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Evolution, Politics and Law Bailey Kuklin Brooklyn Law School BrooklynWorks Faculty Scholarship Summer 2004 Evolution, Politics and Law Bailey Kuklin Follow this and additional works at: https://brooklynworks.brooklaw.edu/faculty Part of the Law and Philosophy Commons, and the Law and Politics Commons Recommended Citation 38 Val. U. L. Rev. 1129 (2004) This Article is brought to you for free and open access by BrooklynWorks. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of BrooklynWorks. VALPARAISO UNIVERSITY LAW REVIEW VOLUME 38 SUMMER 2004 NUMBER 4 Article EVOLUTION, POLITICS AND LAW Bailey Kuklin* I. Introduction ............................................... 1129 II. Evolutionary Theory ................................. 1134 III. The Normative Implications of Biological Dispositions ......................... 1140 A . Fact and Value .................................... 1141 B. Biological Determinism ..................... 1163 C. Future Fitness ..................................... 1183 D. Cultural N orm s .................................. 1188 IV. The Politics of Sociobiology ..................... 1196 A. Political Orientations ......................... 1205 B. Political Tactics ................................... 1232 V . C onclusion ................................................. 1248 I. INTRODUCTION The law begins and ends with human behavior. The ends of the law focuses on human flourishing, and the means of the law is to channel human conduct. The needs and wants of humans ground the norms of the law, from the overarching to the secondary. Hence, for the law to be suitable and effective, it must be based on a clear vision of the human condition. Evolutionary psychology is a discipline that helps to meet this requisite, for it is a powerful, but controversial, vehicle for analyzing and understanding human behavior, and hence, legal and social doctrine. The aim of this article is to demonstrate the potential usefulness of evolutionary psychology. To achieve this, I discuss the The author wishes to thank Stephen M. Colarelli, Jim Fanto and Owen Jones for valuable comments on earlier drafts. Participants in the third annual SEAL (Society for Evolutionary Analysis in Law) conference also contributed useful observations and suggestions. Richard Torres (BLS 2003) and Michael Wigotsky (BLS/NYU 2005) provided excellent research assistance. A Brooklyn Law School summer research stipend supported this project. 1129 1130 VALPARAISO UNIVERSITY LAW REVIEW [Vol.38 controversy over the discipline and identify the political roots of the debate. In the end, I hope to show that evolutionary psychology provides a valuable tool for those involved in the ordering of society. While the basic blueprint of the engine of evolution was sketched by Darwin well over a century ago,' in modem times it has been chiefly restricted to the traditional inquiries of "neutral" science, until the last few decades. After initial applications of the principles of evolution to normative questions beginning in Darwin's lifetime,2 including Social Darwinism, 3 most biologists and commentators retreated from the realm of values in the face of withering, often fully justified, attacks by critics, particularly after the eugenically-justified atrocities of World War II. 4 But then, in the late 1960's, the spotlight of evolutionary principles, later under the label of sociobiology,5 was again turned to social issues. And 1 See CHARLES DARWIN, THE ORIGIN OF SPECIES (1859). For a brief outline of evolutionary theory, see, for example, WILLIAM H. CALVIN, THE CEREBRAL CODE 21-25 (1996); RICHARD D. ALEXANDER, DARWINISM AND HUMAN AFFAIRS 15-18 (1979). 2 See RICHARD HOFSTADTER, SOCIAL DARWINISM IN AMERICAN THOUGHT 4-11 (rev. ed. 1955). Dennett holds out Thomas Hobbes as the first sociobiologist, two centuries before Darwin. See DANIEL C. DENNETT, DARWIN'S DANGEROUS IDEA 453-55 (1995). Let us also not forget Hume. See, e.g., DAVID HUME, ENQUIRIES CONCERNING HUMAN UNDERSTANDING AND CONCERNING THE PRINCIPLES OF MORALS 83-86 (L.A. Selby-Bigge ed., 3d ed. 1975) (post. ed. 1777). 3 See, e.g., MICHAEL RUSE, Evolutionary Biology and Cultural Values, in EVOLUTIONARY NATURALISM 202, 208-09 (1995). See generally HOFSTADTER, supra note 2. 4 "[Tlhere have been few excesses of nineteenth-century capitalism or twentieth-century militarism and fascism that have not had their biology-oriented partisans. Choose your vileness, and there has been someone prepared to defend it in the name of evolution." Michael Ruse, Evolutionary Ethics in the Twentieth Century: Julian Sorell Huxley and George Gaylord Simpson, in BIOLOGY AND THE FOUNDATION OF ETHICS 198, 198 (Jane Maienschein & Michael Ruse eds., 1999). 5 "Sociobiology is a school of thought which is centred [sic] on the idea that because the perpetuation of genetic material is the driving force of evolution, many of the properties of animals - indeed, the properties of all living things - including their social behaviour, must be understood in that light." HENRY PLOTKIN, EVOLUTION IN MIND 62 (1997). For the three strands of sociobiology, see id. at 75-88. See also CHARLES J. LUMSDEN & EDWARD 0. WILSON, PROMETHEAN FIRE 23 (1983) [hereinafter PROMETHEAN FIRE] (Sociobiology "is defined as the systematic study of the biological basis of all forms of social behavior (including sexual and parental behavior) in organisms, up to and including man."); Paul Thompson, Introduction to ISSUES IN EVOLUTIONARY ETHICS 1, 3 (Paul Thompson ed., 1995) ("Sociobiology is, in essence, the application of modern evolutionary theory to the investigation and explanation of, as well as the integration of knowledge about, the social behavior of animals including humans."); Edward 0. Wilson, The Morality of the Gene, in ISSUES IN EVOLUTIONARY ETHICS, supra, at 153, 155 [hereinafter Wilson, Morality of the Gene] ("Sociobiology is defined as the systematic study of the biological basis of all social behavior."). Sociobiology's "major research strategy in human studies has been to work from the first principles of population genetics and reproductive biology to predict the 2004] Evolution, Politics and Law 1131 once again, because of several factious conclusions and speculations of some commentators, sociobiologists were attacked by an agitated rhetoric accusing the discipline of promoting unacceptable normative positions.6 Nevertheless, some reputable scientists were still not willing to hoist the white flag. Partially repackaged in subsequent years under such labels as evolutionary psychology, evolutionary biology, Darwinian anthropology, behavioral biology, human ethology, and behavioral ecology, among others, 7 the engine of evolution continues to be invoked forms of social behavior that confer the greatest Darwinian fitness." EDWARD 0. WILSON, CONSILIENCE 168 (1998) [hereinafter WILSON, CONSILIENCE]. "The predictions are then tested with data taken from ethnographic archives and historical records, as well as from fresh field studies explicitly designed for the purpose." Id. Long before the term "sociobiology" was used by E.O. Wilson in 1975, Darwin himself attended to sociobiological problems. See ERNST MAYR, ONE LONG ARGUMENT 155 (1991). 6 For a detailed recounting of the modem battle over sociobiology, see ULLICA SEGERSTRALE, DEFENDERS OF THE TRUTH: THE BATTLE FOR SCIENCE IN THE SOCIOBIOLOGY DEBATE AND BEYOND (2000). One commentator characterizes the attack on sociobiology as one of "unparalleled vigor," see MICHAEL R. ROSE, DARWIN'S SPECTRE 168 (1998), while another describes "a ferocity that is unusual even by the standards of academic invective," see STEVEN PINKER, HOW THE MIND WORKS 45 (1997). For a recent sample of the fireworks, see Stephen Jay Gould, Darwinian Fundamentalism, N.Y. REV., June 12, 1997, at 34 [hereinafter Gould, Fundamentalism]; Stephen Jay Gould, Evolution: The Pleasures of Pluralism, N.Y. REV., June 26, 1997, at 47; "Darwinian Fundamentalism": An Exchange, N.Y. REV., Aug. 14, 1997, at 64 (letters from Daniel C. Dennett, Robert Wright, and Stephen Jay Gould). 7 See, e.g., JOHN CARTWRIGHT, EVOLUTION AND HUMAN BEHAVIOR 48-50 (2000) (distinguishing Darwinian anthropology and other studies from evolutionary psychology); FRANS DE WAAL, GOOD NATURED 12 (1996) [hereinafter DE WAAL, GOOD NATURED] ("behavioral ecology"); WILSON, CONSILIENCE, supra note 5, at 168 ("Sociobiology (or Darwinian anthropology, or evolutionary psychology, or whatever more politically acceptable term one chooses to call it). ); N.A. Chagnon & W. Irons, Preface to EVOLUTIONARY BIOLOGY AND HUMAN SOCIAL BEHAVIOR, at xii (Napoleon A. Chagnon & William Irons eds., 1979) [hereinafter EVOLUTIONARY BIOLOGY] ("Sociobiology, or as it is sometimes labeled behavioral biology ....");Owen D. Jones, Law and Evolutionary Biology: Obstacles and Opportunities, 10 J. CONTEMP. HEALTH L. & POL'Y 265, 270 n.13 (1994) (The term "sociobiology" has been eschewed because of its associations. "While other terms have been considered, such as human ethology, behavioral socio-ecology, evolutionary psychology, or biocultural anthropology, no general agreement has emerged."); Mary Maxwell, Introduction to THE SOCIOBIOLOGICAL IMAGINATION 1, 22 (Mary Maxwell ed., 1991) ("human ethology," "behavioral socioecology," and "biosocial anthropology"); Donald Symons, On the Use and Misuse of Darwinism in the Study of Human Behavior, in THE ADAPTED MIND 137, 146 (Jerome H. Barkow et al. eds., 1992) ("human sociobiology, human behavioral ecology, evolutionary biological anthropology, and ... Darwinian anthropology");
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