Sociobiology and Law

Allan Ardill LLB. (Hons), B.Bus. (Accounting), B.Bus. (HRM), A.Dip. Bus. (IR)

A dissertation in fulfilment of the requirements for the degree of Doctor of Philosophy

Griffith Law School Griffith University Gold Coast, Queensland, Australia.

February 2008

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Abstract

The place of in and the nature of humans eludes us and yet there are those certain these issues can be reduced to biological explanations. Similarly, there are those rejecting the biological determinist hypothesis in favour of the equally unsubstantiated cultural construction hypothesis. This thesis draws on neo-Marxism and feminist intersectional post-positivist standpoint theory to posit biological and cultural determinism as privileged and flawed knowledge produced within relations of asymmetrical power. Instead “social construction” is preferred viewing knowledge of both nature and culture as partial and constructed within an historical, socioeconomic and political context according to asymmetrical power. Social constructionists prefer to question the role of power in the production of knowledge rather than asking questions about the place of humans in nature and the nature of humans; and trying to answer those questions through methods imbued with western, colonial, patriarchal, homophobic, and positivist ideals. As a starting point the postmodern view that knowledge is incomplete and has no ultimate authority is accepted. However, this thesis departs from postmodernism on the premise that knowledge is not all relative and can be critiqued by drawing on neo- Marxist and feminist intersectional post-positivist standpoint theory. Standpoint theory presumes a knowledge power nexus and contends accountable, ethical and responsible knowledge can be produced provided an “upwards perspective” is applied commencing with the standpoint of the most marginalised group within a given context. This approach to knowledge is applied to critically assess the role played by law in reproducing hierarchy and oppression in the categories of socioeconomic class, gender, sexuality and race to show that the law is sociobiological. My thesis is that hierarchy and oppression are not natural or inevitable and are instead socially constructed through human action and institutions, including law. As social constructions, hierarchy and oppression must continually be justified as natural and inevitable otherwise they are vulnerable to change and destabilisation. It is argued here that a dominant justification for hierarchy and oppression is

3 because it naturalises and reifies human action and institutions as being determined by biology. As a legal justification sociobiology is defined as any discourse purporting to be based on “nature”, biological or evolutionary theories and “facts” to justify or reify hierarchy and domination. Unlike other ideologies, sociobiology is a dominant ideology because it is used to justify hierarchy and oppression in all the usual categories - class, gender, sexuality and race – and there is evidence of this in law. The argument is novel to the extent that sociobiology is not a dominant ideology in a conventional sense - as a cause of stratification - but in the sense that it is a dominant thematic excuse; whether or not those excuses are actually accepted. Nor is it posited as a dominant ideology in the sense that it is a top-down ideology imposed on, or duping subalterns. Rather, sociobiology is dominant because it can supply excuses for the naturalisation of human action in general and because it is more amenable to application by the powerful than the disempowered by virtue of that power. In western societies ideologies were once grounded in theology according to Christian decrees and beliefs. Since the Renaissance and the shift from feudalism to capitalism, ideologies have become more secular. A leading secular ideology is sociobiology being a collection of ideas closely linked to the antecedents of capitalism and continuing alongside it to the present day. Sociobiology is understood in this thesis in three overlapping ways. It includes modern sciences clustered around E.O. Wilson’s famous 1975 essay Sociobiology: The New Synthesis. It is also a long historical tradition of scholarly theories about human nature and the place of humans in nature sharing the idea that human hierarchies on the basis of race, gender, sexuality and class are attributable variously to the work of God, nature, biology, and genes. Lastly it is an ideology. As an ideology, sociobiology is taken to be part of a long tradition of using the authority of privileged “knowledge” about nature to justify action and institutions that have the effect of creating and retaining hierarchy and oppression. This includes law.

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Statement of Authorship

This work has not previously been submitted for a degree or diploma in any university. To the best of my knowledge and belief, the thesis contains no material previously published or written by any other person except where due reference is made in the thesis itself.

Allan Ardill 5 Februrary 2008

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Contents

Page

Abstract 3

Chapter 1 Introduction 9

Chapter 2 What is Sociobiology? 17

Chapter 3 The Case for Sociobiology 57

Chapter 4 The Case Against Sociobiology 123

Chapter 5 Sociobiology Versus Social Theory 183

Chapter 6 Sociobiology and Ideology 219

Chapter 7 Sociobiology, Family, Gender and Law 297

Chapter 8 Sociobiology, Sexuality, and Custody Law 347

Chapter 9 Sociobiology, Racism, and Australian Colonisation 391

Chapter 10 Sociobiology and Laws of Aboriginality 431

Chapter 11 Conclusion 487

Cases 495

Bibliography 497

Acknowledgements

I thank my supervisors Professor Sandra Berns and Dr John Touchie for allocating their precious time to read drafts, provide feedback, and for their patience. In particular, I commend Sandra for introducing me to postmodernism, post-structuralist socialist feminist literature, and feminist literature critiquing science and positivism. John must be thanked for introducing me to literature critiquing sociobiology and applying a Socratic method to my early ideas about science and postmodernism during so many long discussions debating ideas. I cannot thank them enough. To the research assistants who helped gather materials and proof-read drafts I am also very grateful: Amira Black, Justin Carter, and Adam Zimmer. I also thank my extended family for their material support, nurturing, and influence. In particular my father Len Ardill, Noelene Ardill, Wilf Ardill, Joy Ardill, my mother Dianne Leitch, Doug Leitch, and Dr Alan Blackman. Lastly, I must thank my closest companions Pepita and Tara for their understanding and patience, and the sacrifice they made alongside me.

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Chapter 1

Introduction: Sociobiology as a dominant ideology in law?

Introduction

Although sociobiology is a relatively recent science it is a modern version of an old ontology that assumes human behaviour and institutions can be explained by biological innateness, genes, , or through the discovery of laws of nature. In this respect sociobiology belongs to a tradition of thought reaching back to at least Aristotle seeking to explain social relations according to anthropocentric “natural law”. There are many critics of sociobiology and the broader determinist tradition within which it is located. What is novel about the thesis advanced here is that I argue sociobiology is an ideology and as such the law uses sociobiology to justify its role in the reproduction of hierarchy and oppression in the categories class, gender, sexuality and race. The law is also sociobiological because it reifies hierarchy and oppression as “natural” and “inevitable” features of human life rather than as socially constructed phenomena. Chapter 1 begins with a cursory explanation for this thesis which is followed by an outline of the structure of the thesis as it is developed through an unfolding argument in the ensuing chapters.

Thesis Summary

This thesis assumes that fundamental questions about human nature and the place of humans in nature will remain unresolved because they are not capable of “discovery” and are instead inextricably bound with power.1 Although Kant2 and Darwin3

1 D. Haraway, Simians, Cyborgs, and Women: The Reinvention of Nature, Routledge, New York, 1991, 8: ‘The degree to which the principle of domination is deeply embedded in our natural sciences, especially those disciplines that seek to explain social groups and behaviour, must not be

9 situated “man” firmly within nature and granted “him” a strong innate nature, others such as Descartes and Locke positioned “man” beyond nature and endowed “him” with a free will akin to human nature as a “blank slate”.4 These two broad views represent a tension permeating all modes of thought. Succinctly put by Mark as, ‘[Humans are] in an ambiguous position: [they are] both part of nature and estranged from it, both part of society and estranged from it.’5 From the ancient Greeks forward scholarship and conventional wisdom have oscillated around and between these two broad views.6 Conventionally referred to as the nature/nurture debate, postmodernism collapsed this dichotomy such that today there are now four broad views.7

underestimated.’; A. Giddens, Central Problems in Social Theory: Action, Structure, and Contradiction in Social Analysis, MacMillan, London, 1979, 161: ‘I want to suggest the following, as a fundamental theorem: in all forms of society, human beings exist in contradictory relation to nature. Human beings exist in contradictory relation to nature because they are in and of nature, as corporeal beings existing in material environments; and yet at the same time they are set off against nature, as having a “second nature” of their own, irreducible to physical objects or events.’; J. Habermas, Toward A Rational Society: Student Protest, Science, and Politics, Beacon Press, Boston, 1971, 85 – 90; and M. Sahlins, The Use and Abuse of Biology, University of Michigan Press, Michigan, 1976, 78. 2 For Kant the mind is not a mirror of nature and is instead part of the nature it claims to represent, per R. Schacht, Hegel and After: Studies in Continental Philosophy Between Kant and Satre, University of Pittsburgh Press, Pittsburgh, 1975, 23 – 24. 3 Darwin situates “man” in nature in both of his famous works, The Origin of Species and The Descent of Man: C. Darwin, by Means of , or the Preservation of Favoured Races in the Struggle for Life, 1859, 6th ed, Facsimile reprint, Atheneum, New York, 1967; and C. Darwin, The Descent of Man and Selection in Relation to Sex, (2nd ed, 1882) John Murray, London, 1871. 4 N. Mansfield, Subjectivity: Theories of the self from Freud to Haraway, Allen & Unwin, Sydney, 2000, 11 – 15; and S. Pinker, “The Blank Slate” (2006) 41(1) General Psychologist 1. Pinker, at 1, attributes the notion of a “blank slate” to Locke: ‘… conventionally associated with the English philosopher John Locke. He didn’t actually use the metaphor of a blank slate in his writings, but he did invoke a similar metaphor. He wrote: “Let’s suppose the mind to be, as we say, white paper void of all characters, without any ideas. How comes it to be furnished? … To this I answer in one word, from experience.” That is the doctrine of the blank slate.’ 5 M. Mark, Modern Ideologies, St Martins Press, New York, 1973, 1. 6 D. Haraway, Simians, Cyborgs, and Women: The Reinvention of Nature, Routledge, New York, 1991, 7. As Haraway explains in her book the dominant view since the time of the ancient Greeks has been that human nature is innate or biological: ‘Elaborate organic images of human society were richly developed by the Greeks. They conceived the citizen, the city, and the cosmos to be built according to

10 There are those within a radical relativist tradition choosing to critique any attempts at reviving these arguments.8 There are also those who seek a compromise by drawing on both the nature and nurture traditions, and yet these compromises remain notoriously problematic and ideological.9 Then there are those who still cling to the idea that human nature can be reduced to genetic explanations based on advances in scientific technology.10 Lastly there are those who have embraced post-positivism and seek to develop more accountable and responsible ways of producing knowledge by taking into account power.11 This thesis follows the last approach and draws on Neo-Marxism and feminist intersectional post-positivist standpoint theory to treat the second and third approaches as privileged and flawed sociobiological knowledge produced within relations of asymmetrical power.12 the same principles’, and ‘to see the structure of human groups as a mirror of natural forms has remained imaginatively and intellectually powerful.’ 7 These perspectives are discussed in detail throughout Chapters 2 to 6. 8 For a critique of this view see S. Malešević, “Rehabilitating Ideology after Poststructuralism” in S. Malešević & I. MacKenzie (eds.) Ideology After Poststructuralism, Pluto Press, London, 2002, 87 – 110, 95 – 96. 9 See R. Udry, “Biological Limits of Gender Construction” (2000) 65(3) American Sociological Review 443. For the controversy see his critics and his response: I. Kennelly, S. Merz, & J. Lorber, “What is Gender?” (2001) 66(4) American Sociological Review 598; E. M. Miller & C. Y. Costello, “The limits of biological determinism” (2001) 66(4) American Sociological Review 592; B. J. Risman, “Calling the Bluff of Value-Free Science” (2001) 66(4) American Sociological Review 605; and R. Udry, “Feminist Critics Uncover Determinism, Positivism, and Antiquated Theory” (2001) 66(4) American Sociological Review 611. 10 M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985. 11 S. Harding, The Science Question in Feminism, Cornell University Press, Ithaca (NY), 1986; and N. Hartsock, “The Feminist Standpoint: Developing the Ground for a Specifically Feminist Historical Materialism” in S. Harding & M. Hintikka (eds.), Discovering Reality: feminist Perspectives on Epistemology, Metaphysics, and Philosophy of Science, Reidel, Dordrecht, 1983, pp. 283 – 310. 12 Key sources here are, among others: K. Crenshaw, “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics” (1989) University of Chicago Legal Forum 139; J. K. Gibson-Graham, The End of Capitalism (as we knew it): A Feminist Critique of Political Economy, Blackwell, Oxford, 1996; D. Haraway, “Situated Knowledges: The Science Question in Feminism and the Privilege of Partial Perspective” (1988) 14(3) Feminist Studies 575; S. Harding, The Science Question in Feminism, Cornell University Press, Ithaca (NY), 1986; N. Hartsock, “The Feminist Standpoint: Developing the Ground for a

11 As a starting point the postmodern view that knowledge is incomplete and has no ultimate authority is accepted. However this thesis departs from the radical relativism implicit in postmodernism on the premise that not all knowledge is equal by drawing on neo-Marxist and feminist post-positivist standpoint theory. Standpoint theory presumes a knowledge power nexus and contends accountable, ethical and responsible knowledge can be produced provided an “upwards perspective” is applied commencing with the standpoint of the most marginalised group within a given context.13 Therefore this thesis abandons the hopelessness of the first approach and takes on board its lessons about the paradox of legitimation and the myth that methods can procure truth.14 A post-positivist approach to knowledge embraces the notion of “social construction” which accepts that our knowledge of both nature and culture is partial and constructed within an historical, socioeconomic and political context according to asymmetrical power.15 Social constructionists assert more can be learnt questioning the role of power in the production of knowledge than asking questions about the place of humans in nature and the nature of humans; and trying to answer them through methods imbued with western, colonial, patriarchal, homophobic, and positivist ideals: Social construction suggests that the object of study deserves at least as much analytic attention as the suspected causal mechanism.16 This approach to knowledge is applied to critically assess the role played by law in reifying and reproducing hierarchy and oppression in the categories of socioeconomic

Specifically Feminist Historical Materialism” in S. Harding & M. Hintikka (eds.), Discovering Reality: feminist Perspectives on Epistemology, Metaphysics, and Philosophy of Science, Reidel, Dordrecht, 1983, pp. 283 – 310; and C. Mohanty, “Under Western Eyes: Feminist Scholarship and Colonial Discourses” (1986) 12(3) Boundary 2 333. 13 S. Harding & K. Norberg, “New Feminist Approaches to Social Science Methodologies: An Introduction” (2005) 30(4) Signs 2009, 2011. 14 See Chapter 7 “Sociobiology and Law”. 15 E.M. Miller & C.Y. Costello, “The limits of biological determinism” (2001) 66(4) American Sociological Review 592, 597; and C. Vance, “Social Construction Theory and Sexuality” in Constructing Masculinity, M. Berger, B. Wallis, & S. Watson (eds), Routledge, New York, 1995, 37 – 48, 47. 16 C. Vance, “Social Construction Theory and Sexuality” in Constructing Masculinity, M. Berger, B. Wallis, & S. Watson (eds), Routledge, New York, 1995, 37 – 48, 47.

12 class, gender, sexuality and race to show that the law is sociobiological. Reading law by adopting standpoint theory and treating sociobiology as an ideology reveals that class, gender, sexuality and race are constructed by statute and adjudication as much as they are performed by human agents and are not the inevitable products of biology, evolution, or genes. The thesis is that human hierarchy and oppression are not natural or inevitable and are instead socially constructed through human action and institutions, including law. As social constructions, hierarchy and oppression must continually be justified as natural and inevitable otherwise they are vulnerable to change and destabilisation. It is argued here that a dominant justification for hierarchy and oppression is sociobiology because it naturalises and reifies human action and institutions as being determined by biology. As a legal justification sociobiology is defined as any discourse purporting to be based on “nature”, biological or evolutionary theories and “facts” to justify hierarchy and domination. It is also ideological in the sense that institutions are reified as natural when they are instead socially constructed. Unlike other ideologies, sociobiology is a dominant ideology because it is used to justify hierarchy and oppression in all the usual categories - class, gender, sexuality and race17 – and there is evidence of this in law.18

Thesis Structure

Thesis Chapters

In Chapters 2 and 3 the reader is introduced to the concept of sociobiology for the purposes of the thesis and is provided with an explanation of the scholarly arguments mounted for the view that the human condition is a product of biology, genes,

17 That is to say, those forms of domination commonly discussed in the literature which includes, class, race, gender, sexuality, and disability. Of course these are not the only categories of hierarchy and oppression. They are the usual ones referred to in the literature. For a condemnation of this see further: T. J. Gerschick, “Toward a Theory of Disability and Gender” (2000) 25(4) Signs 1263. In addition, it goes without saying not all forms of hierarchy and domination are justified by sociobiology. For the sake of space, I have elected to focus on class, gender, race and sexuality to make the argument. Therefore “disability” has been excluded only for reasons of space. 18 Evidence for the role of sociobiology in law is provided in Chapters 7 to 10.

13 evolution and nature. This biological determinist view is then critiqued in Chapter 4 where the evidence against it is presented. Chapter 4 concludes that there is virtually no evidence to sustain sociobiology other than the intuitive value of some plausibility arguments. Therefore Chapter 5 asks why the biological determinist or sociobiological view of human nature persists given the paucity of evidence for it and its relative inferiority when considered against alternative explanations. It also questions the very possibility that human nature and institutions could ever be reduced to biological explanations. Once it is accepted that biology can never explain human injustice and hierarchy it is possible to see sociobiology as little more than ideology. However, the notion of “ideology” was brought into question with the collapse of the former Soviet Union and the eminence of postmodern scholarship. Therefore Chapter 6 presents the argument that ideology remains a relevant concept and it does so by emphasising the role of sociobiological thought in the context of class hierarchy and injustice. To establish that sociobiology is a dominant legal ideology the remaining chapters (Chapter 7 to Chapter 10) present evidence of the role played by sociobiology in the reification and reproduction of hierarchy and oppression in the categories of gender sexuality and race. These Chapters do so by critically assessing adjudication in areas such as family law, sovereignty and native title, and in cases where courts have interpreted the term “Aboriginality” as it appears in various statutes. Some explanation is warranted for the space afforded to Chapter 3 “The Case for Sociobiology” and Chapter 4 “The Case Against Sociobiology”. These chapters were included for the dual reasons of consolidating the material in one convenient place for others on heuristic grounds and for the convenience of avoiding complicated detours in subsequent chapters: Unfortunately, the “natural attitude” cannot be refuted by force of logic or by repudiation. It has to be denaturalized, and that requires understanding how it operates, not only as an abstract logical system, but as the ideology that constitutes subjective experiences of gender [race, class, sexuality, etc].19 The thesis is meant to be read in sequential order because the material builds on each chapter.

19 J. W. Scott, “Comment on Hawkesworth’s ‘Confounding Gender’” (1997) 22(3) Signs 697, 699.

14 Terminology

Early in the thesis I distinguish between “socio-biology” in general and “Sociobiology” as a science by capitalising the “S” when referring to the science. However, after Chapter 4 “The Case Against Sociobiology” I dispense with this distinction unless I intend to draw that distinction. This is because from that point forward I treat sociobiology largely as ideology.

Standpoint theory

Lastly, an important feature of standpoint theory which underpins this thesis is that researchers recognise their privilege relative to those they write about. Given I am writing about hierarchy and oppression it is appropriate for me to disclose that I am a white middle-class heterosexual male. This does not absolve me from any unintended oppression implicit in my work rather it is an attempt to recognise that I began this research from a position of power. It is an attempt to make me more responsible and accountable to those I am writing about: gay men, the poor, women, Indigenous Australians, lesbian mothers, and transgender people. My aim is to produce a thesis that can be used to critique hierarchy and oppression based on naturalising arguments in the hope that this may change society.

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16 Chapter 2

What is Sociobiology?

Introduction

This chapter provides a definition of “sociobiology” for the purposes of this thesis and presents a depiction of human nature according to the science of Sociobiology.1 There is no single model of Sociobiology rather there are variations on a theme and this is evident from its manifestations over time as well as from within the various arguments advanced in any particular era. Bearing in mind that there are many different (and conflicting, see e.g. Hrdy and Ridley2) views about human nature within those sciences that can be characterised as Sociobiology, this chapter seeks to isolate a consensus maintained by the more eminent proponents of Sociobiology (in particular: Alexander, Dawkins, Hamilton, Ridley, Trivers and Wilson) as to human nature.3 For this reason I have followed Ruse’s conceptualization (and defence) of

1 See generally C. Badcock, Evolution and Individual Behaviour, Oxford, Basil Blackwell, 1991, and D. Haraway, Simians, Cyborgs, and Women: The Reinvention of Nature, Routledge, New York, 1991. 2 Hrdy brings feminist thought into her scientific work but retains the overarching sexist models, while Ridley’s earlier work is closer to fiction, his later work is more considered: S. Hrdy, The Women That Never Evolved, Harvard University Press, Cambridge (M), 1981; and M. Ridley, The Red Queen: Sex & the Evolution of Human Nature, Penguin Books, Ringwood, Victoria, 2000; compared with the later M. Ridley, “Nature? Nurture? What makes us human?” 2007 Alfred Deakin Innovation Lecture – Melbourne, Australia 10 July 2007, pp. 1 – 15. 3 R.D. Alexander, “The Search for a General Theory of Behaviour” (1975) 20 Behavioral Science 77; R. Dawkins, The Selfish Gene, New Edition (1990), Oxford University Press, Oxford, 1976; W.D. Hamilton, “The Genetical Evolution of Social Behaviour I” (1964) 7 Journal of Theoretical Biology 1; M. Ridley, The Red Queen: Sex & the Evolution of Human Nature, Penguin Books, Ringwood, Victoria, 2000; R.L. Trivers, “Parental Investment and ” in B. Campbell (ed), Sexual Selection and the Descent of Man 1871-1971, Aldine Publishing Co, Chicago, 1972, pp. 136 – 179; R.L. Trivers, “The Evolution of Reciprocal Altruism” (1971) 46 Quarterly Review of Biology 35; and E.O. Wilson, Sociobiology: The New Synthesis, Harvard University Press, Cambridge, 1976.

17 Sociobiology without necessarily agreeing with it.4 He portrays Sociobiology in a systematic fashion that allows it to be “pinned down” for analytical purposes.

What is Sociobiology?

What is sociobiology? Sociobiology can be three things.5 Although each of the three necessarily overlap, and this will be evident in the discussion immediately below, sociobiology is in this thesis: (1) a science, (2) a matrix of assumptions about human nature connecting scholarly disciplines, and (3) an ideology.6

4 M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985. 5 The definition of “sociobiology” used in this thesis overlaps with Hirst’s analysis of “evolutionary theory”. Hirst categorises “evolutionary theory” into three categories in P. Hirst, Social Evolution and Sociological Categories, Holmes & Meier, New York, 1976, 18 – 19. However the approach of Hirst and the one used here are very different, particularly in relation to ideology which is discussed in chapter 7. 6 It is difficult to tease out the differences between these three views of sociobiology because they are seamless. Hirst takes a similar but different view in P. Hirst, Social Evolution and Sociological Categories, Holmes & Meier, New York, 1976. At 16: ‘There is no simple differentiation of evolutionary theories into biological theories and sociological theories. … The theory of natural selection is, however, specific to the biological sciences. … It is by means of the concepts of the theory of natural selection that we know it cannot be applied to explain the development of societies. Societies are not species; social relations cannot be explained by the physical attributes of human subjects. There is in social relations no rigorous analogue of the variation of characteristics. Social evolutionary theories have been quite different enterprises from the theory of natural selection; they have been philosophies of history or systems of historical generalisations. A scientific explanation of social development would have a different theoretical content from the theory of natural selection. Indeed, what the author would consider to be such an explanation, Marxism, bears little or no resemblance to the theory of natural selection …’. On this last point Haldane and Pannekoek take a very different view about the nexus between Marxism and Darwinism which they treat as inextricable: per J.B.S. Haldane, “A Dialectical Account of Evolution”, (1937) 1 No 4 Science & Society, pp. 1 – 13; and A. Pannekoek, Marxism and Darwinism, Translated by Jon Muller, Charles H. Kerr & Co, Chicago, 1912, pp. 1 – 31.

18 Sociobiology as science Firstly, it is a formal academic discipline, “Sociobiology”7, with subsequent branches in evolutionary psychology8 and economics9. It includes the work of many scientists

7 Formalised in E.O. Wilson, Sociobiology: The New Synthesis, Harvard University Press, Cambridge, 1976. 8 See for example the journal (ISSN 1474-7049) which is described by its publishers on its website as: ‘an open-access peer-reviewed journal that aims to foster communication between experimental and theoretical work on the one hand and historical, conceptual and interdisciplinary writings across the whole range of the biological and human sciences on the other. We also encourage reflective and exploratory essay reviews on books that merit extensive treatment.’ Accessed at http://human-nature.com/ep/index.html on 15 October 2005. See also: R. Dunbar, Evolutionary Psychology: A Beginner’s Guide, Oneworld, Oxford, 2005; and C. Badcock, Evolutionary Psychology: A Critical Introduction, Polity Press, Cambridge, 2000. “Evolutionary Psychology” is taught as a course within most university psychology courses and has a literary community in such journals as Behaviour Genetics; Developmental Psychobiology; and Journal of Biosocial Science, among many others. See further: J. Edwards, “Evolutionary Psychology and Politics” (2003) Vol 32 No 2 Economy & Society 280. However, Selin rejects the idea that evolutionary psychology is the new human sociobiology in R. Selin, “Sociobiology ≠ Evolutionary Psychology” (1999) 7(2) Skeptic 22. 9 See further: M. Boyles & R. Tilman, “Thorstein Veblen, Edward O. Wilson, and Sociobiology: An Interpretation” (1993) 27(4) Journal of Economic Issues 1195; R. Coase, “The New Institutional Economics” (1998) 88(2) The American Economic Review 72; M.T. Ghiselin, “Institutional Bioeconomics and the Division of Labor: Reflections on Yarbrough & Yarbrough’s Paper” (1999) 1 Journal of Bioeconomics 319; E. Hoffman, K. McCabe & V. L. Smith, “Behavioural Foundations of Reciprocity: Experimental Economics and Evolutionary Psychology” (1998) 36(3) Economic Inquiry 335; M. Jensen, “Self-interest, Altruism, Incentives, and Agency Theory” (1994) 7(2) Journal of Applied Corporate Finance, accessed online at Social Science Research Network (SSRN) Electronic Library, http://papers.ssrn.com/sol3/paper.taf?ABSTRACT_ID=5566 pp. 1 – 16; and M. Jensen & W. Meckling, “The Nature of Man” (1994) 7(2) Journal of Applied Corporate Finance 4, accessed online at Social Science Research Network (SSRN) Electronic Library, http://papers.ssrn.com/sol3/paper.taf?ABSTRACT_ID=5471 pp. 1 – 39; and J.P. Watkins, “Towards a Reconsideration of Social Evolution: Symbiosis and Its Implications for Economics” (1998) 32(1) Journal of Economic Issues 87. Coase at 73 explains the importance of the intellectual link between biology and economics: ‘Economists often take pride in the fact that came to his theory of evolution as a result of reading Thomas Malthus and Adam Smith. But contrast the developments in biology since Darwin with what has happened in economics since Adam Smith. Biology has been transformed. Biologists now have a detailed understanding of the complicated structures that govern the functioning of living organisms. I believe that one day we will have similar triumphs in economics.’

19 practicing in other sciences not necessarily Sociobiology, usually in sciences typically associated with evolution and biology such as zoology, as well as those scholars who practice in areas such as “physical anthropology”10 and whose research posits a biological basis for human behaviour.11 Sociobiology is a revision of several earlier traditions in “scholarly” thought such as ethology, eugenics, monogensis and polygenesis, phrenology, social Darwinism, among others.12 Earlier traditions such as monogenesis and polygenesis purported to explain the origins and superiority of “races” while later versions such as Sociobiology are less inclined to overt racism

10 As opposed to “cultural anthropology”, which has a very different tradition, see further: M. Grene & D. Depew, The Philosophy of Biology: An Episodic History, Cambridge University Press, Cambridge, 2004, 334; and M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 168-182, 232. 11 For example sociologists such as Professor J.R. Udry. According to the biographical note to his essay (R. Udry, “Feminist Critics Uncover Determinism, Positivism, and Antiquated Theory” (2001) 66(4) American Sociological Review 611) he was in 2001 the, ‘Kenan Professor in the Department of Maternal and Child Health and the department of Sociology at the University of North Carolina at Chapel Hill. His long-term scientific interest is integrating biological factors into sociological models.’ In terms of the work of other scientists from outside the biological sciences, they can be included within Sociobiology to the extent they seek to explain human behaviour according to innate biological causes using the demarcation criteria put forward by Kuhn and Lakatos. This aspect is discussed below. 12 R. Young, “The Naked Marx” (1969) 78(7) New Statesman 666, 666 - 7, (online version). At page 3 of 4, Young had this to say about the proliferation of literature immediately prior to the arrival of Sociobiology and which ultimately culminated in E.O. Wilson’s 1975 Sociobiology: The New Synthesis: ‘We have had these crazes before with phrenology, evolutionism and psychoanalysis, and there are important interconnections between these movements and the current debate. But surely it is high time that a qualified and dispassionate person provided an extensive critique of the current biologising fad. For reasons which lie deep in the philosophy of scientific explanation, it is becoming increasingly clear that the whole spectrum of disciplines, from genetics to psychology and psychiatry to the social sciences, is not value-free. Consequently, as the recent effusion of books and articles shows, they are available for ideological exploitation. This need not preclude extrapolations to social and political issues, if standards of evidence and inference are established and maintained. However, it is essential that everyone sees that the debate is ideological and ceases to be blinded by the “Science”. It is probably the case that all “facts” are theory laden, but it is certainly true that some facts are more theory-laden than others. The reader who comes to these popularisations for guaranteed social and political wisdom supported by the authority of science is making a grave mistake. Let us have the debate on the social meaning of biology, but we must strip it of the specious aura of scientific objectivity.’ See also P. Hirst, Social Evolution and Sociological Categories, Holmes & Meier, New York, 1976, 19.

20 tending to focus more on “explaining” a biological basis for socioeconomic classes, gender, and sexuality (the racist aspects of the tradition are covered in more detail in Chapters 9 & 10). What these traditions share though is the idea that human nature (differences in physical/intellectual attributes, and institutions) can all be reduced to innate or natural causes. These traditions embody what is referred to today as “biological determinism”.13 They each adopt the theoretical framework that human and animal behaviour can be explained by innate (or since Darwin “biological”) causes.14 This theoretical framework was brought to scientific prominence by Alexander, Hamilton, Trivers, and Wilson.15 They can be described as the founders of Sociobiology because it would not exist today as it does without their work, and because Wilson relied on the work of Alexander (for proposing a general theory based on evolution and stressing the significance of “reciprocity”), Hamilton (for developing the notion of “Kin- selection theory”) and Trivers (for his models of “Parental Investment”, “Parent- Offspring Conflict”, and “Reciprocal Altruism”) to formalise Sociobiology as a synthesis of their work. While Wilson (and frequently the other founders) also relied heavily on the work of Maynard Smith, he is not included because he was sceptical about analogising from animals to humans based on his model for animal conflict

13 E.M. Miller & C.Y. Costello, “The limits of biological determinism” (2001) 66(4) American Sociological Review 592. Miller and Costello treat sociobiology as part of a long tradition of “biological determinism”, ‘which seeks to anchor patterns of gendered behaviour to immutable biological roots. These roots have changed over time but the conclusion … remains unchanged’, at 592. 14 G. Holton, “The New Synthesis?” (1998) 35(2) Society 203. Holton distinguishes between a ‘restricted sociobiology’ which he claims has been successful with animals ‘below man’ and the ‘general discipline’ which deals with human sociobiology. Holton takes a cautionary but optimistic view of human sociobiology. The claims made by Sociobiology and the explanations supplied for those claims are discussed in detail below and in the following Chapter. 15 R.D. Alexander, “The Search for an Evolutionary Philosophy” (1971) 84 Proceedings of the Royal Society of Victoria 99; R.D. Alexander, “The Search for a General Theory of Behaviour” (1975) 20 Behavioral Science 77; W.D. Hamilton, “The Genetical Evolution of Social Behaviour I” (1964) 7 Journal of Theoretical Biology 1; W.D. Hamilton, “The Genetical Evolution of Social Behaviour II” (1964) 7 Journal of Theoretical Biology 17; R.L. Trivers, “The Evolution of Reciprocal Altruism” (1971) 46 Quarterly Review of Biology 35; R.L. Trivers, “Parental Investment and Sexual Selection” in B. Campbell (ed), Sexual Selection and the Descent of Man 1871-1971, Aldine Publishing Co, Chicago, 1972, pp. 136 – 179; R.L. Trivers, “Parent-offspring Conflict” (1974) 14 American Zoology 249; and E.O. Wilson, Sociobiology: The New Synthesis, Harvard University Press, Cambridge, 1976.

21 using game-theory analysis.16 Still, his work is important to both animal and human Sociobiology and is discussed in the next chapter. Ruse cites Kuhn to argue that Sociobiology can and should be regarded as an orthodox science.17 For Kuhn an academic pursuit becomes a science when a significant number of practitioners adopt a particular theoretical framework and engage in a tradition of “puzzle-solving” according to that framework as opposed to engaging in critical discourse, which is seen as the domain of philosophy.18 Sociobiologists, like Wilson, link Sociobiology with , modern population biology, and molecular biology and in doing so they ‘stand in line with Darwin who, like them, also wanted to explain animal social behaviour in terms of evolution powered by natural selection’.19 Ruse points out that evolutionary theory is not yet complete and is better thought of as a ‘sketch of a full theory’ and to this extent Sociobiology is the same.20 He contends that Sociobiology and evolutionary theories use the hypothetico-deductive method (‘where conclusions can be seen to follow deductively from the initial axioms’) at times, and at other times plausibility arguments.21 Ruse also contends that to the extent Sociobiology is part of the

16 J. Maynard Smith, On Evolution, Edinburgh University Press, Edinburgh, 1972, 25. This may be contrasted with Ruse who is much more certain about such analogies at 57 & 146 – 148, in M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985. 17 M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 21. However, Mayr takes a different view in E. Mayr, What Makes Biology Unique?: Considerations on the autonomy of a scientific discipline, Cambridge University Press, Cambridge, 2004, 159 – 169. 18 T.S. Kuhn, “Logic of Discovery or Psychology of Research?” in I. Lakatos & A. Musgrave (eds) Criticism and the Growth of Knowledge, Cambridge University Press, London, 1976, 1 – 23, at 4. Sociobiology has what Kuhn calls a tradition of “puzzle-solving”: ‘Tests of this sort are a standard component of what I have elsewhere labelled “normal science” or “normal research”, an enterprise which accounts for the overwhelming majority of work done in basic science.’ 19 M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 19. 20 M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 21. At 20 - 21: ‘Both those for, and those against, the hypothetico-deductive thesis agree that the case for it can be made most strongly in the physical sciences: from whence it came in the first place. As it stands, evolutionary theory is not very hypothetico-deductive. Frequently, to say the least, there are big gaps between premises and conclusions, with possible links being [at 21] sketched in, hinted at, or hypothesized.’ 21 M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 20 & 21. At 21: ‘Although there are some compact bodies of deductive theory in evolutionary studies, for instance

22 evolutionary paradigm it should be judged according to the same standards applying to the rest of the theories comprising the research matrix.22 For these reasons Ruse argues that Sociobiology is an orthodox evolutionary science. Other historians of science, such as Feyerabend and Lakatos, have criticised Kuhn’s demarcation criteria because it has the capacity to include psuedo-science.23 Given that a primary objective of Sociobiology, ‘is to reformulate the foundations of the social sciences in a way that draws these subjects into the Modern Synthesis’,24 Feyerabend may have regarded it as a psuedo-science.25 However, Sociobiology does resemble Kuhn’s “normal science”.26 It also supports an enormous body of academic

the population genetical core, frequently in evolutionary studies when one speaks of things “following from” or “throwing light on” one has weaker connections than deduction in mind.’ 22 M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 21. 23 P. Feyerabend, Against Method, London, Verso, 1978, 198; and Lakatos, I., “Methodology of Scientific Research Programmes” in Lakatos, I, & Musgrave, A (eds), Criticism and the Growth of Knowledge, Cambridge University Press, London, 1976, pp 91-196, at 155 & 188. 24 E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, 4. This objective has been tempered by the extent of the critical literature that followed the original version, which read “to place the social sciences within a biological framework constructed from a synthesis of evolutionary studies, genetics, population biology, ecology, animal behaviour, psychology and anthropology” per E.O Wilson, Sociobiology: the New Synthesis, Cambridge, Harvard University Press, 1976, 4. 25 P. Feyerabend, Against Method, London, Verso, 1978, 198 (emphasis added): ‘More than one social scientist has pointed out to me that now at last he had learned how to turn his field into a “science” – by which of course he meant that he had learned how to improve it. The recipe, according to these people, is to restrict criticism, to reduce the number of comprehensive theories to one, and to create a normal science that has one theory as its paradigm. Students must be prevented from speculating along different lines and the more restless colleagues must be made to conform and “to do serious work”.’ 26 M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 19: ‘They do not seek to overthrow the theory and findings of . Of course, the sociobiologists want to extend and stretch theory as they tackle their own particular problems, but this is no more than is done by any evolutionist. In this sense, therefore, to use Thomas Kuhn’s well-known language, the sociobiologists are “normal” scientitists working within their “paradigm”: they are doing “research firmly based upon one or more past scientific achievements, achievements that some particular scientific community acknowledges for a time as supplying the foundations for its further practice”. (Kuhn, 1970, p. 10.) In particular, sociobiologists intend to do research firmly based upon past scientific achievements in population genetical biology.’

23 peer-reviewed literature, and it is regarded as a science by a community of academics who are employed by universities around the world.27 It may even fit Lakotos’ demarcation criteria for a science because its academic and intellectual: …continuity evolves from a genuine research programme adumbrated at the start [by virtue of Darwin]. The programme consists of methodological rules: some tell us what paths of research to avoid (negative heuristic), and others what paths to pursue (positive heuristic).28 Therefore, at the very least because Sociobiology seeks to establish biological explanations for human and animal behaviour using hypothetico-deductive methods, it can be regarded as a scientific research programme.29 Still, no science is immune from human fallibility and frailty, and despite all the discoveries of science, Haldane has demonstrated that science has not, and can not, provide immutable universal laws of nature.30 For these reasons a post-positivist approach is adopted in this thesis as opposed to a radical relativist (postmodern) view of science.31 In other words the scientist studies nature through a personal lens coloured by hegemony and cultural values.32 The challenge is to recognise this

27 For instance, at the time of writing, E.O. Wilson was the Frank B. Baird Junior Professor of Science and Entomology, Harvard University. 28 I. Lakatos, “Methodology of Scientific Research Programmes” in I. Lakatos, & A. Musgrave, (eds), Criticism and the Growth of Knowledge, Cambridge University Press, London, 1976, pp 91-196, at 132. 29 The Sociobiological case for human behaviour according to biology is discussed in full later in this chapter. 30 J.B.S. Haldane, “The Laws of Nature”, Rationalist Annual, 1941, pp. 1 – 5. 31 B. Risman, “Calling the Bluff of Value-Free Science” (2001) 66(4) American Sociological Review 605, at 610. “Post-positivist” feminists, for example, express ‘a commitment to science with and from a value position. This is a rejection of the belief in the possibility of value-free singular context-less scientific “Truth” but is neither a rejection of all science nor an acceptance of relativism.’ See also P. Feyerabend, Against Method, Verso, London, 1978. 32 This is a point made elsewhere in this thesis. For now, the point is made aptly by Sahlins. Despite the fact that ‘the people involved are all serious and brilliant biological scholars’, ‘biology is not practiced in a social vacuum. It is a specialized intellectual activity within a society of given historic type.’ ‘Without alleging any political intentions, it would not be surprising ethnographically to find in the contradictions of biology’s conception of gain the symptom of its dual cultural existence. Especially as it turned to the study of society itself, it would not be immune to the ideology of the marketplace.’ Sahlins backs this up adding that Western science ridiculed the Soviet science of Lysenko’s biology,

24 problem without abandoning the possibility of doing “good science” and this argument is developed in later chapters.33

Sociobiology as a matrix of assumptions about human nature Young, and others, have already made the argument that prior to the , although there were significant points of contention, theology and science were largely pursued in harmony.34 Modern science has its origins in the last half of the 15th Century in the era known under various names throughout Europe, including for example, the “Renaissance”.35 The intellectual epoch was characterised by people who had an extensive knowledge of human thought. So for example:

per M. Sahlins, The Use and Abuse of Biology: An Anthropological Critique of Sociobiology, University of Michigan Press, Michigan, 1976, 78. Segerstrale also makes this argument basically saying that all scientists have personal agendas, which ought to be stated explicitly so that society can properly assess science in U. Segerstrale, Defenders of the Truth: The Battle for the Science in Sociobiology Debate and Beyond, Oxford University Press, Oxford, 2000. 33 See Chapter 5 which discusses the issue of alternatives, and chapters 6 and 7 where post-positivism is contrasted with postmodernism around the “paradox of legitimation” and “feminist standpoint theory”. 34 R. Young, Darwin’s Metaphor, Cambridge University Press, Sydney, 1985. Many others have recognised the inter-connectedness of social theory during the Victorian era albeit taking different views about the relationship. See for example: R. Hofstadter, Social Darwinism in American Thought, Revised edition, George Braziller, New York, 1959; G. Jones, Social Darwinism and English Thought: The Interaction between Biological and Social Theory, The Harvester Press, Sussex, 1980; Henry F. Osborn, From the Greeks to Darwin: An Outline of the Development of the Evolutionary Idea, Macmillan, New York, 1894; R.J. Richards, Darwin and the Emergence of Evolutionary Theories of Mind and Behaviour, University of Chicago Press, Chicago, 1987; and D. Young, The Discovery of Evolution, Cambridge University Press, Cambridge, 1992. In terms of the nexus between theology and science, Young (Darwin’s Metaphor, Cambridge University Press, Sydney, 1985) points out at 135 that: ‘In the period from about 1800 to about 1880, the role of theology seems to change from that of providing the context for the debate to that of acting as one point of view in a conflict. In the early debate the effort is to retain harmony between science and theology; after about 1850 increasing efforts are made to separate them or to make the claims of theology so abstract that they cannot come into conflict with the discoveries of science.’ 35 Engels discusses the origins of modern science and explains that it dated from the last half of the fifteenth century and although none of the following terms adequately encapsulates the epoch, it was known in Germany as the “Reformation”, in France as the “Renaissance”, and in Italy as the

25 Machiavelli was statesman, historian, poet, and at the same time the first notable military author of modern times. Luther not only cleaned the Augean stable of the Church but also that of the German language; he created modern German prose and composed the text and melody of that triumphal hymn which became the Marseillaise of the sixteenth century.36 Social theory was so interconnected that when Darwin, Spencer and Wallace separately devised their theories of evolution, they drew on this common intellectual culture.37 Later, during the Victorian era human knowledge became increasingly fragmented and specialised. Therefore, before the late Victorian era there was little if any demarcation between science and social theory and virtually no fragmentation or specialisation of the disciplines as there is today.38 As Young explains: The common intellectual context came to pieces in the 1870s and 1880s, and this fragmentation was reflected in the development of specialist societies and periodicals, increasing professionalization, and the growth of general periodicals of a markedly lower intellectual standard. … [at 134] Neither the periodicals nor their regular contributors made significant distinctions among science, literature, philosophy, theology, political economy, etc. Thus, I heartily agree with Brown, who argues that “the history of the English mind and English public opinion cannot be written without careful attention to the influence and history of periodical literature.” … Between 1800 and 1900 more than 1,000 new magazines of various kinds were started in London, and in the year in which On the Origin of Species [1859] appeared, 115 new periodicals were begun in Britain. What were they reviewing? In the period in which I believe that natural theology was playing an important

“Cinquecento”: F. Engels, Dialectics of Nature, (1883), Electronic Archive, “Chapter 1: Introduction”, pp 1 – 11, at 1. 36 F. Engels, Dialectics of Nature, (1883), Electronic Archive, “Chapter 1: Introduction”, pp 1 – 11, at 1 – 2. 37 R. Young, Darwin’s Metaphor, Cambridge University Press, Sydney, 1985. 38 F. Engels, Dialectics of Nature, (1883), Electronic Archive, “Chapter 1: Introduction”, pp 1 – 11, at 1: ‘There was hardly any man of importance then living who had not travelled extensively, who did not command four or five languages, who did not shine in a number of fields. Leonardo da Vinci was not only a great painter but also a great mathematician, mechanician, and engineer, to whom the most diverse branches of physics are indebted for important discoveries.’

26 integrative function in the intellectual culture, theological works were pouring out at a great rate. Of the roughly 45,000 books published in England between 1816 and 1851, well over 10,000 were religious, far out-distancing [at 135] the next largest category – history and geography – with 4,900, and fiction with 3,500. There was also an immense circulation of religious periodicals and tracts.39 Coinciding with the explosion of ideas in the latter half of the 19th Century, culminating in the fragmentation of the disciplines was the shift from feudalism to capitalism. That shift in the mode of production took place over many centuries and was directly linked to the broader division of labour so fundamental to the capitalist mode of production.40 The argument being made here is that since the accelerated fragmentation and specialization of the disciplines from the late Victorian era forward, the disciplines have remained connected through basic principles of positivism (e.g. empiricism and other scientific epistemologies) and through shared assumptions about the place of humans in nature, and the nature of humanity. In other words the disciplines today are linked through an epistemology and ontology steeped in Victorian evolutionary theory.41 The lingering connections between contemporary disciplines have been analysed by Tinker. He has shown that disciplines such as accounting, anthropology, economics, ethology, and Sociobiology share methods as well as ontology.42 Although these

39 R. Young, Darwin’s Metaphor, Cambridge University Press, Sydney, 1985, 128 & 134 – 135. 40 F. Engels, Dialectics of Nature, (1883), Electronic Archive, “Chapter 1: Introduction”, pp 1 – 11, at 2: ‘The heroes of that time had not yet come under the servitude of the division of labour, the restricting effects of which, with its production of onesidedness, we so often notice in their successors.’ 41 T. Tinker, Panglossian Accounting Theories: The Science of Apologising in Style" (1988) 13 Accounting Organizations & Society 165; and Bergfeld et al cite Mayr (1982, 1984) to explain that evolutionary theory is comprised of at least five major theories: (1) evolution, (2) the theory of one common origin for all species, (3) the theory of gradual evolution (“gradualism”), (4) population genetics, and (5) natural selection. See A. Bergfeld, Rolf Bergmann, & P. Sengbusch, Botany online - The Internet Hypertextbook, accessed at http://www.biologie.uni-hamburg.de/b-online/e36/36c.htm (last update: 07/31/2003 23:49:56) on 20 August 2006. 42 T. Tinker, Panglossian Accounting Theories: The Science of Apologising in Style" (1988) 13 Accounting Organizations & Society 165. At 167, Tinker explains: ‘The empirical indeterminancy of theories (“factual underdetermination” for Giddens 1979) represents a vent through which values and

27 connections concern scientific method and evolutionary theory, Tinker points out that the connections also stem from a variety of other factors. Firstly due to shared values and axioms: In contemporary science, prevailing values, perceptions and other predispositions, inure scholars to certain kinds of discovery, and debar them from others.43 Also, because of institutional and systemic factors: Modern research is conducted in a social and institutional context, and thus while an individual’s values, assumptions, and perceptions may predicate research, these are preconditioned by social and institutional factors. Institutions train, hire, promote, pay, motivate and fire individual researchers, and help decide what research should be undertaken through the commodification of research activities (Baritz 1960; Kidron 1974; Rose & Rose 1969; Shaw 1975).44 Ultimately these pressures produce observable literary and scholarly patterns: Literature citations and references indicate linkages between different belief systems; they signify intellectual influences and relationships between beliefs.45 Tinker, like Sahlins who had critiqued Sociobiology almost a decade earlier, rejects the idea that there is a conspiracy at play here.46 Instead, Tinker’s analysis suggests that the connections result from a dynamic of material and ideological factors: While the analysis points to a widespread use of naturalistic thinking across various disciplines, the causal connections remain largely unspecified. No single “root cause” of naturalistic theorizing is indicated, rather, its origins are

beliefs and other social biases may intrude onto scientific analysis … because theories are ultimately irrefutable and unprovable, bias and partisan values inevitably pre-structure research.’ 43 T. Tinker, Panglossian Accounting Theories: The Science of Apologising in Style" (1988) 13 Accounting Organizations & Society 165, at 167. 44 T. Tinker, Panglossian Accounting Theories: The Science of Apologising in Style" (1988) 13 Accounting Organizations & Society 165, at 168. 45 T. Tinker, Panglossian Accounting Theories: The Science of Apologising in Style" (1988) 13 Accounting Organizations & Society 165, at 181. 46 T. Tinker, Panglossian Accounting Theories: The Science of Apologising in Style" (1988) 13 Accounting Organizations & Society 165, at 182; and M. Sahlins, The Use and Abuse of Biology: An Anthropological Critique of Sociobiology, University of Michigan Press, Michigan, 1976, xii.

28 … systemic – residing in economic, political, social, scientific and cultural spheres.47 Therefore “sociobiology” (as opposed to Sociobiology the science) can be thought of as a matrix of shared disciplinary assumptions about human nature and the place of humans in nature. In this sense, sociobiology is the extent to which disciplines are supplemented by biology and evolutionary theories for justification and to fill gaps in their theory and practice.48 The evidence mounted by Young in relation to the Victorian era and Tinker in the contemporary era is indicative of an intellectual tradition. As a tradition, biological and evolutionary theories have been dominant since the Victorian era. While there is evidence that biological thought dates back to at least Aristotle as a tradition, it did not become dominant until the middle of the 19th Century.49 Lewontin notes that before science (pre- 17th Century) people would justify their view of human nature by appeals to the wisdom of God (e.g. the Biblical account of Adam and Eve).50 This suggests that over time, and within particular epochs, human knowledge will tend to be grounded according to a dominant ontology and epistemology. Because all disciplines or modes of thought begin with some assertion (whether explicitly or implicitly) about the place of man in nature or the nature of man, they will draw upon conventional wisdom to formulate that assertion.51 So for example, coinciding with the rise of English science, from the 17th century forward political philosophers such as Hobbes and Locke each posited a different version of social contract theory based on their particular interpretations of human

47 T. Tinker, Panglossian Accounting Theories: The Science of Apologising in Style" (1988) 13 Accounting Organizations & Society 165, at 183. 48 Tinker explains the connections between sociobiology and commercial disciplines in T. Tinker, Panglossian Accounting Theories: The Science of Apologising in Style" (1988) 13 Accounting Organizations & Society 165. 49 In fact, Aristotle (384 BC – 322 BC) wrote specifically on the place of man in nature and human nature in The Politics, Book 1, Chapter ii, “The State Exists By Nature”, per T.J. Saunders (ed), Aristotle The Politics, Penguin, London, 1992. 50 R.C. Lewontin, The Doctrine of DNA: Biology as Ideology, Penguin, Ringwood, Victoria, 2001, 87. 51 R.D. Alexander, “The Search for a General Theory of Behaviour” (1975) 20 Behavioral Science 77, 89; and R.C. Lewontin, The Doctrine of DNA: Biology as Ideology, Penguin, Ringwood, Victoria, 2001, 87: ‘Every political philosophy has to begin with a theory of human nature. Surely, if we cannot say what it is to be truly human, we cannot argue for one or another form of social organisation.’

29 nature. In the case of Hobbes man was nasty and brutish, and in the case of Locke man was essentially “a blank slate”.52 In both cases these views were expressed in rhetorically appropriate terms (through either empirics or deduction),53 and so they were considered legitimate.54 Later Darwin drew on Hobbes (self-preservation goal of the individual), Malthus (population grows faster than resources) and Adam Smith (individualism and the invisible hand) to develop his theory.55 This tradition of naturalising disciplinary conceptual frameworks continues today and is an argument made in normative terms

52 As to Hobbes: R.C. Lewontin, The Doctrine of DNA: Biology as Ideology, Penguin, Ringwood, Victoria, 2001, 88 – 89. As to Locke: R.D. Alexander, “The Search for a General Theory of Behaviour” (1975) 20 Behavioral Science 77, 78. 53 R.C. Lewontin, The Doctrine of DNA: Biology as Ideology, Penguin, Ringwood, Victoria, 2001, 88. 54 It wasn’t until the 19th Century that the notion of a social contract was seriously threatened. It was ridiculed by Marxists on the basis that it was not an accurate representation of history but rather a fetish with legal abstraction: J.B.S. Haldane, The Marxist Philosophy and the Sciences, 1939, Books For Libraries Press, New York, 1969, 182 – 183. Haldane at 182 ridicules Rousseau’s “social contract” explanation for the rise of modern society stating: ‘… according to which at some time in the past, a number of people had got together and said, “Let’s have a state”; and had arranged, like business men sitting round a table to amalgamate a number of firms, to give up certain rights in favour of others.’ He points out at 182 - 183 that it is more salient to explain the nature of the link between social contract theory and the capitalist mode of production: ‘For Marx, it was undoubtedly one feature of social change, but it was a some-what superficial feature, because it was legalistic. The question was not so much, “Why does [at 183] a person now make a contract for such and such wages in return for his work when six hundred years ago he did not make such a contract?” but “Why has society so changed that this is necessary?”’ 55 R.C. Lewontin, The Doctrine of DNA: Biology as Ideology, Penguin, Ringwood, Victoria, 2001, 88 – 89; S.J. Gould, Ever Since Darwin: Reflections in natural history, Penguin, Ringwood, Victoria, 1991, 100 – 101; and P. Hirst, Social Evolution and Sociological Categories, Holmes & Meier, New York, 1976, 19-20: ‘Social evolutionism developed from the problematisation of the Utilitarian tradition of Bentham and James Mill. Spencer found [at 20] in Malthus’ Essay on the Principle of Population the mechanism of his “progress”, the stimulation of population growth. His essay on population was published in 1852 – in it he developed a conception of the “survival of the fittest”. Darwin tells us that he came to the idea of natural selection and the survival of the fittest through a reading of Malthus. Do we not see here a new correspondence between Darwinism and social evolutionism, one in which they meet on the same level, in which Darwin is not privileged, in which they share the same ancestor, T.R. Malthus?’

30 as well as positive terms.56 So, for example, while there are those such as Jones who advocate the need for law to embrace biology, it is the contention of this thesis that the law already does so without recognising this fact.57 This argument that the law is fundamentally sociobiological is made in four dedicated chapters on gender and sexuality, and race below.58

56 T. Tinker, Panglossian Accounting Theories: The Science of Apologising in Style" (1988) 13 Accounting Organizations & Society 165. In terms of the normative argument that disciplines ought to be in harmony with biology, this is the argument presented by Owen D. Jones in any number of essays, for example, see the 1997 Journal of Contemporary Legal Issues Symposium, “Law, Human Behaviour and Evolution”, and the Society for the Evolutionary Analysis of Law website at www.sealsite.org accessed on 17 October 2006; and O.D. Jones, “Law and Biology: Toward an Integrated Model of Human Behaviour” (1997) 8 Journal of Contemporary Legal Issues 167. See also: R. Boyd & P.J. Richerson, Culture and the Evolutionary Process, University Of Chicago Press, Chicago, 1985, 12 - 13: ‘The most basic tenet of sociobiological theory is that we can usually predict the kinds of behaviour observed in a particular ecological and social setting by determining [at 13] the behaviour that maximises individual in that setting, or at least in some relevant setting in the past. Individual inclusive fitness is a measure of an individual’s reproductive success that includes the effect of an individual’s behaviour on its genetic relatives.’ 57 See Society for the Evolutionary Analysis of Law (SEAL) website at www.sealsite.org accessed on 17 October 2006; and O.D.Jones, Law and Biology: Toward an Integrated Model of Human Behaviour (1997) 8 Journal of Contemporary Legal Issues 167. The SEAL website states that the organisational mission to be: ‘(SEAL) is a scholarly association dedicated to fostering interdisciplinary exploration of issues at the intersection of law, biology, and evolutionary theory, improving the models of human behavior relevant to law, and promoting the integration of life science and social science perspectives on law-relevant topics through scholarship, teaching, and empirical research. Relevant disciplines include, among others, evolutionary and behavioral biology, cognitive science, complex adaptive systems, economics, evolutionary psychology, psychiatry, behavioral ecology, behavioral genetics, primatology, evolutionary anthropology, and gender relations. SEAL welcomes all those with serious scholarly interests in evolutionary processes and law.’ 58 See Chapters 7, 8 , 9 & 10.

31 Sociobiology as an ideology A third conception of sociobiology is that it is an ideology.59 This follows from the previous conception of sociobiology as a matrix of assumptions about human nature and the place of humans in nature connecting disciplines. Assumptions frequently made by disciplines can also double as “naturalising” arguments used to legitimate the status quo or to justify change as inevitable.60 In this sense it ranges from the ubiquitous manifestations of “pop culture” through to political theory and practice, through to science.61 All political ideologies necessarily draw on “naturalising” arguments for their authority. 62 In fact Anarchists63, Marxists64, Conservatives65,

59 Sahlins and Tinker have argued that sociobiology is an ideology in M. Sahlins, The Use and Abuse of Biology, University of Michigan Press, Michigan, 1976; and T. Tinker, Panglossian Accounting Theories: The Science of Apologising in Style" (1988) 13 Accounting Organizations & Society 165. However, this is somewhat controversial in the wake of postmodernism and what is called the “paradox of legitimation”, and these are discussed in full in Chapter 6. 60 J. Munoz-Rubio, “Sociobiology and human nature” (2002) Vol 27 No 2 Interdisciplinary Science Reviews 131. 61 As to the ubiquity of sociobiology as pop culture consider the following frequently heard axioms/clichés: “It’s only natural for boys to be more aggressive than girls,” and “there’ll always be poor people who can’t look after themselves just like there’ll always be animals who fall prey to predators.” These axioms are also common in science. So for instance a recent study published in the journal Current Biology reportedly claimed that there are innate gender-based colour preferences in “Girls primed to prefer pink”, News in Science, ABC Science, 21 August 2008.Therefore, sociobiology may be thought of as the intended justification of phenomena by way of biological or “natural” analogy whether it is intended for political purposes or not. In terms of the media and pop culture, the mass media is replete with heterosexist dogma. One such example was an article in The Australian that considered the discrimination facing a female to male transsexual. The author commented, “His courage is extraordinary. Using the boys’ toilets still involves a panic attack and he hasn’t even decided how to pack his lunchbox. Should he opt for the budget option of a rolled up sock or splash out on ‘The Bulge’, a Pack-n-Play, a Mr softie or a Dutch Phallusprosthesis (only $550 with balls and $350 without)?”: E. Tom, “How a girl found the courage to be a man”, The Weekend Australian, 27-28 January 2001, 15. 62 R.D. Alexander, “The Search for a General Theory of Behaviour” (1975) 20 Behavioral Science 77, 89; and R.C. Lewontin, The Doctrine of DNA: Biology as Ideology, Penguin, Ringwood, Victoria, 2001, 87: ‘Every political philosophy has to begin with a theory of human nature.’ 63 R.C. Lewontin, The Doctrine of DNA: Biology as Ideology, Penguin, Ringwood, Victoria, 2001, 94. 64 A. Pannekoek, Marxism and Darwinism, Translated by Jon Muller, Charles H. Kerr & Co, Chicago, 1912, pp. 1 – 31 and F. Engels, Dialectics of Nature, (1883), Electronic Archive, “Chapter 1:

32 Liberals66, and Nazis67 have all drawn upon biology to “naturalise” their arguments. This point can be quickly illustrated by singling out Hobbes and Locke who had each sought in different periods to provide theoretical justification the constitutional status quo and for revolution respectively. For Hobbes constitutional monarchy provided for stability under circumstances where otherwise the life of man would be ‘solitary, poor, nasty, brutish and short’.68 While for Locke, the emancipation of an emerging merchant class from their landed aristocratic masters was appropriate because human nature was characterized by ‘peace, goodwill, mutual assistance and preservation’.69 Therefore the role of the government was only necessary to protect property.70 Locke’s version of the social contract needed to distinguish Hobbes’ version and so Locke accomplished this variation by depicting human nature as congenial and benevolent rather than brutish and war-like as Hobbes had done.71

Introduction”, pp 1 – 11, at 9, viz: ‘Darwin did not know what a bitter satire he wrote on mankind, and especially on his countrymen, when he showed that free competition, the struggle for existence, which the economists celebrate as the highest historical achievement, is the normal state of the animal kingdom.’ Also, Gould points out that Marx had written to Engels on 19 December 1861 concerning Darwin’s On the Origin of Species and commented: ‘Although it is developed in the crude English Style, this is the book which contains the basis in natural history for our view.’ Per S.J. Gould, Ever Since Darwin: Reflections in natural history, Penguin, Ringwood, Victoria, 1991, 26. Engels was more cautious because while he accepted Darwin’s theory he also knew that it was ideologically ambiguous. See his analysis in his letter to P. L. Lavrov in London, Written: Nov. 12-17, 1875, in F. Engels & K. Marx, Selected Correspondence, 2nd ed., Progress Publishers, Moscow, 1965; and R.C. Lewontin, The Doctrine of DNA: Biology as Ideology, Penguin, Ringwood, Victoria, 2001, 87. 65 R. Hofstadter, Social Darwinism in American Thought, Revised edition, George Braziller, New York, 1959, 5 – 10, 46 – 47, & 110 – 111. 66 G. Jones, Social Darwinism and English Thought: The Interaction between Biological and Social Theory, The Harvester Press, Sussex, 1980, 35 - 53. 67 S.J. Gould, Ever Since Darwin: Reflections in natural history, Penguin, Ringwood, Victoria, 1991, 227; Anthony S. Wohl, Professor of History, Vassar College & John van Wyhe, Affiliated Researcher, Dept. of History & Philosophy of Science, Cambridge, “Phrenology”, The Victorian Web “Not Born Equal”, Background Briefing, ABC Radio National, broadcasted on 27 February 2005, pp 1 – 14, at 9 - 10. 68 G. Sabine, A History of Political Theory, 3rd ed, George G. Harrop & Co Ltd, London, 1951, 394. 69 G. Sabine, A History of Political Theory, 3rd ed, George G. Harrop & Co Ltd, London, 1951, 445. 70 G. Sabine, A History of Political Theory, 3rd ed, George G. Harrop & Co Ltd, London, 1951, 447. 71 G. Sabine, A History of Political Theory, 3rd ed, George G. Harrop & Co Ltd, London, 1951, 442: Locke’s objective was to defend the revolution.

33 However, capitalist hegemony means that biology and evolutionary theories are more- often justifications for hierarchy than they are for breaking down hierarchy.72 So for instance, the capitalist nuclear family was (and remains) a site for hierarchy and subordination: … naturalising and [at 21] reinforcing gender hierarchies and ensuring the continued subordination of women and children. Thus, women were largely excluded from the labour market both by law and by custom and tradition, and, like children, could be denied access to basic rights. This denial functioned to sustain and support ‘the existence of intact small families as the basis for the preproduction of labour-power as a chiefly male commodity’.73 The customs and traditions justifying this structure are centred on the idea that women are innately nurturers and that men are innately “hunters”, which is a sociobiological argument.74 Although this family structure is justified as “natural”, it is a structure unique to capitalism and one that would be unsustainable under any other mode of production.75 Precisely for this reason sociobiology is perhaps the ultimate justification because it invokes the authority of biology and the theory of evolution to “naturalise”. Although I posit sociobiology as a meta-ideology used to justify all manifestations of

72 T. Tinker, “Panglossian Accounting Theories: The Science of Apologising in Style” (1988) 13 Accounting Organizations & Society 165, 173. 73 S. Berns, “Musings on the Legal Scene: Law, Populism and the Politics of Ressentiment” (2006) 25 A. Feminist L.J. 19 – 40, at 20 - 21, quoting U. Beck, Brave New World of Work, Polity Press, Cambridge, 2000, at p 20. 74 It is sociobiological in all three senses described above and in terms of scientific Sociobiology. Compare the non-sexist work of Hrdy with that of Ridley and Dawkins, respectively: S. Hrdy, The Women That Never Evolved, Harvard University Press, Cambridge (M), 1981; M. Ridley, The Red Queen: Sex & the Evolution of Human Nature, Penguin Books, Ringwood, Victoria, 2000; and R. Dawkins, The Selfish Gene, New Edition (1990), Oxford University Press, Oxford, 1976. This literature is itself indicative of the fact that the scientist finds answers according to the questions they ask. 75 S. Gavigan, “Paradise Lost Paradox Revisited: The Implications of Familial Ideology for Feminist, Lesbian, and Gay Engagement to Law” (1993) 31 Osgoode Hall Law Journal 589, 589: ‘Successful ideologies are often thought to render their beliefs natural and self-evident – to identify them with the “common sense” of a society so that nobody could imagine how they might ever be different. On this view, a ruling ideology does not so much combat alternative ideas as thrust them beyond the very bounds of the thinkable.’

34 oppression as “natural”, “inevitable”, and “immutable”, this does not mean that it is the only justification or ideology accounting for these things. To be sure, other ideologies can explain specific manifestations of hierarchy and oppression. For example religious-based homophobia might explain why some religious groups oppose “gay marriage” but it would not be capable of explaining family law cases such as Re Patrick where a gay sperm donor’s interests prevailed over the biological mother’s interests.76 Whereas phenomena as diverse as opposition to gay marriage, the decision in Re Patrick, the continuing colonisation of Australia, statutorily driven “free-market” and privatisation measures can all be shown to be essential to capitalism and justified using the naturalising ideology of sociobiology.77 Therefore, in this thesis “sociobiology” is defined as any discourse purporting to be based on “nature”, biological or evolutionary theories and “facts” to justify hierarchy and domination where that hierarchy and domination can also be shown to be typical to capitalism. In contrast to this expanded definition of “sociobiology” discussed until this point, the remainder of this chapter will focus exclusively on the narrower scientific version of sociobiology (“Sociobiology”).78

Human nature according to Sociobiology

In order to provide an exposition of “human nature” according to Sociobiology it must be borne in mind that Sociobiology is asserted to be a method. The founders of Sociobiology (Alexander, Hamilton, Trivers and Wilson) see it is a method aimed at developing a predictive model based on the theory of evolution as opposed to a

76 Re Patrick (An Application Concerning Contact) [2002] FamCA 193. 77 This assertion can only be substantiated by the thesis made here taken as a whole. 78 Even so it will become readily apparent that Sociobiology can be accommodated within the broad definition. If not in this chapter it will become clear in later Chapters. This is despite the opposite view of Ruse in M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 87 - 88: ‘In short, what I am arguing is that because sociobiologists have a theory of the gene in which they apply metaphors like “selfishness”, and because they think this theory explains human actions, it does not at all follow that human beings are entirely selfish or brutish or hypocritical. It certainly does not follow that humans fit an extremely reactionary Western ideological pattern.’

35 description of human behaviour.79 Therefore there are two aspects to “human nature” according to Sociobiology, which can be thought of as normative propositions and methodological/predictive propositions.

Normative Propositions There are two normative aspects to mention and they relate to each other. Both aspects are contained in the normative argument made by two of the founders of Sociobiology: Alexander and Wilson. Alexander and Wilson make strong arguments for the need to align any understanding of human nature with what has been established by the theories of evolution.80 Within this statement is the first normative aspect, which is the notion that science is superior to sociology as Alexander explains: In spite of their own failures to correlate behaviour and evolution, most biologists are convinced that social scientists have no theoretical base for their science. … Many biologists dismiss sound psychological and sociological investigations because in their own view such experimentation is poorly focused or irrelevant. … Asimov (1962, pp. xi-xii) supported an implication all too prevalent in science when he suggested that only the methods of the physical scientists can solve behavioural problems …81 The second normative aspect relates to the first (that science is methodologically superior to social science) in that evolutionary theories constitute an accepted research paradigm.82 In other words the theory of evolution is not just “mainstream science”, it

79 R.D. Alexander, “The Search for a General Theory of Behaviour” (1975) 20 Behavioral Science 77, 86. 80 R.D. Alexander, “The Search for a General Theory of Behaviour” (1975) 20 Behavioral Science 77, 94 & 95; and E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, 4. 81 R.D. Alexander, “The Search for a General Theory of Behaviour” (1975) 20 Behavioral Science 77, 85. 82 With one important caveat – theories of evolution like science itself are ultimately based on faith. In making this point I am not giving credence to “vitalism”, rather, the point that human knowledge is by necessity anthropomorphic. In terms of vitalism see further: S. Rothman, Lessons from the Living Cell: The Limits of Reductionism, McGraw-Hill, Sydney, 2002, 20. In contrast Tillet assumes vitalism: ‘We must also bear in mind that the explanations of science are not absolute. They are built upon fundamental [at 4] unexplained assumptions, for example about the nature of logical reasoning. So the astronomer Robert Jastrow concludes that: “Science will never be able to raise the curtain on the

36 is axiomatic, leaving no room for rival explanations (viz those advocated by so-called “Creation Science” such as “Intelligent Design”), which have no credibility in the refereed literature of University academics around the world.83 The theories of evolution are seen as both “objective knowledge” and “proven knowledge” unlike any rival explanations.84 For this reason Sociobiologists argue that explanations for human behaviour must be based on, and compatible with, evolutionary theory. They are also mindful of the history of the search for human nature, which has been plagued by an irreconcilable debate, colloquially known as the “nature versus nurture debate” (otherwise referred to here as the “culturally constructed verses biologically determined” debate), which contributed to the collapse of many earlier models.85 Since the Victorian era various integrated models, as well as uniquely science or humanities based ones had been devised only to collapse under criticism or due to discoveries in science.86 In particular, until recently, as the quote from Alexander (above) suggests, theories within evolutionary science were not settled.87 Alexander points out that until the

mystery of creation. For the scientist who has lived by his faith in the power of reason, the story ends like a bad dream. He has scaled the mountains of ignorance, he is about to conquer the highest peak, as he pulls himself over the final rock, he is greeted by a band of theologians who have been sitting there for centuries”.’ Per P. Tillet “The Evolution of God” interview on Ockham’s Razor, Radio National, Broadcasted on 22 December 2002, 3 – 4. 83 See further M. Ruse, The Evolution – Creation Struggle, Harvard University Press, Cambridge, 2005; M. Shermer, “The Evolution Wars” (2001) 8(4) Skeptic 67; “A Scientific American Rethinks”, The Science Show, ABC Radio National, broadcasted 2 April 2005; “Creationism, Evolution, and the Steve Project”, The Science Show, ABC Radio National, broadcasted 9 April 2005; “Evolution, Creationism & Censorship”, The Science Show, ABC Radio National, broadcasted 9 April 2005; and for a discussion of how the courts have approached and tested this issue see D. Wisebrod, “Religion, Science, and Law: Defining the Science in Scientific Creationism”, January 1994, CataLaw: Metaindex of Law and Government, accessed online at http://www.catalaw.com/dov/docs/dw-scicr.htm on 15 November 2001, 1 - 36. 84 A. Chalmers, What is this thing called science?, 2nd edn, St Lucia, University of Qld Press, 1988, 1. 85 M. Grene & D. Depew, The Philosophy of Biology: An Episodic History, Cambridge University Press, Cambridge, 2004, 334. 86 A. Lustig, “Calculated Virtues: Explanations of Altruism in Biology and Society since Darwin”, Max Planck Institute for the History of Science, pp. 1 – 2. Lustig claims that Spencer was one of the first to use an integrated model and one of the first to attempt to explain “altruism”.

37 scientific community accepted that selection operates at the individual level (not the group level), ethologists and other biologists had not been able to adequately explain human behaviour.88 In other words they explained behaviour according to models based on group selection. In 1966, when Williams refuted the possibility of selection at the group-level and demonstrated that natural selection operated at the level of the individual, the quest for new models began.89 In effect this meant that if individuals struggled for reproductive success, then acts not undertaken for this purpose but for the benefit of others now needed to be explained.90 This meant that a key concern for ethologists and biologists was the need to explain the concept of “altruism” because acts of altruism had the potential to undermine any scope for an evolutionary basis for human behaviour.91 The idea that an individual could evolve chiefly so as to assist a rival to reproduce seemed antithetical to an evolutionary explanation for behaviour.92 In this situation the altruistic individual

87 M. Ridley, The Red Queen: Sex & the Evolution of Human Nature, Penguin Books, Ringwood, Victoria, 2000, 339: ‘The history of human science is not encouraging. Galton’s eugenics, Freud’s unconscious, Durkheim’s sociology, Mead’s cultural anthropology, Skinner’s behaviourism, Piaget’s early learning and even Wilson’s sociobiology all appear in retrospect to be riddled with errors and false perspectives.’ 88 R.D. Alexander, “The Search for a General Theory of Behaviour” (1975) 20 Behavioral Science 77, 80. 89 E. Mayr, What Makes Biology Unique? Considerations on the autonomy of a scientific discipline, Cambridge University press, Cambridge, 2004, 148 – 149. However, Mayr points to significant flaws in Williams’ argument. 90 R.D. Alexander, “The Search for a General Theory of Behaviour” (1975) 20 Behavioral Science 77, 80: ‘Once it was realised that behaviour assisting the population at the expense of its bearer could spread and be maintained only under peculiar and at least rare conditions of population structure, alternative hypotheses were generated.’ 91 R.D. Alexander, “The Search for a General Theory of Behaviour” (1975) 20 Behavioral Science 77, 81: … evolutionary theory, based on differential reproduction of genetic alternatives or survival of the fittest, seems to call for some kind of ultimate selfishness in reproductive competition. Darwin, after all, had noted (1859, p. 201) that ‘If it could be proved that any part of the structure of any one species had been formed for the exclusive good of another species, it would annihilate my theory, for such could not have been produced by natural selection.’ 92 This argument is based on the notion of “sex selection” (contrasted with “natural selection”) which was, and still is, a contentious topic in evolutionary biology. It will be discussed below under the heading “The Case for Human Nature According to Sociobiology”.

38 would only benefit if they were genetically identical to the “rival”. This posed a paradoxical impasse tending to exacerbate the rift between the cultural constructionist and biological camps.93 From the point of view of Sociobiologists this impasse was addressed by three vital developments each seeking to account for the evolution of non-selfish behaviour (altruism). These developments were (1) Hamilton’s “kin- selection” theory, (2) Trivers’ “parental investment theory”, “parent/offspring conflict model” and his explanation for “reciprocal altruism”, and (3) the application of “game-theory” from mathematics tending to verify each of the theories.94 Each of these developments is explored in the next chapter. For now, it is important to recognise that Sociobiology arrived in the wake of a significant development in the theory of evolution (viz: selection takes place at the individual, not group, level), forcing ethology and biology into a quest for new models to explain human behaviour – in particular one that could reconcile the problem of the evolution of altruism. Therefore the predictions made by Sociobiology can be understood within the context of its origins. In other words, Sociobiology is concerned with aligning theories of human nature with current evolutionary theory and as a consequence of this objective it tends to focus on overcoming the problem of explaining the evolutionary significance of non-reproductive behaviours (such as altruism) assuming individuals are held to be evolutionary competitors.

93 R.D. Alexander, “The Search for a General Theory of Behaviour” (1975) 20 Behavioral Science 77, 82: ‘When the paradox of altruism, in light of the seeming universality and enormous complexity of human social cooperation, is considered together with the indirectness of the relationship between the human gentoype and its behavioural phenotype via learning and culture, it is small wonder that behaviourists and evolutionists failed to join their separate endeavours in a theoretically sound fashion.’ 94 W.D. Hamilton, “The Genetical Evolution of Social Behaviour I” (1964) 7 Journal of Theoretical Biology 1; W.D. Hamilton, “The Genetical Evolution of Social Behaviour II” (1964) 7 Journal of Theoretical Biology 17; and R.L. Trivers, “Parental Investment and Sexual Selection” in B. Campbell (ed), Sexual Selection and the Descent of Man 1871-1971, Aldine Publishing Co, Chicago, 1972, pp. 136 – 179; and in terms of game-theory: J. Maynard Smith, On Evolution, Edinburgh University Press, Edinburgh, 1972, 8 - 28; and M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 26 – 31, 56 - 57 & 146 – 148.

39 Methodological/Predictive Propositions Sociobiology predicts that all human behaviour can be explained according to the theory of evolution: “the human mind has adapted to its environment” and “an individual is programmed to reproduce their genes into the next generation”.95 It starts from the dual propositions the human mind has evolved to be adapted for its environment, and an individual exists in order to achieve reproductive success.96 In terms of , Sociobiologists turn to the “Autocatalysis Model” as both a source of “evidence” and a means upon which to make predictions.97 In terms of reproductive success, Sociobiologists emphasise “sexual selection”, which is an important aspect of natural selection, in order to reduce human behaviour to that objective.98 For this reason it is appropriate to provide a brief introduction to these concepts.99 The Autocatalysis Model is central to Sociobiology because once it is assumed that the human mind has evolved to be adapted to its environment the question arises, “what environment?”.100 The environment widely regarded in science to be the one the human mind is adapted to is the Pleistocene environment of our ancestors.101 In

95 “The Descent of Man, Episode 1: The Moral Animal”, The Science Show, ABC Radio National, pp. 1 – 11. 96 R.D. Alexander, “The Search for a General Theory of Behaviour” (1975) 20 Behavioral Science 77, 96; R. Dawkins, The Selfish Gene, New Edition (1990), Oxford University Press, Oxford, 1976, v; W.D. Hamilton, “The Genetical Evolution of Social Behaviour I” (1964) 7 Journal of Theoretical Biology 1, 16; M. Ridley, The Red Queen: Sex & the Evolution of Human Nature, Penguin Books, Ringwood, Victoria, 2000, 9; and E.O. Wilson, Sociobiology: The New Synthesis, Harvard University Press, Cambridge, 1976, 3. 97 E.O. Wilson, Sociobiology: The New Synthesis, Harvard University Press, Cambridge, 1976, 292 – 297. 98 C. Darwin, The Descent of Man and Selection in Relation to Sex, (2nd ed, 1882) John Murray, London, 1871, 614. 99 A more extensive account of each concept is given in chapter 3. 100 M. Grene & D. Depew, The Philosophy of Biology: An Episodic History, Cambridge University Press, Cambridge, 2004, 338. 101 M. Grene & D. Depew, The Philosophy of Biology: An Episodic History, Cambridge University Press, Cambridge, 2004, 338. Because, ‘… too little time has passed since the dawn of civilized life for to our present form of life to take hold.’

40 evolutionary terms, human social behaviour is considered to be “adaptive” in circumstances where adaptive means: A trait can be said to be adaptive if it is maintained in a population by selection. … another trait is nonadaptive, or “abnormal,” if it reduces the fitness of individuals that consistently manifest it under environmental circumstances that are usual for the species.102 Little is known about the Pleistocene environment or its “adapted” inhabitants (from through to ) and what is believed about the two comes from a combination of models and evidence gathered from many disciplines. In particular, evidence comes from anthropology, archaeology, fossil evidence, and many evolutionary sciences. From this evidence, various forms of the Autocatalysis Model have been hypothesised to explain the transition of human ancestors from arboreal primates to hunter/gatherers.103 In general, according104 to the “Autocatalysis Model” of the theory of : … evolution is caused (catalyzed) by itself (auto). It is self-propelled by feedback loops.’105

102 E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, 15: ‘A trait can be switched from an adaptive to a nonadaptive status by a simple change in the environment. For example, the sickle-cell trait of human beings, determined by the heterozygous state of a single gene, is adaptive under living conditions in Africa, where it confers some degree of resistance to falciparum malaria. In Americans of African descent, it is nonadaptive, for the simple reason that its bearers are no longer confronted by malaria.’ 103 The detail varies but the core principal of “autocatalysis” is the common element. Compare, for example, Wilson (E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, 292 – 296) who uses a model proposed by Clifford Jolly (C. Jolly, “The Seed-Eaters: A New Model of Hominid Differentiation Based on a Baboon Analogy” (1970) 5(1) Man 5-26 with McKee’s model (J.K. McKee, The Riddled Chain: Chance, Coincidence, and Chaos in Human Evolution, Rutgers University Press, New Brunswick (NJ), 2000, 201 - 228). Gould refers to the process of autocatlysis without recognising a model: S.J. Gould, Ever Since Darwin: Reflections in natural history, Penguin, Ringwood, Victoria, 1991, 189 & 209. 104 I do not want to be taken as endorsing this Model rather I am trying to explain it. 105 J.K. McKee, The Riddled Chain: Chance, Coincidence, and Chaos in Human Evolution, Rutgers University Press, New Brunswick (NJ), 2000, 202.

41 As morphological changes occurred, such as the shift to , the human brain was able to expand and then interact more with the eyes hands and feet to promote accelerated brain development.106 Consequently: The success of these abilities in making humans more adaptable in turn selected for a larger and more complex brain. In such a model the brain developed very quickly, starting at the dawn of the genus Homo and accelerating by this autocatalytic feedback.107 Ultimately, this accelerated brain development led to the emergence of the hunter/gatherer societies. Therefore, where similar such societies have been observed by anthropologists in modern times, they are treated as “examples” of these earlier societies. Any behaviours mapped in these more recent societies is then projected onto the Autocatalysis Model, and at the same time, where those behaviours are also deemed to be present in Western societies, they are then treated as universal human traits. The other proposition underlying the Sociobiologist’s claim that human behaviour has evolved is that an individual exists in order to achieve reproductive success. This follows from “sexual selection”. Sexual selection is a form of “natural selection”. Darwin differentiated the two concepts explaining: Sexual selection depends on the success of certain individuals over others of the same sex, in relation to the propagation of the species; whilst natural selection depends on the success of both sexes, at all ages, in relation to the general conditions of life.108 For Darwin sexual selection was the main driving force behind the evolution of the human being.109 Similarly, for Sociobiologists, sexual selection tends to be emphasised over and above natural selection. So for example, Ridley asserts:

106 J.K. McKee, The Riddled Chain: Chance, Coincidence, and Chaos in Human Evolution, Rutgers University Press, New Brunswick (NJ), 2000, 203. 107 J.K. McKee, The Riddled Chain: Chance, Coincidence, and Chaos in Human Evolution, Rutgers University Press, New Brunswick (NJ), 2000, 203 – 204. 108 C. Darwin, The Descent of Man and Selection in Relation to Sex, (2nd ed, 1882) John Murray, London, 1871, 614. 109 C. Darwin, The Descent of Man and Selection in Relation to Sex, (2nd ed, 1882) John Murray, London, 1871, 605 speaking of sexual selection: ‘We may conclude that the greater size, strength, courage, pugnacity, and energy of man, in comparison with woman, were acquired during primeval

42 … it is impossible to understand human nature without understanding how it evolved; and that it is impossible to understand how it evolved without understanding how human sexuality evolved. For the central theme of our evolution has been sexual. … reproduction is the sole goal for which human beings are designed; everything else is a means to that end. … Therefore, anything which increased the chances of a person reproducing successfully was passed on at the expense of everything else. … I know of no other way that human nature can have developed, [at 5] except by evolution, and there is now overwhelming evidence that there is no other way for evolution to work except by competitive reproduction.110 To be sure, what Sociobiologists are saying is that complex social behaviour is the product of an innate evolutionary human condition whereby each individual seeks to maximise their reproductive success. Both genotype and phenotype can be explained as products of evolution.111 Whether behaviour is the result of genotype or phenotype, the starting point remains the same - an individual’s behaviour must be aimed at achieving/maximising reproductive success.112 So even if it is accepted that ‘the most indirect connections between genotype and phenotype are those between genes and behaviour’, behaviour will still be innate because ‘behaviour springs from morphology and physiology, which are by definition, therefore closer to gene action’.113 Stated differently:

times, and have subsequently been augmented, chiefly through the contests of rival males for the possession of the females. The greater intellectual vigour and power of invention in man is probably due to natural selection, combined with the inherited effects of habit, for the most able men will have succeeded best in defending and providing for themselves and for their wives and offspring.’ 110 M. Ridley, The Red Queen: Sex & the Evolution of Human Nature, Penguin Books, Ringwood, Victoria, 2000, 4 – 5. 111 Genotypes are defined by Wilson as, ‘The genetic constitution of an individual organism, designated with reference either to a single trait or to a set of traits’, and “phenotypes” are defined as ‘The observable properties of an organism as they have developed under the combined influences of the genetic constitution of the individual and the effects of environmental factors’: E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, 312 & 318. 112 R.D. Alexander, “The Search for a General Theory of Behaviour” (1975) 20 Behavioral Science 77, 96. 113 R.D. Alexander, “The Search for an Evolutionary Philosophy” (1971) 84 Proceedings of the Royal Society of Victoria 99, 100.

43 … while behaviour may be fartherest from the genes in terms of how the phenotype (or the animal itself) functions, it is as well closest to selective action. More than anything else, it is the behaviour of an animal that actually causes it to be favoured or disfavoured.114 Consequently, because all behaviour is aimed at reproductive success, it must be explained at an individual level since this is the level at which selection takes place. This postulation has implications for the way both individual and group behaviour are explained by Sociobiology. It means that at the individual level all behaviour is considered a function of the individual’s innate “selfish” goal to maximise reproductive success, and at the group level, all behaviour is reduced to this same explanation.115 In fact, Sociobiology claims that complex phenomena such as society, the division of labour, hierarchy, marriage, the inheritance of property, nuclear families, law, justice, Western ethics, racism, territoriality, wars, and even capitalism itself can all be explained in these evolutionary terms.116 They may even be seen as inevitable. 117 Gould derides the extent of these predictions, each reduced by Sociobiology to adaptation in terms of reproductive success:

114 R.D. Alexander, “The Search for an Evolutionary Philosophy” (1971) 84 Proceedings of the Royal Society of Victoria 99, 100. 115 W.D. Hamilton, “The Genetical Evolution of Social Behaviour I” (1964) 7 Journal of Theoretical Biology 1, 16: ‘The model shows a preference for the evolution of selfish behaviours, which ‘are always selected’. 116 R.D. Alexander, “The Search for a General Theory of Behaviour” (1975) 20 Behavioral Science 77, 88 – 89, 95, 96; R. Conniff, “Want to be boss?” (2000) 21(5) Discover 72, 79; M. Grene & D. Depew, The Philosophy of Biology: An Episodic History, Cambridge University Press, Cambridge, 2004, 332- 333; M. Ridley, The Red Queen: Sex & the Evolution of Human Nature, Penguin Books, Ringwood, Victoria, 2000, 265; M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 55, 66-68; E.O. Wilson, Sociobiology: The New Synthesis, Harvard University Press, Cambridge, 1976, 4, 13, 273, 275, 277 – 280, 284, 285, 286, 287, 289 – 290, & 297 – 299. In terms of the significance of war and reproduction see further: M. Harris, Cannibals and Kings, Random House, New York, 1977. 117 E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, 300: ‘If the planned society – the creation of which seems inevitable in the coming century – were to deliberately steer its members past those stresses and conflicts that once gave the destructive phenotypes their Darwinian edge, the other phenotypes might dwindle with them. In this, the ultimate genetic sense, social control would rob man of its humanity.’ See generally: R. Conniff, “Want to be boss?” (2000) 21(5) Discover 72.

44 … sociobiologists are presenting a series of elaborate speculations rooted in the premise that all major patterns of behaviour must be adaptive as the products of natural selection. I have heard adaptive (and even genetic) arguments for such phenomena as the inheritance of wealth and property through male lines and the higher incidence of fellatio and cunnilingus among the upper classes.118 Yet Sociobiologists regard complex social phenomena such as art, communication, culture, politics, and religion as by-products of evolution because they are seen as adaptive behaviours and on the basis that the human capacity for language and learning is genotypical.119 For this reason, Wilson asserts that art, communication, culture, and politics all stem from an innate capacity for language: All of man’s unique social behaviour pivots on his use of language, which is itself unique. … Even without words human communication would be the richest known.120 To the extent that specific details of culture are non-genetic, they can be decoupled from the biological system and arrayed beside it as an auxiliary system.121 It is useful to hypothesize that cultural details are for the most part adaptive in a Darwinian sense, even though some may operate indirectly through enhanced group survival.122 In terms of the great variation in religious belief around the world and within societies:

118 S.J. Gould, Ever Since Darwin: Reflections in natural history, Penguin, Ringwood, Victoria, 1991, 269. 119 E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, 280 – 285. This view stands in contrast to the view taken by Feynman in R. Feynman, The Meaning Of It All, Ringwood Victoria, Penguin, 1998, 43 - 44. 120 E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, 280. 121 E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, 284. 122 E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, 284, Adding ‘Ethnographic detail is genetically underprescribed, resulting in great amounts of diversity among societies. Underprescription does not mean that culture has been freed from the genes. What has evolved is the capacity for culture, indeed the overwhelming tendency to develop one culture or another.’ And: ‘Among the fastest cultural responses in industrial civilizations are fashions in dress and speech. Somewhat slower are political ideology and social attitudes toward other nations, while the slowest of all incest taboos and the belief or disbelief in particular high gods.’

45 Sacred traditions occur almost universally in human societies. So do myths that explain the origin of man or at the very least the relation of the tribe to the rest of the world. But belief in high gods is not universal. … A form of group selection also operates in the competition between sects. Those that gain adherents survive; those that cannot, fail. Consequently, religions, like other human institutions, evolve so as to further the welfare of their practitioners. Because this demographic benefit applies to the group as a whole, it can be gained in part by altruism and exploitation, with certain segments profiting at the expense of others. Alternatively, it can arise as the sum of generally increased individual fitnesses.123 Even “free will” is explained in this way.124 According to Alexander virtually all social behaviours (such as group-living, sexual competition, incest taboos, nepotism, reciprocity and parenthood) can and should be explained according to selection at an individual level.125 These predictions made by Sociobiology about group behaviours rely on three key assumptions about individual human nature. At an individual level, humans are behaviourally sex-dimorphic, selfish and aggressive.126 Each of these assumptions has been essential to the emerging Sociobiological model and each one is used to sustain

123 E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, 285. 124 M. Ridley, The Red Queen: Sex & the Evolution of Human Nature, Penguin Books, Ringwood, Victoria, 2000, 5: ‘Therefore free will itself is only good to the extent that it contributes to eventual reproduction.’ Professor Dudley Williams of Churchill College, Cambridge University makes the same claim: “Free Will”, The Science Show, ABC Radio National, broadcast 12 June 1999. Dudley, believes that ‘humans are trapped in their molecules and must behave in a manner that reflects the materials of which we’re made. He likens us to a car, which is made up of certain components and can therefore be expected to behave like a car.’ See also C. Badcock, Evolution and Individual Behaviour, Oxford, Basil Blackwell, 1991, 94 – 99. 125 R.D. Alexander, “The Search for a General Theory of Behaviour” (1975) 20 Behavioral Science 77, 88 – 89. 126 E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980: “Aggression” is defined at 305 as ‘A physical act or threat of action by one individual that reduces the freedom or genetic fitness of another.’ “Selfishness” is defined at 322 as ‘In the strict usage of sociobiology, behaviour that benefits the individual in terms of genetic fitness at the expense of the genetic fitness of other members of the same species’. “Sexual dimorphism” is defined at 322 as ‘Any consistent difference between males and females beyond the basic functional portions of the sex organs.’

46 the overarching premise that all human behaviour is ultimately reducible to the individual’s quest to reproduce into the next generation. These three key assumptions also maintain the basis for an array of further predictions about individual human behaviour. Sex-dimorphic behaviour is an assumption enthusiastically endorsed by Sociobiology and one that is so pervasive in wider society it is rarely questioned. The anecdotes and myths are all too familiar. They claim, for example, among other things, males are better at maths and reading maps and women are better carers and communicators. Sex-dimorphism is considered by Sociobiology to include ‘[a]ny consistent difference between males and females beyond the basic functional portions of the sex organs’.127 This definition brings together a distinction that is often made elsewhere by evolutionists and social theorists alike between sex-dimorphic behaviour and sex- dimorphic anatomy or physiology.128 The explanation given by Sociobiologists for innate behavioural differences between men and women is a consistent one. It is explained here by the founder of Sociobiology, Wilson, and has been extracted at length because of its overall importance to the Sociobiological model, and to the critique of it which follows in later chapters: The reproductive physiology and behaviour of Homo sapiens have also undergone extraordinary evolution. In particular, the oestrus cycle of the female has changed in two ways that affect sexual and social behaviour. Menstruation has been intensified. The females of some other primate species experience slight bleeding, but only in women is there a heavy sloughing of the wall of the “disappointed womb” with consequent heavy bleeding. The oestrus, or period of female “heat,” has been replaced by virtually continuous sexual activity.

127 E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, 322. 128 See further the debate between Udry and his critics in volume 66 No 4 of 2001 American Sociological Review, at page 607ff; and evolutionists such as Lewontin and Gould (S.J. Gould, Leonardo’s Mountain of Clams and the Diet of Worms: Essays on Natural History, London, Vintage, 1999, 263-264, and R.C. Lewontin, The Doctrine of DNA: Biology as Ideology, Penguin, Ringwood, Victoria, 2001, at 14 & 94.); and social theorists such as Hubbard et al and Mathews (R. Hubbard, M. Henifin & B. Fried (eds), Biological Woman - The Convenient Myth: A Collection of Feminist Essays and a Comprehensive Bibliography, Schenkman Publishing Co, Cambridge (Mass), 1982; and J.J. Mathews, Good and Mad Women: The Historical Construction of Femininity in Twentieth-Century Australia, St Leonards (NSW), Allen & Unwin, 1984).

47 Copulation is initiated not by response to the conventional primate signals of oestrus, such as changes in colour of the skin around the female sexual organs and the release of pheromones, but by extended foreplay entailing mutual stimulation by the partners. The traits of physical attraction are moreover, fixed in nature. They include the pubic of both sexes and the protuberant breasts and buttocks of women. The flattened sexual cycle and continuous female attractiveness cement the close marriage bonds that are basic to human social life.129 Further: Fox (1972), following a suggestion by Chance (1962), has argued that sexual selection was the auxiliary motor that drove human evolution all the way to the Homo grade. … The selection would be enhanced by the constant mating provocation that arises from the female’s nearly continuous sexual receptivity. Because of the existence of a high level of cooperation within the band, a legacy of the original Australopithecus adaptation, sexual selection would tend to be linked with hunting prowess, leadership, skill at tool making, and other visible attributes that contribute to the success of the family and the male band. Young males found it profitable to fit into the group, controlling their sexuality and aggression and awaiting their turn at leadership. As a result the dominant male in hominid societies was most likely to possess a mosaic of qualities that reflect the necessities of compromise; as Robin Fox expressed it, the male was “controlled, cunning, cooperative, attractive to the ladies, good with children, relaxed, tough, eloquent, skillfull, knowledgable, and proficient in self-defence and hunting.” 130 These two quotes also illustrate the interaction between the dual propositions that behaviour has evolved as “adaptive” and is a manifestation of “reproductive competition”, and the corresponding interaction between the Autocatalysis model and sexual selection. Sociobiology relies on sexual selection to predict that males will compete with each other (“male to male reproductive competition for females”), and females will choose

129 E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, 271. 130 E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, 297.

48 (“female choice” of their male reproductive mates).131 Therefore Sociobiology predicts that in addition to sex-dimorphism, humans will have sex-dimorphic behaviours and an innate sexual division of labour. Sex-dimorphic behaviour and the sexual division of labour are inevitable products of sexual selection.132 The logic for this prediction is based on two observations. The first observation was one made by Darwin in that in most animals males compete for females and this fits with theories of sexual selection. The second observation can be traced to Trivers who noted that in terms of reproduction males invest relatively little by comparison with females.133 Therefore, females will tend to evolve behaviours that coerce males into helping with parenting while males will compete with each other for access to females.134 Sociobiologists use those same observations to predict that competition also exists between the sexes as much as it does between men competing for women.135 Collectively, these predictions lead to the notion that complex human behaviours have evolved for the purposes of managing conflicts.136 So, by way of an illustration,

131 C. Darwin, The Descent of Man and Selection in Relation to Sex, (2nd ed, 1882) John Murray, London, 1871, 222 & 618. 132 However, Firestone points out that with reproductive technologies a sexual division of labour is no longer necessary or inevitable but is instead a product of patriarchal control over the means of reproduction and child-rearing: S. Firestone, The Dialectic of Sex: The case for Feminist Revolution, Granada Publishing, London, 1972. 133 R.L. Trivers, “Parental Investment and Sexual Selection” in B. Campbell (ed), Sexual Selection and the Descent of Man 1871-1971, Aldine Publishing Co, Chicago, 1972, pp. 136 – 179. At 138 Trivers credits Bateman for the initial observation. 134 R.L. Trivers, “Parental Investment and Sexual Selection” in B. Campbell (ed), Sexual Selection and the Descent of Man 1871-1971, Aldine Publishing Co, Chicago, 1972, pp. 136 – 179. 135 Competition between the sexes is a product of Sociobiology’s parental investment theory more so than classic sexual selection. Compare: R.L. Trivers, “Parental Investment and Sexual Selection” in B. Campbell (ed), Sexual Selection and the Descent of Man 1871-1971, Aldine Publishing Co, Chicago, 1972, pp. 136 – 179; and C. Darwin, The Descent of Man and Selection in Relation to Sex, (2nd ed, 1882) John Murray, London, 1871, 614: ‘The sexual struggle is of two kinds; in the one it is between individuals of the same sex, generally the males, in order to drive away or kill their rivals, the females remaining passive; whilst in the other, the struggle is likewise between the individuals of the same sex, in order to excite or charm those of the opposite sex, generally the females, which no longer remain passive, but select the more agreeable partners.’ 136 R. Dawkins, The Blind Watchmaker, Ringwood, Victoria, Penguin, 1988, 217 – 218: ‘The relationship is often hostile rather than cooperative … This is where we come to the second major

49 assume that two boys go fishing and are forced to share a fishing rod. If one boy is stronger and more aggressive than the other, Sociobiology predicts that the stronger boy will gain more time with the fishing rod.137 Alternatively, in circumstances where a boy and a girl are forced to share a fishing rod, Sociobiology predicts that the girl would manipulate the stronger more aggressive boy into sharing the rod with her, by perhaps, appealing to his ego by asking him to show her how to use the rod: Hawley describes the girl’s strategy at the fishing pond as ‘a sophisticated way to dupe your partner under the guise of helping’.138 Similarly, in terms of female choice, Sociobiology predicts that women will use sex for wealth and status: It would be interesting to have detailed data from other species on the extent to which males do compete for females with higher breeding potential. Males are certainly often initially aggressive to females intruding in their territories, and this aggressiveness may act as a sieve, admitting only those females whose high motivation correlates with early egg laying and high reproductive potential. There is good evidence that American women tend to marry up the socio- economic scale, and physical attractiveness during adolescence facilitates such movement (Elder 1969). Until recently such a bias in female choice presumably correlated with increased reproductive success, but the value, if any, of female beauty for male reproductive success is obscure.139 In other words, sexual selection drives women to evolve less aggressive, but nonetheless competitive, manipulative behaviours and men to evolve more overt aggressive/competitive strategies.140

theme of this chapter, ‘arms races”. There are arms races between predators and prey, parasites and hosts, even – though the point is a more subtle one and I shan’t discuss it further – between males and females within species. Arms races are run in evolutionary time, rather than on the timescale of individual lifetimes. They consist of the improvement in one’s lineage’s (say prey animals’) equipment to survive, as a direct consequence of improvement in another (say predators’) [at 218] lineage’s evolving equipment.’ 137 R. Conniff, “Want to be boss?” (2000) 21(5) Discover 72, 78. 138 R. Conniff, “Want to be boss?” (2000) 21(5) Discover 72, 78. 139 R.L. Trivers, “Parental Investment and Sexual Selection” in B. Campbell (ed), Sexual Selection and the Descent of Man 1871-1971, Aldine Publishing Co, Chicago, 1972, pp. 136 – 179, 172. 140 R. Conniff, “Want to be boss?” (2000) 21(5) Discover 72.

50 The other two key individual traits mentioned earlier were “selfishness” and “aggression”. For Sociobiologists they are defined in terms of “genetic fitness”: [“Aggression” is defined as] ‘A physical act or threat of action by one individual that reduces the freedom or genetic fitness of another.’ [“Selfishness” is defined as] ‘In the strict usage of sociobiology, behaviour that benefits the individual in terms of genetic fitness at the expense of the genetic fitness of other members of the same species’.141 However, despite these narrow definitions, these concepts have an enormous reach in terms of their application throughout the Sociobiological literature. They are both used in conjunction with sex-dimorphic behaviour to account for all manifestations of individual human behaviour. Take “selfishness”, for example, it includes “cooperation” and “altruism”. 142 Selfishness is taken to include altruistic action because the latter is characterised as a function of it: When cooperative behaviour evolves, it is put to service by one kind of individual on behalf of another, either unilaterally or mutually.143 The same evidence is advanced for human “selfishness” as for sex-dimorphic behaviour. So for instance, it is asserted that the biological basis for non-reproductive altruism can be found in the bio/chemistry of the brain: Brain scans have shown this genetic legacy [unselfish altruism] in humans … Unselfish behaviour stimulates pleasure centres in the brain sensitive to dopamine, which is associated with addictive behaviour, and oxytocin, which is associated with mother-child bonding.144 What is important for present purposes is the argument that all selfishness is an innate human behaviour programmed by an individual’s need to reproduce, and where the

141 E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, 305 & 322, respectively. 142 T. McClain, “survival of the fittest? Anthropologist suggests the nicest prevail – not just the selfish” in News and Information, Washington University in St. Louis, 9 June 2004: ‘According to this line of reasoning, known as sociobiology, even seemingly unselfish acts of altruism merely represent a species’ strategy to survive and preserve its genes.’ 143 E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, 11. 144 T. McClain, “survival of the fittest? Anthropologist suggests the nicest prevail – not just the selfish” in News and Information, Washington University in St. Louis, 9 June 2004.

51 behaviour is not inherently selfish, but instead altruistic, it is nonetheless characterised as “selfish” on the basis of “reciprocity”. Reciprocity is critical to the Sociobiological model for human behaviour. Wilson defines “reciprocal altruism” as, ‘[t]he trading of altruistic acts by individuals at different times.’145 This justification for “reciprocal altruism” is explained in the next chapter. Likewise the justification for the Sociobiological assumption that humans are fundamentally aggressive is provided later. For present purposes though it helps to have at least a partial explanation for this assumption. Alexander argues that it follows from the proposition that humans are ‘reproductively selfish’ that humans will also tend to be aggressive in situations where aggression can confer a reproductive advantage.146 Ruse builds on this argument made by Alexander to claim that human aggression is a product of evolution forcing humans to live in groups: … R.D. Alexander … argues that somewhat paradoxically much of the human ability to live socially together (which Alexander sees as being underlyingly genetic) is ultimately the outcome of aggression. It is often suggested that humans started to band together and to evolve rapidly as a function of hunting – ancestral humans needed to work together intelligently in order to secure prey far bigger, fleeter, and stronger than they. … [Alexander] believes that sociability and intelligence, not to mention aggression, are adaptive responses to predators competing for similar resources, namely other bands of humans. ‘I suggest that, at an early stage, predators became chiefly responsible for forcing men to live in groups, and that those predators were not other species but larger, stronger groups of men’.147 While Trivers speculates that male aggression may be caused by jealousy and territoriality associated with sex selection:

145 E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, 321: ‘For example, one person saves a drowning person in exchange for the promise (or at least expectation) that his altruistic act will be repaid if the circumstances are reversed at some time in the future.’ 146 R.D. Alexander, “The Search for an Evolutionary Philosophy” (1971) 84 Proceedings of the Royal Society of Victoria 99, 115. 147 M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 56, quoting Alexander in R.D. Alexander, “The Search for an Evolutionary Philosophy” (1971) 84 Proceedings of the Royal Society of Victoria 99, 116.

52 It may be the case that male aggressiveness is more strongly selected in visually oriented animals because vision provides long-range information on the behaviour of competitors. The male can, for example, easily observe another male beginning to copulate and can often quickly attempt to intervene (for example, baboons, De Vore 1965 and sage grouse, Scott 1942).148 Once again, these quotes illustrate the dynamic interplay between the Autocatalysis Model and sexual selection – this time in relation to aggression – and the importance of those concepts to Sociobiology. It is evident from these types of explanation that human aggression is a prediction as well as an assumption of the Sociobiological model for human behaviour. Aggression is also considered to be an adaptive response to environmental pressures such as the competition for limited resources.149 In this respect it is “polyadaptive” because it includes a variety of functional categories of social behaviour.150 Aggression is an overarching trait that incorporates many forms of human behaviour: In sum, it is the total pattern of aggressive responses that is adaptive and has been fixed in the course of evolution.151 This means that aggression can range from extreme behaviours, such as for example, brutal violence, through to more subtle variations such as manipulation, depending on the nature of the environmental pressure and/or the density of the population. So for example Wilson claims: Finally, at extremely high densities, the system may break down almost completely, transforming the pattern of aggressive encounters into

148 R.L. Trivers, “Parental Investment and Sexual Selection” in B. Campbell (ed), Sexual Selection and the Descent of Man 1871-1971, Aldine Publishing Co, Chicago, 1972, pp. 136 – 179, 161. 149 J.L. Brown, “Sociobiology Today” (1989) 39(6) Bioscience 405: ‘A common thread among many of the contributions is the relationship between resources and aggression in determining sociality. These relationships are determined in a simple model, presented by C.N. Slobodchikoff and W.C. Schulz … in which group size is constrained by resources and is kept below its potential maximum by aggression.’ 150 E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, 16. 151 E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, 15.

53 homosexuality, cannibalism, and other symptoms of [at 15] “social pathology.”152 Alexander has even suggested a link between aggression and the capacity for assimilation to take place under colonial rule.153 At other times, aggression is more tempered: Alexander pursues the same kind of reasoning as do those who apply game theory to animal aggression: all-out attack if one is certain of winning is fine; but if the probabilities of success are much lower, or if the probabilities of cost whatever the outcome are much higher, then a strategy of restrained aggression may be the best policy. … Furthermore, in support of his position on restrained human aggression, Alexander refers to anthropological data on various “primitive” tribes …154 Still, aggression is central to the Sociobiological model for human behaviour whether as a prediction or an assumption. Like sex-dimorphic behaviour and selfishness, aggression and competition are products of the evolution of human beings according to the Autocatalysis Model and sexual selection. They are therefore universal human traits.

152 E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, 14 – 15. 153 R.D. Alexander, “The Search for a General Theory of Behaviour” (1975) 20 Behavioral Science 77, 94: ‘Nor is genetic difference necessarily relevant to the overwhelming of one group by another, at least not in the manner usually considered. All that is implied is that ‘… men who were arranged in groups or teams, each dominated by a spirit of unity, would conquer or outlive men who were not thus grouped’ (Keith, 1949, p. 43). We have observed, within recorded human history, the aggressive expansion of western Europeans into the New World and Australia, in particular, and their replacement through decades of the populations that previously inhabited the continents involved. The genetic change that has occurred is not necessarily relevant to the success of the invaders; more relevant is the cultural background that provided the migrating Europeans with vastly superior weapons, agriculture, and technology. Also relevant are those cultural and genetic differences between the invaders and the invaded which reduced the likelihood of amalgamation. Aboriginals who resemble invaders physically are more likely to be assimilated genetically, just as those whose culture is such as to make them pliable in the face of alien domination are more likely to survive alongside and with the invaders.’ 154 M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 66.

54 Conclusion

This chapter has introduced sociobiology as three inter-related concepts, and in particular as a Science. As a science Sociobiology is aimed at predicting human behaviour based on evolutionary theory. For this reason it assumes and predicts that virtually all human behaviour is ultimately a function of an innate drive by individuals to reproduce. For this reason, humans tend to be behaviourally sex-dimorphic, selfish, aggressive and competitive. These fundamental traits have been observed in Hunter gatherer societies as well as modern society and are therefore regarded as “universal” human qualities. Beyond behaviour aimed at reproductive success, Sociobiology introduces several models to explain that these non-reproductive behaviours are nevertheless indirectly concerned with reproductive success. The evidence and models relied on by Sociobiology to support this claim is the subject matter of the next chapter. In this thesis “sociobiology” is defined as any discourse purporting to be based on “nature”, biological or evolutionary theories and “facts” to justify hierarchy and domination where that hierarchy and domination can also be shown to be typical to capitalism.

55

56

Chapter 3

The Case For Sociobiology

Introduction

In the previous chapter human nature was explained according to the science of Sociobiology. It assumes that human behaviour has evolved. In other words, Sociobiology is based on the dual propositions that humans are adapted to their environment and that they behave in such a way as to attain reproductive success. These two propositions drew on the Autocatalysis Model and sexual selection respectively. In this chapter it is necessary to explain these two crucial concepts and to present the evidence for them. It is also necessary to present some other crucial models that supplement those two concepts (namely: parental investment theory, kin- selection theory, reciprocal altruism, and the parent-offspring conflict model) as well as the evidence for these models. Collectively, these models and concepts allow Sociobiology to predict and describe behaviours as universal to humans and at the same time they furnish the evidence for Sociobiology. The Autocatalysis Model purports to explain how human ancestors evolved from tree- dwelling primates to hunter-gatherer Homo sapiens. The Model tends to be at the heart of what can be thought of as a series of interlocking and interdependent models, arguments and evidence. The Autocatalysis Model is fundamental to human Sociobiology because it provides a conceptual framework supporting a host of assumptions upon which research is conducted and at the same time the research furnishes the Model with justifications for those assumptions. At this point in time, the entire basis for human sociobiology hinges on two broad categories of interlocking justifications – each of which has a dynamic relationship with the Autocatalysis Model: (1) evidence and (2) plausibility arguments.1 The types of evidence used by Sociobiology to support the Autocatalysis Model include:

1 S.J. Gould, Ever Since Darwin: Reflections in natural history, Penguin, Ringwood, Victoria, 1991, 239. Alexander explains that, ‘attempts to interpret man’s nature in terms of his evolutionary history

57 1. Sexual selection 2. Fossil record 3. Anthropological evidence 4. Primate evidence and zoological analogies, and 5. Behavioural and scientific studies (Gene studies, Twin and adoption studies, Kibbutz studies, human biochemical studies, etc). Sociobiology uses plausibility arguments to support the Autocatalysis Model and these are: 1. “Parental Investment Theory”, 2. “Kin selection theory” and “Reciprocal Altruism”, and 3. “Game theory”. Taken together, the evidence and plausibility arguments amount to a “scattergun argument”. This means that apart from “sexual selection” and “reciprocal altruism”, which are absolutely necessary to Sociobiology at this point in time, the other evidence or arguments could fall without destroying the overall credibility of Sociobiology. Before turning to each type of evidence and plausibility argument, it is necessary to explain the Autocatalysis Model and its relevance to evolutionary theory.

Autocatalysis Model (Man as hunter)

Recall from the last chapter that the Autocatalysis Model was central to Sociobiology because once it is assumed that the human mind has evolved to be adapted to its environment the question arises, “what environment?”.2 The environment that is widely held in science to be the one the human mind is adapted to is the Pleistocene

may utilize insights from several different sources: fossil evidence; comparisons involving either man’s closer relatives among the primates or other species that have evolved parallel behaviour; comparisons of different populations of men,; comparisons of behaviour (or other characteristics) at different ages, and between the sexes at the same ages; and inferences drawn from comparing man against all other forms of life,’ in R.D. Alexander, “The Search for an Evolutionary Philosophy” (1971) 84 Proceedings of the Royal Society of Victoria 99, 102. 2 M. Grene & D. Depew, The Philosophy of Biology: An Episodic History, Cambridge University Press, Cambridge, 2004, 338.

58 environment of our ancestors.3 The Autocatalysis Model purports to explain how these ancestors evolved from tree-dwelling primate to hunter-gatherer Homo sapien. According to the Autocatalysis Model this transformation from arboreal primate to human hunter-gatherer was a consequence of an autocatalysis process. One in which, ‘… evolution is caused (catalyzed) by itself (auto). It is self-propelled by feedback loops.’4 McKee explains the Model using a diagram in which the human brain is the central dynamic element.5 The brain evolves in a dynamic two-way interaction with several factors each of which has a “rhizomatic” (rather than circular or hierarchical) relation with the other factors. The relevant factors are diet, bipedalism, manual dexterity, culture, language, and brain elaboration. According to this account6, about 5 million years ago, some primates began foraging on the ground instead of being arboreal presumably due to a in genes. Slowly, enough of these creatures emerged to form a population capable of being bipedal. As a result being bipedal, this allowed slight changes to the morphology of the skull, which needed to look forward rather than straight up. The crucial changes are associated with man’s upright posture, which may have provided the initial but still incomplete impetus toward the present modification. With the face directed fully forward, the mouth gave way to the upper pharyngeal space at a 90-degree angle.7 This led to greater brain capacity and to further cultural adventure. As this population grew in number and with a slight change in climate (cooler and dryer) the savannah people emerged known as . Until this point in time the transition from arboreal primate to had been rapid. As a consequence of

3 M. Grene & D. Depew, The Philosophy of Biology: An Episodic History, Cambridge University Press, Cambridge, 2004, 338. Because, ‘… too little time has passed since the dawn of civilized life for adaptations to our present form of life to take hold.’ 4 J.K. McKee, The Riddled Chain: Chance, Coincidence, and Chaos in Human Evolution, Rutgers University Press, New Brunswick (NJ), 2000, 202. 5 J.K. McKee, The Riddled Chain: Chance, Coincidence, and Chaos in Human Evolution, Rutgers University Press, New Brunswick (NJ), 2000, 203. 6 J.K. McKee, The Riddled Chain: Chance, Coincidence, and Chaos in Human Evolution, Rutgers University Press, New Brunswick (NJ), 2000, 204 – 209. 7 E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, 280 – 281.

59 savannah life teeth gradually grew larger while the incisors declined so that molar teeth developed suitable for grinding grain. As teeth grew in size, so too did faces to accommodate this change. These changes rapidly spread through the population to produce what are called . Unfortunately for the Neanderthals ‘a large face gets in the way of an expanding brain’ and consequently this halted ‘increased cerebralization’.8 Fortunately for the lineage that became Homo sapiens, they did not develop the larger teeth suitable for grinding grain and instead retained teeth suitable for an omnivorous diet. This had two further effects. Firstly it allowed for smaller faces and therefore was conducive to frontal lobe expansion (especially the neocortex which is the “thinking” part of the brain). Secondly, diet coupled with culture (hunting in groups with tools) promoted greater adventure, which in turn constituted a feedback loop for accelerated brain development. As Mckee explains: … they had overcome the morphological barriers encountered by their large- faced robust cousins. That set the autocatalytic wheels of evolution in motion: the brain expanded, their adaptability expanded, their population expanded, the genetic pool of variants increased, language began, and one of nature’s most remarkable positive feedback loops took off.9 This Model provides the basis for Sociobiology and in turn Sociobiology supplies the Model with assumptions, data, and detail. Both the Autocatalysis Model and Sociobiology share the same sources of evidence and plausibility arguments (viz; anthropology, biology, brain sciences, gene studies, palaeontology, zoology, parent/offspring conflict, reciprocal altruism, sexual selection).10 In essence the Model places great significance on the fact that humans are social and for this reason it is the most salient aspect of the human environment in terms of evolution.11

8 J.K. McKee, The Riddled Chain: Chance, Coincidence, and Chaos in Human Evolution, Rutgers University Press, New Brunswick (NJ), 2000, 207. 9 J.K. McKee, The Riddled Chain: Chance, Coincidence, and Chaos in Human Evolution, Rutgers University Press, New Brunswick (NJ), 2000, 208. 10 See J.K. McKee, The Riddled Chain: Chance, Coincidence, and Chaos in Human Evolution, Rutgers University Press, New Brunswick (NJ), 2000, 216, 217, 218, 219, 220, 221, & 227. 11 J.K. McKee, The Riddled Chain: Chance, Coincidence, and Chaos in Human Evolution, Rutgers University Press, New Brunswick (NJ), 2000, 227.

60 It is unclear who first articulated this Model, and although the earliest discussion of its principles can be found in Engels’ 1876 essay “The Part Played by Labour in the Transition from Ape to Man”, he does not use the term “autocatalysis”.12 Although McKee points out that the ideas contained in the Model are very old13, he attributes the Autocatalysis Model to the 1965 work of Polish scholar Tadeusz Bielicki: He envisioned positive feedback loops among genetically controlled features, such as bipedalism and brain structure, and cultural features including tool use and language.14 According to McKee, in 1971 Phillip Tobias developed the model initially posited by Bielicki. He claims that Tobias: … began to elaborate on the model … The brain was the key element in Tobias’s model, interacting with hands, eyes, and particularly the biological mechanisms of speech on the biological side, all of which interacted with culture. The evolution of the brain allowed manipulative hands, communication [at 204] through speech, and cultural transmission of skills from generation to generation. The success of these abilities in making humans more adaptable in turn selected for a larger and more complex brain. In such a model the brain developed very quickly, starting at the dawn of the genus Homo and accelerating by this autocatalytic feedback.15

12 F. Engels, “The Part played by Labour in the Transition from Ape to Man,” Written in May-June 1876; First Published in Die Neue Zeit 1895-96. The term “autocatalysis” is defined by Wilson to mean, ‘Any process the rate of which is increased by its own products. Thus autocatalytic reactions, fed by positive feedback, tend to accelerate until the ingredients are exhausted or some external constraint imposed’, in E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, 307. 13 J.K. McKee, The Riddled Chain: Chance, Coincidence, and Chaos in Human Evolution, Rutgers University Press, New Brunswick (NJ), 2000, 225-226. 14 J.K. McKee, The Riddled Chain: Chance, Coincidence, and Chaos in Human Evolution, Rutgers University Press, New Brunswick (NJ), 2000, 203. 15 J.K. McKee, The Riddled Chain: Chance, Coincidence, and Chaos in Human Evolution, Rutgers University Press, New Brunswick (NJ), 2000, 203 – 204.

61 There are many variations on this Model and as McKee notes, most tend to emphasise the acceleration of the evolution of the brain.16 He doesn’t doubt this but says that autocatalysis has other more subtle effects of great importance – in particular small morphological changes (e.g. slight changes to teeth). Perhaps its unknown origins and contemporary ubiquity can be explained by the fact that it so closely resembles ideas about Western civilization that it is probably a reflection of the ways in which Western culture sees itself and its origins.17 The Autocatalysis Model provides foundational assumptions for virtually every known discipline that refers to “humans” or “man”. It provides an explanation for the evolution of “universal” human behaviour. In this respect, as a collection of assumptions about the origins of human beings, it is known axiomatically and ubiquitously as the “hunter-gatherer” hypothesis (which is really a component of the “Autocatalysis Model”).18 However, the Model is not necessarily essential to any discipline and where it currently is, as in Anthropology and Sociobiology, it need not necessarily take the form it does, and no doubt it will change as research and critique demand it to in time. This issue is discussed later.19

16 J.K. McKee, The Riddled Chain: Chance, Coincidence, and Chaos in Human Evolution, Rutgers University Press, New Brunswick (NJ), 2000, 204. 17 G. Holton, “The New Synthesis” (1998) 35(2) Society 203, 205: ‘Wilson’s Sociobiology and related writings by the proponents may be viewed as significant cultural artefacts in their own right, because they represent a world view characterizing this part of the twentieth century …’. 18 For example – Ridley (M. Ridley, The Red Queen: Sex & the Evolution of Human Nature, Penguin Books, Ringwood, Victoria, 2000, 253 & 254) explains: ‘I have argued that men and women are different and that some of these differences stem from an evolutionary past in which men hunted and women gathered. [at 254] If, in the Pleistocene, men went off from home base on long hunts, while women went a shorter distance to gather plants, then maybe men are better suited to long commutes. … The fact that “work” became a male thing and “home” a female one is an accident of history: the domestication of cattle and the invention of the plough made food gathering a task that benefited from male muscle power. In societies where the land is tilled by hand, women do most of the work. The industrial revolution reinforced the trend. But the post-industrial revolution – the recent growth of service industries – is reversing it again. Women are going “out to work” again as they did when they sought tubers and berries in the Pleistocene.’ 19 For instance, although they differ in approach, both Alexander (Sociobiology) and Sahlins (cultural anthropology) draw on autocatalysis models. See respectively: R.D. Alexander, “The Search for a General Theory of Behaviour” (1975) 20 Behavioral Science 77, and M. Sahlins, “On the sociology of

62 In terms of Sociobiology, Wilson describes the Autocatalysis Model as: … the prevailing theory of the origin of human sociality. It consists of a series of interlocking models that have been fashioned from bits of fossil evidence, extrapolations back from extant hunter-gatherer societies, and comparisons with other living primate species. The core of the theory [at 293] can be appropriately termed the autocatalysis model. It holds that when the earliest hominids became bipedal as part of their terrestrial adaptation, their hands were freed, the manufacture and handling of artefacts were made easier, and intelligence grew as part of the improvement of the tool-using habit. With mental capacity and the tendency to use artefacts increasing through mutual reinforcement, the entire materials-based culture expanded.20 From this explanation, there are three important points to note about the Autocatalysis Model. First of all, it is critical to Sociobiology because according to evolutionary theory: Mankind has lived mostly in cities for less than one thousand years. He has been agricultural for less than ten thousand. These are mere eyeblinks. For more than a million years before that he was recognizably human and living, mostly in Africa, probably as a hunter-gatherer, or forager, as anthropologists now prefer to say. So, inside the skull of a modern city dweller there resides a brain designed for hunting and gathering in small groups on the African savannah. Whatever humanity’s mating system was then is what is “natural” for him now.21 In other words, what is known about the evolution of humans and their ancestors during this long period of hunting and gathering will help to explain the basis upon which humans evolved and ‘man’s intellectual capabilities right up to their present condition’.22 primitive exchange” in M. Banton (ed), The Relevance of Models for Social Anthropology, Tavistock, London, 1965, 139 – 236. 20 E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, 292 - 293. 21 M. Ridley, The Red Queen: Sex & the Evolution of Human Nature, Penguin Books, Ringwood, Victoria, 2000, 182. 22 R.D. Alexander, “The Search for an Evolutionary Philosophy” (1971) 84 Proceedings of the Royal Society of Victoria 99, 105.

63 Secondly, it is also critical to Sociobiology because ‘it consists of a series of interlocking models’. That is to say the Model provides evidence for Sociobiology while at the same time it is justified by other Sociobiological models.23 Thirdly, at the core of the Model is the autocatalysis hypothesis. This hypothesis holds that rapid brain development in human ancestors was based on a two-way process.24 There are two variations on this hypothesis, not necessarily mutually exclusive.25 The first says that the evolution of human intelligence was increased because hominids became bi- pedal which in turn freed the hands for the evolution of tool making and use.26 This in turn accelerated brain development.27 An alternative version of the Autocatalysis Model holds that brain development was more a product of social interaction than tool use. Our brains grew so big not to make tools but to psychologize each other. The lesson of socioecology is that our mating system is determined not by ecology but by other people – by members of the same gender and by members of the other gender. It is the need to outwit, dupe, help and teach each other that drove us to be ever more intelligent. And, second, we were designed, above all else, to

23 In the previous chapter it was noted that the Autocatalysis Model meshes with sexual selection and both are supported by anthropology, fossil evidence, and so on. 24 The term “autocatalysis” is defined by Wilson to mean, ‘Any process the rate of which is increased by its own products. Thus autocatalytic reactions, fed by positive feedback, tend to accelerate until the ingredients are exhausted or some external constraint imposed’, in E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, 307. 25 J.K. McKee, The Riddled Chain: Chance, Coincidence, and Chaos in Human Evolution, Rutgers University Press, New Brunswick (NJ), 2000, 201 - 228. 26 This is the argument that can be traced back to Engels (F. Engels, “The Part played by Labour in the Transition from Ape to Man,” Written in May-June 1876; First Published in Die Neue Zeit 1895-96), who arguably drew on Locke’s labour theory. 27 E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, 293: ‘The autocatalysis model usually includes the proposition that the shift to big game accelerated the process of mental evolution.’ And, ‘Quite possibly the process began when the hominids learned to drive big cats, hyenas, and other carnivores from their kills. In time they became the primary hunters themselves and were forced to protect their prey from other predators and scavengers.’

64 be adaptable. We were designed to have all sorts of alternative strategies to achieve our ends.28 In either case, an autocatalysis process has taken place whether that was due to feedback from tool making and use or feedback from interacting with others. In each case, the end result was the arrival of a hunter-gatherer society. The emergence of the hunter-gatherer society is assumed to have emerged about 3 million years ago when a human ancestor split into two lines.29 Because the hunter- gatherer model is so central to Sociobiology in terms of its justifications, assumptions and explanatory power, and in fairness to the arguments it makes, it is appropriate that the hunter-gatherer argument is presented directly by a sociobiologist rather than a critic. For this reason, Ridley’s account of the hunter-gatherer hypothesis is provided at length in the following extract: … some time around three million years ago, man’s lineage split in two (or more). Robert Foley believes the increasingly seasonal pattern of rainfall had made the lifestyle of the original ape-man untenable, for its diet of fruit, seeds and perhaps insects became increasingly rare in dry seasons. One line of its descendants developed especially robust jaws and teeth to deal with a diet increasingly dominated by coarse plants. Australopithecus robustus, or nutcracker man, could then subsist on coarse seeds and leaves during lean seasons. As far as anatomy supplies meagre clues, Foley guesses that nutcrackers lived in multi-male groups, like chimpanzees. [at 184] The other line, however, embarked on an entirely different path. The animals known as Homo took to a diet of meat. By 1.6 million years ago, when , the first truly recognized human being, was living in Africa, he was without

28 M. Ridley, The Red Queen: Sex & the Evolution of Human Nature, Penguin Books, Ringwood, Victoria, 2000, 185, citing in endnote No 28 to this passage: R.D. Alexander, “Evolutionary Approaches to Human Behaviour: What Does the Future Hold?” in L. Betzig, M. Borgehoff Mulder & P. Turke (eds) Human Reproductive Behaviour, Cambridge University Press, Cambridge, 1988, pp. 317 - 341; and R.D. Alexander interview. 29 M. Ridley, The Red Queen: Sex & the Evolution of Human Nature, Penguin Books, Ringwood, Victoria, 2000, 183.

65 question the most carnivorous monkey or ape the world had ever known. That much is known from the bones left at his camp sites.30 At this point the argument is not settled because it remains uncertain whether humans did indeed become meat-eaters to this extent and nor is it clear under what evolutionary conditions.31 Assuming that humans did indeed take ‘to a diet of meat’ and became ‘the most carnivorous monkey or ape’ then the hunter-gatherer hypothesis has some validity on that basis.32 However, the hypothesis becomes very controversial at this point as Ridley like other sociobiologists, speculates on universal human behaviour on the basis that humans were hunters: As Foley and Lee put it, ‘While the causes of meat-eating are ecological, the consequences would be distributional and social’. To hunt, or even to seek lion kills, required a man to range further from home, and to rely on his companions for coordinated help. Whether as a result of this, or coincidentally, his body was embarked on a series of co-ordinated gradual changes. The shape of the skull began to retain more juvenile shape into adulthood: with a bigger brain and smaller jaw. Maturity was gradually delayed so that children grew slowly into adulthood and depended on their parents for longer. Then for a million years, people lived in a way that cannot have changed much. They inhabited grasslands and woodland savannahs, first in Africa, later in Eurasia and eventually in Australiasia and the Americas. They hunted animals for food, gathered fruits and seeds, were highly social within each tribe but hostile towards members of other tribes. Don Symons refers to this combination of time and place as the ‘environment of evolutionary adaptedness’ or EEA, and he believes it is central to human psychology. People cannot be adapted to the present, or the future; they can only be adapted to the past. But he readily

30 M. Ridley, The Red Queen: Sex & the Evolution of Human Nature, Penguin Books, Ringwood, Victoria, 2000, 183 – 184, citing in the omitted endnote No 25 to this passage, (25) R.A. Foley & P.C. Lee, “Finite Social Space, Evolutionary Pathways and Reconstructing Hominid Behaviour” (1989) 243 Science 901. 31 S.J. Gould, Ever Since Darwin: Reflections in natural history, Penguin, Ringwood, Victoria, 1991, 241. 32 That is not to say that this theory is not free of controversy as to its particulars : M. Grene & D. Depew, The Philosophy of Biology: An Episodic History, Cambridge University Press, Cambridge, 2004, 325 – 328.

66 admits that it is hard to be precise about exactly what lives people lived in the EEA. They probably lived in small bands; they were perhaps nomadic; they ate both meat and vegetable matter; they presumably shared the features that are universal among modern humans of all cultures: marriage as an institution in which to rear children, romantic love, jealousy and sexually induced male-male violence, a female preference for men of high status, a male preference for young females, warfare between bands and so on. There was almost certainly a sexual division of labour between hunting men and gathering [at 185] women, something unique to people and a few birds of prey. Among the Aché people of Paraguay, men specialise in acquiring those foods that a woman encumbered with a baby could not manage to: meat and honey, for example. Kim Hill, at the University of New Mexico, argues that there was no consistent EEA, but he agrees none the less that there were universal features of human life that are not present today but which have hangover effects.33 It is clear in this extract from Ridley that there are a number of discernible human traits that can be naturalised as universals, including (1) a sexual division of labour, (2) marriage as an institution in which to rear children, (2) romantic love, jealousy and sexually induced male-male violence, (3) a female preference for men of high status, (4) a male preference for young females, and (5) warfare between bands. These assumptions all mesh with sexual selection as it is articulated by Sociobiology. The strength of the inter-locking arguments cannot be understated – the sexual division of labour assumption in the hunter-gatherer model is implicit in sexual selection as it is explained by Sociobiology.34

33 M. Ridley, The Red Queen: Sex & the Evolution of Human Nature, Penguin Books, Ringwood, Victoria, 2000, 184, citing in the two endnotes (Nos 26 & 27) to this passage: (26) R.A. Foley, Another Unique Species, Longman, London, 1987; R. A. Foley & P.C. Lee, “Finite Social Space, Evolutionary Pathways and Reconstructing Hominid Behaviour” (1989) 243 Science 901; R. Leaky & R. Lewin, Origins Reconsidered: In Search of What Makes Us Human, Little, Brown, London, 1992; J. Kingdon, Self-made Man and His Undoing, Simon & Schuster, New York, 1993; and (27) D. Symons, “An Evolutionary Approach: Can Darwin’s View of Life Shed Light on Human Sexuality?” in J.H. Greer & W. O’Donohue (ed) Theories of Human Sexuality, Plenum Press, New York, 1987, pp. 91 - 125; and K. Hill, interview. 34 Although Wilson actually states that it is ‘not reliable’ to assume a sexual division of labour in terms of men hunting and women gathering based on homologous evidence (viz, that because common

67 In fact, the sexual division of labour is axiomatic in the Sociobiology literature.35 It consistently maintains this view of divided and hierarchical gender relations.36 For example, Gould comments on Tiger and Fox’s model in the following terms: Men did the hunting; women stayed home with the kids. Men are aggressive and combative, but they also form strong bonds among themselves that reflect the ancient need for cooperation in the killing of big game and now find expression in touch football and rotary clubs. Women are docile and devoted to their own children. They do not form intense bonds among themselves because their ancestors needed none to tend their homes and their men: sisterhood is an illusion.37 These projections about men and women are justified on the basis of sex selection, together with the other justifications discussed below.38 In case there is any doubt about this depiction of Sociobiology some reference ought to be made to the corresponding claims of Alexander and Wilson. Both men use the hunter-gatherer theory to argue that human behaviour is innately aggressive, competitive, territorial and behaviourally sex-dimorphic.39 For example Wilson’s

ancestors might have done this, it can be assumed to be an inherited trait): E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, 293. 35 Ridley quotes Wilson (On Human Nature, Harvard University Press, Cambridge (M), 1978) to make this point: ‘One of the most persistent of those universals is sexual role-playing. As Wilson put it: “In diverse cultures men pursue and acquire, while women are protected and bartered. Sons sow wild oats and daughters risk being ruined. When sex is sold, men are usually the buyers.”’ Per M. Ridley, The Red Queen: Sex & the Evolution of Human Nature, Penguin Books, Ringwood, Victoria, 2000, 266. 36 R.D. Alexander, “The Search for a General Theory of Behaviour” (1975) 20 Behavioral Science 77, 89; M. Ridley, The Red Queen: Sex & the Evolution of Human Nature, Penguin Books, Ringwood, Victoria, 2000; R.L. Trivers, “Parental Investment and Sexual Selection” in B. Campbell (ed), Sexual Selection and the Descent of Man 1871-1971, Aldine Publishing Co, Chicago, 1972, pp. 136 – 179, 145 & 146; and E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, 277 – 278. 37 S.J. Gould, Ever Since Darwin: Reflections in natural history, Penguin, Ringwood, Victoria, 1991, 240, commenting on Tiger and Fox’s The Imperial Animal. 38 M. Ridley, The Red Queen: Sex & the Evolution of Human Nature, Penguin Books, Ringwood, Victoria, 2000. 39 R.D. Alexander, “The Search for an Evolutionary Philosophy” (1971) 84 Proceedings of the Royal Society of Victoria 99, 105-107, 111-117; & R.D. Alexander, “The Search for a General Theory of

68 account fits neatly with other arguments made by Sociobiology about human behaviour: … two lineages of hominids inhabited Pleistocene Africa. One, a small, territorial carnivore, evolved into us; the other, a larger, presumably gentle herbivore, became extinct. Some carry the analogy of Cain and Abel to its full conclusion and accuse our ancestors of fratricide. The “predatory transition” to hunting established a pattern of innate violence and engendered our territorial urges: “With the coming of the hunting life to the emerging hominid came the dedication to territory.”40 In other words, there is a biological nexus between hunting and innate human aggression, territoriality and competitiveness. Because the Model presumes that humans out-competed Homo sapiens neanderthalensis, Sociobiologists place great significance on “competition” and “aggression” as innate human traits in the sense that they are genetically adaptive, and the evidence for this is explained below.41 To sum up on the Autocatalysis Model – It is used by Sociobiology to supply it with basic assumptions about universal human traits, which are then used to develop related models to formulate research projects. These research models or projects in turn supply evidence and plausibility arguments for the Autocatalysis Model for the evolution of human behaviour.

Behaviour” (1975) 20 Behavioral Science 77, 88 - 95; and E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, 292. 40 S.J. Gould, Ever Since Darwin: Reflections in natural history, Penguin, Ringwood, Victoria, 1991, 239, citing Ardrey (The Territorial Imperative) who tends to be cited in most, if not all literature written by Sociobiologists. 41 E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, 292; and S.J. Gould, Ever Since Darwin: Reflections in natural history, Penguin, Ringwood, Victoria, 1991, 239.

69 Evidence for the Autocatalysis Model

Sexual Selection Without selection life would be constant and there would be no evolution.42 Recall that evolutionary theory holds that selection takes place at the level of the individual.43 Although it takes place at the individual level, evolutionary theory recognises that selection either increases or reduces genetic diversity in the population as a whole. Those mechanisms that can lead to greater genetic diversity are (1) mutation, (2) recombination, and (3) ; while those mechanisms that can act to reduce genetic diversity are (1) natural selection, and (2) .44 For Sociobiology, great emphasis is placed on natural selection, and in particular on just one form of natural selection: “sexual selection”.45 This is done despite the fact

42 “Selection” has a specific meaning to Sociobiologists. It means ‘differential reproduction of alternative genes, or alleles, within populations’ and ‘it is brought about by differential mortality and differential fertility induced by predators, parasites, diseases, food shortages, and climate”, per R.D. Alexander, “The Search for an Evolutionary Philosophy” (1971) 84 Proceedings of the Royal Society of Victoria 99, 105. 43 Selection takes place at the individual level not the group level, per M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 14- – 16, At 16: ‘… however valuable something may be for the group, if it is not also of value, directly, or indirectly, to the individual, it will just not get passed on.’ 44 C. Colby, “Introduction to Evolutionary Biology”, Version 2, Updated 7 January 1996, The Talk Origins Archive, pp. 1 – 31, at 4 – 14; S. Rothman, Lessons from the Living Cell: The Limits of Reductionism, McGraw-Hill, Sydney, 2002, 7; and M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 10 – 11. 45 E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, 297: ‘Fox (1972), following a suggestion by Chance (1962), has argued that sexual selection was the auxiliary motor that drove human evolution all the way to the Homo grade. … The selection would be enhanced by the constant mating provocation that arises from the female’s nearly continuous sexual receptivity. Because of the existence of a high level of cooperation within the band, a legacy of the original Australopithecus adaptation, sexual selection would tend to be linked with hunting prowess, leadership, skill at tool making, and other visible attributes that contribute to the success of the family and the male band. Aggressiveness was constrained and the old forms of overt primate dominance replaced by complex social skills. Young males found it profitable to fit into the group, controlling their sexuality and aggression and awaiting their turn at leadership. As a result the dominant male in hominid societies was most likely to possess a mosaic of qualities that reflect the necessities of

70 that the most common element of natural selection is the removal of unfit variants as they arise by mutation (hence the significance of “survival”).46 This is not to say the other evolutionary mechanisms are excluded, rather, it is to suggest that Sociobiology places extraordinary emphasis on sexual selection.47 One reason for this is that sexual selection is seen as fundamental to the Autocatalysis Model: Since positive feedback occurs between these more sophisticated social traits and breeding success, social evolution can proceed indefinitely without additional selective pressures from the environment.48 Sex selection is a sub-set of natural selection because the latter is a term that includes sex selection and survival.49 As a category of natural selection, sex selection is believed to operate on those traits that contribute to an organism’s chances of reproduction (as opposed to its survival) such as those that might increase ability to compete with rivals of its own sex for access to a mate or the ability to attract mates. Alexander regards sexual selection as the primary type of evolutionary competition because unlike other types of competition, ‘it is difficult to see how any organism can escape reproductive competition of one sort or another’.50 compromise; as Robin Fox expressed it, the male was “controlled, cunning, cooperative, attractive to the ladies, good with children, relaxed, tough, eloquent, skillfull, knowledgable, and proficient in self- defence and hunting.”’ 46 C. Colby, “Introduction to Evolutionary Biology”, Version 2, Updated 7 January 1996, The Talk Origins Archive, pp. 1 – 31, at 4: ‘Natural selection is the only mechanism of adaptive evolution; it is defined as differential reproductive success of pre-existing classes of genetic variants in the gene pool. The most common action of natural selection is to remove unfit variants as they arise via mutation. In other words, natural selection usually prevents new alleles from increasing in frequency. This led a famous evolutionist, George Williams, to say, “Evolution proceeds in spite in spite of natural selection”.’ 47 K.D. Wells, “An Alternative to Sociobiology” (1993) 43(9) Bioscience 646, at 646, citing N. Eldridge & M. Grene, Interactions: The Biological Context of Social Systems, Columbia University press, New York, 1992. 48 E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, 297. 49 P. Gowaty, “Sexual Natures: How Feminism Changed Evolutionary Biology” (2003) 28(3) Signs: A Journal of Women in Culture 901, 904: ‘Sexual selection is therefore an aspect of natural selection having to do specifically with variation in reproductive success among members of the same sex and species.’ 50 R.D. Alexander, “The Search for an Evolutionary Philosophy” (1971) 84 Proceedings of the Royal Society of Victoria 99, 105.

71 Like evolutionary theory, the literature of human Sociobiology refers to “male competition” and “female choice”.51 Male competition and female choice also add weight to the Autocatalysis Model assumption that there is an innate division of labour based on competition between the sexes. Sociobiologists typically conceive of reproduction in animals and humans as a competitive battle between individuals as well as the sexes.52 A struggle where individuals seek to maximise their individual reproductive success and where sexes battle so that males try to ‘get away with as much as they could’ while minimising their parental investment, and females ‘trying

51 Darwin divided sexual selection into “male combat” and “female choice” in Chapter 19 of Descent of Man (C. Darwin, The Descent of Man and Selection in Relation to Sex, (2nd ed, 1882) John Murray, London, 1871, accessed online at http://pages.britishlibrary.net/charles.darwin2/van_wyhe.html on 23 April 2006). At 563 – 564 Darwin wrote: ‘Difference in the Mental Powers of the two Sexes.- With respect to differences of this nature between man and woman, it is probable that sexual selection has played a highly important part. I am aware that some writers doubt whether there is any such inherent difference; but this is at least probable from the analogy of the lower animals which present other secondary sexual characters. No one disputes that the bull differs in disposition from the cow, the wild- boar from the sow, the stallion from the mare, and, as is well known to the keepers of menageries, the males of the larger apes from the females. Woman seems to differ from man in mental disposition, chiefly in her greater tenderness and less selfishness; and this holds good even with savages, as shewn by a well-known passage in Mungo Park's Travels, and by statements made by many other travellers. Woman, owing to her maternal instincts, displays these qualities towards her infants in an eminent degree; therefore it is likely that she would often extend them towards her fellow-creatures. Man is the rival of other men; he delights in competition, and this leads to ambition which passes too easily into selfishness. These latter qualities seem to be his natural and unfortunate birthright. It is generally admitted that with woman the powers of intuition, of rapid perception, and perhaps of imitation, are more strongly marked than in man; but some, at least, of these faculties are characteristic of the lower races, and therefore of a past and lower state of civilisation. The chief distinction in the intellectual powers of the two sexes is shewn by man's attaining to a higher eminence, in whatever he takes up, than can woman- whether requiring deep thought, reason, or imagination, or merely the use of the senses and hands. If two lists were made of the most eminent men and women in poetry, painting, sculpture, music (inclusive both of composition and performance), history, science, and philosophy, with half-a-dozen names under each subject, the two lists would not bear comparison.’ In terms of Sociobiology see M. Ridley, The Red Queen: Sex & the Evolution of Human Nature, Penguin Books, Ringwood, Victoria, 2000, 129 - 137 & 156 – 161. 52 R. Dawkins, The Selfish Gene, Oxford University Press, Oxford, 1976, 177: ‘… it is still possible that human males in general have a tendency towards promiscuity, and females a tendency toward monogamy, as we would predict on evolutionary grounds.’

72 to stop them or otherwise get compensation’.53 These sex-dimorphic behaviours in humans are caused by the fact that women face the burden of ‘a nine-month pregnancy and a fifteen year stint of child-rearing if they are to bring a zygote to maturity’ while men ‘can impregnate with such ease, that is with so little effort, the first thing that one would predict is that males will have a tendency to impregnate any spare females that they can’.54 In other words males will have a tendency to promiscuity and females a tendency toward monogamy, and Sociobiologists maintain this argument: Because the human species so neatly fits the initial conditions [viz an initial differential in sex-cell size and pro-longed gestation (or lots of sperm, few eggs, and maternal child-rearing)] the sociobiologists have expected human sexual behaviour broadly to fit the general pattern [observed in other animals], and they feel that they have not been disappointed.55 The evidence, therefore, that human behaviour is governed by this account of sexual selection is based on the Autocatalysis Model itself, analogies from primates and other animals, and “parental investment theory”.56 Each of these other forms of evidence is discussed below.57 Also, it should be noted, the case for human nature according to Sociobiology has a circular quality to it. This is because the same assumptions are made by the series of interlocking plausibility arguments, models, and evidence.58

53 M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 58. 54 M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 58. 55 M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 58. 56 M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 58. 57 Of these forms of evidence, Parental Investment Theory is really a plausibility argument: R.L. Trivers, “Parental Investment and Sexual Selection” in B. Campbell (ed), Sexual Selection and the Descent of Man 1871-1971, Aldine Publishing Co, Chicago, 1972, pp. 136 – 179; and R.L. Trivers, “Parent-offspring Conflict” (1974) 14 American Zoology 249. 58 So for instance, the sexual division of labour is axiomatic in Sociobiology, although Wilson (E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, 292.) denies that the presumption is necessary to the hunter-gatherer thesis, it is nevertheless a fact of life: ‘But there is no compelling reason to conclude that men did the hunting while women stayed at home. This occurs today in hunter-gatherer societies, but comparisons with other primates offer no clue as to when the trait appeared. It is certainly not essential to conclude a priori that males must be a specialized hunter class.’ But this is precisely what Sociobiologists do – they presume that men were the hunters and

73 As a form of “evidence” sexual selection is better thought of as a crucial element of accepted evolutionary theory rather than as a type of direct evidence for Sociobiology. Still, for precisely this reason it provides a legitimate reference point for Sociobiology. Therefore, sexual selection is an important justification for Sociobiology, one that is an accepted premise within evolutionary theories, albeit over-emphasised by Sociobiology.

Evidence from the “Fossil Record” Sociobiology draws upon evidence from the fossil record to support the Autocatalysis Model, and in particular its account of hunter-gatherer behaviours.59 Recall that Wilson described the Autocatalysis Model as being comprised of ‘a series of interlocking models that have been fashioned from bits of fossil evidence, extrapolations back from extant hunter-gatherer societies, and comparisons with other living primate species.’60 Basically, it means that hunter-gatherer behaviour is sketched from either bones or fossils according to conventions in palaeontology, and this is supplemented by “evidence” from other disciplines such as anthropology and zoology. At the same time, the fossil record is also used to supplement these other forms of evidence. Although Ruse warns that fossil evidence can be problematic because it requires interpretation and can tend to be circular, as a source of evidence within biology it has great potential because it can be read in conjunction with a myriad of corroborating evidence.61 So by way of example, Ridley interprets the

women the gatherers and this demarcation underlies and entire basis for all other presumptions about human nature. These presumptions in turn are used to support the original hypothesis that men were the hunters and women were the gatherers. 59 R. Dawkins, The Blind Watchmaker, Ringwood, Victoria, Penguin, 1988, 276. Dawkins points out that palaeontology, ‘is a very important branch of biology because evolutionary ancestors all died out long ago and fossils provide us with our only direct evidence of the animals and plants of the distant past.’ 60 E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, 292. 61 M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 6 – 7 & 148. At 6: ‘Almost by definition, behaviour is one thing that does not get fossilized, and so it might seem that, at best, one is going to spend one’s time grasping at straws, trying to infer hypothetical behaviour from those characteristics of animals that get fossilized.’ At 148: ‘As pointed out in the previous chapter, evidence of this kind may never make a theory absolutely true, but it is both crucial and

74 fossil record in conjunction with other sources of evidence, in particular primate evidence, in the following way: About seven million years ago, the ancestors of mankind began to diverge from the ancestors of modern chimpanzees. Even more than chimpanzees, and much more than gorillas, mankind’s ancestors moved into these new dry habitats and gradually adapted to them. We know this because the earliest fossil of man-like apes (the australopithecines) were living in places that at the time were not covered by forest: at Hadar in Ethopia and Olduvai in Tanzania. Presumably, these relatively open habitats favoured larger groups as they did for chimps and baboons, the two other open-country primates. As socioecologists find again and again, the more open the habitat, the bigger the group, both because big groups can be more vigilant in spotting predators and because the food is usually found in a more patchy pattern. For reasons that are not especially persuasive (principally the apparently great size difference of males and females), most anthropologists believe the early australopithecines lived in single-male harems, like gorillas and some species of baboon.62 Teeth, bones and fossils have all been used to support the man as hunter hypothesis assuming that man was carnivorous, or at the very least omnivorous.63 In particular, skull size and cranial capacity have been used to ascertain brain development. Alexander concedes that although this is a crude means to assess brain development it is the only form of direct evidence for ‘as to when, and how fast, man became a man’.64 He relies specifically on fossil evidence to reach the following tentative conclusions:

sometimes very persuasive indeed: particularly if a theory implies surprising or hitherto-thought-false true phenomena.’ 62 M. Ridley, The Red Queen: Sex & the Evolution of Human Nature, Penguin Books, Ringwood, Victoria, 2000, 183, citing in the omitted endnote No 24 to this passage, (24) R.L. Smith, “Human Sperm Competition” in R.L. Smith (ed) Sperm Competition and the Evolution of Animal Mating Systems, Academic Press, Orlando, 1984, pp. 601 – 659. 63 S.J. Gould, Ever Since Darwin: Reflections in natural history, Penguin, Ringwood, Victoria, 1991, 241. 64 R.D. Alexander, “The Search for an Evolutionary Philosophy” (1971) 84 Proceedings of the Royal Society of Victoria 99, 104: ‘Characteristics described as uniquely or most decidedly human are likely to be related to behaviour, and, accordingly, to the complexity of the functioning of man’s remarkable

75 Regardless of the indirectness of the relationship between man’s genotype and those aspects of his phenotype that we generally refer to as “intellect”, what we know of the history of changes in man’s and in the complexity of his behaviour leads us to the tentative conclusions (1) that variations in intellect were subjected to unusually intense selective action, (2) that this selection was consistent across long periods, and (3) that it carried man’s intellectual capabilities right up to their present condition.65 Conclusions become much more certain, and less tentative when fossil evidence is used in conjunction with other evidence. In particular, Sociobiologists, like Alexander confidently predict, relying on a combination of fossil evidence, anthropological evidence and primate evidence, a generalized and universal “human nature”, viz, that humans are fundamentally selfish and competitive.66 For this reason, fossil evidence, like the other justifications for Sociobiology, is not used in isolation and instead gains its evidentiary value from corroboration.

Anthropological Evidence One of the most important types of corroborating evidence for the Autocatalysis Model comes from extrapolations from “extant” hunter-gatherer societies - in other words evidence from anthropology. For example Wilson claims: The autocatalysis model usually includes the proposition that the shift to big game accelerated the process of mental evolution. … Another proposition is that males became specialized for hunting. Child care was facilitated by close and relatively huge brain. Brain size increases correlate across various time levels with fossil evidence of increasing complexity of social organization and the appearance of various cultural phenomena. In spite of arguments based on variability in modern man’s brain size, there can be little doubt that the increases in cranial capacity, which can be traced from australopithecine to modern man, are directly related to increases in complexity of brain function that have resulted in modern man being so different from other living primates (Washburn, 1959; Caspari, 1963; Holloway, 1966; Rensch, 1968; Lancaster, 1968). Crude as it may be, this is still one of our best indices as to when, and how fast, man became a man.’ 65 R.D. Alexander, “The Search for an Evolutionary Philosophy” (1971) 84 Proceedings of the Royal Society of Victoria 99, 105. 66 R.D. Alexander, “The Search for an Evolutionary Philosophy” (1971) 84 Proceedings of the Royal Society of Victoria 99, 104: ‘Natural selection, or differential reproduction, inevitably implies competition of one sort or another.’

76 social bonding between the males, who left the domiciles to hunt, and the females, who kept the children and conducted most of the foraging for vegetable food. Many of the peculiar details of human sexual behaviour and domestic life flow easily from this basic division of labour. But these details are not essential to the autocatalysis model. They are added because they are displayed by modern hunter-gatherer societies.67 This form of evidence is crucial because without it the Autocatalysis Model would be solely reliant on interpretations of the fossil record based on analogies drawn from primates.68 Its probative value lies in the assumption that contemporary hunter- gatherer societies are likely to share evolutionary conditions and behaviours with those that existed some tens of thousands of years ago prior to the arrival of agricultural societies. Its probative value is also a product of the accuracy/reliability of the anthropology it depends upon, and the way it is interpreted by Sociobiologists. Anthropology provides an abundant source of corroborating assumptions, and taken at face value, because there appears to be an enormous quantity of anthropology drawn upon by Sociobiology it may be seen as plausible.69 Given the extent to which Sociobiologists quote and cite anthropology, there is little point summarising it all

67 E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, 293. 68 E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, Chapter 26 “Man: From Sociobiology to Sociology”, pp. 271 – 301. And to reiterate an earlier point, Sociobiology relies on circular and interlocking models because, for example, assumptions about hunter-gatherer societies are projected onto primates as the following quote from Wilson shows: ‘Some primitive human societies that depend on hunting and gathering of patchily distributed resources form casual societies not unlike the chimpanzee model (Lee, 1968; Turnbull 1968; Sugiyama, 1972). The nuclear unit of the !Kung people of the Kalahari is the family or a small number of families. Units band together in camps for periods of two to several weeks, during which time most of the game captured by the men and the crop of nuts and other vegetable food gathered by the women and children is shared equally.’ Per E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, 72. 69 R.D. Alexander, “The Search for a General Theory of Behaviour” (1975) 20 Behavioral Science 77, 89: ‘An enormous amount of writing by anthropologists and sociologists exists on this topic which is at the heart of all social theory and analysis.’

77 here.70 Instead, it will be referred to or cited where it is necessary in the remainder of this thesis to present particular sociobiological arguments.

Primate Evidence and Zoological Analogies Primate and zoological evidence is important to the Autocatalysis model to the extent it is capable of corroborating interpretations of the fossil evidence based on data gleaned from anthropology. It is important to differentiate between “primate evidence” and “zoological analogies” because of differences in probative value. Primate evidence is treated as important because primates are the closest type of animals to humans and are believed to share ancestors.71 Therefore, to the extent that both early humans and primates lived as hunter-gatherers, primates can provide a rich source of analogous evidence for human behaviours.72 Strictly speaking, therefore, it is not “evidence” unless it is homologous.73 Otherwise it is merely speculative inference based on analogy.74 It follows that, zoological analogies are of less importance because of the remoteness of other life from human beings, but are still considered as a weak form of evidence because all life has evolved.75

70 Ruse provides an analysis of the use of anthropology in Sociobiology taking a positive view of the “relationship”. See further M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, at 56, 65, 73-4, 106, 118-9, 122, 152, 162, 168-182, 192, 232-3. 71 Like Darwin, sociobiologists see a logical parallel between animal behaviour, which they regard as irrefutably caused by sexual selection, and similar known behaviours in humans: M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 58 & 61. 72 M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 143: ‘… when animal behaviour and human behaviour are very similar in other respects, and when there is good reason to suppose the animal behaviour controlled by the genes, there is reason to conclude that the human behaviour is also controlled by the genes.’ 73 This would require genetic testing as well as various experimental controls. 74 The difference is that “homologous” behaviour is behaviour that can be traced to a common ancestor. As Wilson explains: ‘In genetics a homologue is one chromosome belonging to a group of chromosomes having the same overall genetic composition’, E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, 314. 75 D.S. Levine, “Introduction to the Special Issue on Brain Development and Caring Behaviour” (2002) 3 Brain and Mind 1, 2: ‘These authors contribute insights from studies of rodents as well as humans and other primates. Although rodent brains do not reach the information processing capacities of

78 In terms of primate evidence, Ruse claims that the main difference between primate behaviour and human behaviour is that the latter is far more elaborate.76 Therefore Ruse characterises the salience of primate evidence this way: The important question is whether the positive properties can be sufficiently relevant and sufficiently similar to overcome the negative aspect. My own feeling is that, in principle, they can be; although, as Wilson admits, one needs to accept one’s conclusions with some caution. But relying on the conclusion above, namely that if culture is a major moving factor we might expect to see at least some differences, if we find fairly complex behaviour shared generally by humans and by the primates, then I believe a case has been made for regarding human behaviour as having a significant genetic component. The dissimilarity between animal and human behaviour is breeched at this point.77 Sociobiology relies strongly on primate evidence and this reliance is the subject of significant controversy, even to the extent that it is confined to predictions about innate animal behaviour, as opposed to human Sociobiology.78 The problem for Sociobiology seems to be twofold. Firstly it needs to take account of the critical literature as it concerns sexist and anthropomorphic bias. Secondly, as a matter of methodology, any comparisons between humans and animals in terms of behaviour primate brains, such rodent species as mice and voles are complex enough to exhibit patterns of inter- relationship between social relationships and neurochemistry that have lessons for human behaviour.’ 76 M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 145. 77 M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 145. 78 Because of the frequent criticism that scientists in general tend to project anthropomorphic values onto the life (whether avian, marine, terrestrial, etc) they study. See for example: S.J. Gould, Ever Since Darwin: Reflections in natural history, Penguin, Ringwood, Victoria, 1991, 240-241. Sahlins (M. Sahlins, The Use and Abuse of Biology: An Anthropological Critique of Sociobiology, University of Michigan Press, Michigan, 1976, 6 - 7.) makes this point too: ‘To take a random and limited sample [at 7] from Wilson’s Sociobiology: The New Synthesis, we read of animal societies that have “polygyny”, “castes”, “slaves”, “despots”, “matrilineal social organisation”, “aunts”, “queens”, “family chauvinism”, “culture”, “cultural innovation”, “agriculture”, “taxes”, and “investments”, as well as “costs” and “benefits”.’ And because the anthropomorphic values projected onto animals are typically sexist: B. Spanier, ‘“Lessons” from “Nature”: Gender Ideology and Sexual Ambiguity in Biology’ in Body Guards: The Cultural Politics of Gender Ambiguity, J. Epstein & K. Straub (eds), Routledge, New York, 1991, 329 – 350; and R. Hubbard, “Have Only Men Evolved?” in R. Hubbard, M. Henifin & B. Fried (eds), Biological Woman - The Convenient Myth: A Collection of Feminist Essays and a Comprehensive Bibliography, Schenkman Publishing Co, Cambridge (Mass), 1982, 17 – 46, esp. at 35.

79 are only valid to the extent they can be demonstrated to be homologous (rather than analogous), otherwise it is impossible to speculate beyond the very basic statement that Homo sapiens are indeed animals just like apes.79 Still, to the extent that behaviour can be shown to be homologous, then this type of evidence will be both probative and persuasive.

Behavioural and Scientific Studies Sexual selection, fossil evidence, anthropology, and analogies from primates are all used in conjunction with other scientific studies to reinforce the Autocatalysis Model. This is not to say that all scientific studies are necessarily aimed at this end or that they are manifestly Sociobiological. Instead these studies are relevant for present purposes to the extent they help to justify Sociobiology and the Autocatalysis Model. These studies are becoming more important, particularly as the field of evolutionary psychology grows and because they are used to corroborate the other evidence put forward in Sociobiology. Among the more prevalent types of studies used as justifications for Sociobiology are: (1) Gene studies, (2) Twin and adoption studies, (3) Israeli Kibbutz studies, and (4) Bio-chemical and brain studies. Even though these studies tend to be used in conjunction with each other for reasons that will become apparent they are discussed separately in this order.

1.Gene Studies Sociobiologists such as Badcock, Dawkins and Ridley predict that the advances in gene technology will shift the balance in the nature nurture debate firmly within the nature camp.80 There are two inter-related approaches to prove that genes can explain

79 S.J. Gould, Ever Since Darwin: Reflections in natural history, Penguin, Ringwood, Victoria, 1991, 240: ‘Comparisons between humans and other animals lead to casual assertions about the genetics of our behaviour only if they are based on homologous traits.’ 80 For instance, Badcock claims: ‘Mendel’s discovery, along with that of Crick and Watson and the whole science of molecular biology which has followed from it, leaves little doubt that the essence of life is the containment and transmission of genetic information encoded in an organism’s genes’ in C. Badcock, Evolution and Individual Behaviour, Oxford, Basil Blackwell, 1991, 12. Badcock attempts to make the assertion credible by following it through with a statement of fact: ‘Without such genes an organism could not develop, and without developing as the vehicle for such genes, an organism could have no evolutionary future.’ But the validity of this remark does not render the former statement valid.

80 behaviour. On the one hand, there is “behavioural genetics”, ‘an interdisciplinary field that studies the influence of genetic factors on behavioural traits’, which is used to corroborate the other evidence mentioned above.81 On the more ambitious, other hand, there is “Human Genomics”, a discipline where molecular geneticists seek to map the ‘location and chemical sequence of specific genes on specific chromosomes’, which some believe will lead to the deciphering of life and with it human nature.82 Although the Sociobiological literature frequently mentions the 1953 discovery by Nobel Prize winners Francis Crick and James Watson and the Project, neither the Crick and Watson discovery nor the provide any support whatever for the hypothesis that human nature is genetically determined.83 Instead, the Watson and Crick discovery revealed the structure of DNA overthrowing the protein paradigm, and the Human Genome Project specified the sequence of the chemical composition of human DNA.84 This means that science can explain what genes are made of and how they function, and at this point in time, not much more. Where human genomics has had some success is with mental retardation, typically a consequence of gene mutation, and in the ‘hunt for genetic factors that contribute to diabetes and where the investigation of rare monogenetic conditions has been critical in unveiling molecular mechanisms, and also suggesting

81 W. Weiten, Psychology: Themes and Variations, 4th ed, Brooks Cole Publishing, Pacific Grove (CA), 1998, 108. 82 S. Rothman, Lessons from the Living Cell: The Limits of Reductionism, McGraw-Hill, Sydney, 2002: 3: ‘… advocates of the genome project reason that it is just around the corner. They see the sequencing of the genome as the essential pre-requisite to such far-reaching comprehension. That will occur when two additional tasks have been completed. First, the exact parts of DNA that carry the code for each of the various protein molecules need to be identified; second, having identified them, we must learn what they do. When this information is in hand, when the structures and functions of all our protein molecules have been deciphered, we will have described life’s nature in its entirety, or at least in all important respects. Fulfilling this ambitious objective is an important goal of an exciting new filed called genomics.’ 83 S. Rothman, Lessons from the Living Cell: The Limits of Reductionism, McGraw-Hill, Sydney, 2002, 3. 84 R.C. Lewontin, The Doctrine of DNA: Biology as Ideology, Penguin, Ringwood, Victoria, 2001, 47 – 48; and S.J. Gould, Ever Since Darwin: Reflections in natural history, Penguin, Ringwood, Victoria, 1991, 269 – 270; and S. Rothman, Lessons from the Living Cell: The Limits of Reductionism, McGraw- Hill, Sydney, 2002, 3.

81 candidate genes that contribute to risk in the general population’.85 It has not produced cures for these conditions. In other words the human genome project has not been the silver bullet it was touted to be for Sociobiology.86 Therefore the hope held by Sociobiologists that human behaviour might be explained by genetics is based on experiments on insects and animals and the fact that some human phenotypes have already been established as having genetic causes.87 In terms of established connections between human phenotype and genotype, it is settled for example that genes largely determine morphology (e.g. height, basic skin colour, eye colour, etc), and that they determine to some degree certain diseases (e.g. Huntington’s disease, Familial Alzheimer’s disease, rather than late onset Alzheimer’s), mental illness (at this stage schizophrenia), and congenital conditions such as Down’s syndrome.88 Morphology has a stronger correlation to genotype than behaviour but even morphology is not totally attributable to genes. In each case it is also recognised that there is some role for environmental factors (for example, height can also be subject to diet).89 Therefore the problem for studies aimed at showing a link between genes and human behaviour is one of isolating the genetic “cause” from environmental influences. As Ruse points out this has been achieved with fruit flies (Drosophila) because successive generations can be artificially reproduced in laboratories in a very short time-frame.90 Studies conducted on Drosophila have shown that all phenotypes (morphological, physiological, cytological and behavioural) can be artificially

85 J. Flint & A.P. Monaco, “Focus on Behavioural Genetics” (2006) 14 European Journal of 647, 647. 86 Furthermore, it is unlikely to ever produce proof of genetically determined human behaviour for the reasons discussed in the next chapter. But see especially R.C. Lewontin, The Doctrine of DNA: Biology as Ideology, Penguin, Ringwood, Victoria, 2001. 87 J. Flint, “Am I an Insect?” (2000) 26 Nature Genetics 149; and P. McGuffin, “Behaviour and Genes” (1999) British Medical Journal, 3 July, pp. 1 – 7. 88 M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 8, 9, 130 – 131, 139; J. Flint, “Am I an Insect?” (2000) 26 Nature Genetics 149; and P. McGuffin, “Behaviour and Genes” (1999) British Medical Journal, 3 July, pp. 1 – 7, 3. 89 M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 139. Ruse points to a study that showed height can vary due genes and nutrition. 90 M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 128 – 129.

82 selected which is strong evidence that these insects are genetically controlled.91 However, similar experiments in humans are not possible for two reasons.92 Firstly, it is not possible to breed humans in laboratory conditions to select (genetically modify) for specific traits that would take hundreds of years to study.93 Secondly, even if this could be achieved, as Ruse observes, it would be unethical. Given the difficulties replicating laboratory conditions for studies on humans, scientists have tried to isolate behaviour from potential environmental influences in the best ways that they can. Although none of the following methods can ever eliminate potential environmental factors, they can provide credible data to corroborate other arguments/evidence. For these reasons, human studies have tended to be of the following kinds: Twin and adoption studies; Israeli Kibbutz studies; and Bio-chemical and brain studies.

2. Twin and Adoption Studies One way to minimise potential environmental influences is to study twins. These studies rely on differences between the incidence of certain behaviours when monozygotic (identical twins sharing 100% of their genotype) and dizygotic twins (fraternal twins sharing 50% of their genotype) are compared. Because monozygotic twins share the same genotype, then if it can be shown that they share a higher incidence of a particular behaviour than dizygotic twins do, then this is regarded as an indication that the particular behaviour under consideration is probably genetic. So for example, where one twin has identified as homosexual (to take a favourite behaviour studied by Sociobiologists), studies have shown that it is more likely to be a behaviour shared by their twin if they are monozygotic twins rather than dizygotic twins. This is considered to indicate that homosexuality is genetic.94 When this data is taken along with other arguments to the effect that homosexuality can be explained by kin selection theory (discussed below) and that ‘homosexuals in recent hunter-

91 M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 129, quoting Lewontin, 1974, p. 92. 92 M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 129. 93 S.J. Gould, Ever Since Darwin: Reflections in natural history, Penguin, Ringwood, Victoria, 1991, 254. 94 E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, 279: ‘Kallman’s twin data indicate the probable existence of a genetic predisposition toward the condition’.

83 gatherer societies did indeed have a beneficent effect on relatives when they assumed their frequent roles of berdache and sharman’, Sociobiologists are persuaded that homosexuality is genetic.95 A variation on this approach to twin studies is to study twins where each twin is raised in a different environment. In these studies it is believed that strong behaviours shared by the twins would be more likely genetic than environmental due to the differences in their environments.96 Therefore, for Sociobiologists, should monozygotic twins share behaviours more frequently than dizygotic twins, or should twins raised separately have a higher incidence of a behaviour than people in general, this suggests that the behaviour is probably more genetic than behavioural. A weaker form of study controlling for environmental factors are adoption studies. If, as Ruse explains, ‘one has detailed information on children who have been adopted’ then this can be used to ask: Do such children seem more like their natural parents (i.e. are the genes in control), or do they seem more like their adoptive parents (i.e. is the environment in control)?97 Two types of adoption studies tend to be prevalent: (1) studies on schizophrenia, and (2) intelligence measured by IQ. In terms of schizophrenia, adoption studies have produced similar results to those found in twin studies, which have declared schizophrenia to be largely genetic.98 For example, two such studies reported in the British Medical Journal considered: 47 index adoptees separated from their schizophrenic mothers within 72 hours of birth and compared them in their mid-30s with 50 control adoptees who did not have schizophrenic parents). Five of the index adoptees (11%) became

95 E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, 279. In terms of the human genome project one study (that is yet to be replicated) found that there is an ‘X linked locus’ for homosexuality ‘reported in a study of affected sib pairs’: P. McGuffin, “Behaviour and Genes” (1999) British Medical Journal, 3 July, pp. 1 – 7, at 3. 96 P. McGuffin, “Behaviour and Genes” (1999) British Medical Journal, 3 July, pp. 1 – 7, at 1. 97 M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 131. 98 Bodmer and Cavelli-Sfora, 1976, p. 516, quoted in M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 131: ‘Familial correlations are relatively high, with the incidence in sibs of the affected being in the order of 12 %, that in dizygous cotwins of the same magnitude, while monozygous cotwins of affected have an incidence of at least 40-59%’.

84 schizophrenic (roughly the rate expected in non-adopted offspring of schizophrenics) compared with none of the controls. Subsequently, a series of studies was carried out in Denmark; the most recent study showed that the frequency of schizophrenia was 16% in the biological relatives of schizophrenics adopted early in life, compared with 1.8% in adoptive relatives and the relatives of control adoptees.99 Adoption studies frequently compare the IQs of biological parents, their children and the adopting parents. If the results show that the adopted children have IQs resembling their biological parents rather than their adopting parents, it is presumed that intelligence is a consequence of genes as opposed to environmental factors. For example Ruse reports on a 1975 study undertaken by Harry Munsinger: In order to test the extent to which IQ could be inherited, Munsinger studied 41 children (20 Mexican-American and 21 Anglo-American) who were adopted very shortly after birth. From information contained in adoption records, Munsinger found that the correlation between education-social status of adopting parents and the children’s IQ (Lorge-Thorndike scores) was very low (-0.140), whereas correlation between socio-economic status of biological parents and children’s IQ was very high (+7.00). Naturally, therefore, Munsinger felt that he had helped support the case for genetic control of [at 137] intelligence.100 However, this study like the many other studies purporting to show a direct connection between intelligence and genes has received plenty of controversy.101 Due

99 P. McGuffin, “Behaviour and Genes” (1999) British Medical Journal, 3 July, pp. 1 – 7, at 2 and the original endnotes (Nos 12 & 13) to this passage read: [12] Heston LL. Psychiatric disorders in foster home reared children of schizophrenic mothers. Br J Psychiatry, 1966;112:819-25; and [13] Kety SS, Wender PH, Jacobsen B, Ingraham LJ, Jansson L, Faber B, et al. Mental illness in the biological and adoptive relatives of schizophrenic adoptees. Replication of the Copenhagen study in the rest of Denmark. Arch Gen Psychiatry 1994;51:442-55. 100 M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 136 – 137. 101 Among this controversy is the extent to which findings rely on the work of Cyril Burt. As Gould points out: ‘… the late Sir Cyril Burt, who generated the largest body of data on identical twins reared apart, pursued his studies of intelligence for more than forty years. Although he increased his sample sizes in a variety of “improved” versions, some of his correlation coefficients remain unchanged to the third decimal place – a statistically impossible situation. Since then, the case against Sir Cyril has progressed from an inference of carelessness to a spectacular (and well-founded) suspicion of fraud.

85 to the widespread nature of the controversy and based on a literature review of intelligence studies, Ruse tentatively concludes: … if one considers all the pertinent studies which have been made, some case can be made for the claim that at least some elements of intelligence are under the control of genes … more precisely, that different people have different intelligences in part because of different genes. I find it hard to imagine that there is not some difference between the members of the Sociobiology Study Group of Science for the People and (say) a random group of farm labourers.102 In other words, the weight of the IQ tests suggests no more than a connection between genes and types of intelligence.103

3. Israeli Kibbutz Studies Another source of evidence for Sociobiology comes from studies on Israeli Kibbutzim. Kibbutzim are thought to provide a good source of evidence for the effects of genes on gender roles because children were often brought up in an egalitarian structure where gender was de-emphasised.104 Kibbutzim data tends to be used in two ways - it is used to corroborate other studies to augment the Autocatalysis Model and it is used to make generalisations about innate “universal” gender behaviour.105 More specifically, Kibbutzim studies are used in Sociobiology to

Reporters for the London Times have discovered, for example, that Sir Cyril’s coauthors (for the infamous twin studies) apparently did not exist outside his imagination.’ Per S. J. Gould, Ever Since Darwin: Reflections in natural history, Penguin, Ringwood, Victoria, 1991, 245 – 246. 102 M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 138. 103 W. Weiten, Psychology: Themes and Variations, 4th ed, Brooks Cole Publishing, Pacific Grove (CA), 1998, 113. 104 M. Ridley, The Red Queen: Sex & the Evolution of Human Nature, Penguin Books, Ringwood, Victoria, 2000, 251; J. Shepher, “Mate-Selection Among Second-Generation Kibbutz Adolescents and Adults: Incest Avoidance and Negative Imprinting” (1971) 1 Archives of Sexual Behaviour 293; and L. Tiger & J. Shepher, Women in the Kibbutz, Penguin, London, 1977. 105 “Universalism” is discussed below. As an example, Ridley (M. Ridley, The Red Queen: Sex & the Evolution of Human Nature, Penguin Books, Ringwood, Victoria, 2000, 252) claims: ‘Nor are the kibbutzim unique. Even in liberated Scandanavia, it is women who feed the family, wash the clothes and care for the children. Even where women go to work, some professions remain male bastions (for instance, garage mechanic, air traffic controller, driving test examiner, architect) while others have become female bastions (for example, bank teller, elementary school teacher, secretary, interpreter).’

86 support (1) a genetic basis for incest taboos,106 and (2) a genetic basis for sex- dimorphic behaviour.107 Ridley along with other Sociobiologists relies on Kibbutzim data to refute the Freudian paradigm that holds incest taboos are cultural.108 They take up Edward Westermark’s 1891 hypothesis that incest taboos are instead not culturally determined but are in fact biologically determined because people have an innate aversion to breed with those whom they grow up with. More recently, Westermark’s hypothesis has been refined as: … evolutionary researchers (e.g. Shepher 1971; Bevc & Silverman 1993; Wolf 1995; Lieberman et al. 2003; and many others) have hypothesized that the human neural architecture includes a specialized kin-recognition system that evolved among our hunter-gatherer ancestors to serve at least two independent functions: (i) to regulate the allocation of altruistic and competitive effort in accordance with the selection pressures described by inclusive fitness theory (Hamilton 1964); and (ii) to inhibit sex among reproductively mature close genetic relatives because children produced from such unions would be less healthy. This health impairment arises because such children would

106 M. Ridley, The Red Queen: Sex & the Evolution of Human Nature, Penguin Books, Ringwood, Victoria, 2000, 275. 107 M. Ridley, The Red Queen: Sex & the Evolution of Human Nature, Penguin Books, Ringwood, Victoria, 2000, 250 – 252. 108 M. Ridley, The Red Queen: Sex & the Evolution of Human Nature, Penguin Books, Ringwood, Victoria, 2000, 274. At 275 (endnotes omitted): ‘Westermarck’s theory leads to several simple predictions: step-siblings should generally not be found to marry unless they were brought up apart. Very close childhood friends should also generally not be found to marry. Here the best evidence comes from two sources: Israeli kibbutzim and an old Chinese marriage custom. In Kibbutzim, children are reared in crèches with unrelated companions. Lifelong friendships are formed, but marriages between fellow kibbutz children are very rare. In Taiwan, some families practise shim-pua marriage in which an infant daughter is brought up by the family of the man she will marry. She is therefore effectively married to her step-brother. Such marriages are often infertile, largely because the two partners find each other sexually unattractive. … All of this adds up to a picture of sexual inhibition between people who saw a great deal of each other during childhood; fraternal incest, as Westermarck suggested, is therefore prevented by this instinctive aversion siblings show to each other. But Westermark’s theory would also predict that if incest does occur, it will prove to be between parent and child, and specifically between father and daughter, because a father is past the age at which familiarity breeds aversion and because men usually initiate sex. That, of course, is the commonest form of incest.’

87 express far higher rates of deleterious recessives (e.g. Adams & Neel 1967; Bittles & Neel 1994) and possibly suffer more damage from infectious diseases because the antagonistic of genotype-sensitive parasites selects against more genetically homogeneous sets of kin (Tooby 1982; Penn & Potts 1999).109 This hypothesis has been justified by the fact that in ‘Kibbutzim, children are reared in crèches with unrelated companions’ and even though ‘lifelong friendships are formed …marriages between fellow kibbutz children are very rare’.110 Kibbutzim data is also used to justify universal sex-dimorphic behaviour. Again this is possible because of the allegedly unique androgynous ways children were once raised in the kibbutzim system.111 Ridley describes the salience of the data: The Israeli kibbutz system has proved to be a large natural experiment in the persistence of sex roles. Men and women were initially encouraged to drop all sex roles in kibbutzim: haircuts and clothes were unisexual; boys were encouraged to be peaceful and sensitive, while girls were treated like tomboys; men did household [at 252] chores and women went out to work. Yet three generations later, the attempt has largely been abandoned and kibbutz life is actually more sexist than life in the rest of Israel.112

109 D. Lieberman, J. Tooby & L. Cosmides, “Does morality have a biological basis? An Empirical test of the factors governing moral sentiments relating to incest” (2003) 270 Proceedings Royal Society London Biology 819. 110 M. Ridley, The Red Queen: Sex & the Evolution of Human Nature, Penguin Books, Ringwood, Victoria, 2000, 275. 111 S. Kurtz, “Can we make girls and boys alike?” (2005) Spring, City Journal, pp. 1-4, at 3: ‘… kibbutzniks set out to wipe away gender. Kibbutz parents agreed to see their own children only two hours a day, and for the remaining 22 hours to surrender them to the collective, which would raise them androgynously (trying more to “masculinize” women than “feminize” men). Boys and girls would henceforth do the same kind of work and wear the same kind of clothes. Girls would learn to be soldiers, just like boys. Signs of “bourgeois” femininity—makeup, say—would now be taboo. As if they had stepped out of Plato’s Republic, the children would dress and undress together and even use the same showers.’ 112 M. Ridley, The Red Queen: Sex & the Evolution of Human Nature, Penguin Books, Ringwood, Victoria, 2000, 251 – 252. This claim is echoed by Kurtz (S. Kurtz, “Can we make girls and boys alike?” (2005) Spring, City Journal, pp. 1-4, at 3) albeit within a shorter time-frame: ‘The experiment collapsed within a generation, and a traditional family and gender system reasserted itself.’

88 As well as providing a justification for Sociobiology data from kibbutzim studies have been used to counter the critics of Sociobiology. For example, this kibbitzum argument has been used to justify as inevitable, among other things, what feminists have otherwise critiqued as the socially constructed “glass-ceiling” (in terms of poor participation rates for women in senior executive positions, in particular in senior academic posts at prestigious universities).113 The explanation provided for the inevitable collapse of the socially constructed androgyny in kibbutzim, is that innate sex-dimorphic behaviour is universal. Whether that universality is based on Ridley’s version: Women clean house in a kibbutz because, like women everywhere, they complain that men would not do it properly. Men do not clean house in kibbutz because, like men everywhere, they complain that if they did, their wives would say it had not been properly done.114 Or on Kurtz’s explanation: … the kibbutzniks didn’t succeed because the mothers wanted their kids back. They wanted to take care of their young children in the old-fashioned way, themselves.115

113 S. Kurtz, “Can we make girls and boys alike?” (2005) Spring, City Journal, pp. 1-4. Kurtz claims at 4, (in an attempt to justify the claims of Harvard Professor Lawrence Summers who suggested that biology might be partially responsible for the relative rarity of female mathematics professors): ‘Until the link between women and child rearing completely breaks down, neither corporate boardrooms nor Harvard professorships of mathematics will see numerical parity between men and women. In the meantime, in disproportionate numbers, at critical points in their careers, women will continue to choose mothering over professional work. From either a biological or cultural point of view, then, the feminist project of androgyny is ultimately doomed. But that doesn’t mean that it can’t do harm in the meantime. In America, many boys are slipping behind in school; their sisters are significantly more likely to go on to college. Yet thanks largely to the influence of academic feminists, legal and educational resources still flow disproportionately to supposedly victimized girls. In the end, gender won’t disappear, whatever the mavens of women’s studies hope, but the careers of some bright young men probably will.’ 114 M. Ridley, The Red Queen: Sex & the Evolution of Human Nature, Penguin Books, Ringwood, Victoria, 2000, 252, and the original endnote to this quote was [23] Tiger and Shepher 1977; Daly and Wilson 1983; Moir and Jessel 1991. 115 S. Kurtz, “Can we make girls and boys alike?” (2005) Spring, City Journal, pp. 1-4, at 3.

89 However, the extent to which children were actually brought up in androgynous as opposed to sex-dimorphic conditions remains a moot point.116 Therefore, to the extent that such children were able to be raised free of sexist culture, studies on kibbutzim may provide corroborating evidence for the emphasis placed by Sociobiology on sexual selection and its sociobiological corollary, sex-dimorphic behaviour. Such studies also supply assumptions that augment the Autocatalysis Model in terms of the hunter-gatherer hypothesis.117

4. Biochemical and Brain Studies Another cluster of studies providing crucial evidence for Sociobiology comes from the emerging field of “cognitive neuroscience”. Cognitive neuroscience draws upon anthropology, endocrinology, evolutionary psychology, neurology, neuropsychology, social psychology and Sociobiology. 118 At an individual level the studies are not necessarily aimed at providing ammunition for Sociobiology, however, they tend to advance evidence that behaviour can be explained in biological or evolutionary terms because it has a biochemical basis in all humans or can be mapped using brain scans.119 At a collective and interdisciplinary level, these studies are necessarily sociobiological because cognitive neuroscience derives its conceptual framework from two sources: Sociobiology (and evolutionary psychology) and social psychology. As Adolphs explains cognitive neuroscience merges these two strands: The first approach treats the study of social behaviour as a topic in ethology, continuous with studies of motivated behaviour in other animals. The second approach has often emphasized the uniqueness of human behaviour, and the

116 B. Faust, Apprenticeship in Liberty: Sex, Feminism and Sociobiology, Angus and Robertson, Sydney, 1991, 42 & 69. 117 M. Ridley, The Red Queen: Sex & the Evolution of Human Nature, Penguin Books, Ringwood, Victoria, 2000, 252: ‘People have returned to stereotype. Men politick while women tend the home; boys study physics and become engineers while girls study sociology and become teachers and nurses. Women manage the morale, health and education of the kibbutz while men manage the finances, security and business.’ 118 R. Adolphs, “Cognitive Neuroscience of Human Social Behaviour” (2003) 4(3) Nature Reviews Neuroscience 165, 165. 119 For example: “Irritable Male syndrome? – Blokes, Hormones and Happiness”, All in the Mind, ABC Radio National, broadcast 14 May 2005; and R. Udry, “Biological Limits of Gender Construction” (2000) 65(3) American Sociological Review 443.

90 uniqueness of the individual person, their environment and their social surroundings. These two different emphases do not need to conflict with one another. In fact, neuroscience might offer a reconciliation between biological and psychological approaches to social behaviour in the realization that its neural regulation reflects both innate, automatic and cognitively impenetrable mechanisms, as well as acquired, contextual and volitional aspects that include self-regulation.120 In addition to anthropology, primate studies, studies from social psychology, and the human genome project the two main sources of evidence tend to be from bicochemical/endocrinal/hormonal studies and from brain mapping. To take the biochemical evidence first, and given its diversity just a couple of examples for illustration, Udry claims that he has developed what he calls a “biosocial theory of gender”.121 He explains that his model merges social science with the biology of primatology to determine the ‘constraints placed by biology on the social reconstruction of gender’, and his evidence is predominately from neuro- endocrinology. 122 Udry’s theory is based on a model that says gender in many different species is influenced by hormones, and in particular testosterone (other

120 R. Adolphs, “Cognitive Neuroscience of Human Social Behaviour” (2003) 4(3) Nature Reviews Neuroscience 165, 165. 121 R. Udry, “Biological Limits of Gender Construction” (2000) 65(3) American Sociological Review 443, 444: ‘Identification of biosocial interactions is the scientific antidote to both biological determinism and environmental determinism. My primary hypothesis is that the effect on women of their childhood gender socialization is constrained by the biological process that produces natural behaviour predispositions. This extension is stimulated by and modelled after parallel experimental work on primates and humans.’ 122 R. Udry, “Biological Limits of Gender Construction” (2000) 65(3) American Sociological Review 443, 444: ‘The theoretical biological model for sex-dimorphic and reproductive behavior is often discussed as though it were applicable only to primates because the comparisons to humans are more direct. The generic model is actually broadly applicable to all vertebrates and has been empirically explored for many species, from humans (Reinisch and Sanders 1987) to the red-sided garter snake (Crews 1991). The model states that exposure to androgens (male hormones) during a critical developmental period masculinizes the individual's reproductive organs and nervous system and potentiates subsequent appropriate reproductive behavior. The critical period differs across species, but in primates this critical period is mid-gestation.’

91 hormones such as estrogen and progesterone are not seen as relevant to the development or architecture of human behaviour): Androgens masculinize species-specific sex-dimorphic behaviors for both males and females, but because the androgen levels produced by males are many times greater than those produced by females, the effects on females are more subtle, and species typical female behavior occurs in the absence of androgens. Testosterone is the androgen that masculinizes behavior. It is produced in males primarily by the testes starting in mid-gestation; in females it is produced by the adrenal glands and the ovaries. As a general rule, its effect on behavior in humans and other animals is limited in each species to behaviors that are sex-dimorphic for that species (Goy, Bercovitch, and McBair 1988).123 Udry applied this model to a study of 351 women and found that high prenatal exposure – especially during the second trimester – to testosterone ‘not only masculinizes their gendered behaviour predispositions at later ages, but immunizes them against socialization toward typical feminine behaviour’.124 Similar research conducted by Diamond found that reduced levels of testosterone in men can lead to depression and irritability.125 While Stephen Pinker, during a prominent public academic debate with his Harvard colleague Elizabeth Spelke, also drew upon biochemical evidence to supplement his other arguments that sex-dimorphic behaviour is innate.126 Pinker argued that prenatal sex hormones, the ‘mechanism that makes boys boys and girls girls in the first place’, can also ‘make a difference in later thought and behaviour even within a given sex’.127 He relied on stuidies that found: In the condition called congenital adrenal hyperplasia, girls in utero are subjected to an increased dose of androgens, which is neutralized postnatally.

123 R. Udry, “Biological Limits of Gender Construction” (2000) 65(3) American Sociological Review 443, 444. 124 R. Udry, “Biological Limits of Gender Construction” (2000) 65(3) American Sociological Review 443, 452 125 J. Diamond, The Irritable Male syndrome: Managing the four Key Causes of Depression and Aggression, Macmillan, New York, 2004. 126 S. Pinker, in “The Science of Gender and Science, Pinker vs Spelke A Debate”, 16 May 2005, The Edge Foundation, pp. 1 – 227, at 14. 127 S. Pinker, in “The Science of Gender and Science, Pinker vs Spelke A Debate”, 16 May 2005, The Edge Foundation, pp. 1 – 227, at 14.

92 But when they grow up they have male-typical toy preferences — trucks and guns — compared to other girls, male-typical play patterns, more competitiveness, less cooperativeness, and male-typical occupational preferences. However, research on their spatial abilities is inconclusive, and I cannot honestly say that there are replicable demonstrations that CAH women have male-typical patterns of spatial cognition. Similarly, variations in fetal testosterone, studied in various ways, show that fetal testosterone has a nonmonotic relationship to reduced eye contact and face perception at 12 months, to reduced vocabulary at 18 months, to reduced social skills and greater narrowness of interest at 48 months, and to enhanced mental rotation abilities in the school-age years.128 The common thread to these arguments is that behaviour is driven by hormones, and that these hormones have evolved to serve particular adaptive purposes. Therefore, certain behaviours can be said to have evolved. These findings are often reached in conjunction with the data gleaned from other studies from anthropology, genetics, psychiatry, social psychology, and zoology, and the advancing techniques of brain imaging or brain mapping.129 But they are not free of controversy.130 For example

128 S. Pinker, in “The Science of Gender and Science, Pinker vs Spelke A Debate”, 16 May 2005, The Edge Foundation, pp. 1 – 227, at 14. Pinker followed this argument with another concerning “circulating sex hormones”: ‘Ninth, circulating sex hormones. I'm going to go over this slide pretty quickly because the literature is a bit messy. Though it's possible that all claims of the effects of hormones on cognition will turn out to be bogus, I suspect something will be salvaged from this somewhat contradictory literature. There are, in any case, many studies showing that testosterone levels in the low-normal male range are associated with better abilities in spatial manipulation. And in a variety of studies in which estrogens are compared or manipulated, there is evidence, admittedly disputed, for statistical changes in the strengths and weaknesses in women's cognition during the menstrual cycle, possibly a counterpart to the changes in men's abilities during their daily and seasonal cycles of testosterone.’ 129 See for instance: J. Fan, J. Fossella, T. Sommer, Y. Wu, and M.I. Posner, “Mapping the of executive attention onto brain activity” (2003) 100(12) Proceedings of the National Academy of Sciences 7406, a study that found ‘polymorphisms in dopamine receptor (DRD4) and monoamine oxidase A (MAOA) genes showed significant associations with efficiency of handling conflict as measured by reaction times in the Attention Network Test’ and therefore ‘the results demonstrate how genetic differences among individuals can be linked to individual differences in neuromodulators and in the efficiency of the operation of an appropriate attentional network’.

93 hormones are incorrectly conceived as male or female even though they are essential to both men and women. Testosterone is described as “male” and “estrogen” as female. Once hormones and chemicals are imbued with sexist stereotypes the whole basis for these studies begins to unravel.131 Brain imaging studies observe changes in the brain in response to environmental stimuli.132 This allows scientists to compare similar imaging in primates, or to show that it is absent in situations involving psychiatric disability or brain damage, or the response image is predictable according to variations in the stimuli. In each situation this tends to suggest that the brain evolved to operate effectively in social situations in accord with the social (rather than hand labour) autocatalysis model. An example of brain imaging comparing humans and primates is the fact that in both humans and monkeys so-called “mirror neurons” have been found. These mirror neurons, found in humans and monkeys: … respond both when the subject is doing something specific, and when he or she observes another person doing the same thing. … Functional imaging studies also support a role for right somatosensory-related cortices in representing the actions that we observe other people performing, as being distinct from those we perform ourselves. So, there is good evidence that we can figure out how others are feeling, what they intend and how they are likely to act, in part by putting ourselves in their shoes, so to speak.133

130 See for instance: I. Kennelly, S. Merz, & J. Lorber, “What is Gender?” (2001) 66(4) American Sociological Review 598; E. M. Miller & C. Y. Costello, “The limits of biological determinism” (2001) 66(4) American Sociological Review 592; B. J. Risman, “Calling the Bluff of Value-Free Science” (2001) 66(4) American Sociological Review 605; and R. Udry, “Feminist Critics Uncover Determinism, Positivism, and Antiquated Theory” (2001) 66(4) American Sociological Review 611. 131 See further the series of essays critiquing Udry’s model and Udry’s reply to his critics in Volume 66 no 4 of the 2001 American Sociological Review. 132 For example: P. Thompson, T.D. Cannon & A.W. Toga, “Mapping Genetic Influences On Human Brain Structure” (2002) 34(7) Annals of Medicine 523; and A.W. Toga and P.M. Thompson, “Genetics of Brain Structure and Intelligence” (2005) 28 Annual Review of Neuroscience 1. 133 R. Adolphs, “Cognitive Neuroscience of Human Social Behaviour” (2003) 4(3) Nature Reviews Neuroscience 165, 172.

94 In other words ‘we understand other people’s behaviour, in part, by simulation’.134 The fact that this capacity is also present in primates suggests that it is homologous (that is to say it suggests that it has evolved). An example of this type of study from psychiatry would be the fact that patients suffering either social phobia (‘a debilitating fear of others, public places or public social interaction’) or psychopathy (an inability to regulate emotions that translate into aggression) show exaggerated and reduced activity respectively in the amygdala and orbitofrontal cortex.135 This has been taken to suggest that complex human behaviour such as the processing of information for decision-making is regulated by the “brain’s baseline” systems which evolved for social purposes.136 Similarly, in patients where there is damage to the ventromedial prefrontal cortices this usually leads to the impairment of “somatic markers” used for decision-making. Although similar results occur where there is damage to the orbitofrontal cortex which also impairs somatic markers for decision-making, the disability is not so profound because, ‘it spares abstract knowledge regarding decision making; such patients can usually describe what to do in an abstract choice, but become impaired when faced with actually having to choose themselves’.137 Again, this is taken as evidence that human behaviour is regulated by anatomy, which has evolved, as opposed to being socially constructed. One final illustration of this genre of evidence comes from face recognition studies. Most of these studies have focused on imaging patterns of the brain in response to fear and related emotions, and the evidence suggests a major role for the amygdala in tandem with other “routes” (neural structures).138 A variation on these studies tests for facial attractiveness: For instance, faces are perceived to look more attractive the more average or

134 R. Adolphs, “Cognitive Neuroscience of Human Social Behaviour” (2003) 4(3) Nature Reviews Neuroscience 165, 172. 135 R. Adolphs, “Cognitive Neuroscience of Human Social Behaviour” (2003) 4(3) Nature Reviews Neuroscience 165, 174 & 175. 136 R. Adolphs, “Cognitive Neuroscience of Human Social Behaviour” (2003) 4(3) Nature Reviews Neuroscience 165, 174. 137 R. Adolphs, “Cognitive Neuroscience of Human Social Behaviour” (2003) 4(3) Nature Reviews Neuroscience 165, 173. 138 R. Adolphs, “Cognitive Neuroscience of Human Social Behaviour” (2003) 4(3) Nature Reviews Neuroscience 165, 169.

95 symmetrical they are, or with greater exaggeration of robusticity and neoteny features, all of which have been proposed to signal differential fitness. Moreover, such preferences by women can vary across different phases [at 170] of the menstrual cycle, as do other aspects of their categorization of men, possibly providing a link between mate preference and probability of conception. Judgements of attractiveness can reflect both aesthetic judgements (for example, males can judge faces of both males and females to look beautiful), as well as motivational aspects (for example, heterosexual males prefer to look at beautiful female faces rather than at beautiful male faces). These two aspects have been dissociated in functional imaging studies. The motivational aspects of facial attractiveness activate the ventral striatum and the orbitofrontal cortex. These structures probably have a broad role in processing the motivational properties of stimuli. For example, they are also activated when males find pictures of sports cars more rewarding than pictures of limousines or small cars.139 The fact that different parts of the brain are involved depending on the sex of the subject, their heterosexual orientation, and whether the object concerns reproduction or purely aesthetics, is once again treated as indicative of behaviour regulated by evolution rather than culture. However, these studies should be treated with caution because they are not precise and cannot exclude other factors. In metaphorical terms: Trying to glean the neural code with external scanning methods such as magnetic-resonance imaging or electroencephalography is like trying to learn English by standing outside a baseball stadium and listening to the roar of the crowd.140 This view has been echoed by other critics who not only warn against treating such studies conclusive or determinative, but also caution that such studies are poorly

139 R. Adolphs, “Cognitive Neuroscience of Human Social Behaviour” (2003) 4(3) Nature Reviews Neuroscience 165, 169 – 170. 140 J. Horgan, “We’re cracking the neural code, the brain’s secret language” (2006) 14(1) Adbusters Jan/Feb (No 63). Also accessible at www.adbusters.org.

96 understood by lazy tabloid journalists who lack the skills and abilities to critically assess the field and its research results.141 The various types of studies in this vein discussed above and treated as evidence for Sociobiology were not intended to be exhaustive of this category of evidence. Instead the consideration above was meant to illustrate the strength, scope and basis for a model of human nature based on Sociobiology. Collectively, gene studies, Kibbutzim and twin studies, and brain and endocrinology remain a mixed and inconclusive body of evidence which is in any case still regarded as controversial by many.142 In addition to this evidence, Sociobiology also draws extensively on models or plausibility arguments. These plausibility arguments are in many ways derived from the evidence discussed above and are used in Sociobiology to add weight to that evidence. It should also be kept in mind that the evidence and plausibility arguments are used to structure the autocatalysis model, and in turn, it provides universal behavioural traits fed back into the research and models used in Sociobiology.

Plausibility arguments

There are three plausibility arguments or models used extensively in Sociobiology: (1) “Parental Investment Theory” (2) “Kin Selection theory” and “Reciprocal Altruism”, and (3) “Game theory”. Each of these models is discussed in turn. The first two are absolutely necessary to sociobiology because they provide the means for Sociobiology to account for behaviours that could not otherwise be explained due to the fact that selection operates at the level of individuals not groups (i.e. the need to explain behaviour as

141 “You are not your brain scan! Critical reporting on the mind sciences”, All in the Mind, ABC Radio National, broadcast 28 April 2007, transcript accessed online at http://www.abc.net.au/rn/allinthemind/stories/2007/1905157.htm on 27 June 2007, pp. 1 – 12. 142 Strong cases against these types of studies can be found amongst many other places in S. J. Gould, Ever Since Darwin: Reflections in natural history, Penguin, Ringwood, Victoria, 1991; R. C. Lewontin, The Doctrine of DNA: Biology as Ideology, Penguin, Ringwood, Victoria, 2001; E. M. Miller & C. Y. Costello, “The limits of biological determinism” (2001) 66(4) American Sociological Review 592; and “You are not your brain scan! Critical reporting on the mind sciences”, All in the Mind, ABC Radio National, broadcast 28 April 2007, pp. 1 – 12.

97 individual selfishness). The third category of argument – game theory – is used to explain the evolution of cooperation and why two of Sociobiology’s other universal traits (selfishness coupled with aggression) do not lead to the utter of all animal species including humans, and is instead conducive to adaptation.

Parental Investment Theory “Parental Investment Theory” ensures that the predictions Sociobiology makes about sex-dimorphic behaviour are compatible with sexual selection and at the same time it emphasises sexual selection, which is so crucial to Sociobiology.143 Trivers developed the notion of “parental investment” to explain and predict the impact of sexual selection on behaviour: I first define parental investment as any investment by the parent in an individual offspring that increases the offspring’s chance of surviving (and hence reproductive success) at the cost of the parent’s ability to invest in other offspring.144 He drew on the earlier work of Bateman (1948) who had studied Drosophila melanogaster, a single species of fruit fly under laboratory conditions to find that there was an inverse relationship between the abundance of sex cells and the amount of energy invested in reproduction.145 Trivers extrapolated from Bateman’s findings

143 See above under the heading “Sexual Selection” and R.L. Trivers, “Parental Investment and Sexual Selection” in B. Campbell (ed), Sexual Selection and the Descent of Man 1871-1971, Aldine Publishing Co, Chicago, 1972, pp. 136 – 179, 173: ‘The relative parental investment of the sexes in their young is the key variable controlling the operation of sexual selection.’ At 137, Trivers explains Darwin’s definition of “sexual selection”: Darwin defined sexual selection as (1) competition within one sex for members of the opposite sex and (2) differential choice by members of one sex for members of the opposite sex, and he pointed out that this usually meant that males competing with each other for females and females choosing some males rather than others.’ 144 R.L. Trivers, “Parental Investment and Sexual Selection” in B. Campbell (ed), Sexual Selection and the Descent of Man 1871-1971, Aldine Publishing Co, Chicago, 1972, pp. 136 – 179, 139. 145 R.L. Trivers, “Parental Investment and Sexual Selection” in B. Campbell (ed), Sexual Selection and the Descent of Man 1871-1971, Aldine Publishing Co, Chicago, 1972, pp. 136 – 179, 138: ‘Bateman argued that his results could be explained by reference to the energy invested of each sex in their sex cells. Since male Drosophila invest very little metabolic energy in the production of a given cell, whereas females invest considerable energy, a male’s reproductive success is not limited by his ability to produce sex cells but by his ability to fertilize eggs with these cells. A female’s reproductive success

98 to produce a general hypothesis for sex-dimporphic behaviour based on sexual selection: Bateman’s argument can now be reformulated as follows. Since the total number of offspring produced by one sex of a sexually reproducing species must equal the total number produced by the other (and assuming the sexes differ in no other way than in their [at 140] typical parental investment per offspring) then the sex whose typical parental investment is greater than that of the opposite sex will become a limiting resource for that sex. Individuals of the sex investing less will compete among themselves to breed with members of the sex investing more, since an individual of the former can increase its reproductive success by investing successively in the offspring of several members of the limiting sex.146 The parental investment model is linked to Darwin’s sexual selection because it is based on the notion of “male combat or competition” and “female choice”.147 According to the model, male reproductive success is most likely based on (1) larger size, (2) higher metabolic rate, (3) experience, and (4) mobility.148 While the factors that Trivers expects will affect female choice include: (1) male sexual competence, (2) extent of male parental investment or quality of his genetic material, and (3) other criteria not concerning the male but the environment.149

is not limited by her ability to have her eggs fertilized but by her ability to produce eggs. Since in almost all animal and plant species the male produces sex cells that are tiny by comparison to the female’s sex cells, Bateman (1948) argued that his results should apply very widely, that is, to “all but a few very primitive organisms, and those in which monogamy combined with a sex ratio of unity eliminated all intra-sexual selection.’ 146 R.L. Trivers, “Parental Investment and Sexual Selection” in B. Campbell (ed), Sexual Selection and the Descent of Man 1871-1971, Aldine Publishing Co, Chicago, 1972, pp. 136 – 179, 139 – 140. 147 C. Darwin, The Descent of Man and Selection in Relation to Sex, (2nd ed, 1882) John Murray, London, 1871, Chapter VIII “Principles of Sexual Selection”. At 214: ‘But in very many cases the males which conquer their rivals, do not obtain possession of the females, independently of the choice of the latter.’ 148 R.L. Trivers, “Parental Investment and Sexual Selection” in B. Campbell (ed), Sexual Selection and the Descent of Man 1871-1971, Aldine Publishing Co, Chicago, 1972, pp. 136 – 179, 160 – 165. 149 R.L. Trivers, “Parental Investment and Sexual Selection” in B. Campbell (ed), Sexual Selection and the Descent of Man 1871-1971, Aldine Publishing Co, Chicago, 1972, pp. 136 – 179, 165 – 173.

99 According to Trivers a male may invest in his young by: (1) his sex cells, (2) giving his mate food, (3) finding and defending a good place for the female to breed, (4) building a nest for eggs, (5) helping the female lay the eggs or raise the young, (6) defending the female, (7) brooding the young or eggs, (8) feeding the young, (9) providing learning, and (10) indirect protection.150Otherwise in the usual case all a male will invest are his sex cells leaving the entire process of reproduction and rearing to the female.151 Therefore the model expresses behaviour according to sexual selection and both sexual selection and the model are reinforced by the observations of anthropologists, zoologists, entomologists and so on. Based on this type of data the Trivers’ model predicts that: The relative parental investment of the sexes in their young is the key variable controlling the operation of sexual selection. Where one sex invests considerably more than the other, members of the latter will compete among themselves to mate with members of the former. Where investment is equal, sexual selection should operate similarly on the two sexes. … the individual initially investing more (usually the female) is vulnerable to desertion. On the other hand, in species with internal fertilization and strong male parental investment, the male is always vulnerable to cuckoldry. Each vulnerability has led to the evolution of adaptations to decrease the vulnerability and to counter- adaptations.152 Initially, Trivers was cautious about the extent to which his model could adequately explain human behaviour given the frequency of adoption.153 He confined its

150 R.L. Trivers, “Parental Investment and Sexual Selection” in B. Campbell (ed), Sexual Selection and the Descent of Man 1871-1971, Aldine Publishing Co, Chicago, 1972, pp. 136 – 179, 141 – 142. 151 R.L. Trivers, “Parental Investment and Sexual Selection” in B. Campbell (ed), Sexual Selection and the Descent of Man 1871-1971, Aldine Publishing Co, Chicago, 1972, pp. 136 – 179, 141: ‘In the vast majority of species, the male’s only contribution to the survival of his offspring is his sex cells.’ 152 R.L. Trivers, “Parental Investment and Sexual Selection” in B. Campbell (ed), Sexual Selection and the Descent of Man 1871-1971, Aldine Publishing Co, Chicago, 1972, pp. 136 – 179, 173. 153 R.L. Trivers, “Parental Investment and Sexual Selection” in B. Campbell (ed), Sexual Selection and the Descent of Man 1871-1971, Aldine Publishing Co, Chicago, 1972, pp. 136 – 179, 144: ‘It would be interesting to compare human societies that differ in relative parental investment and in the details of the form of the parental investment, but the specification of parental investment is complicated by the

100 application to humans to the extent that children had a genetic connection to their parents. On this basis, Trivers was able to hypothesize about human sexual behaviour: In the human species, for example, a copulation costing the male virtually nothing may trigger a nine-month investment by the female that is not trivial, followed, if she wishes, by a fifteen-year investment in the offspring that is considerable. Although the male may often contribute parental care during this period, he need not necessarily do so. After a nine-month pregnancy, a female is more or less free to terminate her investment at any moment but doing so wastes her investment up until then. Given the initial imbalance in investment the male may maximise his chances of leaving surviving offspring by copulating and abandoning many females, some of whom, alone or with the aid of others, will raise his offspring. In species where there has been strong selection for male parental care, it is more likely that a mixed strategy will be the optimal male course – to help a single female raise young, while not passing up opportunities to mate with other females whom he will not aid.154 He also predicted that because humans use internal insemination and male parental investment is relatively high, this presents the problem of cuckoldry (viz, raising another male’s children), which can explain male competitiveness, jealousy, aggression, and murder.155 Other Sociobiologists have also used parental investment theory to allege that in addition to jealousy, aggression, violence, and territoriality, it

fact that humans often invest in kin other than their children. A wealthy man supporting brothers and sisters (and their children) can be viewed functionally as a polygynist if the contributions to his fitness made by kin are devalued appropriately by their degree of relationship to him (see Hamilton 1964).’ 154 R.L. Trivers, “Parental Investment and Sexual Selection” in B. Campbell (ed), Sexual Selection and the Descent of Man 1871-1971, Aldine Publishing Co, Chicago, 1972, pp. 136 – 179, 145. 155 R.L. Trivers, “Parental Investment and Sexual Selection” in B. Campbell (ed), Sexual Selection and the Descent of Man 1871-1971, Aldine Publishing Co, Chicago, 1972, pp. 136 – 179, 149: ‘One way a male can protect himself is to ensure that other males keep their distance. That some territorial aggression of monogamous male birds is devoted to protecting the sanctity of the pair bond seems certain, and human male aggression toward real or suspected adulterers is often extreme. Lee (1969), for example, has shown that, when the cause is known, the major cause of fatal Bushman fights is adultery or suspected adultery. In fact, limited data on other hunter-gathering groups (including Eskimos and Australian aborigines) indicate that, while fighting is relatively rare (in that organized intergroup aggression is infrequent), the “murder rate” may be relatively high. On examination, the murderer and his victim are usually a husband and his wife’s real or suspected lover.’

101 can explain adultery, rape, and sexism in general.156 Consequently, because these behaviours are classed as innate, Ridley argues that the law simply reflects the biological truth: … men are likely to mind even more about their wives’ infidelity than vice versa. History, and law, have long reflected just that. In most societies, adultery by a wife was illegal and punished severely, while adultery by a husband was condoned, or lightly treated. Until the nineteenth century in Britain, a civil action could be brought against an adulterer by an aggrieved husband for “criminal conversion”.[45] Even among the Trobriand Islanders, who were celebrated by Bronislaw Malinowski in 1927 as a sexually uninhibited people, females who committed adultery were condemned to die.[46] This double standard is a prime example of the sexism of society, and is usually dismissed as no more than that. Yet the law has not been sexist about other crimes: women have never been punished more severely than men for theft or murder, or at least the legal [at 230] code has never prescribed that they be so. Why is adultery such a special case? … Because men stick together in the war of the sexes? They do not in anything else. The law is quite explicit on this: all legal codes so far studied define adultery ‘in terms of the marital status of the

156 M. Ridley, The Red Queen: Sex & the Evolution of Human Nature, Penguin Books, Ringwood, Victoria, 2000, 197-198 & 228 – 229. Some universal behaviours are, at 198: ‘the human male’ will ‘take opportunities, if they are granted to him, for polygamous mating, and to use wealth, power and violence as means to sexual ends in competition with other men’. Some of these universal behaviours manifest in social institutions: (1) socially recognised marriage, (2) the concept of adultery as a property violation, (2) a preference for female chastity, (3) infidelity is grounds for provocation and violence, (4) adultery is the main reason for spousal murder, (5) a tendency for men to be promiscuous, and (6) a legal system that will reflect these values. In terms of violence and rape, at 198: ‘In pre- agricultural societies, violence may well have been a route to sexual success especially in times of turmoil. In many different cultures, the captives taken in war have tended to be women rather than men. But the echoes linger into modern times. Armies have often been motivated as much by the opportunities victory would present for rape as they have been by patriotism or fear. Even in this century access to prostitutes has been a more or less recognised purpose of short leave in navies. And rape accompanies war still. In East Pakistan (now Bangladesh), during a nine-month occupation by West Pakistani troops in 1971, up to four hundred thousand women may have been raped by soldiers. … Don Brown, an anthropologist at Santa Barbara, recalls his days in the army: “Men talked about sex at night and day; they never talked about power”.’

102 woman. Whether the adulterous man was himself married is irrelevant’.[47] And they do so because ‘it is not adultery per se that the law punishes, but only the possible introduction of alien children into the family and even the uncertainty that adultery creates in this regard. Adultery by the husband has no such consequences.’[48]157 Therefore parental investment theory is a model that builds directly on Darwins’ theory of sexual selection. For this reason it is plausible. It is also pivotal in the sense that it stresses sexual selection as a driving force for human behaviour, while at the same time providing the basis for an array of predictions about human behaviour that are compatible with the descriptions made elsewhere in Sociobiology according to other evidence or other models. In addition, parental investment theory also provides the basis for the “parent offspring conflict model”.158 This model helps to explain individual behaviour in families and is discussed later under the next heading “kin selection theory” because it builds on this theory too.

Kin Selection Theory and Reciprocal Altruism

Kin Selection Theory “Kin Selection Theory” is a mathematical model devised by Hamilton and published in 1964 providing for a genetic basis for behaviour in harmony with evolutionary theory.159 It is an essential justification for Sociobiology because without it, behaviour that is not strictly connected to reproductive success could not be explained other than by “group selection”. That is to say (recall from the previous chapter) the group

157 M. Ridley, The Red Queen: Sex & the Evolution of Human Nature, Penguin Books, Ringwood, Victoria, 2000, 229-230, original endnotes: [45] A Fraser, personal communication; [46] Malinowski 1927; [47] Wilson and Daly 1992; and [48] French revolutionary law, quoted in translation by Wilson and Daly 1992. 158 Briefly, the parent offspring conflict model introduces the notion of “offspring agency” which was not featured in parental investment theory because the latter focuses on the parents. It is discussed under the next heading because it builds on both kin selection theory and parental investment theory. 159 In two separate articles published consecutively: (1) W.D. Hamilton, “The Genetical Evolution of Social Behaviour I” (1964) 7 Journal of Theoretical Biology 1; and (2) W.D. Hamilton, “The Genetical Evolution of Social Behaviour II” (1964) 7 Journal of Theoretical Biology 17.

103 selection paradigm was replaced in the 1960s with individual selection. In other words, according to the theory of evolution, selection occurs at the level of the individual organism and not at the level of genes or groups of individuals. In effect this meant that all behaviour not part of an individual’s struggle for reproductive success had to be explained.160 This was problematic because non-selfish, non- reproductive action (or acts of altruism) had the potential to undermine any scope for an evolutionary basis for human behaviour.161 Clearly, the idea that an individual could evolve chiefly so as to assist a rival to reproduce was antithetical to an evolutionary explanation for behaviour. In this situation the altruistic individual would only benefit if they were genetically identical to the “rival” and their action helped that rival to reproduce. Hamilton conceded the theory of evolution by natural selection left little scope for the possibility of an evolutionary basis for altruism because it was unlikely that the necessary genes would continue to be selected if the individual organisms carrying them were genetically predisposed to self-sacrifice. Beyond altruism centred on sex and parenting (e.g. Trivers’ parental investment theory) the evolutionary models consistently indicated that altruism could not be explained by genetics.162 Two crucial developments provided Sociobiology with a means to explain behaviour beyond this narrow condition. The two developments were (1) Hamilton’s “kin- selection” theory, and (2) Trivers’ “reciprocal altruism”. Hamilton was unapologetic that his kin selection model was ‘deterministic’ arguing that it needed to be simple and that his model was ‘restricted to the case of an organism which reproduces once and for all at the end of a fixed period’ and the sole concern of the model was the product of net reproduction: ‘inclusive fitness’.163 Although his model was necessarily simplistic, it was a ‘good approximation to the truth when selection is slow and may be hoped to give some guidance when it is

160 R.D. Alexander, “The Search for a General Theory of Behaviour” (1975) 20 Behavioral Science 77, 80. 161 R.D. Alexander, “The Search for a General Theory of Behaviour” (1975) 20 Behavioral Science 77, 81. 162 W.D. Hamilton, “The Genetical Evolution of Social Behaviour I” (1964) 7 Journal of Theoretical Biology 1, 1. 163 W.D. Hamilton, “The Genetical Evolution of Social Behaviour I” (1964) 7 Journal of Theoretical Biology 1, 2.

104 not’.164 In essence, Hamilton’s Model says that for a hereditary basis for altruistic behaviour (self-sacrifice) to evolve in humans a genetic benefit must accrue such that the benefit to: … a sib must average at least twice the loss to the individual, the benefit to a half-sib must be at least four times the loss, to a cousin eight times and so on. To express the matter more vividly, in the world of our model organisms, whose behaviour is determined strictly by genotype, we expect to find that no one is prepared to sacrifice his life for any single person but that everyone will sacrifice it when he can thereby save more than two brothers, or four half- brothers, or eight cousins.165 But this model does not purport to explain simple altruism (selfless acts not involving self-sacrifice) because the model shows that such behaviour ‘will never be evolved by natural selection’.166 Instead, the model shows a preference for the evolution of selfish behaviour that is ‘always selected’.167 While selfishness is fundamental to sexual selection and Sociobiology, it is never total. Evolution mediates extreme selfishness because the model also suggests that ‘taking too much from close relatives will not evolve’. That is to say: In the model world of genetically controlled behaviour we expect to find that sibs deprive one another of reproductive prerequisites provided they can themselves make use of at least one half of what they take; individuals deprive half-sibs of four units of reproductive potential if they can get personal use of at least one of them; and so on. Clearly from a gene’s point of view it is worthwhile to deprive a large number of distant relatives in order to extract a small reproductive advantage.168

164 W.D. Hamilton, “The Genetical Evolution of Social Behaviour I” (1964) 7 Journal of Theoretical Biology 1, 4. 165 W.D. Hamilton, “The Genetical Evolution of Social Behaviour I” (1964) 7 Journal of Theoretical Biology 1, 16. 166 W.D. Hamilton, “The Genetical Evolution of Social Behaviour I” (1964) 7 Journal of Theoretical Biology 1. 16. 167 W.D. Hamilton, “The Genetical Evolution of Social Behaviour I” (1964) 7 Journal of Theoretical Biology 1, 16. 168 W.D. Hamilton, “The Genetical Evolution of Social Behaviour I” (1964) 7 Journal of Theoretical Biology 1, 16.

105 The model is best explained by way of an illustration. Suppose an individual needs a vital organ transplant and his extended family is faced with the decision of whether and who should make the sacrifice. In strict genetic terms (ignoring compatibility in terms of organ rejection) and looking at the situation from his relatives’ viewpoint the calculation would be based on the fact that his identical twin shares 100% of his genotype, with each of his parents he shares 50% of their genotype, his sister (and if he had one – a fraternal twin) 50% of his genotype, his half-brother 25%, and his cousins 12.5%. Therefore, in this situation, the only viable donor would be the identical twin because the others would all be sacrificing more than they would gain in terms of “inclusive fitness”.169 Turning this hypothetical example around, suppose instead that all of his extended family needed different kinds of organ transplants and he is in a position to donate his various organs to each separate relative, thereby sacrificing himself. It would be worth his while to save eight or more cousins, his twin brother and any other relative, or some other combination provided the gain to his relatives exceeds his loss.170 Despite the improbability of this illustration the model allegedly has great explanatory power. So for example, Hamilton uses the following illustration: The alarm call of a bird probably involves a small extra risk to the individual making it by rendering it more noticeable to the approaching predator but the consequent reduction of risk to a nearby bird previously unaware of danger must be much greater. The alarm call often warns more than one nearby bird of course – hundreds in the case of a flock – but since the predator would hardly

169 W.D. Hamilton, “The Genetical Evolution of Social Behaviour I” (1964) 7 Journal of Theoretical Biology 1, 16: ‘… we expect to find that no one is prepared to sacrifice his own life for any single person but that everyone will sacrifice it when he can thereby save more than two brothers, or four half-brothers, or eight cousins…’. 170 S.J. Gould, Ever Since Darwin: Reflections in natural history, Penguin, Ringwood, Victoria, 1991, 255: ‘For example, in most sexually reproducing organisms, an individual shares (on average) one-half the genes of his sibs and one-eighth the genes of his first cousins. Hence, if faced with a choice of saving oneself alone or sacrificing oneself to save more than two sibs or more than eight first cousins, the Darwinian calculus favours altruistic sacrifice; for in so doing, an altruist actually increases his own genetic representation in future generations.’

106 succeed in surprising more than one in any case the total number warned must be comparatively unimportant.171 Alternatively, a particular kin might be prepared to forgo reproduction and instead help another kin to reproduce and raise offspring whenever their chances of genetic representation in the next generation will be greater than if they had reproduced themselves - this is kin selection theory. It is used in Sociobiology to explain all sorts of behaviours normally thought of as altruistic (such as caring, helping, and sacrificial behaviour) and it includes other behaviours not directed at reproduction (such as homosexuality) where the behaviour takes place between close relatives.172 Clearly, the theory does not have any application where behaviour is not connected to reproduction or is not between close relatives. Kin selection theory is also important because it provides fundamental principles for two other Sociobiological models/plausibility arguments, Trivers’ parent/offspring conflict model and his model for “reciprocal altruism”. Recall that parental investment theory (discussed above) is a model that builds directly on Darwins’ theory of sexual selection. For this reason it is plausible. A limitation, however, is that the model is not concerned with the behaviour of offspring, and instead, it simply expresses parental behaviour as a manifestation of their relative investment in producing offspring. Trivers’ was able to overcome this limitation and enrich his parental investment theory by drawing on Hamilton’s kin selection theory. The result is the “Parent/offspring conflict model”.173 This model adds a layer to parental investment theory so that behaviour within families can be explained in accord with sexual selection. It enriches parental investment theory by assuming agency in the offspring in the sense that they will want more investment from parents than the parent will be prepared to allocate them.174 This assumption is plausible because

171 W.D. Hamilton, “The Genetical Evolution of Social Behaviour I” (1964) 7 Journal of Theoretical Biology 1, 15. 172 M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 66 – 67; and E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, 279. In terms of homosexuality, a particular kin might be prepared to forgo reproduction and instead help another kin to reproduce and raise offspring whenever their chances of genetic representation in the next generation will be greater than if they had reproduced themselves. 173 R.L. Trivers, “Parent-offspring Conflict” (1974) 14 American Zoology 249. 174 R.L. Trivers, “Parent-offspring Conflict” (1974) 14 American Zoology 249, 249.

107 according to sexual selection the goal of all individuals is to maximise their reproductive success. Among the evidence given by Trivers to explain parent/offspring conflict is weaning behaviour in mammals.175 Based on this evidence, Trivers rejects the developmental behavioural models seeking to explain “weaning conflict” and argues instead a model consistent with sexual selection: … the marked inefficiency of weaning conflict seems the clearest argument in favour of the view that such conflict results from an underlying conflict in the way in which the inclusive fitness of mother and offspring are maximised.176 However, Trivers’ points out that extreme selfishness is tempered by virtue of kin selection theory.177 In other words, while offspring will seek to maximise resource allocation from a parent, this behaviour is mediated because the offspring shares a genetic relationship with its parent: To specify precisely how much cost an offspring should be willing to inflict on its parent in order to gain a given benefit, one must specify how the offspring is expected to weigh the survival of siblings against its own survival. The problem of specifying how an individual is expected to weigh siblings against itself (or any relative against any other) has been solved in outline by Hamilton (1964), in the context of explaining the evolution [at 250] of altruistic behaviour. … altruistic behaviour … can be selected only if there is a sufficiently large probability that the recipient has the gene. More precisely, the benefit/cost ratio of the act, times the chance that the recipient has the gene, must be greater than one.178

175 R.L. Trivers, “Parent-offspring Conflict” (1974) 14 American Zoology 249, 251: ‘…for example, baboons (DeVore, 1963), langurs (Jay, 1963), rhesus macaques (Hinde and Spencer-Booth, 1971), other macaques (Rosenblum, 1971), vervets (Struhsaker, 1971), cats (Scneirla et al., 1963), dogs (Rheingold, 1963), and rats (Rosenblatt and Lehrman, 1963).’ 176 R.L. Trivers, “Parent-offspring Conflict” (1974) 14 American Zoology 249, 251. 177 R.L. Trivers, “Parent-offspring Conflict” (1974) 14 American Zoology 249, 249: ‘… parent- offspring conflict is expected to be circumscribed by the close genetic relationship between parent and offspring. … Clearly, if the gene in the offspring exacts too great a cost from the parent, that gene will be selected against even though it confers some benefit on the offspring.’ 178 R.L. Trivers, “Parent-offspring Conflict” (1974) 14 American Zoology 249, 249 – 250.

108 Parent/offspring conflict is used in conjunction with parental investment theory and kin selection theory to produce explanations of behaviour in human families in a way that is faithful to sexual selection.179 Outside the boundary of relatives the plausibility arguments led so far by Sociobiology are extremely limited since there is no genetic advantage promoting alien genes at one’s own expense. For this reason the next model is essential to Sociobiology, because it provides a genetic explanation for altruistic behaviour between unrelated individuals.

Reciprocal Altruism Kin selection theory together with parental investment theory and the parent/offspring conflict model may be plausible explanations for altruism between relatives but they have virtually no capacity to explain behaviour beyond relatives. Therefore Sociobiologists turn to “reciprocal altruism”, or what Wilson has called the “Good Samaritan Model”.180 Reciprocal altruism simply says that unrelated individuals will tend to confer altruistic acts on one another because natural selection will tend to select genes conducive to this end where the benefit is high to the recipient and the cost to the altruist low by comparison and altruists can discriminate against cheats.181 Reciprocal altruism might have evolved because of kin selection, and it is certainly not incompatible with it: Early Hominid hunter-gatherer bands almost certainly (like today’s hunter- gatherers) consisted of many close kin, and kin selection must often have operated to favour the evolution of some types of altruistic behaviour.182

179 R.L. Trivers, “Parent-offspring Conflict” (1974) 14 American Zoology 249, 262: ‘A parent can influence the altruistic and egoistic tendencies of its offspring whenever it has influence over any variable that affects the costs and benefits associated with altruistic and egoistic behaviours. … Once parents commonly mold the appropriate offspring behaviour, selection still favours genes leading toward voluntary offspring behaviour, since such a developmental avenue is presumably more efficient and more certain than that involving parental manipulation.’ 180 E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, 58. 181 R.L. Trivers, “The Evolution of Reciprocal Altruism” (1971) 46 Quarterly Review of Biology 35. 182 R.L. Trivers, “The Evolution of Reciprocal Altruism” (1971) 46 Quarterly Review of Biology 35, 45.

109 The Model is similar to kin selection but for the un-relatedness between the two individuals.183 In other words, one individual might risk their life to save a stranger, not because they are related, but because this action might be reciprocated in the future. Alternatively: Reciprocal altruism can also be viewed as a symbiosis, each partner helping the other while he helps himself.184 A critical factor in either view of reciprocal altruism is that although genetically distinct individuals still share proximity of environment and for this reason might have an evolutionary advantage cooperating under certain conditions (discussed shortly). Trivers points out that anthropology has long studied reciprocal altruism in terms of its benefits for groups and societies. He also notes that psychologists have added a layer to this work studying the altruistic behaviour to determine, ‘what factors induce or inhibit such behaviour’ but neither anthropology nor psychology had succeeded in unifying the findings with evolutionary theory.185 The problem of course is explaining altruistic behaviour as a manifestation of evolution according to selection at the individual level. Particularly given the strength of the alternative, environmental explanations, providing for complex behaviour (including altruism) on the basis that it is purely cultural.186 Triver’s concedes that while there is no direct evidence that reciprocal altruism is genetic or that it evolved, it is ‘reasonable to assume that it had been an important factor in recent human evolution’ because it is so universal in human beings.187 In addition to this appeal to logic, Trivers supplies three types of evidence: anthropological (hunter/gatherer

183 R.L. Trivers, “The Evolution of Reciprocal Altruism” (1971) 46 Quarterly Review of Biology 35, 45 – 46. They are not mutually exclusive and both may operate within families. However, there are some important differences typically kin selection requires less demand for reciprocity. 184 R.L. Trivers, “The Evolution of Reciprocal Altruism” (1971) 46 Quarterly Review of Biology 35, 39. 185 R.L. Trivers, “The Evolution of Reciprocal Altruism” (1971) 46 Quarterly Review of Biology 35, 47. 186 R.L. Trivers, “The Evolution of Reciprocal Altruism” (1971) 46 Quarterly Review of Biology 35. At 47, 52 & 53 Trivers hints at the possibility that cultural explanations also explain the behaviours. 187 R.L. Trivers, “The Evolution of Reciprocal Altruism” (1971) 46 Quarterly Review of Biology 35, 48.

110 societies), literature on psychological studies reviewed by Krebs (1969), and game- theory.188 For instance, both Ridley and Trivers’ use the hunter gatherer argument (Autocatalysis Model) to explain reciprocal altruism and, in turn, both use reciprocal altruism to provide details for the autocatalysis model in terms of relations between hunters and the sexual division of labour.189 Ridley, for example, argues that reciprocal altruism was essential to the process of hunting and similarly essential to relations between men and women (viz: trading meat for sex).190 Trivers also argues that the strongest argument for reciprocal altruism in humans comes from anthropology and psychology.191 He too makes extensive use of hunter/gatherer evidence: During the Pleistocene, and probably before, a hominid species would have met the preconditions for the evolution of reciprocal altruism: long lifespan; low

188 R.L. Trivers, “The Evolution of Reciprocal Altruism” (1971) 46 Quarterly Review of Biology 35. Hunter/gatherer data is relied on throughout the paper; the psychological literature is at pp. 48 – 53 (at 48: ‘The best evidence supporting these assertions can be found in Kreb’s (1970) review of the relevant psychological literature’, ‘although he organizes it differently’.); and game theory is used at pp. 38 & 51. 189 R.L. Trivers, “The Evolution of Reciprocal Altruism” (1971) 46 Quarterly Review of Biology 35, 45; and M. Ridley, The Red Queen: Sex & the Evolution of Human Nature, Penguin Books, Ringwood, Victoria, 2000, 187. 190 M. Ridley, The Red Queen: Sex & the Evolution of Human Nature, Penguin Books, Ringwood, Victoria, 2000, 187: ‘One of the reasons hunting and gathering cannot support much polygamy is that luck, more than skill, plays a large part in hunting success. Even the best hunter would often return empty handed and would be reliant on his fellow men to share what they had killed. This equitable sharing of hunted food is characteristic of people (in most other social hunting species, there is a free- for-all) and is the clearest example of a habit of ‘reciprocal altruism’ on which the whole of society sometimes appears to be based. A lucky hunter kills more than he can eat, so he loses little by sharing it with his companions; he gains a lot, for the next time, when he is unlucky, the favour will be repaid by those with whom he shared the meat. Trading favours in this way was the ancient ancestor of the monetary economy. But because meat could not be stored and because luck did not last, accumulation of wealth was not possible in hunter-gatherer societies.’ 191 R.L. Trivers, “The Evolution of Reciprocal Altruism” (1971) 46 Quarterly Review of Biology 35, 46, and this evidence is presented at page 47 forward.

111 dispersal rate; life in small, mutually dependent, stable social groups; and a long period of parental care.192 This dovetails neatly with McKee’s autocatalysis model, which draws on parental investment, parent/offspring conflict, kin selection, reciprocal altruism, and sexual selection as well as the other forms of evidence given for Sociobiology.193 Trivers’ best argument for his model is ultimately based on plausibility: (9) Multiparty interactions. In the close-knit social groups that humans usually live in, selection should favour more complex interactions than two-party interactions so far discussed. Specifically, selection may favour learning from the altruistic and cheating experiences of others, helping others coerce cheaters, forming multi-party exchange systems, and formulating rules for regulated exchanges in such multiparty systems.194

192 R.L. Trivers, “The Evolution of Reciprocal Altruism” (1971) 46 Quarterly Review of Biology 35, 45. 193 J.K. McKee, The Riddled Chain: Chance, Coincidence, and Chaos in Human Evolution, Rutgers University Press, New Brunswick (NJ), 2000, 216 – 217: The evolutionary importance of one’s own species is easy to see. At birth mammals must receive nurturing. This usually comes from the offspring’s mother (to varying degrees) but often directly or indirectly from other species members as well. Being able to elicit this nurturing and benefit from it requires appropriate feeding behaviour and morphology. … Sometimes, for instance, a newborn must compete with siblings for nurture, a rivalry illustrated in its most horrendous form by the black eagle chicks who fight to the death. Alternatively, occasional sibling cooperation might not be out of the question. Play among young siblings is often important for the learning process. … Among social mammals, which have evolved many competitive as well as cooperative social behaviours, a developing individual must somehow fit into the norms of behaviour in order to benefit from existing mechanisms of group survival and also to find a mate. The relative importance of these social factors may vary, but they are inevitably important to some degree in determining Darwinian fitness (which in mammals depends primarily on mating success). … [at 217] I believe that sexual selection is a good example, a fine example indeed, of autocatalysis – of how, among the many selective forces, the nature of one’s own species determines and even propels evolution in one direction or another.’ 194 R.L. Trivers, “The Evolution of Reciprocal Altruism” (1971) 46 Quarterly Review of Biology 35, 52.

112 Similarly, Trivers predicts that “developmental plasticity” would be genetic so that behaviours could adapt to greater sophistication in cheating and for detecting cheating.195 Trivers claims that this model of genetic reciprocity can explain diverse human behaviours such as ‘friendship, dislike, moralistic aggression, gratitude, sympathy, trust, suspicion, trustworthiness, aspects of guilt, and some forms of dishonesty and hypocrisy’.196 These behaviours are explained ‘as important adaptations to regulate the altruistic system’ integral to the human genotype.197 This genetic human altruistic system, according to Trivers is characterised by a tendency to altruism and a tendency to cheat.198 Wilson provides one of the shorter accounts of the interaction between altruism and cheating in this genetic system: The paradigm offered by Trivers is Good Samaritan behaviour in human beings. A man is drowning, let us say, and another man jumps in to save him, even though the two are not related and may not even have met previously. The reaction is typical of what human beings regard as pure altruism. However, upon reflection we can see that the Good Samaritan has much to gain by his act. In its elementary form the Good Samaritan model still contains an inconsistency. Why should the rescued individual bother to reciprocate? Why not cheat? The answer is that in an advanced, personalized society, where individuals are identified and the record of their acts is weighed by others, it does not pay to cheat even in the purely Darwinist sense. Selection will discriminate against the individual if cheating has later adverse affects on his life and reproduction that outweigh the momentary advantage gained.

195 R.L. Trivers, “The Evolution of Reciprocal Altruism” (1971) 46 Quarterly Review of Biology 35, 53. 196 R.L. Trivers, “The Evolution of Reciprocal Altruism” (1971) 46 Quarterly Review of Biology 35, 35. 197 R.L. Trivers, “The Evolution of Reciprocal Altruism” (1971) 46 Quarterly Review of Biology 35, 35. At 45, Trivers claims that, ‘Any complete list of human altruism would contain the following types of altruistic behaviour: (1) helping in times of danger (e.g. accidents, predation, intraspecific aggression); (2) sharing food; (3) helping the sick, the wounded, or the very young and old; (4) sharing implements; and (5) sharing knowledge. All these forms of behaviour often meet the criterion of small cost to the giver and great benefit to the taker.’ 198 R.L. Trivers, “The Evolution of Reciprocal Altruism” (1971) 46 Quarterly Review of Biology 35, 35 & 36.

113 The emotion of guilt may be favoured in natural selection because it motivates the cheater to compensate for his misdeed and to provide convincing evidence that he does not plan to cheat again. So strong is the impulse to behave altruistically that persons in experimental psychological tests will learn an instrumental conditioned response without advance explanation and when the only reward is to see another person relieved of discomfort (Weiss et al., 1971). Human behaviour abounds with reciprocal altruism consistent with genetic theory, but animal behaviour seems to be almost devoid of it.199 So although the paramount human trait is selfishness, this is circumscribed by another genetic trait – reciprocal altruism.200 The model assumes a set of ‘biological parameters’ for the proposition that reciprocal altruism has a genetic basis via natural selection. These biological parameters are: (1) the length of lifetime should be long because a long lifetime ‘maximises the chance that any two individuals will encounter many altruistic situations’; (2) there should be a low dispersal rate so that individuals can repeatedly interact over their life-time; (3) there should be a high degree of mutual dependence in the species, (4) in humans and primates it should operate alongside kin selection; (5) it should be modified according to behaviours associated with dominance hierarchies, and (6) it should be modified by behaviours when aiding in combat.201

199 E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, 58. 200 R. Dawkins, The Blind Watchmaker, Ringwood, Victoria, Penguin, 1988, 329 – 330: ‘[Leigh] correctly recognised that if individual interests conflict with those of the species, the individual interests – short-term interests must prevail. Nothing, it seems, can prevent the march of selfish genes. But Leigh made the following interesting suggestion. There must be some groups or species in which, as it happens, what is best for the individual pretty much coincides with what is best for the species. And their must be other species in which the interests of the individual happen to depart especially strongly from the interests of the species. Other things being equal, the second type of species could well be more likely to go extinct. A form of species selection, then, could favour, not individual self- sacrifice, but those species in which individuals are not asked to sacrifice their own welfare. We could then see apparently unselfish individual behaviour evolving, because species selection has favoured those [at 330] species in which individual self-interest is best served by their own apparent altruism.’ 201 R.L. Trivers, “The Evolution of Reciprocal Altruism” (1971) 46 Quarterly Review of Biology 35, 37 – 38.

114 Two examples should help to illustrate the calibre of the predictions possible according to reciprocal altruism. One such example is friendship and the emotions of liking and disliking. These behaviours feature in Trivers’ model as follows: The tendency to like others, not necessarily closely related to form friendships and to act altruistically toward friends and toward those one likes will be selected for as the immediate emotional rewards motivating altruistic behaviour and the formation of altruistic partnerships. … In other words, selection will favour liking those who are themselves altruistic.202 The evidence for this comes from psychological studies which showed that more altruism is shown toward friends than to neutral individuals.203 Morals provide another example. Trivers predicts that moralistic aggression probably evolved to regulate cheating behaviour (the later is selfish behaviour and therefore innate). His argument is that: … because cheaters will be selected to take advantage of the altruist’s positive emotions. This in turn sets up a selection pressure for a protective mechanism. Moralistic aggression and indignation in humans was selected for in order (a) to counteract the tendency of the altruist, in the absence of any reciprocity to continue to perform altruistic acts for his own emotional rewards; (b) to educate the unreciprocating individual by frightening him with immediate harm or with the future harm of no more aid; and (c) in extreme cases, perhaps, to select directly against the unreciprocating individual by injuring, killing, or exiling him. Much of human aggression has moral overtones. Injustice, unfairness, and lack of reciprocity often motivate human aggression and indignation. Lee (1969) has shown that verbal disputes in Bushmen usually revolve around problems of gift-giving, stinginess, and laziness. DeVore reports that a great deal of aggression in hunter-gatherers resolves around real or imagined injustices –

202 R.L. Trivers, “The Evolution of Reciprocal Altruism” (1971) 46 Quarterly Review of Biology 35, 48. 203 R.L. Trivers, “The Evolution of Reciprocal Altruism” (1971) 46 Quarterly Review of Biology 35, 48.

115 inequities, for example, in food-sharing (see, for example, Thomas 1958; Balikci 1964; Marshall 1961).204 Together sexual selection, parental investment theory, parent offspring conflict, kin selection and reciprocal altruism constitute the biological basis for human behaviour according to Sociobiology.205 They not only justify human behaviour as biological but they also allow for all behaviour to be predicted by Sociobiology. This case for sociobiology is reinforced by the autocatalysis model, various scientific studies, and game theory.

Game Theory Game theory uses mathematical models to explain strategic choice in situations where two or more protagonists are pitted against each other. It is used extensively in Sociobiology to either justify arguments or to compliment them. For example it is frequently invoked to justify reciprocal altruism and the associated claims about aggression.206 An indication of its importance to Sociobiology is evident in the extent to which it is cited or used as a justification for the other evidence presented immediately above.207 Although other scientists such as Lewontin and Hamilton had

204 R.L. Trivers, “The Evolution of Reciprocal Altruism” (1971) 46 Quarterly Review of Biology 35, 49. 205 Though Badcock claims that there is one further argument necessary to sustain Sociobiology listing three types of altruism: kin, reciprocal, and “induced”. See further: C. Badcock, Evolution and Individual Behaviour, Oxford, Basil Blackwell, 1991, 87 – 93. 206 R.L. Trivers, “The Evolution of Reciprocal Altruism” (1971) 46 Quarterly Review of Biology 35, 38 & 51. M. Ridley, The Red Queen: Sex & the Evolution of Human Nature, Penguin Books, Ringwood, Victoria, 2000, 177: ‘Game theory is different from other forms of theorizing because it recognizes that the outcome of a transaction often depends on what other people are doing. Maynard Smith tried pitting different genetic strategies against each other in the same way that economists pit different economic strategies against each other. Among the problems that was rendered soluble by this technique was the question of why different animals have such different mating systems.’ 207 So for example, while it is relied upon in the following sources, it is also a central justification in hundreds of journal articles (for instance, see K. Sigmund & M.A. Nowak, “A Tale of Two Selves” (2000) 290 Science 949) concerning Sociobiology: (1) C. Badcock, Evolution and Individual Behaviour, Oxford, Basil Blackwell, 1991, at 32-60, 82-83, 90-91, 139-140, & 263; (2) R. Dawkins, The Selfish Gene, New Edition (1990), Oxford University Press, Oxford, 1976, at 39, 69-87, 69-86, 150-153, 183-186, 202-233 & 282; (3) M. Ridley, The Red Queen: Sex & the Evolution of Human

116 already applied game theory analysis to evolutionary phenomena, Maynard Smith is widely regarded as the geneticist who made game-theory commonplace in the biological sciences.208 Maynard Smith applied game-theory analysis to animal aggression, and although he argued his case drawing on analogies from humans, he was extremely careful to avoid anthropomorphism and went as far as to state that he was sceptical about the use of game-theory analysis in terms of human behaviour.209 Ruse has since defended the use of game-theory in human Sociobiology on the grounds that it is an appropriate use of analogy.210

Nature, Penguin Books, Ringwood, Victoria, 2000, at 177, 180 & 213; and (4) M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 26-31, 37, 50, 56-57 & 146-148. 208 M. Ridley, The Red Queen: Sex & the Evolution of Human Nature, Penguin Books, Ringwood, Victoria, 2000, 177; J. Maynard Smith, On Evolution, Edinburgh University Press, Edinburgh, 1972, 16-17, referring to the earlier works of (1) R. Lewontin, “Evolution and the Theory of Games” (1961) 1 Journal of Theoretical Biology 382 - 403; and (2) W.D. Hamilton, “Extraordinary Sex Ratios” (1967) 156 Science 477 - 488. 209 J. Maynard Smith, On Evolution, Edinburgh University Press, Edinburgh, 1972. He reiterates this point at 9, 25 & 26. For instance, at 9 he states: ‘In these human examples, it is reasonable to suppose that the acceptance of conventional restraints depends on the rational calculation that it is better to minimize the risks one runs in the event of defeat. In the case of animal conflicts, an explanation in terms of rational calculation is less acceptable.’ 210 M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 53: ‘Maynard Smith (1972) who flatly dissociates himself from human sociobiology and who denies that his ideas have any relevance to the human case.’ And at 57: ‘Maynard Smith wants no part of applications of his approach to humans. Despite the fact that he admits that game theory was modelled originally on human behaviour, despite the fact that he admits that some primitive peoples go through aggressive posturing in a manner similar to animals, despite the fact that he wants to apply his theorizing to primates, despite the fact that he even refers to work where apparently such an approach as his holds for neurotic humans, Maynard Smith categorically denies that he has pointed towards a legitimate, game-theoretic, sociobiological approach to human behaviour. “There may or may not be physiological similarities between human and animal aggression, but nothing I have said in this essay (applying game theory to animal aggression) is intended as evidence for such similarity.” (Maynard Smith, 1972, p. 25) any similarity is of a different kind. “I think there is often a logical similarity between the role of human reason in optimising the outcome of a conflict between men, and the role of natural selection in optimising the outcome of a fight between two animals”. (Maynard Smith, 1972, p. 26). Whether matters are quite this simple will have to be discussed later. Certainly however, for the American sociobiologists, human aggression is just an extension of animal aggression.’

117 Until game theory, a popular explanation for restrained aggression in animals was the idea that it was necessary to avoid the potential for widespread destruction of a species.211 For instance, if all tigers are aggressive all of the time then this could potentially wipe their species out. But this is a group selection argument. Alternatively, game theory provided an opportunity to explain restrained aggression at the level of individual selection. Game theory can be a suitable analytical tool for the study of animal behaviour because selection in social animals is often contingent on how an animal behaves in relation to other animals.212 Therefore, individual animals must act and react according to some innate capacity to develop strategies to ensure their survival and reproductive success. An illustration of the application of game theory to a specific situation (the evolution of a sex ratio) might indicate its scope as a plausible rationale in general, for the other arguments advanced by Sociobiology (discussed above). Consider the following scenario given by Maynard Smith: In some groups (for example, Hymenoptera and some mites), fertilized eggs develop into females and unfertilised eggs into haploid males. The females store sperm, and so can “choose” the sex of their offspring by laying fertilized or unfertilised eggs. [Because they are] parasitic as larvae; the adult female searches for a host (often a caterpillar) and lays eggs in it. These eggs develop at the [at 18] expense of their host. When they emerge as adults, it is common for mating to take place at once, after which the males die and the females disperse to look for new hosts. When a female finds a caterpillar, what ratio of female to male eggs should she lay in it? If there are no other females around, the answer is obvious. Since one male can mate with many females, she should fertilize all her eggs except one. In this way she will maximise the number of her grandchildren. But what if there are other females around? Then we are faced with a problem in game theory, in which each female must select a sex ratio which will maximise her contribution to future generations. Her choice depends on what others are doing.213

211 J. Maynard Smith, On Evolution, Edinburgh University Press, Edinburgh, 1972, 9. 212 J. Maynard Smith, On Evolution, Edinburgh University Press, Edinburgh, 1972, 12. 213 J. Maynard Smith, On Evolution, Edinburgh University Press, Edinburgh, 1972, 17 – 18.

118 Under these circu mstances the game theory “pay-off matrix” might be as follows, depending on the values assigned/allocated to her reproductive success for each strategy:214

Table 1

Rival Females Lay 19 males Lay 10 males & Lay 19 females Strategy & 1 fema le 10 females & 1 male Lay 19 males & 50 75 100 1 female Lay 10 males &

Hymenoptera 25 50 75 10 females Lay 19 females 0 25 50 & 1 male

Accordingly, where the other females lay mostly females, then the best strategy might be to lay mostly males in as many of the caterpillars as possible. However, as Maynard Smith points out the success of this strategy will depend on many other variables not reflected in this matrix, and in particular, it will depend on her ability to produce eggs and her ability to access hosts.215 What this illustration is meant to indicate is the relevance and explanatory power of game theory to conflicts arising in humans according to sexual selection, parent/offspring conflict, parental investment, kin selection, and reciprocal altruism. In principle, game theory provides a means to model selfish, aggressive and competitive behaviour to explain why these traits do not ultimately destroy humanity and are instead tempered to the advantage of individuals depending on the strategic choices they face. The argument being that the capacity to exercise strategic choices across a range of fundamentally selfish behaviours can be explained as not merely

214 Where the pay-offs indicated as “100”, “75”, “50”, “25” & “0” have been arbitrarily chosen here to reflect reproductive success according to the particular strategy so that “100” reflects maximum success and “25” limited success.. 215 J. Maynard Smith, On Evolution, Edinburgh University Press, Edinburgh, 1972, 18.

119 compatible with individual selection, but essential to it. As a plausibility argument for Sociobiology, game theory provides an important system of models capable of reinforcing other evidence and models. Beyond its capacity to reinforce actual evidence, game theory contributes nothing to prove that human behaviour is sociobiological.216

Conclusion

This chapter has presented a summary of the rationale for Sociobiology. Sociobiology is based on a sophisticated series of interlocking models and evidence resembling a rhizome structure. What tends to tie this rhizome of inter-connected evidence, models and arguments together is the frequent use and extensive reliance on “universals”. That is to say, Sociobiology ties the arguments together by attributing key behaviours to human beings as universal; universal in the sense that they apply across time and cultures. It does this because selection operates at the level of the individual and assumes that humans like all other animals are reproductively selfish. Once humans are attributed this trait, all other behaviours are explained in harmony with it according to the various evidence and models presented above. Because the case for Sociobiology is based on a “scattergun” argument (rather than a chain argument) linked by evolutionary theory, any single model or piece of evidence could fall without destroying the remainder. However, there are three exceptions to this assertion. The first concerns the emphasis placed on sexual selection and its consequential risks of leading to reductionism and determinism. Second, Sociobiology does require reciprocal altruism to stand otherwise it would be internally contradictory because it would need to rely on group selection to explain non-selfish behaviour beyond kin. Lastly, Sociobiology has not engaged with its critics sufficient to avoid

216 In fact its contribution can be limited by the values imputed into models and the fact that these tend to be unidirectional rather than multi-vocal in the sense that they are developed by Western male scientists with particular backgrounds rather than by a diverse range of scientists that might include women from so called “developing countries”: M.C. Lugones & E.V. Spelman, “Have We got a Theory for You!” in N. Zack, L. Shrage & C. Sartwell (eds.), Race, Class, Gender and Sexuality: The Big Questions, Blackwell, Oxford, 1998, 377.

120 being compromised by overt anthropomorphism, sexism, racism, and capitalist hegemony. All three of these vulnerabilities are considered in the next chapter.

121

122

Chapter 4

The Case Against Sociobiology

Introduction

In the mass of literature on this subject there are four broad clusters of arguments against Sociobiology. They are that the positive evidence doesn’t stack up, the normative arguments are flawed, there are many other plausible explanations demonstrating that human behaviour is socially constructed, and that Sociobiology is ideological. These arguments overlap because the claim that Sociobiology is ideological permeates each of the other arguments. This chapter focuses on the first of those four broad clusters of arguments – the concern that the evidence for Sociobiology does not stack up. The chapter is necessarily “scientific” and draws on available science to critique Sociobiology according to its key predictions and assertions and it is structured to that end. The other three broad clusters of critique tend to be more philosophical and theoretical and are discussed in the following two chapters. There are two overarching predictions made by Sociobiology concerning human nature. The first is that human nature is claimed to be a product of evolution in the sense that the human mind was “adapted” to its environment. The second prediction is that human behaviour is inevitably a product of each individual’s evolutionary objective to attain “reproductive success.” These two predictions are taken as scientific axioms in the sense that an organism will be adapted to its environment and that it exists to achieve reproductive success. Accordingly, human nature, among other things, is said to be aggressive, competitive, territorial, and behaviourally sex- dimorphic. The respective sets of Sociobiological concepts, arguments and evidence for these two predictions concern, firstly, the hunter-gatherer hypothesis for the Autocatalysis Model and the fossil record, anthropology and primatology supporting it, and secondly, sexual selection and parental investment theory.

123 A third major contention of Sociobiologists is their explanation for altruism (non- selfish and non-reproductive behaviours). Human altruism presents a special problem for Sociobiologists because it is not behaviour obviously and directly connected with an individual’s reproductive success. Therefore, Sociobiologists rely on two plausibility arguments or models (kin selection theory and reciprocal altruism) to forge a link between altruistic behaviour and reproductive success. In this chapter these three main predictions made by Sociobiology are critically assessed drawing on the available and competing scientific literature. In doing so, the normative assertion that Sociobiology is epistemologically superior is tested. However, for reasons of space and structure, a philosophical critique of Sociobiology and the associated epistemological issues concerning reductionism and determinism, have been severed as far as possible so that they can be discussed in the next chapter. The following assessment reveals that the scientific evidence for Sociobiology is inadequate – it does not stack up. The existence of alternative explanations for human behaviour suggests, therefore, that Sociobiology is yet another recycled version of earlier ideologies presented as “science” to justify and explain hierarchy and oppression.

Critique of an “adapted” and “universal” human nature

Critique of the Autocatalysis Model

Although the Autocatalysis Model is used in many disciplines to explain how human ancestors evolved from tree-dwelling primates to hunter-gatherer Homo sapiens, it is pivotal in Sociobiology because it underpins the evidence and models supporting Sociobiology, which necessarily refer to and draw upon the Autocatalysis Model.1 At the same time the evidence and models for Sociobiology are fed back into the

1 E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, 292 – 293. M. Ridley, The Red Queen: Sex & the Evolution of Human Nature, Penguin Books, Ringwood, Victoria, 2000, 182: This is because, according to evolutionary theory, ‘inside the skull of a modern city dweller there resides a brain designed for hunting and gathering in small groups on the African savannah’, and ‘Whatever humanity’s mating system was then is what is “natural” for him now’.

124 Autocatalysis Model furnishing it with detail. According to the Model the transformation from arboreal primate to human hunter-gatherer was a consequence of an autocatalysis process. A process by which the brain is believed to have evolved through a dynamic two-way interaction with several factors such as diet, bipedalism, manual dexterity, culture, language and further brain elaboration. There are many variations on this Model and most tend to emphasise the acceleration of the evolution of the brain.2 Despite its many variations, the Autocatalysis Model has had three discernible consecutive themes or hypotheses: man-as-toolmaker, man-as-hunter, and man-as-hunter-gatherer. There is nothing fundamentally objectionable about the concept of “autocatalysis”.3 What is objectionable is the formulation of the three hypotheses and the construction of the Model’s detail in sociobiological terms. They amount to sociobiological “story-telling”: … these sciences are composed through complex, historically specific story- telling practices. Facts are theory-laden; theories are value-laden; values are story-laden. Therefore, facts are meaningful within stories.4 Each hypotheses and the evidence garnered for it has been an ideological story. Rose points out that Sociobiologists – like any other group of ideologues - impress by “reification”.5 One of the ways ideology operates is by means of reification, that is, ‘by representing a transitory, historical state of affairs as if it were permanent, natural, outside of time’.6 Sociobiologists abstract a particular aspect of individual behaviour and then declare it to be a manifestation of some universal human trait:

2 J.K. McKee, The Riddled Chain: Chance, Coincidence, and Chaos in Human Evolution, Rutgers University Press, New Brunswick (NJ), 2000, 204. 3 There is nothing objectionable about the idea that rapid brain development in human ancestors was based on a two-way process. Or as Wilson (E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, 307) puts it: ‘Any process the rate of which is increased by its own products. Thus autocatalytic reactions, fed by positive feedback, tend to accelerate until the ingredients are exhausted or some external constraint imposed’. 4 D. Haraway, Primate Visions: Gender, Race and Nature in the World of Modern Science, Routledge, New York, 1989, quoted in S. Sperling, “Baboons with Briefcases: Feminism, Functionalism, and Sociobiology in the Evolution of Primate Gender” (1991) 17(1) Signs 1, 25. 5 S. Rose, “’It’s Only Human Nature’: The Sociobiologist’s Fairyland” in Sociobiology Examined, A. Montagu (ed), Oxford University Press, Melbourne, 1980, 162 – 164. 6 J.B. Thompson, Studies in the Theory of Ideology, Polity Press, Cambridge, 1985, 131.

125 [Sociobiologists] take aspects of human behaviour and attempt to abstract certain common features from them. A mother protecting her baby from attack, a doctor risking his or her life in a cholera epidemic, a soldier leading a doomed assault on a machine-gun post, all express “altruism”.7 In other words diverse human behaviours are reified to become universals such as “aggression”, “altruism”, “competition”, “sex-dimorphic behaviour”, and so on, and these are alleged to be found across cultures, across time, and crucially, are featured in the hypotheses that have constituted the Autocatalysis Model. This process of reifying Western capitalist society as natural and inevitable is accomplished by “universalising” behaviour and then characterising those universals as “adaptive” because they fit with other arguments, concepts and models advanced by Sociobiology. And on closer analysis these other arguments, concepts and models are inherently ideological and wanting for evidence – in particular the three hypotheses for the Autocatalysis Model. Over time the Autocatalysis Model has been based on hypotheses reflecting the broader socio-political and economic context and ultimately giving rise to Sociobiology as a formal discipline. Arguably the first hypothesis was the man-as- toolmaker hypothesis.8 It was developed during Victorian imperialism at time when anthropology was exclusively a male vocation, and emphasised the role of men as tool-makers.9 The man-as-toolmaker was sexist rendering women as irrelevant to the autocatalysis process as non-tool-users. Hubbard explains that the man-as-toolmaker hypothesis with its romantic view of male labour was replaced by the man-as-hunter hypothesis as primatologists began to observe that many primates also make and use tools: Now the emphasis is on the human use of tools as weapons for hunting. This brings us to the myth of Man the Hunter, who had to invent not only tools, but also the social organization that allowed him to hunt big animals. He also had to

7 S. Rose, “’It’s Only Human Nature’: The Sociobiologist’s Fairyland” in Sociobiology Examined, A. Montagu (ed), Oxford University Press, Melbourne, 1980, 162. 8 R. Hubbard, M. Henifin & B. Fried (eds), Biological Woman - The Convenient Myth: A Collection of Feminist Essays and a Comprehensive Bibliography, Schenkman Publishing Co, Cambridge (Mass), 1982, 36 - 37. 9 F. Engels, Dialectics of Nature, (1883), “Chapter 9: The Part Played by Labour in the Transition from Ape to Man”, pp 1 – 9.

126 roam great distances and learn to cope with many and varied circumstances. We are told that this entire constellation of factors stimulated the astonishing and relatively rapid development of his brain that came to distinguish Man from his ape cousins.10 But man-as-hunter, was also a legacy of the broader sociol political and economic context with the emergence of “cultural relativism” reflecting the decline of colonialism.11 As Sperling explains the paradigm shifts in science and social theory reflected socio-political and economic change: This replacement of human “primitives” by nonhuman primates also relates to global political events of the postwar period: ‘With the progressive disappearance of human “primitives” as legitimate objects of knowledge and colonial rule, and with the discrediting of pre-war eugenics, Western anthropologists had to rethink the meaning and processes of the formation of “man”.’12 This “rethinking” of the formation of man was achieved through the new discipline of physical anthropology and specifically through the work of Washburn (and to some extent Zuckerman – discussed below): Washburn was part of a larger revolution in physical anthropology accompanied by the discovery of new fossils, dating techniques, experimental possibilities, and more recently, molecular . One of the revolution’s central objects was the small-brained South African human-ape, Australopithecus. ‘The discovery of the South African man-like apes, or small-

10 R. Hubbard, “Have Only Men Evolved” in R. Hubbard, M. Henifin & B. Fried (eds), Biological Woman - The Convenient Myth: A Collection of Feminist Essays and a Comprehensive Bibliography, Schenkman Publishing Co, Cambridge (Mass), 1982, 17 – 46, 37. 11 S. Sperling, “Baboons with Briefcases: Feminism, Functionalism, and Sociobiology in the Evolution of Primate Gender” (1991) 17(1) Signs 1, 11: ‘The diffusion of cultural relativism into all branches of modern social science had made it embarrassing and untenable to fit tribal groups into this early evolutionary slot. … In this new way of thinking, monkeys and apes became the ancestral group from which human institutions could be seen to have evolved.’ 12 S. Sperling, “Baboons with Briefcases: Feminism, Functionalism, and Sociobiology in the Evolution of Primate Gender” (1991) 17(1) Signs 1, 11, quoting from D. Haraway, Primate Visions: Gender, Race and Nature in the World of Modern Science, Routledge, New York, 1989.

127 brained men, has made it possible to outline the basic adaptation which is the foundation of the human radiation’ 91951b, p. 70).13 What Washburn did was devise the “man-the-hunter” hypothesis while at the same time giving birth to “physical anthropology” by applying population genetics to the study of primate evolution. Haraway claims that physical anthropology, primatology, and life sciences were profoundly influenced from the 1960s further forward by the man the hunter hypothesis put forward in various works by Washburn.14 So for example: Washburn and Avis (1958) developed the consequences of the hunting adaptation, including enlarged curiosity and mobility, pleasure in the hunt and kill, and new ideas about our relation to other animals. Perhaps, most important, ‘Hunting not only necessitated new activities and new kinds of cooperation but changed the role of the adult male in the group … The very same actions which caused man to be feared by other animals led to more cooperation, food sharing, and economic interdependence within the group’ (pp. 433-4). The human way of life had begun.15 Haraway details how the practice of science was influenced by Washburn as an intellectual mentor, author, and researcher.16 She notes that although Washburn rejected Sociobiology, his teaching, research, and hunter hypothesis were inextricably linked with a matrix of research culminating in the formal discipline of Sociobiology.17 So for example, Haraway observes that the so-called “feminist

13 D. Haraway, Simians, Cyborgs, and Women: The Reinvention of Nature, Routledge, New York, 1991, 37. 14 D. Haraway, Simians, Cyborgs, and Women: The Reinvention of Nature, Routledge, New York, 1991, 86. 15 D. Haraway, Simians, Cyborgs, and Women: The Reinvention of Nature, Routledge, New York, 1991, 38. 16 D. Haraway, Simians, Cyborgs, and Women: The Reinvention of Nature, Routledge, New York, 1991, 86. 17 D. Haraway, Simians, Cyborgs, and Women: The Reinvention of Nature, Routledge, New York, 1991, 37: ‘We must understand how Washburn could simultaneously be the co-author of the article on evolution of aggression, an opponent of Sociobiology, alternately a hero and villain for Robert Ardrey, a favourite of some Marxist feminists, and the teacher of both Sociobiological feminist Adrienne Zihlman and of Sociobiological sexist Irven De Vore. He is rightly all these things and unusually consistent and unified in his methods, theories and practices. Perhaps the key to Washburn is that he

128 Sociobiologists” (she calls the ‘daughters of Washburn’) responsible for exposing the blatant sexism in the man-as-hunter hypothesis and its subsequent shift to become the hunter-gatherer hypothesis, were in fact trained either directly or influenced by Washburn.18 As feminist Sociobiologists: They focus less on tools as such and more on the labour process, that is, on a new productive adaptation – gathering. They immediately place themselves within the recent population genetic developments of sociobiology. Their study explores a natural economy in terms of investment strategies for the increase of genetic capital.19 In other words, even though feminist Sociobiologists advanced the status of women in the Autocatalysis Model and paved the way for the potential elimination of sexist empiricism, they retained the functionalist bias and the ideologically conceived conceptual framework which means the hunter gatherer hypothesis remains sexist and ideological.20 Without taking the word of Haraway or Sperling for this assertion that

has produced a fundamental theory with tremendous implications for the practice of many sciences and for the rules of speculative evolutionary reconstruction. In Kuhnian terms, Washburn seems to have something basic to do with scientific paradigms.’ For instance Alexander refers to Washburn’s work in R.D. Alexander, “The Search for an Evolutionary Philosophy” (1971) 84 Proceedings of the Royal Society of Victoria 99, 104, citing S.L. Washburn, “Speculations on the inter-relations of the history of tools and biological evolution” (1959) 31 Human Biology 21. 18 D. Haraway, Simians, Cyborgs, and Women: The Reinvention of Nature, Routledge, New York, 1991, 86: ‘I think there is little question that Washburn’s professional power has had profound effects for his female and male students. … The chief intellectual legacy of the patriline of Washburn’s physical anthropology was the imperative to reconstruct not fixed structures, but ways of life – to tuyrn fossils into the underpinnings of living animals and to interpret living primates in carefully rule-bound ways as models for aspects of human ways of life. … The best-known product of practice in the Washburn patriline was the “man-the-hunter” hypothesis in the 1960s.’ 19 D. Haraway, Simians, Cyborgs, and Women: The Reinvention of Nature, Routledge, New York, 1991, 39: ‘Yet Tanner and Zhilman deliberately appropriate sociobiology for feminist ends. … Further, it is not easy to imagine what evolutionary theory would be like in any language other than classical capitalist political economy.’ 20 D. Haraway, “Primatology is Politics by Other Means: Women’s Place Is in the Jungle” in R. Blier (ed), Feminist Approaches to Science, Pergamon, New York, 1986, 77 – 118, in S. Sperling, “Baboons with Briefcases: Feminism, Functionalism, and Sociobiology in the Evolution of Primate Gender” (1991) 17(1) Signs 1, 3 – 4; and D. Haraway, Simians, Cyborgs, and Women: The Reinvention of Nature, Routledge, New York, 1991, 25.

129 the hunter-gatherer hypothesis remains unsubstantiated and is sexist and ideological, consider the evidence mounted below.

Critique of the Evidence for the Hunter Hypothesis

Apart from the concepts of sexual selection and parental investment (critiqued later in this chapter) there are just three sources of evidence for what has emerged as the hunter-gatherer hypothesis, which as it stands is indispensable to Sociobiology. These three sources are interpretations from fossils, analogies from extant hunter-gather societies (anthropology) and from primates (primatology) and other animals (zoology). Each of source of evidence is used in conjunction with the other sources to extrapolate and speculate as to the detail of the hunter-gatherer hypothesis.

Fossils To sustain the claim that humans are universally aggressive, competitive, territorial and behaviourally sex-dimorphic Sociobiology must establish that these characteristics were both present and necessary in an evolutionary sense during the Pleistocene epoch.21 The only evidence for this onerous evidentiary burden is the fossil record used in conjunction with anthropology based on “extant hunter-gatherer” societies, and primatology and zoology.22 Hubbard comments on the quality and paucity of the available evidence explaining that it is conducive to “artistic licence” conferring ‘maximum leeway’ for ‘investigator bias’.23 Given the sparse and paltry

21 M. Grene & D. Depew, The Philosophy of Biology: An Episodic History, Cambridge University Press, Cambridge, 2004, 338. Because, ‘… too little time has passed since the dawn of civilized life for adaptations to our present form of life to take hold.’ 22 The evidence for version of the hunter-gatherer hypothesis under consideration here is extremely weak. This is because, among other reasons, ‘the fossil evidence from great apes, the closest living relatives to humans, is almost non-existent’ and so there is no way to contrast early human ancestors with the early ancestors of gorillas: see further “Ancient ape forces rethink of family tree”, News in Science, ABC, reported by Michael Kahn, broadcasted on 23 August 2007. 23 R. Hubbard, “Have Only Men Evolved” in R. Hubbard, M. Henifin & B. Fried (eds), Biological Woman - The Convenient Myth: A Collection of Feminist Essays and a Comprehensive Bibliography, Schenkman Publishing Co, Cambridge (Mass), 1982, 17 – 46, 36 – 37: ‘This is a field in which facts are few and specimens are separated often by hundreds of thousands of years, so that maximum leeway exists for investigator bias. Almost all investigators have been men; it should therefore come as no

130 quality of this evidence, and the fact that behaviour is not inscribed in fossils, it must be said that the detective and forensic effort necessary to produce the hunter-gatherer hypothesis would rival that of the fictional Sherlock Holmes: Since the time when we and the apes diverged some fifteen million years ago, the main features of human evolution that one can read from the paleontological finds are the upright stance, reduction in the size of the teeth, and increase in brain size. But finds [at 38] are few and far between both in space and in time until we reach the Neanderthals some 70,000 to 40,000 years ago – a jaw or skull, teeth, pelvic bones, and often only fragments of them. From such bits of evidence as these come the pictures and statues we have all seen of that line of increasingly straight and upright, and decreasingly hairy and ape-like men marching in single file behind Homo sapiens, carrying their clubs, stones, or axes; or that other one of a group of beetle-browed and bearded hunters bending over the large slain animal they have brought into camp, while over on the side long-haired, broad-bottomed females nurse infants at their pendulous breasts.24 Crucial to Sociobiology is the claim that men hunted and women stayed at camp to nurture children and collect nuts and berries. Without this argument it is virtually impossible to sustain the universal human traits advanced by Sociobiology.25 So it is

surprise that what has emerged is the familiar picture of Man the Toolmaker. [at 37] This extends so far that when fragments estimated to be 250,000 years old turned up among the stone tools in the gravel beds of the Thames at Swanscombe and paleontologists decided that they are probably those of a female, we read that ‘The Swanscombe woman, or her husband, was a maker of hand axes …’ (Imagine the reverse: The Swanscombe man, or his wife, was a maker of axes …)’ 24 R. Hubbard, “Have Only Men Evolved” in R. Hubbard, M. Henifin & B. Fried (eds), Biological Woman - The Convenient Myth: A Collection of Feminist Essays and a Comprehensive Bibliography, Schenkman Publishing Co, Cambridge (Mass), 1982, 17 – 46, 37 – 38. Alternatively, and although agreeing with the arguments Hubbard makes, Haraway is critical of the factual nature of this passage: ‘Maybe, but what are the rules of interpretation that make this story unequivocally readable, and how do they differ from the rules for reading social and behavioural evolution? The main difference seems to be that there is now a non-gender-linked agreement about upright stance, so the reading is uncontested. But does the end of controversy mean that a story has achieved the status of fact, has escaped social determination, and has become objective? So suggests an innocent declarative sentence in the midst of scathing deconstruction.’ Per D. Haraway, Simians, Cyborgs, and Women: The Reinvention of Nature, Routledge, New York, 1991, 79. 25 S. Hrdy, The Women That Never Evolved, Harvard University Press, Cambridge (M), 1981, 5.

131 vital to determine whether australopithecines were aggressive, competitive, territorial, with a profound gendered division of labour, because they were mainly carnivorous, or at the least omnivorous. However, the problem with the fossil record is that: Almost by definition, behaviour is one thing that does not get fossilized, and so it might seem that, at best, one is going to spend one’s time grasping at straws, trying to infer hypothetical behaviour from those characteristics of animals that get fossilized.26 What little evidence can be mustered from fossil evidence suggests that australopithecines lived in places that were not covered by forest.27 Also, piles of bones, animal teeth and tool fragments have been found in African caves dated contemporaneously with australopithecines.28 Further, the size and shape of australopithecine teeth is inconclusive as to diet.29 This equivocal information is interpreted by Sociobiology as indicative of hunter-gatherer clans sharing the universal human behaviours of meat-eating, aggression, competitiveness, territoriality and sex-dimorphic behaviour. According to Haraway, this interpretation was achieved through Washburn’s functionalism: For Washburn population genetics meant that the process of evolution was the crucial problem, not the fossil results. Therefore, selection and adaptation were his central concepts. Adaptive traits could only be interpreted by understanding conditions or forces capable of producing the traits. The first problem that confronted the physical anthropologist was how to identify a “trait”. Washburn practised a new kind of theoretical and practical dissection of the body into “functional complexes”, whose meaning had to be sought in their action during life. For example, instead of measuring the nose, he analysed the forces in the central region of the face from chewing and growth. The task required model

26 M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 6. 27 M. Ridley, The Red Queen: Sex & the Evolution of Human Nature, Penguin Books, Ringwood, Victoria, 2000, 183, citing in the omitted endnote No 24 to this passage, (24) R.L. Smith, “Human Sperm Competition” in R.L. Smith (ed) Sperm Competition and the Evolution of Animal Mating Systems, Academic Press, Orlando, 1984, pp. 601 – 659. 28 S.J. Gould, Ever Since Darwin: Reflections in natural history, Penguin, Ringwood, Victoria, 1991, 241. 29 S.J. Gould, Ever Since Darwin: Reflections in natural history, Penguin, Ringwood, Victoria, 1991, 241-242.

132 experimental systems of living animals. Instead of setting up scales of evolution based on brain enlargement, he analysed regions of the body involved in adaptive transformations related to locomotion, eating, and similar functions. In sum, ‘The anatomy of life, of integrated functions, does not know the artificial boundaries which still govern the dissection of a corpse’ (1951a, p. 303).30 While “functionalism” is discussed shortly (under “Anthropology”), a crucial problem with it is that it reverses evolution. Function is important for survival and reproduction but it is essentially a ‘future consequence’ of evolution rather than an explanation of evolutionary history.31 In any case Gould dismisses the lavish interpretation of Sociobiology commenting on the bones and fragments found in caves: Ardrey’s claims for territoriality rest upon the assumption that our African ancestor Australopithecus africanus, was a carnivore. He derives his “evidence” from accumulations of bones and tools at the South African cave sites and the size and shape of teeth. The bone piles are no longer seriously considered; they are most likely the work of hyenas than of hominids.32 And with respect to teeth: Teeth are granted more prominence, but I believe that the evidence is equally poor if not absolutely contradictory. The argument rests upon relative size of grinding teeth (premolars and molars). Herbivores need more surface area to grind their gritty and abundant food. A. robustus, the supposed gentle herbivore, possessed grinding teeth relatively larger than those of its carnivorous relative, our ancestor A. Africanus. But A. robustus was a larger creature than A. africanus. …larger mammals must have differentially larger teeth than smaller relatives. … Invariably, I find that larger animals have relatively larger teeth – not because they eat different foods, but simply because they are larger. Moreover, the “small” teeth of A. africanus are not at all [at 242] diminutive. They are absolutely larger than ours (although we are three times as heavy), and

30 D. Haraway, Simians, Cyborgs, and Women: The Reinvention of Nature, Routledge, New York, 1991, 37. 31 S. Sperling, “Baboons with Briefcases: Feminism, Functionalism, and Sociobiology in the Evolution of Primate Gender” (1991) 17(1) Signs 1, 22. 32 S.J. Gould, Ever Since Darwin: Reflections in natural history, Penguin, Ringwood, Victoria, 1991, 241.

133 they are about as big as those of gorillas weighing ten times as much. The evidence of tooth size indicates to me that A. africanus was primarily herbivorous.33 As Barnett points out, ‘seed-eating lacks the drama of the chase’, and there is anthropological evidence and primate evidence to suggest instead that savannah occupiers were/are more often dependent on grass seeds for food than meat.34 Sometimes inferences have been drawn from the cave art of later (Palaeolithic) hominids.35 For instance, paintings of large animals are assumed to be evidence of big-game hunting. However, like any art, interpretation is open, and without more, 20th and 21st century interpretations of pre-ancient culture would say more about the interpreter than the culture of the artist. Furthermore, little is known about the interaction between australopithecines and the animals of that time. Clearly the fossil record is not persuasive and fossil evidence may be helpful only to the extent it can be corroborated by other “evidence”, but it is not determinative. Given the paucity of corroborating evidence (discussed next) it is in no way persuasive of the Sociobiological argument for human nature or its hunter-gatherer hypothesis.

Anthropology Sociobiology draws on two types of anthropology to support the hunter-gatherer hypothesis. Until the 1970s, the antecedents of Sociobiology drew mainly on “cultural anthropology” which provided an abundant source of information about the lifestyles of so-called extant hunter-gatherer societies together with many other types of society suitable for drawing inferences about “universal” behaviours.36 This is significant because Sociobiology drew on cultural anthropology to provide justifications for its key arguments including the man as tool-maker and man-as- hunter hypotheses, and was therefore drawing upon a discipline it considered to lack an appropriate

33 S.J. Gould, Ever Since Darwin: Reflections in natural history, Penguin, Ringwood, Victoria, 1991, 241-242. 34 S.A. Barnett, “Biological Determinism and the Tasmanian Native Hen” in Sociobiology Examined, A. Montagu (ed), Oxford University Press, Melbourne, 1980, 145. 35 S.J. Gould, Leonardo’s Mountain of Clams and the Diet of Worms: Essays on Natural History, London, Vintage, 1999, 162 -195. 36 R.D. Alexander, “The Search for a General Theory of Behaviour” (1975) 20 Behavioral Science 77, 92: ‘Again Sahlins’ model is an uncanny match for that of the evolutionary biologist’.

134 theoretical or conceptual framework because it was not obedient to evolutionary theory.37 However, cultural anthropology had by the mid-1970s incorporated many important evolutionary concepts which were the antithesis of Sociobiology. It follows that Sociobiology was selectively citing the evidence. To begin with, cultural anthropology made a distinction, in accord with evolutionary theory, between “closed and open programs of behaviour”.38 Insects, for example, were considered to be subject to closed programming because their behaviour was genetically predetermined. The evolutionary basis for this was straight-forward: … selection tends to favour the evolution of a closed program when there is a reliable relationship between a stimulus and only one correct response.39 Alternatively, in other species flexibility through open programming might be selected allowing for ‘opportunistic adjustment to rapid changes in the environment’, typically in humans and other species with ‘larger central nervous systems’ and long periods of parental care.40 Human behaviour was therefore seen in cultural anthropology as exogenetic based on sound evolutionary principles.41 This was corroborated by the direct evidence from the field because extensive anthropological research verified that: … ideas and customary practices can change with extreme rapidity, as when a group is converted from one religion or belief system to another, or follows the directives of a political or other leader. Because of the scale of these phenomena and the limited time span in which they occur, the boundless diversity and often extreme variableness of action as revealed in human history,

37 R.D. Alexander, “The Search for a General Theory of Behaviour” (1975) 20 Behavioral Science 77, 85 & 92. 38 D. Freeman, “Sociobiology: The ‘Antidiscipline’ of Anthropology” in Sociobiology Examined, A. Montagu (ed), Oxford University Press, Melbourne, 1980, 198-219, 201 – 203. 39 D. Freeman, “Sociobiology: The ‘Antidiscipline’ of Anthropology” in Sociobiology Examined, A. Montagu (ed), Oxford University Press, Melbourne, 1980, 198-219, 202. 40 D. Freeman, “Sociobiology: The ‘Antidiscipline’ of Anthropology” in Sociobiology Examined, A. Montagu (ed), Oxford University Press, Melbourne, 1980, 198-219, 202. 41 D. Freeman, “Sociobiology: The ‘Antidiscipline’ of Anthropology” in Sociobiology Examined, A. Montagu (ed), Oxford University Press, Melbourne, 1980, 198-219, 209.

135 since, say 5000 B.C., cannot possibly be explained by changes in gene frequencies.42 In stark contrast with Sociobiology, cultural anthropology had been loyal to evolutionary theory reaching the almost opposite conclusion that human nature was not subject to closed programming. Further, unlike Sociobiology with its complex maze of interdependent models, cultural anthropology had rival explanations for the rich diversity of human behaviour capable of satisfying Ockham’s razor.43 For instance: … languages possess what Steiner (1976:228) has called alternity; that is, they immensely facilitate the conceptualizing of possibilities not previously perceived and so generate new alternatives from which choices can be made. … Man had become a zoon phonanta, or language animal, and from the time of effective completion of this transformation, about 40,000 years ago, his evolutionary history has been mainly cultural.44 In other words the rich diversity of individual behaviour over such a short evolutionary time-frame was explained by the extra choices afforded by language. At the same time, Sociobiology has been unable to muster the evidence from either cultural or physical anthropology to prove its contention that individual or group behaviour in any culture is a consequence of an innate objective for reproductive success. Nor has it been possible for Sociobiology to prove the existence of universal human behaviours after 30 years of physical anthropology dedicated to that end. Despite the predictions that aggression, competition, and sex-dimorphic behaviour are human universals, it turns out that the anthropological evidence is mixed, and

42 D. Freeman, “Sociobiology: The ‘Antidiscipline’ of Anthropology” in Sociobiology Examined, A. Montagu (ed), Oxford University Press, Melbourne, 1980, 198-219, 209. 43 See for example the complexity of Hamilton’s algorithm in W.D. Hamilton, “The Genetical Evolution of Social Behaviour I” (1964) 7 Journal of Theoretical Biology 1, 6. S. Rothman, Lessons from the Living Cell: The Limits of Reductionism, McGraw-Hill, Sydney, 2002, 33. Ockham’s razor, ‘states that the simplest hypothesis is to be favoured over the more complex. Or, more accurately, it states that the theory that explains phenomena using the fewest principles is the most desirable, the most convincing, and the most beautiful.’ 44 D. Freeman, “Sociobiology: The ‘Antidiscipline’ of Anthropology” in Sociobiology Examined, A. Montagu (ed), Oxford University Press, Melbourne, 1980, 198-219, 207.

136 suggests to the contrary that human behaviour is anything but universal.45 Even the much touted division of labour is not so apparent or even common. In terms of the hunter-gatherer hypothesis, the broad consensus in anthropology is that most modern “pre-agricultural” societies are more accurately labelled as gatherer- hunters reflecting the fact that the dilly-bag or handbag was more important than the spear or arrow.46 This also tends to undermine another platform of Sociobiology, the over-emphasis on sexual selection because human sexuality is much more diverse than the competition depicted by Sociobiologists wherein individuals struggle for reproductive success: It is a truism that we find, similarly, immense cultural diversity. Sexual relationships are of central importance in Sociobiological theory. Sexual practices that are or have been held to be natural and normal in human communities include monogamy, polyandry, polygyny, and promiscuity; and in some societies homosexual conduct is or has been taken for granted.47 Also, Sociobiology draws selectively on cultural anthropology to justify kin selection theory and reciprocal altruism both of which are essential concepts in order for Sociobiology to maintain that altruism is genetic. Once again, the anthropology is inconsistent: For systematic observations of human conduct we have to turn to anthropology. Sahlins (1977) reviews this field: he finds ‘not a single system of marriage, postmarital residence, family organisation, interpersonal kinship, or ’ that conforms with Sociobiological ‘principles of kin selection’. Some of the diverse phenomena covered by his brief survey include infanticide as an

45 S.A. Barnett, “Biological Determinism and the Tasmanian Native Hen” in Sociobiology Examined, A. Montagu (ed), Oxford University Press, Melbourne, 1980, 135-157, 145: ‘ one of the reasons why man is difficult to pin down, or to force into a single mould, is that he has no one ecological niche. Our Pleistocene ancestors may have lived in open plains, but they contrived to have descendants capable of extraordinary diversity. Even before agriculture was invented, man had spread over most of the earth’s surface: gatherer-hunters can cope with the , tropical rainforest, hot deserts, and oceanic islands, as well as regions where now populations are densest.’ 46 S.A. Barnett, “Biological Determinism and the Tasmanian Native Hen” in Sociobiology Examined, A. Montagu (ed), Oxford University Press, Melbourne, 1980, 145. 47 S.A. Barnett, “Biological Determinism and the Tasmanian Native Hen” in Sociobiology Examined, A. Montagu (ed), Oxford University Press, Melbourne, 1980, 135-157, 145.

137 accepted and regular practice, the adoption of the children of dead enemies, and an explicit rejection of the importance of “blood” (genetical) ties.48 Because the cultural anthropology is inconsistent with sex-dimorphic behaviour and a rigid division of labour, Wilson and other Sociobiologists argue that the hunter- gatherer model would stand without it.49 On the contrary, however, this factor is crucial because it sustains the Sociobiological concepts of sexual selection, parental investment, universal sex-dimorphic behaviour, and a universal division of labour based on gender. Similarly, Ridley refuses to admit defeat: Even today, existing hunter-gatherer societies show enormous ecological and social variation, and they are probably an unrepresentative sample, because they mostly occupy deserts and forests, which were not man’s primary habitat. Even in the time of Homo erectus, let alone more modern men, there may have been specialized fishing, shore-dwelling, hunting, or plant-gathering cultures. Some of these may well have afforded opportunities for wealth accumulation and polygamy.50 But then there is physical anthropology which was responsible for developing the man-as-hunter hypothesis. By the time Sociobiology emerged in the 1970s, cultural anthropology had gone out of fashion as a source of evidence for both the nascent discipline and the Autocatalysis Model. It was replaced by physical anthropology with its emphasis on “function” as a consequence of the work of Washburn (not that he identified with human Sociobiology, which in fact he rejected).51 This is important because it is impossible to separate physical anthropology from its conclusions:

48 S.A. Barnett, “Biological Determinism and the Tasmanian Native Hen” in Sociobiology Examined, A. Montagu (ed), Oxford University Press, Melbourne, 1980, 135-157, 146. 49 Wilson states: “But these details [men hunted and women stayed home] are not essential to the autocatalysis model. They are added because they are displayed by modern hunter-gatherer societies.” E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, 293. 50 M. Ridley, The Red Queen: Sex & the Evolution of Human Nature, Penguin Books, Ringwood, Victoria, 2000, 185, citing in endnote No 28 to this passage: R.D. Alexander, “Evolutionary Approaches to Human Behaviour: What Does the Future Hold?” in L. Betzig, M. Borgehoff Mulder & P. Turke (eds) Human Reproductive Behaviour, Cambridge University Press, Cambridge, 1988, pp. 317 - 341; and R.D. Alexander interview. 51 S.L. Washburn, “Human and Animal Behaviour” in ?” in Sociobiology Examined, A. Montagu (ed), Oxford University Press, Melbourne, 1980, 254 - 282. At 256 Washburn criticises Sociobiology: ‘When applied to human behaviour, it renews the mistakes of social Darwinism, early evolutionism,

138 Telling stories of the human past is a rule-governed activity. Washburn’s science changed the rules of the game to require argument from the conditions of production.52 Its conclusions are based on a reductionist/functionalist epistemology. For this reason in particular, this type of evidence is questionable. It is questionable because function does not reflect evolutionary history. It is true that functional consequences ‘may influence genetic change in a population’s future’, however ‘they do not always reflect evolutionary history’.53 To be sure, function is ‘a future consequence, it is not the same as evolutionary history, because environments are not constant’.54 A vital problem for functionalist-reductionist models is that they view behaviour as an end-product of evolution, as “adaptive” rather than as a dynamic process that varies over time and within any given individual.55 Adaptation is a hallmark of Darwin’s theory of natural selection. It operates to “fit” organisms to their environments so that ‘disadvantageous social structures, like poorly designed morphological structures, will not survive for long.’ 56 However, Sociobiologists take this theory and apply it to explain human social practices. They say for example that altruism is clearly adaptive. Gould, Lewontin and Washburn among many others, all reject the proposition that human social practices are

eugenics, and racial interpretations of history. To defend its position sociobiology must (a) attack social science, (b) minimize the difference between learning and inheritance, and (c) postulate genes for a very odd assortment of behaviours – altruism, cheating, spite, deception, creativity, and reciprocity, to mention only a few.’ 52 D. Haraway, Simians, Cyborgs, and Women: The Reinvention of Nature, Routledge, New York, 1991, 39. 53 S. Sperling, “Baboons with Briefcases: Feminism, Functionalism, and Sociobiology in the Evolution of Primate Gender” (1991) 17(1) Signs 1, 22. 54 S. Sperling, “Baboons with Briefcases: Feminism, Functionalism, and Sociobiology in the Evolution of Primate Gender” (1991) 17(1) Signs 1, 22. 55 S. Sperling, “Baboons with Briefcases: Feminism, Functionalism, and Sociobiology in the Evolution of Primate Gender” (1991) 17(1) Signs 1, 6. 56 S.J. Gould, Ever Since Darwin: Reflections in natural history, Penguin, Ringwood, Victoria, 1991, 255-256.

139 necessarily adaptive.57 For example, Gould provides a worthy alternative to the Sociobiological explanation for altruistic behaviour: Human social behaviour is riddled with altruism; it is also clearly adaptive. Is this not a prima facie argument for direct genetic control? My answer is definitely “no,” and I can best illustrate my claim by reporting an argument I recently had with an eminent anthropologist. … Apparently, among some Eskimo peoples, social units are arranged as family groups. If food resources dwindle and the family must move to survive, aged grandparents willingly remain behind (to die) rather than endanger the survival of their entire family by slowing an arduous and dangerous migration. Grandparents with altruist genes [so the argument goes] increase their own fitness by their sacrifice, for they enhance the survival of close relatives sharing their genes. The explanation of my colleague is plausible, to be sure, but scarcely conclusive since an eminently simple, nongenetic explanation also exists: there are no altruist genes at all, in fact, no important genetic differences among Eskimo families whatsoever. The sacrifice of grandparents is an adaptive, but nongenetic, cultural trait. Families with no tradition for sacrifice do not survive for many generations. In other families, sacrifice is celebrated in song and story; aged grandparents who stay behind become the greatest heroes of the clan. Children are socialized from their earliest memories to the glory and honour of such sacrifice.58 Just because a practice is widespread does not mean that it is adaptive or genetic. Therefore, for these reasons, physical anthropology will merely supply important information about “function” but it is not by any means an exclusive explanation of human behaviour. The evidence from anthropology suggests that behaviour is too diverse to be adaptive or universal. In other words human behaviour is unlikely to fit “an evolutionary niche” as required by the hunter-gatherer hypothesis. Instead, human behaviour is rather more plausibly explained as predominately cultural and as such the diversity is

57 S.J. Gould, Ever Since Darwin: Reflections in natural history, Penguin, Ringwood, Victoria, 1991, 255-256; R.C. Lewontin, The Doctrine of DNA: Biology as Ideology, Penguin, Ringwood, Victoria, 2001, 98; and S.L. Washburn, “Human and Animal Behaviour” in ?” in Sociobiology Examined, A. Montagu (ed), Oxford University Press, Melbourne, 1980, 254 - 282. At 256. 58 S.J. Gould, Ever Since Darwin: Reflections in natural history, Penguin, Ringwood, Victoria, 1991, 256.

140 staggering. Therefore, primatology is crucial if Sociobiology is to maintain the hunter- gatherer hypothesis.

Primatology Sociobiology draws upon many branches of zoology in addition to primatology such as entomology.59 However, here the concern is solely with primatology for two reasons. First, the hunter-gatherer hypothesis is really only founded upon anthropology, primatology, and palaeontology (fossil evidence). To this extent animal evidence, other than primates, is simply too remote from human evolution in terms of behaviour to matter (e.g. fruit flies - Drosophila).60 In any case animal studies are indeterminate for various reasons.61 Second, this thesis concerns human as distinct from animal Sociobiology. It is important to grasp that anthropology and primatology are closely connected in terms of conceptual frameworks and models. Sperling points out that: Primatologists work in a variety of disciplines such as zoology and comparative psychology. Although a concern with human evolution has never been universal among primatologists, it is ubiquitous among anthropologists who study prosimians, monkeys, and apes.62

59 Like Darwin, sociobiologists see a logical parallel between animal behaviour, which they regard as irrefutably caused by sexual selection, and similar known behaviours in humans. Per M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 58 & 61. 60 R.C. Lewontin, The Doctrine of DNA: Biology as Ideology, Penguin, Ringwood, Victoria, 2001, 95 – 96. 61 D. S. Levine, “Sex and Human Values”, Review of Riane Eisler, Sacred Pleasure (Harper San Francisco, 1995), (1997) 42 Contemporary Psychology 1118, pp. 1118-1119. Also, Faust warns against analogising from animal behaviour albeit in less sophisticated terms: ‘Generalising from animals to humans is risky: what is true of baboons or ring-doves is not necessarily true of people. Animal research may be used to illustrate the sorts of processes that might be going on in humans, but it cannot be extrapolated directly from them to us’ in B. Faust, Apprenticeship in Liberty: Sex, Feminism and Sociobiology, Angus and Robertson, Sydney, 1991, 44. 62 S. Sperling, “Baboons with Briefcases: Feminism, Functionalism, and Sociobiology in the Evolution of Primate Gender” (1991) 17(1) Signs 1, 7, footnote 12.

141 Primatology like anthropology has always been about more than its subject matter and in the case of primatology, ‘studies of monkeys and apes have never been just about monkeys and apes’.63 For instance: The influence of these models on popular perceptions of the relationship of humans to animals and of the meanings of gender divisions has been profound. Non-human primates became the missing link in the evolutionary models of the late 1960s and the 1970s.64 Primatology replaced anthropology as the main source of data for modelling human evolution as colonialism ended. 65 This intersection between science and politics cannot be overstated. Political economy went to the heart of primatology and impacted on what was observed. As such there were two main pools of data corresponding with the two consecutive models that emerged. These were studies of savannah baboons because they were regarded as occupying a lifestyle closest to that of hunter-gatherer man, and chimpanzee studies because they are the closest genetically speaking to humans.66 Significantly:

63 S. Sperling, “Baboons with Briefcases: Feminism, Functionalism, and Sociobiology in the Evolution of Primate Gender” (1991) 17(1) Signs 1, 1. 64 S. Sperling, “Baboons with Briefcases: Feminism, Functionalism, and Sociobiology in the Evolution of Primate Gender” (1991) 17(1) Signs 1, 14. 65 S. Sperling, “Baboons with Briefcases: Feminism, Functionalism, and Sociobiology in the Evolution of Primate Gender” (1991) 17(1) Signs 1, 11: ‘The ubiquitous primate ancestral group now occupied a position like that of “tribal societies” in the evolutionary schemas of nineteenth-century anthropologists. The diffusion of cultural relativism into all branches of modern science had made it embarrassing and untenable to fit tribal groups into this early evolutionary slot.’ 66 S. Sperling, “Baboons with Briefcases: Feminism, Functionalism, and Sociobiology in the Evolution of Primate Gender” (1991) 17(1) Signs 1, 9: ‘… the “baboonization” of early human life in such models rested on a savannah ecological analogy: since pre-hominids evolved on the African savannah, presumably they would have shared certain selective pressures with modern baboon troops particularly for predator protection by large males. … baboon researchers had viewed male dominance as functioning to organize troop members hierarchically and to control overt aggression. … the other primary model … that of the chimpanzees studied by Goodall … was far preferable. Here the analogy rested on a phylogenetic relationship between chimp and human, which is immensely closer. This model emphasised the mother-offspring bond, sharing within the matrifocal family, the immigration of young females to new groups, birth spacing, and temporary sex bonding [which grounded the first wave of feminist primatology culminating in the woman the gatherer model].’

142 The savannah baboon model was compatible with, and tended to bolster, a Hobbesian view of human society, while the chimpanzee model [at 10] originally tended to reflect a more benign view, stressing the mother-infant pair and a more flexible, less hierarchical social structure. But many of the assumptions underlying the … models …were equivalent: ape and monkey behaviours were microcosms of human social behaviour and political life.67 Sperling claims that two theories of ‘ultimate causality have dominated primatological models for the origins of monkey, ape, and human gendered behaviour: structural- functionalism and sociobiology’.68 Washburn and Zuckerman were largely responsible for the former and the so-called feminist Sociobiologists the latter.69 The structural-functionalist model borrowed from British social anthropology sought to explain ‘the structural pattern of social systems to fulfil individual and societal’ needs.70 Field studies conducted under this model were in turn used to structure ideas about human behaviour, so for example, ‘male dominance was viewed as functioning to organize and control the troop in much the same way as political leadership

67 S. Sperling, “Baboons with Briefcases: Feminism, Functionalism, and Sociobiology in the Evolution of Primate Gender” (1991) 17(1) Signs 1, 9 – 10. 68 S. Sperling, “Baboons with Briefcases: Feminism, Functionalism, and Sociobiology in the Evolution of Primate Gender” (1991) 17(1) Signs 1, 2. 69 D. Haraway, Simians, Cyborgs, and Women: The Reinvention of Nature, Routledge, New York, 1991, 27, 38, 98 - 99. Haraway explains Zuckerman’s model at 28: ‘Animals, except when they come together to reproduce, are solitary because the basic model of life is competition for scarce resources. Reproductive association is fraught with danger because here competitive success requires the cooperation of other animals. Males fight to obtain the maximum number of reproductive opportunities. These elements Zuckerman retained from Darwin. They did not appear teleological to him in the same way as discussions of animal altruism and cooperation. … Males compete to accumulate the means of (re)production, through which alone they can increase their genetic capital in evolution. Females are the means of evolutionary production and the source of surplus value. As dominance became the medium of exchange among males and the measure of value, the political and natural economy of Hobbes’ Leviathan has found its twentieth-century biological expression. The economic order is exclusively physiological in all but human beings, where cultural ownership of females and property is also to be found.’ 70 S. Sperling, “Baboons with Briefcases: Feminism, Functionalism, and Sociobiology in the Evolution of Primate Gender” (1991) 17(1) Signs 1, 2.

143 functions in human cultures’.71 The overt sexism implicit in this model was criticized by many feminist Sociobiologists.72 However, these feminist primatologists retained the methodology of ultimate causality in a modified form.73 Their critique, did though, cause Sociobiology to replace the structuralist-functionalist model in the 1970s to become the dominant model: According to the Sociobiologists, behaviours always evolve to maximise the reproductive fitness of individuals (the relative percentage of genes passed on to future generations).74 Despite the different emphases both theories were united by functionalism as they sought to justify sex-dimorphic behaviour as adaptations to ‘past selective pressures in primate or hominid phylogeny’ or on the basis that the behaviours function to increase evolutionary/genetic fitness.75 Both functional phases in primatology over-played

71 S. Sperling, “Baboons with Briefcases: Feminism, Functionalism, and Sociobiology in the Evolution of Primate Gender” (1991) 17(1) Signs 1, 2. 72 D. Haraway, Simians, Cyborgs, and Women: The Reinvention of Nature, Routledge, New York, 1991, 39 & 98. Haraway critiques the work of Nancy Tanner and Adrienne Zihlman who were faithful to Washburn’s rules but sought to liberate women by excising the sexism. She is also critical of Hrdy’s primate work and she characterises Hrdy as one of the “daughters” of Washburn in an intellectual sense. She does, however, acknowledge Hrdy as the first person to analyse primates from the standpoint of both sexes. 73 D. Haraway, Simians, Cyborgs, and Women: The Reinvention of Nature, Routledge, New York, 1991, 39: ‘They focus less on tools as such and more on the labour process, that is, on a new productive adaptation – gathering. They immediately place themselves within the recent population genetic developments of sociobiology. Their study explores a natural economy in terms of investment strategies for the increase of genetic capital. Yet Tanner and Zhilman deliberately appropriate sociobiology for feminist ends. … Further, it is not easy to imagine what evolutionary theory would be like in any language other than classical capitalist political economy.’ 74 S. Sperling, “Baboons with Briefcases: Feminism, Functionalism, and Sociobiology in the Evolution of Primate Gender” (1991) 17(1) Signs 1, 3. 75 S. Sperling, “Baboons with Briefcases: Feminism, Functionalism, and Sociobiology in the Evolution of Primate Gender” (1991) 17(1) Signs 1, 3; and D. Haraway, “Primatology is Politics by Other Means: Women’s Place Is in the Jungle” in R. Blier (ed), Feminist Approaches to Science, Pergamon, New York, 1986, 77 – 118, quoted in S. Sperling, “Baboons with Briefcases: Feminism, Functionalism, and Sociobiology in the Evolution of Primate Gender” (1991) 17(1) Signs 1, 3 – 4: ‘Feminist stories … are not simply alternatives, but equally biased … To count as better stories, they have to offer a fuller, more coherent vision, one that allows the monkeys and apes to be seen more accurately. But what will count as more accurate, fuller, more coherent? Rarely will feminist contests for scientific meaning

144 genetic adaptionism, which of course invokes those criticisms already mentioned above in the consideration of anthropology. In short: The concept that evolution always produces ideal solutions ignores many other factors that may have had varying degrees of importance in a species’ history: random processes, phylogenetic inertia, environmental change, and the random nature of mutation. The zoologist Hans Kummer noted: ‘Discussions of adaptiveness sometimes leave us with the impression that every trait observed in a species must by definition be ideally adaptive, whereas all we can say with certainty is that it must be tolerable, since it did not lead to extinction.’76 Adaption tends to rule out other plausible explanations for primate behaviour. Still, this problem doesn’t necessarily undermine the capacity for primatology to supply evidence for the hunter-gatherer hypothesis. What does, however, undermine that hypothesis is the relevance of primatology. Relevance, or the irrelevance, of primatology is salient for a number of reasons. Even Darwin was aware of the remoteness of using contemporary primates to predict what humans may have been like hundreds of thousands of years ago.77 Wilson, too, is reluctant to hang his model on such comparisons. He warns: What can we deduce from these facts about the life of early man? Before an answer is attempted, it should be noted that very little can be inferred directly from comparisons with other living primates. Geladas and Baboons, the only open-country forms, are primarily vegetarian.78 Furthermore, Zuckerman placed the following important caveat on primate evidence: work by replacing one paradigm with another, by proposing and successfully establishing fully alternative accounts and theories. Rather, as a form of narrative practice or story-telling, feminist practice in primatology has worked more by altering a “field” of stories or possible explanatory accounts, by raising the cost of defending some [at 4] accounts, by destabilizing the plausibility of some strategies or explanations.’ 76 S. Sperling, “Baboons with Briefcases: Feminism, Functionalism, and Sociobiology in the Evolution of Primate Gender” (1991) 17(1) Signs 1, 22. 77 C. Darwin, The Descent of Man and Selection in Relation to Sex, (2nd ed, 1882) John Murray, London, 1871, 199. Darwin made the important distinction between using simians as they were in his time and those of the past to draw analogies about universal mammalian behaviour: ‘But we must not fall into the error of supposing that the early progenitor of the whole Simian stock, including man, was identical with, or even closely resembled, any existing ape or monkey.’ 78 E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, 292.

145 Only the behaviour common to all apes and monkeys can be regarded as representing a social level through which man once passed in the prehuman stages of his development.79 However, this caveat did not prevent sexist and political ideas permeating the research and nor does it preclude questionable comparison. To begin with, Hubbard gives two very good reasons to be sceptical about drawing analogies from primates to argue that particular behaviours are universal: For one thing, different species, different species of primate vary widely in the extent to which the sexes differ in both their anatomy and their social behaviour, so that one can find examples of almost any kind of behaviour one is looking for by picking the appropriate animal. For another, most scientists find it convenient to forget that present-day apes and monkeys have had as long an evolutionary history as we have had, since the time we and they went our separate ways many millions of years ago.80 Gould too makes a related but very important point: If the overall genetic distance [between humans and primates] is so small, then what has caused such divergence in form and behaviour? Under the atomistic notion that each organic trait is controlled by a single gene, we cannot reconcile our anatomical dissimilarities … for many differences in form and function would have to reflect many differences in genes. The answer must be that certain kinds of genes have far-reaching effects – they must influence the entire organism, not just single traits.81 This argument is countered by claiming that the variation can be explained by slight to those genes responsible for regulating development.82 This is a variation

79 D. Haraway, Simians, Cyborgs, and Women: The Reinvention of Nature, Routledge, New York, 1991, 27, quoting from Solly Zuckerman 1932, 26. However, Haraway adds that Zuckerman made the fatal universalist assumption that the family unit was the origin of society. 80 R. Hubbard, “Have Only Men Evolved” in R. Hubbard, M. Henifin & B. Fried (eds), Biological Woman - The Convenient Myth: A Collection of Feminist Essays and a Comprehensive Bibliography, Schenkman Publishing Co, Cambridge (Mass), 1982, 17 – 46, 40. 81 S.J. Gould, Ever Since Darwin: Reflections in natural history, Penguin, Ringwood, Victoria, 1991, 53. 82 S.J. Gould, Ever Since Darwin: Reflections in natural history, Penguin, Ringwood, Victoria, 1991, 53.

146 on Wilson’s “multiplier effect”83, which is conveniently shortened by Faust in the following terms: Relatively small differences falling at the genetic end of the continuum may be elaborated into relatively large differences at the social end. Sociobiologists call this process the multiplier effect.84 Faust argues correctly that the multiplier effect has a crucial weakness in that it treats the effect as uni-directional and therein privileging genes.85 In other words, the multiplier effect is contrary to orthodox science because the evidence here is that the genes responsible for development rely strictly on specific environmental triggers and inputs to function.86 In other words it is futile to reduce physiology to one aspect of a

83 E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, 9 – 10: ‘Social organization is the class of phenotypes furthest removed from the genes. It is derived jointly from the behaviour of individuals and the demographic properties of the population, both of which are themselves highly synthetic properties. A small evolutionary change in the behaviour pattern of individuals can be amplified into a major social effect by the expanding upward distribution of the change into multiple facets of social life. This phenomenon can be referred to as the multiplier effect. Multiplier effects can speed social evolution still more when an individual’s behaviour is strongly influenced by the particularities of its social experience. This process, called socialization, becomes increasingly prominent as one moves upward phylogenetically into more intelligent species, and it reaches its maximum influence in the higher primates. Although the evidence is still largely inferential, socialization appears to amplify phenotypic differences among primate species.’ 84 B. Faust, Apprenticeship in Liberty: Sex, Feminism and Sociobiology, Angus and Robertson, Sydney, 1991, 55. 85 B. Faust, Apprenticeship in Liberty: Sex, Feminism and Sociobiology, Angus and Robertson, Sydney, 1991, 56: ‘… cultural influences can reach back across the continuum to inhibit the expression of genetic processes. Testosterone and oxytocin research shows that biology influences behaviour, but in fact behaviour also influences biology. … The proper image for the interaction of biology with culture is a complex circular system or several interlocking systems in which there is no identifiable beginning or ending but a continuous process. There, are however, two nodes through which most systems of behaviour must pass: the hypothalamo-pituitary axis, which is primarily biological, and the overwhelming cultural node of language. ‘Elaboration’ is more appropriate than ‘multiplication’ to describe genetic contributions to behaviour, social organisation and culture. … but we must remember that interaction along the continuum is two-way. Aggression is one of four bona fide sex differences established by psychological research to date, but it is a prime example of the reciprocal interaction between biology and behaviour.’ 86 R.C. Lewontin, The Doctrine of DNA: Biology as Ideology, Penguin, Ringwood, Victoria, 2001, 26 – 28, 46 – 48, & 63 – 64.

147 complex and dynamic process – let alone behaviour.87 Even if it were possible to control for environmental effects, the only way genes responsible for behavioural differences could be isolated, would be by conducting unethical hybridization experiments involving the mixing of humans and primates and then testing for differences.88 Gould reinforces the argument made by Hubbard above ‘that most scientists find it convenient to forget that present-day apes and monkeys have had as long an evolutionary history as we have had, since the time we and they went our separate ways many millions of years ago’.89 He points out that Sociobiology (deliberately) confuses homologous traits with analogous traits when only the former can be relied upon to draw comparisons: Evolutionists divide the similarities between two species into homologous features shared by common descent and a common genetic constitution, and analogous traits evolved separately. Comparisons between humans and other animals lead to casual assertions about the genetics of our behaviour only if they are based on homologous traits. But how can we know whether similarities are homologous or analogous? It is hard to differentiate even when we deal with concrete structures, such as muscle and bones. In fact, most classical arguments in the study of phylogeny involve the confusion of homology and analogy, for analogous structures can be strikingly [at 241] similar (we call this phenomenon evolutionary convergence).90

87 I. Kennelly, S. Merz, & J. Lorber, “What is Gender?” (2001) 66(4) American Sociological Review 598. 88 S.J. Gould, Ever Since Darwin: Reflections in natural history, Penguin, Ringwood, Victoria, 1991, 54 – 55. And there is a current push for experiments of this calibre, see “The Chimeric Brain”, All in the Mind, ABC Radio National, broadcasted on 9 December 2006. pp. 1- 18. 89 R. Hubbard, “Have Only Men Evolved” in R. Hubbard, M. Henifin & B. Fried (eds), Biological Woman - The Convenient Myth: A Collection of Feminist Essays and a Comprehensive Bibliography, Schenkman Publishing Co, Cambridge (Mass), 1982, 17 – 46, 40. 90 S.J. Gould, Ever Since Darwin: Reflections in natural history, Penguin, Ringwood, Victoria, 1991, 240-241. He continues, at 241: ‘How much harder it is to tell when similar features are only the outward motions of behaviour! Baboons may be territorial; their males may be organized into a dominance hierarchy – but is our quest for Lebensraum and the hierarchy of our armies an expression of the same genetic makeup or merely an analogous pattern that might be purely cultural in origin?’.

148 Even if the evidence was all homologous it would not support the hunter-gatherer hypothesis. Despite the heavy reliance by Sociobiology on primate evidence, the vast bulk of it runs contrary to the hunter-gatherer hypothesis and many of its assumptions such as dominance hierarchies and sexual divisions of labour. The primatology stands ultimately as evidence against Sociobiology notwithstanding the structural bias inherent in that primatology: Scientists now criticize many former assertions about reliably differentiating behavioural dimorphisms across primate phyla as based on incomplete data. The more we know about nonhuman primate behaviour, the more examples of intraspecific and interspecific variety emerge. Several common functionalist assertions about gender differences now appear to be unsubstantiated. … Barbara Smuts … finds no consistent gender difference in frequencies of aggression in numerous primate species.91 In addition: Another recently challenged functionalist theory about nonhuman primates is that social dominance is highly correlated with reproductive success and that dominance behaviours have been selected over phylogenetic histories of species. Irwin Bernstein, in reviewing data from numerous primate studies, suggests that there is little association between dominance rank and reproductive success. Fedigan summarizes the whole era of reports on male copulations, mating success, consortship, and male dominance and concludes that none of the measures provides [at 21] a convincing picture of dominant males monopolising estrous females.92

See also R.C. Lewontin, The Doctrine of DNA: Biology as Ideology, Penguin, Ringwood, Victoria, 2001, 95. 91 S. Sperling, “Baboons with Briefcases: Feminism, Functionalism, and Sociobiology in the Evolution of Primate Gender” (1991) 17(1) Signs 1, 20, citing “Gender Aggression and Influence” in B. Smuts (ed), Primate Societies, University of Chicago Press, Chicago, 1986, 400 – 412. 92 S. Sperling, “Baboons with Briefcases: Feminism, Functionalism, and Sociobiology in the Evolution of Primate Gender” (1991) 17(1) Signs 1, 20 – 21, citing Bernstein, “The Evolution of Nonhuman Primate Behaviour”; and Fedigan, “Dominance and reproductive Success in Primates”.

149 Clearly, these studies are showing that aggression competition and dominance are not as important to reproductive success as Sociobiologists have alleged and predicted.93 Unlike human beings who have an extremely complex and marked division of labour layered by complex material and historical forces and ‘embroidered with symbolic meanings unavailable to animals’, primates have no comparable institution since each individual animal ‘performs subsistence tasks in approximately the same way as the others, consuming on the spot what is individually foraged’.94 Therefore, a central plank of Sociobiology – the universal sexual division of labour – is more likely a myth: There is little or no sexual division in subsistence labour among nonhuman primates, one fact among the many others that makes them strikingly different from human beings. All nonhuman primates forage for themselves and there is little sharing of food, with a few exceptions, such as the occasional opportunistic hunting by some male chimps and baboons.95 Where there has been some very general link between sex-dimorphism and behaviour is with respect to social privileges (such as access to grooming or preferred foods) rather than females for reproduction.96 Otherwise the primatology tends to suggest ‘an enormous range of variations in intraspecific and interspecific behaviour that defies neat classificatory schemas, and even less likely, “universals”.97 After reviewing the three sources of evidence for the hunter-gatherer hypothesis it quickly becomes clear that Sociobiology is story-telling based on a mix of hope, ideology, and speculation. The evidence for it simply isn’t there. On the contrary what little relevant and useful information is available suggests an entirely different and more plausible story – one that assumes human behaviour is largely the product of

93 S. Sperling, “Baboons with Briefcases: Feminism, Functionalism, and Sociobiology in the Evolution of Primate Gender” (1991) 17(1) Signs 1, 21. 94 S. Sperling, “Baboons with Briefcases: Feminism, Functionalism, and Sociobiology in the Evolution of Primate Gender” (1991) 17(1) Signs 1, 11. 95 S. Sperling, “Baboons with Briefcases: Feminism, Functionalism, and Sociobiology in the Evolution of Primate Gender” (1991) 17(1) Signs 1, 21. 96 S. Sperling, “Baboons with Briefcases: Feminism, Functionalism, and Sociobiology in the Evolution of Primate Gender” (1991) 17(1) Signs 1, 21. 97 S. Sperling, “Baboons with Briefcases: Feminism, Functionalism, and Sociobiology in the Evolution of Primate Gender” (1991) 17(1) Signs 1, 21.

150 open-programming, learning, culture, individual choice, and environmental opportunities/limits. Still there are other types of evidence and arguments for Sociobiology to consider: sexual selection, parental investment, kin selection theory, reciprocal altruism, and the various studies conducted under the broad banners of evolutionary psychology, brain science, and endocrinology.

Critique of the “paramount” goal of reproductive success

Sexual Selection Sociobiology predicts that all human behaviour can be explained according to the theory of evolution: “the human mind has adapted to its environment” and “an individual is programmed to reproduce their genes into the next generation”.98 Adaptation has just been considered and here the focus is on the second proposition - an individual exists in order to achieve reproductive success.99 To support this proposition that humans exist to reproduce, Sociobiologists place an unusual emphasis on “sexual selection”, an important form of natural selection.100 Darwin also differentiated between “natural selection” and “sexual selection”, and saw sexual selection as the main driving force behind human evolution, imbuing the concept with sexist Victorian values.101 Similarly, the Sociobiological emphasis on sexual selection

98 “The Descent of Man, Episode 1: The Moral Animal”, The Science Show, ABC Radio National. 99 R.D. Alexander, “The Search for a General Theory of Behaviour” (1975) 20 Behavioral Science 77, 96; R. Dawkins, The Selfish Gene, New Edition (1990), Oxford University Press, Oxford, 1976, v; W.D. Hamilton, “The Genetical Evolution of Social Behaviour I” (1964) 7 Journal of Theoretical Biology 1, 16; M. Ridley, The Red Queen: Sex & the Evolution of Human Nature, Penguin Books, Ringwood, Victoria, 2000, 9; and E.O. Wilson, Sociobiology: The New Synthesis, Harvard University Press, Cambridge, 1976, 3. 100 C. Colby, “Introduction to Evolutionary Biology”, Version 2, Updated 7 January 1996, The Talk Origins Archive, pp. 1 – 31, at 4 – 14; S. Rothman, Lessons from the Living Cell: The Limits of Reductionism, McGraw-Hill, Sydney, 2002, 7; and M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 10 – 11. 101 C. Darwin, The Descent of Man and Selection in Relation to Sex, (2nd ed, 1882) John Murray, London, 1871, 605, 614, & 563 - 564. Darwin distinguished sexual selection and natural selection at

151 keeps this sexist tradition alive treating it as more important to human evolution than natural selection.102 Sociobiologists claim unequivocally that all human behaviour is directed at achieving reproductive success and with it human behaviour is sexually dimorphic. There are at least five objections to Sociobiology’s conception of sexual selection and its key prediction of universal innate sex-dimorphic behaviour. Firstly, it severely over-emphasises sexual selection. True, without sexual selection human beings would not evolve.103 But evolution is about more than sexual selection because, although selection takes place at the level of the individual, evolutionary theory recognises various other mechanisms that either increase genetic diversity or reduce genetic diversity in the population as a whole. Those mechanisms that can lead to greater genetic diversity are (1) mutation, (2) recombination, and (3) gene flow; while those mechanisms that can act to reduce genetic diversity are (1) natural

614: ‘Sexual selection depends on the success of certain individuals over others of the same sex, in relation to the propagation of the species; whilst natural selection depends on the success of both sexes, at all ages, in relation to the general conditions of life.’ His Victorian sexism is evident in many places, and among them this passage at 563 – 564: ‘Difference in the Mental Powers of the two Sexes.- With respect to differences of this nature between man and woman, it is probable that sexual selection has played a highly important part. … Woman, owing to her maternal instincts, displays these qualities towards her infants in an eminent degree; therefore it is likely that she would often extend them towards her fellow-creatures. Man is the rival of other men; he delights in competition, and this leads to ambition which passes too easily into selfishness. These latter qualities seem to be his natural and unfortunate birthright. It is generally admitted that with woman the powers of intuition, of rapid perception, and perhaps of imitation, are more strongly marked than in man; but some, at least, of these faculties are [at 564] characteristic of the lower races, and therefore of a past and lower state of civilisation. The chief distinction in the intellectual powers of the two sexes is shewn by man's attaining to a higher eminence, in whatever he takes up, than can woman- whether requiring deep thought, reason, or imagination, or merely the use of the senses and hands.’ 102 M. Ridley, The Red Queen: Sex & the Evolution of Human Nature, Penguin Books, Ringwood, Victoria, 2000, 4 – 5: ‘… it is impossible to understand human nature without understanding how it evolved; and that it is impossible to understand how it evolved without understanding how human sexuality evolved. For the central theme of our evolution has been sexual. … reproduction is the sole goal for which human beings are designed; everything else is a means to that end. … I know of no other way that human nature can have developed, [at 5] except by evolution, and there is now overwhelming evidence that there is no other way for evolution to work except by competitive reproduction.’ 103 R.D. Alexander, “The Search for an Evolutionary Philosophy” (1971) 84 Proceedings of the Royal Society of Victoria 99, 105.

152 selection, and (2) genetic drift.104 Sexual selection is just one, albeit very important, form of “natural selection”.105 It can be less significant than the other form of natural selection “survival” which removes unfit variants as they occur by mutation.106 Sociobiology places extraordinary emphasis on sexual selection because it must justify a controversial but key “prediction” - that there are innate behavioural differences between human males and females.107 This is accomplished linking sexual selection with the hunter-gatherer hypothesis and depicting a sexual division of labour as a universal behavioural pattern. 108 For example Wilson alleges: Fox (1972), following a suggestion by Chance (1962), has argued that sexual selection was the auxiliary motor that drove human evolution all the way to the Homo grade. … The selection would be enhanced by the constant mating

104 C. Colby, “Introduction to Evolutionary Biology”, Version 2, Updated 7 January 1996, The Talk Origins Archive, pp. 1 – 31, at 4 – 14; S. Rothman, Lessons from the Living Cell: The Limits of Reductionism, McGraw-Hill, Sydney, 2002, 7; and M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 10 – 11. 105 S.J. Gould, Ever Since Darwin: Reflections in natural history, Penguin, Ringwood, Victoria, 1991, 116: sexual selection is a limiting factor even though, ‘The biological function of sex … is to promote variability by mixing genes of two or more individuals’. This is because, ‘Major evolutionary change cannot occur unless organisms maintain a large store of genetic variability. The creative process of natural selection works by preserving favourable genetic variants from an extensive pool.’ 106 C. Colby, “Introduction to Evolutionary Biology”, Version 2, Updated 7 January 1996, The Talk Origins Archive, pp. 1 – 31, at 4: ‘Natural selection is the only mechanism of adaptive evolution; it is defined as differential reproductive success of pre-existing classes of genetic variants in the gene pool. The most common action of natural selection is to remove unfit variants as they arise via mutation. In other words, natural selection usually prevents new alleles from increasing in frequency. This led a famous evolutionist, George Williams, to say, “Evolution proceeds in spite in spite of natural selection”.’ 107 K.D. Wells, “An Alternative to Sociobiology” (1993) 43(9) Bioscience 646, at 646, citing N. Eldridge & M. Grene, Interactions: The Biological Context of Social Systems, Columbia University press, New York, 1992. 108 E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, 297: ‘Since positive feedback occurs between these more sophisticated social traits and breeding success, social evolution can proceed indefinitely without additional selective pressures from the environment.’ And R. Hubbard, “Have Only Men Evolved” in R. Hubbard, M. Henifin & B. Fried (eds), Biological Woman - The Convenient Myth: A Collection of Feminist Essays and a Comprehensive Bibliography, Schenkman Publishing Co, Cambridge (Mass), 1982, 17 – 46, 36: Another argument provided for the evolution of sex-dimorphic behaviour is the “man as toolmaker” hypothesis.

153 provocation that arises from the female’s nearly continuous sexual receptivity. Because of the existence of a high level of cooperation within the band, a legacy of the original Australopithecus adaptation, sexual selection would tend to be linked with hunting prowess, leadership, skill at tool making, and other visible attributes that contribute to the success of the family and the male band. Aggressiveness was constrained and the old forms of overt primate dominance replaced by complex social skills. Young males found it profitable to fit into the group, controlling their sexuality and aggression and awaiting their turn at leadership. As a result the dominant male in hominid societies was most likely to possess a mosaic of qualities that reflect the necessities of compromise; as Robin Fox expressed it, the male was “controlled, cunning, cooperative, attractive to the ladies, good with children, relaxed, tough, eloquent, skillfull, knowledgeable, and proficient in self-defence and hunting.”109 In fact, the sexual division of labour is axiomatic in the Sociobiology literature.110 Sociobiology consistently maintains this view of divided and hierarchical gender relations.111 So what is readily explained elsewhere as a socially constructed institution (beyond child-bearing and breast-feeding)112 is reduced instead to a

109 E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, 297. 110 Ridley quotes Wilson (On Human Nature, Harvard University Press, Cambridge (M), 1978) to make this point: ‘One of the most persistent of those universals is sexual role-playing. As Wilson put it: “In diverse cultures men pursue and acquire, while women are protected and bartered. Sons sow wild oats and daughters risk being ruined. When sex is sold, men are usually the buyers.”’ Per M. Ridley, The Red Queen: Sex & the Evolution of Human Nature, Penguin Books, Ringwood, Victoria, 2000, 266. 111 R.D. Alexander, “The Search for a General Theory of Behaviour” (1975) 20 Behavioral Science 77, 89; M. Ridley, The Red Queen: Sex & the Evolution of Human Nature, Penguin Books, Ringwood, Victoria, 2000; R.L. Trivers, “Parental Investment and Sexual Selection” in B. Campbell (ed), Sexual Selection and the Descent of Man 1871-1971, Aldine Publishing Co, Chicago, 1972, pp. 136 – 179, 145 & 146; and E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, 277 – 278. 112 S. Firestone, The Dialectic of Sex: The case for Feminist Revolution, Granada Publishing, London, 1972; and R. Hubbard, M. Henifin & B. Fried (eds), Biological Woman - The Convenient Myth: A Collection of Feminist Essays and a Comprehensive Bibliography, Schenkman Publishing Co, Cambridge (Mass), 1982.

154 biological construct using sexual selection.113 This is because sexual selection is believed to operate on those traits that contribute to an organism’s chances of reproduction (as opposed to its survival) such as those that might increase ability to compete with rivals of its own sex for access to a mate or the ability to attract mates.114 This, it is claimed, inevitably produces the sexual division of labour.115 In other words the sexual division of labour is allegedly caused by “male competition” and “female choice”.116 It is also said to be a product of competition between the sexes and the only justification for all this ultimately comes from a plausibility argument: Trivers’ “parental investment theory”.117 This argument holds that humans fit the paradigm criteria for incommensurate parental investment in their young in the sense that the male invests relatively little in the act of copulation compared with the

113 M. Ridley, The Red Queen: Sex & the Evolution of Human Nature, Penguin Books, Ringwood, Victoria, 2000, 185: ‘If the local hunter-gathering economy favoured it, men were capable of being polygamous and women were capable of joining harems over the protests of the preceding co-wives. If not, then men were capable of being good fathers and women jealous monopolizers. Mankind, in other words, has many potential mating systems, one for each circumstance.’ 114 R.D. Alexander, “The Search for an Evolutionary Philosophy” (1971) 84 Proceedings of the Royal Society of Victoria 99, 105. 115 S.J. Gould, Ever Since Darwin: Reflections in natural history, Penguin, Ringwood, Victoria, 1991, 240, commenting on Tiger and Fox’s The Imperial Animal: ‘Men did the hunting; women stayed home with the kids. Men are aggressive and combative, but they also form strong bonds among themselves that reflect the ancient need for cooperation in the killing of big game and now find expression in touch football and rotary clubs. Women are docile and devoted to their own children. They do not form intense bonds among themselves because their ancestors needed none to tend their homes and their men: sisterhood is an illusion.’ 116 Darwin divided sexual selection into “male combat” and “female choice” in Chapter 19 of Descent of Man (C. Darwin, The Descent of Man and Selection in Relation to Sex, (2nd ed, 1882) John Murray, London, 1871, accessed online at http://pages.britishlibrary.net/charles.darwin2/van_wyhe.html on 23 April 2006). In terms of Sociobiology see M. Ridley, The Red Queen: Sex & the Evolution of Human Nature, Penguin Books, Ringwood, Victoria, 2000, 129 - 137 & 156 – 161; and generally R.L. Trivers, “Parental Investment and Sexual Selection” in B. Campbell (ed), Sexual Selection and the Descent of Man 1871-1971, Aldine Publishing Co, Chicago, 1972, pp. 136 – 179. 117 R.L. Trivers, “Parental Investment and Sexual Selection” in B. Campbell (ed), Sexual Selection and the Descent of Man 1871-1971, Aldine Publishing Co, Chicago, 1972, pp. 136 – 179; and R. Dawkins, The Selfish Gene, Oxford University Press, Oxford, 1976, 177: ‘… it is still possible that human males in general have a tendency towards promiscuity, and females a tendency toward monogamy, as we would predict on evolutionary grounds.’

155 female.118 Taken together as mutually reinforcing concepts sexual selection and parental investment are premised upon a struggle where individuals seek to maximise their individual reproductive success and where sexes battle so that males try to ‘get away with as much as they could’ while minimising their parental investment, and females ‘trying to stop them or otherwise get compensation’.119 Therefore, the overemphasis of sexual selection in Sociobiology is a legacy of Darwin’s Victorian sexism and justified today using a combination of Trivers’ “parental investment theory”, sexist anthropology, and analogies from sexist primate and zoological observations. For this reason the Sociobiological treatment of sexual selection is dubious given that there are more plausible alternative explanations for human gender, given the relative standing of the evidence (anthropology and primatology), and given the plausibility of Trivers’ model critiqued shortly below in this chapter. A second argument against the way sexual selection is used in Sociobiology concerns the conflation between sex-dimorphism and sex-dimorphic behaviour. Many other evolutionists and social theorists reject that there is such a thing as sex-dimorphic behaviour.120 While other biologists make the point that it is incorrect to confuse sex- dimorphic features with gendered behaviour, because the former are physiological and

118 R.L. Trivers, “Parental Investment and Sexual Selection” in B. Campbell (ed), Sexual Selection and the Descent of Man 1871-1971, Aldine Publishing Co, Chicago, 1972, pp. 136 – 179. M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 58: ‘Because the human species so neatly fits the initial conditions [viz an initial differential in sex-cell size and pro-longed gestation (or lots of sperm, few eggs, and maternal child-rearing)] the sociobiologists have expected human sexual behaviour broadly to fit the general pattern [observed in other animals], and they feel that they have not been disappointed.’ 119 M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 58; and using the jargon of R.L. Trivers, “Parental Investment and Sexual Selection” in B. Campbell (ed), Sexual Selection and the Descent of Man 1871-1971, Aldine Publishing Co, Chicago, 1972, pp. 136 – 179. 120 For example evolutionists such as Lewontin and Gould (S.J. Gould, Leonardo’s Mountain of Clams and the Diet of Worms: Essays on Natural History, London, Vintage, 1999, 263-264, and R.C. Lewontin, The Doctrine of DNA: Biology as Ideology, Penguin, Ringwood, Victoria, 2001, at 14 & 94.). For example social theorists such as Hubbard et al and Mathews (R. Hubbard, M. Henifin & B. Fried (eds), Biological Woman - The Convenient Myth: A Collection of Feminist Essays and a Comprehensive Bibliography, Schenkman Publishing Co, Cambridge (Mass), 1982; and J.J. Mathews, Good and Mad Women: The Historical Construction of Femininity in Twentieth-Century Australia, St Leonards (NSW), Allen & Unwin, 1984.).

156 the latter social.121 Sociobiologists exaggerate behavioural differences between men and women treating them as an extension of sex-dimorphism for the purposes of reproduction.122 In other words, physiological differences between men and women mean there will also be behavioural differences and both types of difference are reduced to reproductive function.123 Although Sociobiologists acknowledge the remoteness between behaviour and genotype they insist that the former is a function of the latter, ‘behaviour springs from morphology and physiology, which are by definition, therefore closer to gene action’.124 This means that the argument is a circular one. It says in effect: Even though behaviour is only indirectly linked to genes, because all behaviour is ultimately directed at reproductive success it must be genetic. This is hardly convincing given the strength of alternative arguments that gender is predominately performative and socially constructed.125 A third argument against the Sociobiological characterisation of sexual selection is the objection to reducing all human behaviours to reproductive success. This postulation that all human behaviour is directed at achieving reproductive success has

121 B. Risman, “Calling the Bluff of Value-Free Science” (2001) 66(4) American Sociological Review 607: ‘This definition rests upon the assumption that there are such things as “behaviors on which men and women typically differ,” even when viewed in a longer historical perspective and across cultures and societies. What men and women “typically” do differently is extremely difficult if not impossible to determine, as gender researchers have shown. And differences vary by culture and over time. For example, “being illiterate” is a variable on which an average difference between women and men can be found in many countries (although not all, as with most of Udry's inconsistent measures), and according to Udry's grab-bag conceptualization of what constitutes gender there would be no reason not to include illiteracy as an indicator of the “natural behavioral predisposition” to femininity.’ 122 R.D. Alexander, “The Search for an Evolutionary Philosophy” (1971) 84 Proceedings of the Royal Society of Victoria 99, 100: ‘… while behaviour may be fartherest from the genes in terms of how the phenotype (or the animal itself) functions, it is as well closest to selective action. More than anything else, it is the behaviour of an animal that actually causes it to be favoured or disfavoured.’ 123 R.D. Alexander, “The Search for a General Theory of Behaviour” (1975) 20 Behavioral Science 77, 96: Whether behaviour is the result of genotype or phenotype, the starting point remains the same - an individual’s behaviour must be aimed at achieving/maximising reproductive success. 124 R.D. Alexander, “The Search for an Evolutionary Philosophy” (1971) 84 Proceedings of the Royal Society of Victoria 99, 100. 125 Discussed in the next chapter For now: J. Butler, Gender Trouble: Feminism and the Subversion of Identity, Routledge, New York, 1990; and J.J. Mathews, Good and Mad Women: The Historical Construction of Femininity in Twentieth-Century Australia, St Leonards (NSW), Allen & Unwin, 1984.

157 implications for the way both individual and group behaviour are explained by Sociobiology. Therefore, what might appear otherwise to be group oriented behaviour (such as participating in a community group or sports club) is in fact a masterful deception – it is conduct aimed at achieving reproductive success.126 It means that all behaviour is considered a function of the individual’s innate “selfish” goal to maximise reproductive success.127 At the group level this is highly contentious because it stands at odds with much of social theory, which has since Hegel, taken the view that social institutions and behaviour are the product of society in collaboration with the individuals that comprise it.128 A fourth argument against the way sexual selection is conceived by Sociobiology concerns ideology. The claim of Sociobiologists that all human behaviour is directed at achieving reproductive success and so human behaviour is sexually dimorphic, fits with a broader pattern of sexism throughout biology. Spanier has revealed that biology has been practiced using a heterosexist paradigm.129 The heterosexist

126 Both Alexander and Wilson posit the idea that society is a ‘network of lies and deception’ and that lies and deception are the ‘very human devices for conducting the complex daily business of social life’, respectively: R.D. Alexander, “The Search for a General Theory of Behaviour” (1975) 20 Behavioral Science 77, 96; and E.O. Wilson, Sociobiology: The New Synthesis, Harvard University Press, Cambridge, 1976, 277. 127 W.D. Hamilton, “The Genetical Evolution of Social Behaviour I” (1964) 7 Journal of Theoretical Biology 1, 16: ‘The model shows a preference for the evolution of selfish behaviours, which ‘are always selected’. 128 For example the institution of property is for Hegel a social institution. He held that an individual may take physical control over a thing, but that may or may not be regarded as possession or ownership unless the control conforms to social rules. Therefore property has two elements: physical control by an individual together with the social recognition by others that the individual has property to the extent of that control. Per G. Hegel, Philosophy of Right, trans S.W. Dyde, Batoche Books, Kitchener (Ontario), 2001. See further: S. Avineri, Hegel’s Theory of the Modern State, Cambridge University Press, Cambridge, 1972, 88; R.R. Williams, Hegel’s Ethics of Recognition, University of California Press, Berkeley, 1997, 139 – 141; and A. Ryan, Property and Political Theory, Basil Blackwell, Oxford, 1984, 133: ‘[In] Hegelian style we are invited to recognise that individuals could not sustain their own purposes unless these were legitimised by the larger purposes of their society, while the larger society could not realize its purposes except by realizing them in the multitudinous plans of separate individuals.’ 129 B. Spanier, ‘“Lessons” from “Nature”: Gender Ideology and Sexual Ambiguity in Biology’ in Body Guards: The Cultural Politics of Gender Ambiguity, J. Epstein & K. Straub (eds), Routledge, New

158 paradigm she refers to means that heterosexual male values are superimposed onto biological phenomena. She refers to this as “scientific sexism” and amongst other examples provides the following: When scientists look to nature, they usually bring with them their sociopolitical beliefs about what is natural. This self-reinforcing, internally consistent process, then, creates, reflects, and reinscribes often unquestioned assumptions about our world. Within the ubiquitous paradigm of binary gender and male superiority, scientists have, for example, … misidentified the largest bee in the hive as the King Bee … Thus, in what is considered scientifically objective biology, the male is clearly held up as the normative sex, with the female as a deviation from the norm. Stereotypic attributes and behaviours (such as aggressive hunting and fighting versus coyness and passivity) are superimposed onto animals often through culturally distorted language (several females with a single male may be called a harem, quite a different connotation from, for example, what is now called the matriarchal organization of elephants).130 Scientific sexism present in animal studies is a consequence of the very bias created by the researcher’s own cultural appreciation of gender and sexual relations in human beings. Because that understanding is based on a gender binary with masculinity as the normative pole - it obscures the actual rich and diverse nature of phenomena. It creates the fiction of gender ambiguity where “male” or “female” are not obvious or apparent according to male sexist anthropomorphism.131 So for example, what might

York, 1991, 329 – 350. A stark illustration of this bias is given in Ridley’s work: “Just as human nature is the same everywhere, so it is recognisably the same as it was in the past. A Shakespeare play is about motives, predicaments, feelings and personalities that are instantly familiar. When I watch Antony and Cleopatra, I am seeing a four-hundred-year-old interpretation of a two-thousand-year-old history. Yet it never even occurs to me that love was any [at 11] different from what it is now. It is not necessary to explain to me why Antony falls under the spell of a beautiful woman. Across time just as much across space, the fundamentals of our nature are universally and idiosyncratically human.” Per M. Ridley, The Red Queen: Sex & the Evolution of Human Nature, Penguin Books, Ringwood, Victoria, 2000, at 10- 11. 130 B. Spanier, ‘“Lessons” from “Nature”: Gender Ideology and Sexual Ambiguity in Biology’ in Body Guards: The Cultural Politics of Gender Ambiguity, J. Epstein & K. Straub (eds), Routledge, New York, 1991 at 330. 131 B. Spanier, ‘“Lessons” from “Nature”: Gender Ideology and Sexual Ambiguity in Biology’ in Body Guards: The Cultural Politics of Gender Ambiguity, J. Epstein & K. Straub (eds), Routledge, New

159 otherwise be complex in nature, is deemed to be male or female whether or not that is appropriate, or in the alternate, “gender ambiguous”: And there are many examples of gender ambiguity in nature, including hermaphroditic animals and plants (many higher plants are “hermaphroditic,” having both the male and female organs for producing sex cells), parthenogenic (absence of male) reproduction, and organisms that change from being “female” (egg-producing) to “male” (sperm-producing) in their life cycle. It is noteworthy that a fish that shifts from egg to sperm production was described by a (male) researcher as having as its biological goals becoming male, again setting maleness as a superior achievement.132 To be sure biological literature is not reducing complexity for the sake of expediency or a better predictive model. This heterosexist bias is persistent throughout biology; whether the subject deals with people, primates, hormones or molecules.133 This has prompted Spanier to pose the rhetorical question what is “male” and “female” about bacteria?134 In fact, under scientific nomenclature, there is nothing male or female

York, 1991, at 332: ‘… the concept of gender ambiguity depends on a prior dualistic system of oppositional genders. If some other system of gender (such as a spectrum of genders) were the standard, our kind of gender ambiguity would not exist. Thus, just as the concept of gender ambiguity threatens the notion of fixed and oppositional categories of male and female, heterosexual and homosexual, the ambiguity is derived from characteristics and behaviours not clearly one or the other; so the current definition of ambiguity depends on the conceptual framework of one-or-the-other and the meanings ascribed to each of the two categories. 132 B. Spanier, ‘“Lessons” from “Nature”: Gender Ideology and Sexual Ambiguity in Biology’ in Body Guards: The Cultural Politics of Gender Ambiguity, J. Epstein & K. Straub (eds), Routledge, New York, 1991, at 331. 133 B. Spanier, ‘“Lessons” from “Nature”: Gender Ideology and Sexual Ambiguity in Biology’ in Body Guards: The Cultural Politics of Gender Ambiguity, J. Epstein & K. Straub (eds), Routledge, New York, 1991, at 334 – 335: ‘My analysis below reveals how a masculinist ideology of a dualistic and asymmetric sex/gender system is inappropriately imprinted onto microscopic levels of life and is then utilized to reinforce notions of natural gender dichotomy and its corollary heterosexism. In the process, I find a studied avoidance or outright denial of homosexuality and sexual ambiguity, even though the construction of gender in one [at 335] important case (bacteria) would lead logically to that end – within the standard paradigm.’ 134 B. Spanier, ‘“Lessons” from “Nature”: Gender Ideology and Sexual Ambiguity in Biology’ in Body Guards: The Cultural Politics of Gender Ambiguity, J. Epstein & K. Straub (eds), Routledge, New York, 1991, at 336. Spanier points out, ‘Female is once again (from Aristotle on) defined by absence

160 about bacteria. Yet, there are depictions such as “active” or “passive” which are used incorrectly to deem bacteria as male and female respectively. Whether or not such depictions are harmless or evidence of male heterosexist bias is made clear by the fact that during the 1940s at least one eminent scientist in the field proposed replacing this value-laden terminology with gender-neutral descriptions.135 Hubbard points out that the blatant male sexism in sexual selection is a product of Darwin’s Victorian values and the absence of critical thought by those practicing biology since Darwin who have been mostly men.136 She too maintains that sexual selection is inherently ideological: The ethnocentricism of this individualistic, capitalistic model of evolutionary biology and sociobiology with its emphasis on competition and “investments”…137 and passivity, male by the presence of the male signifier (the F plasmid) and activity. This male-female designation is customary in biology textbooks, even though it is based on the inaccurate conflation of two different meanings of sex. The scientific definition of sex – the exchange of genetic material between organisms – is confused with the cultural sense of sex – a sexual act between a male and a female in which the male is the initiator who makes the sex act happen and who donates genetic material while the female is the passive recipient. And, “having sex” carries with it the heterosexist assumption of having two “sexes”. In fact, this conflation … does not coincide with the scientific definition of male and female which depends on organisms forming either eggs or sperm or equivalent sex cells (which bacteria do not do, as the textbook explains). Thus, the designation of male and female strains of E. coli is, by scientific definition, incorrect. Moreover, the gendered language is sexist in its use of the stereotypical male as active and female as passive - and heterosexist in its assumption that sexual activity occurs only between a male and a female.’ 135 B. Spanier, ‘“Lessons” from “Nature”: Gender Ideology and Sexual Ambiguity in Biology’ in Body Guards: The Cultural Politics of Gender Ambiguity, J. Epstein & K. Straub (eds), Routledge, New York, 1991, at 336: ‘In the 1940s, Tracy Sonneborn convinced his colleagues that replacing the inappropriate terms male and female with non-gendered terminology (plus and minus or a and alpha) would generate more accurate and productive research. Obviously, that view did not carry over to molecular biologists and geneticists of the 1950s. The propensity for and tenacity of genderizing nongendered beings, reflected here in the natural sciences, suggests both the power and the function of gender ideology in our culture.’ 136 R. Hubbard, “Have Only Men Evolved” in R. Hubbard, M. Henifin & B. Fried (eds), Biological Woman - The Convenient Myth: A Collection of Feminist Essays and a Comprehensive Bibliography, Schenkman Publishing Co, Cambridge (Mass), 1982, 17 – 46, 26. 137 R. Hubbard, “Have Only Men Evolved” in R. Hubbard, M. Henifin & B. Fried (eds), Biological Woman - The Convenient Myth: A Collection of Feminist Essays and a Comprehensive Bibliography, Schenkman Publishing Co, Cambridge (Mass), 1982, 17 – 46, 35.

161 Therefore it is evident that even if the concept of sexual selection were not over- emphasised in Sociobiology, or that it could be used to prove innate sex-dimorphic behaviour divides the sexes, it would not be able to escape the accusation that it is intrinsically heterosexist ideology. Fifthly, on the evidence considered so far there is little to sustain the over-emphasis on sexual selection or to establish the notion of universal innate sex-dimorphic behaviour in humans aimed at reproductive success.138 With the collapse of the Sociobiological case according to the hunter-gatherer model, fossils, anthropology, and primatology for want of evidence, discussed above, all that remains is the plausibility argument based on parental investment theory.

Parental Investment Theory Recall from the previous chapter that parental investment theory (parental investment) ensures that the predictions Sociobiology makes about sex-dimorphic behaviour are compatible with sexual selection and at the same time it emphasises sexual selection, which is so crucial to Sociobiology.139 Trivers developed the notion of parental investment to explain and predict the impact of sexual selection on behaviour.140

138 S. Sperling, “Baboons with Briefcases: Feminism, Functionalism, and Sociobiology in the Evolution of Primate Gender” (1991) 17(1) Signs 1, 16 – 17: ‘Early Sociobiological views of the evolution of human gendered behaviours incorporated primatological data and viewed males and females as having differential reproductive strategies. Because of the presumably greater “investment” of female primates in infant rearing, female behaviours were viewed as selected because they advanced a female’s chances of gaining male protection during vulnerable periods for herself and her offspring. Females frequently were pictured as conservative, coy, and passive. By contrast, it behoved males to inseminate as many females as possible, thus forwarding [at 17] their attempted genetic monopoly of the future. Wilson wrote: ‘It pays males to be aggressive, hasty, fickle and undiscriminating. In theory it is more profitable for females to be coy, to hold back until they can identify the male with the best genes. Human beings obey this biological principle faithfully.’ DeVore and other sociobiologists have maintained that the sexual and romantic interest of middle-aged men in younger women and their presumed lack of interest in their female age cohort stem from selective pressures on male primates to inseminate as many fertile females as possible.’ 139 See Chapter 3 above under the headings “Sexual Selection” and “Parental Investment Theory”. See also R.L. Trivers, “Parental Investment and Sexual Selection” in B. Campbell (ed), Sexual Selection and the Descent of Man 1871-1971, Aldine Publishing Co, Chicago, 1972, pp. 136 – 179. 140 R.L. Trivers, “Parental Investment and Sexual Selection” in B. Campbell (ed), Sexual Selection and the Descent of Man 1871-1971, Aldine Publishing Co, Chicago, 1972, pp. 136 – 179, 139.

162

Other Sociobiologists have used parental investment to allege that in addition to sex- dimorphic behaviour and an innate sexual division of labour, it can explain adultery, aggression, jealousy, rape, sexism, territoriality, violence and war.141 For instance, because Ridley treats parental investment and its predictions as proven truths he claims there is a long legal tradition reflecting biological reality: One of the reasons a man who kills his wife in a fit of jealousy can rarely plead insanity in court is precisely because the legal tradition in Anglo-American common law that such an act is ‘the act of a reasonable man’.142 However, the reverse of this argument is more likely.143 It is more likely as many feminists have claimed that these laws exist in order to control women who act contrary to the normative behaviours expected of them under parental investment

141 M. Ridley, The Red Queen: Sex & the Evolution of Human Nature, Penguin Books, Ringwood, Victoria, 2000, 197-198 & 228 – 229. 142 M. Ridley, The Red Queen: Sex & the Evolution of Human Nature, Penguin Books, Ringwood, Victoria, 2000, 228, citing original endnote [42]: Wilson and Daly 1992. Further, at 229 – 230, citing original endnotes: [45] A Fraser, personal communication; [46] Malinowski 1927; [47] Wilson and Daly 1992; and quoting [48] French revolutionary law, quoted in translation by Wilson and Daly 1992: ‘… men are likely to mind even more about their wives’ infidelity than vice versa. History, and law, have long reflected just that. In most societies, adultery by a wife was illegal and punished severely, while adultery by a husband was condoned, or lightly treated. Until the nineteenth century in Britain, a civil action could be brought against an adulterer by an aggrieved husband for “criminal conversion”.[45] Even among the Trobriand Islanders, who were celebrated by Bronislaw Malinowski in 1927 as a sexually uninhibited people, females who committed adultery were condemned to die.[46] This double standard is a prime example of the sexism of society, and is usually dismissed as no more than that. Yet the law has not been sexist about other crimes: women have never been punished more severely than men for theft or murder, or at least the legal [at 230] code has never prescribed that they be so. Why is adultery such a special case? … Because men stick together in the war of the sexes? They do not in anything else. The law is quite explicit on this: all legal codes so far studied define adultery ‘in terms of the marital status of the woman. Whether the adulterous man was himself married is irrelevant’.[47] And they do so because ‘it is not adultery per se that the law punishes, but only the possible introduction of alien children into the family and even the uncertainty that adultery creates in this regard. Adultery by the husband has no such consequences.’[48] 143 P. Gowaty, “Sexual Natures: How Feminism Changed Evolutionary Biology” (2003) 28(3) Signs: A Journal of Women in Culture 901, 915. Choosy may not be a fixed and genetically determined, female- specific trait. Rather, social circumstances may induce choosy females, just as Natalie Angier and other feminists have thought for a long time.

163 theory – that they be coy, sexually submissive, and choosy.144 So for instance, in one study used as evidence for sex-dimorphic behaviour according to parental investment, American university students were propositioned by an attractive stranger of the opposite sex, offering sexual intercourse. 145 No female students accepted the offer. In contrast 75% of the male students accepted the offer. At face value this is consistent with Trivers’ theory. However, there is a more plausible, indeed more probable alternative explanation: Women don’t want to take a strange and obviously aggressive man back to their dorm room or apartment for a quickie. Could it be that they are in fear of their life rather than uninterested in the pleasure a handsome man might bring them? And could it be that young women just [at 913] don’t scare men physically the way young men do women?146 Male coercion is but one factor because women are also frequently subjected to violence. Gowaty refers to the work of Smuts who has argued that women have little choice other than conforming to male norms: Barbara Smuts, another scientist with feminist consciousness, said that it is premature to claim that women’s relative lack of interest in sexual variety is due to selected nature, when there is remarkable evidence that women are beaten and murdered for suspected or real promiscuity and adultery. If female sexuality is biologically muted by ancient selection pressures, why must men and their families go to extreme lengths to control and contain it.147

144 P. Gowaty, “Sexual Natures: How Feminism Changed Evolutionary Biology” (2003) 28(3) Signs: A Journal of Women in Culture 901, 906: ‘Ever since Bateman, Williams, and Trivers, parental care patterns have explained indiscriminate, profligate, competitive, and aggressive males and coy, hesitant, passive, highly discriminating females. The “facts” about males and females have been so intuitively obvious that only a few ever asked if the “facts” were correct.’ 145 P. Gowaty, “Sexual Natures: How Feminism Changed Evolutionary Biology” (2003) 28(3) Signs: A Journal of Women in Culture 901, 912. 146 P. Gowaty, “Sexual Natures: How Feminism Changed Evolutionary Biology” (2003) 28(3) Signs: A Journal of Women in Culture 901, 912 – 913, quoting Natalie Angier, Woman: An intimate Geography, 1999. 147 P. Gowaty, “Sexual Natures: How Feminism Changed Evolutionary Biology” (2003) 28(3) Signs: A Journal of Women in Culture 901, 912. At 913: ‘Smuts brought male coercion into the discussion of sexual selection when she pointed out that variation among males in their abilities to coerce females could lead to mating success variance among males. … If variation among females in their abilities to

164 Clearly there are more plausible explanations for apparent female reticence to engage in indiscriminate heterosexual sex. Therefore what is the strength of the case for parental investment given that it is ubiquitous and axiomatic in the scientific literature? The strength of parental investment seems to be the result of a mix of fact, male intuition and ideology. In terms of facts, in ‘99% or more of sexual species females have bigger gametes (sex cells) than males is consistent with parental investment theory’.148 Trivers’ theory not only presumes differential gamete size (or anisogamy), it also assumes disparity in parental investment defines as: … any investment in an individual offspring that increases the offspring’s chance of surviving (and thus reproductive success) at the cost of the parent’s ability to invest in other offspring.149 However, the second assumption (disparate parental investment) does not follow from the first and nor is it uniform in nature. It is speculation based on anisogamy and the observation that women tend to be primary care-givers rather than men: This fact has allowed it to achieve axiomatic status in sociobiology and evolutionary psychology during the last thirty years.150 Its ubiquity is owed to its intuitive appeal: For many it has enormous intuitive appeal. It is a ubiquitous feature in elementary animal behaviour, behavioural ecology, and texts.151 resist male manipulation exists, females’ resistance to male coercion could lead to high fitness variance among females and female sexual selection.’ 148 P. Gowaty, “Sexual Natures: How Feminism Changed Evolutionary Biology” (2003) 28(3) Signs: A Journal of Women in Culture 901, 902. At 905, Gowarty explains that biologists ‘define sex in terms of gamete size’, and ‘in most, but not all, sexual organisms, females have larger gametes than males’ (and the key term here is “anisogamy” which means different-sized gametes). 149 P. Gowaty, “Sexual Natures: How Feminism Changed Evolutionary Biology” (2003) 28(3) Signs: A Journal of Women in Culture 901, 906, quoting from R.L. Trivers, “Parental Investment and Sexual Selection” in B. Campbell (ed), Sexual Selection and the Descent of Man 1871-1971, Aldine Publishing Co, Chicago, 1972, pp. 136 – 179, 139. 150 P. Gowaty, “Sexual Natures: How Feminism Changed Evolutionary Biology” (2003) 28(3) Signs: A Journal of Women in Culture 901, 902. 151 P. Gowaty, “Sexual Natures: How Feminism Changed Evolutionary Biology” (2003) 28(3) Signs: A Journal of Women in Culture 901, 902.

165 It is ideological as much as it is intuitive because it justifies a sexist status quo as natural when there are better explanations for this inequality and the evidence furnished for parental investment is scant. Firstly, in terms of anisogamy, there is no direct relationship between it and the ensuing quantity or quality of parental care.152 Nor is it so clear whether men or women invest more in copulation in terms of “energy”.153 Secondly: … investigators have rarely tested how parental investment is associated with sex roles in species with “typical” mother-biased offspring care patterns.154

152 B. Faust, Apprenticeship in Liberty: Sex, Feminism and Sociobiology, Angus and Robertson, Sydney, 1991, 59-60: ‘The genetic events involved in conception are rather too complex to be seen as an investment simply on the basis of the size of gametes. Each parent contributes a sperm or ovum carrying forty-six chromosomes that are the vehicles of genes. Before fertilisation, the chromosomes of both ovum and sperm arrange themselves along a spindle and separate into two groups – the first meiotic division. The chromosomes appear in matched pairs, one pair from each parent. Each chromosome contains two component chromatids – there are four chromatids in each pair. Early in meiosis, the maternal and paternal chromatids exchange parts so that, when they separate along the spindle during the second meiotic division, the genetic material has been shuffled. The female and male contributions, each of forty-six chromosomes (the diploid number), are halved to twenty-three (the haploid number) and reorganised into a new diploid containing equal contributions from both parents. At the meiotic level, the parental investment is exactly the same. On this basis, one might just as well argue that evolutionary pressure should select for pair-bonding, since both male and female co-operate to contribute twenty-three chromosomes and fertilisation involves symmetrical and equal contributions. There is no meaning inherent in fertilisation, meiosis, gestation, or nurturance. The hard facts can be made to support any number of meanings.’ 153 R. Hubbard, “Have Only Men Evolved” in R. Hubbard, M. Henifin & B. Fried (eds), Biological Woman - The Convenient Myth: A Collection of Feminist Essays and a Comprehensive Bibliography, Schenkman Publishing Co, Cambridge (Mass), 1982, 17 – 46, 35: ‘Does it really take more energy to generate the one or relatively few eggs than the large excess of sperms required to achieve fertilization? In humans the disproportion is enormous. In her lifetime, an average woman produces about four hundred eggs, of which in present-day Western countries, she will invest only in about 2.2. Meanwhile the average man generates several billions of sperms to secure those same 2.2 investments! Needless to say, I have no idea how much “energy” is involved in producing, equipping and ejaculating a sperm cell along with the other necessary components of the ejaculum that enable it to fertilize an egg, nor how much is involved in releasing an egg from the ovary, reabsorbing it in the oviduct if unfertilized (a partial dividend on investment), or incubating 2.2 of them to birth. But neither do those who propound the existence and importance of women’s disproportionate energetic investments.’

166 Thirdly, the field evidence exists does not correspond to the predictions made by parental investment theory: … observation fails to match the predictions. Females are often aggressive and enthusiastic about sex even in species with female biased parental investment.155 For example in the case of sea horses where the male “gets pregnant” and broods the young in a ventral pouch the theory predicts that the female will be aggressive and competitive and the male coy and restrained. However: As predicted, males are choosy, and access to males limits female reproductive success. A bit more surprising was that females were choosy, too, even though they do not care for offspring. The great surprise, however, was that even though males invested most in offspring, they still seemed to compete more than females did for access to members of the opposite sex.156 Also: Perhaps more troublesome than the failures of predictions in “role-reversed” species were the observations of extraordinarily aggressive, anything-but- passive-coy-disinterested-discreet female primates. Female chimpanzees and langurs, among others, enthusiastically solicit sex, and some females have been observed to mate with up to eight different males within an hour’s time!157 This means, despite frequent research observations inconsistent with the theory, the intuitive claims ‘of passive females and eager males remain the normative expectation’.158 Thirdly, there are the alternative evolutionary hypotheses that have until this point in time been ignored. Gowaty points to the “null model” of Sutherland 1985:

154 P. Gowaty, “Sexual Natures: How Feminism Changed Evolutionary Biology” (2003) 28(3) Signs: A Journal of Women in Culture 901, 902. 155 P. Gowaty, “Sexual Natures: How Feminism Changed Evolutionary Biology” (2003) 28(3) Signs: A Journal of Women in Culture 901, 902. 156 P. Gowaty, “Sexual Natures: How Feminism Changed Evolutionary Biology” (2003) 28(3) Signs: A Journal of Women in Culture 901, 907 & 911. 157 P. Gowaty, “Sexual Natures: How Feminism Changed Evolutionary Biology” (2003) 28(3) Signs: A Journal of Women in Culture 901, 907. 158 P. Gowaty, “Sexual Natures: How Feminism Changed Evolutionary Biology” (2003) 28(3) Signs: A Journal of Women in Culture 901, 908.

167 What was most important about Sutherland’s model was that it showed that sex differences in variance in the number of mates should not count as evidence for indiscriminate males and coy, choosy females.159 This model inspired another alternative to Trivers’ parental investment theory, Hubbell and Johnson’s 1987 work on so-called “role-reversal” beetles: They used mathematical models to explore when random environmental variation would favour or select against choosiness versus indiscriminate mating.160 And: Their results showed that selection favours choosy strategists when the strategist’s survival rate is high, when encounter rates are high, when the amount of time strategists had spent “handling” the previous mating was long, and when their relative reproductive success with any two potential mates was different.161 Therefore: The Hubbell and Johnson model suggested that mating strategies need not be due to sex differences fixed by ancient selection pressures. It showed when selection will be against choosy females and indiscriminate males, even in typical species with higher female than male parental investment. Most important, to conclude that it is indeed the case, empiricists must now account for the theoretically robust effects of real-time variation in temporal parameters of individuals’ lives.162 What is important about these alternative evolutionary models is that adaptation is just part of the story and so open programming for sexual behaviour becomes more likely

159 P. Gowaty, “Sexual Natures: How Feminism Changed Evolutionary Biology” (2003) 28(3) Signs: A Journal of Women in Culture 901, 908. She adds: ‘It is remarkable that hundreds of attempts to experimentally describe sex roles in “typical” species did not follow after the publication of Sutherland’s paper.’ 160 P. Gowaty, “Sexual Natures: How Feminism Changed Evolutionary Biology” (2003) 28(3) Signs: A Journal of Women in Culture 901, 909. 161 P. Gowaty, “Sexual Natures: How Feminism Changed Evolutionary Biology” (2003) 28(3) Signs: A Journal of Women in Culture 901, 909. 162 P. Gowaty, “Sexual Natures: How Feminism Changed Evolutionary Biology” (2003) 28(3) Signs: A Journal of Women in Culture 901, 909.

168 so that individuals can respond flexibly according to changing circumstances within their lifespan: Their alternative hypothesis implicitly suggested that selection should work so that individuals respond flexibly, induced by real-time environmental contingencies to be choosy or indiscriminate. Evolved sexual natures may be flexible, adjustable to changing environmental circumstances. This idea would seem to be particularly applicable to those species that [at 910] live in socially varying environments or those in which the sexual landscape might change over the course of a single life.163 In other words, in highly social species such as human beings sexuality will be explained more by social norms than the deterministic concepts parental investment theory and sexual selection. Significantly, it also destroys the nexus between sexual selection and the hunter-gatherer hypothesis as an explanation for the autocatalysis of arboreal primate into Australopithecus with the predicted sexual division of labour.164 Then there is the evidence that suggests male sperm can have an effect on female receptivity. For example, female drosophila are not receptive to further mating until 3 or 4 days have passed, a phenomenon called “remating inhibition”.165 Therefore:

163 P. Gowaty, “Sexual Natures: How Feminism Changed Evolutionary Biology” (2003) 28(3) Signs: A Journal of Women in Culture 901, 909 – 910. 164 Recall the argument made by Wilson to this effect. E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, 297: ‘Fox (1972), following a suggestion by Chance (1962), has argued that sexual selection was the auxiliary motor that drove human evolution all the way to the Homo grade. … The selection would be enhanced by the constant mating provocation that arises from the female’s nearly continuous sexual receptivity. Because of the existence of a high level of cooperation within the band, a legacy of the original Australopithecus adaptation, sexual selection would tend to be linked with hunting prowess, leadership, skill at tool making, and other visible attributes that contribute to the success of the family and the male band. Aggressiveness was constrained and the old forms of overt primate dominance replaced by complex social skills. Young males found it profitable to fit into the group, controlling their sexuality and aggression and awaiting their turn at leadership. As a result the dominant male in hominid societies was most likely to possess a mosaic of qualities that reflect the necessities of compromise; as Robin Fox expressed it, the male was “controlled, cunning, cooperative, attractive to the ladies, good with children, relaxed, tough, eloquent, skillfull, knowledgable, and proficient in self-defence and hunting.”’ 165 P. Gowaty, “Sexual Natures: How Feminism Changed Evolutionary Biology” (2003) 28(3) Signs: A Journal of Women in Culture 901, 913.

169 … it would seem interesting to know why remating inhibition occurs and how. It has been known since the 1960s that some component in the inseminate of males was associated with the dramatic change in receptivity of female drosophila melanogaster. [at 914] … Furthermore, exposure to these [ejaculate] peptides decreases female life span.166 Therefore it is difficult to accept the idea that sexual behaviour is a simple product of parental investment or gamete size. In her own studies of drosophila psuedoobscura, Gowaty and her colleagues observed no difference in male or female interest in terms of passive females and eager males and this species is reportedly the one with the largest anisogamy.167 Clearly, good science should test for factors other than gamete size.168 Unfortunately these alternatives to the entrenched Sociobiological paradigm are rarely considered or even cited.169 This is of great concern given the absence of evidence for parental investment, the existence of the more plausible social construction explanations, and the sexist ideology so intrinsic to the concept.170

166 P. Gowaty, “Sexual Natures: How Feminism Changed Evolutionary Biology” (2003) 28(3) Signs: A Journal of Women in Culture 901, 913 – 914. 167 P. Gowaty, “Sexual Natures: How Feminism Changed Evolutionary Biology” (2003) 28(3) Signs: A Journal of Women in Culture 901, 915. 168 P. Gowaty, “Sexual Natures: How Feminism Changed Evolutionary Biology” (2003) 28(3) Signs: A Journal of Women in Culture 901, 912: ‘Sex role studies should control for sperm limitation, latency to remating receptivity, survival rates, encounter rates, and variation in the relative fitness effects of mating with alternative potential mates. … Until experimentalists eliminate or control these and other alternatives, such as the one discussed below, conclusions about inevitable sex role differences determined by parental investment patterns are premature.’ “Male bullying” was ‘the one discussed below’. 169 P. Gowaty, “Sexual Natures: How Feminism Changed Evolutionary Biology” (2003) 28(3) Signs: A Journal of Women in Culture 901, 910: ‘There are no direct tests of the Hubbell and Johnson idea. In fact, since its publication, others have cited it forty times, a relatively small number for a prominently published scientific paper.’ 170 Somewhat more cautiously, and writing from within a biological tradition, Gowaty contends at 903: ‘The main points are that the “basic natures” of males and females remain to be described in the vast majority of species; interesting alternative hypotheses exist to explain sex roles; and these alternative hypotheses offer an empirical challenge to those interested in understanding the causes and consequences of sexual and reproductive behaviour.’ And at 911: ‘… credible, sex-neutral alternatives to parental investment theory exist, and those interested in social behaviour must eliminate these alternatives before concluding that parental investment patterns alone account for selection on sex

170 So far in this chapter the case for Sociobiology has been exposed as ideological, based on very limited evidence, subject to significant amounts of contrary evidence, and less plausible than alternative explanations for human behaviour based on social construction. The only remaining evidence is the scattered data from brain and biochemical studies, Kibbutz studies, twin and adoption studies. Because these are not integral to the case for Sociobiology, for reasons of space, and the extent of their coverage in the previous chapter they will not be dealt with here. Therefore all that remains of the case for Sociobiology are the normative arguments and the concepts: kin selection theory, reciprocal altruism and parental conflict.

Critique of sociobiological altruism

According to Sociobiology all human behaviour is directed to an overarching paramount objective - reproductive success. Humans are assumed to be competitive and selfish in their endeavour to successfully reproduce. Therefore the problem of explaining non-selfish or altruistic behaviour was crucial because the only obvious explanations stemmed from the ideas that were antithetical to Sociobiology, either that these behaviours were cultural, and therefore non-genetic, or they were behaviours explained by “group selection”.171 Two key theories were devised providing a genetic basis for altruistic behaviour: namely kin selection theory and reciprocal altruism.172

roles.’ Per P. Gowaty, “Sexual Natures: How Feminism Changed Evolutionary Biology” (2003) 28(3) Signs: A Journal of Women in Culture 901. 171 See further, the previous chapter for an explanation of the problem. 172 A third model explaining familial behaviours is Trivers’ “parent/offspring conflict model” which draws on his earlier “parental investment theory” and Hamilton’s kin selection theory. It is discussed in the previous Chapter. Otherwise: R.L. Trivers, “Parent-offspring Conflict” (1974) 14 American Zoology 249. It is not critiqued here for reasons of space and because of the negative conclusions reached here concerning the theories it depends on.

171 Kin Selection Theory “Kin Selection Theory” is a mathematical model published by Hamilton in 1964 providing for a genetic basis for non-selfish behaviour between close relatives.173 It is an essential justification for Sociobiology because without it, behaviour that is not strictly connected to selfish reproductive success could not be explained other than by “group selection”.174 Hamilton appeared to provide a way around the impasse by arguing that an organism could benefit genetically by altruistic action directed to a close genetic relative assuming that the genetic/reproductive benefit to the altruist outweighed their loss.175 It is used in Sociobiology to explain all sorts of behaviours normally thought of as altruistic (such as caring, helping, and sacrificial behaviour) and it includes other behaviours (such as homosexuality) where the behaviour takes place between close relatives.176 Because the theory does not have any application where behaviour is not connected to reproduction or is not between close relatives, Sociobiology must rely on another plausibility argument: reciprocal altruism. For this reason Trivers’ reciprocal altruism model is essential to Sociobiology because it provides a genetic explanation for altruistic behaviour between unrelated individuals. Before assessing the arguments for

173 In two separate articles published consecutively: (1) W.D. Hamilton, “The Genetical Evolution of Social Behaviour I” (1964) 7 Journal of Theoretical Biology 1; and (2) W.D. Hamilton, “The Genetical Evolution of Social Behaviour II” (1964) 7 Journal of Theoretical Biology 17. 174 M. Sahlins, The Use and Abuse of Biology: An Anthropological Critique of Sociobiology, University of Michigan Press, Michigan, 1976, 18. Sahlins points out that Sociobiology became interested in kinship not because there was so much ethnographic data, but because of the debate in biology between those who held that natural selection occurred at the group level and the individual level. However, Sahlins proves that this is impossible. It is impossible because the anthropological evidence suggests that kinship is indeed phenomena that is selected at a group level and therefore must be cultural not biological. Therefore, the challenge for Sociobiologists is that they bear an onus of proof to establish that kinship is ordered by individual reproductive success: ‘If kinship is not ordered by individual reproductive success, and if kinship is admittedly central to human behaviour, then the project of an encompassing sociobiology collapses.’ 175 W.D. Hamilton, “The Genetical Evolution of Social Behaviour I” (1964) 7 Journal of Theoretical Biology 1, 16. 176 M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 66 – 67; and E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, 279.

172 reciprocal altruism two observations need to be made about the credibility of kin selection theory. The first is the problem of reckoning the benefit.177 For kin selection to work the altruist must be able to calculate the genetic benefit that accrues to her by foregoing her own reproductive success and helping her genes to reproduce via her relatives instead.178 In other words by sacrificing her own reproductive success she would need to promote the reproduction of two or more of her siblings, eight or more of her cousins and so on. Sahlins argues that: Hunters and gatherers generally do not have counting systems beyond one, two, and three. I refrain from comment on the even greater problem of how animals are supposed to figure out how that r [ego, first cousins] = 1/8. The failure of sociobiologists to address this problem introduces a considerable mysticism in their theory.179 While this concern does not ruin the logic of kin selection theory, it does suggest that it is an improbable explanation for non-selfish human behaviour. Secondly, Sahlins has compiled extensive anthropological evidence against the concept, which remains unanswered in the Sociobiological literature.180 Sahlins points

177 M. Sahlins, The Use and Abuse of Biology: An Anthropological Critique of Sociobiology, University of Michigan Press, Michigan, 1976, 23. The organism must know either consciously or unconsciously its relative genetic proportions in relation to its kin. 178 Even Dawkins concedes this much speaking of the application of game theory to behavioural analysis: ‘Unfortunately, we know too little at present to assign realistic numbers to the costs and benefits of various outcomes in nature.’ Per R. Dawkins, The Selfish Gene, New Edition (1990), Oxford University Press, Oxford, 1976, 75. But he categorically rejects the idea that insects and animals including humans would not be able to calculate the net benefit, at 96 & 291 – 292. 179 M. Sahlins, The Use and Abuse of Biology: An Anthropological Critique of Sociobiology, University of Michigan Press, Michigan, 1976, 45: Sahlins points out that Wilson was aware of this problem and commented to that effect at page 29 of the original 1975 work on Sociobiology, where Wilson refers to it as the “Fallacy of Affirming the Consequent”. 180 In fact there are other important studies proving that kin-selection theory cannot work. For instance, in one study the authors found that Westermarck’s original hypothesis that childhood co-residence ‘with an opposite sex individual predicts the strength of moral sentiments’ concerning incest was found to be more likely than the kin-selection argument. The authors of this study wrote: This undercuts kin- recognition models requiring matching to self … Subjects’ beliefs about relatedness had no effect after controlling for co-residence, indicating that systems regulating kin-relevant behaviours are non- conscious, and calibrated by co-residence, not belief.’ Per D. Lieberman, J. Tooby & L. Cosmides,

173 out that most kinship groups are not structured by genetic relations simply because the genetic relationships are not significant or discernible among the group.181 Furthermore, Sahlins concludes that, ‘no system of human kinship relations is organized in accord with genetic coefficients of relationship as known to sociobiologists’.182 In all the societies considered they were structured according to cultural norms not according to biological genealogy. That is to say: Each kinship order has accordingly its own theory of heredity or shared substance, which is never the genetic theory of modern biology, and a corresponding pattern of sociability.183 In effect this typically means that total strangers may have a coefficient of relationship greater than ½ while ‘family’ members will typically range from ‘close’ 1/258 to ‘distant’ 1/32. Not only do these facts stand in stark contrast to kin selection theory, they are virtually the opposite of what it would require.184 At this point in time, kin selection theory is left as an unsubstantiated and contested model as it concerns human behaviour.185

“Does morality have a biological basis? An Empirical test of the factors governing moral sentiments relating to incest” (2003) 270 Proceedings Royal Society London Biology 819, at 819. See also J. Munoz-Rubio, “Sociobiology and Human Nature” (2002) 27(2) Interdisciplinary Science Reviews 131, 137. 181 M. Sahlins, The Use and Abuse of Biology: An Anthropological Critique of Sociobiology, University of Michigan Press, Michigan, 1976, 26 – 40. At 40: ‘The ethnographic facts are that the members of the kinship groups which organize human reproduction are more closely related genealogically to persons outside the group than to certain others within. … and in any case it is the group which reproduces itself as a social unit, reproductive benefits are often accorded to persons unrelated genetically – who may easily be one’s own children [adopted or culturally construed as “their” children].’ 182 M. Sahlins, The Use and Abuse of Biology: An Anthropological Critique of Sociobiology, University of Michigan Press, Michigan, 1976, 57. 183 M. Sahlins, The Use and Abuse of Biology: An Anthropological Critique of Sociobiology, University of Michigan Press, Michigan, 1976, 57. 184 M. Sahlins, The Use and Abuse of Biology: An Anthropological Critique of Sociobiology, University of Michigan Press, Michigan, 1976, 54 & 57. 185 J. Munoz-Rubio, “Sociobiology and Human Nature” (2002) 27(2) Interdisciplinary Science Reviews 131, 137: Related to the issue of family in the Sociobiological schema is the notion of “incest avoidance”, which is also seen as genetic. Their argument is that children raised together have a biological propensity to avoid sexual relations with either their parents or their siblings. Alternatively, as Munoz-Rubio points out: ‘In human beings, based on a certain level of social development, these

174

Reciprocal Altruism Even if these models/arguments put forward by Sociobiology (Kin selection theory together with parental investment theory and the parent/offspring conflict model) were found to be consistent with the evidence, they have virtually no capacity to explain behaviour beyond close relatives. Therefore Sociobiologists turn to “reciprocal altruism”.186 Reciprocal altruism simply says that unrelated individuals will tend to confer altruistic acts on one another because natural selection will tend to select genes for altruism where the benefit is high to the recipient and the cost to the altruist low by comparison and altruists can discriminate against cheats.187 Under these evolutionary parameters an individual might risk their life to save a stranger because this action might be reciprocated in the future.188 Reciprocal altruism holds that genetically distinct individuals who share proximity of environment might have an evolutionary advantage cooperating under certain conditions. However attractive this explanation might be in linking altruistic behaviour to evolutionary theory, it must compete with alternative explanations providing that behaviour is social.189 Furthermore, it was noted in Chapter 3 that Triver’s conceded there is no direct evidence that reciprocal altruism is genetic or that it evolved.190 Instead he appealed to logic asserting it is ‘reasonable to assume that it

parental relationships are the result of a historic process of the formation of the family as a social structure. Independent of the numerous types of family that have existed through history, in order for this to occur there must be a conscious process of building the concept of family, and of its various components. The construction of these concepts would be impossible without interaction among the components of a certain social group. … There can be no division in a society between the “parts” that are families, nor amongst the parts of which the family is constituted, until that society reaches a level of development that makes it possible to realise these divisions and therefore conceptualise them.’ 186 E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, 58. 187 R.L. Trivers, “The Evolution of Reciprocal Altruism” (1971) 46 Quarterly Review of Biology 35. 188 R.L. Trivers, “The Evolution of Reciprocal Altruism” (1971) 46 Quarterly Review of Biology 35, 39. 189 R.L. Trivers, “The Evolution of Reciprocal Altruism” (1971) 46 Quarterly Review of Biology 35. At 47, 52 & 53 Trivers hints at the possibility that cultural explanations also explain the behaviours. See further Chapter 5 below. 190 R.L. Trivers, “The Evolution of Reciprocal Altruism” (1971) 46 Quarterly Review of Biology 35, 48.

175 had been an important factor in recent human evolution’ because it is so universal in human beings.191 Otherwise reciprocal altruism is left to rely on three relatively inconclusive and controversial forms of evidence: anthropological (hunter/gatherer societies), literature on psychological studies reviewed by Krebs (1969), and game- theory.192 The evidence garnered for reciprocal altruism is very weak. In fact, the hunter gatherer evidence was critiqued above and did not verify the concept by showing that a biological explanation was superior to the alternative arguments that behaviour is socially constructed. Reciprocal altruism was said to be a product of the way men hunted for meat. Ridley, for example, argued that reciprocal altruism was essential to the process of hunting and similarly essential to relations between men and women (viz: trading meat for sex).193 Clearly, these arguments were unconvincing, anthropomorphic and ideological.194 Also, game theory does not prove the concept because it is extremely malleable and can be structured to produce the “right” results. Stated differently its “results” will be a product of the values attributed to its variables. More-often the attribution of these values will be mere guessing rather than cold fact.195 Furthermore, Maynard Smith who brought game-theory analysis to animal aggression, was extremely careful to

191 R.L. Trivers, “The Evolution of Reciprocal Altruism” (1971) 46 Quarterly Review of Biology 35, 48. 192 R.L. Trivers, “The Evolution of Reciprocal Altruism” (1971) 46 Quarterly Review of Biology 35, 38, and pp. 48 – 53. 193 M. Ridley, The Red Queen: Sex & the Evolution of Human Nature, Penguin Books, Ringwood, Victoria, 2000, 187. 194 S. Hrdy, The Women That Never Evolved, Harvard University Press, Cambridge (M), 1981, 5: ‘… male hunters were able to cement reciprocal relations with an even wider network of allies through the presentation of meat. Men engendered obligations and gained recognition by such gifts. Once male pre- eminence was established, females themselves became objects of exchange and were given in marriages by brothers or fathers who received wives for themselves in return. ‘ 195 R. Dawkins, The Selfish Gene, New Edition (1990), Oxford University Press, Oxford, 1976, 75: ‘Unfortunately, we know too little at present to assign realistic numbers to the costs and benefits of various outcomes in nature.’

176 avoid anthropomorphism and went as far as to state that he was sceptical about the use of game-theory analysis in terms of human behaviour.196 Therefore, the only data supporting the theory is Kreb’s (1970) ‘review of the relevant psychological literature’, ‘although he organizes it differently’.197 Accordingly, the best argument from this source is the one concerning ‘Multiparty interactions’: In the close-knit social groups that humans usually live in, selection should favour more complex interactions than two-party interactions so far discussed. Specifically, selection may favour learning from the altruistic and cheating experiences of others, helping others coerce cheaters, forming multi-party exchange systems, and formulating rules for regulated exchanges in such multiparty systems.198 It is just as conceivable that this very same argument is evidence instead that human behaviour is cultural rather than genetic.199 Gould goes further arguing that it is more likely that the ‘large’ human brain evolved to preclude the need for genetically specified behaviour substituting them with the capacity to learn because ‘the direct programming of behaviour has probably become inadaptive’.200 In fact there is good

196 J. Maynard Smith, On Evolution, Edinburgh University Press, Edinburgh, 1972. He reiterates this point at 9, 25 & 26. For instance, at 9 he states: ‘In these human examples, it is reasonable to suppose that the acceptance of conventional restraints depends on the rational calculation that it is better to minimize the risks one runs in the event of defeat. In the case of animal conflicts, an explanation in terms of rational calculation is less acceptable.’ 197 R.L. Trivers, “The Evolution of Reciprocal Altruism” (1971) 46 Quarterly Review of Biology 35, 48. 198 R.L. Trivers, “The Evolution of Reciprocal Altruism” (1971) 46 Quarterly Review of Biology 35, 52. 199 S.J. Gould, Ever Since Darwin: Reflections in natural history, Penguin, Ringwood, Victoria, 1991, 257: ‘functioning societies may require reciprocal altruism, but these acts need not be coded into our consciousness by genes, they may be inculcated equally well by learning’. 200 S.J. Gould, Ever Since Darwin: Reflections in natural history, Penguin, Ringwood, Victoria, 1991, 257. In contrast Trivers’ predicts that “developmental plasticity” would be genetic so that behaviours could adapt to greater sophistication of cheating and detecting cheating in R.L. Trivers, “The Evolution of Reciprocal Altruism” (1971) 46 Quarterly Review of Biology 35, 53. Once again, the more plausible explanation would be that this is evidence of open programming for behavioural flexibility rather than the strict genetic determinism he envisions.

177 brain science supporting the open-programming argument.201 Recognising the dangers of reducing the brain’s complexity to simplistic models, Montier explains that in addition to the unconscious generator of thought/emotion, the limbic system (in particular the amygdala) there are limitless other neural pathways that regulate thinking/emotion.202 Most important is the fact that the brain is endowed with a capacity to override the ancient genetically determined limbic system: … the emotion of fear has two neural pathways akin to system one and system two. The emotion of fear produces one of two reactions in extremis - flight or freeze. We either run from the threat or we freeze in the hope of eluding detection by the threat. This emotion seems to be served by two neural pathways. One fast and dirty, and notably evolutionarily much older. LeDoux refers to this as the low road. The other more reflective and logical, but much slower, referred to as the high road. The danger is perceived (an emotional stimuli) and the sensory Thalamus processes the information. This information is then sent to two different centres. On the low road it passes to the Amygdala, part of the limbic system, one of the oldest parts of our brain. This all happens in the mental background and requires no conscious thought (system one). However, this is a pretty unsophisticated processing route, and frequently gives incorrect conclusions. These conclusions are held in check in the other road. On the high road, the Sensory Thalamus sends the information of a threat to the Sensory Cortex which in a more conscious fashion assesses the possible threat, and then

201 J. Montier, “Darwin’s Mind: The Evoltionary Foundations of Heuristics and Biases” (2002) December, Working Paper, accessed at online at (SSRN) http://papers.ssrn.com/sol3/papers.cfm?abstract_id=373321 on 16 August 2005; permission to cite was granted by James Montier. 202 J. Montier, “Darwin’s Mind: The Evoltionary Foundations of Heuristics and Biases” (2002) December, Working Paper, accessed at online at (SSRN) http://papers.ssrn.com/sol3/papers.cfm?abstract_id=373321 on 16 August 2005; permission to cite was granted by James Montier, 1 – 31, at 13: ‘… functional MRI scans do reveal that certain types of tasks seem to trigger hard wired responses from the brain. The left hemisphere tends to be more analytical, more logical, more precise, and is time sensitive and deals with abstract cognition. In contrast, the right hemisphere is more emotional, dreamier, it processes things in a holistic fashion, and deals more with sensory perception than abstract cognition.’

178 sends information to the Amygdala in order to motivate a response.203 In other words, the open programming alternative to Sociobiology seems to be supported by what is axiomatic in cognitive psychology and throughout social science.204 To sum up on the Sociobiological case for non-selfish behaviour it is clear that the arguments for a genetically determined human behaviour are not supported by evidence. In fact, there is plenty of evidence to suggest that human behaviour is not explained by genes.205

Human behaviour is not explained by genes

Now that the human genome has been mapped (and along with it as part of the same project the genomes of a bacteria (E. coli), yeast (S. cerevisiae), a plant (Arabidopsis thaliana), a round-worm (Caenorhabditis elegans), a fruit-fly (Drosophila melanogaster), a fish (Danio rerio), and a mouse (Mus musculus)) it is clear that it is impossible for human behaviour to be reduced to genes.206 Rothman observes that the hope held by Sociobiologists that the Human Genome Project would prove their case was misplaced:

203 J. Montier, “Darwin’s Mind: The Evoltionary Foundations of Heuristics and Biases” (2002) December, Working Paper, accessed at online at (SSRN) http://papers.ssrn.com/sol3/papers.cfm?abstract_id=373321 on 16 August 2005; permission to cite was granted by James Montier, 1 – 31, at 14. Referring to neuroscientist Joseph LeDoux’s 1998 book titled, The Emotional Brain. 204 It is also supported by recent developments in the sciences dealing with brain injury. In this field physical and mental stimulation of the brain is used to overcome brain injury suggesting that the brain has a remarkable capacity to over-ride organic deficiency caused by injury. In other words environmental enrichment can enhance so-called innate capacity. See for instance: N. Johnson, “Against all odds”, The 7:30 Report, ABC Television, broadcasted 4 September 2007. 205 J. Munoz-Rubio, “Sociobiology and Human Nature” (2002) 27(2) Interdisciplinary Science Reviews 131, 137. 206 The human genome was mapped by 25 April 2003. These genomes can be accessed at Ensembl http://www.ensembl.org/ and see also: The Centre for Genetics Education http://www.genetics.com.au and “The Human Genome Project – discovering the human blueprint”, Nova: Science in the News, published online by the Australian Academy of Science on 23 January 2007, pp. 1 – 3.

179 But the genome has been sequenced, and nothing even remotely approaching the complete mastery of life’s character has been achieved. We have learned many things, and will no doubt learn many more, but the key to a comprehensive understanding of life is not one of them.207 It turns out that many genes are held in common by all species leaving little scope for the relatively few species unique genes to account for the great morphological and potentially limitless behavioural differences between species.208 For instance, ‘it is estimated that about 74% of known human genes have a corresponding homologue in the nematode Caenorhabditis elegans’209, and humans only have twice as many genes as the fruit-fly and about the same number as a mouse.210 Further, individual humans share 99.9% of the same genetic code which leaves just 0.01% to account for the great diversity in superficial appearance, and if we are to believe Sociobiology, the extreme cultural difference between humans.211 According to Celera Genomics (one of the two project teams responsible for mapping the human genome): … there are two fallacies to be avoided: determinism, the idea that all characteristics of a person are “hard-wired’ by the genome; and reductionism, that now the human sequence is completely known, it is just a matter of time before our understanding of gene functions and interactions will provide a complete causal description of human variability.212 The reason for these two fallacies is that neither genes nor environment can account for human morphology, physiology and behaviour because each of these variables

207 S. Rothman, Lessons from the Living Cell: The Limits of Reductionism, McGraw-Hill, Sydney, 2002, 3. 208 The Centre for Genetics Education, Fact Sheet 22, “The Helix of Humanity”, pp. 246 – 250, at 249 states that: ‘The total number of genes in the human genome is around 30,000. … and is not much more than in the genome of a very simple plant called Arabidopsis thaliana (25,706 genes) and is only double that of the roundworm.’ 209 R.J.A. Trent, “Milestones in the Human Genome project: genesis to postgenome” (2000) 173 Medical Journal of Australia 591-594, pp. 1 - 7, at 5. 210 “The State of the Genome 2001”, ABC Science Online, pp. 1 – 4, at 1. 211 AAAS, “Scientists Report on the Human Genome Sequence” press release issued by the American Association for the Advancement of Science on 10 February 2001, pp. 1 – 4. 212 AAAS, “Scientists Report on the Human Genome Sequence” press release issued by the American Association for the Advancement of Science on 10 February 2001, pp. 1 – 4, at 3.

180 interact in a highly complex dialectical fashion.213 Instead, the Human Genome Project has ruined any possibility that human behaviour can be explained by genes and any lingering suggestions to the contrary are merely popular misconceptions or ideologically driven.214 Contrary to the 1985 defence of Sociobiology mounted by Ruse, the case for Sociobiology is now refuted precisely for the reasons above.215

Conclusions on sociobiology

In the mass of literature on this subject there are four broad clusters of arguments against Sociobiology. They are that the positive evidence doesn’t stack up, the normative arguments are flawed, and there are many other plausible explanations demonstrating that human behaviour is socially constructed, and that Sociobiology is ideological. These arguments overlap because the claim that Sociobiology is ideological permeates each of the other arguments. In this chapter it was revealed that the evidence for Sociobiology is indeed inadequate – it does not stack up. Therefore it must be doubted that human nature is reducible to a product of evolution in the sense that the human mind is “adapted” to its environment. The second prediction that human behaviour is inevitably a product of each individual’s evolutionary objective to attain “reproductive success” must also be in doubt. Accordingly, there is no evidence to suggest that human nature is innately, among other things, aggressive, competitive, territorial, and behaviourally sex- dimorphic. The existence of alternative explanations for human behaviour suggests,

213 The Centre for Genetics Education, Fact Sheet 22, “The Helix of Humanity” pp. 246 – 250, at 250: ‘Many genes interact to produce a particular characteristic and the analysis of genes in isolation is not going to provide the whole answer. In addition, while an individual’s genetic make-up makes a considerable contribution to a person’s health, growth, development, appearance, and behaviour, environment also plays a major role. This is not just the physical environment such as diet and climate but also education, housing and access to high quality health services. We are all more than the sum of our genes.’ 214 T. Holmberg, “Questioning ‘the number of the Beast’: Constructions of Humanness in a Human Genome Project (HGP) Narrative” (2005) 14(1) Science as Culture 23; A. M’Charek, “The of Modern Genetics: Of Peoples and Genomes, or the Routinization of Race” (2005) 14(2) Science as Culture 161. 215 M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 162.

181 therefore, that Sociobiology is yet another recycled version of earlier ideologies presented as “science” to justify and explain hierarchy and oppression. Given that Sociobiology is lacking in crucial scientific evidence, and inconsistent with the evolutionary theories it claims to be based upon, suggests that it is ideological. In addition, given that sociobiology does not have sufficient evidence begs four further questions. Firstly, was it ever possible to reduce human behaviour to genetics? Secondly, why is the Sociobiological argument so pervasive and ubiquitous, and why does it persist? Thirdly, what are the alternatives? And fourthly, is Sociobiology ideologically benign? The first three of these questions provide the subject matter for the next chapter which draws upon the philosophy of science and epistemology to critically assess the normative arguments made by Sociobiologists (viz, theories of human nature should be aligned with evolutionary theory). The fourth question, “whether sociobiology is ideologically benign?” is reserved for the subsequent chapter addressing the literature on the theory of ideology and also providing a bridge to the remaining chapters of this thesis. Lastly, given the collapse of the case for human nature according to Sociobiology and its dubious status as a science the remaining chapters will dispense with the capitalisation of “S” in “Sociobiology” (introduced above to indicate the difference between sociobiological sciences and popular belief) and refer to it as “sociobiology”.

182

Chapter 5

Sociobiology Versus Social Theory

Introduction

In the previous chapter sociobiology was critiqued using available science. That critique showed sociobiology to be lacking in crucial scientific evidence, to be inconsistent with the evolutionary theories it claims to be based upon, and consequently ideological. Three further questions were posed and left for consideration in this chapter. They were the questions, “Was it ever possible to reduce human behaviour to biology?”, “Why is sociobiology ubiquitous – why does it persist?” and “What is the alternative to sociobiology?” These questions follow intuitively from the conclusions reached in the last chapter but they are also salient for other reasons. Amongst these other reasons are important issues about the epistemology of knowledge and the fact that Ruse sought to have the final word on sociobiology in 1985 by claiming that critics of sociobiology had no standing until they produced a suitable alternative theory to sociobiology.1 In a nutshell the three questions are salient because they raise fundamental issues about claims to the legitimacy of knowledge – fundamental issues bearing on the validity of the thesis advanced here. Therefore, this chapter is concerned with the epistemology of the study of human nature. It provides a bridge to the next chapter reconciling postmodernism and the theory of ideology to explain that sociobiology is an ideology. This chapter concludes with the assertion that sociobiology (or its successors) is never likely to succeed as a legitimate explanation for human nature but is likely to persist because of its utility as an ideology. It also concludes that theories about human nature will always be contestable because they are inextricably bound up with power – the power of description. What matters more than explanations for

1 M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 83. Ruse devotes an entire Chapter (Chapter 5, pp. 74 – 101) to a defence against Sahlins’ argument that sociobiology is fundamentally capitalist ideology.

183 human behaviour are the reasons given for a particular model since the reasons themselves are often as enlightening as the model itself.

Was it ever possible?

The short answer to the question “was sociobiology ever going to deliver a genetic explanation for human nature?” is “no”.2 Rather, sociobiology was part of a long tradition of failed attempts to explain political hierarchies according to innateness. It was therefore unlikely to be possible. The reasons for this assertion are set out below.

Earlier Versions of Scientific Excuses

Sociobiology is a recent version of many failed attempts within a long tradition of seeking universal laws of nature using the epistemology of reductionism - in the case of sociobiology an extreme micro-reductionism.3 It is a recycled version of earlier discredited and refuted “scientific” theories attempting to explain differences between humans and prescriptions for social policy, such as monogenesis, polygenesis, phrenology, social-Darwinism, and eugenics.4 In one respect Ruse conceded this much in his defence of sociobiology: Whilst it may not endorse extreme views, it still does give spurious countenance to some Neanderlithic social and political ideas. In particular, it is just extreme Social Darwinism in modern dress. Sociobiologists may not openly quote John D. Rockefeller to the effect that the struggle for existence sanctions modern capitalism, but essentially their message is the same. Sociobiologists may not endorse racism, but they do endorse an extremely right-wing free-enterprise system.5

2 Lewontin was correct all along. R.C. Lewontin, The Doctrine of DNA: Biology as Ideology, Penguin, Ringwood, Victoria, 2001, 68: ‘The DNA I got from my mother differs by about one tenth of one percent, or about 3,000,000 nucleotides, from the DNA I got from my father, and I differ by about that much from any other human being. The final catalogue of “the” human DNA sequence will be a mosaic of some hypothetical average person corresponding to no-one.’ 3 S. Rothman, Lessons from the Living Cell: The Limits of Reductionism, McGraw-Hill, Sydney, 2002, 19 – 44, especially 39 – 40. Rothman distinguishes between two types of reductionism: (1) weak “microreductionism” and (2) strong “microreductionism”. The fact that there is a long tradition partly explains why this thinking is so ubiquitous and this is discussed below. 4 R. Young, Whatever Happened To Human Nature?, Process Press, Chapter 7, “Science, Ideology and Human Ancestry”. 5 M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 79.

184 However, in another respect he rejected this suggestion. Ruse avoids the detailed and careful literature6 showing an historical symbiotic relationship between sociobiology, its antecedents and capitalism by concluding that ‘the relationship between biological Darwinism and Social Darwinism is far from a simple one of historical cause and effect’.7 He side-steps the historiography of sociobiology in one condescending sentence saying: But let us leave this all on one side and grant Sahlins his history, which is certainly no worse than that of most scientists.8 Ruse’s attempt to quarantine sociobiology from its antecedents had two prongs to it: Until someone comes up with a rival theory of human evolution, one which can explain the facts as well as these do, they must suffice. But, secondly, I would deny that they are tainted with the ideology of Western capitalism. … Nor have such normative claims been smuggled back again.9 As a theoretical proposition, his argument that sociobiology is not ideology (viz: no cause and effect as a consequence of an historical shuttle of ideas between capitalism and biology) raises complex issues of theory that are discussed in full in the next chapter. As an empirical proposition Ruse’s defence collapses based on the particular evidence supplied in Chapter 7 and thereafter. There sociobiology appears either expressly or impliedly in decisions and institutions imposing hierarchy and oppression on people within the categories of gender, sexuality and race. For now, it is important to put to rest the assertion that there was no circular shuttle of ideas between biology, sociobiology, and the antecedents of sociobiology and capitalist political economy.10 The evidence to the contrary is overwhelming and this is a claim that I take to be axiomatic based on the extent of the literature.11 There has always been a circular shuttle of ideas between biology and political thought.

6 R. Hofstadter, Social Darwinism in American Thought, Revised edition, George Braziller, New York, 1959; G. Jones, Social Darwinism and English Thought: The Interaction between Biological and Social Theory, The Harvester Press, Sussex, 1980; M. Sahlins, The Use and Abuse of Biology, University of Michigan Press, Michigan, 1976; and R. Young, Darwin’s Metaphor, Cambridge University Press, Sydney, 1985. 7 M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 81. 8 M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 81. 9 M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 83. 10 See further Chapter 2 above and Chapter 6 below. 11 R. Hofstadter, Social Darwinism in American Thought, Revised edition, George Braziller, New York, 1959; R. Hubbard, “Have Only Men Evolved” in R. Hubbard, M. Henifin & B. Fried (eds), Biological Woman - The Convenient Myth: A Collection of Feminist Essays and a Comprehensive Bibliography, Schenkman Publishing Co, Cambridge (Mass), 1982, 25; G. Jones, Social Darwinism

185 All other things being equal, a sordid past without more would not be enough to dismiss sociobiology as just ideology. If that were the case then much of what passes for modern science might also be dismissed.12 For instance, biology, its more respectable companion is not dismissed just because at times it is overtly political and anthropomorphic: Biology has intrinsically been a branch of political discourse, not a compendium of objective truth. Further, simply noting such a connection between biological and political/economic discourse is not a good argument for dismissing such biological argument as bad science or mere ideology.13 What does bury sociobiology is the fact that, unlike biology, it lacks a critical mass of evidence, it is unable to accurately predict human behaviour, and because it contains far too many ‘arbitrary elements’.14 All that remains of the case for sociobiology is the normative assertion made by its advocates that theories about human nature should be aligned with evolutionary theory. Addressing this epistemological issue answers the question “was it ever possible” for Sociobiology to explain human behaviour?

Ockham’s Razor

All disciplines necessarily rely variously on “Ockham’s razor” (in the sense of abstraction, fundamentalism, and universalism) or “reductionism”.15 What is questioned here is the extent to which these reductionist methods are appropriate to an understanding of human nature.16 In general reductionism may be justified for one of

and English Thought: The Interaction between Biological and Social Theory, The Harvester Press, Sussex, 1980; M. Sahlins, The Use and Abuse of Biology, University of Michigan Press, Michigan, 1976; B. Spanier, ‘“Lessons” from “Nature”: Gender Ideology and Sexual Ambiguity in Biology’ in Body Guards: The Cultural Politics of Gender Ambiguity, J. Epstein & K. Straub (eds), Routledge, New York, 1991, 329 - 350; and R. Young, Darwin’s Metaphor, Cambridge University Press, Sydney, 1985. 12 P. Feyerabend, Against Method, London, Verso, 1978; and M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 125-126, 162, 239. 13 D. Haraway, Simians, Cyborgs, and Women: The Reinvention of Nature, Routledge, New York, 1991, 98. 14 S.W. Hawking, A Brief History of Time, Bantam Books, Sydney, 1992, 10 – 11. 15 J. Urmson & J. Ree (eds.), The Concise Encyclopedia of Western Philosophy & Philosophers, 2nd ed, London, Routledge, 1995, 326. Sir William of Ockham is famous for his statement: ‘plurality is never to be posited without need’, which is known as “Ockham’s razor”. 16 S. Rothman, Lessons from the Living Cell: The Limits of Reductionism, McGraw-Hill, Sydney, 2002, 25: ‘In my view, it is to the concept of universalism that the successes of reductionist biology can in

186 two interconnected reasons: either it improves prediction or it makes data more manageable without sacrificing accuracy. But even where it does satisfy this criterion it is no guarantee that it is superior to alternative explanations.17 Eminent physics writer Stephen Hawking states that a good scientific theory has two requirements: It must accurately describe a large class of observations on the basis of a model that contains few arbitrary elements, and it must make definite predictions about the results of future observations.18 Hawking adds that a theory is always provisional because it can never be proven, only refuted by contrary evidence, and in practice, most theories are retained as extensions of newer theories.19 This fits with a pattern identified by Lakatos in the sense that old theories tend to get recycled according to subsequent theories.20 An example of this might be the abandonment of “social Darwinism” and “phrenology” as scientific heresy to re-emerge in a more subtle form as Sociobiology or evolutionary psychology. The key epistemological argument made by Sociobiology was that explanations of human nature needed to be aligned with evolutionary theory.21 This implies a number of assumptions and these are (1) that one theory can explain all; (2) that natural science is superior to social science; (3) that the theory of evolution is concluded so that what is known will not change; and (4) that an organism is the sum of its constituent parts. Each assumption is critically assessed below leading to the conclusion that it was a futile pursuit to reduce human nature to genes by aligning it with evolutionary theory as it is characterised by Sociobiology.

great part be attributed. To many this is reductionism, but the term has accumulated many other meanings, some of which are not so easily justified.’ 17 P. Feyerabend, Against Method, London, Verso, 1978, 18 – 22, 283; and see the discussion below under the heading “(2) That natural science is superior to social science – the fiction of hierarchical universalism”. 18 S.W. Hawking, A Brief History of Time, Bantam Books, Sydney, 1992, 10 - 11. So for example, Newton’s theory of gravity fits the criteria: ‘… bodies attracted each other with a force that was proportional to a quantity called their mass and inversely proportional to the square of [at 11] the distance between them. Yet it predicts the motions of the sun, the moon, and the planets to a high degree of accuracy.’ 19 S.W. Hawking, A Brief History of Time, Bantam Books, Sydney, 1992, 10 – 11. 20 I. Lakatos, “Methodology of Scientific Research Programmes” in Lakatos, I, & Musgrave, A (eds), Criticism and the Growth of Knowledge, Cambridge University Press, London, 1976, pp 91-196. 21 R.D. Alexander, “The Search for an Evolutionary Philosophy” (1971) 84 Proceedings of the Royal Society of Victoria 99; R.D. Alexander, “The Search for a General Theory of Behaviour” (1975) 20 Behavioral Science 77, 85; and E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, 4 & 274.

187 (1) That one theory can explain all – the fiction of “grand universalism” Was it ever likely that one single theory – sociobiology - could account for human behaviour? Scientists are divided over whether or not it is possible to achieve a grand theory to explain the entire universe, and Hawking is one of those scientists who see this as the ultimate objective of science.22 In physics it is embodied in the quest for “grand universalism”, the idea that there can and ought to be a theory capable of explaining all – a theory for everything.23 While in biology, Sociobiologists see genes and DNA as capable of explaining human nature – hence their misplaced optimism associated with the Human Genome Project.24 This optimism is based on a faith; a faith that future science will deliver truth. Reductionism in this sense assumes that our current inability to ‘describe humans, no less human society, in terms of their constituent atoms is simply a technical difficulty’.25 But is this faith misguided? Because: It is one thing to believe that there are universal laws and that science should look for such laws through a process that seeks the greatest possible generalization, but it is quite another to expect to accomplish reduction to an all-encompassing algorithm.26 In terms of physics, Hawking concedes that it is ‘very difficult to devise a theory to describe the universe all in one go’: Instead, we break the problem up into bits and invent a number of partial theories. … Today scientists describe the universe in terms of two basic partial theories – the general theory of relativity and quantum mechanics.27

22 S.W. Hawking, A Brief History of Time, Bantam Books, Sydney, 1992, 11 - 12: ‘The eventual goal of science is to provide a single theory that describes the whole universe. However, the approach most scientists take is to separate the problem into two parts. First, there are the laws that tell us how the universe changes with time. … Second, there is the question of the initial state of the universe.’ 23 S. Rothman, Lessons from the Living Cell: The Limits of Reductionism, McGraw-Hill, Sydney, 2002, 27 – 28. It seeks in effect to reconcile two apparently antagonist, but well established theoretical paradigms in physics (viz: Newton’s laws of motion which suggest the universal principle of “stability” and quantum mechanics which suggests that at the sub-atomic level “chaos” and “instability” are universal), and one such theory of “everything” being proposed is “string theory”. See also: R. Appigignanesi & C. Garratt, Introducing Postmodernism, Icon Books, Cambridge, 1999, at 108 – 109. 24 S. Rothman, Lessons from the Living Cell: The Limits of Reductionism, McGraw-Hill, Sydney, 2002, 3: ‘… the genome has been sequenced, and nothing even remotely approaching the complete mastery of life’s character has been achieved.’ 25 S. Rothman, Lessons from the Living Cell: The Limits of Reductionism, McGraw-Hill, Sydney, 2002, 41. 26 S. Rothman, Lessons from the Living Cell: The Limits of Reductionism, McGraw-Hill, Sydney, 2002, 29. 27 S.W. Hawking, A Brief History of Time, Bantam Books, Sydney, 1992, 11 – 13. The difference between these two partial theories is that, ‘The general theory of relativity describes the force of gravity

188 Significantly, these two “partial theories” in physics are known to be inconsistent with each other.28 This does not render either theory obsolete; it merely signals just how unlikely it will be for one theory to explain all.29 This is a particularly pertinent lesson for sociobiologists.30 In other words, social construction theories may be valid even if they are not strictly compatible with molecular biology because they are concerned with fundamentally different subject matter. In any case there are dangers associated with one faith requiring the obedience of other faiths. As Tinker puts it citing Feyerabend (1963), ‘A one-theory system in science would be as unproductive as a one-party system in the state’.31

(2) That natural science is superior to social science – the fiction of hierarchical universalism Sociobiologists believe that their approach has more merit than alternative explanations from other disciplines because science is superior to social science.32

and the large-scale structure of the universe’, and , ‘quantum mechanics, on the other hand, deals with phenomena on extremely small scales’, at 12 & 13 respectively. 28 S.W. Hawking, A Brief History of Time, Bantam Books, Sydney, 1992, 13. 29 Indeed, as Hodges explains, Gödel had made it clear in 1931 that it was theoretically impossible to have a single theory for everything in the sense that consistency and completeness could not both be attained, in A. Hodges, “Turing: A Natural Philosopher” in F. Raphael & R. Monk (eds), The Great Philosophers, Weidenfeld & Nicholson, London, 2000, 412. And as Rothman points out the search for a single theory is futile given ‘Gödel’s famous principle of incompleteness and the related ideas of Turing and others to show that a complete and comprehensive reduction is not possible, even in theory,’ in S. Rothman, Lessons from the Living Cell: The Limits of Reductionism, McGraw-Hill, Sydney, 2002, 28 – 29. At 41: ‘… even in the simplest areas of mathematics, such as numbers theory, a reduction is not always impossible. Gödel’s theorem was called the incompleteness theorem because whatever the reduction, and however well one could entail a particular theory, something was inevitably missing, and that something was necessary for the most encompassing, the most general, explanatory model. … there is something beyond the parts of systemns that can never be specified, can never be entailed from knowledge of the parts alone. As such, a fully descriptive algorithm just cannot be written.’ 30 R.C. Lewontin, The Doctrine of DNA: Biology as Ideology, Penguin, Ringwood, Victoria, 2001, 59 – 85; and R.C. Lewontin, “Genes, Environment, and Organisms” in Hidden Histories of Science, R.B. Silvers (ed), Granta Publications, London, 1998, 118: ‘The program of Harvey and Descartes to reveal the details of the bêtte machine has worked. The problem is that the machine metaphor leaves something out, and naïve mechanistic biology, which is nothing but physics carried on by other means, has tried to cram it all in at the expense of a true picture of nature.’ And S. Rothman, Lessons from the Living Cell: The Limits of Reductionism, McGraw-Hill, Sydney, 2002, 3. 31 T. Tinker, “Panglossian Accounting Theories: The Science of Apologising in Style" (1988) 13 Accounting Organizations & Society 165, 175. 32 R.D. Alexander, “The Search for a General Theory of Behaviour” (1975) 20 Behavioral Science 77, 85: ‘Many biologists dismiss sound psychological and sociological investigations because in their own view such experimentation is poorly focused or irrelevant. … Asimov (1962, pp. xi-xii) supported an

189 The argument tends to be axiomatic and is based on “hierarchical universalism”.33 Hierarchical universalism treats some disciplines as more objective, logical and precise than others according to a hierarchy: It proposes that the various scientific disciplines are hierarchical in nature, from the most fundamental (simplest) to the least fundamental (most complex) in the following order: mathematics, physics, chemistry, biology, and the social sciences. 34 The more fundamental the system of knowledge the more stature it has.35 Put another way, the more abstract its methods or the more its explanations can be expressed in basic terms, the higher it ranks as a discipline.36 So highly prized is this idea of explaining phenomena in its most fundamental form that it now dominates research in both physics and biology.37 The point to be made here is that the advantages of reductionism can be lost where intellectual arrogance overtakes reason and leads to the exclusion of other explanations.38 This is relevant for sociobiology because it makes the two key errors – both are discussed next - the fiction of static universalism and the error of extreme micro-reductionism.

implication all too prevalent in science when he suggested that only the methods of the physical scientists can solve behavioural problems …’ 33 S. Rothman, Lessons from the Living Cell: The Limits of Reductionism, McGraw-Hill, Sydney, 2002, 26 – 27. 34 S. Rothman, Lessons from the Living Cell: The Limits of Reductionism, McGraw-Hill, Sydney, 2002, 26: ‘Information from less fundamental disciplines can be explained in terms of or reduced to the rules of the more fundamental ones; but not the other way around. For example, however difficult, social organization can at least theoretically be explained in terms of the properties of atoms, but the properties of atoms can never be explained in terms of social organization.’ 35 J. Urmson & J. Ree (eds.), The Concise Encyclopedia of Western Philosophy & Philosophers, 2nd ed, London, Routledge, 1995, 326. This is often expressed as “Ockham’s razor” an epistemological axiom pronounced by Sir William of Ockham as ‘plurality is never to be posited without need’. 36 S. Rothman, Lessons from the Living Cell: The Limits of Reductionism, McGraw-Hill, Sydney, 2002, 27. In other words, physics is more fundamental than biology because: ‘… living systems make up a trivial portion of our planet’s mass, and an infinitesimal part of the matter in the universe. It does not seem reasonable that such trivial proportion of known matter would embody more basic laws than the far, far greater mass of inanimate material,’ and ‘Similarly, it can be argued that biological life has been present for only a fraction of the existence of the universe.’ 37 S. Rothman, Lessons from the Living Cell: The Limits of Reductionism, McGraw-Hill, Sydney, 2002, 44. 38 R. Feynman, The Meaning Of It All, Ringwood Victoria, Penguin, 1998, 20. As Feynman explains: ‘So the more specific the rule, the more powerful it is, the more liable it is to exceptions, and the more interesting and valuable it is to check.’

190 (3) That the theory of evolution is concluded so that what is known will not change – the fiction of static universalism Sociobiology treats rival approaches to the study of human nature as inferior because they lack an evolutionary frame of reference and because they are not as theoretically rigorous as theories from within science.39 It is important to draw a distinction between a benign recommendation to align theories of human nature with evolutionary theory in broad terms from the extreme objective that theories of human nature must be aligned with a sociobiological view of evolutionary theory. The difference is critical because it was explained in Chapter 4 that sociobiology over- emphasises sexual selection and frequently breaks the rule that selection takes place at the level of the individual not the level of DNA or genes, and can be contrasted with evolutionary theory for these reasons. In addition, to be forced to follow a single method within a single paradigm ‘would rob science of the elasticity without which progress cannot be achieved’.40 It is also problematic for another reason. It treats evolutionary theory as final or fixed. Sociobiologists, take the view that what is known now is a foundation for development – this is known as “static universalism”.41 It is the idea that current science is established immutable truth.42 Conversely, the history of science shows that no theories, however elegant, have ever been immutable or eternal.43 Laws of nature and universal theories are rarely expressed accurately and are never as yet

39 E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, 4: ‘… to reformulate the foundations of the social sciences in a way that draws these subjects into the Modern Synthesis’, and the original version read, ‘to place the social sciences within a biological framework constructed from a synthesis of evolutionary studies, genetics, population biology, ecology, animal behaviour, psychology and anthropology’ per E.O Wilson, Sociobiology: the New Synthesis, Cambridge, Harvard University Press, 1976, 4. 40 P. Feyerabend, Against Method, London, Verso, 1978, 303. 41 S. Rothman, Lessons from the Living Cell: The Limits of Reductionism, McGraw-Hill, Sydney, 2002, 31. 42 In some cases this camp regards very little more will be achieved beyond what is already known because the major truths are now already established as unchallengeable truth. Rothman refers to this view as “strong static universalism”, per S. Rothman, Lessons from the Living Cell: The Limits of Reductionism, McGraw-Hill, Sydney, 2002, 32. 43 R. Feynman, The Meaning Of It All, Ringwood Victoria, Penguin, 1998, 28; and S. Rothman, Lessons from the Living Cell: The Limits of Reductionism, McGraw-Hill, Sydney, 2002, 31; and I. Lakatos, & A. Musgrave, (eds), Criticism and the Growth of Knowledge, Cambridge University Press, London, 1976.

191 immutable.44 Over the centuries since the Ancients rules, theories and paradigms have come and gone in science like tastes in fashion.45 As Feynman points out: … what we call scientific knowledge today is a body of statements of varying degrees of certainty. Some of them are most unsure; some of them are nearly sure; but none is absolutely certain. 46 Good examples of such changes within evolutionary theories are the oscillations between, monogenesis and polygenesis, preformationists and epigenesis, selection at the individual and group level, and the oscillations concerning Lamarck’s theories and .47 Evolutionary theory has changed and will continue to change in the future.48 Sociobiology too has changed and will continue to change, most likely due to a combination of critique aimed at exposing its foundational ideology and myths, and from less ideologically driven empirics.49 Clearly it would fetter research to require it to be aligned with “current evolutionary theory” which is code for the sociobiological notion that human behaviour is a product of an individual’s selfish goal to maximise the reproduction of their genes.50

44 J.B.S. Haldane, “The Laws of Nature”, Rationalist Annual, 1941, pp. 1 – 5, at 2: ‘It is quite probable that every law of Nature so far stated has been stated incorrectly. Certainly many of them have. Nevertheless, these inaccurately stated laws are of immense practical and theoretical value.’ 45 S. Rothman, Lessons from the Living Cell: The Limits of Reductionism, McGraw-Hill, Sydney, 2002, 31: ‘One could fill a book with examples to show how human perception of what is fundamental has changed and changed again, year after year, century upon century.’ 46 R. Feynman, The Meaning Of It All, Ringwood Victoria, Penguin, 1998, 28. 47 See further respectively: R. Bernasconi (ed), “Introduction”, American Theories of Polygenesis, Thoemmes Press, Bristol, 2002, page 1 of 8; and Anthony S. Wohl, Professor of History, Vassar College, “Race in Victorian Thought and Science”, The Victorian Web, (monogenesis & polygenesis); R.C. Lewontin, “Genes, Environment, and Organisms” in Hidden Histories of Science, R.B. Silvers (ed), Granta Publications, London, 1998, 115 – 140, 122 - 123; and S.F. Gilbert, “The Genome in its Ecological Context: Philosophical Perspectives on Interspecies Epigenesis” (2002) 981 Annals of New York Academy of Science 202 (epigenesis and preformationists); E. Mayr, What Makes Biology Unique? Considerations on the autonomy of a scientific discipline, Cambridge University press, Cambridge, 2004, 130 - 150 (level of selection); Lateline, “Rethinking Darwin”, 8 October 1998, ABC; Ockham’s Razor, “Lamarck’s Signature”, 1 November 1998, ABC Radio National; J. Lederberg, “The Meaning of Epigenetics” (2001) 15(18) The Scientist 6; and M.E. Pembrey, L.O. Bygren, G. Kaati, S. Edvinsson, K. Northstone, M. Sjostrom & J. Golding, “Sex-specific, male-line transgenerational responses in humans” (2006) 14 European Journal of Human Genetics 159 (Lamarck’s theories and epigenetics). 48 P. Gowaty, “Sexual Natures: How Feminism Changed Evolutionary Biology” (2003) 28(3) Signs: A Journal of Women in Culture 901. 49 C. Badcock, Evolution and Individual Behaviour, Oxford, Basil Blackwell, 1991, xi – xiii. 50 R.D. Alexander, “The Search for a General Theory of Behaviour” (1975) 20 Behavioral Science 77, 96.

192 (4) That an organism is the sum of its constituent parts – the impossibility of micro- reductionism. Although the idea that an organism is the product of its constituent parts enjoys a long tradition, it is an idea taken to extreme in sociobiology. Rothman calls this extreme reductionism “strong micro-reductionism”.51 It is a question of degree contingent upon the object of the inquiry. Hence it is context specific. In physics, Newton’s theory of gravity and Einstein’s theory of relativity are expressions of the universe reduced to algorithms. Despite the complexity and rigour of the maths involved, these are fundamental and elegantly simple theories (e.g. E = MC2) given what they can predict and explain.52 Therefore physics has been served well by micro-reductionism. Chemistry has too.53 However, it has been shown to be impossible in the most fundamental of all disciplines - mathematics.54 It is also questioned in physics: Even though determinism, in the main, still holds sway in physics, where it has been most fully realized and where it has dominated thinking for centuries, it has nonetheless been under fire for most of the twentieth century. Quantum mechanics has shown that there is apparently much that is unpredictable even

51 S. Rothman, Lessons from the Living Cell: The Limits of Reductionism, McGraw-Hill, Sydney, 2002, 19 – 44, especially 39 – 40. Rothman distinguishes between two types of reductionism: (1) weak “microreductionism” and (2) strong “microreductionism”. 52 As Rothman and Hawking point out Newton’s theory of gravity is retained despite inconsistency with Einstein’s theory of relativity. S.W. Hawking, A Brief History of Time, Bantam Books, Sydney, 1992, 11: For example, Newton’s theory has been shown to be inaccurate in terms of ‘a small difference between the motion of Mercury and the predictions of Newton’ it remains in use ‘for all practical purposes’ because the difference between its predictions and those of Einstein’s general relativity is ‘very small in the situations’ that scientists deal with. S. Rothman, Lessons from the Living Cell: The Limits of Reductionism, McGraw-Hill, Sydney, 2002, 38: ‘… Being able to accurately predict the future is perhaps the most remarkable feature of Newton’s law of motion. … We cannot predict the future with much accuracy in everyday life … yet we can predict with unerring accuracy the location of a spacecraft in a minute, an hour, or a month.’ 53 R.C. Lewontin, “Genes, Environment, and Organisms” in Hidden Histories of Science, R.B. Silvers (ed), Granta Publications, London, 1998, 115. 54 S. Rothman, Lessons from the Living Cell: The Limits of Reductionism, McGraw-Hill, Sydney, 2002, 28-29 & 41. At 41: ‘Early this century the mathematician David Hilbert began an enormously ambitious research program. He argued that if reductionism is correct, then it should be possible to explicitly formalize all of mathematics in a series of expressions. … Hilbert failed, and the death knell of his research program was tolled by Gödel’s incompleteness discovery. As we have already discussed [see 28-29], even in the simplest areas of mathematics, such as numbers theory, a reduction is not always possible. Gödel’s theorem was called the incompleteness theorem because whatever the reduction, and however well one could entail a –particular theory, something was inevitably missing, and that something was necessary for the most encompassing, the most general, explanatory model. One implication of this conclusion is that there is something beyond the parts of systems that can never be specified, can never be entailed from knowledge of the parts alone.’

193 about atoms. … At the quantum level, chance, not certain prediction, leads to outcomes.55 Yet despite this conjecture in physics and its impossibility in maths, in the life sciences, and notably sociobiology, micro-reductionism remains dominant, without comparable success.56 Context is important. In terms of biology, and in particular human behaviour, micro-reductionism will not only be problematic, it will be misleading.57 It is problematic because living systems can not be equated with systems in physics.58 Mayr explains that unlike physics which deals with laws and universals, biology deals with concepts, and for this reason is an “autonomous” science.59 The only way evolutionary theories could share the chalice of fundamentalism with physics would be to ignore the “rule” that selection takes place at the level of the individual and replace it with selection at the level of genes or DNA. Sociobiologists pledge

55 S. Rothman, Lessons from the Living Cell: The Limits of Reductionism, McGraw-Hill, Sydney, 2002, 38. 56 S. Rothman, Lessons from the Living Cell: The Limits of Reductionism, McGraw-Hill, Sydney, 2002, 40. At 44: ‘But when we examine the accomplishments of biology, paying attention to the full palette of knowledge that led to them, we see that none is a consequence of strong micro-reductionism.’ 57 R.C. Lewontin, The Doctrine of DNA: Biology as Ideology, Penguin, Ringwood, Victoria, 2001, 122. As Lewontin asserts: ‘it misses the whole point’ because, ‘it is not that the whole is more than the sum of its parts. It is that the properties of the parts cannot be understood except in their context in the whole.’ Further: ‘Parts do not have individual properties in some isolated sense, but only in the context in which they are found.’ 58 There are a range of reasons for this distinction discussed below as grounds for the “sufficiency principle”. In short humans are not like robots which may well be the sum of their parts. R.C. Lewontin, “Genes, Environment, and Organisms” in Hidden Histories of Science, R.B. Silvers (ed), Granta Publications, London, 1998, 115 – 140, 117: ‘The explanation of all biological phenomena, from the molecular to the social, as special cases of a few overarching laws is the culmination of a program for the mechanization of living phenomena that began in the seventeenth century with the publication in 1628 of William Harvey’s Exercitatio de motu cordis et sanguins in animalibus (On the motion of the heart and blood in animals) … Descartes’ elaboration of a general machine metaphor for organisms, in Part V of the Discours, made extensive use of the work of Harvey. … So the program of mechanistic biology has been to describe the bits and pieces of the machine, to show how the pieces fit together and move to make the machine work as a whole, and to discern the tasks for which the machine is designed. That program has had extraordinary success. … [at 118] The problem is that the machine metaphor leaves something out, and naïve mechanistic biology, which is nothing but physics carried on by other means, has tried to cram it all in at the expense of a true picture of nature. The problems of biology are not only the problems of an accurate description of the structure and function of the machines, but also the problem of their history.’ R.C. Lewontin, The Doctrine of DNA: Biology as Ideology, Penguin, Ringwood, Victoria, 2001, 14: ‘We have become so used to the atomistic machine view of the world that originated with Descartes that we have forgotten that it is a metaphor.’ 59 E. Mayr, What Makes Biology Unique? Considerations on the autonomy of a scientific discipline, Cambridge University press, Cambridge, 2004, 28.

194 allegiance to evolutionary theory but they also contradict it by embracing micro- reductionism.60 Micro-reductionism is misleading in biology because of the “sufficiency principle”.61 That is to say: Biologists applying … reductionism attempt to break open the various black boxes that compose living systems in order to isolate and identify their underlying structures and examine their most deep-seated properties. They argue that such knowledge is pre-requisite for a rigorous understanding of the whole. It is a necessary but not sufficient condition.62 The crucial difference between scientific reductionism and sociobiology’s micro- reductionism is a matter of degree. Sociobiologists argue that reduction to the DNA level is both necessary and sufficient: … the parts entail the whole in all of its aspects, whether we are talking of cellular substructure, cell, organs, organisms, or even groups of organisms. And if this is true, we arrive at a remarkable conclusion. If each element in this chain of life is the sum of its component parts, then life can be reduced to its molecular instantiation. That is, life not only has a molecular basis, but complete molecular causation.63

60 E.O. Wilson, Sociobiology: The Abridged Edition, Harvard University Press, Cambridge, 1980, 3: ‘In a Darwinist sense the organism does not live for itself. Its primary function is not even to reproduce other organisms; it reproduces genes, and it serves as their temporary carrier. Each organism generated by sexual reproduction is a unique, accidental subset of all the genes constituting the species. … But the individual organism is only their vehicle, part of an elaborate device to preserve and spread them with the least possible biochemical perturbation. Samuel Butler’s famous aphorism that the chicken is only an egg’s way of making another egg has been modernised: the organism is only DNA’s way of making more DNA. More to the point, the hypothalamus and limbic system are engineered to perpetuate DNA.’ 61 S. Rothman, Lessons from the Living Cell: The Limits of Reductionism, McGraw-Hill, Sydney, 2002, 42. 62 S. Rothman, Lessons from the Living Cell: The Limits of Reductionism, McGraw-Hill, Sydney, 2002, 42 (emphasis added). 63 S. Rothman, Lessons from the Living Cell: The Limits of Reductionism, McGraw-Hill, Sydney, 2002, 43. To be more precise, strong micro-reductionism holds: ‘… life can be reduced to two molecules and two simple truths about them – protein molecules entail biological function, and DNA molecules entail proteins. … I have used the word entails to mean “describes or accounts for fully”. … it is useful to take a moment to be more explicit. It is a very important word. Most simply, it means that A causes B for objects, or A implies B for models. Beyond this, it means that A is necessary and sufficient for B. Nothing else is required for B. In a strong micro-reductionist context, this means that the whole (B) is the sum of its parts (the collective A), and nothing more.’

195 The sufficiency principle is based on several grounds all of which indicate that human nature cannot be reduced to the level of DNA.64 Many of these arguments relate to the special qualities of an organism “as a whole”: … what is missing from this reductionist view are the properties of objects whole and intact.65 In other words: In biology there are phenomena that originate only from whole cells and organisms. They involve relationships between various parts of the object, the context in which it exists, and any information that it might contain, all expressed in space and over time. These phenomena cannot be found in, nor understood or inferred from, the intimate structure of the object … viewed in isolation – however rigorous our knowledge of them may be.66 Of all the phenomena that can be associated with a cell, human behaviour is the most remote.67 But even an organism’s morphology cannot be explained by its molecular composition due to developmental contingencies,68 and this makes it even less likely that behaviour will be the product of genes.69 Behaviour is also contingent on reciprocity – on the “social”. Stated differently, ‘control doesn’t flow from the gene outward’ to regulate morphology or behaviour.70 Yet sociobiology views behaviour as

64 Centre for Genetics Education, Fact Sheet 22, “The Human Genome Project”, pp. 246 – 250, 250: ‘… environment also plays a major role. This is not just the physical environment such as diet and climate but also education, housing and access to high quality health services. We are all more than the sum of our genes.’ 65 S. Rothman, Lessons from the Living Cell: The Limits of Reductionism, McGraw-Hill, Sydney, 2002, 42. 66 S. Rothman, Lessons from the Living Cell: The Limits of Reductionism, McGraw-Hill, Sydney, 2002, 42. 67 This much has been acknowledged already by Sociobiologists: R.D. Alexander, “The Search for an Evolutionary Philosophy” (1971) 84 Proceedings of the Royal Society of Victoria 99, 100. 68 R.C. Lewontin, The Doctrine of DNA: Biology as Ideology, Penguin, Ringwood, Victoria, 2001, 26, 27 & 47. Genes can help to explain differences between the morphology of species like the difference between a snake and a kangaroo, but they don’t explain differences between individual snakes and kangaroos of the same species. This is due to the dialectical interaction between the developing organism and its environment. For example, two such developmental variables arising from the environment are nutrition and temperature which can impact on genes and hormones. 69 Kennelly, S. Merz, & J. Lorber, “What is Gender?” (2001) 66(4) American Sociological Review 598, 599. Better models do not assume: ‘… that biological and social factors act independently, but instead argues for a loop-back interchange of bodily, behavioural, environmental, interactive, and social structural factors. Interactive models recognize that hormonal input may indeed affect behaviour but also demonstrate that the pathways are reciprocal since behaviour has also been shown to affect hormone levels.’ 70 S. Sperling, “Baboons with Briefcases: Feminism, Functionalism, and Sociobiology in the Evolution of Primate Gender” (1991) 17(1) Signs 1, 5: ‘To understand the vastly more complex developmental

196 an end-product of evolution (viz: as adaptive) rather than as a dynamic process that varies over time and within any given individual.71 This means that sociobiology privileges the present over the past and future and severs them off, ‘there is no requirement to investigate its origins or processes’.72 Sociobiology therefore contains a massive contradiction. On the one hand it claims to build on evolutionary theory which is a concept dealing with change, yet in practice sociobiology is a theory based on the static situation of an organism.73 As Lewontin explains an organism’s structure is a product of the organism’s history, and the history of its dynamic interaction with its environment.74 This means that it would be impossible to reduce human behaviour to DNA because: … systems in which history is important are systems in which influences outside the structures themselves play an important role in determining their [at 120] function, so to the extent that those outside forces may vary, the history of the system itself will vary.75 In other words, the discipline of history (and in particular historic materialism) would have more scope to tell us about human behaviour than stories based on DNA.76 For these reasons sociobiology was never likely to explain human nature. Just because sociobiology looks scientific and emphasises some aspects of evolutionary theory does not mean it is epistemologically superior.77

sequences involved in the acquisition of gendered primate behaviour, we must study it developmentally rather than attempting to reduce discourse to arguments about ultimate genetic fitness.’ 71 S. Sperling, “Baboons with Briefcases: Feminism, Functionalism, and Sociobiology in the Evolution of Primate Gender” (1991) 17(1) Signs 1, 6. 72 J. Munoz-Rubio, “Sociobiology and human nature” (2002) Vol 27 No 2 Interdisciplinary Science Reviews 131, 140. 73 J. Munoz-Rubio, “Sociobiology and human nature” (2002) Vol 27 No 2 Interdisciplinary Science Reviews 131, 140: ‘In sociobiological theory all this constitutes in itself a contradiction, since sociobiology is a discipline rooted in an evolutionist conception of the world, that is of a world changing through time.’ 74 R.C. Lewontin, “Genes, Environment, and Organisms” in Hidden Histories of Science, R.B. Silvers (ed), Granta Publications, London, 1998, 119: ‘… a complete understanding of organisms cannot be separated from their histories. So the problem of how the brain functions in perception and memory is precisely the problem of how the neural connections come to be formed in the first place under the influence of sights, sounds, caresses, and blows.’ 75 R.C. Lewontin, “Genes, Environment, and Organisms” in Hidden Histories of Science, R.B. Silvers (ed), Granta Publications, London, 1998, 119 – 120. This means, at 20: ‘Any consideration of historical events necessarily demands that we confront the relation between the system that is our object of study and the penumbra of circumstances in which it is embedded, what is inside and what is outside.’ 76 J.B.S. Haldane, “Why I am a Materialist”, Rationalist Annual, 1940, pp. 1 – 7; and F. Engels, Dialectics of Nature, 1883, J.B.S. Haldane (ed). 77 M. Midgley, “Rival Fatalisms: The Hollowness of the Sociobiology Debate” in Sociobiology Examined, A. Montagu (ed), Oxford University Press, Melbourne, 1980, 15-38, at 34: ‘Sociobiology looks “scientific” because it is quantitative, because it is conducted largely in mathematical formulae.

197

What is the Alternative? - Social Construction and Subjectivity

Given that sociobiology cannot account for human behaviour prompts some scrutiny of the rival explanations. That is to say, if human behaviour is not the product of genes, how can it be explained? Strictly speaking, although there is a vast amount of literature dealing with human behaviour outside biology and sociobiological approaches to that topic, there is no particular rival theory of “social construction” that claims to cover the field like sociobiology. Instead there are many theories about human behaviour that do not take biological essence as a starting point.78 Therefore it was somewhat misleading for Ruse to assert that until critics could produce their own rival theory of human behaviour they had no business criticising sociobiology.79 Furthermore, asking “what is the alternative?” risks burying two other interrelated and important questions following intuitively from the previous chapter. One of these questions is whether is it possible to have any “good science” free of ideology?80 The other is a question about power – the power to describe.81 These interrelated issues follow intuitively from the last chapter because there it was shown that biology and sociobiology are not free of political bias, sexism and racism and are necessarily tainted by the models and beliefs of those who practice science. Those who describe (scholars, politicians, editors, etc) tend to occupy privileged positions relative to those they describe (women, minorities, people from “other” cultures). This raises a paradox. The paradox is that if science is always political and

But unless the conceptual groundwork that determines what is being counted and predicted is properly done, the calculations will be just hot air.’ 78 K. D. Wells, “An Alternative to Sociobiology” (1993) Vol 43 No 9 Bioscience 646; and N. Mansfield, Subjectivity: Theories of the self from Freud to Haraway, Sydney, Allen & Unwin, 2000, 13. 79 M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 83. 80 This is a question posed in particular by Fausto-Sterling, Hubbard, and Sperling, respectively: A. Fausto-Sterling, Myths of Gender: Biological Theories About Women and Men, Basic Books, New York, 1985; R. Hubbard, M. Henifin & B. Fried (eds), Biological Woman - The Convenient Myth: A Collection of Feminist Essays and a Comprehensive Bibliography, Schenkman Publishing Co, Cambridge (Mass), 1982; and S. Sperling, “Baboons with Briefcases: Feminism, Functionalism, and Sociobiology in the Evolution of Primate Gender” (1991) 17(1) Signs 1. 81 N. Mansfield, Subjectivity: Theories of the self from Freud to Haraway, Sydney, Allen & Unwin, 2000, 7.

198 cultural, then that same criticism can be levelled at the critic.82 In other words, it is the assertion that if it is impossible to formulate suitable theories because all theories will necessarily be tainted with bias, it must be impossible to criticise for the same reason. This is an issue best postponed until it must be addressed as a specific issue within the next chapter dealing with the theory of ideology. There it becomes a fundamental question about whether or not all human knowledge is “ideological” in the wake of “postmodernism” and according to what is known in the literature as the problem of legitimation or as “Mannheim’s paradox”.83 Therefore only the question – “what is the alternative to sociobiology?” is dealt with here. In 1985, Ruse argued that sociobiology is right - there are genetic differences between races and the sexes and ‘[u]ntil someone comes up with a rival theory of human evolution, one which can explain the facts as well as these do, they must suffice.’84 He argued that critics of sociobiology have no credibility until they furnish their own rival theory of human nature compatible with evolutionary theories. Ruse’s plea deserves scepticism for two solid reasons. Firstly, criticism is important and should not be ignored or discredited because it does not supply an alternative.85 Ruse is invoking a rhetorical device to shield sociobiology. That is to say, apologists for the status quo often demand that critics lose their right to criticise unless they can supply an alternative explanation with better explanatory power. There is some merit in this demand, however, critique is as important to knowledge as description or models and this is well known to historians of the philosophy of science and all those familiar with the work of Hegel.86 As Hunter points out, ‘things do not lose their self-evidence; it has to be taken away from

82 J.B. Thompson, Studies in the Theory of Ideology, Polity Press, Cambridge, 1985, 12. 83 P. Ricoeur, Lectures on Ideology and Utopia, Columbia University Press, New York, 1986, 159. 84 M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 83, 93, 96 – 97, 100. The quote is at 83. However, elsewhere, at 85 & 96, Ruse argues that in essence people are genetically motivated but culture allows this to be over-ridden when necessary. 85 T. Eagleton, The Function of Criticism: From the spectator to post-structuralism, Verso, London, 1991. 86 I. Lakatos, & A. Musgrave, (eds), Criticism and the Growth of Knowledge, Cambridge University Press, London, 1976; and P. Singer, Hegel: A Very Short Introduction, Oxford University Press, Oxford, 2001, 102: ‘Every dialectical movement terminates with a synthesis, but not every synthesis brings the dialectical process to a stop in the way that Hegel thought … Often the synthesis, though adequately reconciling the previous thesis and antithesis, will turn out to be one-sided in some other respect. It will then serve as the thesis for a new dialectical movement, and so the process will continue.’

199 them.’87 The demand for an alternative theory does not shield an existing model or theory from the substance of the criticism. It is instead a contrivance aimed at diverting attention from the criticism. There is a slight but important distinction to be made here between criticism, which seeks to improve or to enhance understanding, and the more cynical versions of postmodernism, that fragment, disperse and deny any possibility of knowledge or hope.88 What critics of sociobiology have done is to extricate sociobiology from evolutionary theories by revealing that while both may be ideological, the former is grossly ideological and it contradicts rather than compliments evolutionary theory.89 Further, critics of sociobiology have shown that evolutionary theory can be improved by recognising intersections between science and ideology.90 Secondly, it is misleading and deceptive to imply that there are no alternatives to sociobiology consistent with evolutionary theory. It is misleading and deceptive because it implies that the vast bulk of literature written on human nature is

87 I. Hunter, “The Time of Theory” (2007) 10(1) Postcolonial Studies 5, 9. Adding further: ‘To take this step is to say that things are never not as they seem; they have to be made “not as they seem”. Or, to revert to Cullier’s idiom, things are never simply “common sense” or “taken for granted”; they must be problematised as such, as the first step in an exercise that will allow us to adopt a sceptical inner department.’ 88 R. Young, Whatever Happened To Human Nature?, Process Press, Online Book, Chapter 2, page 4 of 13: ‘We are left with something fragmented, a bricolage, parody, small-scale, anti-utopian, abandoning the project of totality. It is consumerist, cynical, and offers only the diversions of play in return for all it takes away. The hopes of a vision of a better world have been labelled as idealization and trashed, converting the remains into a dumping ground, a patsy, a scapegoat.’ And at page 5 of 13, Young refers to radical postmodernism as ‘cynical postmodernism’, and argues the better view is that there cannot be no “object” because: ‘The self is not completely fragmented; there is always an ego; there is the coherence of a process.’ See also Eagleton’s criticism of Stanley Fish’s work, in T. Eagleton, Ideology: An Introduction, Verso, London, 1991, 107, 167-171, and in T. Eagleton, Figures of Dissent: Critical Essays on Fish, Spivak, Zizek and Others, Verso, London, 2003, especially at 172 – 174. Berns too notes the dangers of extreme relativism in the context of her assessment of Fish remarking that despite the value of his work Fish is left ‘open to charges that his theory is fundamentally nihilistic, a form of moral relativism in which every belief is as good as any other’; in S. Berns, Concise Jurisprudence, Sydney, Federation Press, 1993, 83. 89 B. Spanier, ‘“Lessons” from “Nature”: Gender Ideology and Sexual Ambiguity in Biology’ in Body Guards: The Cultural Politics of Gender Ambiguity, J. Epstein & K. Straub (eds), Routledge, New York, 1991, 329 – 350, at 344: ‘Indeed, I want to encourage the examination, critique, and re-visioning of biology, but with a transformed concept of biology as the inextricable, cumulative, and non-additive experience of our beings within complex, temporally-specific environments.’ 90 D. Haraway, Simians, Cyborgs, and Women: The Reinvention of Nature, Routledge, New York, 1991, 133 – 137. See also: R. Hubbard, M. Henifin & B. Fried (eds), Biological Woman - The Convenient Myth: A Collection of Feminist Essays and a Comprehensive Bibliography, Schenkman Publishing Co, Cambridge (Mass), 1982; B. Spanier, ‘“Lessons” from “Nature”: Gender Ideology and Sexual Ambiguity in Biology’ in Body Guards: The Cultural Politics of Gender Ambiguity, J. Epstein & K. Straub (eds), Routledge, New York, 1991, 329 – 350; and S. Sperling, “Baboons with Briefcases: Feminism, Functionalism, and Sociobiology in the Evolution of Primate Gender” (1991) 17(1) Signs 1.

200 inconsistent with evolutionary theory.91 Sometimes that may be the case, but more- often it is not. 92 Broadly speaking, there are four loose categories of alternative theories dealing with human nature.93 There are those that arise from within the sciences, advanced by names like Gould, Haraway, Lewontin and Rothman, and just like sociobiology, claim to be consistent with evolutionary theory.94 In Lakatosian terms these theories combine as an entrenched research program within the evolutionary paradigm.95 Unlike the spurious claims of sociobiology, these scholars refuse to treat biology as deterministic, and importantly they provide for a dialectical between an organism and its environment that includes the history of both organism and its context. Then there are the theories that can loosely be categorised as “social construction theories”.96 These theories are more common and have a longer history than sociobiology.97 They frequently originate outside the “hard” sciences (typically from sociology and psychology) but this does not automatically render them antithetical to evolutionary theory. Sometimes they are accused of incompatibility because it is

91 B. J. Risman, “Calling the Bluff of Value-Free Science” (2001) 66(4) American Sociological Review 605, 609. 92 Ruse himself concedes this point when he stated: ‘… strictly speaking, it is not quite proper to say without qualification that genes cause phenotypic characteristics [physical traits]. Apart from anything else, in certain circumstances in loose parlance one wants to say that it is not the genes which cause characteristics, but the environment. … However, strictly speaking, it is not really satisfactory either to say that we have a simple dichotomy of genetically caused characteristics and environmentally caused characteristics. In reality, it is always the genes in conjunction and interaction with the environment which cause such characteristics’, in M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 8. 93 It should be emphasised that these four categories are not mutually exclusive. 94 With the exception of Haraway and Rothman (D. Haraway, Simians, Cyborgs, and Women: The Reinvention of Nature, Routledge, New York, 1991; and S. Rothman, Lessons from the Living Cell: The Limits of Reductionism, McGraw-Hill, Sydney, 2002.) Ruse refers to the work of Gould and Lewontin without recognising the fact that their work is representative of a large alternative paradigm within science taking a different view of human nature according to evolutionary theory. To be sure Ruse (M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985.) refers to Gould (providing no less than six journal and book references) at page 243 and Lewontin (providing no less than eight journal and book references) at pages 245 – 246 of his bibliography. See further: S. J. Gould, Ever Since Darwin: Reflections in natural history, Penguin, Ringwood, Victoria, 1991; D. Haraway, Simians, Cyborgs, and Women: The Reinvention of Nature, Routledge, New York, 1991; R. C. Lewontin, “Genes, Environment, and Organisms” in Hidden Histories of Science, R.B. Silvers (ed), Granta Publications, London, 1998, 115 – 140; and S. Rothman, Lessons from the Living Cell: The Limits of Reductionism, McGraw-Hill, Sydney, 2002. 95 I. Lakatos, “Methodology of Scientific Research Programmes” in Lakatos, I, & Musgrave, A (eds), Criticism and the Growth of Knowledge, Cambridge University Press, London, 1976, pp 91-196. 96 C. S. Vance, “Social Construction Theory and Sexuality” in Constructing Masculinity, M. Berger, B. Wallis, & S. Watson (eds), Routledge, New York, 1995, 37 – 48. 97 N. Mansfield, Subjectivity: Theories of the self from Freud to Haraway, Allen & Unwin, Sydney, 2000; and K. Mannheim, “Utopia in the Contemporary Situation” in C.I. Waxman, The End of Ideology Debate, Funk & Wagnalls, New York, 1968, pp. 10 – 26, at 14.

201 alleged they leave too little room for innateness by over-emphasising “social construction”.98 But whether or not this criticism applies would need to be determined in each case, a point returned to shortly. Another even broader third category of alternative theories questions the possibility that a theory of any kind, loyal to evolutionary theory or not, could ever explain something as complex as human nature. So for example, Lyotard, questions the possibility of subjectivity remarking, ‘each individual is referred to himself - And each of us knows that our self does not amount to much’.99 This category, Mansfield has termed “anti-subjectivity”, and although it has a long genealogy it has a home today in the broad postmodern and post-structuralist literature opposing positivism and modernism.100 Mansfield explains that the notion of “anti-subjectivity” is a legacy of Foucault’s work, noting that Foucault had drawn on Nietzsche’s view that subjectivity was a misnomer and was instead the creation of ‘dominant systems of social organisation in order to control and manage us’.101

98 Faust makes this point in B. Faust, Apprenticeship in Liberty: Sex, Feminism and Sociobiology, Angus and Robertson, Sydney, 1991, 9. Earlier, at 8, Faust writes, ‘In five books about science, biology and feminism, I noted twenty writers of whom only six could be called biologists, and none of whom had expertise in embryology, neurology, neuroendocrinology, or behaviour genetics. They attack biology without discussing it, scarcely indicating the sorts of biological information that might be considered relevant or how this information might be dealt with. … Some writers, like Judith Hole and Ellen Levine, admitted that biological differences do exist and are important, but fall back on the de Beauvoir defence that such differences derive their importance only from the value society places on them.’ 99 J. Lyotard, The Postmodern Condition: A Report on Knowledge, G. Bennington & B. Massumi (Trans), Manchester University Press, Manchester, 1979, 15: ‘A self des not amount to much, but no self is an island; each exists in a fabric of relations that is now more complex and mobile than ever before. Young or old, man or woman, rich or poor, a person is always located at “nodal points” of specific communication circuits, however tiny these may be.’ 100 N. Mansfield, Subjectivity: Theories of the self from Freud to Haraway, Sydney, Allen & Unwin, 2000, 5 - 11. At 5 - 6: ‘A Metaphysical investigation aims to determine by the systematic analysis and scrutiny of ideas what the truth of a certain argument may be. … a metaphysician would analyse and critique theories of subjectivity in such a way that a preferred [at 6] or ultimate theory could be derived.’ In contrast (at 6), the genealogical approach asks: ‘… what do the debates and theories themselves tell us about where we are placed in the history of culture and meaning-making?’ 101 N. Mansfield, Subjectivity: Theories of the self from Freud to Haraway, Sydney, Allen & Unwin, 2000, 10: ‘We are educated and harassed till we believe that the proper organisation of the world depends on the division of the human population into fixed categories – the sick separate from the well, the sane from the insane, the honest from the criminal – each exposed to different types of management, in the hands of doctors, social workers, police, teachers, courts and institutions (from schools to prisons, factories to hospitals, asylums to the military), all regulated according to rationalised principles of truth and knowledge. In this way, “subjectivity” is not the free and spontaneous expression of our interior truth. It is the way we are led to think about ourselves, so we will police and present ourselves in the correct way, as not insane, criminal, undisciplined, unkempt, perverse or unpredictable.’

202 Similarly, but also differently, others have developed this perspective conceiving subjectivity as performative102, a process,103 becoming104 and as history.105 Once again, these “anti-subjectivity theories” are not automatically inconsistent with evolutionary theory and would need to be individually assessed to that extent.106 They only stand in opposition to evolutionary theory to the extent that they question the capacity of meta-theories more generally.107 Otherwise, the emphasis they place on

102 J. Butler, Gender Trouble: Feminism and the Subversion of Identity, Routledge, New York, 1990, Preface at x. The notion of gender as performative is explained by Butler at 24 - 25: ‘… gender is not a noun, but neither is it a set of free-floating attributes, for we have seen that the substantive effect of gender is performatively produced and compelled by the regulatory practices of gender coherence. Hence, within the inherited discourse [at 25] of the metaphysics of substance, gender proves to be performative – that is, constituting the identity it is purported to be. In this sense, gender is always doing, though not a doing by a subject who might be said to pre-exist the deed. The challenge for rethinking gender categories outside of the metaphysics of substance will have to consider the relevance of Nietzsche’s claim in On the Genealogy of Morals that ‘there is no “being” behind doing, effecting, becoming; “the doer” is merely a fiction added to the deed – the deed is everything.’ In an application that Nietzsche himself would not have anticipated or condoned, we might state as a corollary: There is no gender identity behind the expressions of gender; that identity is performatively constituted by the very “expressions” that are said to be its results.’ 103 J. Kristeva, Powers of Horror: an Essay on Abjection, L. Roudiez (trans.), Columbia University Press, New York, 1982; cf A. Giddens, Central Problems in Social Theory: Action, Structure, and Contradiction in Social Analysis, MacMillan, London, 1979, 39, who both credits and critiques Kristeva. 104 G. Deleuze & F. Guattari, A thousand plateaus: capitalism and schizophrenia, B. Massumi (Trans), University of Minnesota Press, Minneapolis, 2004, 19: ‘To these centred systems, the authors contrast acentred systems, finite networks of automata in which communication runs from any neighbour to any other, the stems or channels do not pre-exist, and all individuals are interchangeable, defined only by their state at a given moment…’. And G. Deleuze & F. Guattari, A thousand plateaus: capitalism and schizophrenia, B. Massumi (Trans), University of Minnesota Press, Minneapolis, 1998, 232 – 309, especially 237 – 238. Also as Singer (P. Singer, Hegel: A Very Short Introduction, Oxford University Press, Oxford, 2001, 103) explains: ‘Being and nothing are both opposites and the same; their truth, therefore, is this movement into and apart from each other – in other words, it is becoming.’ For this reason it is impossible to discover that which is always “becoming”. 105 J. Ortega, History as a System and Other Essays Toward a Philosophy of History, H. Weyl (Trans.), W.W. Norton & Co Inc., pp. 111-113, 201-203, 215 – 217, extracted in W. Kaufmann, Existentialism: From Dostoevsky to Satre, Penguin Books, Ringwood (Victoria), 1989, pp. 152 – 157. At 157 (257 of the original): ‘Man, in a word, has no nature; what he has is – history. Expressed differently: what nature is to things, history, res gestae, is to man.’ 106 For example, despite their criticism of biology, the characterization Deleuze and Guattari give to evolution and nature do not seem to be irreconcilable with evolutionary theory in G. Deleuze & F. Guattari, A thousand plateaus: capitalism and schizophrenia, B. Massumi (Trans), University of Minnesota Press, Minneapolis, 1998, 232 – 309, especially 237 – 238. 107 J. Lyotard, The Postmodern Condition: A Report on Knowledge, G. Bennington & B. Massumi (Trans), Manchester University Press, Manchester, 1979, 7, 29 & 37. At 7: ‘In the first place, scientific knowledge does not represent the totality of knowledge; it has always existed in addition to, and in

203 relations of power can be used to help understand evolutionary theory by exposing power relations not otherwise recognised in the practice of evolutionary science.108 They also help to strengthen what is otherwise too simplistic, reductionist and deterministic about the practice of evolutionary science.109 Related to this category through postmodernism,110 and predating postmodernism, is a fourth category of alternative approaches to human nature – the narrative or “story- telling” tradition.111 According to Snaevaar “narrativism” became fashionable as postmodernism superceded modernism in the 1960s and is becoming increasingly fashionable in many disciplines but may be more familiar to many in the work of Scottish philosopher MacIntyre and the French philosopher Ricoeur.112 Snaevarr attributes the long philosophical tradition of recognising life through narrative to William Schapp.113 However, he points out that this view of identity had a more general acceptance well before Schapp imported it into philosophy in the middle of the 20th century.114 It was implicit in many of the great classical literary works and competition and conflict with, another kind of knowledge, which I will call narrative in the interests of simplicity...’ 108 See for example J. Butler, Undoing Gender, Routledge, New York, 2004, 10 – 11, 15, and 26. 109 D. Haraway, Simians, Cyborgs, and Women: The Reinvention of Nature, Routledge, New York, 1991, 133 – 137. 110 F. Jameson, “Foreword” in J. Lyotard, The Postmodern Condition: A Report on Knowledge, G. Bennington & B. Massumi (Trans), Manchester University Press, Manchester, 1979, xii: ‘What is most striking in Lyotard’s differentiation between story-telling and “scientific” abstraction is its unexpected modulation towards a Nietzschean thematics in history. In effect, indeed, for Lyotard the fundamental distinction between these two forms of knowledge lies in their relationship to temporality, and in particular in their relationship to the retention of the past.’ J. Lyotard, The Postmodern Condition: A Report on Knowledge, G. Bennington & B. Massumi (Trans), Manchester University Press, Manchester, 1979, 7. 111 R. Young, Whatever Happened To Human Nature?, Process Press, Online Book accessed at http://human-nature.com/rmyoung/papers/paper56.html on 23 May 2007, Chapter 2, pp. 2 - 3 of 13. Young attributes narrativism to Nietzsche and post-modernism: ‘Coming from yet another direction are the American pragmatists, closely allied with a highly sophisticated group of analytical philosophers. I am thinking here of Richard Rorty on metaphor and stories at the heart of knowing. He, following Nietzsche, defines truth as “a mobile army of metaphors”, including and especially the metaphors at the heart of science. He argues in ‘The Contingency of Selfhood’ (1989) for accepting metaphor over literal truth, for a humanocentric rather than an objective world, but he does so without loss of hope — that is, without jettisoning the concept of self or subject (Rorty, 1989, pp. 17, 27, 37-41).’ 112 S. Snaevaar, “Don Quixote and the Narrative Self” (2007) March/April Issue 60 Philosophy Now 6, 7 – 8; and F. Jameson, “Foreword” in J. Lyotard, The Postmodern Condition: A Report on Knowledge, G. Bennington & B. Massumi (Trans), Manchester University Press, Manchester, 1979, xi 113 S. Snaevaar, “Don Quixote and the Narrative Self” (2007) March/April Issue 60 Philosophy Now 6, 6. 114 S. Snaevaar, “Don Quixote and the Narrative Self” (2007) March/April Issue 60 Philosophy Now 6, 6.

204 was evident for instance in Shakespeare’s work.115 “Narrativism”, is the idea that ‘we live our lives in a host of stories, which have connection with the stories of other people in various ways; so actually, our selves are nothing but cross-sections of stories’.116 Snaevaar explains it further: Our identities are created by a vast web of stories, as is our relationship with reality. We understand and identify things by placing them in the stories we tell about them: just like selves, things do not really exist outside of stories. We are caught in this narrative web because we cannot exist outside of it.117 Significantly, narrativism also has a place in clinical psychology because it overlaps with Freudian psychoanalysis.118 Once more it should be mentioned that narrativism isn’t necessarily antithetical to evolutionary theory. For instance, Freud’s psychoanalysis and “Lacan’s Freud” do not necessarily contradict evolutionary theories.119 Furthermore, quite aside from its rich cultural heritage in the arts,

115 S. Snaevaar, “Don Quixote and the Narrative Self” (2007) March/April Issue 60 Philosophy Now 6. 116 S. Snaevaar, “Don Quixote and the Narrative Self” (2007) March/April Issue 60 Philosophy Now 6, 6. 117 S. Snaevaar, “Don Quixote and the Narrative Self” (2007) March/April Issue 60 Philosophy Now 6, 6. 118 R. Young, Whatever Happened To Human Nature?, Process Press, Online Book accessed at http://human-nature.com/rmyoung/papers/paper56.html on 23 May 2007, Chapter 2, page 3 of 13: ‘It overlaps in some ways with the work of the Frankfurt School, that is, psychoanalysis, especially in its object relations form. It should be acknowledged that a deconstructionist would want to place psychoanalysis and the other traditions I have mentioned inside the history and sociology of knowledge, but the infinite regress generated by doing that plagues us all and does not favour nihilistic conclusions any more than objectivist ones. Psychoanalysis says to me that the expunging of the subject is simply not on, but I shall spell this out later in the chapter. There is another important sense, already considered in chapter one, in which we have made this mess for ourselves, because of our own history and our own sense of historicity and contingency. If we say that human nature is an ensemble of social relations and that truth is made and not found, that is, if we insist upon the social construction of the self and of knowledge, we will find on the other side of the coin of social construction the possibility of deconstruction without remainder. My thesis is that the possibility of deconstruction (and I here mean this conceptually) finds the self at the heart of the project, just as the critics of other fragmenting and reductionist programmes find anthropomorphic and humanocentric concepts at the heart of their projects.’ 119 S. Freud, On Sexuality, J. Strachey (Trans.), Penguin Books, Harmondsworth, 1977; and J. Lacan, The Four Fundamental Concepts of Psychoanalysis, Hogarth Press, London, 1977. Also, Firestone’s thesis unites Freud (along with feminist theory and Marxism) with evolutionary theory in S. Firestone, The Dialectic of Sex: The case for Feminist Revolution, Granada Publishing, London, 1972. While for Giddens (A. Giddens, Central Problems in Social Theory: Action, Structure, and Contradiction in Social Analysis, MacMillan, London, 1979) at 121: ‘I do not mean to suggest that the conception of

205 narrativism has a commendable record in clinical science. As Young has remarked in response to what he sees as cynical postmodernism and its denial of identity: There are debates in psychoanalysis about this matter, but, as I said in chapter one, there is common ground that there cannot be no object. The self is not completely fragmented; there is always an ego; there is the coherence of a process. Otherwise the therapeutic work that has been done so successfully with psychotics simply could not get off the ground. It would be heartbreaking (instead of just very, very hard) and always a loser’s game. But it is not. As the work of Laing (1960), Berke (Barnes and Berke, 1971; Berke, 1989), Searles (1960, 1965), Barham (1988), Jackson (1994) and Rey (1994), among others (Ellwood, 1995), has shown, it is among the most exciting and rewarding kinds of work you can do.120 Given this vast array of literature it is obvious that not only was Ruse deceiving his readers implying that there are no alternatives to human nature according to sociobiology, but it is sociobiology that stands contrary to the vast bulk of what stands as social theory.121 Although it has been argued above that it is not necessarily the responsibility of the critic to furnish an alternative it is nonetheless helpful to attempt to briefly sketch one here. This is because issues about human nature arise in the context of the theory of ideology (in terms of action and structure, which is discussed in the next chapter) and

socialisation I wish to outline here depends upon accepting the main body of Lacan’s writings. I want to claim only that, in respect of interpreting the emergence of subjectivity, Lacan’s Freud can be drawn upon with profit.’ However, in a less convincing vein, Plomin et al claim that Freud’s theories have been contradicted by modern molecular genetics in R. Plomin, M.J. Owen & P. McGuffin, “The Genetic Basis of Complex Human Behaviours” (1994) 264 Science 1733, 1735. 120 R. Young, Whatever Happened To Human Nature?, Process Press, Online Book accessed at http://human-nature.com/rmyoung/papers/paper56.html on 23 May 2007, Chapter 2, page 5 of 13 121 P. Mariani, “Law-and-order Science”, in Constructing Masculinity, M. Berger, B. Wallis, & S. Watson (eds), Routledge, New York, 1995, 135 – 156, at 141 – 142: ‘Social structure does have a place in the biological paradigm – as an intervening variable. As such, it is effectively emptied of any significance in the construction of social behaviour. But again, this disappearing act is accomplished through slightly more complex means than resorting to apocalyptic [at 142] invocations of the Darwinian swamp. The vast majority of biological research, however, neither makes much use of evolutionary constructs nor engages in social theorizing. Instead, behavioural scientists are absorbed in the conventional pursuits of their discipline – data collection and interpretation. On the surface, at least, their work appears uncontroversial. Although structurally related to earlier forms, the new biological determinism is shrewder than vulgar craniometry, and is abetted by ideologically “pure” technical advancements like brain imaging. Because of this, and because it responds to anxieties specific to our cultural moment, biobehavioural research has received the generous endorsement of the scientific establishment and uncritical acceptance by the media. Its appeal is enhanced by the enormous economic return in the form of new technologies and pharmaceuticals.’

206 it also provides the platform form the ensuing chapters concerning the social construction of gender, sexuality and race. In order to be able to synthesize an alternative approach to the vexed issue of human nature from the vast array of literature just mentioned it is necessary to ground that discussion in some aspect of human nature otherwise it risks being a meaningless exercise. The most contentious aspects of human nature (given the attention they receive in the literature from sociobiology and its rivals) are gender and sexuality, and so they provide a suitable platform for the present discussion as well as subsequent chapters. The idea that there are gender specific behaviours or universal principles of sexuality over time and across cultures is an extraordinary claim.122 It is virtually impossible to ascertain universal gender or sexual behaviours because gender and sexuality vary according to culture, time, and the mode of production.123 Take the term “sexuality” for example. The term “sexuality” did not appear until the beginning of the nineteenth century.124 When the term sexuality did emerge, it did so according to Foucault as a consequence of a complex array of phenomena: The development of diverse fields of knowledge (embracing the biological mechanisms of reproduction as well as the individual or social variants of behaviour); the establishment of a set of rules and norms – in part traditional, in part new – which found support in religious, judicial, pedagogical, [at 4] and medical institutions; and changes in the way individuals were led to assign meaning and value to their conduct, their duties, their pleasures, their feelings and sensations, their dreams.125

122 J. Epstein & K. Straub (eds), Body Guards: The Cultural Politics of Gender Ambiguity, Routledge, New York, 1991. At 3: ‘“Sex/gender systems, as we understand them, are historically and culturally specific arrogations of the human body for ideological purposes. In sex/gender systems, physiology, anatomy, and body codes (clothing, cosmetics, behaviours, miens, affective and sexual object choices) are taken over by institutions that use bodily difference to define and to coerce gender identity.’ 123 I. Kennelly, S. Merz, & J. Lorber, “What is Gender?” (2001) 66(4) American Sociological Review 598, 601: ‘The variation of behaviour within different contexts is especially apparent in cross-cultural and historical research, such as Jensen's ([1977] 1990) study of the matrilineal Seneca society in which women historically controlled land and agriculture, thus occupying important economic positions over men (also see Amadiume 1987; Lepowsky 1993). These examples indicate that what may be thought of as universal "gendered behaviours" are very context-specific, relying more on setting and circumstances than on individual "predispositions" (Tavris 1992).’ 124 M. Foucault, The Use of Pleasure, The History of Sexuality: Volume 2, R. Hurley (Trans), Penguin Books, London, 1985, 3. 125 M. Foucault, The Use of Pleasure, The History of Sexuality: Volume 2, R. Hurley (Trans), Penguin Books, London, 1985, 3-4.

207 In addition, gender and sexuality are neither stable nor constituted by male/female and heterosexual/homosexual dichotomies or continuums.126 At best, it might be conceded that gender and sexuality are not biological or cultural constructs but as Kosofsky- Sedgwick describes as “orthogonal”: [T]hat is, instead of being at opposite poles of the same axis, they are actually in different, perpendicular dimensions, and therefore are independently [at 16] variable.127 Stated differently, Kosofsky-Sedgwick is liberating gender and sexuality from one another while recognising that they can also be linked.128 This represents a significant departure to biological determinism (and therefore sociobiology too). To say that gender and sexuality are orthogonal is to move away from the “cultural influence” tradition treating one as having a necessary bearing on the other.129 For this reason it

126 A. Solomon-Godeau, “Male Trouble” in Constructing Masculinity, M. Berger, B. Wallis, & S. Watson (eds), Routledge, New York, 1995, 69 – 76, at 71: ‘Furthermore, given that almost all anthropologists and ethnographers agree that masculinity appears transculturally as something to be acquired, achieved, initiated into – a process often involving painful or even mutilating rituals – there is ample evidence to suggest that there never is, never was, an unproblematic, a natural, or a crisis-free variant.’ 127 E. Kosofsky Sedgwick, “Gosh, Boy George, You Must Be Awfully Secure in Your Masculinity!” in Constructing Masculinity, M. Berger, B. Wallis, & S. Watson (eds), Routledge, New York, 1995, 11 – 20, 15 – 16. Kosofsky Sedgwick credits Sandra Bem for the concept: ‘The classic research on this was, of course, Sandra Bem’s work on psychological androgyny; she had people rated on two scales, one measuring stereotypically female-ascribed traits and one measuring stereotypically male-ascribed ones; and found that many lucky people score high on both, many other people score low on both, and most importantly that a high score on either of them does not predict a low score on the other’; per E. Kosofsky Sedgwick, “Gosh, Boy George, You Must Be Awfully Secure in Your Masculinity!” in Constructing Masculinity, M. Berger, B. Wallis, & S. Watson (eds), Routledge, New York, 1995, 11 – 20, 16, citing: S. Bem, “The Measurement of Psychological Androgyny” (1974) April 42 Journal of Consulting and Clinical Psychology 155; S. Bem, “The Theory and Measurement of Androgyny: A Reply to the Pedhazur-Tetenbaum and Locksley-Colten Critiques” (1979) June 37 Journal of Personality and Social Psychology; and S. Bem, The Lenses of Gender: Transforming the Debate on Sexual Inequality, Yale University Press, New Haven, 1993. To illustrate, Kosofsky Sedgwick adds: ‘I would just ask you to call to mind all the men you know who may be both highly masculine and highly effeminate – but at the same time, not a bit feminine. Or women whom you might consider very butch and at the same time feminine, but not femme. Why not throw in some other terms, too, … such as race … I am thinking of a fascinating recent paper by Riché Richardson in which she analyses the differential meanings, in African-American men’s (effeminate) drag performance, of limitations of “white” femininity compared to imitations of “black” femininity. One implication of work like Sandra Bem’s is that not only are some people more masculine or more feminine than others, but some people are just plain more gender-y than others – whether the gender they manifest be masculine, feminine, both, or “and then some”.’ 128 This view is made most transparent in the literature written on transgender and sexuality. See here: A. Sharpe, Transgender Jurisprudence: Dysphoric Bodies of Law, Cavendish Publishing, London, 2002. 129 Nor is it intended to imply that that Kosofsky-Sedgwick’s view necessarily assumes a contingent relationship between sexuality and gender. C. S. Vance, “Social Construction Theory and Sexuality” in Constructing Masculinity, M. Berger, B. Wallis, & S. Watson (eds), Routledge, New York, 1995, 37 – 48, at 47: “Although work in the cultural influence model contributed to the development of social construction theory, there is a sharp break between them in many respects. This difference has not been

208 is appropriate to differentiate between what is known as “cultural influence theory” and “social construction theory”: A different attempt at assimilation is found in the assertion that the debate between essentialists and social constructionists in regard to sexuality is a replay of the nature/nurture controversy. This is a profound misunderstanding of social construction theory. In nature/nurture debates, researchers are proposing alternative biological or cultural mechanisms to explain phenomena they observe. At present, most observers agree that human behaviour is produced by a complex interaction of biological and cultural factors; they differ on the relative weight they assign to each. Although it might be appropriate to find some similarity between essentialists and the nature camp, to equate social construction to the nurture camp is mistaken. Social construction theory is not simply arguing for cultural causation. In addition, and more importantly, it encourages us to deconstruct and examine the behaviour or processes which both nature and nurture camps have reified, and which they want to “explain”. Social construction suggests that the object of study deserves at least as much analytic attention as the suspected causal mechanism. A social construction approach to sexuality would examine the range of behaviour, ideology, and subjective meaning among and within human groups, and would view the body, its functions, and sensations as potentials (and limits) which are incorporated and mediated by culture.130 The beauty of this conceptualization is that it abandons the nature nurture dichotomy and with it the concept of a ‘coherent inner self, achieved (cultural) or innate (biological)’, and instead treats gender as a ‘regulatory fiction’.131 To be absolutely clear, this means that insofar as gender and sexuality are concerned the better view is that the cultural construction and biological innateness models have been superseded

recognized by many still working within the cultural influence tradition. Indeed, many mistakenly seem to regard these new developments as theoretically compatible, even continuous with earlier work… yet their analytic frames still contain many unexamined essentialist elements.” 130 C. S. Vance, “Social Construction Theory and Sexuality” in Constructing Masculinity, M. Berger, B. Wallis, & S. Watson (eds), Routledge, New York, 1995, 37 – 48, at 47. 131 D. Haraway, Simians, Cyborgs, and Women: The Reinvention of Nature, Routledge, New York, 1991, 135, drawing on Butler’s 1989 Gender Trouble.

209 by the weight of research urging a fresh conception treating both gender and sexuality as stratification systems.132 These approaches arose in the 1980s and are known as interactive models.133 Interactive models are not nihilistic suggesting there is absolutely: … no essential, undifferentiated, sexual “impulse”, “sex drive”, or “lust”, which resides in the body due to physiological functioning and sensation. This position, of course, contrasts sharply with more middle-ground constructionist theory, which implicitly accepts an inherent desire which is then constructed in terms of acts, identity, community, and object choice. The contrast between middle-ground [at 44] and radical positions makes it evident that constructionists may well have arguments with each other, as well as with those working in essentialist and cultural influence traditions. Nevertheless, social construction literature, making its first appearance in the mid-1970s, demonstrates a gradual development of the ability to imagine that sexuality is constructed.134 Nor are interactive models compromises between the biological and the social as in the so-called “bio-social theory” of gendered human behaviours put forward by Udry.135 Instead interactive models, ‘assume that biological and social factors act independently, but instead argue for a loop-back interchange of bodily, behavioural, environmental, interactive, and social structural factors’.136 They, ‘recognize that hormonal input may indeed affect behaviour but also demonstrate that the pathways are reciprocal since behaviour has also been shown to affect hormone levels’.137 Importantly, the interactive models also recognise that this dialectic between organism, behaviour and environment, operates within a deeper one – that of individuals, society and their contingency within history:

132 B. Risman, “Calling the Bluff of Value-Free Science” (2001) 66(4) American Sociological Review 605, 607. 133 I. Kennelly, S. Merz, & J. Lorber, “What is Gender?” (2001) 66(4) American Sociological Review 598, 599. 134 C. S. Vance, “Social Construction Theory and Sexuality” in Constructing Masculinity, M. Berger, B. Wallis, & S. Watson (eds), Routledge, New York, 1995, 37 – 48, at 43 - 44. 135 R. Udry, “Biological Limits of Gender Construction” (2000) 65(3) American Sociological Review 443. 136 I. Kennelly, S. Merz, & J. Lorber, “What is Gender?” (2001) 66(4) American Sociological Review 598, 599. 137 I. Kennelly, S. Merz, & J. Lorber, “What is Gender?” (2001) 66(4) American Sociological Review 598, 599.

210 "Gendered behaviour," in this conceptualization, refers to the ways people act based on their position within the gender structure and their interaction with others, rather than as a result of hormonal input or brain organization. We "do gender" (West and Zimmerman 1987) and participate in its construction, but it is also something that is done to us as members of a gendered social order (Moore 1994; Thorne 1986; Valian 1998). As social orders change, and as we participate in different social institutions and organizations, our gendered behaviour changes.138 In addition, this form of social constructionist theory meshes nicely with evolutionary theory.139 According to Lewontin, evolutionary theory anticipates that organisms have histories: Any consideration of historical events necessarily demands that we confront the relation between the system that is our object of study and the penumbra of circumstances in which it is embedded, what is inside and what is outside.140 This is consistent with the view of Benhabib who recognises ‘deep embeddedness of all subjects within history and culture’.141 In broad terms, this means that social construction theory is consistent with evolutionary theories.142 This is unsurprising given that “social construction” was itself a response to biological determinism.143 Ultimately, the feminist inspired notion of social construction was absorbed variously by mainstream liberal social science and sociology accepting that human beings were

138 I. Kennelly, S. Merz, & J. Lorber, “What is Gender?” (2001) 66(4) American Sociological Review 598, 600. 139 See for example Mathews’ model which she describes as a “four-level time variant model” in J. Mathews, Good and Mad Women: The Historical Construction of Femininity in Twentieth-Century Australia, St Leonards (NSW), Allen & Unwin, 1984, 10. These four levels are the biological, the psychological, the systemic, and the social. 140 R.C. Lewontin, “Genes, Environment, and Organisms” in Hidden Histories of Science, R.B. Silvers (ed), Granta Publications, London, 1998, 120. At 119 – 120: ‘… systems in which history is important are systems in which influences outside the structures themselves play an important role in determining their [at 120] function, so to the extent that those outside forces may vary, the history of the system itself will vary.’ 141 L. Nicholson (ed), Feminist Contentions: A Philosophical Exchange (Benhabib, Butler, Cornell, Fraser), Routledge, New York, 1995, 3. 142 N. Mansfield, Subjectivity: Theories of the self from Freud to Haraway, Sydney, Allen & Unwin, 2000, 13: If there is an over-arching consensus in the literature of the last thirty years it is a rejection of the idea of: ‘… a completely self-contained being that develops in the world as an expression of its own unique essence. Uniformly they [literary and cultural studies] identify this image of subjectivity with the Enlightenment.’ 143 D. Haraway, Simians, Cyborgs, and Women: The Reinvention of Nature, Routledge, New York, 1991, 133 – 137. Haraway points out that social construction is associated with “Second Wave” feminism arising as a counter to the dominance of biological essentialist/determinist theories of the 1950s and 60s, and in the wake of ‘Simone de Beauvoir’s 1940s insight that one is not born a woman.’

211 both produced by nature and constructed by their environments.144 Today there is a consensus in social theory that individuals are “constructed”.145 In other words the intuitive view that human behaviour is genetic has been superseded by the reasoned view that it is predominately socially constructed. However, this must not be taken to mean that this consensus is uncontroversial because it remains hotly contested in terms of the relative significance of genes and environment (and for this reason much social construction literature remains sociobiological), the action structure debate, due to the impacts of postmodernism and poststructural theory, and because it is such a diverse body of literature. Bringing together anti-subjectivity and social construction theory means that instead of oscillating within the always incomplete nature nurture dualism, scholarship can pursue human nature by investigating, as Foucault recommends, the formation and conduct of the disciplines, the systems of power regulating practice, and: … a matter of analysing, not behaviours or ideas, nor societies and their “ideologies,” but the problematizations through which being offers itself to be, necessarily, thought – and the practices on the basis of which these problematizations are formed.146 What is important for the purposes of this thesis, therefore, are the reasons mandating conformity with normative behaviours that are spuriously deemed “natural” according to “science”.147 In other words, what is important is an ideological analysis, of the

144 D. Haraway, Simians, Cyborgs, and Women: The Reinvention of Nature, Routledge, New York, 1991, 133 – 137. 145 N. Mansfield, Subjectivity: Theories of the self from Freud to Haraway, Sydney, Allen & Unwin, 2000, 11 – 12: ‘… something must be said about the consensus amongst theorists that the subject is constructed, made within the world, not born into it already formed. This is a difficult idea to accept at first, as it flies in the face of our assumption – probably derived from popular representations of the Nature described in Darwin and other evolutionary theory – that the most intense of our feelings must be innate, natural or instinctive. This assumption is most often apparent in discussions of gender and sexuality: surely the aggression men feel or the statistical dominance of what has [at 12] come to be known as “heterosexuality” is evidence of the inclinations of Nature itself? Yet attempts to theorise subjectivity have almost always led to the opposite conclusion.’ 146 M. Foucault, The Use of Pleasure, The History of Sexuality: Volume 2, R. Hurley (Trans), Penguin Books, London, 1985, 5 & 11, original emphasis. 147 N. Mansfield, Subjectivity: Theories of the self from Freud to Haraway, Sydney, Allen & Unwin, 2000, 6 – 7. The preferred view adopted here follows on from, while not wholly adopting, Mansfield’s pessimistic view that subjectivity is not necessarily capable of being “found” or “identified” other than in relations of power: ‘I do not believe that the subject is like this. Subjectivity is primarily an experience, and remains permanently open to inconsistency, contradiction and unself-consciousness. Our experience of ourselves remains forever prone to surprising disjunctions that only [at 7] the fierce light of ideology or theoretical dogma convinces us can be homogenised into a single consistent thing. … not only do I not believe that an ultimate theory of the subject is possible, I also do not want one. It is the discussion itself that is of interest.’

212 way our socially constructed hierarchical world is justified and excused as inevitable and natural.

Why is sociobiology ubiquitous – why does it persist?

Even though sociobiology has little evidence to sustain it, there is sound evidence against it, and there are other explanations, it persists for several reasons grouped here as three interconnected reasons. To begin with, it is part of a long tradition in science which confers privileged status on reductionism. However, it is not easy to discern the subtle but crucial differences between micro-reductionism and the tradition of reductionism in science.148 Rothman attributes the tradition of “reductionism” to the ideas of ancient Greek philosopher Democritus.149 Others attribute it to Aristotle’s similar but narrower “essentialism”.150 In its narrower sense, it is the idea that an organism is the sum of its constituent parts. As we have seen above, this atomist view is mostly correct in terms of structure, but does not extend to features beyond structure such as behaviour.151 Reductionism is, more broadly, the process of using abstraction to explain or predict phenomena.152 To practice science is to be a

148 S. Rothman, Lessons from the Living Cell: The Limits of Reductionism, McGraw-Hill, Sydney, 2002, 42. 149 S. Rothman, Lessons from the Living Cell: The Limits of Reductionism, McGraw-Hill, Sydney, 2002, 22. 150 H.C. Coombs, “Institutions Maketh Man” in The Fragile Pattern: Institutions and Man, The Boyer Lectures, Australian Broadcasting Commission, Sydney, 1970, 14; and P. Feyerabend, Against Method, London, Verso, 1978, 283. Given that Democritus predated Aristotle Rothman’s is the better view (5th Century BC and 3rd Century BC respectively). Aristotle used “essentialism” in several works, in particular in his work on biology: J. Urmson & J. Ree (eds.), The Concise Encyclopedia of Western Philosophy & Philosophers, 2nd ed, London, Routledge, 1995, 24, 27 – 28. A good example of Aristotle’s essentialism is his use of it as a methodological tool to examine the “State”: ‘We have to analyse other composite things till they can be sub-divided no further, because we have reached the smallest parts of the wholes; so let us in the same way examine the component parts of the state and we shall see better how these too differ from each other, and whether we can acquire any systemic knowledge about the several roles mentioned’, per T.J. Saunders (ed), Aristotle The Politics, T.A. Sinclair (Trans), Penguin, London, 1992, 55. 151 S. Rothman, Lessons from the Living Cell: The Limits of Reductionism, McGraw-Hill, Sydney, 2002, 40. 152 S. Rothman, Lessons from the Living Cell: The Limits of Reductionism, McGraw-Hill, Sydney, 2002, 19. At 40: It assumes: ‘… we can come to understand all phenomena completely from knowledge of their underlying structures, their constituent parts. Indeed, in this view, this is the only way we can obtain a rigorous understanding.’

213 reductionist153, and reductionism has served science well for the best part of three centuries, and has only relatively recently been questioned during the 20th century.154 Reductionism also has a long history in biology and the life sciences.155 This biological tradition of reductionism played out in the 18th century work of both “preformationsist” and “epigenticists” (in the competing theories of embryogenesis), and was mirrored by Freud and later still Piaget in psychology.156 Hence, various degrees of reductionism have been used with varying success in both science and social science, and this tends to obscure its unsuitability for the study of human nature. Secondly, it became ubiquitous due to the practical outcomes micro-reductionism has had in chemistry and physics. Around the time of the Second World War, physics and chemistry were comparatively more eminent sciences than biology which was considered less scientific.157 There were two reasons for this hierarchy. First, biology was not as crucial to the War effort as were the others. Second, biology was not as reducible as the other sciences and consequently, apart from the ubiquity of evolutionary theories, it lacked a concise conceptual framework, capable of reduction to an algorithm (like “E = MC2” in physics) – viz, hierarchical universalism. Physics and chemistry could be reduced to the molecular and atomic levels with great social impacts (e.g. the nuclear bomb). Soon-after the War, biological sciences rose up to replace physics and chemistry as the most eminent sciences presumably due to widespread interest in health science and the advances in gene technology.158 These

153 S. Rothman, Lessons from the Living Cell: The Limits of Reductionism, McGraw-Hill, Sydney, 2002, 20: ‘In the broadest sense, science and science studied from the reductionist perspective have been synonymous since the time of Newton.’ 154 S. Rothman, Lessons from the Living Cell: The Limits of Reductionism, McGraw-Hill, Sydney, 2002, 38. 155 R.C. Lewontin, “Genes, Environment, and Organisms” in Hidden Histories of Science, R.B. Silvers (ed), Granta Publications, London, 1998, 115 - 140. At 122: ‘The claim for the hegemony of internal over external forces in development has been an intellectual commitment since the beginning of developmental biology. Struggles over competing theories of embryogenesis have been carried on entirely within that world view. The most famous was the debate, at the end of the nineteenth century, between preformationism and epigenesis.’ 156 R.C. Lewontin, “Genes, Environment, and Organisms” in Hidden Histories of Science, R.B. Silvers (ed), Granta Publications, London, 1998, 121 – 122. 157 R.C. Lewontin, “Genes, Environment, and Organisms” in Hidden Histories of Science, R.B. Silvers (ed), Granta Publications, London, 1998, 115: ‘The philosophy of science was essentially the philosophy of physics, and in his seminal work on the sociology of science, Science and the Social Order, Bernard Barber could write that “biology has not yet achieved a conceptual scheme of very high generality like that of the physical sciences. Therefore it is less adequate as a science”.’ 158 R.C. Lewontin, “Genes, Environment, and Organisms” in Hidden Histories of Science, R.B. Silvers (ed), Granta Publications, London, 1998, 116.

214 advances in gene technology allowed biology to find a conceptual framework as definite as that in physics.159 Physics could reduce matter to atoms and biology could reduce organisms to their DNA.160 Thirdly, its persistence is a measure of the economic standing, power and prejudice of those who benefit most from the status quo.161 In this sense it persists as a versatile ideology capable of appropriation by any sectional interest but more likely to be at the service of the empowered. The opposition to transformation in science and social science is political as much as it is ontological or epistemological.162 Sociobiology maintains an entire system of values by virtue of those who are empowered to occupy the academy.163 When scientists do criticise the work of peers or challenge orthodoxy their work is confined to relatively obscure journals not read outside their specialised field or the public at large.164 Also, funding for research is politically charged in two

159 R.C. Lewontin, “Genes, Environment, and Organisms” in Hidden Histories of Science, R.B. Silvers (ed), Granta Publications, London, 1998, 116: ‘At the level of molecules, all life is the same. DNA in its various forms is said to carry the information that determines all aspects of the life of all organisms, from the form of their cells to the form of their desires. The DNA code is “universal” (or nearly so): that is, the same DNA message will be translated into the same protein in every species of living being. At the level of the organisms, the apparent profligate variety of shapes and ways of making a living, of nutrition and fornication, are all explained as optimal solutions to problems posed by nature, solutions that maximise the number of genes one will leave to future generations.’ 160 J. Munoz-Rubio, “Sociobiology and Human Nature” (2002) 27(2) Interdisciplinary Science Reviews 131, 132. 161 S.J. Gould, Ever Since Darwin: Reflections in natural history, Penguin, Ringwood, Victoria, 1991, 258: ‘… the crude versions of past centuries have been conclusively disproved, and that its continued popularity is a function of social prejudice among those who benefit most from the status quo.’ 162 S. Sperling, “Baboons with Briefcases: Feminism, Functionalism, and Sociobiology in the Evolution of Primate Gender” (1991) 17(1) Signs 1, 4 – 5, quoting S.J. Gould, “Cardboard Darwinism”, New York Review Of Books 33, September 1986, 47 – 54. Sperling recognises the formidable nature of entrenched paradigms and their reluctance to change: ‘For two decades, functionalist reductionism in primatology has seemed almost immune to sophisticated arguments about evolutionary epistemology in other disciplines; primatologists who have addressed this problem have sometimes found themselves tarred with the brush of “anti-Darwinism” and “antievolutionism”. Stephen Jay Gould has written of the frustrations involved in critiquing adaptationism: ‘A former student of mine recently completed a study proving that colour patterns of certain clam shells did not have the adaptive significance usually claimed. A leading journal rejected her paper with the comment: “Why would you want to publish such [at 5] non-results?”’ As Gould points out, the study of gender differences suffers from the same bias, a problem in what is privileged as publishable.’ 163 “The broad appeal of Sociobiology to scientists and the public motivated socially conscious scientists to step over the guarded boundary between science and the rest of society to engage in serious reflection on biases, values, and objectivity in their fields of science. Biologist Ruth Doell and philosopher Helen Longino present a lucid analysis of biases in evolutionary theory and neuroendocrinology, pointing to, among other things, the distance between observation and interpretation or conclusion:” B. Spanier, ‘“Lessons” from “Nature”: Gender Ideology and Sexual Ambiguity in Biology’ in Body Guards: The Cultural Politics of Gender Ambiguity, J. Epstein & K. Straub (eds), Routledge, New York, 1991, at 334. See also: B.J. Risman, “Calling the Bluff of Value- Free Science” (2001) 66(4) American Sociological Review 605, 608 - 609. 164 B. Risman, “Calling the Bluff of Value-Free Science” (2001) 66(4) American Sociological Review 610; S. Sperling, “Baboons with Briefcases: Feminism, Functionalism, and Sociobiology in the Evolution of Primate Gender” (1991) 17(1) Signs 1, 16: ‘By the mid-1980s, a number of important

215 senses. It is politically charged because those allocating funds tend to be those cultured according to a sociobiological education.165 In addition, neo-liberal funding arrangements preclude longitudinal studies and time-consuming complex inter- disciplinary research that would challenge sociobiological hegemony.166 As Sperling points out: The resistance to change is strong: the linear reductionism of the past is clean and orderly, whereas for many, the ambiguity of the kind of approach I am suggesting is often unbearably messy.167 Sociobiology is hegemonic. It has proved to be extremely versatile and it dominates many areas of scholarship.168 It has ‘become the grand theory conveyed to social scientists interested in human evolution and widely popularised through newspaper and magazine articles and popular books’.169 Therefore, each time technology produces another scientific instrument or another invention altering the way people are able to conceive their world we can expect sociobiology to morph into another form of scientific “justification” for hierarchy and oppression.170 Because this has been the story in science from 17th century craniometry and phrenology to Darwin’s empirical critiques appeared, deconstructing the logic of Sociobiological arguments. But these have yet to be widely circulated outside classes and seminars in evolutionary theory.’ 165 D. Haraway, Simians, Cyborgs, and Women: The Reinvention of Nature, Routledge, New York, 1991, 14 – 15 & 198; and R. Hubbard, M. Henifin & B. Fried (eds), Biological Woman - The Convenient Myth: A Collection of Feminist Essays and a Comprehensive Bibliography, Schenkman Publishing Co, Cambridge (Mass), 1982, 20: ‘Scientists do not think and work independently. Their “own” hypotheses ordinarily are formulated within a context of theory, so that their interpretations by and large are subsets within the prevailing orthodoxy.’ 166 S. Sperling, “Baboons with Briefcases: Feminism, Functionalism, and Sociobiology in the Evolution of Primate Gender” (1991) 17(1) Signs 1, 26. So for example in primatology, longitudinal studies are virtually impossible because doctoral students are funded for three years: ‘Such an approach is also time-consuming; primates are long-lived species, and the research strategies necessary for a full explication of gendered behaviour require life history studies, a difficult prospect within the current structure of academic science (in which most primatological data are acquired for doctoral dissertations during one or two field seasons).’ 167 S. Sperling, “Baboons with Briefcases: Feminism, Functionalism, and Sociobiology in the Evolution of Primate Gender” (1991) 17(1) Signs 1, 26. 168 T. Tinker, Panglossian Accounting Theories: The Science of Apologising in Style" (1988) 13 Accounting Organizations & Society 165, at 168: Modern research is conducted in a social and institutional context, and thus while an individual’s values, assumptions, and perceptions may predicate research, these are preconditioned by social and institutional factors. Institutions train, hire, promote, pay, motivate and fire individual researchers, and help decide what research should be undertaken through the commodification of research activities (Baritz 1960; Kidron 1974; Rose & Rose 1969; Shaw 1975).’ 169 S. Sperling, “Baboons with Briefcases: Feminism, Functionalism, and Sociobiology in the Evolution of Primate Gender” (1991) 17(1) Signs 1, 16. 170 B. Garland (ed.), Neuroscience and the Law: Brain, Mind, and the Scales of Justice, Dana Press, New York, 2004; M. Hawkesworth, “Confounding Gender” (1997) 22(3) Signs 649, 676; R. Hubbard, “Science, Power, Gender: How DNA Became the Book of Life” (2003) 28(3) Signs 791; and S. Markowitz, “Pelvic Politics: Sexual Dimorphism and Racial Difference” (2001) 26(2) Signs 389, 390.

216 The Descent of Man and Selection in Relation to Sex, to Wilson’s Sociobiology: A New Synthesis, to the biological determinism now appearing from the latest developments in neurosciences and endocrinology.171

Conclusions

While reductionism has served science well it can also be problematic and particularly so in the human sciences. In any case there are many alternative theories dealing with human nature. Among those theories are the “interactive models” which assume that not only do biological and social factors act independently, they also interact dialectically. In other words, they anticipate a complex interchange of ‘bodily, behavioural, environmental, interactive, and social structural factors’.172 They, ‘recognize that hormonal input may indeed affect behaviour but also demonstrate that the pathways are reciprocal since behaviour has also been shown to affect hormone levels’.173 Importantly, the interactive models also recognise that this dialectic between organism, behaviour and environment, operates within a deeper one – that of individuals, society and their contingency within history. 174 In addition, this form of social constructionist theory meshes nicely with evolutionary theory.175 Therefore, sociobiology or its future successors are unlikely to ever deliver a legitimate explanation for human nature by reducing it to genetic causes. Furthermore, postmodern and poststructural approaches to the question of human nature – what Mansfield called “anti-subjectivity” above – emphasise the regulatory aspects of “description” linking power with knowledge. Drawing upon this insight, it is not so much the theorist’s description or their model, but the reasons they give

171 C. Darwin, The Descent of Man and Selection in Relation to Sex, (2nd ed, 1882) John Murray, London, 1871; B. Garland (ed.), Neuroscience and the Law: Brain, Mind, and the Scales of Justice, Dana Press, New York, 2004; S. Markowitz, “Pelvic Politics: Sexual Dimorphism and Racial Difference” (2001) 26(2) Signs 389, 393; R. Udry, “Biological Limits of Gender Construction” (2000) 65(3) American Sociological Review 443; and J. van Wyhe, The History of Phrenology on the Web, British Library, accessed at http://pages.britishlibrary.net/phrenology/literature.html on 19 July 2005. 172 I. Kennelly, S. Merz, & J. Lorber, “What is Gender?” (2001) 66(4) American Sociological Review 598, 599. 173 I. Kennelly, S. Merz, & J. Lorber, “What is Gender?” (2001) 66(4) American Sociological Review 598, 599. 174 I. Kennelly, S. Merz, & J. Lorber, “What is Gender?” (2001) 66(4) American Sociological Review 598, 600. 175 See for example Mathews’ model which she describes as a “four-level time variant model” in J. Mathews, Good and Mad Women: The Historical Construction of Femininity in Twentieth-Century Australia, St Leonards (NSW), Allen & Unwin, 1984, 10. These four levels are the biological, the psychological, the systemic, and the social.

217 mandating conformity with their description or model. In other words, what is important is an ideological analysis of the way our socially constructed hierarchical and oppressive world is justified and excused as inevitable and natural. It is a concern with how normative behaviours are spuriously deemed “natural” according to “science”.176 Lastly, given the relative weakness of sociobiology in comparison to alternative social theories about human nature begged the question of why sociobiology tends to be so pervasive and ubiquitous. The explanation given for the persistence of sociobiology above was its apparent simplicity on the one hand and on the other its utility and versatility as an ideology. But whether or not this last assertion can stand hinges on the vital question of whether or not sociobiology is ideology according to the literature on the theory of ideology which is discussed next.

176 N. Mansfield, Subjectivity: Theories of the self from Freud to Haraway, Sydney, Allen & Unwin, 2000, 6 – 7. The preferred view adopted here follows on from, while not wholly adopting, Mansfield’s pessimistic view that subjectivity is not necessarily capable of being “found” or “identified” other than in relations of power: ‘I do not believe that the subject is like this. Subjectivity is primarily an experience, and remains permanently open to inconsistency, contradiction and unself-consciousness. Our experience of ourselves remains forever prone to surprising disjunctions that only [at 7] the fierce light of ideology or theoretical dogma convinces us can be homogenised into a single consistent thing. … not only do I not believe that an ultimate theory of the subject is possible, I also do not want one. It is the discussion itself that is of interest.’

218 Chapter 6

Sociobiology and Ideology

Introduction

In earlier Chapters sociobiology was shown to be lacking in crucial evidence, inconsistent with the very theories it claims to be based upon – evolutionary theories – and contrary to alternative “social construction” explanations for human behaviour. In this chapter these conclusions and observations are brought together and developed to contend that hierarchy and oppression (as is the case in capitalist societies) are not inevitable, immutable or natural but justified as such by sociobiological excuses. In other words this chapter argues that sociobiology is an ideology. It makes this argument drawing on the literature on the theory of ideology. This chapter is also a bridge to the remaining chapters developing the same argument at an empirical level. Those chapters show how the legal system contributes to the maintenance and reproduction of hierarchy and oppression within the categories of gender, sexuality, and race and justifies this action using sociobiological arguments. The previous chapter concluded with the dual assertions that sociobiology was never likely to succeed as a legitimate explanation for human nature but was likely to persist instead due to its utility as an ideology. So far the term “ideology” has been used loosely to mean that sociobiology is incorrect, but nevertheless has the standing to justify action and institutions that have the effect of producing or maintaining hierarchy and oppression. In this chapter it is necessary to critically assess this assertion because among other reasons it contains the seeds of contradiction: how can an untruth be used to justify? Among the other reasons Ruse had claimed that sociobiology could contain questionable political ideas, even racism and sexism without necessarily being ideological.1 This suggests that a system of ideas based on flawed assumptions can be ideologically benign. In a nutshell, this is salient because it raises important issues going to the heart of the vast literature troubling social theory,

1 M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 80 – 85.

219 in particular the theory of ideology.2 It raises issues that must be addressed to sustain the central argument in this thesis that sociobiology is a leading capitalist ideology, and an ideology ubiquitous in the legal system. To reiterate from the previous chapter, what is important is an analysis of the way a socially constructed hierarchical world is justified and excused as inevitable and natural through sociobiology.3 The specific allegation is that sociobiology is ideology in this sense because it provides excuses for hierarchy and oppression, hence the question, “is sociobiology benign?”

2 The literature here is vast and includes among many others: L. Althusser, “Ideology and Ideological State Apparatuses” in Lenin and Philosophy and Other Essays, translated by B. Brewster, Monthly Review Press, London, 1971, 127 – 186; H. Collins, Marxism and Law, Oxford, Oxford Uni Press, 1984; A. Giddens, New Rules of Sociological Method: A Positive Critique of Interpretative Sociologies, Hutchinson, London, 1976; A. Giddens, Central Problems in Social Theory: Action, Structure, and Contradiction in Social Analysis, MacMillan, London, 1979; A. Giddens, A Contemporary Critique of Historical Materialism, Vol. 1: Power, Property and the State, Macmillan, London, 1981; A. Gramsci, Selections from the Prison Notebooks, Q. Hoare & G.N Smith (translators & eds), International Publishers, New York, 1971; J. Habermas, Moral Consciousness and Communicative Action, C. Lenhardt & S. Weber Nicholsen (Trans), MIT Press, Cambridge, 1996; J. Habermas, The Future of Human Nature, Cambridge, Polity Press, 2003; G. Lukacs, History and Class Consciousness: Studies in Marxist Dialectics, Translated by R. Livingstone, Merlin Press, London, 1971; J. Plamenatz, Ideology, Macmillan Press, London, 1970; N. Poulantzas, Political Power and Social Classes, Translation Editor T. O’Hagan, Verso, London, 1982; and J.B. Thompson, Studies in the Theory of Ideology, Polity Press, Cambridge, 1985. 3 R. Young, Whatever Happened To Human Nature?, Process Press, Online Book accessed at http://human-nature.com/rmyoung/papers/paper56.html on 23 May 2007, Chapter 7:‘All our attempts to frame human nature are beset by problems around the concept of ideology. This is as true of Darwinian biology and the problem of the place of humanity in nature as it is of the psychoanalytic understanding of the unconscious. The concept of ideology refers to legitimation and to the intrusion of values into putative facts. At a deeper level, it refers to how frameworks get constituted and how criteria for acceptable conclusions get established on the basis of value systems or world views. There are two particular concepts at work here. One is social location or interest group; the other is power. Ideologies reflect social locations and serve established or aspiring powers.’

220 Is Sociobiology Benign or Ideological?

Ruse concluded his 1985 assessment of sociobiology claiming it should be afforded the opportunity to develop rather than being “killed off” just because it had made excessive claims.4 Given the analysis and conclusions in the previous two chapters, Ruse’s overall conclusion is, 20 years on, anachronistic because sociobiology has such limited explanatory potential.5 Ruse was incorrect even in 1985 because he sought to defend the idea that a single method was capable of delivering what decades of work in the history and philosophy of science considered impossible - that a unitary frame of reference for human nature was a fiction of modernity.6 Still, Ruse’s defence of sociobiology retains some currency for present purposes because, he asserted, for all its faults it was not intrinsically evil in an ideological sense and was instead benign. Ruse claimed that sociobiology was benign on several grounds. Firstly, he argued that the scientists advocating sociobiology had no demonstrable intention to be racist, homophobic, sexist, or apologists for capitalism.7 Secondly, sociobiology should not be held to account because extremists have used it to promote racism.8 Thirdly, when sociobiology is apparently racist, sexist, homophobic, or coinciding with capitalist ideals, it is merely the use of ‘unfortunate’ or ‘poorly chosen’ language or

4 M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 126: ‘My aim, therefore, has been simply to give sociobiology, including human sociobiology, a chance: not to kill it with criticism or praise before it has really tried to get under way.’ 5 It is anachronistic because the earlier chapters revealed that sociobiology lacks evidence, is epistemologically impossible and contains ideological concepts. Despite the mapping of the human genome sociobiology is no closer to explaining human behaviour, and is in fact less likely to as a result of that mapping. 6 Feyerabend argues strongly against relying on singular or unitary frames of reference and blindly adhering to strict procedures within those frameworks. His rationale for opposing unitary frames of reference is threefold: (1) ‘it would rob science of the elasticity without which progress cannot be achieved’, (2) it stands contrary to the history of achievements in science, and (3) it is the hallmark of politicised totalitarian led “science”. The first two points: P. Feyerabend, Against Method, London, Verso, 1978, 303, 17 – 18; and the third point: P. Feyerabend, Farewell to Reason, London, Verso, 1990, 11. 7 M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 75, 86, 90 - 93. 8 M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 76.

221 metaphors.9 In other words, sociobiology is not intrinsically ideological.10 Fourthly, although Ruse disagreed with Sahlin’s version of the historic and symbiotic relationship between capitalism and sociobiology – rejecting any ‘circular shuttle of ideas’ between the two – he maintained that even if Sahlins’ version of the historical relationship between capitalism and sociobiology was correct, it did not automatically follow the symbiotic relationship was one of cause and effect.11 Lastly, even if sociobiology contains capitalist ideals, there is no evidence that people are forced to, or do, endorse “right-wing” market ideology.12 These arguments represent the practical end of deeper questions remaining unresolved in social theory and the extensive literature on the theory of ideology which has troubled some of the greatest minds in social theory since Marx wrote The German Ideology and Theses on Feuerbach in the 1840s as a retort to the idealism of Hegel’s historicism.13 In particular Ruse’s arguments connect with deep epistemological questions about what ideology is and how it works. Ruse’s arguments raise further questions such as whether ideology is the opposite of science or truth, whether it is possible to objectively discern an ideology at all, and from whose perspective should we deem something as ideological?14 Complicating these questions, and directly

9 M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 79, 84, 87 – 88. 10 M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 83, 85 & 99. 11 M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 81. 12 M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 85. 13 L. Althusser, Lenin and Philosophy and Other Essays, translated by B. Brewster, Monthly Review Press, London, 1971, 158; A. Giddens, Central Problems in Social Theory: Action, Structure, and Contradiction in Social Analysis, MacMillan, London, 1979, 150; and S. Malešević & I. MacKenzie (eds.) Ideology After Poststructuralism, Pluto Press, London, 2002, 2. At 3, Malešević and MacKenzie claim that since Marx and Engels wrote on ideology, other significant contributors to the field have been: Lenin, Bernstein, Gramsci, Althusser, Geertz, Mannheim, Marcuse, Habermas, Gouldner, Parsons, Boudon, Freeden and Zizek. 14 Among the more contentious issues within the theory of ideology are: (1) a definition of ideology, (2) whether there is a science ideology antinomy, (3) the paradox of ideology (false consciousness, elitism, and objectivity), (4) whether there is an antimony between materialism and idealism and if so what are its consequences, (5) the inability of traditional Marxism to explain a plausible nexus between ideology and “new identity politics” (otherwise referred to as “Marxist economism”), (6) the problem of action and structure, (7) the significance of the Althusser as opposed to Lukacs traditions in terms of how ideology functions, and (8) whether ideology should be seen as a neutral or critical concept. Two

222 associated with them is the immense literature written about the crisis of modernity in terms of post-industrial capitalism, postcolonial theory, postmodernism and poststructuralism (hereafter these terms are referred to collectively as “postmodernism” purely for short-hand convenience notwithstanding there specific and discernible differences).15 These perplexing questions cannot be avoided here because they arguably render the notion of ideology theoretically and conceptually impossible.16

Paradox of Legitimation

Most perplexing of all is the problem of legitimation.17 Legitimation presents an inescapable “paradox” for western thought.18 The paradox is, in short, what proof is good discussions of these contentions can be found in Eagleton and Thompson, respectively: T. Eagleton, Ideology: An Introduction, Verso, London, 1991; and J.B. Thompson, Studies in the Theory of Ideology, Polity Press, Cambridge, 1985. 15 In the sense that these terms imply a rejection of grand narratives, they reflect the fragmentation of universals, a rejection of the modernist objective/subjective dualism along with Western dichotomies in general, and they are sensitive to diversity through narrative, per J. Lyotard, The Postmodern Condition: A Report on Knowledge, G. Bennington & B. Massumi (Trans), Manchester University Press, Manchester, 1979, xxiii – xxv, 37, 40 – 41, & 78 - 79. 16 S. Malešević & I. MacKenzie (eds.) Ideology After Poststructuralism, Pluto Press, London, 2002, 4: ‘[Poststructuralists] typically reject the idea that a discussion of ideology is relevant to our attempts to understand the contemporary world. The general outline of the poststructuralist critique, for all the different versions of it that have been articulated, can nonetheless be summed up quite simply. Poststructuralists have argued that from its inception the concept of ideology has remained chained to the problematic humanist assumptions that motivated the Enlightenment.’ 17 S. Berns, To Speak As A Judge: Difference Voice and Power, Ashgate, Sydney, 1999, 24; S. Berns, Concise Jurisprudence, Sydney, Federation Press, 1993, 10 - 11; P. Feyerabend, Farewell to Reason, Verso, London, 1990, 283; A. Giddens, Central Problems in Social Theory: Action, Structure, and Contradiction in Social Analysis, MacMillan, London, 1979, 161; M. Mark, Modern Ideologies, St Martins Press, New York, 1973, 1; A. Pannekoek, Marxism and Darwinism, Translated by Jon Muller, Charles H. Kerr & Co, Chicago, 1912, , pp. 1 – 31, 9; and T. Tinker, “Panglossian Accounting Theories: The Science of Apologising in Style” (1988) 13 Accounting Organizations & Society 165, 168. 18 It is possible to distinguish a western tradition of rationalism and science from non-Occidental systems of knowledge that do not face an inherent contradiction and this tends to be, among other reasons, because the latter do not treat themselves as distinct from nature: P. Feyerabend, Farewell to

223 there for proof? 19 Ricoeur attributes formal recognition of this paradox to Mannheim (and hence it is widely known as “Mannheim’s paradox”).20 However, the paradox is fundamental to western thought and necessarily predates Mannheim’s 20th century recognition of it.21 Although unrecognised, it was, as Lyotard points out, implicit in Aristotle’s distinction between the “Organon” and the “Metaphysics”.22 It is a problem surfacing whenever the authority of knowledge is brought into question because, as we will see in what follows, knowledge and power are two sides of the same coin.23

Reason, Verso, London, 1990, 317; and J. Lyotard, The Postmodern Condition: A Report on Knowledge, G. Bennington & B. Massumi (Trans), Manchester University Press, Manchester, 1979, 8 & 27. 19 J. Lyotard, The Postmodern Condition: A Report on Knowledge, G. Bennington & B. Massumi (Trans), Manchester University Press, Manchester, 1979, 54. See also the discussions in A. Giddens, Central Problems in Social Theory: Action, Structure, and Contradiction in Social Analysis, MacMillan, London, 1979, 71 & 185 – 186; P. Hirst, On Law and Ideology, Macmillan, London, 1979, 54 – 55; K. Mannheim, “Utopia in the Contemporary Situation” in C.I. Waxman, The End of Ideology Debate, Funk & Wagnalls, New York, 1968, pp. 10 – 26, at 13, 17 & 20; and J.B. Thompson, Studies in the Theory of Ideology, Polity Press, Cambridge, 1985, 12. 20 This is because Mannheim sought to enlarge the Marxist concept of ideology by applying it to the point where it included the critic. P. Ricoeur, Lectures on Ideology and Utopia, Columbia University Press, New York, 1986, 159: ‘Mannheim pushes quite far the notion of the author’s self-involvement in his or her own concept of ideology. This interplay leads to what has been called Mannheim’s paradox. The paradox is similar in form to Zeno’s paradox about movement; both strike at the foundations of knowledge. Mannheim pushes the concept and critique of ideology to the point where the concept becomes self-defeating, a stage reached when the concept is extended and universalized such that it involves anyone who claims its use.’ 21 J. Lyotard, The Postmodern Condition: A Report on Knowledge, G. Bennington & B. Massumi (Trans), Manchester University Press, Manchester, 1979, 38 – 39. 22 J. Lyotard, The Postmodern Condition: A Report on Knowledge, G. Bennington & B. Massumi (Trans), Manchester University Press, Manchester, 1979, 29. After explaining how Aristotle was the first modernist to posit science (‘rules to which scientific statements must conform’: the Organon) as distinct from metaphysics (the search for legitimacy in a discourse of Being’: Metaphysics); Lyotard points out: ‘Even more modern was his suggestion that scientific knowledge, including its pretension to express the being of the referent, is composed only of arguments and proofs – in other words, of dialectics.’ 23 F. Jameson, “Foreword” in J. Lyotard, The Postmodern Condition: A Report on Knowledge, G. Bennington & B. Massumi (Trans), Manchester University Press, Manchester, 1979, viii: ‘For Lyotard

224 Western knowledge has been brought into question because of the combined effects of Mannheim’s paradox, postmodernism and what might be described as the “grassroots” politics of difference movements together with the more academic critical realist movements. Consequently many theorists refer to the “crisis of modernity” which includes the perceived crisis of legitimation in western thought.24 In this vein Lyotard refers to the collapse of two great western traditions of legitimation (among others) and refers to these traditions as ‘grand narratives’.25 The two grand narratives of modernity were both legitimising myths with a nationalistic genesis.26 These two ‘great legitimising myths’ of western science have been the ‘hero of liberty’ and the ‘hero of knowledge’.27 The ‘hero of liberty’ emanated from the French Revolution and is a practical political tradition providing for the ‘liberation of humanity’. The ‘hero of knowledge’ is a Germanic tradition of contemplative philosophy according to the notion of ‘totality’, a ‘unity of all knowledge’.28 The ‘hero of liberty’ began as the concept of “ideology” and arose with revolutionary bourgeois thought.29 It began as a system of both enlightenment and critique.30 the problem of legitimation in science only becomes visible as ‘a problem and an object of study only at the point in which it is called into question.’ And J. Lyotard, The Postmodern Condition: A Report on Knowledge, G. Bennington & B. Massumi (Trans), Manchester University Press, Manchester, 1979, and 8 – 9, for the coin metaphor. 24 J. Schwarzmantel, The Age of Ideology: Political Ideologies from the American Revolution to Postmodern Times, New York University Press, New York, 1998, 168 – 173. It also includes many other perceived crises, see generally, “The Crisis of Modernity”, Chapter 7 in Schwarmantel. 25 J. Lyotard, The Postmodern Condition: A Report on Knowledge, G. Bennington & B. Massumi (Trans), Manchester University Press, Manchester, 1979, 37. At xxiii, the chosen narrative to legitimate science is the discourse of philosophy: ‘I will use the term modern to designate any science that legitimates itself with reference to a metadiscourse of this kind making an explicit appeal to some grand narrative, such as the dialectics of Spirit, the hermeneutics of meaning, the emancipation of the rational or working subject, or the creation of wealth.’ 26 F. Jameson, “Foreword” in J. Lyotard, The Postmodern Condition: A Report on Knowledge, G. Bennington & B. Massumi (Trans), Manchester University Press, Manchester, 1979, ix. 27 J. Lyotard, The Postmodern Condition: A Report on Knowledge, G. Bennington & B. Massumi (Trans), Manchester University Press, Manchester, 1979, 31 – 34. 28 F. Jameson, “Foreword” in J. Lyotard, The Postmodern Condition: A Report on Knowledge, G. Bennington & B. Massumi (Trans), Manchester University Press, Manchester, 1979, ix. 29 S. Malešević, “Rehabilitating Ideology after Poststructuralism” in S. Malešević & I. MacKenzie (eds.) Ideology After Poststructuralism, Pluto Press, London, 2002, 87 – 110, 98.

225 Malešević and MacKenzie attribute the term “ideology” to the work of Count Antoine Louis Claude Destutt de Tracy in 1796.31 Others attribute it more generally to Cabinis, Destutt de Tracy and their colleagues during post-revolutionary France as an epistemological principle - science ought to prevail over superstition.32 Therefore, Thompson points out that to study ideology, is to raise fundamental questions concerning epistemology.33 In one sense the work of these Ideologues (Cabinis, Destutt de Tracy and their colleagues) represented the secularisation of human thought.34 In another sense it illustrated the intersection between critique, positivism, and ideology: The aim of the Enlightenment Ideologues, as spokesmen for the revolutionary bourgeoisie of eighteenth-century Europe, was to reconstruct society from the ground up on a rational basis. … against a social order which fed the people on religious superstition.35 In political terms, it was necessary for the emerging bourgeois order to substitute feudal excuses for hierarchy and injustice based on religion and superstition with their own forms of legitimation and authority.36 Religious dogma was to be replaced by a science of ideas – known as ideology - based on rational and reasoned inquiry:

30 I. MacKenzie, “Idea, Event, Ideology” in S. Malešević & I. MacKenzie (eds.) Ideology After Poststructuralism, Pluto Press, London, 2002, 11 – 27, 26: ‘One criticises a position as ideological, in other words, by refusing to occupy the terrain it has posited, though this itself can only be achieved by creating a new terrain of one’s own.’ 31 S. Malešević & I. MacKenzie (eds.) Ideology After Poststructuralism, Pluto Press, London, 2002, 1. 32 L. Althusser, “Ideology and Ideological State Apparatuses” in Lenin and Philosophy and Other Essays, translated by B. Brewster, Monthly Review Press, London, 1971, pp. 127 – 186, 158: ‘It is well known that the expression “ideology” was invented by Cabinis, Destutt de Tracy and their friends, who assigned to it as an object the (genetic) theory of ideas.’ And J.B. Thompson, Studies in the Theory of Ideology, Polity Press, Cambridge, 1985, 1. 33 J.B. Thompson, Studies in the Theory of Ideology, Polity Press, Cambridge, 1985, 2: ‘It is also an activity which presses to the heart of issues concerning the nature of social inquiry and its relation to the conduct of critique.’ 34 J. Habermas, Toward A Rational Society: Student Protest, Science, and Politics, Beacon Press, Boston, 1971, Chapter 6, “Technology and Science as ‘Ideology’”, especially pp. 98 – 99. 35 T. Eagleton, Ideology: An Introduction, Verso, London, 1991, 64. 36 I. Robertson, Sociology, 2nd ed., Worth Publishers, New York, 1981, 247.

226 De Tracy’s primary goal was to overcome the hegemony of religious and metaphysical explanations of ideas in order to identify a method for critical investigation of the sources and development of knowledge.37 At that moment of secularisation, however, ‘knowledge of humanity’ was ‘wrested from the monopoly of a ruling class and invested instead in an elite of scientific theorists’.38 That is to say, the power to describe reality was usurped by way of the guillotine from the aristocracy to become the domain of Napoleon, bourgeois politicians and Ideologues (scholars and scientists).39 However, this revolutionary coalition (of convenience and circumstance) sharing the power to describe reality was short-lived as the new science of ideology was subordinated to the political whim of the new ruling elite: Napoleon and bourgeois commercial interests.40 Initially, the Ideologues’ contribution to social theory suited Napoleon who was determined to replace religious, aristocratic and royal doctrine with his own: “liberty”.41 However it was also inconvenient for a dictator who found it politically necessary to ‘renege on revolutionary idealism’ because liberty and the rights of man undermined his ‘Bonapartist authoritarianism’.42 Napoleon turned on his ideas men labelling them together with the ‘very metaphysicians they were out to discredit’ by

37 S. Malešević & I. MacKenzie (eds.) Ideology After Poststructuralism, Pluto Press, London, 2002, 2. 38 T. Eagleton, Ideology: An Introduction, Verso, London, 1991, 65. 39 J. Lyotard, The Postmodern Condition: A Report on Knowledge, G. Bennington & B. Massumi (Trans), Manchester University Press, Manchester, 1979, 45 & 47. 40 J. Lyotard, The Postmodern Condition: A Report on Knowledge, G. Bennington & B. Massumi (Trans), Manchester University Press, Manchester, 1979, 45: ‘It was at this precise moment [the combined effects of the French Revolution and the Industrial Revolution] that science becomes a force of production, in other words, a moment in the circulation of capital.’ Science has remained subordinate ever since the close of the 18th century because (at 63): ‘No money no proof – and that means no verification of statements and no truth. The games of scientific language become the games of the rich, in which whoever is wealthiest has the best chance of being right. An equation between wealth, efficiency, and truth is established.’ 41 J.B. Thompson, Studies in the Theory of Ideology, Polity Press, Cambridge, 1985, 1. The term “ideology” is widely recognised as being, ‘derived from the so-called “Ideologues” of post- Revolutionary France, the term quickly acquired a negative sense, as the Ideologues were accused by Napoleon of perpetrating doctrines which were responsible for the country’s misfortune’. 42 T. Eagleton, Ideology: An Introduction, Verso, London, 1991, 67.

227 portraying them as excessively rational to the point where they became irrational.43 Napoleon cut loose and abandoned the Ideologues and converted what they stood for into a derogatory concept: Napoleon claimed to have invented the derogatory term “ideologue” himself, as a way of denoting the men of the Institute [of which Napoleon was originally an honorary member] from scientists and savants to sectarians and subversives. Tracy and his kind, so he complained were “windbags” and dreamers – a dangerous class of men who struck at the roots of political authority and brutally deprived men of their consolatory fictions. ‘You ideologues’, he grumbled, ‘destroy all illusions, and the age of illusions is for individuals as for peoples the age of happiness’. Before long he was seeing ideologues under every bed, and even blamed them for his defeat in Russia. He closed down the Moral and Political Sciences section of the Institut Nationale in 1802, and its members were assigned instead to teach history and poetry.44 What had started out as an attempt to liberate the people through rational thought replacing superstition and dogma became a political term denoting falsehood and mischief. The rise of a secular state purporting to side-line religious dogma and superstition founded a new dogma and superstition we know as science.45 This ironic and paradoxical conversion of the term ideology illustrates the inextricable knowledge

43 T. Eagleton, Ideology: An Introduction, Verso, London, 1991, 68 & 70. At 68: ‘In a notable irony, Napoleon contemptuously brackets the Ideologues with the very metaphysicians they were out to discredit. … Tracy and his colleagues, true to their irrationalist creed, ascribed a foundational role to ideas in social life, and thought a politics could be deduced from a priori principles. … If Napoleon denounces the Ideologues it is because they are the sworn foes of ideology, intent on demystifying the sentimental illusions and maundering religiosity with which he hoped to legitimate his dictatorial rule.’ 44 T. Eagleton, Ideology: An Introduction, Verso, London, 1991, 67, quoting from E. Kennedy, A Philosopher in the Age of Revolution: Destutt de Tracy and the Origins of “Ideology”, Philadelphia, 1978, 189. 45 P. Feyerabend, “Science and Ideology: A Response to Rollin” (1986) 4(2) New Ideas in Psychology 153, 157: ‘Societies of this kind take great care to separate the state from religions and non-religious ideologies. Now we have seen that scientists are not neutral fact-providers, but a special interest group which has succeeded in imposing its values under the guise of knowledge and value-neutrality. Hence science too must be separated from the state or else we must take care that scientific research and the results that emerge from it are subjected to strict public controls.’

228 power nexus.46 It also highlights the problem of legitimacy – science must turn to some other source to be sanctioned for it cannot legitimate itself. Science was born out of an ideology.47 A similar fate ensued for the second grand narrative of legitimation. The Germanic “hero of knowledge” held amongst other things: Philosophy must restore unity to learning, which has been scattered into separate sciences … it can only achieve this in a language game that links sciences together as moments in the becoming of spirit, in other words, which links them in a rational narration, or rather metanarration.48 This ‘hero of knowledge’ tradition commenced with Kant and is epitomized in the work of Hegel.49 The “hero of knowledge” was a quest for genuine knowledge as opposed to incomplete knowledge. Hegel wrote against the backdrop of the French Revolution and saw it as a shift from arbitrary sovereign rule and privilege to the triumph of abstract reason (as opposed to genuine reason).50 Hegel distinguished between abstract reason and genuine reason because the French revolution was fought and won according to the ideal of the liberty and rights of man, but in reality the revolution brought its own forms of tyranny as violent revolution invariably does: Once the constituent tyranny is overthrown after having performed its historical function, it is replaced by a form of government which emerges out of those popular forces which have overthrown it; this is the type of democracy practiced by the classical polis. It is however an undifferentiated form of

46 S. Malešević & I. MacKenzie (eds.) Ideology After Poststructuralism, Pluto Press, London, 2002, 2. It is an ‘acknowledgement of the deep link between power and knowledge in modernity’. 47 As Feyerabend explains in P. Feyerabend, “Science and Ideology: A Response to Rollin” (1986) 4(2) New Ideas in Psychology 153, at 154: ‘… science as a whole is founded on ideology. Particular scientific arguments may be free from it but the general framework of ideas in which the arguments are embedded and which gives them force almost always has ideological ingredients’. 48 J. Lyotard, The Postmodern Condition: A Report on Knowledge, G. Bennington & B. Massumi (Trans), Manchester University Press, Manchester, 1979, 33. 49 P. Singer, Hegel: A Very Short Introduction, Oxford University Press, Oxford, 2001, 88: ‘… in the Philosophy of History Hegel describes the course of history as nothing but the progress of the consciousness of the idea of freedom, whereas in the Phenomenology the emphasis is, as we have seen, on the development towards absolute knowledge.’ 50 P. Singer, Hegel: A Very Short Introduction, Oxford University Press, Oxford, 2001, 28 – 31 & 34 – 38.

229 democracy; far from idealizing polis, Hegel points to its lack of universality, to the absence of a general norm, to the fact that since everything is decided by the populace, everything is open to the arbitrary will, and nothing stands as a general rule above the accidentality of opinion as expressed in the marketplace.51 In other words, for Hegel, the emancipatory ideals of the ‘hero of liberty’ were merely a step forward in the evolution of freedom and consciousness, falling short of genuine freedom and consciousness which were only possible when individual reason was aligned with a rationally organised society. Until then the hero of liberty would always suffer the defect of illegitimate authority. This is because the will of individuals would not be in alignment and nor would the will of individuals be aligned with the will of society. Such a state of universal rationality was only possible through the evolution of knowledge or consciousness, through the hero of knowledge. But Hegel’s contemplative philosophy suggesting that genuine freedom would be achieved through the hero of knowledge was both drawn upon and attacked by Marx and Engels because it too lacked legitimacy.52 This was because Hegel’s contemplative philosophy (or ‘hero of knowledge’) depicted history as an unfolding of the development of human consciousness (or reason) as the result of a continuous dialectic between “thesis” and “anti-thesis”.53 Hegel’s references to ‘der Geist’ did

51 S. Avineri, Hegel’s Theory of the Modern State, Cambridge University Press, Cambridge, 1972, 111. 52 K. Marx and F. Engels, A Critique of the German Ideology, Progress Publishers, 1846, 46: ‘This again is by no means to be explained from other concepts, from “self-consciousness” and similar nonsense, but from the entire hitherto existing mode of production and intercourse, which is just as independent of the pure concept as the invention of the self-acting mule and the use of railways are independent of Hegelian philosophy. If he wants to speak of an “essence” of religion, i.e., of a material basis of this inessentiality, then he should look for it neither in the “essence of man”, nor in the predicate of God, but in the material world which each stage of religious development finds in existence.’ 53 Hegel left open the question of the driving force for his dialectical history of ideas explaining it by way of reference to “der Geist”, at 28 in G.W.F. Hegel, The Philosophy of History, with Prefaces by Charles Hegel and the Translator J. Sibree, Batoche Books, Kitchener, 2001. The term “Geist” as it appears in Hegel’s work is introduced by the translator (at 5) as follows: ‘The German “Geist,” in Hegel’s nomenclature, includes both intelligence and will, the latter even more expressly than the former. It embraces in fact man’s entire mental and moral being, and a little reflection will make it obvious that no term in our metaphysical vocabulary could have been well substituted for the more

230 not legitimise this dialectical process between thesis and antithesis. However, his historical dialectic suited Marx and Engels not in the sense of ‘history as a battlefield of incarnate ideas’ according to “der Geist”, but rather as an historical dialectic as the result of ‘the struggle between classes’.54 Marx and Engels contended that contemplative philosophy did not take place in a vacuum and was a reflection of a class struggle within a mode of production according to the particular historic epoch.55 Put another way, procedures alone would not reveal truth, because the procedures themselves were the product of a society based on the concealment of a truth, the exploitation of the proletariat by the bourgeoisie.56 What Marx and Engels did was to merge the two grand narratives in their quest to emancipate the proletariat from the bourgeoisie.57 Legitimacy for Marx and Engels was a question of both method and justice contingent upon the liberation

theological one, “Spirit,” as a fair equivalent.’ At 29 Hegel discusses the nexus between God and human knowledge: ‘The time must eventually come for understanding that rich product of active Reason, which the History of the World offers to us. It was for awhile the fashion to profess admiration for the wisdom of God as displayed in animals, plants, and isolated occurrences. But, if it be allowed that Providence manifests itself in such objects and forms of existence, why not also in Universal History? This is deemed too great a matter to be thus regarded. But Divine Wisdom, i.e., Reason, is one and the same in the great as in the little; and we must not imagine God to be too weak to exercise his wisdom on the grand scale. Our intellectual striving aims at realizing the conviction that what was intended by eternal wisdom, is actually accomplished in the domain of existent, active Spirit, as well as in that of mere Nature.’ 54 I. Berlin, Modern Interpretations of Marx, Tom Bottomore (ed), Blackwell, Oxford, 1981, 94. 55 K. Marx and F. Engels, A Critique of the German Ideology, Progress Publishers, 1846, pp. 1 – 61. 56 Otherwise explained by the Marxist metaphor of the ‘camera obscura’ in K. Marx and F. Engels, A Critique of the German Ideology, Progress Publishers, 1846, pp. 1 – 61, 9. 57 F. Jameson, “Foreword” in J. Lyotard, The Postmodern Condition: A Report on Knowledge, G. Bennington & B. Massumi (Trans), Manchester University Press, Manchester, 1979, ix – x. Although Lyotard juxtaposes these two grand narratives as ‘alternate’ legitimising myths, he recognises that they are rarely “pure” because scholars have since Hegel drawn upon both. That is to say, the French political, militant, activist tradition has found its way into the work of those working within the Germanic tradition such as Marx and later still Habermas, and vice versa, as in the case of Lyotard himself.

231 of the proletariat.58 But in the wake of postmodernism, Stalin and the collapse of Soviet Marxism the legitimacy of academic Marxism is left in tatters.59 Attempts by later scholars working within the Marxist tradition seeking to rescue it have also struggled for authority. So for instance, Lyotard condemned Habermas for his revision of Marxism, claiming that Habermas had drawn on the worst aspects of each grand narrative.60 Habermas had proposed that the solution to the paradox of legitimation was to take systematic or rational steps to address what he called “distorted communication”.61 What we are left with is a crisis of legitimation – incredulity toward metanarratives – or the ‘postmodern condition’.62 If the scientist continues to question the source of authority for any particular assertion the authority ultimately turns to a question of “who should decide and on what basis?”63 These questions of legitimation become circular within western

58 N. Poulantzas, Political Power and Social Classes, Translation Editor T. O’Hagan, Verso, London, 1982, 11. Hence the notions of ‘Historical materialism (the science of history)’ and ‘Dialectical materialism (Marxist philosophy). 59 S. During, “Socialist ends: the British New Left, cultural studies and the emergence of academic ‘theory’” (2007) 10(1) Postcolonial Studies 23; B. Hindess, “Uneven Development in the Moment of Theory” (2007) 10(1) Postcolonial Studies 41; F. Jameson, “Foreword” in J. Lyotard, The Postmodern Condition: A Report on Knowledge, G. Bennington & B. Massumi (Trans), Manchester University Press, Manchester, 1979, xiii – xv; K. Mannheim, “Utopia in the Contemporary Situation” in C.I. Waxman, The End of Ideology Debate, Funk & Wagnalls, New York, 1968, pp. 10 – 26, 16 – 17. 60 F. Jameson, “Foreword” in J. Lyotard, The Postmodern Condition: A Report on Knowledge, G. Bennington & B. Massumi (Trans), Manchester University Press, Manchester, 1979, x: ‘… rejected by Lyotard as the unacceptable remnant of a “totalizing” philosophical tradition and as the valorization of conformist, when not “terrorist”, ideals of consensus. (Indeed, as Habermas will invoke a liberatory rhetoric as well, there is a sense in which, for Lyotard, this philosophical position unites everything that is unacceptable about both traditions and myths of legitimation.)’ 61 J. Habermas, Toward A Rational Society: Student Protest, Science, and Politics, Beacon Press, Boston, 1971; and J. Habermas, Moral Consciousness and Communicative Action, C. Lenhardt & S. Weber Nicholsen (Trans), MIT Press, Cambridge, 1996. 62 J. Lyotard, The Postmodern Condition: A Report on Knowledge, G. Bennington & B. Massumi (Trans), Manchester University Press, Manchester, 1979, xxiii & xxiv; and S. Berns, Concise Jurisprudence, Sydney, Federation Press, 1993, 10 & 11. 63 As Berns (S. Berns, Concise Jurisprudence, Sydney, Federation Press, 1993, 10 & 11) tells us, when questioned, the law is unable to sustain any universal sense of legitimation: ‘The quest for legitimation underlies all contemporary jurisprudence even while its futility is often acknowledged. … [at 11] Each challenge is met by the same crisis which provoked it, the need to legitimate and the apparent absence

232 systems of knowledge since, ‘they can only be established within the bonds of a debate that is already scientific in nature, and that there is no other proof that the rules are good than the consensus extended to them by experts’.64 Even then legitimation is ephemeral because ‘consensus is a horizon that is never reached.’65 In other words authority returns not to a scientific question but to a political question based on individual preference or group choice.66 Unfortunately this is rarely a matter of “the best argument prevails” and history shows it is too often a matter of violence: … western civilization was either imposed by force, not because of arguments showing its intrinsic truthfulness, or accepted because it produced better weapons; and its advance, while doing some good, also caused enormous damage.67 There is, in short, no ultimate truth to be found by the strict observance of some method.68 This paradox of legitimation also affects the critic:

of any grounds for legitimation capable of commanding universal respect.’ Just as striking as the paradox itself is that, ‘each apparent paradigm shift can be shown to rely upon many of the same ideas as those which it has discredited and argued ought to be discarded’. 64 J. Lyotard, The Postmodern Condition: A Report on Knowledge, G. Bennington & B. Massumi (Trans), Manchester University Press, Manchester, 1979, 29. 65 J. Lyotard, The Postmodern Condition: A Report on Knowledge, G. Bennington & B. Massumi (Trans), Manchester University Press, Manchester, 1979, 61. 66 S. Berns, Concise Jurisprudence, Sydney, Federation Press, 1993, 85: ‘all we can do is respond to our understandings of the particular dispute which concerns us and the beliefs which we hold’. 67 P. Feyerabend, Farewell to Reason, Verso, London, 1990, 297. And at 309: ‘… if inclination opposes inclination then in the end the stronger inclination wins, which means, today, and in the west: the bigger banks, the fatter books, the more determined educators, the bigger guns. Right now, and again in the west, bigness seems to favour a scientifically distorted and belligerent (nuclear weapons!) humanitarianism – and so the matter has come to a temporary rest at this point.’ 68 P. Feyerabend, Farewell to Reason, Verso, London, 1990, 283: ‘A theory of science is then impossible. All we have is the process of research and, side by side with it, all sorts of rules of thumb which may aid us in our attempt to further the process but which may also lead us astray. … How do we determine fitness? We constitute it by the research we do: criteria do not merely judge events and processes, they are often constituted by them and they must be introduced in this manner or else research could never get started.’ At 297: ‘… “objective” reasons simply do not exist (the choice of objectivity as a measure is itself a personal and/or group choice – or else people simply accept it without much thought).’

233 How can we pretend to stand above the fray, aloofly assessing the discourse of others, when our interpretation is but another interpretation, no different in principle from the interpretations of those whose discourse we seek to assess?69 Equally, the paradox of legitimation challenges the very basis for ideological analyses: … any criticism of another’s view as ideological is always susceptible to a swift tu quoque. In pulling the rug out from beneath one’s intellectual antagonist, one is always in danger of pulling it out from beneath oneself.70 This is precisely how Ruse sought to defend sociobiology from its critics. He alleged that the critics of sociobiology are themselves ideologues referring to them as “radical feminists”.71 The question is, therefore, can ideology be resuscitated from the paradox of legitimation and the “postmodern condition”?

Ideology and the problem of “paradox”

It was mentioned above that Mannheim was the first to observe the paradox of ideology (viz: the failure of modernist critical theories to be able to legitimise themselves).72 The paradox stemmed from Mannheim’s declaration that the loss of “utopias” meant there was no capacity to judge ideas other than according to individual viewpoints or according to individual psychology.73 He made two points in this respect. The first was that critical approaches to ideology had failed to apply their

69 J.B. Thompson, Studies in the Theory of Ideology, Polity Press, Cambridge, 1985, 12. 70 T. Eagleton, Ideology: An Introduction, Verso, London, 1991, 108. 71 M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 100. 72 A. Giddens, Central Problems in Social Theory: Action, Structure, and Contradiction in Social Analysis, MacMillan, London, 1979, 185: ‘The problem of ideology for Mannheim was coterminous with the problem of how relativism could be avoided’. 73 K. Mannheim, “Utopia in the Contemporary Situation” in C.I. Waxman, The End of Ideology Debate, Funk & Wagnalls, New York, 1968, pp. 10 – 26, 16 – 17. The loss of utopia for Mannheim means that theory loses its capacity to judge: ‘The frame of reference according to which we evaluate facts vanishes and we are left with a series of events all equal as far as their inner significance is concerned. The concept of historical time which led to qualitatively different epochs disappears, and history becomes more and more like undifferentiated [at 17] space. All those elements of thought which are rooted in utopias are now viewed from a sceptical relativist point of view.’

234 techniques to their own assumptions.74 The second was that critical approaches had been born out of particular interests during specific moments of history without any syntheses.75 Therefore, Mannheim proposed that the way to escape the extreme relativism of the paradox was to drop the analysis of ideology using grand narratives such as Marxism and to undertake a sociological analysis of each instance of individual action instead: The task, therefore, is to remove that source of difficulty by unveiling the hidden motives behind the individual’s decisions, thus [at 26] putting him in a position really to choose. Then, and only then, would his decisions really lie with him.76 Not surprisingly neo-Marxists have condemned Mannheim’s ‘relationism’, not only because it postpones the question of legitimation, but because it ruled out notions of ideology beyond analyses of the unique psychology of particular individuals.77 In other words, key Marxist analytical tools such as “commodity fetishism”, “reification”, “interpellation”, and “hegemony” become impossible concepts because they collate individual behaviours according to the meta-theory of Marxism.78

74 ‘At this mature stage of development, the total perspective tends to disappear in proportion to the disappearance of utopia. Only the extreme left and right groups in modern life believe that there is a unity in the developmental process.’ Per K. Mannheim, “Utopia in the Contemporary Situation” in C.I. Waxman, The End of Ideology Debate, Funk & Wagnalls, New York, 1968, pp. 10 – 26, 15, pointing to Lukacs’ Neo-Marxism on the left and Spann’s universalism on the right. 75 K. Mannheim, “Utopia in the Contemporary Situation” in C.I. Waxman, The End of Ideology Debate, Funk & Wagnalls, New York, 1968, pp. 10 – 26, 15: ‘What had previously grown up in random fashion from the particular intellectual needs of restricted social circles and classes suddenly becomes perceptible as a whole, and the profusion of events and ideas produces a rather blurred picture. … This submission arises … from the insight that every former intellectual certainty has rested upon partial points of view made absolute. It is characteristic of the present time that the limits of these partial points of view should have become obvious.’ 76 K. Mannheim, “Utopia in the Contemporary Situation” in C.I. Waxman, The End of Ideology Debate, Funk & Wagnalls, New York, 1968, pp. 10 – 26, 25 – 26, original emphasis. 77 T. Eagleton, Ideology: An Introduction, Verso, London, 1991, 107 – 111. 78 Respectively: K. Marx, Capital, Vol 1, progress Publishers, Moscow, 1867, pp.1 – 505, at 6, 29, 30, 35, and 495; G. Lukacs, History and Class Consciousness: Studies in Marxist Dialectics, Translated by R. Livingstone, Merlin Press, London, 1971, 83 and further forward; L. Althusser, Lenin and Philosophy and Other Essays, translated by B. Brewster, Monthly Review Press, London, 1971, 170 – 171 & 180 – 181; and A. Gramsci, Selections from the Prison Notebooks, Q. Hoare & G.N Smith

235 Of course Mannheim was correct to question the legitimacy of Marxist thought in line with the broader postmodern assault that ensued concerning the legitimacy of positivism and modernist conceptions such as objectivity more generally.79 After all, the ensuing postmodern and poststructural writings had, as Lyotard wrote, destroyed the legitimacy of positivist science in terms of claims to liberty and knowledge and its failure to avoid political bias, sexism, racism and the like.80 Marxism was vulnerable not because it was sexist or racist but because it hinged on suspect dichotomies (viz, truth/false and science /ideology), it was deterministic (in the sense that it held class conflict and contradiction would lead to the inevitable emancipation of the proletariat by way of revolution), and Marxism approached history and analyses from utopian standpoints (whether, for example, Marx and Engel’s communism or Lukacs “total” proletarian consciousness), and because it over-determined structure and agency.81 For Mannheim the collapse of ‘utopias’ (extreme right and left political idealism) was an inescapable proposition given, for example, the atrocities perpetrated by the Nazis and their defeat in World War 2 and the brutality of Stalin’s application of Marxism

(translators & eds), International Publishers, New York, 1971, 12 – 13, 55 – 60, 104 – 106, 416 – 418, & 447. 79 Not least because Marxism had maintained that history has a purpose, per H. Collins, Marxism and Law, Oxford, Oxford Uni Press, 1984, 36 – 37. At 2, emphasis added: ‘Marxism is a theory about the meaning of history. … Marxists have discerned a regular evolutionary pattern controlling the human condition. … human civilization has been gradually moving towards the goal of history. … According to Marxism the meaning of history is that man’s destiny lies in the creation of a Communist society where men will experience a higher stage of being of being amounting to the realization of true freedom.’ 80 As I write this, Dr Watson, a 1972 Nobel Prize winner with Dr Crick for their joint discovery of the structure of DNA, is being condemned around the globe for his remarks that poverty in Africa is a consequence of genetics and their influence on governance: C. Milmo, “Fury at DNA pioneer's theory: Africans are less intelligent than Westerners”, Independent, 17 October 2007; and S. Adams, “Nobel scientist snubbed after racism claims”, Telegraph, 18 October 2007. 81 See generally: N. Abercrombie, S. Hill & B. Turner, Dominant Ideologies, Routledge, London, 1992; A. Giddens, Central Problems in Social Theory: Action, Structure, and Contradiction in Social Analysis, MacMillan, London, 1979; and J. B. Thompson, Studies in the Theory of Ideology, Polity Press, Cambridge, 1985.

236 in the former Soviet Union.82 But these attacks on Marxist analyses have also gone too far. Attacks on Marxist conceptions of ideology have gone too far because it is both possible and appropriate to retain Marxist analysis without embracing its teleology, determinism or faults. It still has utility for the analysis of ideology and this assertion is developed throughout the remainder of this chapter and those that follow it. For present purposes though, it is accepted that Marxism does not provide a legitimate standpoint for the study of ideology in terms of the paradox of legitimation. It has no superior claim to proof than any other view.83 The paradox of legitimation cannot be escaped for the purposes of constructing positive or normative theory.84 However, this is not necessarily the case with criticism (as opposed to positive and normative theory).85 As Lyotard points out, legitimation arises whenever authority is questioned.86 To be effective authority needs legitimation and it is not the concern of subalterns, oppressed or marginalised people who lack that authority. Therefore, legitimation is the province of those who have authority because they enjoy power and privilege.

82 K. Mannheim, “Utopia in the Contemporary Situation” in C.I. Waxman, The End of Ideology Debate, Funk & Wagnalls, New York, 1968, pp. 10 – 26. 83 See further Chapter 7 where the issue of standpoint theory is considered in some detail in terms of the debates between feminists, critical race theorists, queer theorists, and Marxists. 84 S. Berns, Concise Jurisprudence, Sydney, Federation Press, 1993, 20: ‘The search for a foundation is a search for something which does not exist’; and P. Feyerabend, Farewell to Reason, Verso, London, 1990, 283: ‘A theory of science is them impossible. All we have is the process of research and, side by side with it, all sorts of rules of thumb which may aid us in our attempt to further the process but which may also lead us astray.’ 85 P. Feyerabend, Farewell to Reason, Verso, London, 1990, 283 – 284 & 304: ‘I am not looking [at 284] for new theories of science. I am asking if the search for such theories is a reasonable undertaking and I conclude that it is not: the knowledge we need to understand and to advance the sciences does not come from theories, it comes from participation.’ Instead, at 304: ‘… it is up to the citizens to choose the traditions they prefer. Thus democracy, the fatal incompleteness of criticism, and the discovery that the prevalence of a view never is and never was the result of an exclusive application of rational principles, all suggest that attempts to revive old traditions and to introduce anti-scientific views are to be praised as the beginnings of a new age of enlightenment, where our actions are guided by insight and not merely by pious and often moronic slogans.’ 86 J. Lyotard, The Postmodern Condition: A Report on Knowledge, G. Bennington & B. Massumi (Trans), Manchester University Press, Manchester, 1979, 27.

237 Whether that authority is the power to describe “reality”, to determine the laws of nature, or to exercise power and privilege over others, it will require legitimation. Those who are empowered must endeavour to maintain their power and privilege by imposing their methods on subalterns, the oppressed and marginalised people. Historically this has been accomplished through force and legitimation in varying proportions as Feyerabend contends.87 Because of this nexus between legitimation and authority it makes sense that legitimation is not the concern of a critic unless the critic seeks to appease a privileged, a powerful or oppressive actor(s). Therefore it is possible to distinguish the science of the powerful and oppressive from the narratives of those disempowered and oppressed: … narrative knowledge does not give priority to the question of its own legitimation and that it certifies itself in the pragmatics of its own transmission without having recourse to argumentation and proof. This is why its incomprehension of the problems of scientific discourse is accompanied by a certain tolerance: it approaches such discourse primarily as a variant in the family of narrative cultures. The opposite is not true. The scientist questions the validity of narrative statements and concludes that they are never subject to argumentation or proof. He classifies them as belonging to a different mentality: savage, primitive, underdeveloped, backward, alienated, composed of opinions, customs, authority, prejudice, ignorance, ideology. Narratives are fables, myths, legends, fit only for women and children. At best, attempts are made to throw some rays of light into this obscurantism, to civilize, educate, develop. This unequal relationship is an intrinsic effect of the rules specific to each game. We all know its symptoms. It is the entire history of cultural imperialism from the dawn of western civilization. It is important to recognize its special tenor, which sets it apart from all other forms of imperialism: it is governed by the demand for legitimation.88 In other words the critic who seeks to deconstruct the rhetoric of legitimation tendered by the empowered need not legitimise their critique other than to the disempowered. By turning to the subjectivity and narrative of the disempowered people for the

87 P. Feyerabend, Farewell to Reason, Verso, London, 1990, 303 – 304. 88 J. Lyotard, The Postmodern Condition: A Report on Knowledge, G. Bennington & B. Massumi (Trans), Manchester University Press, Manchester, 1979, 27.

238 purposes of critiquing justifications supplied by the empowered for their authority to describe reality, to govern, to retain power and privilege etc., the problem of legitimation is irrelevant. The critic is only accountable to those they seek to help rather than the powerful.89 This is because: To know requires knowledge from the inside whereas, to know about is based on knowledge from outside the subject. These two ways of knowing inform us that there are limits to knowing an “Other”. These limitations will exist in any inter subjective relationship, and the degree to which they influence the power relations depends on the structural location of the subject position one occupies.90 What matters to the critic, is not legitimation but the opportunity to be heard and the effectiveness of their criticism. The critic who begins with the transparent assumption that hierarchy and oppression are not natural but constructed social circumstances, and who draws upon the voice of an oppressed, the disempowered, or the excluded to critique the excuses supplied by the empowered for their choices of action and institutions, need only account to the oppressed, disempowered or excluded and not to the empowered.91 What I have arrived at here accords with what some feminists have

89 M. Lugones & E. Spelman, “Have we got a theory for you” in N. Zack, L. Shrage & C. Sartwell (eds.), Race, Class, Gender and Sexuality: The Big Questions, Blackwell, Oxford, 1998, 376: ‘Since it matters to us that falsehood and lies not be told about us, we demand, of those who have been responsible for those falsehoods and lies, or those who continue to transmit them, not just that we speak but that they learn to be able to hear us.’ 90 A. Moreton-Robinson, Talkin’ Up to the White Woman: Indigenous Women and Feminism in Australia, PhD Dissertation, School of Humanities, Griffith University, Nathan, 1998, 216. Therefore, the critic must always be conscious of their own privilege and power in relation to those they purport to help, speak for, or represent whenever they do so from the “outside” otherwise they risk exacerbating injustice by reinforcing existing power relations. An argument made equally well in M. Lugones & E. Spelman, “Have we got a theory for you” in N. Zack, L. Shrage & C. Sartwell (eds.), Race, Class, Gender and Sexuality: The Big Questions, Blackwell, Oxford, 1998, 381 – 382. 91 S. Danuta Walters, “From Here to Queer: Radical Feminism, Postmodernism, and the Lesbian Menace (Or, why Can’t a Woman Be More Like a Fag?)” (1996) 21(4) Signs 830, 840 - 841. It follows that the fate of this proposal for ideological analysis can only be decided according to its recognition or non-recognition by subaltern (for want of a better more respectful term) individuals and groups. In a similar vein and speaking of the need for science to recognise all systems of knowledge Feyerabend (P. Feyerabend, Farewell to Reason, Verso, London, 1990, 307) makes the related point that: ‘They are subjective opinions, not objective guidelines; they are to be tested by other subjects, not by “objective”

239 been developing since the 1980s as “standpoint theory”.92 Although I reached this conclusion ignorant of this literature, there are no significant differences between my argument and standpoint theory.93 What my conclusion shares with feminist standpoint theory is the objective to transform hierarchy and oppression.94 However, the argument I have made here is necessarily narrower than feminist standpoint theory because I am specifically concerned with critiquing biological arguments that reify and naturalise hierarchy and oppression. Whereas, I interpret standpoint theories to have a larger agenda because they offer those who find themselves marginalised or oppressed the capacity to develop knowledge empowering them to embark on collective struggles to change their unjust circumstances in the face of hierarchy and oppression.95

criteria, and they receive political power only after everybody concerned has considered them: the consensus of those addressed, not my arguments, finally decides the matter.’ 92 See for example the debates following on from the publication of two separate articles by Hekman and Walby critiquing feminist standpoint theory in two separate editions of the journal Signs. These debates appear as “replies” following immediately after those two essays, respectively: S. Hekman, “Truth and Method: Feminist Standpoint Theory Revisited” (1997) 22(2) Signs 341; and S. Walby, “Against Epistemological Chasms: The Science Question in Feminism Revisited” (2001) 26(2) Signs 485. 93 S. Harding, “Comment on Hekman’s ‘Truth and Method: Feminist Standpoint Theory Revisited’: Whose Standpoint Needs the Regimes of Truth and Reality? (1997) 22(2) Signs 382, 389. As Harding, one of standpoint theories more prominent advocates says: ‘in retrospect one can see that feminist standpoint epistemology was evidently an idea whose time had come, since most of these authors worked independently and unaware of each other's work. (Standpoint theory would itself call for such a social history of ideas, would it not?) It was a project "straining at the bit" to emerge from feminist social theorists who were familiar with the Marxian epistemology. If one was familiar with Marx's, Engles's, and Lukacs's writings on epistemology, the potential parallels Hartsock so incisively delineates between the situations of "proletarians" and of "women" in thinking about relations between power and knowledge began to leap off the page.’ 94 N. Hartsock, “Comment on Hekman’s ‘Truth and Method: Feminist Standpoint Theory Revisited’: Truth or Justice?” (1997) 22(2) Signs 367, 370 & 373; and S. Harding, “Comment on Hekman’s ‘Truth and Method: Feminist Standpoint Theory Revisited’: Whose Standpoint Needs the Regimes of Truth and Reality? (1997) 22(2) Signs 382, 382 – 383; 95 P. H. Collins, “Comment on Hekman’s ‘Truth and Method: Feminist Standpoint Theory Revisited’: Where’s the Power?” (1997) 22(2) Signs 375, 380.

240 For my purposes, legitimation according to the standards of those already empowered is unnecessary.96 It is in metaphorical terms to play an unfair game by their rules. Legitimation, therefore, is only the concern of those already empowered, those who may seek to appease an oppressor or tyrant, and those who because of their power must always justify their privilege or explain an exercise of power that oppresses or maintains a hierarchical status quo. This argument can only be contested on one of two grounds. It might be challenged on the basis that social structure is the natural consequence of human biology and is not socially constructed. Yet the case that hierarchy and oppression are natural and inevitable human traits because of genes has no evidence to sustain it.97 Secondly, it may be contested by the oppressed as misrepresenting their experience to the extent the critic is an outsider and remakes the oppressed in their own image.98 It follows that a critical approach to ideology need not be thwarted by the paradox of legitimation provided the standpoint of the disempowered is privileged over the empowered for the purposes of critique. Just whose standpoint should be adopted will vary according to the context in terms of power and this issue is discussed further in Chapter 7 under the heading “Standpoint Theory and the Intersection of Critical Theories”.

Stratification, Ideology and Postmodernism

Another perplexing question arising from the literature concerns the validity of the concept of ideology. Furthermore, if ideology is a valid concept, how does it work? In

96 Legitimation is only the concern of an oppressor not the oppressed. As Haraway says of feminist science: ‘Feminists don't need a doctrine of objectivity that promises transcendence, a story that loses track of its mediations just where someone might be held responsible for something, and unlimited instrumental power’, in D. Haraway, “Situated Knowledges: The Science Question in Feminism and the Privilege of Partial Perspective” (1988) 14(3) Feminist Studies 575, 579. 97 See Chapter 4: Sociobiology – Critique of the “Case For”. 98 Therefore the critic only has standing if they are themselves an “insider” or to the extent it is granted by insiders where the critic is an outsider. M. Lugones & E. Spelman, “Have we got a theory for you” in N. Zack, L. Shrage & C. Sartwell (eds.), Race, Class, Gender and Sexuality: The Big Questions, Blackwell, Oxford, 1998, 381: ‘It is one thing for both me and you to observe you and come up with our different accounts of what you are doing; it is quite another for me to observe myself and others much like me culturally and in other ways and to develop an account of myself and then use that account to give an account of you.’

241 more practical terms, if ideology is based on untruths then how can it be accepted as a truth? Such questions arise as a result of the attacks of postmodern and neo-liberal scholarship on the concept of ideology, a concept associated with modernity and structuralism, in particular with Marxism and Parson’s social theory. Those attacks on ideology overlap with Ruse’s defence that even if sociobiology was wrong on occasions it did not automatically mean that it is ideology. In short, the postmodern and liberal views of ideology are that it is either an impossible concept or a redundant one. Consequently two postmodern theories have emerged purporting to replace the concept of a dominant ideology altogether. Before examining these alternatives to ideology it is helpful to know of their modernist ancestry. As such two expansive traditions in social theory were handed down from the 19th century to explain the relative stability of stratified societies.99 On the one hand there is the Marxist “critical” tradition and on the other hand there is the Spencer, Durkheim, Parsons “functional whole” tradition.100 Otherwise referred to as the conflict and functional approaches to the analysis of society, they share the belief that ideas, culture and ideology play a role in maintaining stability.101 Beyond this overlap, these two traditions are sharply at odds with one another because Marxists, unlike functionalists, refuse to accept the inevitability of the status quo.102 For this reason this thesis places a greater emphasis on the Marxist tradition as opposed to the functionalist tradition.

99 J. Lyotard, The Postmodern Condition: A Report on Knowledge, G. Bennington & B. Massumi (Trans), Manchester University Press, Manchester, 1979, 11; S. Hill, “Britain: The Dominant Ideology Thesis after a decade” in N. Abercrombie, S. Hill & B. Turner (eds), Dominant Ideologies, Routledge, London, 1992, 2 - 3. 100 I. Robertson, Sociology, 2nd ed., Worth Publishers, New York, 1981, 17-19 & 248 - 250. 101 M. Rose, Industrial Behaviour: Theoretical developments since Taylor, Penguin Books, Ringwood (Vic), 1981, 274; S. Malešević, “Rehabilitating Ideology after Poststructuralism” in S. Malešević & I. MacKenzie (eds.) Ideology After Poststructuralism, Pluto Press, London, 2002, 87 – 110, 88; V. Lenin, “Frederick Engels Biography”, in Lenin Collected Works, Moscow, Vol. 2, 1895, pages 1 – 9, at 2. Functionalists assume that a stratified society is functionally necessary, while Marxists, assume that society is held together by a mix of force, material factors and ideology. 102 J. Lyotard, The Postmodern Condition: A Report on Knowledge, G. Bennington & B. Massumi (Trans), Manchester University Press, Manchester, 1979, 11 - 12. Lyotard rejects both traditions.

242 Stratification and the Rise and Fall of Dominant Ideology

After Napoleon successfully turned the work of the enlightenment scholars – the Ideologues – into a derogatory concept, “ideology” was recycled much later by Marx and Engels. They revitalised the concept of ideology as part of their explanation and critique of the stratified and exploitative nature of industrial capitalist society. Eagleton describes two conceptual phases in the Marxian approach to ideology containing at least four different versions of ideology (three initially and then the fourth coming from their 1867 Capital).103 The first phase is from Marx and Engels’ critique of Hegelian idealism in The German Ideology (1846) and this account ‘belongs with this general logic of inversion and alienation’.104 The second phase is represented by commodity fetishism and comes from their work in Capital.105 Eagleton explains that ideology appears initially as part of their more ‘general theory of alienation, expounded in the Economic and Philosophical Manuscripts (1844) and elsewhere’: In certain social conditions, Marx argues, human powers, products and processes escape from the control of human subjects and come to assume an apparently autonomous existence. Estranged in this way from their agents, such phenomena then come to exert an imperious power over them, so that men and women submit to what are in fact products of their own activity as though they are an alien force. The concept of alienation is thus closely linked to that of “reification” – for if social phenomena cease to be recognizable as the outcome

103 T. Eagleton, Ideology: An Introduction, Verso, London, 1991, 83 – 84. Three possible meanings of the term ideology in the early Marxist parlance: ‘Ideology [at 84] can denote illusory or socially disconnected beliefs which see themselves as the ground of history, and which by distracting men and women from their actual social conditions (including the social determinants of their ideas), serve to sustain an oppressive political power. The opposite of this would be an accurate, unbiased knowledge of practical social conditions. Alternatively, ideology can signify those ideas which directly express the material interests of the dominant social class, and which are useful in promoting its rule. The opposite of this might be either true scientific knowledge, or the consciousness of the non-dominant classes. Finally, ideology can be stretched to encompass all of the conceptual forms in which class struggle as a whole is fought out, which would presumably include the valid consciousness of politically revolutionary forces.’ 104 T. Eagleton, Ideology: An Introduction, Verso, London, 1991, 70. 105 T. Eagleton, Ideology: An Introduction, Verso, London, 1991, 84.

243 of human projects, it is understandable to perceive them as material things, and thus to accept their existence as inevitable.106 This initial formulation that socially constructed phenomena can appear or be represented as natural and therefore immutable and inevitable is critical to the argument advanced in this thesis that sociobiology is a dominant ideology. It is argued below that sociobiology provides an array of excuses to justify action and institutions by rendering those actions and institutions as natural, immutable and inevitable facts of life; as the product of natural laws of human nature or natural laws governing the relation between humans and nature. It is a dominant ideology in this respect because it is ubiquitous cutting across the categories of socioeconomic class, gender and sexuality, and race. It is ubiquitous because evolutionary theory and biology developed symbiotically with capitalism. In other words biology and evolutionary theory are revered in this epoch and are therefore amenable to appropriation for the purposes of justification. However, like the grand narratives of legitimation, these two sociological traditions (Marxism and Durkheim/Parsons) accounting for the stratification of society have suffered in the face of substantial critique and the weight of postmodernism. As a result social theory is said to be in a state of theory crisis with no dominant paradigms.107 All that is agreed upon is that society is indeed stratified and has arguably always been so whether feudal, capitalist, “socialist”, or “communist”.108 All perspectives accept that society is stratified but might disagree as to its causes, whether the manifestations of stratification are linked, whether stratification can be cured, or how it might be cured. Based on the material presented in the earlier chapters it is assumed here that society is socially constructed not an inevitable product of biology or evolution. In terms of the second question, it will be argued below that the various manifestations of stratification are indeed linked – they are linked by sociobiological excuses for their

106 T. Eagleton, Ideology: An Introduction, Verso, London, 1991, 70. 107 N. Abercrombie, S. Hill & B. Turner (eds), Dominant Ideologies, Routledge, London, 1992, 230: ‘For a great variety of political, social and intellectual reasons, Marxism as a theory of society no longer has any significant purchase within the academic system. … The result is that there is a theoretical vacuum at the core of contemporary social science.’ 108 M. Rose, Industrial Behaviour: Theoretical developments since Taylor, Penguin Books, Ringwood (Vic), 1981, 268 - 277.

244 existence. No attempt will be made here to answer the third and fourth questions (whether stratification can be cured and how) other than the declaration that my purpose is to facilitate an attack on stratification through a critique of the reasons supplied for its maintenance and reproduction. Western society is stratified. In particular it is stratified on the basis of income, wealth, opportunity and power.109 It is also stratified on the basis of age, gender, sexuality, race, ethnicity, disability, geography, health, among other factors.110 The extent of stratification is more a matter of social construction than it is individual

109 F. Argy, “Equality of opportunity in Australia: Myth and reality”, Australia Institute, Discussion Paper Number 85, April 2006; A.B. Atkinson & A. Leigh, “The Distribution of Top Incomes in Australia”, ANU Centre for Economic Policy Research, Discussion Paper No 514, March 2006; N. Abercrombie, S. Hill & B. Turner (eds.) Dominant Ideologies, Routledge, London, 1992, 175: ‘In Australia in the early 1970s, the top 1% of the population owned approximately 22 % of all personal wealth, whereas the top 5% owned approximately 90% of personal wealth.’; R. Lloyd, A. Harding & A. Payne, “Australians in poverty in the 21st century”, National Centre for Social and Economic Modelling, University of Canberra, Paper prepared for the 33rd Conference of economists, 27-30 September 2004; J. McNamara, J. Lloyd, M. Toohey & A. Harding, “Prosperity For All?: How low income families have fared in the boom times”, NATSEM, National Centre for Social and economic Modelling, University of Canberra, 14 October 2004, Paper for Families Matter 9th Australian Institute of Family Studies Conference, Melbourne, 9-11 February 2005, pp. 1 – 49; National Institute of Labour Studies, “Labour Market Conditions in Australia, January 2005”, Flinders University, Adelaide, accessed online at the Global Policy Network, 2005, Appendix 5; and R. Scutella & P. Smyth, “The Brotherhood’s Social Barometer: Monitoring Children’s Chances”, Brotherhood of St Laurence, Fitzroy, December 2005, 1. Significantly: ‘… of 16,000 children studied in their first year at school, 22 percent were “developmentally at risk” in areas such as physical health, social competence, emotional maturity and communication skills’. This has meant that ‘children from disadvantaged backgrounds are much more prone to physical and mental health problems’. 110 A. Harding, J. McNamara, R. Tanton, A. Daly & M. Yap, “Poverty and disadvantage among Australian children: a spatial perspective”, National Centre for Social and Economic Modelling, University of Canberra, Paper for presentation at 29th General Conference of International association for Research in Income and Wealth, Joensuu, Finland, 20-26, August 2006; M. Peel, “Arguing for a fairer Australia”, Australian Review of Public Affairs, 6 February2006, ISSN 1832-1526; and D. Yencken & L. Porter, “A Just and Sustainable Australia”, The Australian Council of Social Service, Redfern, ISBN 0 8571 311 X, September 2001.

245 choice or human innateness.111 Stratification and opportunity are contingent upon institutions and the decisions made by ruling elites (politicians, judges, professionals, and CEOs).112 For example, Indigenous people have been hampered in their attempts to enjoy the benefits of the current unprecedented mining boom by the 1998 Coalition government amendments to the Native Title Act.113 Those amendments included the prevention of arbitration in disputes concerning mining income or profits.114 Also, over the last decade or more, welfare recipients have been made poorer by cuts to public dentistry and health, the privatisation of education and the “user pays principle”, and the introduction of the Goods and Services Tax.115 At the same time, changes to industrial laws have redefined the division of labour on the basis of gender and age rendering women and young people more vulnerable to exploitation and income pressure.116 Further, changes to taxation and welfare laws together with

111 This is discussed further below but it is also the contention of the previous two Chapters and the remaining Chapters. Lewontin also makes this argument in R. C. Lewontin, The Doctrine of DNA: Biology as Ideology, Penguin, Ringwood, Victoria, 2001. 112 M. Peel, “Arguing for a fairer Australia”, Australian Review of Public Affairs, 6 February2006, ISSN 1832-1526, 1. 113 Section 38(2) Native Title Act 1993. 114 While s. 33 of the Native Title Act 1993 provides for references to be made to “profits” and “income” for the purposes of negotiating native title agreements with mining companies, the Howard government included s. 38(1A)(b) & 38(2) preventing the National Native Title Tribunal from arbitrating on such matters. This puts Indigenous people at a considerable disadvantage during negotiations due to the time restrictions that can apply under s. 36 or by virtue of s.37. This unfairness has been widely condemned by government agencies and NGOs alike, see in particular N. Pearson, “Boom and Dust Lifestyle”, The Australian, Sat 03 Feb 2007, 29; and the United Nations CERD decision, 18 March 1999, CERD/C/54/Misc 40/Rev 2, especially clauses 6 & 7, reported at [1999] AILR 15; (1999) 4 AILR 140. 115 A. Harding, Q. Ngu & R. Percival, “Welfare to work and sole parents”, New Matilda, Publication Print, 7 September 2005; J. McNamara, J. Lloyd, M. Toohey & A. Harding, “Prosperity For All?: How low income families have fared in the boom times”, NATSEM, National Centre for Social and economic Modelling, University of Canberra, 14 October 2004, Paper for Families Matter 9th Australian Institute of Family Studies Conference, Melbourne, 9-11 February 2005, pp. 1 – 49, 30. 116 J. Elton, J. Bailey, M. Baird, S. Charlesworth, R. Cooper, B. Ellem, T. Jefferson, F. Macdonald, D. Oliver, B. Pocock, A. Preston, & G. Whitehouse, “Women and WorkChoices: Impacts on the Minimum Wage Sector”, August 2007, Centre for Work + Life, University of South Australia; and B. van Wanrooy, S. Oxenbridge, J. Buchanan, & M. Jakubauskas, “Australia @ Work: The benchmark

246 bureaucratic policies and procedures, discriminate against sole parent families, single people, and Gays and Lesbians.117 In addition, the growing gap between high income earners and low-paid workers is contrived by successive choices of CEOs and institutional shareholders118 such that: In 1992, the remuneration of a typical executive in Australia’s top 50 companies was 27 times the wage of an average worker. By 2002, this had risen to 98 times the wage of an average worker…119 To be sure, in 2005/2006, the wealthiest 20 percent of Australians owned 61.1% of Australia’s wealth an average increase of 11% since 2003/2004. While the poorest 20 percent of Australians owned 1% of Australia’s wealth up 5% from 2003/2004. Over the same period of time the proportion of wealth held by the middle 20 percent dropped from 12.7% in 2003/2004 to 12.1% in 2005/2006, but represented an

report”, published by the Workplace Research Centre at The University of Sydney, Sydney, September 2007. 117 K. Anthony & T. Drabsch, “Legal Recognition of Same-Sex Relationships”, Briefing Paper No 9/06, NSW Parliamentary Library, June 2006; S. Dunlevy, “Welfare rules give the gift of poverty”, Daily Telegraph, Friday 7 July 2006, 20; R. Lloyd, A. Harding & A. Payne, “Australians in poverty in the 21st century”, National Centre for Social and Economic Modelling, University of Canberra, Paper prepared for the 33rd Conference of economists, 27-30 September 2004; S. Maddison & E. Partridge, “How well does Australian democracy serve sexual and gender minorities?” Report No 9 for the Democratic Audit of Australia, School of Social Sciences, ANU, Canberra, 2007; and M. Stewart, “It’s a Queer Thing: Campaigning for equality and social justice for lesbians and gay men” (2004) Vol 29 No 2 Alternative Law Journal 75. 118 The salience of the social Darwinist rhetoric of William Graham Sumner must be mentioned here. According to Hofstadter Sumner argued that: ‘If the fittest are to be allowed to survive, if the benefits of efficient management are to be available to society, the captains of industry must be paid for their unique organizing talent. Their huge fortunes are the legitimate wages of superintendence; in the struggle for existence, money is the token of success. It measures the amount of efficient management that has come into the world and the waste that has been eliminated. Millionaires are the bloom of a competitive civilization … [at 59] Without inequality the law of survival of the fittest could have no meaning’; per R. Hofstadter, Social Darwinism in American Thought, Revised edition, George Braziller, New York, 1959, 58 – 59 citing variously Sumner’s Essays I & II, The Challenge of Facts, What Social Classes Owe to Each Other, and The Science of Society. 119 A.B. Atkinson & A. Leigh, “The Distribution of Top Incomes in Australia”, ANU Centre for Economic Policy Research, Discussion Paper No 514, March 2006, 9.

247 increase of 9%.120 Official data for income was similar for the same periods and classes.121 In macro policy terms there has been a switch from welfare Keynesian policy to neo- liberal/conservative social policy over the past three decades122 resulting in what Rankin calls an ‘impenetrable disparity between the very rich and the very poor’ throughout the world and within affluent western countries.123 At the same time: Certain groups in Australian society [for example] bear a disproportionate amount of the burden of unemployment, poverty, homelessness and inadequate housing, education and health. Indigenous people, newly arrived migrants, young people and those living outside the major urban areas all need particular attention. Economic growth has failed to deliver a reduction in the inequities and the full participation of every citizen in economic, social and cultural life.124 Given the magnitude of this disparity in income, wealth, opportunity and power within western countries raises the question, why do people acquiesce to this unfairness and what sustains acceptance of this social and economic stratification?

120 Australian Bureau of Statistics, 6.554.0 – Household Wealth and wealth Distribution, Australia, 2005-06, Table 2 Changes in Real Net Worth Distribution, 2003-04 to 2005-06. 121 In 2005/2006, the poorest 20% earned 4.3% of all income (down from 11.1% in 2003/2004), the middle 20% earned 16.1% of all income( up from 14.6% in 2003/2004), and the richest 20% earned 45.6% of all income (up form 40% in 2003/2004); source: Australian Bureau of Statistics, 6.554.0 – Household Wealth and wealth Distribution, Australia, 2005-06, Table 3 Selected Distribution Indicators, Household net worth and gross household income. 122 I. Ayers & J. Braithwaite, Responsive Regulation: Transcending the Deregulation Debate, Oxford University Press, Oxford, 1992; and J. Braithwaite, “Accountability and Governance under the New Regulatory State” (1999) 58(1) Australian Journal of Public Administration 90. 123 M.J. Rankin, “The Immorality of Unlimited Wealth: The Lockean Limits to the Acquisition and Accumulation of Private Property” (2000) 4 Flinders Journal of Law Reform 39, 39; see also A.B. Atkinson & A. Leigh, “The Distribution of Top Incomes in Australia”, ANU Centre for Economic Policy Research, Discussion Paper No 514, March 2006, 12; B. S. Morris, “The End of Ideology, The End of Utopia, and the End of History – On the occasion of the end of the USSR” (1994) 19(4-6) History of European Ideas 699, 701, and D. Ransom, The No-nonsense Guide to Fair Trade, Verso, London, 2001, 20 - 21. 124 D. Yencken & L. Porter, “A Just and Sustainable Australia”, The Australian Council of Social Service, Redfern, ISBN 0 8571 311 X, September 2001, 8.

248 With the demise of Marxist and Parsonian structural explanations for the acquiescence to stratification there are various competing heterogeneous postmodern theories.125 These postmodern approaches reject the belief that a stratified society is maintained by ‘an overarching and powerful common culture [that] binds together people who otherwise have incommensurable interests’.126 In other words these conceptions reject the view that stratified western society is held together by “ideological glue” or because people are duped by dominant ideology.127 Proponents of these approaches condemn Marxism for failing to ‘analyse the apparatus or mechanisms by which dominant beliefs were transmitted and how such beliefs were received by subordinates; and for its assumption that the human subject was an ideological dupe, incapable of independent thought and rational action’.128 Marxism was never fully developed empirically in terms of explaining how ideology functioned.129 Similarly, the structuralism of Parsonian functionalism was also condemned for its over-determination of agency and structure.130 For these reasons, the notion of a dominant ideology, whether Marxian or Parsonian could not be sustained by theory alone however plausible and eloquent it may be.131

125 N. Abercrombie, S. Hill & B. Turner, “Preface” in N. Abercrombie, S. Hill & B. Turner (eds), Dominant Ideologies, Routledge, London, 1992, xv: ‘… rational choice theorists, the phenomenological view of the constraints of everyday life, and accounts which more explicitly recognize non-normative forms of social power.’ 126 N. Abercrombie, S. Hill & B. Turner, “Preface” in N. Abercrombie, S. Hill & B. Turner (eds), Dominant Ideologies, Routledge, London, 1992, xv. 127 J.B. Thompson, Studies in the Theory of Ideology, Polity Press, Cambridge, 1985, 5. There Thompson uses the phrase ‘social cement’. 128 S. Hill, “Britain: The Dominant Ideology Thesis after a decade” in N. Abercrombie, S. Hill & B. Turner (eds), Dominant Ideologies, Routledge, London, 1992, 2. 129 N. Abercrombie, S. Hill & B. Turner (eds), Dominant Ideologies, Routledge, London, 1992, xvi, 2 & 248. 130 S. Malešević, “Rehabilitating Ideology after Poststructuralism” in S. Malešević & I. MacKenzie (eds.) Ideology After Poststructuralism, Pluto Press, London, 2002, 87 – 110, 91 – 92. 131 N. Abercrombie, S. Hill & B. Turner (eds), Dominant Ideologies, Routledge, London, 1992, xvi, 2 & 248. At xv: ‘… the existence of an ideology (dominant or otherwise) can never be established merely by theoretical assertion, or by depending parasitically on guidelines developed in the classical Marxist literature …’

249 On the back of postmodernism, “ideology” is now seen as an anachronism of modernity and the state of social theory is in an abyss.132 Within this paradigmatic abyss, two theories have emerged attracting relatively more attention in the literature than other postmodern theories dealing with the stratification of society.133 They are Luhmann’s “autopoiesis” on the one hand and Abercrombie et al’s “dull compulsion” on the other.134 A complete analysis of these theories is beyond the scope of this thesis which is restricted to the literature as it concerns the capacity or otherwise for the argument that sociobiology is an ideology relevant to the stratification of society. Still, some analysis of them is warranted for reasons that will quickly become apparent in each case.

Autopoiesis

Autopoiesis is relevant in four respects. Firstly, it is an evolutionary/biological theory.135 Secondly, it is a postmodern136 sociological theory that by implication deals

132 B. Turner, “Conclusion: peroration on ideology” in N. Abercrombie, S. Hill & B. Turner (eds), Dominant Ideologies, Routledge, London, 1992, 231: ‘The result is that there is a theoretical vacuum at the core of contemporary social science. No dominant paradigm has in sociology, or more broadly in social theory, replaced structuralist Marxism and contemporary sociology is characterised by its fragmentation and absence of cumulative theorization (Smelser, 1988).’ 133 So for example, Eagleton refers to Abercrombie et al’s work on dull compulsion and Lyotard refers to Luhmann’s work on autopoiesis in, respectively, T. Eagleton, Ideology: An Introduction, Verso, London, 1991, 36; and J. Lyotard, The Postmodern Condition: A Report on Knowledge, G. Bennington & B. Massumi (Trans), Manchester University Press, Manchester, 1979, 35, 46, 53 – 54, 55, 57 – 60, 61, 62 – 63. 134 N. Luhmann, A Sociological Theory of Law, translated by E. King & M. Albrow, Routledge & Kegan Paul, Melbourne, 1985; N. Luhmann, “The Unity of the Legal System” in G. Teubner (ed), Autopoietic Law: A New Approach to Law and Society, Walter de Gruyter, New York, 1988; and S. Hill, “Britain: The Dominant Ideology Thesis after a decade” in N. Abercrombie, S. Hill & B. Turner (eds), Dominant Ideologies, Routledge, London, 1992, 3. 135 H.R. Maturana & F.J. Varela, Autopoiesis and cognition: the realisation of the living, Reidel, Dordrecht, 1980; and H. Maturana & F. Varela, The Tree of Knowledge, Shambhala, Boston, 1987. It draws upon the biology of Humberto Maturana and Francisco Varela who introduced the concept. Teubner (G. Teubner, “Introduction to Autopoietic Law” in G. Teubner (ed), Autopoietic Law: A New Approach to Law and Society, Walter de Gruyter, New York, 1988, 11) provides various references to

250 with the stratification of society.137 Thirdly, as a sociological theory of society and law it regards both as closed and autonomous systems.138 Lastly, it is sociobiological in the sense that it is yet another biological theory, whether intended or not, naturalising existing and future hierarchy on the basis of performance/efficiency.139 It is therefore ideological. Autopoiesis originated in biology where it is presently languishes.140 It was introduced to biology by two Chileans trained in cybernetics, Maturana and Verela, in

these men and among them: H. Maturana, F. Varela & R. Uribe, “Autopoiesis: The Organization of Living Systems, Its Characterisation and a Model” (1974) 5 Bio Systems 187. 136 T.C. Heller, “Accounting for Law”, in G. Teubner (editor), Autopoietic Law: A New Approach to Law and Society, Walter de Gruyter, New York, 1988, 294, ‘Autopoiesis is a post-structural discourse in both a chronological and a pragmatic sense’. 137 N. Luhmann, A Sociological Theory of Law, translated by E. King & M. Albrow, Routledge & Kegan Paul, Melbourne, 1985; Chapter 3, and at 103: ‘Social theory that sought to embrace the whole of human communal existence collapsed’. It represents a shift from structuralism as well as a shift from a concern with “legitimation” to a concern with the performative: F. Jameson, “Foreword” in J. Lyotard, The Postmodern Condition: A Report on Knowledge, G. Bennington & B. Massumi (Trans), Manchester University Press, Manchester, 1979, ix: The ‘coherence’ of science is ‘saved’ by turning to the ‘performative’; and Lyotard at 11 – 12. See also W.T. Murphy, “Systems of Systems: Some issues in the relationship between law and autopoiesis” (1994) 5(2) Law and Critique 241, 248. 138 G. Teubner, Law as an Autopoietic System, Translated by A. Bankowska & R. Adler, Edited by Z. Bankowska, Blackwell, Oxford, 1993, 25: ‘Law is in fact a second-order autopoietic system. It distinguishes itself from society, the first-order autopoietic system, by constituting its components in a self-referential way and linking them together in a hypercycle.’; and K. Ziegert, “The thick description of law: An introduction to Niklas Luhmann’s theory of operatively closed systems”, Vienna Working Papers in Legal theory, Political Philosophy, and Applied Ethics, No 25, Wien, 2001. 139 J. Lyotard, The Postmodern Condition: A Report on Knowledge, G. Bennington & B. Massumi (Trans), Manchester University Press, Manchester, 1979, 53 – 54: ‘Determinism is the hypothesis upon which legitimation by [at 54] performativity is based: since performativity is defined by an input/output ratio, there is a presupposition that the system into which the input is entered is stable; that system must follow a regular “path” that it is possible to express as a continuous function possessing a derivative, so that an accurate prediction of the output can be made. Such is the positivist “philosophy” of efficiency.’ 140 It languishes for the reasons discussed below and given in S.F. Gilbert, “The Genome in its Ecological Context: Philosophical Perspectives on Interspecies Epigenesis” (2002) 981 Annals of New York Academy of Science 202; and J. Munoz-Rubio, “Sociobiology and Human Nature” (2002) 27(2) Interdisciplinary Science Reviews 131.

251 the early 1970s.141 Autopoiesis is a good example of the transfer of ideas from society to biology and back again.142 It refers to any living system that permanently reproduces itself where: The main characteristics of an autopoietic system are self-maintenance, self- production and production of its own border.143 This biological concept was taken up in other fields on the back of the sociology of Nicholas Luhmann.144 It is used in various fields, especially in business disciplines, sociology, metaphysics, and law to depict “self-organising”, “self-determining”, “autonomous”, “self-referential”, and “self-reproducing” systems.145 Although one of its leading luminaries from legal theory has said it ‘cannot yet claim with authority to be a fruitful paradigm’ it has a significant body of literature behind it and it lingers as a biological concept.146 The conceptual attraction of autopoiesis is as much a product of postmodernism as it is a manifestation of technological developments in information technology and genetics (especially cloning

141 H. Maturana, F. Varela & R. Uribe, “Autopoiesis: The Organization of Living Systems, Its Characterisation and a Model” (1974) 5 Bio Systems 187. 142 J. Dupuy, “On the Supposed Closure of Normative Systems” in G. Teubner (editor), Autopoietic Law: A New Approach to Law and Society, Walter de Gruyter, New York, 1988, 49 – 55. 143 C. Fuchs, “Modern Society – A Complex, Evolutionary, Self-Organizing, Antagonistic System” Vienna University of Technology - Institute for Design Engineering and Technical Logistics Date Posted: April 9, 2003, Working Paper Series, 3. 144 Virtually all of Luhmann’s work was in German until relatively recently and Ziegert provides a brief biography of Luhmann and his work in K. Ziegert, “The thick description of law: An introduction to Niklas Luhmann’s theory of operatively closed systems”, Vienna Working Papers in Legal theory, Political Philosophy, and Applied Ethics No 25, Wien, 2001 145 The cross-disciplinary literature is vast. For example: P. Amselek & N. MacCormick (eds.), Controversies about Law’s Ontology, Edinburgh University Press, Edinburgh, 1991; A. Combs, The Radiance of Being: Complexity, Chaos and the Evolution of Consciousness, Floris Books, Edinburgh, 1995; M. Brans & S. Rossbach, “The Autopoiesis of Administrative Systems: Niklas Luhmann on Public Administration and Public Policy” (1997) 75 Public Administration 417; and R. Stichweh, “Systems Theory as an Alternative to Action Theory? The Rise of ‘Communication’ as a Theoretical Option” (2000) 43 Acta Sociologica 1. 146 G. Teubner, “Introduction to Autopoietic Law” in G. Teubner (ed), Autopoietic Law: A New Approach to Law and Society, Walter de Gruyter, New York, 1988, 2.

252 technology).147 It also draws on chaos theory and Parson’s systems theory.148 As a postmodern concept, autopoiesis steps away from structural over-determination of agency and structure. 149 As a biological concept it moves away from teleological theories of evolution (viz: rejects ideal adaptation and progress).150 It also rejects Marxist sociology on the grounds that it was partisan and reductionist. For instance, Luhmann argued that Marxist sociology was partisan in the sense that it approached the study of society from a particular point of view (viz, legislation was seen as an instrument of class domination), and reductionist in the sense that it saw all of societies systems as contingent upon the mode of production.151 Instead, Luhmann developed Parsonian systems theory by turning to the biology of Maturana and Varela to produce his own evolutionary theory for social systems:

147 A. Combs, The Radiance of Being: Complexity, Chaos and the Evolution of Consciousness, Floris Books, Edinburgh, 1995, 26 - 27. 148 C. Fuchs, “Modern Society – A Complex, Evolutionary, Self-Organizing, Antagonistic System” Vienna University of Technology - Institute for Design Engineering and Technical Logistics Date Posted: April 9, 2003, Working Paper Series, 2. So, for example, ‘In physics and chemistry, self- organisation has been described as the spontaneous emergence of order out of chaos in thermo- dynamical systems.’ 149 N. Luhmann, A Sociological Theory of Law, translated by E. King & M. Albrow, Routledge & Kegan Paul, Melbourne, 1985, 21 (original italics): ‘… the decisive point is that the organism was always perceived to be a living whole, which consisted of living parts, and therefore had its unity in the life of the whole and its parts. However, that meant society too was seen as a living whole which consisted of living parts, namely concrete human beings. It is this basis on which the plausibility and humanity of the old European social and legal philosophy rested, namely by trying to conceive of society and its law in relation to the concrete human being.’ 150 N. Luhmann, A Sociological Theory of Law, translated by E. King & M. Albrow, Routledge & Kegan Paul, Melbourne, 1985, at 107 – 108: ‘The general direction of evolution toward higher complexity does not permit conclusions about the concrete course and the outcomes of [at 108] the evolutionary process.’; and G. Teubner, “Introduction to Autopoietic Law” in G. Teubner (ed), Autopoietic Law: A New Approach to Law and Society, Walter de Gruyter, New York, 1988, 7 – 8: ‘… if one takes into account the fundamental distinction between autopoietic [at 8] organization, which is kept constant, and concrete structures of the system, which can change within the boundaries of the autopoietic organization then it becomes clear that autopoiesis does not exclude evolution but implies a redefinition of evolution.’ 151 N. Luhmann, A Sociological Theory of Law, translated by E. King & M. Albrow, Routledge & Kegan Paul, Melbourne, 1985, 11- 12, 20.

253 … it seems relevant to understand society as a social system which can maintain constancy in relations of meaning between actions in an over-complex and contingent environment. In order to achieve this, [at 104] certain selections have to be achieved within the system and organised in such a way that they embrace high complexity and are capable of reducing it to decidable bases of action. The more complex the system itself, the more complex the environment can be, in which it can meaningfully orient itself. The complexity of a system is mainly regulated by its structure, namely by the preselection of the range of possible environmental conditions which the system can accommodate. Structural questions, amongst these legal questions, are therefore the key to system-environment relations and, accordingly, to the attainable degree of complexity and selectivity. These assumptions which apply to all types of social system, e.g. families, businesses, monasteries/convents, associations, even parties, conferences, lectures, etc., have a particular significance for society. Society is that social system whose structure regulates the ultimate and basic reductions to which other social systems can be attached.152 According to Teubner the key concepts in this biological systems theory of society are autopoiesis, self-reference, self-description, reflection, self-organization, self- regulation, self-maintenance and the self-production of all components of the system.153 These terms are not intended to be tautological, and this also applies to the central concerns of Luhmann’s theory which are function, differentiation, segmentation, process, surplus norm production, and reproduction.154 Importantly, in both biology and sociology the autopoietic term “self-reference” does mean “closed system”:

152 N. Luhmann, A Sociological Theory of Law, translated by E. King & M. Albrow, Routledge & Kegan Paul, Melbourne, 1985, 103 – 104, adding in a poststructuralist fashion (at 105) thereby abandoning the agency structure problem: ‘The human being and society are therefore the environment for each other.’ 153 G. Teubner, Law as an Autopoietic System, Translated by A. Bankowska & R. Adler, Edited by Z. Bankowska, Blackwell, Oxford, 1993, 16 & 24. 154 N. Luhmann, A Sociological Theory of Law, translated by E. King & M. Albrow, Routledge & Kegan Paul, Melbourne, 1985, 113 – 114.

254 Self-referentiality and “organizational closure” thus mean one and the same thing: the closed form of organisation of the recursive, self-producing processes of a system.155 However, this also marks a point of considerable ambiguity in the autopoietic literature. Luhmann’s view of autopoietic systems suggests that they are closed systems.156 Others such as Combs also depict autopoiesis as a synonym for system closure.157 That is to say there is no direct two-way relationship between person/system and their environment.158 Instead they merely interpret each other: Autopoietic systems do not simply maintain stasis in the face of changing external systems; they dynamically recreate themselves. The notion of autopoiesis is steeped in process thought because in it we see what is essential to an organism, ecology, or society, is not its physical composition or

155 G. Teubner, Law as an Autopoietic System, Translated by A. Bankowska & R. Adler, Edited by Z. Bankowska, Blackwell, Oxford, 1993, 15. 156 N. Luhmann, A Sociological Theory of Law, translated by E. King & M. Albrow, Routledge & Kegan Paul, Melbourne, 1985, 281-282 (citing in the original endnote 3: ‘Humberto R. Maturana, Erkennen: Die Organisation und Verkörperung von Wirklichkeit: Ausgewählte Arbeiten zur biologischen Epistemologie, Brunswick, 1982, and J. Varela, “A Calculus for Self-Reference” (1975) 2 International Journal of General Systems 5.): ‘… we are speaking of self-referential systems which themselves produce every type of unity that they require and employ: even the unity of the system itself as well as the unity of those elements (e.g. actions) of which the system consists. We term such systems “autopoietic” systems, in line with a proposal by Humberto Maturana. Their characteristics are: that they themselves produce and delimit the operative unity of their elements [at 282] (i.e. for our area: legally relevant events and decisions) through the operation of their elements and that is precisely this autopoietic process that lends its own unity to the system.’ 157 A. Combs, The Radiance of Being: Complexity, Chaos and the Evolution of Consciousness, Floris Books, Edinburgh, 1995, 27. 158 M. Brans & S. Rossbach, “The Autopoiesis of Administrative Systems: Niklas Luhmann on Public Administration and Public Policy” (1997) 75 Public Administration 417, 423 – 424, systems operate “reflexively” to their environments. At 425: ‘Autopoietic systems are systems which produce and reproduce the elements they consist of with the help of the elements they consist of. And everything those systems use as a unity – their elements, processes, structures, the systems themselves – is produced precisely by all those unities within the system. There is, then, no input of unity into the system and no output of unity of the system.’

255 momentary structure, which constantly changes, but the continuing processes by which it re-creates itself.159 But this “closure” is also contradicted on other occasions160 leaving commentators to conclude that although autopoietic systems are self-determining they are not autarkic.161 Confusion stems around whether or not self-sufficiency is implied from the array of terms/concepts used in autopoietic theory. The proponents of autopoiesis contribute directly to this confusion because, for instance, although Teubner warns against the loose application of these concepts, he also warns against an excessively restrictive technical application of the concepts.162 As a theory of society there should be some cause for concern. Firstly, the biological theory of autopoiesis makes a poor ontology for social theory and is arguably a poor

159 A. Combs, The Radiance of Being: Complexity, Chaos and the Evolution of Consciousness, Floris Books, Edinburgh, 1995, 27. 160 For instance contrast Brans and Rossbach’s assertions at 423 – 424 with their remarks at 426: ‘Autopoietic systems are not self-sufficient substances, structures or essences to which all activities in the system can be reduced. On the contrary, an autopoietic system is a “structured openness for other possibilities”’, in M. Brans & S. Rossbach, “The Autopoiesis of Administrative Systems: Niklas Luhmann on Public Administration and Public Policy” (1997) 75 Public Administration 417, quoting Luhmann 1970: 44-5). 161 W.T. Murphy, “Systems of Systems: Some issues in the relationship between law and autopoiesis” (1994) 5(2) Law and Critique 241, 246: ‘It is not, however, an autarkic model’; A. Schutz, “Desiring Society: Autopoiesis Beyond the Paradigm of Mastership” (1994) Vol. V No2 Law and Critique 149, 162; and K. Ziegert, “The thick description of law: An introduction to Niklas Luhmann’s theory of operatively closed systems”, Vienna Working Papers in Legal theory, Political Philosophy, and Applied Ethics No 25, Wien, 2001, 18 – 19: ‘Operative closure, then, does not mean a [at 19] hermetic seclusion of the system from the environment. It is merely the observation that the only way in which systems can organise their operations is by controlling their own operations through recurring to previous operations.’ 162 G. Teubner, Law as an Autopoietic System, Translated by A. Bankowska & R. Adler, Edited by Z. Bankowska, Blackwell, Oxford, 1993, 16 – 17; and R. Stichweh, “Systems Theory as an Alternative to Action Theory? The Rise of ‘Communication’ as a Theoretical Option” (2000) 43 Acta Sociologica 1, 11: ‘One might add that there is a strategic use of such ambiguities in Luhmann’s work …’.

256 metaphor for it too.163 As a biological concept it is flawed because organisms are not closed systems: In their relations with their environments, organisms are capable of building and modifying those environments, of determining the environmental elements relevant to them, and of shaping external conditions to the extent that these conditions become part of their environments.164 Research in the field of epigenetics removes the possibility in biology that organisms can be wholly self-referential and self-reproducing.165 As Gilbert has pointed out: These findings have ontological, epistemological, and methodological implications for biology and philosophy. … Our “self” becomes a permeable self. We are each a complex community, indeed, a collection of ecosystems. Lynn Margulis has championed symbiosis in evolution, yet she sees symbioses between “autopoietic” (self-developing) entities: We now see a possible correspondence of the “sense-of-self” to “autopoietic entity” or “live individual.”…What is remarkable is the tendency of autopoietic

163 J. Mingers, “Can social systems be autopoietic? Assessing Luhmann’s social theory” (2002) Sociological Review 278, 292; and D. Osterberg, “Luhmann’s General Sociology” (2000) 43 Acta Sociologica 15. 164 J. Munoz-Rubio, “Sociobiology and Human Nature” (2002) 27(2) Interdisciplinary Science Reviews 131, 137. At 131: ‘… insofar as the entities constituting the world can be considered as relations, a change in the level of a single constituent necessarily modifies its relations with other constituents and so produces dialectically qualitative leaps. These leaps are understood as changes of such consequence that the resulting product can no longer be conceived according to the laws and rules that produced it, but must be thought of in terms of new and different conventions.’ 165 S.F. Gilbert, “The Genome in its Ecological Context: Philosophical Perspectives on Interspecies Epigenesis” (2002) 981 Annals of New York Academy of Science 202, 202: ‘Epigenesis concerns the interactions through which the inherited potentials of the genome become actualized into an adult organism. In addition to epigenetic interactions occurring within the developing embryo, there are also critical epigenetic interactions occurring between the embryo and its environment. These interactions can determine the sex of the embryo, increase its fitness, or even be involved in the formation of particular organs. … Studies of predator- induced polyphenism have shown that soluble factors from predators can change the development of prey in specific ways. Prey has evolved mechanisms to sense compounds released from their predators and to use these chemical cues to change their development in ways that prevent predation. New techniques in molecular biology, especially polymerase chain reaction and microarray analysis, have shown that symbioses between embryos and bacteria are widespread and that animals may use bacterial cues to complete their development.’

257 58 entities to interact with other autopoietic entities. But if developmental symbioses represent the rule and not merely the exceptional case, then the entire notion of “autopoiesis” must be abandoned. We are not adults entering into symbiotic relationships with other adults or microbes. Rather, the processes that made us adults are already the interactions between us and our microbes.166 Secondly, autopoiesis severs the system from its history so that it resembles a cybernetic system which only has recourse to history in the sense that, ‘it can guide experience processing in the form of proven experience’ as an ‘essential aid for the simplification of the future’.167 This is of course, the ontology of the machine, notwithstanding attempts by autopoietic scholars to transcend it.168 The problem with the machine ontology is that unlike machines and computers, which may or may not have “a history”, an organism (and a social system) has histories: Each one of us began life as a single fertilized egg cell which underwent processes of growth and transformation … Those processes will continue and we will be continuously transformed, changing the shape of our bodies and minds, until we end …In addition to their individual life stories, organisms have a collective history…169 This is true too of social systems which are by virtue of their composition historical and dialectical. Thirdly, as a sociological theory autopoiesis sidelines the important issue of power in favour of its concern with function, complexity (differentiation and segmentation),

166 S.F. Gilbert, “The Genome in its Ecological Context: Philosophical Perspectives on Interspecies Epigenesis” (2002) 981 Annals of New York Academy of Science 202, 213. original endnote 58 read: D. Sagan & L. Margulis, “Epilogue: the uncut self” in A.I. Tauber (ed.), Organism and the Origins of Self, Kluwer Academic Publishers, Dordrecht, 1991, 361–374. 167 N. Luhmann, A Sociological Theory of Law, translated by E. King & M. Albrow, Routledge & Kegan Paul, Melbourne, 1985, 245 – 246. 168 The “machine metaphor” owes its origins to William Harvey and Decartes in the 17th century as Lewontin has explained in R.C. Lewontin, “Genes, Environment, and Organisms” in Hidden Histories of Science, R.B. Silvers (ed), Granta Publications, London, 1998, 117. 169 R.C. Lewontin, “Genes, Environment, and Organisms” in Hidden Histories of Science, R.B. Silvers (ed), Granta Publications, London, 1998, 118.

258 process, surplus norm production, reflexivity and reproduction.170 If hierarchy and oppression take place – they take place as part of the reflexive processes of diversification and segmentation of the system crucial to its reproduction.171 Consequently: Autopoietic theory is basically an attempt to reconceptualise how late modern societies, in which it is assumed that these processes are far advanced, work in operational terms. … It does not take up cudgels on behalf of the oppressed; it is not a critical-emancipatory theory. It is critical only in suggesting the need for a variety of reconceptualisations which to a greater or lesser degree might have practical consequences if adopted.172 There is nothing intrinsically good or bad about the process – just an assessment of the operation of the system itself in terms of efficiency. It is, therefore, as others have observed Weberian (in the sense that it resembles ‘rational domination’) as much as it is postmodern.173 In other words, it affords theory no more advantages than the two traditions that preceded it.174 To the extent that it is postmodern, as Schutz has argued, autopoiesis is a theory where domination disappears into diffuseness and

170 J. Lyotard, The Postmodern Condition: A Report on Knowledge, G. Bennington & B. Massumi (Trans), Manchester University Press, Manchester, 1979, 46 & 47. At 46: ‘This led Luhmann to hypothesise that in postindustrial societies the normativity of laws is replaced by the performativity of procedures.’ At 47: ‘It [power] legitimates science and the law on the basis of their efficiency, and legitimates this efficiency on the basis of science and law. It is self-legitimating, in the same way a system organized around performance maximisation seems to be. … Thus the growth of power, and its self-legitimation, are now taking the route of data storage and accessibility, and the operativity of information. The relationship between science and technology is reversed.’ 171 M. Brans & S. Rossbach, “The Autopoiesis of Administrative Systems: Niklas Luhmann on Public Administration and Public Policy” (1997) 75 Public Administration 417, 423 – 424, and N. Luhmann, A Sociological Theory of Law, translated by E. King & M. Albrow, Routledge & Kegan Paul, Melbourne, 1985, 133, 158, 165 – 166. 172 W.T. Murphy, “Systems of Systems: Some issues in the relationship between law and autopoiesis” (1994) 5(2) Law and Critique 241, 248. 173 M. Brans & S. Rossbach, “The Autopoiesis of Administrative Systems: Niklas Luhmann on Public Administration and Public Policy” (1997) 75 Public Administration 417, 419; and W.T. Murphy, “Systems of Systems: Some issues in the relationship between law and autopoiesis” (1994) 5(2) Law and Critique 241, 249. 174 D. Osterberg, “Luhmann’s General Sociology” (2000) 43 Acta Sociologica 15, 22.

259 performance, and there is no responsibility for hierarchy and oppression.175 Further, it is a theory where power does not fade rather it is impossible to distinguish it from the generation of increased options.176 Clearly, autopoiesis is a sociobiological concept because it is a biological explanation for existing and future socio-economic stratification.177 Although it may not seek to sanction hierarchy and oppression it does so by default.178 It is in other words an inadvertent justification for the reproduction of hierarchy – a biological ideology or what I call sociobiology. For this reason Lyotard condemns Luhmann’s notion of autopoiesis because it no longer concerns the welfare of the parts that make up the whole but the performance of the reproduction of the whole;179 a fetish with functional efficiency.180 A fetish that is significant because it resonates with the second theory enjoying some respectability in the postmodern literature and allegedly accounting for the stability of stratified society – dull compulsion.181

175 A. Schutz, “Desiring Society: Autopoiesis Beyond the Paradigm of Mastership” (1994) Vol. V No2 Law and Critique 149, 154, 157 & 159. 176 A. Schutz, “Desiring Society: Autopoiesis Beyond the Paradigm of Mastership” (1994) Vol. V No2 Law and Critique 149, 159. 177 G. Teubner (editor), Autopoietic Law: A New Approach to Law and Society, Walter de Gruyter, New York, 1988, 6: ‘One of the crucial steps in legal autopoiesis is the transfer of biological models into social and legal spheres.’ 178 There can be no doubt that Luhmann and Teubner are critical of those who seek to oppose hierarchy and oppression. Osterberg provides some details of Luhmann’s ‘overt’ opposition in D. Osterberg, “Luhmann’s General Sociology” (2000) 43 Acta Sociologica 15, 15 – 18; and for example see G. Teubner, Law as an Autopoietic System, Translated by A. Bankowska & R. Adler, Edited by Z. Bankowska, Blackwell, Oxford, 1993, 6 – 8. 179 J. Lyotard, The Postmodern Condition: A Report on Knowledge, G. Bennington & B. Massumi (Trans), Manchester University Press, Manchester, 1979, 11 - 12. At xxiv: ‘In matters of social justice and of scientific truth alike, the legitimation of that power is based on its optimizing the system’s performance – efficiency. The application of this criterion to all of our games necessarily entails a certain level of terror, whether soft or hard: be operational (that is, commensurable) or disappear.’ 180 M. Foucault, “Governmentality” in G. Burchell, C. Gordon & P. Miller (eds.), The Foucault Effect: Studies in Governmentality, Harvester Wheatsheaf, Sydney, 1991, 87 – 104, 92; and M. Foucault, The History of Sexuality, Volume 1: An Introduction, R. Hurley (Trans), Penguin Books, London, 1979, 139. 181 M. Foucault, The History of Sexuality, Volume 1: An Introduction, R. Hurley (Trans), Penguin Books, London, 1979, 139 (original italics): ‘In concrete terms, starting in the seventeenth century, this

260

Dull Compulsion

On the whole postmodernists and liberals share the view that any notion of a dominant ideology is redundant since its concern was industrial capitalism rather than contemporary “post-industrial” capitalism.182 There are multiple variations on this theme, and they tend to add weight to two of Ruse’s arguments that sociobiology is not ideology; namely (1) even if there was a circular shuttle of ideas between biology and political theory it didn’t follow that this was one of cause and effect; and (2) even if sociobiology is ideological there was no evidence that people are obliged to follow it or do in fact follow it.183 One such argument, similar in some respects to autopoiesis, tends to be that capitalism is now self-sustaining and so stable there is no inherent need for ideology at all: Indeed, on theoretical as well as empirical grounds, we find that capitalism has no necessary ideological requirements at all.184 And: … the system of late capitalism can be said to operate “all by itself”, without any need to resort to discursive justification. It no longer … has to pass through consciousness … Capitalist society no longer cares whether we believe it or

power over life evolved in two basic forms … One … centred on the body as a machine: its disciplining, the optimization of its capabilities, the extortion of its forces, the parallel increase of its usefulness and its docility, its integration into systems of efficient and economic controls, all this was ensured by the procedures of power that characterized the disciplines: an anatomo-politics of the human body. The second, formed somewhat later, focused on the species body, the body imbued with the mechanics of life and serving as the basis of the biological processes: propagation, births and mortality, the level of health, life expectancy and longevity, with all the conditions that can cause these to vary. Their supervision was effected through an entire series of interventions and regulatory controls: a biopolitics of population. The disciplines of the body and the regulations of the population constituted the two poles around which the organization of power over life was deployed.’ 182 P. Hirst, On Law and Ideology, Macmillan, London, 1979, 12, 13, 54 & 56; and H. Collins, Marxism and Law, Oxford, Oxford Uni Press, 1984, 23. 183 M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 80 – 85. 184 S. Hill, “Britain: The Dominant Ideology Thesis after a decade” in N. Abercrombie, S. Hill & B. Turner (eds), Dominant Ideologies, Routledge, London, 1992, 5.

261 not; it is not “consciousness” or “ideology” which welds it together, but its own complex systemic operations.185 In other words, society is stabilised by complex systems not a dominant ideology and this is what Abercrombie et al advance as the “dull compulsion” hypothesis. Although dull compulsion was first observed by Marx in terms of ‘commodity fetishism’,186 its present post-Marxist formulation extricates Marxist notions of ideology and Marxist teleology.187 The “dull compulsion” hypothesis holds that people are locked into a lifestyle of working for survival and consumption leaving limited capacity to transform their condition or indeed contemplate transformation.188 Abercrombie et al contend: Despite the significant changes in many features of capitalist society since Marx, we argued that the economic constraint of everyday circumstances still ultimately compels people to work, and at the same time the commitment of

185 T. Eagleton, Ideology: An Introduction, Verso, London, 1991, 37. 186 K. Marx, Capital, Vol 1, “The Process of Production of Capital”, Progress Publishers, Moscow, 1867, pp.1 – 505, 29 – 42, and at 464 – 465, (emphasis added): ‘The advance of capitalist production develops a working-class, which by education, tradition, habit, looks upon the conditions of that mode of production as self-evident laws of Nature. The organisation of the capitalist process of production, once fully developed, breaks down all, resistance. The constant generation of a relative surplus- population keeps the law of supply and demand of labour, and therefore keeps wages, in a rut that corresponds with the wants of capital. The dull compulsion of economic relations completes the [at 465 of 505] subjection of the labourer to the capitalist. Direct force, outside economic conditions, is of course still used, but only exceptionally. In the ordinary run of things, the labourer can be left to the “natural laws of production,” i.e., to his dependence on capital, a dependence springing from, and guaranteed in perpetuity by, the conditions of production themselves'. It is otherwise during the historic genesis of capitalist production. The bourgeoisie, at its rise, wants and uses the power of the state to “regulate” wages, i.e., to force them within the limits suitable for surplus-value making, to lengthen the working-day and to keep the labourer himself in the normal degree of dependence.’ 187 This may be taken as a direct contrast with Lukacs who developed “dull compulsion” in terms of reification and commodity fetishism, and who argued that proletarian consciousness would ultimately lead to the emancipation of the proletariat: G. Lukacs, History and Class Consciousness: Studies in Marxist Dialectics, Translated by R. Livingstone, Merlin Press, London, 1971, 83, 157, 171 - 172, 174, 208-209 & 253. 188 S. Hill, “Britain: The Dominant Ideology Thesis after a decade” in N. Abercrombie, S. Hill & B. Turner (eds), Dominant Ideologies, Routledge, London, 1992, 3.

262 subordinates to the system is likely to be characterized by some form of pragmatic acquiescence rather than normative or ideological involvement.189 That is to say Abercrombie et al use Marx’s idea of “dull compulsion” to argue that subaltern acquiescence occurs not because they are duped by dominant ideology but because they are born into a society compelling acquiescence. It is also significant that the capitalist system continues to deliver tangible benefits and this is always counterposed with the risks of change.190 Although a stratified capitalist society contains the capacity for socio-economic mobility, on the whole it compels cooperation with its economic conditions. Therefore dull compulsion functions in variety of ways. Firstly, because people need incomes to survive and live they must enter and remain in a “labour market”.191 Secondly, in advanced capitalist systems ‘subordinates have a larger material stake in the system than before’.192 Thirdly: … the complexity of the modern division of labour has increased both the interdependence among subordinates and their dependence on existing social arrangements, with the result that economic dislocation caused by insurrectionary discontent has more immediate and severe costs.193 Lastly, there are the social pressures on individuals to participate and conform to orthodox roles associated with work (e.g. work ethics) and life (e.g. traditions).194

189 S. Hill, “Britain: The Dominant Ideology Thesis after a decade” in N. Abercrombie, S. Hill & B. Turner (eds), Dominant Ideologies, Routledge, London, 1992, 3. 190 T. Eagleton, Ideology: An Introduction, Verso, London, 1991, 35 & 36. Put another way, at 36: ‘it might be coolly realistic in a period when the capitalist system is still capable of conceding some material advantages to those who keep it in business, [it] might be perilous and ill-advised [to transform it]. But if the system ceases to yield such benefits, then this realism might well lead to revolt, since there would be no large-scale internalization of the ruling values to stand in the way of such rebellion.’ 191 S. Hill, “Britain: The Dominant Ideology Thesis after a decade” in N. Abercrombie, S. Hill & B. Turner (eds), Dominant Ideologies, Routledge, London, 1992, 3. 192 S. Hill, “Britain: The Dominant Ideology Thesis after a decade” in N. Abercrombie, S. Hill & B. Turner (eds), Dominant Ideologies, Routledge, London, 1992, 3. 193 S. Hill, “Britain: The Dominant Ideology Thesis after a decade” in N. Abercrombie, S. Hill & B. Turner (eds), Dominant Ideologies, Routledge, London, 1992, 3. 194 S. Hill, “Britain: The Dominant Ideology Thesis after a decade” in N. Abercrombie, S. Hill & B. Turner (eds), Dominant Ideologies, Routledge, London, 1992, 3.

263 Dull compulsion is attractive in a postmodern academic climate because it does not over-determine agency or the nature of capitalism. For those reasons it tends to attract wide acceptance as a plausible explanation as to why capitalist societies do not collapse given the contradictory nature of the labour capital relation.195 In terms of agency, dull compulsion fits comfortably with the poststructuralist objection to the Marxist notion of “false consciousness”.196 It doesn’t have to deal with a truth false dichotomy implicit in a theory of false consciousness or the associated problem of elitism.197 It also escapes the problem of assuming the subject to be a mere tabula rasa for duping by the dominant classes.198 In addition, many theorists argue that people have mixed and contradictory attitudes to capitalism.199 As Eagleton has argued … if the system survives, it is more on account of social divisions between the various groups it exploits than by virtue of some overall ideological coherence.200 This fits with the poststructuralist view that capitalism itself is not some uniform uncomplicated non-contradictory system.201 Furthermore, despite the relative pervasiveness and homogenous nature of contemporary mass media, most theorists

195 N. Abercrombie, S. Hill & B. Turner, “Preface” in N. Abercrombie, S. Hill & B. Turner (eds), Dominant Ideologies, Routledge, London, 1992, xv . 196 S. Malešević, “Rehabilitating Ideology after Poststructuralism” in S. Malešević & I. MacKenzie (eds.) Ideology After Poststructuralism, Pluto Press, London, 2002, 87 – 110, 99. 197 T. Eagleton, Ideology: An Introduction, Verso, London, 1991, 211. 198 B. Turner, “Conclusion: peroration on ideology” in N. Abercrombie, S. Hill & B. Turner (eds), Dominant Ideologies, Routledge, London, 1992, 248: ‘… the human agent either disappears or becomes merely the carrier or recipient of ideological messages. The human agent is converted into a tabula rasa on which the media inscribes messages. The stronger the theory of ideology, the weaker the agent.’ 199 T. Eagleton, Ideology: An Introduction, Verso, London, 1991, 39; S. Hill, “Britain: The Dominant Ideology Thesis after a decade” in N. Abercrombie, S. Hill & B. Turner (eds), Dominant Ideologies, Routledge, London, 1992, 8; and F. Jameson, “Foreword” in J. Lyotard, The Postmodern Condition: A Report on Knowledge, G. Bennington & B. Massumi (Trans), Manchester University Press, Manchester, 1979, xiv. 200 T. Eagleton, Ideology: An Introduction, Verso, London, 1991, 35. 201 J. K. Gibson-Graham, The End of Capitalism (as we knew it): A Feminist Critique of Political Economy, Blackwell, Oxford, 1996, 58.

264 would agree that ideology is unlikely to have a uniform impact on people and this is exacerbated by the fact that so-called subalterns have their own ideologies.202 Structuralist Marxist approaches to ideology have had to bear these criticisms. On the whole these criticisms have been warranted but for the extent to which they rule out ideology altogether and some key Marxist concepts or tools. This is because the dull compulsion hypothesis overplays material explanations at the expense of ideology, incorrectly treating them as mutually exclusive. As Eagelton warns, it would be implausible to dismiss the concept of ideology on the strength of the alternatives or these postmodern arguments: … they might have bent the stick too far in their turn. Their claim that late capitalism operates largely ‘without ideology’ is surely too strong; and their summary dismissal of the dissembling, mystificatory effects of a ruling ideology has an implausible ring to it.203 It will be argued next that ideology is still relevant despite the poignant criticisms made of it by postmodern scholarship and despite the plausibility of the dull compulsion hypothesis. The two emerging postmodern theories purporting to account for stratification in capitalist societies are inadequate. While dull compulsion has much more to offer than autopoiesis it is incomplete to the extent it excludes ideology. Nevertheless it is necessary to critically assess the postmodern and neo- liberal assault on ideology to demonstrate just how the concept of ideology can be retained for the purposes of arguing sociobiology is a dominant ideology.

202 T. Eagleton, Ideology: An Introduction, Verso, London, 1991, 35: ‘In feudalist and early capitalist societies, for example, the mechanism for transmitting such ideologies to the masses were notably weak; there were no communications media or institutions of popular education, and many of the people were illiterate. Such channels of transmission do of course flourish in late capitalism; but the conclusion that the subaltern classes have thus been massively incorporated into the world view of their rulers is one which Abercrombie et al see fit to challenge. For one thing, they argue, the dominant ideology in advanced capitalist societies is internally fissured and contradictory, offering no kind of seamless unity for the masses to internalize; and for another thing the culture of dominated groups and classes retains a good deal of autonomy.’; N. Abercrombie, S. Hill & B. Turner (eds.) Dominant Ideologies, Routledge, London, 1992, xvi & 6. 203 T. Eagleton, Ideology: An Introduction, Verso, London, 1991, 36.

265 Reviving Ideology

End of ideology

To some extent the misconception that dull compulsion can work in the absence of ideology is in part attributable to the respective neo-liberal and postmodern assertions that humanity has reached the “end of ideology” and there never has been ideology.204 The end of ideology assertion is put by Fukuyama: At the end of history, there are no serious ideological competitors left to liberal democracy.205 And: The collapse of Marxist ideology in the late 1980s reflected, in a sense, the achievement of a higher level of rationality on the part of those who lived in such societies, and their realization that rational universal recognition could be had only in a liberal social order.206 The misconception also stems from the postmodernist proclamation that ‘there is no ideology and never has been’.207 This view contends that ideology only exists as disaggregated discourses of power and never as a dominant ideology. However, it is one thing to observe the deficiencies of structuralist Marxism and quite another to dismiss it altogether as an academic anachronism.208

204 B. S. Morris, “The End of Ideology, The End of Utopia, and the End of History – On the occasion of the end of the USSR” (1994) 19(4-6) History of European Ideas 699. 205 F. Fukuyama, The End of History and the Last Man, Penguin, Ringwood (Vic), 1992, 211. 206 F. Fukuyama, The End of History and the Last Man, Penguin, Ringwood (Vic), 1992, 205. And at 45: ‘Of the different types of regimes that have emerged in the course of human history, from monarchies and aristocracies, to religious theocracies, to the fascist and communist dictatorships of this century, the only form of government that has survived intact to the end of the twentieth century has been liberal democracy. What is emerging victorious, in other words, is not so much liberal practice, as the liberal idea. That is to say, for a very large part of the world, there is now no ideology with pretensions to universality that is in a position to challenge liberal democracy, and no universal principle of legitimacy other than the sovereignty of the people.’ 207 G. Deleuze & F. Guattari, A thousand plateaus: capitalism and schizophrenia, B. Massumi (Trans), University of Minnesota Press, Minneapolis, 2004, 5. 208 This seems to be what Hirst did when he correctly argued that ideological analysis, ‘cannot be one “outside” of politics’. However he also said: ‘To reject the sociological interpretation of ideology (reading through the origin) and to deny any pre-given ideological unity to social relations is not to

266 In either case, the argument that ideology has ended or has never existed is inconsistent with histories of western thought narrated in at least two eminent works.209 To suggest an end of ideology is to believe in the dual fantasies of an end of history (history ends with mature capitalism) and of universal conceptions of capitalism (e.g. capitalism is the same in South Africa as it is in South Korea, and that in every country it is has a unitary substance without contradiction).210 This was a mistake of structuralist Marxism to the extent that it saw the ultimate end of history as the emancipation of the proletariat through communism.

Epistemological break

Furthermore, too much is made of “an epistemological break” between modernism and postmodernism and between Marxism and post-structuralism.211 The abandon any political and class analysis of “ideological” forms.’ Per P. Hirst, On Law and Ideology, Macmillan, London, 1979, 54. 209 R. Hofstadter, Social Darwinism in American Thought, Revised edition, George Braziller, New York, 1959; and G. Jones, Social Darwinism and English Thought: The Interaction between Biological and Social Theory, The Harvester Press, Sussex, 1980. 210 Capitalism is not the end of history and it is not as coherent as modernists would have us believe: J. K. Gibson-Graham, The End of Capitalism (as we knew it): A Feminist Critique of Political Economy, Blackwell, Oxford, 1996. This point is pursued in greater depth below, because it is also a mistake of Marxism to represent capitalism as “unified”. 211 Postmodernism is a view that what was once fashionable as French structuralism has ‘been corrected and augmented by a return to pragmatics’. Per F. Jameson, “Foreword” in J. Lyotard, The Postmodern Condition: A Report on Knowledge, G. Bennington & B. Massumi (Trans), Manchester University Press, Manchester, 1979, xi. At xvi: ‘Lyotard is in reality quite unwilling to posit a postmodernist stage radically different from the period of high modernism and involving a fundamental historical and cultural break with the last. Rather seeing postmodernism as a discontent with an disintegration of this or that high modernist style – a moment in the perpetual “revolution” and innovation of high modernism, to be succeeded by a fresh burst of formal invention – in a striking formula he has characterized postmodernism, not as that which follows modernism and its particular legitimation crisis, but rather as a cyclical moment that returns before the emergence of ever new modernisms in the stricter sense. There is then here reproduced something of the celebration of modernism as its first ideologues projected it …’. See also I. Hunter, “The Time of Theory” (2007) 10(1) Postcolonial Studies 5. Hunter presents the case that postmodernism is itself part of a long continuing tradition operating within a dialectic with what is today understood as modernism but also has a long genealogy.

267 epistemological break tends to be seamless212 rather than abrupt and is exemplified in the “cross-over” work of Althusser and his notion of the de-centred subject.213 As Gibson-Graham point out Althusser’s notion of the ‘over-determined’ held among other things: … the openness or incompleteness of every identity; the ultimate unfixity of every meaning; and the correlate possibility of conceiving an acentric – Althusser uses the term “decentred” – social totality that is not structured by the primacy of any social element or location.’ Adding: In the glossary that accompanies For Marx and Reading Capital the term “decentred structure” (structure decentree) is defined as follows: ‘The Hegelian totality presupposes an original, primary essence that lies behind the complex appearance that it has produced by externalization in history; hence it is a structure with a centre. The Marxist totality, however, is never separable in this way from the elements that constitute it, as each is the condition of existence of all the others; hence it has no centre … it is a decentred structure’.214 Clearly Althusser fits just as comfortably within Marxism as he does with the postmodern objection to over-determination and essentialism.215 To be sure, postmodernism has a genealogy reaching back deep within modernity and prior to it.216 For these reasons too much can be made of an epistemological break between

212 N. Hartsock, “Comment on Hekman’s ‘Truth and Method: Feminist Standpoint Theory Revisited’: Truth or Justice?” (1997) 22(2) Signs 367, 369 and further forward. 213 L. Althusser, Lenin and Philosophy and Other Essays, translated by B. Brewster, Monthly Review Press, London, 1971, 182. 214 J. K. Gibson-Graham, The End of Capitalism (as we knew it): A Feminist Critique of Political Economy, Blackwell, Oxford, 1996, 27, citing Althusser 1969: 253 – 254. 215 S. Hekman, “Truth and Method: Feminist Standpoint Theory Revisited” (1997) 22(2) Signs 341. Hekman acknowledges the close connections between Marx and Foucault throughout her essay, and at 345 comments, Rosalind Coward and John Ellis (1977) argue that the groundwork for the discursive concept of the subject that has become the new paradigm of subjectivity is already present in Marx’s historically constituted subject.’ 216 I. Hunter, “The Time of Theory” (2007) 10(1) Postcolonial Studies 5, 12. Hunter writes that two central theoretical problematisations of positive knowledge stemmed from ‘neo-Kantian transcendental critique, and Husserl’s transcendental reduction and phenomenology’. Taken together: ‘This allows otherwise opposed philosophical positions to overlap and be deployed in tandem, giving rise to the

268 Marxism and postmodernism with the risk of dismissing plausible concepts such as ideology.217 Instead, a sharper distinction218 ought to be made between academic Marxism and Marxism as a political ideology219 or as a distinction between Marxism as a tool of critical analysis and Marxism as a prescription.220 As Morris has said, ‘[t]he fact that the Bolsheviks, inspired by his vision, created a society that Marx would not recognise, proves neither that Marx’s analysis of nineteenth–century capitalism was implausible or that a socialist outcome of some sort was impossible’.221 The important point is that postmodernism has never delivered a “knock-out” blow to the Marxist notion of ideology, nor several of its concepts

somewhat contested and uncertain relations between the structuralist and post-structuralist forms of theory. The structuralist phase of 1960s theory may be regarded as a resurgence and efflorescence of the neo-Kantian critique of positive knowledges that had been taking place in continental Europe since the early nineteenth century.’ 217 I. Hunter, “The Time of Theory” (2007) 10(1) Postcolonial Studies 5, 5: ‘The periodisation of reason that runs from Kant through Hegel and Husserl to Habermas, Jameson and Eagleton. On this model, … history is understood as the unfolding of reason in time, driven by a fundamental dialectical tension – between the intellectual and material dimensions of human nature or (in its sociological variant) between consciousness and its socio-material determination – and historical periods represent various stages in the reconciliation of this tension. Terry Eagleton has thus periodised the moment of theory by locating it within a history of culture, where culture is understood as the dialectical process in which thought attempts to comprehend its own material determination by economic relations. Eagleton thus treats the 1960s theory boom as the result of the incorporation of culture itself into the productive process of “late capitalism”. … Positioned in this way … theory retreats into idealism, formalism and relativism, and Eagleton advances to the prophetic cusp of an “after theory”.’ 218 N. Hartsock, “Comment on Hekman’s ‘Truth and Method: Feminist Standpoint Theory Revisited’: Truth or Justice?” (1997) 22(2) Signs 367, 368. 219 B. S. Morris, “The End of Ideology, The End of Utopia, and the End of History – On the occasion of the end of the USSR” (1994) 19(4-6) History of European Ideas 699, 701. 220 The latter entailed the fundamentalist, doctrinal, and opportunistic misappropriation of Marxism by Lenin and then Stalin (along with others in other countries) for the purposes of consolidating the Bolshevik revolution in Russia. G. H. Sabine, A History of Political Theory, 3rd ed, George G Harrap & Co Ltd, London, 1951, 665 – 670. As Sabine remarks at 668: ‘Lenin was first an organiser and second a theoretist’, which was a ‘source of his strength’ as much as it was a source of his dogmatism. 221 B. S. Morris, “The End of Ideology, The End of Utopia, and the End of History – On the occasion of the end of the USSR” (1994) 19(4-6) History of European Ideas 699, 701.

269 including that of dull compulsion however incomplete or problematic these concepts might be.222

Exploitation, hierarchy and oppression as universals

Attacks on Marxist scholarship have also been a reaction to tyranny perpetrated in the name of Marxism.223 But to drop Marxist analyses on this premise is the same as making the case for the wholesale abandonment of Western science, Christianity, Islam, etc., because of the violence perpetrated in their name. Although, it does not follow that an appropriate distinction cannot be made in this regard between evolutionary theory and sociobiology, or indeed between evolutionary theory and “creation science”. In both cases evolutionary theory is the more plausible.224 As Harding explains, ‘claims to truth are harmless as long as they promise no more than the evidence that can be produced in support of such a claim’.225 It is one thing to advocate Marxist doctrine in prescriptive terms and it is quite another to draw upon it for analytical/critical purposes. Contrary to this view some scholars persisting with critical approaches to ideology tend to expressly renounce Marxism.226 Quite apart from postmodern objections to

222 In particular, “reification”, “dialectical materialism”, and the exploitation of labour retain their relevance and this argument is developed below. 223 J. Lyotard, The Postmodern Condition: A Report on Knowledge, G. Bennington & B. Massumi (Trans), Manchester University Press, Manchester, 1979, 13. 224 A history of recycled forms of sociobiology (such as phrenology, eugenics, etc) show that it is prima facie an excuse for hierarchy and oppression practiced as a “science”. The other systems cannot be characterised in this same way. Arguably sociobiology and “Christian science” would fail the new English ethical code for scientists with its three core tenets of (1) respect, (2) rigour, (3) responsibility: see “An ethical code for scientists”, Science Show, ABC Radio National, broadcasted on 6 October 2007; See also M. Ruse, The Evolution – Creation Struggle, Harvard University Press, Cambridge, 2005. 225 S. Harding, “Comment on Hekman’s ‘Truth and Method: Feminist Standpoint Theory Revisited’: Whose Standpoint Needs the Regimes of Truth and Reality? (1997) 22(2) Signs 382, 388. 226 For instance, S. Malešević, “Rehabilitating Ideology after Poststructuralism” in S. Malešević & I. MacKenzie (eds.) Ideology After Poststructuralism, Pluto Press, London, 2002, 87 – 110, 100: ‘This can be achieved only if the concept of ideology is reformulated and removed from its Marxist obsession with the ‘economics of untruth’, its structuralist obsession with the latent and manifest

270 Marxism, it is also surrendered because hierarchy, oppression, and exploitation have persisted in feudalism, capitalism and in the former Soviet bloc countries, suggesting that the Marxist concern with capitalism makes it redundant.227 However, Engels pre- empted this criticism of Marxism.228 He made the point that the appropriation of labour was indeed common to all known forms of society but pointed out that it was only under conditions where labour was “commodified” according to a market for labour that appropriation would be maximised.229 Furthermore, it is under these conditions that reification230 emerges precisely because of the increasing levels of abstraction.231 Given the hegemonic status of capitalism Mohanty considers: … the politics and economics of capitalism as a far more urgent locus of struggle. I continue to hold to an analytic framework that is attentive to the micropolitics of everyday life as well as to the macropolitics of global patterns, its poststructuralist radical relativism, obsessed with the ‘celebration of differences’, and the obsession of all three with the structure and the macro level of analysis.’ 227 K. Mannheim, “Utopia in the Contemporary Situation” in C.I. Waxman, The End of Ideology Debate, Funk & Wagnalls, New York, 1968, pp. 10 – 26, 15. 228 F. Engels, Anti-Duhring, 1877, pp. 1 – 282, 145: ‘What is it then that distinguishes the Dühringian conception of capital from the Marxian? “Capital,” says Marx, “has not invented surplus-labour. Wherever a part of society possesses the monopoly of the means of production, the labourer, free or not free, must add to the working-time necessary for his own maintenance an extra working-time in order to produce the means of subsistence for the owners of the means of production.” Surplus-labour, labour beyond the time required for the labourer's own maintenance, and appropriation by others of the product of this surplus-labour, the exploitation of labour, is therefore common to all forms of society that have existed hitherto, in so far as these have moved in class antagonisms. But it is only when the product of this surplus-labour assumes the form of surplus-value, when the owner of the means of production finds the free labourer—free from social fetters and free from possessions of his own—as an object of exploitation, and exploits him for the purpose of the production of commodities—it is only then, according to Marx, that the means of production assume the specific character of capital. And this first took place on a large scale at the end of the fifteenth and the beginning of the sixteenth century.’ 229 Other than in conditions of slavery. See also G. Lukacs, History and Class Consciousness: Studies in Marxist Dialectics, Translated by R. Livingstone, Merlin Press, London, 1971, at 85 and further forward on this issue. 230 “Reification”, meaning that ‘interests of a certain kind become masked, rationalized, naturalized, universalized, legitimated’ as though they occur naturally when in fact they are made by human choices, per T. Eagleton, Ideology: An Introduction, Verso, London, 1991, 202. 231 C. Talpade Mohanty, “’Under Western Eyes’ Revisited: Feminist Solidarity through Anticapitalist Struggles” (2003) 28(2) Signs 499, 508.

271 economic and political processes. The link between political economy and culture remains crucial to any form of feminist theorizing-as it does for my work. It isn't the framework that has changed. It is just that global economic and political processes have become more brutal, exacerbating economic, racial, and gender inequalities, and thus they need to be demystified, reexamined, and theorized.232 Marxism remains relevant where an economic system provides for the appropriation of another’s labour, or where resources, property or rights held in common are converted to become “private”.233

Postmodernism as an apology for status quo

To the extent postmodernism precludes a Marxist analysis of ideology it becomes an inadvertent apology for the status quo. This is despite the claim that it creates space

232 C. Talpade Mohanty, “’Under Western Eyes’ Revisited: Feminist Solidarity through Anticapitalist Struggles” (2003) 28(2) Signs 499, 509. 233 J. K. Gibson-Graham, The End of Capitalism (as we knew it): A Feminist Critique of Political Economy, Blackwell, Oxford, 1996, 39 & 265. At 265: ‘For Marxism directs us to consider exploitation, and that is something that has not passed away.’ And C. Talpade Mohanty, “’Under Western Eyes’ Revisited: Feminist Solidarity through Anticapitalist Struggles” (2003) 28(2) Signs 499, 512 – 513: ‘the WTO sanctions biopiracy and engages in intellectual piracy by privileging the claims of corporate commercial interests, based on Western systems of knowledge in agriculture and medicine, to products and innovations derived from indigenous knowledge traditions. Thus, through the definition of Western scientific epistemologies as the only legitimate scientific system, the WTO is able to underwrite corporate patents to indigenous knowledge (as to the Neem tree in India) as their own intellectual property, protected through intellectual property rights agreements. … Thus indigenous knowledges, which are often communally generated and shared among tribal and peasant women for domestic, local, and public use, are subject to the ideologies of a corporate Western scientific paradigm where intellectual property rights can only be understood in possessive or privatized form. All innovations that happen to be collective, to have occurred over time in forests and farms, are appropriated or excluded. The idea of an intellectual commons where knowledge is collectively gathered and passed on for the benefit of all, not owned privately, is the very opposite [at 513] of the notion of private property and ownership that is the basis for the WTO property rights agreements. Thus this idea of an intellectual commons among tribal and peasant women actually excludes them from ownership and facilitates corporate biopiracy.’

272 for new possibilities.234 Mannheim was correct to point out that what became the poststructuralist “position” on ideology (arguably on the back of his work, and Althusser’s on ideology)235 ultimately enhances the status quo: This sceptical attitude, in many ways fruitful, corresponds primarily to the social position of a bourgeoisie already in power, whose future has gradually become its present.236 Unfortunately, the virtuous assaults on the many ‘shortcomings’ of structuralist Marxism by poststructuralists and post-Marxists have produced a ‘radical relativism’ and a picture of hopelessness.237 For Malešević, ‘radical epistemological relativism is not only ethically problematic’ it is also vacuous since its ‘methodology applies no appropriate criteria in distinguishing between different “regimes of truth”’.238 As Saunders has pointed out the failure to shed light on ‘higher law beyond the positive law’, leaves the punter in an Epicurean situation, ‘if we can’t know the gods, we therefore shouldn’t fight one another over higher-order truths’.239 Therefore,

234 L. Gandhi, “Postcolonial Theory and the Crisis of European Man” (2007) 10(1) Postcolonial Studies 93, 93; F. Jameson, “Foreword” in J. Lyotard, The Postmodern Condition: A Report on Knowledge, G. Bennington & B. Massumi (Trans), Manchester University Press, Manchester, 1979, ix & xvi. 235 P. Ricoeur, Lectures on Ideology and Utopia, Columbia University Press, New York, 1986, 159. Ricoueur attributes the paradox to Mannheim, hence it is widely known as “Mannheim’s paradox”. And in terms of Althusser: J. K. Gibson-Graham, The End of Capitalism (as we knew it): A Feminist Critique of Political Economy, Blackwell, Oxford, 1996, 27, citing Althusser 1969: 253 – 254. 236 K. Mannheim, “Utopia in the Contemporary Situation” in C.I. Waxman, The End of Ideology Debate, Funk & Wagnalls, New York, 1968, pp. 10 – 26, 17. 237 S. Malešević, “Rehabilitating Ideology after Poststructuralism” in S. Malešević & I. MacKenzie (eds.) Ideology After Poststructuralism, Pluto Press, London, 2002, 87 – 110, 95. At 97 – 98: ‘Even though poststructuralism rightly challenges the totalist ambitions, hard essentialism and scientism of structuralist [at 98] approaches, it fails to provide a better theoretical and methodological apparatus for the study of ideology.’ 238 S. Malešević, “Rehabilitating Ideology after Poststructuralism” in S. Malešević & I. MacKenzie (eds.) Ideology After Poststructuralism, Pluto Press, London, 2002, 87 – 110, 95 - 96. At 96: ‘There is another problem with the poststructuralist position that has both ethical and analytical implications. By stating that every society or group has its own regime of truth, we deny the possibility of individual choice within a group. The problem of cultural relativism is its insensitivity towards particularities within the particular.’ 239 D. Saunders, “The Critical Jurist and the Moment of Theory” (2007) 10(1) Postcolonial Studies 77, 85.

273 Malešević rightly protests that ‘one has to offer better criteria on how one is to decide that particular discourses are incommensurable’, because ‘when we say that power is everywhere, we automatically say that power is nowhere’.240

Recovery of deep structures

Of greatest concern is that post-Marxism and postmodernism collapse hierarchy and oppression into a vacuous power knowledge relation dismissing connections or links between manifestations of racism, sexism and economic exploitation.241 They reject the view that Marxism: … offers its practitioners a means of escaping from the surface of things, of recovering the deep structures lying at another level of the person, of identifying the self with a generative principle that outstrips all possible learned routines.242 The postmodern norm disallowing the ‘recovery’ of ‘deep structures’ in favour of disaggregated considerations of power through “discourse analysis” is too restrictive.243 Because postmodernism rejects meta-theory and the recovery of deep

240 S. Malešević, “Rehabilitating Ideology after Poststructuralism” in S. Malešević & I. MacKenzie (eds.) Ideology After Poststructuralism, Pluto Press, London, 2002, 87 – 110, 96. However, Malešević also expressly rejects Marxism at 100. 241 T. Eagleton, Ideology: An Introduction, Verso, London, 1991, 7- 8. At 8: ‘It is perfectly possible to agree with Nietzsche and Foucault that power is everywhere, while wanting for certain practical purposes to distinguish between more and less central instances of it.’ And S. Malešević, “Rehabilitating Ideology after Poststructuralism” in S. Malešević & I. MacKenzie (eds.) Ideology After Poststructuralism, Pluto Press, London, 2002, 87 – 110, 92 – 93. Against these views, Gordon defends Foucault’s work claiming that it may ‘evince a sense of (albeit value-neutral) intellectual attraction and esteem. This perspective may be libertarian, but it is not anarchist’ in C. Gordon, “Governmental Rationality: An Introduction” in G. Burchell, C. Gordon & P. Miller (eds.), The Foucault Effect: Studies in Governmentality, Sydney, Harvester Wheatsheaf, 1991, 1 – 52, 6. 242 I. Hunter, “The Time of Theory” (2007) 10(1) Postcolonial Studies 5, 13. 243 Still, discourse analysis is a form of ideological analysis (albeit without any transformative or revolutionary interest). S. Malešević, “Rehabilitating Ideology after Poststructuralism” in S. Malešević & I. MacKenzie (eds.) Ideology After Poststructuralism, Pluto Press, London, 2002, 87 – 110, 97: ‘In other words, although poststructuralists prefer discourse over ideology, when they are forced to specify the meaning of the discourse in a concrete analysis, the concept of the discourse differs little from that of ideology.’

274 structures, it follows that sociobiology could not be the ideology I assert it to be – a scientific excuse for hierarchy and oppression in the capitalist epoch on the basis of socioeconomic class, gender, sexuality and race.244 Sociobiology could not be a common ideology to all or most forms of hierarchy and oppression because they are not linked or connected in any meaningful way.245 This resonates with Ruse’s assertion that when sociobiology has been found to be racist, sexist, homophobic and neo-liberal it was due to poor language or the inappropriate use of metaphor, not because sociobiology is inherently ideological.246 It is possible, however, contrary to this postmodern orthodoxy, to contend that sociobiology is indeed used to justify or excuse hierarchy and oppression across the categories socioeconomic class, gender, sexuality, and race. The overlap between these categories is that hierarchy and oppression are “naturalised” as inevitable and immutable “facts of life”: Successful ideologies are often thought to render their beliefs natural and self- evident – to identify them with the “common sense” of a society so that nobody could imagine how they might ever be different. On this view, a ruling ideology does not so much combat alternative ideas as thrust them beyond the very bounds of the thinkable. 247 This is what sociobiology does. It provides biological/evolutionary reasons why people experience particular lives while others do not. In doing so it is a naturalising ideology common to all forms of hierarchy and oppression.248

244 P. Hirst, On Law and Ideology, Macmillan, London, 1979, 54: ‘We use the word “ideological” to refer to a non-unitary complex of social practices and systems of representations which have political significances and consequences.’ 245 B. Turner, “Conclusion: peroration on ideology” in N. Abercrombie, S. Hill & B. Turner (eds), Dominant Ideologies, Routledge, London, 1992, 249 & 250. According to Abercrombie et al, the ‘exchanges between Foucault, Lyotard and Habermas’ resulted in the postmodernist notion of the impossibility of a ‘single, dominant, or coherent ideology’. 246 M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 83, 85 & 99. 247 S. Gavigan, “Paradise Lost Paradox Revisited: The Implications of Familial Ideology for Feminist, Lesbian, and Gay Engagement to Law” (1993) 31 Osgoode Hall Law Journal 589, 589. 248 A. Giddens, Central Problems in Social Theory: Action, Structure, and Contradiction in Social Analysis, MacMillan, London, 1979, 195 & 196. Giddens makes no reference to sociobiology but does make the point that the most pervasive of all ideology is that which “naturalises”.

275 This core claim is presented below as both a theoretical proposition and a set of empirical arguments.249 It is a proposition following logically from the extensive literature showing how biological stories have been used to justify hierarchy and oppression in the separate areas of socioeconomic class, gender and sexuality, and race.250 It also follows logically from the authoritative literature detailing the symbiotic historical relation between politics, culture and biology.251 Metaphorically speaking, I am “joining the dots” – connecting the fragmented arguments made in the literature through one unifying theme which is that sociobiology is endemic in human thought.252 Sociobiology encapsulates all those systems of thought since at least Aristotle that have claimed to describe the place of humans in nature and the nature of humans and in doing so have provided excuses for hierarchy and oppression. 253 By way of an illustration, it is submitted that a connection can be established between seemingly disaggregated events of hierarchy and oppression. That is to say, for

249 The theoretical/conceptual arguments are made here – the empirical evidence is supplied in subsequent chapters. 250 As a starting point, see for example, E. Balibar & I. Wallerstein, Race, Nation, Class: Ambiguous Identities, Verso, London, 1991; T. Barta, “Discourses of genocide in Germany and Australia: a linked history” (2001) 25 Aboriginal History 37; A. Fausto-Sterling, Myths of Gender: Biological Theories About Women and Men, Basic Books, New York, 1985; S. Gavigan, “Paradise Lost Paradox Revisited: The Implications of Familial Ideology for Feminist, Lesbian, and Gay Engagement to Law” (1993) 31 Osgoode Hall Law Journal 589; D. Haraway, Simians, Cyborgs, and Women: The Reinvention of Nature, Routledge, New York, 1991; A. Sharpe, Transgender Jurisprudence: Dysphoric Bodies of Law, Cavendish Publishing, London, 2002; T. Tinker, “Panglossian Accounting Theories: The Science of Apologising in Style” (1988) 13 Accounting Organizations & Society 165. 251 M. Foucault, The History of Sexuality, Volume 1: An Introduction, R. Hurley (Trans), Penguin Books, London, 1979; R. Hofstadter, Social Darwinism in American Thought, Revised edition, George Braziller, New York, 1959; G. Jones, Social Darwinism and English Thought: The Interaction between Biological and Social Theory, The Harvester Press, Sussex, 1980; P. Kitcher, Vaulting Ambition: Sociobiology and the Quest for Human Nature, MIT Press, Cambridge (M), 1985; M. Sahlins, The Use and Abuse of Biology, University of Michigan Press, Michigan, 1976; and R. Young, Darwin’s Metaphor, Cambridge University Press, Sydney, 1985. 252 A. Giddens, Central Problems in Social Theory: Action, Structure, and Contradiction in Social Analysis, MacMillan, London, 1979, 188: ‘To analyse aspects of symbolic orders … is to examine how structures of signification are mobilised to legitimate the sectional interests of hegemonic groups.’ 253 J.B. Thompson, Studies in the Theory of Ideology, Polity Press, Cambridge, 1985, 2: ‘It is to study the ways in which the multifarious uses of language intersect with power, nourishing it, sustaining it, enacting it. … a means through which history is produced and society reproduced.’

276 example, there is a discernible connection between the English Poor Laws, the “Stolen Generation” of Australia, the Nazi Holocaust, persistent discrimination against Gays and Lesbians, and the broad public policy shift from Keynesian economics to the contemporary neo-liberal and conservative policies of various western governments. The common thread linking these phenomena is that they have all been rationalised by claims to natural law – laws of nature based on biology and evolutionary theories.254 This is what I refer to as sociobiology. Sociobiology is the use of biological analogies, metaphor and stories to justify hierarchy and oppression as natural, inevitable and immutable. The events listed above are linked by biological arguments representing certain human traits as natural and therefore desirable and destined to survive and others unnatural or inferior and therefore destined to lose the struggle for survival. This is the rhetoric of Malthus and Smith, then Spencer, Galton, Rockefeller, and Sumner later still Friedman, Hayek, Hirshleifer, Jensen and Meckling and Wilson.255 But according to postmodernism this connection is impossible – dominant ideologies are a fiction of Marxist and Parsonian structuralism. Instead postmodernism treats these manifestations of the power knowledge relation as sporadic through its preferred modes of “discourse analysis”, “post-colonial studies”, new identity politics, and the like.256 Instead, it is argued further below that sociobiology arises as an ideology whenever a person is required to justify hierarchy or discretionary action of an oppressive nature to themselves, to an oppressed, or to a third party. It will be the reasons supplied by a person to justify their choice of action

254 S. Markowitz, “Pelvic Politics: Sexual Dimorphism and Racial Difference” (2001) 26(2) Signs 389. 255 T. Barta, “Discourses of genocide in Germany and Australia: a linked history” (2001) 25 Aboriginal History 37; J. Hirshleifer, “Economics from a Biological Viewpoint” (1977) 20 Journal of Law and Economics 1; R. Hofstadter, Social Darwinism in American Thought, Revised edition, George Braziller, New York, 1959, 31 – 66; M. Jensen & W. Meckling, “The Nature of Man” (1994) 7(2) Journal of Applied Corporate Finance 4; G. Jones, Social Darwinism and English Thought: The Interaction between Biological and Social Theory, The Harvester Press, Sussex, 1980, 140 – 159; M. Konner, “Darwin’s Truth, Jefferson’s Vision: Sociobiology and the Politics of Human Nature” (1999) 45 American Prospect 30; J. P. Watkins, “Towards a Reconsideration of social Evolution: Symbiosis and Its Implications for Economics” (1998) Vol 32 No 1 Journal of Economic Issues 87; and R. Young, “Darwinism and the Division of Labour” (1990) 9 Science as Culture 110. 256 S. Malešević, “Rehabilitating Ideology after Poststructuralism” in S. Malešević & I. MacKenzie (eds.) Ideology After Poststructuralism, Pluto Press, London, 2002, 87 – 110, 95 and B. Parry, Postcolonial Studies: A Materialist Critique, Routledge, London, 2004, 4.

277 as “natural”, “inevitable”, or “necessary” according to a biological or evolutionary narrative.257 Ideology in this sense is not independent of dull compulsion and force, it works with them. This accords with Marxism which treats the stratification of capitalist society as a combination of force, the mode of production, and ideology.258

Why Marxism remains salient for the analysis of ideology

Because capitalism has changed so much since Marx wrote, particularly in terms of the significance today of services and information, many have argued that Marxism

257 To this extent it is probably unwise to rule out “false consciousness”. See also J. W. Scott, “Comment on Hawkesworth’s ‘Confounding Gender’” (1997) 22(3) Signs 697, at 701, in terms of women who identify with patriarchy. But for present purposes, where individuals, whether oppressors or not perceive that some discretionary action is indeed “natural”, “inevitable”, or “necessary” then this is arguably “false consciousness”. I therefore contend that “false consciousness” ought not be dismissed on the grounds that there is no-one in a position to make such a determination. An oppressed group can make such a call. Berns explains the contrary view taken by Fish. ‘Fish, characteristically, dismisses the whole idea of fundamental contradictions and false consciousness as a non-starter. He suggests that from the individual point of view: “… no one could occupy the position of false consciousness to which the liberal antinomies have supposedly brought us; none of us is possessed by convictions in which we do not fully believe or in relation to which we have a reservation rooted in some higher vision.”’ Per S. Berns, Concise Jurisprudence, Sydney, Federation Press, 1993, 84, quoting S. Fish, Doing What Comes Naturally, 1989, at 433. But if Fish is correct, then how do we characterise the pre-Darwinian view of natural history? How will future generations characterise beliefs underpinning the environmental degradation since the industrial revolution? Surely, the paradox of legitimation is tempered by time, even if in time an absolute truth remains elusive. Similarly, Harding points out that systematic knowledge necessarily entails ‘systematic ignorance’: ‘For example, assumptions that nature was a cornucopia, endlessly capable of serving human desires, permitted scientific questions that produced important collections of systematic knowledge but precluded asking the kinds of questions environmentalists ask today thereby generating and maintaining vast bodies of environmental ignorance through the centuries’, per S. Harding, “Comment on Walby’s ‘Against Epistemological Chasms: The Science Question in Feminism Revisited’: Can Democratic Values and Interests Ever Play a Rationally Justifiable Role in the Evaluation of Scientific Work?’ (2001) 26(2) Signs 511, 516. 258 H. Collins, Marxism and Law, Oxford, Oxford Uni Press, 1984, 41; V. Lenin, “Frederick Engels Biography”, in Lenin Collected Works, Moscow, Vol. 2, 1895, pages 1 – 9, at 2; and N. Poulantzas, Political Power and Social Classes, Translation Editor T. O’Hagan, Verso, London, 1982, 13.

278 and its doctrines connected with class and labour theory are no longer relevant.259 However, claims that Marxism is obsolete on the basis that industrial capitalism has morphed into “post-industrial” capitalism are misplaced.260 Arguments of this kind make at least three mistakes. The first mistake is to reduce Marxist ideological analysis to code for economic class analysis.261 Marxism is primarily about power relations.262 While there is good reason for regarding Marxist ideological analysis as too deterministic according to the economic mode of production, Marxism is much broader than this: Ideology is linked, not to a particular class, but to the fundamental feature of “social division” – the division, that is, between the dominant and the dominated, whether this division assumes the form of kinship relations, class relations or the relation between state and civil society. A society cannot exist, suggested Marx, without forging a representation of its unity. While this unity is attested to by the reciprocal interdependence of social agents, it is constantly threatened by the separation of their activities and the temporal mutability of social relations. The representation of unity in the context of restricted and mutable social relations thus implies the projection of an “imaginary

259 F. Jameson, “Foreword” in J. Lyotard, The Postmodern Condition: A Report on Knowledge, G. Bennington & B. Massumi (Trans), Manchester University Press, Manchester, 1979, xiii – xv. 260 U. Beck, Brave New World of Work, Polity Press, Cambridge, 2000, at pp 70 – 71, quoted in S. Berns, “Musings on the Legal Scene: Law, Populism and the Politics of Ressentiment” (2006) 25 A. Feminist L.J. 19 – 40, 25: ‘The appropriate distinction is therefore not between an industrial and post- industrial or Fordist and post-Fordist economy, but between the securities, certainties and clearly defined boundaries of the first modernity, and the insecurities, uncertainties and loss of boundaries in the second modernity… [T]he specificity of the risk regime is that it firmly rules out … any eventual recovery of the old certainties of standardized work, standard life histories, an old-style welfare state, national economic and labour policies… [With] the risk regime, people are expected to make their own life-plans, to be mobile and to provide for themselves in various ways.’ 261 H. Collins, Marxism and Law, Oxford, Oxford Uni Press, 1984, 26 ff; P. Hirst, On Law and Ideology, Macmillan, London, 1979, 54; and D. Thompson, Reading between the lines: A lesbian feminist critique of feminist accounts of sexuality, The Gorgon’s Head Press, Sydney, 1991, 88 – 89. There is some truth to this criticism that Marxism is too “economistic” and therefore unable to account for non-economic forms of stratification and oppression, and this issue is taken up in the next Chapter. 262 N. Hartsock, “Comment on Hekman’s ‘Truth and Method: Feminist Standpoint Theory Revisited’: Truth or Justice?” (1997) 22(2) Signs 367, 370. Further, ‘Marx’s categories move and flow and enact the fluidity that many postmodernist theorists insist on.’

279 community” by means of which “real” distinctions are portrayed as “natural”, the particular is disguised in the universal, the historical is effaced in the atemporality of essence.263 In other words for the purposes of ideological analysis Marxism is not confined to economic class instrumentalism, it extends to include the naturalisation and/or reification of all forms of hierarchy.264 Not only does it presume both inter-class and intra-class conflict, Marxism presumes that in these situations an ideology may serve multiple interests.265 Put another way, Marxism holds that ideology is an incident of both power and contradiction - it is in the interests of the powerful to portray values conducive to the maintenance of their privileged circumstances as “natural “ and “universal” and to deem values hostile to their privilege as “alien” and “unnatural”.266

263 J.B. Thompson, Studies in the Theory of Ideology, Polity Press, Cambridge, 1985, 25. 264 C. Talpade Mohanty, “’Under Western Eyes’ Revisited: Feminist Solidarity through Anticapitalist Struggles” (2003) 28(2) Signs 499, 510. In addition there is no reason why scholars should be restricted to the class forms originally observed by Marx during the 19th century. 265 K. Mannheim, “Utopia in the Contemporary Situation” in C.I. Waxman, The End of Ideology Debate, Funk & Wagnalls, New York, 1968, pp. 10 – 26, 12; T. Eagleton, Ideology: An Introduction, Verso, London, 1991, 5 – 6; & J. B. Thompson, Studies in the Theory of Ideology, Polity Press, Cambridge, 1985, 4. Marxists recognise the notion of “survivals” noting that oppressors will use the rhetoric (and institutions) of previous ruling classes, or indeed any language, to rationalise their privileged circumstances. As to the complexity and contradictory nature of class ideologies, Eagleton (at 101 – 102) claims that ideologies do not neatly coincide with any particular class, not even dominant ones: ‘A dominant class may ‘live its experience’ in part through the ideology of a previous dominant one: think of the aristocratic colouring of the English haute bourgeoisie. Or it may fashion its ideology partly in terms of the beliefs of a subordinated class – as in the case of fascism, where a ruling sector of finance capitalism takes over [at 102] for its own purposes the prejudices and anxieties of the lower middle class. There is no neat, one-to-one correspondence between classes and ideologies.’ 266 E. E. Balibar & I. Wallerstein, Race, Nation, Class: Ambiguous Identities, Verso, London, 1991, 54 – 55. As an ideology sociobiology operates like “nationalism” because in the case of nationalism its ‘theories and strategies’, ‘are always caught up in the “contradiction between universality and particularism” which can be developed in an infinite range of ways’. In the case of sociobiology, it too can be ‘developed in an infinite range of ways’ because of the dynamic between assumed antinomies such as competition and cooperation, self-interest and altruism, good and bad and so on. Balibar argues that racism is present as both a universal and a particular in the language of nationalism: ‘In other words, racism actually adds to the ambiguous nature of nationalism, which means that, through racism, nationalism engages in a “headlong flight forward”, a metamorphosis of its material contradictions into ideal contradictions.’

280 Secondly, it is a mistake to suggest that industrial production is no longer central to capitalism.267 The current phase of economic growth enjoyed by affluent countries since the western recession of the late 1980s has been a direct consequence of the industrialisation of China and India.268 In other words, western countries are still dependent upon industrial processes in which the expropriation of labour is a key component.269 Not only do western economies depend on the industrialising countries for their consumption, they depend on the exploitation of their labour – frequently child labour.270 Under the capitalist mode of production labour will always be exploited because the worker must pay for the costs of the reproduction of their labour and this same burden does not apply to the owners of capital who pass the costs of reproducing capital onto workers in the form of interest, prices, and rent.271 It is a proposition captured eloquently in the often-quoted rhetorical question posed by Cyert and March: To what extent is it arbitrary, in conventional accounting, that we call wage payments “costs” and dividend payments “profits” rather than the other way around? … It makes only slightly more sense to say that the goal of business

267 M. Rose, Industrial Behaviour: Theoretical developments since Taylor, Penguin Books, Ringwood (Vic), 1981, 275 – 276. 268 J. Spoehr, “Workchoices: A Darwinian Landscape”, Australian Institute for Social Research, 2 February 2007, pp. 1- 3; and according to Gittens: ‘What's happening now is that China and India are going through their own industrial revolutions. But it's taking decades, rather than centuries, because they're able to pick up off the shelf the latest Western technology, as well as Western capital to finance massive investment in factories and infrastructure. Since 1980, China's economy has been growing at a rate averaging about 9.5 per cent a year. That means it doubles in size every eight years. India's economy has been growing by about 5.5 per cent a year, meaning that it doubles every 13 years. What makes this spectacular growth far more significant, however, is that China and India are the two most populous countries in the world, each with populations exceeding a billion.’ Per R. Gittens, “A scary set of footprints”, Sydney Morning Herald, 8 Feb 2006. 269 N. Hartsock, “Comment on Hekman’s ‘Truth and Method: Feminist Standpoint Theory Revisited’: Truth or Justice?” (1997) 22(2) Signs 367, 369. 270 UNICEF estimate that 218 million children aged 5 – 17 are engaged in child labour with the majority of these in the Asia-Pacific region: “Child Labour”, UNICEF, accessed online at http://www.unicef.org/protection/index_childlabour.html on 30 October 2007; See also: “The small hands of slavery”, (2007) 3(1) Worlds Children 11. 271 L. Althusser, Lenin and Philosophy and Other Essays, translated by B. Brewster, Monthly Review Press, London, 1971, 129 – 130.

281 organisation is to maximise profit than to say that its goal is to maximise the salary of Sam Smith [an individual employee].272 The validity of the orthodox view is no more legitimate than the radical view according to the paradox of legitimation.273 Therefore the immutability of this arrangement is not beyond contention. In any case it was conceded early on by Locke, Malthus and Smith who each sought to naturalise initial inequality, and it has simply assumed by accountants and economists ever since.274 All that has changed since the origins of industrial capitalism is the scale, intensity and location of industry so that today affluent countries expropriate cheap labour from industrialising countries like never before.275

272 J. K. Gibson-Graham, The End of Capitalism (as we knew it): A Feminist Critique of Political Economy, Blackwell, Oxford, 1996, 187, quoting Cyert and March 1963: 26 in M. Niemark & T. Tinker, “The Social Construction of Management Control Systems” (1986) 11(4/5) Organizations and Society 369, at 375. 273 C. Talpade Mohanty, “’Under Western Eyes’ Revisited: Feminist Solidarity through Anticapitalist Struggles” (2003) 28(2) Signs 499, 513. Mohanty contrasts an indigenous standpoint with a multi- national pharmaceutical corporation standpoint on the issue of “biopiracy” or “bio-patenting” depending on the standpoint adopted. 274 F. Engels, Anti-Duhring, 1877, pp. 1 – 282, at 166; T. Malthus, “A Summary View of the Principle of Population” (1830) in Population Council (ed), On Population: Three Essays, Mentor Books, New York, 1960, 32 – 33. M.J. Rankin, “The Immorality of Unlimited Wealth: The Lockean Limits to the Acquisition and Accumulation of Private Property” (2000) 4 Flinders Journal of Law Reform 39; P.H. Rubin, “The State of Nature and the Evolution of Political Preferences”, unpublished paper accessed at the Social Science Research Network, 2; A. Smith, The Wealth of Nations: Books I-III, A. Skinner (ed), Ringwood, Victoria, Penguin, 1970, 117, & 119 – 120. 275 N. Hartsock, “Comment on Hekman’s ‘Truth and Method: Feminist Standpoint Theory Revisited’: Truth or Justice?” (1997) 22(2) Signs 367, 368 – 373; F. Jameson, “Foreword” in J. Lyotard, The Postmodern Condition: A Report on Knowledge, G. Bennington & B. Massumi (Trans), Manchester University Press, Manchester, 1979, xiv. At xiv – xv, quoting from Mandel’s Late Capitalism, New Left Books, London, 1975, pp. 190-191: ‘This new period [1940 to 1965] was characterized, among other things, by the fact that alongside machine-made industrial consumer goods (as from the early 19th century) and machine made machines (as from the mid-19th century), we now find machine produced raw materials and foodstuffs. Late capitalism, far from representing a “post-industrial society”, thus appears as the period in which all branches of the economy are fully industrialized for the first time; to which one could further add the increasing [at xv] mechanization of the sphere of circulation (with the exception of pure repair services) and the increasing mechanization of the superstructure.’

282 Thirdly, the argument that post-industrial capitalism has mysteriously “evolved” out of industrial capitalism (depicted also as a shift in emphasis from production to consumption) rendering Marxist analysis anachronistic is itself an example of false- consciousness,276 if not reification.277 This is because current global structures and conditions did not spontaneously appear as an autopoietic episode278 or evolve according to some blend of market forces and technological development.279 The orthodox view that globalisation is some inevitable evolutionary process is challenged when one considers that: This is a story about the rise of transnational institutions such as the WTO, the World Bank, and the International Monetary Fund, of banking and financial institutions and cross-national governing bodies like the MAI (Multinational Agreement on Investments).280

276 A. Giddens, Central Problems in Social Theory: Action, Structure, and Contradiction in Social Analysis, MacMillan, London, 1979, 168. That is to say, false consciousness, not in the sense of an opposition to “truth”, rather where people assume incorrectly that “globalisation” and western consumption are natural and inevitable consequences of the evolution of humanity, in the sense that ‘what is “false” is [an] actors’ comprehension of their own interests or motives’; and G. Lukacs, History and Class Consciousness: Studies in Marxist Dialectics, Translated by R. Livingstone, Merlin Press, London, 1971, 94: ‘Even thinkers who have no desire to deny or obscure its existence and who are more or less clear in their own minds about its humanly destructive consequences remain on the surface and make no attempt to advance beyond its objectively most derivative forms, the forms furthest from the real life-process of capitalism, i.e. the most external and vacuous forms, to the basic phenomenon of reification itself.’ 277 G. Lukacs, History and Class Consciousness: Studies in Marxist Dialectics, Translated by R. Livingstone, Merlin Press, London, 1971, 93. 278 G. Teubner (editor), Autopoietic Law: A New Approach to Law and Society, Walter de Gruyter, New York, 1988, 5. 279 Without overstating the role played by the legal system, lawyers play a role obscuring the social nature of private property by virtue of the fact that the legal system conceives of private property as entirely separate to public law. Cohen notes that this commences with a lawyer’s training since students are taught that property and sovereignty belong to entirely different branches of law namely private and public law respectively; per M. Cohen, “Property and Sovereignty”, (1927) 13 Cornell Law Quarterly 8, 8. 280 C. Talpade Mohanty, “’Under Western Eyes’ Revisited: Feminist Solidarity through Anticapitalist Struggles” (2003) 28(2) Signs 499, 514.

283 Material factors were significant but so too were the political struggles taking place between the contradictory interests of capital in terms of free trade and protectionism, and according to nationalistic antagonisms.281 These struggles directly impacted on the crucial role played by governments in shaping globalisation and the “rules” by which services are produced and consumed.282 Not only have governments been subject to “regulatory capture” by powerful corporate interests, governments have also provided monopolistic trading conditions, and frequently delivered generous proportions of corporate welfare.283 There is nothing natural about governments arming powerful corporations by stripping away the rights of the poor and powerless: Economically and politically, the declining power of self-governance among certain poorer nations is matched by the rising significance of transnational institutions such as the World Trade Organization (WTO) and governing bodies such as the European Union, not to mention for profit corporations. Of the

281 B. S. Morris, “The End of Ideology, The End of Utopia, and the End of History – On the occasion of the end of the USSR” (1994) 19(4-6) History of European Ideas 699, 701: ‘Thus it was that President reagan’s vision of privatisation worked out to benefit the rich, the speculator, and the corrupt at the expense of the less privileged and of future generations mortgaged to a debt-ridden, over-militarised, productively fractured society that achieved the empirical utopia of twentieth-century America.’ 282 S. Berns, “Musings on the Legal Scene: Law, Populism and the Politics of Ressentiment” (2006) 25 A. Feminist L.J. 19 – 40, 20: (footnotes omitted), my emphasis: ‘Together with the shift from a Fordian economy to a services economy, which began during the 1980s and which continues unabated, these changes — all produced by human agency — are progressively undermining traditional forms of ‘performing manhood’. The ensuing risk society panic has, variously, produced calls to restore the fault based divorce regime, restrict women’s access to contraception and abortion, and, in countries such as the UK and Australia, led to populist demands for protectionist policies, restricted immigration on racial and ethnic grounds, and a renewed industrial base.’ 283 J. Braithwaite, “Accountability and Governance under the New Regulatory State” (1999) 58(1) Australian Journal of Public Administration 90-97; E. Jones, “The evolution of industry policy under Howard” paper presented at the Symposium: a Decade of Howard Government, 23 February 2006; Susan Strange, “The Declining Authority of States”, Chapter 12 in D. Held & A. McGrew (eds), The Global Transformations Reader, Polity Press, Cambridge, 2000, 149; R. Tiffen, “Kerry Packer: Only one in a lifetime” paper published on 10 January 2006 and accessed online at www.apo.org.au on 4 February 2006; and R. Walker, “Australia's ASRB - A case study of political activity and regulatory capture” (1987) 17 Accounting & Business Research 269. In terms of “corporate welfare” see for example the effects of child-care subsidies aimed at parents which are soaked up in higher charges to become profits for private suppliers: E. Alberici, “Child care 'shambles' under the spotlight”, 7:30 Report, broadcasted 16 January 2006.

284 world's largest economies, fifty-one happen to be corporations, not countries, and Amnesty International now reports on corporations as well as nations (Eisenstein 1998, 1). Also, the hegemony of neoliberalism, alongside the naturalization of capitalist values, influences the ability to make choices on one's own behalf in the daily lives of economically marginalized as well as economically privileged communities around the globe.284 Expressed in the language of a Marxist approach to ideological analysis: It is taken for granted that competitive markets exist, that they are self- regulating, and that they are directly analogous to evolutionary processes in that only fittest are permitted to survive. Hirshleifer (1977, 10-12, 1978, 322) describes competition as a biological universal; Benston (1982a) posits that monitoring systems evolve naturally and freely in market systems, and that these are far preferable to mandatory arrangement. Jensen & Meckling (1980 4- 6, 22) support the analysis of their Rochester colleagues with a gloomy prophecy that government encroachment on corporate rights and freedoms portends a return to the repression of the Middle Ages.285 In other words, a socially constructed world is reified as “natural” - a consequence of the forces of production obedient to mystical laws of nature rather than individual and collective decision-making, and the positive law of white western privileged men.286 The type of “free-trade” globalisation rhetoric promoted by powerful western countries in concert with international organisations and their transnational corporate allies mirrors the contradictory ideological nature of the 17-18th century laissez-faire rhetoric of Locke and Smith.287 In both eras, dubious naturalising justifications ultimately shifted from normative propositions to become “descriptions” of reality.288

284 C. Talpade Mohanty, “’Under Western Eyes’ Revisited: Feminist Solidarity through Anticapitalist Struggles” (2003) 28(2) Signs 499, 508. 285 T. Tinker, “Panglossian Accounting Theories: The Science of Apologising in Style" (1988) 13 Accounting Organizations & Society 165, at 178. 286 “Reified” in the sense that ‘interests of a certain kind become masked, rationalized, naturalized, universalized, legitimated in the nature of certain forms of political power’, per T. Eagleton, Ideology: An Introduction, Verso, London, 1991, 202. 287 Notwithstanding that both Locke and Smith naturalised bourgeois political power and reified markets as natural through their writing, they also contradicted these ideological axioms. Locke quickly contradicted his natural law justification for private property as he considered the introduction of

285 For Giddens the ‘principle mode’ of naturalising social relations as ‘fixed’ and or ‘immutable’ is that of reification.289 While for Lukacs, reification was a necessary incidence of the commodification of all things due to human agency masquerading as “natural law”: Just as the capitalist system continuously produces and reproduces itself economically on higher and higher levels, the structure of reification progressively sinks more fatefully and more definitively into the consciousness of man.290 The argument being developed here is that socially contrived institutions and rules are reified as inevitable and “natural” by sociobiological arguments.291 It is a process first recognised by Marx in a letter to Engels: I'm amused that Darwin, at whom I've been taking another look, should say that he also applies the ‘Malthusian’ theory to plants and animals, as though in Mr Malthus’s case the whole thing didn’t lie in its not being applied to plants and animals, but only — with its geometric progression — to humans as against

money, see further C. B. Macpherson, The political theory of possessive individualism: Hobbes to Locke, Oxford University Press, London, 1962, 199 & 207. Although Smith is associated with a laissez-faire political economy that can never and has never existed, his work contained contradiction too. On the one hand Smith advocated a harsh form of what we might now call social Darwinism, and on the other hand he noted the highly inter-dependent nature of society which was based as much on co-operation as it is competition, see for instance: A. Smith, The Wealth of Nations: Books I-III, A. Skinner (ed), Ringwood, Victoria, Penguin, 1970, at 118 – 119. 288 For instance, Locke’s mythical “pristine state of nature” underpinning his justification of private property lingers on in the view that markets are natural and inevitable as opposed to socially constructed institutions. The same type of circular reasoning applies to globalisation rhetoric. That is to say, people are told that globalisation, as it is conceived by western governments, is inevitable but at the same time governments go to great lengths to negotiate treaties and infrastructure for it to take place which has the effect of making their version of globalisation that much more likely. 289 A. Giddens, Central Problems in Social Theory: Action, Structure, and Contradiction in Social Analysis, MacMillan, London, 1979, 195. 290 A. Giddens, Central Problems in Social Theory: Action, Structure, and Contradiction in Social Analysis, MacMillan, London, 1979, 195 - 196, quoting G. Lukacs, History and Class Consciousness: Studies in Marxist Dialectics, Translated by R. Livingstone, Merlin Press, London, 1971, 93 – 94. 291 Of the kind here that privilege “selfishness” over altruism, “competition” over “cooperation and so forth when in fact humans are neither selfish or altruistic but both, and society is not based on competition any more the cooperation rather on the interdependence of people.

286 plants and animals. It is remarkable how Darwin rediscovers, among the beasts and plants, the society of England with its division of labour, competition, opening up of new markets, ‘inventions’ and Malthusian ‘struggle for existence’. It is Hobbes’ bellum omnium contra omnes and is reminiscent of Hegel’s Phenomenology, in which civil society figures as an ‘intellectual animal kingdom’, whereas, in Darwin, the animal kingdom figures as civil society.292 This process of rationalising contrived situations as natural can be illustrated by way of the ruling elite economic slogan “competition”.293 That is to say the ubiquitous rhetoric of social Darwinism and classical economic theory that Marx was referring to: … only the fit, strong and efficient should survive, and the unproductive and disabled should be eradicated.294 “Competition” was projected onto nature through Adam Smith and Thomas Malthus’s political theories to become in Victorian biological parlance the “struggle for existence/survival”.295 Initially it was used to argue for the abolition of welfare and the removal of aristocratic privileges. Later, Hitler used it as an excuse for his fascist regime and his genocide by way of eugenics.296 Today, this biological metaphor is used by ruling elites to justify laws and internal corporate policies on the basis that failure to compete means economic extinction.297 It is a standard applied unequally so

292 K. Marx, “Marx to Engels in Manchester, 1862” in F. Engels & K. Marx, Selected Correspondence, 2nd ed., Progress Publishers, Moscow, 1965. 293 M. Sahlins, The Use and Abuse of Biology: An Anthropological Critique of Sociobiology, University of Michigan Press, Michigan, 1976, xii, xiv, & 54 – 55. 294 T. Tinker, “Panglossian Accounting Theories: The Science of Apologising in Style" (1988) 13 Accounting Organizations & Society 165, at 176. 295 R. Young, Darwin’s Metaphor, Cambridge University Press, Sydney, 1985, Chapter 2, “Malthus and the evolutionists: the common context of biological and social theory” and further forward. 296 “The struggle for existence: Darwin to Hitler”, Ockham’s Razor, ABC Radio National broadcasted 4 March 2007; and T. Barta, “Discourses of genocide in Germany and Australia: a linked history” (2001) 25 Aboriginal History 37. 297 T. Tinker, “Panglossian Accounting Theories: The Science of Apologising in Style" (1988) 13 Accounting Organizations & Society 165, at 176, 178, & 179; and J. Lyotard, The Postmodern Condition: A Report on Knowledge, G. Bennington & B. Massumi (Trans), Manchester University Press, Manchester, 1979, xxiv: ‘The decision makers, however, attempt to manage these clouds of

287 that ruling elites are infrequently subject to the standard (and can and do in fact exert pressure on governments to restrict their competition to all but oligopolies in most industries).298 In fact the environmental conditions corporations are said to have survived are often not characterised by competition but rather a lack of competition.299 In fact corporate capitalism was not born out of “competition” but from a combination of material factors, class struggles, and government welfare (statutes, infrastructure, subsidies, and through acquiescence allowing corporations to externalise their costs, as for example in the case of pollution), and through several legal cases commencing with Salomon’s Case.300 Salomon’s Case was a judicial decision privileging corporate form over moral responsibility and with it privileging capital over unsecured creditors. The rise of corporate capitalism is not a history of competition. Yet the rhetoric of “competition” justifies the terms and conditions subaltern classes must live by. For instance, the rhetoric of “competition” was used to sanction the shift in Australian industrial relations (commencing in 1993 under a Labor government) from a system of conciliation and arbitration to a decentralised system of collective bargaining, and later still to the extremely regressive imposition of individual bargaining arrangements under the Coalition government’s 2005

sociality according to input/output matrices, following a logic which implies that their elements are commensurable and that the whole is determinable. They allocate our lives for the growth of power. In matters of social justice and of scientific truth alike, the legitimation of that power is based on its optimizing the system’s performance – efficiency. The application of this criterion to all of our games necessarily entails a certain level of terror, whether soft or hard: be operational (that is, commensurable) or disappear.’ 298 Lyotard goes on to point out that although this criteria of competitive efficiency is applied with contradiction (viz, maximum output is essential for women and workers generally, but not necessarily the capital retained by the wealthiest few) postmodernism has no expectation that this contradiction will lead to revolution as Marx expected, per, J. Lyotard, The Postmodern Condition: A Report on Knowledge, G. Bennington & B. Massumi (Trans), Manchester University Press, Manchester, 1979, xxiv. 299 P. Baran & P. Sweezy, Monopoly Capital: An Essay on the American Economic and Social Order, Modern Reader Paperbacks, New York, 1966, 6, 8, & 9; and T. Tinker, “Panglossian Accounting Theories: The Science of Apologising in Style" (1988) 13 Accounting Organizations & Society 165, at 179 – 180. 300 Salomon v Salomon & Co Ltd [1897] AC 22.

288 “WorkChoices” laws.301 These WorkChoices laws have been condemned on the grounds that they offend ILO principles concerning the right to association and the right to collective bargaining as much as they have also reduced the actual entitlements and benefits paid to workers during a time of record profit growth.302 Since 2005, many studies have reported that while Australian workers (notably women and adolescents) are worse off as a result of the new laws, profits have increased.303

301 Workplace Relations Amendment (Work Choices) Act (Cth) 2005. 302 See generally Volume 56 of the 2005 edition of the Journal of Australian Political Economy; C. Fenwick, “Workers’ Human Rights in Australia”, Working Paper No 39, Centre for Employment and Labour Relations Law, University of Melbourne, August 2006, ISSN 1321-9235; A. Forsyth, “Freedom to Fire”, Corporate Law & Accountability Research Group, Monash University, 02-10-2007. Soon after the laws were changed there were many highly publicised instances of employers using the new laws to the detriment of workers. Among them the infamous Tristar case. There, ‘Tristar was looking for ways to minimise the costs of its redundancy program. Perversely it wouldn’t agree to provide a payout to its account manager of 43 years, John Beavan, who was battling terminal cancer. Tristar rejected Beavan’s application for redundancy late last year after he acknowledged that he was ill with liver and bowel cancer. When his treatment by Tristar became public knowledge, shock jock Alan Jones attacked the decision.’ Per J. Spoehr, “Workchoices: A Darwinian Landscape”, Australian Institute for Social Research, 2 February 2007, pp. 1- 3, at 1. 303 B. van Wanrooy, S. Oxenbridge, J. Buchanan, & M. Jakubauskas, “Australia @ Work: The benchmark report”, published by the Workplace Research Centre at The University of Sydney, Sydney, September 2007; J. Elton, J. Bailey, M. Baird, S. Charlesworth, R. Cooper, B. Ellem, T. Jefferson, F. Macdonald, D. Oliver, B. Pocock, A. Preston, & G. Whitehouse, “Women and WorkChoices: Impacts on the Minimum Wage Sector”, August 2007, Centre for Work + Life, University of South Australia; J. Elton & B. Pocock, “Not fair, No choice: The impact of WorkChoices on twenty South Australian workers and their households”, A report to SafeWork SA and The Office for Women, July 2007, Centre for Work + Life, Hawke Research Institute for Sustainable Societies, University of South Australia, ISBN 978-0-9803798-6-0; D. Peetz & A. Preston, “AWAs, Collective Agreements and Earnings: Beneath the aggregate data” report prepared for Industrial Relations Victoria, March 2007, Department of Innovation, Industry & Regional Development, Victoria. The hardest hit according to these studies were the so-called “working poor” (women, sole parents, and young people) who tend to supplement their incomes with welfare. See for example: T. Carney, “Welfare reform? Following the ‘work-first’way”, Brotherhood of St Laurence, University of Melbourne. According to another study by Peetz: ‘… overtime pay has been lost at double the rate of the past … As a result, during the six months to August 2006, real wages for full-time adults fell by 1.1 per cent. This was a remarkable occurrence during the tightest labour market in 30 years. … Labour productivity has also shown no signs of experiencing the promised boom, with trend productivity falling by 0.7 per cent nationally

289 Another example was the concerted campaign to introduce a goods and services tax (GST) after the Australian electorate rejected the idea in the 1993 federal election.304 Ultimately the campaign mounted by big business and facilitated through commercial media was successful and the tax was introduced in July 2000. The GST has been particularly oppressive because its advantages flow disproportionately to those nearer the top while shifting a greater share of the overall tax burden onto middle and lower level taxpayers: NATSEM shows that the GST has a regressive impact, with the magnitude of indirect taxes paid by households in all income quintiles showing relatively little variation with income (Harding, Lloyd & Warren, 2004). In 2001/02, families in the bottom quintile paid an estimated 20.5% of their gross income in between the March and September quarters of 2006,’ reported in F. Taylor, “Study shows unimpressive results from WorkChoices”, Griffith News, 12 Feb 2007 (reporting on a recent study by Professor Peetz who presented his findings at the 2007 Association of Industrial Relations Academics of Australia and New Zealand Conference in New Zealand). 304 Even if it is assumed that single issues do not determine election results, the paradigmatic shift in Australian attitudes to the notion of a consumption tax cannot be ignored. It was an election issue in the federal election campaigns in 1993 and 1998. In the 1993 election the Keating government was returned to office despite consistently polling poorly in opinion polls for almost the duration of the term. Political commentators at the time explained this surprise re-election on the basis that the then the opposition leader ran his campaign on the “need” to introduce a goods and services tax. Until the 1993 election, a goods and services tax was correctly understood by most Australians as not in their interests. Consumption taxes are known as a “regressive form of taxation” and history has been unkind to rulers who have imposed them against the will of the people. After 1993, there was a concerted campaign by big business, conservative economists, and the Murdoch media arguing that a goods and services tax was “necessary to make/keep the Australian economy competitive”. Ultimately, many people were persuaded by this campaign at least to the point where it was no longer a significant election issue so that when the Howard government campaigned for re-election in 1998 promising to introduce a goods and services tax it was duly re-elected. See further: D.W. Lovell, “What Do Political Promises Mean?” (2004) 48 Quadrant 1 – 9; R. Sullivan, “Policy Debates in Federal Election Campaigns, 1972-96” Research Paper 10 1997-98, Politics and Administration Group, Parliamentary Library, 24 November 1997; A. Ramsay, “Let’s have the honest truth, once and for all”, Sydney Morning Herald, 18 August 2004; C. Johnson, “Chapter 4: The 2001 election campaign: the ideological context” in J. Warhurst & M. Simms (eds), 2001: The Centenary Election, UQP, St Lucia, 2002; B. Jones, “Labor in the 1990s – Where To?”, John Curtin Memorial Lecture, 1992; Senator Nick Minchin, “First Speech – 30 August 1993”, Senate, Parliamentary Library; and S. Young, “Political Ephemera and the Hip-Pocket”, (2002) Vol 12 No 9 National Library of Australia News 1 – 5.

290 indirect taxes (GST and excise duties), compared with 8.9% of the gross income of the top quintile.305 The ideological aspect here is that a GST is not beneficial to most people, particularly those on lower incomes, but was promoted as such on the basis that it would be good for the economy – to keep the economy “competitive”.306 It is a sociobiological justification because the excuse for introducing the GST was a variation on a Malthusian argument treating economies as “competitors” in an evolutionary “struggle for survival”. However, there is no evidence that entire economies (as opposed to entities within an industry) compete on the basis of some evolutionary “struggle for survival” and furthermore this metaphor is not consistent with good evolutionary theory.307 I am not suggesting that ideology alone explains such laws or that ideology alone can sustain them. It is unlikely for example that ideology alone can explain the continuing acceptance of the GST. Instead I am making the argument that those responsible for the introduction of these laws have sought to justify them according to sociobiological arguments. It is also likely that dull compulsion has contributed too given the

305 J. McNamara, J. Lloyd, M. Toohey & A. Harding, “Prosperity For All?: How low income families have fared in the boom times”, NATSEM, National Centre for Social and economic Modelling, University of Canberra, 14 October 2004, Paper for Families Matter 9th Australian Institute of Family Studies Conference, Melbourne, 9-11 February 2005, pp. 1 – 49, 30: ‘Because low income families often spend all of their income (or more, if they are drawing on their savings), price increases are likely to have had a greater proportional impact on the types of families focused on in this study than on more affluent families.’ 306 J. McNamara, J. Lloyd, M. Toohey & A. Harding, “Prosperity For All?: How low income families have fared in the boom times”, NATSEM, National Centre for Social and economic Modelling, University of Canberra, 14 October 2004, Paper for Families Matter 9th Australian Institute of Family Studies Conference, Melbourne, 9-11 February 2005, pp. 1 – 49, 30. In their 2004 study, McNamara et al found: ‘… the gap between the least well-off families and the median family with children would have been likely to increase substantially over the period [1997/89 and 2004/05] … The lack of growth in income in the bottom quintile relative to all families with children suggest that increases in family payments and changes in tax thresholds have benefited less needy Australian families as much or more than those in the poorest circumstances. In addition, increases in average income for the bottom quintile do not necessarily translate into improved standards of living for this group, especially in light of the increases in indirect taxes associated with the introduction of the Goods and Services Tax (GST) in July 2000.’ 307 See chapter 4.

291 introduction of the tax coincided with a resources boom and the government cushioned the impact of the consumption tax by lowering income tax rates at the same time. Therefore, it is probable that any subaltern response to oppressive laws will be mixed and subject to a combination of ideology, class struggle, and “dull compulsion” just as Marx originally envisaged.308 Therefore, Marxist concepts such as historic materialism, reification and the expropriation of labour and property remain important for ideological analyses.309 Hence, approaches to ideology and its relationship with the maintenance and reproduction of hierarchy in the world today that do not adopt these key Marxian analytical concepts, risk obsolescence or irrelevance.310 The argument is not that Marxism can explain all forms of hierarchy and oppression, rather, that some of its tools remain essential for the analyses of ideology and for this reason it would be myopic to dispense with them.311 Just because postmodernism highlighted deficiencies in Marxist thought does not render it altogether obsolete.

308 K. Marx, Capital, Vol 1, “The Process of Production of Capital”, Progress Publishers, Moscow, 1867, pp.1 – 505, 29 – 42, at 464 – 465. 309 J. K. Gibson-Graham, The End of Capitalism (as we knew it): A Feminist Critique of Political Economy, Blackwell, Oxford, 1996; F. Okcabol & T. Tinker, “The Market for Positive Theory: Deconstructing the Theory for Excuses” (1990) 3 Advances in Public Interest Accounting 71; T. Tinker, “Panglossian Accounting Theories: The Science of Apologising in Style” (1988) 13 Accounting Organizations & Society 165, and T. Tinker, B. Merino & M. Neimark, “The Normative Origins of Positive Theories: Ideology and Accounting Thought” (1982) 7 Accounting Organizations & Society 167. 310 M.C. Lugones & E.V. Spelman, “Have We got a Theory for You!” in N. Zack, L. Shrage & C. Sartwell (eds.), Race, Class, Gender and Sexuality: The Big Questions, Blackwell, Oxford, 1998, 385: ‘Theory cannot be useful to anyone interested in resistance and change unless there is reason to believe that knowing what a theory means and believing it to be true have some connection to resistance and change.’ See further their five necessities for a good transformative theory at 383 – 385. 311 N. Hartsock, “Comment on Hekman’s ‘Truth and Method: Feminist Standpoint Theory Revisited’: Truth or Justice?” (1997) 22(2) Signs 367, 369: ‘I would add that in the context of capitalism, which has truly become global, and in which more and more of life is commodified, much of Marx’s critique of capitalism remains very apt.’

292 Conclusions

Recall that Ruse claimed that sociobiology was ideologically benign on several grounds.312 His arguments had some resonance with the postmodern critique of structural Marxist approaches to the analysis of ideology. However, taking account of the voracity of the postmodern critique against the notion of ideology does not shield sociobiology from the assertion that it is indeed ideology. Sociobiology is not benign, it is ideological. It is part of a long tradition of using the authority of “knowledge” to justify action and institutions that have the effect of creating and retaining hierarchy and oppression. Sociobiology is a dominant ideology in the sense that it is used to justify hierarchy and oppression in the categories of socio-economic class, gender, sexuality and race. Therefore it is a dominant ideology not in a conventional sense where it causes and maintains stratification but in the sense that it is a dominant thematic excuse; whether or not those excuses are actually accepted. Sociobiology is not floated as a dominant ideology in the sense that it is a top-down ideology imposed on, or duping subalterns. Rather, sociobiology is dominant because it can supply excuses for the naturalisation of human action in general and because it is more amenable to the application of the powerful than the disempowered by virtue of that power. Because biology occupies a privileged place in modern society it is the main source of ideas to justify hierarchy and oppression. It is appropriately placed to do so having been born from the ideas of those who had sought to articulate the place of humans in nature and human nature such as Hobbes, Locke, Smith, Malthus, etc. as

312 M. Ruse, Sociobiology: Sense or Nonsense?, 2nd ed, Kluwer Publishing, Boston, 1985, 75, 76, 79, 80 – 81, 83, 84, 85, 86, 87 – 88, 90 – 93, & 99. Firstly, he argued that the scientists advocating sociobiology had no demonstrable intention to be racist, homophobic, sexist, or apologists for capitalism. Secondly, sociobiology should not be held to account because extremists have used it to promote racism. Thirdly, when sociobiology is apparently racist, sexist, homophobic, or coinciding with capitalist ideals, it is merely the use of ‘unfortunate’ or ‘poorly chosen’ language or metaphors. In other words, sociobiology is not intrinsically ideological. Fourthly, Ruse disagreed with Sahlin’s version of the historic and symbiotic relationship between capitalism and sociobiology – rejecting any ‘circular shuttle of ideas’ between the two. Fifthly, even if Sahlins’ version of the historical relationship between capitalism and sociobiology was correct, Ruse rejected the implication that the symbiotic relationship was one of cause and effect. Lastly, even if Sahlins was correct to claim sociobiology contains capitalist ideology, there is no evidence that people are forced to, or do, endorse “right-wing” market ideology.

293 part of their aims to procure particular forms of hierarchical society. Those same ideas were then projected onto the natural world by Darwin and his successors, only to be used in turn by others who have drawn upon “nature” to rationalise human hierarchy and oppression ever since. In this chapter, this argument was critically assessed by drawing upon the available post-Marxist and postmodern literature objecting to the concept of ideology. The chapter concluded that there was nothing in postmodern literature to preclude the argument being advanced in this thesis that sociobiology is a dominant ideology granting the definition it is given here. Once it is accepted that ‘anti-essentialism is a motive rather than an achievement’ and that an analysis of hierarchy and oppression ‘requires the adoption of an “entry-point” that betrays the concerns of the analyst’ and ‘cannot secure ontological priority or privilege’, the critic is able to take the first step to move beyond both the paradox of legitimation and the problems of structuralist Marxism.313 The paradox of legitimation is ultimately a problem for the positivist and oppressor as opposed to their critics provided their critics proceed on the basis that the paradox of legitimation cannot be escaped, and provided the critic draws on the voice of oppressed people to critique the excuses supplied by oppressors for hierarchy and domination. Two ‘alternative’ theories enjoying some acceptance in the literature were also considered as rivals: autopoiesis and dull compulsion. These two theories were found to be inadequate as explanations for the stratification of capitalist society. Instead, the conclusion reached in this chapter was that ideology works in conjunction with dull compulsion to maintain socio-economic stratification within society. The specific assertion is that sociobiology is the ultimate naturalising ideology in western culture – it is a scientific excuse for the maintenance and reproduction of hierarchy and oppression.314 This means that excuses for hierarchy and oppression

313 J. K. Gibson-Graham, The End of Capitalism (as we knew it): A Feminist Critique of Political Economy, Blackwell, Oxford, 1996, 29, note 9. At note 10, Gibson-Graham describe themselves as “anti-” rather than “non-essentialists” ‘to signal the impossibility of fully transcending essentialism, or even wishing to’. 314 G. Lukacs, History and Class Consciousness: Studies in Marxist Dialectics, Translated by R. Livingstone, Merlin Press, London, 1971, 10 - 11: ‘When the ideal of scientific knowledge is applied to society it turns out to be an ideological weapon of the bourgeoisie. For the latter it is a matter of life and [at 11] death to understand its own system of production in terms of eternally valid categories: it must think of capitalism as being predestined to eternal survival by the eternal laws of nature and

294 can be identified in virtually all situations, whether they masquerade as, or are in fact, public, private, community, or social structures.315 This is not to claim that sociobiology will always succeed as an excuse, or that it is the only ideology, or that it can explain why society is hierarchical and oppressive.316 Capitalism has many ideologies.317 To explain why society is hierarchical and oppressive it is necessary to draw variously on the literature of Marxist, feminist, lesbian feminist, critical legal, critical race, and transgender jurisprudence writers: A satisfactory analysis of domination and exploitation in contemporary societies would – without minimizing the importance of class – have to give

reason. Conversely, contradictions that cannot be ignored must be shown to be purely surface phenomena, unrelated to this mode of production. The method of classical economics was a product of this ideological need.’ 315 J.K. Gibson-Graham, The End of Capitalism (as we knew it): A Feminist Critique of Political Economy, Oxford, Blackwell, 1996, 59: ‘The state may also be a site of exploitation, as may educational institutions, self-employment, labour unions, and other sites of production that are not generally associated with class.’ 316 The false materialist/idealist dichotomy, and the issues of “dull compulsion” and force are all relevant here and for reasons of space cannot be pursued. See further: N. Abercrombie, S. Hill & B. Turner (eds.) Dominant Ideologies, Routledge, London, 1992. T. Eagleton, Ideology: An Introduction, Verso, London, 1991, 34 – 37. 317 Thompson rejects the notion of singular meta-ideologies seeing this as too simplistic. Instead he draws on Gouldner to insist that ideology is contradictory for many reasons, among them the diversity of ideological sources in a complex capitalist society. ‘The bourgeoisie becomes more dependent than ruling classes in previous forms of society on a belief system which aims to win over other groups and define its dominance as legitimate. Gouldner argues, however, that this dependence is an increasingly fragile one, both because the bourgeoisie is separated from the cultural elite which produces ideologies, and because the hold of ideologies is being progressively undermined by the transformations in the communication media. The privileged link between ideology and the written word means that, with the growth of radio, cinema and television, ideology loses ground among the masses. A split appears between the “cultural apparatus”, centred on universities, which produces and consumes ideologies, and the “consciousness industry” which takes over an ever greater role in shaping the opinions of the population. With this split between the cultural apparatus and the consciousness industry, ‘ideology continues to ground an elite politics but loses effective influence over the masses’; a growing part of the population is placed beyond the reach of ideological discourse. But there will be no “end of ideology” so long as government by oligarchic elites is bolstered up by a rational discourse which claims to represent the interests of all.’ Per J.B. Thompson, Studies in the Theory of Ideology, Polity Press, Cambridge, 1985, 87.

295 considerable attention to the interrelated phenomena of racism, sexism and the system of nation-states.318 This thesis stands or falls on the claim that sociobiology provides excuses for hierarchy and oppression in the categories of socioeconomic class, gender, sexuality, and race, and that these excuses are either explicit or implicit in law.319 This is significant because no other ideology is known to function to this extent after the advent of postmodernism. In the remaining chapters this argument is developed in terms of the categories of gender and sexuality, and race.

318 J.B. Thompson, Studies in the Theory of Ideology, Polity Press, Cambridge, 1985, 130. 319 That is to say, those forms of domination commonly discussed in the literature which includes, class, race, gender, sexuality, and disability. For the sake of space, I have elected to focus on class, gender, race and sexuality to prove the argument. Therefore “disability” has been excluded only for reasons of space. It is also likely that there are other forms of domination that are not justified by sociobiology such as war. For example, the 2003 invasion of Iraq by the United States led “Coalition of the Willing” was justified for several reasons – typically each one was replaced by another as they were exposed as hollow. The stated reasons started with “continuing the war on terrorism”, to “Sadam Hussein has weapons of mass destruction”, to Sadam Hussein is a evil and tyrannical dictator warranting regime change, to the argument that it is necessary to bring democracy to the Middle East. These “excuses” were discussed on “Tony Jones speaks with columnist Frank Rich”, Lateline, ABC, broadcasted on 26 February 2007.

296 Chapter 7

Sociobiology, Family, Gender and Law

Introduction

From the earlier chapters it was observed that human institutions and behaviour are socially constructed not biologically determined.1 Yet it was noted that hierarchy and oppression are frequently justified as natural and therefore inevitable because they are said to be biologically determined. This pattern of justifying hierarchy and oppression as natural and inevitable through naturalising arguments and/or reification has been referred to in this thesis broadly as sociobiology. In this sense sociobiology is ideological. It is a dominant ideology because it is a common or frequently invoked excuse for the naturalisation of human action in general and because it is more amenable to justifying hierarchy and oppression than it is conducive to contrary political causes by virtue of the privilege of power.2 It was also submitted above that sociobiology is a dominant ideology because unlike other ideologies it is capable of justifying hierarchy and oppression in all the usual categories (viz: socio-economic class, gender, sexuality and race). Here the specific focus is on the reproduction of hierarchy and oppression in terms of gender and sexuality. That is to say, in this chapter and the next, evidence is furnished to show how the legal system contributes to the maintenance and reproduction of hierarchy and oppression within the categories of gender and sexuality, and justifies this action using sociobiological arguments. Much of this discussion will be centred on the “family” because gender and sexuality are defined/expressed/performed in/through relationships, and these relationships are

1 Societies remain hierarchical and oppressive through a combination of force (police, military, security, etc.), dull compulsion (survival requires conformity in the sense that people must seek out and remain employed, and society rewards those who do conform), and ideology (work ethics, cultural norms, and justifications/excuses). See further Chapter 6. 2 Although all groups must justify their views based on a theory of nature, it is the powerful who have a better position to be heard and a better opportunity to speak, G. Lukacs, History and Class Consciousness: Studies in Marxist Dialectics, Translated by R. Livingstone, Merlin Press, London, 1971, 10 – 11.

297 regulated by family law. Families are also the place where power, politics, economics, law and culture intersect.3 In choosing to analyse gender and sexuality through family law there is the risk of reifying, or confirming the stereotype, that the place of women is in the home or family.4 This is not my intention.5 Nor is it my intention to over- play the significance of law when it is clear that the law operates in tandem with material and ideological factors. My intention is to show how the family is constructed legally according to white-western-middleclass- heterosexist norms and that this normativity leads to hierarchies and oppression on the basis of gender and sexuality. This chapter develops the conclusion from the previous chapter that a critic drawing upon the voice of an oppressed to critique the latter’s oppressor is not bound by the paradox of legitimation. This fits with what is developing in the literature as “feminist standpoint theory”. Therefore, this chapter provides an elaboration of “standpoint theory” and a justification for the standpoints adopted for the analyses that follow in this and later chapters. The second part of the chapter applies feminist standpoint theory to the “nuclear family” to demonstrate how sociobiology naturalises and reifies that structure with adverse consequences for those who do not fit its gender and sexuality stereotypes. To do this the western patriarchal heterosexist nuclear family is situated within the historical material structure of capitalism. The third and final part

3 D. Bradley, “Comparative Law, Family Law and Common Law” (2003) 23(1) Oxford Journal of Legal Studies 127, at 143: quoting Cleary v Cleary [1974] 1 All ER 498 (CA) and M. Thatcher, The Downing Street Years, Harper Collins, London, 1993, 5-8 & 628-30; D. Haraway, Simians, Cyborgs, and Women: The Reinvention of Nature, Routledge, New York, 1991, 168; R. Hunter, “Decades of Panic” (2005) Griffith Review 10th ed on “Family Politics”, Summer, pp. 1 – 11; J. Millbank, “Which, then, would be the ‘husband’ and which the ‘wife’?: Some Introductory Thoughts on Contesting ‘the family’ in Court” (1996) 3 Murdoch University Electronic Journal of Law 1 – 11; and J. Schultz, “Family First” (2005) Griffith Review 10th ed on “Family Politics”, Summer, pp. 1-6, at 5: ‘it is not surprising then that family has become the battlefield of politics.’ 4 J. Resnik, “Asking about Gender in Courts” (1996) 21(4) Signs 952, 965. 5 My intention is to question this stereotype not to add to it, like Resnick who makes a similar point in J. Resnik, “Asking about Gender in Courts” (1996) 21(4) Signs 952, 965: ‘Sandra Bem argues that overemphasis on women’s current roles within families reinforces gender essentialism and produces polarization (1993, 130). Other theorists, such as Nancy Hartsock, call for shifting the focus from women’s oppression to “the question of how men’s dominance is constructed and maintained” (1983, 1).’

298 of the chapter critically assesses how the law determines “gender” in the context of a key marriage case (Re Kevin) to reveal how sociobiological justifications are used in maintaining a patriarchal gender binary.6

Standpoint Theory

Standpoint theory was mentioned in Chapter 6 in the context of the problem of the paradox of legitimation. Recall that the paradox of legitimation maintains there is no ultimate truth that can be drawn upon in order to prove an argument or theory.7 Recall also from Chapter 6 that the paradox of legitimation is not the concern of the disempowered or the oppressed because they lack authority anyway and so the paradox is only the concern of the powerful or an oppressor who must supply proof or justification whenever they are questioned. Therefore, it was submitted that a critical approach to ideology need not be thwarted by the paradox of legitimation provided the standpoint of the disempowered is privileged over the empowered for the purposes of critique.8 This amounts to the essence of what is emerging as “standpoint theory”: Since a standpoint specifies a relationship to power, one way to understand how power works is to learn from the standpoint(s) of the less powerful.9 In this chapter, a feminist transgender standpoint will be used to critique the way the legal system constructs gender to illustrate that the law plays an active role in maintaining and reproducing gender hierarchy and oppression, and that it does so using sociobiological reasoning. In the next chapter a feminist lesbian standpoint is

6 Re Kevin and Jennifer (validity of marriage of transsexual) [2001] FamCA 1074; 28 Fam LR 158. 7 J.B. Thompson, Studies in the Theory of Ideology, Polity Press, Cambridge, 1985, 12. 8 J. Sprague, “Comment on Walby’s ‘Against Epistemological Chasms: The Science Question in Feminism Revisited’: Structured Knowledge and strategic Methodology” (2001) 26(2) Signs 527, 535: ‘A fully social standpoint theory offers us a strategy for constructing knowledge that explicitly takes into account the distortions prompted by social relations of domination and works to ground and reconcile divergences. Ultimately, it presents us with a political challenge and holds us accountable as scholars for our role in meeting it. The surest way to increase the commensurability of standpoints is to use them strategically to construct knowledge that exposes and undermines the social relations that now divide us.’ 9 P.Y. Martin, J. Reynolds, & S. Keith, “Gender Bias and Feminist Consciousness among Judges and Attorneys: A Standpoint Theory Analysis” (2002) 27(3) Signs 665, 670.

299 used to critique the way the legal system plays an active role in maintaining the subordination of people on the basis of their sexuality and that it justifies subordination using sociobiological reasoning. Then in the remaining chapters, a neo- Marxist Indigenous standpoint is adopted to critique the role of law in the colonisation and oppression of Indigenous Australians emphasising the law’s sociobiological justifications. Before conducting those critiques it is necessary to explain standpoint theory beyond the basic formulation given above, to demonstrate how standpoint theory can be used to illuminate the critique that follows, and to reflect on my capacity to work with the narratives of groups to which I do not belong. At its core, standpoint theory is a political theory or strategy aimed at understanding how power works by learning from the standpoint(s) of the less powerful.10 Hence the objective of standpoint theory is to change society not necessarily describe it.11 It is more a strategy than an epistemology – a political strategy ‘crucial for designing effective projects of social transformation’.12 Although Dorothy Smith credits Sandra Harding for introducing standpoint theory as an innovation to feminism, it was also developed separately and collaboratively by a number of other feminists including

10 P.Y. Martin, J. Reynolds, & S. Keith, “Gender Bias and Feminist Consciousness among Judges and Attorneys: A Standpoint Theory Analysis” (2002) 27(3) Signs 665, 670; and J. Sprague, “Comment on Walby’s ‘Against Epistemological Chasms: The Science Question in Feminism Revisited’: Structured Knowledge and strategic Methodology” (2001) 26(2) Signs 527, 534: ‘Standpoint theory is not a theory - it is a political stance and a methodological strategy It poses political questions for each scholar: whose questions do we ask; from whose lives, needs, and interests do we begin; whose ordering of experience do we take seriously; to whom are we responsible to communicate; when has a question been adequately answered?’ 11 C. Stimpson, “On Being Transminded” (2000) 25(4) Signs 1007, 1008: ‘We are our own and each other's saviours. … we see the necessity of doing feminist work in history in order to change it.’ 12 S. Harding & K. Norberg, “New Feminist Approaches to Social Science Methodologies: An Introduction” (2005) 30(4) Signs 2009, 2011; and D. E. Smith, “Comment on Hekman’s ‘Truth and Method: Feminist Standpoint Theory Revisited’” (1997) 22(2) Signs 392, 396: ‘I stress "method of inquiry" since what I do as theory is not really an epistemology, although it must wrestle with epistemological problems; it is surely not a theory foundational to feminist theory, nor yet a theory of history, society, the laws of social systems, or anything of that kind. As a theory it is a systematic formulation of a method of developing investigations of the social that are anchored in, although not confined by, people's everyday working knowledge of the doing of their lives.’

300 her.13 In many respects, and in retrospect, there was an element of “progression” about the emergence of standpoint theory because it represents an intuitive response to the intersections between Marxism and feminism and in turn their joint impact on positivism together with the effects of postmodernism.14 To begin with, standpoint theory is a legacy of Marx’s view that all knowledge is socially constructed and: Marxist theories … remind us that the categories and criteria that come most immediately to mind for judging truth are likely to be those of the dominant groups.15 Hence, Marx and Engels pioneered the space for what has become standpoint theory because they ‘used the standpoint of the proletariat to produce their account of class relations from the standpoint of workers’.16 However, as will be shown below this was also a key reason why feminists and others critiqued Marxism and why feminism

13 D. E. Smith, “Comment on Hekman’s ‘Truth and Method: Feminist Standpoint Theory Revisited’” (1997) 22(2) Signs 392, 392. Key names credited with developing standpoint theory among others are Patricia Hill Collins, Kimberle Crenshaw, Donna Haraway, Sandra Harding, Nancy Hartsock, Chandra Mohanty, and Dorothy E. Smith in respectively: P. Collins, “Learning from the Outsider Within: The Sociological Significance of Black Feminist Thought” (1986) 33(6) Social Problems 14; K. Crenshaw, “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics” (1989) University of Chicago Legal Forum 139; D. Haraway, “Situated Knowledges: The Science Question in Feminism and the Privilege of Partial Perspective” (1988) 14(3) Feminist Studies 575; S. Harding, The Science Question in Feminism, Cornell University Press, Ithaca (NY), 1986; N. Hartsock, “The Feminist Standpoint: Developing the Ground for a Specifically Feminist Historical Materialism” in S. Harding & M. Hintikka (eds.), Discovering Reality: feminist Perspectives on Epistemology, Metaphysics, and Philosophy of Science, Reidel, Dordrecht, 1983, pp. 283 – 310; C. Mohanty, “Under Western Eyes: Feminist Scholarship and Colonial Discourses” (1986) 12(3) Boundary 2 333; and D.E. Smith, The Everyday World as Problematic: A Feminist Sociology, Northeastern University Press, Boston, 1987. 14 S. Harding, “Comment on Hekman’s ‘Truth and Method: Feminist Standpoint Theory Revisited’: Whose Standpoint Needs the Regimes of Truth and Reality? (1997) 22(2) Signs 382, 389. 15 N. Hartsock, “Comment on Hekman’s ‘Truth and Method: Feminist Standpoint Theory Revisited’: Truth or Justice?” (1997) 22(2) Signs 367, 370 – 371. 16 S. Harding, “Comment on Walby’s ‘Against Epistemological Chasms: The Science Question in Feminism Revisited’: Can Democratic Values and Interests Ever Play a Rationally Justifiable Role in the Evaluation of Scientific Work?’ (2001) 26(2) Signs 511, 516, footnote 9.

301 was subsequently critiqued by Black, Indigenous, and lesbian women.17 Marxism also laid the foundations for what was to become postmodernism in the sense that Marx and Engels were the first to challenge Enlightenment concepts of knowledge.18 Secondly, these ideas were taken up and refined by some feminists keen to broaden Marxist critique from its primary concern with capitalism to the realm of patriarchy and its oppressive institutions, structures, theories and ideologies.19 Together Marxism and feminism revealed the partial, political and oppressive nature of positivism and science. However, other disempowered and oppressed groups (gays, lesbians, transgender people, Indigenous men and women, migrants, etc.) turned these successful methods back onto Marxism and feminism to expose their limitations and partiality.20 This gave rise to the “cannibalisation” of radical critique and meshed with

17 N. Hartsock, “Comment on Hekman’s ‘Truth and Method: Feminist Standpoint Theory Revisited’: Truth or Justice?” (1997) 22(2) Signs 367, 368. Hartsock recognised that the Marxist concern with the proletariat was limited and that: ‘In following this strategy I committed an error similar to that of Marx. While he made no theoretical space for any oppression other than class, by following his lead I failed to allow for the importance of differences among women and differences among other various groups - power differences all.’ 18 N. Hartsock, “Comment on Hekman’s ‘Truth and Method: Feminist Standpoint Theory Revisited’: Truth or Justice?” (1997) 22(2) Signs 367, 367. Hartsock is ‘struck by the extent to which the Marxist roots of standpoint theories have gone unrecognized’, adding at 369 that it is crucial because Marxism denies essentialism treating human nature as socially constructed: ‘… I see Marx as an anti- Enlightenment figure on balance, although it must be recognized that his relationship to the Enlightenment and whole tradition of Western political thought is that of both the inheriting son and the rebellious son (see, e.g., Benhabib 1990, 11).’ 19 N. Hartsock, “Comment on Hekman’s ‘Truth and Method: Feminist Standpoint Theory Revisited’: Truth or Justice?” (1997) 22(2) Signs 367, 373; and P. H. Collins, “Comment on Hekman’s ‘Truth and Method: Feminist Standpoint Theory Revisited’: Where’s the Power?” (1997) 22(2) Signs 375, 377: ‘Initially examining only one dimension of power relations, namely, that of social class, Marx posited that, however unarticulated and inchoate, oppressed groups possessed a particular standpoint on inequality. In more contemporary versions, inequality has been revised to reflect a greater degree of complexity, especially that of race and gender. What we now have is increasing sophistication about how to discuss group location, not in the singular social class framework proposed by Marx, nor in the early feminist frameworks arguing the primacy of gender, but within constructs of multiplicity residing in social structures themselves and not in individual women.’ 20 S. Harding, “Comment on Hekman’s ‘Truth and Method: Feminist Standpoint Theory Revisited’: Whose Standpoint Needs the Regimes of Truth and Reality? (1997) 22(2) Signs 382, 385: ‘This kind of structural political "difference" was exactly the point of standpoint theory projects, although which

302 the third significant factor in the emergence of standpoint theory – the impact of postmodernism. Postmodernism rendered all views as partial and political and as a consequence led to the demise of grand narratives. It also destroyed the idea that scientific procedures could deliver truth, objectivity, accuracy and the like. Just as Marxist and feminist scholars had established that value-free science and research was never met in practice, postmodernism held ‘value-free research [was] an unachievable ideal’.21 The values that tended to be projected were the values of the dominant groups conducting the research because they were ‘poorly equipped to identify oppressive features of their own beliefs and practices’.22 However, just like bourgeois science, critical scholarship too was always partial.23 The standpoint of workers was not a sufficient basis to mount a critique of the systemic and multifarious ways in which oppression manifests.24 Stated differently, a proletarian standpoint is a partial standpoint because it does not automatically understand the oppression of gays, lesbians, and transgender people. Similarly, white middle-class feminists excluded and arguably silenced other disempowered women’s voices by universalising their own particular forms of oppression and praxis.25 Therefore, the combined effect of postmodernism and the

"system of domination" was centered depended on whether marxist men or northern feminists or male antiracists and postcolonialists were doing the thinking. However, it took feminists of color, multicultural and global feminisms, to develop the powerful resources of "intersectionality" necessary to analyze social relations from the standpoint of their daily lives, which were shaped by the mutually supportive or sometimes competitive relations between androcentrism, Eurocentrism, and bourgeois projects (e.g., hooks 1981; An-zaldúa 1987; Collins 1991).’ 21 S. Harding & K. Norberg, “New Feminist Approaches to Social Science Methodologies: An Introduction” (2005) 30(4) Signs 2009, 2010. 22 S. Harding & K. Norberg, “New Feminist Approaches to Social Science Methodologies: An Introduction” (2005) 30(4) Signs 2009, 2010. 23 N. Hartsock, “Comment on Hekman’s ‘Truth and Method: Feminist Standpoint Theory Revisited’: Truth or Justice?” (1997) 22(2) Signs 367, 371: ‘To claim that we can understand the totality of social relations from a single perspective is as futile an effort as to claim that we can see everything from nowhere.’ 24 Cf. G. Lukacs, History and Class Consciousness: Studies in Marxist Dialectics, Translated by R. Livingstone, Merlin Press, London, 1971, 149 – 209. 25 Indigenous women such as Moreton-Robinson protest that white-middle-class feminisms had this effect on Indigenous women in A. Moreton-Robinson, Talkin’ Up to the White Woman: Indigenous Women and Feminism in Australia, PhD Dissertation, School of Humanities, Griffith University,

303 cannibalisation of radical theories meant that although all critical perspectives had something to offer, none of them was sufficient.26 At the same time it was abundantly clear that in an increasingly “networked” world there were overlapping features common to all forms of oppression.27 In other words Marxism and feminism, although partial, still delivered core principles for the oppressed and disempowered to work with.28 As a result the climate was ripe for the emergence of “post-positivism” and is now developing as feminist standpoint theory.29 This is not to suggest that it was inevitable

Nathan, 1998; along with Black American women such as Collins in P. Collins, “Learning from the Outsider Within: The Sociological Significance of Black Feminist Thought” (1986) 33(6) Social Problems 14; and lesbian women as in D. Thompson, Reading between the lines: A lesbian feminist critique of feminist accounts of sexuality, The Gorgon’s Head Press, Sydney, 1991. 26 N. Hartsock, “Comment on Hekman’s ‘Truth and Method: Feminist Standpoint Theory Revisited’: Truth or Justice?” (1997) 22(2) Signs 367, 368. 27 S. Boyd, “Expanding the ‘Family’ in Family Law: Recent Ontario Proposals on Same Sex Relationships” (1994) 7 Canadian Journal of Women and Law 545, 563; K. Crenshaw, “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics” (1989) University of Chicago Legal Forum 139, 166 – 167 & 154; D. Haraway, “Situated Knowledges: The Science Question in Feminism and the Privilege of Partial Perspective” (1988) 14(3) Feminist Studies 575, 580; C. Talpade Mohanty, “’Under Western Eyes’ Revisited: Feminist Solidarity through Anticapitalist Struggles” (2003) 28(2) Signs 499, 501 & 505; S. Gavigan, “Paradise Lost Paradox Revisited: The Implications of Familial Ideology for Feminist, Lesbian, and Gay Engagement to Law” (1993) 31 Osgoode Hall Law Journal 589, 591 – 592; A. Moreton-Robinson, Talkin’ Up to the White Woman: Indigenous Women and Feminism in Australia, PhD Dissertation, School of Humanities, Griffith University, Nathan, 1998, 50; S. Sengupta, “I/Me/Mine – Intersectional Identities as Negotiated Minefields” (2006) 31(3) Signs 629, 635; and J.B. Thompson, Studies in the Theory of Ideology, Polity Press, Cambridge, 1985, 130. 28 P. H. Collins, “Comment on Hekman’s ‘Truth and Method: Feminist Standpoint Theory Revisited’: Where’s the Power?” (1997) 22(2) Signs 375, 377. S. Harding, “Comment on Hekman’s ‘Truth and Method: Feminist Standpoint Theory Revisited’: Whose Standpoint Needs the Regimes of Truth and Reality? (1997) 22(2) Signs 382, 385; L. McCall, “The Complexity of Intersectionality” (2005) 30(3) Signs 1771, 1773; and C. Mohanty, “’Under Western Eyes’ Revisited: Feminist Solidarity through Anticapitalist Struggles” (2003) 28(2) Signs 499, 505. 29 So for example, for Harding, standpoint theory provides a link between critical discourses: ‘Thus it relinks postmarxian critical theory to recent science studies in response to feminist concerns, as well as for some writers (including this one), to multicultural, postcolonial, and poststructuralist projects’ in S. Harding, “Comment on Walby’s ‘Against Epistemological Chasms: The Science Question in Feminism

304 because the scholars who pioneered standpoint theory had to endure the hardship that attaches to “lone wolves” in the patriarchal capitalist academy.30 It was more the fact that there were several “loose ends” that needed to be tied off within the broad band of critical scholarship.31 These loose ends were that particular standpoints were necessarily partial, knowledge tended to be the product of more powerful standpoints, truth was an unattainable goal, there was some validity in all the critiques emerging from disempowered standpoints, there was a need for greater accountability and

Revisited’: Can Democratic Values and Interests Ever Play a Rationally Justifiable Role in the Evaluation of Scientific Work?’ (2001) 26(2) Signs 511, 515. While for Hartsock: ‘I was attempting to translate the concept of the standpoint of the proletariat into feminist terms (Hartsock 1983). Marx, in Capital (1967, 1:19), adopted a simple two-class model in which everything exchanged at its value, and only a few pages before the end of volume 3, more than two thousand pages later, he returns to the problem of class, which will now be shown to be more complicated and demanding of subtle treatment. The manuscript, however, breaks off only a few pages later without presenting such an analysis. Given the fruitfulness of Marx's strategy, I adopted by analogy a simple two-party opposition between feminist and masculinist representatives of the patriarchy. Following Lukacs's (1971) essay, "Reification and the Standpoint of the Proletariat," I wanted in my article to translate the notion of the proletariat (including its privileged historical mission) into feminist terms. I was arguing that, like the lives of proletarians in Marxist theory, women's lives in Western capitalist societies also contained possibilities for developing a critique of domination.’ Per N. Hartsock, “Comment on Hekman’s ‘Truth and Method: Feminist Standpoint Theory Revisited’: Truth or Justice?” (1997) 22(2) Signs 367, 368, referring to her essay in an edited book by S. Harding & M. Hintikka, Discovering Reality: Feminist Perspectives on Epistemology, Metaphysics, Methodology and Philosophy of Science, Reidel/Kluwer, Dordrecht, 1983, 283 – 310. 30 S. Marcus, “Queer Theory for Everyone: A review Essay” (2005) 31(1) Signs 191, 214; J. W. Scott, “Comment on Hawkesworth’s ‘Confounding Gender’” (1997) 22(3) Signs 697, 698; S. Harding & K. Norberg, “New Feminist Approaches to Social Science Methodologies: An Introduction” (2005) 30(4) Signs 2009, 2009: ‘… conventional standards for “good research” discriminate against or empower specific social groups no less than do the policies of legal, economic, military, educational, welfare, and health-care institutions; in fact, these standards actually enable the practices of these institutions’; and C. Talpade Mohanty, “’Under Western Eyes’ Revisited: Feminist Solidarity through Anticapitalist Struggles” (2003) 28(2) Signs 499, 504. As Mohanty declares: ‘These effects range from being cast as the “nondutiful daughter” of white feminists to being seen as a mentor for Third World/ immigrant women scholars; from being invited to address feminist audiences at various academic venues to being told I should focus on my work in early childhood education and not dabble in "feminist theory." Practicing active disloyalty has its price as well as its rewards.’ 31 S. Harding, “Comment on Hekman’s ‘Truth and Method: Feminist Standpoint Theory Revisited’: Whose Standpoint Needs the Regimes of Truth and Reality? (1997) 22(2) Signs 382, 389.

305 responsibility from scholars for the effects of their work and, as a result of postmodernism, there was no agreed way to “rank” standpoints, theories, ideas and strategies. McCall, like Harding, situates standpoint theory as part of a broader post-positivist movement which is in the process of negotiating these loose ends.32 Post-positivism embraces the thrust of the postmodern assault on the modernist Enlightenment view of knowledge, objectivity, truth, etc., treating science and its methods as another form of rhetoric with its conventions as to persuasiveness. Standpoint theory accepts this starting point and adds another layer to it by drawing upon marginalised standpoints for the purposes of deconstructing hierarchy and oppression.33 It requires that a researcher ‘stand in the shoes of an oppressed group’ to the extent that is possible (a point taken up later).34 In metaphorical terms, Harding illustrates the strategy by

32 L. McCall, “The Complexity of Intersectionality” (2005) 30(3) Signs 1771, 1793: ‘steers a middle course between positivism and postmodernism. … and a critique of both positivism and postmodernism for being overly concerned with epistemological issues and overly pessimistic about what can be known about the world in the absence of unmediated access to it.’ S. Harding, “Comment on Walby’s ‘Against Epistemological Chasms: The Science Question in Feminism Revisited’: Can Democratic Values and Interests Ever Play a Rationally Justifiable Role in the Evaluation of Scientific Work?’ (2001) 26(2) Signs 511, 520. Commenting on those who refuse to depart from positivism she declares: ‘…. postpositivist epistemology is not fully real to them. (Not that the rest of us have fully grasped its outlines).’ And in footnote 13 to this quote she adds: 'The project of my current work-in- progress is to bring the resources of one stream of contemporary political philosophy to bear on the philosophies of science. Here I am trying to show that mainstream forms of philosophy of science have been embedded in the kind of classic liberal political philosophy that permits precisely the antidemocratic scientific and technological practices to which critics, including feminists, have pointed. What is needed is not the absence of the political in epistemologies and philosophies of science but a democratic political epistemology and philosophy of science conceptually equipped to deal with "difference" in the global contexts within which sciences function today.’ 33 C. Mohanty, “’Under Western Eyes’ Revisited: Feminist Solidarity through Anticapitalist Struggles” (2003) 28(2) Signs 499, 505: ‘In knowing differences and particularities, we can better see the connections and commonalities because no border or boundary is ever complete or rigidly determining. The challenge is to see how differences allow us to explain the connections and border crossings better and more accurately, how specifying difference allows us to theorize universal concerns more fully. It is this intellectual move that allows for my concern for women of different communities and identities to build coalitions and solidarities across borders.’ 34 S. Harding, “Comment on Walby’s ‘Against Epistemological Chasms: The Science Question in Feminism Revisited’: Can Democratic Values and Interests Ever Play a Rationally Justifiable Role in

306 referring to the appearance of a stick dipped into a pond. 35 Depending on where one stands around the pond the stick appears bent to different extents and from other locations straight. An important point to take from this metaphor is that standpoint theory seeks ‘to discover the shape of the pond that positions the people and their perspectives vis-a-vis one another’.36 In other words by looking at all the available narratives, including the powerful and the disempowered, and by privileging the most disempowered, it becomes possible to understand those narratives in terms of asymmetrical power.37 This metaphor also indicates that not all standpoints are equal and are variously impaired according to their vantage-point: … although all knowledge claims are determinately situated, not all such social situations are equally good ones from which to be able to see how the social order works. Dominant groups have more interests than do those they dominate in not formulating and in excluding questions about how social relations and the Evaluation of Scientific Work?’ (2001) 26(2) Signs 511, 516, footnote 9: ‘… in principle others can learn how to think from the standpoint of those who engage in such activities. For example, male child- care workers, nurses, and “house-husbands” learn to think about social relations from the standpoint of activities usually associated with women.’ 35 S. Harding, “Comment on Hekman’s ‘Truth and Method: Feminist Standpoint Theory Revisited’: Whose Standpoint Needs the Regimes of Truth and Reality? (1997) 22(2) Signs 382, 384: ‘Recollect that ancient lesson from elementary school science classes: “Is that stick in the pond that appears to be bent really bent? Walk around to a different location and see that now it appears straight as it really is.” … different “locations” … tend to generate distinctive accounts of nature and social relations. (They do not determine them, but only “tend to generate” accounts different from the dominant ones in distinctive ways.) Thus, the kinds of daily life activities socially assigned to different genders or classes or races within local social systems can provide illuminating possibilities for observing and explaining systemic relations between “what one does” and “what one can know.” Observing these differing relations is like walking around the pond. Distinctive gender, class, race, or cultural positions in social orders provide different opportunities and limitations for “seeing” how the social order works. Societies provide a kind of “natural experiment” enabling accounts of how knowledge claims are always “socially situated.”’ 36 D. E. Smith, “Comment on Hekman’s ‘Truth and Method: Feminist Standpoint Theory Revisited’” (1997) 22(2) Signs 392, 396. 37 J. Sprague, “Comment on Walby’s ‘Against Epistemological Chasms: The Science Question in Feminism Revisited’: Structured Knowledge and strategic Methodology” (2001) 26(2) Signs 527, 531: ‘Standpoint theory is grounded in reality, including the social relations of domination organizing experience and the creation of understandings of that experience. It calls us to use these socially organized divisions strategically.’

307 nature [at 385] “really work.” … In social relations organized by domination, exploitation, and oppression, the “conceptual practices of power” (Smith's phrase [1990]) will construct institutions that make seem natural and normal those relations of domination, exploitation, and oppression.38 Standpoint theory embraces the impossibility of value-free research/knowledge while maintaining the ideal that some knowledge is better than other knowledge. This is where standpoint theory overlaps with post-positivism - they both recognise the importance of ethical and political accountability for the consequences of research/knowledge (unlike for instance military science and indeed sociobiology).39 Standpoint theory like post-positivism is ‘sensitive about what disadvantaged groups want to know’ and is ‘politically and ethically more accountable to such disadvantaged groups’.40 The damage caused by those who deny their subjectivity in their work can be contrasted with the responsible work of feminists who openly produce work that aimed at enhancing the status and position of women by addressing, for instance, male violence against women and ‘women’s double day of work’.41 The more difficult question concerns “whose standpoint?” Is the standpoint determined by identity or group or on some other basis? Standpoint theorists have been consistent and unequivocal here; the key concern is power not

38 S. Harding, “Comment on Hekman’s ‘Truth and Method: Feminist Standpoint Theory Revisited’: Whose Standpoint Needs the Regimes of Truth and Reality? (1997) 22(2) Signs 382, 384 – 385. 39 S. Harding & K. Norberg, “New Feminist Approaches to Social Science Methodologies: An Introduction” (2005) 30(4) Signs 2009, 2010; and S. Harding, “Comment on Hekman’s ‘Truth and Method: Feminist Standpoint Theory Revisited’: Whose Standpoint Needs the Regimes of Truth and Reality? (1997) 22(2) Signs 382, 385: ‘If one starts asking questions about standard accounts of the growth of modern science, for example, from the lives of peoples who suffered from that growth and from the associated European expansion that made it possible and benefited from it (lives articulated through diverse "constructed" discourses), one – anyone - learns more than if such questions were not asked.’ 40 S. Harding & K. Norberg, “New Feminist Approaches to Social Science Methodologies: An Introduction” (2005) 30(4) Signs 2009, 2011. 41 S. Harding & K. Norberg, “New Feminist Approaches to Social Science Methodologies: An Introduction” (2005) 30(4) Signs 2009, 2010.

308 identity.42 Nor is standpoint theory concerned with how ‘folks in a particular social location think’.43 Standpoint theory analyses power relations from the perspective of marginalised groups rather than individuals.44 It accepts the virtues of the postmodern preference for disaggregation and fluidity but does not discard group analyses in favour of an enigmatic individual subjectivity.45 In other words, although ‘individual agency and diversity often overshadow investigating the continued salience of group-based experiences’, standpoint theory retains group analysis.46 However, group analysis is

42 J. Sprague, “Comment on Walby’s ‘Against Epistemological Chasms: The Science Question in Feminism Revisited’: Structured Knowledge and strategic Methodology” (2001) 26(2) Signs 527, 529: ‘This point has been reaffirmed by many, if not all, of the major standpoint theorists since Hartsock took pains to specifically distinguish a standpoint from the spontaneous consciousness of social actors. A standpoint, Hartsock says, is "achieved rather than obvious, a mediated rather than immediate understandng" (1985, 132). Collins reaffirmed the point fairly recently in her essay in the previous exchange on this topic in Signs when she emphasized that standpoint is not about individual experiences- it is about "historically shared, group-based experiences" (1997, 375). Smith (1987, 1990) says a standpoint is a strategic choice in doing research -a place from which to start, a door to open on the social.’ 43 J. Sprague, “Comment on Walby’s ‘Against Epistemological Chasms: The Science Question in Feminism Revisited’: Structured Knowledge and strategic Methodology” (2001) 26(2) Signs 527, 529. 44 N. Hartsock, “Comment on Hekman’s ‘Truth and Method: Feminist Standpoint Theory Revisited’: Truth or Justice?” (1997) 22(2) Signs 367, 372, quoting Kathi Weeks (1996, 101): ‘The constitution of the subject, then, is the result of a complex interplay of “individuals” and larger-scale social forces. Groups are not to be understood, as Hekman seems to do, as aggregates of individuals. Moreover, the constitution of the “collective subject” posited by standpoint theories requires an always contingent and fragile (re)construction/transformation of these complex subject positions. … “A standpoint is a project, not an inheritance; it is achieved, not given”.’ And P.H. Collins, “Comment on Hekman’s ‘Truth and Method: Feminist Standpoint Theory Revisited’: Where’s the Power?” (1997) 22(2) Signs 375, 376: ‘… the individual as proxy for the group becomes particularly problematic because standpoint theory's treatment of the group is not synonymous with a "family resemblance" of individual choice expanded to the level of voluntary group association.’ 45 P. H. Collins, “Comment on Hekman’s ‘Truth and Method: Feminist Standpoint Theory Revisited’: Where’s the Power?” (1997) 22(2) Signs 375, 377. That is to say, not ‘replaced by an accumulation of decontextualized, unique women whose complexity erases politics’. 46 P. H. Collins, “Comment on Hekman’s ‘Truth and Method: Feminist Standpoint Theory Revisited’: Where’s the Power?” (1997) 22(2) Signs 375, 377.

309 not at the expense of individuals,47 unless that is seen as an abrogation of the ideology of liberal individualism.48 Rather, the social category is essential to understand oppression and hierarchy at the individual level.49 That is to say: It is common location within hierarchical power relations that creates groups, not the results of collective decision making of the individuals within the groups. Race, gender, social class, ethnicity, age, and sexuality are not descriptive categories of identity applied to individuals. Instead, these elements of social structure emerge as fundamental devices that foster inequality resulting in groups.50 So for example: Although gender is often experienced as a deeply authentic aspect of the individual self, many theorists have persuasively argued that gender identities must be understood as relationally formed … gender is not best understood simply as an attribute of individuals but rather as a set of often hierarchical relations among differently gendered subjects.51

47 P. H. Collins, “Comment on Hekman’s ‘Truth and Method: Feminist Standpoint Theory Revisited’: Where’s the Power?” (1997) 22(2) Signs 375, 377: ‘The existence of the group as the unit of analysis neither means that all individuals within the group have the same experiences nor that they interpret them in the same way. Using the group as the focal point provides space for individual agency. While these themes remain meritorious, they simply do not lie at the center of standpoint theory as a theory of group power and the knowledges that group location and power generate.’ 48 C. J. Heyes, “Feminist Solidarity after Queer Theory: The Case of Transgender” (2003) 28(4) Signs 1093, 1097; and P.H. Collins, “Comment on Hekman’s ‘Truth and Method: Feminist Standpoint Theory Revisited’: Where’s the Power?” (1997) 22(2) Signs 375, 375: ‘Individualism continues as a taproot in Western theorizing, including feminist versions. Whether bourgeois liberalism positing notions of individual rights or postmodern social theory's celebration of human differences, market- based choice models grounded in individualism argue that freedom exists via the absence of constraints of all sorts, including those of mandatory group membership. Freedom occurs when individuals have rights of mobility in and out of groups, much as we join clubs and other voluntary associations.’ 49 D. Haraway, “Situated Knowledges: The Science Question in Feminism and the Privilege of Partial Perspective” (1988) 14(3) Feminist Studies 575, 586: ‘Identity, including self-identity, does not produce science; critical positioning does, that is, objectivity.’ 50 P. H. Collins, “Comment on Hekman’s ‘Truth and Method: Feminist Standpoint Theory Revisited’: Where’s the Power?” (1997) 22(2) Signs 375, 376. 51 C. J. Heyes, “Feminist Solidarity after Queer Theory: The Case of Transgender” (2003) 28(4) Signs 1093, 1094, original emphasis.

310 What this means is that the narratives of disempowered groups are used to understand relationships situated within power relations.52 And how are groups to be conceived for the purposes of standpoint theory? Collins’ answer is: … standpoint theory concerns the commonality of experiences and perspectives that emerge for groups differentially arrayed within hierarchical power relations.53 While for Haraway group standpoints are about shared power and vulnerability, ‘[s]ituated knowledges are about communities, not about isolated individuals’.54 Standpoints must be flexible enough to recognise intersecting oppressive structures because in a globalised patriarchal capitalist framework it is possible as Sengupta has shown that an Indian woman working in a call centre in Delhi for a European finance company might be bullying an unemployed Black sole parent father in Los Angeles for loan arrears.55 Power is relative to a structural context because oppression is not a ‘timeless universal structure’ but a plastic concept that continues to renew.56 An oppressor today may be an oppressed tomorrow and for this reason what matters more than individuals or their “identity” is their relation to the structural power involved.57 As Sengupta has argued:

52 C. J. Heyes, “Feminist Solidarity after Queer Theory: The Case of Transgender” (2003) 28(4) Signs 1093, 1094. 53 P. H. Collins, “Comment on Hekman’s ‘Truth and Method: Feminist Standpoint Theory Revisited’: Where’s the Power?” (1997) 22(2) Signs 375, 377. 54 D. Haraway, “Situated Knowledges: The Science Question in Feminism and the Privilege of Partial Perspective” (1988) 14(3) Feminist Studies 575, 590. For Haraway power and vulnerability are the issues not pluralism (at 589). And at 590 on the question of “Whose standpoint?”, Haraway says, “None” since it is vulnerability that matters not an individual’s position: ‘… location is about vulnerability; location resists the politics of closure …’. 55 This example is adapted from one supplied by Sengupta in S. Sengupta, “I/Me/Mine – Intersectional Identities as Negotiated Minefields” (2006) 31(3) Signs 629, 633. 56 R.W. Connell, “Comment on Hawkesworth’s ‘Confounding Gender’: Re-Structuring Gender” (1997) 22(3) Signs 702, 703. 57 S. Sengupta, “I/Me/Mine – Intersectional Identities as Negotiated Minefields” (2006) 31(3) Signs 629, 631: ‘The trouble with the deployment of identities as a means of offense or defense is that, given a change in the equations of violence in any instance, which may have to do with anything from local politics to broader geopolitical crosscurrents, the victim very quickly becomes the oppressor.’

311 Men do not oppress women because they are men; they do so because one of the forms in which oppression gets articulated happens to be patriarchy, which in turn has relationships with the ways in which forms of control over sexual or reproductive agency are tied to patterns of control over scarce resources. The factors that impel patriarchy are not unrelated to the factors that control other forms of agency in other resource and energy allocation and distribution scenarios in the material world; these can be and are inflected with tropes of ethnicity, race, caste, and the one that we most often forget to mention these days – class.58 Therefore standpoint theory uses an “upwards perspective”, as Mohanty puts it, ‘reading up the ladder of privilege’.59 Harding argues this upwards perspective is not only more likely to produce ethical and just knowledge it is more likely to be responsible and accountable too.60 This justification goes to the heart of standpoint

58 S. Sengupta, “I/Me/Mine – Intersectional Identities as Negotiated Minefields” (2006) 31(3) Signs 629, 635. 59 C. Mohanty, “’Under Western Eyes’ Revisited: Feminist Solidarity through Anticapitalist Struggles” (2003) 28(2) Signs 499, 511: ‘Beginning from the lives and interests of marginalized communities of women, I am able to access and make the workings of power visible - to read up the ladder of privilege. It is more necessary to look upward - colonized peoples must know themselves and the colonizer. This particular marginalized location makes the politics of knowledge and the power investments that go along with it visible so that we can then engage in work to transform the use and abuse of power. The analysis draws on the notion of epistemic privilege as it is developed by feminist standpoint theorists (with their roots in the historical materialism of Marx and Lukacs) as well as postpositivist realists, who provide an analysis of experience, identity, and the epistemic effects of social location.’ 60 N. Hartsock, “Comment on Hekman’s ‘Truth and Method: Feminist Standpoint Theory Revisited’: Truth or Justice?” (1997) 22(2) Signs 367, 372 – 373: ‘I argue that the criteria for privileging some knowledges [at 373] over others are ethical and political rather than purely "epistemological." The quotation marks here are to indicate that I see ethical and political concepts such as power as involving epistemological claims on the one hand and ideas of what is to count as knowledge involving profoundly important political and ethical stakes on the other. Hekman is right that I want to privilege some knowledges over others because they seem to me to offer possibilities for envisioning more just social relations.’ Haraway, too, makes the argument that marginalized groups can provide ‘situated knowledges’ with the advantage of more responsible, just and accountable knowledge in D. Haraway, “Situated Knowledges: The Science Question in Feminism and the Privilege of Partial Perspective” (1988) 14(3) Feminist Studies 575, 583.

312 theory which seeks to draw upon ‘all discrminatees’ to develop knowledge through an upward perspective, and: By so doing, we may develop language which is critical of the dominant view and which provides some basis for unifying activity. The goal of this activity should be to facilitate the inclusion of marginalized groups for whom it can be said: “When they enter, we all enter.”61 However, standpoint theory does not rigidly privilege the experience of an oppressed over abstract concepts (e.g. theories and procedures) on the grounds that the former is less distorted than the latter.62 Standpoint theory makes no such claims.63 It is not a claim that the knowledge of women or indeed any other marginalised group is superior to the abstract knowledge of the scientist - it is an assertion that oppressed views are less likely to contain privilege.64 As a form of post-positivism, standpoint theory is not about truth or objectivity and is instead about the analyses of power from various standpoints.65 It assumes that the “real” world is never fully known and what

61 K. Crenshaw, “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics” (1989) University of Chicago Legal Forum 139, 167. At 145: ‘Consequently, “bottom-up” approaches, those which combine all discriminatees in order to challenge an entire employment system, are foreclosed by the limited view of the wrong and the narrow scope of the available remedy. If such “bottom-up” intersectional representation were routinely permitted, employees might accept the possibility that there is more to gain by collectively challenging the hierarchy rather than by each discriminatee individually seeking to protect her source of privilege within the hierarchy.’ 62 J. Sprague, “Comment on Walby’s ‘Against Epistemological Chasms: The Science Question in Feminism Revisited’: Structured Knowledge and strategic Methodology” (2001) 26(2) Signs 527, 529 – 530: ‘The logic of preferring some standpoints over others emerges from a political analysis of the relation between knowledge and material interests (Habermas 1971). Distinctive standpoints are shaped by contrasting positions in social relations of domination and oppression. The strategic advantage of standpoints of those oppressed in the current organization of social [at 530] relations is that they have little stake in simply validating the status quo (Harding 1998).’ 63 The concern is with power and accountability. 64 D.E. Smith, “Comment on Hekman’s ‘Truth and Method: Feminist Standpoint Theory Revisited’” (1997) 22(2) Signs 392, 396. 65 D.E. Smith, “Comment on Hekman’s ‘Truth and Method: Feminist Standpoint Theory Revisited’” (1997) 22(2) Signs 392, 393: ‘I am not arguing that women's standpoint is rooted in a reality of any kind. Rather, I am arguing that women's standpoint returns us to the actualities of our lives as we live

313 makes it “real” are ‘our practices, acting in concert with one another, in social relations that organize us into rulers and ruled’.66 Nor do standpoint theorists take a romantic view of oppressed groups, or underestimate the challenges this strategy poses.67 For instance Haraway warns that the opportunities created by standpoint theory also pose further risks and responsibilities: … here there also lies a [at 584] serious danger of romanticizing and/or appropriating the vision of the less powerful while claiming to see from their positions. To see from below is neither easily learned nor unproblematic, even if "we" "naturally" inhabit the great underground terrain of subjugated knowledges. The positionings of the subjugated are not exempt from critical reexamination, decoding, deconstruction, and interpretation; that is, from both semiological and hermeneutic modes of critical inquiry.68 Still, even if the oppressed may not always be “innocent” their relative position is important for an assault on hierarchy and for the possibility of transforming an unjust world.69 What this means is that a standpoint theorist will start their analysis from the group most oppressed, marginalised or disempowered. them in the local particularities of the everyday/everynight worlds in which our bodily being anchors us.’ 66 N. Hartsock, “Comment on Hekman’s ‘Truth and Method: Feminist Standpoint Theory Revisited’: Truth or Justice?” (1997) 22(2) Signs 367, 371 – 372: ‘These groups must not be seen as formed unproblematically by existing in a particular social location and therefore seeing the world in a [at 372] particular way’; and J. Sprague, “Comment on Walby’s ‘Against Epistemological Chasms: The Science Question in Feminism Revisited’: Structured Knowledge and strategic Methodology” (2001) 26(2) Signs 527, 528, citing Dorothy Smith (1987). 67 J. Sprague, “Comment on Walby’s ‘Against Epistemological Chasms: The Science Question in Feminism Revisited’: Structured Knowledge and strategic Methodology” (2001) 26(2) Signs 527, 528. 68 D. Haraway, “Situated Knowledges: The Science Question in Feminism and the Privilege of Partial Perspective” (1988) 14(3) Feminist Studies 575, 583 – 584. 69 D. Haraway, “Situated Knowledges: The Science Question in Feminism and the Privilege of Partial Perspective” (1988) 14(3) Feminist Studies 575, 584: ‘The standpoints of the subjugated are not “innocent” positions. On the contrary, they are preferred because in principle they are least likely to allow denial of the critical and interpretive core of all knowledge. “Subjugated” standpoints are preferred because they seem to promise more adequate, sustained, objective, transforming accounts of the world. But how to see from below is a problem requiring at least as much skill with bodies and language, with the mediations of vision, as the “highest” technoscientific visualizations.’

314 In the remainder of this chapter and the three that follow I will be drawing on marginalised, disempowered and oppressed groups to which I do not belong.70 If the oppressed are not uncomplicated or always “innocent” the researcher is no different but for the fact of their privilege relative to the researched.71 Can I speak for a disempowered group to which I do not belong?72 I am a white heterosexual middle class male. Although I have not always enjoyed the privilege of class, and I daily resent the imposition of patriarchal normativity and violence, and regard sexism, racism, homophobia, economic exploitation and hierarchy abhorrent, I remain privileged relative to those disempowered, marginalised and oppressed in those ways.73 Put another way Marxism and post-positivism tell me that my privileged social location limits the way I see the world. More importantly I recognise and accept the criticism made by some scholars belonging to particular marginalised groups directed at other scholars who without “belonging” to their group purport to

70 S. Harding & K. Norberg, “New Feminist Approaches to Social Science Methodologies: An Introduction” (2005) 30(4) Signs 2009, 2012: ‘… the researcher and the researched usually bring different amounts and kinds of social power (class, race, gender, ethnicity, urban or rural backgrounds, etc.) to the research situation. [And] research processes themselves produce power differences in terms of who defines the research project…’. 71 D. Haraway, “Situated Knowledges: The Science Question in Feminism and the Privilege of Partial Perspective” (1988) 14(3) Feminist Studies 575, 576 72 In writing about transgender people as a non-transgender bisexual lesbian academic, Heyes declares her privileged standpoint noting the inherent risks of “orientalism” a term borrowed from Edward Said (1987, 3.) meaning ‘a Western style for dominating, restructuring, and having authority over the Orient’, in C. J. Heyes, “Feminist Solidarity after Queer Theory: The Case of Transgender” (2003) 28(4) Signs 1093, 1096. 73 I would also declare my concerns about anthropocentrism in terms of environmental issues and the lack of appropriate accountability and responsibility for animals. As a child I was class-conscious due to my family background among Left politicians and unionists. As I grew older I quickly became conscious of many other forms of hierarchy and oppression and began to wonder why they were often treated as separate concerns. It is only as an adult that I have had the privilege of discovering a language (through, Marxism, feminism, post-positivism and standpoint theory) to articulate the intersection between all forms of oppression and hierarchy. We are all intellectually myopic to some extent, but what I find extremely hypocritical is the inability of people to see other forms of oppression and hierarchy other than those forms they are conscious of or choose to recognise.

315 speak for, or represent their groups’ viewpoint.74 There is a vast difference between living an oppressed or disempowered life and empathising with the narratives of oppressed and disempowered people for the purposes of critiquing privileged, empowered and oppressive groups, structures, ideas and theories. 75 Walters raises this issue in her analysis of the postmodern inspired “queer theory” pointing to heterosexual academics writing under the banner of queer theory, and Moreton- Robinson points to the misappropriation of Indigenous voices by privileged white anthropologists.76 I agree with their arguments. However, the “flip-side” of this view is that if pursued to the fullest extent it would play into the hands of oppressors who would be more than happy to silence other privileged people who draw on empathy to

74 See in particular S. Danuta Walters, “From Here to Queer: Radical Feminism, Postmodernism, and the Lesbian Menace (Or, why Can’t a Woman Be More Like a Fag?)” (1996) 21(4) Signs 830; and A. Moreton-Robinson, Talkin’ Up to the White Woman: Indigenous Women and Feminism in Australia, PhD Dissertation, School of Humanities, Griffith University, Nathan, 1998. 75 S. Danuta Walters, “From Here to Queer: Radical Feminism, Postmodernism, and the Lesbian Menace (Or, why Can’t a Woman Be More Like a Fag?)” (1996) 21(4) Signs 830, 841: ‘The straight white married man at my university who says he "does" queer theory in his English classes is in a structurally different place than I am. Does this perhaps have some relevance? Should he not speak to this in some way? It is not to say that I (as a lesbian) can speak the "truth" of lesbian life more than he can; it is to say that this difference needs to be acknowledged and reckoned with in the course of academic life. This means not only being explicit about the different risks implied in our positions but also acknowledging the different ways we know and present this knowledge and the effects that may have on our students. I know it is hopelessly retro to speak of structure these days, to insist that material conditions actually do impose real, felt, and experienced limits on our lives in radically different ways. My straight colleague may or may not be well intentioned. But, while this does matter, it is not at all clear that his good intentions alter his power to speak and my relative powerlessness. I suspect that these concerns about the politics of experience get lost in the radical disassociation of identity from embodied practices. This is not to say that oppression is the mark of truth or authenticity but that, given the hierarchies of power in academia, we cannot afford to lose sight of “from where we speak”.’ 76 S. Danuta Walters, “From Here to Queer: Radical Feminism, Postmodernism, and the Lesbian Menace (Or, why Can’t a Woman Be More Like a Fag?)” (1996) 21(4) Signs 830, 840; and A. Moreton-Robinson, Talkin’ Up to the White Woman: Indigenous Women and Feminism in Australia, PhD Dissertation, School of Humanities, Griffith University, Nathan, 1998, 58 – 60 & 214. At 58 – 60, Moreton-Robinson outlines the “Bell-Huggins Debate” in which anthropologist Professor Diane Bell wrote about intra Indigenous rape purporting to have the authority for this from her Indigenous friend Topsy Napurrula Nelson.

316 critique their power on behalf of disempowered people.77 Furthermore, once empathy is ruled out there is no hope. 78 But where the critic does not belong to the disempowered group they draw upon for their critique, they are always responsible and accountable to them.79 A privileged voice, no matter how well intentioned, lacking the lived experience of disempowered people, risks perpetuating or exacerbating asymmetrical power relations just as white feminist anthropologists had done when “speaking” for Indigenous women.80 Therefore, the critic of dominant power structures must acknowledge their own privilege, recognise that they are accountable and responsible for their work to the disempowered, and must speak by quoting and paraphrasing the narratives of disempowered groups, bearing in mind that the final arbiter is always the disempowered group concerned, or other well-intentioned folk who might be misled by the status or rhetoric of the critic. To expect more than this would render critical scholarship impractical but for the rare occasions when disempowered people are able to speak for themselves.81 To do less than this is to participate in disempowerment, or

77 S. Harding & K. Norberg, “New Feminist Approaches to Social Science Methodologies: An Introduction” (2005) 30(4) Signs 2009, 2012 – 2013: ‘By designing projects in which they can transform the conceptual frameworks of the disciplines that service powerful social institutions, or projects in which they can directly affect social policy, researchers can use their distinctive powers on behalf of disadvantaged groups. Standpoint methodologies have been perceived [at 2013] as one way that research projects can turn disadvantaged social positions into powerful intellectual and political resources.’ 78 J. Sprague, “Comment on Walby’s ‘Against Epistemological Chasms: The Science Question in Feminism Revisited’: Structured Knowledge and strategic Methodology” (2001) 26(2) Signs 527, 530: ‘Donna Haraway describes the human ability to be empathetic, to listen to and imaginatively put oneself in the position of another, as a key bridging mechanism.’ 79 D. Haraway, “Situated Knowledges: The Science Question in Feminism and the Privilege of Partial Perspective” (1988) 14(3) Feminist Studies 575, 585: ‘… one cannot relocate in any possible vantage point without being accountable for that movement. Vision is always a question of the power to see - and perhaps of the violence implicit in our visualizing practices.’ 80 A. Moreton-Robinson, Talkin’ Up to the White Woman: Indigenous Women and Feminism in Australia, PhD Dissertation, School of Humanities, Griffith University, Nathan, 1998, 58 – 60. 81 S. Danuta Walters, “From Here to Queer: Radical Feminism, Postmodernism, and the Lesbian Menace (Or, why Can’t a Woman Be More Like a Fag?)” (1996) 21(4) Signs 830, 840 – 841: ‘I do not want to be claiming a sort of essentialist (god forbid!) idea that insists one must be something in order

317 in the worst cases, oppression.82 Standpoint theory has the advantage of avoiding what Walters identifies as the ability of scholars to simply adopt a standpoint for the convenience of publishing their work in a climate of publish or perish on the proviso that they are ultimately accountable and responsible to the disempowered.83 At the same time it provides an opportunity for transforming the conditions and structures maintaining injustice.84

Naturalisation and reification of nuclear families

In approaching this critique of western familial ideology, a predominately Marxist feminist standpoint is adopted given that western family structures are inextricably bound to capitalist society. However, where necessary other feminist standpoints are drawn upon recognising that western family and marriage norms affect women in different ways.85 As a starting point families are no more biologically determined (“natural”) than gender and sexuality. In Chapter 4 it was asserted that gender and

to teach it. Clearly, nongay scholars must [at 841] teach gay “subjects,” as male professors must teach about women and whites must teach about people of color.’ 82 J. Sprague, “Comment on Walby’s ‘Against Epistemological Chasms: The Science Question in Feminism Revisited’: Structured Knowledge and strategic Methodology” (2001) 26(2) Signs 527, 534: ‘Standpoint theory, as I interpret it, identifies the authority of our experience as scholars and calls us to take responsibility for how we exercise the social power that we have. Rejecting our own authority is, from this perspective, intellectually irresponsible, as well as politically naive.’ 83 S. Danuta Walters, “From Here to Queer: Radical Feminism, Postmodernism, and the Lesbian Menace (Or, why Can’t a Woman Be More Like a Fag?)” (1996) 21(4) Signs 830, 840 – 841: ‘But the thorny issues of authenticity, experience, and co-optation are not resolved by an assertion that no identity is real. Are we really to evacuate the centrality of experience for the vacuousness of positionality (positionality as indicating the always provisional and temporal nature of political location and action)? While compelling and suggestive, I fear that the concept of positionality tends toward a voluntarism that ignores the multiple, felt, structural determinations on people's everyday existence.’ 84 D. Haraway, “Situated Knowledges: The Science Question in Feminism and the Privilege of Partial Perspective” (1988) 14(3) Feminist Studies 575, 586: ‘… to see together without claiming to be another. Here is the promise of objectivity: a scientific knower seeks the subject position, not of identity, but of objectivity, that is, partial connection.’ 85 Other feminisms are also drawn upon variously as the footnotes indicate.

318 sexuality (not to be confused with anatomical sex86) are historically and socially constructed.87 Of course there are some biological elements to gender and sexuality that should not be overstated.88 But biology has even less to do with a western patriarchal heterosexist nuclear family structure89 and its marriage norms. Yet, proponents of this hierarchical and oppressive patriarchal heterosexist family structure make the claim that human gender, sexuality, marriage, and family structure are biologically determined.90 This is a sociobiological story. To the extent that there is some grain of truth to this assertion, and the evidence points strongly the other way,

86 Anatomical sex is also partly socially constructed because scientists categorise according to their culture. So for example western scientists project their anthropocentric beliefs about human anatomical sex onto flora and fauna in terms of a male/female binary while in other cultures anatomical sex is multiple rather than binary. As Epstein & Straub explain: ‘Even the supposedly empirical category of biological sex is disturbingly (or exhilaratingly) labile, as its chromosomal, gonadal, and secondary determinants may contest with each other’, in J. Epstein & K. Straub (eds.) Body Guards: The Cultural Politics of Gender Ambiguity, J. Epstein & K. Straub (eds), Routledge, New York, 1991, 3. Binary anatomical categorisation misrepresents nature given that inter-sex is more common in nature than western scientists appreciate: see further B. Spanier, ‘“Lessons” from “Nature”: Gender Ideology and Sexual Ambiguity in Biology’ in Body Guards: The Cultural Politics of Gender Ambiguity, J. Epstein & K. Straub (eds), Routledge, New York, 1991, 329 – 350. 87 See Chapter 4 and generally: J. Epstein & K. Straub (eds.) Body Guards: The Cultural Politics of Gender Ambiguity, J. Epstein & K. Straub (eds), Routledge, New York, 1991; B. Faust, Apprenticeship in Liberty: Sex, Feminism and Sociobiology, Angus and Robertson, Sydney, 1991; A. Fausto-Sterling, Myths of Gender: Biological Theories About Women and Men, Basic Books, New York, 1985; and R. Hubbard, M. Henifin & B. Fried (eds), Biological Woman - The Convenient Myth: A Collection of Feminist Essays and a Comprehensive Bibliography, Schenkman Publishing Co, Cambridge (Mass), 1982. 88 J.Epstein & K. Straub, “Introduction: The Guarded Body” in Body Guards: Cultural Politics of Gender Ambiguity, J. Epstein & K. Straub (eds), Routledge, New York, 1991, 2: ‘… distinctions between male and female bodies are mapped by cultural politics onto an only apparently clear biological foundation. As a consequence, sex/gender systems are always unstable sociocultural constructions. Their very instability explains the cultural importance of these systems: their purpose is to delimit and contain the threatening absence of boundaries between human bodies and among bodily acts that would otherwise explode the organizational and institutional structures of social ideologies.’ 89 Hereinafter shortened for convenience to “patriarchal heterosexist family”. 90 For example: J. Roback Morse, “Marriage and the Limits of Contract” (2005) April/May (No 130) Policy Review 59; and M. Ridley, The Red Queen: Sex & the Evolution of Human Nature, Penguin Books, Ringwood, Victoria, 2000.

319 Firestone dismisses the relevance of biology as a determinative factor in the lived experiences of men and women in families given that science, technology and social practices have opened up new reproductive possibilities.91 The problem for women from Firestone’s perspective is not that biology structures the lives of women, but rather their lack of input and control over the institutions governing their bodies and lives such as reproductive technologies and child rearing.92 Other scholars add that women are also subordinated by the centrality of the gender division of labour to capitalist society, the myriad of laws, policies, institutions, incentives (e.g. tax and welfare) aimed at maintaining a patriarchal heterosexist family structure, which in turn maintains and reproduces the capitalist system.93 In other words hierarchy and oppression based on gender and sexuality persist due to a combination of social, economic, legal, and ideological factors and cannot be explained by biology.94 Clearly, to the extent biology (more precisely, gestation and

91 S. Firestone, The Dialectic of Sex: The case for Feminist Revolution, Granada Publishing, London, 1972. 92 S. Firestone, The Dialectic of Sex: The case for Feminist Revolution, Granada Publishing, London, 1972, 52. Even if a woman is educated and in employment she remains in an inferior position to that of men in terms of pay and housework etc. Within the family structure the power of the patriarch is dominant even though significant changes in family and social practices have taken place the basic power structure has been relatively static: ‘It is important to remember that more recent versions of the nuclear family, though they may blur this essential relationship beyond recognition, reproduce essentially the same triangle of dependencies: father, mother, son’. Like Firestone, Mitchell sees the family and its ideologies as an important cause of the subordination of women in J. Mitchell, Woman’s Estate, Pantheon Books, New York, 1971, 14. 93 S. Boyd, “Expanding the ‘Family’ in Family Law: Recent Ontario Proposals on Same Sex Relationships” (1994) 7 Canadian Journal of Women and Law 545, 555; and D. Haraway, Simians, Cyborgs, and Women: The Reinvention of Nature, Routledge, New York, 1991, 167; and see also S. Berns, Women Going Backwards: Law and change in a family unfriendly society, Ashgate, Hampshire, 2002, 13; S. Berns, “Musings on the Legal Scene: Law, Populism and the Politics of Ressentiment” (2006) 25 A. Feminist L.J. 19 – 40, generally; and R. Hunter, “Decades of Panic” (2005) Griffith Review 10th ed on “Family Politics”, Summer, pp. 1 – 11, generally. 94 S. Gavigan, “Paradise Lost Paradox Revisited: The Implications of Familial Ideology for Feminist, Lesbian, and Gay Engagement to Law” (1993) 31 Osgoode Hall Law Journal 589, 598 & 600. Other factors structuring relations have been (and continue to be) “direct regulation” (often through minimum wage laws and welfare law which have both been essential elements of a hierarchal division of labour a central plank of capitalist “labour markets”) and also child protection laws.

320 breast-feeding) ever did structure gender and sexuality, it no longer “necessarily” does so, and instead socially constructed hierarchies based on gender and sexuality continue to be justified by ideas about biology.95 The patriarchal heterosexist family unit is held out to be a naturally occurring universal institution when it is anything but that.96 This is what is known in the parlance of the theory of ideology as “naturalisation”. A key form of naturalising ideology is “reification”.97 Reification is an ideological process whereby something created by human action is treated instead as a product of nature – it becomes so “normal” it is said to take on a life of its own appearing to be something else.98 The significance of reification of the patriarchal heterosexist family cannot be over- emphasised. The pervasiveness and ubiquity of the assertion that the hetero- patriarchal-nuclear family is a naturally occurring institution has many sources

95 It is important to recognise the deficiency in Firestone’s thesis that human biology alone cannot explain the historical subordination of women nor homophobia – see further D. Thompson, Reading between the lines: A lesbian feminist critique of feminist accounts of sexuality, The Gorgon’s Head Press, Sydney, 1991, 67 – 79. 96 M. Sahlins, The Use and Abuse of Biology: An Anthropological Critique of Sociobiology, University of Michigan Press, Michigan, 1976, 28 – 40. Sahlins has conducted numerous studies into family structures across cultures and found extreme diversity. Rarely are families constructed on a hetero- nuclear structure. Instead Sahlins chronicles the kinship relations in (1) the To’ambaita people of the Solomon Islands, (2) the Kuma and Daribi people of the New Guinea Highlands, (3) the Nuer of the Sudan, (4) the Fijian Islands, and (5) the Trobriand Islands. At 40: ‘The ethnographic facts are that the members of the kinship groups which organize human reproduction are more closely related genealogically to persons outside the group than to certain others within. … and in any case it is the group which reproduces itself as a social unit, reproductive benefits are often accorded to persons unrelated genetically – who may easily be one’s own children [adopted or culturally construed as “their” children].’ 97 A. Giddens, Central Problems in Social Theory: Action, Structure, and Contradiction in Social Analysis, MacMillan, London, 1979, 194 – 196. For Giddens, at 195, the ‘principle mode’ of naturalising social relations as ‘fixed’ and or ‘immutable’ is that of reification, and ‘reification is a phenomenon which thoroughly permeates the taken-for-granted assumptions of lived experience, as well as one that is a pervasive characteristic of intellectual discourse’. 98 See Chapter 6 and G. Lukacs, History and Class Consciousness: Studies in Marxist Dialectics, Translated by R. Livingstone, Merlin Press, London, 1971, 83 and further forward.

321 ranging from men’s rights groups, right-wing political groups,99 the Christian Right and conservative politicians to “centre left” and “Third way” politicians to mass media and scholarly sources.100 So for example, Roback Morse claims marriage is ‘a society’s normative institution for both sexual activity and the rearing of children’.101 According to her, heterosexual marriage is a normative institution in the sense that it occupies a ‘pride of place’ in deeming the primary functions of marriage to facilitate childrearing and the natural attraction between people of the opposite sex.102 Even the shallowest rhetorical reading of the Roback Morse story reveals her anxiety about welfare costs, her preference for Adam Smith’s market theories, and a desire for Malthusian welfare.103 Her argument is a defence of policies prevailing since they were introduced into Australia, Canada, England and the United States during the 1980s as part of the New Right’s political strategy to make the traditional family a vital link between moral principles and cultural life on the one side, and market

99 What I mean by right-wing politics is that all too familiar comfortable ‘belief in “essentials” such as compulsory heterosexuality, white and first-world supremacy, and male dominance’: J.Epstein & K. Straub, “Introduction: The Guarded Body” in Body Guards: Cultural Politics of Gender Ambiguity, J. Epstein & K. Straub (eds), Routledge, New York, 1991, 9. 100 For example, Bradley points to the influence of Thatcher’s policies in Britain in D. Bradley, “Comparative Law, Family Law and Common Law” (2003) 23(1) Oxford Journal of Legal Studies 127, at 143: quoting Cleary v Cleary [1974] 1 All ER 498 (CA) and M. Thatcher, The Downing Street Years, Harper Collins, London, 1993, 5-8 & 628-30; S. Berns, “Musings on the Legal Scene: Law, Populism and the Politics of Ressentiment” (2006) 25 A. Feminist L.J. 19 – 40. Also Zubrzycki has argued that it is ‘the primary functioning agency designed by nature to care for the young, the sick, and the old’ in J. Zubrzycki, “Immigration and the Family in a multicultural Australia”, Meredith Memorial Lecture, 1978, La Trobe University, Melbourne, 6, in K. Saunders & R. Evans (eds.), Gender Relations in Australia: Domination and Negotiation, Harcourt Brace Jovanovich, Sydney, 1992, 91. And Rhode also notes the ubiquity of sociobiological arguments to justify repressive traditional family values. D. L. Rhode, Speaking of Sex: The Denial of Gender Inequality, Harvard University Press, Cambridge, 1997, 24. 101 J. Roback Morse, “Marriage and the Limits of Contract” (2005) April/May (No 130) Policy Review 59, 59. 102 J. Roback Morse, “Marriage and the Limits of Contract” (2005) April/May (No 130) Policy Review 59, 59 – 60. 103 J. Roback Morse, “Marriage and the Limits of Contract” (2005) April/May (No 130) Policy Review 59, 61, 63 – 70.

322 principles and economic life on the other.104 Since then the welfare state has been steadily privatised increasing the burden of “family” responsibilities on women.105 In addition, workplace conditions and protections have been scaled back, and at the same time “family payments” are paid to those families that fit patriarchal heterosexist norms, while those that don’t either get no financial relief or are stigmatised as “welfare dependent”.106 Consequently, already privileged white heterosexual families benefit directly from this legally constructed “family” through generous economic, taxation and welfare policies ensuring that hierarchy and oppression extend beyond the household into all other areas of life.107 Research proves that laws operate to

104 D. Bradley, “Comparative Law, Family Law and Common Law” (2003) 23(1) Oxford Journal of Legal Studies 127, at 143; and J. Millbank, “Which, then, would be the ‘husband’ and which the ‘wife’?: Some Introductory Thoughts on Contesting ‘the family’ in Court” (1996) 3 Murdoch University Electronic Journal of Law 1 – 11. 105 Referred to by Boyd as ‘privatising the economic responsibility for dependent persons’ in S. Boyd, “Expanding the ‘Family’ in Family Law: Recent Ontario Proposals on Same Sex Relationships” (1994) 7 Canadian Journal of Women and Law 545, 548. Marcus comments: ‘that social theorists and historians of modernity have charted how capitalism relegates feeling to the private sphere of family life and assigns “affective” labour to women, particularly mothers’ in S. Marcus, “Queer Theory for Everyone: A review Essay” (2005) 31(1) Signs 191, 207. As to the gradual privatisation of responsibility for welfare see further S. Berns, “Musings on the Legal Scene: Law, Populism and the Politics of Ressentiment” (2006) 25 A. Feminist L.J. 19 – 40, 21; S. Berns, Women Going Backwards: Law and change in a family unfriendly society, Ashgate, Hampshire, 2002, generally; R. Hunter, “Decades of Panic” (2005) Griffith Review 10th ed on “Family Politics”, Summer, pp. 1 - 11, 5 & 6; S. Harding & K. Norberg, “New Feminist Approaches to Social Science Methodologies: An Introduction” (2005) 30(4) Signs 2009, 2010; and S. Harding, “Comment on Walby’s ‘Against Epistemological Chasms: The Science Question in Feminism Revisited’: Can Democratic Values and Interests Ever Play a Rationally Justifiable Role in the Evaluation of Scientific Work?’ (2001) 26(2) Signs 511, 518., 106 S. Boyd, “Expanding the ‘Family’ in Family Law: Recent Ontario Proposals on Same Sex Relationships” (1994) 7 Canadian Journal of Women and Law 545, 555. 107 J. Millbank, “Which, then, would be the ‘husband’ and which the ‘wife’?: Some Introductory Thoughts on Contesting ‘the family’ in Court” (1996) 3 Murdoch University Electronic Journal of Law 1 – 11, 2, In systemic terms cases that raise sexuality and gender can be depicted as cases about the meaning of family: ‘Most family claims cases have focused upon statutory definitions of particular words, usually “spouse”, “parent” or, less often, “dependant”. This is because even where statutes or other rules use the term “family” it tends to then be defined by a sub-rule as involving any of the above categories.’; and J. Mathews, Good and Mad Women: The Historical Construction of Femininity in

323 provide material benefits to the middle and upper classes, which tend to be the real beneficiaries of family policies rather than the poor, those marginalised by their sexual orientation, or on the grounds of race.108 Within privileged family forms there is another sinister form of reification – the safe, loving, nurturing, patriarchal heterosexist family. The truth is that this form of family is all too frequently the site of hierarchy and oppression as well as a place of nurturing, sanctuary and love.109 This is clear from the cases discussed in the next chapter and is an incontrovertible fact given the appalling statistics on the incidence of domestic violence and child abuse which tend to occur more in so-called “biological relationships” than in “non-biological” ones.110 Contrary to the urban

Twentieth-Century Australia, St Leonards (NSW), Allen & Unwin, 1984, 28 – 29; and J. Resnik, “Asking about Gender in Courts” (1996) 21(4) Signs 952, 966. 108 S. Boyd, “Expanding the ‘Family’ in Family Law: Recent Ontario Proposals on Same Sex Relationships” (1994) 7 Canadian Journal of Women and Law 545, 555: ‘Critical and feminist work shows that family law operates mainly to the benefit of those who are wealthy, at least in terms of property law, and that support law operates mainly as a mechanism to diminish the burden on the social welfare system. A two-tiered, class-based system of “family” law is thus created. On this analysis, incorporating lesbian and gay partnerships into those laws, by whatever mechanism, does not appear to go far in the direction of social transformation. While it is not right that lesbians and gay men be excluded arbitrarily from any system, adopting family law as a means of regulating our relationships may not constitute a “benefit” or a radical advance when the lives of all lesbians and gay men are taken into account.’ 109 S. Boyd, “What is a ‘Normal’ Family? C v C (A Minor) (Custody: Appeal)” (1992) 55 Modern Law Review 269, 277. This is important because it helps to escape the debate between feminists who have depicted the family as a source of oppression and other feminists who contend that the family has also been a sanctuary from other forms of discrimination, typically race. As Boyd explains, ‘the point is to demonstrate how public policy has privileged one type of family which has predominated in modern western societies. Among other things, this family has been characterised by a rather strict division of labour between women and men, in the home and in the labour market … This same public policy has had a way of diminishing the ability of alternative familial forms, such as same-sex families and black families, to flourish”.’ 110 R. Evans, “A Gun in the Oven: Masculinism and gendered violence” in K. Saunders & R. Evans (eds.), Gender Relations in Australia: Domination and Negotiation, Harcourt Brace Jovanovich, Sydney, 1992, 197 – 218; and S. Hrdy, “The Past, Present, and Future of the Human Family”, The Tanner Lectures on Human Values, delivered at University of Utah, 27 & 28 February 2001, 60: ‘Across cultures and through time, including the modern era when official records began to be kept, precise data on infant neglect, abandonment, and infanticide have always been hard to come by. With

324 myth that it is strangers, homosexuals, or the single mother’s boyfriend who perpetrate familial violence and sexual abuse, it is instead typically a husband or biological male relative responsible for these acts of violence against women and children within family units.111 Therefore it is appropriate to dwell a little on the opposite, less frequently heard argument, that the heterosexist patriarchal nuclear family is not naturally occurring and is instead a non-universal institution constructed according to an historical and socio-economic arrangement – capitalism.112 This less heard view stands in opposition to the reification of the nuclear family and asserts that as historical constructs, western families are a conglomeration of individuals acting ‘according to gender, age, household position, and class – when influenced by social forces, economic circumstances, and political or religious institutions’.113 So, for example, in terms of social forces, the concepts “child” and “adolescence” did not emerge until post-Renaissance Europe invented them.114 Adolescents in pre-capitalist society were not people in transition from childhood to adulthood but apprentices necessary to the

or without exact figures, there is a general consensus that the numbers in the United States have been increasing of late. One indication is the fact that the number of children taken into foster care has doubled since the 1980s.’ Contrary to myth most child abuse (whether sexual or violent) is perpetrated by biological fathers and relatives not step-parents and strangers, per A. Nicholson, “The changing concept of family: the significance of recognition and protection” (1997) 6 Australasian Gay and Lesbian Law Journal 13, 15. As Berns has pointed out this myth is more likely the work of “father’s rights groups” seeking to re-assert their dominance in S. Berns, “Musings on the Legal Scene: Law, Populism and the Politics of Ressentiment” (2006) 25 A. Feminist L.J. 19 – 40, 38. It is significant that this argument was used in Re Patrick to denigrate gay families and this is discussed later, see also F. Kelly, “Redefining Parenthood: Gay and Lesbian Families in the Family Court” (2002) 16 Aust Journal of Family Law 1, 11. 111 A. Nicholson, “The changing concept of family: the significance of recognition and protection” (1997) 6 Australasian Gay and Lesbian Law Journal 13, 15. 112 S. Firestone, The Dialectic of Sex: The case for Feminist Revolution, Granada Publishing, London, 1972, 73 and further forward; and M. Sahlins, The Use and Abuse of Biology: An Anthropological Critique of Sociobiology, University of Michigan Press, Michigan, 1976, 28 – 40. 113 M. Kowaleski, “The history of urban families in medieval England” (1988) 14(1) Journal of Medieval History 47, 49. 114 S. Firestone, The Dialectic of Sex: The case for Feminist Revolution, Granada Publishing, London, 1972, 79.

325 cottage industry mode of production.115 There was no vocabulary to distinguish children from adults and there was no special clothing for them either.116 Nor was there any notion of childhood because children were instead considered as miniature adults.117 The only social difference was based on economic dependence such that children were servants and all adults commenced life as a servant.118 Most important of all was that there was no special bond between parent and child as that is understood today.119 Furthermore, marriage within common law jurisdictions was never “spontaneous” or naturally occurring120 since at least the feudal era.121 Under feudalism marriage was

115 M. Kowaleski, “The history of urban families in medieval England” (1988) 14(1) Journal of Medieval History 47, 54. 116 S. Firestone, The Dialectic of Sex: The case for Feminist Revolution, Granada Publishing, London, 1972, 77. 117 S. Firestone, The Dialectic of Sex: The case for Feminist Revolution, Granada Publishing, London, 1972, 77. 118 S. Firestone, The Dialectic of Sex: The case for Feminist Revolution, Granada Publishing, London, 1972, 77: ‘The child was just another member of the large patriarchal household, not even essential to family life. In every family the child was wet-nursed by a stranger, and thereafter sent to another home (from about the age of seven until fourteen to eighteen) to serve an apprenticeship to a master – as I have mentioned, usually composed of or including domestic service.’ 119 S. Hrdy, “The Past, Present, and Future of the Human Family”, The Tanner Lectures on Human Values, delivered at University of Utah, 27 & 28 February 2001, pp. 1 – 54; S. Firestone, The Dialectic of Sex: The case for Feminist Revolution, Granada Publishing, London, 1972, 78: ‘… a child’s dependence on, or even contact with, any specific parent was limited; when a relationship did develop it might better be described as avuncular. … children were never segregated off into special quarters, schools, or activities. Since the aim was to ready the child for adulthood as soon as possible, it was felt quite reasonably that such a segregation would delay or stymie an adult perspective.’ 120 Roback Morse refers to Hayek’s notion of “spontaneous order” hoping that it may lend some credibility to her claim that marriage and nuclear families are natural and spontaneous institutions in J. Roback Morse, “Marriage and the Limits of Contract” (2005) April/May (No 130) Policy Review 59, 66 – 67. 121 P. Butt, Land Law, 4th ed., Law Book Company, Pyrmont (NSW), 2001, 62: ‘… the Lord had the right to control the marriage of tenants he had in wardship. The only limitations on this right were that no marriage could be forced on an unwilling ward, and the marriage proposed by the lord could not be disparaging to infant heir’s status. Otherwise though, if the ward refused a suitable spouse, the lord was entitled to a sum of money equivalent to the value of the marriage; and if the ward married without the Lord’s consent, the penalty was double this value. In concept, the incidents of wardship and marriage

326 predominately, but not entirely, at the behest of the lord of the manor.122 Feudal marriage, as it is under capitalism, was as much an arrangement concerned with political economy as it was child-rearing, sexuality, or “romantics”.123 As feudal society was dismantled by revolution, war, class struggle, the demands of bourgeois production, and legal change, marriage became associated more with the needs of capital than specific patriarchs.124 This direct relationship with capital and the mode of production continues until the present day albeit with greater capacity for personal marriage choice than in earlier periods.125 Still, marriage has historically been a vehicle for the control of people rather than an institution for the expression of their love.126

were easy enough to justify, for the lord had a real interest in seeing that the infant tenant was properly educated and suitably married. In time, however, this justification was lost, and both wardship and marriage became commodities which the lord could sell on the open market to the highest bidder at a price dependent on the heir’s wealth. By the 13th century, traffic in wardships was considerable.’ 122 A.L. Klinck, “Anglo-Saxon women and the law” (1982) 8(2) Journal of Medieval History 107, 115. 123 S. Sheridan Walker, “Free consent and marriage of feudal wards in medieval England” (1982) 8(2) Journal of Medieval History 123. 124 The evolution of family laws in developed countries has been linked to changes in social and economic structure, per D. Bradley, (1999) 6 Maastricht Journal of European and Comparative Law 127-150, citing: Willekens, ‘Explaining Two Hundred Years of Family Law in Western Europe’, in H Willekens (ed.), Het gezinsrecht in de sociale wetenschappen, (Vuga uitgeverij B.V, 1997), 59. 125 H.H. Kay, "Private Choices and Public Policy: Confronting the Limitations of Marriage" (1991) 5 Aust J Fam L 69, at 71. 126 G.A. Carmichael, “So many children: Colonial and post-colonial demographic patterns” in K. Saunders & R. Evans (eds.), Gender Relations in Australia: Domination and Negotiation, Harcourt Brace Jovanovich, Sydney, 1992, 118: ‘early colonial administrators took a considerable interest in marriage, appreciating its potential for promoting stability.’ M. Jebb & A. Haebich, “Across the Great Divide: Gender relations on Australian frontiers” in K. Saunders & R. Evans (eds.), Gender Relations in Australia: Domination and Negotiation, Harcourt Brace Jovanovich, Sydney, 1992, 34 – 40. Jebb & Haebich explain that Indigenous Australian women were heavily regulated in terms of who they could marry and that such regulation was concerned with economic development and keeping colonial control over Indigenous people. J. Mitchell, Woman’s Estate, Pantheon Books, New York, 1971, 14: ‘What is the universal or general area which defines her oppression? The family and the psychology of femininity are clearly crucial here. However, inegalitarian her situation at work (and it is invariably so) it is within the development of her feminine psyche and her ideological and socio-economic role as mother and housekeeper that woman finds the oppression that is hers alone. As this defines her, so any movement for her liberation must analyse and change this position.’

327 Like the construction of children and marriage, the nuclear family emerged with the structural shift from feudalism to capitalism.127 They were necessary incidents of each other.128 As late as the Middle Ages, there was still no concept of the “family” as it is known today, and it didn’t begin to emerge until after the 14th century: Until then one’s “family” meant primarily one’s legal heredity line, the emphasis on blood ancestry rather than the conjugal unit.129 During the Middle Ages social structures were vastly different to contemporary society because families didn’t live in homes as we know them today and instead large numbers of people related and unrelated resided within a domicile.130 Two factors, one material the other ideological, led to the change from this family structure to the modern nuclear family structure.131 The material factor was the change from feudalism to capitalism, and the ideological factor was the associated rise of bourgeoisie and empirical science after the 14th century, and within the sciences the notion of childhood developed.132 These structural and ideological factors had a

127 My point is that they are necessary to each other – they are dialectical. 128 S. Firestone, The Dialectic of Sex: The case for Feminist Revolution, Granada Publishing, London, 1972, 73. Firestone contends that the “cult of childhood” was a social construct of the patriarchal nuclear family and therefore to understand the ideology of “childhood” it is necessary to appreciate the historical construction of the patriarchal family. 129 S. Firestone, The Dialectic of Sex: The case for Feminist Revolution, Granada Publishing, London, 1972, 75. 130 S. Firestone, The Dialectic of Sex: The case for Feminist Revolution, Granada Publishing, London, 1972, 76: ‘… life did not take place inside a “home”. For at that time there was no retreat into one’s private “primary group”. The family group was composed of large numbers of people in a constant state of flux and, on the estates of noblemen, whole crowds of servants, vassals, musicians, people of every class as well as a good many animals, in the ancient patriarchal household tradition.’ 131 For a critical and historical reading of the ideology of family see further: M. Foucault, The History of Sexuality, Volume 1: An Introduction, R. Hurley (Trans), Penguin Books, London, 1979, Part 4, Chapter 3, “Domain”, pp. 103 and further forward. In terms of ancient Greek families: M. Foucault, The History of Sexuality, Volume 2: The Use of Pleasure, R. Hurley (Trans), Penguin Books, London, 1985, Part 3, Chapter 1, “The Wisdom of Marriage”, pp. 143 and further forward. 132 S. Firestone, The Dialectic of Sex: The case for Feminist Revolution, Granada Publishing, London, 1972, 78: ‘After the 14th Century, with the development of the bourgeoisie and empirical science, this situation slowly began to evolve. The concept of childhood developed as an adjunct to the modern family. A vocabulary to describe children and childhood was articulated and another vocabulary was built for addressing children: “childrenese” became fashionable in the 17th Century.’

328 notable impact by the end of the 16th century when children’s clothing started to emerge.133 This was followed in the 17th century by the arrival of dedicated children’s toys and games (instead of miniature adult items).134 The 17th century also marked a period when women and children began to be glorified in art as a result of the broader material and ideological changes: Rousseau among others developed an ideology of “childhood”. Much was made of children’s purity and innocence. People began to worry about their exposure to vice. Respect for children, as for women, unknown before the sixteenth century, when they were still part of a larger society, became necessary now that they formed a clear-cut oppressed group. … The new bourgeois family, child-centred, entailed a constant supervision; all earlier independence was abolished.135 With the rise of industrial capitalism (and with it mass production and the need for a disciplined labour force) came the next major development in the modern notion of childhood: the “school”. Prior to this time the school served two purposes.136 It was predominately an institution for the reproduction of elites, but it was also a place of discipline.137 Later, due to the needs of capital the emphasis of the school system

133 S. Firestone, The Dialectic of Sex: The case for Feminist Revolution, Granada Publishing, London, 1972, 79: ‘The first children’s costumes appeared at the end of the sixteenth century, an important date in the formation of the concept of childhood.’ 134 S. Firestone, The Dialectic of Sex: The case for Feminist Revolution, Granada Publishing, London, 1972, 78 – 79. 135 S. Firestone, The Dialectic of Sex: The case for Feminist Revolution, Granada Publishing, London, 1972, 79. 136 L. Althusser, Lenin and Philosophy and Other Essays, translated by B. Brewster, Monthly Review Press, London, 1971, 151: ‘In the pre-capitalist historical period which I have examined extremely broadly, it is absolutely clear that there was one dominant Ideological state apparatus, the Church, which concentrated within it not only religious functions, but also educational ones, and a large proportion of the functions of communications and “culture”. It is no accident that all ideological struggle, from the sixteenth to the eighteenth century, starting with the first shocks of the reformation, was concentrated in an anti-clerical and anti-religious struggle; rather this is a function precisely of the dominant position of the religious ideological State apparatus.’ 137 S. Firestone, The Dialectic of Sex: The case for Feminist Revolution, Granada Publishing, London, 1972, 82: ‘… discipline was an instrument of moral and spiritual improvement, adapted less for its efficiency in directing large groups to work in common than for its intrinsic moral and ascetic value. That is, repression itself was adopted as a spiritual value.’

329 shifted to the need for efficiency.138 The need for efficiency had two elements. There was a need to “mind” the children in large numbers freeing adults for production and a need to prepare the children for production.139 Consequently: … with the onset of the child-centred nuclear family, an institution became necessary to structure a “childhood” that would keep children under the jurisdiction of parents as long as possible. Schools multiplied, replacing scholarship and a practical apprenticeship with a theoretical education, the function of which was to “discipline” children rather than to impart learning for its own sake. Thus it is no surprise that modern schooling retards development rather than escalating it. By sequestering children away from the adult world – adults are, after all, simply larger children with worldly experience – and by [at 85] artificially subjecting them to an adult/child ratio of one to twenty-plus, how could the final effect be other than a levelling of the group to a median (mediocre) intelligence?140 True to the patriarchal structure around it schooling also embodied rigid class hierarchies as well as a reward system that emphasised credentials rather than deep learning such that ‘his learning motivation became outer-directed and approval- conscious, a sure killer of originality’.141 This meant that children:

138 This shift reflects the fact that science is the new dominant ideology (with its hallmarks of objectivity and political neutrality) over-riding the previous ideology of the Church. As Althusser explains: ‘Naturally, these things did not happen automatically … the long class struggle between the landed aristocracy and the industrial bourgeoisie throughout the nineteenth century for the establishment of bourgeoisie hegemony over the functions formerly fulfilled by the Church: above all by the Schools. It can be said that the bourgeoisie relied on the new political, parliamentary- democratic, ideological State apparatus … in order to conduct its struggle against the Church and wrest its ideological functions away from it, in other words, to ensure not only its own political hegemony indispensable to the reproduction of capitalist relations of production.’ Per L. Althusser, Lenin and Philosophy and Other Essays, translated by B. Brewster, Monthly Review Press, London, 1971, 152. 139 S. Firestone, The Dialectic of Sex: The case for Feminist Revolution, Granada Publishing, London, 1972, 81 – 85. 140 S. Firestone, The Dialectic of Sex: The case for Feminist Revolution, Granada Publishing, London, 1972, 84 – 85. 141 S. Firestone, The Dialectic of Sex: The case for Feminist Revolution, Granada Publishing, London, 1972, 85.

330 … were now a clear-cut class with its own internal rankings, encouraging competition: the “biggest guy on the block”, the “brainiest guy in school”, etc. Children were forced to think in hierarchical terms, all measured by the supreme “When I grow up …” In this the growth of the school reflected the outside world which was becoming increasingly segregated according to age and class.142 Importantly, childhood was a necessary corollary to the need for a longer and better trained workforce as well as a means to free adults for their role as labourers.143 Therefore, it is apparent that contemporary conceptions of childhood, marriage, and family arose relatively recently in western thought and were a product of various economic, social and cultural factors. It should be clear then that the heterosexist patriarchal family is not naturally occurring but is instead a necessary corollary to our hierarchical and oppressive society. It is maintained by a complex array of dull compulsion, laws, customs, traditions, and ideology. An ideology that is inherently biological and ahistorical, an ideology that works by naturalising and reifying an institution that is so dependent upon a labyrinth of law that this is virtually invisible to all but those who bother to look: The amount of legal architecture that has gone into building the ideal family and supporting heterosexuality is staggering – hundreds of pieces of legislation, thousands of regulations, rules, by-laws and judicial decisions. This plethora of

142 S. Firestone, The Dialectic of Sex: The case for Feminist Revolution, Granada Publishing, London, 1972, 85. 143 S. Firestone, The Dialectic of Sex: The case for Feminist Revolution, Granada Publishing, London, 1972, 90 – 91: ‘The psuedo-emancipation of children exactly parallels the psuedo-emancipation of women: though we have abolished all the superficial signs of oppression – the distinct and cumbrous clothing, the schoolmaster’s rod – there is no question that the myth of childhood is flourishing in epic proportions, twentieth century style: whole industries are built on the manufacture of special toys, games baby food, breakfast food, children’s books and comic books, candy with child appeal, etc.; market analysts study child psychology in order to develop products that will appeal to children of various ages; there is a publishing, movie, and TV industry built just for them, with its own special literature, programmes and commercials, and even censorship boards to decide just which cultural products are fit for their consumption; there is an endless proliferation of books and magazines inducting the layman in the fine art of child care; there are specialists in child psychology, child education methods, paediatrics, and all the [at 91] special branches of learning that have developed recently to study this peculiar animal.’

331 government activity promotes the idea that there is only one legitimate sexual identity, only one legitimate family form, and thus ensures that all those people living outside these legally and ideologically created norms are constructed as deviant.144 In other words, the normative effect of law makes the unnatural patriarchal heterosexist nuclear family appear normal and universal.145 As Butler points out, ‘juridical power inevitably “produces” what it claims merely to represent’.146 The law then is a key part of this process of reification. The centrality of law to the construction, maintenance, and reproduction of a dominant model of family characterised by patriarchy, heterosexuality, and the need for labour and consumption to serve the needs of global capitalism cannot be denied despite any wavering of traditional forms of patriarchal power.147 Clearly, dominant familial ideology is really the reification of a complex historical process. It is ahistoric and sociobiological, and anything but a naturally occurring natural or spontaneous phenomenon. Furthermore, it is, as will be shown next, an ideology and structure reinforced by judicial discretion justified with sociobiological arguments.148

144 B. Ryder, “Equality Rights and Sexual Orientation: Confronting Heterosexual Family Privilege” (1990) Canadian Journal of Family Law 39, 47, quoted in S. Gavigan, “Paradise Lost Paradox Revisited: The Implications of Familial Ideology for Feminist, Lesbian, and Gay Engagement to Law” (1993) 31 Osgoode Hall Law Journal 589, 610, references omitted. 145 P. Williams, “On Being the Object of Property” (1988) 14 Signs 5, 22. Williams mentions the normative effect of law: ‘In the law, rights are islands of empowerment. To be un-righted is most often the line between dominators and oppressors. Rights contain images of power, and manipulating those images, either visually or linguistically, is central in the making and maintenance of rights.’ 146 J. Butler, Gender Trouble: Feminism and the Subversion of Identity, New York, Routledge, 1990, 2. 147 S. Gavigan, “Paradise Lost Paradox Revisited: The Implications of Familial Ideology for Feminist, Lesbian, and Gay Engagement to Law” (1993) 31 Osgoode Hall Law Journal 589, 597. 148 D. Bradley, “Convergence in Family Law: Mirrors, Transplants and Political Economy” (1999) 6 Maastricht Journal of European and Comparative Law 127-150, citing, Willekens, ‘Explaining Two Hundred Years of Family Law in Western Europe’, in H Willekens (ed.), Het gezinsrecht in de sociale wetenschappen, (Vuga uitgeverij B.V, 1997), 59: ‘The evolution of family laws in developed countries has been linked to changes in social and economic structure.’

332 Gender according to law

Until the 1980s Australian law was strongly influenced by a strict biological approach to gender as a result of the English case of Corbett v Corbett.149 During the late 1980s and early 1990s, Australian tribunals started to move away from a strict biological approach to gender by considering so-called “psycho-social” criteria.150 This shift marked preparedness on the part of Australian tribunals to engage with scholarly literature critiquing the biological determinist approaches taken in Corbett and a handful of other notorious cases.151 However, although courts have sought to avoid biological determinism, by turning to what they see as a psychological/social approach to gender, and this trend is commendable, they remain trapped within a sociobiological paradigm. Celebrated cases such as Re Kevin and Jennifer highlight the ubiquity and pervasiveness of sociobiological reasoning.152 It is argued below that law retains a strong biological determinist (sociobiological) influence in the way it constructs gender and sexuality and in doing so it reaffirms a patriarchal and heterosexist binary conception of gender and sexuality. In this respect Australia is little different to other common law jurisdictions.153

149 Corbett v Corbett [1971] P 83. 150 R v Harris and McGuiness (1988) 17 NSWLR 158; and Secretary, Department of Social Security v SRA (1993) 118 ALR 467. 151 In particular see In the marriage of "C" and "D" (1979) 35 FLR 340. Justice Chisholm in Re Kevin and Jennifer [2001] FamCA 1074, cites many critics of the Corbett decision including, at para 174: ‘Australian experts on family law, too, including Professor Dewar and Henry Finlay, are severely critical.’ Citing in the endnote to this sentence: See eg John Dewar, "Transsexualism and marriage" (1985) 15 Kingston Law Rev 58-76 (Professor Dewar is currently Chairman of the Family Law Council); Henry Finlay's writings on the subject; Margaret Otlowski, "The Legal Status of a Sexually Reassigned Transsexual: R v. Harris and McGuiness and Beyond", (1990) 64 ALJ 67. 152 Re Kevin and Jennifer (validity of marriage of transsexual) [2001] FamCA 1074; 28 Fam LR 158. 153 Sharpe, Transgender Jurisprudence: Dysphoric Bodies of Law, London, Cavendish Publishing, 2002, 3: ‘… in the United Sates, Australia and New Zealand, courts have abandoned chromosomes and birth as the governing moment in determining sex for legal purposes, preferring instead to articulate a test of psychological and anatomical harmony whereby the fact of sex reassignment surgery assumes cardinal importance.’

333 One reason for this failure to escape sociobiological reasoning stems from a misunderstanding of the concept of “social construction”.154 Social construction is the result of feminist work in the area of gender and sexuality critiquing not just the construction of “natural” but the very construction of knowledge itself which was frequently the privilege of white heterosexist men.155 Social construction must be distinguished from the concept of “cultural construction” which reflected the “nurture” view of human nature within the framework of polarised nature/nurture debates.156 Social construction rejects this polarisation altogether because it holds that both “nature” and “nurture”, or “biology” and “culture” are socially constructed: Social construction theory is not simply arguing for cultural causation. In addition, and more importantly, it encourages us to deconstruct and examine the

154 E.M. Miller & C.Y. Costello, “The limits of biological determinism” (2001) 66(4) American Sociological Review 592, 597. 155 C.S. Vance, “Social Construction Theory and Sexulaity” in Constructing Masculinity, M. Berger, B. Wallis, & S. Watson (eds), Routledge, New York, 1995, 37 – 48, at 38: ‘Feminist scholarship and activism undertook the project of rethinking gender in the 1970s, which had a revolutionary impact on notions of what is natural. Feminist efforts focused on a critical review of theories which used reproduction to link gender with sexuality, thereby explaining the inevitability and naturalness of women’s subordination. Historical and cross-cultural evidence undermined the notion that women’s roles, which varied so widely, could be caused by a seemingly uniform human reproduction and sexuality. In light of the diversity of gender roles in human society, it seemed unlikely that they were inevitable or caused by sexuality. The ease with which such theories had become accepted suggested that science was conducted within and mediated by powerful beliefs about gender, and in turn provided ideological support for current social relations. Moreover, this increased sensitivity to the ideological aspects of science led to a wide-ranging inquiry into the historical connection between male dominance, scientific ideology, and the development of Western science and biomedicine.’ 156 C. Vance, “Social Construction Theory and Sexuality” in Constructing Masculinity, M. Berger, B. Wallis, & S. Watson (eds), Routledge, New York, 1995, 37 – 48, 47: ‘In nature/nurture debates, researchers are proposing alternative biological or cultural mechanisms to explain phenomena they observe. At present, most observers agree that human behaviour is produced by a complex interaction of biological and cultural factors; they differ on the relative weight they assign to each. Although it might be appropriate to find some similarity between essentialists and the nature camp, to equate social construction to the nurture camp is mistaken.’

334 behaviour or processes which both nature and nurture camps have reified, and which they want to “explain”.157 This distinction between social construction and “cultural construction” is critical because: Social construction suggests that the object of study deserves at least as much analytic attention as the suspected causal mechanism.158 This goes to the heart of the problem with the more commendable cases such as Re Kevin where the court considered whether a “post-operative female to male transsexual” was a “man” for the purposes of Australian marriage law. There Chisholm J carefully reviewed the literature and critically assessed the reasoning in Corbett, only to fail to appreciate the gravity of the subtle but crucial difference between social construction and cultural construction.159 By remaining trapped within a nature/nurture polarisation the reasoning in Re Kevin clings to patriarchal conceptions of masculinity thereby reifying a hierarchical and oppressive gender regime as natural. Gender is sophisticated and complex and irreducible to

157 C. Vance, “Social Construction Theory and Sexuality” in Constructing Masculinity, M. Berger, B. Wallis, & S. Watson (eds), Routledge, New York, 1995, 37 – 48, 47. 158 C. Vance, “Social Construction Theory and Sexuality” in Constructing Masculinity, M. Berger, B. Wallis, & S. Watson (eds), Routledge, New York, 1995, 37 – 48, 47. 159 In Re Kevin and Jennifer [2001] FamCA 1074, Chisholm J mentions “social construction” in paragraphs 18 & 19 of his judgement and dismisses it as synonymous with suggesting the abolition of gender altogether. He also points out that the case was not pleaded in such a way as to accommodate that sort of argument which was in any case ‘unlikely’. In his words (endnotes omitted): ‘Each party made submissions on the basis that Kevin is either a man or a woman. Some writers point out that in some ways at least, this dichotomy is socially constructed, and can be regarded as part of the problem. Thus one writer refers to “the inadequacy of our society’s two-sex, two-gender system of organising and regulating sexual identity”. From this point of view, it could be argued that the problem of assigning one sex or other to transsexuals is caused in part by social arrangements that require them to be assigned to one category or the other. Thus one writer proposes that we "make one of the fundamental human rights not the answer to the question “Am I a man or a woman”, but the right not to have the question asked at all”. Others would argue that a departure from the two-sex approach is unlikely. … I mention this only to indicate that these issues were not raised in argument and, as will be seen, I do not need to deal with them to resolve this case. There was no submission that any intermediate position is open to me in these proceedings. In these proceedings, I must determine that Kevin is either a man or a woman for the purpose of the marriage law.’

335 fundamental traits - “masculine” or “feminine” behaviours.160 Yet Chisholm J does just that. He provides a history of Kevin that he need not have emphasised given the strength of the other evidence.161 Chisholm J remarked of Kevin’s childhood: Kevin was the oldest of four children … He saw his relationship with them as being that of an older brother. He would physically defend them, at school and elsewhere, after his father had left the family home. He did some of the physical tasks his father had done, such as mowing the lawns and doing household repairs. His mother gave him “boys’ presents” such as footballs and cars, and made boy's clothing for him. Some family photographs are striking: at age 3, with pistols; at age 8, with a soccer ball and trophy. Most remarkable is a photgraph of Kevin aged about 15 or 16, with his sisters. They are wearing pastel coloured dresses and sandals. He is wearing dark trousers and shoes, and what looks like a boy’s shirt. To my eye, despite the shoulder length hair, he looks as much like a boy as a girl.162 And: Kevin describes his adolescence, and the feminisation of his body, as a “time of pain and dread”. He was harassed at times at school because of his male attitude and appearance. He wore a jacket of the type worn by boys, and students mocked him, saying he was a girl, and asking why he dressed like that. Arguments would sometimes develop into fighting, at which he was adept. …163

160 B. Risman, “Calling the Bluff of Value-Free Science” (2001) 66(4) American Sociological Review 605, 607. 161 Re Kevin and Jennifer (validity of marriage of transsexual) [2001] FamCA 1074. The Headnote stated: ‘He was eligible to receive an Australian passport showing his changed name and stating his sex as male. He has been treated as a man for a variety of legal and social purposes, including his employer, Medicare, the Tax Office and other public authorities, banks, and clubs.’ As well as that documentary evidence there was compelling narrative evidence in paragraphs 24 (part of), 27 (part of), 29, 30, 31, 32, 33, 34, 35, 38, and 39, and strong medical/psychiatric evidence in favour of the applicants. The optional value of this evidence is clear from Chisholm J’s introduction to it in paras 23 & 48. 162 Re Kevin and Jennifer (validity of marriage of transsexual) [2001] FamCA 1074, para 26. 163 Re Kevin and Jennifer (validity of marriage of transsexual) [2001] FamCA 1074, para 27.

336 In a similar vein Chisholm J quotes approvingly of relatives, family, colleagues and friends. The relevant quotes have been extracted and quoted at length to show the pattern: [Uncle] From the time he was little Kevin had always, walked, talked, dressed, behaved and had the attitude of a male. Kevin always enjoyed playing sports such as soccer and played male childhood games. I cannot recall ever seeing Kevin playing girls games or behave as a girl… [female cousin] I cannot recall Kevin showing any interest in the type of games or the toys that girls preferred. Kevin always seemed to play with my brother…. rather than to play girls’ games with me…. [male cousin] When I was young Kevin and I used to play footy, soccer and cricket and ride BMX bikes on family outings. Kevin never played with the girls. Instead, he would join with me in teasing them… [aunt] As a very small child Kevin showed masculine behaviour. His basic instincts and actions were male. He preferred to play with boys’ toys and preferred to dress as a boy. … [male cousin by marriage] says that he and Kevin have played various sports together, including rugby league, soccer and cricket as well as going on fishing trips together. He says as far as he is concerned ‘Kevin is one of the boys and always has been since I have first met him.’ … [friend and colleague] … Mary says that they played golf, baseball and went out socially. … Mary says that prior to Kevin’s transition …, his personality and his actions were very masculine; including his dancing and the way he played sport as well as the way he conducted himself socially. … [family friend] says Kevin had always taken the male role and had always done the traditional male type of things (“typically male work around his house”) and had always behaved that way. … [mother-in-law] says that Kevin has always been clearly male in his behaviour and as has always dressed, spoken and moved like a man. She says his interests and activities have always been those of a man: ‘I recall when I first started visiting his home my impression was that although he had expertly landscaped the garden and the surrounds of his home, the inside of his home revealed a bachelor-like Spartan appearance.’ … Kevin helped her in practical ways, and did most of the repairs for her around her home [the endnote to this quote adds: ‘Kevin’s skills in this regard also impressed a neighbour who was a plumber. He spoke of Kevin “single-handedly tackling construction work which most men would avoid.’] … [father-in-law] states: ‘…

337 my singular impression of him has been that he is definitely masculine in his thinking and manner. This opinion was formed particularly by my observations of Kevin in his interaction with Jennifer …, his aptitude in respect of home maintenance and building work and …’164 Although Chisholm J concedes that these anecdotes are stereotypes of masculinity, they are taken as evidence that Kevin is regarded as a man.165 This “evidence” simply shows that people expect behaviour to fall into one of two categories within a coercive binary social norm.166 This approach to gender incorrectly dichotomizes

164 Re Kevin and Jennifer (validity of marriage of transsexual) [2001] FamCA 1074, paras: 49, 50, 52, 53, 56, 57, 58, 60, 61, 62. 165 Justice Chisholm’s conclusion on this evidence, at para 70, does contain a caveat about stereotyping: ‘These witnesses' evidence is consistent, impressive, and unchallenged. They notice different things, and express themselves in different ways. A list of the things they noticed might suggest a stereotypical view of being a man. Perhaps it is, for example, a heterosexual model. Not all men might fit that stereotype. There are no doubt different ways of being a man. But these witnesses are not constructing models or trying to formulate criteria. They are describing what they see in Kevin. And what they see is a man.’ 166 J. Shapiro, “Transexualism: Reflections on the Persistence of Gender and the Mutability of Sex” in Body Guards: The Cultural Politics of Gender Ambiguity, J. Epstein & K. Straub (eds), Routledge, New York, 1991, 248 – 279, 257: ‘While establishing your gender credentials is a more demanding and riskier project if you are a transsexual, gender is not what could be called a sinecure for any of us. Fortunately, we receive a great deal of help from those around us who order their perceptions and interpretations according to the expectation that people should fall into one of two gender categories and remain there.’

338 generic human behaviours into mutually exclusive sex dimorphic ones.167 The reason for this is straight-forward.168 Gender is socially and historically constructed: As social orders change, and as we participate in different social institutions and organizations, our gendered behaviour changes.169 For example, while there is plenty of evidence that nurturing is a universal human behaviour, there is also evidence that many humans are less inclined to nurturing behaviour, including western women who have at various times in history fought in

167 B. Risman, “Calling the Bluff of Value-Free Science” (2001) 66(4) American Sociological Review 605, 607: ‘… what is masculine for a scientist in a high-tech corporation and in an inner-city gang have little to do with one another … What is considered feminine and womanly for one group of women (e.g., the white middle-class American research subject) is simply an untenable description of women in other cultures, or even in other social classes within our own culture (Glenn 1999; Segura 1993). Beyond that, of course, there is no one gender role for any given person. The same woman might be a vicious litigator and a nurturing mother. The cut-throat financial trader might be a tender caretaker to his dying lover. The notion that one person is socialized to a cross-situational “femininity” or “masculinity” has eroded away …’; and I. Kennelly, S. Merz, & J. Lorber, “What is Gender?” (2001) 66(4) American Sociological Review 598, 600, citing Fausto-Sterling (2000): ‘any researcher who pursues this kind of study must construct gender in such a way as to create a measurable variable.’ 168 I. Kennelly, S. Merz, & J. Lorber, “What is Gender?” (2001) 66(4) American Sociological Review 598, 600: ‘Over the last 20 years, gender has come to be viewed by social scientists as a socially constructed institutional arrangement, with gender divisions and roles built into all major social institutions such as the economy, the family, the state, culture, religion, and the law, that is, the gendered social order (Connell 1987; Lorber 1994). “Gendered behaviour,” in this conceptualization, refers to the ways people act based on their position within the gender structure and their interaction with others, rather than as a result of hormonal input or brain organization. We “do gender” (West and Zimmerman 1987) and participate in its construction, but it is also something that is done to us as members of a gendered social order (Moore 1994; Thorne 1986; Valian 1998).’ 169 I. Kennelly, S. Merz, & J. Lorber, “What is Gender?” (2001) 66(4) American Sociological Review 598, 600. It is virtually impossible to designate universal gender behaviours as masculine or feminine because gender varies according to culture, time, and the mode of production, at 601: ‘The variation of behaviour within different contexts is especially apparent in cross-cultural and historical research, such as Jensen's ([1977] 1990) study of the matrilineal Seneca society in which women historically controlled land and agriculture, thus occupying important economic positions over men (also see Amadiume 1987; Lepowsky 1993). These examples indicate that what may be thought of as universal “gendered behaviours” are very context-specific, relying more on setting and circumstances than on individual “predispositions” (Tavris 1992).’

339 wars, killed their children, and been active in groups such as the Klu Klux Klan.170 Had Chisholm J not discarded post-positivist approaches to gender and had he recognised his own standpoint as a white Australian male he might have been able to avoid using his privilege to re-inscribe patriarchal gender stereotypes. Other reasons why the law clings to sociobiological reasoning stem from a fear of homosexuality and the role of law in policing gender, in particular the fear of gender “passing”.171 In Re Kevin, Chisholm J cites Dewar for the proposition that Ormrod J had not determined the Corbett case using a biological test with a fear of homosexuality lurking in the background.172 While this analysis is doubtless correct it can be added that homophobia alone cannot explain the ubiquity of biological determinism in transgender case-law.173 It is also likely that homophobia is dwarfed

170 I. Kennelly, S. Merz, & J. Lorber, “What is Gender?” (2001) 66(4) American Sociological Review 598, 601. Even Hrdy concedes that women were not born to nurture in S. Hrdy, “The Past, Present, and Future of the Human Family”, The Tanner Lectures on Human Values, delivered at University of Utah, 27 & 28 February 2001, 64: ‘Shorter and Badinter had already reached Scheper-Hughes’s conclusion after researching mothers in eighteenth-century France at a time when 95% of newborns in urban areas like Paris were sent away to be suckled by strangers, the custom known as wet-nursing that resulted in appallingly high rates of infant mortality. Few historians now dispute the numbers.’ 171 A fear of passing is implicit in the reasoning in all transgender cases. This might be explained in part on the basis that all of us must “pass” ourselves off according to gender norms, not just transgender people: J. Shapiro, “Transexualism: Reflections on the Persistence of Gender and the Mutability of Sex” in Body Guards: The Cultural Politics of Gender Ambiguity, J. Epstein & K. Straub (eds), Routledge, New York, 1991, 248 – 279, 257. 172 Re Kevin and Jennifer (validity of marriage of transsexual) [2001] FamCA 1074, para 24: ‘the case does not raise any issue about homosexual relationships and marriage’ and the endnote to this sentence reads: ‘Like Professor Dewar, I do not think that homosexuality is "the real issue lurking in Corbett": see John Dewar, "Transsexualism and marriage" (1985) 15 Kingston Law Rev 58-76, note 6, citing I. McColl Kennedy, "Transsexualism and single sex marriage (1973) Anglo-American Law Review 112, at 130, 132-136.’ 173 The term “transgender” is used here as an umbrella term to include a spectrum of subjectivity, for example, from cross-dressing episodically, through to genital reassignment, as well as including the so- called “pansexual” identity. Pansexual is used by Sharpe (Sharpe, Transgender Jurisprudence: Dysphoric Bodies of Law, London, Cavendish Publishing, 2002, 1 – 2.) to denote ‘some self-identified transgender people [who] seek to occupy the position of the third, fourth, fifth …[gender].’ Likewise Heyes (C.J. Heyes, “Feminist Solidarity after Queer Theory: The Case of Transgender” (2003) 28(4) Signs 1093, 1093 – 1094) uses the word “transgender” to denote: ‘… multiple forms of sex and gender crossing and mixing that are taken by their practitioners to be significant life projects … to describe

340 by an historical fear of gender “passing”.174 Gender passing would render the law impotent as a regime of categorisation so crucial to a society characterised by hierarchy on the basis of gender.175 However, it is improbable to assert that homophobia is altogether absent from judicial reasoning in these cases. One reason for this is that if the heterosexual wording was removed from marriage laws (so that gay/lesbian marriage was legal) the declarations sought in Corbett and Re Kevin might not have been necessary.176 As they stand Australian marriage laws demand: The need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life.177 Clearly marriage law is heterosexist (viz: allowing only unions between a “man” and “woman”). Had the statute read: ‘the voluntary union for life of two separate persons, to the exclusion of all others’ it would have the effect of removing discrimination against transgender people. As it stands it is both homophobic and discriminatory on the grounds of gender.178 This shows that there is no neat demarcation between gender and sexuality: anyone who lives a gender they were not perinatally assigned or that is not publicly recognizable within Western cultures’ binary gender systems, and … to describe anyone who undergoes (or hopes to undergo) any [at 1094] of a number of physical interventions to bring hir sexed body more closely into line with hir gender identity.’ The spelling here is from the original to which Heyes credits Leslie Feinberg for introducing ‘the pronouns “hir” (in place of her/his) and “ze” (in place of he/she) to describe hirself.’ 174 See generally: R. Trumbach, “London’s Sapphists: From Three Sexes to Four Genders in the Making of Modern culture” in Body Guards: The Cultural Politics of Gender Ambiguity, J. Epstein & K. Straub (eds), Routledge, New York, 1991, 112 – 141. 175 J. Shapiro, “Transexualism: Reflections on the Persistence of Gender and the Mutability of Sex” in Body Guards: The Cultural Politics of Gender Ambiguity, J. Epstein & K. Straub (eds), Routledge, New York, 1991, 248 – 279, 270. 176 In Hyde v Hyde [1866] All ER 175, at 177, Wilde J held: ‘I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others.’ This common law rule is embodied in Australian statutes: the Family Law Act (Cth) 1975, s.43(a); and the Marriage Act (Cth) 1961, s.46(1). 177 Family Law Act (Cth) 1975, s.43(a); and the Marriage Act (Cth) 1961, s.46(1) makes this a requirement. 178 Chisholm J at para 24 would have been correct if his assertion that Re Kevin did not ‘raise any issue about homosexual relationships and marriage’ was confined purely to the facts of that case (and this is

341 It is fear over an imagined proximity of transgender bodies and sexual practices to homosexuality, especially in relation to particular areas of law such as marriage, which generates this anxiety. The homophobia of law will be seen to manifest itself both in terms of conflation of transgender and homosexual bodies and desires and a somewhat contradictory medico-legal insistence on viewing those bodies and desires as incommensurate. In both instances homosexuality will be seen to function as a sign of “inauthentic” transgender identity and desire. Thus transgender bodies of law will be seen both to negate homosexuality in the biological sense, and to preclude it in the psychological and transgender sense.179 This connection between gender and sexuality is exemplified by a fear of “passing” between genders. Trumbach chronicles some historic ties between malleable notions of gender and sexuality. For instance, in the early seventeenth century a common view was that people could physically transform from one gender to another and such people were considered hermaphrodites.180 Although the scientific view at that time was slightly different and didn’t accept that gender could transform, the law adopted the common view: Sir Edward Coke in his great commentary on the common law had said that “every heir is either a male, or female, or an hermaphrodite, that is both male and female.” But Coke had also said that hermaphrodites could not live as both males and females. They were obliged to pick one gender and adhere to it

what I presume he intended to mean). But Sharpe is correct to argue that the law is permeated by homophobia in Sharpe, Transgender Jurisprudence: Dysphoric Bodies of Law, London, Cavendish Publishing, 2002, 5. 179 Sharpe, Transgender Jurisprudence: Dysphoric Bodies of Law, London, Cavendish Publishing, 2002, 5. 180 R. Trumbach, “London’s Sapphists: From Three Sexes to Four Genders in the Making of Modern culture” in Body Guards: The Cultural Politics of Gender Ambiguity, J. Epstein & K. Straub (eds), Routledge, New York, 1991, 112 – 141, 113: ‘In this paradigm there were two genders – male and female – but three biological sexes – man, woman and hermaphrodite. All three biological sexes were supposed to be capable of having sexual relations with both males and females. But they were presumed, of course, to have sex ordinarily with the opposite gender only, and then in marriage, so as to uphold the Christian teaching that sexual relations were supposed to be primarily procreative.’

342 forever. This was customary European law. If individuals went back and forth, they were guilty of sodomy.181 As this quote suggests the law was concerned with maintaining a discernible gender binary. Trumbach explains that most of the traditional cases concerned those persons occupying the third category who changed gender on the basis of “corrupt minds” rather than due to any “physical disposition”.182 Because sexuality was more inconspicuous than it is today this notion of “corrupt minds” reflected a greater fear of gender passing than it did offences against sexual norms.183 Still, there were cases were men who took a passive role in sodomy were deemed hermaphrodites on the grounds that their conduct was indicative of a change from man to woman.184 Therefore, for men, sexuality was taken as affecting gender. Women were able to

181 R. Trumbach, “London’s Sapphists: From Three Sexes to Four Genders in the Making of Modern culture” in Body Guards: The Cultural Politics of Gender Ambiguity, J. Epstein & K. Straub (eds), Routledge, New York, 1991, 112 – 141, 120. Also at 120: ‘Some individuals actually did go back and forth in Coke’s day. Thomasine Hall was christened as a girl. At twenty-two, however, she dressed as a man and joined the army. He went to America, where once again she became a woman. But when searched, he proved to have fully developed male genitalia. He was probably a male pseudo- hermaphrodite whose male genitalia had descended in late adolescence, but who had been assigned to the female gender at birth. The American court in 1629 could not encompass such complications and sentenced Hall to dress as a man and partly as a woman.’ 182 R. Trumbach, “London’s Sapphists: From Three Sexes to Four Genders in the Making of Modern culture” in Body Guards: The Cultural Politics of Gender Ambiguity, J. Epstein & K. Straub (eds), Routledge, New York, 1991, 112 – 141, 121. 183 R. Trumbach, “London’s Sapphists: From Three Sexes to Four Genders in the Making of Modern culture” in Body Guards: The Cultural Politics of Gender Ambiguity, J. Epstein & K. Straub (eds), Routledge, New York, 1991, 112 – 141, 127- 128. At the turn of the seventeenth and eighteenth centuries the attitude of society toward male homosexuals was very different to the twentieth century view that such men were effeminate: ‘Such a rake (male sodomite) was prepared to have sexual relations with both women and boys, because he took the dominant role in both kinds of act. Other might view his behaviour as very wicked, but they did not think of him as effeminate. Sexual relations with a younger male did [at 128] not lessen the masculine status of the rake; if anything, it reinforced the image of his power.’ 184 R. Trumbach, “London’s Sapphists: From Three Sexes to Four Genders in the Making of Modern culture” in Body Guards: The Cultural Politics of Gender Ambiguity, J. Epstein & K. Straub (eds), Routledge, New York, 1991, 112 – 141, 128: ‘There were, however, a few adult males who took the passive role in sodomy. They were likely to be classified as hermaphrodites, since they had changed, in effect, from being men to women.’

343 avoid having their sexuality determine their gender provided they were not exposed for “crossing” or passing as men, or were not too masculine. In the case of women exposed as bi-sexual, while they were chastised for their lack of morality, it was their masculine behaviour that was most troubling ‘because of their bisexual behaviour’.185 Women who possessed or were known to have dildos risked persecution for the dual reasons that it was “fraud” and because their minds were “doubtless corrupt”.186 Such women were not acting naturally, because ‘unnatural affections [were] equally vicious and equally detestable in both sexes’.187 The key theme that emerges from Trumbach’s history is that the law’s primary concern was with maintaining a gender binary hierarchy, and that sexuality was a necessary incidence to that objective. 188 It is not hard to find express evidence of a fear of passing in the judgement in Re Kevin:

185 R. Trumbach, “London’s Sapphists: From Three Sexes to Four Genders in the Making of Modern culture” in Body Guards: The Cultural Politics of Gender Ambiguity, J. Epstein & K. Straub (eds), Routledge, New York, 1991, 112 – 141, 128. 186 R. Trumbach, “London’s Sapphists: From Three Sexes to Four Genders in the Making of Modern culture” in Body Guards: The Cultural Politics of Gender Ambiguity, J. Epstein & K. Straub (eds), Routledge, New York, 1991, 112 – 141, 128. So for example, Mary Hamilton was prosecuted after: ‘… her last wife’s relatives found in her trunk “something of too vile, wicked, and scandalous a nature”. That this was in fact a dildo is confirmed in the periphrastic language of the legal depositions and the newspaper reports.’ 187 R. Trumbach, “London’s Sapphists: From Three Sexes to Four Genders in the Making of Modern culture” in Body Guards: The Cultural Politics of Gender Ambiguity, J. Epstein & K. Straub (eds), Routledge, New York, 1991, 112 – 141, 128. 188 R. Trumbach, “London’s Sapphists: From Three Sexes to Four Genders in the Making of Modern culture” in Body Guards: The Cultural Politics of Gender Ambiguity, J. Epstein & K. Straub (eds), Routledge, New York, 1991, 112 – 141, 129 – 130: ‘Men like Cleland and Fielding sometimes tried to fit the woman who actively sought women into a category parallel to that of the passive male sodomite: they consequently denied that such women had enlarged clitorises and said that they were motivated by the corruption of their minds – and by the end of the century could call them tommies, as men were called mollies. But such men were never consistent in their [at 130] view about women who desired women. They used both the old and new models to describe them. It is likely that they did so for two reasons. First, women, unlike men, had not in the eighteenth century yet come to be consistently classified into what by the late nineteenth century would be called a heterosexual majority and a homosexual minority. And secondly, women, again unlike men, did not yet define their gender identities in terms of their relationship to other women, as men defined theirs in relation to other men. Women were still given conventional female status because of the way they behaved with men.’

344 They do not see him as a woman pretending to be a man. … [110] … The situation presents a question to the individual, and to various social systems, as well as to the law, namely how that person's identity should be defined and managed… [281] … I accept that marriage involves questions of status, and that this is a matter of public interest… Thus, I have no difficulty with the propositions derived from Corbett and cases like it, that sex or gender is an essential ingredient of the marriage relationship, and that public issues are involved. This analysis shows, I think, that it may not be a legitimate solution to the problem to say, in effect, that the law should simply recognise at any given time whatever sex a person chooses. … [293] … For most people, being a man or a woman has nothing to do with any election or choice by themselves: they just are one or the other, and will be male or female for their whole lives. Because of this, and because marriage is a matter of status with legal consequences, there may be much to be said for the view that it would be wrong for marriage law to embrace a definition that would make one’s sex a matter of personal preference or choice. One of the reasons that the three-point biological criterion in Corbett has found favour is, I think, that it provides a permanent and clear answer to the question whether a transsexual is a man or a woman, and avoids any risk that the law might enable a person to change from a man to a woman at will. This is also, I think, why some judges have been reluctant to incorporate “psychological” criteria, lest the person’s sex vary according to his or her feelings or beliefs at particular times.189 Still, the reasoning and decision in Re Kevin is welcome and an important step away from overt judicial biological determinism and overt judicial patriarchal heterosexism. What Re Kevin shows is that even where the judge is careful to avoid reproducing hierarchy based on biological determinism, the reasoning remains trapped within a broader sociobiological legal structure based upon a rigid gender binary.190

189 Re Kevin and Jennifer (validity of marriage of transsexual) [2001] FamCA 1074, paras 69, 110, 281 and 293. 190 The gender binary is sociobiological because it imposes a Victorian view of biology based on sexual selection onto nature – see Chapter 4.

345 Conclusion

As an ideology present in law, sociobiology was evident in three respects. Firstly, sociobiology can be thought of as the process of naturalising and reifying the western patriarchal heterosexist nuclear family. In this sense the vast array of regulation underpinning and defining what constitutes “normal” is reified as natural and spontaneous. Secondly, statute law itself is frequently sociobiological as in the case of marriage laws. Once formulated at common law around a Christian ideology, the heterosexist institution is now defined by statute in explicit sociobiological terms to be the union of a “man” and “woman”. Thirdly, when courts are asked to determine gender they have until relatively recently applied a biological test. Although there is a trend away from a strict biological test, to consider psychological/social criteria, that criterion is viewed according to the very stereotypes that persisted under the biological approach. For these reasons the law plays a crucial role in naturalising and reifying hierarchy and oppression in the categories of gender and sexuality using the ideology of sociobiology. This chapter also developed the conclusion from the previous chapter that a critic can draw upon the voices of oppressed and disempowered people to critique oppression and hierarchy without the paradox of legitimation. This is possible using post- positivism and standpoint theory which seek to make research more responsible and accountable by listening to all groups within regimes of asymmetrical power and preferring to commence analysis by privileging the most marginalised group. This strategy was applied in this chapter and is applied in the remaining chapters so that the particular standpoint will vary according to the context of the regime of power under review. In this chapter the emphasis was on sociobiological excuses for hierarchy and oppression in the category of gender structured by “family law” which also raised issues concerning sexuality. In the next chapter this emphasis is reversed somewhat so that more attention is placed on sexuality with some attention also on gender. Again the area considered is family law, this time with a focus on the way the law punishes parents because of their sexuality. This form of oppression and hierarchy is justified by sociobiological excuses devised according to “the best interests of the child”.

346

Chapter 8

Sociobiology, Sexuality, and Custody Law

Introduction

In the previous chapter some emphasis was placed on legal structures (statutes, such as those concerned with marriage) to show they were sociobiological because required a male/female gender binary, and as a direct consequence deemed homosexuality as abnormal and therefore unnatural. In this chapter, more attention is directed to the way judges exercise their discretion according to sociobiology to produce outcomes that discriminate on the basis of sexuality (and gender). Therefore, where there is less or no overarching sociobiological structure (for example, where there is no marriage law requirement for a union between “man” and “woman”) it is shown in the cases below that judges declare what they see as natural about sexuality and gender to decide custody questions. In this sense these custody decisions are sociobiological. This chapter is an evidentiary chapter comprised wholly of case analyses. It is aimed at applying the theories discussed in the preceding chapters and it assumes knowledge of that material. Of the many possible types of cases that could be used to illustrate how sociobiology informs judicial approaches to sexuality, custody cases have been selected.1 This

1 It would have been possible to make similar arguments analysing the way single women and lesbians had been treated by courts concerning access to assisted reproductive services. See for example here JM v QFG [2002] 1 Qd R 373, 374 where patriarchal heterosexism was naturalised in the course of subordinating lesbian sexuality in a case concerning a woman’s access to assisted insemination services. There JM was initially refused treatment and succeeded in obtaining a declaration that this was unlawful on the grounds of discrimination. The doctor, GK, successfully appealed in the Supreme Court arguing he had not refused his service on the grounds of sexuality but on the basis that she was not suffering a medical condition. JM appealed to the Queensland Court of Appeal unsuccessfully. The case turned on the definition of ‘medical condition’ which was accepted as meaning a couples’ inability to conceive after 12 months of ‘normal intercourse’: ‘Accordingly a medical practitioner, who refused artificial insemination services to a lesbian on the basis that she had not established infertility

347 choice was made because it allows for contrasts to be made between parents on the basis of the way the court approaches, firstly, a parent’s sexuality, and secondly, their gender. This is important in terms of standpoint theory for two reasons. One reason is that it illustrates courts have not adequately dealt with the issue of “intersectionality”.2 So for example, a key issue highlighted in some lesbian scholarship suggests that lesbian interests can be and are marginalised within the much broader “queer” literature which tends to universalise gay interests at the expense of lesbians.3 It will be seen later that this has much salience for the case of Re Patrick.4 Standpoint theory recognises this aspect of intersectionality and approaches it from an “upwards” view preferring the view of the most marginalised group. In other words, custody cases should be viewed from a feminist lesbian standpoint in the absence of a more marginalised group.5 This is because lesbians as a group can and do endure hierarchy and oppression on more grounds than say women as a group, or gay men as a group, in terms of their treatment in broader society and before courts.6

evidenced by engagement in intercourse with the same partner, without contraception, for 12 months, did not directly discriminate against her within the meaning of the Act.’ However, space dictates that this analysis be done elsewhere. 2 K. Crenshaw, “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics” (1989) University of Chicago Legal Forum 139, 148: ‘In sum, several courts have proved unable to deal with intersectionality, although for contrasting reasons.’ 3 S. Marcus, “Queer Theory for Everyone: A review Essay” (2005) 31(1) Signs 191, 213; S. O’Driscoll, “Outlaw Readings: Beyond Queer Theory” (1996) 22(1) Signs 30, 32; and S. Danuta Walters, “From Here to Queer: Radical Feminism, Postmodernism, and the Lesbian Menace (Or, why Can’t a Woman Be More Like a Fag?)” (1996) 21(4) Signs 830, 836. 4 Re Patrick (An Application Concerning Contact) [2002] FamCA 193; (2002) 28 Fam LR 579. 5 Of course, race might also be relevant but as it happened no such cases were found other than Elliott v Elliott (2004) Virginia Court of Appeals Record No 3102-03-4, 25 May 2004, where the father was granted primary custody on the grounds that the mother’s work schedule involving periodic travel away from home made her less attractive as the primary custodian even though the father would be absent at work each morning. The court also preferred the paternal grandmother to the maternal grandmother because the latter couldn’t speak English and despite the fact that the maternal grandmother had been the primary child-carer since its birth. The court also separated the child in this case from her “half-brother” even though they were close. 6 In terms of sexuality, a feminist lesbian standpoint has been chosen for the analysis below because lesbians typically endure more discrimination than gay men in at least three senses, class, gender, and

348 That is to say lesbians tend to earn less than men as women, they tend to hold less powerful positions than men as women, and they are oppressed by virtue of their sexuality.7 This also fits with a second reason for choosing custody cases – an important theme in the previous and current chapter is that gender and sexuality are not easily amenable to treatment in isolation.8 Cases such as Bottoms (poor lesbian

sexuality. A fourth sense could be added here because numerous women have pointed out that lesbian issues are frequently lost within the scholarship that goes under the name of “gay and lesbian” scholarship or queer theory which by and large privileges gay men as a starting point for analysis. See for example: M. Stewart, “Opinion” (1995) 20 Alternative Law Journal 259, 259; S. Danuta Walters, “From Here to Queer: Radical Feminism, Postmodernism, and the Lesbian Menace (Or, why Can’t a Woman Be More Like a Fag?)” (1996) 21(4) Signs 830, 836; and Marcus argues the need for queer theorists to move away from the assumption that male heterosexuality is the norm or default in their work on homosexuality in S. Marcus, “Queer Theory for Everyone: A review Essay” (2005) 31(1) Signs 191, 213. Race, ethnicity and refugee status might also be important as in, for example, a situation where a lesbian seeks asylum on the basis of her persecution as a lesbian - see further J. Millbank, “Fear of persecution or just a queer feeling?” (1995) 20(6) Alternative Law Journal 261, 265. 7 K. Anthony & T. Drabsch, “Legal Recognition of Same-Sex Relationships”, Briefing Paper No 9/06, NSW Parliamentary Library, June 2006; S. Maddison & E. Partridge, “How well does Australian democracy serve sexual and gender minorities?” Report No 9 for the Democratic Audit of Australia, School of Social Sciences, ANU, Canberra, 2007; M. Pitts, A. Smith, A. Mitchell & S. Patel, “Private Lives: A report on the health and wellbeing of GLBTI Australians”, Australian Research Centre in Sex, Health & Society, La Trobe University, Melbourne, March 2006. 8 C. Vance, “Social Construction Theory and Sexuality” in Constructing Masculinity, M. Berger, B. Wallis, & S. Watson (eds), Routledge, New York, 1995, 37 – 48, 39: ‘… even though they were interrelated in specific historical circumstances. Theories of sexuality could not explain gender, and taking the argument to a new level, theories of gender could not explain sexuality… sexuality and gender are separate systems which are interwoven at many points.’ It is recognised that gender and sexuality are interconnected (“orthogonal” as per E. Kosofsky Sedgwick, “Gosh, Boy George, You Must Be Awfully Secure in Your Masculinity!” in Constructing Masculinity, M. Berger, B. Wallis, & S. Watson (eds), Routledge, New York, 1995, 11 – 20, at 15 - 16) and so too are race and class etc and that it can be a mistake to discuss them separately: K. Crenshaw, “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics” (1989) University of Chicago Legal Forum 139, M. Davies, Asking The Law Question, 2nd ed, Sydney, Lawbook Co, 2002, 238 – 239; P. Williams, “On Being the Object of Property” (1988) 14 Signs 5; and “Part 5: Intersections” in N. Zack, L. Shrage & C. Sartwell (eds.), Race, Class, Gender and Sexuality: The Big Questions, Blackwell, Oxford, 1998, 325 and further forward.

349 mother versus hetero-grandmother) and Patrick (lesbian parents versus gay sperm donor) show that it is risky separating gender and sexuality other than for standpoint theory reasons, viz, to assess power and the excuses for it in a given situation.9 The specific cases discussed below were selected for their ability to show contrast.10 The cases chosen are deliberately “cross-jurisdictional” to illustrate the ubiquity of sociobiological reasoning in common law jurisdictions. For this reason also, I have retained the somewhat older notion of “custody” still used in some places rather than the more fashionable terms “responsibility”, “care” and “residence”.

Sexuality and Custody

In the marriage of A and J

In the marriage of A and J, the father wanted to relocate from Ballarat to Adelaide and therefore vary the existing shared custody by taking the child with him.11 The court characterised the case as one turning on the mother’s sexuality and whether the father’s decision to relocate was innocent or aimed at some ulterior purpose. All other factors in the case were said to be evenly poised. Both parents had a close bond with the child, and both parents were equally capable of providing appropriately for the child.12 Both parents had shared equally in the role of parenting the child. The case

9 Bottoms v Bottoms 249 Va. 410, 457 S.E.2d 102, 21 April 1995; Bottoms v Bottoms (1997) Virginia Court of Appeals Record No 2157-96-2, 29 July 1997; Bottoms v Bottoms (1999) Virginia Court of Appeals Record No 0589-98-2, 29 June 1999; and Re Patrick (An Application Concerning Contact) [2002] FamCA 193; (2002) 28 Fam LR 579. 10 Two of the cases discussed below were also mentioned in the feminist lesbian scholarship I drew upon namely Bottoms v Bottoms is discussed in S. Danuta Walters, “From Here to Queer: Radical Feminism, Postmodernism, and the Lesbian Menace (Or, why Can’t a Woman Be More Like a Fag?)” (1996) 21(4) Signs 830, and Re C (a minor) is discussed in S. Boyd, “What is a ‘Normal’ Family? C v C (A Minor) (Custody: Appeal)” (1992) 55 Modern Law Review 269. 11 In the Marriage of A and J (1995) 19 Fam LR 260. 12 In the Marriage of A and J (1995) 19 Fam LR 260, 270: ‘His Honour made it clear, in considering the relevant statutory factors, that he was satisfied that the child had a good relationship with both parties, that both parties would be able to adequately provide for the physical and emotional needs of the child, and that the competing proposals were evenly balanced.’

350 could only turn on the two issues of the mother’s sexuality and the father’s desire to relocate. At first instance the judge found for the father after declaring that the Court was obliged to decide the case in the best interests of the child and according to the criteria contained in the Family Law Act.13 This “best interests of the child” principle applies in most common law jurisdictions.14 Although it is a worthy objective, it is also a rhetorical trope for the exercise of judicial discretion as all the cases below demonstrate.15 After finding that both parents were equally suitable candidates for residence and citing L and L [1983] FLC 91-353:

13 In the Marriage of A and J (1995) 19 Fam LR 260, 263. 14 This concept emerged under the historical and material conditions outlined in the previous chapter. In addition it is a principle embodied in international conventions. These conventions contain sociobiological premises in the sense that they deem what is natural. Article 3 of the United Nations Convention on the Rights of the Child (Adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989, entry into force 2 September 1990, in accordance with article 49) states: ‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.’ While Article 23 of the International Covenant on Civil and Political Rights (Adopted and opened for signature, ratification and accession by General Assembly resolution 2200 A (XXI) of 16 December 1966, Entered into Force on 23 March 1976, in accordance with article 49.) states: ‘The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. … The right of men and women of marriageable age to marry and to found a family shall be recognized … No marriage shall be entered into without the free and full consent of the intending spouses. … States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.’ And Article 24 of the same convention states: ‘Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.’ 15 Judicial discretion in many of the cases below comes from the almost universally accepted legal phrase, “the best interests of the child are paramount”. R. Ludbrook, “Do children have rights”, Australian Review of Public Affairs, School of Economics and Political Science, University of Sydney, 13 March 2006, pp. 1 – 4, 2. Ludbrook rejects this proposition but concedes there has been widespread criticism of the principle of the best interests of the child because it is considered to be ‘subjective and allows judges to decide cases according to their own personal beliefs and values’.

351 He found that the child’s relationship with Ms R [the mother’s partner] was satisfactory although Ms R was not interviewed by the court counsellor. His Honour found that the wife and Ms R accepted that it was inappropriate for children to observe overt displays of affection between persons in a continuing and committed homosexual relationship, but that they did little to put this into practice.16 The trial judge continued to emphasise the mother’s homosexuality as a ‘relevant issue’ even though he found that the ‘wife and Ms R moved to some extent in homosexual circles’ this was not an adverse factor.17 Nor was the father’s plan to relocate with the child interstate from Ballarat to Adelaide an adverse factor. Rather, the effect on the child of separation ‘from either party would be difficult for the child and would require an important adjustment’.18 This rhetorical claim neutralised the fact that it would be in the child’s best interests for all to remain in Ballarat. Relocation was justified on the grounds that the child would adapt to the new environment.19 What was not addressed was the effect this relocation would have on the child’s separation from his mother other than that it would ‘protect’ the child’s exposure to homosexual behaviour: His Honour also dealt with the need to protect the child from exposure or subjection to behaviour which might cause harm to the child. He found that the child was basically well adjusted and without behavioural difficulties. He referred again to the relationship of the wife with Ms R and that they moved in

16 In the Marriage of A and J (1995) 19 Fam LR 260, 263: ‘Further, his Honour found that although the husband had not expressed concern about the wife’s sexual preference until the proceedings commenced, this was not to be taken against him and that relationship had to be considered as a relevant matter.’ 17 In the Marriage of A and J (1995) 19 Fam LR 260, 263. 18 In the Marriage of A and J (1995) 19 Fam LR 260, 264. 19 In the Marriage of A and J (1995) 19 Fam LR 260, 264: ‘He concluded that the child had always lived in the Ballarat area, had close ties with that area, and would experience disturbance in the event of any move from it, and that staying in the Ballarat area would be a more comfortable option for the child. His Honour, however, stated that “many children are required to move into new surroundings and make new friends and do so successfully and without important trauma”.’

352 both heterosexual and homosexual circles but found, referring to the homosexual circles, this was not an adverse factor.20 Such reasoning is a classic example of apophasis rhetoric. “Apophasis” is a word useful to describe the approach of judges in these situations because it means ‘denial of an intention to speak of something which is at the same time hinted or insinuated.’21 It is a denial of an intention to deal with a factor that is at the same time applied. The evidence for this is that the trial judge did indeed find that a child reared by lesbians needed to have the balancing role of a father for the benefit of emotional development: As to the factor of the lesbian relationship, the counsellor sees no concerns at this time to L’s life. But, her proviso is the importance of having adequate communication with the husband as a balancing figure in L’s emotional development. The importance of the husband’s contact with L is one of the most important of the factors that weigh into the balance. If L stays in Ballarat, he will have relatively little contact with the husband in the sense that it will not be constant, even though it might be in relatively large blocks of school holidays.22 Further: … although the counsellor had no concerns about the wife having a female partner at this time in the life of the child, the counsellor also emphasised the need for adequate contact with the husband as a balancing figure in the child’s emotional development. … In her report, the counsellor said, referring to the access proposals of the wife and the need to ensure regular communication between the husband and child, that: “this would be essential for L whose need for nurturing and a constant male figure will grow as he develops”. …and that in this case it would be particularly important that the child “have a husband

20 In the Marriage of A and J (1995) 19 Fam LR 260, 264. Therefore it was not surprising that the trial judge also determined that any adverse incidents that had taken place to date were during the mother’s custody of the child: ‘He found that all of the incidents referred to in the evidence which might not have been in the best interests of the child happened whilst the child was with the wife but that they appeared to have occurred as a result of a lack of experience by her rather than any carelessness or lack of concern by her.’ 21 The Macquarie Dictionary, Revised 3rd ed, Macquarie University, 2005, 83. 22 In the Marriage of A and J (1995) 19 Fam LR 260, 264.

353 figure close by”. His Honour was entitled to place weight upon this evidence and did so. In effect he regarded that as tipping the balance in what was otherwise an evenly balanced case.23 These two passages record how sociobiology is read into a judicial decision in the dual senses that homosexuality is deemed unnatural and therefore negative, and patriarchy is deemed natural and therefore desirable. The naturalising and discriminatory inference is exhorted if the situation is reversed so that should the mother be the one moving interstate, no similar caveat would be necessary requiring the child to have continuing contact with his mother for the sake of “balanced emotional development”.24 Indeed when a custodial mother sought to relocate in U v U, an entirely different approach was taken.25 There, the court framed the issue around whether the mother was “selfish” for choosing a career over the child’s stability in a familiar environment. In U v U the mother’s decision to relocate was held by the High Court to be selfish whereas in the case here the father’s decision to relocate was seen as reasonable despite its deleterious effects on the child in terms of changing environments and severing the close relationship the child would have with its mother.26 Therefore it is appropriate to dwell a little on the case of U v U for the purposes of rigour and contrast. In U v U the custodial mother was not allowed to relocate to her home country at the behest of an application by an abusive father (who did not want custody). The court found that the mother was selfish for wanting to relocate to pursue her career in India even though she was prepared to meet the costs of travel for the father to visit the child in India, she would earn a large professional income (rather than being

23 In the Marriage of A and J (1995) 19 Fam LR 260, 265. 24 Behrens has shown that in the so-called “relocation cases” they have tended to become inquiries into guessing the reasons for the mother’s desire to relocate in J. Behrens, “U v U: The High Court on Relocation” (2003) 27 Melbourne University Law Review 572, 577 – 578. 25 U v U (2002) 191 ALR 289. 26 The appeal court said of the trial judge: ‘His Honour was aware that this would mean that if the child stayed in the Ballarat area there would be a significant reduction in the amount of face-to-face contact between the child and the husband and that frequent contact would not be possible, notwithstanding that it was submitted that the distance between the wife’s home and the husband’s home in South Australia was driveable’, In the Marriage of A and J (1995) 19 Fam LR 260, 270.

354 unemployed in Australia), and the child would benefit from relationships with the mother and father’s extended family as opposed to virtual isolation from extended family members by remaining in situ. The High Court held that it was free to impose whatever it considered was in the best interests of the child. According to Hayne J: In these circumstances, it would be quite wrong to treat the decision that is to be made as confined to a choice between whatever may be the particular “proposals” that the parents may make for the residence of, and contact with, the child… More fundamentally, it would confine the Court’s inquiry to what the parents suggested would be in the best interests of the child, regardless of whether those suggestions were informed, even wholly dictated, by the selfish interests of one or other of the parents.27 And this was not an anomalous component of the reasoning in U v U because this sexism was also present in the joint judgement of Gummow and Callinan JJ: The appellant’s primary focus is on her own emotional needs and not those of the child, whereas the respondent is more “child-focused”. The mother is a highly intelligent and articulate woman. During the relationship she was assertive.28 These stereotypes about the mother’s character were otherwise unsubstantiated. There is no corresponding assessment of the father’s character and in circumstances where there was evidence of his violence toward the mother one might have expected a different result.29 This sexist stereotyping is sociobiological since it assumes that

27 U v U (2002) 191 ALR 289, 326, emphasis added. In other words the court is free to determine what is in the best interests of the child in the circumstances, provided the court doesn’t (also at 326): ‘…embark upon some roving inquiry about the matter unfettered by any regard for the evidence led and the matters which the parties seek to contest. Due account must be taken of the fact that proceedings in the Family Court are conducted in a framework of adversarial procedure familiar to the common law.’ 28 U v U (2002) 191 ALR 289, 300. 29 This is why Gaudron J in dissent (U v U (2002) 191 ALR 289, 296), condemned the reasoning of the majority: ‘The failure to explore that possibility [the possibility that the father could return to India permanently to avail himself of frequent and regular contact with his daughter] particularly given the father’s origins, his professional qualifications and family contacts in India, seems to me to be explicable only on the basis of an assumption, inherently sexist, that a father’s choice as to where he lives is beyond challenge in a way that a mother’s is not. Further, it must be accepted that, regrettably, stereotypical views as to the proper role of a mother are still pervasive and render the question whether

355 there are certain innate or natural characteristics attributable to men and women, fathers and mothers, and this is certainly the view of Wilson in his famous Sociobiology: The New Synthesis: Perhaps the earliest form of barter in early human societies was the exchange of meat captured by the males for plant food gathered by the females.30 This judicial sociobiology has the consequence that women are discriminated against and a hierarchical heterosexist status quo is preserved. Returning to the case at hand, on appeal, the court endorsed the trial judge’s reasoning concerning the significance of the mother’s sexuality, while reducing the significance of the father’s decision to relocate: This finding of primary fact was open to his Honour on the evidence and it was not, in our opinion, necessary for him to give more detailed reasons for this finding of fact.31 In other words, the trial judge’s determination spoke for itself since it is axiomatic that all other things being equal, a heterosexual environment is preferable to a homosexual environment. However, all other things were not equal because of the father’s decision to relocate. But this was minimised by the appeal court: There was no suggestion that the proposed environment for the child in South Australia was unsatisfactory although it would entail a short-term upheaval for the child from his environment in the Ballarat district. The wife gave evidence that it was extremely important that the child have regular contact with the

a mother would prefer to move to another state or country or to maintain a close bond with her child one that will , almost inevitably, disadvantage her forensically. A mother who opts for relocation in preference to maintaining a close bond with her child runs the risk that she will be seen as selfishly preferring her own interests to those of her child; a mother who opts to stay with her child runs the risk of not having her reasons for relocating treated with the seriousness they deserve. 30 E.O Wilson, Sociobiology: the New Synthesis, Cambridge, Harvard University Press, 1975, at 553. 31 In the Marriage of A and J (1995) 19 Fam LR 260, 270: ‘His Honour found that it was important that the child maintain regular and close contact with the husband for reasons which included because the wife’s proposals entailed her continuing a homosexual relationship. This was a finding of primary fact by his Honour which led him to make the ultimate finding that the welfare of the child required that the husband be granted custody.’

356 husband and that the husband was the best person for the child to have as a role model.32 Again, if the reverse situation had been considered it is unlikely the court would have been so concerned to ensure the child had a continuing relationship with his mother. It is more likely that the mother would have been regarded as selfish based on the reasoning of the High Court in U v U.33 In fact, it begs the question why the court was not so concerned with the father’s decision to move to Adelaide just to save paying rent.34 This case analysis reveals the ubiquity of sociobiology as both a set of fundamental assumptions about “nature” informing judicial reasoning, and as a naturalising ideology. In both cases it was obscured with apophasis rhetoric. The trial judge expressly denied that the mother’s homosexuality was an adverse factor yet held that the child needed to have this situation balanced by a father figure to ensure his proper emotional development. The apophasis was entrenched when the case was appealed because the appellate court contended that its hands were tied in a case where the judge had not made a clear error of law and where the relative merits are evenly poised.35 Unfortunately this means that any ideological bias informing the judge’s conclusion will not be tested and so systemic discrimination will not be kept in check. Other critics have observed patterns of patriarchal control over women seeking to relocate with their children where a contact father objects to the move.36 What this

32 In the Marriage of A and J (1995) 19 Fam LR 260, 270. 33 U v U (2002) 191 ALR 289. 34 In the Marriage of A and J (1995) 19 Fam LR 260, 270: ‘There was no suggestion that the husband’s decision to live in South Australia was in any way designed to frustrate or obstruct contact between the child and the wife. He was in financial difficulties and was unable to retain the home at Ballarat. As a consequence of the orders, in the financial proceedings the home will be sold and the net proceeds divided equally between the parties. The husband was able to secure accommodation in South Australia at little or no cost.’ 35 In the Marriage of A and J (1995) 19 Fam LR 260, 268: ‘It is, in our opinion, particularly in matters where it is considered that the competing proposals are evenly balanced, important to avoid an overly critical analysis of the reasons of the trial judge. … there should not be a microscopic analysis of, for example, the words used by a trial judge …’. 36 P. Easteal, J. Behrens & L. Young, “Relocation Decisions in Canberra and Perth: A Blurry Snapshot” (2000) 14 Australian Journal of Family Law 234, 7: of 36 cases analysed by these researchers where mothers sought to relocate, they succeeded in 69% of cases. Therefore allegations of

357 section of the thesis demonstrates is that sociobiological assumptions about parenting inform judicial decisions. Sociobiology treats homosexuality as non-reproductive and therefore unnatural while at the same time treating women who choose to relocate for careers as non-nurturing (“selfish”) and therefore unnatural. All this is accomplished under the mantra of “the child’s best interests”. In this way patriarchal and heterosexist control over families is retained and justified according to particular views of what is natural and normal.

Bottoms v Bottoms

In Bottoms v Bottoms the father showed no interest in the child and paid no child support.37 The case was a contest for custody between the child’s mother and the maternal grandmother. The court preferred the maternal grandmother over the mother on grounds that the mother was an “unfit parent” due to her lesbian relationship.38 The court also imposed restrictions on the mother’s access preventing her partner from having any contact with the child. In reaching this conclusion the court rejected expert opinion that the child would benefit from observing his mother interact with her partner. It also glossed over the grandmother’s demand that she did not want the

“control” concern the remaining 31% of cases. Also, at 1 - 2 (original footnotes omitted): ‘… feminist commentators have pointed to the differential impacts on women of restrictions on mobility as they are the substantial majority of [at 2] residence parents and relocation may be particularly important for

them after the breakdown of a relationship. Feminists have also pointed out that contact parents

(usually fathers) cannot (or at least will not) be restricted in their movement. In addition, international human rights law recognises a right to freedom of movement, and decisions to (in effect) restrict where a parent can live, are obviously serious.’ 37 Bottoms v Bottoms 249 Va. 410, page 2 of 7: ‘In December 1989, the child's mother married Dennis Doustou, whom she had been dating for several years. She left Doustou after eight months of marriage, and … The child was born during the separation in July 1991. The parties were divorced, and the mother was awarded custody of her child. The child's father has expressed little interest in his son and pays no child support.’ 38 Bottoms v Bottoms 249 Va. 410, 457 S.E.2d 102, 21 April 1995; Bottoms v Bottoms (1997) Virginia Court of Appeals Record No 2157-96-2, 29 July 1997; Bottoms v Bottoms (1999) Virginia Court of Appeals Record No 0589-98-2, 29 June 1999.

358 mother to have any contact with the child’s teachers other than by telephone.39 The facts indicate that the grandmother was motivated to contest custody when she learned of the daughter’s status as a lesbian.40 In addition, the court abrogated the well established presumption that a parent should be preferred to a non-parent in the absence of ‘clear and convincing’ evidence of ‘parental unfitness’.41 The court emphasised the mother’s brief heterosexual “promiscuity”, and the possibility that she may have had at least one lesbian encounter prior to entering into a settled lesbian relationship with April Wade.42 The court continued this emphasis on the mother’s sexuality commenting on her relationship with Wade in the following terms: The mother and Wade “moved in together” in September 1992. From that time, with the exception of a two-week period, the mother and Wade have lived in “a

39 This application was granted each time this case was heard, including the final hearing. In other circumstances (one’s not involving a lesbian mother) such an application might have been seen as hostile (parent “unfriendly”) and so not in the best interests of a child. 40 Two months before the grandmother’s petition for custody was filed the mother revealed her lesbian relationship to the grandmother and this disclosure alienated the two, per Bottoms v Bottoms 249 Va. 410, page 3 of 7. 41 Bottoms v Bottoms 249 Va. 410, page 1 of 7: ‘Although the presumption favoring a parent over a non-parent is strong, it is rebutted when certain factors, such as parental unfitness, are established by clear and convincing evidence. Bailes, supra. The term “clear and convincing evidence” is defined as the measure or degree of proof that will produce in the mind of the trier of facts a firm belief or conviction upon the allegations sought to be established. It is intermediate, being more than a mere preponderance, but not to the degree of proof beyond a reasonable doubt as in criminal cases; it does not mean clear and unequivocal. Fred C. Walker Agency, Inc. v. Lucas, 215 Va. 535, 540-41 (1975). The burden to show unfitness is upon the one seeking to alter the parent's right to custody. Walker v. Brooks, supra.’ And further at page 2 of 7: ‘In custody cases, the welfare of the child takes precedence over the rights of the parent. Malpass v. Morgan, 213 Va. 393, 399 (1972). But, when the contest is between parent and non-parent, this rule is conditioned upon the principle that a parent’s rights “are to be respected if at all consonant with the best interests of the child.”’. 42 Bottoms v Bottoms 249 Va. 410, page 2 of 7: ‘Following the mother's separation from Doustou, she continued a “relationship” with another man that had begun during her marriage. She contracted a venereal disease during this relationship that prevents her from having additional children. During the child's first year, the mother “slept with two or three different guys, maybe four, in the same room” with the child “where his crib was”.’ And: ‘the mother lived in a dwelling with yet another man who supported her for more than a year. After the mother “left” this man, she “lived with” a lesbian “couple”.’

359 lesbian relationship.” According to the mother, the relationship involves hugging and kissing, patting “on the bottom,” sleeping in the same bed, “fondling,” and “oral sex.” The mother testified that she loves Wade and that they “have a lifetime commitment.” At the time of the juvenile court hearing, the mother, the child, and Wade were living in a two-bedroom apartment with “Evelyn,” another lesbian. “At one time,” the child’s bed was in the room where the mother and Wade slept, having “sex in the same bed.” At one point in her testimony, however, when asked “how many times did you do it when the child was sleeping in the same bedroom,” the mother responded, “None.” She said that she and Wade displayed other signs of affection “in front of” the child.43 Despite observing that Wade had become a ‘“parent figure” to the child, who calls Wade “Da Da”,’ and expert evidence that Wade is ‘a very nice person’ who ‘genuinely loves the child’ the court found her to be unfit to be in the presence of the child.44 The trial judge was influenced by the court appointed guardian ad litem who reported by way of an apophasis: “The homosexual issue does not alarm me,” stating his belief “that a homosexual should be allowed to raise a child.” One matter “did concern” him about the mother. He referred to evidence that the mother separated herself from Wade after the juvenile court hearing, on the advice of counsel, to “help ... with the custody fight,” but returned to live with her two weeks later on the advice of new counsel. When asked why she is presently living with Wade if she thought living apart would help her regain custody, the mother responded, “I was taking a chance.” The guardian ad litem observed that the mother felt her individual “rights” were as important as her child’s. Summarizing, and noting “that custody is something that's flexible and can change if the circumstances change,” the guardian ad litem suggested to the court that the child's best interests, “at this time under this actual situation,” would be served by awarding custody to the grandmother.45

43 Bottoms v Bottoms 249 Va. 410, page 3 of 7. 44 Bottoms v Bottoms 249 Va. 410, pages 3 & 4 of 7. 45 Bottoms v Bottoms 249 Va. 410, page 4 of 7.

360 In other words the mother was selfish for placing weight on her lesbian relationship because this interest is mutually exclusive to the child’s best interests. The trial judge agreed: Stating that the mother’s conduct is “illegal,” and constitutes a felony under the Commonwealth's criminal laws, and that “her conduct is immoral”…46 The presumption that a parent is to be preferred in a custody case over third parties (but for clear and convincing evidence that they are an unfit parent) was not rebutted by anything more than the court’s sociobiological attitude to homosexuality as unnatural. This was made clear when the Court of Appeals over-turned the trial judges’ decision.47 Nevertheless this non-discriminatory view was rejected on appeal to the Virginia Supreme Court. The Supreme Court over-turned the Court of Appeal decision declaring that it had not granted sufficient deference to the primary finding of fact made by the trial judge that the mother was an unfit parent.48 The Supreme Court emphasised the mother’s sexuality pointing to her ‘illicit relationships with numerous men, acquiring a disease from one, and "sleeping" with men in the same room where the child's crib was located’, and:

46 Bottoms v Bottoms 249 Va. 410, page 4 of 7. 47 Bottoms v Bottoms 249 Va. 410, page 4 of 7. The Court of Appeals overturned the trial judge’s decision on the basis that: ‘… “the evidence fails to prove” that the mother “abused or neglected her son, that her lesbian relationship with April Wade has or will have a deleterious effect on her son, or that she is an unfit parent.” “To the contrary,” said the Court of Appeals, the evidence showed that the mother “is and has been a fit and nurturing parent who has adequately provided and cared for her son. No evidence tended to prove that the child will be harmed by remaining with his mother.” The court held “that the trial court abused its discretion by invoking the state’s authority to take the child from the custody of his natural mother ... and by transferring custody to a non- parent, ... the child's maternal grandmother.”’ 48 Bottoms v Bottoms 249 Va. 410, page 4 of 7. Among the stated considerations the Supreme Court mentioned at page 5 of 7: ‘the parent's misconduct that affects the child, neglect of the child, and a demonstrated unwillingness and inability to promote the emotional and physical well-being of the child. Other important considerations include the nature of the home environment and moral climate in which the child is to be raised’ and although ‘a lesbian mother is not per se an unfit parent’, ‘Conduct inherent in lesbianism is punishable as a Class 6 felony in the Commonwealth, thus, that conduct is another important consideration in determining custody’.

361 … we shall not overlook the mother's relationship with Wade, and the environment in which the child would be raised if custody is awarded the mother. We have previously said that living daily under conditions stemming from active lesbianism practiced in the home may impose a burden upon a child by reason of the “social condemnation” attached to such an arrangement, which will inevitably afflict the child’s relationships with its “peers and with the community at large.” Roe v. Roe, 228 Va. 722, 728 (1985). We do not retreat from that statement; such a result is likely under these facts.49 Based on this over-emphasis on the mother’s sexuality, the Court also ruled that she was selfish: In the present case, the record shows a mother who, although devoted to her son, refuses to subordinate her own desires and priorities to the child's welfare.50 Therefore, the mother’s sexuality reflected on her gender and consequently on her ability to parent. Yet again, this is indicative of sociobiological reasoning. The court is projecting its views about what it regards as natural and therefore appropriate for a woman to do as a parent. Later the case was re-opened by the mother on the grounds that the grandmother had thwarted her access to the child in contempt of the court.51 This also allowed her to seek to vary the restrictions on her contact in terms of her partner being present, and to allow her to have an active relationship with the child’s teachers.52 She also sought another review of the custody decision. This application failed and the mother appealed to the Circuit Court withdrawing the custody claim and persisting with a challenge to the onerous restrictions on her access. The Circuit Court varied the terms of visitation in her favour but maintained the restrictions concerning her partner

49 Bottoms v Bottoms 249 Va. 410, page 5 of 7. 50 Bottoms v Bottoms 249 Va. 410, page 5 of 7. In dissent Keenan J (with whom Whiting and Lacy JJ concurred) commented: ‘The record plainly shows that the trial court made a per se finding of unfitness based on the mother's homosexual conduct’, in Bottoms v Bottoms 249 Va. 410, page 6 of 7. 51 Bottoms v Bottoms (1997) Virginia Court of Appeals Record No 2157-96-2, 29 July 1997. 52 In the final hearing the Court of Appeals upheld the trial judge’s decision on this issue: ‘We find that the trial court did not abuse its discretion when it denied mother's request to participate in Tyler's school activities against the wishes of the child's legal custodian’, in Bottoms v Bottoms (1999) Virginia Court of Appeals Record No 0589-98-2, 29 June 1999, page 8 of 9

362 (expressly prohibiting all contact including verbal contact with Wade).53 The mother appealed this restriction to the Virginia Court of Appeals claiming it was contrary to the interests of the child and the mother, and that the decision erred in not compelling the child, mother, and grandmother to undertake joint counselling. The Court of Appeal agreed with the mother on the basis that the trial court had ‘erroneously declined to consider evidence of the relationship between mother and grandmother’, and that ‘while issues of adult sexuality and related behaviour are significant … such factors must be assessed by the court together with other relevant circumstances and balanced in a visitation arrangement which both benefits and protects the child.’54 The matter was returned to the trial judge for reconsideration. The mother was once again unsuccessful in removing the restriction on her partner’s contact with the child and appealed. The appeal was heard in the Court of Appeals, which was asked to consider whether the earlier decisions violated the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment of the United States Constitution.55 Because these constitutional issues were not raised at trial the Court of Appeals ruled it could not consider them in the absence of a ‘miscarriage of justice’.56 The appeal failed. However, in the subsequent case of A.O.V. v J.R.V. these constitutional arguments could not be avoided.57 There a mother sought to impose restrictions on the father’s access based on his homosexual relationship.58 This case upheld a trial decision granting the mother primary and joint custody of the children, and restricting the father’s access so that his “companion” could not reside with him on the grounds that allowing unrestricted visitation might expose the children to their homosexual

53 Bottoms v Bottoms (1997) Virginia Court of Appeals Record No 2157-96-2, 29 July 1997, page 2 of 4. 54 Bottoms v Bottoms (1997) Virginia Court of Appeals Record No 2157-96-2, 29 July 1997, page 3 of 4. 55 Bottoms v Bottoms (1999) Virginia Court of Appeals Record No 0589-98-2, 29 June 1999, page 3 of 9. 56 Bottoms v Bottoms (1999) Virginia Court of Appeals Record No 0589-98-2, 29 June 1999, page 4 of 9. 57 A.O.V. v J.R.V. (2007) Virginia Court of Appeals Record No 0219-06-4 & 0220-06-4, 27 February 2007. 58

363 lifestyle. During visits the father was prohibited from allowing his companion to stay over between the hours of 12 midnight and 6am or ‘engaging in public displays of affection in the children’s presence, leaving the children in his companion’s care, and discussing sexuality issues with the children’.59 Because this case had been decided after the landmark cases of Lawrence v Texas and Martin v Ziherl,60 the Virginia Court of Appeals could not avoid Constitutional arguments.61 In Lawrence v Texas the US Supreme Court held that a Texas criminal statute prohibiting same sex intimacy violated the Due Process Clause (the Fourteenth Amendment to the United States Constitution).62 For present purposes the Supreme Court held: It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.63 And: … that the Due Process Clause protects personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education — and Romer v. Evans, 517 U. S. 620, 624 — which struck down class-based

59 A.O.V. v J.R.V. (2007) Virginia Court of Appeals Record No 0219-06-4 & 0220-06-4, 27 February 2007, pp. 2 - 3. 60 Lawrence v Texas 539 U.S. 558 (2003) and Martin v Ziherl 269 Va. 35, 607 S.E.2d 367 (2005). In Martin v Ziherl the Virginian Supreme Court applied the rule in Lawrence v. Texas to declare a Virginian statute prohibiting non-marital sex was unconstitutional. The Virginia court declared that the rule against allowing a litigant to sue in tort where the plaintiff had been injured due to their participation in illegal activity did not apply to prevent a woman suing for contracting a sexual disease while having illicit sex according to a Virginian State law. 61 A.O.V. v J.R.V. (2007) Virginia Court of Appeals Record No 0219-06-4 & 0220-06-4, 27 February 2007, pp. 7. 62 Lawrence v Texas 539 U.S. 558 (2003). 63 Lawrence v Texas 539 U.S. 558 (2003), 567.

364 legislation directed at homosexuals — cast [at 560] Bowers’ holding into even more doubt.64 However, in A.O.V. v J.R.V. the Virginia Court of Appeal treated Bottoms as ‘weakened’ to the extent the lesbian conduct was illicit under Virginian criminal law by the decisions in Lawrence v Texas and Martin v Ziherl, but ruled Bottoms remains persuasive and strong given ‘the court’s primary concern is the best interest of the child, which requires consideration of actual harm to the child as a factor in determining that best interest’.65 What the Virginia Court of Appeal is saying is that the decisions in Lawrence v Texas and Martin v Ziherl are restricted to criminal matters and do not bear on the principle “the best interests of the child”. Clearly, Virginian courts have used sociobiological reasoning under the “best interests of the child” principle to discriminate against people on the basis of the sexuality in the case of men and women, and as Bottoms showed discriminating against women on the grounds of both their sexuality and gender.

Re C (a minor)

Another case where the “best interests of the child” principle facilitated an arbitrary exercise of judicial discretion, imposing patriarchy and homophobia, was the English case Re C (a minor).66 In this case an appeal court over-turned a trial judges’ decision (that had given primary custody to the mother) in favour a remarried father for the residence of a seven year old child because the mother lived in a lesbian relationship. It approached the best interests of the child by commenting: … although the judge may not allow his subjective views to affect his decision on what the child's welfare requires, he cannot abdicate responsibility merely

64 Lawrence v Texas 539 U.S. 558 (2003), 559 – 560. Lawrence v Texas over-ruled the earlier Supreme Court case of Bowers v Hardwick 478 U.S. 186 (1986) which had held that a Georgian statute making it a crime for two persons to engage in sodomy was constitutional, regardless of their sex of the defendants. 65 A.O.V. v J.R.V. (2007) Virginia Court of Appeals Record No 0219-06-4 & 0220-06-4, 27 February 2007, at 7. 66 Re C (a minor) [1990] EWCA Civ 9 (24 August 1990); C v C (A Minor) (Custody: Appeal) [1991] 1 Family Law Reports No 3, 223.

365 because the issue is a sensitive one on which differing views are held. What standards then should he apply if he is not to apply his own subjective views? In my judgment he should start on the basis that the moral standards which are generally accepted in the society in which the child lives are more likely than not to promote his or her welfare.67 Once again, a court turned to an apophasis in an attempt to obscure or at least minimise the appearance of homophobia: I make it clear that I am not saying that the fact that a mother is living in a lesbian relationship is conclusive, or that disqualifies her from ever having the care and control of her child.68 Yet, the lesbian relationship was so undesirable that it allowed the appeal court to prefer the father even though the mother had raised the child and was the ‘principal figure in her life’ until that point in time where residence was contested.69 Quite apart from the fact that a parent’s sexuality is an irrelevant consideration in terms of the best interests of the child,70 the apophasis is conspicuous given the qualification to that sentence requires a lesbian relationship to be a ‘sensitive loving lesbian

67 Re C (a minor) [1990] EWCA Civ 9 (24 August 1990), Balcombe LJ at page 6 of 8, adding: ‘… those standards may differ between different communities, and the judge may in appropriate cases be invited to receive evidence as to the standards accepted in a particular community, but in default of such evidence and where, as here, the child does not come from a particular ethnic minority, the judge is entitled, and indeed bound, to apply his or her own experience in determining what are the accepted standards.’ 68 Re C (a minor) [1990] EWCA Civ 9 (24 August 1990), Glidewell LJ, at page 5 of 8. And Balcombe LJ, at page 7 of 8: Of course, the fact that the mother has a lesbian partner is not of itself a reason for denying the mother the care and control of her daughter; the question is: in conducting the balancing exercise what weight should the judge give to the fact that, if care and control is given to the mother, the child's home will be the mother's home, with all that that involves?’, and at page 8 of 8: ‘In the hope of avoiding misunderstanding I summarise the effect of this judgment as follows. The fact that the mother has a lesbian relationship with Ms. McLachlan does not of itself render her unfit to have the care and control of her child. It is, however, an important factor to be taken into account in deciding which of the alternative homes which the parents can offer the child is most likely to advance her welfare. The judge did not give proper consideration to this factor.’ 69 Re C (a minor) [1990] EWCA Civ 9 (24 August 1990), at page 3 of 8. 70 I go further than Boyd who sees sexuality as ‘largely irrelevant’ in S. Boyd, “What is a ‘Normal’ Family? C v C (A Minor) (Custody: Appeal)” (1992) 55 Modern Law Review 269, 275.

366 relationship’, a standard not expected of a heterosexual relationship.71 It is also given away by the fact that the sexuality of the parents is only meant to apply when ‘all other factors are equal’ which was not the case here given that the mother had been the child’s primary parent for almost the entirety of the child’s life.72 What is significant about the case, quite apart from the unjust and oppressive result for both the child and her mother after 6 years together, is the court’s sociobiological reasoning at first instance and then on appeal. In obiter, at first instance, Ward J remarked: If he had to choose between an exclusively heterosexual lifestyle and a lesbian one, he would favour “the normal”.73 On appeal: … I regard it as axiomatic that the ideal environment for the upbringing of a child is the home of loving, caring and sensible parents, her father and her mother. When the marriage between father and mother is at an end, that ideal cannot be attained. When the court is called upon to decide which of two possible alternatives is then preferable for the child's welfare, its task is to choose the alternative which comes closest to that ideal. Even taking account of the changes of attitude to which I nave referred, a lesbian relationship between two adult women is an unusual background in which to bring up a child. I think that the mother herself recognises this, because the judge recorded her saving that she was sensitive to the problems that could rise and did not flaunt the sexual nature of her relationship. The judge had no evidence, and thus we have none, about the effect on a young child of learning the nature of a lesbian relationship and of her friends learning about it. Nevertheless it seems that the judge accepted, and it is certainly my

71 Re C (a minor) [1990] EWCA Civ 9 (24 August 1990), Glidewell LJ, at page 5 of 8. 72 The issue of residence was only contested after the mother requested that the child’s visit to her (by then remarried) father be extended while the mother and her partner obtained a new flat (after being evicted from their current flat). During this visit the father sought an order for custody and successfully obtained an interim order for care and control. At the trial Ward J granted custody to the mother and noted that the child had a loving relationship in both homes. 73 S. Boyd, “What is a ‘Normal’ Family? C v C (A Minor) (Custody: Appeal)” (1992) 55 Modern Law Review 269, 270, citing C v C (A Minor) (Custody: Appeal) [1991] 1 Family Law Reports No 3, 223, 226 – 227.

367 view, that it is undesirable that this child should learn or understand at an early age the nature of her mother's relationship. The judge seems to have thought that she was just as likely to acquire this knowledge and understanding if living with her father and stepmother and staying from time to time with her mother as she would if she lived permanently with her mother. In this respect, I think the judge was plainly wrong. Moreover, he seems to have disregarded the effect on Lisa of her school friends learning of the relationship. If or when they do, she is bound to be asked questions which may well cause her distress or embarrassment. If she is at school in Shrewsbury, living in a heterosexual household, it is much less likely that she will be exposed to this. These are factors to which, as I have said, the judge gave no weight. He struck the balance as if there were no lesbian relationship. If there had not been, his decision could not be faulted. But his disregard of these factors was in my judgment a plain error.74 Similarly, Balcombe LJ used a sociobiological argument to naturalise patriarchal heterosexist families and to deem homosexuality unnatural: If her home was to be with the father it would be a normal home by the standards of our society; that would not be the case if her home were with the mother. Further, he gave no consideration to the effect that having her home with the mother might have on the child. Since there was no expert evidence before him, the judge could not properly speculate on what effect this might have on the child's own sexual development, but he gave no consideration to the problems that coming from a home of this nature might cause to the child from the reactions of her contemporaries at school: problems which the mother

74 Re C (a minor) [1990] EWCA Civ 9 (24 August 1990), Glidewell LJ, at page 5 of 8. Glidewell LJ added that: ‘I also consider it desirable that the Official Solicitor should be invited to act as guardian ad litem to Lisa, and to consider as a matter of urgency whether to obtain and call at the rehearing appropriate expert evidence relating to the problem which arises in this case.’ Similarly, Balcombe LJ, at page 7 of 8 stated: ‘… the judge can only start with the approach that in our society it is still the norm that children are brought up in a home with a father, mother and siblings (if any) and, other things being equal, such an upbringing is most likely to be conducive to their welfare. If, because the parents are divorced, such an upbringing is no longer possible, then a very material factor in considering where the child's welfare lies is which of the competing parents can offer the nearest approach to that norm.’

368 herself recognised in her evidence although she dismissed them by saying “If she [the child] understands she will cope.”75 A clear inference from this judicial reasoning is that lesbian parents present an unnatural environment in which to raise a child and it follows that this is not in the best interests of the child.76 As Boyd has argued, this reasoning becomes a self- fulfilling prophecy because lesbian family structures tend to be “hidden” from view for fear of patriarchal heterosexist reprisal from courts and other authorities.77 Also, the “concern” expressed by these men for the child’s risk of negative consequences at school as a consequence of having a lesbian mother exacerbates this problem because: This argument allows one discriminatory act (homophobia in a community) to condone another (depriving lesbians and homosexual men of custody). It is analogous to the argument, now more or less in disfavour, that a child should not be given into the custody of a parent who has entered a mixed race relationship, for fear of teasing and discrimination in the schoolyard.78 The reasoning here is not anomalous or “cherry-picking” for the purposes of the argument advanced in this thesis. Take, for example, another case such as Piatt v Piatt,79 where the court considered both parents post-separation relationships in awarding joint, but primary, custody to the father. It held that the test is whether the

75 Re C (a minor) [1990] EWCA Civ 9 (24 August 1990), Balcombe LJ, at page 8 of 8. 76 S. Boyd, “What is a ‘Normal’ Family? C v C (A Minor) (Custody: Appeal)” (1992) 55 Modern Law Review 269. As Boyd argues at 273, as a general rule it is the patriarchal heterosexual family structure that has the more dubious record in terms of familial violence, child abuse and neglect.’ See also: A. Nicholson, “The changing concept of family: the significance of recognition and protection” (1997) 6 Australasian Gay and Lesbian Law Journal 13, 14, 15, 24, & 25. 77 S. Boyd, “What is a ‘Normal’ Family? C v C (A Minor) (Custody: Appeal)” (1992) 55 Modern Law Review 269, 273: ‘The ruling ideal of the heterosexual nuclear family remains very powerful nonetheless, and since men tend to remarry more often than women, they are more likely to be able to present an image of an “ideal” family to a court. Lesbian and homosexual families remain largely invisible, moreover, due to the penalties often attendant upon being visible, and the fact that statistics on “families” are often collected through a methodology which renders them invisible.’ 78 S. Boyd, “What is a ‘Normal’ Family? C v C (A Minor) (Custody: Appeal)” (1992) 55 Modern Law Review 269, 274: ‘The positive aspects which may derive from lesbian parenting, such as the development of children who are more open-minded and tolerant of differences, whether due to sexuality, race, class or disability, will most likely be raised outside the courtroom, as it is risky to introduce lesbian-positive arguments in that forum.’ 79 Piatt v Piatt 27 Va. App. 426, 499 S.E.2d 567 (1998).

369 parent’s sexual conduct has had an adverse impact on the child. Here the mother had two homosexual relationships and the father one heterosexual relationship. The court determined that the mother’s relationships provided a less stable home environment for the daughter. This was despite the fact that an expert had testified that there was no evidence in the literature that parental homosexuality had an adverse impact on children.80 The expert had also recommended the mother have primary custody because her parenting abilities were demonstrably broader than the father’s. Therefore, these cases represent instances where sociobiological excuses have been used by courts for the reproduction of patriarchal heterosexist structures. It is the court declaring what is “natural” by exercising discretion without any rational basis to do so. As a result many lesbians are conscious of this risk of reprisal purely because they have no choice but to live within a broader patriarchal heterosexist society. Therefore, it is understandable where their families are called in to question by the authority of a court at the behest of a man there might be some defensiveness on their part.81 Such was the situation in the final case to be discussed in this chapter: Re Patrick.82 Some

80 See also: A. Nicholson, “The changing concept of family: the significance of recognition and protection” (1997) 6 Australasian Gay and Lesbian Law Journal 13. 81 “Reprisal” in the sense that lesbians are treated as defying patriarchy, choosing to operate beyond it’s jurisdictional norms. As Boyd points out in terms of the “peer group” argument used by judges in “mixed-race” families and referring to Re C: ‘Since it has been recognised that this approach reinforces racist attitudes, and since studies indicate that concerns about the relationships of the children of lesbian mothers with their peers are overrated, the peer group argument used in cases involving lesbian or gay parents should be viewed as problematic. Both judge’s used the mother’s recognition that this was an issue which would have to be dealt with sensitively against her, by saying that she herself recognised the problems which would arise from their [lesbian] relationship. This point illustrates the Catch 22 nature of the difficult choices that lesbians face in trying to argue for custody in a court of law’, in S. Boyd, “What is a ‘Normal’ Family? C v C (A Minor) (Custody: Appeal)” (1992) 55 Modern Law Review 269, 273, 274, citing F.L. Tasker & S. Golombok, “Children raised by lesbian mothers: the empirical evidence” (1991) Family Law 184. 82 Re Patrick (An Application Concerning Contact) [2002] FamCA 193; (2002) 28 Fam LR 579. See also Thomas S. v Robin Y., 209 A.D. 2d 298, 618 N.Y.S. 2d 356 (November 17, 1994). Thomas is a case similar to Re Patrick subordinating a lesbian family to the power of patriarchy. There the Appellate Division of the New York Supreme Court overturned a family Court decision that had denied a sperm donor paternal rights. In both cases the sperm donor had initially agreed to respect the integrity of the lesbian family structure.

370 space is devoted to this case because of its size, because it was so evenly poised in terms of the facts, and because of its salience to the issues already raised in this chapter.83

Re Patrick

In Re Patrick the court privileged patriarchy under the rubric of the best interests of the child awarding a “parental role” to a sperm donor against the wishes of the child’s lesbian parents. Without apologising for the reasoning, some caution is needed here.84 In my not unprivileged opinion, and without access to all the evidence, the case appeared evenly poised but for the issue of whether a court should respect a lesbian family structure and not disturb it simply on an application by a sperm donor. The assertion being made here is that by taking a feminist lesbian standpoint, it is clear that the judge did not consider the relative imbalance in power and instead based the

83 I am well aware of the tragic events that ensued in this case but unlike McConvill and Mills (in J. McConvill & E. Mills, “Re Patrick and the Rights and Responsibilities of Sperm Donor Fathers in Australian Family Law” (2003) Vol 3 No 2 QUT Law & Justice Journal 1) I choose not to elaborate on those matters because they add little or nothing to an analysis of the reasoning. 84 This is not to suggest that the judge made the wrong decision on the “facts” in Re Patrick (An Application Concerning Contact) [2002] FamCA 193. Guest J was in a difficult position since he was compelled to act within the parameters of a legal system aimed at maintaining and reproducing a patriarchal heterosexual model for families, and accordingly compelled to speak to an audience dominated by persons with that expectation in mind. Guest J was aware of the restrictions he faced remarking at 126: ‘It also highlights the substantial difficulties of attempting to incorporate same-sex families into global definitions of parenthood premised on a heterosexual model.’ And at 134: ‘Whilst the Family Law Reform Act 1995 enacted notions of parental responsibility which, in certain areas reflected the then “state of the art”, they failed in significant respects to move beyond the general situation of a child being born into and/or living in a heterosexual household.’ Hence the Act refers to “either or both parents” excluding the possibility for more than two parents. Further, at 140: ‘It is clear that gay and lesbian families were not considered by the legislature when s 60H of the Act was being drafted. These families differ in significant ways from heterosexual families who access artificial insemination services. … That section was drafted with a heterosexual model in mind and thus fails to recognise the complexity of family forms that might be created through artificial insemination. Given the diversity of gay and lesbian families and the varying role donors play in the lives of children conceived using their donated sperm, the legislature needs to reassess s 60H of the Act and to consider the ramifications of its application in cases such as this.’

371 decision on what he felt was in the child’s best interests, greater access to a ‘father figure’ which effectively naturalised patriarchy.85 In this sense it can be argued that the decision was wrong, being based on a sociobiological family structure. However, caution is warranted for the reason that standpoint theory does not romanticize the oppressed or treat them as automatically innocent.86 In Re Patrick, a lesbian couple sought to restrict what they saw as a sperm donor pursuing greater rights in relation to their child. Justice Guest started with what he saw as a “neutral” position trying to remove “sexuality” as a factor because the parties (the co-parents and the sperm donor) were homosexual.87 However, by doing so the

85 Re Patrick (An Application Concerning Contact) [2002] FamCA 193, 87. S. Boyd, “What is a ‘Normal’ Family? C v C (A Minor) (Custody: Appeal)” (1992) 55 Modern Law Review 269, 276 – 277. Boyd comments: ‘Feminists have criticised the way in which the state and legal policies have reinforced a particular familial form, and have stressed the ways in which this type of family is oppressive to women. This idealised type of family is heterosexual, nuclear, generally white and middle class, and usually involves a dependent role for the woman who has more responsibilities for home and childcare than the man, and who preferably remains outside the workforce. … Cases like C v C illustrate … the ways in which a dominant notion of “the normal family” can marginalise other familial forms, such as black families and lesbian families. … [at 277] This same public policy has had a way of diminishing the ability of alternative familial forms, such as same-sex families and black families to flourish.’ 86 See Chapter 7, and also D. Haraway, “Situated Knowledges: The Science Question in Feminism and the Privilege of Partial Perspective” (1988) 14(3) Feminist Studies 575, 583 – 584; and Science Question in Feminism Revisited’: Structured Knowledge and strategic Methodology” (2001) 26(2) Signs 527, 528. 87 Re Patrick (An Application Concerning Contact) [2002] FamCA 193, 137, citing, “The Changing Concept of Family”, Vol. 11 Australian Journal of Family Law, p 13, (emphasis added): ‘In my view it would stultify the necessary progress of family law in this country if society were not to recognise the applicants as a “family” when they offer that which is consistent and parallel with heterosexual families, save for the obviousness of being a same-sex couple. The issue of their homosexuality is, in my view, irrelevant. As Nicholson CJ said: “… Sexual orientation is no basis upon which to make assumptions about the quality of an individual’s relationship or parenting capacities of a person. That is why sexual orientation in and of itself, has been held to be an irrelevant matter in disputes about children under the Family Law Act, unless it somehow impinges upon the best interests of a child.”’ Then at 137 - 138: ‘Whilst there have been a number of relationship difficulties specific to the parties in these proceedings, the issue concerning contact between the father and Patrick which I have addressed in this judgment is not dissimilar from that arising in traditional heterosexual family disputes and decided daily by the Court. It is not unique. It is those other issues that bear [at 138] prominence

372 case then turned on gender, on the basis of patriarchy, that a child’s best interests are served by greater access to a father figure. Crenshaw makes the point that in cases where there are competing marginalised interests courts generally speaking have not been able to grapple with the ‘intersectional” complexity.88 This was certainly true of Re Patrick because here the judge thought he was progressive embracing a homosexual family concept only to envisage that structure according to male homosexuality.89 Justice Guest followed a long adversarial tradition that where there was contested evidence one party’s account would be preferred to the others.90 Proceeding on this basis Guest J found that the parents were ‘mistaken’, ‘irrational’, ‘ideological’ ‘unreasonable’, ‘fanciful’ and less reliable witnesses than the donor, while the donor was commended for his ‘patience and sensitivity’, ‘goodwill’, ‘sacrifice and including the concept of ‘family’ and the father’s role within that family as a donor of genetic material. I do not see him as being a member of the family construct. It is his relationship with Patrick that is the central focus of his role and which should be permitted to grow parallel with the happiness and well- being of the ‘family’. When there are tensions between these two positions, I take into account all those relevant considerations to which I have referred and, in the exercise of my discretion, as I am required to do, make my determination in Patrick’s best interests.’ 88 K. Crenshaw, “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics” (1989) University of Chicago Legal Forum 139, 148. 89 Re Patrick (An Application Concerning Contact) [2002] FamCA 193, 136, citing, “The Changing Concept of Family”, Vol. 11 Australian Journal of Family Law, p 13: ‘It is also appropriate to recall what Nicholson CJ had to say when dealing with the changing concept of family, namely: “One of the fundamental misconceptions which plagues me is the failure to understand that heterosexual family life in no way gains stature, security and respect by the denigration or refusal to acknowledge same-sex families. The sum social good is in fact reduced, because when a community refuses to recognise and protect the genuine commitment made by its members, the state acts against everybody’s interests”.’ 90 Re Patrick (An Application Concerning Contact) [2002] FamCA 193, 18: ‘given the antithetical evidence of the parties in their respective Order 30 Affidavits, credibility would be an important issue for my determination.’ And at 19: ‘… matters of credit assumed significance in assisting me in my determination of relevant issues where the parties have advanced disparate versions of significant events. I have had the special advantage of observing the parties and their witnesses in court. In Minagall v Ayers (1966) SASR 151 at 154 Hogarth J had this to say: “It is, of course, proper and usual for the court to take note of the demeanour of a witness when in the witness box giving evidence. This is one of the most common and valuable means available in the court for arriving at the truth of the matter.”

373 concession’ and his application was ‘carefully considered’, and he was a ‘sensitive’, ‘precise and credible’ witness, ‘not controlled by dogma’ and he was ‘calm and reasoned’.91 However, this conclusion about the credibility of the protagonists depends wholly upon the standpoint taken by the judge, which granted no deference or empathy to a feminist lesbian standpoint. As mentioned previously, and in the absence of any good reason to the contrary, a feminist lesbian standpoint is preferred as a starting point on the basis that as a group they are the more marginalised than gay men being doubly disadvantaged on grounds of gender and sexuality.92 A recurrent theme in the cases above was the judiciary’s explicit denial of the relevance of a particular issue (lesbian sexuality), which was ultimately a material factor in those decisions.93 Here the apophasis was that the mother’s understandable fears were interpreted as ideological because she was adamant that the sperm donor ought not be afforded the rights of a traditional father lest that undermine Patrick’s family unit – yet the judge denied he was deciding the case on the issue of

91 Re Patrick (An Application Concerning Contact) [2002] FamCA 193, 3, 27, 30, 36, 39, 42, 69, 78, 100, 111, 113, 114, 116, 117, 118, 119. At 114: ‘They, but in particular the mother, have been obsessed with the fact that he is not to have any role in Patrick’s life in a natural, ordinary, parental and fatherly manner.’ While at 27, the donor was ‘credible and persuasive’. Further, at 111, Guest J stated: ‘In my view, considerable credit should be accorded to the father for his patience and sensitivity in achieving the current situation. I am confident that he will maintain that sentient approach and his responsiveness to the child’s sensibilities.’ 92 As Crenshaw points out, to do otherwise is to marginalize ‘those who are multiply-burdened and obscures claims that cannot be understood as resulting from discrete sources of discrimination’, in K. Crenshaw, “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics” (1989) University of Chicago Legal Forum 139, 140. 93 Boyd also refers to this judicial practice in Re C (a minor) noting that: ‘Both judges [Glidewell LJ and Balcombe LJ] were careful to state that the mother’s lesbian relationship was not conclusive in deciding the custody issue against her, a statement now almost routinely made in such cases. They agreed however, that the trial judge had not taken this factor sufficiently into account. Both went on to make remarks indicating that as long as a heterosexual father was providing a home environment which approximated the “norm” in the eyes of a judge, it will be difficult for a lesbian mother, particularly one with a visible partner, to obtain custody.’ Per S. Boyd, “What is a ‘Normal’ Family? C v C (A Minor) (Custody: Appeal)” (1992) 55 Modern Law Review 269, 271.

374 sexuality.94 Despite this denial, sexuality was the decisive issue for both Guest J and the mother. 95 This is clear from Guest J’s failure to understand the mother’s narrative throughout the case which had the support of experts.96 The view of those experts is captured by Millbank: Lesbians have generally appeared in litigation defensively, almost exclusively as mothers defending their fitness in child custody proceedings with ex- husbands or in welfare proceedings brought against them by the state. Through 1995 and 1996, a number of cases appeared in which women were the litigants, using the courts to seek access to benefits or rights from former partners (such as spousal or child support) or from the state (such as marriage or adoption rights). … all of these actions are about contesting meaning; the meaning of family.97 At one point Guest J recognised the relative disadvantage of the mother and co- parent.98 However he rejected the idea that the donor might in any way contribute to that disadvantage preferring instead to give weight to the natural benefits of a father

94 Re Patrick (An Application Concerning Contact) [2002] FamCA 193, 35: ‘There were numerous examples in the course of the mother’s evidence that overwhelmingly revealed her antipathetic and stubbornly resistant attitude to the father having an active traditional fatherly role in Patrick’s life. In the course of cross examination, Mr Udorovic enquired whether there was any room in Patrick’s life for a father to which the mother starkly replied “… if you mean by that word, a parental role, no”. I observed the mother to be quite dispassionate, matter of fact and resolute in giving that answer. She continually maintained that her family relationship would be damaged if the father were permitted contact as sought. She conceded however that there would be no damage to their relationship if on contact, he “… only played with him”, but went on to qualify that by alleging the father did not obey their instructions.’ 95 Re Patrick (An Application Concerning Contact) [2002] FamCA 193, 32 96 Re Patrick (An Application Concerning Contact) [2002] FamCA 193, 75 - 77, 87 – 90, & 96. 97 J. Millbank, “Which, then, would be the ‘husband’ and which the ‘wife’?: Some Introductory Thoughts on Contesting ‘the family’ in Court” (1996) 3 Murdoch University Electronic Journal of Law 1 – 11, at 2, footnotes omitted. 98 Re Patrick (An Application Concerning Contact) [2002] FamCA 193, 32: ‘I see that as no more than a flippant expression of a view seriously held by the mother, namely that she co-exists with the co- parent in a discriminated and socially disadvantaged minority group. I do not regard that as unrealistic.’

375 figure for a child.99 As a consequence Guest J was blind to all but the mother’s apparent recalcitrance to the obvious benefits of another significant (male) adult in the child’s life.100 Hence the behaviour of the mother was interpreted as patriarchal defiance without the need for those actual words: There were numerous examples in the course of the mother’s evidence that overwhelmingly revealed her antipathetic and stubbornly resistant attitude to the father having an active traditional fatherly role in Patrick’s life.101 It appears to me that the mother is and has been plagued by an irrational application of definition to a situation where it was simply neither feasible nor appropriate to do so.102 So too the attitude of the co-parent was characterised as defiant and irrational: In my view, that attitude of the co-parent is unfounded and irrationally based. I accept the father’s evidence about his stated intention as set out in this judgment and in my view, the fear expressed by the co-parent is groundless.103 This also meant that the donor was viewed as honourable104 and had acted at all times selflessly with Guest J rejecting any possibility that he might be contributing to the discrimination experienced by a lesbian family:

99 Re Patrick (An Application Concerning Contact) [2002] FamCA 193, 29, Guest J opined: ‘She said that contact could not work if the father were to act as a parent. Somewhat challenging to the particular facts of these proceedings, she denied that it was ‘artificial’ to create such a situation.’ 100 ‘There was a clear tendency on her part to descend into non-responsive speeches and monologues emphasising the forcefulness of what I perceived to be an intransigent and uncompromising belief in her stated position before the Court’, per Guest J at 19 in Re Patrick (An Application Concerning Contact) [2002] FamCA 193. At 32 Guest J reasoned: ‘From what I have both heard and read, it is doubtless true that children can be happily raised within a homo-nuclear family, but the difference here is that the father desires and has always desired to play an active and fatherly role in the life of his son.’ 101 Re Patrick (An Application Concerning Contact) [2002] FamCA 193, 35. 102 Re Patrick (An Application Concerning Contact) [2002] FamCA 193, 30. 103 Re Patrick (An Application Concerning Contact) [2002] FamCA 193, 37. At 38 – 39: ‘She complained that the father was prioritising the importance of biological parenting over that of psychological parenting. I do not see it that way and which view is also inconsistent [at 39] with the evidence of the father which I accept. The co-parent made it clear that her position was that if the father was “… a parent”, then the lesbian community would need to take that into account in the future.’ 104 Re Patrick (An Application Concerning Contact) [2002] FamCA 193, 69.

376 In the course of her evidence, the mother at one stage angrily exclaimed that the father was the sort of person who would lie in order to bolster his case in the pursuit of his contact with Patrick. I reject that evidence. …. [at 32] The mother repeated an allegation she made in an affidavit that it was the father’s intention to try to ‘destroy’ her family. She said that she was quite serious about that. I regard that evidence as simply fanciful in the circumstances.105 It is clear in several places in the judgement that the mother was seeking legal approval for her right to self-determine her family structure without it having to conform to patriarchal heterosexist norms.106 From a feminist lesbian standpoint it is no less plausible to concur with the mother, the experts, and the literature to read Re Patrick as a story where the sperm donor progressively demanded (perhaps bullied using manipulation) more and more “influence” in the child’s life.107 This approach would have a distinct political and

105 Re Patrick (An Application Concerning Contact) [2002] FamCA 193, 31 & 32. At 39 – 40: ‘The father’s attitude towards his contact with and parenting of Patrick was precise and credible. The father was sensitive to the assertion by both the mother and co-parent that they were not accorded respect by society as a same-sex couple bringing up a child. For that reason, and more, he agreed to them having day to day and long term care and decision making for the child. He observed that such an order was very important to them and hoped by consenting to those orders it would show his recognition and [at 40] respect for them as Patrick’s parents and demonstrate that he accepted the fact that his position was “… one down” from their own. I accept that evidence.’ 106 For instance, at 31 - 32: ‘In the course of her evidence, the mother said that there was no need for a “… parental” father in Patrick’s life. When asked why Patrick should be different from any other child and not have a right to know his father, the [at 32] mother jauntily responded “… because he’s got leso’s for parents”. I see that as no more than a flippant expression of a view seriously held by the mother, namely that she co-exists with the co-parent in a discriminated and socially disadvantaged minority group. I do not regard that as unrealistic. She said that if a parental relationship developed between the father and Patrick, it would conflict with the parenting offered by the co-parent and herself.’ Further at 32: ‘The mother agreed … that her objection to contact was based upon a fundamental belief that children can be raised in a lesbian household without a father (in the traditional sense). She said that she was seeking to have that belief sanctioned by a court order. Such evidence is consistent with that deposed to by her in her affidavit filed on 26 May 2000 that there was “… no room in our relationship for a ‘father’ …”.’ Per Re Patrick (An Application Concerning Contact) [2002] FamCA 193. 107 Re Patrick (An Application Concerning Contact) [2002] FamCA 193, 30: ‘She saw his contact with Patrick as being ‘intrusive’ upon her relationship with the co-parent “… because he’s enacting a

377 ethical advantage over the patriarchal approach taken by the judge because it would recognise the asymmetrical power between a privileged male and two women who were by comparison multiply disadvantaged. For instance, it is possible to read the facts and interpret them as revealing the donor pushing the limits of agreed boundaries during contact in an attempt to frustrate the (‘unreasonable’) controls placed on him by the parents.108 There is some indication for this in the evidence of witnesses and in the expert reports.109 It was also probable that the parents did indeed change their minds concerning the degree of contact with the donor after their relationship soured. There was evidence that the relationship soured after the donor had breached a term of their agreement. At a private social gathering, the donor made the mistake of announcing words to the effect that, “… the mother and I are having a baby”.110 This breached an existing agreement with the parents not to make any public announcements about the conception until the pregnancy had reached 12 parental role” and then went on to add that he was utilising contact to collect affidavit material for court purposes.’ 108 Re Patrick (An Application Concerning Contact) [2002] FamCA 193, 30. 109 See for example the agreement reached between the parties concerning contact visits, and made after several visits in March 2001, which is presented at pages 41 - 42 of the judgement in Re Patrick (An Application Concerning Contact) [2002] FamCA 193. It is clear from this agreement that the donor had not been a “Saint” during visits as much as it is clear that the parents were “over-controlling”. In particular paragraphs (iii), (xii), (xvii), (xviii), (xix), and (xxii) show manipulative behaviour on the part of the donor whether he was conscious of that or not. At page 14 the Court also noted the donor’s “stalling tactics” during contact visits at LD’s house, which prompted the following admission from the donor’s lawyer: ‘There has been an agreement that our client will begin the ‘goodbye ritual’ by packing up his things before the end of the contact visit and being ready to leave rather than LD signalling the end of the contact visit by announcing that there are just a few minutes left, Patrick being passed to her and whisked away to the back of the house whilst our client packs up and prepares to leave.’ At 34, part of a letter written by the mother to the father had this to say: ‘… We also wish to note that during the last contact LD requested that you spend a good part of the contact in her living room, and not in the front yard, however you did not respect this request. This request was made because it is easier for LD to be available to Patrick when you are all in the lounge room. Her front yard is also quite open to the public, and your continued use of this space during contacts undermines her privacy. We hope in the future that you will comply with such requests. We feel that LD has been extremely generous in making herself and her house available during contacts, and in providing you and your guests with privacy and time alone with Patrick. It concerns us when LD is not accorded the respect that she deserves.’ 110 Re Patrick (An Application Concerning Contact) [2002] FamCA 193, 63.

378 weeks. It was significant from the parents’ point of view because they represent a family structure alien to law and positively discriminated against by society.111 Consequently, the donor apologised to the parents at their next meeting claiming he did not intend any disrespect to the co-parent. However, it is clear from the judgement that from that point forward the parents became wary of the donor’s motives because they advised the donor at that meeting that they did not want him present at the birth. In the course of cross-examination about these events, the donor said: … he was surprised at what the mother said about him not being present at the birth. It was his evidence that she said (words to the effect) “… no, you’re not listening, we don’t even want you to come to the hospital”. He said that it was clear then that things had taken “… a pretty bad turn” and he was surprised that the decision had been made so long before the birth. He agreed that his presence at the birth was discussed [previously] and agreed that the mother said it was ultimately to be at her discretion.112 Despite this evidence, Guest J empathised with the donor so that any hurt or defensiveness on the part of the parents that the donor may not properly recognise their family structure was outweighed by the distress to the donor being denied the opportunity to attend the birth.113 The evidence that the father pushed boundaries is clear from his behaviour when he made the “announcement”, when he pressed for a reconsideration of the mother’s decision about his presence at the birth, his attempts to contact or locate the parents after they had gone to great lengths to avoid his unwelcome advances (in the sense that he sought escalating contact with Patrick), and in his conduct at the conclusion of scheduled contact visits with Patrick when he would leave “packing-up” until the last

111 On the issue of discrimination Guest J in Re Patrick (An Application Concerning Contact) [2002] FamCA 193, remarked at 140: ‘Both the mother and co-parent gave evidence of considerable discrimination against lesbian families and indicated that they, together with Patrick, are part of a socially disadvantaged minority group. I found this evidence to be of concern.’ 112 Re Patrick (An Application Concerning Contact) [2002] FamCA 193, 65. 113 Re Patrick (An Application Concerning Contact) [2002] FamCA 193, 65: ‘It is clear to me from the totality of the evidence, that the father’s exclusion from the birth process was a matter of deep and serious concern to him and was, as he saw it, contrary to that which he had been earlier led to believe would take place. … However, I am satisfied that he was led to believe on that occasion that he would have a role, being one that was very important to him.’

379 minute. Taken separately each of these matters may have been benign or trivial but in the context of a loss of trust, and together with a consciousness of a patriarchal society, a potentially hostile legal system, and a fundamental socio-political lack of recognition and respect for families structured around a lesbian relationship, the parents defensive responses are at the least understandable. From this perspective, the parents wrote to the donor, and said, in part: Patrick has contact with lots of people who aren’t in his direct family or extended family but who are nevertheless significant. This includes the contact he has with you and your family. Patrick will know that you and your relatives have a biological relationship to him because he will know that you are his donor. We are happy to refer to you as the father in Patrick’s presence, but absolutely do not accept or support you referring to yourself, or encouraging Patrick to call you dad, father or any other such title. Nor do we accept or support familial terms like grandmother/grandson, aunt/nephew or cousin to be used in Patrick’s presence in reference to your relatives. … Patrick lives in a cultural and community setting in which his family as we define it is acknowledged and affirmed:- by us, his extended family, our friends, his playgroup and the broader gay-friendly members of our society. He often hears the word donor and already knows many children in similar situations who have varying levels of contact with their donors. Patrick will grow up knowing the difference between a donor and a father. The discrimination against lesbian families is considerable and the decisions we are making in regard to how to support Patrick in this regard are not made on a whim but rather through extensive personal experience and research:- books, articles, conferences, support groups, professional advice and anecdotes. Patrick is part of a socially disadvantaged minority group, and thus has special needs … We believe that you can chose to make Patrick’s life easier by supporting us in the decisions we make as Patrick’s parents, and that you can use contacts as a time in which to establish a relationship with Patrick which is not based so much on pre-conceived roles such as ‘father’ and ‘son’ but on a more individual basis. …114

114 Re Patrick (An Application Concerning Contact) [2002] FamCA 193, 11, original Court emphasis.

380 Clearly, the couple felt that it was important that their view of family was not undermined by the father’s insistence on traditional and orthodox familial labels, and that they intended to make an important distinction between “biological” and “significant” family relationships. As an indication of the patriarchal view expressed by the donor and endorsed by the Court it is appropriate to consider the donor’s letter in reply: In no way do I wish to undermine your relationship and I haven’t sought to do this in the past. I do however remain father to Patrick and have not given up any of the responsibilities or rights associated with fatherhood. … Further I am concerned at the confusion Patrick might experience if I am described to him other than as his father. I believe it is important that Patrick should know that he does indeed have a father and one who he has seen regularly and continues to see regularly. It is undesirable for Patrick to grow up believing that there is something missing in his life, his father, when that is clearly not the case at all. It is far better for Patrick to know that he has a father who loves him very much and who he sees on a regular basis. This may not be what you both want and it may not be what I want but I believe that it is in Patrick’s best interests.115 This passage highlights that the donor did have some trouble understanding the situation from the point of view of lesbian parents. It seems he was keen not to undermine their relationship with Patrick but he was less conscious of their concern that what he was in fact doing was undermining the integrity and security of their family. The donor’s letter also appears to have been written with a judge in mind whereas the mother and co-parents letter did not seem so conscious of their letters likely impact on a male judge. Whether or not that analysis is correct, the father’s letter received a more favourable response from Guest J. This is clear in the judge’s introduction of each letter: On 26 October 2000 the mother and co-parent wrote a letter to the father and (inter alia) requested that he did not refer to himself as Patrick’s ‘… dad’ during contact and not to refer to members of his family as Patrick’s relatives. In the course of that letter they had this to say …116

115 Re Patrick (An Application Concerning Contact) [2002] FamCA 193, 12. 116 Re Patrick (An Application Concerning Contact) [2002] FamCA 193, 10.

381 The father replied to that letter on 6 December 2000. In my view, it was a conciliatory, sensitive and understanding letter in which he had this to say …117 These contrasting “introductions” highlight once more the central issue at stake in this case which was the clash between the right of a family to define its own structure and a dominant patriarchal culture asserting a sociobiological view that a child needs a “father”. 118 Section 8 of the judgement was dedicated to the issue of whether the donor was a “parent” for the purposes of the Family Law Act.119 This was because: An important matter raised by the parties and referred to in the agreed Facts in Issue, was whether or not the father in these proceedings was ‘a parent’ pursuant to the relevant provisions of the Act.120 Throughout the judgement, Guest J chose to refer to the donor as the “father”: … the donor (to whom I shall refer as the father, which is not a statement of law) entered into an agreement with the mother and the co-parent to provide genetic material for the purpose of artificially inseminating the mother.121 This unnecessary choice at law, no doubt made out of respect for the successful applicant in the case, had important negative normative consequences. As Guest J pointed out, as the law presently stands neither the mother’s partner (whom he called the “co-parent”) nor the donor were parents for the purposes of the Family Law Act.122 This unnecessary exercise of judicial discretion illustrates how sociobiology can function as an ideology. In Guest J’s own words:

117 Re Patrick (An Application Concerning Contact) [2002] FamCA 193, 12. 118 Re Patrick (An Application Concerning Contact) [2002] FamCA 193, 37 – 38: ‘The co-parent said that if the court determined that the father was “… not a parent” but an “… interested party” (to use the term of Mr Udorovic), she would be satisfied in part and in the absence of an amicable agreement, the only issue then remaining was the quantity of contact.’ 119 Re Patrick (An Application Concerning Contact) [2002] FamCA 193, 120 – 129. 120 Re Patrick (An Application Concerning Contact) [2002] FamCA 193, 120. 121 Re Patrick (An Application Concerning Contact) [2002] FamCA 193, 1. 122 See for example the case Re Mark [2003] FamCA 822. This was a case where the sperm donor (“X”) and his partner (“Y”) of ten years sought a declaration that they were the parents of a child “Mark”. Mark was born to “S” using a donor egg that had been fertilized with X’s sperm in vitro. Basically X and Y had a surrogacy agreement with “S” and her husband who resided in the United States where Mark was born in May 2002. Pursuant to a California Court order the birth certificate carried the names of X as the father and S as the mother. From the time of birth until the declaration

382 On the face of its plain wording, s 60H(3) of the Act, as it presently stands, provides that the father is not a ‘parent’ of Patrick, despite the fact that the child bears his genetic blue print.123 Further, the donation of sperm is sacred: I am quite satisfied that he has never relinquished nor wavered in his desire to be part of Patrick’s life. He has actively, solicitously and patiently contributed to his conception.124 Equally as important, and not receiving the same degree of consideration, was the issue of whether or not the co-parent was a “parent” for the purposes of the Act or whether, like the donor she was to be accepted as “any other person concerned” with the child’s welfare under s. 65C(c) of the Act.125 It was enough for Guest J that the co- parent was recognised as a “parent” in the reports of Dr Adler and Mr Papaleo, while the donor deserved statutory recognition: To be Patrick’s biological father in the circumstances as found by me and yet denied by bare statutory definition appropriate nomenclature as one of his ‘parents’ in my view sits awkwardly with the provisions of an Act which regulates family law in this country. It falls seamlessly from the expert was sought, Mark had been cared for by X and Y and a month after his birth they family returned to Australia. Justice Brown in the Family Court determined that X and Y were persons ‘concerned with the child’s care’ and on that basis were granted responsibility for the long-term and day-to-day care, welfare and development of Mark. At 174: ‘Whether or not he is Mark’s parent for the purposes of Pt VII of the Family Law Act, I am satisfied Mr X is a person concerned with Mark’s care, welfare and development. He is his biological father and has shared the responsibilities which routinely fall upon parents since Mark’s birth. Likewise, I am satisfied Mr Y is a person concerned with Mark’s care, welfare and development. Since Mark’s birth he has shared his care with Mr X, and shared the other responsibilities referred to. There is thus no question that each of the applicants has the status to make this application.’ This meant that the gay couple were not declared to be the legal parents of Mark despite the fact that there was no respondent opposing the application, a favourable court counsellor’s report and that S did not to contest the matter. Instead they were held to have the responsibilities of parents but not the legal status of a parent. 123 Re Patrick (An Application Concerning Contact) [2002] FamCA 193, 116. 124 Re Patrick (An Application Concerning Contact) [2002] FamCA 193, 117. 125 Re Patrick (An Application Concerning Contact) [2002] FamCA 193, 131-132: ‘It is currently open to a lesbian co-parent to obtain a parenting order as a “… person concerned with the care, welfare or development of the child” (s 65C(c) of the Act) as occurred in these proceedings, and this will remain the principal means of legalising the co-partner’s future relationship with [at 132] the child.’

383 evidence of both Dr Adler and Mr Papaleo that the mother and her committed lesbian partner in their homo-nuclear relationship are the child’s ‘parents’, but that a similar and appropriate recognition is not accorded to the biological father.126 The judge added that any failure to appropriately recognise the donor’s biological status was nevertheless protected by the best interests of the child. 127 However, this emphasis on the father’s role being in the best interests of the child is a view mandated more by patriarchal ideology about what is “normal” or “natural” than it is necessarily mandated by the Act – it is for this reason sociobiological. A key concern for a feminist lesbian household is the battle to live independently of patriarchal norms and control. Patriarchal norms and control may be invisible to men who are unaware of their ubiquity and apparent naturalness, but this is all too obvious for those on the receiving end of the discrimination. This explains why the co-parents were condemned by the judge for making ‘philosophical and ideological bases upon which [they] predicated their case’.128 At the same time the donor was not regarded as presenting an ideological argument that a family is better off having a fatherly figure. The co-parents, however, were being “irrational” and “ideological” defying patriarchal authority: One of the bases also for the co-parent’s view that contact should only take place two to three times per year was her fear that the father would, at some time in the future, make an application for residence of Patrick. She said that she needed to be secure that Patrick would not be taken from her. As I have said, that is not a position I would accept as having a realistic platform in the current circumstances, and both the mother and the co-parent should, in the

126 Re Patrick (An Application Concerning Contact) [2002] FamCA 193, 129. 127 Re Patrick (An Application Concerning Contact) [2002] FamCA 193, 129: ‘As matters presently stand, the father’s position is this. Patrick has the right of contact “… with other people significant to (his) care, welfare and development”. See s 60B(2)(b) of the Act. As a person who is “… concerned with the care, welfare and development of the child”, the father may apply for a parenting order pursuant to the provisions of s 65C of the Act. In that event, the child’s best interests are of paramount consideration (s 65E of the Act) and the considerations pursuant to s 68F(2) apply. On that basis the father, whilst not a ‘parent’ can have certain parental responsibilities conferred upon him within s 61D(1) of the Act.’ 128 Re Patrick (An Application Concerning Contact) [2002] FamCA 193, 36.

384 result, leave this court safe in the belief that as matters presently stand they are the acknowledged residence parents of Patrick and responsible for both his long term and day to day care, welfare and development. The co-parent somewhat surprisingly, expressed a personal antipathy towards the father. She said that she found his behaviour at contact inappropriate and that his attitude towards her had caused “… enormous pain”. She asserted that the father had actively sought to exclude her from Patrick’s life. There was no basis for that view and was inconsistent with the evidence of the father. Despite an evening break, the following morning the co-parent said that the father had caused her enormous pain and suffering and that his attitude to her could be seen from what was happening in the court room with a “… total concentration on the mother and marginalisation” of her own role. She complained that the father was prioritising the importance of biological parenting over that of psychological parenting. I do not see it that way and which view is also inconsistent with [at 37] the evidence of the father which I accept. The co-parent made it clear that her position was that if the father was “… a parent”, then the lesbian community would need to take that into account in the future. She added, and with considerable insight, that the rights of donors also required to be protected. The co-parent said that if the court determined that the father was “… not a parent” but an “… interested party” (to use the term of Mr Udorovic), she would be satisfied in part and in the absence of an amicable agreement, the only issue then remaining was the quantity of contact. 129 An abundance of evidence was tendered to the court that the mother and co-parent had been traumatised by their relationship with the donor and in particular as a result of his contact.130 This evidence was under-estimated by the judge as “irrationally” based while the judge, by comparison, speculated:

129 Re Patrick (An Application Concerning Contact) [2002] FamCA 193, 37 – 38. 130 Re Patrick (An Application Concerning Contact) [2002] FamCA 193, 70: ‘Patrick’s contact with his father attacked the boundaries of her family and placed Patrick in the centre of extreme and ongoing conflict. She deposed: “…I cannot cope with Patrick and our family suffering due to the contact taking place. We have tried to make the contact order work but have found it impossible. Forcing our son to have contact with the father at this point of time is simply not working. Forcing our family to have contact with a donor who wants to be a father and who believes there is something missing from our

385 There is no evidence that the father has required psychiatric assistance. That of course is not to say that he has not, for such is the fact, also suffered considerable stress and anxiety arising from the course undertaken by the mother and co-parent and particularly following the institution of proceedings.131 Therefore on the core issue which was the right of a lesbian family to self-determine free of patriarchal control, Guest J held that the donor was rational and the mother was “irrational”132 The feminist lesbian standpoint argument being made here is that ultimately the judge had to choose between two rival views of family (given that it was clear that Patrick was prospering within his lesbian family structure). The judge adopted a patriarchal standpoint to interpret the legitimate concerns of the co-parents as ideological while not recognising that the donor’s argument was just as ideological. The key difference is that the co-parents belong to a more marginalised group and as such deserved judicial deference. The seriousness and salience of this argument is made that much more significant by the expert evidence of Dr Stafraci. Dr Stafraci was the mother’s treating psychiatrist prior to and throughout the litigation, and made this point about the fragility of their family: Finally, in his report of 22 May 2000, Dr Stafraci pointed out that as a same-sex family the identity of the mother and the co-parent as a new family was, at best, fragile, not only in regard to their self image, but also in relation to their interactions with extended family and the broader community. In his evidence

family is not a solution”. And at 71, the mother is quoted as stating: ‘… He refuses to accept the co- parent’s role in Patrick’s life and disregards our views as to what is in Patrick’s best interests, clearly believing that he knows what is best for Patrick, even though he has contact only for a short period every three weeks … In addition the co-parent and I are certainly not coping with what we continue to see as an intrusion on our family life. The reality, as we see it, is that the father as (sic) a sperm donor who enabled me to conceive but that we are Patrick’s parents. We do not believe that at this stage in Patrick’s development he needs to have a relationship with the father and, in fact, we see that relationship, at present, as detrimental to his ongoing welfare and to the welfare of our family. It is disruptive and causes enormous stress to the co-parent and myself and to Patrick.’ 131 Re Patrick (An Application Concerning Contact) [2002] FamCA 193, 68. 132 Re Patrick (An Application Concerning Contact) [2002] FamCA 193, 69, emphasis added: ‘That about which she complains as the core of her stress is irrational for I am satisfied to the requisite standard of persuasion. …’

386 before me he said that the “… family is in fact strengthening” despite the proceedings. I found the evidence of Dr Stafraci to be most helpful.133 Instead of alerting the Judge to the systemic discrimination facing lesbians generally and the possibility that the donor was abusing his privilege, this opinion was converted by the Judge into corroboration for his view that the mother was irrational and that the parents would rise to any challenge posed by unfavourable final orders.134 Another expert witness, Dr Coventry, who provided a similar opinion to that of Dr Stafraci, was dismissed as partisan.135 Unfortunately, this resulted in his corroborating opinion that a lesbian family would be understandably fragile being dismissed as bias.136 Similarly Dr Adler, another expert appointed by the Child representative, gave evidence of the need to protect the family comprised of the mother, co-parent, and Patrick.137 His evidence was also discounted by the Guest J as not being sufficiently positioned because unlike the judge who had the advantage of hearing 9 days of proceedings and the cross-examination of witnesses, Dr Adler was bias in favour of the parents.138 Also:

133 Re Patrick (An Application Concerning Contact) [2002] FamCA 193, 75. 134 Re Patrick (An Application Concerning Contact) [2002] FamCA 193, 75: ‘However, despite all, her position has improved and I am confident that now a final and determinative decision will be made following a lengthy and detailed hearing, her position will continue to improve.’ Despite the likelihood that this anxiety had been manipulated whether inadvertently or consciously by the donor, Guest J at 78 concluded: ‘In his report of 4 June 2001, Dr Coventry said that the mother and co-parent suffered “… huge anxieties” regarding their perception that the father did not accept the co-parent as a parent of Patrick. That is not the case. The orders to which the father consented on 2 June 2000 (and his letter of 6 December 2000) demonstrate that to be so and as I have said earlier in this judgment, any anxieties by either of the applicants to this end are both unfounded and irrational.’ 135 Re Patrick (An Application Concerning Contact) [2002] FamCA 193, 76 & 77. 136 Re Patrick (An Application Concerning Contact) [2002] FamCA 193, 77: ‘Dr Coventry reported that it was important to understand the anxiety of the mother and the co-parent from their perspective namely: that the “… interim access decision” destabilised their family unit, that it did not recognise their role as Patrick’s parents, and that they feared the father wanted to have the same rights and contact as a biological father in a separated heterosexual family.’ 137 Re Patrick (An Application Concerning Contact) [2002] FamCA 193, 87 – 90. 138 Re Patrick (An Application Concerning Contact) [2002] FamCA 193, 87 & 93. At 90, Dr Adler also testified that his view was that the dispute was the result of a misunderstanding on both sides.

387 … Dr Adler’s view was that if contact increased it would “… more likely to be a paternal contact, rather than a visitation contact”. His proposal for contact however of up to four to six times a year was, as he conceded, an “… arbitrary” number but intended: “… to be fairly infrequent contact so there is a familiarity, but not so frequent as to promote a relationship that could contribute to the sorts of difficulty that I was alluding to a moment ago”. [at 97] I was surprised at that evidence, particularly his view that contact between Patrick and his father could in the long term, be to the child’s detriment.139 Despite these clear warnings Guest J dismissed the reports as ideological: By some rigid and undefined rule, is Patrick to be deprived of the love, affection, wisdom and appropriate knowledge of his biological father? I understand the ‘theory’ behind Dr Adler’s proposal, but which appears to ignore the human factor and the intangible qualities of a loving parent/child relationship. In the result it is a balancing exercise on my part when weighing the issue of stress to the applicants and hypothetical ‘detriment’ against the child’s appropriate contact with his father and right to be loved by him. Having regard to all that I have heard I have no hesitation in rejecting the recommendations of Dr Adler.140 At the same time this quote indicates that Guest J was blind to his own role in reifying what is natural. The cases discussed above illustrate that sociobiology provides assumptions upon which judges exercise their discretion to the detriment of non-normative family structures. Otherwise sociobiology is used to naturalise decisions. What Re Patrick shows is that on an alternate reading informed by a feminist lesbian standpoint, it too was justified by sociobiological assumptions about what is natural and consequently a patriarchal view was imposed onto an otherwise healthy (lesbian) family.141

139 Re Patrick (An Application Concerning Contact) [2002] FamCA 193, 96 – 97. 140 Re Patrick (An Application Concerning Contact) [2002] FamCA 193, 97. 141 S. Boyd, “What is a ‘Normal’ Family? C v C (A Minor) (Custody: Appeal)” (1992) 55 Modern Law Review 269, 274: ‘The positive aspects which may derive from lesbian parenting, such as the development of children who are more open-minded and tolerant of differences, whether due to

388

Conclusion

What these custody cases illustrate is that in deciding what is in the best interests of the child, judges are refusing to recognise the legitimacy of lesbian family structures. In exercising their considerable and privileged discretion they marginalize and oppress lesbians and their families while reinscribing the authority of patriarchal heterosexism. It is never quite clear whether judges act unconsciously in this way because they frequently invoke an apophasis denying that they are sexist or homophobic but then make a decision that is nevertheless sexist, homophobic or both. As Gavigan points out: Successful ideologies are often thought to render their beliefs natural and self- evident – to identify them with the “common sense” of a society so that nobody could imagine how they might ever be different. On this view, a ruling ideology does not so much combat alternative ideas as thrust them beyond the very bounds of the thinkable.142 In all cases discussed above the ideological process is the same. It is always a matter of justifying existing hierarchical and oppressive structures as normal.143 In this sense the ideological process is necessarily sociobiological because in determining what is normal, the judge must refer to an interpretation about human nature. That is to say the judge might determine that a woman is “selfish” for making decisions about her career or intimate relationships if those choices conflict with the judge’s beliefs about what a good mother does.144 No similar issues arise for men unless their choice of

sexuality, race, class or disability, will most likely be raised outside the courtroom, as it is risky to introduce lesbian-positive arguments in that forum.’ 142 S. Gavigan, “Paradise Lost Paradox Revisited: The Implications of Familial Ideology for Feminist, Lesbian, and Gay Engagement to Law” (1993) 31 Osgoode Hall Law Journal 589, 589. 143 Boyd cites Costello for the proposition that the American legal system has ‘systematically used an image of the family to marginalize particular groups of people in intimate relations on the basis of race and sexual orientation’. In S. Boyd, “Expanding the ‘Family’ in Family Law: Recent Ontario Proposals on Same Sex Relationships” (1994) 7 Canadian Journal of Women and Law 545, 548, citing C.G. Costello, “Legitimate Bonds and Unnatural Unions: Race, Sexual Orientation and the Control of the American Family” (1992) 15 Harvard Women’s Law Journal 79. 144 In the Marriage of A and J (1995) 19 Fam LR 260; and U v U [2002] HCA 36 (5 September 2002).

389 intimate relationship is homosexual and the mother is a non-adulterous heterosexual woman.145 These views about sexuality (and gender) are products of a patriarchal heterosexual view of nature which in turn is drawn upon to determine what is “right” about human behaviour. For this reason these judgements are sociobiological.

145 A.O.V. v J.R.V. (2007) Virginia Court of Appeals Record No 0219-06-4 & 0220-06-4, 27 February 2007.

390

Chapter 9

Sociobiology, Racism, and Australian Colonisation

Introduction

In the previous two chapters it was shown that sociobiology informs the law as it reproduces a patriarchal heterosexist hierarchy. In the remaining two chapters the focus is on sociobiology as a racist legal ideology. In this chapter it is argued that sociobiology was and remains an ideology for the colonisation of Australia. In the next chapter evidence is garnered from several cases to show that the law uses sociobiology to determine “Aboriginality” and that this process is an oppressive exercise of colonial power. These two chapters should be read together and they assume the material in the earlier chapters. However, it is necessary to begin this chapter with some elaboration of the concept of sociobiology introduced in Chapter 2. This is because at first glance it seems incongruous that sociobiology could be considered an ideology for the colonisation of Australia because the term was coined by Wilson in 1975 and the “First Fleet” arrived in 1788. For my argument to stand it must be shown that not only was sociobiology a “common” justification for the domination after 1788 (viz: dispossession, lack of sovereignty and the policies of assimilation), but also that it has retained a continuous discernable character from the 18th century through until the 21st century.1 Therefore this chapter commences with an elaboration of the term “sociobiology”, before exploring its significance for the colonisation, dispossession, and “protection” of Indigenous Australians. It is argued that a family of theories described as

1 Dain and Miller have made similar arguments to this albeit with different concerns and emphasis: B. Dain, “Was there a Transition to Modern Racism in Antebellum America? A Reappraisal”, paper delivered at the American Studies Association Annual Meeting, 11 November 2004, University of Utah, pp. 1 – 22; and N.B. Miller, “‘Embalmed in Egyptian Ethnology’: Racial Discourse and Antebellum Interest in the Ancient Near East”, conference paper delivered to the 2004 ASA Annual Meeting Panel: Science and Race in 19th-Century America.

391 “sociobiology” have been and continue to be a justification for the colonisation of Australia, to deny Indigenous sovereignty, to dispossess Indigenous people and to pursue policies of assimilation, exploitation and domination of Indigenous people. These arguments are not novel and can be found in historical and sociological work outside legal literature.2 They are however relatively novel within legal scholarship where very little is written connecting law and scientific racism in the Australian context.3 Although Fitzpatrick links science with racism in the context of colonisation his work is not concerned with sociobiology as a dominant legal ideology.4

Racism and Sociobiology

A history of naturalizing theories

In Chapter 2, sociobiology was introduced and said to have at least three overlapping meanings for the purposes of this thesis: (1) Sociobiology as a science, (2) sociobiology as a matrix of assumptions about human nature, and (3) sociobiology as an ideology. These three meanings overlap around the idea introduced in Chapter 2 that the science of Sociobiology is a revision of several earlier traditions in

2 For example: E. Balibar & I. Wallerstein, Race, Nation, Class: Ambiguous Identities, Verso, London, 1991; T. Barta, “Discourses of genocide in Germany and Australia: a linked history” (2001) 25 Aboriginal History 37; R. Evans, Fighting Words: Writing about Race, University of Queensland Press, St Lucia, 1999; R. Hofstadter, Social Darwinism in American Thought, Revised edition, George Braziller, New York, 1959; and G. Jones, Social Darwinism and English Thought: The Interaction between Biological and Social Theory, The Harvester Press, Sussex, 1980. 3 There are two important exceptions. The first is an excellent brief coverage of some links between “sociobiology”, colonialism, liberalism and racism provided by Clarke in J. Clarke, “Law and Race: The Position of Indigenous People” in S. Bottomley & S. Parker, Law in Context, Federation Press, Sydney, 1997, Chapter 10. Another important exception is the excellent essay by De Plevitz and Croft on “Aboriginal Identity”: L. De Plevitz & L. Croft, “Aboriginality under the microscope: the biological descent test in Australian law” (2003) 3(1) Queensland University of Technology Law &Justice Journal 1 – 17. However, the argument in both pieces is necessarily narrower than the more general one made in this thesis. 4 Fitzpatrick, for example, makes the connections between sociobiology and Imperialism, but doesn’t continue the argument through until the present by dealing with assimilation and recent trends in indigenous identity and native title cases: P. Fitzpatrick, Modernism and the Grounds of Law, Cambridge University Press, Cambridge, 2001.

392 “scholarly” thought. In other words, sociobiology can be properly thought of as a family of “scholarly” theories starting with monogenesis and phrenology in the pre- Darwin era, through to eugenics and sociobiology in the post-Darwin era. Each theory is linked by the idea that there is some innate basis to human nature whether, for example, made by God (monogenesis) or made by genes (Sociobiology). Each theory is also linked by the privileged standpoint of the scholars who projected their view of society onto nature, and then in turn used that “nature” to account for the physical structure and culture of society and individuals. Stated another way each of these theories was used to replicate existing power structures by “justifying” human action as natural and inevitable. For these reasons sociobiology can be said to be a dominant racist ideology over the last 300 years despite the term’s etymological origins in “biology” which only became popular after Darwin penned On the Origin of Species in 1859. Theories based on assumptions about (1) the place of man in nature, and (2) the nature of man predated Darwin.5 This is not a controversial point and is widely recognised by historians of the philosophy of science and those who have written specifically on the history of the theory of evolution or the history of social Darwinism.6 Indeed, Darwin himself recognised as much, crediting Malthus (1830)7 as providing him with the “mechanism” (“struggle for existence”) for his theory of evolution according to natural selection.8 Malthus postulated the idea that populations grow faster than their

5 In fact, Aristotle (384 BC – 322 BC) wrote specifically on these issues in The Politics, Book 1, Chapter ii, “The State Exists By Nature”, per T.J. Saunders (ed), Aristotle The Politics, Penguin, London, 1992. 6 In particular S.J. Gould, Ever Since Darwin: Reflections in natural history, Penguin, Ringwood, Victoria, 1991; R. Hofstadter, Social Darwinism in American Thought, Revised edition, George Braziller, New York, 1959; G. Jones, Social Darwinism and English Thought: The Interaction between Biological and Social Theory, The Harvester Press, Sussex, 1980; R.J. Richards, Darwin and the Emergence of Evolutionary Theories of Mind and Behaviour, University of Chicago Press, Chicago, 1987; M. Ruse, The Evolution-Creation Struggle, Harvard University Press, Cambridge, 2005; and R. Young, Darwin’s Metaphor, Sydney, Cambridge University Press, 1985. 7 T. Malthus, “A Summary View of the Principle of Population” (1830) in Population Council (ed), On Population: Three Essays, New York, Mentor Books, 1960, 35. 8 C. Darwin, On the Origin of Species By Means of Natural Selection Or the Preservation of Favoured Races in the Struggle For Life, 2nd ed, Modern Library, New York, 1859, 13 & 53. Gould points out that Darwin also credited Malthus in his autobiography written several years after On the Origin of

393 food supply and therefore there is a need to restrain population growth and exercise economy with respect to food. For this reason it is better to regard Darwin’s famous essay of 1859, and the contemporary essays of Spencer9 and Wallace10 (widely regarded as co-founders of the theory of evolution), as consolidations and syntheses of the literature that preceded them.11 Prior to the development of the theory of evolution in the middle of the 19th century, there were three other important sociobiological theories (viz, ones about the place of man in nature and the nature of man), among others,12 namely “monogenism”, “polygenism”, and “phrenology”. After Darwin’s theory of evolution came “social- Darwinism”, “eugenics”, and ultimately the formal discipline of Sociobiology.13 Linking this chain of theories (monogenism, polygenism, phrenology, Darwin’s theory of evolution, social-Darwinism, eugenics and Sociobiology) among other things is their racist essence. That is to say, they are all concerned with the place of race in nature and the nature of races, and to this extent they have played an ideological role in hierarchy, colonisation and slavery.14 The core principle (a

Species: ‘… until Malthus’s vision of struggle and crowding catalyzed his thoughts, he [Darwin] had not been able to identify an agent for natural selection’, per S.J. Gould, Ever Since Darwin: Reflections in natural history, Penguin, Ringwood, Victoria, 1991, 21 – 22. 9 H. Spencer, “Progress: Its Law and Cause” (1857) Vol II Westminster Review 445 – 485. 10 A.R. Wallace, “The Origin of Human Races and the Antiquity of Man Deduced from the Theory of ‘Natural Selection’”, (1864) 2 Anthropological Review clviii – clxxxvii. 11 S.J. Gould, Ever Since Darwin: Reflections in natural history, Penguin, Ringwood, Victoria, 1991; R. Hofstadter, Social Darwinism in American Thought, Revised edition, George Braziller, New York, 1959; G. Jones, Social Darwinism and English Thought: The Interaction between Biological and Social Theory, The Harvester Press, Sussex, 1980; R.J. Richards, Darwin and the Emergence of Evolutionary Theories of Mind and Behaviour, University of Chicago Press, Chicago, 1987; and M. Ruse, The Evolution-Creation Struggle, Harvard University Press, Cambridge, 2005. 12 For example, it can be demonstrated that the social contract theories of Locke and Hobbes were essentially theories about the place of man in nature and the nature of man since both men presumed virtually opposite starting points for their justifications for the social contract given their views of human nature. For Hobbes, the natural state of man was nasty, selfish and brutish, while Locke criticised Hobbes for his dim view of human nature. This argument is developed below. 13 See further chapter 2. 14 S.J. Gould, Ever Since Darwin: Reflections in natural history, Penguin, Ringwood, Victoria, 1991, 258: ‘As I argue in the preceding set of essays, biological determinism has always been used to defend existing social arrangements as biologically inevitable – from “for ye have the poor always with you”

394 hierarchy of races) within these theories remained relatively static over time, but they also changed over time reflecting shifting paradigms in science, culture and structural changes to economic systems.15 Still, it would be a misrepresentation to claim that these theories merely react to changing material circumstances because they also function to justify material change and therefore the relationship is dialectical.16

Monogenesis & polygenesis

Two of the earlier forms of racist theories belonging to the family of theories I call sociobiology were “monogenesis” and “polygenesis”. These two theories purported to account for the differences between human races based on whether or not there was one single origin for the human race or multiple origins.17 Both theories were based on the Bible.18 However, monogenesis was dominant because it was the officially to nineteenth-century imperialism to modern sexism. … But I reiterate my statement that no evidence exists to support it, that the crude versions of past centuries have been conclusively disproved, and that its continued popularity is a function of social prejudice among those who benefit most from the status quo.’ 15 For example the Christian concept of “monogenism” was replaced by “polygenism” due to the impact of Darwin’s theory of evolution on a literal interpretation of the Bible, and passages referring to Adam and Eve, and Noah saving species from the great flood. See further below. 16 S. Firestone, The Dialectic of Sex: The case for Feminist Revolution, Granada Publishing, London, 1972, 12; K. Seshadri-Crooks, Desiring Whiteness: A Lacanian analysis of race, Routledge, London, 2000, 14, citing Goldberg 1993:81; R. Young, Darwin’s Metaphor, Sydney, Cambridge University Press, 1985, 166 – 167; and G. Jones, Social Darwinism and English Thought: The Interaction between Biological and Social Theory, The Harvester Press, Sussex, 1980, 147: ‘Biology helped create the kind of moral universe in which nature reflected society and vice versa. The idea of a parallel between the two had been popular before Darwin. It was expressed most succinctly in Paley’s natural theology. The immediate impact of Darwin was, in fact, to shatter the universe by undermining the notion of stability and lack of change in nature.’ But long before Paley wrote his version of the metaphor, Aristotle had penned his, per T.J. Saunders (ed), Aristotle The Politics, T.A. Sinclair (Trans), Penguin, London, 1992. 17 R. Bernasconi (ed), “Introduction”, American Theories of Polygenesis, Thoemmes Press, Bristol, 2002; and R. Evans, Fighting Words: Writing about Race, University of Queensland Press, St Lucia, 1999. 18 Although polygenism was a biblical theory it was considered heretical until the middle of the Nineteenth Century when it gained prominence (mostly in the US) as a counter-response to the literal explanation provided by advocates of the Bible. Advocates of a literal interpretation of the Bible

395 sanctioned Christian view. Monogenesis held that human beings had all descended from the common ancestors Adam and Eve, while the more heretical polygenesis contended that there were many different races each with its own lineage back to God. Polygenesis gained broader acceptance after the publication of Darwin’s thesis in 1859. Evolutionary theory undermined the literal Biblical account of human history because it could not explain the great variation in human morphology given there had been very few generations between the time of Adam and Eve and the mid-nineteenth century. Racism was “justified” by monogenesis on the basis that although God had produced all races through the Adam and Eve, since then some races were disfavoured by God because of their uncivilised non-Christian conduct.19 Alternatively they were deemed “Pre-Adamite” and therefore sub-human. Racism was “justified” by polygenesis on grounds that God had created different races for different climates with the result that some were better endowed than others.20 In either case, these theories about the place of humans in nature and the nature of humans provided “justifications” for European

struggled to reconcile archaeological, anthropological and geological evidence which tended to suggest a considerably longer time-frame for the rich diversity in human traits than would be possible in the few generations since Adam and Eve as well as the diversity of flora and fauna since Noah’s Ark. The biblical account would require extremely quick evolution, which was a concept yet to be accepted even in the [extremely slow, gradual] form proposed by Darwin. R. Bernasconi (ed), “Introduction”, American Theories of Polygenesis, Thoemmes Press, Bristol, 2002, page 1 of 8: ‘When in the seventeenth century Northern Europeans began to receive detailed information about Africans and Native Americans, they recognized that the physical differences among the human varieties raised problems for their commitment to the chronology set out in the Bible.’ 19 R. Bernasconi (ed), “Introduction”, American Theories of Polygenesis, Thoemmes Press, Bristol, 2002, page 1 of 8. 20 R. Bernasconi (ed), “Introduction”, American Theories of Polygenesis, Thoemmes Press, Bristol, 2002, pages 1 – 2 of 8: ‘Kames was not concerned with questions of Biblical scholarship so much as with certain [at 2] scientific problems. However, sensitivity to religious controversy led him to propose polygenesis only tentatively in the form of a question. Because he doubted that climate alone could have brought about all the differences between the human varieties, he raised the question of whether the different varieties had not been made for different climates, a position supported in his view by the difficulties that Europeans had in adapting to warm climates. Kames believed that the Native Americans were not pre-Adamite but post-Adamite, thereby adding to the variant forms of polygenesis.’

396 (and later American) invasions, colonisation, and underpinned slavery for centuries.21 Significantly, Barta points to the role of polygenesis in the colonisation of Australia where a presumption was that ‘the great white race’ was entitled to take what was inhabited by ‘lesser breeds’.22

Phrenology

In the early part of the 19th century “phrenology” was a ‘widespread cultural phenomena’ as well as accepted science.23 Phrenology was a theory linking human nature to human morphology, in particular through brain anatomy and skull size. Its first advocate was Franz Gall who developed his system of “organology” and brain anatomy in Vienna in the 1790s.24 However, it was Edinburgh lawyer George Combe who was to become its most ardent promoter and his work was widely received in

21 As Hofstadter explains in R. Hofstadter, Social Darwinism in American Thought, Revised edition, George Braziller, New York, 1959, at 180, during the United States Senate debates about whether to colonise the Philippines, Senator Beveridge decreed: ‘God has not been preparing the English-speaking and Teutonic peoples for a thousand years for nothing but vain and idle self-admiration. No! He has made us master organizers of the world to establish system where chaos reigns … he has made us adepts in government that we may administer government among savages and senile peoples’. This same rationale was used by the United States and its coalition partners to invade Iraq in 2003 in addition to the infamous “weapons of mass destruction” assertion. See further, “Tony Jones speaks with columnist Frank Rich”, Lateline, ABC, broadcasted on 26 February 2007. In terms of slavery, for example: ‘John Bachman, the most outspoken defender of monogenism among natural historians in mid-century, was both a slaveholder and a defender of slavery. Nevertheless, the most prominent abolitionists were also monogenists’, per R. Bernasconi (ed), “Introduction”, American Theories of Polygenesis, Thoemmes Press, Bristol, 2002, page 5 of 8. 22 T. Barta, “Discourses of genocide in Germany and Australia: a linked history” (2001) 25 Aboriginal History 37, 45. 23 J. van Wyhe, “Reading Phrenology” in The History of Phrenology on the Web, British Library, accessed at http://pages.britishlibrary.net/phrenology/literature.html on 19 July 2005. 24 J. van Wyhe, “Overview of the chronology of phrenology” in The History of Phrenology on the Web, British Library, accessed at http://pages.britishlibrary.net/phrenology/literature.html on 19 July 2005; G. Jones, Social Darwinism and English Thought: The Interaction between Biological and Social Theory, The Harvester Press, Sussex, 1980, 104 – 105.

397 both England and America.25 George Combe’s promotion of phrenology coincided with his views on the centrality of natural law. Combe’s 1828 The Constitution of Man was: … about how natural laws are the ultimate authorities which man must obey, and their action leads to progress; disobeying them leads to automatic punishment.26 The significance of Combe’s influence on social theory, politics and society should not be underestimated given that The Constitution of Man sold seven times as many copies as Darwin’s On the Origin of Species.27 It underpinned anthropology for centuries.28 Once again, a theory of the nature of humans and the place of humans in nature was used to justify racism.29 The racism informing phrenology spilled over into all the other disciplines that drew upon it including Darwin’s theory of

25 J. van Wyhe, “Reading Phrenology” and “Overview of the chronology of phrenology” in The History of Phrenology on the Web, British Library, accessed at http://pages.britishlibrary.net/phrenology/literature.html on 19 July 2005. 26 J. van Wyhe, “Reading Phrenology” in The History of Phrenology on the Web, British Library, accessed at http://pages.britishlibrary.net/phrenology/literature.html on 19 July 2005. 27 J. van Wyhe, “George Combe’s ‘The Constitution of Man in Relation to External Objects’ (8th ed., 1847)” in The History of Phrenology on the Web, British Library, accessed at http://pages.britishlibrary.net/phrenology/literature.html on 19 July 2005: Combe’s book sold 350,000 copies between 1828 and 1900 while Darwin’s book sold 50,000 copies from 1859 to 1900. However, Combe’s book was a thesis on natural philosophy situating man’s place in nature rather than a treatise on phrenology. 28 M. Grene & D. Depew, The Philosophy of Biology: An Episodic History, Cambridge University Press, Cambridge, 2004, 321 - 322; 29 A.S. Wohl, “Race in Victorian Thought and Science”, online paper accessed at The Victorian Web on 13 July 2005: ‘The science of phrenology, whose heyday was between 1820 and 1850, and later racial anthropological physiognomy, attracted many followers. That man's physical and, by extension, moral, intellectual, and social development, could be determined by, and seen in, his physiognomy -- in, say, jaw structure and shape of the head-- were to many respected sciences that enjoyed wide currency. … After Darwin popularized the idea that humans are descended from apes, the prognathous (protruding) jaw became a sign of lower development and of a closer relationship to primitive man. It also became the basis of much racial stereotyping of the Irish, and racial anthropologists argued that working class people were more prognathous than their social superiors- who were- self-flatteringly described as also biologically superior. … These late nineteenth-century anatomical and anthropological descriptions of 'races' and their characteristics, measurements etc. were later the inspiration for the sort of mid twentieth-century racial anthropology as promulgated in Nazi Germany.’

398 evolution.30 For instance, in America, as a counter to the emerging abolitionist theology (monogenesis) drawing on scripture to counter slavery, a few pro-slavery writers began to draw on science to neutralise the onslaught. Drawing on science: To prove the African race’s innate and unchanging inferiority, Samuel George, Josiah C. Nott and George R. Gliddon, members of the American or Morton School of ethnology, availed themselves of the latest scientific theories of race and what Morton described as ‘the most ancient human remains at present known to us’, human skulls excavated from the ancient Egyptian tombs.31 This suggests the closeness of thought among the family of ideas I refer to as sociobiology because phrenology was used here to buttress conflicts between and within monogenesis and polygenesis as those arguments were used on both sides of the abolitionist and anti-abolitionist “debates” on slavery.32 This family of sociobiological ideas became more potent with the publication of Darwin’s essay in 1859 leading to “social-Darwinism” and later still “eugenics”.33

30 R. Young, Darwin’s Metaphor, Sydney, Cambridge University Press, 1985, 64; N.B. Miller, “‘Embalmed in Egyptian Ethnology’: Racial Discourse and Antebellum Interest in the Ancient Near East”, conference paper delivered to the 2004 ASA Annual Meeting Panel: Science and Race in 19th- Century America, accessed online at http://lumen.georgetown.edu/projects/posterTool/data/users/ASA2004Poster.doc on 14 July 2005, 4. 31 N.B. Miller, “‘Embalmed in Egyptian Ethnology’: Racial Discourse and Antebellum Interest in the Ancient Near East”, conference paper delivered to the 2004 ASA Annual Meeting Panel: Science and Race in 19th-Century America, accessed online at http://lumen.georgetown.edu/projects/posterTool/data/users/ASA2004Poster.doc on 14 July 2005, 2, quoting Samuel George Morton, “Observations on Egyptian Ethnology, derived from Anatomy, History, and the Monuments”, Transactions of the American Philosophical Society IX n. s. (1844), 94. 32 See further R. Bernasconi (ed), “Introduction”, American Theories of Polygenesis, Thoemmes Press, Bristol, 2002; B. Dain, “Was there a Transition to Modern Racism in Antebellum America? A Reappraisal”, paper delivered at the American Studies Association Annual Meeting, 11 November 2004, University of Utah, pp. 1 – 22; and N.B. Miller, “‘Embalmed in Egyptian Ethnology’: Racial Discourse and Antebellum Interest in the Ancient Near East”, conference paper delivered to the 2004 ASA Annual Meeting Panel: Science and Race in 19th-Century America. 33 Of course, Darwin’s own work was not free of racism and was rich with the influence of Galton’s eugenics. See further: C. Darwin, The Descent of Man and Selection in Relation to Sex, (2nd ed, 1882) John Murray, London, 1871, 154 – 155, 159 – 160, 167 – 170, 172 – 174, 179. It should be added though that this tendency is counterbalanced elsewhere by passages renouncing the idea of racial superiority based on evolution, see for example, pp. 182 – 184.

399

Social-Darwinism

“Social-Darwinism” can be described as a body of literature which drew upon the work of Herbert Spencer, among others, and was the process of analogising and borrowing from Darwin’s theory of evolution to apply these ideas beyond biology.34 As Hofstadter points out: Herbert Spencer, who of all men made the most ambitious attempt to systematize the implications of evolution in fields other than biology itself, was far more popular in the United States then he was in his native country. England gave Darwin to the world, but the United States gave Darwinism an unusually quick and sympathetic reception.35 Social-Darwinism was enthusiastically received in the United States because it correlated with the conservative agenda of those seeking to prevent reform: It was those who wished to defend the political status quo, above all the laissez- faire conservatives, who were first to pick up the instruments of [at 6] social argument that were forged out of the Darwinian concepts.36 Those “Darwinian concepts” were the notions of “struggle for existence”, “survival of the fittest”, and “progress”. As metaphors for politics, conservatives could argue that society could only progress under circumstances where there was no artificial interference (in other words taxes or the provision of welfare) in the competition for survival, because only the fittest would survive and therefore the society would improve. To interfere with this process was to work against nature and therefore state intervention into the economy should be kept to the bare minimum. But these same arguments also fuelled the reformers who could argue that intervention might be desirable to facilitate natural progression. For example it was invoked to justify

34 Spencer was one of the three founders of the theory of evolution along with Darwin and Wallace. Spencer had overlooked natural selection as a mechanism for evolution until he was alerted to it by the work of Darwin and Wallace. See further R. Young, Darwin’s Metaphor, Sydney, Cambridge University Press, 1985, 48 – 50. 35 R. Hofstadter, Social Darwinism in American Thought, Revised edition, George Braziller, New York, 1959, 5. 36 R. Hofstadter, Social Darwinism in American Thought, Revised edition, George Braziller, New York, 1959, 5 – 6.

400 colonialism on the basis that “superior people and their ways” might be used to benefit others.37

Eugenics

“Eugenics”, developed along side social-Darwinism, but didn’t come to prominence until the early part of the 20th century. Eugenics was founded in the 1860s by Francis Galton with the ‘aim of raising the physical and mental level of the race’.38 This was to be achieved by applying Darwin and Spencer’s ideas to public policy so that the ‘better stocks’ were encouraged to reproduce and the weaker stocks were discouraged or prevented from breeding.39 These ideas were slow to take off but quickly spread around the world in the early part on the 20th century after acceptance of Weismann’s germ-plasm theory and the belated recognition of Mendel’s hereditary genetics in England.40 The “Eugenics movement” drew upon the authority of Darwin, Spencer, Mendel, Malthus and Haeckel to argue the case for the selected breeding of humans.41 Unlike their earlier social-Darwinist counterparts, the Eugenics movement were not as

37 G. Jones, Social Darwinism and English Thought: The Interaction between Biological and Social Theory, The Harvester Press, Sussex, 1980, 151. 38 Jones points out that: ‘This idea was based on two propositions: first, that desirable physical and mental qualities were unevenly distributed throughout the population and, second, that those who had the desirable qualities could be identified and encouraged to multiply faster than the others. This, he argued, could be accomplished partly by various forms of state intervention and partly by placing a high social value on the fertility of the better stocks in society.’ Per G. Jones, Social Darwinism and English Thought: The Interaction between Biological and Social Theory, The Harvester Press, Sussex, 1980, 99. 39 G. Jones, Social Darwinism and English Thought: The Interaction between Biological and Social Theory, The Harvester Press, Sussex, 1980, 99. 40 R. Hofstadter, Social Darwinism in American Thought, Revised edition, George Braziller, New York, 1959,161 & 163. 41 R. Hofstadter, Social Darwinism in American Thought, Revised edition, George Braziller, New York, 1959, 193: ‘Common among men of learning was the conception, taken over from Haeckel’s Biogentic Law, that since the development of the individual is a recapitulation of the development of race, primitives must be considered as being in the arrested stages of childhood or adolescence – “half devil and half child”, as Rudyard Kipling had said.’ This certainly resonates with narrative of Blackstone in his Commentaries as quoted by Brennan J at 34 – 35 in J in Mabo v Queensland (1992) 175 CLR 1, Blackstone’s Commentaries Book 1, Chapter 4, pp. 106-108.

401 concerned with laissez-faire politics as they were with preserving and improving the racial stock of the nation and avoiding its dilution through mixing with “morons” and the “racially inferior”.42 In other words eugenics stood for the practical application of hereditary principles to state-sanctioned controls to breed out the “unfit”. In the United States it received ‘practical application in 1907, when Indiana became the first state to adopt a sterilization law; by 1915 twelve states had passed similar measures’.43 Notably, in 1927 in Buck v Bell these laws were upheld in the United States Supreme Court with Holmes J declaring: ‘Three generations of imbeciles are enough’.44 Taken to greater extremes eugenics provided the Nazis with an excuse for the genocide of Jews and the mass murder of Gypsies, the disabled, homosexuals, along with other disfavoured groups such as trade unionists.45 In Australia, eugenics helped shift government policies facilitating the dispossession of Indigenous people to acts of segregation and then assimilation.46 The influence of eugenics remains in

42 R. Hofstadter, Social Darwinism in American Thought, Revised edition, George Braziller, New York, 1959,163 – 164. 43 R. Hofstadter, Social Darwinism in American Thought, Revised edition, George Braziller, New York, 1959, 162, citing H.H. Laughlin, Eugenical Sterilization: 1926, New Haven, 1926, 10 – 18, ‘for a review of the progress of eugenics legislation’. 44 There (Buck v Bell 274 U.S. 200 (1927) Holmes J in delivering the opinion of the court held that Carrie Buck ‘a feeble-minded white woman … and mother of an illegitimate feeble-minded child’ could be sterilised according to Virginian law. The judge justified this decision in part: ‘We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.’ 45 T. Barta, “Discourses of genocide in Germany and Australia: a linked history” (2001) 25 Aboriginal History 37, 46. 46 R. Evans, Fighting Words: Writing about Race, University of Queensland Press, St Lucia, 1999, 117 – 125. In particular, Evans discusses the 1897 An Act to make Provision for the better Protection and care of the Aboriginal and Half-Caste Inhabitants of the Colony and to make more effectual Provision for Restricting the Sale and Distribution of Opium at 124. And at 117: ‘… fear of racial degeneration, impelled by eugenic calculations about mental and physical fitness, gripped Western societies at the close of the nineteenth century. The expulsion of “degenerate sub-types”, defined by those societies to

402 Australia to this day as a legacy of the “stolen generation(s)”.47 In other words eugenics was applied as a policy, implemented by State laws to forcibly remove Indigenous children from their families either on the basis that they would be assimilated into white society or on the basis that they would breed with whites so that ultimately pure Indigenous people would die out.48

Sociobiology: the discipline

As discussed above in Chapter 2, “Sociobiology” is an academic discipline. It emerged in the work of a handful of scholars during the 20th century and took the formal name “Sociobiology” from the book Sociobiology: The New Synthesis written

include the insane, the criminal, the prostitute, the homosexual as well as, in white settler regions like Australia, the surviving remnants of so-called “savage races”, became a foremost priority. …Thus, racial removal policy developed as a branch of deviancy control and was extended beyond Aboriginal target groups by various pieces of colonial and Commonwealth legislation framing the “White Australia Policy” to include/exclude Pacific Islanders, Asians and Africans. … This in the case of Aboriginal segregation, any sense of reformist concern or philanthropy … was far less evident than an expanding social alarm about the moral, medical and racial threats these beings posed to a society now striving fitfully towards bourgeois respectability and nationhood.’ 47 The report of the inquiry - Bringing Them Home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families - was tabled in the Commonwealth Parliament on 26 May 1997. The report found that in the years 1910 – 1970, up to one third of all indigenous children were forcibly removed from their parents under Australian state laws. Among several of the unimplemented recommendations of the report is Recommendation 5A which called for recognition of this oppression by way of a formal apology. That apology is still outstanding a decade later. See also: M. Flynn & S. Stanton, “Trial By Ordeal: The stolen generation in court” (2000) Vol 25 No 2 Alternative Law Journal 75. 48 Bringing Them Home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families 1997, page 94 of 524: ‘By the 1930s Neville had refined his ideas of integrating Indigenous people into non-Indigenous society. His model was a biological one of ‘absorption’ or ‘assimilation’, argued in the language of genetics. Unlike the ideology of racial purity that emerged in Germany from eugenics, according to which ‘impure races’ had to be prevented from ‘contaminating’ the pure Aryan race, Neville argued the advantages of ‘miscegenation’ between Aboriginal and white people. The key issue to Neville was skin colour. Once ‘half-castes’ were sufficiently white in colour they would become like white people. After two or three generations the process of acceptance in the non-Indigenous community would be complete, the older generations would have died and the settlements could be closed.’

403 by Edward O. Wilson in 1975.49 Sociobiology is a more sophisticated re-worked version of its predecessors, monogenesis (and polygenesis), phrenology, social- Darwinism, and eugenics.50 Yet founding sociobiologist, Alexander, suggested a link between “aggression” and the capacity for assimilation to take place under colonial rule.51 Since its inception as a formal discipline, sociobiology has enjoyed a mixed scholarly reception,52 and as such persists more as an influence within new fields of social theory, or as a subtle influence on others, than it does as a discipline in its own right.53

49 E.O. Wilson, Sociobiology: The New Synthesis, Harvard University Press, Cambridge, 1976. Among the pioneers of sociobiology was Ernst Mayr in E. Mayr, and the origin of species, Columbia University Press, New York, 1942. While Badcock mentions the work of ‘W.D. Hamilton, R. Trivers, D. Lack, and others’ in C. Badcock, Evolution and Individual Behaviour, Oxford, Basil Blackwell, 1991, xi – xiii. See further chapter 2. 50 C. Holden, “‘Sociobiology’ to History’s Dustbin?” (1996) 273 Science 315. 51 R.D. Alexander, “The Search for a General Theory of Behaviour” (1975) 20 Behavioral Science 77, 94: ‘Nor is genetic difference necessarily relevant to the overwhelming of one group by another, at least not in the manner usually considered. All that is implied is that ‘… men who were arranged in groups or teams, each dominated by a spirit of unity, would conquer or outlive men who were not thus grouped’ (Keith, 1949, p. 43). We have observed, within recorded human history, the aggressive expansion of western Europeans into the New World and Australia, in particular, and their replacement through decades of the populations that previously inhabited the continents involved. The genetic change that has occurred is not necessarily relevant to the success of the invaders; more relevant is the cultural background that provided the migrating Europeans with vastly superior weapons, agriculture, and technology. Also relevant are those cultural and genetic differences between the invaders and the invaded which reduced the likelihood of amalgamation. Aboriginals who resemble invaders physically are more likely to be assimilated genetically, just as those whose culture is such as to make them pliable in the face of alien domination are more likely to survive alongside and with the invaders.’ 52 In 1996 the Human Behaviour and Evolution Society changed the name of its journal from Ethology and Sociobiology to Evolution and Human Behaviour in an attempt to shed the baggage of controversy. The critics were many. Among them are Stephen J Gould and Ashley Montagu: S.J. Gould, Ever Since Darwin: Reflections in natural history, Penguin, Ringwood, Victoria, 1991, A. Montagu (ed), Sociobiology Examined,, Oxford University Press, Melbourne, 1980. 53 So much so that it now has branches into psychology (evolutionary psychology) and into economics (new institutional economics), for example, respectively: R. Eisler & D.S. Levine, “Nurture, Nature, and Caring: We Are Not Prisoners of Our Genes” (2002) Vol 3 Brain and Mind 9; and J.P. Watkins, “Towards a Reconsideration of social Evolution: Symbiosis and Its Implications for Economics” (1998) Vol 32 No 1 Journal of Economic Issues 87. But its impact extends to many other contemporary

404 Therefore, in the remaining chapters “sociobiology” will be taken to include any assertion or theory about the place of humans in nature or human nature, which is used to justify racial hierarchy or domination of a social, political or economic kind. The remainder of this chapter will provide evidence for the thesis that sociobiological theories (monogenism, polygenism, phrenology, social-Darwinism, eugenics, and sociobiology) were fundamental to Australian colonisation (which involved the usurpation of sovereignty, the dispossession of indigenous people, policies of assimilation, and the maintenance of domination and exploitation of Indigenous Australians). These policies were implemented by law and to this extent the law is sociobiological.

Colonisation

Sovereignty

Australia was a territory taken according to the legal doctrine of discovery.54 This was one of the three recognised ways a colonial power could colonise territory according to international law: (1) conquest, (2) cession, and (3) discovery of uninhabited land

disciplines where it is firmly entrenched in schools in anthropology, archaeology, biology, law and economics, and sociology among many others (see for example: J. Edwards, “Evolutionary Psychology and Politics” (2003) Vol 32 No 2 Economy & Society 280; J. Freese & B. Powell, “Making Love Out of Nothing at all? Null Findings and the Trivers-Willard Hypothesis” (2001) Vol 106 No 6 The American Journal of Sociology 1776; L. Hirshman, “Hard Bargains: The Politics of Heterosexuality” (1998) Vol 55 No 1 Washington & Lee Law Review 185, at 189; J. Hochman, “The Divine Archetype: Sociobiology and the Psychology of Religion” (1992) Vol 149 No 7 The American Journal of Psychiatry 974; G. Holton, “The New Synthesis” (1998) Vol 35 No 2 Society 1978; J. Munoz-Rubio, “Sociobiology and human nature” (2002) Vol 27 No 2 Interdisciplinary Science Reviews 131; K. Sigmund & M.A. Nowak, “A Tale of Two Selves” (2000) Vol 290 Science 949; K.D. Wells, “An Alternative to Sociobiology” (1993) Vol 43 No 9 Bioscience 646; and generally the “Proceedings of the Pittsburgh Workshop in History and Philosophy of Biology”, Centre for the Philosophy of Science, University of Pittsburgh, March 23-24 2001, accessed online at http://philsci-archive.pitt.edu on 18 July 2005). Tinker explains the connections between sociobiology and commercial disciplines in T. Tinker, Panglossian Accounting Theories: The Science of Apologising in Style" (1988) 13 Accounting Organizations & Society 165. 54 Mabo v Queensland (1992) 175 CLR 1, 32, 37 – 38.

405 (viz: terra nullius).55 Because different legal consequences flowed from each of these international law doctrines - the former two doctrines afforded more legal recognition for Indigenous people than the third – the doctrine of discovery has an enduring significance for the denial of justice for Indigenous Australians.56 This begs the question - how did the law apply the doctrine of discovery to an already occupied territory, and on what basis does it refuse to cure the deleterious effects of this error in contemporary times?

55 Mabo v Queensland (1992) 175 CLR 1, 32, per Brennan J, citing E. Evatt, “The Acquisition of Territory in Australia and New Zealand” in (1968) Grotian Society Papers, p. 16: ‘who mentions only cession and occupation as relevant to the Australasian colonies.’ 56 If the land was terra nullius, all colonial law that was relevant to the colony would automatically apply, and Indigenous law would not be recognised and nor would Indigenous people necessarily be recognised. However, in the case of territory acquired through conquest or cession, the amount of colonial law applicable would be subject to the terms of any recognition of Indigenous law. Stated correctly the other way around, Indigenous law would be recognised subject to the terms of the conquest or cession “agreement”. In Mabo v Queensland (1992) 175 CLR 1, Brennan J at 34 - 35, quoted Blackstone’s Commentaries Book 1, Chapter 4, pp. 106-108 to explain the rules governing the “reception” of colonial laws into a colony (my emphasis): ‘Plantations or colonies, in distant countries, are either such where the lands are claimed by right of occupancy only, by finding them desert and uncultivated, and peopling them from the mother-country; or where, when already cultivated, they have been either gained by conquest, or ceded to us by treaties. And both these rights are founded upon the law of nature, or at the least upon that of nations. But there is a difference between these two species of colonies, with respect to the laws by which they are bound. For it hath been held, that if an uninhabited country be discovered and planted by English subjects, all the English laws then in being, which are the birthright of every subject, are immediately there in force. But this must be understood with very many and very great restrictions. Such colonists carry with them only so much of the English law, as is applicable to their own situation and the condition of an infant colony; … What shall be admitted and what rejected … must, in case of dispute, be decided at first instance by their own provincial judicature, subject to the revision and control of the King in council: the whole of their constitution being also liable to be new-modelled and reformed by the general superintending power of the legislature in the mother-country. But in conquered or ceded countries, that have already laws of their own, the king may indeed alter and change those laws; but, till he does actually change them, the ancient laws of the country remain, unless such as are against the law of God, as in the case of an infidel country. Our American plantations are principally of this latter sort, being obtained in the last century either by right of [at 35] conquest and driving out the natives (with what natural justice I shall not at present inquire) or by treaties. And therefore the common law of England, as such, has no allowance or authority there; they being no part of the mother-country, but distinct (though dependent) dominions. They are subject, however, to the control of the parliament.’

406 Firstly, as Balibar and Wallerstein explain, international “law” was a European construction aimed at avoiding war between colonial powers.57 That is to say, in the colonial era, the British, French, Dutch, Portuguese and other powers combined ‘to forge the idea of “White” superiority, of civilization as an interest that has to be defended against the savages’, and: ‘… beyond this, all priding themselves, in competition with one another, on their particular humaneness, by projecting the image of racism on to the colonial practices of their rivals.’58 While in Mabo, Brennan J also spoke of the self-serving nature of the international law governing Australia’s colonisation.59 Similarly, Fitzpatrick points out that international law developed with the rise of European imperialism as a means of resolving conflicts between colonisers as opposed to providing a system for justice or curtailing domination.60 International law was more a reflection of imperial power/force than a concern with justice.61

57 E. Balibar & I. Wallerstein, Race, Nation, Class: Ambiguous Identities, Verso, London, 1991, 43. 58 E. Balibar & I. Wallerstein, Race, Nation, Class: Ambiguous Identities, Verso, London, 1991, 43. 59 Mabo v Queensland (1992) 175 CLR 1, 32: ‘As among themselves, the European nations parcelled out the territories newly discovered to the sovereigns of the respective discoverers (66), provided the discovery was confirmed by occupation and provided the indigenous inhabitants were not organised in a society that was united permanently for political action.(67) To these territories the European colonial nations applied the doctrines relating to acquisition of territory that was terra nullius. They recognised sovereignty of the respective European nations over the territory of “backward peoples” and, by State practice, permitted the acquisition of sovereignty of such territory by occupation rather than by conquest.(68)’ The Original footnotes were: (66) Worcester v Georgia (1832) 31 US 350, at 369; (67) Lindley, The Acquisition and Government of Backward Territory in International Law, (1926), Chs III & IV; (68) See Lindley, ibid, p. 47. 60 P. Fitzpatrick, Modernism and the Grounds of Law, Cambridge University Press, Cambridge, 2001, 156 - 157. It had its genesis in the peace settlement of the 1648 Peace (Treaty) of Westphalia which ended the Thirty Years War in Europe at that time. 61 This was not lost on Brennan J who quoted Blackstone Commentaries on the Laws of England, 17th ed. (1830), Book II, Ch. 1, p. 7) in Mabo v Queensland (1992) 175 CLR 1, 33 in this respect: ‘But how far the seising on countries already peopled, and driving out or massacring the innocent and defenceless natives, merely because they differed from their invaders in language, in religion, in customs, in government, or in colour; how far such a conduct was consonant to nature, to reason, or to Christianity, deserved well to be considered by those, who have rendered their names immortal by thus civilizing mankind.’ Still, the quote also reveals a definite sociobiological assumption that in terms of the superior civilising the uncivilised – this is the rhetoric of polygenesis, phrenology and social- Darwinism.

407 Secondly, the doctrine of discovery at international law could apply where the land was either wholly uninhabited or where an inhabited land was not ‘organized in a society … united permanently for political action’.62 In other words, there was an ‘enlarged notion of terra nullius’ (also known as the “barbarian theory”) allowing an otherwise inhabited territory to be treated as though it were uninhabited: The hypothesis being that there was no local law already in existence in the territory … Colonies of this kind were called “settled colonies”. Ex hypothesi, the indigenous inhabitants of a settled colony had no recognised sovereign, else the territory could have been acquired only by conquest or cession. The indigenous people of a settled colony were thus taken to be without laws, without a sovereign and primitive in their social organization.63 In Mabo Australia was recognised as being colonised according to this enlarged notion of terra nullius.64 Still, at international law, a further formal step was required before the doctrine of discovery could apply to confer territorial sovereignty on the coloniser.65 The law required an “unequivocal act of appropriation” by the Crown to signal to others its intention to claim sovereignty. This unequivocal act had for the two centuries prior to Australia’s colonisation been marked in other places by mythic/religious procedures such as the planting of a Christian cross.66 Later approaches maintained similarities

62 Mabo v Queensland (1992) 175 CLR 1, 32. 63 Mabo v Queensland (1992) 175 CLR 1, 36. As to the “barbarian theory” it was premised on the idea that indigenous inhabitants had no system of law, government, or appropriate use of land, etc. see 36, 39 – 40. 64 Mabo v Queensland (1992) 175 CLR 1, 37 – 38: ‘Thus the theory which underpins the application of English law to the Colony of New South Wales is that English settlers brought with them the law of England and that, as the indigenous inhabitants were regarded as [at 38] barbarous or unsettled and without law, the law of England including the common law became the law of the Colony …’ 65 Dixon explains that: ‘… it is clear from the Island of Palmas Case [The Netherlands v United States 2 RIAA (1928) 829] that discovery per se gives only an inchoate title to territory. This means that unless the first act of discovery is followed up within a reasonable period of time by acts of effective occupation, the potential title to territory accorded by discovery does not mature into full sovereignty’, per M. Dixon, Textbook on International Law, 3rd ed, Blackstone, London, 1990, 142. 66 P. Fitzpatrick, Modernism and the Grounds of Law, Cambridge University Press, Cambridge, 2001, 162, citing Eliade (1965, 9 – 11): ‘… to the consecration of the new country, to a “new birth”, thus repeating baptism (act of Creation).’

408 ‘with religious forms and justifications … but the search for a legitimating basis of discovery shifted from the papal and religious to the monarchical and increasingly secular’.67 In the Americas, Fitzpatrick claims this occurred through secular legal procedures.68 In Australia the unequivocal act of appropriation was the arrival of the “First Fleet” and the physical occupation of Governor Phillip in 1788 representing the clear intention of the Crown.69 These two legal steps (the discovery of uninhabited territory or territory inhabited by barbarians; and the unequivocal act of appropriation) necessary under the international doctrine of discovery allowing a coloniser to gain sovereignty were mutually reinforcing and racist. The “discovery” was premised on racial superiority while the “unequivocal act of occupation” was premised upon racist ideas about what constitutes “unequivocal” occupation given that the indigenous inhabitants were already in occupation. This meant an act of appropriation through physical occupation was an option open to the Crown but not available to Indigenous Australians. This racist international law was repeated under common law because, after 1788, squatters were able to acquire fee simple title through their physical occupation of the land, an option that was not available to Indigenous Australians already in occupation.70 In

67 P. Fitzpatrick, Modernism and the Grounds of Law, Cambridge University Press, Cambridge, 2001, 162. 68 P. Fitzpatrick, Modernism and the Grounds of Law, Cambridge University Press, Cambridge, 2001, 163, citing Greenblatt (1991: 56): ‘Thus Columbus relied on papal authority, religious rituals of appropriation, and redemptive invocation, but his claims to the land in the name of the Spanish Crown were taken to be valid only when legally authorized by that sovereign power. Furthermore, Columbus usually insisted on some legalistic recording of discovery by a notary. … royal instruction of Spanish origin directed that “acts of possession” be made “before a notary public and the greatest possible number of witnesses”; also, “you shall make a gallows there, and have somebody bring a complaint before you, and as our captain and judge you shall pronounce upon and determine it”..’ 69 Mabo v Queensland (1992) 175 CLR 1, 43. Brennan J rejected the proposition of Isaacs J at 439 in Williams v Attorney-General (NSW) (1913) 16 CLR 404, that the moment of sovereignty was ‘when Governor Phillip received his first Commission from King George III on 12 October 1786’. Per Deane and Gaudron JJ at 95: ‘… at the latest when Captain Phillip caused his second Commission to be read and published in the territory of the Colony’. 70 Mabo v Queensland (1992) 175 CLR 1, 39 – 40: ‘As the indigenous inhabitants of a settled colony were regarded as “low in the scale of social organization”, they and their occupancy of colonial land were ignored in considering title to land in a [at 40] settled colony.’

409 fact this recognition of the squatters’ occupation rights often rendered Indigenous people trespassers on their own land.71 Thirdly, and importantly for the argument being made in this chapter, there had to be some justification for this colonial action, viz, claiming sovereignty over territory inhabited by others.72 Although colonisation was an act of force, at both a legal and political level it required legitimation.73 In Mabo Brennan J refers to two justifications for the acquisition of territory inhabited by “backward peoples”: The benefits of Christianity and [at 33] European civilization had been seen as a sufficient justification from mediaeval times. Another justification for the application of the theory of terra nullius to inhabited territory – a justification first advanced by Vattel at the end of the eighteenth century – was that new territories could be claimed by occupation if the land were uncultivated, for Europeans had a right to bring lands into production if they were left uncultivated by the indigenous inhabitants.74 The first of these justifications (the benefits to others of Christian and European civilization) fits with both monogenesis and polygenesis rhetoric. It is the idea that culturally superior Europeans could benefit backward people through enlightenment.75 The second justification (advanced in the quote above by Vattel) is Locke’s thesis that society prospers when land is cultivated and made productive

71 R. Evans, Fighting Words: Writing about Race, University of Queensland Press, St Lucia, 1999, 23 – 25; and J.C. Weaver, “Beyond the Fatal Shore: Pastoral Squatting and the Occupation of Australia 1826 to 1852” (1996) October, American Historical Review 981; and Mabo v Queensland (1992) 175 CLR 1, 69 107 ALR 1, 50. 72 Law must be legitimate: M. Dixon, Textbook on International Law, 3rd ed, Blackstone, London, 1990, 13 – 18; and the law needs both force and legitimation: S. Berns, To Speak As A Judge: Difference Voice and Power, Ashgate, Sydney, 1999, 1. 73 S. Berns, To Speak As A Judge: Difference Voice and Power, Ashgate, Sydney, 1999, 1: ‘I do not see how law can exist without force, at least for us, in our cultures. Once force is admitted, even insisted upon, the question of authority is posed. Force demands authority, for authority alone can legitimate its use, and without a certain kind of authority (or authorisation), force becomes illegitimate violence. 74 Mabo v Queensland (1992) 175 CLR 1, 32 – 33, references omitted. See also Fitzpatrick in P. Fitzpatrick, Modernism and the Grounds of Law, Cambridge University Press, Cambridge, 2001, 167. 75 R. Bernasconi (ed), “Introduction”, American Theories of Polygenesis, Thoemmes Press, Bristol, 2002, pp. v-xiii, online version pages 1 – 2 of 8.

410 rather than left to waste.76 Put another way, both the coloniser and the colonised benefit if the latter’s land is appropriated and made productive because society as a whole would prosper.77 This is the rhetoric of polygenesis in that some people were made inferior by God and therefore ‘the great white race’ was entitled to take what was inhabited by ‘lesser breeds’.78 Of course both justifications found expression in social-Darwinists following Australia’s colonisation in the sense that Indigenous people had not evolved to the same extent as Europeans and hence colonisation could be justified on the basis that “superior people and their ways” might be used to benefit others.79 Locke was also significant here in another sense. Locke positioned property as a right natural to men but he also held that ‘such rights could … only be fully enjoyed by those who enter into a political society, the “Civiliz’d part of Mankind” such that it is the entry into political society which secures ownership – secures the land’.80 Similar views were maintained by Hegel and Adam Smith suggesting that by the 18th century it was axiomatic.81 There are two important points to note here about Locke’s “natural

76 C.B. Macpherson, The political theory of possessive individualism: Hobbes to Locke, Oxford University Press, London, 1962, 211 – 212 quoting Locke: ‘… that he who appropriates land to himself by his labour, does not lessen but increase the common stock of mankind. For the provisions serving to the support of humane life, produced by one acre of inclosed and cultivated land, are [at 212] ten times more, than those, which are yielded by an acre of land, of an equal richness, lying waste in common. And therefore he, that incloses land and has a greater plenty of the conveniences of life from ten acres, than he could have from an hundred left to nature, may truly be said, to give ninety acres to mankind.’ 77 A. Smith, The Wealth of Nations: Books I-III, A. Skinner (ed), Ringwood, Victoria, Penguin, 1970, 117. 78 T. Barta, “Discourses of genocide in Germany and Australia: a linked history” (2001) 25 Aboriginal History 37, 45. 79 G. Jones, Social Darwinism and English Thought: The Interaction between Biological and Social Theory, The Harvester Press, Sussex, 1980, 151. 80 P. Fitzpatrick, Modernism and the Grounds of Law, Cambridge University Press, Cambridge, 2001, 165, quoting Locke 1965: 331, 367 – paras, 30, 87. 81 In relation to Africa Hegel commented in his Lectures on the Philosophy of World History that the: ‘Negro…exhibits the natural man in his completely wild and untamed state…there is nothing harmonious with humanity to be found in this type of character’. P. Fitzpatrick, Modernism and the Grounds of Law, Cambridge University Press, Cambridge, 2001, 122 quoting Hegel. Smith lived in the years from 1723 to 1790, and in his Wealth of Nations, he cites both Blackstone (W. Blackstone, Commentaries, 1765, at 138, 491) and Locke (J. Locke, Some Considerations of the Consequences of

411 law” theories. One is that he claimed to draw upon the laws of nature to justify private property rights using the premise that “God gave everything to mankind in common” and that an individual could appropriate common property by mixing his labour with it.82 However, as Macpherson comments: Locke’s astonishing achievement was to base the property right on a natural right and natural law, and then to remove all the natural law limits from the property right.83 A second point is that Locke was able to justify his own participation in slavery, and hierarchical rights to sovereignty and property on the basis that ‘some individuals, by a wilful turn against natural rights, can forever lose those natural rights’.84 On the one hand private property is a primitive right arising in the state of nature, ‘it is a right which each individual brings to society in his own person, just as he brings the physical energy of his body’, and on the other hand, men only had rights when they were sufficiently “civilized” to enter into political society.85 For Locke, natural rights were lost when one went against the natural law of development: The waste landers … have not joined the communal imaginings of “European silver money,” with its specific codes of property, exchange value, and development. Hence “great Tracts of Ground … lie in waste, and are more than

lowering the interest and raising the value of Money, 1692; And Further Considerations Concerning raising the value of Money, 1695, at 146 and 454): A. Smith, The Wealth of Nations: Books I-III, A. Skinner (ed), Ringwood, Victoria, Penguin, 1970, 523 – 524. At 104 Smith says that his first book in the Wealth of Nations is about the reason productivity is greater in some countries as opposed to less civilized ones. The reason he claims is attributable to the specialization or degree of the division of labour. He also claims that this is the reason for the ‘different ranks and conditions of men in the society.’ 82 C.B. Macpherson, The political theory of possessive individualism: Hobbes to Locke, Oxford University Press, London, 1962, 199. 83 C.B. Macpherson, The political theory of possessive individualism: Hobbes to Locke, Oxford University Press, London, 1962, 199. 84 W. Glausser, “Three Approaches to Locke and the Slave Trade” (1990) April-June 51(2) Journal of the History of Ideas 199, 214; and see also M. Govier, “The Royal Society, Slavery and the Island of Jamaica: 1660-1700” (1999) May 53(2) Notes and Records of the Royal Society of London 203, at 208, citing C. Carr, Selected charters of trading, Seldon Society, London, 1913, p. 187 & 188. Govier lists John Locke (F.R.S. 1668) as a subscriber of the trade. 85 G.H. Sabine, A History of Political Theory, 3rd ed, George G Harrap & Co Ltd, London, 1951, 447.

412 the People, who dwell on it, do, or can make use of, and so still lie in common”. Waste land is common land, according to this logic; and it awaits the virtuous energy of European developers, who may find themselves killing, enslaving, and philosophizing in the interests of development.86 Locke, Like Francisco Vitoria before him, drew a distinction between men on the grounds of their capacity to enter into social agreements.87 In the 16th Century, the international jurist, Vitoria had argued that the “Indian” was a human being with natural rights and therefore the right to dominium (property).88 This did not necessarily mean that the “Indian” had a right to imperium (sovereignty), just the capability for the ownership of property. By the 18th Century Vitoria’s argument had waned such that non-Occidental societies were deemed uncivilized and therefore incapable of both imperium and dominium.89 It is clear Locke justified unjust social relations by claiming to interpret natural law about the place of humans in nature and the nature of humans. This is sociobiological reasoning and Locke’s views became hegemonic in the common law countries. So influential were Locke’s ideas about people, political systems and property that: … a Select Committee on Aborigines reported in 1837 to the House of Commons that the state of Australian Aborigines was “barbarous” and “so

86 W. Glausser, “Three Approaches to Locke and the Slave Trade” (1990) April-June 51(2) Journal of the History of Ideas 199, 215. 87 W. Glausser, “Three Approaches to Locke and the Slave Trade” (1990) April-June 51(2) Journal of the History of Ideas 199, 214. It isn’t entirely clear according to Glausser whether Locke was discriminating on the basis of race or culture. On the one hand Locke defined “waste landers” as ‘people who have not yet “joined with the rest of mankind, in the consent of the Use of their common Money”. These are not beasts outside of common reason, then, but ... undeveloped in their failure to use money.’ On the other hand Glausser at 213 quotes Locke: ‘First, a Child haveing framed the Idea of a Man, it is probable, that his Idea … makes up the single complex Idea which he calls Man, whereof White or Flesh-colour in England being one, the Child can demonstrate to you, that a Negro is not a man …’, and further, ‘A child unused to that sight & haveing had some descriptions of the devil would call a Negro a devil rather than a Man & at the same time call a dryl a man’. 88 P. Fitzpatrick, Modernism and the Grounds of Law, Cambridge University Press, Cambridge, 2001, 163. Vitoria had argued that the Natives of America were children of God and hence had vested in them natural rights. 89 P. Fitzpatrick, Modernism and the Grounds of Law, Cambridge University Press, Cambridge, 2001, 157.

413 entirely destitute … of the rudest forms of civil polity, that their claims whether as sovereigns or proprietors of the soil, have been utterly disregarded”.90 These views prevailed in Australian law as justifications for the denial of Indigenous sovereignty and property rights between1788 and 1992 until the Mabo case addressed the issue of property rights.91 There, the High Court rejected the applicability of an expanded doctrine of terra nullius, declaring ‘the basis of the theory is false in fact and unacceptable in our society’.92 However, in removing the legal basis for colonisation, the door was not left open for an Indigenous claim to sovereignty. Rather, Mabo, incorporated a judicial “sleight of hand” to deliver mixed justice for Indigenous people.93 This was because Mabo simultaneously recognised native title and that the doctrine of terra nullius was a fiction, yet denied the possibility for any Indigenous sovereignty. The rationale for this sleight of hand was that a common law court could not decide sovereignty because that is the province of international law.94 Fitzpatrick condemns what he refers to as the law’s “legerdemain” in the violent structuring of hierarchy the law claims it is at once active but at the same time passive.95 Sovereignty for indigenous Australians is beyond the realm of legal possibilities. Australia’s highest court asserts a lack of jurisdiction to determine the question of British and Australian sovereignty because that is the domain of the International Court of Justice. Indigenous Australians are unlikely to obtain a favourable

90 Mabo v Queensland (1992) 175 CLR 1, 40, reference omitted. 91 S. Dorsett, “Land Law and Dispossession: Indigenous Rights to Land in Australia” in S. Bright & J. Dewar (eds.) Land Law: Themes and Perspectives, Oxford University Press, Oxford, 1998. 92 Mabo v Queensland (1992) 175 CLR 1, 40. 93 See for example M. Mansell, “Perspectives on Mabo: The High Court Gives An Inch But Takes Another Mile” (1992) Vol 2 No 57 Aboriginal Law Bulletin 94. 94 Mabo v Queensland (1992) 175 CLR 1, 33: ‘However, that may be, it is not for this court to canvass the validity of the Crown’s acquisition of sovereignty over the Islands which, in any event, was consolidated by uninterrupted control of the Islands by Queensland authorities’; and at 44: ‘The acquisition of territory is chiefly the province of international law; the acquisition of property is chiefly the province of the common law.’ 95 P. Fitzpatrick, Modernism and the Grounds of Law, Cambridge University Press, Cambridge, 2001, 171: ‘The necessary unknowing is revealed here not as a disregard of law’s coming into being historically, “back then”, but as a denial of both the iterant violence of law now in being and the responsibility which recognition of that violence would inexorably import.’

414 declaration from the International Court of Justice because as a general proposition they would not be able to attract that Court’s jurisdiction,96 and even if they did: They would be unsuccessful because the Court would apply the international law of the late 18th century (under which the acquisition of Australia was lawful), not contemporary standards. This approach is known as the “doctrine of intertemporal law”. Similarly, although contemporary human rights standards guarantee the right of “self-determination” to “all peoples”, the United Nations Human Rights Committee has refused to entertain complaints by indigenous people about denial of this right.97 Therefore, Australian law has maintained the original sociobiological argument for the deprivation of Indigenous sovereignty. The 18th century sociobiological justification for seizing territory (viz: that Europeans could make better use of land than inferior savages who wasted the land) survives as good Australian law in the 21st century.

Dispossession

Australia was not the “peaceful settlement” the socially and legally constructed myth deemed it to be.98 Immediately after the 1788 arrival of the “First Fleet” was a time marked by a mixture of extreme violence and benevolence toward indigenous people as they were dispossessed of their land: Anyone still ignorant of the discourse of genocide which accompanied the European acquisition of Aboriginal land can be referred to the historical record.

96 J. Clarke, “Law and Race: The Position of Indigenous People” in S. Bottomley & S. Parker, Law in Context, Federation Press, Sydney, 1997, Chapter 10, 248, citing R. Balkin, “International law and sovereign rights of indigenous peoples” in B. Hocking (ed), International Law and Aboriginal Human Rights, Law Book Co, Sydney, 1988, 19, at 31 – 32: ‘… indigenous citizens of independent nation states cannot invoke that Court’s jurisdiction. Unless they secure the assistance of the United Nations General Assembly or Security Council in procuring a non-binding advisory opinion – a very unlikely outcome in the Australian case.’ 97 J. Clarke, “Law and Race: The Position of Indigenous People” in S. Bottomley & S. Parker, Law in Context, Federation Press, Sydney, 1997, Chapter 10, 258, citing Lubicon Lake Band v Canada UN Doc CCPR/C/38/D?167/1984, 28 March 1990 and Mikmaq Tribal Society v Canada UN Doc CCPR/C/39/D/205/1986/, 21 August 1990. 98 Mabo v Queensland (1992) 175 CLR 1, 42.

415 The blood-curdling proclamations of frontier journals have been republished progressively over the past thirty years.99 And: Genocide was never the policy of the state. It could be argued it was the effectual policy of the state, because so little was done to restrain the settlers. Certainly, protectors were appointed, and severe warnings issued. But only in a few cases were perpetrators of a massacre brought to justice.100 This ambiguity arose because the colonial mission itself was contradictory. That is to say the colonisers sought to uphold the liberal ideal of “individuality” (which assumes equality before the law) and at the same time they sought to establish a colony on land already inhabited (which meant the dispossession of the local inhabitants of their land, their rights and their sovereignty). From the beginning the colonisers expressed in the official instructions to Governor Phillip, a mixture of concern for the colonised with an intention to take their land: [The Governor should use] full power and authority to agree for such lands tenements and hereditaments as shall be in our power to dispose of and grant them to any person or persons …You are to endeavour by every possible means to open an intercourse with the natives, and to conciliate their affections, enjoining all our subjects to live in amity and kindness with them. And if any of our subjects shall wantonly destroy them, or give them any unnecessary interruption in the exercise of their several occupations, it is our will and pleasure that you do cause such offenders to be brought to punishment according to the degree of the offence.101 Official policies and orders from Imperial sources continued thereafter to express a desire to protect indigenous people while also providing for the systematic dispossession of Australian Aboriginals.102

99 T. Barta, “Discourses of genocide in Germany and Australia: a linked history” (2001) 25 Aboriginal History 37, 41. 100 T. Barta, “Discourses of genocide in Germany and Australia: a linked history” (2001) 25 Aboriginal History 37, 42. 101 Mabo v Queensland (1992) 175 CLR 1, 96, per Deane & Gaudron JJ. 102 J. C. Weaver, “Beyond the Fatal Shore: Pastoral Squatting and the Occupation of Australia 1826 to 1852” (1996) October, American Historical Review 981, 984.

416 Colonisation inevitably meant violence would be necessary to ensure that the Indigenous people were dispossessed of their land while the legal system invented fictions to legitimise the new property regime, masking the crime, and simultaneously protecting its own integrity.103 One of these fictions was the adoption of the fiction of terra nullius. Another was the rejection of terra nullius as the basis for sovereignty and the simultaneous acceptance of the doctrine of tenure which was much less an Australian fiction than it was one of English history.104 In Mabo Brennan J justified this judicial choice on the basis that to do otherwise would ‘fracture a skeletal principle of our legal system’.105 Yet another of these fictions was the categorisation of indigenous people as beyond the law.106 This fiction regarded indigenous people as beyond the law in terms of rights but within the law in terms of control. In other words, Indigenous people were on the one hand human, but on the other hand less than human - they were “savages” or “uncivilised”. This crude type of sociobiological reasoning assumed according to monogenism that indigenous people, although descended from Adam and Eve had not progressed beyond a savage state because of their culture.107 Alternatively, polygenism held that these people were sub-human because they did not descend from Adam and Eve but were instead descendants of an inferior race incapable of progress.108 In either case, indigenous Australians had been

103 As “squatters” steadily dispossessed Indigenous people from their land, they would then lobby colonial authorities to legitimise their land grab. Authorities most often acquiesced to these demands and granted various forms of title ranging from licences to leases to freehold title. See further: J.C. Weaver, “Beyond the Fatal Shore: Pastoral Squatting and the Occupation of Australia 1826 to 1852” (1996) October, American Historical Review 981. 104 The fiction was that applied to both countries was that land was not originally granted by the Crown: Mabo v Queensland (1992) 175 CLR 1, 47. 105 Mabo v Queensland (1992) 175 CLR 1, 43 & 45. 106 T. Barta, “Discourses of genocide in Germany and Australia: a linked history” (2001) 25 Aboriginal History 37, 44. 107 R. Bernasconi (ed), “Introduction”, American Theories of Polygenesis, Thoemmes Press, Bristol, 2002, pages 1 – 8; and J.S. Haller, “The Species Problem: Nineteenth-Century Concepts of Racial Inferiority in the Origin of Man Controversy” (1970) 72 American Anthropologist 1319. Although there was no singular monogenist view because it was used ideologically to promote racism and resist it. 108 R. Bernasconi (ed), “Introduction”, American Theories of Polygenesis, Thoemmes Press, Bristol, 2002, pages 1 – 8; and J.S. Haller, “The Species Problem: Nineteenth-Century Concepts of Racial

417 deemed savages according to a crude type of sociobiological reasoning. In fact the Judiciary has sought to distance itself from this violent episode in Australian history by blaming the state rather than the courts: Aboriginals were dispossessed of their land parcel by parcel, to make way for expanding colonial settlement. Their dispossession underwrote the development of the nation. [I]t is appropriate to identify the events which resulted in the dispossession of the indigenous inhabitants of Australia, in order to dispel the misconception that it is the common law rather than the action of governments which made many of the indigenous people of this country trespassers on their own land.109 And: Sovereignty carries the right to extinguish private rights and interests in land within the sovereign territory. It follows that on a change of sovereignty, rights and interests in land that have been indefeasible, under the old regime become liable to extinction by exercise of the new sovereign power. The sovereign power may or may not be exercised with solicitude for the welfare of indigenous inhabitants, but in the case of common law countries, the courts cannot review the merits as distinct from the legality of the exercise of sovereign power.110 In other words, as Fiztpatrick has argued the law was passive in relation to political issues while at the same time the law actively robbed indigenous people of their sovereignty.111 Yet it is clear from the earlier cases, and indeed Mabo itself, that the courts were active in the dispossession of Indigenous people from their lands.112

Inferiority in the Origin of Man Controversy” (1970) 72 American Anthropologist 1319. Again, like their monogenist adversaries, the polygenists were divided into racist and non-racist views and so there was no single polygenist view. 109 Mabo v Queensland (1992) 175 CLR 1, 69. 110 Mabo v Queensland (1992) 175 CLR 1, 63. 111 P. Fitzpatrick, Modernism and the Grounds of Law, Cambridge University Press, Cambridge, 2001, 170 - 171, citing Marshall CJ in Johnson v McIntosh (1823) 21 US 240 (8 Wheat. 543). 112 Two relatively early cases failed indigenous people. In the case of Attorney-General v Brown (1847) 1 Legge 312, at 316 – 318, Stephen CJ recognised that property of the land in the Crown was ‘doubtless’ a ‘fiction’, but nevertheless ruled that all unoccupied land belonged to the Crown because, ‘there would be no other proprietor’. Just over 100 years after the First Fleet arrived, Cooper v Stuart

418 Because massacres, disease, and dispossession had reduced the Indigenous population so drastically in such a short time the public policy shifted to a more benevolent view toward the “doomed race”.113 One example of this shift was the colonial administrations’ requirement that pastoral leases contain an express reservation in favour of indigenous peoples.114 This shift also marked the beginning of what is referred to as the “protection era” of administration, law, and policy.

reached the Privy Council. Despite an abundance of documentary evidence to the contrary at that time, the “barbarian theory” of the doctrine of terra nullius was applied, viz, N.S.W. was, ‘without settled inhabitants or settled law’ per Lord Watson in Cooper v Stuart (1889) 14 App Cas at 291. While in Mabo v Queensland (1992) 107 ALR 1, per Deane and Gaudron JJ at 82: ‘Inevitably, one is compelled to acknowledge the role played, in dispossession and oppression of the Aboriginals, by the two propositions that the territory of New South Wales was, in 1788, terra nullius in the sense of unoccupied or uninhabited for legal purposes and that full legal and beneficial ownership of all lands of the Colony vested in the Crown, unaffected by any claims of the Aboriginal inhabitants. Those propositions provided a legal basis for and justification of the dispossession. They constituted the legal context of the acts done to enforce it and, while accepted, rendered unlawful acts done by the Aboriginal inhabitants to protect traditional occupation or use. The official endorsement, by administrative practice and in judgements of the courts, of those two propositions provided the environment in which the Aboriginal people of the continent came to be treated as a different and lower form of life whose very existence could be ignored for the purpose of determining the legal right to occupy and use their traditional homelands.’ 113 R. Evans, Fighting Words: Writing about Race, University of Queensland Press, St Lucia, 1999, 118; and T. Barta, “Discourses of genocide in Germany and Australia: a linked history” (2001) 25 Aboriginal History 37, 44 (quoting Broome 1995): ‘… while the efforts of missionaries and protectors saved the remnant for possible regeneration, the later determination of governments to shed responsibility for all but the small number of “full-bloods” meant that assimilation was expected to bring about the disappearance of the problem. By the 1920s estimates ranged from 402 to 586 survivors, “a point dangerously close to the extinction of a people”.’ 114 This reservation, along with several other reservations in favour of third parties ultimately assisted the Wik People in their claim that pastoral leases were not synonymous with common law leases since these reservations were antithetical to the notion of “exclusive possession” (a defining feature of common law leases) rendering pastoral leases more akin to licences and therefore not incompatible with native title. See further Wik Peoples v Queensland (1996) 187 CLR 1.

419 Protection to responsibility

What is otherwise known as the “protection” era arose as an imperial parliamentary response to the catastrophic decline in the Indigenous population. It was a reaction to reports of massacre, murder, disease and dispossession.115 The protection era represents the period ranging from the late 19th century through until the 1970s. “Protection” was an official policy aimed at “protecting” the survivors of colonisation and dispossession. Instead, the protection era harboured the exploitation of Indigenous labour, the removal of children from their families, strict controls over marriage, and the brutal abuse of internees in reserves and institutions.116 Under the broad banner of “protection” there were at least three discernible policy shifts commencing with “merging” in the 1890s through to “absorption” from 1937 and further forward until ‘integration” in the 1960s.117 Despite the nuances, for Murphy, these policy shifts falling under the banner of “protection” were all aimed at one over-arching objective – the assimilation of Indigenous people into “white Australia”.118 McPhee corroborates Murphy’s thesis claiming that assimilation was strongly recommended in 1896 by Baldwin Spencer (professor of biology at the University of Melbourne) and

115 T. Barta, “Discourses of genocide in Germany and Australia: a linked history” (2001) 25 Aboriginal History 37, 44 & 50: ‘In Australia assimilationist talk was developed over more than 50 years to cope with the results of colonisation and genocide.’ 116 K. Saunders & R. Evans (eds.), Gender Relations in Australia: Domination and Negotiation, Harcourt Brace Jovanovich, Sydney, 1992, 42 – 53; and generally Bringing Them Home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, 26 May 1997. 117 Bringing Them Home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, 26 May 1997, pages 22 to 30, of 524. 118 L. Murphy, “Who’s Afraid of the Dark? : Australia’s Administration in Aboriginal Affairs”, Dissertation submitted to the Centre for Public Administration, The University of Queensland, in fulfilment of the requirements for the degree of Master of Public Administration, June 2000, 7: ‘At the end of it all, Aboriginal people are still dealing with institutions and processes that are imposed. Not only are these institutions and processes inadequate to Aboriginal culture and experience, they perpetuate the process of colonisation. The mechanism through which this domination is currently maintained is the participatory for a of a managerialist model of public administration. Although these for a represent a shift from an earlier model, which operated in a context of conflict, to a model that now operates in a context of ‘consensus”, the administrative practice of terra nullius in social policy prevails.’

420 Frank Gillen (Sub-Protector of Aborigines in Alice Spring following their fieldwork in central Australia.119 Spencer was also an important government adviser who was later appointed as Chief Protector of aborigines in the Northern Territory in 1911, and reportedly advised the government that: No half-caste children should be allowed to remain in any native camp … even though it may seem cruel to separate the mother and child, it is better to do so.120 The first model for the protection regime, “merging”, was the result of an inquiry by a Select Committee established by the imperial parliament to investigate the ‘condition of Aboriginal people’ after reports had filtered through to London about the ‘massacres and atrocities’ taking place in the 1800s.121 Among its recommendations: The Select Committee Inquiry proposed the establishment of a protectorate system, noting that ‘the education of the young will of course be amongst the foremost of the cares of the missionaries; and the Protectors should render every assistance in their power in advancing this all-important part of any general scheme of improvement’ (quoted by Victorian Government final submission on page 25). The protectorate system was based on the notion that Indigenous people would willingly establish self-sufficient agricultural communities on reserved areas modelled on an English village and would not interfere with the land claims of the colonists.122 In Queensland Indigenous people were managed through legislation passed between 1897 and 1934 called The Aborigines Protection and Restriction of the Sale of Opium Act and The Aboriginals Preservation and Protection Act of 1939. This legislation

119 P. McPhee, “19th Century ideologies live on today”, Courier Mail, 12 June 1999, Weekend Liftout page 10. 120 P. McPhee, “19th Century ideologies live on today”, Courier Mail, 12 June 1999, Weekend Liftout page 10, quoting P. Wolfe, Settler Colonialism and the Transformation of Anthropology, Cassell, Melbourne, 1999. 121 Bringing Them Home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, 26 May 1997, pages 22 – 23, of 524. 122 Bringing Them Home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, 26 May 1997, page 23 of 524.

421 regulated everything from sexual intercourse to the partial denial of citizenship rights.123 In other states the laws were equally repressive: The government response was to reserve land for the exclusive use of Indigenous people and assign responsibility for their welfare to a Chief Protector or Protection Board. By 1911 the Northern Territory and every State except Tasmania had ‘protectionist legislation’ giving the Chief Protector or Protection Board extensive power to control Indigenous people. In some States and in the Northern Territory the Chief Protector was made the legal guardian of all Aboriginal children, displacing the rights of parents. The management of the reserves was delegated to government appointed managers or missionaries in receipt of government subsidies. Enforcement of the protectionist legislation at the local level was the responsibility of ‘protectors’ who were usually police officers. In the name of protection Indigenous people were subject to near-total control. Their entry to and exit from reserves was regulated as was their everyday life on the reserves, their right to marry and their employment. With a view to encouraging the conversion of the children to Christianity and distancing them from their Indigenous lifestyle, children were housed in dormitories and contact with their families strictly limited.124 By the 1930s it had become clear that the policy of “merging” had failed as the general public had found the remaining ‘diseased and suffering’ Indigenous people ‘unsettling’, and governments ‘typically viewed Indigenous people as a nuisance’.125 While the “full-bloods” had not died out as expected, they were in decline and still

123 R. Evans, Fighting Words: Writing about Race, University of Queensland Press, St Lucia, 1999 118 – 119: ‘Thus, the 1890s creation of special social control agencies, exemplified in the offices of Chief Protector, Police Protector, Reserve and Mission Superintendent, and Matron, with near total powers over apprehended Aborigines, as well as the phenomenon of the reserve/mission itself as a closed, correctional and custodial institution, were the logical extensions of contaminatory public anxieties into the official domain.’ 124 Bringing Them Home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, 26 May 1997, page 23 of 524. 125 Bringing Them Home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, 26 May 1997, page 23 of 524.

422 breeding; and at the same time the mixed descent population continued to grow.126 Then in 1937, following the ‘first Commonwealth-State Native Welfare Conference’ the ‘Aboriginal problem’ was reconsidered: Discussion was dominated by the Chief Protectors of Western Australia, Queensland and the Northern Territory: A.O. Neville, J.W. Bleakley and Dr Cook respectively. Each of them presented his own theory, developed over a long period in office, of how people of mixed descent would eventually blend into the non-Indigenous population. The conference was sufficiently impressed by Neville’s idea of ‘absorption’ to agree that, … this conference believes that the destiny of the natives of aboriginal origin, but not of the full blood, lies in their ultimate absorption by the people of the Commonwealth, and it therefore recommends that all efforts be directed to that end. In relation to Indigenous children, the conference resolved that, … efforts of all State authorities should be directed towards the education of children of mixed aboriginal blood at white standards, and their subsequent employment under the same conditions as whites with a view to their taking their place in the white community on an equal footing with the whites.127 This marked a shift in protection policy from “merging” to “absorption”. The subtle difference in terms masks an escalation in the laws and procedures aimed at assimilation and the forced removal of children from their families: Whereas ‘merging’ was essentially a passive process of pushing Indigenous people into the non-Indigenous community and denying them assistance, assimilation was a highly intensive process necessitating constant surveillance of people’s lives, judged according to non-Indigenous standards.128 Assimilationist policies under the rubric of “protection” were sociobiological. They were sociobiological in at least three respects. Firstly, these policies were based on polygenesis:

126 Bringing Them Home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, 26 May 1997, page 24 of 524. 127 Bringing Them Home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, 26 May 1997, page 26 of 524, emphasis added. 128 Bringing Them Home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, 26 May 1997, page 27 of 524.

423 Of course, polygenism provided a powerful rationale for treating blacks both as vermin and as chattel labour, and for warning against European sexual intermixture and especially inter-marriage with Aborigines, Melanesians or Chinese. But its functional role, in popular or folk racism, extended in Queensland society well into the twentieth century.129 Secondly, eugenics was a significant sociobiological influence on the policies used from the 1890s up until the 1970s. Scott points to a critical text informing government policy called Australia’s Coloured Minority: their place in our community by A.O. Neville published in 1948: The scientist, with his trained mind and keen desire to exert his efforts in the field investigating native culture and in studying the life history of the species, supplies an aid to administration.130 The “administration” referred to by Neville in this passage was the management and control of Indigenous people and the science informing him was eugenics: What sort of science? Well, eugenics mostly. That is: 1. the science of improving the qualities of the human race, esp. the careful selection of parents. 2. The science of improving offspring (The Macquarie Dictionary). … You could read it in the newspapers too: The modern world has many problems to face. The half-caste is not one of them. He or she is merely a passing phase, an incident in history, an interesting event in what we call ‘progress’ … He will solve himself and disappear. That much is certain, it is not problematical. The only problem that enters into it, though it is a palpable misuse of the word to call it that, is how long it is going to take. A few centuries maybe, perhaps much less … on the ground that he is a nuisance to us, we should hurry on his disappearance. 131

129 R. Evans, Fighting Words: Writing about Race, University of Queensland Press, St Lucia, 1999, 41 – 42. 130 K. Scott, “Australia’s Continuing Neurosis: Identity, Race and History”, The Alfred Deakin Lectures, Melbourne Town Hall, Monday 14 May, 2001, at 2. 131 K. Scott, “Australia’s Continuing Neurosis: Identity, Race and History”, The Alfred Deakin Lectures, Melbourne Town Hall, Monday 14 May, 2001, at 2 - 3, quoting the West Australian, in1933.

424 Thirdly, assimilation is also a form of social-Darwinism.132 It is the idea that the inferior culture would not survive competition with the superior culture and therefore should be not sustained by artificial means. This mandated self-sufficiency so that Indigenous men, women and children had to work for their rations rather than receive “sit-down” money.133 It also justified their exploitation as forced labour as they helped to build the nation.134 Despite the oppression caused by this tightening of control Indigenous people survived and initiated political struggles against it.135 The policy of “absorption” failed to assimilate Indigenous people into “white Australia”.136 Indigenous struggles culminated in the 1967 Referendum and changes to the Constitution to allow the Commonwealth to legislate on behalf of Indigenous people.137 These same pressures brought to bear a symbolic shift in policy over this same period of time from “absorption” to “integration”.138

132 R. Evans, Fighting Words: Writing about Race, University of Queensland Press, St Lucia, 1999, 198: ‘For although their physical lives may have been spared, their social lives, in a society which both despised them and fully endorsed the white master’s coercive controls, were not.’ 133 K. Saunders & R. Evans (eds.), Gender Relations in Australia: Domination and Negotiation, Harcourt Brace Jovanovich, Sydney, 1992, 53 – 56 & 406 - 407. 134 P. Grimshaw, M. Lake, A. McGrath, & M. Quartley, Creating a Nation, Penguin, Ringwood (Vic), 1996, 289 – 296; and R. Evans, Fighting Words: Writing about Race, University of Queensland Press, St Lucia, 1999, 198, 234. 135 R. Evans, Fighting Words: Writing about Race, University of Queensland Press, St Lucia, 1999, 178 & 233. 136 Bringing Them Home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, 26 May 1997, page 28 of 524. Newly appointed liberal party Minister for Territories Paul Hasluck commented at the 1951 Native Welfare Conference, ‘that Australia’s treatment of its indigenous people made a mockery of its promotion of human rights at the international level’. As a result the Conference decided that assimilation was essential: ‘Assimilation means, in practical terms, that, in the course of time, it is expected that all persons of aboriginal blood or mixed blood in Australia will live like other white Australians do.’ 137 The 1967 Referendum amended the Constitution, s.51(26) which previously prevented the Commonwealth parliament from legislating for the people of any race, ‘other than the aboriginal race in any state’. The quoted words were removed: Constitution Alteration (Aboriginals) Act (No 55) 1967. 138 Bringing Them Home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, 26 May 1997, page 28 of 524. As a result a ‘federal Office of Aboriginal

425 Then in 1972 the Whitlam government responded to the, by then growing, political action of Indigenous people to initiate a further shift in policy, “self-management” aimed ultimately at “self-determination”.139 As a step in this direction the Whitlam government made a number of reforms including the introduction of the Race Discrimination Act 1975 (passed subsequently by the Fraser government), the creation of a National Aboriginal Consultative Committee in 1973, an Aboriginal Loans Commission in 1974, and the introduction of statutory land rights into the Northern Territory.140 Since then there have been only two changes to public policy despite major inquiries and several CERD reports criticising Australian governments for the failure to address Indigenous incarceration, deaths in custody, poverty, disease and ill- health, and unemployment.141 The two notable exceptions were the establishment of the Aboriginal and Torres Straight Islander Commission in 1989 and its controversial demise in 2004 arguably representing a shift back to the policy of “integration”.142 In this period – often seen as commencing with the initiatives of the Whitlam government through to the present day – there were two important changes. The first change was the establishment of bureaucracies, which to varying degrees included Indigenous representation.143 The second set of changes were legal, beginning with

Affairs was established and made grants to the States for Aboriginal welfare,’ and ‘“Assimilation” was discarded as the key term of Aboriginal policy in favour of “integration”.’ 139 P. Grimshaw, M. Lake, A. McGrath, & M. Quartley, Creating a Nation, Penguin, Ringwood (Vic), 1996, 302 – 303, 306 – 307, 312; R. Evans, Fighting Words: Writing about Race, University of Queensland Press, St Lucia, 1999, 114 – 115; and “Twenty-five years On”, Report by the Aboriginal and Torres Straight Islander Commission, 1990. 140 “Twenty-five years On”, Report by the Aboriginal and Torres Straight Islander Commission, 1990. 141 For instance: Royal Commission Into Aboriginal Deaths in Custody, AGPS, Canberra, 1991; and Committee on the Elimination of Racial Discrimination, 53rd Session (3-21 August 1998), CERD/C/53/Misc.17/Rev.2, [1998] AILR 42, (1998) 3 AILR 590. 142 According to the 2004 Social Justice Report (of the HREOC Aboriginal and Torres Strait Islander Social Justice Commissioner), as a result of the 2004 enactment of the ATSIC Amendment Act, ‘Under the new arrangements, “more than $1 billion of former ATSIC-ATSIS programs was transferred to mainstream departments”. These departments will be required to “accept responsibility for Indigenous services” and be “held accountable for outcomes”. The transfer of Indigenous service to mainstream departments aims to ensure that departments will “work in a coordinated way” and “to make sure that local families and communities have a real say in how money is spent”.’ 143 K. Saunders & R. Evans (eds.), Gender Relations in Australia: Domination and Negotiation, Harcourt Brace Jovanovich, Sydney, 1992, 412 – 413.

426 the enactment of the Racial Discrimination Act 1975, and later on, the series of cases concerning Indigenous issues in the wake of the 1992 Mabo case. Why is this sociobiological? Because the legal and institutional arrangements since 1975 have obscured responsibility for the condition of Indigenous Australians by deeming them responsible for their circumstances while denying self-determination. These policy changes have encouraged increased indigenous representation into “white” institutions as a new approach to management of the “Aboriginal problem” giving the impression of reform and allowing the blame for Indigenous’ conditions to extend to Indigenous’ leadership.144 This has the effect of naturalising the past and naturalising the status quo where instead the “white” acceptance of responsibility for past injustice together with self-determination would initiate substantive justice. Of course, it is a lack of desire for substantive justice that makes it necessary to justify the status quo according to sociobiology. Over time, the sociobiological presumption that the inferior and doomed race would be wiped out, firstly through dispossession and then later through policies aimed at , proved incorrect: The violence and disease associated with colonisation was characterised, in the language of social Darwinism, as a natural process of ‘survival of the fittest’. According to this analysis, the future of Aboriginal people was inevitably doomed; what was needed from governments and missionaries was to ‘smooth the dying pillow’.145 Subtle changes to prevailing sociobiological ideas led to changes in policy but policy and law were always linked to the power interests of a growing economy. For this reason the policy maintained hierarchies on the basis of race and class (and gender)146 throughout the period from 1788 to the present. That is to say initially Indigenous people were seen as an impediment to the colonial “land grab”, and later a different

144 L. Murphy, “Who’s Afraid of the Dark: Australia’s Administration in Aboriginal Affairs”, Dissertation submitted to the Centre for Public Administration, The University of Queensland, in fulfilment of the requirements for the degree of Master of Public Administration, June 2000. 145 Bringing Them Home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families 26 May 1997, page 23 of 524. 146 See generally: K. Saunders & R. Evans (eds.), Gender Relations in Australia: Domination and Negotiation, Harcourt Brace Jovanovich, Sydney, 1992.

427 hierarchal relationship was required to build the nation.147 This “management” of indigenous Australians was achievable only through a myriad of sociobiological laws aimed at differentiating between indigenous people and white Australians on the basis of blood, skin colour and genes.148

Conclusion

In this part of the thesis it was demonstrated that the ideology of sociobiology underpinned and continues to underpin the colonisation, dispossession, control, domination and oppression of Indigenous Australians. Colonisation was made possible by the fiction of the doctrine of terra nullius which was sociobiological because it made assumptions about the place of man in nature and about the nature of man and then used these assumptions as an excuse for hierarchy and domination. Once Australia had been taken as terra nullius the sociobiological justification was invoked to underscore government policy. This time the argument was that the Indigenous people were a “doomed race” destined to lose the struggle for survival with a more advanced civilized race.149 This meant the herding of people off their traditional lands into “reserves” where they were either categorised as unfit for use as cheap labour, or they were exploited in Australian industry or made domestic servants in private homes. Later, by the 1970s, after a long struggle for justice, Indigenous people began to receive limited recognition in the guise of law reform and bureaucratic reform. However, this recognition afforded no “self-determination” and

147 M. Foucault, “Governmentality” (1979) 6 Ideology and Consciousness 5; and M. Foucault, The History of Sexuality, Volume 1:An Introduction, R. Hurley (Trans), Penguin Books, London, 1979, 139 – 140: In Foucauldian terms the subjects now needed to be managed by their masters marking a shift in sovereignty from the power over life and death, to a power to manage. 148 Bringing Them Home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, 26 May 1997, page 25 of 524 (citing McCorquodale 1987 page 9). The Report noted that the term “Aboriginality” had more than 67 definitions contained in 700 pieces of legislation’ See also Chapter 10. 149 R. Evans, Fighting Words: Writing about Race, University of Queensland Press, St Lucia, 1999, 118: ‘… white Australians clung hopefully at the time to the eugenically pristine promise of the “Doomed Race” theory, which held that “full blood” Aborigines would naturally become extinct, while the spread of a “half-caste” population was to be firmly thwarted administratively.’

428 was instead aimed at ensuring Indigenous people were held responsible for their circumstances, while exculpating colonial responsibility and ensuring that the Australian nation was a good human rights citizen. This period delivered formal rights which essentially re-asserted the status quo and therefore “naturalised” the “Aboriginal problem” as inevitable, incurable, irreconcilable and innate. Therefore it too is a period marked by sociobiological ideology.

429

430

Chapter 10

Sociobiology and Laws of Aboriginality

Introduction In the last chapter it was argued that law used sociobiology to colonise Australia. In this chapter, it is argued the law maintains colonial control over Indigenous people by defining who they are rather than relinquishing this control in favour of self- determination in accord with international standards. The excuse for refusing self- determination will be shown to be sociobiological. Two legal issues go to the heart of the politics of Indigenous affairs today and they are “self-determination” and “native title”. Collectively, they both represent basic rights of recognition. Legal “recognition” is critical because it has implications for the official way that Indigenous Australians identify themselves and in turn how powerful and privileged Australians and institutions identify and treat those survivors of over 200 years of colonisation. Here the focus is on classifying people as Aboriginal or non-Aboriginal, and the specific issues relating to native title are left for consideration elsewhere. This chapter begins by critically assessing the various legal approaches to the issue of Aboriginal identity. This is followed by an analysis of the cases that have determined “Aboriginality”.

The various legal “tests” of “Aboriginality: deficiencies and politics Recognition, as it concerns the identity of people, should be by way of “self- determination” according to international law and not according to dubious systems of nomenclature imposed by colonisers. As De Plevitz and Croft point out: The right of indigenous peoples to belong to an indigenous community or nation in accordance with their own traditions and customs is recognised as a

431 fundamental exercise of self-determination in Article 9 Draft Declaration on the Rights of Indigenous Peoples 1994.1 Self-determination is a fundamental principle in both the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR). Both the ICESCR and the ICCPR state: All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.2 In addition, as Castan has observed, Article 27 of the ICCPR crucially seeks to preserve the culture, religion and language of persons belonging to ethnic, religious or linguistic minorities.3 Article 27 is also aimed at ensuring the survival of these minority groups, ‘thus enriching the fabric of society as a whole’.4 Castan also notes: The Human Rights Committee has also recognised the importance of land to culture & identity, and the interrelationship of land to the obligation to accord self-determination. … The right of self determination requires, amongst other things, that all peoples must be able to freely dispose of their natural wealth and resources and that they may not be deprived of their own means of subsistence (Art 1, para 2). The Human Rights and Equal Opportunity Commission has also emphasised that the practice of extinguishing inherent aboriginal rights be abandoned as incompatible with article 1 of the Covenant.5

1 L. De Plevitz & L. Croft, “Aboriginality under the microscope: the biological descent test in Australian law” (2003) 3(1) QUT Law &Justice Journal 1, 8. 2 Paragraph 1, Article 1, of both the International Covenant on Economic, Social and Cultural Rights 1966 and the International Covenant on Civil and Political Rights 1966. 3 M. Castan, “The High Court, Human Rights, and the New Jurisprudence of Denial” Paper presented at the Castan Centre For Human Rights Law Conference, Human Rights 2003: The Year in Review, 4 December 2003, CUB Malthouse – Melbourne. Accessed online at www.law.monash.edu.au/castancentre on 11 November 2005, at 2. 4 M. Castan, “The High Court, Human Rights, and the New Jurisprudence of Denial” Paper presented at the Castan Centre For Human Rights Law Conference, Human Rights 2003: The Year in Review, 4 December 2003, CUB Malthouse – Melbourne. Accessed online at www.law.monash.edu.au/castancentre on 11 November 2005, at 2. 5 M. Castan, “The High Court, Human Rights, and the New Jurisprudence of Denial” Paper presented at the Castan Centre For Human Rights Law Conference, Human Rights 2003: The Year in Review, 4 December 2003, CUB Malthouse – Melbourne. Accessed online at

432 However, in Australia, the law has not applied self-determination and has instead applied sociobiological approaches to the question of “Aboriginality” which has led to inequality, oppression, dispossession, domination and hierarchy. What will be made clear below in the case analysis is that the Australian approach applies a test regime that is sociobiological because it relies on anachronistic notions of biological inheritance in terms of identity and applies bio-cultural tests in the cases. While the sociobiological argument needs to be established below, it is already recognized that the Australian legal system deserves to be condemned for choosing to depart from the principle of self determination and as such, has been criticized by the United Nations Committee for the Elimination of All Forms of Racial Discrimination.6 In less critical terms, but in no way shy of declaring the deficiency of the Australian legal approach, Merkel J commented in the leading case on Aboriginal identity: It is unfortunate that the determination of a person’s Aboriginal identity, a highly personal matter, has been left by a parliament that is not representative of Aboriginal people to be determined by a court which is also not representative of Aboriginal people. While many would say that this is an inevitable incident of political and legal life in Australia, I do not accept that that must always be necessarily so. It is to be hoped that one day if questions such as those that have arisen in the present case are again required to be determined that that determination might be made by independently constituted bodies or tribunals which are representative of Aboriginal people.7

www.law.monash.edu.au/castancentre on 11 November 2005, at 3 – 4, quoting Human Rights Committee General Comment 23, para 9. 6 United Nations Committee for the Elimination of All Forms of Racial Discrimination (CERD), CERD Decision 2 (54) on Australia; Australia 18/03/99; A/54/18,para.21(2). (Decision) accessed at http://www.unhchr.ch/tbs/doc.nsf/MasterFrameView/a2ba4bb337ca00498025686a005553d3?Opendoc ument on 8 November 2005; and CERD Decision 2 (55) on Australia: Australia 16/08/99; A/54/18,para.23(2). (Decision) accessed at http://www.unhchr.ch/tbs/doc.nsf/MasterFrameView/05af60d57303bb948025686a00595371?Opendoc ument on 8 November 2005. 7 Shaw v Wolf (1999) 163 ALR 205, 268, referring to the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth).

433 Before moving to that discussion on the cases dealing with “Aboriginality” it is convenient to introduce the various “tests”.8 Many statutes use the term “Aboriginal” but do not define that term other than to say it means a “person of the Aboriginal race of Australia”.9 Therefore the term is left to be determined according to the common law. As such courts have struggled to maintain a coherent approach to this issue because they have ignored international law10 and secondary sources of legal literature11 and have instead looked to dictionaries12, to the history of the Constitutional race power in s. 51(xxvi),13 to the preamble and aims sections of statutes14, and to science15 and sociology for assistance16. Despite the variety of approaches it is possible to discern the various elements and tests that have been used in the cases. The Australian judicial approach is to apply what is known loosely as the “descent test” which has comprised of many elements since it developed and these are discussed below.17

8 The use of the term “tests” is a tad misleading because some of the topics discussed immediately below are better described as elements, or even aspects, of the Australian test which is in fact the “descent test” which comprises of three criteria: (1) descent, (2) self identification and (3) community recognition. The latter two may be necessary to supplement descent and are probative of descent as per Shaw v Wolf (1999) 163 ALR 205. 9 For example: Aboriginal and Torres Strait Islander Commission Act 1989 (Cth), s(4)(1) defines an ‘Aboriginal person’ as ‘a person of the aboriginal race of Australia’; Native Title Act 1993 (Cth), s253 defines ‘Aboriginal peoples’ as ‘means peoples of the Aboriginal race of Australia’. 10 Mentioned above, see for example: Paragraph 1, Article 1, of both the International Covenant on Economic, Social and Cultural Rights 1966 and the International Covenant on Civil and Political Rights 1966. 11 For example: Australian Law Reform Commission Report No 31, The Recognition of Aboriginal Customary Laws, AGPS, Canberra, 1986. 12 Queensland v Wyvill (1989) 90 ALR 611, per Pincus J at 614 - 615. 13 Gibbs v Capewell (1995) 128 ALR 577, per Drummond J at 578. 14 Gibbs v Capewell (1995) 128 ALR 577, per Drummond J at 579. 15 L. De Plevitz & L. Croft, “Aboriginality under the microscope: the biological descent test in Australian law” (2003) 3(1) QUT Law &Justice Journal 1. 16 Shaw v Wolf (1999) 163 ALR 205, per Merkel J at 210. 17 All cases from Queensland v Wyvill (1989) 90 ALR 611 to Shaw v Wolf (1999) 163 ALR 205 have applied this test with varying emphases on the many aspects applicable to it.

434 Self-determination For Indigenous people world-wide self-determination is the most important procedural legal and political objective.18 What is meant by the expression “self- determination”? In generic terms this would mean that Indigenous Australians would determine “aboriginal identity” according to their own laws and institutions, and as a group it would mean that Indigenous people could ‘consent to the terms of their relationship with the hitherto dominant structures’ so that they could choose ‘from a variety of political structural arrangements and means of economic, social and cultural development’.19 Of course in specific terms “self-determination” must be formulated by the Indigenous people themselves. Self-determination is yet to be the basis for a decision in Australia at law despite international expectations, and the fact that ‘Australian Aboriginal organisations have insisted on self-determination as the base for Aboriginal aspirations’.20 Self determination can only ultimately be introduced into law by statutory law reform and this is unlikely given the declared policy of the current federal government21, and based on the performance of its predecessor.22

18 F. Brennan, “Aboriginal self-determination: The ‘new partnership’ of the 1990s” (1992) Vol 17 No 2 Alternative Law Journal 53; S. Pritchard, “The Right of Indigenous Peoples to Self-Determination under International Law” (1992) Vol 2 No 55 Aboriginal Law Bulletin 4. 19 S. Pritchard, “The Right of Indigenous Peoples to Self-Determination under International Law” (1992) Vol 2 No 55 Aboriginal Law Bulletin 4, 6. 20 S. Pritchard, “The Right of Indigenous Peoples to Self-Determination under International Law” (1992) Vol 2 No 55 Aboriginal Law Bulletin 4, 6. 21 The Howard Liberal Party and National Party coalition government has openly declared it is opposed to self-determination and has taken steps to dismantle the Aboriginal and Torres Strait Islander Commission originally set up to provide Indigenous people with a role in policy and administration (see further L. Murphy, “Who’s Afraid of the Dark: Australia’s Administration in Aboriginal Affairs”, Dissertation submitted to the Centre for Public Administration, The University of Queensland, in fulfilment of the requirements for the degree of Master of Public Administration, June 2000.). This is indicative of the assimilationist approach of the Howard government to Indigenous affairs – it is extremely reluctant to facilitate any self-determination. In fact the Prime Minister actively avoids using the term as well as expressly stating on the 11 May 2000 that his government was opposed to self- determination: J. Howard MHR and Prime Minister of Australia, “Reconciliation Documents”, Media Release, issued on 11 May 2000 and accessed at http://www.pm.gov.au/news/media_releases/2000/reconciliation1105.htm on 21 November 2005. Short points out that the government has preferred the official approach of “practical reconciliation” which is code for “economic self-sufficiency”, per D. Short, “Reconciliation, Assimilation, and the

435 Significantly, international law, in particular Article 1 of the ICCPR, is unable to support anything more than normative claims by Indigenous Australians because complaints are only possible under Part Three of the Optional Protocol of the ICCPR.23 Therefore, self-determination is more an ideal than a mandatory

Indigenous Peoples of Australia” (2002) Vol 5 No 1 Fourth World Journal, pp. 24 – 49, accessed online at http://www.cwis.org/fwj/51/d_short.html on 7 November 2005, see especially footnote No 38. This Howard government policy has recently received some support from the Chair of Cape York Land Council and from Mr Noel Pearson who have asked the Prime Minister to consider legislation to convert native title into freehold to encourage economic freedom. Sceptics might see this as “wedge politics” and a cynical way to continue the dispossession of Indigenous people so that some community leaders might personally benefit together with powerful White commercial interests such as mining, pastoral and tourism industry players. This issue has received widespread media interest – see further: J.C. Altman, C. Linkhorn & J. Clarke, “Land Rights and Development Reform in Remote Australia”, Discussion Paper No 276/2005 issued by the Centre for Aboriginal Economic Policy Research, ANU, September 2005; and “Pearson Backs Howard’s Approach To Indigenous Affairs”, Insiders, ABC TV, broadcasted on 5 June 2005, transcript accessed online at http://www.abc.net.au/insiders/content/2005/s1384711.htm on 21 November 2005; and in terms of avoiding use of the term “self-determination” or the reluctance to use it and the use of variations such as “economic empowerment”, “economic individualism”, “self-sufficiency”, “self-empowerment”, “self-motivating”, and “self-improvement” so as to avoid “a culture of welfare dependency” see further: Transcript of the Prime Minister (John Howard) interviewed with Catherine McGrath, AM Programme, ABC Radio National, broadcasted 4 August 2003, transcript accessed at http://www.pm.gov.au/news/interviews/Interview399.html on 21 November 2005; Interview with the Prime Minister on John Laws, 2UE Radio, broadcasted on 29 May 2000, and accessed at http://www.pm.gov.au/news/interviews/2000/laws2905.htm on 21 November 2005; Transcript of Interview between the Prime Minister (John Howard) and Alan Jones, 2UE Radio, broadcasted on 11 May 2000, accessed online at http://www.pm.gov.au/news/interviews/2000/jones2905.htm on 21 November 2005. 22 The previous Hawke/Keating led Australian Labor Party government was in office during the “peak” of the political wave concerning Indigenous rights (for instance, 1992 was the year of the Mabo decision , and the United Nations “International Year for the World’s Indigenous Peoples”), and self- determination only got as far as being enunciated as a ‘key concept’ by then Aboriginal Affairs Minister, Mr Tickner, per S. Pritchard, “The Right of Indigenous Peoples to Self-Determination under International Law” (1992) Vol 2 No 55 Aboriginal Law Bulletin 4, 7. See also: F. Brennan, “Aboriginal self-determination: The ‘new partnership’ of the 1990s” (1992) Vol 17 No 2 Alternative Law Journal 53. 23 Although the Optional Protocol to the ICCPR became operative on 25 December 1991 complaints aimed at seeking redress are not possible for alleged breaches of Article 1: F. Brennan, “Aboriginal

436 requirement of law. The reason for this is straightforward. Self-determination would require altruistic action on the part of sovereign states to share power and resources with colonised indigenous peoples.24 Self-determination does not necessarily mean that indigenous people will be entitled to sovereignty and precisely for that reason it remains incomplete, and instead effectively means the right of indigenous peoples to determine their relationship with a State and their political status within a sovereign nation.25 However, as Brennan points out: There is no prior legal or philosophical reason why areas such as Torres Strait and Arnhem Land could not be constituted as States of the federation or even as separate nations some time in the future.26 Still, as Brennan has observed most States, including Australia, will adopt the Brazilian position on this question and require a form of self-determination that is less than full separate statehood/sovereignty.27 Within these parameters (viz: self- determination subject to the Australian Constitution and laws of Australia, which can be described as “intra-state-sovereign self-determination”) there remains plenty of scope for improvement and there are no reasons why Aboriginal identity should not be subject to self-determination rather than colonial determination as it presently

self-determination: The ‘new partnership’ of the 1990s” (1992) Vol 17 No 2 Alternative Law Journal 53, 57. 24 ‘In international law, self-determination has come to have a technical meaning in the decolonisation process. When a colonial power is withdrawing from a territory, the people of the territory are to be assured a free choice in determining their political future.’ Attempts by Indigenous people to argue this should apply to them by analogy has been resisted by sovereign states fearing that it would lead to the break-up of their nation. Instead, governments tend ‘to concede only internal self-determination to allow indigenous groups more autonomy as of right in the domestic political arrangements of the nation. They are not prepared to recognise external self-determination which carries the right to separate nationhood and autonomous sovereignty’, per F. Brennan, “Aboriginal self-determination: The ‘new partnership’ of the 1990s” (1992) Vol 17 No 2 Alternative Law Journal 53, 54. 25 F. Brennan, “Aboriginal self-determination: The ‘new partnership’ of the 1990s” (1992) Vol 17 No 2 Alternative Law Journal 53, 54. 26 F. Brennan, “Aboriginal self-determination: The ‘new partnership’ of the 1990s” (1992) Vol 17 No 2 Alternative Law Journal 53, 55. 27 F. Brennan, “Aboriginal self-determination: The ‘new partnership’ of the 1990s” (1992) Vol 17 No 2 Alternative Law Journal 53, 55.

437 remains. In Shaw v Wolf, Merkel J applied a test involving “self-identification” which was a step in the direction of self-determination but falling well short of even the intra-state-sovereign version.28

Self-identification “Self-identification” has gradually become more prominent in the cases concerning “Aboriginality”. The expression self-identification is not amenable to definition, and in the leading case of Shaw v Wolf, Merkel J used it in the sense that: … it encompasses the process by which a person comes to recognise that he or she is an Aboriginal person.29 Initially it was dismissed as only relevant in “borderline” situations where some biological evidence (usually “blood”) was present but the amount was “insignificant” and it could also be shown that there was community recognition of that person. As a sole criterion, self-identification has never been sufficient.30 In explaining why it has not been acceptable, Pincus J reveals a basic contradiction in legal and liberal theory. After pointing out that earlier cases had interpreted the term “Aboriginal” to have its ordinary meaning according to the “golden rule” of statutory interpretation Pincus J suggested: … the ordinary meaning of “Aboriginal”, as used in the community, is a broad one. Ordinary usage would not apply the term to a person believed to have no Aboriginal ancestry, however closely associated with Aboriginals.31 Individuals may be able to self-identify in a market through the choices they make as purchasers or consumers, but are not free to self-identify their status as people of one group or another. Implicit in this legal preference for biological descent over the autonomy of the individual is a respect for the State’s desire to control citizenship and to maintain the appearance that the law decides according to criteria rather than caprice. However, the choice reveals that the law is capricious to the extent that it applies biological tests that are as vague as individual self-identification might be. In

28 Briefly, because non-indigenous people and processes made the determination: Shaw v Wolf (1999) 163 ALR 205, 268, discussed below. 29 Shaw v Wolf (1999) 163 ALR 205, 212. 30 Queensland v Wyvill (1989) 90 ALR 611, 616. 31 Queensland v Wyvill (1989) 90 ALR 611, 616.

438 other words biology provides discretion for the judicial classification of “Aboriginal” thereby maintaining colonial power and control over Indigenous people, as opposed to self-determination. It would not necessarily be capricious to contemplate self- identification according to liberal theory, Article 1 of the ICCPR, and the legal literature on adoption in customary law as part of the search for a “plain and ordinary meaning” of “Aboriginal”.32 Where self-identification has been used as a significant factor it is on the basis that it is either probative of “descent”, or a mere supplement to it. So for example, after taking judicial notice that there were few “full bloods” left on the eastern seaboard of Australia, Drummond J held that in borderline cases where the indigenous person has only ‘limited’ (rather than ‘substantial’) descent, either self-identification or communal recognition might tip the balance sufficiently ‘to result in the person in question being described in ordinary speech as an Aboriginal’.33 Before Shaw v Wolf it was unclear whether the test for self-identification was subjective or objective. After that case, the test for self-identification is clearly subjective. 34 Even though a subjective test is welcome it remains unsatisfactory because the judicial approach remains clouded by an evaluation of “genuineness” and “opportunism”.35 Any alleged opportunism or absence of genuineness, if it is an issue at all, is surely a question for the relevant indigenous community itself in accord with the principle of self-determination. However, community recognition has become an accepted judicial element for reasons other than the facilitation of self-determination as the following analysis reveals.

32 Australian Law Reform Commission Report No 31, The Recognition of Aboriginal Customary Laws (1986); and generally M. Flynn & S. Stanton, “Trial By Ordeal: The stolen generation in court” (2000) Vol 25 No 2 Alternative Law Journal 75. 33 Gibbs v Capewell (1995) 126 ALR 577, 581 & 583. 34 Shaw v Wolf (1999) 163 ALR 205, 211, per Merkel J: ‘In my view the current Australian community accepts that the widely divergent and differing histories and experiences of the process by which an Aboriginal person acquires and develops an Aboriginal identity is, inherently, a process personal to and discrete for each individual.’ 35 Gibbs v Capewell (1995) 126 ALR 577, 584; and Shaw v Wolf (1999) 163 ALR 205, 212. In Shaw v Wolf, at 212: ‘It is the genuineness of the identification, rather than its content, that is the critical issue.’

439 Community recognition Unlike the Victorian and liberal view of individuality (treating the individual as a product of their own development), the weight of opinion today is that identity is socially constructed in the sense that it is a two-way dialectical process.36 Yet until Shaw v Wolf self-identification and community recognition were taken as entirely separate concerns – as supplements to the descent test.37 As an element in the descent test, Pincus J explained that community recognition would exist where an individual had ‘received recognition as an Aboriginal by Aboriginal organisations’.38 Neither self-determination nor community recognition became aspects of the test for Aboriginality because they were obvious candidates for a judiciary determined to honour self-determination. They were instead, introduced as a filter for situations where a person might have Aboriginal “blood” but was otherwise morphologically “European” and had not been raised in an Aboriginal “environment”.39 To be sure this was the approach of Pincus J at first instance in Queensland v Wyvill, an approach endorsed on appeal in the Full Federal Court albeit with a slightly different emphasis and different result.40 The Full Court expressed concern about the “precision” of

36 N. Mansfield, Subjectivity: Theories of the self from Freud to Haraway, Sydney, Allen & Unwin, 2000; L. Althusser, “Ideology and Ideological State Apparatuses” in Lenin and Philosophy and Other Essays, translated by B. Brewster, Monthly Review Press, London, 1971, 127 – 186. 37 For instance, Drummond J held that either self-identification or community recognition (rather than both) could supplement the descent test where the person had insufficient (rather than “substantial”) Aboriginal “blood”: Gibbs v Capewell (1995) 126 ALR 577, 585. By contrast, in Shaw v Wolf (1999) 163 ALR 205, Merkel J at 211, took account of the sociological literature stating: ‘These observations serve to emphasise the extent to which self-identification, although superficially discrete from the existence of community recognition, interacts with and is indeed a product of the social and communal framework surrounding an individual.’ 38 Queensland v Wyvill (1989) 90 ALR 611, 617. 39 These were the so-called facts of the case in Queensland v Wyvill (1989) 90 ALR 611, discussed below. 40 Queensland v Wyvill (1989) 90 ALR 611; Attorney General (Cth) v Queensland (1990) 94 ALR 515, 523 - 524, per Spender J: ‘In my respectful opinion, neither the attribute of self-recognition, nor recognition by the “Aboriginal community” is a necessary integer in the ordinary meaning of an Aborigine. … I am not to be taken as saying that, when a person has to decide whether a person is an Aborigine, the factors of self recognition, or recognition by persons who are accepted as being Aboriginals, are irrelevant. In cases at the margin, where Aboriginal descent is uncertain, or where the

440 community recognition, which was accepted in the later case of Shaw v Wolf as a legitimate concern but not one that precluded its operation.41 Taken together self-identification and community recognition could and should constitute the basis for “self-determination” if they were processes controlled by Indigenous people.42 However, while the descent test remains dominant and indigenous people are not the actual decision-makers in the process, community recognition will continue as a mechanism for the exercise of judicial discretion and therefore colonial control over Aboriginal identity.

Descent Typically, in litigation concerning the term “Aboriginal”, the issues in dispute will concern the ability to obtain statutory benefits or participate in statutory schemes designed to address injustices of the past. Resource access and inclusion are among the reasons given by white Australians for their need to measure or determine the “Aboriginality” of indigenous people.43 De Plevitz and Croft have observed that: The test has three elements, all of which must be proved by the person claiming to be Aboriginal: the person must identify as Aboriginal, the Aboriginal

extent of Aboriginal descent might, on one view, be regarded as insignificant, each of [at 524] those factors may have an evidentiary value in the resolution of the question.’ 41 In fact in Shaw v Wolf, Merkel J found in a few instances dealing with eleven individuals that there was mixed community recognition. This was then weighed up along with the evidence of descent and self identification: Shaw v Wolf (1999) 163 ALR 205, 214. 42 Shaw v Wolf (1999) 163 ALR 205, 211, 268. 43 L. De Plevitz & L. Croft, “Aboriginality under the microscope: the biological descent test in Australian law” (2003) 3(1) QUT Law &Justice Journal 1, at 1 (original footnotes omitted): ‘In the era of colonial and post-colonial government, access to basic human rights depended upon your race. If you were a “full blooded Aboriginal native…[or] any person apparently having an admixture of

Aboriginal blood”, a half-caste being the “offspring of an Aboriginal mother and other than Aboriginal father” (but not of an Aboriginal father and other than Aboriginal mother), a “quadroon”, or had a “strain” of Aboriginal blood you were forced to live on Reserves or Missions, work for rations, given minimal education, and needed governmental approval to marry, visit relatives or use electrical appliances. The legacy of denial of education, self-government and dignity is omnipresent today.’

441 community must recognise the person as Aboriginal, and the person is Aboriginal by way of descent.44 Quite correctly De Plevitz and Croft condemn this test because “descent” has been judicially interpreted to mean ‘quantum of genes’.45 For De Plevitz and Croft this biological reasoning is a ‘misunderstanding of the scope of genetic science’.46 Without suggesting anything more than misunderstanding on the part of the judges concerned, this assessment does not go far enough. It treats this legal error as though it occurs in a vacuum when it is instead inextricably linked to relations of power even though the judges themselves may not realize as such.47 At one level subconscious thought is informed by prejudice justified according to metaphysical beliefs (for example the theory of evolution and associated beliefs about competition, struggle for survival etc) thereby allowing values associated with hierarchy and domination to inform the decision. At another level the indeterminacy of law and science provide an avenue for values associated with the reproduction and maintenance of power to be incorporated into the decision. This occurs because:

44 L. De Plevitz & L. Croft, “Aboriginality under the microscope: the biological descent test in

Australian law” (2003) 3(1) QUT Law &Justice Journal 1, at 2. 45 L. De Plevitz & L. Croft, “Aboriginality under the microscope: the biological descent test in

Australian law” (2003) 3(1) QUT Law &Justice Journal 1, at 2: ‘This test reflects a misunderstanding of the scope of genetic science. Though science can show a person is descended from particular ancestors it cannot prove that that descent is Aboriginal. A test of eligibility for benefits based on proof of Aboriginality according to Aboriginal laws and customs and administered by Aboriginal people would serve the same purpose as the biological descent test without its potentially divisive effects.’ 46 L. De Plevitz & L. Croft, “Aboriginality under the microscope: the biological descent test in Australian law” (2003) 3(1) QUT Law &Justice Journal 1, 2. 47 P. McIntosh, “White Privilege and Male Privilege” in Margaret Andersen & Patricia Hill Collins (eds), Race, Class, and Gender: An Anthology, Wadsworth Publishing, Belmont (Cal), 1992, pp. 94 – 105. McIntosh makes this point very clear explaining that often, white prejudice is completely unconscious yet so devastating in its effect. P. McIntosh, “White Privilege and Male Privilege” in Margaret Andersen & Patricia Hill Collins (eds), Race, Class, and Gender: An Anthology, Wadsworth Publishing, Belmont (Cal), 1992, pp. 94 –105.

442 The validity or truth-content of a theory cannot be resolved unequivocally on empirical grounds alone and, in this sense, all theories are empirically indeterminate or “factually underdetermined”.48 In other words empiricism is not an objective, non-political schema able to be applied by either scientists or lawyers and judges to determine identity and categories of any sort. In practice, empiricism is often a veil for the exercise of power under the guise that empirical classifications are scientific (and hence “politically-neutral”). However: The factual indeterminacy of theories opens a vent through which individual scientists inevitably interject their social values. In this context, it becomes important to analyze how scientific discretion is deployed and exercised.49 In terms of ascertaining “Aboriginal” the application of biological tests are ultimately a mechanism for mystifying an Indigenous reality which should be determined according to international law by the process of self-determination per Article 1 of the International Covenant on Civil and Political Rights 1966.50 In other words, one consequence of using biological criteria as opposed to self-determination is that those biological criteria can mystify social reality thereby naturalising the status quo in terms of social conflict and depriving Indigenous people of their identity and rights.51

48 T. Tinker, “Panglossian Accounting Theories: The Science of Apologising in Style” (1988) 13 Accounting Organizations & Society 165, at 173, citing A. Giddens, 1979. Tinker, elaborates on this problem of indeterminacy providing three specific limitations as follows: (1) ‘The lack of prior independence between observational variables and theoretical variables; (2) The absence of satisfactory rules of correspondence for linking observational variables and theoretical variables; and (3) The conservative value biases inherent in empirical approaches that impede theoretical creativity and innovation.’ 49 T. Tinker, “Panglossian Accounting Theories: The Science of Apologising in Style” (1988) 13 Accounting Organizations & Society 165, at 176. 50 Reality is mystified in a process that presumes some variables to be immutable and other variables to be dynamic or dependent: ‘A theory may convey ideological biases in its immanent structure; particularly through its initial assumptions about what it takes as variable and susceptible to manipulation and what it treats as fixed and thus not open to question. … The axioms for theories frequently serve as conduits for bias.’ Per T. Tinker, “Panglossian Accounting Theories: The Science of Apologising in Style” (1988) 13 Accounting Organizations & Society 165, at 176. 51 T. Tinker, “Panglossian Accounting Theories: The Science of Apologising in Style” (1988) 13 Accounting Organizations & Society 165, at 176 – 177: ‘Naturalistic theorizing mystifies social reality in that it deprives some social members of a way [at 177] seeing their political situation, opportunities and possibilities. As a result, theories that naturalize the status quo participate in social conflict.’

443 Because classification is both indeterminate and political, legal categories will necessarily be flexible so as to afford judicial discretion to include or exclude depending on the personalities, power, nation, and capital involved.52 Justice Merkel implicitly recognised this relationship in Shaw v Wolf by placing importance on the consequences of the classification for the adversaries in the case.53 The range of criteria used by courts to calculate “descent” can be loosely categorised into two sub- categories: (1) descent according to biological criteria or (2) descent according to cultural criteria. Both sub-categories are considered in turn. This is followed by a brief consideration of the open and indeterminate nature of classificatory adjudication using legal jargon such as “ordinary parlance”.

Descent according to biological criteria (phenotypes, morphology, genes, blood, etc) Neither “race”, nor “blood” nor “genes” nor “DNA” are conclusive criteria for the classification of a group of people and are, whether intended or not, in effect mechanisms for political objectives or justifications for oppression, domination and hierarchy.54 De Plevitz and Croft explain that biological criteria have been thoroughly discredited: The genesis of the test of descent lies in outdated scientific method that has no place in twenty-first century law. It is a ‘throw-back’ to perceptions of race where the peoples of the world were defined as sub-species of humans according to their physical characteristics rather than their cultural differences. Furthermore, the test is in direct contravention of international human rights instruments which hold that one of the most basic human rights of any group is

the right to define themselves according to their own customs and laws.

52 These forces are not necessarily the only ones acting on a judge: D. Kennedy, “Freedom and Constraint in Adjudication” (1986) 36 Journal of Legal Education 518. 53 Shaw v Wolf (1998) 163 ALR 205, 215 – 216. 54 R.C. Lewontin, The Doctrine of DNA: Biology as Ideology, Penguin, Ringwood, Victoria, 2001, 36 – 37, and 77 ff.

444 International conventions to which Australia is a signatory utterly reject racial classification of humans according to genetics.55 Modern biological tools (whether genetic or DNA analysis) do not improve the accuracy of classification and are just as political as their predecessor terms (such as “half-caste”, “full-blood” and “pure Aboriginal”) were decades before.56 Yet these terms appear in cases where the legal issue is the meaning of the word “Aboriginal”, and these terms are used to decide these cases.57 Even when the bench is conscious of social-Darwinism and the politics of race and science, this is no guarantee that the resulting decision will be free of these sociobiological ideas.58 Nor does the use of cultural criteria necessarily quarantine the judgement from sociobiological ideas.

Descent according to culture (culture, ethnicity, language, archaeology, sociology, historical records, genealogy, etc) Courts also turn to many non-biological forms of evidence to determine “descent” such as archaeology, genealogy, history, linguistics, and sociology. These criteria are

55 L. De Plevitz & L. Croft, “Aboriginality under the microscope: the biological descent test in Australian law” (2003) 3(1) QUT Law &Justice Journal 1, at 5. The original footnote No 33 to this passage reads: ‘For example Article 9 Draft Declaration on the Rights of Indigenous Peoples, 1994 at 4 November 2002’. 56 Clarke asks ‘Why is the outdated language of “blood” still associated with indigenous Australians? The answer lies in the history of this language: it is the discredited language of eugenics, a type of social Darwinist thinking which advocated the perfection of the human species, in this case by encouraging Aborigines of mixed descent to marry white people or others like themselves in order to “breed out the black”. Eugenics became government policy in Australia at the turn of the century …’. J. Clarke, “Law and Race: The Position of Indigenous People” in S. Bottomley & S. Parker, Law in Context, Federation Press, Sydney, 1997, Chapter 10, 238. 57 For example: Queensland v Wyvill (1989) 90 ALR 611; Attorney General (Cth) v Queensland (1990) 94 ALR 515; and Gibbs v Capewell (1995) 128 ALR 577. See further L. De Plevitz & L. Croft, “Aboriginality under the microscope: the biological descent test in Australian law” (2003) 3(1) Queensland University of Technology Law &Justice Journal 1 – 17. 58 As Merkel J points out, this will be inherent in a system of law that is not based on “self- determination” since it does not include Indigenous people at any level of the determination of the issue of “Aboriginality”: Shaw v Wolf (1998) 163 ALR 205, 268.

445 never determinate and this is expressly judicially recognised.59 However, these forms of evidence also tend to be sociobiological, not so much because of their methods60, but because of the question being asked. The question being asked is based on a fiction – the fiction that nations of people are natural phenomena (having evolved that way over time) rather than States created through violence (usually sudden acts of invasion, revolution, or war, and sometimes a process drawn over hundreds of years of violence as in the case of England). There are no natural “nations” only those constructed by force, by law and by ideology.61 Therefore nations need to naturalise their existence as nations and sociobiology provides the necessary ideology as the ultimate source of naturalising justification. Sociobiological justifications are ones that justify according to biology, nature or science in such a way as to imply or express “naturalness”. Balibar explains that there are two ideological elements maintaining the nation, and they are patriotism, which impresses the ideal “nature” of the nation, and fictive ethnicity, which makes the ideal

59 For instance, in the context of Aboriginality, see the comments of Merkel J at 219 – 222 concerning the unreliability of colonial documents as evidence in Shaw v Wolf (1999) 163 ALR 205. Further six Judges of the High Court have expressly recognised this indeterminacy stating in the context of native title: ‘[t]he underlying existence of the traditional laws and customs is a necessary pre-requisite for native title but their existence is not a suffıcient basis for recognising native title.’ Per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ in Fejo v Northern Territory (1998) 195 CLR 96 at 128 (original emphasis). 60 To some extent all disciplines will assume sociobiological ideas as a direct consequence of the process of theory construction which provides a conduit for metaphysical beliefs to be assumed in the theory or in its application: A. Giddens, Central Problems in Social Theory: Action, Structure, and Contradiction in Social Analysis, MacMillan, London, 1979. H. G. Hunt & R. Hogler, “Agency Theory as Ideology: A Comparative Analysis Based on Critical Legal Theory and Radical Accounting” (1990) 15 Accounting Organizations and Society 437. Jean-Francois Lyotard, “The Postmodern Condition: A Report on Knowledge” in G. Bennington & B. Massumi (Trans), Theory and History of Literature, Vol 10, Manchester university Press, Manchester, 1979. F. Okcabol & T. Tinker, "The Market for Positive Theory: Deconstructing the Theory for Excuses" (1990) 3 Advances in Public Interest Accounting 71. T. Tinker, Panglossian Accounting Theories: The Science of Apologising in Style" (1988) 13 Accounting Organizations & Society 165. T. Tinker, B. Merino & M. Neimark, "The Normative Origins of Positive Theories: Ideology and Accounting Thought" (1982) 7 Accounting Organizations & Society 167. It is also a mistake to consider science as more objective than social science. 61 E. Balibar & I. Wallerstein, Race, Nation, Class: Ambiguous Identities, Verso, London, 1991, 96 ff.

446 nation a living reality. 62 Fictive ethnicity is the process of constructing ethnic identity so the individual is born into a pre-existing unified national identity ordered (among other things)63 by race and language so that it appears natural and at the same time this natural national identity is stratified into further “natural” status-groups.64 The “Aboriginal race of Australia” is one of these status-groups. Like other status groups within a nation its identity will be linked to its relative place on the national hierarchy and will be explained according to naturalising phenomena necessarily sociobiological.65 In other words the disciplines drawn upon by courts to identify “Aboriginality” will construct identity according to this model. Balibar and Wallerstein point out that ethnicity (or in this case “Aboriginality”) requires the construction and naturalisation of a fiction (the fiction of a natural nation).66 According to Balibar this process of naturalisation occurs through the vehicles of language and race.67 Descent according

62 E. Balibar & I. Wallerstein, Race, Nation, Class: Ambiguous Identities, Verso, London, 1991, 96. Balibar uses the expression “fictive ethnicity” to mean the community constructed by the nation-state which he likens to a legal fiction, explaining: ‘No nation possesses an ethnic base naturally, but as social formations are nationalised, the populations included within them, divided up among them or dominated by them are ethnicized – that is, represented in the past or in the future as if they formed a natural community, possessing of itself an identity of origins, culture and interests which transcends individuals and social conditions.’ 63 This thesis argues hierarchy and domination are justified by a myriad of naturalising classifications for example gender, sexuality, disability, age, market efficiency, etc all of which have links to sociobiology. 64 E. Balibar & I. Wallerstein, Race, Nation, Class: Ambiguous Identities, Verso, London, 1991, 195 – 196: Wallerstein discusses “status-groups”. 65 Within the nation it is necessary to justify and naturalise unity on the one hand (we are all Australians) with hierarchy on the other (the non-contested inferior social and economic position of Indigenous Australians). Sociobiology is an ideology sufficiently malleable to maintain this obvious antagonism. Within sociobiology there are many irreconcilable dichotomies (for example: competition and cooperation, selfishness and altruism, natural and artificial, etc) suitable for the purposes of maintaining and justifying the antagonism between unity and hierarchy. 66 E. Balibar & I. Wallerstein, Race, Nation, Class: Ambiguous Identities, Verso, London, 1991, 96: ‘… how can [ethnicity] be produced in such a way that it does not appear as fiction, but as the most natural of origins?’ 67 E. Balibar & I. Wallerstein, Race, Nation, Class: Ambiguous Identities, Verso, London, 1991, 96 – 97: ‘Both express the idea that the national character (which might also be called its soul or its spirit) is

447 to race was considered immediately above and typically means identity constructed through biological criteria: All kinds of somatic or psychological features, both visible and invisible, may lend themselves to creating the fiction of a racial identity and therefore to representing natural and hereditary differences between social groups either within the same nation or outside its frontiers.68 Similarly, language can also be a vehicle for the naturalisation of nationalism. The inculcation of language is something that is taught through the education system, the family and the class to which people find themselves in.69 Language as a vehicle for difference was once used to differentiate between a “them” and an “us”, and more recently within nations to order hierarchy.70 However, as a means of categorization, immanent in the people. But both offer a means of transcending actual individuals and political relations. They constitute two ways of rooting [at 97] historical populations in a fact of “nature” (the diversity of languages and races appearing predestined), but also two ways of giving a meaning to their continued existence, of transcending its contingency.’ Adding that, ‘by force of circumstance, however, at times one or the other is dominant, for they are not based on the same institutions and do not appeal to the same symbols or the same idealizations of the national identity.’ 68 E. Balibar & I. Wallerstein, Race, Nation, Class: Ambiguous Identities, Verso, London, 1991, 99. As noted above, race, is a malleable device, necessarily indeterminate, and used as a tool for the inclusion or exclusion of people. It is also used to naturalise hierarchy. 69 E. Balibar & I. Wallerstein, Race, Nation, Class: Ambiguous Identities, Verso, London, 1991, 98: ‘Let us simply say that schooling is the principal institution which produces ethnicity as linguistic community. It is not, however, the only one: the state, economic exchange and family life are also schools in a sense, organs of the ideal nation recognizable by a common language which belongs to them “as their own”. For what is decisive here is not only that the national language should be recognized as the official language, but, much more fundamentally, that it should be able to appear as the very element of the life of a people, the reality which each person may appropriate in his or her own way, without thereby destroying its identity. There is no contradiction between the instituting of one national language and the daily discrepancy between – and clash of – “class languages” which precisely are not different languages. In fact the two things are complimentary.’ 70 E. Balibar & I. Wallerstein, Race, Nation, Class: Ambiguous Identities, Verso, London, 1991, 97. That is to say: ‘The old empires and the Ancien Regime societies were still based on the juxtaposition of linguistically separate populations, on the superimposition of mutually incompatible “languages” for the dominant and the dominated and for the sacred and profane spheres. Between these there had to be a whole system of translations. In modern national formations, the translators are writers, journalists and politicians, social actors who speak the language of the “people” in a way that seems all the more natural for the very degree of distinction they thereby bring to it. The translation process has become

448 its malleability is also its weakness because by itself the language community is unable to produce or sustain ethnicity. Language can transcend the nation and be shared by many.71 Like race, language is not fixed (closed) as a means of categorisation, since although language is often fixed at birth the individual is capable of learning other languages, and is ‘constantly self-renewing’ through time.72 In other words, by analogy, cultural criteria are also indeterminate and this facilitates additional judicial discretion in the determination of Aboriginality. The judge can declare that “descent” is not purely a biological question and is instead a question to be ascertained according to “ordinary parlance”. This means the Judge can turn to equally indeterminate social and cultural evidence, which although not biological is nevertheless sociobiological at least at the conceptual level discussed above.73 To be more precise, in Yorta Yorta, courts preferred colonial documentary evidence written by a squatter who dispossessed Indigenous people and a missionary determined to destroy Yorta Yorta culture and impose a Christian one instead to hold that their culture had been broken and “washed away by the tide of history”, over the oral evidence of the Yorta Yorta people and the fact that they still practiced their

primarily one of internal translation between different “levels of language”. Social differences are expressed and relativised as different ways of speaking the national language, which supposes a common code and even a common norm.’ 71 E. Balibar & I. Wallerstein, Race, Nation, Class: Ambiguous Identities, Verso, London, 1991, 99: ‘Ideally, it “assimilates” anyone, but holds no one. … When circumstances permit, it may serve different nations (as English, Spanish and even French do) or survive the “physical” disappearance of the people who used it (like “ancient” Greek and Latin or “literary” Arabic). For it to be tied down to the frontiers of a particular people, it therefore needs an extra degree of particularity, or a principle of closure, of exclusion.’ 72 E. Balibar & I. Wallerstein, Race, Nation, Class: Ambiguous Identities, Verso, London, 1991, 97: Although the language community seems to be more abstract than race: ‘… in reality it is the more concrete since it connects individuals up with an origin which may at any moment be actualised and which has as its content the common act of their own exchanges, of their discursive communication, using the instruments of spoken language and the whole, constantly self-renewing mass of written and recorded texts.’ 73 As Balibar (E. Balibar & I. Wallerstein, Race, Nation, Class: Ambiguous Identities, Verso, London, 1991, 56 – 60.) has explained, see above, racism remains connected to biological stories even though it is often expressed in cultural terms.

449 culture.74 The court imposed an impossible evidentiary burden that the Yorta Yorta people must prove their culture forward from 1788 to the present. It did this by demanding cultural proof of a bio-cultural lineage.75 In the language of sociobiology, Yorta Yorta culture had become extinct having lost the struggle for survival with the more competitive and dominant Western culture - an inevitable consequence of the forces of evolution.76

74 Yorta Yorta v Victoria [1998] FCA 1606; Yorta Yorta v Victoria (2001) 180 ALR 655; Yorta Yorta v Victoria (2002) 194 ALR 538. 75 L. De Plevitz & L. Croft, “Aboriginality under the microscope: the biological descent test in Australian law” (2003) 3(1) Queensland University of Technology Law &Justice Journal 1 – 17, at 8: ‘While Aboriginal people may generally be direct descendants of the original inhabitants of their particular part of Australia, their lines of descent are not necessarily biological. Indigenous customary law does not rely on linear proof of descent in the Judeo-Christian genealogical form “Seth begat Enosh begat Kenan”. An indigenous person from Central Australia, for example, will have many fathers and mothers. A person may have been adopted into a Kinship group where there is no direct or suitable offspring to carry out ceremonial obligations. The place where a woman was when she first felt the quickening of her child within her womb: “links a person not only with a Dreaming and its track, but also with a place on the track where a particular ancestral event took place. This place is often referred to as the ‘conception site’. A person retains life-long association with his or her conception site and Dreaming” (Hayes v Northern Territory (1999) 97 FCR 32, 43-44.). United Nations General recommendations on the interpretation of international instruments state the way in which members of a particular racial or ethnic group or groups are to be defined shall be based upon self-identification by the individual concerned if no justification exists to the contrary.’ citing International Human Rights Instruments: Compilation of general comments and general recommendations adopted by the Human Rights Treaty Bodies General recommendation VIII on the interpretation and application of Article 1, paras 1 and 4 of the Convention of the Elimination of All Forms of Racial Discrimination: (1990) HRI/GEN/1/Rev.5 26 April 2001, 180. 76 As Weiner argues this is a naïve view of culture as much as it is sociobiological in J. Weiner, “Diaspora, Materialism, Tradition: Anthropological Issues in the Recent High Court Appeal of the Yorta Yorta”, Vol 2, Issues Paper No 18, Land, Rights, Laws: Issues of Native Title, Native Title Research Unit, Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSI), 2002, 3. For Weiner: ‘… we can draw a contrast between what is consciously avowed as a principle of membership, self-identification or prescription for behaviour in a community … and what is passed on below the level of consciousness and cannot be expressed from within the community as a “principle”. Discussions of “tradition” that have so far been proffered by legalists and other experts who are not anthropologists in regard to Aboriginal societies have exclusively concerned themselves with the first “principle”.’

450 Because neither biology nor culture can provide determinate results each tends to be supplemented by the other. This is also apparent in the case analysis that follows. The only way to avoid this indeterminacy is to embrace the international law standard of “self-determination”.77 The fact that a legal system that is said to prefer individual autonomy etc, more-often avoids self-determination in favour of testing using the equally ambiguous, and therefore discretionary criteria of culture and biology suggests the mystification of power and domination. For this reason it is not possible to ignore the nexus between naturalising according to cultural or biological criteria, both of which are sociobiological, and relations of power which structure access to resources and order and maintain hierarchy. For Balibar, they are juridical devices, reinforced through other state apparatuses for the maintenance and reproduction of nation and capitalism.78

Legal jargon (ordinary parlance, etc) Various judicial tropes are used in the cases to obscure the indeterminate nature of law and the associated discretion available to judges. Judges frequently invoke the false dichotomy between fact and law, a distinction more common in cases concerning identity and native title.79 This false dichotomy separating matters of fact and matters of law is a rhetorical trope aimed at denying judicial discretion and

77 The accepted standard under Article 1 of the International Covenant on Civil and Political Rights 1966, and also repeated in the International Covenant on Economic, Social and Cultural Rights 1966. The Common Article 1 (para 1) of both Covenants reads: ‘All peoples have the right of self- determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.’ 78 E. Balibar & I. Wallerstein, Race, Nation, Class: Ambiguous Identities, Verso, London, 1991, 104. 79 In Yorta Yorta the High Court stated: ‘The critical question is whether the errors of law which were made at trial bore, in any relevant way, upon the primary judge’s critical findings of fact that the evidence did not demonstrate that the claimants and their ancestors had continued to acknowledge and observe, throughout the period from the assertion of sovereignty in 1788 to the date of their claim, the traditional laws and customs in relation to land of their forebears, and that “before the end of the 19th century, the ancestors through whom the claimants claim title had ceased to occupy their traditional lands in accordance with their traditional laws and customs”. If those findings of fact stand unaffected by error of law, the claimants’ claim to native title fails and their appeal should be dismissed.’ Per Yorta Yorta v Victoria (2002) 194 ALR 538, 564.

451 confining the possibility for error to questions of fact rather than law.80 In this way the law can maintain integrity and authority.81 If the fact law dichotomy was genuine then it could be expected that the law would not be decided according to Victorian notions of race based on crude biology, because the law decides legal questions according to legal principles, whether as a matter of legal positivism or the declaratory theory of justice.82 However, as the case analysis that follows will show, contrary to this assertion, the law elects to determine “Aboriginality” according to biological criteria where there is no legal requirement to do so, and even where it ought not apply biological tests because it is contrary to international law.83 Another discretionary judicial device arises as a consequence of statutory interpretation. All Judgements used in the following analysis made a point of stating that the expression “Aboriginal race of Australia” as it is used in statutes is to be understood according to its “plain and ordinary meaning” or according to “ordinary parlance”. This approach to statutory interpretation affords the judge discretion to ascertain meaning according to their opinion of contemporary views attributable to “society”. If it were possible to approach the problem objectively in this way, it stands

80 This distinction was used in Attorney-General (Cth) v Queensland (1990) 94 ALR 515, per Jenkinson J at 519, Spender J at 522. 81 The hollowness of this fact/law dichotomy can be illustrated by the fact that the law embraced the fiction of the doctrine of terra nullius from 1788 until 1992 when it was overturned as a matter of fact and law in the Mabo Case, and the new fiction of Crown sovereignty applied according to “fact” and “law”: Mabo v Queensland (1992) 107 ALR 1. Crown sovereignty applies as a matter of law despite the myth of terra nullius because it is an international law issue and cannot be challenged in an Australian court, per Mabo v Queensland (1992) 107 ALR 1, Brennan J at 20. It also continues to apply as a matter of fact because the law cannot wash away the tide of history, per Yorta Yorta v Victoria (2002) 194 ALR 538, at 567, 570, 571, 584 & 585. 82 In Yorta Yorta at first instance and in the High Court, the case was said to be determined according to law not according to righting the wrongs of the past or on notions of justice. See respectively: Yorta Yorta v Victoria [1998] FCA 1606, para 21; and Yorta Yorta v Victoria (2002) 194 ALR 538, 564. 83 At international law the expected approach to questions of aboriginality are ones that should be determined according to the standard of self-determination. Article 1, of the International Covenant on Civil and Political Rights 1966 sets out the obligation to accord all peoples the right of self- determination. See further, M. Castan, “The High Court, Human Rights, and the New Jurisprudence of Denial” Paper presented at the Castan Centre For Human Rights Law Conference, Human Rights 2003: The Year in Review, 4 December 2003, CUB Malthouse – Melbourne. Accessed online at www.law.monash.edu.au/castancentre on 11 November 2005.

452 to reason that whatever hierarchy exists in a society would be replicated in the attributed meaning of the words in question. In other words, if the society held racist views to justify a hierarchy based on sociobiological ideology then this approach (viz “ordinary parlance”), if applied objectively, would inevitably reproduce those views in the judgement. Because there is no identifiable “community parlance” other than the judges’ subjective speculation (usually by turning to dictionaries, which can often be tainted by subtle prejudice anyway84) the absence of sociobiological reasoning will ultimately depend on the particular judicial officer’s understanding of the literature on this topic because sociobiology is so ubiquitous and fundamental to Western hegemony and ontology. Therefore, judges should avoid these pitfalls by reference to extrinsic materials such as Law Reform Reports, International Law, Explanatory Memoranda, and Parliamentary debates as an “indirect” means of interpretation in accord with the “rule” of interpretation that extrinsic material can be used to ascertain “mischief” (in other words to understand the “mischief” the legislation was meant to address).85 Further, it makes sense to approach statutory interpretation according to the “rule” that a beneficial statute should be liberally construed in favour of the class of persons meant to benefit, or alternatively to apply the “mischief rule” so as to give the statute a purposive interpretation.86 In addition, international law prefers self-determination, and where possible greater effect should be given to self-identification and community recognition than “descent” (in the absence of a system of self- determination). Of the several cases that have considered “Aboriginality” to date, only one case approached the issues in this way.87 Lastly, the surest way to proceed in this area of law is according to standpoint theory.88 In other words these issues are best approached by starting with the standpoint of the most oppressed.

84 For instance, in Gibbs v Capewell (1995) 128 ALR 577, Drummond J at 580, consulted the Macquarie Dictionary 2nd ed which gave as the meaning of “Aborigine” the following anachronistic and racist definition: “one of a race of tribal peoples, the earliest inhabitants of Australia” (my emphasis). 85 A. MacAdam, Statutes: Rules and Examples, Butterworths, Sydney, 1985, 8 - 10. 86 A. MacAdam, Statutes: Rules and Examples, Butterworths, Sydney, 1985, 218 – 222 & 243 – 245. 87 That case was Shaw v Wolf (1999) 163 ALR 205. In other cases only some, rather than all, of these considerations were entertained. 88 See Chapter 6.

453

Cases on Identity

Tasmania v Commonwealth (1984) 158 CLR 1

Both Judges and commentators tend to commence their search for a definition of “Aboriginal” by referring to the Tasmanian Dams case89, even though it was not the first case to discuss the expression “Aboriginal race”.90 Nor was the term “Aboriginal” a central issue in the case, the main issue being the Commonwealth’s Constitutional power using its World Heritage Properties Conservation Act 1983 (Cth) to over-ride Tasmania’s plans to flood the Franklin and Gordon river systems as part of that State’s hydro-electricity scheme. One of the Constitutional bases91 argued in the High Court for the World Heritage Properties Conservation Act 1983 (Cth) was the race power in s. 51(xxvi). All judges had to consider the significance of ss. 8(1) & 11 of the World Heritage Properties Conservation Act 1983 (Cth) which declared that several other substantive provisions in that Act were necessary as special laws for the people of the Aboriginal race. Four of the seven Judges determined that the provision was within the ambit of the race power in s. 51(xxvi) of the Constitution.92 In the

89 All of the cases discussed under this heading refer to the explanation of Deane J in Tasmania v Commonwealth (1984) 158 CLR 1, 273 – 274; and L. De Plevitz & L. Croft, “Aboriginality under the microscope: the biological descent test in Australian law” (2003) 3(1) QUT Law &Justice Journal 1, at 2 - 3. 90 The two earlier cases dealing with “race” that tend to be cited or quoted in the subsequent cases used what would be regarded today as racist language. These cases are Muramats v Commonwealth Electoral Officer (WA) (1923) 32 CLR 500, and Ofu-Koloi v R (1956) 96 CLR 172. For example in Muramats, Higgins J at 507 said that “Aboriginal” means people ‘who are of the stock that inhabited the land at the time Europeans came to it’. Again, for example, in Ofu-Koloi, Dixon CJ, Fullagar & Taylor JJ, at 175 said: ‘The fact that at, so to speak, the edges of the racial classification there is an uncertainty of definition cannot make it difficult to apply it in the common run of cases.’ 91 The main argument concerned the Commonwealth’s external affairs power in s. 51(xxix) of the Constitution and its responsibilities to implement international treaties, in this case The Convention for the Protection of the World Cultural and National Heritage. Other constitutional arguments were made under the corporations power s. 51(xx), the Commonwealth power to acquire property s. 51(xxxi), and the prohibition on the Commonwealth in s. 100 from interfering with a State’s right to water for irrigation. 92 Tasmania v Commonwealth (1984) 158 CLR 1, per Mason, Murphy, Brennan & Deane JJ; Gibbs CJ, Wilson & Dawson JJ in dissent.

454 course of their deliberations only two of the seven Judges considered the meaning of “Aboriginal race”.93 Justice Brennan recognised that the term “race” ‘is not a precise concept’ but there is ‘of course, a biological element in the concept’.94 In reaching this conclusion Brennan J considered similar cases in England and New Zealand after observing the consensus reached between experts assembled before a UNESCO conference held in Moscow in 1964.95 Justice Brennan quoted from a report of the Special Rapporteur commenting on the conference as follows: They stated inter alia that all men living today belong to a single species and are derived from a common stock (Art I); that pure races in the sense of genetically homogeneous populations do not exist in the human species (Art III); and that there is no national, religious, geographic, linguistic or cultural group which constitutes a race ipso facto (Art XII). The proposals concluded: ‘The biological data given above stand in open contradiction to the tenets of racism. Racist theories can in no way pretend to have any scientific foundation’. … Popular notions of ‘race’, however, have frequently disregarded the scientific evidence. Prejudice and discrimination on the ground of race, colour or ethnic origin occur in a number of societies, where physical appearance – notably skin colour – and ethnic origin are accorded prime importance.96 Aware that the consensus of the experts was that there is only one race – the human race, Brennan J considered the New Zealand case of King-Ansell v Police [1979] 2 NZLR 531. There Richardson J commented on terms used in the Race Relations Act: … all four expressions “race”, “colour”, “national origins” and “ethnic origins” are concerned with antecedent rather than acquired characteristics. It does not

93 Tasmania v Commonwealth (1984) 158 CLR 1, per Brennan J at 243 - 245, Per Deane J at 272 – 274. 94 Tasmania v Commonwealth (1984) 158 CLR 1, per Brennan J at 243. 95 Tasmania v Commonwealth (1984) 158 CLR 1, per Brennan J at 243, citing Senor Hernan Santa Cruz, the Special Rapporteur on Racial Discrimination, report to the United Nations, “Special Study on Racial Discrimination in Political, Economic, Social and Cultural Spheres” (1971) U.N. Document No. E/CN.4/Sub2/307/Rev.1, pp. 12 – 13. 96 Senor Hernan Santa Cruz, the Special Rapporteur on Racial Discrimination, report to the United Nations, “Special Study on Racial Discrimination in Political, Economic, Social and Cultural Spheres” (1971) U.N. Document No. E/CN.4/Sub2/307/Rev.1, pp. 12 – 13, quoted in Tasmania v Commonwealth (1984) 158 CLR 1, at 243.

455 follow that the identifying characteristics must be genetically determined at birth. The ultimate ancestry of any New Zealander is not susceptible to proof. Race is clearly used in its popular meaning.97 However, reading these two passages together, and wanting to avoid ‘prejudice and discrimination’ because the ‘popular notions of race’ and ‘popular meaning’ of race ‘have frequently disregarded the scientific evidence’ Brennan J treated this as a requirement ‘to identify the biological element of the concept’ of race. Justice Brennan considered the obiter of Kerr LJ in Mandla v Dowell Lee [1983] 1QB 1, at 19, and contrasted the New Zealand and English approaches in the following way: [Richardson J] discounted the importance of, if not the necessity for, scientific proof of the biological element: The real test is whether the individuals or the group regard themselves and are regarded by others in the community as having a particular historical identity in terms of their colour or their racial, national or ethnic origins. In England in Mandla v Dowell Lee, Kerr LJ in reference to the words “race or ethnic or national origins” said: “they clearly refer to human characteristics with which a person is born and which he or she cannot change, any more than the leopard can change his spots.98 With a fear that the ambiguity of a cultural test might be conducive to popular notions of racism, Brennan J put his faith in the ability of biology to avoid this pitfall not realizing that it too is ambiguous and political, and consequently the self- determination test favoured by Richardson J was dismissed as inconclusive.99 Self- determination, can only ever be inconclusive where there is an intra-group dispute as in the case discussed later, Shaw v Wolf (1999) 163 ALR 205. This is because, as

97 King-Ansell v Police [1979] 2 NZLR 531, per Richardson J at 542, quoted in Tasmania v Commonwealth (1984) 158 CLR 1, 243. 98 Tasmania v Commonwealth (1984) 158 CLR 1, per Brennan J at 244. However, Mandla v Dowell Lee [1983] 1QB 1 is regarded elsewhere as an authority supporting the rejection of the biological test in favour of cultural criteria: per L. De Plevitz & L. Croft, “Aboriginality under the microscope: the biological descent test in Australian law” (2003) 3(1) QUT Law &Justice Journal 1, 14,citing Mandla v Dowell Lee [1983] 2 AC 548. 99 Tasmania v Commonwealth (1984) 158 CLR 1, 244: ‘Their genetic heritage is fixed at birth; the historic, religious, spiritual and cultural heritage are acquired and are susceptible to influences for which a law may provide.’

456 Balibar and Wallerstein, and Richardson J have pointed out race, nationality, ethnicity and community are socially constructed concepts as previously discussed.100 Like Brennan J, but placing more emphasis on self-determination, Deane J in the Tasmanian Dams case remarked in obiter that the words “people of any race” in s.51(xxvi) of the Constitution, ‘[p]lainly, the words have a wide and non-technical meaning’.101 Therefore, for Deane J: The phrase is, in my view, apposite to refer to all Australian Aboriginals collectively. Any doubt, which might otherwise exist in this regard, is removed by reference to the wording of par. (xxvi) in its original form. The phrase is also apposite to refer to any identifiable racial sub-group among Australian Aboriginals. By “Australian Aboriginal” I mean, in accordance with what I understand to be the conventional meaning of that term, a person of Aboriginal descent, albeit mixed, who identifies himself as such and who is recognised by the Aboriginal community as an Aboriginal.102 While this approach is a step removed from biological determinism, it still means that biological determinism can be used to circumvent self-determination. This is in fact what has happened in subsequent cases discussed below.103

100 E. Balibar & I. Wallerstein, Race, Nation, Class: Ambiguous Identities, Verso, London, 1991, 96 ff; and King-Ansell v Police [1979] 2 NZLR 531, 542. 101 Tasmania v Commonwealth (1984) 158 CLR 1, 273 – 274. 102 Tasmania v Commonwealth (1984) 158 CLR 1, 274. 103 Interestingly, indicative of the future judicial view to be taken by a “majority” of Judges in the High Court tending to water down the then unrecognised concept of native title, was the submission of senior counsel for Tasmania in this case, Mr Gleeson. Mr Gleeson, who re-appears in those later cases (discussed below) as Chief Justice in the High Court, had dutifully submitted that the relevant provisions (ss. 8 & 11of the World Heritage Properties Conservation Act 1983 (Cth)) were not a ‘special law’ for the people of the Aboriginal race giving two assimilationist grounds. It is worth reproducing the response of Deane J to that submission in full because the views of these two men reflect (putting aside the extreme views of Callinan J, discussed below) the shape of the two opposing judicial approaches presently taken on native title in cases such as Yorta Yorta v Victoria (2002) 194 ALR 538 (HC). Justice Deane at 274 - 275 condemned Mr Gleeson’s submission after summarising it as follows: ‘that their character was not that of a law with respect to the people of that race’ and also that by ‘definition, an “Aboriginal site” must be “identified property” and, therefore, it must be of outstanding universal significance: a law for the protection and conservation of sites if, and only if, they are of significance to the whole of mankind is the antithesis of a special law for the people of a particular race. In so far as the character of the law is concerned, it was submitted that a law which

457

Queensland v Wyvill (1989) 90 ALR 611 & Attorney-General (Cth) v Queensland (1990) 94 ALR 515.

In this case the Queensland government sought to reduce the number of indigenous deaths in custody attributed to its “criminal justice” system by having the death of Darren Wouters excluded from the tally of the 1991 Royal Commission into Aboriginal Deaths in Custody.104 The government challenged the “Aboriginality” of Wouters who was born to an Aboriginal mother with a Dutch father. He died in a Brisbane watch-house. The Letters Patent conferring power on Wyvill to investigate these deaths did not contain a definition of the word “Aboriginal”. The government contended that the Commissioner was acting ultra vires by including his death within the ambit of the Inquiry because Wouters was allegedly of ‘distinctly European appearance’.105 Justice Pincus characterized the case before the court by asking the question: ‘is every person who is part-Aboriginal within the terms of reference?’106 The Judge reviewed the earlier cases and consulted dictionaries before concluding in this case that the addresses no command either to Aboriginals as such or to other people cannot be properly characterized as a law with respect to the people of the Aboriginal race. The relationship between the Aboriginal people and the lands [at 12] which they occupy lies at the heart of traditional Aboriginal culture and traditional Aboriginal life. Past violations of Aboriginal culture and Aboriginal life, both traditional and otherwise, have not obliterated the fundamental importance to the Aboriginal people of Australia of their ancient sites. To the contrary, one effect of the years since 1788 and of the emergence of Australia as a nation has been that Aboriginal sites which would once have been of particular significance only to the members of a particular tribe are now regarded, by those Australian Aboriginals who have moved, or been born, away from ancient tribal grounds, as part of a general heritage of their race. The dual requirement that a declaration can only be made in respect of a site if it is both “of outstanding universal value” and “of particular significance to the people of the Aboriginal race” means that only those Aboriginal sites which are of extraordinary significance qualify for protection and conservation under ss. 8 and 11. A law protecting such sites is, in the one sense, a law for all Australians. It appears to me, however, on any approach to language, that a law whose operation is to protect and preserve sites of universal value which are of particular importance to the Aboriginal people is also a special law for those people.’ 104 Royal Commission into Aboriginal Deaths in Custody National Report, AGPS, Canberra, 1991. 105 State of Queensland v Wyvill (1989) 90 ALR 611. 106 State of Queensland v Wyvill (1989) 90 ALR 611, 612.

458 meaning of “Aboriginal” depended on its ordinary usage and therefore the deceased was not within the terms of the Inquiry. In other words, the phrase “ordinary usage” was taken to require that both “genetic” and “social factors” must be taken into account.107 Therefore, the use of the word “descent” as it appeared in obiter in the Tasmanian Dams case had now become a synonym for genetic or biological evidence in what is now regarded as the test for Aboriginality.108 Consequently, Pincus J, perhaps seeking to avoid the problem of biological determinism, sought to distinguish between ‘part-Aboriginals’ and Aboriginals in the ‘strictest sense’ commenting that: There must be many people in Australia with, say, 1/64th or 1/32nd Aboriginal genes, the presence of which is unknown to them and undetected by others. Even if such a trace of Aboriginal ancestry were proved, in my opinion the person concerned would not ordinarily be called an “Aboriginal”. It is important to keep in mind that the respondent’s authority does not expressly include, as it might have done, investigating deaths of part-Aboriginals.109 In this way Pincus J had inadvertently made it more difficult for an objective of the Inquiry which was to consider the socio-economic and cultural issues surrounding the disproportionate rate of deaths of Indigenous people in custody. By excluding persons such as Darren Wouters crucial social factors leading to deaths in custody would not be considered. Justice Pincus was mindful of this but chose to exclude Wouters on the basis that any advantages to the effectiveness of the Inquiry were outweighed by the need to test for Aboriginality according to law.110

107 In contrast with Gerhardy v Brown (1985) 159 CLR 70 at 145 where Deane J appeared to shift the emphasis from descent and social factors (self and community identification) to ‘descent or ethnic origin’. 108 Tasmania v Commonwealth (1984) 158 CLR 1, per Deane J, 273 – 274; and L. De Plevitz & L. Croft, “Aboriginality under the microscope: the biological descent test in Australian law” (2003) 3(1) QUT Law &Justice Journal 1. 109 State of Queensland v Wyvill (1989) 90 ALR 611, 615. 110 State of Queensland v Wyvill (1989) 90 ALR 611, 620: ‘I have received submissions (not from counsel) which appeared to me not to invite an objective approach to the question posed. No-one could fail to be moved by the fate of the people the respondent is concerned with, nor by the sad life-story of the young man in issue in this case. It does not appear to me, however, that anything is gained by entertaining propositions which cannot be defended in law, such as that anyone is an “Aboriginal”, for the purposes of the respondent’s inquiry, who is thought by some representatives of the Aboriginal community to be one.’

459 The biological test was misconstrued because Pincus J erroneously assumed that it is possible to grade race according to biology.111 In determining that Wouters did not meet the social criteria to be Aboriginal Pincus J reflected on the evidence before him: There is certainly evidence that Mr Wouters, a few years before he died, became aware that he had Aboriginal blood and no doubt that influenced his view of himself, but it did not do so to the extent of making him in any sense part of the Aboriginal community. As far as is known, the only time he lived in an Aboriginal household after infancy was during the few days he spent with Mr Wally Adams and his wife.112 In other words, even though his extended family - comprising of people who regarded themselves as part of an Indigenous community – recognized Wouters as part of their family, because he had not necessarily been raised in an Indigenous household, he was not “Aboriginal”. This is important because Pincus J had remarked earlier in the judgement that: There was a finding that he identified himself to a number of people as being of aboriginal descent but that does not necessarily mean that he was an “Aboriginal” under the ordinary understanding of that term. Mr Rose argued that it would be absurd to hold Mr Wouters not to have been an Aboriginal because his mother was one. If that principle is correct, then there will never come a point at which, as generations pass and Aboriginal blood is diluted, one can postulate of a particular individual that he is not an Aboriginal.113 Self-recognition is minimised in favour of a concern that assimilation might mean that one day in the future all Australian people could claim to be part of a colonial underclass. The point is that no category (race, genes, blood, ethnicity etc) is capable of deciding what are ultimately questions of politics and power and judicial attempts

111 State of Queensland v Wyvill (1989) 90 ALR 611, 620: ‘The remaining question is the genetic one. There is no doubt that despite having light skin and blond hair, Mr Wouters had a significant infusion of Aboriginal genes, but what proportion is unclear.’ Justice Pincus then comments that only one of the three grand-parents was ‘full blooded Aboriginal’ the other three ‘only partly so’, therefore, ‘so far as one can judge from the photograph of Mrs Carol Wouters [Darren’s mother], and indeed that of Mr Wouters deceased’ the ‘inference is they were or are only partly’ Aboriginal. 112 State of Queensland v Wyvill (1989) 90 ALR 611, 620. 113 State of Queensland v Wyvill (1989) 90 ALR 611, 619.

460 to deny this fact verge on ridiculous as the case of Darren Wouters shows.114 Here the judicial choice was really whether the Queensland government should be able to avoid its accountability and responsibilities by reducing the numbers of deaths in its custody or whether the Commissioner should be permitted to inquire freely and frankly into the issue.115 This choice was “dressed up” as a question of law informed

114 In the course of reaching the decision to exclude ‘part-blood Aboriginals’ from the Inquiry unless they identified with and were identified by an Indigenous community, Pincus J made some extraordinary observations. Among the more notorious were: (1) The comments concerning Toohey J sitting as Aboriginal Land Commissioner when Toohey J held s. 3(1) of the Aboriginal Land Rights Act 1976 (Cth), (which included the expression “Aboriginal race of Australia”) concerned the descendants of those people inhabiting Australia prior to 1788, to be explained by saying, ‘He [Toohey J] took the definition, presumably because of the presence of the word ‘“race” to be “genetic rather than social”’, in State of Queensland v Wyvill (1989) 90 ALR 611, 616. Whereas French J later explained (when this case was appealed) that Toohey J was merely seeking to expand the pool of potential beneficiaries by referring to a genetic test in the context of land rights using a purposive and beneficial approach to the issue, Attorney-General (Cth) v Queensland (1990) 94 ALR 515, 538; (2) The argument that their was no good reason to move away from the “golden rule” of statutory interpretation (viz, that statutes be given prima facie their plain and ordinary meaning) ignored Article 1of the International Covenant of Civil and Political Rights 1966, in State of Queensland v Wyvill (1989) 90 ALR 611, 616; (3) A rejection of the pure social approach (viz that there must always be some Aboriginal descent because self and community recognition will not be sufficient by themselves) rendering the principle of self- determination subordinate to a biological test, and ignoring the legal literature (for example: Australian Law Reform Commission Report No 31, The Recognition of Aboriginal Customary Laws (1986)) on the inclusive nature of indigenous culture and kinship (“adoption”, “extended families” and the like, see for instance M. Flynn & S. Stanton, “Trial By Ordeal: The stolen generation in court” (2000) Vol 25 No 2 Alternative Law Journal 75, 77), in State of Queensland v Wyvill (1989) 90 ALR 611, 616; and (4) Justice Pincus held that it was better to have a definition with some precision than to concern the Inquiry and courts with a potentially open-ended class of people, ‘The majority of people who identify themselves as Aboriginal are, at least in the Eastern States, only partly so. For example, the 1961 census figures included 1488 full blood and 13,228 “half blood” Aboriginals in New South Wales. … there has been a substantial decline in the number of New South Wales pure blooded Aboriginals over 100 years and a considerable rise in the number of part-Aboriginals in that State … It does not seem practicable, nor is it in accordance with the requirement that the ordinary [at 617] meaning of the word “Aboriginal” be used, to proceed on the basis that every part-Aboriginal is intended to be included in unqualified statutory references to “Aboriginals”’in State of Queensland v Wyvill (1989) 90 ALR 611, 617 - 618. 115 State of Queensland v Wyvill (1989) 90 ALR 611, 618 - 619: As Pincus J noted in this case there is an administrative law and broader legal tradition in favour of leaving such questions to the inquisitor

461 by science to allow a decision in favour of a government over and above the victims of an intergenerational legacy of colonialism. The approach meant that it is now necessary for all elements to be made out or that some of the elements need to be so strong that an absence of another will not be fatal, when a purposive test would instead afford a greater capacity for Indigenous people to benefit.116 In terms of a sociobiological analysis this case demonstrates how hollow and sterile the nature nurture dichotomy can be when used to classify and that because it is so open – it provides an opportunity for discretion to be exercised in a way that replicates the existing hierarchies and or power structures in society. This should not be taken to suggest that Pincus J was aiming to replicate existing hierarchy, in fact his Honour expressed his awareness of biological determinism117, but nevertheless “naturalized” hierarchy by under-privileging the self-recognition approach. On appeal one might expect that the ambiguity of the sociobiological trap would be avoided by applying a self-determination test and thereby also comply with international standards. However, two of the three Full Federal Court Judges were just as confounded as the Judge at first instance even though the court unanimously overturned the earlier decision.118 Justices Jenkinson and Spender held that the issue was a question of fact and that the Commissioner’s original determination should only be interfered with if it was not one reasonably open to him or beyond his jurisdiction, and in this case there was no such legal error made.119 Justice French stressed that the purpose of the Inquiry necessitated the Commissioner have the discretion to determine either way whether to exclude on the basis that ‘genetic heritage’ was too trivial or of

(original fact-finder) and only over-turning them where it can be proven on appeal that the original finding was ‘not merely dubious but wrong’ according to law. 116 Indeed this point was made by only one of the three Judges when this case was appealed - Attorney- General (Cth) v Queensland (1990) 94 ALR 515, per French J at 536, 538 & 539. 117 Justice Pincus explained that the earlier views of the High Court expressed by Higgins J in Muramats v Commonwealth Electoral Officer (1923) 32 CLR 500 at 507, to the effect that “Aboriginal” means people ‘who are of the stock that inhabited the land at the time Europeans came to it’, was anachronistic ‘If “of the stock” in the passage means “having any genetic trace”, then that is not the meaning which common usage attributes to “Aboriginal” now, if it ever was’: State of Queensland v Wyvill (1989) 90 ALR 611, 617. 118 Attorney-General (Cth) v Queensland (1990) 94 ALR 515, namely Jenkinson & Spender JJ with French J leaving open the possibility that self-determination should be the appropriate test. 119 Attorney-General (Cth) v Queensland (1990) 94 ALR 515, 519 & 522, respectively.

462 no real significance or to include where a person has no Aboriginal genetic heritage but is regarded as Aboriginal because of self-identification and communal affiliation.120 In reaching their decisions, Jenkinson and Spender JJ required at least “non-trivial” Aboriginal descent to be established in accord with an “ordinary meaning”.121 For Spender J ‘neither the attribute of self recognition, nor recognition by “the Aboriginal community” is a necessary integer in the ordinary meaning’ of Aboriginal, and ‘the presence of either attribute, or even both, is not sufficient to constitute a person an Aboriginal’: It seems to me that this aspect of the matter can be put no higher than recognition as Aboriginal by persons who are accepted by the person making the classification as being of Aboriginal descent.122 In privileging the descent test, Spender J was careful not to exclude altogether the social elements of the test pointing out that they are not irrelevant considerations, and that self-identification and community recognition are appropriate considerations in ‘cases at the margin’.123 Similarly, for Jenkinson J: The closer to the boundary the person’s genetic history – or, more accurately, the speaker’s belief about that history – places him, the greater the influence of his conduct and of conduct of the Aboriginal community.124 Still, the term “Aboriginal” required descent ‘at least as a real possibility, is essential’, even though ‘certainty as to Aboriginal descent is not necessary and is not always sufficient’.125 Both Jenkinson and Spender persisted with the language of racism throughout their judgements drawing on sociobiological terms such as “Aboriginal blood”,

120 Attorney-General (Cth) v Queensland (1990) 94 ALR 515, 536 & 539. 121 Attorney-General (Cth) v Queensland (1990) 94 ALR 515, 521 & 524, respectively. 122 Attorney-General (Cth) v Queensland (1990) 94 ALR 515, 523. 123 Attorney-General (Cth) v Queensland (1990) 94 ALR 515, 523. 124 Attorney-General (Cth) v Queensland (1990) 94 ALR 515, 518. Also at 517, Jenkinson J held: ‘In a case where the proportion of Aboriginal blood in a person of mixed race is thought to be small, or where uncertainty exists as to whether a person is in any degree of Aboriginal descent, the word may be used or eschewed in reference to that person under the influence of what may be called cultural circumstances.’ 125 Attorney-General (Cth) v Queensland (1990) 94 ALR 515, 517 & 519.

463 “Aboriginal genes”, “genetic history”, “mixed-race”, “racial sub-group”, and “significant infusion of Aboriginal genes”. In contrast, French J placed much greater weight on the purpose of the Inquiry itself to determine the meaning of “Aboriginal” which ought to be left open for the benefit of the Inquiry.126 For precisely this reason French J made specific reference to the purpose of the inquiry and the ‘public concern’ leading up to the Inquiry: Public concern over the High incidence of Aboriginal persons dying in police lock-ups and prisons led to the establishment in October 1987 of the Royal Commission … As already noted, the terms of the “head” commissions now held by Mr Johnstone QC require consideration of the social, cultural and legal factors which appear to have a bearing on the deaths under investigation. The general subject matter of the inquiry and the specific reference to social, cultural and legal factors are not consistent with the establishment of rigid definitional boundaries within the terms of reference. In particular the characteristics, including social, cultural and legal circumstances, of persons who are said to answer the description “Aboriginal” will need to be considered. And that consideration could well involve some reflection upon characteristics by which membership of the Aboriginal people of Australia can be defined or recognized. It is not overstating the position to say that, in a sense, the idea of what it is to be an Aborigine in contemporary Australia may be under inquiry.127 Justice French rejected the approach of Pincus J because it narrowed the ‘concept of Aboriginal by adding two necessary conditions to that of descent’ and because the trial judge had interfered with the Commisioner’s decision to include Wouters in the

126 Attorney-General (Cth) v Queensland (1990) 94 ALR 515, 539: ‘When there is added to that factor [significant genetic heritage], as in this case, a history apparently devoid of opportunity for development within the normal range of parent/child relationships, then confusion as to identity and the absence of a sense of belonging to a particular community is not surprising. These observations are not made by way of speculation on the facts of this case, but as illustrative of the issues which might properly arise for consideration in the inquiry. To pre-empt as “jurisdictional facts” the issues of self identification and communal acceptance or affiliation is to impose restrictions on the inquiry which its evident purpose and, in that context, the language of the Letters Patent, will not support.’ 127 Attorney-General (Cth) v Queensland (1990) 94 ALR 515, 536.

464 Inquiry.128 The self-identification and community recognition elements of the test were not intended to restrict the scope of this Inquiry nor statutes where the purpose was beneficial. Instead: [T]he better view is that Aboriginal descent is a sufficient criterion for classification as Aboriginal. That proposition must be read subject to the right of the Commissioner to decline to inquire into a case where the Aboriginal genetic heritage is so small as to be trivial or of no real significance in relation to the overall purpose of the Commission. It also leaves open the question whether a person with no Aboriginal genetic heritage may be regarded as Aboriginal by reason of self-identification and communal affiliation.129 Regrettably, although Jenkinson and Spender agreed with the orders made by French J they reached that conclusion in such a way as to leave self-determination as a subordinate concern to the issue of descent. Again this result is ironic because both Judges were conscious of the need to avoid biological determinism and the need for deference to the Inquiry on questions of fact. Therefore all three elements remained significant tools for expanded judicial discretion in the future disputes (self- identification and communal recognition and the question of descent).130

Mabo v Queensland (1992) 107 ALR 1.

Unfortunately, the leading native title case, prior to the Native Title Act 1993 (Cth) and its 1998 amendment, did virtually nothing to change the judicial understanding of Indigenous identity. In Mabo, the High Court expressed some interest in self- determination, but still implied a need for biological heritage.131 However, the facts in Mabo did not require any real contest about the authenticity of the claimants. The court, in Mabo, referred to ‘indigenous inhabitants and their descendants’132, and

128 Attorney-General (Cth) v Queensland (1990) 94 ALR 515, 539. 129 Attorney-General (Cth) v Queensland (1990) 94 ALR 515, 539. 130 Attorney-General (Cth) v Queensland (1990) 94 ALR 515, 539. 131 In particular Toohey J favoured self-determination, while Deane & Gaudron JJ implied as much in their decision in Mabo v Queensland (1992) 107 ALR 1, at 146 – 147, and 65, respectively. 132 Mabo v Queensland (1992) 107 ALR 1, Brennan J at 42 – 45.

465 referred to a community in terms of a ‘group’, ‘clan’, ‘band’ or ‘society’.133 Further, Deane & Gaudron JJ were of the view that an individual may be a claimant and so too Justice Brennan.134 Therefore Mabo implied a test for descent along with some recognition that self-determination is also probative.

Mason v Tritton [1994] 34 NSWLR 572.

One of the first cases dealing with both the term “Aboriginal” and the concept of native title was Mason v Tritton.135 This case may be contrasted with the similar but later case of Yanner v Eaton, which stands as somewhat of an anomaly.136 Because the Native Title Act 1993 (Cth) is silent on the question of the potential class of claimants other than the s. 253 definition, ‘“Aboriginal peoples” means peoples of the Aboriginal race of Australia’, it is necessary to look to the general law. Judicial opinion in this respect has varied from purely biological definitions through to definitions seeking to avoid biological determinism. Among the biological definitions was a decision of the Full Federal Court in Pareroultja & Ors v Tickner & Ors. There the Federal Court had to determine the incompatability or otherwise of a situation where native title overlapped with a proposed grant of land under a Land Rights statute. The court held that the two concepts were not incompatible after considering the beneficial nature of the laws in question and the absence of any inconsistency between the classes of persons meant to benefit under them: Membership of the indigenous people depends on biological descent from the indigenous people and on mutual recognition of a particular person’s

133 The latter terms are used throughout the various judgements in Mabo v Queensland (1992) 107 ALR 1. 134 Mabo v Queensland (1992) 107 ALR 1, Brennan J at 43, and Deane & Gaudron JJ at 62 – 64. 135 Mason v Tritton [1994] 34 NSWLR 572. 136 Yanner v Eaton (1999) 166 ALR 258. It is anomalous in the sense that the Court found in favour of Mr Yanner who succeeded under s. 211of the Native Title Act 1993 (Cth) to avoid prosecution under a Queensland law for hunting crocodiles. Section 211 provides an immunity to those people who might otherwise be prosecuted or required to obtain a licence under other laws where the activity is a traditional aspect of their native title rights.

466 membership by that person and by elders or other persons enjoying traditional authority among those people.137 In other words the court used a biological and social test to maximise the potential pool of claimants or beneficiaries to give effect to the statutes aimed at benefiting those who had suffered from the colonisation of Australia. However, a purposive reading is not necessarily a guarantee that justice will be done even though in most cases the statute will be aimed at benefiting Indigenous Australians as the decision of Kirby P revealed in Mason v Tritton.138 This is because where the beneficial interest under the statute is set in competition with commercial interests the beneficial interest is considered subject to that commercial interest and this approach is justified by sociobiological criteria such as a strict requirement that the beneficiaries have biological proof of their connection to the traditional right. Here the competing commercial interest was that of a non-indigenous abalone fishing industry.139 In Mason v Tritton, the appellant argued a native title right to fish abalone as a defence to a breach of the NSW Fisheries and Oyster Farms Act 1935. All three Judges found against the appellant on the basis that he had not discharged an onus of proof, which included a biological test: There must be evidence that the claimant is an indigenous person and biological descendant of the indigenous clan or group who exercised traditional customary rights in respect of the land when the Crown first asserted its sovereignty.140 Despite a finding by the Magistrate at first instance that this element had been satisfied relying on a genealogy reaching back to the 1880s the NSW Court of Appeal regarded this as ‘far from compelling’ because it fell short of the threshold date of 1788.141 For Priestley J (with whom Gleeson CJ agreed) the rule was clear: A person asserting entitlement to enjoyment of the interest at the present day, must show biological descent from the group which was observing the system of rules which the interest was part; that is show biological descent dating back

137 Pareroultja & Ors v Tickner & Ors (1993) 117 ALR 206 at 209 – 210, per Lockhart J (with whom O’Loughlin & Whitlam JJ agreed). 138 Mason v Tritton [1994] 34 NSWLR 572, 575 - 595. 139 This will be discussed further below. It is explicitly mentioned in the judgement of Kirby P at 589 and implicitly by Priestley JA at 600 – 601, in Mason v Tritton [1994] 34 NSWLR 572. 140 Mason v Tritton [1994] 34 NSWLR 572, 586. 141 Mason v Tritton [1994] 34 NSWLR 572, 586.

467 to just before the establishment of the common law. … A person asserting such entitlement must also show that the biological descendants of the pre-common law group have continued and are continuing to observe the system at the time the claim is asserted.142 Consequently, this meant that despite the obviousness of the claimant’s case both in terms of the fact that he was indigenous to the area and that his descendants had a tradition of fishing in the waters, his defence to a prosecution for breaching the Fisheries and Oyster Farms Act 1935 (NSW) failed. It failed for want of establishing a biological chain of descendency and for want of satisfying an evidentiary burden that taking abalone was according to tradition.143 For Kirby P: The appellant's biological descent has been accepted by the magistrate to have been proved back to the 1880's. Whether it may properly be presumed, or inferred, retrospectively to 1788 depends upon whether the circumstances of the case are such that the probabilities of the case favour the inference that no intervening events occurred in the years to 1788 such as would break the biological links to groups or clans of exercising fishing rights in the relevant area. In the nature of Aboriginal society, their many deprivations and disadvantages following European settlement of Australia and the limited record keeping of the earliest days, it is next to impossible to expect that Aboriginal Australians will ever be able to prove, by recorded details, their Precise geneaology back to the time before 1788. In these circumstances it would be unreasonable and unrealistic for the common law of Australia to demand such proof for the establishment of a claim to native title. The common law, being the creation of reason, typically rejects unrealistic and unreasonable principles. If, therefore, in this case the only problem for the appellant had been that of extending the proved use of land by his Aboriginal

142 Mason v Tritton [1994] 34 NSWLR 572, 598, references omitted. 143 Mason v Tritton [1994] 34 NSWLR 572, 594 per Kirby P: ‘The outcome of this appeal can be simply stated. Mr Mason, in my view, established the ingredients necessary in law to succeed in a claim for a native title in respect of a right to fish. But he failed to provide sufficient evidence to prove that he actually had been exercising such a native title.’

468 forebears from the 1880's back to the time before 1788, I would have been [at 589] willing to draw the inference asked. In more traditional Aboriginal communities the inference will be quite easily drawn. But, even in this case, it would seem to be commonsense to draw it. However, this was not the only or even the major obstacle which the appellant faced in this Court. Fixed as we are with the magistrate's findings of fact, the appellant was required, somehow, to overcome the finding that he had failed to bring himself within the traditional claim which he had claimed and which I would hold was proved in law, viz, the right to fish for food for himself and his family or exchanging the same for other food. The magistrate regarded it as fatal that the appellant had failed, by evidence, to bring himself within that use — and to exclude other uses which were equally possible, viz, sale to an open commercial market which it was the very object of the Regulation to control.144 Clearly the last sentence was critical in the final outcome of this case at first instance and before the NSW Court of Appeal. The fear that an interloper might be able to opportunistically exploit native title laws to circumvent the highly regulated abalone fishing industry which grants privileges to certain people via a licensing system was at the forefront of the minds of both the Magistrate and Kirby P. Similarly, Priestley JA made implicit his concerns about competition between licensed and unlicensed abalone fishing by concerning himself with ‘the type of fishing’ undertaken by the appellant.145 In a statement denying there was any discretion, Priestley JA (with whom Gleeson CJ agreed), considered that it was not the common law that destroyed native title rights but rather the effect of time and European Settlement.146 This is an example of the “inevitability” of sociobiological justification where phenomena are naturalised as an inevitable consequence of evolutionary forces, yet the real force is very much attributable to choices made by humans in positions of power exercising discretion while obscuring their discretion as beyond their control. Justice Priestley reasoned that while fishing was indeed a

144 Mason v Tritton [1994] 34 NSWLR 572, 588 – 589. 145 Mason v Tritton [1994] 34 NSWLR 572, 601. 146 Mason v Tritton [1994] 34 NSWLR 572, at 600:‘the coming of the common law to Australia did not of itself extinguish the systems of rules acknowledged and observed by Aboriginal groups and communities related to land, the time that has passed since then and European settlement of the country have caused the foundation of native title to disappear in many places.’

469 presumed incidence of native title, citing s. 223(2) of the Native Title Act 1993 (Cth), it remained for the claimant to prove that the type of fishing in dispute was within the ambit of two basic legal propositions: Proposition (1) was that the magistrate had made findings, or to the extent that he had not made such findings, had been bound to do so on the evidence before him, which showed that the claimed native fishing right was part of a recognisable system, in existence immediately before the common law became the law of the colony of New South Wales, observed by an identifiable group of people connected with a locality of which Dalmeny was a part, and that the appellant was a member of a group both biologically descended from the pre- common law group and still connected with the same particular locality, and that the present day group and the appellant himself were continuing to observe the system, at least so far as it related to the fishing right. Proposition (2) was that any land in relation to which the fishing right was being claimed was unalienated Crown land in regard to which there had been no act of the Crown extinguishing the native right.147 Justice Priestley did not need to deal with the second of these finding instead that the first proposition had not been satisfied. This was despite the evidence of two experts supporting the claimant’s case. The first experts evidence was dismissed with the sentence: The evidence from this witness consisted entirely of her report. She gave no oral evidence and was not cross-examined.148 The second expert, Dr S Colley’s evidence had reviewed the literature concerning archaeological evidence for the collection and consumption of abalone by Aboriginal people on the NSW South Coast, and had concluded: “A variety of archaeological studies and information derived from the NSW NPWS Aboriginal Sites Register confirm that abalone shells are commonly found in small quantities in Aboriginal shell middens along the NSW south coast. None of these archaeological studies were undertaken to establish the presence of abalone and the recording of abalone in all cases was incidental to the main aims of the research.

147 Mason v Tritton [1994] 34 NSWLR 572, 601. 148 Mason v Tritton [1994] 34 NSWLR 572, per Priestley JA with whom Gleeson CJ agreed at 602.

470 Because abalone occurs in most middens in small quantities it is likely that some studies have overlooked or under-emphasised its presence and that the occurrence of abalone is under-stated in the archaeological literature. Abalone has been documented from sites of different ages between c 3700 years ago (at Currarong) and after the time of European contact (at Durras North). The archaeological evidence presented here supports the argument that taking of abalone has been a widespread customary practice of Aboriginal people on the NSW south coast for at least the [at 602] last 3-4000 years and this practice continued, at least in some places, after European contact.”149 General evidence, therefore, rather than specific evidence will be regarded as insufficient. In his opinion, and using a strict interpretation, Priestley JA considered that neither expert had satisfied the basic test to be applied that was discerned from the various judgements in the Mabo Case.150 The test to be applied was as follows: 1. Because, if the native interest did not exist at the time when the common law became the law of the colony, the radical title, the legal estate and the beneficial estate in the relevant land all vested together and undivided at that time in the Crown, any claimed native interest can not now be recognised by the common law unless it was in existence immediately before the common law became the law of the colony: Brennan J (at 59-60, 69-70); Deane J and Gaudron J (at 86); Toohey J (at 184-187). 2. The native interest must be a recognisable part of a system of rules observed by an identifiable group of people connected with a particular locality: Brennan J (at 58, 70); Deane J and Gaudron J (at 86, 88, 108); Toohey J (at 186-187, 188). 3. A person asserting entitlement to enjoyment of the interest at the present day, must show biological descent from the group which was observing the system of rules which the interest was part; that is show biological descent dating back to just before the establishment of the common law: Brennan J (at 70); implicit in Deane, Gaudron and Toohey JJ in the references given in 2 above.

149 Mason v Tritton [1994] 34 NSWLR 572, 601 – 602. 150 Mason v Tritton [1994] 34 NSWLR 572, 602.

471 4. A person asserting such entitlement must also show that the biological descendants of the pre-common law group have continued and are continuing to observe the system at the time the claim is asserted. (References as for 3 above.)151 Applying this test to the evidence of the second expert, Dr S Cane, Priestley JA held that although the report could be accepted as proving the claimant was a member of a family with a ‘genuine historical association with the south coast of NSW’ with a consistent family tradition of fishing, and that this tradition was ‘an important ingredient in the socio-economic life’ of those indigenous people: … it seems plain that much more needed to be proved to comply with the requirements. This seems to me to be clear enough simply taking Dr Cane's two reports at their full face value. There was nothing in them to show that the appellant was biologically descended from any Aboriginal group dating back to just before the establishment of the common law which observed a system of rules relating either to fishing generally or to abalone in particular on any specific part of the New South Wales South Coast.152 As a practical matter, it will be virtually impossible after such a strict reading of the Mabo Case (or the “defence” in s. 211 of the Native Title Act) for Indigenous people to raise a defence to an alleged breach of law on the basis of a native title right. This assertion is valid despite the decision in Yanner v Eaton because there the facts were so overwhelmingly within the biological limits and the native title holders had already received recognition of basic title.153 In other situations the claimants are less likely to be so fortunate given the catastrophic effects of colonisation.154 The detail of evidence required in such a short time frame and the costs involved render the likelihood of

151 Mason v Tritton [1994] 34 NSWLR 572, 598 (original references). 152 Mason v Tritton [1994] 34 NSWLR 572, 602. 153 Yanner v Eaton (1999) 166 ALR 258 (cf McHugh J and Callinan J in dissent). 154 Paradoxically, a fact recognised in the preamble to the Native Title Act 1993 (Cth) and so many other statutes (eg the Aboriginal and Torres Straight Islander Commission Act 1989 (Cth)) intended by the legislature to redress past injustice or facilitate a material change in the circumstances of Indigenous Australians.

472 success extremely remote.155 For example, the cross-examination of one expert witness in Mason v Tritton reveals the impossibility of Indigenous people proving a traditional system of rules without the aid of “White” experts:

HALL: Yes, I am talking about the period prior to colonisation. Firstly there is no evidence prior to colonisation of Aboriginal tribal communities claiming any right to specific areas of coastal waters for fishing purposes.

CANE: No, but I have said that there could have been totemic association with those areas as implied by the evidence of Tindale, and the totemic association of people with specific coastal animals. (undecipherable)

HALL: Could you just deal with the question I am putting to you that prior to colonisation there is no evidence from the material you have gathered of the exercise by Aboriginal communities of rights to fish in particular coastal areas.

CANE: No. …

HALL: Well, apart from the fact of fishing by Aboriginal people in the coastal waters are you aware of any Aboriginal law that deals with the fishing rights or fishing practices? 156 CANE: No. In particular Priestley JA held that there was insufficient evidence of the calibre provided in Milirrpum, Walden v Hensler and the Mabo cases of a system of rules whether by elders or other community members which meant the present case could be distinguished as one where the ‘tide of history had washed away any real acknowledgement of traditional law and … of traditional customs’.157 Therefore, the

155 See further the cross-examination of Dr Cane, selectively extracted in the judgement of Priestley JA in Mason v Tritton [1994] 34 NSWLR 572, at 602 – 603. The degree of detail required will not necessarily be readily available for presentation as “evidence” to be recognised by a court. 156 Mason v Tritton [1994] 34 NSWLR 572, at 603. 157 Mason v Tritton [1994] 34 NSWLR 572, at 604, citing respectively: Milirrpum v Nabalco Pty Ltd (Gove Land Rights Case) (1971) 17 FLR 141; Walden v Hensler (1987) 163 CLR 561; and Mabo v State of Queensland [no 2] (1992) 107 ALR 1. His Honour did not rule out the possibility of an appropriate claim being brought under the Native Title Act if the relevant evidence could be mounted.

473 violence of colonisation cannot be undone by law demonstrating that the legacy of colonisation is very much contemporary and, possibly, perpetual. From a sociobiological perspective, the judgement is explicit. The evidence of Dr Cane was held to show connections to Aboriginal people but not to the biological158 standard expected: … the material in his reports could support conclusions that the men in relation to whom the questions were asked were members of families elements of which could be traced back to 1880's or thereabouts, some of whom were Aboriginal, some of whom were European, some of whom at the 1880's period seem to have been born in or not far from Narooma and some of whom came from well away from Narooma, as for example, La Perouse, the far South Coast of New South Wales and Victoria. So far as the origins of the appellant's own family can be made out from the genealogical evidence, they appear mostly to have come from La Perouse. The material in the report also showed that some members of the particular families on whom Dr Cane focused were B accustomed to fish the sea near Narooma and that fishing was a significant part of the socio-economic life of Aboriginal people generally (including families of the mixed kind I have mentioned) all along the South Coast of New South Wales.159 Had the court decided in favour of the appellant in Mason v Tritton there would have been an issue about over-exploitation of a limited resource that would otherwise require a licence to be taken in commercial quantities. Any reservations about this issue ought to have been left to the legislature to determine in consultation with the Indigenous people concerned. Instead, Mason v Tritton stands as one of the first cases to narrow down the “advances” made in the Mabo case using a strict and legalistic

158 Mason v Tritton [1994] 34 NSWLR 572, at 602: ‘There was nothing in them to show that the appellant was biologically descended from any Aboriginal group dating back to just before the establishment of the common law which observed a system of rules relating either to fishing generally or to abalone in particular on any specific part of the New South Wales South Coast.’ 159 Mason v Tritton [1994] 34 NSWLR 572, 603 – 604.

474 approach naturalised through the use of biological criteria rendering native title virtually unattainable.160 In Mason v Tritton161 the descent test was applied requiring biological criteria in such a way that it operated to exclude whereas in Gibbs v Capewell, the descent test was applied so as to give a more inclusive effect.162 Although in the latter case no conclusions were drawn (at the request of the protagonists) applying the stated legal principles to the facts.163

Gibbs v Capewell (1995) 128 ALR 577

In Gibbs v Capewell, the court was asked to declare the true meaning of the expression “Aboriginal person” as it was used in the ss. 101 & 102 of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth). There, the petitioner (Gibbs) was contesting the validity of recent elections and the capacity of certain candidates and electors to be eligible to stand and vote for office on the basis that they were not Indigenous. The first respondent (Capewell) had stood as a candidate and was joined by the Australian Electoral Commission (second respondent) and the then Commonwealth Minister for Aboriginal and Islander Affairs, Senator Herron (third respondent). The petitioner submitted that the relevant test was that where there was only minimal Aboriginal genetic material present in a person they would not be able to participate in elections unless they had community recognition. An absence of genetic material would preclude participation. Counsel for Capewell submitted that the expression “Aboriginal persons” included those who may have no descent but self-identify as Aboriginal and have community recognition. In other words, this interpretation would include people adopted by the Indigenous community. The Minister submitted that any amount of genetic material would suffice and that this would be sufficient preferring not to recognize the concept

160 The word “advances” is in inverted commas for the reasons discussed in M. Mansell, “Perspectives on Mabo: The High Court Gives An Inch But Takes Another Mile” (1992) Vol 2 No 57 Aboriginal Law Bulletin 94. 161 Mason v Tritton [1994] 34 NSWLR 572, discussed immediately above. 162 Gibbs v Capewell (1995) 128 ALR 577. 163 Gibbs v Capewell (1995) 128 ALR 577, 585.

475 of self-determination (though not expressly submitting as much).164 The Australian Electoral Commission did not make a substantive submission other than to abide by any determination made by the Court. Justice Drummond noted that “Aboriginal persons” was defined in s. 4 of the Act to mean, ‘a person of the Aboriginal race of Australia’. The Judge reflected on the earlier cases and commented the term “race” is ‘hopelessly imprecise’ and proceeded to analyse the expression as a product of the statute under consideration by reference to the preamble and “Objects” in s. 3. Significantly, the preamble mentioned among other things: … of the consequences of past injustices and to ensure that the Aboriginal persons and Torres Strait Islanders receive that full recognition within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire …165 And sub-section 3(a) read: [T]o ensure maximum participation of Aboriginal persons and Torres Strait Islanders in the formulation and implementation of government policies that affect them …166 Based on an entire reading of the preamble and objects sections of the Act, Drummond J determined that the intention of parliament was to benefit “descendants”

164 This remains a feature of the Howard government’s policy on Indigenous affairs – it will not countenance or facilitate any form of self-determination. See further: J. Howard MHR and Prime Minister of Australia, “Reconciliation Documents”, Media Release, issued on 11 May 2000 and accessed at http://www.pm.gov.au/news/media_releases/2000/reconciliation1105.htm on 21 November 2005; D. Short, “Reconciliation, Assimilation, and the Indigenous Peoples of Australia” (2002) Vol 5 No 1 Fourth World Journal, pp. 24 – 49, accessed online at http://www.cwis.org/fwj/51/d_short.html on 7 November 2005, see especially footnote No 38; Transcript of the Prime Minister (John Howard) interviewed with Catherine McGrath, AM Programme, ABC Radio National, broadcasted 4 August 2003, transcript accessed at http://www.pm.gov.au/news/interviews/Interview399.html on 21 November 2005; Interview with the Prime Minister on John Laws, 2UE Radio, broadcasted on 29 May 2000, and accessed at http://www.pm.gov.au/news/interviews/2000/laws2905.htm on 21 November 2005; Transcript of Interview between the Prime Minister (John Howard) and Alan Jones, 2UE Radio, broadcasted on 11 May 2000, accessed online at http://www.pm.gov.au/news/interviews/2000/jones2905.htm on 21 November 2005. 165 Aboriginal and Torres Straight Islander Commission Act 1989 (Cth), Preamble. 166 Aboriginal and Torres Straight Islander Commission Act 1989 (Cth), s. 3.

476 of pre-European inhabitants as understood in “ordinary speech”.167 It followed that participants in the election must have “Aboriginal genes” and that the social criteria (self-identification and community recognition) could never be sufficient in the absence of some “Aboriginal genes”. Therefore this determination excluded those people who had been adopted by the Indigenous community: It follows that adoption by Aboriginals of a person without Aboriginal descent and the raising of that person as an Aboriginal … will not, because of the statutory requirement for descent, bring that person within the description “Aboriginal person”.168 Not only is this reasoning sociobiological (because it implies that genes override environment, viz, it is an extreme example of biological determinism) it is a conclusion hostile to Indigenous culture and the concept of self-determination at international law.169 It also assumes a modernist view of science – a view no longer accepted within social theory, or the philosophy of science.170 Wallerstein, for example, questions the belief that there is certainty of race,171 noting that where race has been “fixed” it has been by statute rather than science.172 Justice Drummond went

167 Gibbs v Capewell (1995) 128 ALR 577, 580, and later ‘ordinary parlance’ at 581. 168 Gibbs v Capewell (1995) 128 ALR 577, 580. 169 As Flynn and Stanton (M. Flynn & S. Stanton, “Trial By Ordeal: The stolen generation in court” (2000) Vol 25 No 2 Alternative Law Journal 75, 77.) have observed during their analysis of the Stolen Generations Case, Indigenous culture has a broader understanding of family and community: ‘At an early point in the strike-out application, the Commonwealth confidently submitted that Lorna Cubillo’s allegation of removal without the consent of her mother must be false because Lorna Cubillo’s mother had died before the date of removal. It soon transpired that Lorna Cubillo’s use of the term “mother” in the court proceedings was not a reference to her birth mother but to the woman who, in accordance with Aboriginal culture, had assumed care of her following the death of her birth mother.’ See also: Australian Law Reform Commission Report No 31, The Recognition of Aboriginal Customary Laws (1986). 170 P. Feyerabend, Against Method, London, Verso, 1978; P. Feyerabend, Farewell to Reason, London, Verso, 1990; and Kuhn, T.S., “Logic of Discovery or Psychology of Research?” in Lakatos, I, & Musgrave, A. (eds), Criticism and the Growth of Knowledge, Cambridge University Press, London, 1976, pp 1-23. 171 E. Balibar & I. Wallerstein, Race, Nation, Class: Ambiguous Identities, Verso, London, 1991, 71: ‘People shoot each other every day over the question of labels. And yet, the very people who do so tend to deny that the issue is complex or puzzling or indeed anything but self-evident.’ 172 E. E. Balibar & I. Wallerstein, Race, Nation, Class: Ambiguous Identities, Verso, London, 1991, 71.

477 further and contemplated whether the Act was intended to benefit persons of “mixed descent” or just “full blood descendants”.173 In the course of this excursion into the sociobiological abyss, Drummond J: I can take judicial notice of the fact that there are few, if any, full blood descendants of the pre-settlement inhabitants of the continent living in any of these five regions [the five regions spanned the State capitals Adelaide, Brisbane, Hobart, Perth and Sydney]: 20 years ago judicial notice was taken that “for a long time it has been widely known that there remain very few [Aboriginal] persons of the full blood” in the whole continent: Re Byrning (dec’d) [1976] VR 100 at 103. Put another way, because colonialism and the policies of assimilation have left very few potential ‘full blood’ beneficiaries, the expression must be taken to mean all people including those with ‘mixed blood’ or those with ‘limited Aboriginal genetic heritage’.174 One consolation from the judgement was the rejection of Senator Herron’s submission that the genetic test was the only ‘necessary’ test. Counsel for the Minister had argued that the presence of a cultural test would be an additional barrier to participation particularly for those people who had been removed from their families under earlier policies. While this submission had the appearance of concern for those people, the Minister was more concerned to ensure that the government’s policy of resisting self- determination was left in tact, and this was expressed publicly by the Minister at that time175 as well as being implicit in his submissions via counsel that:

173 Gibbs v Capewell (1995) 128 ALR 577, 580. 174 Gibbs v Capewell (1995) 128 ALR 577, 581. 175 “ATSIC to be strengthened says Minister”, ATSIC News, Aboriginal and Torres Strait Islander Commission, August 1998, p. 9, accessed online at at http://svc003.wic001g.server- web.com/News_Room/ATSIC_News/August_1998/page9.asp on 21 November 2005. As the following quote explains, the Minister, Senator Herron, preferred the expression “self-empowerment” to “self- determination”: ‘Australia was one of the earliest advocates for inclusion of self-determination in the Draft Declaration, but the Government has recently changed this position. Following a series of leaks to the Melbourne Age, it was confirmed that Cabinet had agreed in July to alter the Australian Government’s draft text on the Declaration to substitute “self-management” or “self-empowerment” for the principle of self-determination. “Self-empowerment” has been the guiding principle of the current Minister, Senator John Herron. He launched the term at his Lyons Lecture in November 1996, saying that it “varies from self-determination in that it is means to an end — ultimately social and economic

478 … the statutory definition of “Aboriginal person” operates by reference to genetic factors, not social ones, so it is irrelevant to have regard to cultural considerations; race is determined at birth and cannot subsequently be acquired or relinquished, while culture is acquired from a person’s upbringing and environment and is not a necessary element of a person’s race.176 Justice Drummond rejected this submission noting that in the ‘absence of clear proof of Aboriginal descent’, either self-identification or communal recognition would be necessary. In other words the so-called cultural factors become relevant where proof of Aboriginal descent is insubstantial and where proof of descent is substantial that will suffice. Factors indicative of a ‘substantial degree of Aboriginal descent’ will be genetic, or even though ‘a person’s external appearance may be deceptive of his or her racial origins: … that the person possesses what would be regarded by the generality of the Australian community as clear physical characteristics associated with Aboriginals.177 In terms of the cultural criteria: The less the degree of Aboriginal descent, the more important cultural circumstances become in determining whether a person is “Aboriginal”. A person with a small degree of [at 585] Aboriginal descent who genuinely identifies as an Aboriginal and who has Aboriginal communal recognition as such would I think be described in current ordinary usage as an “Aboriginal person” and would be so regarded for the purposes of the Act. But where a person has only a small degree of Aboriginal descent, either genuine self-

equality — rather than merely an end in itself”. He has more colloquially described the Government’s aims as helping Indigenous people “to carry their own swags”. Arguably, self-empowerment has a more individual than collective focus. In justifying the Cabinet decision, the Minister for Foreign Affairs, Alexander Downer, told the Age that the term “self-determination” might be used to justify the establishment of a separate state for Indigenous peoples. He denied that the decision was a move to appease Federal backbencher Pauline Hanson who had recently described the Draft Declaration as a “treacherous sell out of the Australian people”.’ 176 Gibbs v Capewell (1995) 128 ALR 577, 581. 177 Gibbs v Capewell (1995) 128 ALR 577, 584.

479 identification as an Aboriginal alone or Aboriginal communal recognition as such by itself may suffice, according to the circumstances.178 Clearly the approach taken by Drummond J is the opposite of the intention of Article 1 of the International Covenant on Civil and Political Rights 1966 because it removes any possibility for people to be identified as “Aboriginal” according to customary law. It reflects continuing colonial practice in the sense that the colonial authority is exercising power of the Indigenous people by retaining control over their identity. Further, this exercise of power is by way of a system of science that has been hostile to the culture of the Indigenous people concerned who place little or no emphasis in their culture on “genes” and “biology”, and instead have their own systems for understanding who is recognized in their community.179 In fact, Drummond J had some understanding of the importance of community recognition and expressly mentioned that it may ‘be the best evidence available’ for establishing descent after relegating it as subordinate to the descent test.180 Defenders of the sociobiological judicial approaches discussed above might contend there needs to be an objective way to sort out disputes where an Indigenous community rejects a person claiming to be indigenous.181 This point can be conceded provided the starting point is self-determination together with an understanding that biological criteria (genes, blood, DNA, etc) are not determinative of descent in accord

178 Gibbs v Capewell (1995) 128 ALR 577, 584 - 585. 179 L. De Plevitz & L. Croft, “Aboriginality under the microscope: the biological descent test in Australian law” (2003) 3(1) Queensland University of Technology Law &Justice Journal 1 – 17, at 8: ‘While Aboriginal people may generally be direct descendants of the original inhabitants of their particular part of Australia, their lines of descent are not necessarily biological. Indigenous customary law does not rely on linear proof of descent in the Judeo-Christian genealogical form … An indigenous person from Central Australia, for example, will have many fathers and mothers. A person may have been adopted into a Kinship group where there is no direct or suitable offspring to carry out ceremonial obligations.’ 180 Gibbs v Capewell (1995) 128 ALR 577, 585: ‘Proof of communal recognition as an Aboriginal may, given the difficulties of proof of Aboriginal descent flowing from, among other things, the lack of written family records, be the best evidence available of proof of Aboriginal descent.’ 181 It must be understood that such questions of contested identity are a legacy of colonisation because indigenous people were physically removed from their communities and dispossessed from their land by Whites. Tasmania, the place in question here, provides one of the worst examples of colonial murder and family break-up, facts recognised by the Court in Shaw v Wolf (1999) 163 ALR 205, 217.

480 with the findings of the Special Rapporteur referred to above, and quoted by Brennan J in the Tasmanian Dams case.182 However, any suggestion that there may be opportunistic claims in the absence of an objective test must be rejected on at least three grounds. First, this view incorrectly assumes that cultural criteria are necessarily subjective, and instead, it is more likely cultural approaches will be the closest one might get to any objectivity. Secondly, it is, as already noted contrary to international law, which expects self-determination in the absence of counter-justifications (mere speculation of opportunism is not a counter-justification). Thirdly, it is highly unlikely that opportunistic claims have been or would ever be made – there is no evidence to support the speculation.183

Shaw v Wolf (1999) 163 ALR 205

This was another case where the past impacts of colonialism (this time Tasmanian genocide and the forced break-up of families) had to be confronted in the course of settling a dispute between people asserting, and others denying community recognition for the purposes of ATSIC elections.184 In Shaw v Wolf, the Judge (Merkel J) tried to move beyond the biological approach used in the earlier cases while retaining the emphasis on all three of the usual elements: (1) Descent – family history, (2) Self-identification, and (3) Community recognition. Descent was treated as the key criterion but that alone would not be necessarily be sufficient and hence all three should be considered. The other two elements were probative of descent. Therefore, the descent test is still capable of

182 Senor Hernan Santa Cruz, the Special Rapporteur on Racial Discrimination, report to the United Nations, “Special Study on Racial Discrimination in Political, Economic, Social and Cultural Spheres” (1971) U.N. Document No. E/CN.4/Sub2/307/Rev.1, pp. 12 – 13, quoted in Tasmania v Commonwealth (1984) 158 CLR 1, at 243. 183 Contrary to the suggested possibility mentioned by Drummond J at 584 in Gibbs v Capewell (1995) 128 ALR 577. The only risk might be for fraud and in these situations community recognition would prevent that possibility: L. De Plevitz & L. Croft, “Aboriginality under the microscope: the biological descent test in Australian law” (2003) 3(1) QUT Law &Justice Journal 1, 9. 184 Shaw v Wolf (1999) 163 ALR 205, concerned a dispute about whether certain people were indigenous Tasmanians for the purposes of the Aboriginal and Torres Straight Islander Commission Act 1989 (Cth) because they were not recognised by other Indigenous people.

481 outweighing the other criteria and did so in this case.185 Consequently this means that by virtue of the doctrine of precedent the biological approach is likely to remain the central feature in future cases despite Merkel J’s rejection of the ‘scientific’ approach and his observation that race is a ‘social rather than genetic construct’ and his emphasis on self-identification.186 Arguably, this case: … while painstaking and sympathetic, still falls short of a test of Aboriginality defined by its own cultural traditions.187 This is because, in the case of Ms Oakford, the primary basis for rejecting her Aboriginality was that her documentary evidence of her descent was outweighed by the probative value of the documentary evidence presented against her. Yet Ms Oakford had identified as Indigenous from the age of 12 and had community recognition as an Aboriginal. In fact she had been duly elected to ATSIC office in the course of these elections. Justice Merkel was conscious of this unfortunate outcome commenting that the legislature was the appropriate authority to ensure that in future disputes Aboriginal identity was determined by Indigenous organisations using their powers of self-determination rather than through a statute enacted ‘by a parliament that is not representative of Aboriginal people to be determined by a court which is also not representative of Aboriginal people’.188 Justice Merkel’s approach to this litigation marked a considerable leap forward for this area of law for many reasons. Firstly, Merkel J sought to achieve fairness for the litigants given the significance of “identity” to peoples lives. This was the Judge’s primary objective within the unfortunate sociobiological parameters of the legislation (and the common law and the expectations of White legal institutions without effective Indigenous participation and self-determination).189 Secondly, within the limits of the doctrine of precedent requiring Merkel J to test for descent – which, until this case had been approached in sociobiological terms given the preceding analysis

185 Two of the eleven respondents were held not to be Aboriginal on the basis of descent alone. Though one of these people made no appearance and did not furnish evidence to support his version of descent. 186 Shaw v Wolf (1999) 163 ALR 205, 209 & 268. 187 L. De Plevitz & L. Croft, “Aboriginality under the microscope: the biological descent test in Australian law” (2003) 3(1) QUT Law &Justice Journal 1, at 15. 188 Shaw v Wolf (1999) 163 ALR 205, 268. 189 Shaw v Wolf (1999) 163 ALR 205, 268.

482 on these cases - greater weight was accorded to self-identification as probative of descent rather than the usual approach privileging a biological genealogy as almost determinative of descent. This is evident in that six of the eleven respondents, on the element of descent, were initially found to have an “open” finding either way on the balance of probabilities,190 yet in the final analysis were regarded as Aboriginal because their self-identification tipped the balance in their favour on the question of descent. Thirdly, Merkel J emphasised the purpose of the statute (viz, its remedial and beneficial aims), along with clause 23 of schedule 4 to the Act, requiring that the court: … shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not …191 Fourthly, the devastating impact of colonisation was specifically mentioned as a reason to move beyond an over-emphasis on the descent test. Two reasons for this were that the colonial records were problematic and inconclusive, and the consequences of colonial forced family dislocation (due to murder, disease and policies of assimilation) would render those effects an inevitable and perpetual problem for future generations. Both points were reiterated throughout the judgement.192 Fifthly, it followed that for these reasons, it needed to be accepted that descent, self identification, and community recognition are socially constructed and interdependent concepts.193 Sixthly, greater weight should be granted to oral histories

190 But given the benefit of the doubt that the petitioners had not discharged their burden of proof that the respondent was not of Aboriginal descent according to the Briginshaw principle (viz that in cases with serious or grave consequences for the accused, evidence against them should not be treated lightly): Briginshaw v Briginshaw (1938) 60 CLR 336, followed by Deane & Gaudron JJ at 362, in G v H (1994) 124 ALR 353: ‘if there is an issue of “importance and gravity” … due regard must be had to its important and grave nature’; and cited in this case as the correct approach to be taken, Shaw v Wolf (1999) 163 ALR 205, 215 - 216. 191 Shaw v Wolf (1999) 163 ALR 205, 208, referring to clause 23 of schedule 4 to the Aboriginal and Torres Straight Islander Commission Act 1989 (Cth). 192 Shaw v Wolf (1999) 163 ALR 205, 208, 211, 217-218, 219 – 222. 193 Shaw v Wolf (1999) 163 ALR 205, 211& 212.

483 given the problematic and inconsistent nature of archival and historical evidence.194 Seventhly, each personal case was treated as unique: In my view the current Australian community accepts that the widely divergent and differing histories and experiences of the process by which an Aboriginal person acquires and develops an Aboriginal identity is, inherently, a process personal to and discrete for each individual.195 Lastly, although the case falls short of international law standards, the Judge went as far as possible in this case to uphold the spirit of self-determination. It fell short because international law expects self-determination to be the key criterion unless there are grounds for abandoning that approach.196 The Australian approach remains preoccupied with a descent test, which will need legislative reform in order to satisfy international expectations. As mentioned earlier, a legacy of Shaw v Wolf is likely to be the return of the sociobiological reasoning in questions about Aboriginal identity in the absence of law reform. There are a few reasons for this (both intrinsic and unrelated to the Judgement of Merkel J). The chief external factor is that this was a decision of a single judge of the Federal Court and a Full Court or the High Court may choose a different emphasis. Among the intrinsic factors, were firstly, the Judgement’s continued emphasis and concern with opportunism and “genuineness”.197 Although recognising these concepts were highly subjective, Justice Merkel approached the element of self-identification on the basis that what mattered more were the reasons why a person identified as Aboriginal rather than the fact that there might be objective evidence to that effect.198 This did not disadvantage any of the respondents in Shaw v Wolf but may do so in future cases

194 Shaw v Wolf (1999) 163 ALR 205, 212 & 213. 195 Shaw v Wolf (1999) 163 ALR 205, 211. 196 In Shaw v Wolf self-identification was treated as probative of descent. As discussed above, international standards expect self-determination to be applied except where there are compelling grounds not to use that approach. Shaw v Wolf (1999) 163 ALR 205, discussed the concept of self- determination generally at 210 – 213, and applied it individually to each respondent (discussed elsewhere) in the Judgement along with the other usual criteria (“descent” and community recognition”). 197 Shaw v Wolf (1999) 163 ALR 205, 212. 198 Shaw v Wolf (1999) 163 ALR 205, 212: ‘it is the genuineness of the identification, rather than its content, that is the critical issue. To be genuine it is sufficient that the self-identification is bona fide and that the grounds for it are real and not hypothetical or spurious.’

484 where a judge accentuates that aspect. Also, Merkel J stressed that like “genuineness”, “opportunism” was another slippery concept, but left the door open as to its future place in the test for self-identification because of the need to balance the public interest in ensuring compliance with the Act: “Opportunism”, as such is an inherently difficult criterion to apply to self- identification of aboriginality.199 [And] … the Act mandates, and there is a public interest in ensuring, that only “Aboriginal persons” as defined vote and stand as candidates held under the Act.200 Yet, on his own reasoning, Merkel J observed that there was very little to be lost by the public or gained by an individual falsely asserting to be Aboriginal: The Act and other legislative schemes for the benefit of Aboriginal persons are designed to provide benefits to remove past and present disadvantage by creating special opportunities for Aboriginal persons. In that context opportunism may be no more than taking advantage of the opportunities specifically created for such persons. Once the court is satisfied as to the genuineness of self-identification there is no need to consider the motives for it.201 This was a question of balance for Merkel J, using the Briginshaw principle, but later judges may not be so cautious tempering a fear of opportunism on that basis or with due regard for fairness. Secondly, because Merkel J stated unequivocally that ‘I agree with these conclusions of Drummond J’, this will add weight to that decision when instead the paths taken in each case to reach those conclusions was completely different. In Gibbs v Capewell there was a sociobiological narrative underlying the reasoning of Drummond J. In contrast, Merkel J’s decision went to great lengths to avoid sociobiological reasoning and although it falls short of the international standard of self-identification it represents a huge step in the right direction.

199 Shaw v Wolf (1999) 163 ALR 205, 212. 200 Shaw v Wolf (1999) 163 ALR 205, 215. 201 Shaw v Wolf (1999) 163 ALR 205, 212.

485 Conclusions on cases on Aboriginal identity An analysis of the cases deciding “Aboriginal” identity has provided direct evidence of sociobiology in law. This is because the cases applied anachronistic conceptions of biology (“blood”, genes, DNA, etc) believing it capable of some precision in determining race. The very notion of race was conceived in sociobiological terms in the sense that it was believed that there were discernable innate differences between human beings such that there might be “races”. Yet science has moved well beyond the Victorian view accepting today that there is only one race – the human race. Even where judges tried to avoid such overt sociobiology by turning to social and cultural evidence they necessarily failed because the question they asked was one that presumed various human races. This will continue to be the approach until Australia embraces the concept of self-determination and shares power with Indigenous people on that basis. It follows that Sociobiology is present in law because Australia refuses to relinquish control over Indigenous people by agreeing to self-determination. The nexus between race, power, oppression, colonialism, nation, and sociobiology is clear in this area of law. Of the three opportunities for the legal recognition of Indigenous people to be non-sociobiological (sovereignty, aboriginal identity, and native title), the law fails the test on this occasion. There is direct evidence that the law uses sociobiology to determine Aboriginal identity.

486

Chapter 11

Conclusion: Sociobiology is a dominant ideology in law

Thesis summary

Although the term sociobiology was introduced as a new discipline by Edward Wilson in the 1970s it is really another phase in a long tradition of Western thought that has sought to justify and reify hierarchy and oppression as natural and inevitable. Sociobiology was understood in this thesis in three overlapping ways. Firstly, it includes the modern sciences clustered around E.O. Wilson’s famous 1975 essay Sociobiology: The New Synthesis, and those which arose in the wake of the fierce criticism of sociobiology such as evolutionary psychology and new institutional economics. As Tinker and Young have shown all these disciplines share the ontology that the place of humans in nature and the nature of humans can be discovered by science assuming that people are the product of immutable laws of nature.1 Secondly, sociobiology is also a long historical tradition of scholarly theories about human nature and the place of humans in nature sharing the idea that human hierarchies on the basis of race, gender, sexuality and class are attributable variously to the work of God, nature, biology, and genes. This determinist tradition or ontology includes theories such as monogenesis, polygenesis, social-Darwinism, and eugenics.2 This ontology I have called sociobiology extends beyond the theories of scholars and is deeply entrenched in popular culture. In this sense sociobiology is also, thirdly, an ideology. In Western societies ideologies were once grounded in theology according to Christian decrees and beliefs. Since the Renaissance and the shift from feudalism to capitalism, Western ideologies have

1 T. Tinker, “Panglossian Accounting Theories: The Science of Apologising in Style” (1988) 13 Accounting Organizations & Society 165; R. Young, Darwin’s Metaphor, Cambridge University Press, Sydney, 1985; and R. Young, Whatever Happened To Human Nature?, Process Press, Online Book accessed at http://human-nature.com/rmyoung/papers/paper56.html on 23 May 2007. 2 See Chapter 9 “Sociobiology, Racism, and Australian Colonisation”.

487 become secular.3 A leading secular ideology is sociobiology being a collection of ideas closely linked to the antecedents of capitalism and continuing alongside it to the present day.4 In its secular form sociobiology has gradually gained widespread acceptance in the West ever since Darwin articulated evolutionary theory to explain what the theological determinism of the Bible with its literal interpretation of the Book of Genesis was unable to explain. Therefore, these three senses of sociobiology (as science, as an ontological tradition, as ideology) overlap because it is in each sense the process of using the authority of privileged “knowledge” about nature to justify action and institutions that have the effect of creating and retaining hierarchy and oppression. Yet, contrary to its most scientific and therefore authoritative sense (“Sociobiology”, the science), human hierarchy and oppression are not natural and inevitable consequences of human nature, human biology, genes or evolution. There is virtually no evidence for the view that capitalist society is the result of our genes. The entire biological determinist thesis hinges on what little is known about early human ancestors (the scant evidence supporting the autocatalysis model or hunter-gatherer hypothesis) together with two plausibility arguments (kin selection theory and reciprocal altruism), and unrealistic hope and expectation about what the human genome project might find in the future. Although popular, the hunter-gatherer hypothesis struggles to gain widespread scientific acceptance and is criticised for lacking crucial evidence and because it is constructed according to anthropocentric (white western male heterosexist middle-class) values. These same problems face kin selection theory and reciprocal altruism rendering sociobiology unsubstantiated and at best controversial. In addition, the human genome was mapped in 2003 and no gene or cluster of genes have since been declared responsible for class structure, the nuclear family, gender stereotypes, heterosexuality or homosexuality, nor connecting ability or culture with skin colour.5 Given that cancer and disease cannot be reduced to genetic explanations

3 J. Habermas, Toward A Rational Society: Student Protest, Science, and Politics, Beacon Press, Boston, 1971, 94 – 96. 4 R. Young, Darwin’s Metaphor, Cambridge University Press, Sydney, 1985. 5 As Trent points out humans share about 74% of their genes with the worm Caenorhabditis elegans, and humans have about twice the number of genes as a fruit-fly and only slightly more than a mouse,

488 because genes have a dialectical relationship with their environment, it is highly unlikely that genes could ever explain complex human behaviours. What the human genome project has shown, amongst other things, was that individual people share 99.9% of the same genetic code, leaving just 0.01% to account for the great diversity in superficial appearance and the extreme cultural differences between humans.6 The possibility that human behaviour and institutions in capitalist societies could be reduced to genetic explanations is made all the more remote when alternative explanations emphasising ethnographic diversity, human agency, structure, culture, and learning, are taken into account. Still, the sociobiological view that humans are the product of their innate constitution lingers. It has persisted since at least ancient Greek civilisation. This presents a significant paradox. If sociobiology lacks credibility, why does it persist? Why is it ubiquitous? The answer to these questions is complex and was addressed by Marx. Since Marx scholars have debated why capitalism remains relatively stable given that it is hierarchical and oppressive. Marx contended that stability persists due to a combination of force, dull compulsion and ideology. Today, orthodoxy holds that force is unnecessary due to the emergence of freedoms and rights fundamental to the operation of a consumer society. Ideology is also said to be redundant in a society where people are better educated and informed and is seen instead as a legacy of Marxist elitism.7 Instead, neo-liberals recycle Marx’s notion of dull compulsion. They contend that people understand and accept capitalism as the best possible system among alternatives and in an increasingly complex and inter-dependent society there are more rewards and incentives for acquiescing to the system than there are opportunities to transform it free of great personal costs or risking penalties. This is the ‘dull compulsion hypothesis’.8

per R.J.A. Trent, “Milestones in the Human Genome project: genesis to postgenome” (2000) 173 Medical Journal of Australia 591-594, pp. 1 - 7, at 5; and “The State of the Genome 2001”, ABC Science Online, pp. 1 – 4, at 1. 6 AAAS, “Scientists Report on the Human Genome Sequence” press release issued by the American Association for the Advancement of Science on 10 February 2001, pp. 1 – 4. 7 It is seen as “Marxist elitism” in the sense that only Marxists can truly see through the unjust nature of capitalism while everyone else is duped by its hope and ideals. 8 N. Abercrombie, S. Hill & B. Turner (eds.) Dominant Ideologies, Routledge, London, 1992.

489 However, this thesis has shown that ideology continues to be relevant. Regardless of its appeal as an explanation, the dull compulsion hypothesis does not mean that ideology and force have become anachronisms. Both still play an important role in keeping in place hierarchy and oppression.9 This thesis argues in Chapters 6 to 10 that capitalist society is relatively stable despite its needless hierarchy and oppression due to a mix of force, dull compulsion and ideology. In particular, ideology remains relevant in the sense that human hierarchy and oppression are not natural or inevitable and are instead socially constructed through human action and institutions, including law. As social constructions, hierarchy and oppression must continually be justified as natural and inevitable otherwise they are vulnerable to change and destabilisation. It was argued here that a dominant justification for hierarchy and oppression is sociobiology because it naturalises and reifies human action and institutions as being determined by biology. As a legal justification sociobiology is defined as any discourse purporting to be based on “nature”, biological or evolutionary theories and “facts” to justify hierarchy and domination. It is also ideological in the sense that institutions are reified as natural when they are instead socially constructed. Unlike other ideologies, sociobiology is a dominant ideology because it is used to justify hierarchy and oppression in all the usual categories - class, gender, sexuality and race10 – and there is evidence of this in law.11 The argument is novel to the extent that sociobiology is not a dominant ideology in a conventional sense - as a cause of stratification - but in the sense that it is a dominant thematic excuse; whether or not

9 Force is no longer as significant as it once was but it remains relevant. If force was no longer necessary then there would be no political prisoners in the West, no police at picket lines or factory closures, and no institutions responsible for maintaining order beyond that necessary for a “Lockean” liberal “night-watchman” state. 10 That is to say, those forms of domination commonly discussed in the literature which includes, class, race, gender, sexuality, and disability. Of course these are not the only categories of hierarchy and oppression. They are the usual ones referred to in the literature. For a condemnation of this see further: T. J. Gerschick, “Toward a Theory of Disability and Gender” (2000) 25(4) Signs 1263. In addition, it goes without saying not all forms of hierarchy and domination are justified by sociobiology. For the sake of space, I have elected to focus on class, gender, race and sexuality to make the argument. Therefore “disability” has been excluded only for reasons of space. 11 Evidence for the role of sociobiology in law was provided in Chapters 7 to 10.

490 those excuses are actually accepted.12 Nor is it posited as a dominant ideology in the sense that it is a top-down ideology imposed on, or duping subalterns. Rather, sociobiology is dominant because it supplies excuses for the naturalisation of human action in general and because it is more amenable to application by the powerful than the disempowered by virtue of that power.

Sociobiology as an ideology in law

Sociobiology operates as a legal ideology in three inter-related ways. Firstly it supplies assumptions, stereotypes, and axioms incorporated by decision-makers when exercising discretion. The decision-maker in this sense need not be aware they are reproducing hierarchy or oppression or that they are justifying a decision according to an ideology; provided the effect of the exercise of discretion is to reproduce hierarchy and oppression and it is justified with sociobiological stereotypes. An example of this sort of reasoning might be the decisions in Re Kevin13 and Re Patrick14 where the judge in each case was conscious of discrimination and went to great lengths to avoid using stereotypes. However, both judges did stereotype on the basis of gender in Re Kevin, and on sexuality and gender in Re Patrick.15 There is no suggestion here that the judges in either case were biased.16 In both cases there is evidence of apophasis

12 H. Collins, Marxism and Law, Oxford, Oxford Uni Press, 1984, 41; V. Lenin, “Frederick Engels Biography”, in Lenin Collected Works, Moscow, Vol. 2, 1895, pages 1 – 9, at 2; and N. Poulantzas, Political Power and Social Classes, Translation Editor T. O’Hagan, Verso, London, 1982, 13. Ideology in this sense is not independent of “dull compulsion” and force, it works with them. This accords with Marxism which treats the stratification of capitalist society as a combination of force, the mode of production, and ideology. Dull compulsion and ideology are discussed in Chapter 6 “Sociobiology and Law”. 13 Re Kevin and Jennifer (validity of marriage of transsexual) [2001] FamCA 1074. 14 Re Patrick (An Application Concerning Contact) [2002] FamCA 193. 15 Re Kevin is discussed in Chapter 7 and Re Patrick is discussed in Chapter 8. 16 S. Berns, To Speak As A Judge: Difference Voice and Power, Ashgate, Sydney, 1999, 11. As Berns points out bias is not necessary when: ‘Adjudication begins from uncertainty, from ideas, images and even, perhaps, more or less unthought intuitive responses, responses drawing upon beliefs and convictions lying so far below the surface of character that they are often unacknowledged.

491 rhetoric which means a ‘denial of an intention to speak of something which is at the same time hinted or insinuated.’17 Secondly, sociobiology can be used to naturalise a decision. Here sociobiology is intended as a justification for a decision because it is seen by the decision-maker as being authoritative even where it is obviously incorrect. An example of this is the doctrine of terra nullius which prevailed as good Australian law from 1788 through to 1992 when the Mabo case finally rejected its application to Australia.18 The doctrine of terra nullius was ideological because it was a legal excuse used to deny Indigenous people their sovereignty and provided the basis for their colonisation and dispossession. It naturalised a colonisation for more than two centuries. It was sociobiological because terra nullius was based on a family of theories about the place of humans in nature and the nature of humans on the basis of race.19 Thirdly, sociobiology can be a legal ideology in the form of reification. Reification is the process whereby socially constructed phenomena appear as though they are natural therefore suggesting inevitability. If it is possible to demarcate these concepts, the slight difference between naturalisation and reification is that the former justifies and exculpates, while the latter masks or obscures a better understanding. Two examples of reification are orthodox conceptions of markets and western nuclear families. Both are frequently touted as natural institutions masking or obscuring that they are structured by a plethora of laws and are maintained by government action on a number of fronts.20 This is why sociobiology is critical to an understanding of domination.21 No other ideology is capable of providing justifications for domination that cuts across class, race, gender, and sexuality. Sociobiology does this by treating hierarchy and oppression as the inevitable outcomes of natural processes whether, for example, the

17 The Macquarie Dictionary, Revised 3rd ed, Macquarie University, 2005, 83. 18 Mabo v Queensland (1992) 175 CLR 1. 19 This was discussed in depth in Chapter 9 “Sociobiology, Racism, and Australian Colonisation”. 20 These two arguments were discussed in Chapters 6 “Sociobiology and Ideology” and 7 “Sociobiology, Family, Gender, and Law”. 21 The strength of my assertion that sociobiology provides a justification for domination in all its forms is that sociobiology both justified and reflected the rise of capitalism: R. Young, Darwin’s Metaphor, Sydney, Cambridge University Press, 1985; cf. A.O. Hirschman, The Passions and the Interests: Political Arguments for Capitalism before Its Triumph, Princeton University Press, Princeton, 1977.

492 result of a “struggle for survival” or some other “evolutionary process”. This is what sociobiology does. It provides biological/evolutionary reasons why people experience particular lives while others do not. In doing so it is a naturalising ideology common to all forms of hierarchy and oppression.22

22 A. Giddens, Central Problems in Social Theory: Action, Structure, and Contradiction in Social Analysis, MacMillan, London, 1979, 195 & 196. Giddens makes no reference to sociobiology but does make the point that the most pervasive of all ideology is that which “naturalises”.

493

494 Cases

In the Marriage of A and J (1995) 19 Fam LR 260 Amalgamated Meat Industry Union of Employees v Mudginberri Station Pty Ltd (1985) 61 ALR 417 Amalgamated Meat Industry Union of Employees v Mudginberri Station Pty Ltd (1987) 74 ALR 7 Attorney-General v Brown (1847) 1 Legge 312 Attorney General (Cth) v Queensland (1990) 94 ALR 515 B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676; (1997) FLC §92-755 Brown v Board of Education 347 US 483 (1954) Buck v Bell C v C (A Minor) (Custody: Appeal) [1991] 1 Family Law Reports No 3, 223 Cherokee Nation v Georgia Cooper v Stuart (1889) 14 App Cas Corbett v Corbett [1971] P 83 Dollar Sweets Pty Ltd v Federated Confectioners’ Association of Australia [1986] VR 383. Gibbs v Capewell (1995) 128 ALR 577 Green v R (1997) 191 CLR 334; (1997) HCA 50 ( 7 Nov 1997). Johnson v McIntosh (1823) 21 US 240; (8 Wheat. 543) JM v QFG [2002] 1 Qd R 373 Re Kevin and Jennifer (validity of marriage of transsexual) [2001] FamCA 1074; 28 Fam LR 158 Mabo v Queensland (1992) 175 CLR 1; 107 ALR 1 Maritime Union of Australia & Ors v Patrick Stevedores No1 Pty Ltd & Ors (1998) 153 ALR 602 (North J) Mason v Tritton [1994] 34 NSWLR 572 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 Mudginberry Station Pty Ltd v Amalgamated Meat Industry Union of Employees (1985) 61 ALR 280 Queensland v Wyvill (1989) 90 ALR 611 Re Mark [2003] FamCA 822 Re McBain; Ex parte Australian Catholic Bishops Conference and Another (2002) 188 ALR 1. McBain v Victoria (2000) 177 ALR 320; [2000] FCA 1009

495 Patrick Stevedores Operations No2 Pty Ltd & Ors v Maritime Union of Australia & Ors (1998) 153 ALR 626 (FFC) Patrick Stevedores Operations No2 Pty Ltd & Ors v Maritime Union of Australia & Ors (1998) 195 CLR 1 (HC) Re Patrick (An Application Concerning Contact) [2002] FamCA 193; (2002) 28 Fam LR 579 Pearce v South Australian Health Commissioner (1996) SASR 486 QFG & GK v JM (1999) EOC 92-902 Salomon v Salomon & Co Ltd [1897] AC 22 Shaw v Wolf (1999) 163 ALR 205 Tasmania v Commonwealth (1984) 158 CLR 1 Thomas S. v Robin Y., 209 A.D. 2d 298, 618 N.Y.S. 2d 356 (November 17, 1994) U v U [2002] HCA 36 (5 September 2002); (2002) 191 ALR 289 Western Australia v Ward & Others (2002) 191 ALR 1 Wik Peoples v Queensland (1996) 187 CLR 1 Worcester v Georgia Yanner v Eaton (1999) 166 ALR 258 Yorta Yorta v Victoria [1998] FCA 1606 Yorta Yorta v Victoria (2001) 180 ALR 655 (FFC) Yorta Yorta v Victoria (2002) 194 ALR 538 (HC)

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