Law is precisely that which fights against nature. If something were all that natural, a law would not be needed to bring it about. This is clear in almost every area of legal scholarship other than those pertaining to sex and gender. [The] evidence for natural human aggression is far strong than any of the evidence [in] favor of difference between the sexes. No one [would], however, suggest that just because human beings are naturally aggressive there should be no laws of murder and assault.
Mary Anne Case, Of Richard Epstein and Other Radical Feminists, 18 Harv. J.L. & Pub. Pol'y 369, 375 (1995).
Sort of reminds me of Don Herzog's admonishing anyone who wears glasses from complaining about modifying nature.
Law is precisely that which fights against nature. If something were all that natural, a law would not be needed to bring it about. This is clear in almost every area of legal scholarship other than those pertaining to sex and gender. [The] evidence for natural human aggression is far strong than any of the evidence [in] favor of difference between the sexes. No one [would], however, suggest that just because human beings are naturally aggressive there should be no laws of murder and assault.
ReplyDeleteBut humans naturally understand murder and assault to be evil. Do they naturally understand gendering to be evil? There are senses in which law is "against nature" and senses in which it's not.
I think it is flagrantly false that humans "naturally" understand "murder" and "assault" to be evil -- indeed, I'd question what conceivable evidence there is to support that assertion. First, all the anthropological and historical evidence we have indicates that pre-social, primitive, and pre-historic cultures were far more violent than their modern peers, indicating that their wasn't a well-established moral norm against such violence. Far from being natural, the moral intuition against rampant killing and violence appears to have been socially developed. And while it is possible that these primitive cultures understood their behavior as wrong even as they partook in it, that's a nearly unfalsifiable claim, and also seems to conflict with the strong sense of moral justification that accompanies certain types of killings that seem clearly wrongful (e.g., honor killings).
ReplyDeleteSecond, since "murder" is simply a way of saying "non-socially sanctioned killing" (murder is definitonally killing that is bad), it is a) tautological to say our understanding that murder is bad proves anything (all it shows is that bad = bad), and b) illogical to turn and say that "murder" even exists as a category predating social organization. The difference between a killing and a murder is a murder is a killing that isn't accepted as being okay. What killings are accepted as okay is almost always socially constructed and clearly varies geographically and temporally (killing in war, killing by the state, killing self-defense, killing to stop non-lethal criminal activity, and killing for honor, are all examples of circumstances where there is a divergence between killing and murder in many societies -- albeit a contested one, as the differing views various social groups have on the legitimacy of all these examples); further, few accept that killing is always evil, meaning that there is near-inevitably some social linedrawing going on (the same analysis can be applied to assault). "Murder" isn't a discrete act, murder is a judgment -- a judgment I feel perfectly comfortable making (and am indeed quite glad society is making so as to check our more violent instincts), but a judgment of society all the same.
Far from being natural, the moral intuition against rampant killing and violence appears to have been socially developed.
ReplyDeleteI'm a little confused by this bright line between social and natural (here and elsewhere). Presumably things that are socially developed are themselves developed out of our nature as shaped by ultimately biological adaptation, right? Or do you believe in super-natural human agency where we shape society somehow apart from nature? (I myself believe in some weak version of this, but am used to assuming it away for discussions...)
Joe,
ReplyDeleteIf something is intrinsic to human nature, how could there have been any group of homo sapiens sapiens in which that "intrinsic" thing was not actually borne out in their norms? I'm not just thinking of prehistoric societies here, either; one would think killing a newborn would be repugnant to any society, yet Sparta (a civilization that's recently become celebrated again in pop culture, particularly by conservatives) killed babies that were deemed unworthy of an expenditure of resources to raise them to adulthood.
Presumably things that are socially developed are themselves developed out of our nature as shaped by ultimately biological adaptation, right?
Then how does it occur that people who live in otherwise similar environments develop different social norms?