Many parts of the law, especially criminal and tort law, have their roots in our communal values. It goes without saying that most of us believe that people should not harm each other, that we should respect each other’s lives, property and feelings. And that shared belief is expressed in legislation and common law. Even were the laws to vanish, most of us would have something inside us — call it empathy, call it conscience — that would prevent most of us, most of the time, from committing most crimes and most torts.
I keep using the word “most.” Partly that’s because there are bound to be disagreements about any rule — we lawyers know that better than anyone. But also it’s because there are those among us who lack any care for the rights or feelings of others. The psychiatrists have a name for these folks: psychopaths. (Well, these days the label for the condition is Antisocial Personality Disorder, but everyone still uses “psychopath.”)
It is estimated that 1 percent of us are psychopaths. What distinguishes that 1 percent is not necessarily what most of us would call evil; rather it is a fundamental lack of interest, however well disguised, in anyone else’s well-being. Psychopaths may act like your best friend whenever you can be useful to them. But if it works out better for them to lie to you, steal from you, or humiliate you, they’ll do that. Because to them, their own goals matter and yours don’t.
And incidentally, psychopaths can’t be cured. (Think of Dr. Melfi trying to fix Tony Soprano.)
It can be seen, then, that there is a clash between the empathic world view, the conscience, that informs our laws, grounded in a respect for others, and the psychopath’s. So who is right? Mother Teresa, or your generic murderous totalitarian dictator?
Nothing in charge
In what would facially seem like a completely unrelated development, the atheists seem to be gaining ground. Not only is church attendance down, but hostility to the notion of a divinity seems to be everywhere in our culture. Books by Richard Dawkins and Christopher Hitchens, not to mention the latest bestseller by physicist Stephen Hawking, all tell us that the universe, properly understood, is barren of any sign of a Creator or a caring Providence.
Now it is not an argument for God’s existence that if we stopped believing in Him/Her/It, we’d be lending credence to the totalitarian dictator’s view. But I would submit that a Godless universe is one in which it may well be philosophically meaningless to say that the dictator is wrong and Mother Teresa is right. As Al Sharpton, of all people, cogently put it recently: “There is nothing immoral if there’s nothing in charge.”
In the past, it was a standard proof that a God existed that most of us heard that still, small voice of conscience in what we called our souls. We believed in the validity of those promptings, and recognized that for that validity to exist, there had to be a source behind conscience, that it could not be some mere socially or evolutionarily-conditioned prompting. It had to come from beyond us. Because we felt those promptings valid, we inferred a source religions had always named God.
Today, though, many humanistic philosophers and evolutionary biologists tell us that conscience, biologically hard-wired into most of us and reinforced socially by mechanisms like the law, is nothing more than a kind of distillation of the principles that assure the greatest good for the greatest number, and designed best to assure the success and survival of the species. None of that gives conscience any objective validity, though.
What? you say: Isn’t the survival of the species the most important thing? The psychopath would beg to differ; nothing matters to him so much as he himself does. And in a God-less universe, he cannot be refuted. We cannot look to a divine nature that is the source and pattern of values to make the survival of the species more valuable than the satisfaction of the psychopath’s goals. In fact, even in the universe that believers and unbelievers both think they occupy, it would appear impossible for the species to survive indefinitely, however any of us behave.
As a species, we are in a series of death traps. Assuming we don’t kill ourselves off with global warming or war, physicists tell us that eventually the sun will boil the oceans, rendering life on earth unlivable. And even assuming we escape the planet, it’s only a matter of time before the Second Law of Thermodynamics assures that the entire universe cools down to temperatures that will make human life impossible. A lot of time, to be sure, perhaps 1032 years. Still, there’s no happily ever after for the species. For many believers, there’s a happily ever hereafter, but that’s quite different. The fact must therefore be confronted: there is no way to save the species forever, but there may well be a way on any given day to give your local psychopath precisely what he wants. Now, explain again why he’s wrong.
My father, a man of philosophical bent, might have been assaying that explanation when he wrote in his last book of the inevitable eventual passing of humanity that “a tragedy long deferred is, to an extent, a tragedy minimized.” In his view, it was not necessary to promise that the eternal survival of the species would result from one’s conduct to make the conduct worthwhile; it would be sufficient to foster humanity for as long as possible. But that still begs the question of whether humanity itself has value, as he admitted.
The Existentialists struggled with the psychopath’s challenge, and came up with the answer that without a God each of us must serve as his or her own source of values. That’s not a problem for the psychopath, though: he already does that. And in theory it shouldn’t be a problem for the Existentialist with a conscience: he or she might well choose the path of altruism and the law that expresses it while acknowledging it to be a matter of personal preference only. But the Existentialist would have to agree that, given that all is personal preference, there’s no way to prove that his particular choice is right and the psychopath’s is wrong.
At most, therefore, we can say that the consensus of the 99 percent of us who feel a sense of duty to each other often will prevail as a working convention. We can make that consensus into a body of law. But no fair pretending, without positing a God who ultimately sets the moral laws, that there’s any objectivity to our views. Given a God-less hypothesis, we just prefer, whether as a result of evolutionary conditioning or arbitrary taste, to treat each other with respect. And the laws we pass can have no greater dignity than that.
It’s not much, but for the unbelievers, it’s what there is.
And the psychopath stands unrefuted — though hopefully alone.
Jack L.B. Gohn is a partner with Gohn, Hankey & Stichel LLP and a former member of The Daily Record’s Editorial Advisory Board. The views expressed here are solely his own. See a longer version, with links to his authorities, at www.thebigpictureandthecloseup.com.