In America, a thoughtful parent must understand the foundation of ethics and morals to teach children. Similarly, in answering ethical and moral questions from medical students, residents, and patients over more than forty years as an academic physician and scientist, I have had to know ethical foundational principles.
Before coming to the essence of the discussion, I wish to emphasize that humankind’s behavior is mixed: it is sometimes good and sometimes dreadful. For example, according to psychologists such as David Stamos in his eye-opening article “The Philosophical Significance of Psychopaths” (Free Inquiry, August/September 2011), at least 1 percent of humans are psychopaths, and as many as 10 percent have such tendencies. Consequently, it is clear, as pointed out by Hobbes, Freud, modern psychologists, sociologists, and philosophers such as John Searle in Making the Social World (2010), that unless there are societal rules for behavior (and methods to enforce them), society will not function smoothly.
My own awakening about ethics and morals began when I was a senior in high school. I was troubled by academic cheating and petty theft. As I grew older, I was distressed by reading about cannibalism and even more so by interactions with a psychopath I knew. Then later still, when I was in the U.S. Army in Korea (1969), having learned the Korean language, I was surprised to find that in an Asian Neo-Confucian society, the notion of the Good Samaritan (altruism) was not esteemed. Finally, I was constantly troubled by end-of-life questions regarding my patients in relation to euthanasia and the issue of assisted suicide.
To answer such questions—what to do and why—I turned to books and my teachers at Harvard and Yale. I received little useful advice. In frustration, I turned to the smartest person I knew—my mother, a Doctor of Laws. She always had the same answer: “Turn to the law; start out with reading the Laws of Plato, the Nicomachean Ethics of Aristotle, the legalists of ancient China, then the comments of Jeremy Bentham on the law, and finally modern law.”
Before explaining her argument, I must first define ethics and morals and review what Harry Gensler, in his fine textbook Ethics (1998), calls “Hume’s Law.” Second, I will discuss several relevant and generally accepted facts about human nature. It is obvious that we must have some understanding of human nature as it is situated in our vast impersonal universe if we are to develop practical ethical and moral principles and rules. Third, I will briefly categorize the myriad (mainly Western) ethical and moral theories and emphasize some of their underlying assumptions. I do this because these theories are woven into the foundation of American ethics and law. To understand ethics and the law—and my argument—the reader must have some familiarity with these theories. Finally, I will then touch on the fairly solid foundation of ethics and morality in modern-day America.
Definitions and Hume’s Law
What do we mean by morality and ethics? For these definitions, I will rely heavily on Gensler and Bernard Williams, the greatest moral philosopher of the second half of the twentieth century, and his book Ethics and the Limits of Philosophy (1985). By “morality,” I mean the distinction between right and wrong behavior. This is often applied to a particular system of values and principles of conduct, especially one held by a specified society. Williams felt that the term morality has taken on a specific connotation in Western culture, emphasizing the notion of obligation. Gensler divided ethics into two parts: metaethics and normative ethics. Metaethics deals with the nature and methodology of moral judgments. Normative ethics deals with both normative theory (general moral principles) and applied ethics focusing on specific questions such as the issue of abortion.
David Hume, that great philosopher, pointed out that one cannot deduce an “ought” from an “is,” which Gensler termed Hume’s Law. In other words, we cannot develop “moral truths” from descriptive facts (how things are) alone. Through the years, many writers have tried to overcome Hume’s Law. One example is Michael Shermer, whose 2004 book, The Science of Good and Evil, made the case for the evolutionary development of morals and ethics as humans evolved from “social primates to moral primates.” He concludes that because that is how we evolved, that is how we should behave. E. O. Wilson made a similar case in his 1999 book, Consilience and more recently in The Social Conquest of Earth (2012). These efforts fail because they ignore Hume’s Law or are scientifically incorrect. To give one example, Shermer claims we evolved “as pair-bonded primates for whom monogamy, or at least serial monogamy, is the norm.” He also maintains that “evolutionary theory provides a deeper reason for adultery’s immoral nature that is transcendent because it belongs to the ‘species.’” However, Shermer ignores the rampant adultery by both men and women in America, as documented by psychologist Helen Fischer. In a 1993 article, Fischer pointed out that only 16 percent of 853 cultures on record prescribe monogamy; in other words, 84 percent of human societies permit a man to take more than one wife at a time. Fischer concluded by saying that “ancestral men who sought polygyny and ancestral women who acquiesced to harem life disproportionately survived”—the opposite of what Shermer contended. It is true that in America monogamy is encouraged; yet even here that ideal is not followed by a large minority. Moreover, in modern-day Islamic societies four wives are allowed! Even if Shermer were correct, the fact that humans “evolved” certain behaviors such as monogamy or cannibalism doesn’t make them moral. Hume’s Law is indefeasible, as noted by Gensler, Williams, and Derek Parfit in his 2011 book, On What Matters. These authors make an overwhelmingly convincing case for Hume’s Law.
Facts about Human Nature
I would like to focus on four generally accepted facts about human nature. First, individual humans are extremely variable in their qualities, their behavior (irrespective of their ethical systems), and the driving forces behind their behavior. Humans are born with intelligence varying from idiot to genius and with behavior from autistic to social, from psychopathic to hyper-conscientious, and from clumsy to unbelievably physically skillful. The notion of the “tiger mother” who can train her children to excel in anything if only they practice enough is not true. Moreover, there is a very strong tendency toward irrational or nonrational behavior and toward crime including murder. Thus, philosophical systems that assume that humans are similar and rational are not realistic. We now know that many, if not most, human behaviors are due to unconscious mechanisms, with the rational-dialectical conscious mind often being informed only after the behavioral decision has been made. Hume pointed this out centuries ago, namely, that reason is often the handmaiden of impulses, desires, and instincts. This knowledge is critical, because alhough “is” doesn’t entail “ought” (Hume’s Law), moral and ethical systems must work pragmatically; otherwise they are just utopian verbiage.
Second, humans generally seek to protect and provide for themselves and their families, an observation made by Confucius 2,500 years ago and updated more recently by Adam Smith and by modern psychologists and physiologists. For example, we now know that the important mother-child relationship depends on biological factors (such as the hormone oxytocin); it is not just a socially constructed phenomenon. However, as Hume and many others pointed out centuries ago, and Searle more recently, some behavior that is not in a person’s self-interest can be “socially constructed.”
Third, individual humans do not have the same value to society. This is true in all societies, whether it’s the alpha male in “primitive” societies or the neurosurgeon in modern America. In America we reward certain talents and accomplishments. Even John Rawls, the arch-leveler, agreed that those who contribute more in ways that benefit everyone are entitled to more societal rewards. On the other hand, as noted above, there are many unethical persons who cannot live within the law and yet still prosper.
Fourth, because of the three aspects of human nature and behavior noted above, society requires rules and regulations, including ethical rules. Moreover, notions of morality and ethics, no matter how well taught and indoctrinated, are not enough to maintain civil society. A system for the enforcement of the rules and regulations is required. This includes defined methods to assign blame when the rules are broken and appropriate actions including reeducation and, in some cases, incarceration.
Current Ethical Systems
In Table 1, following Gensler, I have noted three current popular metaethical systems. “Cultural relativism” argues that acceptable behavior is behavior that is culturally approved. “Subjectivism” suggests the individual actor should follow his or her feelings when deciding on behavior. “Ideal Observer Subjectivism” has been refined to suggest that we should only decide what to do after we are fully informed and have impartial concern for everyone. (Consistent with Ideal Observer Subjectivism, David Hume and others postulated that empathy was the metaethical basis for much of morality.
Table 1. Popular metaethical theories
- Cultural Relativism
A. Idealism (Ideal Observer)
Remarkably, in the last twenty years, neuroscientists have discovered “mirror neurons” in primates and humans that are the probable biological basis of human empathy, thus supporting Hume’s notion.) “Supernaturalism,” followed by billions of humans, teaches in many cases that morality and ethics come from the gods or the gods’ representative (think of Moses’s tablets). Besides being mythology—clearly, all the different religious systems cannot be simultaneously true—they founder in some cases on internal contradictions, such as the problem of theodicy for Christians.
In Table 2, I have noted several philosophical metaethical systems. “Intuitionists” such as G. E. Moore and W. D. Ross believe that we can find within ourselves self-evident “truths”: pleasure, knowledge, and virtue are intrinsically “good” and should guide behavior. However, Wilson in Consilience pejoratively calls intuitionists “transcendentalists,” because it is impossible to prove what is self-evident. Neuroscientists have not found a specific intuitive faculty in the brain. “Emotivists” see moral judgments as expressions of feelings, not as statements that are true or false. Finally, “Prescriptivists” suggest that human agents must employ similar evaluations in similar cases, so that “ought” judgments are best understood as universal prescriptions, not as truth claims.
Table 2. Philosophical metaethical theories
A. Self-evident truths (virtue, knowledge, pleasure, avoidance of suffering)
A. Feeling (e.g., empathy)
A. Similar evaluations about similar issues truths
B. Universal “ought” (golden rule)
Normative ethical principles are shown in Table 3. By “normative” I mean behavior that is usual, typical, or standard. The ancient Greeks believed that the four cardinal virtues (wisdom, courage, temperance, and justice) could be internalized and that they formed the basis of ethical behavior. Consequentialism is well known in multiple forms: the two most important are classical utilitarianism (maximize pleasure over pain for all affected by our actions) and rule utilitarianism (after evaluating consequences of specific behavior in terms of assumed goods—virtue, pleasure, knowledge, life, freedom—we should adopt rules with the best consequences for people in society to follow). Non-consequentialism suggests that we ought to do certain kinds of behaviors (for example, keep our promises, not lie, do “good,” and not harm others) irrespective of their consequences. This approach is known as “deontology.” Kant thought we must make no exceptions to moral rules, no matter what the consequences. Others (such as Ross) thought that there could be exceptions. Rawls taught that there are two key non-consequentialist principles: “Society ought to safeguard the greatest liberty for each person compatible with an equal liberty for all others,” and “Society ought to promote the equal distribution of wealth, except for inequalities that serve to benefit everyone (including the least advantaged groups), and are open to everyone on an equal basis.” Rawls is authoritatively discussed in Gensler’s book. Robert Nozick, in his 1974 book, Anarchy, State and Utopia, argued (contra Rawls) that one is entitled to what one honestly earns. In his 2010 book, The Idea of Justice, the Nobelist Amartya Sen viewed morality as those rules and customs that allow adequate human functioning (universal food, sanitation, education, vaccination). (See Samuel Freeman’s excellent 2010 review of Sen’s book.) Finally, there are radically different Asian views such as Confucianism, Theravada and Mahayana Buddhism, Hinduism, and so on, practiced by hundreds of millions of non-Westerners. Some of these beliefs are nearly incomprehensible in the West, including the notion of harmony prevailing over honesty and truth or the notion of “saving face,” even if it involves untrue statements. Or consider the Hindu notion that the reason for suffering and evil in the world is that such suffering afflicts people who were wicked or evil in a former life and must pay the price in this life—the notions of samsara (endless reincarnation) and karma (fate depending on behavior in a former life).
Table 3. Normative ethics
- Virtue Ethics
A. Classical utilitarianism
B. Rule utilitarianism
A. Duties e.g., fidelity, gratitude, justice, beneficence, self-improvement, non-malfeasance (deontology)
B. Distributive Justice (Rawls)
1. Equal liberty principle
2. Difference principle
C. Entitlement View (Nozick)
pability for Functioning (Sen)
E. Oriental Philosophies
1. Confucianism (Harmony)
2. Buddhism (Four Noble Truths and Eightfold Path)
In my case, when I understood the popular, philosophical metaethical, and normative ethical theories (tables 1, 2, and 3) and attempted to apply them, I found them of little help in my thinking about practical ethical problems (abortion, euthanasia) or worldly issues (targeted assassination, preemptive wars). I could often find justification for opposite courses of action in the current ethical theories.
E. O. Wilson and Bernard Williams came to a similar conclusion. They also concluded that Western ethical and moral philosophy as a search for the truth or for foundational principles has failed. Wilson suggested scientific investigation of human nature; alas, Williams offered no practical or philosophical solution.
In the last few years, several philosophers have tried to overcome Williams’s detailed 1985 critique. I will briefly discuss Searle, Derek Parfit, and W. V. O. Quine’s recent attempts. In his superb 2010 book, Searle points out that most human institutions are social creations, not simple consequences of innate faculties. However, he attempted to justify a few universal rights as self-evident even though “they are human creations.” Searle, like Williams, divides rights into positive rights (food, medical care) versus negative rights (free speech, religious freedom). The former entail major commitments from society; the latter do not. Surprisingly, Searle argues that the Universal Declarations of Human Rights, Article 25, which mandates positive human rights, is a “profoundly irresponsible document.” He maintains that this document mistakes “policies for basic human and universal rights.” Thus, Searle sharply disagrees with Rawls, Sen, and other non-consequentialists (Table 3). However, he then (notwithstanding his protestations) becomes an Intuitionist and strongly supports negative human rights, including free speech, privacy, property, and freedom of association.
Another attempt at answering Williams critique is Derek Parfit’s massive recent book, On What Matters. In it, Parfit tries to establish two separate theses. First, he attempts to take the “best” of consequentialism, non-consequentialism, and contractualism (Table 3) and combine them into a “triple theory.” He states, “An act is wrong when such acts are disallowed by some principle that is optimific, uniquely universally willable, and not reasonably rejectable.” Thus, his theory is “consequentialist because they would lead to the best results (optimific); Kantian because they are universally willable; and contractual since no person could reasonably reject them.” Second, Parfit tries to show that the doctrine entitled (nonnatural) cognitivism (which holds that moral judgments can be true or false) is correct and applicable. (See MacFarquhar’s first-class exposition and analysis of Parfit’s book.)
In my opinion, and those of his critics (in Parfit 2011, vol. 2) , Parfit fails in both attempts. First, his methods involve the use of reason (rationalism) alone. He never defines what he means by reason, but I believe in some contexts he means the power of the mind to think, understand, and form judgments by logical processes. In other places, he uses reason as a cause, justification, or explanation of an action. In still other places, he uses reason as what is right, practical, or possible. He assumes that to perform the right behavior we need a reason in the second sense above. That assumption is behind his entire series of arguments. Moreover, Parfit uses his commonsense feelings about what is right or wrong as a criterion for judging propositions. Thus, much of his “reasoning” is circular. Parfit also ignores human nature (discussed briefly above) and Hume’s correct assertion that in many, if not most, cases reason is just one instrument employed to carry out wishes, impulses, and instincts, which are the primary drivers of behavior. He also ignores the newer findings of neuroscience such as, once again, emerging work on mirror neurons. Second, Parfit, though he tries, cannot make the various normative theories compatible (Table 3), so his triple theory ultimately fails. For example, Parfit says that to cause suffering is always wrong (non-consequentialism). However, almost everyone would disagree with him. Miscreants are punished. In my field of clinical medicine, intense suffering is sometimes caused and accepted, for instance with curative cancer chemotherapy.
In terms of cognitivism, Parfit ignores Williams, Quine, Wittgenstein, and others (quoted in Parfit 2011, vol. 2) who argue that cognitivism and normative epistemology are wrong or incoherent. (Many—especially scientists, but not all observers—agree that “ought” statements cannot be true or false.) Parfit ignores the analytical philosophers’ and scientists’ view that the word true applies to factual (declarative) statements and must meet one or more of the three theories of truth: the correspondence, coherence, and pragmatic theories. (I have long maintained that in scientific matters, if a thesis satisfies all three, it is extremely likely to be true.) Finally, Parfit ultimately falls back on intuition, admitting it is hard to prove cognitivism (p. 542, vol. 2).
Although Parfit’s book is 1,400 pages, dense, and almost unreadable, I believe that he is pursuing a philosophical way forward as described below. Although Parfit’s theses ultimately fail, he is in a sense rediscovering what the American law discovered centuries ago: namely, that you need input from many metaethical viewpoints to design a sensible, practical system. It is not possible to make a single coherent philosophical system that “works.” (For another critical review of Parfit’s book, see Samuel Freeman’s 2012 essay “Why Be Good?”)
Like Wilson and Williams, Quine also recognized that philosophy alone cannot solve ethical and moral issues. He suggested naturalism and a turn toward psychology, a recommendation that is just beginning to pay off.
Finally, others have recently offered various perspectives and Prescriptivist exhortations. For example, the self-labeled secular humanist Paul Kurtz offers a series of “beliefs” in his “The Affirmations of Humanism: a Statement of Principles,” which is frequently republished in Free Inquiry. For example, he says “we believe in the cultivation of moral excellence,” and “there are normative standards we discover together.” Such pabulum is not helpful in teaching our youth, solving concrete moral problems, or helping us to understand complex metaethical notions.
Foundations of Morals and Ethics in America
Given the failure of philosophers and ethical thinkers to give us a coherent account of ethical principles and practice, where do we stand? First, we have learned, predominantly from science, that supernaturalism in all its guises is incorrect and is principally mythology and superstition. Supernaturalism is not a sound basis for ethics in a universe where nature is neutral and has no values per se and where human ethical systems are largely social constructs, as pointed out by Williams and especially Searle. (Wilson argues persuasively that we must also acknowledge some role for biological input.) Second, we have learned that a broad perspective is necessary to think about ethics and morals. The founders of the American legal and political systems (and indirectly the nation’s ethical system), including Jefferson, Monroe, and Franklin, were intimately knowledgeable about the history of Greece, Rome, and especially Europe. They understood the causes of the endless wars in Europe, including the negative role played by religion. So with this knowledge they set up the American system and included such insights as the prohibition of a state religion.
I submit that in America, we do have one solid, although quite imperfect, foundation for ethics and morals. It is the one pointed out by my mother: the law. Over two hundred years ago, Jeremy Bentham said: “Right, the substantive right, is the child of laws: from real laws come real rights, but from imaginary laws, from laws of nature, fancied and invented by poets, rhetoricians, and dealers in moral and ethical poisons, come imaginary rights, a bastard brood of monsters, ‘gorgons and Chimaeras dire’” (quoted by Searle).
In America, the legal system as developed by the Founding Fathers, the legislature, executive branch, and courts over several centuries has defined rights, often indirectly, and developed methods to assign blame. However, the American legal system does not separate out metaethics and normative ethics cleanly, as I do (following Gensler) in tables 1 to 3. The American system took the best features of the systems in tables 1 and 2 and the normative ethics in Table 3 and created a unified medley that generally functions effectively (see below). Although much of the law deals with the consequences of rule- (law-) breaking, including punishment, there is an extensive background for the rationale that underpins these rules. This background includes positions on how and when society can and should assign blame for acts that break its rules and laws. In doing this, the legal system takes into account the seriousness of the crime, the motivation of the miscreant, and the circumstances surrounding the crime. In some cases, the law emphasizes consequentialism, in others non-consequentialism, and in others still, contractualism. Punishments, although in my view often imperfect, are arranged so as to “fit the crime.” Matters not covered by the law can be decided by the citizen as he or she deems best, with the law frequently providing guidance. Another aspect of the beneficence of the law is that it often prevents crimes (rule consequentialism).
Let us consider an example: murder. In a general way, murder of “innocents” is prohibited by law and justified by all the current normative principles (Table 3). This is clear. But we need to teach our children more. As noted in American law, there are many types of murder. The law takes into account (assuming free will) the classic five aspects of responsibility for a murder: the situation, the cause of the murder, the intention of the “criminal,” the mental state and competence of the criminal, and the response of the murderer to the crime (regret, remorse, or their absence). In general, the law attempts to make the punishment fit the crime by taking the above factors into account. Moreover, American law takes into account aspects of human nature that the philosophers have overlooked, such as what to do with psychopaths, pedophiles, arsonists, and sadists who commit crimes. Often they are—and must be—treated differently. Even still, there remain certain ambiguities in the law. For example, does the government have the right to kill suspected terrorists with drone aircraft-launched missiles on mere suspicion without arrest and trial?
Take property. In the Declaration of Independence, Jefferson did not include property as a self-evident right. Nozick, Searle, and other non-consequentialists argue that property possession is an absolute right. Others argue that the state can take property when it sees fit. This argument was recently resolved when in Kelo v. City of New London (2005) the U.S. Supreme Court decided that the state could take private property for commercial development—a decision favoring consequentialist thinking.
Finally, it is worth noting that, in 1971, Justice Lewis Powell pointed out that “the judiciary may be the most important instrument for social, economic and political change,” a prescient prediction. It is also worth noting that the law does not explicitly define the Platonic “Good” (an impossible task, as pointed out by G. E. Moore), nor does the law make claims about “Truth.”
First, Americans who disagree with a law (or regulation) and the ethical notions in that law, can change the law, generally by political or judiciary action, if there is enough support for their position. To change the law often requires leadership, explanatory books, and most of all a clear, understandable, and positive program, not just rabble-rousing attacks. But change can be effected.
Second, in the American system, we should—and do—follow Hume’s Law. We do not routinely take what “is” and make it into an “ought.”
Third, we should—and do—steadily take advantage of our greatly expanded knowledge of biology and human nature to continuously upgrade and improve our ethical, moral, and legal systems and their foundational principles. The use of DNA identification is a good example. We should—and do—take cognizance of the incredible technological changes in society to upgrade and expand ethical principles, such as those concerned with privacy.
Fourth, American laws and regulations (and the ethics they assume or define) are a remarkable achievement. Humans of all colors, creeds, and abilities manage to live together in reasonable social harmony in America. But, in my view, the law currently needs much more work, a topic for another paper.
In America, since ethics are enshrined in the law, teaching the law should be an early step in educating the youth. Then there is a foundation for action in many specific situations. Even such difficult issues as abortion are covered by the law.
Implications for Secular Humanists
To make changes in ethics, morals, and the law, secular humanists must decide what needs to be changed. They must then agree on a program and methods to implement it—especially when changing the law is required, as in the case of abortion in the 1970s. Writing articles expressing opinions and outrage is not enough. I will give two examples where change should be made. It is clear that there is currently an excessive concentration of wealth in America. One reason for this is that executives of public companies are often rewarded with outrageous compensation. These large imbalances can be fixed by changing the rules for executive compensation and modifying the tax laws. We should apply consequentialist metaethical principles here. Second, we should pass laws to make bank executives individually responsible for reckless behavior. This is self-evident (Table 2). In short, American law is excellent but can be made better. There is no reason that secular humanists should not be in the vanguard of change with clear objectives, adequate funding, and effective organization.
Dedication and Acknowledgment
I would like to dedicate this paper to Ethel. E. Spector, Doctor of Laws, who died in 2009 at age ninety-three. I also thank Michiko Spector for her helpful criticism and aid in preparing the manuscript.
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