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Sociobiology and Law 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 2 Abstract The place of humans in nature 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 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 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. 4 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 5 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. 7 8 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, evolution, 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.
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