I first met Jonathan Haidt at an academic conference on psychology held in Berlin in 2004, and was impressed with his findings about how ordinary people make moral decisions in their everyday lives. His recent book, The Righteous Mind, carries with it the subtitle, “Why Good People are Divided by Politics and Religion.” This work follows his earlier book, The Happiness Hypothesis. His arresting hypothesis about human nature is captured in the title of his important article in Psychology Review, “The Emotional Dog and its Rational Tail.”
Received wisdom often has it that ordinary people engage in deep philosophical deliberation before they reach judgments about what’s right and wrong in individual cases. Haidt rightly rejects the claim that these deliberative processes precede our judgments. Our everyday behavior reveals exactly the opposite pattern. Any modern defender of what used to be called “faculty psychology,” opposed to the Lockean theories of the tabula rasa (blank slate), needs a model of the mind that treats it as something more sophisticated than a set of unorganized neurons that organizes itself solely through experience.
The blank slate theory must be wrong under the evolutionary theories that Haidt rightly adopts. There are certain generic features about the world that all conscious species need to perceive in order to survive. For instance, human beings require knowledge of time, space, and mass in order to process their experiences. If these concepts are pre-programmed into the mind, it will spare newborns of the need to acquire them from scratch in settings otherwise fraught with danger. Natural selection plays a role in favoring those attributes that are critical to success and survival.
Haidt rightly points out that physical attributes and survival instincts are not the only qualities that evolution selects for. Gains from trade in “sociable” species depend on their ability to cooperate and form groups. Without group cooperation, they will perish, for in the state of nature there is no Hobbesian higher authority to oversee disputes.
Groups—from families to tribes to states—eventually must form institutions. Though cooperation within small groups first emerges from the fact that members share a high proportion of genes in common, institutions, as Haidt notes, need also to foster strong instincts that encourage cooperative behavior even among individuals who have no common genes or share a relatively small fraction of common genes. He identifies three such behaviors.
The first is reciprocity, which lies behind the modern institution of contract that is rooted on one key proposition: Voluntary exchange between parties produces joint gains. The second is the harm principle, by which no person is allowed to harm third persons—this is the foundation of laws against murder, rape, theft, conspiracy, and the like. There is also a third category of “disgust”; individuals are programmed against certain behaviors that do not advance reproductive success and pose the risk of disease. It is on this notion, for example, that the incest taboo and the prohibition against sexual activity with animals rest. There is no doubt, moreover, that the principle explains descriptively, even if it does not justify normatively, the tradition of hostility to gay marriage, which, notwithstanding its powerful libertarian appeal, forecloses in some small measure at least reproductive success.
How can people with fundamentally different views coexist in relative peace?
The hard question is what to make of these instincts in the legal framework. Early natural law shaped legal rules in accordance with “natural reason,” which largely sought to implement these rules in individual transactions in the Roman law, a legal tradition whose sophistication and prescience is widely underappreciated.
In the areas where the law regulates one-on-one human interactions, its rules on reciprocity and harm tend to do an excellent job of structuring relations. As Gaius (an unrecognized legal genius of the first order) wrote in his Institutes:
All peoples who are ruled by laws and customs partly make use of their own ius, and partly have recourse to those which are common to all men; for what every people establishes as ius is their own and is called the ius civile, just as the ius of their own city; and what natural reason establishes among all men and is observed by all peoples alike, is called the ius gentium, as being the ius which all nations employ. Therefore the Roman people partly make use of their own ius, and partly avail themselves of that common to all men…
Here is part of the good sense behind the principle of respecting universal law separate from the laws established by the polity. The universal rules are the protection of cooperation and the prohibition against delict, which covers private torts and public crimes. The law of delict needs relatively little alteration to its list of core offenses, but formalities are required for making agreements and for transferring property. The Romans developed their institutions of stipulation (formal question and answer) and transfer of property (mancipatio, a kind of collusive judgment), but different formalities may be adopted in different polities. It’s wrong to argue that the success or failure of these basic institutions depends in any way on the political orientation of ordinary people. Differences in culture and orientation can be fully protected by a set of local rules, such as rules protecting voluntary transactions from the interference of others, and rules expanding the notion of harm to cover offense taken by the conduct of others. Flag-burning is a good example of a behavior that should be allowed no matter how offensive it is to others.
David Hume, a Scotsman who was trained in Roman law, was famously hostile to natural law. Ironically, he repackaged many of its key rules by showing how their operation on the ground spread the benefits of social cooperation to all individuals. In A Treatise on Human Nature, when his attention turns to the construction of rules for running a stable society, Hume’s discussion of the origins of property, the rules on transference, and the rules on promising are straight out of Roman law. They retain their durability today precisely because they do not depend on the worldviews of the people who use them.
Flag-burning is a good example of a behavior that should be allowed no matter how offensive it is to others.
The hard questions of economic and political theory arise when these rules tend to break down. This takes place beyond the basic institutions of property, contract, and tort. Tough questions come with the problem of large numbers, such as overfishing the commons, the organization of network industries, and the dangers of contracts in restraint of trade to overall productive efficiency. The right answers to these questions require a real knowledge of modern economics. The pre-New Deal Supreme Court came very close to the socially optimal solutions to these problems.
As I have argued in my book How Progressives Rewrote the Constitution, the single greatest blunder of the New Deal was its willingness to invest huge public resources in agriculture, labor, and transportation, and cartelize those sectors of the economy for the benefit of key groups in society. All too many modern commentators, such as Jill Lepore in her New Yorker article “Benched,” write in woeful ignorance of this tradition when they insist that most labor regulation was intended to protect unorganized workers against exploitation, when the true effect was to cut off wage competition at the expense of nonunionized workers.
Haidt does not address the reasons why moral intuitions break down in complex social institutions. Instead, he puts forward the view that it is a good thing to agree to disagree when people fundamentally differ about the relative importance of what he thinks are the six values that undergird our morality: care, fairness, liberty, loyalty, authority, and sanctity. Haidt’s insight that liberals tend to rely on care and fairness, while conservatives rely on all six values equally, is meant to tip his hat, however slightly, to the conservative side of the line.
Unfortunately, Haidt asks the wrong question. The right question to ask is how people with fundamentally different views can coexist in relative peace. The wrong answer comes via Justice Oliver Wendell Holmes, who thought that liberty was “perverted” unless the Court gave way to the dominant opinion of the legislature, which is an open invitation to partisan intrigue. Following Holmes’ path of deference to the legislature and Haidt’s belief that “good people” are on both sides of all questions will necessarily lead to the wrong answer. Madison’s concern with faction, which led to the simple observation in Federalist 10 that “Enlightened statesmen will not always be at the helm,” should make it clear that naïve optimism is a terrible precondition for serious governance.
What is needed is a system of strong property rights so that people who differ on how they wish to live their lives can do so without getting permission from the dominant faction. At that point, they can adopt any allocation of resources they see fit, including charitable contributions. The key issues are for government to control force, fraud, and monopoly, and to create public institutions, including infrastructure (which it is easy to mess up). It ought to achieve these ends without making government the supreme sovereign in the area of individual rights, so that every election does not become an invitation for a major flip-flop from one extreme to another. Our instincts about two-party transactions don’t help to resolve these large-scale structural issues. A much more powerful and self-conscious theory of social welfare is needed to bridge that gap.
Richard A. Epstein, the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, is the Laurence A. Tisch Professor of Law, New York University Law School, and a senior lecturer at the University of Chicago. His areas of expertise include constitutional law, intellectual property, and property rights. His most recent books are Design for Liberty: Private Property, Public Administration, and the Rule of Law (2011), The Case against the Employee Free Choice Act (Hoover Press, 2009) and Supreme Neglect: How to Revive the Constitutional Protection for Private Property (Oxford Press, 2008).