A Phenomenological Foundation for Human Ethics: An Essay in Philosophical Anthropology

A Limit to Contingency 

In The Last Utopia (2012), Samuel Moyn famously argued that “human rights” as a principle transcending the prerogatives of nation-states did not actually emerge until the 1970s.  The idea in this “pure” form only appeared then because it stood out in that context as “the God that did not fail while other political ideologies did” (2012: 5).  For those failed ideologies, the idea of human rights had been “deeply bound up with the construction, through revolution if necessary, of state and nation,” that is with “the creation or renovation of a citizenship space, not the protection of humanity.”  So Moyn devoted most of his book to showing that the “origins” of human rights ought not to be traced to the Roman Stoics or Hobbes and Locke or the Abolition movement or reactions to the Holocaust—or, indeed, to any of the sources that celebratory Whiggish histories of human rights have been inclined to credit for this sublimely “ethical” imperative.^[1]  Instead, Moyn joins Marc Bloch in criticizing the “idol of origins” itself (2012: 41) and adopts a Foucauldian view to get at “the real story,” the one in which “the history of the core values subject to protection by rights is one of construction rather than discovery and contingency rather than necessity” (2012: 20).  And he shares Hannah Arendt’s concern that, “as in prior history, there would continue to be “nothing sacred” in the “abstract nakedness of being human” (2012: 42) as he gestures towards the concluding note of skepticism about the prospects for purely “moral struggle.”  To be effective, ethical ideas like “human rights” have to be realized through good old-fashioned political struggle.

I will not dispute Moyn’s practical conclusion.  But I will argue that “being human” is not all that abstract and that the idea of “origins” may also point to a phenomenological level, that origins can be understood as universal characteristics of the human condition that undergird and limit the contingencies of historical construction. Phenomenologically conceived, “being human” turns out to be a condition on historicity itself and a phenomenological account of being human, rich with concrete characteristics, turns out to have immediately comprehensible ethical and political implications.

So, let the term “origins” be defined from a phenomenological standpoint.  Let the term refer to conditions of possibility for the emergence of significant cultural forms (compare Wittgenstein’s “forms of life”)—on analogy with Kant’s First Critique, but more closely resembling more embodied anthropological accounts in, for example, Claude Levi-Strauss’ The Elementary Structures of Kinship, Victor Turner’s The Ritual Process or Mary Douglas’ Purity and Danger.  And, as we shall see, John Locke’s seminal account of property as a “natural right” can be read as pointing toward origins of the ethical aspect of the human condition in just that phenomenological sense—though Locke himself, trapped in certain science-inspired concepts he took for granted, could not see it that way. 

To understand the history of progressive political thought we must exercise our imaginations on this question: what did the natural world look like to educated men and women in the 17^th and 18^th centuries?  They were through with mythologies; even the Book of Genesis was, for most of them, just another fable by comparison with the works of Aristotle.  And all the more so by comparison with the achievements of what they called the “new reason,” by which they meant “natural philosophy”—science.  It was the work of Boyle and Harvey, Huygens and Galileo, and, above all, Isaac Newton that informed their perceptions of the natural world.  

What early moderns saw in nature was purpose—rational purpose, divine purpose. When they looked at an equation in classical mechanics and then at the relevant experimental results, they saw something like obedience to that purpose. “Let there be light” made for beautiful poetry, but F = MA was the real word of God.  

Analogously, with organisms: when they looked at a healthy body, early moderns saw conformity to a designer’s intentions.  But in this realm, one also encountered mortality and disease.  Here, for some reason, a sort of disobedience came to pass, a malfunctioning.  Why that should so be was the subject of heated debate, but almost no one questioned the framework of interpretation.  Modern medicine was founded on the idea that we could repair such malfunctions if we had an objective understanding of how bodies were designed to function in the first place.

And so, when early moderns looked upon human history—the carnage, the absurd superstitions, the institutionalized barbarities—the conclusion was inevitable. Here was disease of another order, a malfunctioning of another kind. Again, there was much debate over why this came to pass, but the basic framework of interpretation remained.  And the question became:  what were the Maker’s designs for relations between His human creatures, what were those natural laws and how could His creatures cure the diseases of history in accordance with them?[2]

Modern political philosophy was founded on that question.  Various thinkers proposed various natural laws to govern supposed “States of Nature” positioned as preceding (historically? logically?) the “Civil Society” human beings constructed.  They posited abstract human entities decked out by nature with assorted traits—certain dispositions, instincts, potentialities, the capacity for reason, for language—and then let them loose in some posited environment until they arrived, by way of this thought experiment, at some form of government.  The basic idea was that the terms of their “social contract” had better accommodate what was given by nature or it would (or should) fail.  Authoritarians like Hobbes were inclined to outfit their human entities with selfish and violent traits, thus justifying a stern regime. For liberals like Locke, the state of nature had redeeming features, thus justifying a more relaxed civil order.  Proto-communards, like Diderot and Rousseau (in certain moods), conceived a rational and benevolent state of nature with obvious consequences for their concepts of the good society.

To this day, the paradigm retains its grip. Consider any contemporary political issue and you will find that, in the last analysis, the debate is framed thusly:  because the nature of human beings is x, our political response as we organize ourselves socially should be y. 

So  the basic way moderns think about themselves didn’t change when the Darwinian view of nature replaced the Deistic view of nature.  Rational thought about humanity still mimics rational thought about the rest of nature—today’s evolutionary psychology being the perfect exemplar.[3]  That is, it begins by stepping back and trying to be “scientifically” objective in describing how abstract human-things respond to various circumstances. So, after Darwin and Nietzsche, the idea that regularities of comportment to be found in the natural world were a product of design lost its hold over the minds of elite European intellectuals.  But a way of looking at nature, including human nature persisted.

On the Deist account, the animal eye had obviously been made for seeing but the Maker’s human creatures in particular were equipped with “Reason” as well as eyes.  It was that faculty that enabled them to make what they could out of the rest of creation, to cultivate nature’s resources for their own convenience and fill their life world with human contrivances. But that faculty had been designed as well to enable human beings to practice self-government in accordance with a particular set of “natural laws” that spelled out human rights and duties. And, in this case, the shift from a Deist to Darwinian view had profound consequences that went way beyond a simple alteration of the foundational principle. Once the designs of nature in the human sphere were reframed as contingencies of natural selection and historical contention, something like postmodernism became inevitable.

People who remain committed to human progress in the postmodern context need to step up and face the significance of the critiques of the Enlightenment that most immediately shaped that context at the intellectual level.  The progressive view of history that shaped the ideas of J. S. Mill and Auguste Comte as well as Karl Marx could not survive in the absence of an ethical/political foundation in nature.  Adorno and Foucault spoke with one voice on the most basic issue: our commitment to human progress has become philosophically groundless.  It may be deeply felt, and successful political action can be organized on an ad hoc basis wherever that commitment exists, and progressive rhetoric can still deploy its tropes to some effect.^[4]  But the autocratic populism now ascending in more and more societies all over the world flourishes in this philosophical vacuum.  And pragmatist, constructivist, and relativist responses are proving to be, not only philosophically inadequate, but doomed in practice as well.  The likes of Trump and Orban and Putin and Bolsinaro and Poland’s Law and Justice Party (the list goes on and on) will continue to thrive as long as facts and values remain nothing more than “social constructions” as the notion is currently understood. No one “socially constructs” facts and world-views more effectively than they do, not to mention their affiliated movements—Q-anon was just a beginning, you may be sure.

In this essay, I hope to show that humanity’s values are indeed socially constructed—but that, phenomenologically construed, they retain an objective validity as well. The aim is to make a case for necessary origins in what Arendt herself called “the human condition” (note the singular).  I will argue that the ethical is, as Heidegger might phrase it, “equi-primordial” with consciousness itself, that the ethical is an aspect of the emergent phenomenon that is consciousness because consciousness is essentially social, and therefore ethical, from the outset. Once established, consciousness can appear to be an “attribute” of individuals—and 20^th century phenomenologists (unlike Hegel) have been inclined to so regard it (see de Zengotita 2018).  But a more fully developed “genetic phenomenology” (see Donohoe 2004 for an account of this key concept) tells another story. And that story will invite us to rethink the philosophical enterprise, to make it empirical without abandoning its commitment to the transcendental.  And that synthesis will, in turn, allow us to access the origin of human rights, an origin which is itself ethical.

Basics of Phenomenology

But there is another way to think about human beings, one that foregrounds the undeniable “fact” of consciousness without which we would not be making these enquiries at all.  “Fact” is in scare quotes because, although consciousness shares—or even exceeds—in certainty of existence the usual sort of fact, it is otherwise so utterly different as to make it seem plausible to at least some scientifically inclined thinkers that it doesn’t “really” exist at all.  Just that bizarre circumstance, stated thus bluntly, should be enough to convince anyone seriously interested in human doings that consciousness as a phenomenon might have to be studied in a distinctive way if it is to be properly understood.  In any case, the phenomenology of Edmund Husserl and his heirs, along with the work of the later Wittgenstein, proceeded on that assumption and this book looks to them for inspiration.  The aim is to discover what something like “human rights” might look like if approached from that standpoint, supplemented and enhanced by our knowledge of various human forms of life described in the anthropological archive.^[5]   

The previous paragraphs argued that the objectifying view of humanity was inspired by the physical sciences. The underlying assumption was that knowing about human beings would be analogous to knowing about the rest of nature.  Phenomenology refuses that analogy.  It does not deny that you can study human nature that way.  It does not deny that extraordinary results follow from studying human nature that way—as in modern medicine, most obviously, but also in psychology, genetics, and the brain sciences.  In other words, insofar as human nature is physically determined, the scientific study of it is likely to be successful.  But insofar as human nature is not physical, insofar as it is ethical, say, or mental or historical or aesthetic or even spiritual—then it would seem to follow that studying it as if it were physical is bound to miss the mark. 

In a nutshell, phenomenology claims that you cannot understand (verstehen) what it is to be human by way of science.  Neurologists of the future may someday make digital maps of the brain’s activity so precise that they will be able to tell from the map what a person is consciously experiencing.  But such a map will never be that conscious experience and it will never be the conscious experience of understanding it.  It might help to explain a conscious experience; only a person can understand it.  

Phenomenology is a discipline of understanding, not explanation.  Take jokes, for example.  An explanation of a joke is notoriously unfunny.  It may be true in every detail, but it inevitably falls short in that crucial respect.  A joke is only funny when you get it—that is, understand it to begin with.  The spirit of phenomenology can be evoked by this fantasy requirement: any theory of humor it might produce would aspire to be funny.

All of which means that phenomenological theory is willing to sacrifice a certain analytic rigor to its quest for significance.  Of course one still strives to be as exact as possible but, if some things that matter to us resist perfect definition and we want to address them anyway, so be it.  Better to get some sense of what, say, beauty or justice or honor really are than to force upon them a precision alien to their mode of being. 

Once this distinction between explanation and understanding is grasped a lot of unnecessary controversy can be put to rest.  There is no inherent contradiction between the analytic and phenomenological traditions in philosophy—nor between phenomenology and objectifying science-inspired studies generally—anymore than there is between cubism and expressionism.  The conflict arises because the two modes of inquiry get implicated in larger political controversies.  Broadly speaking, phenomenology has been suspected of inspiring obfuscating jargon for fashionable continental thinkers serving radical and relativist agendas while objectifying analytic systems have long been associated with economic and technological domination and exploitation.  Be all that as it may for the moment—at the level of intellectual substance, they are simply different enterprises. 

What follows is a brief account of the phenomenology’s basic principles—not of its history or its technical terminology—but of its essential characteristics.  There will be a certain amount of conceptual exposition, but rooted always in anecdotes, for narrative is the genre best suited to understanding, and to ethics.  That is why Wittgenstein’s Philosophical Investigations depends so completely on that form, rendered in exquisite miniatures.

Just as a phenomenology of humor would have to be funny, not literally, perhaps, but in spirit (come to think of it, isn’t this “requirement” a bit comical?), so phenomenology in general aspires to give a truthful account of what it is like—in general—to exist in a world of equipment and associated projects—hammers and glasses and books, sidewalks and traffic lights, on and on.  When we adopt the positivist objectifying attitude towards such things we “strip away” the characteristics that we subsequently come to think of as “subjective.” That means all the historical, functional, contextual, aesthetic, personal, emotional, cultural dimensions of things as we experience them in life.  But in lived experience we do not typically operate that way.  We do not come across “objective” physical things and then paste dimensions of meaning onto them like so many labels.  The meanings of things that constitute our life-world are immediately experienced in and with them, and always in the context of other meaningful things.  Such meanings are vital constituents of what those things are; they make them what they are.  It comes down to this: when we adopt that objectifying attitude toward our life-world, we sacrifice the significance of things to their objective properties.  

In the ideal case, the objective properties of things are quantifiable—mass, velocity, location, and so on.  When the objectifying attitude is brought to bear on the lives of human beings it cannot always achieve that ideal, but it tries.  “Treat social facts as things,” said Emile Durkheim in his rulebook for modern social science.  Even values should be treated as things according to this program.  “Norms,” as the jargon has it, are what values become when they are treated “objectively” by sociologists instead of what they really are in lived experience—namely, our apprehensions of right and wrong arising in actual situations.  Once again, this does not imply that the scientific study of human beings ought to be condemned out of hand.  I emphasize this, because a lot of thinkers influenced by continental philosophy—and some phenomenologists too—have interpreted the matter this way, but that’s a mistake, usually politically motivated.  The real point here is ontological.  It emerges with this question: What really exists?  What is there?  

Bertrand Russell once said that if, in answer to that question, he had to choose with a gun to his head between the world of atoms and molecules and the world of tables and chairs, he would choose the atoms and molecules.  

Phenomenology admits the existence of atoms and molecules but it prioritizes the tables and chairs.  

Perplexing and even anguishing metaphysical issues now arise.  The world of tables and chairs includes the people we love, after all.  But there is no need to take up these issues in this discussion.  If our aim is to discover a new foundation for human rights, we are certainly more likely to find it in the world of tables and chairs—and people—than in the world of quarks and amino acids.  In the context of this inquiry, a pragmatic solution to this particular problem is justified.  We choose the world of lived experience because our enterprise is ethical.

But if that choice is seriously made it has serious consequences and there can be no shirking, no backsliding into more comfortable habits of thought.  With that choice made, we are obliged to begin again and commit ourselves to a philosophical approach that respects our life-world as it is, in all its complexity, with all its textures and uncertainties.  We no longer expect to reduce it to elements and laws.  We no longer want to explain it (away).  We want to understand it.  We want to, as it were, get the joke of life in a philosophic register.  

This means we must systematically dismantle our habitual inclination to look at ourselves in that objective way when we start thinking about ourselves “seriously.”  We have instead to deal with ourselves and our life-world in a phenomenological way.  Which is not the same thing as “subjectively;” it’s a different animal altogether.  

What is ultimately at issue is easy to state—but difficult to grasp, not because it is complicated, but because it is so simple, so basic.  Consciousness doesn’t exist the way a thing exists.  It has a whole different kind of existence.  That different kind of existence cannot be grasped unless it is approached in a suitable way.  All efforts to think of consciousness as a special sort of mental entity with special sorts of mental properties (that is, as analogous to physical things) are doomed from the outset (The Concept of Mind (1949), by Gilbert Ryle, offers a lucid account of this profoundly mistaken analogy designed for Anglophone readers unfamiliar with the phenomenological tradition).

Martin Heidegger called the kind of being that consciousness has “Being-in-the-World.”  Following the example of Merleau-Ponty, I will sometimes use the expression “embodied mind” to convey the same notion.  Heidegger also parsed the word Dasein in naming consciousness, to emphasize its constituents—Da-sein.  That literally translates as “There-being,” which sums up the basic point very neatly.  The fundamental challenge for moderns who habitually think of themselves in an objectifying way now emerges;  you begin to understand phenomenology as you begin to realize that you ex-ist (outside-being), that somehow you are outside yourself, that is, in-the-world.

The kind of existence that sheer things have is, so to speak, enclosed.  Consider a rock on a path.  A path has direction—it has a “there.”  For a rock, there is no such thing as a path.  But the “there” of a path is as much a constituent of a person’s conscious ex-istence standing on a path as the “here” of one’s own point of view.  Or look at it this way: a rock may be in contact with the ground; but it cannot touch the ground.  

If you are now thinking something like ‘that’s because a rock hasn’t got a nervous system,’ you have fallen—blindly and automatically—back into the mode of objectification we are out to neutralize.  Nervous systems may indeed be necessary conditions, as a matter of scientific fact, for touching, but that’s beside the point.  The actual experience of “touching” has nothing to do with facts of neurology, but with the phenomenology of touching itself.  

Do we suppose that people with no knowledge of neurology don’t know what “touching” is? It is important to dwell on this question. It can help to “carve out,” as it were, the phenomenon of touching—and, by extension, the whole realm of experience that phenomenology is concerned with.  It comes down to this: if I smash your hand with a hammer, it is your hand that hurts—not some part of your brain.

Back to the rock, in contact with, but not touching the path.  Over and above the sensation itself, touching is directional—just as paths are.  Not only can a rock not feel, it has no orientation in the world, no directionality in time or space, no implicit connections to anything else.  For a rock, the world has no significance.  For a rock, there is no world.

That’s why equipment is such a special kind of thing, a sort of intermediary between rocks and people.  A screwdriver wouldn’t be a screwdriver if it didn’t have orientation, its functional parts all “pointing” to purposes.  It would just be a thing, a sheer thing, like a rock.  To say that we ex-ist, that we are embodied mind or “being-in-the-world,” does not imply that screwdrivers are conscious.  But it does imply that we are conscious only through the totality of oriented things that constitute our world as a world—screwdrivers, paths, tables, chairs, hands and feet and, yes, things we otherwise think of as “natural” also have their orientations insofar as they constitute the world in which we exist.  Streams flow “from” and “toward;” mountains loom; trees shelter; the sky can be threatening; sunshine can be welcome but so can rain, depending; and rocks too can come in handy, or, in the limiting case, prove to be interesting, even beautiful, strewn across a silent landscape.  

Unlike a sheer thing, which exists in an enclosed way, consciousness exists, not merely in an open way, that’s not radical enough; consciousness is outside itself. Once that becomes evident across the board, everything changes, and a whole different way of thinking about what it is to be human becomes possible.

In the case of the screwdriver, for example, you could say, just to get the idea started, that as consciousness you exist not just “through,” but as the pointings of the screwdriver.  That way of looking at it takes on more force when you begin to realize the general implication, which is that as consciousness you exist as all the orientations of all the things that constitute your world—that is, all their interrelated pointings, some coming to the foreground, most hovering in the background, at the margins.  And, finally, you exist as the “horizon” that is the totality of that flux of pointings, woven together as a world.  The ultimate meaning of “Being-in-the-World” depends on this indefinite horizon that surrounds and gathers, as it were, that flux of pointings.  Heidegger calls that the “worldhood” of the world.

Now consider time.  You ex-ist outside yourself in time constantly.  That is, outside the present. This is easy to see.  Just monitor your activity without interrupting it.  Notice how completely your present moments are fused with past moments that “put” you in your present context and with future moments constantly in the process of actualizing, or not.  If you do that, you will find that you, as you are now, exist almost entirely in and as a fusion of past and future moments.  And then you will notice that those moments merge with the directionalities and orientations of all the significant things and settings that make up your world. It comes down to this: your past and future consist of possibilities, implicit in all those things and settings, some irrevocably realized, others not, and others not yet. As consciousness you are the nexus of those ongoing possibilities, perpetually actualizing (or not), perpetually opening up to them.  That perpetual unfolding is lived time.  We call our existence as these possibilities “freedom.” [6]

At first, as an objectifying modern accustomed to thinking of yourself as a present-at-hand mental entity lodged somehow “in” your body, you may be tempted to say, ‘Oh, nonsense, I exist entirely in the present and, in the present, I have memories of the past and plans for the future that condition my present activity…’

But that’s just how things look when you adopt that objectifying attitude toward yourself as a psycho-biological entity—which, as a modern, you tend to do whenever discussions like this get under way.  Then you appear before the gaze of your own mind’s eye as a mental-thing that “has” memories and plans (and feelings and so on).  But when you are actually living your life you are not really like that at all—you are the way I have been describing you.[7] Try this: the Cartesian-scientific account of mind entails the claim that the whole of the experienced world is “in your head,” “in your mind.”  What’s really out there is atoms and molecules and photons and so on—and they don’t turn into tables and chairs and the people you love until they have stimulated your sense organs and nervous system (likewise composed of atoms and molecules) and those stimuli converge in your brain (likewise so composed) where tables and chairs and the people you love somehow pop into conscious existence. That is, if you are committed to the scientific account, you alreadybelieve that the experienced world is in your mind.  Why not just press reverse and say that your mind is in the world?  What’s the difference?

Finally, to complete the inventory of your existence as Being-in-the-World, in addition to the pointings of things and the determinations and possibilities of time, there are the people with whom you share the world—a world that embodies us all, more or less intensively, more or less reciprocally, depending on the circumstances. Which brings us to the question of right and wrong.  The formative move has already been made; the expression “human nature,” with all its objectifying connotations, has been abandoned.  We will speak instead, with Hannah Arendt, of the human condition.

With human life-worlds understood in phenomenological terms at the philosophical level, a path opens up for cross-cultural ethnographic comparisons that remain grounded at this level but can at the same time register, without reduction to abstraction, common features that characterize differences in the ways people in different societies experience their embodiment. Precisely for that reason, that path leads as well to the possibility of justifying ethical judgments of customary practices in different human societies in terms members of any human society might be persuaded to accept.

Toward a Phenomenological Theory of Property

The human condition, in all its local forms, must accommodate the unasked-for of being conscious.  It must cope with the ephemerality of the kind of existence that consciousness is.  

As in “The Unbearable Lightness of Being.”  

To be human is to be anchored in arrangements of things that stabilize consciousness, the essence of which is contingency—evanescence, becoming always, never being, passing away.  Culture provides those anchors, those stabilizers.  Indeed, culture is those anchors.  Starting with our literal bodies and working through custom, manner and gesture, culture shows us how to embody our minds in a world of significant things.

Consider, for example, how matters unfold when you move into a new place, even if it’s just for a week or two, like on vacation;  consider how you set about making it your place.  From the moment you enter the room or cabin or campsite—or even just the little clearing in the woods where you decide to pitch your tent—think about the way you survey it, first of all, the way you look it over, seeing where things are and where things can go.  Then think about how you start to distribute the things you have brought with you in accordance with the layout of the place, all the little regions where things fit.  In the case of the cabin, those regions are already established—the bathroom, cooking area, cabinets, and closets.  But, if you monitor without interrupting the process you go through as you set about making the place yours, you will find that you make all sorts of little adjustments.  You rearrange, at least in small ways, the things that are already there as you bring them into relationship with the things you brought with you, and sometimes—depending on how long you expect the place to be yours—you make larger changes too.  In the case of the tent you pitch in the wilderness, on the other hand, the arrangement that turns the space into a place, that makes it into “somewhere you belong” (which, at this primordial level, means the same thing as “belongs to you”)—in that case, you must start from scratch, as it were.  There’s a lot less to work with.  But you do essentially the same thing, even if it’s just with a sleeping bag and a propane burner and a mess kit.  And do you ever really start completely from scratch?  Or is the process of choosing where to pitch your tent actually a matter of finding a space that already suggests the place you will make it into—that says, in effect, OK, here’s a little nook that looks sort of cozy, and there’s a barren spot of earth and rock, not too near, not too far, where a fire could burn safely, and there’s a stream;  and so on.  Dwelling precedes building, Heidegger said.

In all these arrangements and rearrangements of things, you are making what is given your own by embodying yourself in the ways you arrange it.   Those arrangements will stay put as your mind moves inexorably on.  

Just a few days later, when you return to the cabin in the twilight after a hike, it will be a bit of a homecoming. That’s because you are recognizing yourself in—and as—the arrangements that persisted in your absence.

But, no, you might protest, if this “consciousness embodiment” stuff strikes you as suspiciously romantic, it’s practical considerations that motivate us in these matters.  We need to eat and sleep and be warm and perform our natural functions and that’s why we make these arrangements and rearrangements—for convenience, and ultimately for survival, physical survival.  

That would be the science-inspired, characteristically modern, objectifying reflex at work; it that kicks in automatically whenever we undertake to think “rationally” about ourselves.  Not that you would be wrong, of course.  The phenomenologist is happy to admit that you are right, in your own restricted way, about why human beings (like other animals) do such things. The phenomenologist simply points out that your explanation isn’t actually an objection—it just feels like an objection.

That’s because culture embodies consciousness most securely when it works through your body’s material needs and organizes other things around them.  Your body is the most salient and insistent of givens, so you (by way of culture) must take it over all the more convincingly lest the utter accident of being who you are confront you at every moment with the same intensity as when—alone at night in a stranger’s bathroom—you collide with your reflection in the mirror and find yourself staring into your own eyes.  

That is why we adorn ourselves.  That is why all societies regulate sex in some way, except in anarchic moments of orgy—the original exception to prove a rule.  And that is why food is always prepared and shared, often elaborately, and certain ways to eat are prescribed.  Certain places and manners are firmly associated with our bodily functions.  That’s why so many of the ways our world is organized can be traced back to the dispositions of our physical bodies in an environment of fabricated “bodies” designed to accommodate them—by which I mean what Heidegger called “equipment,” which he placed at the very center of the ensemble of “projects” that constitute human ex-istence—famously defined as “being-in-the-world.”  By this I mean, in our modern context, things like tables and chairs and beds and paths and toilets and doors and handles and forks and buttons and switches and, well, you finish the inventory.  And as you do, notice how intricately calibrated to our actual bodies the fabricated bodies of culture are.  It can be quite astonishing when you survey the whole sweep of things in our world with this specific point in mind.  

In a nutshell, we live in and through a field of bodily extensions and the settings within which they are significantly articulated (Compare Merleau-Ponty’s “the flesh of the world” in The Visible and Invisible (1968)).  The continuity of our bodies with equipment in such settings is thus established in a manner that could have profound consequences for reconfiguring, on a new foundation, what both Locke and Marx thought of as the essence of property—namely, labor.

In any case, the inventory of bodily extensions, of equipment, turns out to be really long.  Especially when you start distinguishing the different ways that different cultures make arrangements that are, at a more universal level, essentially the same—chopsticks vs. forks, and so on. 

So a culture is making-a-place-yours writ large in space and time.  It is an anchoring that spans generations and embodies (or fails to) the consciousness of populations in shared places, in the settings that surround the hearth, the house, the village, neighborhoods, cities, and even (by way of representations) nations.  If you are, say, a New Yorker and you have been abroad for a time, dealing with something stressful, let’s say, and now, at last, a plane is bringing you back across the Atlantic and you see the lights of Manhattan spread out beneath you as you circle into Newark;  well, you get the same “coming home” feeling you get on your daily commute when you leave the interstate at that familiar exit in the dusk and drive—automatically, not needing to think about it—down the streets that lead, one by one, each one closer than the last, closer to the door that opens to the very nest. 

There’s a whole set of stages to the homecoming process, a spectrum of levels or degrees, as it were, and each has its particular flavor but they all signify degrees of belonging, relative intensities of embodiment in certain arrangements.

Understanding the human condition as embodied mind thus yields immediate access to an appropriately universalized notion of “property.”  In this extended and universalized sense, property is the site of the ethical dimensions of conscious existence.  Whatever embodies mind constitutes, in a manner of speaking, the substance of a person.  For example:

 Have you ever been burgled?  That is, have you ever come home to find your place ransacked?  Your drawers open, your personal things strewn around, maybe they went into your refrigerator and left some half-eaten food out, drank from a milk carton?  If you have ever had that experience, and if you didn’t happen to have your life savings in your desk drawer, then you will know that theft is not the essential crime here.  It isn’t so much that they took your TV—it’s those hands in your drawers, pawing your clothes, that mouth on your food.  

It’s a contamination.  You’ve been violated.  

Now, have you ever been robbed?  As in mugged.  That’s when they put their hands on your actual body, when they make you lift your arms, when they shove you against a wall, threaten you with a weapon, rummage through your pockets—you can smell their breath, you notice the moles on their skin.  

It’s very intimate.  

In the case of robbery, when your actual body is arranged in accordance with someone else’s will, the experience is much more intense than in the case of burglary, when it’s your other “bodies” that get interfered with.  But the essence of the crime, the violation of the substance of the self that is the crime, remains.  And degrees of disgust and humiliation mark the levels of intensity.

And, of course, assault and rape and murder fall along the same continuum—although, in the case of murder, it is the family-body of the victim that is lastingly violated.

Now think about how humiliating it is to lose control of your bodily functions in illness or old age.  That’s a violation too.  

All these cases are different in just the ways that they are different.  But phenomenology allows us—enjoins us—to give each difference its due and at the same time to discern a constant element: the violation of embodied mind. The embodiment of another intentionality in arrangements of bodies that are yours without your invitation or consent.  

Now we understand the basis for what is already recognized in law; namely, the reason for the relative severity of the crimes. And also why old age cannot really be called a crime, even though it feels like one.  For what intentionality takes possession of your body in that case?  Shake your fist at the sky, if you will.  Or submit with as much humor and grace as you can muster, as sages of all persuasions counsel, for there should be no humiliation in submitting to nothing or to a God who owns us all.

This continuum of crimes and their modalities illustrates again a crucial point.  We should not assume that a reconfigured foundation for our ethics will alter the content, at least not necessarily, and certainly not in all cases.  A phenomenological rendering will often do no more than clarify what is already recognized in all sorts of traditional and intuitive ways.  The aim of this whole enterprise is simply to provide people engaged in ethical and political disputes with a common vocabulary—just what Alasdair MacIntyre called for in After Virtue (1981) as he contemplated the chaos of explanatory schemes that were, even then, dividing progressives into contending camps competing for attention for their various priorities.

It is already apparent, for example, how this clarification applies not only to obvious examples like laws that distinguish burglary from robbery, but to an extended region where, as objectifying moderns, we are inclined to see operations of metaphor.  For the regions of being-in-the-world in which “my” is justly placed are not only vast and various but also fluid, bound up with constant improvisation.  We are not mistaken when we speak of “my neighborhood” or “our song” or “her mother.”  In all those cases, we are talking about ways of being in the world that constitute “property,” understood as embodiment of minds, as substance of selves, and not merely legally.  And unless those dimensions are recovered, we will never understand what property rights or human rights really are.  So, to give just one example that provides a hint of how this account might apply politically, people often feel violated when massive changes are made to the configuration of their neighborhoods by impersonal authorities and absent legal owners.  And given the notions of right and wrong under consideration here, we can begin to discern what it would mean to say that they have a right to feel that way.

Locke and Marx were not very interested in the human truth of “my” in all its variety.  They were after elements of that truth that could be used as verifiable indicators of property rights, of quantifiable value in rapidly changing social and economic contexts under exigent political circumstances.  They were interested in the objective “properties” of property, as it were, that could be deployed politically, legally, administratively for purposes of governance.  They—Marx too, despite Hegel’s enduring influence—were committed to a quest for a science of human being, a science of our nature in Locke’s case, a science of history for Marx. 

Focusing for now on Locke, we recognize at once that he began with one of the most theoretically productive elements of the ‘my’ relation—along the axis that connects one’s physical body with other bodies. He began with the premise that one obviously has a “property” in one’s own body.  The “natural light of reason” made that much clear. That “natural right” to property was extended as one labored on, and gave value to, the “almost worthless” raw materials of nature and thus removed them from the great commons.[8]  His politically motivated and objectifying emphasis on labor meant that the full phenomenon of “my,” with all its gradations, was bypassed and obscured.  Colloquial usages like “my neighborhood” and “our song,” so obviously figurative in modern legal contexts, couldn’t compare in significance to the question of who controlled society’s resources.  Habit, for example, may not be labor and it defies simple metrics of quantification but it embodies minds in settings over time just as surely; that is why pilfering a few office supplies from “your” desk doesn’t feel like stealing to many people.  Anyone who doubts the ethical and political importance of other dimensions of property need only consider reactions to cartoons of “our prophet” or insults to “our flag” and all the rest.  Call such things “symbols” if you like, but if you say they are just symbols, you are disdaining the ways people actually embody themselves and avoiding the philosophical challenge that confronts anyone committed to a serious search for universals of human existence.

And that is essentially what would happen in the Anglophone academy as the anthropological search for universals got underway in the modernist period.  As science-inspired models of what it meant to generalize took hold, formulations of universals in terms that would apply cross-culturally became more and more abstract, more and more alienated from experiential actuality, and more and more committed to explanation rather than understanding. For most “social scientists,” the realm of the symbolic was of interest insofar as its functions in a social system (conceived concretely as a mechanism or an organism) could be identified.  The symbolic belonged to “superstructure,” to “ideology,” to “pattern maintenance.”  “Real” causes (and causes were what social science was about) were ecological, economic, political.   

Once again, the aim here is not to contest the validity of the explanatory social sciences.  Much of what has been accomplished in these fields has great value and the causes identified are indeed real.  The aim is to launch a different kind of inquiry—one that might allow us to establish a universal foundation for human ethics.  If, as founders of the social sciences from Weber to Durkheim so famously proclaimed, the idea of a social science depends on its being a “value-free” enterprise, we can say of this other kind of inquiry that it is value-saturated.  And if that orientation can provide access to certain human universals that explanatory models misconstrued, or missed entirely, that should be a welcome development for all concerned.[9] 

What would a cross-cultural conversation about ethics look like if all the participants—from defenders of honor killing to promoters of the unlimited exploitation of nature’s resources began with this premise: it is wrong to violate the embodied minds of others, wrong to alter, without their consent, arrangements of significant things that constitute their being.  

Of course, a defender of honor killing could say “But she is part of the arrangement that constitutes my being; I was the one who was violated” and a defender of unlimited development could say “But this is wilderness, it embodies no one” and so on. But imagine the back and forth to follow, given the premise. Imagine the testimony of the parties involved.  A different kind of conversation becomes conceivable.

The Gift;  the Root of Ethics

“Why are there beings at all, and why not rather nothing?”       Heidegger, 1929

It is difficult to determine from the literature if creation myths are absolutely universal, if every known human culture has or had a creation myth.  There may be a few exceptions. But it is ethnographically safe to say that an overwhelming preponderance of human societies have or had a traditional narrative of great value accounting for the beginning of all things. A number so great that it seems phenomenologically safe to say that a deeply entrenched aspect of the human condition is expressing itself here, a specific need of the human mind to comprehend itself in a narrative that accounts for existence of the world and all its creatures. It also seems obvious that modern science, from Darwinian biology to Big Bang theory, has been out to supply its own kind of satisfaction for that primordial need in a secular society. Phenomenology, in turn, offers a secular equivalent to creation myth as well—but it takes a very different form: it begins and ends with a question, cited above, that concluded Heidegger’s lecture on “What is Metaphysics?”  What makes this response to that need so unique is that it is not meant to satisfy the need, not even partially, as science does with the explanations it provides.[10] No, the point of that question for Heidegger and existentialism generally, is precisely to confront consciousness with the fact that it can’t be answered even as it admits the necessity of asking.  It becomes the ultimate duty of mind to ask this question and to live, as it were, in the light of the question and in accordance with the import of the question, but with no expectation of an answer.  In that moment, what Heidegger called “the question of being” is recovered in its pure form, before its call for heroic honesty gets muffled by theories and stories that masquerade as answers to it.^[11]

In a “Lecture on Ethics” delivered before a private audience at Cambridge in the winter of 1929-30 (Heidegger’s essay was also delivered as a lecture in 1929), Wittgenstein allowed himself to put into words what he had “passed over in silence” as a matter of principle in the Tractatus a decade earlier:

… if I want to fix my mind on what I mean by absolute or ethical value… I believe the best way of describing it is to say that when I have it I wonder at the existence of the world.

How distinct the mood in Wittgenstein! The same “question,” but the state of mind he found himself in when the question occurred to him was so different from Heidegger’s. “Wonder” meant both astonishment and an inclination to ponder and muse—never mind the fact that no resolution was possible. As a reading of his whole essay shows, his basic mood was reverential (see especially the closing paragraph on his refusal to disdain traditional religions).  For Wittgenstein conscious being-in-the-world was a gift.   For Heidegger it was more like a curse: we are “thrown” into being, with the violent connotation intended; we scurry away from the question, eager to get back to our “fallen” (with the Biblical connotation intended) state of “average everydayness” in which such authentic moments are quickly covered over by the “idle talk” of conventional wisdom about what matters in life. Especially, we cover over the coinciding question of death’s inevitability. 

So, a wonderful gift or a curse condemning us to an inauthentic life and a meaningless death—at this level, it doesn’t matter: the point in both cases is “I didn’t ask for this.”

When the author of the Tractatus tried to think about ethics, about “absolute value,” he famously found himself at a loss for words.  So he passed over the question of value, ethical and aesthetic, in silence.  But later, in the Essay, with his mind set free from the requirement that only factual-type statements (and their logical consequences) be considered, he allowed himself to express thoughts and feelings that could never meet that Tractarian requirement.  And, lo and behold, he found himself talking about “the experience of seeing the world as a miracle.”

So, even though I have had many a moment in my life when it all feels like a curse, the focus here shall be on the idea of being as a gift because ethical obligations follow immediately from that framing.  They do not follow logically, but pre-logically, phenomenologically; it is in the nature of a gift to obligate (See Mauss 1925).  

Let us distinguish roughly between two primordial ways in which the given is manifest.  Most obviously, the being of the world “prior” to our appropriation of it is given.  But the entirety of our existence is also given, at this moment—the moment that counts—all of history and culture as well as nature, writ large and small, is given at this moment.  That is, we cannot choose to be in this moment any more than we chose to come into being in the first place.  Call it “thrown,” if you will—but focus on its inescapable necessity.

At each moment, it is up to us to act.  The arrow points at each of us.  What should we do with this gift? 

Perhaps the least noticed (nowadays) of the significant features of Locke’s “state of nature” prior to the social contract is this: what is given by God subjected His creatures to certain imperatives and constraints.  There were “laws of nature” for human beings.  And the font of them all was the human creature’s obligation to preserve his Maker’s properties—including, especially, His property in oneself and other human beings.  But more recent readings of Locke, conditioned by more contemporary political concerns that no longer look to God for justification, have concentrated on the property claims of human beings—and, in particular, on the claim that property is a “natural right” that holds for individuals owing to the labor they individually invest in “almost worthless raw materials” transformed by that labor into “useful goods.” Almost forgotten in political debates over the claims of individual (bourgeois) vs social labor have been passages like these:

The same law of Nature that does by this means give us property, does also bound that property too… As much as one can make use of to his advantage of life before it spoils, so much he may by his labor fix a property in.  Whatever is beyond this is more than his share, and belongs to others.  Nothing was made by God for man to spoil or destroy. 

Nor was this appropriation of any parcel of land, by improving it, any prejudice to any other man, since there was still enough and as good left, and more than the yet unprovided could use.  So that, in effect, there was never the less left for others because of his enclosure for himself. 

To people accustomed to thinking of John Locke as a founding philosopher of capitalism, passages like this can come as a shock.  True, later in the Second Treatise, Locke argued that introducing money into civil society (by consent of its members) allowed for more accumulation of wealth than was justified when the fruits of the earth were the only riches in question.  Unlike meat and peaches, he said, in effect, gold and silver don’t spoil.  So you can accumulate as much of that as your industry will allow without breaking the law of nature.

But even so.  He was obviously assuming a world of resources without limit.  He was assuming a vast, uncultivated commons, bursting with potential that no amount of private accumulation could exhaust.  What Locke’s laws of nature would oblige him to conclude about property in today’s world would be very different indeed.  

Understood phenomenologically, property is even more fundamental to ethics and politics than traditional modern accounts have recognized.  What Locke wanted to conceive as a truth “capable of demonstration,” a logical truth (“where there is no property, there is no injustice”) turns out to be a phenomenological truth of profound disclosive power.  It is much more than a definition—it constitutes the very being of right and wrong in the world, wherever right and wrong appear, in all their modalities.  And right and wrong appear, to begin with, as affordances and obligations inherent in the gift of being.

Religious practices, in the broadest sense, have been instituted in response to the gift of being.  Creation myths and their elaborations through ancillary myths and rituals provide identifiable entities whose various provisions make up that gift.  But even in the absence of divine givers, even in an utterly secular context, the gift of being obligates—all the more so, in a way, because the gift now appears as absolute.  Above all, it obligates us to care for what is given.  And that obligation persists as human beings embody their minds in arrangements of things and settings that constitute cultural-historical worlds in all their variety, embodying as they do so many different minds, to such varying degree, in so many different ways.  That obligation ultimately constitutes the “ought” of ethics.  Because of the universal “ought” at the root of these subsequent manifestations, human rights and duties can be grasped as “natural” once again, but in a very different way—the way of a “second nature,” as it were, a second nature that is our consciousness and turns out to have its own kind of natural law.

Thomas de Zengotita is the author of Mediated: How the Media Shapes Your World and the Way You Live In It and Postmodern Theory and Progressive Politics: Toward a New Humanism. This essay is adapted from his forthcoming book, Toward a New Foundation for Human Rights: A Phenomenological Approach.

[1] I think Moyn understates the degree to which Locke in particular (and religious thinkers in general) conceived of human and natural rights as “apart from” and “above” positive law and nation states.  On the other hand, compared to Amnesty International, it seems they did assume the nation state’s priority in practice.  Let historians with finer grained glasses than mine adjudicate that question (Specter 2012; Alston 2013).  My concern here is with the question of “origins” per se.

[2] For Enlightenment thinkers and their fashionable followers, today’s discredited “intelligent design” argument was an assumption of common sense.  With no knowledge of modern geology and biology—no fossil record, no genes, no speciation, no natural selection, no evolution—they confronted the panorama of life and the stunning diversity of its forms and adaptations.  Under those circumstances the (almost) inevitable conclusion was that some intelligent Maker was responsible for the order of the universe, for all the inorganic bodies dancing to Newtonian measures and, most spectacularly for the intricate mechanisms of that constituted living beings.  Innovations in analogous human manufacture (telescopes, microscopes, pumps, automata of all kinds) made that conclusion almost inevitable because they entailed lived experience of the Maker position and the “objectivity” essential to it. 

[3] See de Zengotita  “Ethics and the limits of evolutionary psychology.” The Hedgehog Review, vol. 15, no. 1, spring 2013

[4] When Hillary Clinton famously scolded assembled political leaders in Beijing by telling them that “Women’s rights are Human Rights,” she was scoring those rhetorical points.  But the whole notion will remain a mere social construction—just as Moyn described it—unless its original foundation in divine design can somehow be revived in secular terms.

[5] I make most extensive use of Heidegger’s formulations from the first half of Being and Time (1927).  They are the most explicit and accessible in the literature.  I wish it were not so because I am not among those who see no internal connection between Heidegger’s ideas and his politics.  A philosophy that refuses Enlightenment abstraction in favor of the concrete and identifies human existence with embodiment (land, blood?) is inherently vulnerable to the blandishments of fascism.  But the example of Emmanuel Levinas, a student of Heidegger’s who went on to fuse his Talmudic studies with phenomenology, tells us that the connection is not necessary.  Levinas’ argument for the priority of the ethical over the epistemological and his descriptions of the encounter with the face are essential to this account. 

Above all, Wittgenstein’s Philosophical Investigations inspired this work. But his allusive style is irreducible.  No summary reading of Wittgenstein, academic or otherwise, can do justice to the events of understanding he provokes.  

[6] In more formal terms, we can just say that “relations” of significance and possibility constitute consciousness. It is important to notice that phenomenology entails a certain credibility to the near universal belief in an immaterial aspect of human, but “soul” talk is avoided.  The immateriality of relations between material things will prove sufficient.

[8] Marx would shift the axis of value-giving labor from the individual subject to the social subject—one of several vital Hegelian insights that survived the materialist reduction of the dialectic of absolute spirit. 

[9] It is significant that both Weber and Durkheim were at pains to reassure their readers (and themselves?) that they were not only social scientists, but regular people as well, people whose values shaped their personal and political lives and necessarily so.  They were in effect admitting—indeed, insisting—that the position of “objectivity” they assumed as social scientists was artificial, alien to their “natural” mode of being. See especially Weber’s famous lecture “Science as a Vocation”, 1917.

[10] I say “partially” because the moment comes when students always ask, “Well, ok, but what came before the big bang?” and no answer is forthcoming.

[11] This is not to say that science intentionally misleads with a “masquerade” but only that, insofar as its explanations of the origins of things are taken to be answering the question “Why is there anything at all?”—they are in fact misleading.  The question of why is not even addressed by explanations of how.