| 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.
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