3would be a cruel joke or at least a sad irony if good science were used to derail theprograms designed to remedy the conditions that bad science helped to create. The factthat the race concept has no basis in
does not make it less real; in fact (willful)misunderstanding of the biology is one of the causes of much of the misery attendant onthe history of the cultural phenomenon of race.Nor is it my aim to change outcomes on particular legal issues,
but rather to change theset of background assumptions that people bring to public policy issues. As the Realistsmade clear, lawyers are not logic engines, but
so this story should affect the waythat lawyers think about race, human variation, and human uniqueness. It is not new toscience that race is not biologically crucial or maybe even relevant. And even some partof the legal community knows it as an abstract proposition. But there is all the differencein the world between a proposition on the one hand and the detailed, textured story of which it is a part on the other.
It is one thing to believe that race is merely a culturalconstruct, but quite another to understand the biology and population genetics that justifythat conclusion. The difference, of course, is in psychological impact. In this article, Ihope to expand the proposition into the story and to change the way lawyers, and peoplegenerally think about humanness, human categorization and, perhaps, categorizationitself.Race is, of course, one way of treating the variety within the human species. The mostrudimentary way to handle a diverse phenomenon is to divide it into discrete groups, andthat was the model adopted by early theorists of race. That model had its intellectualorigin in the Great Chain of Being, a concept rooted in the union of Christian biblicalbelief and classical philosophical thought. The idea was that the earth’s creatures werearranged in a hierarchy according to the essence of each, and, further, that the hierarchyrepresented a progression toward greater complexity and worth.
There are particular problems, legal and social, where the biology of race matters: therights to ancestral remains, identification of the dead and living (forensic anthropology),adoption, where, for good reasons or not, prospective parents wish to choose based onparticular phenotypes or placing agencies use it to determine suitability of prospectiveparents. On the conflict over the reality of race among forensic anthropologists, seeDiana B. Smay and George J. Armalagos,
Galileo Wept: A Critical Assessment of the Useof Race in Forensic Anthropology
, 9 T
. 19, 20 (2000) (hereafter cited asSmay and Armalagos).
Jerome N. Frank, Law and the Modern Mind (1931).
Old Chief v. United States, 519 U.S. 172 (1997).
Arthur O. Lovejoy, T
(1936); discussed in Mark Ridley,
44 (2001) (hereafter C
). The idea owed much toPlatonic essentialism and the Aristotelian notion of “telos” or final cause,” (“that for thesake of which”), which followed a model of life on earth as a progression toward a finaland most perfect state. See also Steven M.
The Legal Thinghood of Nonhuman Animals
Of Race and Immutability
, 46 UCLA
. 1375 (1999) (hereafter cited as Braman). On the fallacyof essentialism in biological taxonomy, see Stephen J. Gould, F