Iraqi prisoner abuse: How strong is the impulse underlying law?
Hugh Gibbons

If, as the theory of law set out in this site argues, law is an emergent feature of human biology, how are we to account for the abusive behavior of so many American soldiers in Iraq ? They are biological entities; why wasn't the justice impulse—the imperative to treat others with respect—at work?


It's tempting to say that they were psychopaths, that they simply lacked the biological equipment necessary to act with due care toward others. But that is clearly nonsense. These soldiers strike one as remarkably ordinary. They were out for a good time; most of what we see looks like fraternity initiation gone horribly bad. And the photos—memorializing a good time to impress friends and family. If there is a biological impulse to act with care, where was at the time of this abuse?


Humans are clearly populated with many biologically-based impulses and imperatives. Most pervasive is the need to act. Without any objective in mind, people act just to act. And they act to implement any number of impulses—to eat, to drink, to reproduce, to gain status, to have good stories to tell. All of these impulses can compete with each other, as the classic illustration of the donkey starving to death when placed midway between two bales of hay points out. For these soldiers, on those days, the other imperatives apparently overwhelmed the impulse to act with care and respect that ordinarily typified them.


But it isn't simply a matter of one impulse vying with another. The impulse to act with care is different from the others in the same way that the moral and prosocial impulses are different. The imperative to act animates behavior. The imperative to use care constrains behavior, it limits behavior to a narrow set of paths. One could, for example, satisfy himself by eating either his own lunch or eating his neighbor's lunch. But his neighbor's lunch is off bounds, so far off bounds that most people, most of the time, never consider eating someone else's lunch. Change the context, however, take away the person's own lunch and make starvation a real possibility, and the impulse to act with care is likely to be overwhelmed by the desire to eat.


Something like that is clearly what went on in Iraq . Was it the lack of supervision that let the cruel impulses run free? But if they required supervision to act with respect, then the impulse to respect the prisoners as other human beings was already dangerously weak. That impulse should exist whether or not someone is looking and whether or not one is afraid that one's transgressions will be observed. If the soldiers would misbehave unless supervised, their impulse to respect others is essentially non-existent. They act fine at home, perhaps, because they are afraid of the consequences. But when the consequences are attenuated, they are free of any impulse to act with care.


There is no necessary reason that any biological process must prosper. It prospers only in the presence of an environment that turns it on and supports it. The simple fact that our sense of justice is based in our biology should lead to no assumption that all is well. If it does not find a supportive environment it will not emerge. That is precisely what it didn't do in those Iraqi prisons.