73 Pages Posted: 30 Jul 2009 Last revised: 31 Mar 2014
Date Written: July 28, 2009
Rights are an essential part of a modern legal system. This paper advocates rights based on a different kind of 'natural law,' rights which come not from God or externally from nature, but from human behavior - how our minds evolved. Under this approach, there are two kinds of truth: anthropocentric truth and non-anthropocentric truth. Non-anthropocentric truths are the laws of physical nature and mathematics; they are unassailable truths that 'are true regardless of what we happen to think about them.' Anthropocentric truths are 'truths that are true only because of the kinds of minds that we happen to have and the cultural worlds in which our minds developed.' This paper proposes that rights can be based on anthropocentric truths - that rights arose from human nature. In particular, anthropocentric rights developed to deal with specific adaptive problems in the Environment of Evolutionary Adaptedness. The fundamentals of rights derived from how our brains evolved with the details arising from how a particular culture reacted to how differing geography, ecology, and social conditions affected survival. Part II of this paper will introduce basic concepts of behavioral biology. It will first discuss neuro-cognitive universals, the universal grammar of morality, and universals in the law. Next, it will examine why cultural differences occur despite the existence of universal human behavioral traits, and then it will consider the selfish gene, a central characteristic of human behavior. Subsequently, it will show how society and the social contract evolved as a means for survival. Part III will present a biological basis for rights. It will first demonstrate the need for rights based on biological factors and introduce the sources of rights in human nature. Next, it will discuss the biological basis of four kinds of rights – property rights, fairness rights, liberty rights, and equal treatment rights. The final part will illustrate how biological rights exist in different cultures.
Keywords: rights, law and biology, jurisprudence, evolution, constitutional law, mirror neurons
Suggested Citation: Suggested Citation
Fruehwald, Edwin S., A Biological Basis of Rights (July 28, 2009). Hofstra University Legal Studies Research Paper No. 09-17. Available at SSRN: https://ssrn.com/abstract=1440247 or http://dx.doi.org/10.2139/ssrn.1440247
By Orin Kerr
By Joseph Raz