THE DIVERSITY OF NORM PSYCHOLOGIES: A CHALLENGE FOR THE LAW.

AuthorDavies, Paul Sheldon

TABLE OF CONTENTS

Introduction. 1169 I. Evidence of Diverse Norm Psychologies 1170 A. Norm Psychology. 1171 B. Experimental Evidence 1174 1. First Set: Moral Motivation. 1174 2. Second Set: Intentions in Moral Judgments 1177 3. Third Set: Punishment. 1181 4. Summary of All Three Sets. 1184 II. The Staying Power of Norm Psychologies? 1184 III. Gene-Based Evolution 1186 IV. Culture-Gene Coevolution 1191 A. Agricultural and Biological Coevolution 1193 B. Marriage: Pair-Bonding and Culture Coevolution. 1194 C. The Cultural Coevolution of Impersonal Trust. 1199 V. Nongenetic Cultural Evolution. 1205 Conclusion. 1212 INTRODUCTION

I take it for granted that any law, or any substantive portion of any legal system, is acceptable only if it is psychologically fitting. A law that assumes we are possessed of capacities we do not possess is often irrelevant, perhaps pernicious, and indefensible. (2) Further, a law that overlooks the practical effects of psychological capacities we do possess is unjustifiable. A necessary condition on almost any defensible law, it seems, is that it fit, psychologically speaking, the type of organism to which it is applied. (3) Yet, according to recent findings in sciences of the human--findings that bear on human nature, especially neuroscience and psychology framed by theories of biological and cultural evolution--there are substantial psychological differences across ethnolinguistic lineages within Homo sapiens. (4) There are, in particular, striking differences in so-called norm psychologies, some of which are substantial enough to generate a challenge for the law. (5) This difficulty, which I refer to as the generalization challenge, questions the feasibility of crafting a coherent set of laws applicable to a deeply culturally diverse society.

I shall formulate the challenge this way:

(1) A set of legal norms is justified only if there exists (a) a sufficient fit of those norms to the actual psychological constitution of the population and (b) a sufficient degree of psychological homogeneity across the population. (2) According to findings in sciences of the human, (b) is not satisfied in ethnolinguistically diverse populations due to the evolved diversity of norm psychologies; nor is (b) satisfied in a single lineage in which the norm psychology of a substantial proportion of individuals is fragmented or disunified.'' (3) In consequence, (a) is not satisfied in those populations. Legal norms in ethnolinguistically diverse populations are likely unjustified, as are norms in a single lineage comprising normatively disunified individuals. I shall assume the truth of the first proposition and focus on the second and third. In Part I, I sketch three sets of experiments that demonstrate the diversity of norm psychologies in present-day ethnolinguistic lineages. The goal is to motivate the generalization challenge not by armchair speculation but with a theoretical framework supported by experimental evidence. Part II raises an obvious but important question concerning the depth and persistence of diverse norm psychologies, and Parts III-V attempt to answer that question. I will, in addressing that question, describe essential assumptions and empirical findings from theories of cultural evolution and other sciences of the human. The force of the generalization challenge, by the close of the Conclusion, should be difficult to miss.

  1. EVIDENCE OF DIVERSE NORM PSYCHOLOGIES

    Vivid glimpses of the diversity of norm psychologies across ethnolinguistic lineages are provided by recent experiments. It suffices for present purposes to describe just three sets of experiments which, taken together, demonstrate substantive culturalhistorical differences in (i) moral motivations, (ii) the role of intentions in judgments of moral culpability, and (iii) attitudes and practices concerning punishment.' Before describing the experiments, however, a bit of clarification is in order concerning the relevant notions of "norms" and "norm psychology." (8 ) I will also introduce a historical assumption thought to explain the evolutionary emergence of the cultural diversity observed in the experiments discussed here. (9)

    1. Norm Psychology

      The relevant sorts of norms are intersubjective and relative to specific social groups, and they comprise some degree of internal complexity. (10) They comprise sets of shared expectations regarding the actions and attitudes of some or all group members. (11) These expectations are in turn based upon common beliefs, practices, and motivations that tend to be self-reinforcing and self-perpetuating. (12) The within-group functions of such shared expectations, beliefs, motivations, and practices include minimizing within-group conflicts, heightening and stabilizing within-group cohesion and cooperation, and conducing to the survival and perhaps the selective advantage of the group. (13) Indeed, according to leading theorists of cultural evolution, cultural group selection has been an especially powerful process in the evolution of human sociality, a process in which the norms of one group enable it to flourish relative to other groups. (14) Robert Boyd, for instance, as well as Joseph Henrich, Sarah Matthew, Peter Richerson, and others argue that withingroup norms can create, and in empirical fact have created, sufficiently stable differences between neighboring groups to give rise to such cultural group selection. (15) Examples include norms for dividing labor, sexual relations, child rearing, food production, food sharing, the imposition of sanctions, and more. (16)

      If norms comprise sets of shared expectations relevant to group cooperation, a norm psychology comprises a set of mechanisms for acquiring and adhering to those norms. (17) Those mechanisms endow organisms with a range of capacities, including the ability to identify shared norms in the course of interacting socially; the natural disposition to learn and internalize those norms; and the disposition to act on those norms, including the affective and cognitive dispositions to call out and sanction those who violate norms--especially in populations in which free riders pose a threat to group cohesion. (18)

      The apparently deep-seated norm of impartiality in Western ethical and political theorizing is illustrative. An impartial concern or respect for all persons, or for all practically rational beings (which may include nonhumans), is taken as a core condition of adequacy for any theory of morality or justice. (19) More modestly, the perspective of an ideally sympathetic observer is taken as a core condition of adequacy. (20) Either way, it appears that a prominent norm, embedded in the psychology of many Western societies today, is that any action or policy or institution that is partial, that fails to include all rational beings or the perspective of an ideally sympathetic observer within its scope, should be regarded with suspicion and must, to earn its justificatory keep, provide compelling grounds for its breach of impartiality. (21)

      Yet theories of cultural evolution make clear that this assumption of wide-scope impartiality is by no means universally endorsed across our species today. (22) This bears on the large-canvas historical assumption mentioned above and discussed below. (23) According to Henrich, wide-scope impartiality became a core component in the norm psychology of some ethnolinguistic lineages mainly as an effect of the rise of Christianity and, in particular, what eventually became the Western Catholic Church. (24) Prior to the 800-year period between, roughly, the years 400 and 1200 CE during which the Western Church took hold in parts of Europe, most human societies were structured almost entirely upon kinship relations. (25) In preChristian Europe, norms of partiality were foundational. (26) All of one's obligations--whom one could marry, where one could live, ownership responsibilities, who had legal decision-making power over whom, et cetera--were defined by reference to one's blood- and affinal-relations, as well as relations to other tribal or clan members. (2) ' Norms of impartiality, if any, were limited to the treatment of members within the same familial or social class within the same group, tribe, or clan. (28)

      The crucial consequence of this dramatic difference between Christian and pre-Christian Europe, at least for present purposes, is twofold. First, most contemporary ethnolinguistic lineages that exist today descend from societies altered little or not at all by the rise of Western Catholicism. (29) In consequence, most persons alive today are endowed with a norm psychology different from that assumed by Smith or Kant and their successors. (30) Kin-based partiality appears to be normatively deep, if not normative bedrock, for most humans today. (31) Second, social scientists are beginning to discern this and other norm-related differences in contemporary societies insofar as they can compare divergent ethnolinguistic lineages of Homo sapiens alive today. This, in fact, is the general format of most of the experiments I am about to describe.

    2. Experimental Evidence

      Most of these experiments compare diverse lineages. Some lineages descend from ancestors directly affected by the rise of the Western Church. Others descend from ancestors more or less untouched by the Church, whose moral and legal norms, as a result, tend to retain a discernible partiality toward kin. Given this comparative framework, it is difficult to overstate the implications of these experiments for understanding the diversity of norm psychologies.

      1. First Set: Moral Motivation

        In the first experiment, subjects from fifty countries (32) answered questions concerning the following vignette:

        You are riding in a car driven by a close friend. He hits a pedestrian. You know he was going at least 35 miles per hour in an area of the city where the maximum allowed speed is 20 miles per hour. There are no witnesses...

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