of salvation.

For many years the Enlightenment reason of the American constitution was content to

allow a good deal of permeability between its own principles and those of the older, more

religious form of natural law. Such phrases as “in God we trust,” “one nation under

God,” and institutions like tax exemption for religious property indicate its own

willingness to get along. Unfortunately the entente cordiale is today rather frayed at the

edges, as the current controversies over abortion, cloning, and gay marriage indicate; but

the spirit of compromise is still there.

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 3. The Challenge to Natural Law

Meanwhile another, much graver, controversy was on its way. Romanticism rejected

both the scholastic reason of the Thomists and the scientific reason of the Enlightenment.

Initially this rejection was in service to nature itself. Reason was not the instrument by

which one could divine the purposes of nature. The heart has its reasons that reason does

not know, said Pascal. The dream of reason brings forth monsters, said Goya. Reason

should serve the will, not the will reason, said Rousseau and Hume. But once reason was

toppled from its throne, nature now became the same kind of ideological battlefield that

the Bible had once been. Fourierists, communists, socialists, anarchists, Nietzscheans,

Freudians, Golden Dawn mystics, Nazis, Dadaists, fascists, eugenicists, and many more

ideological groups all claimed legitimating roots in nature. And these roots were

ascertainable by introspection, imagination or will, not by reason. Just as they had during

the Reformation, wars of astonishing savagery broke out in the heart of civilized Europe.

Eventually the very idea of natural law came to be viewed with deep suspicion.

What replaced it? In practice, the making of law by individuals, either elected by the

people or claiming the mandate of the people. But of course the making up of laws out of

whole cloth by persons who think it a good idea at the time has major problems. Such

laws could be impossible, like Stalin’s Lysenkoist repeal of the laws of biology, or

inhuman, like the anti-Jewish laws of Nazi Germany, or economically suicidal, like state

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ownership of the means of production or the Smoot-Hawley Act that turned a market

crash into a worldwide depression. Laws must be based on some underlying theory that

stands a fair chance of avoiding madness, evil, or catastrophic foolishness. So a new ad

hoc set of theories emerged, and we are living in the presence of a stitched-together

chimera composed of them.

One element of the new legal theory was historicism—the victors write history,

therefore to be right requires only to have achieved the victory; and to be victorious is to

rightfully make law. Millions died as a result of the assumption that nature was whatever

the victorious race or class said it was. A milder version, vulgar pragmatism,

accompanied by some attention to precedent or appeal to a constitution, helped certain

nations, like Britain and the U.S, avoid the worst extremes. Vulgar pragmatism says: if it

has worked in one place, then do it again somewhere else; usually “worked” means

“enabled us to win victory in war.” So the New Deal, for instance, was the moral

equivalent of war. (I use the term “vulgar pragmatism” to distinguish it from the much

more thoughtful pragmatism of Charles Sanders Peirce, which I believe to be part of the

solution, not the problem.) The disadvantage of this approach is that without some

taxonomy to establish whether one situation is truly analogous to another, the application

to case B of a solution valid in case A has a fair chance of being disastrous. If a firehose

is good for a fire, it is not necessarily good for a flood. If centralized state control is good

in war, it may be bad in peace.

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 Another element in the destruction of natural law was the social construction of

reality, the ideology so named late in the twentieth century but already implicit in many

nineteenth century utopian schemes of social organization. Examples are the

progressivism of the United States, the national socialism of the Nazis, the “scientific”

communism of Lysenko and Stalin, the mystical communism of the Khmer Rouge, and

the bureaucratic statism of much of contemporary Western Europe. One makes up an

ideal vision of society and legally eliminates everything that does not fit. No essential

distinction prevents the more benign examples of this view from turning into the darker

ones.

Yet another element was existentialism—there are no essences, thus there is no such

thing as true species of things, therefore no proper use or function of anything, and so no

moral rules other than arbitrary constructs. Law consists in protecting the entitlement of

people to live in this unprincipled way. No rule organic to this view hinders the swift

descent of such a life into addiction or insanity.

More promising as a basis for moral and legal justification was the marketplace—what

was lawful was not what was natural, but what promoted trade and profit. But the

marketplace itself must have some kind of legal structure and policing, such as the laws

of tort, breach of contract, trusts, trade union organization, banking regulation,

inheritance, copyright, limited liability corporations, etc. And those laws all presupposed

definitions of property which, without natural law, floated uneasily upon the current of

traditional practice and could be challenged on the basis of past or present inequity,

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inherent arbitrariness, social disruption, moral shallowness, and cultural insensitivity.

Property itself, which had been allowed as part of the state’s natural mandate by

Thomists and accepted as natural by the Enlightenment, came under attack.

The loss of the concept of just war, an inevitable result of the loss of natural law, is

dangerous in its own ways. On one hand, the obvious implication is that no wars are just,

and all wars must be avoided. Leave aside the fact that the same logic would apply to

police forces, and thus to the enforcement of any law whatsoever; if only unjust people

go to war, it is the just people who will be killed or enslaved in war. But the problem is

graver still on the other side. For if there is no natural justice, there can be no natural

injustice either. Absent any way to judge between the incommensurable social

constructions of the combatants, neither can be assigned the blame. Thus no war is

unjust, and anyone may go to war if he chooses. The standard of just war seems

necessary, then, even if no war meets that standard.

At present it is the remaining habits and traditional structures of Thomist and

Enlightenment natural law that largely maintain the general law-abidingness in the West

at large, while much of its legal profession has abandoned both. In America legal

precedent and the Constitution have acted as a brake on our worst impulses toward

making up laws out of whole cloth. But the very basis of our constitution, natural law, is

regarded either as a joke or a sinister code-word for theocracy in many legal quarters, a

reason to filibuster legal nominations, a sort of swastika; while invented rights, such as

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privacy, death, and unlimited medical care, proliferate without any theoretical basis or

empirical test of their validity.

Here the danger would be that the inherent flaws in both Thomist and Enlightenment

notions of natural law might lead to the kind of renewed fundamentalism that we have

seen among alienated young Muslims, a sort of western version of Wahhabism, a new

Sharia. We see this tendency on both the left and the right—on the right, state policing of

medicine, biomedical science and technology, the drive to undermine the teaching of

evolution, the attempt to deny even secular rights of domestic union to homosexuals, the

effort to choke off immigration and discourage cultural mixing, etc. On the left we see

political correctness, an aggressively secular-humanist ideology in the educational

system, a strong bid for the creation of sumptuary laws governing smoking, firearms,

fattening foods, SUVs etc., a selective bias against Christianity, and a continued effort to

weaken the market by regulation, taxes, and unfunded mandates.

A simple return to some combination of the two old versions of natural law will not

save us. For both old versions of natural law—Thomist and Enlightenment—are indeed

deeply flawed. Both regard species of things as essentially fixed and immutable, and use

folk zoology, folk botany, and folk geology as evidence for their “natural “ and proper

use. Even the environmental movement, which should know better, is prone to this

mistake, regarding any change in the biological world as a disruption of a natural

functional harmony. If a given organ or behavior looks as if it might have a given

function, Thomists and the Enlightened alike regard that assumption as unproblematic—

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they accept a purely impressionistic assignment of function and purpose to natural

beings. Such changes of function as the evolution of a swim bladder into a lung or the

primate olfactory bulb into the emotional center of the human brain are inconceivable in

terms of the old forms of natural law. Both Thomist and Enlightenment forms of natural

law emerged before the single most important discovery about nature: the theory of

evolution, and its extension to the history of the cosmos as a whole.

Thus natural law as it now stands has been cut off from its basic legitimating

foundation, that is, the observation of nature. For evolutionary theory is the very

precondition for the meaningful observation of all biological phenomena at least, as

gravitational theory is the precondition of astronomical observation.

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 4. A New Natural Law

What is needed, then, is a recovery of natural law on a new and revitalized scientific

basis. Even the flawed versions of natural law provided much sound judgment and

commonsense about which laws might work well and which might not. If their crude

functionalism were supplemented by the marvelously sophisticated and painstakingly

verified conclusions of modern biological and cosmological science, we might be able to

put natural law on a new footing. Even the Catholic Church has now accepted the

conclusions of Galileo and Darwin as consistent with Christianity.

The key difference between the old natural law and a new emerging one is that for the

new synthesis species are not immutable. There are indeed natural kinds of things, but

they can, slowly and lawfully, change into other natural kinds. A lungfish is not a

mammal, an eohippus is not a horse, and the ancestral primate is not a human being.

Even time and space, as Einstein pointed out, can change roles depending on the mass

and velocity of a local reference frame—not arbitrarily, but in an ordered and measurable

way. So too the particles and waves of quantum theory. The nonlinear dynamical

process by which generations of a given species cycle iteratively through the process of

variation, selection, and genetic inheritance is ordered, even principled, but it can make a

given species of animals or plants branch into breeds or strains, then into subspecies, then

into new species, and even over time into distinct genuses, families, and orders. This

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branching process has given us the overwhelming richness, variety, and beauty of our

natural environment and provided us with the means of our livelihood. If anything is a

good for us, the continuance of this process itself must be. So the basis of any new

natural law must be the evolutionary branching of new natural kinds. In the world at

large it means the potential of the Earth’s life to go on branching here (and ideally on

other planets), and in our own lives it means the scientific freedom to go on creating new

technologies, the personal freedom that enables us to explore our own and each others’

potentials, and the political freedom that enables cultures to explore theirs.

Both Thomist and Enlightenment natural law run the risk of being defenseless against

the charge of determinism—Thomism because God’s will rules all, Enlightenment

rationalism because natural cause rules all. The concept of natural “branchiness” turns

out to be a neat solution of the old problem of determinism versus freedom. If what we

do and are is absolutely and uniquely caused by the history of the universe, including our

own physical and mental state, much of our vocabulary of freedom and responsibility

becomes empty, and morality a charade. Nietzsche’s version of this idea, so perceptively

analyzed by Dostoyevsky in Crime and Punishment and The Brothers Karamazov, was

perverted to justify many of the atrocities of the twentieth century. On the other hand, if

there is no causal order in the world, science becomes impossible. The Enlightenment

conception of causal order was summed up in Laplace’s imaginary calculator, which

contained all the positions, vectors, and momenta of all the particles in the universe, and

could therefore predict every single future event, including our own mental processes and

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moral decisions. Cause in this sense is like a single railway track from which no

deviation is possible.

That notion of causal order was undermined in a variety of ways—by Hume’s

demonstration that cause cannot be proved to be logical necessity, by the very different

statistical causality of thermodynamics (taken by nineteenth century science to mean a

monotonic increase of disorder over time), by the Einsteinian questioning of the order of

time itself as between different temporal reference frames, by the apparent randomness of

quantum events, and by the unpredictability of nonlinear dynamical processes. It has also

been resisted by many who wished to put human freewill on a different footing from

nature, and prove that it is supernatural, an uncaused cause. But traditional determinism

is still strong in many minds, partly because it affords us a way to reason about nature

and seems to validate the powerful technique of prediction and experiment—like causes

should have like effects, and much of our technology is based on that assumption.

Evolutionary branchiness implies that a given causal state of affairs can cause many

different sets of effects. The rails fork and branch into different tracks. All of the tracks

that can coexist—within whatever spaces the world allows for them—do in fact come to

exist. To change the metaphor to Darwin’s, the evolution of the world is not like an

extending pole but like a branching tree or bush. Each species is a different set of effects

from the same original set of causes—each, so to speak, is a different hypothesis about

the future of the world.

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 Science is still conserved, since every set of effects is indeed uniquely caused by its

antecedent condition; there is no contradiction between a single cause and multiple

effects. And the various challenges to Laplace’s causality are answered and accounted

for. Hume’s objection, that cause is not logically provable, is taken in stride, since cause

is no longer being held to the same criteria of unique inference that logic is. In

information theory, entropy, as Claude Shannon, Edwin Jaynes, and John von Neumann

pointed out, could be interpreted as the coherent multiplication of branching paths of

probability to fill the available space of possible futures. (Thus entropy was not a

measure of disorder, as the old thermodynamicisats maintained, but could be seen as a

natural explorativeness!) Einsteinian relativity can accommodate different and even

branching world-lines. In quantum theory the state of a particle at time (2) is the sum of

all the possible world-lines of the particle at time (1). In chaos and complexity theory

there is a fundamentally unpredictable but orderly attractor that governs the branchings or

bifurcations of dynamical self-organizing processes. At least some believers in human

freewill might be placated by a freedom to choose among different future branches, each

of which can truly claim to be caused by the present moment, even if that freedom is

natural and not supernatural. Cause is actually not weakened but saved by the idea of

branchiness. Though prediction becomes theoretically much more difficult—well,

prediction is in fact very difficult (especially of the future, as Niels Bohr and Yogi Berra

observed). It is only by the isolation and strict control of an experiment that the

alternative world-lines of the results can be pruned away. Of course the great triumph of

the idea of causal branchiness was Darwinian evolution, which is proposed here as the

basis of natural law.

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 The new natural law, which conserves an ordered but creative and innovative process,

is different from the old, which conserves the existent distinctions among different kinds

of beings. But there are still many ways in which a new natural law might subsume and

affirm the old. Evolution brings about functions and purposes, and those functions and

purposes are not easily or arbitrarily wrested to different ends. The old natural law

doctrine of proper use holds in most everyday situations, just as the doctrine of

Newtonian gravity holds in most normal cases within a relativistic universe. Though we

may mix natural kinds by planting protein-making genes from pulses into rice plants, we

must be aware that there may be an adaptive cost and that we have taken on the onus of

ensuring an environment viable for the chimera. Most mutations and exchanges of genes

do not work. Too swift a change in an ecosystem can damage biodiversity and even

climate. We assume responsibility for managing time, so to speak, for the species that

are now under our charge. In other words, change is not bad as in the older natural law,

but it is something that must be gardened and nurtured—and so we return to the

injunctions given us in the myth of the Garden of Eden.

But here we run into yet another obstacle. Many modern biologists are ideologically

hostile to traditional natural law—both because their discipline had to endure long

attempts from that quarter to suppress it, and because scientific method seemed to deny

the assignation of purpose to natural phenomena. Thus they refuse to allow any

argument from how things are to how they ought to be, and would be constitutionally

opposed to the normative use of biological science in such an enterprise as natural law.

In practice, paradoxically, it is impossible for those same scientists to avoid the language

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of purpose and function when studying living organisms, and evolutionary biologists are

famously vulnerable to the charge that they are simply telling post hoc/propter hoc “Just

So” stories about adaptive change. Still, ideology as always trumps experience. Thus if

we are to borrow the useful findings of biology—and other sciences—to give grounding

to our morality and legislation, we must do so without permission. Biology may be too

important to be left to biologists.

The Thomist argument, even without an explicitly divine element, is basically a pretty

good one: Everything in the universe has a purpose. Human reason can read the

functions of natural objects and human organs and proclivities. A value system with

universal moral injunctions can be developed out of that reading. The Enlightenment

addendum is also valid as far as it goes: the use of natural reason playing upon the book

of nature, which is open to all men and whose conclusions and whose injunctions are

provable by a combination of logic and empirical evidence, can serve the liberation and

greater good of humanity. Of course without God the terms “purpose”, which implies

conscious design, and “function”, which implies only design, are separated; and in a

secular democracy people cannot be required to acknowledge a divine being in order to

be accepted as a legitimate citizen of the republic of laws. Even so, I will argue that

science can get us a very long way toward naturally just laws even without the invocation

of divine revelation. And even if purpose is ruled out as unprovable in the beginning of

the universe, it has certainly evolved since, at least in the affairs of human beings. So the

universe had at least the potentiality of generating purposes from the very beginning.

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 Anthropological research has shown that underlying the surface variations in human

codes of conduct there are robust universals that prohibit murder, theft, lying, incest,

adultery, and so on, and that enjoin such virtues as cooperativeness, truthfulness,

generosity, and self-control. Like language, which has been shown by Noam Chomsky,

Derek Bickerton, Steven Pinker and others to have a universal deep structure and

developmental process, morality is a human instinct. The work of games-theory

“replication dynamicists” like Brian Skyrms, Elliott Sober, David Sloan Wilson, Jonathan

Haidt, and Robert Wright proves that group selection not only can work, but can by good

Darwinian selective processes bring about positive inclinations in individuals of many

species toward altruism and cooperation. The psychological outcome of selection for

such virtues would be a conscience; we are, by this logic, most likely to be happy if we

are good.

The notion of a moral instinct is opposed not only by the social constructionists—who,

rejecting any biological givens in human psychology, want all morality to be a matter of

local social ideology—but also by many hard-line biological determinists, who want to

see the physical universe as devoid of value, meaning, direction, and freedom. Indeed,

the two groups collude in supporting our existing educational system. But if virtues can

evolve, so too presumably must the values that virtues serve. So the rule that moral

values cannot exist in the physical universe is nothing more than a rule, an unfounded

article of metaphysics. Why should a value not also be a fact? After all, human values

and faiths can literally move mountains—consider any large military or engineering or

architectural project. Yet humans are part of the physical universe; and why should we

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deny factuality to those values yet ascribe it to neutrinos, for instance, which are so

insubstantial and ineffective as to pass through the earth without affecting it at all?

Evolutionary materialists, like Richard Dawkins, like to argue that the gene is

completely selfish, and that since all life depends on genes, all life is essentially selfish,

bent only on survival. For Dawkins the fundamental unit is the selfish gene; for single-

cell biologists, it is the selfish cell; for more traditional Darwinists, it is the selfish

individual. (One could argue that even Dawkins is not fundamentalist enough, and that

the primary unit should be the selfish codon, the selfish nucleotide, or the selfish atom.)

Despite their theoretical differences on what the fundamental unit is, selfishness-believers

are agreed that from the fundamental unit on up, no new properties of the moral kind can

emerge. Does this mean that because the letters of this sentence on the computer screen

are made of featureless dots, they themselves are featureless dots? Or that because water

is made of two dry gases, it is not wet? The assertion that life is essentially selfish is

mere metaphysics.

The key idea in evolution is survival; yet living organisms by definition are dying all

the time; they live by dying, which is metabolism. Biological “survival” is a grand,

breathtaking, and accurate metaphor, but only a metaphor. Nothing of a gene is surviving

in material reality when it reproduces; what “survives” is a piece of abstract information,

the sequence of nucleotides on the DNA chain. My liver dies and resurrects itself every

few days. It is no more “surviving” than a flame. A chunk of granite that has survived in

good hard fact for a billion years would, if it could, both laugh and shudder at the lunatic

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claims of a living organism to be surviving by hatching its eggs, or even by eating and

excreting. Yet life is very effective—there is as much limestone around as granite, and

limestone is the corpses of living organisms. A mere phantom—a pattern of information

—can move mountains; for the crustal plates of the Earth and the eruptions of volcanoes

are now driven by the boiling and fizzing of life-created rocks as they are subducted into

the mantle. And if so abstract, so spiritual a thing as that pattern can masterfully

determine the structure of large chunks of matter and the whole surface of our planet,

why should not the even more intangible entities of goodness, freedom, God, soul, and

beauty?

Our genes determine our bodies and brains, and they determine how we think and feel

and behave. True. But our feelings and thoughts determine our behavior, which

determines how our brains and bodies grow, and whom we choose as a mate, which

determines how future genes will be distributed in the species. Suppose that beauty,

value, meaning, freedom, planning for the future, teleology, soul, etc, were complete

nonsense, but, were a species to operate as if they were real—by nurturing its young, self-

sacrifice, ritual, cooperative signaling and the like—such a species would be at a

competitive advantage with others. In all the games that nature provides for us to play,

cooperator groups, if they are clever enough, will outbreed equally smart non-

cooperators. In order to keep up, the other species would in turn be forced to develop

teleological behavior, and thus the core value assumptions of teleological behavior as a

guide to preserve consistency. Eventually every part of the world would be filled with

organisms and structures that acted as if the universe were meaningful, valuable, and full

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of intentional design. Concede still that all of those value-abstractions are still complete

nonsense. But that concession is now a purely metaphysical one, with no practical or

scientific relevance. Those abstractions will have become laws of nature. Good hard

empirical science would tell us that of course the universe is a work of value-creation in

progress. A belief in the meaninglessness and valuelessness and directionlessless of the

universe would then be an act of purely religious faith, maintained in the face of the cold

hard facts of meaning, design, love, progress and beauty. The austere and faithful

biological materialist, in his sackcloth and ashes, could then say with the mystic “Credo

quia absurdus est’”—I believe because it is absurd.

We might devise a sort of test, similar to Alan Turing’s well-known Turing Test for

artificial intelligence, for purposive teleological value-oriented behavior. It could go

thus:

If any entity—for instance the gene pool of a species, a band of social animals, an

individual animal—cannot be distinguished in its actual behavior from one which is

acting purposively according to values and intentions and planning for the future, then:

That entity must be deemed to be acting purposively according to values and

intentions and planning for the future.

Purposes, values, intentions, and future plans imply means and thus proper functions

for things and proclivities—the basis for a natural law system. But if morality is an

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aspect of our biological nature, the relationship between morals and natural law begins to

appear in a new light. Part of the evolution of natural law itself may have been to cement

a system of social controls that backs up our emerging moral instincts, and detect and

sanction cheaters and selfish defectors from the common good. This is not to diminish

either natural law or morality, but to root them more deeply in this real evolving universe.

The only authority for the idea that the values enshrined in natural law might not be so

rooted in the universe is the taboo against mixing the “natural kinds” of fact and value.

And this taboo was one of the articles of the unwritten treaty that resulted from the

Enlightenment standoff between religion and science.

If biology in itself can give a solid foundation for morality, do we even need natural

law to provide sanctions for moral behavior? The fallacy of this question is the

assumption that natural law is not itself “always already” biological. Evolution can, as

replication dynamics has shown, produce the moral emotions of revenge, justice,

jealousy, love, cooperativeness, protectiveness, and the desire for a good reputation. It

can also bring about a propensity to create cooperative signaling systems, rules and legal

codes, as anyone who has watched small boys play can attest. But why should we need

rules if we already want to obey them? The problem is again one of natural kinds. For

we did not cease to be primates when we became humans, nor did we cease to be

mammals, vertebrates, animals, living organisms, when we became primates. We are a

natural kind, but one which is a unique mix and dénouement of many natural kinds. The

priorities, emotions, and proclivities of those natural kinds are often at odds with each

other—the animal drive to reproduce against the human taboo on rape and incest; the

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primate desire for high status against life’s general urge to homeostasis; human

individualism against mammalian gregariousness. A more explicit and overt system of

natural law can balance and adjudicate among the various hierarchical levels of our

mixed nature. Already some of the ingredients for such a system are in place: Cosmides

and Tooby’s important book The Adapted Mind has given us the beginnings of an

evolutionary psychology of the moral emotions, Brian Skyrms (The Evolution of the

Social Contract) has given us ways of modeling the emergence of moral norms, and

Biopoetics, a volume of essays by various researchers collected by Brett Cooke and

myself, has extended the research into the area of aesthetics and the arts.

Let us see how far a purely naturalistic morality can get us. We must have a moral

law, formal or informal, and a practice of virtue to give it effect, since we are creatures of

habit and are much better at doing things we have already rehearsed. Our moral law

should be based on the values inherent in the common cultural and genetic inheritance of

the human race—that is, to be a good member of the law-abiding community should also

mean that one is a good human being, a good primate, a good mammal, a good animal, a

good piece of matter, a good arrangement of energy. Evidently part of the law’s mission

would be to find out what “good” means in each case. For example: to be a good human

being is to fulfill one’s obligations; to be a good primate is to play one’s proper part in

the group; to be a good mammal is to nurture one’s young; to be a good animal is to

maintain one’s health and to maximize the representation of one’s informational structure

—at this level of organization, one’s genes—in the next generation; to be a good piece of

matter is to survive; to be a good piece of energy is to have a certain magnitude and a

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coherent vibratory structure. The highest level of this moral hierarchy, fulfilling one’s

obligations, indeed already covers many of the Ten Commandments, including the

injunctions against murder, lying, theft, adultery, and so on.

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 5. Evolution and Design

Would not an evolutionary natural law amount to making God unnecessary to moral

conduct? More fundamentally, doesn’t evolution make God unnecessary to the very

existence of the world? If there is no God, what authority, if any, guarantees the moral

law of humankind? These questions are crucial in the current controversies that are

dividing many nations. For just as our laws must be not for religious believers alone,

they must also be not for unbelievers alone either.

Here I should, perhaps, advert the reader to my own prejudices in this matter. The

battle between the evolutionists and the creationists is a peculiarly tragic one, because it

is amplifying the worst tendencies of both sides, and making it more and more difficult

for most people to find a resolution. On the polemical creationist side, the sin is

intellectual dishonesty. It begins innocently as a wise recognition that faith must precede

reason, even if the faith is only in reason itself (as Gödel showed, reason cannot prove its

own validity). But under pressure from a contemptuous academic elite the appeal to faith

rapidly becomes anti-intellectualism and what Socrates identified as a great sin,

“misologic” or treason against the Logos, against reason itself—in religious terms, a sin

against the Holy Spirit. Under further pressure it resorts to rhetorical dishonesty and

hypocrisy, to an attempt to appropriate the garments of science and reason, and so we get

“creation science”, the misuse of the term “intelligent design”, the whole grotesque

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solemn sham of pseudoscientific periodicals and conferences on creation science, and a

lame parade of scientific titles and degrees. A lie repeated often enough convinces the

liar, and many creationists may now have forgotten that they are lying at all.

The polemical evolutionists are right about the truth of evolution. But the rightness of

their cause has been deeply compromised by their own version of the creationists’ sin.

The evolutionists’ sin, as I see it, is even greater, because it is three sins rolled into one.

The first is a profound failure of the imagination, which comes from a certain laziness

and complacency. Somehow people, who should, because of their studies in biology,

have been brought to a state of profound wonder and awe at the astonishing beauty and

intricacy and generosity of nature, can think of nothing better to say than to gloomily

pronounce it all meaningless and valueless. Even if one is an atheist, nature surely has a

meaning, that is, the human world and its ideas and arts and loves at least, including our

appreciation for the beauty of nature itself. Even if this universe flowered into moral and

aesthetic meaning only once, here, that would be enough in itself to pronounce it

valuable, sentient, and even semi-divine. Even if we had bodies a billion light-years

across and brains the size of a pea, and were sentient only one-billionth of the time, but

could think and feel, we should still be called sapient and responsible.

The second sin is a profound moral failure—the failure of gratitude. If one found out

that one had a billion dollars free and clear in one’s bank account, whose source was

unknown, one should want to find out who put it there, or if the donor were not a person

but a thing or a system, what it was that has so benefited us. And one would want to

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thank whoever or whatever put it in our account. Our lives and experiences are surely

worth more than a billion dollars to us, and yet we did not earn them and we owe it to

someone or something to give thanks. And to despise and ridicule those who rightly or

wrongly do want to give thanks and identify their benefactor as “God” is to compound

the sin.

The third sin is again dishonesty. In many cases it is clear that the beautiful and hard-

won theory of evolution, now proved beyond reasonable doubt, is being cynically used

by some—who do not much care about it as such—to support an ulterior purpose: a

program of atheist evangelism, and an assault on the moral and spiritual goals of religion.

Evolution neither proves nor disproves the existence of a transcendent deity. A truth

used to support ulterior conclusions that do not follow from it is quite as bad as a lie used

for ends believed to be worthy. If religion can be undermined in the hearts and minds of

the people, then the only authority left will be the state, and, not coincidentally, the

state’s well-paid academic, legal, therapeutic and caring professions. If creationists

cannot be trusted to give a fair hearing to evidence and logic because of their prior

commitment to religious doctrine, some evolutionary partisans cannot be trusted because

they would use a general social acceptance of the truth of evolution as a way to set in

place a system of helpless moral license in the population and an intellectual elite to take

care of the impulsive and reasonless mob that results.

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 The controversy over intelligent design and evolution is, like many current quarrels,

largely artificial, a proxy fight between atheists and biblical literalists over the existence

and nature of a divine authority and the desirability of state authority as a replacement for

it. Many people not warped in attitude by the exacerbations of the conflict see no

contradiction between the idea that the universe, life, and human beings evolved

according to natural processes, and the idea that a divine being or beings can be credited

with the existence of everything, having set those natural processes going in the first

place. The big question is whether nature itself, without the invocation of a creator of it,

can give us a moral law that is robust enough to serve a modern democratic free

enterprise society—if it can, that moral law would be acceptable both to believers, who

would see it as God’s natural revelation, and to unbelievers, who could trust its

metaphysical impartiality.

Let us first take a brief look at the current state of scientific cosmology—the best that

observation, experiment, computer modeling and mathematical logic can do in giving us

an explanation of the existence and beginning of the universe (if it had one). One point is

unproblematic for mainstream science: natural evolution is quite capable, given the right

set of initial conditions, of bringing about life and intelligent beings without outside

intervention. The basic natural-science issue concerns those initial conditions: what some

have called the “Goldilocks” problem. The universe we live in seems to be based on a

very specific set of logical and geometrical rules and physical constants. For matter, life

and human beings to have evolved, the fundamental parameters had to be “just right”,

neither too hot nor too cold, like the porridge that Goldilocks finds in the house of the

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three bears; neither too big nor too little, like the one chair out of three that is the right

size. If any of the basic parameters of the universe had been different, even by a minute

amount, matter might not have been able to hold together, stars might not have been able

to form, the essential element of carbon might not have been cooked up, planets might

cool down too fast, life molecules might not work.

These basic constants come in two flavors: mathematical and logical rules, and

constant physical quantities. The former include rules like the value of Pi (the ratio of the

radius of a circle to its circumference), the value of Phi (the basic ratio of growth

processes), the identity rule (things that are equal to the same thing are equal to each

other), the axiom that P and not-P can’t both be true, the principle that the angles of plane

triangles must add up to 180 degrees, and the proposition that syllogisms (like the old one

that states that if all men are mortal and Socrates is a man, Socrates is mortal) must be

true. The latter include such constants as the speed of light (about 186,000 miles per

second), Planck’s constant (the minimum size chunk for a given piece of energy or

matter), the electron volt constant (the mass of a proton or neutron), the number of

families of quarks, the gravitational constant, the relative values of the four physical

forces, and others. Mathematical physicists would dearly like to show that the second set

of constants can really be derived from the first set of rules—that is, that the way the

universe is set up is logically necessary—but they haven’t succeeded yet. Some progress

has already been made—the inverse square law by which gravitational attraction and the

light from a source diminish by distance can be seen as a logical necessity, and Einstein’s

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geometrical description of gravitation seems to have taken one phenomenon—mass—out

of the realm of physics and settled it in mathematics.

But the basic issue—how come this universe was so perfect for the development of

life and intelligence?—remains. If there is only just one possible universe (this one), then

a new difficulty raises its head: the basic constants and rules would have to be logical

axioms, from which the details of the universe would flow by perfect logical necessity

(otherwise other universes might be possible). But we now know from the work of the

logician Kurt Gödel that a system of reasoning cannot prove its own axioms; that the

axioms, so to speak, are hanging arbitrarily out there, with no logical necessity at all,

generating a universe of reasoning to be sure, but with no explanation in themselves.

Worse still, the very logic in which the argument is conducted is itself founded on the

same set of completely inexplicable rules. And given that this entirely arbitrary bunch of

rules produces the staggering richness and variety of things—“shoes and ships and

sealing wax, and cabbages, and kings,” as the Walrus puts it in Alice Through the

Looking-Glass—one might very well be justified in inquiring who or what invented this

amazingly ingenious game.

William Paley, the nineteenth century theologian, professed to have refuted evolution

by his analogy of the watchmaker. Living organisms, he maintained, were so intricately

and exactly constructed, with every appearance of being perfectly fitted for their

functions, that the absence of a designer would be inconceivable:

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 In crossing a heath, suppose I pitched my foot against a stone, and were asked how the stone

came to be there; I might possibly answer, that, for anything I knew to the contrary, it had lain

there forever: nor would it perhaps be very easy to show the absurdity of this answer. But suppose

I had found a watch upon the ground, and it should be inquired how the watch happened to be in

that place; I should hardly think of the answer I had before given, that for anything I knew, the

watch might have always been there…

Every indication of contrivance, every manifestation of design, which existed in the

watch, exists in the works of nature; with the difference, on the side of nature, of being

greater or more, and that in a degree which exceeds all computation.

Many evolutionists have rightly shown that this argument cannot hold up against the

evidence that natural adaptation, the combination of heredity, genetic variation, and

natural selection, can generate superbly adapted animals and plants, even structures as

complex as the eye. But if we are talking about a set of axiomatic rules, arbitrary by

definition, that just happens to be the program that, played out, produces this

astonishingly detailed world game, then the picture changes. If the watch on the heath

means, say, the octopus’ eye, there is no need for a designer—the rules can produce the

eye. But if the watch means the rules themselves, that uniquely specify an evolutionary

process that with perfect consistency produces things like the octopus’s eye and, dear

reader, your brain—then one begins to wonder.

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 Scientists do not like unexplained things—explaining is their job. Many of them have

adopted another possibility than the single logically-determined universe—that there

might be many universes, each with a different set of axioms or ground rules. Each

universe would have its own speed of light and electron volt constant. Some would

disappear at once, others would never generate matter but remain pure energy universes;

others might not have light or electrons at all. The beauty of this idea is that this universe

we live in, with its now-integral life and intelligence, would no longer look like an

anomaly. Out of all the possibilities, pure chance—the roll of the die—would eventually

turn up the one we live in. Most of the trillions of universes that different axioms might

specify would not support matter, let alone life; only a minute fraction would support

intelligent life, but the existence of even a minute fraction of an infinite amount is an

absolute certainty, with no need for explanation. The fact that we happen to be aboard

this particular universe is no coincidence—this is one of the ones with the axioms that

support our emergence. The reason we observe an ordered universe is simply that only

such a universe could produce observers of it. Thus we would have a dice game that

plays itself, and even decides the shape of the dice, and whether it is by dice or lot or

some other random method that the game is chosen.

So we are logically forced to choose among various absurdities. The first is an

ingenious programmer, who had only to set the universe in play (speed of light, Pi,

Planck’s constant, and all) for it to end up evolving people on its own after thirteen

billion years. What makes this hypothesis absurd is two reflections. The first is: who

created the programmer? If a universe requires an explanation, why should not a creator

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of it require one too? The second arises from the reflection that if we are going to posit

such a programmer, he would have been quite capable of creating the universe five

seconds ago (with all our memories perfectly stocked with nonexistent past events), or

yesterday—or a few thousand years ago (as “young-Earth” creationists believe). Why

bother with evolution, billions of years of “mindless” matter recombining, when he could

stand a complete universe up, intelligent beings and all, in the twinkling of an eye? He

might indeed have to have quite a sense of humor, in burying all those ancient-looking

fossils, arranging the DNA of animals and plants to look as if they diverged from

common ancestors millions of years ago, and setting a sphere of light-waves flying

Earthwards that appear to be from ancient and distant stars.

On the other hand, if one accepts that the universe really is about thirteen billion years

old, such a programmer might have been constrained in his choice of initial parameters,

not being able to give them enough creative dynamism on their own to generate genuine

emergent novelties, and would need to step in miraculously from time to time to create

new species, or at least to plant the first living molecules and intelligent beings in the

world. Or he might have wanted to exercise a continuous hands-on control of the whole

process of nature, changing its rules as he went on. This is basically the position of “old-

Earth” intelligent-design proponents. Part of the absurdity here is that the programmer’s

very successful attempt to cover up his own correctional maneuvers would look

distressingly like dishonesty. For the world certainly looks as if it runs by itself, and as if

it generated its own species once its initial parameters were in place. If God could

conceive of a universe that would create itself once it was started, and make it look as if

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this universe were such, why could he not actually create it? Natural science does not

require such interventions, and if God is an artist these readjustments would seem to be

the clumsy devices of a rather poor one—like a painter who keeps coming back to touch

up his painting, or a control-freak dramatist who insists on inserting new characters and

situations as the play is performed, or a composer-soloist who changes the key in mid-

symphony.

But the programmer-less universe has absurdities of its own. The chance

concatenation of “Goldilocks” parameters and settings out of a plenum of alternatives

requires an infinite number of universes, including an infinite number of perfect replicas

of this one, and perfect replicas differing in a single detail from this one, as well as

trillions upon trillions of different dead and living and null universes—none of them,

except this one, observable by definition. The medieval English philosopher and logician

William of Occam invented the logical rule now called “Occam’s Razor”: don’t make the

hypothesis you use to explain something more complicated than what you have to

explain; choose the simplest set of assumptions that will satisfy the actual case.

There is a further absurdity here, too. If all possible universes could spring suddenly

into existence, one of them—or even an infinite number of them—would have to be a

combination of atoms and energies that would constitute a single enormous and powerful

nonlinear computational system, wise, beneficent, and with immense power to alter both

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its own constituents and any other accessible universe. Such a universe would be

functionally indistinguishable from God. So the multiple universes theory could well be

taken as a proof of God’s existence!

Which of the two basic sets of evolutionary hypotheses is more complicated—the

brilliant programmer, or the wild and endless foliage of universes—is perhaps a matter of

taste. “What created the programmer?” is a good question; but it is no more pressing

than “What created the dice game”? A self-creating programmer is no odder than a self-

creating dice game. Maybe the non-evolutionary hypothesis—the clumsy or dishonest

artist—is more absurd still, but it is one that cannot be disproved. And we know for sure

that the truth of any axiom is by definition absurd (from “surdus”—unspeakable,

irrational, unprovable, because prior to all possible speech or reasoning or proof).

So—God created the game-rules of the world with such perfect skill that they freely

interacted through evolution to make a universe; or God must continually tinker with the

world to make it express his will; or there is no God and the universe is the result of some

combination of deterministic necessity, blind chance, and a plenum of possible

parameters. Here, basically, is the difference among the “natural science theist”, the

“intelligent design theist”, and the “atheist” accounts of why the universe’s basic

constants are so perfectly suitable for the emergence of life and intelligence.

Since no system of reasoning can prove its own axioms—there must always be an

unprovable truth behind any logical argument—we are, with perfect intellectual integrity,

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at liberty to choose any of the three. Our choice is basically an emotional, moral, and

spiritual one. Atheists might object to the idea of a supreme creator out of pride in

human independence, and might want on political grounds to resist a supreme dictator of

events. Scientific theists might object to the endless weary profusion of parallel

universes on the grounds of theoretical inelegance, philosophical theists might find it

even less likely than sheer coincidence, and artistic theists might find it ugly. Atheist

scientists might simply have a professional loyalty to reductive explanations that do not

require top-down causes; theist natural scientists might find the exquisite precision of

natural laws an appropriate object of religious awe. Theists might prefer the moral order

implicit in a generously creative deity; atheists might prefer to make morality a human

responsibility, not one that we can shuck off onto the divine. The decisions we make

here are like the decisions we make when we choose the rules of a game, not like when

we adjudicate a contested move in a game; they hinge on how we like the game that a

given set of rules creates, not on whether a rule has or has not been violated.

All these differences are matters of taste, faith, and free choice, and do not explain the

current passionate controversy. Where the real quarrel lies, I believe, is in a much more

profound difference in attitude, a difference that cuts across the theist/atheist divide at

right angles, so to speak. It is the difference between what we might call a dead universe

and a live one—between a passive and uncreative universe, and a proactive and creative

one.

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 On both sides of the theist/atheist distinction we find people who see the universe as

essentially inert, meaningless, and unfree—whether playing out a single predetermined

program specified by some set of physical/logical constants or other, or predestined by

God to do exactly what it does. The mechanical determinism of this view, in which the

future always was and is laid out before us like a single railroad track, is a challenge to

any moral or aesthetic values, as many philosophers and theologians, including Calvin,

Hume, Kant, Hegel, Nietzsche, and Sartre, were swift to recognize. Some thinkers

accepted it in a spirit of bleak courage (though the courage was itself in their view

predetermined by matter or God). Were those values illusions? Or were beauty, moral

freedom, and goodness real but arbitrary freaks of nature?--or miraculous interventions

by a God who was evidently dissatisfied with a merely fatalistic universe? Either the

universe is meaningless in itself, or God supplies it with meaning it lacks in is own right.

Given such a world, could God “so love the world”, or pronounce it “good”, as the Bible

says?

Another whole branch of thinkers, preferring many actual universes to a single

inexplicable predetermined one, accept the endless multiplication of parallel worlds with

a grim or uncaring realization of its absolute moral and aesthetic meaninglessness. If an

infinite number of Frederick Turners has always done and will do exactly what this one

does, and an even larger infinite number has made and will make every possible other

choice, what difference does it make that I choose this good act rather than that crime, or

this ugly sentence rather than that beautiful one? Whether it is God or sheer chance that

provides this weary abundance of universes, the view is the same—some have been

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driven to madness by it, like Nietzsche. Others, like the Hindu philosopher-mystics who

saw the eternal recurrence of universes as meaningless, a “wandering on from death to

death,” sought to escape the wheel of existence altogether.

The politics of “dead-universe” thinkers is similar on both the atheist and the theist

sides of the question. Strong political authority is required, either to impose on a value-

neutral human nature the values of human society—as with atheist Communism—or to

curb the natural urges that draw us away from God—as with the Taliban. The aesthetics

of “dead universe” artistic authorities tends either to the absolutely deterministic and the

absolutely random—or both, like Schoenberg’s twelve-tone row. Since nature is

meaningless, there is not much point in imitating or representing it. Atheist artists of this

type tend toward abstraction and contempt for representational art; religious art

authorities forbid the making of images, ikons, and representations, and severely punish

idolatry, the preferring of the created to the creator. Either aleatory or form-follows-

function principles dominate. The only permitted art is art that transcends nature and

rejects it, either in pursuit of pure existentialist “whim” or the ineffable and absolute will

of God.

Either fate or chance gives us a dead universe, one without an inner dynamism and

creativity that can generate values and qualities on its own. “Live-universe” thinkers on

both the atheist and the theist sides reject such an inert and valueless vision. For them

evolution and its results are overflowingly wonderful, even holy. Atheist “live-universe”

proponents are delighted and awed by the creativity of the universe itself. Many are

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prepared to flout the “fact-value” distinction and see values as emergent properties of

natural process—the world as an embryo waking up to itself through our own growing

awareness and valuation of it. Religious “live-universe” thinkers, like the Renaissance

giants who saw in nature the footprints of God, believe that God voluntarily delegated

much of his own creativity and control of the future to his creation itself. St. Francis of

Assissi’s naturalism repeats and amplifies St. Paul’s conception of the world as groaning

in childbirth—and is the precursor of Teilhard de Chardin’s evolutionary theology.

Evolution is God’s chosen method of creation, one that he does not violate by clumsy and

unnecessary interventions. He provided a set of initial constants and parameters that did

not specify a single one-track series of events, but a free and branchy set of choices

whose interaction and mutual relatedness would bring about conscious and intelligent

beings. Like the mustard seed, the Kingdom of Heaven is something that sprouts and

ramifies on its own, and the birds of the Spirit come to nest in its branches.

For both atheist and theist “live-universe” proponents, there are political, moral,

aesthetic and legal implications that are of profound importance. For atheists of this type,

the bottom-up creativity of the universe leads to a profound valuation of human freedom,

a sense of the dignity of people and living things, a trust in natural processes, and an

aesthetics of natural organic form. Emergent new kinds of order and organization arise

only out of interconnected, nonlinear, and dynamical systems, so we need a large element

of chaos and risk in our cultural arrangements.

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 Theists of this type agree. Since God set the universe free, freedom must be one of his

prime values. Since in doing so he must have given away some of his own agency, and

since the universe organizes itself through mutual relatedness, his other prime value must

be love, as Dante believed. Love and freedom together give us a universe that is always

coming up with surprises, new beauties, new deepenings of moral value. Both types of

“live-universe” thinkers today would tend to want to recover the ancient magical sense of

nature that was suppressed both by the religious iconoclasts and by Enlightenment and

Modernist enemies of superstition. Both would love democracy, the free market, and the

natural development of technology in partnership with a healthy ecosystem. The art of

“live-universe” artists would take nature not as an enemy but as a friend, and would be

happy to represent it in both senses of the word—by picturing it and by being its

spokesman in solidarity with it. It would not, as dead-universe artists tend to, avoid

ancient natural forms, genres, skills, and naturally pleasurable artistic techniques, but see

them as a passage to either higher human meanings or to the deeper intentions of God—

or both.

Justice for both religious and unreligious “live-universe” positions would be entirely

consistent with an evolutionary perspective. The laws that might be inferred from either

would be virtually identical. Thus evolutionary natural law, if well-formulated, need not

divide a nation along religious lines. There might be an inherent tension between those

who emphasize the basic rules that make possible evolution of all sorts—biological,

economic, political, artistic, legal—and those who emphasize the open-endedness of the

process, its capacity to evolve not only new entities and new kinds of entities, but also

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new forms of evolution itself. In biology, the “conservatives” would hold the line that all

three elements—variation, selection, and heredity—must be preserved. In economics,

they would hew to the proven foundations of property rights and money and contracts,

etc. In politics they would insist on the vote, free speech, etc, as the basis of political

legitimacy and would oppose recognizing states and governments as sovereign without

them. In art they would stick to the principles of tonality, drawing, poetic meter,

narrative, dramatic mimesis, the human scale. In law they would be constitutionalists.

“Liberals” would take the position that in biology, we must be open, as nature always has

been, to new forms of life; in economics, that we might one day evolve out of capitalism

and into something else; in politics, that the vote might be weighted in favor of

minorities; in art, that experiment is more important than virtuosity; in law, that an

activist bench best represents the spirit of the constitution.

An imaginary evolutionary-natural-law Supreme Court of the future might split along

these lines, as between evolutionary strict construction and evolutionary freedom of

amendment and interpretation. But such a split would be no bad thing, indeed part of the

necessary dialectic itself; and though one might imagine more religious people in the

former camp, and more unbelievers in the latter, even that division is not at all a

necessary one. Religious enthusiasts have as often been at the vanguard of reform and

liberalization as in the trenches of legal orthodoxy; and atheists such as communists and

nazis were notorious in the Twentieth Century for their suppression of free enquiry and

experiment.

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 More problematic is the fit between the thought of “dead-universe” thinkers and

evolutionary natural law. Materialist determinists who see all of the history of the world

as a single undeviating chain of one-line causes with no inherent value or meaning would

disagree in principle with a value-generating universe, whether designed as such or not.

But realizing that the human “delusions” of inherent or emergent value were also the

result of ineluctable material causes, they could presumably accept a natural law system

with as much indifference as any other—if it were established, it would have been

established as part of the string of causes anyway, and if not, not. They might even

welcome, in a spirit of rational hedonism, a system that might make possible greater

happiness for a greater number, if their own happiness were included. Dead-universe

types who believe in a plenum of parallel universes as opposed to a single necessary

universe, though again their pluralism would make them entirely skeptical about the

values of any particular universe, might see it in their interest to have a legal foundation

more consistent with the parameters of this one. The danger here is from social

constructionists who know the perfect social and economic system to make everyone

happy, and who are willing to try to change nature and human nature to do so: such

people have been responsible for millions of deaths in the last century. But if they could

be persuaded that evolutionary natural law is as close as they are practically going to get

to their utopia, they might be placable.

“Dead-universe” religious determinists who do not believe in a branchy and creative

universe, but in God’s undelegated will as the absolute cause of every event, might also

be difficult to integrate into an evolutionary natural law system. But even here there is

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some wiggle room. They might disagree with the premise, but not necessarily with the

inferred rules that flow from it. The issue would come down, perhaps, to whether they

could square the particular provisions of an evolutionary natural law system with their

own interpretations of scriptural or miraculous revelation. They might ignore the

premises of the ungodly, who, unbeknownst to themselves, are doing God’s will and so

proving again, if proof were necessary, that God controls all. On the other hand, the

false premises might be too much of an irritant to the zealous. But here the same could

be said for any secular legal system. The only group that might seriously object to an

evolution-based legal system would be those who see themselves as the instruments of

God in creating a strict legal theocracy. But these folk would be unpopular in any regime

—including, paradoxically, a theocracy, for everyone’s version of theocracy, because of

the cursed individuality of human beings, is slightly different.

This book adopts the “live universe” view, as is only consistent with the premise of

natural law itself, which is that the physical universe and its means of becoming are

morally relevant to human beings. It is also consistent with the most recent views of the

evolution of higher social animals, which regard at least the rudiments of altruism, moral

emotions, intentionality, meaningful communication, symbolic behavior, and planning

for the future as not exclusive to the human species and as emergent from natural

evolutionary processes.

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 6. Human Ancestral Conditions and Natural Law

One major objection might be made to the entire program of refurbishing natural law

and putting it on an evolutionary basis. It is that technology has already irrevocably

separated us from any kind of natural condition, and that it is futile to try to apply

principles evolved through millennia of hunter-gatherer species experience to modern

human life. Consider a person living in an air-conditioned suburb, driving to work,

seeing for the bulk of her time by artificial light, eating a diet utterly unlike that of her

ancestors, controlling her reproductive cycles, and in communication by the internet with

millions of people she does not know. How can natural law apply to such an animal?

The interesting and rather surprising thing is that that person does not get sick or go

mad. Indeed, her life expectancy is that of an extremely healthy, lucky, and genetically

gifted hunter-gatherer. And she is not discernibly less happy and well-adjusted (though

some, who have not lived in a central African village and seen humans there as

depressed, anxious, and confused as they are in New York, might disagree with this last

point). Somehow humans can adapt themselves to the most extraordinary circumstances.

Some have speculated that we have no human nature, that the slate of our instincts and

predispositions was wiped clean somewhere between Homo habilis and today. But this

unexplained hypothesis collapses in the face of the mass of evidence from human

ethology, anthropology, linguistics, genetics, and sociobiology for the universality of

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countless human traits. Others have proposed that human beings are purely social

constructions—or that, following the same logic, our entire view of nature is purely a

social construction, with no foundation in “reality”. Since no argument using evidence

and logic would be acceptable to the latter group, we can leave them unaddressed.

Given that we very decidedly do have a nature, with a host of specific features, how is

it that humans do live happily in an environment very different from that of 9/10ths of

our evolutionary history? The answer can only be that there are certain features of our

specifically human nature that are designed for adaptability itself. And this observation

may teach us something quite profound and important about whatever natural law we

might find that specifically applies to human beings.

Adaptability in a species is not in itself an unusual concept in evolutionary biology.

Just as there are species that are excruciatingly fine-tuned to a special environment—a

parasite, for instance, that can only live in the gut of an ant that preys on the caterpillars

that eat only the leaves of a certain tropical creeper—there are also pantropic “weed”

species and genera that can happily adapt to hundreds of wildly different biomes. Take,

for instance, sparrows, dandelions, mice, oaks, orchids, and Johnson grass. Often their

genomes contain a huge variety of usually silent genes that can be toggled on or off

depending on the experience of an individual member of the species or of a few short

generations of a lineage. At present the mechanism of that toggling is under intense

study, from homeobox genes to immune response to stem cells to sexual reproduction to

intron DNA once counted as junk. But it is already clear that biological adaptability is

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not a simple general-purpose robustness but an intricately designed kind of specialization

of its own, like flight or air breathing or sight or the use of a trunk.

The picture sometimes given by utopian anthropological popularizers of ancestral

humanity is often rather misleading. We are portrayed as living for huge stretches of

time in the Serengeti plains, small hunting bands in an endless savannah. There is some

truth to this picture, but it needs to be radically supplemented by new information about

human prehistory—which is very much more dramatic than the arcadian view once held

—and about human individual development and maturation. For instance, modern

humans evidently originated in Africa, about 100,000 years ago. But they did not stay in

one place. Luigi Luca Cavalli-Sforza and other anthropologists have traced humanity’s

extraordinary migrations across the globe. Humans were present in Australia at the very

least 50,000 years ago, and some estimates give much older dates. The Americas were

colonized not long afterwards. Almost immediately, humans were walking, and to get to

Australia and America they must have walked through wildly different terrains—deserts,

tundras, mountains, forests, jungles, ice-floes, marshes, barren and fertile seacoasts—and

navigated across open oceans. Humans are the most efficient walkers on the planet—

over very large distances, we can even outpace the horse. Our temperature control

system is extremely sophisticated, better even than that of wolves and dogs. We are

specialized for getting quickly to very different places. Perhaps we could say with some

justice that it was not that humans evolved and then walked and ran, but that we walked

and ran, and so evolved into being human—we were forced to grow big brains to deal

with the technological and social stresses of moving about.

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 The sociology and sociobiology of our migrations is itself very interesting. Human

adolescence is a very remarkable phenomenon, neurologically and hormonally. As the

body acquires its full strength, endurance, and sexual readiness, the behavioral pattern

changes. The human brain seems to be programmed to rewire itself through puberty and

sexual maturation, and delay the establishment of fixed moral habits until after the age of

eighteen. A wave of dendritic pruning surges across the cortex from back to front.

Simultaneously the adolescent is designed to adopt a different diurnal temporal niche

form the child and the adult, staying up late at night and sleeping in the morning. There

is a profound questioning and rebellious testing of parental and tribal knowledge, and a

wanderlust that includes a rejection of childhood companions as mates and a search for

exotic sexual partners. At the same time an urge to identify and bond with and conform

to a group of age-mates emerges. Human exogamy and the incest taboo are part of this

set of instincts. To keep the lid on these maturational changes, all human societies have

developed systems to suppress or recruit them—male longhouses to discipline boys, rules

governing female honor, rites of passage, and so on.

Archeology and the observation of modern hunter-gatherer and herding societies seem

to suggest a common life-cycle for the human group, based on the challenge and spur of

human adolescence. The story might go something like this. A group of young adults

accompanied by a few elders disgruntled and politically disempowered in their home

village set out down the coast (or into the next valley). They settle down, have children,

and are faced with having to teach them the lore of the group, one that will prevent the

children from wanting to go back to the old village. They tell an alternate version of the

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myths and stories, which contains most of the ideational content of the originals, but

which reverses key aspects of them or creates mediators in the old binary oppositions to

explain the move. Their numbers increase, but while there are still plenty of local

resources so that everyone can live comfortably and found lineages, there is no major

conflict. When resources grow scarcer, the adolescents get restive, having to take

subordinate positions in established households. Factions arise among the elders; the

losing side recruits the support of some of the disaffected young, or talented youngsters

choose as mentors those among the old who resist the majority. Some incident occurs,

usually involving kinship conflict—between a suitor and the loved one’s family, between

a father and a maternal uncle over the loyalties of a boy, between brothers over an

inheritance, or between the blood kin and affines of a young woman, for instance—and

triggers a breach. Attempts at ritual resolution of the grudge succeed at first, and finally

fail. A group of adolescents, perhaps including eloping couples, leaves the home,

accompanied by their allied elders; the home village settles down until it must bud a new

group of emigrants. This new group of malcontents must take a different direction from

that of the first emigration, or try to join or conquer the new village or the ancestral

village, or strike out into the hinterland, evolving its own set of modifications to the

traditional myths and rituals, and sometimes reviving the more ancient unrevised versions

of them.

Each new version of the old stories encapsulates the traditional knowledge but also

adds a record of its experience, failures, and successes over history. This is a story of

continuous branching and spreading, and is consistent with the expansion of humanity

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across the globe. Myths such as the founding of Rome and Tudor England by Trojan

survivors, the founding of Japan by Chinese voyagers, the founding of Israel by

Mesopotamian emigrants, the founding of Hungary by the brothers Hunor and Magyar,

the founding of the Hawaiian empire by Polynesians, and of course the taming of the

Wild West continue the story.

In other species, adaptability is managed mostly by the DNA and RNA and the

immune system. The human version of adaptability, like so many human traits, seems to

be a complex partnership between innate and learned traits. In our species, culture, with

its ability to store and transmit vast quantities of information, takes a full partnership role.

Adaptability requires mechanisms for accumulating information about the world and

about past successful and unsuccessful strategies for dealing with the contingencies of the

world, for recognizing such contingencies as they arise, for triggering those strategies

when appropriate, and for recording the results into the future. In other words, for culture

to play its full role in supplementing our hardwired biological adaptability, it must be

evolutionary in its own operations. It must be able to preserve a rich and various fund of

traditions, to recognize departures from the conditions justifying the current set of

“toggled” settings, and to use tradition as a way to give new responses to new situations,

toggling on new combinations of older settings to meet current needs. In other words, it

must be conservative in preserving its heritage of old information, observant in

comparing it with the current situation, and imaginatively free in applying the old

knowledge.

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 This model of human adaptability is, it might be noted, markedly different from

modernist theories of innovation and originality. Instead of progress emanating from the

present, progress is held back by present practice when it encounters new contingencies

(including anthropogenic ones like the overcrowding of a coastal village or the

environmental stresses of the modern city). Instead of the past acting as the obstacle to

progress, the past is the source of progress, an archive of possible strategies and

narratives and collective memories to be consulted and recombined to meet the new

situation. The most powerful stories are the great myths of exodus and liberation—and

they are virtually determined by the creative tension between territorial possession and

expanding demographic numbers. What the present says is: “Put up with your bondage”;

what the past says is “But your ancestors did not, and they found the Promised Land.”

And those myths of the past are not just stories, but the beginnings of a true archive of

biocultural adaptability.

To a large extent that archive is also a record of what can, and cannot, be done with

human biological nature itself. And it is this part of the archive that can now be

catalogued, organized, and accessed by evolutionary natural law. Modern technological

society does not undermine or weaken the relevance of natural law: on the contrary, it

demands natural law, for the stakes of failure are so much greater.

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 7. Biomedical and Reproductive Implications

How might a new evolution-based natural law rule on our current controversies? I am

proposing here not a wholesale new natural law, but rather a program of study and

research to improve and refound the old ones that is sound and acceptable. Thus it would

be premature to attempt to answer this question definitively; and the answers would

probably be wrong. Nevertheless, it might be useful to indicate the kind of answers one

might get, on the basis of existing knowledge, if only as hypotheses to be tested. What is

interesting about these provisional rulings is that nobody’s ox goes ungored—

evolutionary natural law is often severe where our present practice is lenient, and silent or

lenient where our practice is severe. Neither conservatives nor liberals emerge

unscathed; libertarians come out perhaps a little better, but plenty of their sacred cows

suffer as well.

Take genetic engineering, stem cell research and gene therapy, for instance. At

present there is still much unease in the religious, the environmental and the medical

ethics communities about the promise of interventions in the “source code” of life. This

anxiety goes well beyond the proper caution that should attend any technological

innovation. In the perspective of different versions of natural law, it is clear where the

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unease comes from. The Aristotelian, Thomist, and Enlightenment versions all agree that

there are natural species or kinds, and that to mix them or alter their basic defining

characteristics is to create a monster. In physics the actual confusion of what were once

thought natural kinds—space and time, waves and particles—was an intellectual but not

often an emotional problem. Spacetime and wavicles were eventually accepted. But in

biology ancient fears were aroused by the mouse-human chimeras used in cancer

research, the fruit-flies with legs instead of antennae and eyes growing where they

shouldn’t. Politically we have rightly come to be afraid of eugenics and the dream of a

super-race.

Evolutionary natural law might point out the following. Every multi-celled organism

is already a genetic mongrel, with lineages of genes and plasmids and organelles and

mitochondrial DNA from thousands of different sources, as such biologists as Lynn

Margulis and Sorin Sonea have pointed out. We share 99% of our genes with chimps and

40% with yeasts. Every moment bacteria and viruses are clipping out bits of DNA from

some organisms and patching them into others, including ourselves. Evolution works by

the creation of monsters—every new species started out with an individual with a new set

of gene changes or grafts, a little monstrosity in itself.

Whenever we choose for our husband or wife someone whose characteristics we like,

we are practicing eugenics, since our offspring will contain and perpetuate the genes of

our beloved rather than those of our rejected suitors. Eugenics is only an evil when it is a

state monopoly: we have already been practicing it on a free-enterprise basis for millions

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of years, through mate selection. Indeed, the evil of state eugenics is not the creation of

weird varieties of human beings but the reduction of the human gene pool to racial

sameness. In other words, there is nothing more natural than organisms singly or

collectively altering their own and each other’s DNA; and all the marvelous varieties of

flourishing animals and plants are the result. Agriculture itself is based on tens of

thousands of years of genetic engineering by traditional plant, bacterial, and animal

breeders.

The opposite fear—cloning—might also be illuminated by a new natural law. I say

that cloning is the opposite of the creation of transgenic and mutant individuals because

instead of mixing up new combinations it makes a close-to-exact copy. We now know

that any piece of human tissue has a full suite of human DNA, and given the right

environment—a vacant human egg, the right chemical triggers, and a nutritive

environment equivalent to a womb—any human cell could in theory develop into a full

baby twin of the tissue donor.

There are, actually, rather interesting though inconclusive evolutionary natural law

arguments against human cloning. Human beings reproduce in two ways. One is

asexually, as when our stem cells divide and differentiate (according to the signals they

receive from the rest of the body) into the components needed by the organs to replace

the ones that are constantly dying. The other way, of course, is sexual reproduction. To

clone a human being is to use asexual means to produce an outcome normally given over

to sexual means. That which is designed to preserve the life of the individual is being

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used to preserve the life of the species. To put it more dramatically, it is to reverse

billions of years of evolution and turn a eukaryote into a prokaryote, or to make us

reproductively into plant cuttings or budding amoebae rather than animals. There was a

reason evolution created sex: it was the production of unique individuals, each of which

can act as an adaptive test-bed for some special combination of the genome’s potentials.

Incest or inbreeding, which if carried to the ultimate would result in something close to

cloning, is known to risk degeneracy. When sex emerged, so also did death by aging, to

clear older generations from the path of new, better-adapted individuals. Cloning, since it

presumably produces a younger version of the original, is a means of biological

immortality; and the only immortal cells in a human body, immune to apoptosis or

programmed cell death (with one exception), are cancer cells.

Thus one could argue that cloning a higher animal is “unnatural”. But there are

counter-arguments too. For instance, even in higher animals nature does use asexual

forms of reproduction as a persistent way of supplementing sexual reproduction—that is,

in the case of twins, triplets, etc. Many animals have identical litters. Some very

successful lower social animals, such as ants and bees, use cloning to do the huge bulk of

their reproduction, and sex only in rare but important moments. So if cloning is seen as a

rare but natural way of reproducing human beings and livestock, no fundamental natural

law would seem to be broken. The natural law rule would seem to be: don’t narrow the

genome; preserve individual uniqueness even at the expense of perfection; let selection

pick the winners; central planning may be as bad an idea in reproduction as it is in

economics. And there is another natural-law issue here: the exception to the immortality

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rule mentioned earlier, along with cancer cells, is brain cells. Neurons do not seem to

naturally age (though of course they can die by abuse and be replaced by stem-cell

activity); and thus when a person dies by aging, his non-aging neurons are hostage to the

body’s death. Is nature saying that brains ought to be immortal?

Thus natural law as revised by recent science might not give a single unconditional

answer about cloning—but it would greatly clarify the language of the decision-making

process. Evolutionary natural law might change the onus of justification for biological

procedures from being the preservation of natural species distinctions to being the

preservation of the vitality of the process of individuation, natural selection, and viable

reproduction. This might in turn help us found a new medical and biological ethics, to

replace the current confused and desperate one, whose current “state of the art” criterion

is what is known as the “ugh” factor. If the “ugh” factor were a reliable moral compass,

the German people would have been right to exterminate the Jews.

An evolutionary natural law might also help us think about abortion. It would note

that the transition between one natural kind and another is not fixed and absolute but

gradual; generations pass, mutations and grafts from other species are accumulated, and

crucial thresholds are crossed until a new species can be said to have emerged. Likewise,

nature would remind us that new species are in part genetic mixtures of old ones. So

drawing the line, as we must in order to name things and identify them, is naturally very

difficult. Naming is not an incidental issue: it is at the core of the work of science, and in

all the religions of the book it is the first commandment given to humankind by God.

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Although embryonic and fetal development do not, as was once believed, recapitulate

phylogeny (the evolutionary history of the species), there is a similar gradualness of

change from what is a speck of undifferentiated human tissue to what is a human being.

That change does indeed cross crucial thresholds, and here natural law might find a basis.

The process of death itself is also gradual, and the law as it stands now, based on the

old natural law and widely accepted by both the Church and the population, has identified

two thresholds that mark the point of transition from life to death—the loss of the

heartbeat, and the loss of brain activity. Perhaps these criteria, reversed, can provide a

definition of the transition from non-life to life. Heartbeat in the embryo begins at about

two weeks. The onset of brain activity, at about eight weeks, corresponds roughly to the

transition from the embryo to the fetus—in medical parlance, from what is potentially

human to what is a very young human (Latin fetus, “young one”). That threshold is also

the point where the number of spontaneous miscarriages falls off sharply—nature at this

point seems to cease being casual about whether it invests or not in a new individual. In

the dying, heartbeat can be artificially maintained, but there is no known way of

artificially maintaining brain activity as such. Thus brain activity becomes the key factor.

The fetal “young one” is not yet viable outside the womb, and requires support—but so

do severely ill patients with brain activity who are legally counted as alive and are not

terminated. The late Pope John Paul II, for instance, was given all the medical support he

needed to maintain brain activity, but his heart was not kept artificially beating after brain

activity had ceased.

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 Thus a new natural law might set eight weeks as the point where human life legally

begins in the womb—a solution, often proposed elsewhere on commonsense grounds,

that might win popular and legislative support and replace the imposed diktat of Roe v.

Wade. This is not to say that the Church would be wrong, as a church, to continue to

insist on the moment of conception as the dividing line. That speck of tissue can be given

sacramental importance by the Church’s claimed authority, and other reasons, such as the

moral hazard of separating sex from procreation, and the protection of the dignity of the

human person, might be adduced for its stand. But as regards the first eight weeks of

pregnancy the Church would not be able to continue to claim that its ruling would be

based upon natural law, and thus would not be able morally to hold people of other faiths

or civil governments to its own internal claims. Its writ in this respect, like the old rule

about abstinence from meat on Fridays or desecration of the Eucharist, would run no

further than its own members. However, its public authority regarding the fetus after the

first eight weeks would be buttressed by sound natural law.

The claim that the “speck of human tissue” that constitutes a four-day-old human

blastocyst is sacred as a potential, even if not an actual, human being, may still be true.

But in the light of our ability to clone and grow living cells it becomes rather trivial. For

the live skin cells on one’s razor when one shaves are also potential human beings, the

difference being only that the technology and expense of bringing one to full human

babyhood are hugely greater in one than in the other. Why condemn cloning, which

might rescue a few human cells that would otherwise be doomed by metabolism, while

defending the right of other cells to mature to birth? Is a twin less human than a new

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biological individual? Should the expense of nurture be the deciding factor? If “natural”

methods only should be used, why not let premature babies die? Why question stem-cell

research, with its huge promise for the health of millions of people, when we kill

hundreds of potential babies every time we brush our teeth?

Natural law, revised as proposed here, tends to make its distinctions not by absolute

and eternal boundaries of kinds, but by quantitative and gradual changes that cross

thresholds or tipping-points or bifurcation-points that retrospectively have many of the

outward appearances of absolute category frontiers. Homosexuality, often taken to be

either an absolute natural kind or a perversion, seems instead to lie at one end of a

hormonal gradient, the whole of which seems to be needed to express the full capacities

of the human genome. It is present as a small minority in advanced social animals in

general. It has not, despite its apparent Darwinian unfitness—how can a propensity to

not reproduce be reproductively successful?—been selected out of our gene pools. The

implication is that the preservation of what in large doses creates homosexuality is a

major adaptive advantage to the species that possesses it. Konrad Lorenz describes the

occasional pair of deeply bonded male greylag geese as playing a very important role in

the flock, of exploration, courageous defense, and exemplary social behavior. From a

sociobiological point of view, even though their genes would not be perpetuated in their

offspring, the same genes in their close kin could well stand a better chance of surviving

to reproduce because of the presence of homosexual pairs in the flock.

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 Unlike the old Thomist natural law, evolutionary natural law is quite happy with

mixtures of functions and purposes, even very complex ones. In the realm of sexuality,

traditional Christian natural law stipulated that the organs of generation should not be

used for anything but reproduction—this was the basis of the condemnation of

homosexuality. In making this ruling the Church was able to ignore the fact that the

penis is used far more frequently for urination, which is part of the process of digestion

and excretion, than for reproduction. It does not trouble nature that two such different

functions are combined in one organ. Ethologists point out that sex has an enormously

important bonding function in many social species, over and above its use for

reproduction. If the evidence and the logic of such research continues to hold up, it might

well be that it would be unnatural for government to deny the right of civil union to

homosexual couples. Nevertheless, there are organic problems in the mixing of

functions, too; anal sex, for instance, poses dangers of infection—i.e. the promotion of

the asexual reproduction of bacteria and viruses—and may encourage a psychological

category confusion between that which benefits the self (the digestive) and that which

benefits the species (the reproductive).

Evolutionary natural law might arrive at some such conclusion as this: homosexuality

in nature is a valuable, rare, risky, but perhaps indispensable variation upon the sexual

norm. It is not an unnatural perversion, if by that is meant something that harms species

survival. But it is not normal either. There is no reason why it should be either

suppressed or encouraged, though its value as a bonding agent might be legislatively

recognized. Homosexuality is a matter of threshold-crossing in a hormonal balance, and

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culture can very strongly influence where such a threshold is placed. For instance, in

sexually repressive societies girls reach puberty later; in warlike societies boys express

more of their more obviously “masculine” characteristics. High social status baboons

have markedly different hormonal and even immunological balances than low status

ones, and loss of status changes one to the other. So homosexuality, too, might well be

strongly influenced by the social milieu. A society that repressed homosexuality might

be unnaturally denying it its adaptive function, while a society that encouraged

homosexuality, increasing its proportion in the population from its natural 2% to 8 or

10%, might also be placing unnatural constraints on the time-tested balances of nature.

Of course, advanced technological societies tolerate all kinds of alterations in our

natural conditions, exposing us, for instance, to far more sugary, alcoholic, and fatty

foods than our genes are used to, and subjecting travelers to violent changes in their

biological clocks, so there is obviously much latitude here. With issues like gay

marriage, a corrected natural law might well suggest that a distinction from reproductive

marriage should be preserved, reflecting nature’s own definition of homosexuality as a

rare but useful exception, but that the exception be honored with a status of its own.

Since sexually active post-menopausal heterosexual couples without children, or with

self-sufficient children, are no different, as far as natural reproductive functionality is

concerned (though bearing their own special responsibility for carrying on the cultural,

rather than the biological, survival of the group), perhaps that special category should

include them too. The issue of post-menopausal sex rarely came up when the average

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lifespan was shorter; but it is one that cannot be solved consistently in terms of traditional

Church teaching on sexuality.

Characteristically, evolutionary natural law has much more room for compromise than

Thomist or Enlightenment natural law; but it does not allow it at the cost of abandoning

its principles. For instance, evolutionary natural law might be quite strict—even draconic

by comparison with our present permissive practice—with regard to the duties, rights,

and responsibilities of parents and children. The creation and nurturing of a younger

generation is still the core of any natural law. As in our whole evolutionary past as

humans, the presence of at least two primary and permanent caregivers is the only

optimal condition for our young. Our big brains require long infancies, and thus

expensive institutions of child care. New natural law might recognize genetic kinship

more widely than it does now, giving siblings, grandparents, and even aunts and uncles,

some responsibility in the rearing of the young and some legal rights in their upbringing.

New natural law might recommend much higher qualifications in terms of tested moral

integrity, education, and even property than are presently required for fertile marriage

(not, it should be emphasized, genetic qualifications, for the requirement for variety in

our gene-pool trumps any kind of eugenic ambition). Natural law might encourage a

wider communal participation in the decision to mate. Abandonment and abuse of

children might be treated even more severely, and sanctions better enforced, than at

present.

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 Yet we must remember that large national or even civic governments are not part of

our evolutionary history, and that such sanctions are best applied by the local and

extralegal institutions of custom and manners. Government could more strictly define

and enforce the contractual aspects of marriage and parenthood—the old “breach of

promise” rules may look better now than they did—but should not try to make people

good. Where natural law might make a more significant legal difference would be in

government’s ceasing to defend violators from reasonable measures of disapproval by

their own kin and social circle. For instance, natural law would find it very strange that

parents in many states are legally kept ignorant of their daughters’ pregnancy and even

abortion, while their permission must legally be required for any other (even minor)

medical procedure. If, as pro-choice advocates maintain, the fetus is part of the mother’s

body (and thus under her disposal), and if parental authority covers the welfare of a minor

child’s body, then the parents of a minor child have every right to decide on the future of

the fetus.

Judicious deregulation of trade has often been shown to create prosperity by liberating

the pricing mechanism and improving real local knowledge of what is economically

needed and desired. Wise deregulation of custom and manners might have the same

beneficial effect on child-rearing, though it may be as hard to give up our desires to

centrally regulate virtue as to centrally plan an economy—we would have to abandon

much of “political correctness” for a start. Government should perhaps get out of the

business of protecting violators of natural family law from the sanctions and punishments

of civil society and custom. Obviously, honor killing, clitoridectomy, and other local

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sanctions of certain traditional family structures would still be illegal on the basis of

individual rights to life and liberty, which are in turn based on the natural value of human

individuality. But we in the West might have to set aside a little of our pride, in

recognizing the wisdom and good effects of greater extended-family and community

involvement in marriage and child-rearing as seen in places like India and Indochina.

Though a government is emphatically not a village, it may still take some equivalent of a

village to raise a child and support a family. We might seek ways to incorporate the good

effects of informal social sanctions against family-damaging behavior without the loss,

for instance, of such goods as women’s rights, children’s freedom to explore new ideas,

and social mobility.

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 8. Property

Thomas Aquinas could not see a reason in nature for the institution of private

property. “Hence the ownership of possessions is not contrary to the natural law,” he

writes in the Summa Theologica (Second part of the second part, question 66, article 2),

“but an addition thereto devised by human reason.” He was thus forced to find a

justification for property in the authority of the state, which he was able to see as based

on nature. The state could regulate the orderly disposition of goods, but its choice of

private property as a method was pragmatic and in a sense arbitrary; if communal

property worked better, the state could prefer it.

John Locke, however, did find a natural law basis for private property, and his

explanation becomes a central part of Enlightenment natural law. His well known

formula is that if a person mingles his labor with an object previously part of the

commons—if only by the plucking of a wild apple from a tree in an ownerless forest—he

thereby wrests it from the commons and makes it his property. Foraging is a natural

activity, and so property is natural.

Locke’s justification may have provided part of the philosophical and legal basis

required by capitalism and the free market, and thus contributed to the huge increases in

the wealth and welfare of the human species that have resulted from those institutions.

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But in basing ownership on labor he left the door open to two huge challenges, one

spiritual, the other moral. The spiritual challenge is that labor is almost by definition

something that one does not want to do. The Bible specifies labor as one of the

punishments of Adam. The liberal or humane arts, which are generally accepted as the

higher pursuits of humankind, and the Sabbath, which is the time for the expression of

human spiritual communion with the holy, are both defined as antithetical to labor. So if

property is based on labor, it is literally base—illiberal, inhumane, unholy. Hence the

widespread contempt for the acquisition of property in both secular and religious circles.

The moral challenge to Lockean economy was even more severe, and is the core of

Marxist and indeed all left wing and much liberal religious ideology. It is that if property

is indeed based on labor, then all social systems hitherto have been unjust, since

ownership and labor are routinely separate. Workers should own the means of

production, since they after all are the ones who have mixed their labor with the raw

materials of the commons. In an ideal world of proletarian democracy, the intellectual

and creative activity of managers, artists and scientists could be seen as “labor”, and the

physical activity of farmers and factory workers would come to be experienced as liberal

arts. Of course this vision of things failed catastrophically in all three of its pure forms—

fascist, national-socialist (“Nazi”), and international-socialist ("Communist"); and its

failure in its mixed left-liberal social-democratic forms, though slower and less violent, is

no less clear. Must we revert, then, to the grasping and Dickensian world of ruthless

materialism and miserable drudgery that is the nightmare of the left?

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 A revised, evolutionary natural-law understanding of property may present us with a

way out. The flaw in all the Enlightenment scenarios of the “the state of nature”—

whether in Locke, Hobbes, or Rousseau—is that the human being foraging in the forest

and taking possession of his food and shelter is always solitary and always wandering.

Our actual ancestors, human, primate, and even mammalian in general, were on the

contrary always more or less gregarious and at least temporarily settled in one place. The

very demands of sexual reproduction and live birth constrain some social life and some

sense of base or home. Together these features of our nature suggest a different basis for

property.

“Replication dynamicists” who simulate group behavior by game-theory models in

reproducing and evolving populations have shown that there are naturally-emerging rules

in the disposition of resources. The predictions of their models closely match the

observational and experimental data. The key factor here is territoriality. All organisms

require a certain amount of real estate that they are free to forage as their needs dictate,

without constant interference by members of their own species (which would be in

competition with them over the resources of the ecological niche). Territoriality is the

simplest rule to ensure that a species does not overwhelm its resource base, and that a

whole ecosystem can maintain itself in a healthy state.

Nature could have come up with various rules as the default option to assign such

territory, and thus to avoid a constant and unproductive battle to the death among

organisms over resources. Good fighters are not necessarily the best users of the

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ecological niche in which a species finds itself, and selection for success in contesting

territory might well counteract success in maximizing the species’ numbers and range.

Species whose genes do not permit the kind of neural habits and signaling practices that

enable efficient sharing of territory will tend to be replaced by species that can use the

niche better. Two basic rules to avoid conflict present themselves:

The newcomer owns the contested territory.

The current occupier owns it.

In all known cases the second rule seems to apply; the current occupier has the

advantages of having actively or passively marked the territory, of knowing its features of

tactical advantage, of being able to choose the place of confrontation and as defender

needing only to frustrate the interloper’s plans rather than impose his own, and in general

being able because of experience to make better use of his resources and thus to raise the

carrying-capacity of the land for his species. Nature seems to have reinforced this

parsimonious and beneficial rule with further metabolic helps. Even a very small animal

is provided with the natural courage—the neurochemical reward system—to defend its

core territory against a much larger interloper, as Konrad Lorenz showed beautifully

among cichlids, sticklebacks, jackdaws, and other species; so that infractions can be

sanctioned even if it comes to unequal struggle. Consider the proverbial cornered rat.

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 Thus prior occupancy or possession can serve as a natural basis for property, the

default option and fallback position when the more artificial, conventional, and socially-

constructed rules of positive law fail to get a consensus in a human community. This

point is important. As we noted in regard to the Church’s rulings on abortion, natural law

does not replace positive law. In a democracy eminent domain can overrule the natural

rights of territoriality, but only with the legitimate consent of the majority, and with the

burden of proof that the harm of such an invasion and the precedent it sets is outweighed

by the advantage to the whole community. Territorial natural law might make courts

think twice about assignations of eminent domain, but would not prevent them. The

natural-law fallback position does not prevent flexible exceptions but provides a terminus

and test of due process.

The big advantage of the principle of prior possession or occupancy (which was, by

luck or good judgment, the basis of U.S. homesteading and land claim law even before

natural territoriality was scientifically investigated), is that it avoids all the problems of

the labor theory of ownership. Ownership need not then mean illiberal and unholy

drudgery; it can now mean the reward for exploration, the pleasure of surprise in finding

untrodden and unclaimed landscapes, the existential experience of “being there,” the

dignity of familiarity with a loved place or object, the intergenerational bond of

inheritance, the sacredness of historical association. The struggle inherent in the labor

theory of property between the claims of manual and intellectual workers, and between

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workers in general and owners, disappears. Succession rather than violent revolution or

appropriation becomes the rule. The moral right to appropriate one’s neighbor’s territory

is greatly weakened, for his possession of it no longer depends on the labor he puts into

it.

But far from encouraging stagnation and the status quo, the rule provides a powerful

incentive for exploration of new ecological niches—whose number and scope are

unlimited, considering human imaginative and technological ingenuity. The way to

contest another’s monopoly of the existing territory is to invent or create new territory

(since human territory is 99% notional anyway) and make one’s own territory more

interesting and attractive than that of one’s rival. No need to fight the guild of buggy-

makers: invent the automobile. One of the benefits of copyright and patent is that they

force competitors to invent their own territory-creating innovations, rather than quarrel

with the prior possessors on their own ground. Instead of conquering and appropriating

other nations’ territory on the basis that one could put more labor into it than they, a

vigorous nation would be driven to explore the seabeds, go into space, or create whole

new unlimited worlds of art, cyberspace, bandwidth, nanotechnology, virtual reality, and

to claim territory in them by absolute right of first occupancy. Likewise, through trade

and intellectual and cultural exchange it might establish new ecological niches, so to

speak, in its neighbor’s physical territory, as Japanese anime has done in ours and

baseball has done in Japan. And such exploration and superimposition of nonconflicting

cultural and economic realms would be beneficial to the whole species. If there was any

reason for the triumph of the West in the Cold War, it was that the West had already

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begun unconsciously to embrace the territorial theory of ownership, and discard the

Enlightenment labor theory. This view of things also explains the impotent rage of so

many anti-globalist individuals and regimes—one cannot fight a kind of territorial

invasion that consists simply in persuasion and attraction, leaving intact, but relatively

shriveled, all the territory one had claimed for oneself.

But if property may be said to have a natural basis in territoriality, can the same be

said for the marketplace, with its institutions of trade, division of labor, contracts, etc?

The wise Adam Smith, whose ideas are at the core of Enlightenment natural law, doubts

it:

This division of labour, from which so many advantages are derived, is not originally the effect

of any human wisdom, which foresees and intends that general opulence to which it gives

occasion. It is the necessary, though very slow and gradual consequence of a certain propensity in

human nature which has in view no such extensive utility; the propensity to truck, barter, and

exchange one thing for another.

Whether this propensity be one of those original principles in human nature of which no

further account can be given; or whether, as seems more probable, it be the necessary consequence

of the faculties of reason and speech, it belongs not to our present subject to inquire. It is common

to all men, and to be found in no other race of animals, which seem to know neither this nor any

other species of contracts.

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 (The Wealth of Nations, Book 1, Chapter 2, para. 1)

Here new scientific research has significantly added to and revised Enlightenment

natural law theory. Careful sociobiological study of the provision of goods and services

within and between animal communities has shown that division of labor and trade do

indeed take place among animals—male offerings of resources in exchange for

reproductive favors, tributes by low-rank pack animals to higher rank ones in exchange

for protection and leadership, parental sacrifices for offspring that will repay in terms of

genetic survival, and even trade-like exchanges within a troop have all been observed.

Other animals than ourselves do not seem to make contracts in a formal sense, but they

often act as if contracts are in force. Game-theoretical analysis of animal exchanges

frequently shows a very exact balance of mutual profit. Archeology, moreover, has been

revealing more and more the astonishing ancientness of human trade, even if it be in

flints and bone ornaments. Economic anthropology shows that—contrary to the Marxian

belief that the market was a late invention of humankind, not to be found in more primal

“gift economies”—haggling and trading were always common in every society on earth.

Market exchange is not a different world from gift exchange or barter, but an extension of

them. Even money is, as I have argued elsewhere, among other things a way of recording

obligations and the duty of gratitude where human memory can no longer keep track of

them. Thus the market is itself well grounded in nature, and is by no means an alienating

and unnatural condition of civilization, as theorists since Plato have suggested. Indeed, I

argue that the basic language of the marketplace is the same as the basic language of

human practical morality itself:

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 Such words as “bond,” “trust,” “goods,” “save,” “equity,” “value,” “mean, “ “redeem,”

“redemption,” “forgive,” “dear,” “obligation,” “interest,” “honor,” “company,” “balance,”

“credit,” “issue,” “worth,” “due,” “duty,” “thrift,” “use,” “will,” “partner,” “deed,” “fair,” “owe,”

“ought,” “treasure,” “sacrifice,” “risk,” “royalty,” “fortune,” “venture,” “grace” preserve within

them the values, patterns of action, qualities, abstract entities, and social emotions that

characterize the gift and barter exchange systems upon which they are founded. Indeed, these

words, whose meanings are inseparable from their economic content, make up a large fraction of

our most fundamental ethical vocabulary.

(Shakespeare’s Twenty-First Century Economics, Oxford University Press, ‘1999, p.11)

A new natural law, then, might render moot the Romantic-Marxian critique of

Enlightenment natural law, and thus remove one large obstacle to human economic

progress.

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 9. Environmentalism

Environmentalism would seem on the face of it to present an open-and-shut case of

the need for natural law. Clearly it is in the natural interest not only of the human species

and every individual human, but also of all other living species on the planet, to have a

healthy global ecosystem. But unless James Lovelock’s Gaia—his proposed super-entity

composed of all the world’s species—actually exists, it is hard to see any natural

authority that could enforce the laws that would keep the planet healthy. Individual

species are notorious for devastating their environment and dying out as a result; even

whole biomes, such as climax forest, can wipe out most other species in their control and

finally exhaust the mineral resources beneath them. The planet became a snowball more

than once in its history. If a Gaia-entity exists, she does not mind such local and

temporary catastrophes—in fact those catastrophes are the very way she goes about the

business of disciplining infractions of her laws, and exerts her karmic rule. But who or

what keeps her in order? Since Gaia would effectively be a population of one, she could

have no competition, no market discipline, unless some kind of panspermic struggle takes

place over billions of years in the arena of interplanetary exchanges of spores.

Certainly for a species like ours, which would not want to be an object-lesson in

corrective extinction, there need to be laws with a finer resolution, consequences of more

immediate bite, and, most important of all, harnessable natural motivations more

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persuasive than a general piety toward the planet. Here, again, the inborn emotions of

territoriality may play a vital part.

Some years ago I heard about a computer game from its inventor, an enthusiast of

non-violence, to demonstrate the beneficial effects of sharing and cooperation. He

created a nutritive space, colored green, that slowly renewed itself. Next he created an

evil entity, represented by a red dot, and a good entity, represented by a blue dot. Both

good and evil dots were mobile, and moved about harvesting the green energy field. A

heavily engorged dot, red or blue, would fission into two daughter dots. When an evil

dot encountered a dot of either color, it was programmed to attack it, and, if it were

stronger (had absorbed more green energy), it would destroy its enemy. A good dot, on

the other hand, would not attack other dots; if it were attacked by an evil dot more

powerful than itself, it would be destroyed, but if it were itself more powerful, it would

“convert” an evil dot into a good one. As was its initial purpose, the game showed that

altruism paid off in the long run; the good dots eventually triumphed even when the

initial odds were heavily in favor of the evil dots, and there was no more red on the

screen. But one day my friend ran the program a little longer, and noticed that quite soon

after the victory of goodness, the blue dots had multiplied so swiftly that they had eaten

up all the energy in the green energy field; and without food they suffered a catastrophic

die-back and became extinct. He then tried starting off with only evil dots, and noticed

that in their unrelenting hatred, greed, and ruthlessness they quickly spaced themselves

out territorially and were able to survive and maintain a balanced ecosystem.

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 This unintended thought-experiment has implications for natural law that are very

interesting. Not that we should make a practice of killing our neighbors; but rather that a

beneficial end result can emerge from the collective behavior of many uncooperative and

even “ill-intentioned” agents. As advanced social animals we do indeed value our

personal space, resent invasion of it by others, and suffer psychologically and hormonally

from overcrowding—and that standoffish and possessive attitude might serve as well as

the red dots’ “killer instinct” to keep us sanely spaced apart. Territoriality may be the

hidden solution to the tragedy of the commons, if we can find a way to translate the

“spacing” effect into fair, regulated and predictable practice.

The natural institution of property, whose economic virtues we have already inspected,

is a formalization of the territorial rule of first possession, and may be the solution we are

looking for. The beauty of it is that once that simple rule is established, no central

authority is required to do the spacing—it emerges polycentrically from the relations of

simple individual agents. Flocking birds and schooling fish keep station in the same way,

with no boss bird or top fish with a gigantic brain whose marshaling decisions would be

contested anyway.

Some theorists on both the political left and the political right are already converging

on the idea of a property-based environmentalism. Historical evidence for the beneficial

effects of private property on environmental goods is not lacking. European monarchs,

aristocrats, and ecclesiastics kept huge hunting parks and private forests and maintained

whole ecosystems in order to preserve the large game and top predators that gave them

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their sport. In that crowded continent, and in the even more crowded subcontinents of

India and China, a rich variety of species and ecosystems was preserved, that without the

selfish lust for real property might have been lost. Of course those days of caste privilege

are over, but even today English financiers, Texan telecom millionaires, and German

industrialists carefully nurture their grouse-moors, salmon-rivers, and deer parks without

any necessary concern for the common good.

The trick is to translate into some kind of legal property instrument the environmental

interests of the people at large (as opposed to those of the rich alone). The solution that is

being proposed on both left and right is environmental trusts. Peter Barnes’ little book

Capitalism 3.0 makes a persuasive case for such trusts. These institutions would buy

land, fair and square and at market prices, and promote and maintain its biodiversity and

ecological health. Their trustees, as territorial animals with pride of ownership, could be

expected to fulfill their legal mandate to improve their property, and might be encouraged

to explore, in competition with other such trusts, different theories of what constitutes

ecological value and thus advance the sciences of restoration and reclamation. Such

theories might propose different goals to be tested—maximal biomass, living biomass,

richness in species, contribution to global species-richness, genetic variety, population of

higher organisms or of organisms with higher nervous systems, richness of the cultures,

animal or human, that inhabit the land, its self-sustainingness, or its inheritance of former

ecological or genetic patterns. Trustees would judge, hire and fire managers on the basis

of the results.

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 Such trusts might be private, like the Nature Conservancy, or public but independent

of the government; but they would not be commons and would be protected by the

possessive instincts of their proprietors. In cases of abuse, legal oversight would apply,

as it applies already to all forms of property, but the incentives would support, not resist,

human nature. If environmental goods such as clean air and water are no longer treated

as externalities but are recognized as common property and given status in tort law—as is

the current trend--there will be an increasing incentive for good behavior. The success of

the current system of pollution credits, which likewise applies property incentives to

environmental goals, is a hopeful sign that such a scheme might work.

Another aspect of evolutionary natural law might help solve certain philosophical

problems that still bedevil the environmental movement. Environmentalism often relies

on a hard and fast distinction between human beings and nature (with an implied label of

the harmful for the former and the beneficial for the latter)—a distinction that ultimately

harks back to the theory of fixed species embraced by Saint Thomas Aquinas and the

Scholastic philosophers of the medieval church. When we recognize, as evolutionary

theory does, that humans are themselves part of nature, an evolved and evolving species

among others, the environmental priorities change. Some wise environmental

philosophers like William R. Jordan III and Alan Berger now see the issue as being how

to situate human nature, with its social, ritual, artistic, and religious rhythms and values,

within the common ecosystem and the evolutionary process--rather than how to protect

nature from humans. Natural law, when corrected by evolutionary understanding, has the

promise of breaking down the wall of alienation between humans and the rest of nature.

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 In this perspective, what is good environmental policy? In order to answer this

question, we must first answer others. “Good for what? For whom?” It seems to me that

two main “stakeholders” have a claim: good for human beings and good for the rest of

nature. But even to put the issue in this way is already to raise problems. Are human

beings part of nature or not? If not, then we must adopt some theory by which human

beings were somehow injected into nature from some sphere that is outside of nature,

from some unnatural sphere. Only if we abandon the theory of evolution can we assume a

radical distinction between humans and the rest of nature. We are another animal species

that evolved, say the evolutionary biologists. So we must assume that humans are part of

nature. If humans are as natural as anything else, how do we examine the claims of one

part of nature (humans) with respect to those of others (e.g., rare native fish or insects)?

Is a forest of humans—a suburb—more or less valuable than a forest of conifers? If there

are lots of suburbs but only a few of that species of conifer, does the equation change?

Even if we give a priority to the good of nature as a whole, what criteria of goodness

do we use? Should we be trying to maximize the biomass of a place? Or its living

biomass? Or its richness in species? Or its contribution to the world’s species richness?

Or its genetic variety? Or its population of higher organisms? Or of organisms with

higher nervous systems? Or the richness of the cultures, animal or human, that inhabit it?

Or—to change the criteria in other ways—the self-sustainability of the place? Its

inheritance of former ecological or genetic patterns? Its efficiency in using solar energy?

Its independence from the resources of other parts of the planet?

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 Each criterion has its own justifications. Sheer biomass has the advantage of not

putting us humans in the position of judging which biological material outranks which,

thereby giving us the top position in a hierarchy of judgment. Living biomass avoids the

definitional problems involved in the criterion of biomass: is a caddisworm’s jacket of

gravel part of its body, or not? is a termite’s nest biomass? what about dead heartwood?

My artificial hip joint? The undigested material in an owl’s stomach? Richness in species

is, for obvious reasons, our common ecological measure. Contribution to species richness

remedies the logical incompleteness of the criterion of species richness. Genetic variety

speaks more directly to the health and adaptiveness of a living biome. Higher organisms

act not only as a ”canary,” signaling ecological soundness lower down, but also as

indexes of several other factors cited as evidence of environmental value; and this

criterion avoids the problem of overvaluing, for instance, a landscape that consists only

of a billion species of moss and lichen, with wildly various genetic codes. The formula

”organisms with higher nervous systems” sharpens the vague term ”higher organisms”

and also implies a criterion of what we might call ”epistemic value”: a landscape

observed by sentient inhabitants may be worth more than a landscape with no observers.

In the same spirit, the cultural criterion of systemic value is sharper still: social animals

that can share their observations may be better observers than solitary ones.

Self-sustainability has the advantage of appealing to the sense of peace and balance

that we associate with nature. The inheritance of past patterns of life has scientific value.

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Efficiency in converting solar energy is more easily measurable by physicists, and gets us

out of the philosophic tangle already manifest in this discussion. And ”independence” has

a nice ring of robustness about it.

Each priority would yield different policies. The biomass of a climax forest, in which

most of the carbon is sequestered in dead heartwood, might be outranked in the ”living

biomass” criterion by other biomes, such as a swamp or a fish farm. But should we burn

down climax forests to make room for more biodiverse prairies and savannas? A

botanical garden might have more species yet—and more endangered ones. A suburb

might have more genetic diversity, more nervous systems, more culture. A few species

with rich and complicated genomes of many strains might have more genetic variety than

a large number of monoclonal species. A eutrophicated pond might use solar energy very

efficiently indeed. Barren rock might be very self-sustaining. Or should we be trying to

create Jurassic Parks? If we accepted all the priorities I have mentioned, how should we

rank them or weight them with respect to one another? Upon what principles? Principles

derive from a deep understanding of something.

A single cause can have multiple effects; the laws of nature (which are themselves the

historical result of earlier cause-effect events) constrain those possible effects but do not

reduce them to one. All the effects that do not completely neutralize one another take

place, distributed in number and intensity according to their probability, along a bell-

shaped curve. The difference between the number of bytes required to describe the “cause

state” and the number required to describe the later “effects state” is the measure not only

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of the increase in its entropy, but also in the amount of new information that has entered

the world. That difference also describes the degrees of freedom of the initial state (if

there is only one “branch,” a single possible effect, the system has no freedom; if there

are many “branches,” the system has free play to that extent). However, an event can

bring about a set of effects that are either mutually reinforcing or dissonant; the mutual

reinforcement of those effects is the measure of its informational (as opposed to its

thermodynamic) order. If that state of mutual reinforcement limits the number of new

effects, we may call it a “barren order”; if it makes possible a further set of mutually

reinforcing but productive effects, we may call it a “rich order.” The biological definition

of evolutionary-reproductive success is very similar: as many offspring as is consistent

with the survival-to-reproduce of the offspring’s offspring, and of that offspring’s

offspring in turn.

Thus, we have a theoretical basis for choosing one set of actions in the environment

over another, i.e., a basis for deciding what is or is not good environmental policy. Good

environmental policy creates the greatest freedom consistent with the richest order in the

effect-state it produces.

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 10. Government

What might evolutionary natural law have to say about government? If it does have

anything to say, there are interesting implications for political philosophy, especially as

regards the “state of nature” and the social contract. Thomist natural law, with its

hierarchical and providential premises, regarded the state as based upon nature.

Enlightenment natural law disagreed—indeed, in Hobbes, Locke, and Rousseau alike, we

had to leave the state of nature in order to create governed societies. Locke’s demolition

of Robert Filmer’s theory of natural patriarchy as the basis of rightful government is the

necessary prologue to his proposal of the social contract. Exchanges and deals in general,

as we have seen, were not considered natural by Enlightenment thinkers (though they are

considered so by many modern evolutionists). So if a contract is a deal, it was by

definition not natural.

Here we must take a look at what evolutionary natural law might tell us about the state

of nature. There never were solitary humans wandering through forests, unless they were

lost or in temporary absence from their tribe. Not even our primate ancestors lived in a

solitary and uncovenanted condition, as we can gather from studies of gorillas and

chimpanzees. So either there never was a “state of nature” in the Enlightenment sense, or

we never left it. In any case, the concept of the state of nature as a prior or underlying

touchstone of political philosophy is discredited even as a thought experiment. Because

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culture, through mate choice, tribal competition, and differential survival of offspring,

affected our genetic nature as much as or more than our genes affected our cultural

capacities, we cannot at any point disentangle our natural and our cultural traits; a new

natural law must be based not on some allocation of nature and nurture but on the health

of the process of feedback that confuses them. Many other little surprises are in store, I

believe, if we follow the logic of evolutionary natural law where it leads us.

This is not to say that we cannot find out much about ourselves by looking at our

genes, our brains, our archeological past and our anthropological present. We were

always naturally social and cultural—naturally artificial, one might say. But that

sociality, that artificiality, has its own rules and principles, that maintain, if they are

adhered to, the continued unfolding of human possibilities and freedoms. An

evolutionary natural law would seek to elucidate those rules and principles, just as

Aristotle did so wisely in his Politics—even though he lacked an evolutionary science

and had to make do with the analogy of fetal development and maturational growth

alone.

Evolutionary natural law might take a position between the Thomist and

Enlightenment views on the naturalness of the political state. Rank and leadership are

frequent throughout the animal kingdom, as are exchange and barter. Leadership,

seniority, and the natural personal loyalty to the leader experienced by pack animals

(which in part we are), are vital to the basic hunter-gatherer band. They are still vital to

our basic forms of cooperative endeavor—the army company, the small business, the

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academic department, the hospital ward, the football team, the ship’s crew, the theater

company, and so on. But the leader is leader because of the consensus of the band—if

the consensus dissolves, so does the leadership.

Leadership can be amplified by the technological and political instruments of art, by

policing, by long-distance recorded and duplicated communications, by improved

weaponry, by bureaucracy, and by economic surpluses supporting priest and warrior

castes. But at this level the element of voluntary consensus begins to disappear. In a

hunter-gatherer band of under 150 persons, everyone can be in a position to personally

trust the leader. Not so with a city of ten thousand or a nation of ten million. At this

point the enlargement of a natural bond has crossed a crucial threshold where natural law

must begin to be replaced by positive law. Here the dangers of arbitrariness multiply:

abuse of human natural rights, the invention of invalid natural rights, wars that overshoot

their natural constraints of territoriality and revenge, and a pronounced loss of freedom.

If freedom is, as we have argued, one of the fundamental characteristics of the

evolutionary process—if the branching-out of an earlier state of affairs into many

alternative later states of affairs is the sine qua non of natural variety—then leadership,

when amplified across the threshold of a few hundred led persons, can become anti-

evolutionary. In this context “anti-evolutionary” can have horrific meanings. Our

idealism about secular government, nourished since the Renaissance, was appallingly

dashed in the last century by the devastating carnage wrought by the hypertrophied

nation-state.

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 There never was a fall from nature into society, as state-of-nature contract theorists

believed, but there was a change from one kind of society into another—from the natural

band, united by personal loyalty, into the modern authoritarian state with its dangerous

propensity for totalitarian tyranny and wholesale destruction. What guidance is offered

by evolutionary natural law to ensure that positive laws do not frustrate human

flourishing? Here we must acknowledge the astonishing genius of the American

constitution, and may do so in unusual terms.

The marketplace had already found a way to manage the transition from personal

obligation-based exchanges of goods to buying, selling, and hiring. Money was a fairly

accurate numerical measure of at least those benefits that can be agreed on and shared

between different persons. Pricing turned out to be an amazing bonus, a distributed

calculating machine or self-adjusting artificial neural network that required no more than

everyone’s behaving to suit himself but which gave a precise signal of how much value

(according to the collective wisdom) was inherent in one’s own and others’ goods.

Pricing is a classic case of an emergent order, a “free” form of organization that

precipitates out of a nonlinear dynamical system, in this case market exchange. It is

analogous to the emergence out of the chaotic interactions of embryonic proteins of a

fetus and then an adult. But of course it has to be the right set of proteins—the baby

eagle cannot be generated by oak-tree genes. The “genes” of the marketplace are such

things as the rules of contract and tort, the institutions of banking, insurance, and

investment, abstract instruments such as coinage, bonds and stocks, and methods such as

advertising, partnership, limited liability, and merger. Thus the marketplace is a sort of

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second nature or second biology, a new form of evolution evolving out of the first and in

turn acting as a selective pressure upon the first.

The framers of the American Constitution, with their combination of business

expertise, high amateur economic scholarship, and patrician detachment, had already

intuited much of this. Whether consciously or unconsciously, they created a political

system that mimicked the marvelous organic capacities of the market—in a way, they

anticipated the discovery of evolution, but in the political medium, by observing how the

market worked and abstracting its principles for political use. Essentially, a vote is the

political equivalent of a contract, and elections are the political equivalent of the pricing

mechanism. A piece of legislation is an actual bargain at an agreed price. Politicians in

our democratic system “buy” votes and voters “buy” politicians—but this is not an abuse

of the system but a description of it. Certainly, as in any market, there are permissible

and impermissible forms of buying and selling; but much piety is wasted on decrying the

mercenary element of democratic politics that is its very essence. We should not

complain when somebody else’s bid in the auction is higher than our own. What

essentially distinguishes the economic market from the political one is that in the latter

we have only one vote each, while in the former we have as many as the dollars we have

acquired. We should not be surprised when people find ways to exchange one currency

into the other; but the exchange rate will favor the political vote (which is one to a

customer and exercised only every two years or so, and thus has scarcity value) over the

economic one, so not much harm is done. There is no point in buying a legislature if it

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costs more than one is likely to get out of it; and no point in buying enough voters to get

elected if the power is not worth it.

So essentially the framers had ingeniously supplemented the ancient natural system of

pack rank and leadership, which for large groups had become evolutionarily

counterproductive, with a system that did not suffer the same unnatural diseconomies of

scale, i.e. the market. It is very difficult for a true democracy to maintain a personality

cult of the chief executive. The state, which had become unnatural because of the

distortions of monopolistic propaganda and coercion required to maintain it, was re-

naturalized, so to speak. The value of traditional “state of nature” theory, then, was not in

any correspondence with anthropological fact, but in turning the minds of political

philosophers toward the nature of contracts and thus to the nature of the marketplaces

where contracts first emerged. Paradoxically, they brought contracts, which they

regarded as not natural, to the aid of monarchy, which they regarded as natural—when

evolutionary natural law would argue that it was contracts that were natural and

monarchy that had become unnatural. Thus democratic free market nations can claim

some justification in natural law, as long as they and their citizens and their institutions of

civil society remain free to evolve.

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 11. Punishment and War

Among the consequences of the rise of the new replication dynamics and their

implications for evolutionary psychology is a renewed interest in human emotions. Once

denigrated as remnants of an animal nature we must transcend, they now appear in a

different light. For instance, game theory tells us that in many nonzero-sum games (like

“Prisoners’ Dilemma”) the most rational strategy—the one that “wins”—is the most

selfish and treacherous one, even though the sum of the rewards for both players would

be greater if they altruistically cooperated. Human beings all over the world, however,

when tested in experimental nonzero-sum games, tend to give their opponent a chance to

cooperate—in other words, the emotion of fellow-feeling outweighs individualistic

rationality in a way that ends up benefiting the species. Sympathy is costly but hard to

resist and essential to a social species. More obviously, the high metabolic cost of mating

and reproducing—which benefits the species at the expense of the individual—is

outweighed by the emotions of sexual desire, tenderness, and nurture. Male bonding can

save the hunting band at the cost of the individual hunter. Shame enforces good behavior

in the eyes of others, and signals infractions by the blush. Mother-love is notoriously

self-sacrificial. Emotions, one might say, are the prudential rationality—even the

morality!--of the species, designed to counterbalance the selfishness of the individual.

The negative emotions play the same role: the threat of sexual jealousy tends to ensure

the genetic connection of father and child, and the father’s assistance to the mother in

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childrearing; fear preserves our lives in dangerous situations; acquisitiveness builds a

capital resource base; shame discourages bad behavior in oneself, rage discourages it in

others.

Viewed in this light, the emotion that drives what is known as “costly punishment”

becomes a potentially valuable resource for creating cooperative and peaceful societies.

Investigators demonstrate the existence of costly punishment by having people play a

sharing game with strangers under controlled experimental conditions. A significant sum

of money is offered to a pair of players. The first player has the option of keeping any

fraction of the sum for himself. The second player can either accept what is left over or

refuse. If he refuses, neither player gets anything. The game essentially tests and

measures the sacrifice the second player makes in order to punish perceived unfair

sharing by the first player. It can also, if given to people in different ethnic and national

groups, test the extent to which the preparedness of individuals within such a group to

sanction bad behavior affects the estimate by the first player of what will be considered

fair by the second (see Joseph Henrich et al, “Costly Punishment Across Human

Societies,” Science, 23 June 2006, pp. 1767-1770). The evidence strongly suggests that

such costly punishment is a human universal, and may well account for the extraordinary

cooperativeness of the human species; the more willing people are in a given society to

punish unfair behavior at considerable cost to themselves, the more cooperative such a

society is. This cooperativeness, which had been something of a mystery to researchers,

explains cases where altruism due to shared genetic inheritance or profitable

consequences of a good reputation are ruled out as factors.

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 To put it brutally, the appetite for revenge leads collectively to good behavior. If we

apply this ugly fact to the ethics of justice and the institutions of the law (both within and

between nations), certain traditional controversies seem to become moot. One is the

issue of what, if anything, justifies prison sentences and other forms of durance or

suffering inflicted upon criminals. Is it the protection of the rest of society by the

restraint of the criminal (if so, even heinous criminals should receive no punishment if

they are no longer capable of committing the crime again)? Is it the rehabilitation of the

criminal? The proper moral measure of the crime? An act of restitution or reciprocity, or

righting the balance? Strong arguments exist for and against all these positions. But a

natural law based on evolved moral emotions would suggest that there is one basic reason

for punishment, and that is as a deterrent to crime; and that reason is itself based on the

natural thirst for revenge, which society impersonalizes into the noble ideals of justice.

The same reasoning applies on a larger scale to the ancient issue of justice between

nations—is there such a thing as just war, and what is its basis?

Both Thomist and Enlightenment natural law contain justifications for warfare that

flow from their premises. The problem with Thomist natural law was that it could not

rule out religious war, which we have come to learn is one of the greatest evils of the

world. The problem with Enlightenment natural law is that its principle of human reason

as the master of natural function, and its goal of universal human welfare, led to the

elevation of the State into the summum bonum and could encourage states that believed

they had more rational and efficient systems to invade and subjugate societies they

believed to lack them—for their own good. Locke, for instance, justifies the settling of

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North America in terms of the greater productiveness of “civilized” than “savage” labor

methods. This justification resulted, of course, in colonial war and mercantile slavery.

In the twentieth century, as we have seen, the widespread abandonment of natural law

included the abandonment of the concept of just war. It was abandoned both by

aggressors who on pragmatist, historicist or social-constructionist grounds argued that

humans could make up the rules as they went along (as long as they could win in battle

and so be around to write them), and by pacifistic liberals who argued that no war could

be just. The horrors of modern war, culminating in the use and threat of nuclear

weapons, lent powerful support to both, adding to the power to terrify of the aggressor

and to the prudential appeal of the pacifist. However, the pronounced asymmetry of

these positions was obvious to all—the unjust would surely destroy the just if the actions

of both were consistent with their views. Hence the peculiar and necessary hypocrisy of

the West, in which democratic populations, which desperately did not want nuclear

confrontation with the expansivist totalitarian regimes, continued to vote for governments

who threatened retaliatory destruction that was morally repugnant to their electorates.

The just war concept would seem to be a necessary resource for the preservation of

any kind of moral or legal order in the world. The crusader’s or jihadist’s religious

justifications for war were no longer available to modern secular states. The preservation

of the institution of property was discredited as a valid natural justification for war, the

competition between labor and ownership superseding the competition between states.

One last shred of the old natural law, self-defense, was rescued from the wreck of the rest

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and enshrined as the basic principle of just war. Perhaps self-defense would serve as a

sufficient reason to maintain, if not to use, an armory. But here human moral reason was

increasingly being overtaken by technological progress and hard facts on the ground. So

swift and so devastating would a first strike be that defense against it would be futile; the

only recourse would be after the fact to launch an equally terrible attack upon the enemy.

But such a second strike, the damage already being done, could have no justification

either in terms of Thomist natural law or in terms of Enlightenment practical reason in

pursuit of human betterment. What could “self-defense” mean when offensive weapons

so dominated defensive ones? Only a preemptive attack could bring any assurance of

safety for a morally superior regime—but such an attack would, in terms of pacifist

ethics, automatically cancel the superiority. And even Thomist natural law, in the

absence of an accepted deity whose favor would confirm the moral superiority of one

side, would not help.

Only the economic collapse of the Soviet empire—the consequence of its belief in the

labor theory of property—and the remarkable theatrics of Ronald Reagan, who acted to

perfection the part of the devil-may-care aggressor and so won the great game of

“chicken,” brought the hypocrisy to an end.

We were supremely lucky; our moral and legal resources had dried up. The best we

had been able to do toward the end was to try to cobble up a moral system from the very

requirements for discourse about it. Thinkers like Richard Rorty and Jürgen Habermas,

in the wake of the post-structuralist destruction of all founded principles, proposed the

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ingenious theory that though conversation could never come to a point or a conclusion,

its prolongation would at least ensure the existence of the conversationalists. So one

could build a set of provisional rules out of the imperative to keep the conversation going.

But of course such a theory could only work in a group of conversationalists who already

wanted to keep such a conversation going, which in practice would mean a free civil

society that had already collectively resigned any claim to a foundation for truth or moral

conduct. What did one do with people who were not in the least interested in an

inconclusive conversation, who knew exactly what was right already, and what they

wanted, and regarded the conversation as decadent and the conversationalists as easy

prey? Holland and Britain have recently paid a high price for this mistake.

For indeed a new threat has already arisen, the world Wahhabist movement, quite

certain of its principles, and not at all interested in conversation with us. Perhaps that

movement does not yet pose the dangers of international communism, and might still be

neutralized without the moral chaos of nuclear confrontation between destructively equal

opponents. But what moral or legal grounds might we have for the kind of pre-emption

that would be needed to prevent the acquisition of nuclear weapons by terrorist regimes

and a replay of the Cold War with an even more reckless adversary?

A new natural law could propose a solution—or at least set out a framework for moral

and legal reasoning—that might help avoid such risky hypocrisy in the future. I call it

risky, because of the danger that decent humane societies might decide to live up to their

principles and thus go down to destruction at the hands of the unenlightened, or that

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aggressive societies with absolutist beliefs might call their bluff. Something of the kind

might have been the case with the 9/11 attacks, where weak and ineffective prior

responses to terrorism had convinced the attackers that their victims were incapable,

because of their humanistic, prudential and pragmatic reason, of effective retaliation.

(“Jihad,” ironically, is quite consistent with Thomist just war theory!) We need

principles that can help us establish what is and is not a just war and that do not require

us to violate them in order to survive.

As we have seen, one of the most powerful emotions of all is the desire for revenge.

The emotion of revenge plainly overrides in most cases the selfish rational interests of the

vengeful injured one, who would be better off leaving his enemy, who has already shown

his potential for harm, alone. But to allow the injury go unavenged would let the

aggressor off the hook, to do more mischief to other members of the tribe. That vengeful

emotion is not evil, any more than are desire, fear, shame, or sympathy—in fact it is in an

odd way an unselfish and altruistic emotion. It has an evolutionary function, like

territoriality, that can form the basis of a natural-law concept of just war. As we have

seen, revenge, when coupled with fear, is a very powerful sanction against treacherous or

aggressive behavior. It was perhaps the driving force behind the gradual emergence of

justice itself, and continues to be the motivational fuel of justice. High-minded ethicists

of many stripes hasten to erect a high barrier between revenge and justice; an

evolutionary natural law might regretfully but tough-mindedly erase the barrier while

preserving the theoretical distinction.

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 Like any other emotion, such as desire, shame, acquisitiveness, love, fear, and so on,

revenge, even in its shining armor of justice, can feed upon itself and become obsessive

and destructive. Kleist’s great tale of Michael Kohlhaus is a classic example. The blood

feud and its magnificent dramatizations in Elizabethan revenge tragedy and contemporary

film thrillers show how prone this emotion is to fall into destructive positive feedback

cycles. But this should not, oddly enough, be a reason to try to eliminate the revenge

instinct. For the evil results of blood feud are obvious to all, and have led in all societies

to the creation of institutions to corral it—and out of those institutions has come the

concept of justice, and out of that the concept of mercy. Without the driving force of

revenge and its excesses, we might never have developed justice. (In like fashion, our

excesses of sexual desire drove us to cultivate love, our acquisitive urges drove us to

invent the ordered marketplace and productive trade, our jealousy led to marriage and the

family, our fear to good walls and decent medicine.)

A natural-law theory of just war might be based upon the recognition of revenge as in

itself a positive and valuable thing. Its excesses in international crises should be taken

not in condemnation of the avenger, but as the incentive in the given situation to

construct some security arrangement that will in future limit the ravages of revenge. If

the revenge gets out of hand, then this is a sign to the world that better institutions are

needed to placate the injured and resentful avenger, and prevent the originating crimes

and their consequences in the future. At present our cobbled-up system of moral maxims

—if one can call them a system or even maxims—has little recourse but to berate the

avenger and ridicule his shamefaced self-justifications and prudential rationalizations.

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Such scolding, in personal terms, we know to be still more enraging to the injured one.

But if the world, in recognition of the evolutionary wisdom of nature, concedes that the

injured has a right to his revenge, then maybe important and needed sanctions will fall

into place. One great advantage if this approach is that everybody—even, and especially,

fanatical jihadists—recognizes the justice of revenge. There is no need for Rortian

conversations about it, for we all know the vengeful feeling in ourselves.

Only after “an eye for an eye, and a tooth for a tooth” is given its proper recognition

and sway can “turn the other cheek” be possible. Evolutionary morality does not discard

older, more primitive, emotions and sanctions, but recognizes them as the necessary fuel

and microstructure of higher ones. The Furies are not banished but become the

Eumenides, and in the season of their festival they keep their rages and their dance. A

society that rejects them is a society whose emotions are so shriveled that it cannot

protect or reproduce itself, or one whose emotions, unrecognized and thrust into the

shadows, may erupt into a more terrible and inexplicable violence still. A totally

nonviolent human being is one without an immune system and will not live long, but one

whose body will infect others with deadly diseases.

It might be objected at this point that territoriality and revenge are precisely the

motivations at the core of our most bitter conflicts—paradigmatically, the Israeli-

Palestinian one—and that to rehabilitate those evils is to throw oil on the flames. This

objection misses the point of the analysis here. The virtue of evolutionary natural law

reasoning is that it would call a spade a spade, would enable us to confront problems with

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the right tools of analysis. The Mideast conflict is so bitter precisely because territoriality

and revenge are such powerful and necessary and often beneficial natural motivators.

The usual social-constructionist explanations of the conflict can be seen as smokescreens

that obscure the fundamental issues. Does this point imply that the problem is simply

intractable and that we must throw up our hands in defeat and accept the continuance of

violence and injustice? Not at all. Territoriality did become sublimated into property and

profitable trade. Revenge did become sublimated into institutions of justice. In the

absence of sound knowledge of our nature, neither Enlightenment reason nor the

Romantic demotion of reason will be effective. A new natural law might lead to better

ways of understanding such seemingly intractable problems, and more realistic and

patient ways of dealing with them. The absolute separation of the warring parties for a

generation might be one solution, if our knowledge of human natural emotions dictated it.

Or fair material compensation for territorial losses might work still.

The point of all these speculations about what, when investigated, evolutionary natural

law might enjoin, is not to second-guess its conclusions. Rather, it is to indicate the huge

range of its relevance, and the vocabulary and rules it might provide for discussing and

even solving some of our most intractable moral, social, legal and cultural problems.

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 12. Religion and State

Another area in which natural law might be of help in disentangling the issues would

be in the uneasy relationship between government and religion. Again, the solutions of

Thomist and Enlightenment natural law, and the grand modernist experiment of doing

without natural law altogether, can give us useful comparisons.

Thomist natural law regarded government as justified by natural law only on the

ground and condition that government served the divine creator of the world and obeyed

his laws as expressed in revelation. Thus it was the duty of government to establish and

preserve religion.

Enlightenment natural law saw government as the enactment of a contract which in its

very origins withdrew us from the state of nature and which must ignore any other special

bindings into which its citizens might have entered as private and irrelevant, including

commitments to particular religious revelations, moral rules, and traditions.

Revolutionary America separated church and state as much for the protection of churches

as for the integrity of the state; revolutionary France, which came to see the state as an

improvement on religion, regarded other religions as rival contracts that must be

suppressed or as folk superstitions, part of our animal nature, that should be regulated by

a wiser secular law. Our natural moral sentiments could be trusted to ensure good

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behavior if the government preserved the social contract, but like sexual desire, family

ties, and the sense of honor and shame, religious ties were expected to subordinate

themselves to the state.

The paintings of Jacques-Louis David nicely illustrate the ethos of the Enlightenment

at the moment that its internal tensions were to disrupt it and the Romantic reaction

began. In The Lictors Bring to Brutus the Bodies of His Sons Brutus, for David the

epitome of rational service to the state and civic virtues, ignores his own family in their

tragedy and suppresses his natural emotions in a higher cause. In his hand Brutus holds

the death-warrant of his sons, who have supported Tarquin, the consecrated monarch of

the ancien régime. Between Brutus and his dead sons is an effigy of the only deity in the

painting, in whose shadow Brutus sits: it is Roma, the personification of the State, the

compositional counterweight against Brutus’ grieving wife and daughters. In The

Coronation of Napoleon and Josephine Napoleon, having crowned himself, now crowns

his consort Josephine; the bishops of the Church are present but they play no active part

in the ritual. It is the superior authority of the state that confers recognition both on the

religious bonds of natural superstition and on the affectional bonds of natural sexuality

and reproduction.

Western religion actually cooperated in its own marginalization. In an attempt to stay

in the good books of the intelligentsia and the bureaucratic elite, church intellectuals,

theologians, and religious philosophers cut the ancient ties between Christian orthodoxy

and traditional folk religion. If religion could become abstract enough, professionalized,

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rational, and purged of emotionalism, perhaps it might continue to be permitted by the

powerful nation states with their confident new ideologies of reason. But it would have

to stop being a nature religion, with all the trappings of sacrifice, magic, sacred places,

devotion to hearth and family, and above all, belief in natural spirits and miraculous

cures. But in marginalizing itself out of nature, official religion had marginalized itself

out of the very arena where all the action was going to take place—science, technology,

romantic nature-worship, and the belief in the immanence of the spirit in landscape and

human passions that was to energize the arts for a hundred years. In redefining God in

metaphors drawn from mathematics and abstract physics—infinitude, timelessness,

omnipresence, immateriality—religion distanced him from nature and divorced him from

natural law. In redefining human service to God as Kantian disinterestedness and pure

practical reason based on universal maxims, religion detached morality from natural

sentiment.

This great miscalculation was not justified at all in terms of the Biblical roots of

western religion. The God of Abraham, Isaac and Jacob is a god of family lineage, of

flocks and herds, and of the rivers and morning hills of Zion. He is not an abstraction

outside time, but a close, loving, and terrifying companion in the history of the world—

he speaks out of the whirlwind and takes pride in the creation of the horse, the eagle,

Behemoth and Leviathan. He is a passionate God, merciful, slow to anger but wrathful

when aroused, jealous, an insatiable lover of humanity. In Jesus he is a parable-maker,

not a promulgator of a metaphysics or a code of law; his language is of mustard seeds and

growing corn, of vines and sheep and oxen. The instruments of salvation are his body and

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blood and passion, not some mental technique of metaphysical detachment.

Paradoxically, religion defined itself out of physical existence as supernatural, as pure

reason.

So when the romantic rejection of reason came, official religion was rejected too.

Instead the Romantics turned back toward the old pagan religions, toward the more full-

blooded Christianity of the Middle Ages, toward Dante and the gothic cathedrals and the

religions of the Orient. And when Romanticism itself, having descended in three

generations into sentimental ornateness and the lunatic heroism of World War I, in turn

succumbed to the now-routine recycling of history, both official and unofficial religion

were consigned by the avant garde to the trashcan of historical unfashionability.

The modernist rejection of natural law included a rejection of even our moral

sentiments; for the modernists we were tabulae rasae, blank slates with no human nature

in the first place. Human nature, with its traditional retinue of moral sentiments, was

viewed as a social construction devised by the powerful to dominate the powerless (or, in

Nietzsche, devised by the weak to hamper the strong). For totalitarian regimes based on

these ideas religion was a disease, an addiction that needed to be stamped out altogether.

Even tender-heartedness, family feeling, possessiveness, local loyalty, aesthetic pleasure,

the urge for freedom and the search for truth—once thought to be parts of our nature—

were now to be mistrusted as part of the mystifications of religion, as “bourgeois false

consciousness,” and discarded by the truly dedicated party cadre. A true people’s

democracy would one day construct the correct and ideal versions of these sentiments,

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whose earlier appearances were merely justifications of oppressive economic and

technological arrangements. Needless to say, the result of this intellectual experiment,

when tried out on millions of people, was atrocity on an unprecedented scale.

More democratic modernist regimes, with surviving private sectors, did not attempt to

enforce such methods, but were content to promulgate the basic philosophy—the social

construction of reality—through their public education systems, their selective financial

support of private educational and cultural institutions, and the nourishing of a caste of

public servants. These servants were indoctrinated with a radical secularism that was not

just a means of judicious impartiality but a cultural crusade. In the arts, postrmodernism

undermined the idea that there might be a natural reality out there to represent. In law,

political correctness enforced a sort of semantic idealism, in which things are what they

are named as being, and thus to name things or persons wrongly is to commit a crime

against society’s mission of reality-construction.

But things did not go simply. The Green or environmental movement was in a strange

way the reassertion of the ancient human belief in the religious significance of nature and

the reality of the natural world and natural moral sentiments. Indeed, the Greens played

an important part in the liberation of Eastern Europe from the secular communist

bureaucracies that oppressed it. One branch of feminism, which asserted the essentially

natural quality of the female and its important or even superior role in maintaining the

moral sentiments, opposed the other branch which, in alliance with the secular state,

maintained that sex itself was a social construction and attempted to replace the word

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with “gender.” Nature-based racism reemerged in the ideologies of blackness and la

raza. All three, in their basic philosophical passion, were attempts to root and ground

moral ideas once more in nature, and could be seen as outcroppings of a religious urge.

How might evolutionary natural law help with the obvious problems raised by these

developments?

The cross-cultural study of human religion, research into the neuropsychology of

religious practice and commitment, and the archeological investigation of ancient cult

practices all seem to indicate that religion is natural to the human species. Those few

societies that have explicitly rejected religion have ended up very rapidly making a

religious cult of their secular leaders or state symbols. Games-theory modeling of moral

behavior in sexually reproducing social species predicts the emergence of higher laws,

loyalties, collective signaling systems and representations that can constrain the selfish or

merely nepotistic motivations of the more ancient and primitive elements of our nature

and subordinate them to more recent instincts of cooperation, sympathy, and idealization.

Groups with these latter capacities would, over time, win the competition at cooperation

and efficient use of resources over groups of more selfish individuals. Genes consistent

with altruism and the devotion to higher ideals would become established. Driven by the

adaptive spur of ritual, arts would develop, adding greater articulation and systems of

communication and cross-generational transmission to the burgeoning religious instinct.

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 If this speculative account is a correct guess at what scientific research might yield as

a basis for natural law, religion may well be a natural need, even a right, for human

beings. I am aware that readers on both sides of our current religious divide might be

inclined to enter a protest at this point. Non-religious readers may suspect that I am

smuggling in religion as a biological need, to serve the ulterior motive of religious

commitment to a political and social agenda. Here, I can only submit, as secular

believers in reason must submit, to the implications of the research. If it turns out we do

indeed have a religious instinct to believe in non-provable entities and engage in ritual

behavior, then we will need to take this need into account when acting in the social,

cultural, and political arena, even if we believe the explicit content of religious belief is

wrong. Indeed, atheists and agnostics might well find it very valuable and supportive of

their beliefs to be able to account for the prevalence of religion on the basis of a

biological need rather than on the not unreasonable inference that religious people, as

intelligent beings with equal access to reality, may be right.

A religious reader might object that in describing religion as some primitive system of

biological survival, I have demeaned it, stripping it of its vital elements—its claim to

truth, its call to something higher than species survival, its mystery. Here I might

respond that none of those things are excluded by the above account—indeed, if theistic

religion, for instance, were objectively true, it would be quite consistent for God to have

created the parameters of the universe and thus the directionality of time and of the

evolutionary process in such a way as to foster the emergence of a religious instinct and a

religious need, to bring the world back to himself as it evolves through his providence.

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Moreover, the above account of religion intentionally confines itself to the kind of thing

that might be proven by observation, experiment, and well-constructed modeling, and

might therefore be acceptable also to believers in non-theistic religions, atheists, and

agnostics, and thus enable constructive cooperation among everybody of goodwill: surely

a goal to be affirmed by all God’s children.

If religion is a need, it may indeed be a right. In other words, just as a society needs to

be able to supply to its members food and shelter and the opportunity to reproduce in

order to operate at all, and an effective society needs to give its members the maximum

freedoms consistent with good order, so, perhaps, it needs to provide its members the

opportunity for participation in religious observance and self-consecration. Here,

though, we have to make a distinction, implicit in our earlier discussion of political

economy. The state is not necessarily the proper enforcer or guarantor of human rights.

If the state is dangerous always except when it operates through some sort of

pricing/voting mechanism—and not always then either--to give it responsibilities that

require the use of powers that could suppress our natural trading instincts might be very

unwise. Here we need a distinct analysis of the law of the good and the law of the right.

Laws seem, as many philosophers have opined, to be based on one of two foundations:

what is good, and what is right. Very roughly, the distinction can be found in the

difference between our own two traditions, of Roman law, and English common law;

further back, between the ancient Hebrew ritual law, and the code of Hammurabi. Legal

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experts will, I hope, forgive the many exceptions to these generalizations, for their

usefulness as an analytic tool of thought.

The distinction, even more generally, is between what is commanded of us by the gods

or God (or, in later ages, by Humanity, by Nature, by Reason, or by Popular Will) on one

hand; and what is required of us in the honest fulfillment of a contract, on the other. The

former, which finds its Western origins in ancient Israel (and can be found also in the

Confucian legal system of ancient China), sees law as a way to enforce the good—the

good as a transcendent endowment of human society that we can partly intuit, especially

if we are talented, trained, learned, and morally upright. The latter, which can be

identified roughly with the Hammurabic, Solonic, and English Common Law traditions,

sees laws as the way to make sure the humble contracts that human beings make with

each other have the support they need over and above the natural sanctions built into our

families, our markets, and our practical agreed systems of mutual trust. The first

emphasizes the good, the second, the right.

The Jewish moral law was, for a time, enforced by the civil authorities of ancient

Israel. But with the destruction of the Israelite monarchy in 587 BC, a profound

reevaluation of the laws of goodness began, one that is still continuing in the Jewish

community. God had evidently found something lacking, the Prophets said, in the

literalism and the abuses of a law that afforded so much power to the authorities and left

so little to the spontaneous free choice of just individuals. Perhaps the law of goodness

was to be kept, not in the hands of armed enforcers, but in the human heart and soul

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enlightened by the inner voice of Adonai. Thereafter Jews found and punctiliously

obeyed the laws of contract they found among other peoples, and kept their free ethical

observance of the law of the good to themselves—until the coming of the Jewish State in

the twentieth century, when with the revival of secular power the enforceability of

orthodoxy once more became an issue.

Roman law, though again it was based upon a transcendent conception of the good,

made many concessions to the low demands of commerce. It gave much authority over

to local magnates, capos, and dons, so that in exchange for a local return to the

patriarchal customs of the tribe, there would be a general concession to the legal

supremacy of the Senate (and later, the Emperor). However, such laws did not provide

for the increasing numbers of helpless indigents that are spawned by mercantile padrón

systems everywhere.

Christianity, which began with a purely internal and voluntary law of the good—love

thy neighbor—had inherited the inner ideals of the old Jewish moral law. But it was

purged now, Christians believed, of a great burden of its literalism and legalism, and

reinforced by the blazing hope of salvation and faith in the redemption. This new

religion gradually created for itself through energetic private charity the role of the

Empire’s welfare system. Finally the Empire itself simply could not manage without it,

and was itself forced, under Constantine, to become the secular enforcer of Christian

moral law. As the Roman Empire crumbled, the ideal of a society in which the highest

moral precepts, enjoined by God, would be enforced by the State, burned brighter and

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brighter in the imagination of the world. The result was finally the birth of Islamic law,

or the Sharia, in the seventh century AD. Sharia systematized and perfected the law of

the good, and embodied one of the most beautiful, and tragically flawed, visions of

society that our species had yet achieved.

All societies based on the enforcement of a law of good have tended to stagnate,

wither, and eventually die. The Soviet Union is a nice test case: based on noble

principles of humane goodness, and enforced by a perfect system of coercion, it lasted

exactly one lifetime, full of unbelievable carnage, before cracking and falling into dust.

It took the Holy Roman Empire much longer to collapse, because it was still “corrupted”

by the contractual pragmatism of the law of the right, and was so inefficient and far-flung

that it could not fully enforce its own principles. It took even longer for the Islamic

empire of the Ottomans and the Confucian empire of China to sink into their long decay,

but decay they did.

Meanwhile another conception of law was gaining ground: the law of right, rather than

of good. The code of Hammurabi had arisen at around 1700 BC to protect the golden

goose of Mesopotamian business enterprise. Its practical wisdom would eventually

leaven the mysterious prescriptions of Leviticus and the pollution-and-purification ritual

of Roman law, and give Roman and Jewish civilization the tools to prosper economically.

However, in its homeland Hammurabic law could not control the political ambitions of

the Persian Empire, which overreached itself and fell victim at last to the Greeks under

Alexander. Hammurabi’s core ideas had been incorporated into the new and improved

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version, the Greek laws of Solon (seeThe Classical Greek Reader, edited by Kenneth

Atchity and Rosemary McKenna), where the laws of contract turned out not to need an

emperor to preserve them, but to be equally enforceable by a democracy, a republic, or a

legally constrained monarchy of free men. The principles of Hammurabi took on a new

lease of life. But Greek law of right was adapted only to the city, and was fatally

vulnerable to strict limits of size: it consumed itself in inter-city conflict, was undermined

by elitist Platonic yearnings for a law of the good, and was overwhelmed by the more

pragmatic ecumenism of the Roman Republic. With the Greek city-states died the first

great attempt at a law of right.

The second great attempt at a society based on a law of right—one that succeeded—

arose in the north with the slow maturing of the neolithic rules of the Germanic tribes into

a haphazard and populist collection of laws to secure and sanction the boundaries of a

marketplace. As it evolved with its juries, its torts, its precedents, its limitations on

monarchic power, its defense of the local rights of civil society, and its astonishing

capacity for commercial and technological innovation, it came to dominate the world.

Finally the Christian Church was forced to acknowledge the secular dominance of the

law of right. After the agonizing upheavals of the Reformation, Christianity was able to

internalize the law of good, as the Israelites had been forced to do two thousand years

earlier, and abandon the inquisitorial attempt to enforce it externally by secular means.

Render unto Caesar that which is Caesar’s, and unto God that which is God’s; and now

that Caesar made no claim to a law of the good, but wanted only to enforce the right, the

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way was open for the Enlightenment compromise, in which the Church could have men’s

souls if the State could claim men’s bodies and enrich—and tax—men’s pocketbooks.

But the yearning for an enforced law of the good could not be eradicated from men’s

souls, and though two great regimes—Britain and America—had largely freed

themselves from the law of good, Romanticism and the age of revolutions saw a massive

swing toward the ideals of the higher moral law. The result was all the various

contenders for the role of secular enforcer of world morality—Jacobinism, Communism,

democratic socialism, Nazism, Fascism, and so on. Almost all despised Judaism and

Christianity for having abandoned, as they saw it, the role of secular enforcer of

goodness. They hated Judaism partly for having, in their view, succeeded so very well

economically and culturally without the help of a state at all, and for having been able,

they felt, to combine an inner, voluntary, community solidarity with an adroit and

profitable expertise in the outer realm of contracts.

In the last few decades, however, in the light of the huge economic and cultural

success of the nations that clung to the law of right, there has been a decisive swing back

in that direction. Dozens of regimes have adopted free market policies, have at least in

theory signed on to Hernando de Soto’s drive to give poor people the legal right to their

own property (thus freeing them from moral peonage to a paternalistic government), and

have submitted themselves to the contractual discipline of the IMF, the WTO, and the

World Bank.

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 Let it be said at once that the above is not an attack on the law of good, nor simply a

paean to the law of right. The laws of good apply still more strongly to the individual

conscience as the secular enforcement of them diminishes. They apply also to the free

institutions of civil society (protected from each other, as they must be, by the law of

right). The absolute claims of the law of good that make it so dangerous when armed

with secular power are precisely what generate the decent conduct without which a good

society is impossible.

But goodness, in my view and that of almost all ethicists, is essentially bound up with

freedom. We cannot praise a coerced virtue, nor blame an enforced crime. The very core

of morality, enjoined by God himself in almost all religions, is the spontaneous assent to

divine grace. Paradoxically, to enforce the law of good is to destroy it. Paradoxically,

the freedom to do evil—as long as it does not violate the right—is required for the

freedom to do good. The law of right is at its center the law of freedom, and is thus,

paradoxically again, the only thing for which one can rightly resort to coercion and war.

All of this is not to say that the law of good must bottle itself up within the individual and

the closed community, and render itself impotent. Instead it means that the law of good

must win the world the hard way, by the noncoercive means of persuasion, gifts, and the

marketplace—must win the population one by one by one. And it can only do so under

the wing of the law of right.

Certainly, the laws of right do not make a perfect world. Adam Smith’s Invisible

Hand, the miraculous pricing mechanism praised by von Mises and Hayek, that directs

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resources to where they are most needed, does indeed work, in the large statistical

aggregate, when it is protected by the law of right. But it cannot deal with local

tragedies, and it cannot by itself create the social and cultural capital that renders people

capable of exercising political freedom in a responsible and objective way—nor does it

claim to do so. And it cannot per se engender the marvelous overplus of heroism,

sanctity, generosity and scientific and artistic integrity that society needs to advance.

But neither can the law of good do so when enforced by coercion, for these things are

free gifts and cannot of their nature be coerced.

Thus if religion is a natural human need and right, it is one that only the persuasive

and noncoercive measures of civil society can guarantee. A civil society which did not

do so would tend, if this analysis is correct, to wither on the vine—or at least it would be

overwhelmed and outbred by devout immigrants with the greater cohesion, moral

strength, and enthusiasm for life provided by their religion. But it would be more

dangerous still for the state to enforce religion.

However, evolutionary natural law might very well argue that America’s current

anxiety about public displays of religion (except “secular” statist ones) may be deeply

misconceived. To insist on them in government buildings is to try to make Caesar do the

work of God and thus to betray a lack of faith in the Lord. To try to ban them in public

places is just as dangerous, because it implicitly concedes that public space is government

space, and thus violates the Constitution’s pledge that all rights not specifically delegated

to government are reserved to the people; it is we the people who own public space, not

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the government. Just as government should not grow food, but should encourage the

growing of food, so government should not take on, but should smile upon, the provision

of religion, as a natural need of its citizens. Further, the recent attempt to suppress by

“political correctness” and speech codes civil society’s habits of giving honor to religion,

and even its noncoercive but often very uncomfortable sanctions against irreligious and

immoral behavior, may also be a mistake.

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 13. Truth, Goodness and Beauty

So far the quest for an evolutionary natural law has implied the need for rather

minimal prudential rules that subvert rather than condemn our less admirable emotions

and motives, turning them to beneficial purposes. We have seen the overwhelming

advantages of freedom and bottom-up self-organization when the incentive structure is

sound. We should go with, not against, human nature. A law of right may be more

effective in encouraging higher values and virtues than a more ambitious law of good.

But is laissez-faire enough? The true test of the health of a culture is the flourishing of

its highest expressions—generous human relationships, splendid personal virtues

including self-sacrifice for others in emergencies and in the face of life’s inevitable

tragedies, the advancement of science and philosophy and of the curiosity and integrity

they require, and especially the flowering of the arts and sciences, voluntary

philanthropy, and the values of beauty and taste. Can we afford to leave these crowning

values to the marketplace, and to the voluntary self-sacrifice of dedicated artists, saints,

and amateurs? Historically the arts, sciences and philanthropy have flourished mostly

under the patronage of elite individuals and groups—pharaohs, emperors, kings,

churches, dukes, bishops, monasteries, the haut-bourgeois magnates of such cities as

Amsterdam, Paris, London. Can philanthropy, the arts, and sciences flourish under

government patronage in a genuine populist free market democracy? If such patronage

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reflects the tastes and votes of the average consumer or of the strongest lobbyists, rather

than those of the most cultivated members of society, what kind of culture are we likely

to get? These questions cannot be answered by a natural law approach. Art, science, and

love of our fellow-humans cannot be legislated into existence. But natural law concepts

may nevertheless help to correct distorted views arising out of modernist intellectual

history, and thus give popular tastes a sounder foundation.

Evolutionary natural law proposes a counter-theory to the generally accepted analysis

of ethics and aesthetics originating from Immanuel Kant. That analysis was based on the

idea that truly ethical action must transcend the compulsions, fears and rewards of nature.

It emphasized the virtue of disinterestedness—that is, what distinguishes an ethical action

from one which is unethical or ethically neutral, is that the act is performed without fear

or hope of consequences, and what distinguishes an artistic act from a merely practical

one is a supererogatory playfulness, unmotivated by the hope of gain. The same applies

to scientific inquiry—it should cultivate detachment from any interested bias. These

ideas are not without merit in themselves, and their best features—the ones that ring true

to our intuition—need to be preserved in any replacement. Certainly political freedom is

essential to allow the flowering of ethical action and the arts and sciences. If we ask how

natural law can help beauty, truth, and goodness, the answer is perhaps that the best thing

that government can do is get out of the way and neither bribe nor coerce the creative and

the generous by well-intentioned laws. But there are other respects in which Kant’s

views on the freedom of the beautiful and the good are not entirely consistent with the

spirit of natural law.

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 Kant’s position had at the time a very convincing basis: the philosophical crisis that

had been provoked by Newton’s discoveries of the laws of motion and gravitation, and

the apparent inference drawn by Enlightenment science that the universe operated in an

entirely deterministic way. If human beings were subject to the same laws, then moral

action, which depends on the principles of free choice and assignable ethical

responsibility, would be meaningless; and so too would art, since the originality of a

work of art would be undermined by its least detail having been stored up in a chain of

prior causes for all of time. Thus if ethics, scientific objectivity, and art are to retain any

validity, humans could not be wholly subject to those laws—and thus the world of

knowledge would have to be carved up into two incommensurable areas:

Naturwissenschaft (natural science) and Geisteswissenschaft (the arts and humanities,

including the epistemology and ethics of science).

The ruling principles of the latter were freedom and originality, specifically the ways

in which human spiritual activities escaped the ananke or fated inevitability of the

material universe. Humans, clearly, were influenced by the physical world, and could so

imbrute themselves that they became predictable like any material object or instinctually-

driven animal; but our special nobility was to be able to transcend those motives. The

hold of self-interest that nature had over us needed to be broken by art, philosophy, and

religion if we were to possess a spiritual identity. Thus if we are interested in the

outcome of an action or event, and stand to gain from it in some material way, to choose

the path of reward would be to have been bribed, so to speak, by physicality; our actions

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could not be free and original, and would fall into the province of natural science rather

than the humanities.

In the light of the profound changes in our scientific view of the world, sketched in

Chapter 4, an evolutionary natural law would reunite Geisteswissenschaft and

Naturwissenschaft. If the universe is not fundamentally deterministic, but free and

creative—“branchily” ordered in such a way that it is always to some degree

unpredictable before the next event but intelligible after it—then the Enlightenment crisis

is over. If the universe is already full of knowers and intenders, even if at a lesser degree

of organized complexity than the human, then a new era of reenchantment may be on the

way, in which to be moral and purposive beings is not necessarily to make ourselves

strangers in the universe. What would an evolutionary natural law perspective now make

of truth, goodness and beauty?

Let us start with a trio of definitions, which partly explain each other: goodness is

love; beauty is what is properly loved; love is identification. The ambiguity of the word

“identification” is entirely intentional. The word has three main meanings that are

relevant to this discussion: first, “knowledge”, in the sense that to identify something is to

know it, to recognize it individually. The second is related to the first—the establishment

and validation of the name and human standing of a person. The third is essential, since

it transforms intimate knowledge and personal recognition into an emotion:

“identification” in the sense that when we identify with a character in a story or a person

undergoing some trial, we put ourselves in that person’s place, we empathize, we count

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ourselves as part of something larger than both of us, a vine of which we are a branch, or

mystical body of which we are a member, and thus our natural care of ourselves is

extended to the person or thing we have identified and identified with. Kantians will see

that this definition is in its effects not far from Kant’s “kingdom of ends” and Buber’s

consequent notion of the I-Thou relationship. But the dynamic is different. It is not the

denial of self in submission to the abstract maxim or in a martyrdom of service to the

other, but the extension of the self that includes the other, or rather no longer conceives

the other as other, and at the same time submits itself to the other as one part of a body

submits itself to another part, without any sense of sacrifice or rancor. Thus the word

“identification” holds within itself a tension, between the recognition of the autonomy

and self-validation of the beloved on one hand, and on the other the opening of the self to

a larger unity than both self and beloved, to which both are in service, and to which one

submits one’s own will, so becoming one with it.

Working backward to the second definition, we may now infer that the beautiful is that

which can have such a nature that we can identify it and identify with it. That is, it must

share with us at least some of the characteristics that make us human—our autonomy, our

capacity for growth and creativity, our participation in the continued reproduction of the

universe, our complex interdependence of parts, our capacity for emergent self-

organization if only on the chemical level, our continuity as self-sustaining physical

entities in space and time, or at least our having at some point existed, that is, been

engaged in some reciprocal exchange of information with the rest of the universe. Thus

there are many ways in which we can feel an appropriate empathy with something, and

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thus many kinds of beauty, ranging from the purely mathematical elegance of an electron

through the richer and more complex organizations of inanimate matter, plants, and

animals, to the full range of empathetically sharable characteristics such as we possess in

common with another person.

A further implication is that there may be even more inclusive and beautiful systems

whose emergent properties transcend our human ones (while potentially including

them)--systems which command our even greater love. Consider the love of a poet for

the language, of whose vast neural community his own conversations are but a single

synapse (or for another language than his own, of whose community he could one day be

a member). Or consider the love of a biologist for an entire ecosystem, including its

human beings; or the love we bear toward a culture or nation or divine being. Note that

according to this logic, we can love another being—legitimately find it or her or him

beautiful—only by being able to conceive of a larger unity which includes both of us and

with which we can submissively identify, thus including the other in the familial warmth

of our solidarity. Note also that though the beautiful is distributed among all kinds of

entities in the universe, it is also much more intense and richly realized in the more

complex and inclusive emergent systems (and thus we have the necessary definition of

the ugly, which is the overwhelming of a greater beauty by a lesser).

Not that this definition of the beautiful is all relaxed harmony and oceanic acceptance.

Quite the reverse. The universe is a place of violent transformation as well as mutual

influence—indeed, mutual influence, whether through the forces of physics, the trophic

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relations of an ecosystem, or the dialectics of zealous knowledge-seekers, is the very

trigger of change and catastrophic emergence. What we should properly love in other

things and people is at least partly their capacity, which we share, of irrevocably

changing the world and each other.

Buried in this definition of beauty is a further definition, then: beauty is the deepest

trend or tendency of the universe, which is in one sense the process of mutual feedback

itself, in another sense its potential for evolution and emergence, and in a third sense its

capacity to recruit larger and larger concatenations of mutual influence and thus

identification. One of the things that people laugh at in poets is their tendency to talk to

trees and writes odes to inanimate things like autumn, roses, melancholy or nightingales.

That sense of kinship—Einfühlung, Goethe called it—which the poet experiences with

objects or systems, is the very core of beauty. It is not disinterested—it is deeply, deeply

interested in every sense of the word. I feel the sickness of the rose, the trembling of the

hare as it limps through the frozen grass, because I and the rose and the hare are part of

one body, her sickness is mine, his chilled ache is in my body too. I have in one sense

transcended selfishness and interest, but through a larger selfishness, an expanded sense

of profit and loss. Art now may be seen as the making of larger communities of being—

tying together, by literal construction or by meaning, vaster and vaster systems that can

constitute a home for an “I”.

Working backwards now to the first definition, we may now understand goodness as

the appropriate response of love to what is beautiful. As St. Francis of Assisi put it, we

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are brothers and sisters of the ass and the olive tree and the sun and the moon, that is, we

share a common ancestry that makes us members of a larger community. We may now

see that this definition of love is quite consistent with the sociobiological concept of

altruism as the result of “inclusive fitness”: whether in its narrow genetic sense that we

act altruistically because we share genes with our friend, or in its larger economic sense,

that we have evolved signal systems that enable us to collude against the Prisoner’s

Dilemma. The gene pool and the integrated rule-governed and emotion-policed signal

system are cruder, earlier versions of Francis’ sense of the common Fatherhood of God,

or our shared Buddha-nature. In Jesus’ sense, the living universe is a vine of which we

are all branches. Such systems are creative and beautiful—free, branchy, not

deterministic. Part of the reason, perhaps, why my cat and I are fond of each other is that

some tens of millions of years ago there was a small furry rat-like and affectionate animal

—not too bright—one of whose suckling babies was my ancestor, and one was hers: the

place where we branched off from: our mama.

In the Hindu Upanishads this whole idea is summed up in the sublime words “Tat

Tvam Asi”. Translation is hard. A first approximation is “You are that”; better would be

“That thou art”. Its meanings include the idea that you—that is, the human being reading

the book—are the divine being that is the subject of the holy book. Properly considered,

that is, all that you really are is of the divine substance—anything that isn’t, doesn’t

really exist and is an illusion, and anything that has real being—one’s atman or soul—is

but a holographic fragment of Brahman, that of which all creation is but a single thought.

The phrase also can be turned around—Thou, that is, God, art that—whatever one sees or

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considers, whatever “that” one attends to. But the writer is also addressing the reader

human to human, and thus declaring that the reader is part of Brahman as he himself is,

and so the phrase is a declaration of love for a fellow human being. That is, the supreme

goodness is the recognition of all beings including oneself as part of the divine; and so

the phrase can also be translated as the Judeo-Christian couplet, to love the Lord one’s

God with one’s whole being and one’s neighbor as oneself. But we can now see that the

two halves of the phrase are really logically entwined—the bond between one’s neighbor

and oneself is God.

Thus the progress of ethical goodness in the world is not to be found in an attempt to

get people to be unselfish, but rather in the wider and wider expansion of what we

consider ourselves to be. The most primitive level of morality for us humans would be

for a part of us—a damaged gene or cancerous cell or group of cells, or an urge to gorge

on food or expend ourselves in indiscriminate copulation—to assert its independence of

the rest of our body and seek to gratify its selfish motives. Even this would be a kind of

morality, for atoms and molecules would have committed themselves to a higher

selfishness to be effective at this level. More advanced would be the rational self-interest

of that larger community of all the cells and subsystems of the body—the morality of the

virtuous egoist. The etymology of the word “sin”—sunderedness, sundering—now has a

powerful context. The next level would be our willingness to sacrifice ourselves for our

blood kin—family values—a kind of moral value system, with its institutions of tribal

genocide and blood feud, that is hundreds of millions of years old. Next would be our

allegiance to our city or patriotism to our nation, with its darker side of war. Higher yet

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would be a sense of Us—the extended I—as including the whole human race in an

embracing humanism—an ethic that does not necessarily embrace a care for the

biosphere. Next would be an identification with the ecosystem of the planet; but that

ecosystem would have to include the human race with all its warts and transformative

violence—it would have to be loyal to the “household” of the world economy as well as

the world ecology, and see the two as indissoluble, or such an ethic would risk falling

back to a level more primitive than mere humanism. Higher still our empathy would be

with the whole universe, and would be religious in its scope. At each stage the common

roots of our mutual ancestry would extend further back in time and would have a longer-

range intentionality into the future.

It might be objected that this value-system of larger and larger spheres of communion

would militate against the virtues of individuality, exception, nonconformity, difference,

uniqueness. Far from it. These values have in fact increased in the universe in precise

step with the enlargement and densification of integrated feedback systems. The

relatively isolated photon in space is symmetrical in almost all dimensions, devoid of an

inside and outside and a shape, and identical with all other photons except in wavelength.

Atoms, with their inner nuclei and outer electron shells, are more asymmetrical and

individuated, and they exist in ecologies of other atoms and forms of energy. Molecules

show distinct asymmetries of external shape, and organize themselves in crystalline,

polymeric, or amorphous communities. Living organisms show even more individuality

—at first globular and symmetrical in shape and reproducing by cloning, later organized

with a top and bottom, a spinal axis, a head and tail, and the odd upright, skull-forward

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stance of the human being—and reproducing sexually, so as to produce genetic

uniqueness in each individual. The more individuated the organism, the more likely it is

to engage in social behavior and display altruism, to extend its sphere of interest across

different biomes, and develop sensory systems that provide the universe with ways of

seeing itself at large—but also the greater its scope for difference and nonconformity.

Individuality and expanded communities of interest go hand in hand.

One implication of this view would be that the fact-value distinction would no longer

hold; ethics and esthetics would be naturalized, and the stipulation that each requires

freedom and originality would be satisfied by the new conception of the universe as free

and creative all the way down. Facts would simply be fossilized values, so to speak, and

values would be enlivened facts. A dramatic new opening in scholarship and education

would appear, as the sciences would be reintegrated with the arts and humanities; and this

intellectual change would reverberate in terms of a transcendence of irony in the

humanities, an unembarrassed reverence in the sciences, and a recovery of both technical

virtuosity and moral seriousness in the arts.

We would need, however, to abandon some dearly held prejudices. One would be the

existentialist pose of the human thinker alone in an unfeeling and meaningless universe.

However, the replacement of the idea of humans at war with nature by an ethic of

solidarity with it might be timely indeed.

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 14. The Resistance to Evolutionary Natural Law

The spread of free market democracy across the world might look to an alien observer

very like certain phase-change phenomena in the realm of thermodynamics. Here a small

crystal of ice might emerge in cooling water, accreting perhaps around a minute grain of

dust or impurity. As the liquid cools it resists the inevitable transformation into a solid,

because of the latent heat of its liquid phase and the heat transportation costs involved in

the molecular transformation. It is not until well past the official freezing point that

freezing itself sets in—and then the transformation can be very quick, propagating by

cascades through the entire body of water in a few seconds. That propagation will begin

around the rare precursor-crystal, and the orientation of the crystal planes of the whole

will be partly determined by the precursor crystal’s own location and orientation. Two

hundred fifty years ago there was but one free market democracy—and an imperfect one

at that, having accreted around a peculiar local set of conditions such as British

primogeniture, the squirearchy, common law, and the need for a successor to the throne

of the right religion. The United States was a purer version, precipitating upon the

British model. Free market democracies were a small minority among nations for many

decades, though the economic, technological and scientific conditions of the world were

increasingly inhospitable to any other system: the “latent heat” of the bureaucratic-

monarchical phase resisted the collapse into the more integrated and multidimensional

form of organization. Just so must the hunter-gatherer world have resisted the planetary

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crystallization into agriculture in the Neolithic, the rural world must have resisted the

wave of urbanization when cities arose a few thousand years later, and the pre-industrial

world resisted industrialization in recent times. But in the last few years the

transformation to free market democracy has accelerated, and may well be complete in a

few decades.

Though free market democracies all over the world bear the crystalline imprint of

Britain and the United States—the “mother of parliaments” and the “model of

constitutions”—the actual condition of free market democracy may itself be sui generis,

not the property of any particular culture or culture type. Like the arch in architecture, it

may be a discovery even more than an invention, something anyone can use. Indeed

pricing, and its extension as voting, may well be archlike in that in an arch it is the very

tendency for the blocks to fall that gives it its strength and cohesion. Free market

democracy may be adaptable to any local system that has crossed certain thresholds of

per capita income, legal property rights, women’s education, communications

technology, personal mobility, life expectancy, and so on.

The point here is that free market democracy may itself be a new natural kind, a new

species. For the older forms of natural law, such a formulation would be nonsense—a

natural kind or species could not be new, and certainly could not be concocted, like an

artificial human construct. But evolutionary natural law not only can accommodate new

natural kinds, it positively defines nature as that process which produces new natural

kinds—and does not rule out human artifice as part of that process. Thus it would be no

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paradox—as it would have been for Enlightenment “state of nature/social contract”

theorists—to say that free market democracy is actually more natural than the

bureaucratic monarchies that preceded it and created the conditions for its emergence. It

would be quite accurate to say that ice is a more natural state than the metastable

condition of subzero liquid water that immediately preceded it. The earlier formation of

something is not necessarily more natural than the later; at one time in the universe—

since the universe has been cooling since its origin, and since water can form out of

hydrogen and oxygen only in the forms of gas or water—there was no ice. Then, later,

ice emerged. Yet ice is now a more natural state than liquid water over the vast

proportion of the universe that is under zero degrees centigrade—liquid water and steam

existing only in planetary and stellar environments that are hot enough and pressurized

enough to resemble the first environments of oxygen and hydrogen. By analogy, free

market democracy may now from an evolutionary natural law perspective be seen as the

most natural condition for humans on this planet. Indeed, within recent memory the

number of people in the world living in free market democracies passed 50% of the total.

To look at the world this way immediately dispels one of our most deep-seated

anxieties and explodes some of our most guilt-ridden myths. Certainly, we are still

morally responsible for the disruptions and tragedies in the lives of people in those

societies that have had to change or assimilate in the face of the democratic free market

challenge. We owe it to them to ease the transition and to help and comfort injured

individuals—indeed, that very sense of obligation arises out of our democratic condition

and would be almost inconceivable to a tribesman who found himself dealing with a

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society less advanced than his own. But we need no longer carry the burden of believing

ourselves to be unnatural interlopers upon a harmonious natural world, nor suffer a sense

of moral alienation from the rest of the world.

This perspective may now enable us to better understand the passions of anti-semitism

and anti-capitalism—whose results, in terms of mass murder and atrocity, have been as

discreditable to advanced urban societies as tribal massacres are to backward rural ones.

When a new form of organization first becomes available to a physical system, a form

that may better fit its energy budget and future stability, it is resisted. The speck of ice in

the cooling water is in danger of being melted back into the mass, despite its more

synergetic molecular order at low temperatures. When a major sport or freak occurs in an

animal species, its litter-mates are inclined to attack it as a monster, even if it may, in

larger numbers, use the available ecological niches to better effect. And when an

evolutionary advance such as agriculture, the city, a business caste, or free market

democracy emerges, it is perceived at once as a threat to the established order that must

be attacked and cleansed from the world.

Free market democracy, as we have seen, has two elements, economic and political:

the free market and the vote. The free market came first. In the beginning it emerged out

of the general trading habit of the species, and was not recognized as a threat. Specialist

traders were more despised by aristocrats and peasants than hated. But once the more

abstract institutions of interest, investment, banking, insurance, property law, and capital

in general evolved, and the pricing mechanism began to flex its invisible hand, things

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changed. Those who were able to understand the new system became monstrously and

inexplicably rich. Technology accelerated, requiring changes in old habits. Volatile

prices wiped out unwary farmers, and interest rates ruined princes. Weapons improved,

and were effective in unskilled hands, as were the longbow and the gun. A new upstart

breed of people seemed to have occupied the privileges and holy places of the old—

almost as if they were a monstrous new race, replacing one’s own. So the Neanderthals

might have felt in Northern Europe, as the clever swarthy little Cro-Magnons usurped

their shrines and hunting grounds. And maybe our ancient myths of ogres and giants and

ettins preserve a trace of guilt for their eradication that makes us Cro-Magnons fear the

same may happen to ourselves

Several nations appeared, skilled in finance and experienced in pricing because they

lay at crossroads or were compelled by historical vicissitudes to seek new economic

niches, precursor crystals in a melt that must sooner or later freeze. They were

comparatively wealthy and, to outsiders, tricksy and unscrupulous (though in their own

terms they were simply law-abiding, honest, and shrewd). They included the

Phoenicians, the extraterritorial Chinese, the English and Dutch, the Armenians, the Ibo,

the Tutsi and of course, paradigmatically and first of all, the Jews. The Carthaginian

Phoenicians were crushed by the Romans: Carthago delenda est—salt was sowed on its

ruins. The English and the Dutch were saved from destruction at the hands of Spain by

the sea. Chinese trading communities throughout south-east Asia were subjected to

periodic pogroms until recent memory. The Armenians were massacred by the Turks,

the Ibo by the Hausa, the Tutsi by the Hutu, the Jews by a succession of peoples

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including the Assyrians, the Babylonians, the Romans, most European nations, and

finally, in the most hideous atrocity of all, the Germans. England, the “nation of

shopkeepers,” of grasping little materialists, was loathed by Europe as “perfidious

Albion”. The Jews were blamed for the Great Depression. In our own time Japan and

the US have been most roundly hated when their economies have surged, and it is no

coincidence that the 9/11 attacks were directed against the World Trade Center.

Anti-semitism is the most ancient of these hatreds and fears. Perhaps because of its

location at the meeting of Africa, Europe, Asia, and the Mediterranean, and because its

periodic diasporas and territorial dispossessions forced it into non-agricultural means of

livelihood, and perhaps because its early adoption of monotheism gave it a scientific

philosophy that favored rational analysis, Israel became the precursor nation par

excellence. The rest of the world’s peoples were culturally the Neanderthals, the Jews the

Cro-Magnons. If you are a Neanderthal, a Cro-magnon is to you a nasty, cunning,

miserly, indoors kind of creature. The physical and psychological stereotypes are

perfectly matched to the paranoia of those who fear being left behind by the ignoble, the

underhanded, the clever—the Dwarves of Wagner’s Ring cycle, the big-eared Ferenghi of

Star Trek., the materialistic bourgeois of countless avant-garde fantasies. They do not

stand up straight; their bald domed foreheads bulge; their eyes are beady, looking for

advantage; they maintain mystifying and inexplicable systems of control. Worse, they

are suspected of hideous and unnatural crimes, crimes that attack the basic symbols of

gentle human nature—blood, flesh, babies.

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 One of the unexpected benefits of the adoption of evolutionary natural law as a guide

would be that groups like the Armenians, Jews, Ibos, and British would be seen not as

threats against nature but as the leaders and pioneers of it. If banking, scientific

discovery, legality, travel, philosophical speculation, and so on are recognized as natural

goods and not despised as unnatural (if necessary) evils, and their benefits and

availability to the whole human race fully and ungrudgingly acknowledged, then some of

our Neanderthal fears and hatreds might begin to fade away.

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 15. Conclusion: A Research Program in Evolutionary Natural Law

Thus evolutionary natural law has the promise of offering interesting and perhaps

surprising solutions to many questions of principle—some that have bedeviled moral and

legal scholars for centuries, and others that are new, or have become especially acute with

recent developments in technology. Examples of the former are the issues of just war and

property, which are old problems but which look different when we approach them with

an evolutionary perspective on revenge and territoriality. Examples of the latter include

the use of new knowledge about sexual and asexual reproductive strategies and gene-

swapping among prokaryotes to answer the question of what types of medical

intervention are in the mainstream spirit of evolutionary health, and which are not.

Consider also the use of new research in human prehistory to reexamine the question of

human adaptedness to high-tech city life.

Evolutionary natural law may be useful even when it is not particularly surprising; as

when it confirms the success of free market economies by pointing out the naturalness of

contracts, or provides a natural basis for the toleration of homosexuality. Evolutionary

natural law can suggest ways out of current controversies, like the relationship of church

and state—if humans naturally need religion, the state should not stand in religion’s way

but should, without special preference for particular religions, encourage it in general.

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Likewise, the pressing matter of eminent domain and government takings might benefit

from the scholarship on natural territoriality.

These possible applications of an evolutionary perspective are intended as suggestions

about the richness of the approach, not as second-guessing its conclusions. How might

sound knowledge be generated about evolutionary natural law? This question divides

into two parts: How do we make evolutionary natural law hypotheses? And how do we

test them?

A good candidate for a hypothetical natural law might have the following

characteristics. It would be based on some human trait that is culturally universal, and

therefore likely to be part of human nature. One should be able to show that when it has

been violated in the past, damage has been done to individuals and/or societies as a

whole, and when followed, benefits have accrued. A natural law candidate would carry

more conviction if it were based not just on human universality, but also primate,

mammalian, and vertebrate frequency as well. It would have the characteristic economy

and synergy of other natural solutions, creating rich adaptability out of simple means or

clear resolutions of complex and multifarious problems. It would be promising—i.e., it

would contain the potential of future emergence and further development. It would be

consistent with other known natural principles (though not reducible to them). It would

evoke the same kind of aesthetic satisfaction that an artist finds in a successful artistic

resolution, or a scientist feels in an elegant experiment or theorem. And it would be

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formulable as a law, preferably a voluntary moral one, but if necessary a coercively

sanctioned legal one.

Once such a hypothesis has been generated, it would need to be tested. Testing is

problematic in many ways, because the extent to which experimentation is permissible on

human subjects—and, a fortiori, on whole human communities—is itself one of the

issues that must pass the test of natural moral law. However, there is still much scope for

testing.

Obviously, the first test for a natural law candidate would be consistency with the

theory of evolution. Here a “Just So Story” about how a natural trait, and the natural-law

implications of that trait, might have been produced by recombination, viral grafting,

mutation, selection, and heredity might not be enough—as we know, the same set of

causes can bring about different effects. We would want good genetic, anatomical,

archeological, and other evidence to confirm the actual adaptive history. But the

identification of a biological and behavioral substrate for a possible natural law is not the

only kind of test.

For a start, history itself contains many “natural experiments” and also immoral or

amoral experiments by humans on each other. These might include, for instance, the

survivability of isolated or stressed populations such as the Easter Islanders, Leningrad in

World War II, and the Warsaw Ghetto, or extreme sociopathological cases like Colin

Turnbull’s Ik people. But less extreme examples might also be useful, like the often-

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remarked contrast between European scientific dynamism after the Renaissance and

Chinese relative stagnation in the same period. The technique is to use the existing

scholarship on such a case as the basis for making a natural-law prediction about some

previously unexamined aspect of the case, and then research that aspect to find out if the

prediction is correct.

The very fact that there are different nations affords controls and alternative strategic

plans with different assumptions. Why did South and North Korea, beginning in similar

conditions, so rapidly diverge in economic and demographic terms? Federal systems like

that of the United States give very precise tests of what might have evolutionary promise

and what might not, for the bulk of state law usually remains fairly uniform while some

particular innovation, like California’s plebiscites and property taxes, or Massachusetts’

marriage laws, can be carefully examined both for its natural-law assumptions and for its

consequences. A substantial test of the school voucher system in some state or other, if

scholars with various positions on natural law were prepared to make predictions as to its

outcome on the basis of their arguments and observe it closely, might be hugely valuable

however it turned out. It may well be, as some scholars have suggested, that the division

of Europe into separate and competing nations after the fall of the Roman Empire

contributed heavily to the progress of European science and technology, while the very

success of China in holding together its vast subcontinent diminished the number of

experimental test-beds at its disposal. Of course other natural law implications might

flow from the same data—China’s huge population does represent rather emphatically

what Darwin would have called reproductive success.

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 A different kind of test might be in the whole realm of neuroscience and socio-

psychological research. The promise of such research is suggested, for instance, by

Stanley Milgram’s famous experiments on the influence of authority or majority opinion

over individual behavior, and by the more comforting work of games theorists on

cooperative strategies in iterated nonzero-sum game scenarios. Good techniques now

exist for the realtime observation of the human brain and nervous system faced with

moral decisions—functional MRI scanning, EEGs, skin conductance, etc—and for the

study of neurotransmitter, hormone, and immune system chemistry in humans and other

higher animals. A sound natural law would be one which, when applied to the

experience of and demands on a subject, resulted in cheerful and effective behavior and

no bad after-effects.

Another kind of test would be in terms of evolutionary fitness. Of course we do not

have time to look at the long-term consequences of a policy on the genome of our own

species, even if such a thing were morally possible. But we could certainly begin to

model such scenarios by means of powerful nonlinear iterative computer programs,

containing virtual communities of hundreds or thousands of genetic algorithms

representing gene frequencies, interacting according to the social parameters we want to

test. More accurately, we might reverse-engineer some actual human trait, constructing

computer programs with different constants and variables to see which one best models

the actual emergence of that trait. This technique would be more accurate because we

can then go back to the geological, archeological and genetic record and see if the

computed sequence corresponds to what actually happened. The less accurate modeling

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system could then be amended by comparison with the more accurate one, and so on.

Real-world experimentation on living animals, such as that of the Soviet fur breeders, can

also give exciting insights into short-term genetic phenomena like the triggering of

neoteny in a lineage by domestication, and by implication the importance of epigenetic

meta-genes that control the activity of large groups of other genes—the toggle-switches

of genetic intraspecific diversity.

Games people play for entertainment and pleasure themselves constitute a rich body of

data about putative natural laws. Starquest and The Sims involve of thousands of players,

with a digitally-preserved history, and an explicit record of the initial parameters and

rules. Even “reality TV” may have a role here. It would be very instructive indeed to see

which of the plot developments in Survivor were expected or planned by the game

designers, and which ones came as a surprise, and thus might furnish good data about the

laws of emergence governing human interaction. Such institutions as Google, with its

enormous archive of linkings, could be data-mined for significant human tropisms

indicating underlying features of our nature.

Perhaps the most reliable test of all is good old-fashioned social anthropology, if its

existing body of data were reexamined from a natural-law perspective and some of its

new research were conducted with a view to testing the conclusions of the archival study.

Anthropology’s method of one-on-one personal interview and long-baseline residence

with its subjects uses to the full those human talents designed by evolution to figure out

what is going on in a human situation. The traditional ethnographic methods of the

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discipline avoid some of the pitfalls of sociological research, which gains statistical

power at the cost of human insight and the recognition of the moral aspects of research on

humans, the complexities of the observer effect.

Novels, operas, and dramas employ perhaps the most sophisticated instruments of all

for the study of human natural law. Less systematic and reliable than anthropology, they

may have a greater potential for insight. Indeed, their value is in the fuzzy area between

hypothesis and testing, where what we know exerts a continual correction upon the

means we use to know it, and the means of knowledge are recognized as among the

things most vitally to be known about human beings. At present literary and performance

criticism is languishing in the aftermath of its largely disastrous thirty-year foray into

“Theory”; the search for a reliable body of natural law might well be the essential spark

for a resurgence of the critical disciplines and of the humanities in general.

Research into natural law might have a further beneficial effect: to require cooperation

not only between different academic disciplines, but also between different political,

religious, and philosophical ideologies. Since everyone would have an interest in

promoting a body of common knowledge that would bind competing ideologies to a

common playing-field, it would be in everyone’s interest to contribute the maximum

energy to the enterprise. At present the legal, academic, medical, political, journalistic,

and artistic professions are rather floundering about in the post-postmodern condition. A

search for sound natural law would provide a common focus and a worthwhile goal.

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148
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