Frans de Waal has questioned the liberal notion that humans are primarily defined by selfishness. De Waal claims that primates are gregarious and guided by empathy. Hence, he argues we should return to Adam Smith's focus on empathy. We believe a return to pragmatism would be more appropriate. Pragmatism largely conforms to the view of human nature that De Waal's research now supports and can provide a more sophisticated framework to integrate recent insights about primate sociality into political and legal theory.
The intelligent acknowledgment of the continuity of nature, man and society will alone secure a growth of morals which will be serious without being fanatical, aspiring without sentimentality, adapted to reality without conventionality, sensible without taking the form of calculation of profits, idealistic without being romantic.
-John Dewey, 1922 (1983, 13)
At the core of much present-day, liberal, legal and political theory there is a notion of human nature defined in terms of individualism, rationality and selfinterest.1 This definition is central to most forms of contract theory. People are assumed to be calculating and self-regarding loners, reluctant to join the bonds of social union. An autonomous individual can only be asked to suffer the burdens of community, many legal and political theorists suggest, if certain preconditions are met and individual freedoms are guaranteed.
Primatologist Frans de Waal has become increasingly vocal in his criticism of these presuppositions of modem liberal thought and the bleak view of human nature implicit in them. Liberal theory, De Waal believes, would benefit from a better understanding of the gregarious and intensely social nature of human beings. Nature has an undeserved bad name in political and legal theory. What is central in the life of our nearest cousins, the social primates, is not individualism and self interest, but sympathy and empathy. To accommodate this insight, De Waal suggests a return to Adam Smith's theory of moral sentiments. Adam Smith intuited the central importance of sympathy and emotion for the development of morality, according to De Waal, and managed to construct a moral theory that is much more in tune with the embryonic morality that can be observed among primates.
There is much to be said for this return to Smith. Smith is a highly original thinker who can still suggest new directions for legal and political theory.2 Yet, in this article we will argue that for the reconstruction of legal and political theory that De Waal proposes, pragmatism would be a more suitable framework than Smith's moral sentimentalism. For the project that De Waal wants to pursue, i.e. the reconnection of political and legal theory with their moral roots in primate sociality, there seems to be a great deal more overlap with the classical pragmatists than with Smith. Smith's theory of moral sentiments predates Darwin and eschews many of the central premises of evolutionary theory. In the end, it is a theory primarily inspired on classical virtue ethics, not on a naturalistic recognition of the mammalian origins of our morality. The pragmatists, on the other hand, fully integrated the implications of evolutionary theory into their philosophical thought and drew on the best scholarship of their day to ground their perspective on a scientifically mature understanding of "man in nature."3 In an earlier work De Waal argued for the development of a Darwistotelian view; a view which fused the evolutionary insights of Darwin with the virtue ethics of Aristotle - in many ways a precursor of Adam Smith (2001, 81-82). Our suggestion would be to develop not a Darwistotelian, but a Darweyan perspective, which fuses Darwin's insights with the philosophical and moral theories of John Dewey and other pragmatists.
There are a number of reasons why an association with philosophical pragmatism would be more fitting than a return to Smith and Aristotle. …