A General Theory of Normativity
Theodore P. Seto
Loyola Law School Los Angeles
Loyola-LA Public Law Research Paper No. 2003-26
In general, we lack objective foundations for our normative assertions. Some legal scholars - Kaplow and Shavell, for example - argue that aggregate preference satisfaction utilitarianism provides such foundations. Outside the law and economics movement, however, the utilitarian model has largely failed to persuade.
The present paper offers a new approach to anchoring normative analysis in objective foundations. It begins with a relatively noncontroversial observation - that our normative world consists of our internalized learned behaviors and their associated memes. Using evolutionary theory, it then explores why our normative world exists at all. The function of internalization, it concludes, is to permit the evolution of learned behaviors whose adaptivity may not be obvious. Sharing, for example, is not self-evidently "rational." Over time, however, individuals motivated to share have tended to survive and reproduce more successfully than those not so motivated. As a result, the population has come to be dominated by individuals motivated to share. Similar stories can be told about goodness, commitment to the rule of law, respect for equality, regard for the liberties of others, and, to some extent, democracy. Whether and why behaviors are adaptive are objective questions to which there exist - at least in theory - objective answers. Thus, if I am right, when someone asserts that we "ought" to do this or that, we should be able to explore her assertion productively by asking whether the proposed behavior is adaptive, and if so, why. Stated another way, an understanding of why we value, for example, equality, should permit us to define better what equality means.
Of more immediate concern to legal scholars, if I am right then much of the U.S. Constitution can also be justified in terms of adaptivity: a society that protects adaptive rules from short-term popular challenge is more likely, in the long run, to survive and reproduce. Although this portion of my paper is still a work-in-progress, my theory appears to offer a relatively straightforward justification of judicial review in the protection of constitutional values and, in the process, allows a more objective delineation of those values themselves.
Number of Pages in PDF File: 85
JEL Classification: D63, D64, K00working papers series
Date posted: October 14, 2003
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