NATURAL AFFECTION:
Natural Law or Natural Selection, and Does it Matter?
Natural Law or Natural Selection, and Does it Matter?
Tuesday, February 28, 2017 | 12:15-1:15pm | Moot Court Room
Professor Hensler will review the history and concept of natural affection in human society with particular attention to the law, and he will discuss the Divine basis for natural affection vs. natural selection basis.
More about Professor Hensler:
Bouvier’s Law Dictionary, published in 1856, defined “natural affection” as “[t]he affection which a husband, a father, a brother, or other near relative, naturally feels towards those who are so nearly allied to him . . . .” This natural affection is significant in a variety of legal contexts. It is central to child custody decisions. It sometimes supplies the consideration in contracts and deeds. A related legal concept is the “natural object of testator’s bounty,” who are the near relatives designated to take under the various states’ intestacy laws.
“Natural affection” also is a Christian biblical concept. The Greek word for the natural love of family members for each other, stergeo, never appears in the New Testament, but its negative, astergeo, (without natural affection) occurs twice in the epistles of St. Paul, both times in reference to a corrupt human society worthy of judgment. Moreover, one of the most famous Old Testament narratives centers on the concept of natural affection. When Solomon famously proposed to cut a disputed baby in half, he was able to infer from the different reactions of the contestants which was the mother of the child. Solomon inferred that the woman who objected to dividing the child loved the child and was the true mother. Thus, natural affection of mother for child was an assumed premise in Solomon’s chain of inference.[1]
Of course, the acceptance of natural affection is not limited to adherents of the Bible. In speeches of Cicero, natural affection between family members is assumed as the social norm. In 1711 the Earl of Shaftesbury famously wrote of “natural affection and the care and nurture of the offspring” being “natural.”[2] Per Adam Smith, “Every man feels his own pleasures and his own pains more sensibly than those of other people. . . . After himself, the members of his own family, those who usually live in the same house with him, his parents, his children, his brothers and sisters, are naturally the objects of his warmest affections.”[3] In the twentieth century, Ronald Coase inferred from Smith that affection is necessary to the effective and efficient care of children.
Near the beginning of the 18th century, the prevailing understanding of natural affection came under challenge by the idea that the affection of parent for child really is a form of self-love. The fact of family affection has never seriously been doubted, but the basis for that affection has been called into question. While Smith appears to have accepted that mankind possesses this natural affection because he has been created by God,[4] leading economists of the 20th and 21st centuries are less willing to accept the idea of a harmonious natural law written on the human heart by the Creator. Most economists today would explain such affection in human nature as a result of natural selection. For example, Richard Posner attributes altruism among kin to sociobiology, according to which people favor their own offspring because natural selection has developed that characteristic within the human race to promote survival of the species.[5]
[1] Premise #1: We tend to protect those we love. Evidence: One mother sought to protect the child. Inference: That mother loved the child. Premise #2: A true mother tends to love her child. Conclusion: The true mother is one who loved and protected the child.
[2] Anthony Earl of Shaftesbury, Characteristics of Men, Manners, Opinions, Times, ed. John M. Robertson, in two volumes, vol. 2 (Gloucester, Mass.: Peter Smith, 1963), p. 83.
[3] Adam Smith, The Theory of Moral Sentiments 3 (E.G. West ed. 1969) at 354.
[4] See Jacob Viner, “Adam Smith and Laissez-Faire,” in Adam Smith 1776-1926: Lectures to Commemorate the Sesquicentennial of the Publication of The Wealth of Nations, 121 (1928).
[5] Richard A. Posner, Sex and Reason 189 (1992).
