It Ain't Necessarily So: The Misuse of "Human Nature" in Law and Social Policy and the Bankruptcy of the "Nature-Nurture" Debate

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Abstract

Debate about legal and policy reform has been haunted by a pernicious confusion about human nature: the idea that it is a set of rigid dispositions, today generally conceived as genetic, that is manifested the same way in all circumstances. Opponents of egalitarian alternatives argue that we cannot depart far from the status quo because human nature stands in the way. Advocates of such reforms too often deny the existence of human nature because, sharing this conception, they think it would prevent changes they deem desirable. Both views rest on deep errors about what kind of thing a "nature" is and how genetics works. Human nature, like the nature of anything else, is a set of potentials to behave certain ways in given environments, not a nonsocial genetic something that inevitably produces the same result in any environment. To say that existing inequalities are due to genetics, and therefore inalterable, ignores that genetic propensities may be manifested differently in different environments. Heritability has meaning only relative to an environment and a population, and implies nothing about inevitability. A better sort of inegalitarian argument is that a proposed reform, given our nature, would be too costly even if possible. However, this sort of argument is rarely supported by evidence and generally ignores the costs of existing inequalities. But egalitarians err in supposing that, if behavior is unconstrained by biology, the status quo is easily alterable. The environment may be extremely hard to change. Legal and policy debate should adopt a correct understanding of human nature as a set of propensities and ask of any proposed reform agreed to be otherwise desirable, what and how alterable are its causes: genetic, environmental, or more accurately, both.

INTRODUCTION: "HUMAN NATURE" AND THE LIMITS OF THEPOSSIBLE ................................... 188

I. THE ARGUMENT FROM HUMAN NATURE .................... 195

A. A Brief Survey of the History of the Argument .......... 195

i. The Argument in Philosophy, Religion, and Science .....195

ii. Society, Policy, and Law ................................ 200

B. Justifications and Excuses .............................205

C. Egalitarian Objections to Human Nature ......... 207

II. THE ABSTRACTIVE CONCEPTION AND UNCHANGEABILITY .................. 210

A. The Incoherence of the Abstractive Conception .................. 210

B. Nature or Nurture: A False Dichotomy .................. 215

C. The Fallacies of Genetic Determinism .......... 216

i. Heritability and the "Contribution of Nature" ............ 216

ii. Heritability Depends on the Environment .............. 219

iii. Our Acquired Natures .............. 221

D. The Argument from Universality ............222

E. Changeability and the Environment .......... 224

III. UNACCEPTABLE COSTS AND THE LIMITS OF NATURE ........ 227

A. Tradeoffs, Costs, and Benefits ........... 227

B. Would Egalitarianism Make Us Miserable? ........... 228

C. Would the Costs of Egalitarianism Be Too High? ........ 230

IV. ALTERNATIVE EXPLANATIONS ............................ 232

A. The Need for Comparative Analysis .............................. 232

B. Hobbesean Behavior and Market Society .................. 233

C. Women 's Subordination in the Commonwealth of Men........ 235

CONCLUSION .......................................................... 237

INTRODUCTION: "HUMAN NATURE" AND THE LIMITS OF THE POSSIBLE

The issue of human nature looms in the background of practical policy and legislative proposals for reform of social institutions. It plays an important role in the structure and interpretation of the law itself.1 If we knew what human nature was, then plausibly, we would know something about the best sort of laws and society to have. …