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Saturday, October 13, 2007

Why Evolutionary Biology is Relevant to the Law: A Challenge to the Gruter Institute & to Brian Leiter/Michael Weisberg

Hello all.  I have been planning on blogging for some time now, but have gotten distracted by one thing after another.  I apologize for the delays.  For my inaugural post, I thought I would comment on a topic that is of special interest to me: evolutionary psychology and the law, and the piece that Brian Leiter and Michael Weisberg (hereinafter Leiter) have recently been working on entitled “Why Evolutionary Biology is (so far) Irrelevant to Law.”


Let me start by placing my cards on the table.  I myself spent a good deal of time in my dissertation (in philosophy, from the University of Michigan) drawing on, and extending, contemporary advances in evolutionary psychology and evolutionary game theory to defend a number of claims that I believe are highly relevant to the law.  I nevertheless began my philosophical career as a staunch and vigorous skeptic that any such connection might exist, and this skepticism was borne of a number of concerns that I believe Leiter shares.  Have I shed those concerns?  No, but, after a great amount of immersion in the topics, I have begun to think that there are also some promising avenues for establishing a link.  My reaction to Leiter’s piece is thus complicated and bifurcated.  On the one hand, I believe that the types of criticisms he has produced are deeply valuable and important—indeed, in ways that outstrip their truth-values in a number of senses that I will explain.  On the other, I do not believe that Leiter has established anything nearly as broad as the irrelevance of evolutionary biology to the law (even “so far”), and I would hate for promising avenues to go unexplored on premature grounds.  So much of what I’ll be trying to talk about here is how to separate the wheat from the chaff: both from Leiter’s critical piece, and from contemporary advances in evolutionary psychology.  In the process, I’ll offer some concrete examples of the relevance of evolutionary biology to the law (many of which are detailed HERE, in my piece The Deep Structure of Law and Morality), and I’ll end with some positive suggestions about how work in this area might advance.

Leiter’s piece has received quite a bit of recent attention in legal academic circles, and this is partly because his thesis is of special local interest: it purports to undermine an emerging intellectual paradigm within legal academia.  I nevertheless prefer to view Leiter’s piece as part of a much longer and more venerable tradition of what I’ll call “precautionary” or “debunking” reactions to excessive normative and/or social claims that have been purportedly justified on evolutionary grounds.  I am reminded, here, of what Phil Kitcher has aptly described as the “history of brave, but disastrous, ventures into evolutionary ethics”; and also of a rather dismal list of historical events, including: (i) the eugenics movement, which drew heavily on evolutionary conceptions of fitness purportedly to justify the intentional and systematic eradication of some persons from our ongoing gene-pool; (ii) Herbert Spencer’s claim that laissez-faire economics could be justified in terms of evolutionary concepts like survival of the fittest; and (iii) the uses of evolutionary theory purportedly to justify everything from sexist gender-based hierarchies, to ethnical cleansing and forced sterilizations of the poor.  Now, anyone well-acquainted with both philosophical standards of moral argumentation and the full facts about evolutionary theory will know that all of the above “evolutionary justifications” were nothing more than shams.  But that’s just the problem: not everyone is (indeed, very few people are) immersed enough in both of these difficult fields to discern all the problems.  When a situation like this arises, there is the unfortunate possibility that people will be able to use poorly reasoned and false forms of argumentation to give their pre-existing ideological goals the unearned look of scientific authority.  And the results can—and have—been disastrous. 

What the above facts point to, I think, is the need for more highly developed mechanisms to police the normative and social claims that are sometimes made on the basis of evolutionary biology.  Here too, however, there are a number of obstacles that we should be aware of, and that arise in part from the interdisciplinary nature of such claims, given the way that existing disciplines have been divided.  Evolutionary biologists, for example, are typically trained to develop and test empirical hypotheses and to engage in empirical theory-construction of a particular kind.  But they are not trained, in the way that every moral and legal philosopher must be, to subject normative claims to rigorous scrutiny.  Nor are they trained in the way that many social scientists and lawyers are to understand the intricacies and nuances of important social phenomena.  (And of course, the relevant reverse propositions are also true.)  It can thus require immersion in a number of fields, with different methodologies and paradigms of knowledge production, to be able to perform the appropriate policing.  Moreover—and I think this is key for us to understand within the legal academy—legal academic publishing is presently an area where the general problem under discussion can arise with incredible force and possibility of ill.  I say this for a number of reasons: (1) because our field is particularly poor at policing the quality of argumentation that appears in our journals (for reasons that are well-known and need not be rehearsed here); (2) because this problem is especially acute when it comes to the kind of advanced interdisciplinary work that would be needed to produce helpful connections between evolutionary theory and the law; (3) because we are nevertheless asked to churn out normative proposals in legal publications, almost as a matter of course; and (4) because our normative proposals can, by virtue of our positions as authorities in our field, end up having large-scale effects on the law, and, hence, on many people’s lives.  In light of facts like these, it seems clear to me that we need policing here more than ever.  And it is for this reason that I take critical work like Leiter’s to represent a deeply important and helpful part of any useful emerging phenomenon that might be called “evolutionary biology and the law.”  This is also why I believe that the precautionary value of such criticisms can outstrip their truth-values in important ways, and why I think work like Leiter’s may not even go far enough, in the end, to play the full precautionary role that is needed.


So much, then, for the precautionary and social importance of work like Leiter’s.  When turning to substance, I want to make three main points about Leiter’s piece that should bear on the potential of this emerging field.  First, as discussed more fully below, the arguments Leiter makes in his article actually have a much narrower target (re: the class of claims made by evolutionary psychology) than the broad, precautionary reach of his title might suggest.  Second, the time-indexed nature of Leiter’s criticisms (i.e., that evolutionary biology is “so far” irrelevant to the law) suggests that his criticisms are focused on evolutionary biology viewed as a set of empirically well-confirmed propositions about a specific subject matter rather than as a procedure for the production of such knowledge.  And third, many of Leiter’s criticisms have what I’ll call an ‘intesticine’ quality to them: they would, in an ideal world, be viewed as voicing standards of rigor that should guide the internal processes of knowledge production in these areas, rather than as arguments that undermine the very possibility or promise of this interdisciplinary sub-field.


Beginning with the first point, a close read of Leiter’s piece suggests that the target of his criticism is actually much narrower than the title of his piece might suggest.  At the end of the day, Leiter’s arguments challenge only the proposition that (*) there are any currently well-confirmed findings in evolutionary psychology that can be used to establish the non-plasticity of any behaviors.  If one assumes—as Leiter, following some of the people he criticizes, does—that the only (or even primary) way that evolutionary psychology might be relevant to the law is if it can help establish or identify certain behaviors that are non-plastic, then Leiter’s arguments might have the broad ramifications that his title suggests.  But there are other ways that evolutionary psychology might be relevant to the law, which openly assume the plasticity of human behavior.  Here are some examples from my own work:


1.                   Evolutionary psychology might be used to help us identify and characterize the structural features of distinctive psychological capacities that we have, such as our ability to identify and respond to obligations.  In my own work entitled The Deep Structure of Law and Morality, I draw on evolutionary pscyhology to do just this, but I am also careful to observe that our sense of obligation appears to be deeply plastic and flexible in terms of content, and that we are also free in a very real sense to develop legal proposals or systems that do not aim to engage this natural sense of obligation in any way.  Insofar as the law engages our natural sense of obligation (as it does in numerous ways), however, it can be very helpful to understand better about how this capacity functions and displays itself in our lives. 


2.                   Developments like those discussed in the last paragraph can serve as a powerful antidote to assumptions that are sometimes made in the social sciences but that are completely unconfirmed and, hence, pseudo-scientific.  Here I am thinking of the assumption that is so often made in legal academia that human action is fundamentally instrumental and the product of two distinct and separable capacities: i.e., one distinct “cognitive” capacity (which aims to form true beliefs  about the world), and one distinct “motivational” capacity (which inclines us to promote various desired states of affairs).  On this view—which is most often assumed in law and economics circles—people reason in fundamentally instrumental ways all the way down.  Moreover, although behavioral economists have recently developed a number of important criticisms of this so-called “homo economicus” model, and have shown how we often act instead on the basis of a number of identifiable heuristics or biases, these criticisms tend to leave unexamined the assumption that human action is fundamentally instrumental in nature. In The Deep Structure of Law and Morality, I have argued, to the contrary, that plausibility considerations arising from a sound understanding of evolutionary biology suggest that our sense of obligation functions in a much more complex way than this: it patterns our lives and social interactions in ways that are better understood as engaging fundamentally deontological attachments to rules and non-consequentialist relations to other persons.  Given the number of normative proposals in the legal literature that are currently premised on a different, and ultimately less evolutionarily plausible, set of behavioral assumptions, evolutionary psychology should be highly relevant as an antidote to some of the claims.  (To be clear, I do not mean to suggest that the recent claims made by behavioral economists are poorly confirmed.  I mean to point out that the homo-economicus model is poorly confirmed, and that behavioral economists have, for the most part, focused thus far on identifying empirical problems with this model that can be identified from within a fundamentally instrumental paradigm.  In my view, they have thus not yet fully grasped what I take to be the more fundamental problem with the instrumentality of the model itself—at least if it is meant as an exhaustive account of human behavior.) 


3.                  Similarly, evolutionary psychology might incline us to question the viability of normative proposals that would engage capacities like our natural sense of obligation, while trying to pick and choose parts of it that are hard for us to separate psychologically.  Here is how I put the point in The Deep Structure of Law and Morality: “On the other hand, a clear understanding of how these capacities function is likely to help clarify what would be involved with normative proposals that would engage these capacities.  Here, an analogy with language is again helpful.   The deep structure of language is—in Chomsky’s view—part of what gives us the capacity to understand and express the rich variety of thoughts that we see in all natural languages and to learn and use languages so naturally.  One might try to construct a system of communication for the same purpose that does not employ these natural capacities, but the evidence suggests that such systems of communication require excessive conscious processing and thought, are difficult to learn and unstable in human memory, and do not have nearly the richness and flexibility of expression of languages that directly employ our native linguistic capacities.  While our capacities to identify and respond appropriately to obligations may give us the freedom to understand obligations with any particular content, a similar point may apply to our moral and legal practices.  The attitudes that allow us to respond to moral and legal obligations are—for reasons [explained in the Article]—a bundle of psychological phenomena, which tend to come together as part of a distinctive syndrome.  Hence, while normative assessments about the appropriate content of morality and law may be useful, and while it may be useful to discuss the appropriate roles of morality and law in our lives, it may be very difficult for us to sustain normative proposals that would require engagement of parts of our moral and legal psychologies along with an abandonment of the rest.  As with the analogue in language, we may be able to respond to such normative proposals only haltingly, with great difficulty, or in an unstable manner.  If so, these are facts that we should understand about ourselves.  An understanding of these facts will likely bear on what normative questions about morality and law are genuine and live.”


4.                  Evolutionary psychology might help guide the formation of knowledge about human behavior, even when the knowledge itself is produced primarily through direct observations of behavior.  One of the very helpful points Leiter makes in his article is that it will often be unfruitful or otiose to try to establish facts about human behavior through evolutionary psychology when the same facts can be established much more easily, more directly, and more non-speculatively through ordinary observations of human behavior.  I agree.  Still, one of the things that evolutionary psychology can do is to help us place discrete observations of human behavior into a larger theoretical framework, which might, in turn, help guide further observational inquiries in ways that might be relevant to the law.  For example, we know that fathers are more prone (cross-culturally) to engage in higher rates of infanticide when a child does not look like his own.  If we were to hypothesize that this behavioral fact might reflect an evolutionary adaptation, then that hypothesis might help us identify underappreciated factors that would tend to trigger such behavior.  (For example, we might begin to look for features of a social situation that will tend to engage the father’s natural sense of parental affection and extend it to those who are not biologically related.)  If we were able to find such non-obvious triggers, then we might be able to reduce the instances of infanticide in ways that would not at first be obvious.  To find these triggers would, of course, require ordinary empirical observations of human behavior as well, but the point is that evolutionary psychology would help to guide our observational practices, not that it would establish empirical facts in the absence of such observations. 


5.                  Evolutionary psychology might be relevant for the legal analogue of what philosophers call ‘meta-ethics’: the study of the meaning or status of our normative claims.  In particular, there is a well-developed line of meta-ethical thought, which aims to account for the meanings of our normative language as expressive of various psychological attitudes that have motivational force.  One division between these so-called “expressivists” is over the precise psychological attitude that we purportedly express with our normative language, and evolutionary psychology might help to shed light on what the relevant attitude is (or attitudes are).  Similarly—and now contrary to what many of the expressivists in the current literature believe—it is possible that an evolutionary account of the causal etiology of our sense of obligation will show it to track certain natural features of the world.  If so, then evolutionary theory may help show how language that is expressive of our natural sense of obligation may nevertheless have cognitive content (an idea that I begin to explore in my dissertation, but which I have not yet put into publication).


This list is, of course, illustrative only, and could be extended with an appropriate amount of thought and creativity.  But as far as I can tell, nothing in Leiter’s piece undermines the possibilities just mentioned.  (In fairness to Leiter, I should say that, in an e-mail to me, he once said that he did not take the criticisms he was developing (at least in an earlier form) to bear on my work.  I would not want to assume that this is still his mature view, but Leiter does not target my work in his piece, so I would also not want to suggest that he is unaware of anything I have said so far, or would necessarily disagree.  Indeed, I suspect he is more concerned with the kind of potential problem that I discussed at the outset of this post.  And a close reading of his piece--as opposed to his title--suggests that he is well-aware of the narrow scope of his actual target.)


The second point I want to make about Leiter’s piece has to do with its focus.  Leiter attends primarly to the question whether evolutionary biology has yet produced any well-confirmed propositions that might be relevant to the non-plasticity of various human behaviors.  But when assessing the potential relevance of evolutionary biology to the law, especially at this early stage, I think it would be more helpful to think of evolutionary biology as a procedure for knowledge production, rather than as a set of well-confirmed propositions.  I say this because, for reasons already discussed, I do not believe that enough advanced interdisciplinary work has yet been done to identify potential ways that evolutionary biology might be relevant to the law, or to guide evolutionary research in ways that are likely to yield useful insights.  In my view, the promise and usefulness of this emerging paradigm will therefore likely depend critically on whether it can develop internal standards of rigor that will both (i) help its participants avoid many of the problems pitfalls that people like Leiter have identified and (ii) guide research in ways that have the highest likelihood of producing useful insights.


This brings me to my third and final point. If we were to view evolutionary biology as a procedure for knowledge production (with a specific subject matter), rather than as a set of propositions (about that subject matter), then I think we will want to reinterpret the upshot of many of Leiter’s criticisms.  Rather than viewing them as challenges to the viability of the emerging subfield, they should be construed as attempts to begin articulating some of the internal standards of rigor that should guide work in this field (much as formal logic has done for our ordinary processes of deductive reasoning).  A number of Leiter’s criticisms appear to me, for example, to point out things that anyone familiar with evolutionary biology should know: facts about how evolutionary theory does not necessarily posit natural selection as the only possible type of evolutionary explanation, facts about what would be required to establish a plausibel selectionist account of a behavior, facts about how biological explanations do not necessarily support inferences about the inflexibility of behavior, and so on.  To whatever extent people doing work in evolutionary biology and the law do not acknowledge such facts, this would thus seem to me to reflect a failure on their part, rather than a failure on the part of any genuine thinking about genuine evolutionary biology to produce genuine insights relevant to the law. Similarly, there can be an unfortunate tendency on the part of those who are less familiar with philosophical standards of moral argumentation to believe, falsely, that they can draw normative inferences from biology too easily.  (The opposite assumption--that biology can never be relevant to any normative claims--rests on a similarly unfortunate misinterpretation of the bearing of the is-ought gap on normative argumentation.)  Finally, I find that many moral philosophers are less than fully acquainted with many of the nuances of our normative practices than they could be.  They often suffer from what Wittgenstein once called “the philosopher’s disease”: namely, a one-sided diet of examples.”  (For example, they conceive of contracting on the model of promising, and then build their view of the morality of promising-keeping around the very simple case when one has made a promise and then decided arbitrarily to break it.)  But this is a disease that few familiar with the broad run of legal cases in a given area can sustain for long.  (No one familiar with the nuances of contract law could think it stands for the simple proposition that one ought to keep one's promises.  What about duress? Unconsionabality?  The vagaries of interpretation and discerning mutual assent?  Etc.)  If, however, Leiter’s piece is reinterpreted as helping to articulate standards of rigor that might help guide the “evolutionary biology and the law” paradigm—now viewed as a procedure for knowledge production of a specific kind, rather than a set of empirical propositions—then I do not think his work goes nearly far enough.  This is, of course, no criticism of Leiter himself, who cannot play the relevant policing role all on his own.  Though prolific in his postings and writings, Leiter is--after all--only one man.  (Or perhaps two, in this case, given Michael Weisberg's input.)


What I would therefore like to see, as part of the emerging “evolutionary biology and the law” movement, is the articulation of a set of standards of rigor that participants can subscribe to.  The standards would need to be thought out in an advanced interdisciplinary setting, with participants from a number of fields, including, at minimum, evolutionary psychology, evolutionary biology, legal studies, moral philosophy, the philosophy of science, and economics and behavioral economics.  We cannot rely on present degree conferral systems to produce the relevant proficiences, because the disciplines are themselves divided in ways that fail to produce the relevant interdisciplinary training in any systematic way.  In these circumstances, I believe it would be immensely helpful to develop an informal set of standards of analytical rigor for this type of work, for a number of reasons.  First, people could use these standards to quickly and easily expose errors that arise in rogue work in these areas—and without having to reinvent the wheel at each instance.  Second, the standards could be used to develop research projects and guide research to ensure that a broad set of problems are identified before people go off engaging in expensive research that is likely to prove fruitless.  Third, the articulation of such standards would give people who are interested in these areas something to grapple with and learn before making overly broad or unbased claims in a rush of excitement.  (I would love to see, for example, people indicating at the beginning of an article that they have internalized the set of standards in question, and that they either certify that their work is consistent with those standards, or, alternatively, that they disclaim adherence to one or more standard because they believe it is inappropriate for specific reasons.)  In my view, the development of such standards would do much not only to help police work like this in an arena that desperately needs better policing, but would also set the “evolutionary biology and the law” movement on a much firmer trajectory, with a very long shelf-life.  The project is needed, and would have great social value.


So where are standards like these likely to be best developed?  I have three words: The Gruter Institute.


Just last Spring, I was fortunate enough to be involved in the Gruter Institute’s Conference on Law, Biology and the Brain, and to see what an extraordinary group of thinkers that the Institute has been able to bring together.  The people represented the full range of cognate fields relevant to the present discussion, and the discussions were free from many of the interdisciplinary forms of rancor that one sometimes see when professionals from different disciplines get together.  Indeed, the level of the discussion was incredible, and the results of the discussions nothing less than thrilling.  Somewhat coincidentally, I recently received notice that the Gruter Institute has, in fact, obtained a $10 million, 3-year grant from the John D. and Catherine T. MacArthur Foundation, for a project aimed at integrating new developments in neuroscience into the U.S. legal system.  (See press release here.)  To do this, the Gruter Institute will apparently be working together with a group of scientists, legal scholars, jurists, and philosophers from across the country to work on an interdisciplinary basis on the project.  According to the press release, the Gruter Institute will lead education and outreach under the grant, and facilitate numerous yearly conferences aimed at educating state and federal judges and others in the legal arena about neuroscientific findings relevant to the law.  I am not sure whether the grant should be construed as covering developments in evolutionary psychology that are relevant to the law, but I sincerely hope that it does reach that far.  Even if it does not, the Gruter Institute has been creating precisely the kind of interdisciplinary forum that is in the best position, in my view, to develop the kinds of standards that I have in mind. 


I would therefore like to issue a challenge of kinds: I challenge the Gruter Institute to organize a conference dedicated to developing 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.  And I challenge Brian Leiter and Michael Weisberg either to participate in such a conference, or to reinterpret their own work so that it can be put into a form that would best inform such a debate.  And—of course—I would be more than happy to put my own two cents into the process at any relevant stage.


I welcome thoughts and/or reactions from all quarters.

Posted by Rob Kar on October 13, 2007 at 07:28 PM in Legal Theory | Permalink


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In response to Brian’s question about my earlier comment: Perhaps I am reading too much into Ulen’s article. I read the paragraph Ulen wrote that starts with the sentence: “The first caution comes from my uncertainty about how to integrate evolutionary forces into the multiple sources of effect on human behavior,” and comments elsewhere in his article as foreshadowing the argument you characterize as the Environmental Gap Objection. Similarly, I read the sentence that refers to “behavioral economic analysis of law, political philosophy, and pragmatic policy considerations” as “the three most important guides to how law should address legal issues” as comparable to your argument that evolutionary analysis in the law currently has limited or no policy applicability.

One other small point, if I may. In several places I read your article to suggest that evolutionary biologists are solely concerned with “etiological accounts of how a trait evolved.” You probably would agree that most evolutionary biologists are interested in both addressing these functional questions and also more proximate, mechanistic questions, as suggested by your excellent discussion of the lactose-intolerance trait. As Mayr nicely wrote: “Yet, as I have always insisted, no biological phenomenon is fully explained until both proximate and ultimate causation are illuminated.” Mayr, This is Biology, p. 118.

Posted by: Mike Guttentag | Oct 15, 2007 6:22:56 PM

Perhaps I have been overboard in my vitriol. Suffice it to say that I have serious problems with Leiter and Weisberg's piece. I agree they have presented the criticisms that others have levied. I am not convinced they have fairly presented the rejoinders to those criticisms.

Posted by: anon | Oct 15, 2007 3:18:23 PM

I am very happy that this post is provoking discussion and commentary. Let me just say quickly, though, that I hope the discussion proceeds at the level of substance. Leiter and Weisberg's piece make a number of points (e.g., about the criteria needed to support a selectionist explanation as distinct from other forms of evolutionary explanation, about the difficulties inherent in making inferences about human behavior from evolutionary accounts of animal behavior, and so on) that are useful and, in my view, on point. They are not rooted in a plea to just trust L/W, and they are facts that anyone doing work in this area should be aware of. (There are, in fact, many other potential pitfalls that should be avoided, which were not mentioned in the L/W piece.)

In answer to anon's question why I have focused on Leiter's and Weisberg's piece: I have done so because I perceive it as playing a role in generating perceptions within the legal academy about the ultimate viability of the law and evolutionary biology movement, and because I believe that that role should be shifted. What I would like to see--as I mentioned in the main post--is a shift in the debate, away from whether the emerging subfield has any promise at all, and toward a more fruitful interdisciplinary look at how the field might begin to advance itself while constraining its own excesses.

As a sidenote, I remember when I first started drafting my dissertation, I began it with 100+ pages of what were essentially "throat-clearers": paragraphs designed to let the reader know that I wasn't making error A, B, or C, before I even started into my affirmative arguments. At some point, my advisors suggested that I just cut those parts and start doing work that avoids those problems. I almost wish I still had those drafts, now, because they might have been useful for just the kind of project I am talking about. In any event, this is my first blog post, so I'm not sure what the etiquette should be in terms of anonymous posting and the like. I do, on the other hand, hope that interested parties (**including Leiter and Weisberg**) will feel comfortable weighing in in ways that might help advance the debate.

Posted by: Rob Kar | Oct 15, 2007 3:13:37 PM

Everything may be fair game in philosophy, but please tell me why I should believe Brian Leiter's account of the science of evolution over anyone else's. Basically, Leiter and Weisberg is arguing: (1) "We believe evolutionary psychology is junk science" and (2) "Here is the research that supports us". This is unconvincing because: (1) Leiter and Weisberg are wading into a scientific--not legal or philosophical--debate, and they are very much accusing an entire field of misrepresenting results and doing junk science; and (2) their presentation is awfully slanted: they cite Lloyd et al. (biologists) for scientific criticisms (I do not mean to disparage Lloyd, she is just the person that Leiter and Weisberg rely on most), but then mainly cite Jones et al. (lawyers) for the defenses. Again, if I write a paper quoting Discovery Institute PhD's for all the scientific problems and holes with evolution--and yes they exist, as in all scientific theories, though not to a level that really impeaches the theory--but then cite lawyers who defend evolution, I am sure I can make an awfully convincing-sounding case against evolution.

Posted by: anon | Oct 15, 2007 2:38:26 PM

erratum: 'And insofar..."which they largely are,"....'

Posted by: Patrick S. O'Donnell | Oct 15, 2007 8:32:28 AM


Although no doubt Leiter and Wiesberg can well acquit themelves, and while I find myself philosophically at odds with Leiter on several subjects, this is one where I think he (and Weisberg; hereafter L & W) are right on target and perspicaciously if not perspicuously so (would it that a similar piece were written about the bewitchment by some in the legal profession with this or that study just published in the field of neuroscience).

First, as to your charge that "Leiter and Weisberg go way beyond their field (philosophy), smearing the reputation of multiple respected scientists along the way, all by simply blindingly appealing to the views of other biologists with an axe to grind (e.g. Elizabeth Lloyd)," that is completely and exquisitely preposterous, serving simply to reveal an appalling ignorance of what philosophy is all about. *Everything* is fair game for philosophy and thus in *that* sense appeals to the the disciplinary borders of the profession are unavailaing. And insofar as L & W are arguing within the parameters of what counts for scientific theorizing and philosophy of science, which they largely do, they happen to be firmly ensconced within those parameters (the fact that not a few members of the profession see philosophy as continuous with science or are, loosely, of a 'scientistic' bent, is a problem for another day and not germane here). And their critique of the theory and methodological practice of evolutionary psychology has support (when not overt, it might be inferred) not only from Elizabeth Lloyd (into whose motives you appear to have privileged access, apart from the descent into a fallacious as hominem), but a significant number of others in the field of biology, as well as those doing philosophy of science. A fine and timely example of the latter is David J. Buller's book-length critique of the work of some representative and popular figures in the field: Adapting Minds: Evolutionary Psychology and the Persistent Quest for Human Nature (2005). And Jerry Fodor's inimitable review of same: "The Selfish Gene Pool," The Times Literary Supplement (July 27, 2005) (available here: http://www.niu.edu/phil/~buller/research/adaptingminds.shtml) confirms the persuasiveness of the bulk of Buller's critique and thereby that of L & W as well (and thus by implication, its putative value to the legal profession). Indeed, Fodor suggests other reasons why one might be dissatisified with what he identifies as the main thesis of evolutionary psychology (having to do with the philosopher's understanding of the nature of intentionality, and belief/desire explanations generally), reasons that might be applicable to Rob Kar's attempt to rehabilitate (or salvage) evolutionary psychology's relevance to the law.

Neither L & W, or Buller for that matter, engage in a fallacious ad hominen attack, so one need not worry about "smearing the reputation of multiple respected scientists," who need to be thick-skinned in any case given the nature of scientific practice insofar as it involves, in the first instance, exposing one's hypotheses and theories--however cherished, the result of arduous labor, or costly in time and money--to the (ideally) careful scrutiny of others in the profession, but secondarily entailing scrutiny of another kind and stricly speaking outside the profession: by those involved in "science studies" of one sort or another (e.g., Steve Fuller), as well as those practicing philosophy of science.

L & W did not need to christen the credibility of those they cited, as their authority in the respective fields in which they work preceded them and accords their views at least prima facie plausibility, which is hardly the case with arguments emanating from the Intelligent Design folks of the Discovery Institute. The anxiety exuded by your concern with "lofty-sounding PhDs" seems utterly misplaced and suggests academic envy and intellectual insecurity.

It was either prudent or wise of you to rely on a pseudonym.

Posted by: Patrick S. O'Donnell | Oct 15, 2007 8:30:11 AM

Actually, the Leiter/Weisberg paper contains rather detailed arguments; no one is asked to accept anyone's conclusions on the basis of anyone's "word." Reading the paper may have been a "social loss" if you didn't, in fact, follow or understand any of the arguments. Michael Weisberg, by the way, is a philosopher of biology.

Posted by: anon2 | Oct 15, 2007 8:09:27 AM


I agree with your general views, but why publicize Leiter and Weisberg's thinly disguised "hit piece" on evolutionary psychology in general and Owen Jones in particular? Basically, Leiter and Weisberg go way beyond their field (philosophy), smearing the reputation of multiple respected scientists along the way, all by simply blindingly appealing to the views of other biologists with an axe to grind (e.g. Elizabeth Lloyd). The reason a reader should take Elizabeth Lloyd's account of evolutionary biology as gospel, while concurrently believing that David Buss et al. are spewing junk science is . . . the word of Brian Leiter, professor of philosophy at UT Austin! (notably, Buss is himself a professor of psychology at UT Austin). I see no societal interest in garnering attention to this paper (I count the 50 minutes I took reading it--inspired by your post--as a total social loss).

Just as Leiter and Weisberg have done, I could easily write a paper criticizing law professors who cite evolution generally, trash the underlying science by quoting lofty-sounding PhD's working out of the Discovery Institute with an axe to grind, and then conclude that evolution has nothing to teach the law because, according to me and a bunch of people that --I-- deem credible, evolution is junk science that is not well established. A less persuasive paper than Leiter and Weisberg is not hard to find, but only because of the lax publishing standards in legal academia.

Posted by: anon | Oct 15, 2007 4:01:52 AM

What precise argument in the Ulen piece ought we to have cited? Tom's piece was much friendlier to Professor Jones's enterprise, and certainly when I presented an earlier draft of our paper at Illinois, Tom did not bring this up, so the similarities apparently did not strike him.

Posted by: Brian | Oct 14, 2007 6:14:43 PM

This is a wonderful post. Three observations: first, you are certainly correct that the Leiter/Weisberg criteria would challenge much legal scholarship, well-beyond that in the evolutionary biology and law area. Second, there may be a more practical approach than your recommendation that the movement establish a set of scholarly standards, an approach suggested by looking to the empirical legal studies movement. The establishment of a peer-reviewed journal that relies on referees from both disciplines offers one way to enforce a higher degree of rigor. Perhaps, skeptics such as Leiter and Weisberg could be on the editorial board along with proponents to insure that publication standards are maintained at a high level, and, if the journal were set up as an on-line only journal, there would be less pressure to publish a given number of articles, regardless of quality. Finally, I enjoyed the Leiter/Weisberg article, which I had not seen, but would note that similar observations were made several years earlier by Tom Ulen in Dunwoody Commentary: Evolution, Human Behavior, and Law: A Response to Owen Jones’ Dunwoody Lecture, 53 FLA L. REV. 931 (2001) (ironically not cited by Leiter/Weisberg given that their paper was presented at Illinois).

Posted by: Mike Guttentag | Oct 14, 2007 3:27:00 PM

Another organization working in this area is Seal: The Society for Evolutionary Analysis in the Law. Their website, law.vanderbilt.edu/seal/, contains a great deal of information on Behavorial Biology and the Law, including an extensive bibliography. You can find my article Postmodern Legal Thought and Cognitive Science at http://ssrn.com/abstract=942812. I will be posting an article on behavioral biology and constitutional analysis on SSRN in a few weeks.

Posted by: Scott Fruehwald | Oct 13, 2007 11:01:36 PM

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