affiliated to the International Association of Constitutional Law
Given the growth of work in psychological explanations of law in many fields, a book by a Dutch scholar, Hendrik Gommer, A Biological Theory of Law: Natural Law Theory Revisited is of particular interest. Gommer’s thesis is based on the fact that there are links between the properties in genes and basic notions in law. Genes are stable, can replicate, and require nutrients, reciprocity and room to grow. The same is true of individuals and of groups. Just as genes cooperate, so individuals in society cooperate. The genetic structures of our brains contribute to the development of emotions, morals, rules, and eventually, in large communities, laws. Those laws optimise the reproduction of the genes of members of the community whose laws they are.
The applicability of this approach is obvious in many areas of law, notably family law and criminal law, in which much work is already being done. But it is also applicable in public or constitutional law, where it opens up scope for much new research. Liberal democracies protect the interests of the public group or community, balance them with those of individual members, and meet the natural concerns of individuals for justice, both for themselves and their kin and for other members of their community. Because we need to cooperate with others in order to reproduce successfully – that is why we are social animals – our brains enable us to do so – by means of emotion. We develop rules, which may or may not be explicit and formal, to facilitate cooperation and to deter uncooperative behaviour. These rules may be experienced by individuals as ‘normative’ and ‘ethical’ but this experience, and the anger that is generated by breaches of them – by untrustworthy behaviour, cheating, free riding – are genetically rooted, emotional, fitness promoting: the products of evolution. Recognition of this fact helps to explain and understand rules.
The relevance of this approach for public lawyers and legal theorists is illustrated by the following passage in A Biological Theory of Law (at p. 108).
‘Only states in which the interests of individual citizens are in balance with group interests will be stable sufficiently. If the state suppresses too much the interests of individual citizens, it undermines itself. From the standpoint of this theory, it is largely irrelevant whether the laws are realized democratically. The point is that the law is in the interest of (the largest possible part of) the public, and that free-rider behaviour at all levels is prevented as much as possible. An oligarchy suffices, but needs to be checked if defending the interests of citizens. Otherwise, oligarchs will be tempted by free rider behaviour. Whether this control is carried out by direct election, or for example, by judges who guard the interests of citizens, is of less importance. However, it is clear that the more ‘checks’, the smaller the chance of free rider behaviour, and the more ‘balances’. From this perspective, it is not a dogmatic separation of powers, but control and sanctions for those who abuse their power that are important.’
The most difficult part of Gommer’s thesis to understand is the introductory, scientific material on the fractal structures of molecules and genes. A fractal is a large structure which has the same structure as its micro-scale version. Gommer uses fern leaves to illustrate his point. The fractals in our genes, Gommer suggests, generate social structures. Gene interaction does not only generate individual persons, it also creates a community of individuals, which can be thought of as a single creature as well as a collection of individuals. Our thoughts too are part of a fractal generated by our genes which can be recognised, for instance, in the system of law.
Despite its novelty and complexity the scientific basis for the thesis is clearly explained and, I find, convincing.
Thus biology is about the centrality of genes rather than of individuals. This is one of the most important insights offered by biology and evolutionary theory. Whereas legal and moral theorists have sought to explain law in terms of the centrality of the individual, the drivers – Gommer uses the term ‘generators’ – that predispose people towards particular behaviour are our genes.
Gommer argues that although many philosophers of law and even sociobiologists are reluctant to agree that norms can be justified by biological mechanisms and prefer to think of them only as ‘out there’ in a non-material world, a world of reason or of God, recognition of the biological aspects to law – that law finds its cause in nature – is necessary if we are to take a major step forward in the integration of biology, psychology, sociology, anthropology and law. The thesis amounts to a new ‘natural law’ theory, the natural element being molecular and genetic. This is not to deny the significance of the content of what natural law exponents may consider to be ‘out there’ theory, only to draw attention to its ‘in here’ roots in innate human psychology which can enable us to understand human behaviour, morals and laws.
Having summarised the scientific basis for his thesis, Gommer takes the subject forward by engaging with much of the economic and philosophical literature on law, morality, justice, democracy. He challenges for instance the assumptions of economists that human behaviour is essentially rational. He stresses the importance of emotion to human behaviour. He considers how the theories of Aquinas, Bentham, Cicero, Descartes, Durkheim, Dworkin, Grotius, Hart, Hobbes, Hume, Kelsen, Locke, McIntyre, Mill, Moore, Rousseau, Westerman and others stand up to a biological analysis of law, and he shows where their thinking does not tally with biological and other evidence about human nature.
In the epilogue Gommer engages eloquently with critics of his approach, including those who worry that a biological approach reduces all beautiful feelings, thoughts and creations to ‘a heap of molecules’ and denies the importance of God. He rejects this. ‘If we feel love, love is as real as these molecules. A beautiful picture will stay a beautiful picture’. Much religious teaching, he states, is fully in accordance with biological theory. For instance ‘Religion and biology are all about the essence of our existence, about how we can find happiness, peace, cooperation, and justice. Religion is a way to expand the in-group, and it enhances our reproduction.’
The focus on the in-group throughout the book is illuminating: for instance, much anti-social behaviour is due to the fact that those affected by it are considered by the perpetrators to be out-group members – and the victims of anti-social behaviour may respond in kind by treating the perpetrators as ‘out-group’: this is a form of ‘tit for tat’ response which can, in a small community, be effective in bringing the ‘wrong doer’ back into cooperation; but it may be less effective in large populations.
Gommer shows that biology explains a lot of laws in all kinds of states. He notes that authoritarian legal systems and states will lack stability because of the senses of injustice and resentment of free-riding by rulers that will be generated among their populations. Life in a group always requires individual sacrifice, and a ruler who does not make any sacrifice for the group does not consider himself to be a member of it. His ‘subjects’ will also probably not consider him to be a member of their group, or else they consider him to a delinquent member – a cheat or free rider in the group. A system in which the rulers are part of and rule in the interests of the people is more likely to be stable and its members and their genes are more likely to reproduce successfully in the long run.
It is clear that biology is not the only direct driver of rules. Culture also does so. We are biologically capable of developing culture: our genes generate brain structures that enhance imitation and memory, both essential to the transmission of cultures. Thus there are also biological influences in cultures. But some cultures, seen from outside, do not appear to be adaptive: they do not promote the successful replication of genes through sociality. Some cultures are remnants of earlier periods when economic, environmental and other conditions were different and in which they may have been adaptive; they may be less so in changed conditions. Some cultures may be adaptive in the minds of those who follow them but not to outsiders. Suicide bombing is an example: if a suicide bomber believes that his reward for martyrdom will be access to seventy-two virgins in paradise, the belief is clearly extremely adaptive. If a suicide bomber believes that his kin will benefit if he is a martyr, that also is adaptive. Both beliefs if true would ensure the replication of his genes. To outside observers who do not share these beliefs the traditions are obviously not fitness promoting.
Legal systems that are considered to be immoral, illiberal, unjust by the outside commentator may be well designed to promote the interests of the ruler’s group – the people whom s/he considers to belong to his or her community – and may well do so very effectively. One-party states, where laws promote the interests of the party group and not of the whole population, provide an example.
This in-group out-group consciousness – which is inherent in all of us and may well be adaptive in some situations – is, it seems to me, the crucial factor which can explain how many very different legal systems function and why some do not adopt the ‘out there’ standards which many moral philosophers and legal theorists argue for and which may in fact be ‘in there’ for those who see all or most fellow humans as part of their group. In a broadly liberal democracy the elites and the general population consider that virtually all members of the population ‘belong’. Indeed, the prevalence of that attitude is, in my view, essential to and a precondition for the effective operation of a liberal democratic system and a peaceful society. A sense that certain people – e.g. women, immigrants, adherents to strange religions and ideologies – do not ‘belong’ explains much discrimination and it also weakens the system itself. A topic that cries out for further research is just why some individuals in some populations consider all members of the population to ‘belong’ and why in some populations that is not the case. It may well reflect senses of insecurity within sub-groups in the population – forming negative stereotypes of ‘others’ serves to reinforce group solidarity. It may be a hangover from earlier conditions, economic, environmental, health related, whatever, in which segments of a population acted adaptively – in the interests of the successful reproduction of members of their group – in discriminating against others and sub groups within the population. If – but only if – the whole of the population of the world came to consider that they all belonged to the same significant group would there be no more injustice, discrimination, tyranny. Gommer explores this possibility in a visionary part of the book.
I write as a humanist: an important point about Christianity, at least in its more liberal interpretations, is that in the minds of its adherents all human beings, whether Christians or not, do indeed belong to the one group of which God is the Father and Christ a brother – that is the species Homo Sapiens. This is what the Good Samaritan parable is about. The use of kinship terminology in Christianity may foster a sense that all humans are genetically related and should cooperate with one another in order to promote the replication of the genes that they, as kin, share. But not all religions or all Christian sects are so inclusive: in a diverse population whose members adhere to religions that do not consider all humans to ‘belong’ and actively subscribe to that element of their faith, this may be an obstacle to the development of liberal democracy, indeed to a world order free of injustice and tyranny. In a population in which there is broad acceptance that all human beings living in the territory belong to the same group – Homo Sapiens, British, American, whatever – the tenets of classical liberal democracy should be able to operate on the ground. It is when that sense of common group or community membership is absent that liberal democratic standards are unlikely to work. I find the insight from biological sciences, anthropology and other psychological disciplines, that in-group out-group dimensions exist and affect the attitudes of members of the elites and of the general public, and thus the content of laws, extremely illuminating: it provides at least a partial explanation of some of the factors which affect the functioning of liberal democratic systems.
No doubt many traditional legal and moral theorists – and many religious people- will find this book disturbing, reductionist and challenging. Many will question the positive contributions of religion to happiness, peace, cooperation and justice. These are not reasons not to read the book. It provides many important and intelligent insights into law and human behaviour.
Gommer does not engage with all the issues raised by biological explanations of law: he does not deal with free-will, determinism and criminal responsibility, for instance. But the instinct of individuals and groups to ostracise or punish people for anti-social behaviour is strong and, at least when it evolved, it served to uphold the social order on which we all depend. Whether it continues to do so in modern conditions is a subject worth exploring. I do not consider the omission of these topics to be a criticism of the book, however: the work is an introduction to the biology of law and opens up many areas for research by specialists.
It is difficult to do justice to Gommer’s thesis and to the literature with which he engages in this short paper. But it is clear that biological and psychological approaches are at the new cutting edges of public law scholarship and of legal theory: Some public law scholars in the UK are currently pursuing biological and psychological approaches. They include Nick Barber in The Constitutional State (2010) in which he sees the state as a social institution, and Conor Gearty in ‘Against Judicial Enforcement’ in Conor Gearty and Virginia Mantouvalou, eds, Debating Social Rights (2011) in which human rights are seen as based on human predispositions to empathise with others. More public lawyers and legal theorists should work in this area. For those who are looking for a change from what are sometimes to my mind rather sterile, even mystifying, debates about what are conceived to be ‘out there’ values such as democracy, sovereignty, rights, justice, rationality and the rule of law, here is a fertile new ‘in here’ approach which casts those ostensibly ‘out there’ values in a new and less mysterious light. Gommer’s book would be a very good place to begin.
Dawn Oliver is Emeritus Professor of Constitutional Law at University College London.