In 2003, law professor Hugh Gibbons and attorney Nicholas Skinner wrote an article called “The Biological Basis of Human Rights” after a more than 30 year philosophical journey to find the origin of their field. They had noticed that the idea of justice appears in every society and seems to be universal — for example, an unprovoked attack is always wrong everywhere — and decided to see if they could find the biological basis for this phenomenon.
They begin at Descartes’ proposition, “I think therefore I am,” to conclude the existence of consciousness. They would say our mind clearly exists, from Descartes proposition, and our brain clearly exists from science. The relationship between the two is what Gibbons and Skinner use as the biological basis for consciousness.
They do so with the caveat that, if it turns out that we find something else is the biological basis for a mind, then that would be the foundation of this argument. However, they have the assumption from Descartes that, if there is such a thing as biological things, there would be a biological basis for consciousness, something which ties it to physical reality, because the life of thought exists.
They summarize this argument into their first point, “Brains cause minds.” The existence of the brain is the cause for the existence of a mind.
According to Gibbons and Skinner, “Possessing a brain that has the potential to cause mind is a necessary, but not sufficient, condition for legal personhood.” In other words, it is not necessarily true that all animal species with brains have minds sufficient to apply.
Instead they define this consciousness as having a mind able to experience how it is responsible for causing change with its actions. Your brain is the biological basis for your sentient mind, for the understanding the impact you have on the world.
This brings them to their second point, “Minds cause wills.” Minds can cause changes in the world. The mind imagines the world differently, acts on those imaginations, and experiences the act of producing those imaginations in reality.
Gibbons and Skinner define “will” as the experience of being the one who is acting. In other words, if you are being acted upon, the experience of responsibility will not be present. In a world where mind control exists, if you are mind controlled you would not feel the responsibility of your actions. Without the feeling of responsibility, you would not have had a will which causes those actions.
Elsewhere Gibbons explains, “Until animals can speak for themselves regarding their experience of the sense of responsibility, humans will have to speak on behalf of animals.” He leaves open the possibility that they have such sentience, but, for the ease of argument, proceeds with the assumption that this sentience, experience of responsibility, is unique to humans.
When we are acting, there is the will, but “when we are being acted upon the experience of causing (the will itself) is absent.”
The will holds the source of an individual’s actions. The source of a person’s actions is not an abstraction of his actions. The will of a person is not fabricated after the fact to justify why something occurs.
Instead, a person formulating a desire and undertaking actions to make that desire happen causes the actions to come to pass. Your will makes actions happen and, with that, you become responsible for those actions.
When your will does not cause those actions, you do not have responsibility.
Thus, they conclude, “Wills cause undertakings,” where undertaking means “a purposive action intended to produce change in the world.”
When you have a sentient mind, aware of your ability to change the world, and you have a will, the desire to and experience of changing the world, you have undertakings, the desired and actualized actions you take in the process of changing the world.
Gibbons and Skinner clarify that, “From a biological perspective, all undertakings are the same.” All undertakings “are simply an effort by a person or by a group of people to change the world from one configuration to another.”
Gibbons and Skinner use the word “flat” to describe this equality. “All undertakings are ‘flat,'” they say, meaning all undertakings regardless of their justification – be it individual or federal – are equal in the eyes of nature. The undertakings of a policeman and a farmer should both be judged in the same way, because undertakings are flat.
Undertakings are caused by the will, the experience of your responsibility for actions. As a result, undertakings are “the smallest unit of willed action to which legal responsibility can attach.” All legal arguments find at their heart of conduct an evaluation of undertakings.
Gibbons and Skinner next argue, “Undertakings cause risks.” The risk that some undertakings carry with them is the risk of “a reduction in the victim’s ability to pursue his or her purposes, a reduction in the range and vitality of that person’s will.”
In legal language, they call this “a diminution in the person’s freedom” or “dimming their prospects.” It means that ways that one individual changes the world may take away or limit the ability of another person to change the world.
Another way Gibbons and Skinner say this is “our actions change the conditions under which others are pursuing their own ends.” Some undertakings benefit others and some detriment others. In both, the mind with the will that caused the undertaking has responsibility.
That’s why next, Gibbons and Skinner claim, “Risks cause duties.”
There are two facts they build this claim off of: one of social biology and the other purely factual.
The first fact is that we are a willed species that can use willed actions to diminish the will of another, but that we, and all vertebrate species, have “some level of cooperative interaction.” We vertebrates have “excitatory processes that… ready to fight and kill… matched with inhibitory processes that suppress the impulse to use those powers on members of the same species.” We seem to biologically want to not harm our own kind.
In another paper called “Of Humans and Squirrels,” Gibbons expands this idea. He explains watching squirrels on his back deck gather up scattered peanuts. Each squirrel is careful to pause and evaluate if going for the peanut in his sights will provoke a fight with another squirrel. They misjudge sometimes but are clearly trying to minimize the cost while still satisfying their desire for a peanut. They are “rational” and “other-regarding.” Gibbons concludes from this:
Homo economicus, the economist’s model of the rational actor, is sometimes regarded as a mad dog of self-interest, the mindless consumer who is intent upon getting his own way at any cost. But Scuirus economicus, the rational squirrel, makes it clear that rationality requires that an actor be other-regarding. Other members of the same species are an omnipresent source of potential costs. Any purposive actor must take their responses into account in order to achieve its own purposes most effectively. Being other-regarding, to put it crassly, is good for business.
However, just because the squirrels are trying not to fight doesn’t mean that they have a duty not to fight. As Gibbons says, “It appears that while the process of acting with care for others is an irreducible part of purposive action, the duty of care and its correlative right are not.” The squirrels can act with care without having a duty for it.
However, biologists find the human biological basis for duty in “the emotional processes underlying the human response to the breach of duty.” Gibbons retells the story of 18th century French physician Jean Itard and the feral child he found. Apparently, the feral child showed anger in response to unfair punishment, even though he did not have any language.
Gibbons concludes, “It appears that the emotional response to the breach of a duty, or to the breach of an expectation, is pre-linguistic, suggesting that the sense of justice is, at a basic level, universal among humans and not culture dependent.”
In “The Biological Basis of Human Rights,” Gibbons and Skinner say on this topic, “even the most hardened violators may act with respect toward some others — their friends, family, association, ethnic group — suggesting that the impulse [of respect] is at work, but the range of those who are entitled to respect is constrained. In fact, the history of law and nations is the history of the slow opening in the category of those who are entitled to respect.”
Thus, this first fact of social biology is that not only do humans tend to cooperate with one another, they seem to both have a universal sense of justice and duty as well as a definition of who is entitled to respect that only grows as the species evolves.
Their second fact is that there is “no durable basis upon which to prefer the will of one person over the will of another.”
In the same way that undertakings are “flat,” wills are “flat.” Each person has one will and no one person is more worthy of having their will done. Gibbons and Skinner explain:
This is the sense in which all men are created equal. Every person has purposes and each person has nothing more than the ability to act to bring about those purposes. We may characterize some purposes as more lofty than others, or more clever, useful, or entertaining, but that does not alter the irreducible unity of will itself in each person. These truths are self-evident.
Because there is no natural or biological basis to judge which will is the most important, all wills must be held equally important. There is no biological basis to choose one will over the others.
So because we have a natural, biologically given sense of duty and there is no basis by which we can prefer some over others, we are biologically built to give respect to our species and have no natural basis to exclude some set of people from that definition.
Thus, Gibbons and Skinner claim that duties emerge from this proposition: “You must act with respect for the will of others because there is no basis upon which you can prefer your own will over the will of another person.”
With no biological basis to choose one over the other, if we were not guided by some sense of cooperation, it would be the impulse of our will to bring about the processes we want regardless of our harm to others. However, it is built into us, as rational beings just like the squirrels, to be other-regarding.
We are biologically driven to care about respecting others. This is the sign that there is a biological basis for duty.
Gibbons and Skinner go on to define duty. They say, “Duties come into existence only when one commences an undertaking that exposes another to risk.”
In other words, I have a duty to you only when I am “engaged in an undertaking that might serve to diminish your will.” If my undertakings were not accompanied by risk, I would not have duty. However since undertakings cause risk, many of my actions are colored by duty.
Gibbons and Skinner summarize this idea saying, “duties constrain both the purposes that the person may pursue (harming others is unacceptable) and the means that she may use to achieve ends that don’t dim the prospects of others (stealing the money to pay law school tuition is likewise unacceptable).”
Thus, they say that, “the primary duty is foresight,” because each person much know the effect her actions will have upon others prior to acting in order to further know what duties are due to those around her.
Gibbons and Skinner then define three approximations of implicit duties.
First, they say that “the will of each person is entitled to respect.” This is what they’ve been saying all along: that the autonomy of every other person must be respected by avoiding the dimming other people’s prospects.
Second, they add the principle of cooperation. By this, they mean that if the autonomy of another is risked by your actions, you must “gain the willing acquiescence” or consent of those people. They go on to talk about the power of consent for managing responsibility in situations of risk. For example, the violence of football would be considered serious crimes if it were done without the consent and cooperation of the players.
As Gibbons and Skinner says, “Within the context of our willing acquiescence we can agree ex ante to assume [the responsibility for] the risk for any injuries we may suffer as the result of another player’s actions, if they are incurred within the bounds of the agreement.” Now, even in football there are the ideas of felonies in order to mandate the duty of respect still be met as well as the third duty, which we haven’t explained yet, of care.
If the people whose autonomy may be risked by your actions cannot be identified or their permission is not gained, then you must fall back on the duty of respect and the third principle, the duty of care. This third case is the idea that you have a duty to act with “due care for their well-being.” This is for the case where, although you cannot get their permission, the risk to their autonomy may be able to be largely avoided if your action is undertaken with care. Although, like the squirrels, you may misjudge your actions, you still have a duty to proceed with care for them and caution.
Then, finally, Gibbons and Skinner conclude, “Duties cause rights.” They explain:
Rights emerge from the breach of duties. The person who strikes another with a stick has breached the duty of due care, unless that person had first breached the duty of due care owed him by, for example, threatening to stab him with a knife. The initial breach of duty creates a right in the person threatened. The right created relaxes the duty of care and the duty to gain willing acquiescence. Where the right is created, it empowers the one in whom it lies to use coercion to redress the violation.
…The “right” that is created by the breach is nothing more than the right to use coercion to redress the wrong. Those who have the right to use coercion are, to that extent, “sovereign.” We find it useful to think of the breach of a duty as creating sovereignty in the victim that allows a use of coercion to an extent proportional to the wrong.
Thus, in Gibbons and Skinner’s argument, you have a duty to respect the autonomy of other people and either gain their consent and cooperation to your actions or undertake actions with care.
If you violate another’s autonomy without gaining their consent, you give them the right to violate your autonomy in order to protect their own autonomy. This is a view of human rights solely defined by our autonomous freedom to act combined with our duty to respect the autonomy of others. Failure to respect results in the right of others to deal a fair punishment.
Gibbons and Skinner explain the value of this view of human rights, saying:
The biological view also has far less trouble accounting for the emergence of new rights than the conventional view. Human rights emerge automatically from the breach of duties; whatever the breach, a correlative right springs into existence to redress it.
…As you undertake an action you must act with respect for others. That duty applies to any human actor at any time, to the postal worker backing up his truck, to the designer of a time travel machine, to those who evaluate new drug tests for the FDA, to all. Rights are simply whatever is needed to address a breach by any actor of the universal duty that applies to willed actors.
Their final conclusion is that “Rights cause laws.” The laws that we put in place are just trying to enumerate scenarios where the duty of respect, consent, or care are violated and what actions are permissible while still respecting the autonomy of the perpetrator.
Gibbons and Skinner note that “Rights-based rules often have the quality of being discovered rather than invented,” because scenarios arise where we realize a duty has been violated. They conclude:
Human rights do not emerge as a result of constitutional amendments and legislative enactments, or what the courts or God say they are. Rather, they emerge as a result of things we do. What we do are actions produced by the mind. The conscious state that causes actions — the experience of acting or the experience of causation — is called the will. …Our will is the source of our undertakings. Undertakings are biological processes that emerge as the human mind reshapes the world to satisfy desires it is experiencing.
However, these biological processes cause risks, risks that may undermine someone else’s will or diminish his freedom. But to survive, humans must act anyway. As they do so they have a duty to gain the willing acquiescence of those who will be affected by their actions or, if it is not possible to do that, to act with due care. Failure to conform to that duty creates rights in those who are thereby put at risk. The person who creates rights in others acts outside of the justified realm of human freedom. Within the set of that person’s anticipated actions—that is, within that person’s experience of freedom — lie actions which create human rights and are therefore not justified biologically. They are actions that, if undertaken, will diminish the will of another human. This is the biological basis of a legal “wrong.”
Therefore, law that emerges to enforce human rights arises according to the seven causal steps we have outlined.
More of the relevant work of Hugh Gibbons and Nicholas Skinner can be found at BiologyOfLaw.org. They have some very interesting papers, including the two papers referenced in this article: “The Biological Basis of Human Rights” and “Of Humans and Squirrels.”
David John Marotta and I wrote a companion article to this one called “Natural Rights: Is the Only Moral Code Legal Entitlement?” which I encourage you to read.
Photo used here under Flickr creative commons.