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Monday, October 29, 2007

SEAL & The Developing Field of Evolutionary Biology and the Law

I've just returned from the 9th Annual SEAL (Society for the Evolutionary Analysis in Law) Conference, and, given that I recently posted on the possible relevance of evolutionary biology to the law here, I thought I would provide a brief update on some of my observations at this conference.

First, an update on Brian Leiter and Michael Weisberg's piece "Why Evolutionary Biology is (thus far) Irrelevant to Law."  In  my prior post, I argued that the criticisms found in this piece are better understood as giving voice to internal standards of rigor that should guide the processes of knowledge formation within this emerging field, rather than as grounds for dismissing the field altogether.  I was thus very happy to see that almost none of the participants made the mistakes that Leiter and Weisberg raised as potential pitfalls for this kind of work.  (When excesses did occur, they were typically corrected in the process of question and answer.)  Nor did any of the participants draw on evolutionary biology to try to establish the inflexibility of any particular behaviors, thus suggesting (to me, at least) that most of the participants in this subfield are currently aiming to produce work that escapes the Leiter/Weisberg challenge.  I don't know how far back this goes, and I do not know whether to give Leiter/Weisberg the credit for this, but it does make me very happy to see that profitable lines of inquiry are being pursued.  (As readers of my original post know, I would personally love to see a greater and more explicit recognition from within this subfield of the full panoply of potential obstacles that can arise for claims made therein.  The Leiter/Weisberg piece addressed only a few.)

Second, Jeff Stake (the President of SEAL) ended the Conference by citing my challenge to the field to develop "a clear set of internal standards of rigor to help place the emerging field of “evolutionary biology and the law” onto a firmer and more fruitful trajectory."  He prompted discussion of the idea, and, as one would expect from any group of law professors (and their kin), a number of competing views were voiced.  One view that I think must be at least partly correct relates to the need for parity among the fields.  In particular, some argued that this field should not be held to a greater standard of rigor than other fields, especially when other fields are being used to support claims that are even less plausible than the ones that emerge with a better understanding of evolutionary biology.  As Michael Guttentag teased out of my original blog post, the use of similar standards in application to other cognate fields would, after all, undermine many of the claims made in other interdisciplinary subfields as well. 

Perhaps I have become too impassioned about this topic, but--to my mind--this just means that these other cognate fields should take it upon themselves to engage in better self-policing as well.  We often complain that much academic work goes unread, but, in truth, law professors who do interdisciplinary work can presently have enormous impact on a number of legal and policy decisions, based on claims that have not been subjected to the kind of scrutiny that is normal in almost every other field of knowledge production.  As interdisciplinary work in the law grows, I believe this creates a special obligation for each of us to begin policing ourselves better, in a number of different ways.  And I believe, further, that there is nothing extraordinary about this obligation at all.  The obligation is currently reflected in the procedures for knowledge production in most cognate fields, in large part because they have had a much longer history of acquaintance with just these problems.  (Pieces like Gould's The Mismeasure of Man have made the problems in question highly salient within the sciences. )  But the same standards of rigor have not yet been imported into interdisciplinary work in the law in any systematic way. 

An impartial application of standards can demand not only that equal standards govern the plausibility and credibility of claims made in different interdisciplinary subfields, but also that different levels of scrutiny be applied to different claims depending on their potential impact (and, hence, potential for harm).  Ultimately, we will almost certainly have to assess questions of potential harm claim-by-claim, rather than subfield-by-subfield.  But is it just me, or do others share the view that--for whatever complex set of reasons--poorly-reasoned and ideologically-rooted claims  drawing on evolutionary biology have, all other things being equal, proven a bit more dangerous and more invidious than claims arising from many other cognate fields?  This may be due in part to the fact that the field sometimes purports to shed light (and rather direct light) on features of human nature. 

What do others think, and should any of these facts (if they are facts) bear on the standards that should be applied to claims made within this subfield? 

I invite thoughts from all quarters.  BUT PLEASE, no anonymous or ad hominem postings, and no personal attacks on any of the relevant members of the debate.  I'll leave anonymous postings that raise sincere challenges to various positions, but I don't want this discussion to devolve into anything that is not helpful.

Posted by Rob Kar on October 29, 2007 at 10:28 PM | Permalink


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Those who use evolutionary biology in legal analysis are generally carefully in how they use the observations of evolutionary biology. Just because a characteristic is evolutionary does not mean that it is good. As Professor Wilson has noted, our innate characteristics “have to be played like a musical instrument, with some parts stressed to produce results of great beauty and pleasure (by terms of the human limbic system) and other parts sublimated and averted.” Edward O. Wilson, Comparative Social Theory, in 1 The Tanner Lectures on Human Values 68-69 (Sterling M. McMurrin, ed. 1980). For example, evolutionary biologists consider violence a part of human evolution. Obviously, violence is not a human trait we want to encourage. However, if we understand how violence evolved as a part of human nature, we can better understand how to deal with it.

Despite Professor Watson's comments, evolutionary biology can provide a firm foundation to fight racism. In The Blank Slate, Professor Pinker has noted that “people are qualitatively the same but may differ quantitatively. The quantitative differences are small in biological terms, and they are found to a much greater extent among the individual members of an ethnic group or race than between ethnic groups or races." In other words, when one shows that the mind is the same in all humans, then unimportant biological aspects like skin color become irrelevant, and the reasons for prejudice vanish.

Posted by: Scott Fruehwald | Oct 30, 2007 3:31:32 PM

I agree with one of your last points. Be very careful making conclusions from this data. The fact that something is biologically motivated doesn't mean that modern humans can't reapply, ignore, or overindulge in that motivation. (Birth control, anyone?)

Even take the recent Watson flap. What if a field were to show, genetically, that people with darker skin are dumber? (Which I don't believe for a second, and I don't know anyone who works on this subject that thinks it either.) Any translation of that fact to law of all fields should be incredibly cautious, and maybe not done at all.

It is all too human to overplay small differences into wide gaps.

Posted by: Chris Bell | Oct 30, 2007 10:27:49 AM

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