I had a peculiar conversation with my Business Law professor, today. We were discussing what constituted a law and what moral justification there could be creating for creating one. One person piped up that “God gave us an innate sense of right and wrong, and this is Natural Law.”
My professor, being the fair-minded person that he is, responded, “Yes, okay, so there’s one view that God imbued us with a sense of right and wrong and that’s where we get our morality from. Do we all have the same sense of what’s right, though? And the other view on this would be…” He gestured to me.
“Well, I don’t believe in god. I would argue that we do not all have the exact same sense of morality, but we do have a similar set of intuitions we share, because of our common ancestry. We evolved a basic set of moral emotions, and we share an underlying psychology.” I looked around to see nodding, and the occasional scowl, which is pretty typical. I decided to push a little. “And I would also argue that what we view as being morally bad is not a basis for law. Cheating or adultery is arguably immoral, but we don’t think it would be a good idea to execute adulterers–” I never got to complete the thought.
“But what are you basing that on? People in some cultures would say that if you steal you should have your hand cut off. Other people have different values, and in other cultures differing values will lead to different laws. We have to admit there’s a lot of subjective cultural views that shape what is ‘right or wrong’.”
I was a bit taken aback at an educated man questioning my assumption that we largely agree it’s socially maladaptive and ethically problematic to stone adulterers. “If our goal is protecting human well-being (which I think is the only rational foundation for morality), then we can say with some confidence that some laws and norms–in any culture–are wrong. We can tell by the differing outcomes of a place like the United States that relies on a secular Constitution, rights-based legal principles, the rule of law, and a degree of adaptive common law, and a place like Afghanistan under the Taliban where they cut off hands for petty theft and execute adulterers. We can see by measuring the health of the society–by any metric you’d like–that one is better than the other.”
My professor exploded angrily, “That is a HUGE imposition of your values on a totally different culture!”
“Look, there are certain laws that we can reasonably say are maladaptive and detrimental to the health of a society. Throwing battery acid in little girls’ faces for the ‘crime’ of learning to read is bad, and it’s bad in any cultural context. I can rationally demonstrate that it is wrong on a number of levels. But if you want to simply argue about different legal systems, you need only look at the natural experiments being run by societies that respect life, property, and contract, and those cultures that take their cues on government from clerics studying ancient books.”
People were looking uncomfortable now, but my professor was committed to defending his position. “Those clerics would simply claim that the social impacts of allowing adultery or female literacy are so bad that they justify these acts. And you simply cannot say they would be wrong about that in their cultural context, even if we in western society would disapprove.”
Somewhat impatiently, “But they don’t argue that. They only say that God wills it–“
“We execute people in the United States. Most western countries don’t, and a lot of people in those countries think we are backward and barbaric for allowing it. But proponents of capital punishment claim that this has a deterrent effect that reduces the likelihood of murder in society. This is just like throwing battery acid or whatever–“
“Let’s say that someone did argue that capital punishment has a deterrent effect. We can study that, measure it, and determine if they are right. If someone in an Islamic theocracy argues that melting little girls’ faces off prevents some kind of social decay, and it is in net terms worth the horror and suffering it causes, we can study that claim empirically. We can in fact say that they are wrong. They are factually incorrect. Even if it is difficult to empirically tease out the right answers to some questions that doesn’t mean that there are no right answers.”
Some problems, like the deterrent effect of the death penalty, may not be easily answered. Some answers are such low-hanging fruit that we would be mentally defective if we did not seize them. The way we get to these answers makes all the difference, however. If we use logic and what we know about human experience to find the answers to questions like, “Should we kill rape victims for dishonoring their fathers?” we find that it’s not so difficult to arrive at the right answer–an answer that applies to all people, in all cultures. We can both demonstrate that it is harmful to human happiness to be dishonest and unfaithful, and also demonstrate why adultery should not be made illegal (the point I was originally trying to make). We can show why principles like the “right to life” are beneficial, and why ideas like “honor” are not. Rational basis is, in this country, the minimum threshold for proposing a law.
If we instead choose to rely on the words of ancient, largely mythical people, we are never right except by accident, because we have disengaged the part of our brains responsible for figuring things out in favor of the part of the brain that simply believes. When we find our moral answers in books rather than through critical thinking, “rational basis” becomes secondary. The basis of the law is that the omniscient creator of the universe wills it! (And anyone who disobeys is leading us all down the toilet swirl to perdition.) It is totally possible to believe that murdering thousands of innocent people is the right thing to do. But it is not easy to demonstrate that this is the right thing to do.
Of course, no one in that classroom was arguing that we should be governed by religious documents and interpretations. They just find themselves totally unable to argue against such practices in other countries on moral grounds. Every one of us, including my multiculturalist professor, believed in the importance of reason and objective reality in guiding public policy. The principle of separation of church and state, due process, equality under the law, and secular legislation were just as near to his heart as they are mine. He simply found himself intellectually declawed when it came to deal with other cultures, because he has been taught from the cradle not to judge foreign cultural norms, because they are just as “right” as ours are.
I find it totally maddening that in an institution of higher learning, where–ostensibly–debate and discussion are encouraged, my position that there could be discoverable moral truths was deemed so bigoted that it didn’t merit discussion. I received no dirty looks for not believing in god–but many for believing in reason. I got the feeling if I had represented that my culture believed it to be morally necessary mutilate the genitals of young children, my position would have been “respected” and given a “fair hearing”. Apparently educated people find the idea that this claim could ever be evaluated to be intellectually disreputable and “intolerant”. By arguing on behalf of skepticism and rational inquiry, I was condemned as “dogmatic”, while the proponents of literal religious dogma are protected from criticism by western academics–in every department–hiding them behind the twin shields of “culture” and “faith”.
I’m of the opinion that no person–from any culture–should be able to tilt the scales of reason by dropping a holy book on their end. Failed-state status should be an indication that the norms and institutions of a society are not just different, but deficient. Everyone should have to make their case by appealing to a shared reality, and no special treatment should be allotted for people who try to make arguments based on subjective metaphysics. We desperately need to have an adult conversation about where we get our values, and that conversation needs to take place on a level playing field. Right now, I think academia is on the wrong side.