Too stratospheric

Up there, in the clouds, where the air is very thin and cold, very clever people are writing what are presumably very clever things about very difficult subjects that are too limited for my comprehension, particularly after a day of drafting a chapter on justice and suppression orders for the chapter in Underbelly (Berg, forthcoming).

One example is Hendrik Gomme's 19 page 'The molecular concept of law' [PDF] in (2011) 7(2) Utrecht Law Review 141-159. 

Gomme indicates that -

In essence, my biological theory of law is based on fractal patterns. A fractal is 'a rough or fragmented geometric shape that can be split into parts, each of which is (at least approximately) a reduced-size copy of the whole'. Macroscale patterns mirror microscale patterns. This way of thinking is related to evolutionary theories. It recognizes evolutionary mechanisms. However, the actual type of natural selection does not affect the idea that properties of molecules can be recognized in human behaviour. By focusing on the fractal pattern, we can evade detailed biological discussions on exactly how natural selection takes place. That discussion would either bog us down or divert us from the main issue, which is the link between the properties of genes and basic notions in law. By recognizing fractal structures in our empiric reality, we can link very different levels and disciplines and subsequently jump from genes to emotions to law in a systematic manner.

He goes on to state -

Let us look at this idea of Hart's. If it is true that man desires to survive (to achieve stability), then it is also true (if not more so) that man desires to reproduce. This desire is caused by the generator that is programmed by genes. It is not the reproduction of the individual that is important, but that of its genes. In this perspective, then, paradoxically suicide can sometimes be an apt survival strategy. If an individual cannot go on, becomes a burden to the group and harms the reproduction of other individuals with a shared gene pool, they could ‘feel’ suicide is the least bad option. Again, survival is not man’s ultimate desire, but the spreading of his genes is. That desire is not the starting point; it is an emotion caused by a biological mechanism. In evolutionary terms, the property of genes to survive by replication makes us feel good when circumstances for proliferation are favourable. Emotion is the evolutionary calculator that makes an estimation of our reproductive chances. This is why Hart's truisms should be recalibrated. According to fractal theory, the desire to spread our genes is reflected in our thought structures. The human species has been evolutionarily successful thanks to its disposition to live in groups. By living in groups, people could find more food and defend themselves against other groups. For that reason, people will desire to live in groups and to spread their individual genes. Indeed, justice will evolve when these two factors are to be combined. People’s desires reflect the needs of their genes.

Lest he be accused of the mundane, Gomme explains -

I am not the first scholar to ponder the relationship between evolutionary biology and law. So what is new and significant? Firstly, the molecular concept of law bridges the gap between the ‘is’ and the ‘ought’, so that jurisprudence no longer has to be cut off from discoveries in empiric sciences. Like Hart, many philosophers of law presume there is a gap between biology (or animals) and reason (which humans have and animals have not). Because of this gap, there is also an unbridgeable gap between facts and norms. Facts originate from biology, norms stem from reason. Jan Koster, a philosopher of language, stated that the gap between ‘ought’ and ‘is’ makes it impossible to reduce ethics to biology. Cees Maris concluded that all empiricists agree that norms cannot be derived from facts. Alf Ross for example said: '[T]o build a doctrine of morality upon a purely empirical foundation must be an illusion'. Even well-known moral biologists like Frans de Waal and Morris Hoffman that do not accept a gap between biology and reason do not dare deny the gap between facts and norms. 'All that nature can offer is information, not prescription,' De Waal writes. 'The biggest philosophical barrier remains the naturalistic fallacy: [...] we should always be aware of Hume's command never to confuse the is with the ought,' writes Hoffman in his paper on law and biology. However, without bridging the gap between the 'is' and the 'ought' a true natural law theory is not feasible. And that is exactly what the molecular concept does, as I explain more fully in 'The Resurrection of Natural Law Theory'.

Secondly, in my theory I derive prescriptions from descriptions gradually. This derivation meets the objections raised by David Hume as he considered the is/ought problem as well as G.E. Moore’s objections to the naturalistic fallacy. These objections were refuted in 'From the “is” to the “ought”'.

Thirdly, introducing fractal theory allows us to unify biological, psychological, sociological, economic and political perspectives on law. In addition, such an enriched angle answers the question of how the ‘enormous problem of translation’ can be met. Law is not an externally imposed system. Rather, it grows within communities because the genes that benefit from a stable society – where free riders will face high costs – will have a stimulating effect on its evolution. Finding all mechanisms that underlie human affairs will require a great deal of research, but because genes are a conditio sine qua non for human affairs, a genetic factor will always be needed for the translation.

Fourthly, as I discuss comprehensively in 'The Biological Essence of Law', the fascination with 'law and evolutionary biology' is not caused by ‘various hobby horses of the right', as Leiter and Weisberg think. However, these are bold statements that can be refuted with my natural law theory. Law cannot change everything and nature certainly puts limits on utopian aspirations. Law was not introduced by some extraterrestrial powers to civilize selfish humans and to restrain some of their more unruly biological inclinations: it is a product of evolutionary processes. Law cannot change everything, but it certainly has changed much to the benefit of our genes and therefore to the benefit of ourselves. Law is a precipitation of proto-morals. Justice will therefore never be found if our biological needs are not met.

So glad that's settled.

I am reminded of Eckart Kehr's dismissal of Meinecke as promoting a history of ideas that was escapist, hermetic and dangerous. Meinecke's ideengeschichte offered -

the intellectually disoriented bourgeoisie a way out of its difficulties. In the long run it is only a cul-de-sac. But temporarily those who chose it are strengthened and exalted. They feel as if they are on a high mountain from which they gaze down into a squalid valley where the mob, struggling for its daily bread, is penned in by a narrow horizon and cannot see the light beyond. The superiority of the mountain climber is highly developed in the intellectual historian. But is this feeling of superiority well-founded. The genesis of the German history of ideas amply demonstrates that it has not concerned itself with things that have had great and direct practical implications. It shies away from ideas that have revolutionised or attempted to revolutionise the world