As several commentators have noted, one of the most provocative aspects of Normative Jurisprudence is Robin West’s willingness to take a fresh look at the history of natural law theorizing and to identify valuable insights from that tradition that could be used to promote a “progressive natural law jurisprudence.” Robin distinguishes two natural law traditions: (1) an ethical natural law movement (“natural law ethics”), which is focused on the common good and its relation to human nature; and (2) a jurisprudential natural law movement (“natural law jurisprudence”), which is focused on the connection between law and morality, and in particular on the meaning of the maxim, lex iniusta non est lex (“an unjust law is not a law”).
Robin’s primary objective is to focus renewed attention on natural law ethics and its orientation toward the common good. She makes a strong case that legal theory has suffered by failing to take seriously the content of the common good that just laws should promote and its relation to intrinsic human needs, capabilities, and aspirations—all topics to which natural law ethics has made notable contributions. In one of many eloquent passages, Robin writes that “the antipathy of liberal and progressive lawyers to natural law ethics is a sturdy stool that rests on three legs. The first is liberalism’s commitment to state neutrality toward the good and the good life. The second is contemporary neo-natural lawyers’ embrace of an illiberal understanding of sexuality and simultaneous insistence on a reflective method that defies ordinary forms of rebuttal. The third is progressive disdain for any and all debate regarding human nature, and inferences regarding the content of need, and the content of basic human goods that might be drawn from a tentatively held description.” As Robin concludes, none of these seems like a good reason “for neglecting the development of a progressive or liberal interpretation of natural law claims” (50).
I am inclined to agree with Robin on all these points, in particular her criticism of the absurdly repressive sexual morality espoused by some prominent neo-natural lawyers. In this post, I would like to take her incisive analysis one step further by highlighting a third, related movement in the natural law tradition, which also is central to that tradition, yet which also has not received adequate attention from legal scholars, although this may be starting to change. Adapting Robin’s terminology, one might call it the psychological natural law movement (or “natural law psychology”). In what follows, I will briefly sketch one of the most influential historical arguments for natural law psychology. I will then offer a few tentative thoughts about how it might bear on aspects of Robin’s project.
Broadly speaking, natural law psychology is a theory of human nature that holds that human beings possess an inherent sociability, natural moral sentiments, and innate powers of moral discernment. Put in these terms, the theory is capacious enough to encompass a wide range of thinkers, including Aristotle, Aquinas, Grotius, Kant, the moral sense theorists of the Scottish Enlightenment, the “founding fathers,” and early feminist writers, such as Mary Wollstonecraft. Here, my focus will be elucidating one of the theory’s classical expressions in antiquity, which can be found in Plato’s Meno. In that dialogue, Socrates seeks to convince a skeptical Meno that an untutored slave boy knows principles of geometry and ethics, even though he has never been taught these subjects. Socrates does this by asking a series of probative questions designed to elicit the boy’s innate knowledge of geometry. Socrates succeeds in this endeavor and convinces Meno that the boy possesses many true thoughts and common notions that only need to be awakened and raised to conscious awareness. The “Socratic method” as it is sometimes deployed in law schools to degrade or humiliate students, or to make them feel less confident in their abilities, is thus arguably a perversion of Socrates’ own method, which was designed (or at least can be plausibly interpreted) to demonstrate how naturally capable human beings are, even those who have received little or no formal education.
Although it is tempting to dismiss it as far-fetched or antiquated, Plato’s argument from the “poverty of the stimulus” in the Meno is, in fact, one of the most powerful and enduring philosophical arguments of all time. With only minor modifications, it remains one of the dominant paradigms in the contemporary cognitive sciences, whose central problem is often a reformulation of Plato’s question: “how does the human mind get so much from so little?” Plato’s specific answer—recollection from another life—has long since been discarded and replaced with more credible alternatives, rooted in evolution, genetics, and complex organism-environment interactions. Nonetheless, at a certain level of abstraction, scientists have not progressed much farther in their basic grasp of how learning and development occur in each individual.
For example, in the seventeenth century Descartes demolished the neoscholastic theory of vision by arguing, in a Platonic vein, that human beings were “natural geometers” who managed the difficult task of depth perception by relying on unconscious geometrical computations. Today, many leading psychologists, such as Susan Carey, Alison Gopnik, Kiley Hamlin, Amanda Woodward, Karen Wynn, Fei Xu, and one of my own mentors, Elizabeth Spelke, continue to conceive of the basic problem of cognitive development across a variety of domains in essentially similar terms. The central challenge is to explain the “massive mismatch” between the rich outputs of the mind and the sparse and ambiguous information available through the senses. Generally speaking, the best answers rely on some theory of natural cognitive endowment (whether called core knowledge, inductive biases, Bayesian priors, or something else) to explain how the mind draws these inferences.
Even on this limited basis alone, then, Robin seems correct to insist that progressive legal scholars should stop ignoring the concept of human nature or pretending it does not exist. Instead, they should consider rolling up their sleeves and engaging with the modern scientific literature on human nature, including, by parity of reasoning, research on intrinsic human moral capabilities, sentiments, values, and needs. For these and other reasons, Robin also seems correct to criticize the dominant pattern of liberal and positivist jurisprudence that embraces a conception of human nature that is “individualistic, atomistic, differentiated, and so lacking in common attributes as to defy attempts to describe it” (42). This criticism can be framed in the terms Robin employs so effectively in Normative Jurisprudence, but it also can be broadened to include the modern legal academy’s general neglect of the natural sociability, altruism, empathy, and moral powers that lay at the heart of natural law psychology.