Can Israel's Declaration of Independence Resolve Israel's Current Crisis?

2023 has been an important year for thinking about Israel.  First, since 2023 is the 75th anniversary of the establishment of Israel as a Jewish state as announced in Israel's Declaration of Independence in 1948, there has been a lot of discussion of the Declaration and of how it might illuminate the history of Israel's successes and failures.  This discussion has been deepened by the publication of two books--Neil Rogachevsky and Dov Zigler's Israel's Declaration of Independence: The History and Political Theory of the Nation's Founding Moment (Cambridge University Press) and Daniel Gordis's Impossible Takes Longer: 75 Years After its Creation, Has Israel Fulfilled Its Founders' Dreams (HarperCollins).  Rogachevsky and Zigler offer a history of how the Declaration was written and how it has been interpreted.  They have summarized their argument in an article for the Jewish Review of Books.  Gordis uses the Declaration as a statement of the high standards for judging whether Israel has fulfilled the hopes of its founders.

A second reason for why 2023 has been a year for thinking about Israel is that it has been a year of crises in Israel--both domestic and international.  The domestic crisis arose after the election in November 2022, when Benjamin Netanyahu managed to put together a ruling coalition of the Likud party with several far-right parties, which looked to many people to be an extremist government that might destroy Israel's liberal democracy.  

The first proposal from the new government was to have the Knesset enact a series of laws for "judicial reform" that would effectively weaken if not completely deny the power of the Supreme Court to overturn laws and administrative policies that seemed to violate human rights.  Proponents of this proposal said it was necessary to protect the democratic rule of the majority against the excessive power of unelected judges.  But opponents said this would eliminate the institutional checks and balances that protect individual rights from being infringed by otherwise unchecked legislative or executive power.  The opponents organized mass public protests and strikes over many months that threatened to paralyze the social and economic life of the country.  Perhaps most disturbing was that some military reservists said they would refuse to show up for military service.

In his Afterword to his book, Daniel Gordis warned that this showed the danger coming from "the most extreme government in Israel's history" (290).  Gordis also coauthored an essay--"An Open Letter to Israel's Friends in North America"--asking North American Jews to join the protesters in Israel in opposing the government's threat to Israeli liberal democracy.

Neil Rogachevsky has joined Gordis in opposing the proposals for judicial reform.  Far from supporting the rule of the majority, these proposals, Rogachevsky argues, actually show the tyranny of the minority, because Netanyahu's government has promoted these proposals only to satisfy the demands of the Haredi ultra-Orthodox religious minority parties in his coalition who want to protect their special legal privileges against the Supreme Court's claim that this violates the principle of equality of rights.  In 2012, the Supreme Court overturned a law that secured the deferment of military service for Haredi students because this violated the principle in the Declaration of Independence that Israel "will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race, or sex."

Then, however, on October 7, this intense debate over the judicial reform proposals was quieted by the attacks on Israel launched by Hamas from Gaza.  Netanyahu has assembled a new coalition of parties that normally oppose one another that are now part of a "national unity" government in wartime.  

So now, Israel faces the second crisis of 2023--a bloody war against Hamas that renews the endless conflict between Israelis and Palestinians. This conflict has lasted for over a hundred years because there seems to be no peaceful resolution between the Zionist demand for a Jewish state in which Palestinian Arabs will always be a minority and Jews the majority and the Palestinian claim that all of Palestine belongs to the Palestinians.

Both of these crises point to the fundamental problem of how to achieve the equality of natural rights proclaimed by the Israeli Declaration of Independence in the circumstances of the Middle East.  How can there be equality of rights for all ethnic and religious groups if the ethnic identity of Israel as a Jewish state must necessarily be Jewish, thus favoring Jews over non-Jews?  If the ethnic identity of Jews depends on the Jewish religion, does that require some form of Jewish theocracy?  Or must secular Jews have equal rights with religious Jews?  In other words, if "the People" consent to government to secure their natural rights, who are "the People"?  What makes a People a People?  And who has the authority to interpret and enforce those equal natural rights of the People?

In some future posts, I will consider whether the Israeli Declaration of Independence suggests answers to those questions, and thus could resolve the crises that Israel now faces.

Constitutional Originalism Defeats Trump in the Colorado Supreme Court Ruling

 A few months ago, I wrote about how some conservative lawyers have argued that the original meaning of the 14th Amendment in Section Three disqualifies Donald Trump from any office under the United States because he engaged in insurrection on January 6th, 2021.  Yesterday, the Colorado Supreme Court agreed with this argument--in the case of Anderson v. Griswold--in declaring that Trump cannot appear on the Colorado Republican presidential primary ballot in 2024.  Now, surely, the U.S. Supreme Court will have to rule on this case.

Here's the language of Section Three:

"No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.  But Congress may by vote of two-thirds of each House, remove such disability."

A group of Colorado electors eligible to vote in the Republican presidential primary filed a petition in the Denver District Court invoking Colorado's Election Code and asking that the court rule that Trump may not appear on the Colorado Republican presidential primary ballot.  Since Trump "engaged in insurrection" against the Constitution, and thus violated his oath to support the Constitution, they argued, he is disqualified under Section Three from holding any office under the United States. 

Remarkably, while the District Court decided that Trump had indeed engaged in insurrection on January 6th, it also decided that the Section-Three disqualification from future public office did not apply to Trump for three reasons.  (1) The Presidency is not an "office, civil or military, under the United States."  (2) The President is not an "officer of the United States."  And (3) the presidential oath set forth in Article II of the Constitution is not an oath "to support the Constitution of the United States."

The 4-to-3 majority of the Colorado Supreme Court persuasively argues that while the District Court was right to see that Trump was an insurrectionist, it was wrong in claiming that Section Three did not apply to him.  The language of the Constitution makes it clear that the Presidency is an "office" under the United States, that the President is an "officer" of the United States, and that the President's special oath to "preserve, protect and defend the Constitution of the United States" is an oath to "support the Constitution."

Since the Colorado Supreme Court's decision rests on an "originalist" interpretation of the Constitution, we will see whether the originalists on the U.S. Supreme Court are willing to uphold this originalist jurisprudence in deciding against Trump.

The dissenters on the Colorado Supreme Court do have one good argument against the majority's decision--that the Colorado Election Code does not give courts the authority to adjudicate Section Three challenges to the qualifications of presidential candidates.  But the fact that the Colorado Election Code does require identifying the "qualified candidate" in a presidential primary surely opens it up for voters to challenge the qualifications of a presidential candidate under Section Three.

It is notable that the majority decision quotes from a decision by Neil Gorsuch in a Federal Circuit Court case in Colorado--before he became a Supreme Court Justice--in which he upheld the authority of the Colorado Secretary of State to exclude a naturalized citizen from the presidential ballot.  Gorsuch said that it is "a state's legitimate interest in protecting the integrity and practical functioning of the political process" that "permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office" (32).  Presumably, the standards for "constitutionally prohibited from assuming office" must include not only the minimal qualifications for the President in Article II but also the disqualification of insurrectionists in Section Three of the 14th Amendment.  To be consistent with this earlier opinion, Gorsuch will have to rule against Trump.

If the U.S. Supreme Court upholds the Colorado Supreme Court's originalist reading of the Constitution as disqualifying Trump from holding public office, that will confirm my argument often made on this blog that Trump's biggest mistake as President was allowing the Federalist Society to dictate his nominees to the federal bench, because judges who follow the original meaning of the Constitution will not rule in Trump's favor.

There are, however, some plausible arguments that SCOTUS could use to overturn the Colorado decision.  For example, one of the dissenters in the Colorado decision (Justice Samour) argued that the expedited procedures in the Election Code did not give President Trump adequate due process of law in that his lawyers did not have enough opportunity to contest the judgment of the majority that Trump had engaged in insurrection.  SCOTUS could point out that Section One of the 14th Amendment says that no State shall "deprive any person of life, liberty, or property, without due process of law."  It could be claimed that the Colorado Supreme Court has deprived Trump of his liberty to run as a candidate for the Presidency without sufficient due process of law.

But the court is unlikely to reach that conclusion.  This is not a criminal case in which Trump is being charged with the federal crime of insurrection.  If he were, he would have all the procedural requirements of due process.  Being disqualified to serve in public office under Section Three of the 14th Amendment is not a criminal punishment but a constitutional punishment for those who have violated their oath to support the Constitution by engaging in insurrection.  The congressional Select Committee to Investigate the January 6th Attack on the U.S. Capitol conducted an elaborate fact-finding investigation that concluded that Trump was ultimately responsible for the insurrection.  The Colorado Supreme Court decided that that was admissible in court to determine Trump's disqualification under Section Three.

In the Colorado decision, the four justices in the majority were Monica Marquez, William Hood, Richard Gabriel, and Melissa Hart.  The three in the minority were Brian Boatright (Chief Justice), Carlos Samour, and Maria Berkenkotter.  The three in the minority all graduated from the University of Denver Law School.  The four in the majority graduated from Yale Law School (Marquez), the University of Pennsylvania Law School (Gabriel), the University of Virginia Law School (Hood), and Harvard Law School (Hart).  All were appointed by Democratic governors.

In Colorado, the state constitution requires that in appointing justices to the court, the Governor must choose between three individuals recommended by a bipartisan commission.  As a result, the Colorado Supreme Court is generally perceived as much less politically partisan than is the U.S. Supreme Court.  After their first two years on the court, justices must run in a state-wide retention election.  Thereafter, they must run every 10 years for retention by the voters.  So, it is not right to identify them as "unelected judges," as some critics have.

A Darwinian Liberal Defense of Israel

                                     The History of the Israel-Palestine Conflict in 11 Minutes

The fighting between Hamas and Israel has renewed the endless debate over the Israel-Palestine conflict.  The argument on the Palestinian side of this debate is well stated by Rashid Khalidi in The Hundred Years' War on Palestine (2020).  On the side of Israel, the best book is Alan Dershowitz's The Case for Israel (2003).  One of the best histories of the Arab-Israeli conflict--using annotated maps--is Martin Gilbert's Routledge Atlas of the Arab-Israeli Conflict (10th edition, 2012).  Although it is generally historically accurate, Gilbert's book is slanted to the side of Israel.

The fundamental issue here is suggested by the subtitle of Khalidi's book: "A History of Settler Colonialism and Resistance, 1917-2017."  Is it true that the Palestinians fighting against Israel have been resisting the settler colonialism of the Israeli Jews who have taken Palestinian land by violent conquest?  Or is it rather the case that the Israelis have been fighting in defense of Israel's right to exist against Arab terrorists who want to destroy Israel?

I will offer a Darwinian liberal argument for why Israel is indeed defending its natural and historic right to exist as a state against Arab terrorist attacks that have no moral justification.

HERZL AND ZIONISM

This all began over a century ago, at the end of the 19th century, with the emergence of the Zionist movement, which sought to establish a Jewish homeland in Palestine, where the ancient Jews had lived for long periods as an independent state before they were conquered by the Romans and then defeated in a revolt against Roman rule, 66-73 AD.  

During the six centuries after the Roman conquest, some Jews remained in Palestine.  In 637 AD, Jerusalem was conquered by the Muslim Arabs.  From 637 to 1099, the Arabs were generally tolerant towards their Jewish subjects, although the Jews were often mistreated.  From 1099 to 1291, the Christian Crusaders persecuted and killed the Palestinian Jews; and the Jews fought alongside the Arabs against the Crusaders.  In 1291, the Muslim Mamluks expelled the Crusaders and ruled until 1516.  During this time, many Jews came to Palestine to escape from persecution in Christian Europe.

After 1517, Palestine was under the colonial rule of the Ottoman Turks until they were defeated by the British in World War I.  Although the Jews were often mistreated by the Ottoman Muslims, the Jews of Europe continued to move to Palestine because the European Christians persecuted and expelled the Jews.  Between 1880 and 1914, over 60,000 Jews entered Palestine, mostly from Eastern Europe and Russia.  The Jews purchased their land, often wasteland, from European, Turkish, and Arab landlords.  In 1909, some Jews founded the first entirely Jewish town--Tel Aviv--on the sandhills north of Jaffa.

In 1896, Theodor Herzl's The Jewish State was published in Germany and Austria.  (Herzl coined the term "Jewish state.")  This became the manifesto of the Zionist movement with Herzl as its leader.  He convened the first international Zionist conference in Basel, Switzerland, in 1897.  David Ben-Gurion, Israel's first prime minister, wrote a short biography of Herzl showing how the establishment of Israel as a state in 1948 was the fulfillment of Herzl's vision.

Herzl said that the Jews would want "sovereignty over a strip of territory" in Palestine, and "we should there form a portion of the rampart of Europe against Asia, an outpost of civilization as opposed to barbarism" (Herzl 2019, 11, 43).  This is the language of European colonization.  Remarkably, Herzl never mentions the Palestinian Arabs as possibly resisting Jewish "sovereignty" over their territory.  Actually, Herzl knew very little about Palestine.  His one and only visit to Palestine was in 1898, two years after the publication of his book.

Herzl was a secular Jew.  And he promised that the Jewish state in Palestine would not be a theocracy, because the Jewish priests would have no political power.  "Every man will be free and undisturbed in his faith or his disbelief as he is in his nationality.  And if it should occur that men of different creeds and different nationalities came to live amongst us, we should accord them honorable protection, and equality before the law.  We learned toleration in Europe" (61).  But notice his oddly hypothetical language--"if it should occur that men of different creeds and different nationalities came to live amongst us"--as if Palestine were not already populated by a Muslim majority.

As Khalidi indicates, Herzl's diary shows that he had actually begun to think about the need to move the native Arab Palestinians out of their land.   In 1895, he wrote:

"We must expropriate gently the private property on the estates assigned to us.  We shall try to spirit the penniless population across the border by procuring employment for it in the transit countries, while denying it employment in our country.  The property owners will come over to our side.  Both the process of expropriation and the removal of the poor must be carried out discreetly and circumspectly" (Khalidi, 4).

Khalidi has found an exchange of letters between Herzl and Khalidi's great uncle--Yusuf Diya al-Din Pasha al-Khalidi--that shows how Islamic leaders in Palestine feared an attempted Jewish conquest of their land.  Yusuf Diya had been an Ottoman government official in various positions--including mayor of Jerusalem.  On March 1, 1899, he sent a seven-page letter to the French chief rabbi, with the hope that it would be passed on to Herzl.  And, indeed, Herzl replied to him on March 19.

Yusuf Diya wrote about his admiration for Judaism and his recognition of the persecution suffered by the Jews in Europe.  He saw that Zionism was "natural, beautiful and just," and, "who could contest the rights of the Jews in Palestine?  My God, historically it is your country!"

But then he warned that trying to establish a sovereign Jewish state in Palestine would create conflict between Christians, Muslims, and Jews in Palestine.  Although it was right for the Zionists to find a homeland somewhere in the world, Palestine was not the place because "Palestine is an integral part of the Ottoman Empire, and more gravely, it is inhabited by others."  For that reason, it would be "pure folly" for Zionism to try to take over Palestine.  He concluded with a plea: "in the name of God, let Palestine be left alone" (Khalidi, 4-5).

In his reply, Herzl ignored this plea and the warning that the Arab Palestinians would resist being ruled in a Jewish state.  Herzl reassured Yusuf Diya that the native Palestinian Muslims would benefit from Jewish immigration: "It is their well-being, their individual wealth, which we will increase by bringing in our own. . . . In allowing immigration to a number of Jews bringing their intelligence, their financial acumen and their means of enterprise to the country, no one can doubt that the well-being of the entire country would be the happy result."

Here Khalidi sees the condescending arrogance of every colonial settler movement that will try to force an indigenous people to give up their homeland and be ruled by another superior people.

THE CASE FOR ISRAEL AND THE TWO-STATE SOLUTION

To defend Israel against the charge that Zionism aimed to establish a colonialist, imperialist Jewish state that would displace the Palestinians and colonize all of Palestine, one must reject two extremist positions.  Khalidi rightly rejects the extremist Zionist slogan that Palestine was "a land without a people for a people without a land," because this denies the fact that Palestinian Arabs were roughly 95 percent of the inhabitants of Palestine in 1914 (11).  But he should also reject the extremist Palestinian claim that in 1914, there were a Palestinian state and a Palestinian people that were displaced by a Jewish violent conquest that established the state of Israel, and therefore the state of Israel has no right to exist.

Between these two extremist positions, the reasonable and fair resolution of the Palestinian/Israel conflict would be dividing the land of Palestine into two states--one predominantly Arab and the other predominantly Jewish.  But while Jewish Israeli leaders have repeatedly agreed to this solution, Muslim Arabic leaders have repeatedly rejected it.

The Jews who immigrated to Palestine before World War I were not carving a Jewish homeland out of a pre-existing Palestinian state.  There had never been a Palestinian state in this area since the Jews had their state there before the Roman conquest.  The Palestinians were under the rule of the Ottoman Empire.  

By 1914, there were roughly 500,000 Arabs in Palestine, and roughly 90,000 Jews.  So, while the Arabs were the majority, the Jewish minority was sizable; and in some parts of Palestine, the Jews were the majority (Gilbert, 3).

Moreover, the Jews who settled in Palestine had not entered through force of arms.  They had purchased land from landlord owners.

Many Arabs responded to this with aggressive violence.  Between 1886 and 1914, Jewish settlements were repeatedly attacked by Arab bands (Gilbert, 4).

The British conquered Palestine in 1917-1918.  On November 2, 2017, Lord Arthur Balfour, foreign secretary in the Lloyd George ministry, issued the "Balfour Declaration":  "His Majesty's Government view with favour the establishment in Palestine of a national home for the Jewish people, and will use their best endeavours to facilitate the achievement of this object, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of non-Jewish communities in Palestine or the rights and political status enjoyed by Jews in any other country" (Gilbert, 8).

To stop this "national home for the Jewish people" in Palestine, armed Arab bands attacked Jewish agricultural settlements in 1920-1921.  Arabs demanded that the British give them representative institutions so that the Arab majority could stop all Jewish immigration.  Although the British rejected this demand, they did try to reduce Jewish immigration, and Transjordan (now Jordan) was completely closed to Jewish settlement in 1921.

Jewish immigration to Palestine increased after Hitler came to power in 1933.  From 1933 to 1936, the Jewish population of Palestine increased from 230,000 to 400,000, which constituted one third of the Arab population.  In 1936, the Arabs launched massive attacks on the Palestinian Jews.

In 1936, the British Government appointed the Peel Commission to study the problems of Britain's Mandate over Palestine.  In 1937, the Commission recommended the partition of Palestine into a Jewish state and an Arab state, with a British controlled corridor from Jaffa to Jerusalem.

                                              The Peel Commission Partition Plan, 1937

After an intense debate, the Jewish leaders agreed to accept this plan for creating two separate states.  The Arab leaders rejected it.

This set the pattern that would be followed throughout the history of the Palestine-Israeli conflict.  Whenever a two-state solution was proposed, the Jewish leaders would accept it, and the Arab leaders would reject it.  In 1947, the United Nations proposed a partition of Palestine into two states.  The Jewish leaders accepted it and declared the independence of Israel in 1948.  The Arab leaders rejected the UN's partition plan and launched a massive war against Israel as soon as independence was declared.

Another chance for a two-state solution came with the Barak-Clinton peace proposals of 2000-2001.  Israeli Prime Minister Ehud Barak was known as someone desperate to achieve peace between Palestinians and Israel.  In negotiations between Barak and PLO leader Yasser Arafat organized by President Bill Clinton, Barak agreed to give the Palestinians almost everything they had demanded--a Palestinian state with its capital in Jerusalem, control over the Temple Mount, 95 percent of the West Bank and all of the Gaza Strip returned to Palestinian rule, and $30 billion dollars to help the 1948 Palestinian refugees.  Amazingly, Arafat rejected the offer without even offering a counterproposal.  He just walked away.  Then he ordered terrorist attacks on innocent Israeli civilians.  This provoked an Israeli overreaction and the election of a hawkish general (Ariel Sharon) as prime minister, who promised a brutal response to terrorism (Dershowitz, 117-22).

JUST WAR AGAINST TERRORISM

Palestinian terrorist attacks are designed to provoke Israel into an overreaction that kills many innocent Palestinians, which arouses a world-wide condemnation of Israel for violating human rights.  That's what Hamas has done in the present conflict.  The attacks on Israel on October 7 were targeted at innocent civilians.  Israel has retaliated with attacks on Hamas, but since Hamas hides behind civilians, these attacks on Hamas inevitably kill many innocent people.

In accordance with international standards of just war, Islamic terrorism is unjust because it directly and intentionally targets civilians for attack, while Israel's defensive actions directly attacking military targets are just because civilian deaths are unintended side-effects of attacking combatants.  This distinction is clear in the different training for Islamic terrorists and for Israeli soldiers.   The terrorists are ordered to kill as many innocent civilians as possible.  The Israeli soldiers are ordered to risk their own lives to reduce the risks for the civilian population.  It can be argued, as Dershowitz does, that no country facing terrorist attacks has been more protective of innocent civilians than Israel (Dershowitz, 140-53).

RIGHTS FROM WRONGS

Israel's right to exist and right to self-defense are examples of what Dershowitz has called "rights from wrongs."  From our historical experience with injustice, we learn to assert those rights necessary to avoid the wrongs of injustice.  So, from the experience of the unjust treatment of the Jews throughout their history, and particularly during the Holocaust, we have learned the need for the Jews to have the right to defend themselves and for a Jewish state to have the right to exist.

This thought is implicit in what John Locke says about how the law of nature arises in the state of nature, the experience of being the victims of aggressive violence taught human beings that they needed the right to defend their life, liberty, and property from attack, and thus the right to punish those who violate the law of nature.

FREEDOM IN ISRAEL

Another piece of evidence for the Darwinian liberal defense of Israel is its ranking on the Human Freedom Index.  As I have indicated in previous posts, the Human Freedom Index includes many indices of both personal freedom and economic freedom that make it a good measurement of freedom as understood by classical liberalism.

Israel ranks at 62 out of 165 countries.  Although it's not close to the top, it's slightly above the average for the world, and it's well above the average for its region--the Middle East and North Africa.  For example, Jordan ranks at 108, Lebanon at 121, Turkey at 130, Saudi Arabia at 159, Egypt at 161, Iran at 162, Yemen at 164, and Syria at 165.  So, while some of these Islamic Arabic countries rank at the absolute bottom, Israel looks good as a unique land of freedom in that part of the world.

That Israeli devotion to freedom was manifested in its Declaration of Independence of 1948, which will be the subject for my next post.

REFERENCES

Dershowitz, Alan. 2003. The Case for Israel. Hoboken, NJ: Wiley.

Gilbert, Martin.  2012.  The Routledge Atlas of the Arab-Israeli Conflict. 10th edition. New York: Routledge.

Herzl, Theodor. 2019. The Jewish State.  New York: Skyhorse Publishing.

Khalidi, Rashid.  2020.  The Hundred Years' War on Palestine: A History of Settler Colonialism and Resistance, 1917-2017. New York: Henry Holt and Company.

The Natural Desire for Property Is Rooted in the Lockean Liberal Principle of Self-Ownership: A Response to Pascal Boyer

Recently, Behavioral and Brain Sciences has published an article by Pascal Boyer--"Ownership Psychology as a Cognitive Adaptation"--along with 31 commentaries on the article and Boyer's response.  I wrote one of the commentaries.

Here I will provide Boyer's abstract for his article, my commentary, and then some comments on the argument for self-ownership in some of the other commentaries and Boyer's response.

BOYER'S ABSTRACT

"Ownership is universal and ubiquitous in human societies, yet the psychology underpinning ownership intuitions is generally not described in a coherent and computationally tractable manner.  Ownership intuitions are commonly assumed to derive from culturally transmitted social norms, or from a mentally represented implicit theory.  While the social norms account is entirely ad hoc, the mental theory requires prior assumptions about possession and ownership that must be explained.  Here I propose such an explanation, arguing the intuitions result from the interaction of two cognitive systems.  One of these handles competitive interactions for the possession of resources observed in many species including humans.  The other handles mutually beneficial cooperation between agents, as observed in communal sharing, collective action, and trade.  Together, these systems attend to specific cues in the environment, and produce definite intuitions such as 'this is hers,' 'that is not mine.'  This computational model provides an explanation for ownership intuitions, not just in straightforward cases of property, but also in disputed ownership (squatters, indigenous rights), historical changes (abolition of slavery), as well as apparently marginal cases, such as the questions, whether people own their seats on the bus, or their places in a queue, and how people understand 'cultural appropriation' and slavery.  In contrast to some previous theories, the model is empirically testable and free of ad hoc stipulations" (Pascal 2023). 

MY COMMENTARY

The psychology of ownership is rooted in self-ownership.  The human brain has an evolved interoceptive sense of owning the body that supports self-ownership and the ownership of external things as extensions of the self-owning self.  In this way, evolutionary neuroscience supports a Lockean liberal conception of equal natural rights rooted in natural self-ownership.

Boyer argues persuasively for the interaction of two cognitive systems to explain the psychology of ownership.  But in doing this, he fails to recognize that there is a third cognitive system for self-ownership that is the true root of the evolutionary psychology of ownership.  In explaining “the interaction of cognitive systems that are not about ownership as such,” Pascal ignores the evolved intuitive psychology of self-ownership, which really is “about ownership as such.”

At the center of Boyer’s model is the “conceptual tag” of “(Agent, thing).”  This assumes without explanation that human beings have an intuitive sense of themselves as agents who claim ownership of things.  He provides no evolutionary explanation for why and how human beings have this intuition.  The best explanation for this is the evolved neurobiology of self-ownership and self-owning agency: if human beings did not have any sense of owning themselves, they could not claim ownership of things external to them as extensions of their self-owning selves.

John Locke saw that the natural desire for ownership or property was rooted in the natural psychology of self-ownership—that “every Man has a Property in his own Person,” and this “no Body has any Right to but himself” (1988, 287).  Boyer points to Locke’s theory of property in explaining why labor is relevant to ownership.  But Boyer fails to see the importance of Locke’s claim about self-ownership in supporting the natural right to property as the fundamental principle of Lockean liberalism, and how evolutionary psychology can explain this as grounded in the evolved neurobiology of the human brain.

Lockean liberals have seen slavery—the institution by which one person can own another person—as the most radical denial of the natural right of everyone to own oneself.  In considering the case of slavery, Boyer explains abolitionism as a widening of the “moral circle” to include slaves, but he does not acknowledge that at the center of that “moral circle” is the self-owning human being recognizing other human beings as self-owners.

This was made clear by abolitionists such as Frederick Douglass, who ran away from his enslavement and became a leading abolitionist orator.  Douglass said that even in childhood, he held onto one idea for freedom and against slavery: “Every man is the original, rightful, and absolute owner of his own body; or in other words, every man is himself, is his self, if you please, and belongs to himself, and can only part from his self-ownership, by the commission of a crime” (1991, 42). 

Now we can see how this sense of each person’s self-ownership arises in the evolved neuroanatomy of the brain to serve the survival and well-being of the human animal.  We can understand this as expressing interoception—the neural perception of the state of the body (Ceunen, Vlaeyen, & Van Diest 2016; Tsakiris & De Preester 2019).

The research on interoception shows that our self-awareness arises from the feelings that we have from our bodies as a neural integration in insular cortex of the signals of the condition of the body.  The interoceptive neural network, having its core in the anterior insular cortex and the anterior cingulate cortex, provides the basis for the subjective awareness of our bodily emotions and social feelings, including pleasure, anxiety, trust, and anger (Craig 2015).

The brain’s interoceptive feeling of self-ownership includes feeling whether other people are likely to be helpful or harmful to oneself, as in the brain’s ability to discriminate trustworthy faces and untrustworthy faces, or the propensisty to punish people who make unfair offers in an Ultimatum Game.  Our brains evolved to protect ourselves from threats and to seek out cooperative relationships in ways that secure our survival and well-being.

This explains the evolved basis in the brain for Douglass’s Lockean liberal principle of self-ownership in human nature.  In running away from his slave master, and then in arguing for the abolition of slavery, Douglass expressed the evolved natural propensity of the human brain for self-ownership and for moral resentment against those who would threaten the natural human right to self-ownership.  Moreover, Douglass extended this liberal principle of natural human equality in self-ownership to support other natural human rights—including women’s rights, the rights of immigrants, and religious liberty (Buccola 2012).

Brain disorders can disrupt this sense of bodily self-ownership.  One example of this is somatoparaphrenia (derived from three Greek words denoting “body outside the mind”).  People who have had strokes in the right hemisphere of the brain sometimes suffer through a short period in which they deny that their left leg or arm belongs to them.  They can see that their left arm or left leg is attached to their body, but it doesn’t feel like it’s part of their body (Antoniello & Gottesman 2017; Feinberg et al. 2010; Gandola et al. 2012; Vallar & Ronchi 2009). 

Comparing the studies of somatoparaphrenia, similar bodily disorders, and illusions such as the rubber hand illusion, in which the brain is tricked into feeling that a rubber hand is one’s own hand, provides evidence for what Frédérique de Vignemont (2020) calls the Bodyguard Hypothesis: the brain has evolved to protect the body through neural circuits that have a protective body map that creates a sense of bodily ownership and affective motivation to behave in ways that protect the body identified in the body map.  Syndromes of disowning one’s body occur when the body map does not represent a limb that feels alien.  Illusions of body ownership occur when the body map mistakenly represents something as a body part. 

Evolution by natural selection favors those psychological propensities rooted in the brain that enhance our chances for self-preservation, which includes a sense of personal identity expressed in our owning and protecting our bodies, and then extending that sense of self-ownership into the ownership of external property that belongs to us.  In this way, evolutionary neuroscience supports a Lockean liberal conception of equal natural rights rooted in natural self-ownership (Arnhart 1995, 1998, 2016).

 

References

Antoniello, D., & Gottesman, R. (2017) Limb misidentification: A clinical-anatomical prospective study. Journal of Neuropsychiatry and Clinical Neuroscience 29:284-88.

Arnhart, L. (1995) The new Darwinian naturalism in political theory. American Political Science Review 89:389-400.

Arnhart, L. (1998) Darwinian natural right: The biological ethics of human nature. The State University of New York Press.

Arnhart, L. (2016) Political questions: Political philosophy from Plato to Pinker. Waveland Press.

Boyer, Pascal. (2023) Ownership psychology as a cognitive adaptation: A minimalist model. Behavioral and Brain Sciences 46, e323: 1-68. doi: 10.1017/S0140525X22002527

Buccola, N. (2012) The political thought of Frederick Douglass. New York University Press.

Ceunen, E., Vlaeyen, J., & Van Diest, I. (2016) On the origin of interoception. Frontiers in Psychology 7:743.

Craig, A. D. (2015) How do you feel? An interoceptive moment with your neurobiological self. Princeton University Press.

de Vignemont, F. (2020) Mind the body: An exploration of bodily self-awareness. Oxford University Press.

Douglass, F. (1991) The Frederick Douglass papers: Volume 4, ed. J. W. Blassingame & J. R. McKivigan. Yale University Press.

Feinberg, T., Venneri, A., Simone, A. M., Fan, Y., & Northoff, G. (2010) The neuroanatomy of asomatognosia and somatoparaphrenia. Journal of Neurology, Neurosurgery, and Psychiatry 81:276-81.

Gandola, M., Invernizzi, P., Sedda, A., Ferre, E. R., Sterzi, R., Sherna, M., Paulesu, E., & Bottini, G. (2012) An anatomical account of somatoparaphrenia. Cortex 48:1165-78.

Locke, J. (1988) Two treatises of government. Cambridge University Press.

Tsakiris, M., & De Preester, H., eds. (2019) The interoceptive mind: From homeostasis to awareness. Oxford University Press.

Vallar, G., & Ronchi, R. (2009) Somatoparaphrenia: A body delusion. A review of the neuropsychological literature. Experimental Brain Research 192:533-51. 

BOYER'S RESPONSE TO THE ARGUMENT FOR SELF-OWNERSHIP

I was surprised to see that 7 of the 31 commentaries agreed with my argument for rooting the moral right to ownership in self-ownership (Hood 2023; Kemmerer 2023; Merker 2023; Nancekivell and Pesowski 2023; Rochat 2023; Starmans 2023; Wispinski, Enns, and Chapman 2023).  Some of the commentators express this idea as understanding owned items as components of the "extended self."  Others express this explicitly as ownership founded in our sense of our ownership of our bodies.

Boyer rejects this by arguing:  "we do not need to postulate any psychological processes, beyond two mechanisms (competitive acquisition and mutualistic cooperation) that are already independently documented in a vast literature.  By contrast, the extended-body or extended-self metaphors are additional mechanisms postulated specifically in order to explain ownership phenomena" (Boyer 2023, 61).

But this does not refute my argument that Boyer's "conceptual tag" of "(Agent, thing)" assumes without explanation that human beings have an intuitive sense of themselves as agents who claim ownership of things.  The best explanation for this is the evolved neurobiology of self-ownership and self-owning agency.

In his one attempt to answer my argument, Boyer says that he can provide an evolutionary explanation for intuitions of associations between agents and things by saying that there were selective pressures in early human evolution that would have favored recognizing the claims of agents to the ownership of territories and tools, and he cites the commentary by Merker.  

But Boyer is silent about the fact that Merker grounds this ownership psychology in "our sense of ownership of our bodies as the central invariant of resource acquisition," and from there "the sense of ownership extends out, on a species-specific basis, to various extra-corporeal objects and circumstances in which a sense of ownership may be invested."  And so, for example, when our early human ancestors invested labor and deliberate effort in fashioning stone tools, they would have claimed ownership of those tools (Merker 2023, 41-42).

References

Hood, Bruce. 2023. "Ownership as a Component of the Extended Self." BBS 46, e323: 36-37.

Kemmerer, David. 2023. "Ownership Language Informs Ownership Psychology." BBS 46, e323: 39-40.

Merker, Bjorn. 2023. "Invested Effort and Our Open-Ended Sense of Ownership." BBS 46, e323: 41-42.

Nancekivell, Shaylene E., and Madison Pesowski. 2023. "Ownership as an Extension of Self: An Alternative to a Minimalist Model." BBS 46, e323: 45-47.

Rochat, Philippe. 2023. "Primordial Feeling of Possession in Development." BBS 46, e323: 49-50.

Starmans, Christina. 2023. "Autonomy, the Moral Circle, and the Limits of Ownership." BBS 46. e323: 52-53.

Wispinski, Nathan J., James T. Enns, and Craig S. Chapman. 2023. "Hold It! Where Do We Put the Body?" BBS 46, e323: 57-59.

Caster Semenya and the Biological Justification for Sex-Segregated Sports

Over the years, I have written about the case of Caster Semenya--the Olympian and World Champion runner who has been excluded from running as a woman because she is a chromosomal (XY) male with a disorder (or difference) of sexual development.  The International Association of Athletics Federation (IAAF)--now named World Athletics--has banned her from running as a woman because she has the elevated testosterone levels of a man that give her an unfair advantage over women in athletic competition.

In her new book--The Race to Be Myself (Norton, 2023)--she says that her case is "about the struggle for universal human rights" (304); and for this reason, she has appealed her case to the European Court of Human Rights.  I have argued that the natural desire for sexual identity is one of the twenty natural desires of evolved human nature.  Semenya identifies herself as a "masculine woman" with the "natural body" of a chromosomal male with some of the bodily traits of a woman--such as a vagina but no penis (1-2, 173, 184, 279, 283, 303). She says that her body is not a man's body.  Nor is it the body of a transgender woman.  Does she have a natural human right to express her sexual identity as a "masculine woman" by competing athletically with other elite women runners?

I have argued that the natural desire for sexual identity is (mostly) binary.  For most of us, our biological sex is clearly male or female.  And for most of us, our gender identity corresponds to our sexual identity as male or female.  But in rare cases, an individual's sex is a biological mosaic of male and female traits.  Semenya is one of those rare exceptional cases, as she herself says.  Is it therefore fair to exclude her--as a chromosomal male with a female gender identity--from competing in women's races?  Should she either compete with other men, or artificially reduce her testosterone levels to the female range, and then compete with women?  Or should she compete in a third category--"intersex"?  There is a tragic conflict of desires here between Semenya's desire to run as a "masculine woman" in women's races and the desire of biologically typical women to compete with other biologically typical women.

Although I lean to the side of the IAAF in this debate, I see good arguments on both sides; and so, I remain undecided.

MORAL DISAGREEMENT AND VARIABLE DESIRES

The fundamental problem here is the moral disagreement that arises from naturally variable desires, and the need for prudence or practical judgment to resolve such cases.  I identified this problem in Darwinian Natural Right (44-49).

If the good is the desirable, and if there is a natural pattern of desires for human beings that includes the twenty natural desires, why do human beings fall into moral conflict?  The pervasiveness of moral disagreement is the one fact most often cited by proponents of moral relativism, who believe there are no natural, universal standards for resolving moral debate.  It does not follow, however, from the fact of moral controversy that there are no natural standards for moral judgment.

There are four sources of moral disagreement: fallible beliefs about circumstances, fallible beliefs about desires, variable circumstances, and variable desires.  In considering variable desires, we see both normal (typical) and abnormal (atypical) variation.  The normal variation arises from age, sexual identity, and individual temperament.  Natural human diversity is such that the young do not have exactly the same desires as the old, men do not have exactly the same desires as women, and individuals with one temperament do not have exactly the same desires as those with another temperament.  

The abnormal variation in desires arises from abnormality in innate dispositions or in social circumstances.  So, for example, while human beings are normally social animals with social desires that incline them to feel the pleasures and pains of those close to them, a few human beings are psychopaths who lack the social desires that normally characterize human beings, and these people are moral strangers who are not open to moral persuasion.

Intersex individuals like Semenya show an atypical variation in their desire for sexual identity.  Semenya's "natural body" (as a biological male with some female traits) inclines her to identify herself as a "masculine woman," who does not fit into the sexually binary categories of men's and women's athletics.

SEMENYA'S AMBIGUOUS SEXUAL IDENTITY

Here's how Semenya describes her sexual identity:

"I have what is called a difference in sex development (DSD), an umbrella term that refers to the varying genetic conditions where an embryo responds in a different way to the hormones that spark the development of internal and external sexual organs.  To put it simply, on the outside I am female, I have a vagina, but I do not have a uterus.  I do not menstruate, and my body produces an elevated amount of testosterone, which gives me more typically masculine characteristics than other women, such as a deeper voice and fewer curves.  I cannot carry a child because I don't have a womb; but, contrary to what many people think, I do not produce sperm.  I can't biologically contribute to make new life" (1-2).

Semenya says that at puberty, she developed typically masculine features, and she began fantasizing about girls.  She announced to her friends and family that she was "into girls" (54-55).  Later, she developed romantic feelings for a girl that she married.  At the marriage ceremony, Semenya dressed as a man, while her bride dressed as a woman.  She thought this was right because she had always been very masculine.  She and her wife now have two children by IVF.  She denies that she is a lesbian (193, 212, 248, 269).

Semenya's "difference in sex development" is 5a-Reductase 2 Deficiency, which is caused by a mutation in the gene encoding the enzyme 5a-reductase type 2 (5aR2).  5aR2 catalyzes the transformation of testosterone (T) to 5a-dihydrotestosterone (DHT), which drives the process of the sexual differentiation in the external genitalia during the development of the male fetus in the womb.  5aR2D in chromosomal males arises from deficient 5aR2 activity, resulting in decreased DHT levels.  Consequently, at birth, males will show ambiguous genitals--a micropenis or no penis and what looks like a vagina.  Sometimes, as in Semenya's case, these biological boys will be raised as girls.  But then at puberty, these biological males develop typically masculine features, because pubertal virilization is driven by elevated testosterone rather than DHT.

The circulating testosterone concentrations in Semenya's bloodstream is within the range for typical adult males (from 8 nanomoles per liter [nmol/L] to 25 nmol/L), which is much higher than the range for typical adult females (0.4 nmol/L to 2 nmol/L).  The International Association of Athletic Federations (IAAF) has said that this has given Semenya an unfair advantage in competing with women.  One can see this just by looking at the World Records for Running.  In every event, from the 100-meter race to the marathon, the world record times for men is lower than for the women.  For example, in Semenya's best event--the 800-meter race--the world record for men is 1:40.91, while the world record for women is 1:53.28.  The IAAF has pointed to scientific studies concluding that the primary reason for this large sex difference in athletic performance is exposure to high levels of endogenous testosterone in males beginning at puberty.  These male advantages associated with higher testosterone are considered the justification for sex-segregated sports (Hunter et al. 2023).  

In 2009, the IAAF told Semenya that she could compete in women's events only if she took estrogen pills that would reduce her testosterone levels to no more than 10 nmol/L for six months.  Notice that this is still far above the range for typical females.  In later years, the IAAF changed its regulations to drop the maximum level of testosterone first to 5 nmol/L and then to 2.5 nmol/L (Semenya, 195, 267, 299).  For over five years--from January of 2010 to August of 2015--Semenya took the estrogen pills.  By June of 2010, her testosterone had dropped below the 10 nmol/L maximum; and she was then free to run in IAAF races.  Once again, she was winning 800m races with good times like 1:59.90 and 1:58.16.  Any time under 2 is a good time for an elite female runner.  But still these times were well above her gold-medal-winning time of 1:55.45 at the Berlin World Championships.

After IAAF lost a court case in 2015 about their testosterone regulations for women, the regulations were dropped, and Semenya stopped taking the estrogen pills.  One year later, Semenya won the gold medal for the 800m at the 2016 Rio Summer Olympics with a time of 1:55.28.  8 women ran in the 800 meters women's final.  Of those 8, 3 of them were chromosomal (XY) males with disorders of sex development (DSD) who identify themselves as women.  Those 3 intersex women have levels of testosterone far higher than normal for women.  These 3 were the winners of the race: Caster Semenya (Gold), Francine Niyonsaba (Silver), and Margaret Nyaira Wambui (Bronze).  One of the women who lost that race--Great Britain's Lynsey Sharp--expressed her frustration in televised interviews with having to compete against intersex individuals with the unfair advantages that come from male testosterone levels.  She and other female runners called for the IAAF to impose new regulations that would ban biologically male DSD athletes from women's events.

In 2018, the IAAF announced new rules:  athletes with DSD competing with women in the 400m, 800m, and 1500m distances would have to lower their testosterone levels down to 5 nmol/L for a period of six months before they were eligible to compete.  Then, in the spring of this year, the IAAF announced new regulations requiring women with DSD to lower their testosterone to 2.5 nmol/L or below for a continuous twenty-four months.  Semenya is contesting those new rules in her appeal to the European Court of Human Rights.

THE IAAF'S BEST ARGUMENT

In her book, Semenya gives her version of her dispute with the IAAF as presented in 2019 at the Court of Arbitration for Sport in Lausanne, Switzerland (Semenya 274-88).  Reading this along with a recent article by scientists supporting the IAAF's position (Hunter et al. 2023) makes clear the best arguments on both sides of this debate.

The best argument for the IAAF is that the biological basis of sex differences in athletic performance show that biological males--including those with DSD--have an unfair advantage in athletic competition with women, and therefore fairness requires that these men be excluded from women's athletic events.

This argument makes three claims.  First, in elite athletic competition, the performance of men tends to be superior to that of women.  Second, a primary reason for this is the sex differences in anatomy and physiology as determined by sex chromosomes and sex hormones, so that adult men on average are typically stronger, more powerful, and faster than women of similar age and training. Third, biological males with DSD (such as 5a-reductase 2 deficiency) will on average have this male advantage over women in athletic competition.  Semenya seems to accept the first two claims, but she rejects the third one.

The claim of male athletic superiority is easily supported by glancing at the world records for athletics.  Consider just the racing events, for instance, in which all of the world record times for men are faster than those for women.  In the 800m race, the world record for men is 1:40.91, set by David Rudisha running for Kenya at the 2012 Olympic Games.  The record for women is 1:53.28, set by Jarmila Kratochvilova running for Czechoslovakia at the Munich World Championships in 1983.  In the Marathon, the world records were set just two months ago.  The men's record is 2:00:35, set by Kelvin Kiptum running for Kenya at the Chicago Marathon.  The women's record is 2:11:53, set by Tigst Assefa running for Ethiopia at the Berlin Marathon.

One good criticism of this kind of evidence is that what looks like a male superiority in biological ability is really only a consequence of the differences in the cultural circumstances of men and women.  For a long time, women have been discouraged from participating in athletic activity.  In 1896, at the first Olympic Games in the modern era (in Athens, Greece), no women were allowed to compete.  In 1967, Kathrine Switzer was the first woman to run the Boston Marathon as an officially registered competitor.  In 1984, the first women's Olympic marathon was held in Los Angeles.  It was not until 2021, that there were similar numbers of women and men at the summer Olympics in Tokyo.  So, historically, women have had much less time and opportunity to develop their athletic skills than the men have.

In 1992, the journal Nature published an article by two biologists with the title "Will Women Soon Outrun Men?" (Whipp and Ward 1992).  They pointed out that over the previous century, both men and women were improving their world record times in racing, but the rate of improvement for women was double that for men.  The predicted that if these trends continued into the future, the world record times for women in the marathon would be the same or better than those for the men by 1998.  They also predicted that the records in all other racing events would be no different for men and women by the middle of the 21st century.

This has not happened, however, because beginning sometime after about 1985, the rate of improvement in women's running times began to slow and level out, so that there has been no intersection with the times for men.  In all of the running events, the gap between men's and women's world records is narrower than it has even been, but it's still there.

The best explanation for this continuing performance gap, according to the second claim of the IAAF, is that this shows biological sex differences:

"Sex differences in athletic performance that involve strength, power, and/or endurance are sizable and determined by biological differences between males and females.  Adult men ov average are stronger, more powerful, and faster over short and long distances than women of similar age and training status.  The sex differences emerge with the onset of puberty, coinciding with the increase in endogenous sex hormones, in particular testosterone in males . . . . The sex differences in the world records and best performances of many athletic events that rely on endurance and muscular power ranges from 10% to 30%. . . . The largest sex differences are apparent for sports and events relying more on muscular power such as in weightlifting, jumping events, and short distance swimming. . . ." (Hunter et al. 2023: 2332-33).

On the other hand, sports that rely less on muscular power such as archery and shooting show minimal sex differences in performance.

But even if we agree with all this--that typically biological males tend on average to have an advantage in athletic competition over typically biological females--it's not clear that this must hold true for atypically biological males with DSD like Semenya.

 

SEMENYA'S BEST ARGUMENT

Consider what Semenya says here:

". . . The IAAF's position was that women with high testosterone levels had an unfair advantage equal to the advantage that male athletes had over female athletes.  On its face, this is ridiculous.  We are not men.  I am a great runner, and I train with men, some of whom I can maybe give a hard time to on my best day, just like any other elite female athlete could, but I have never been able to even approach an elite male runner's times.  Likewise, there are plenty of men who normal 'male' testosterone levels whose only hope of beating a female athlete with 'female' levels is in their dreams" (238).

In fact, Semenya observes: "The IAAF knew that not one woman with a confirmed DSD diagnosis had ever even approached the running times of male elite runners" (269).  If biological males with DSD have the same advantage as normal males over women in athletic competition, then why don't runners like Semenya achieve the same running times as elite male runners?  Since Semenya's running times are within the range of other elite female runners, that suggests that she does not have an unfair male advantage over her competitors.

To counter this argument from Semenya, some IAAF officials have accused her of cheating by running slower than what she is capable of, thus hiding the fact that she has the same male advantage as other elite male runners (Semenya 281-83).  But this is implausible.  Throughout her running career, Semenya's great ambition has been to break the world record time for the 800m in the women's event, but she has never done that.  If she was easily capable of breaking this record, why would she slow herself down and fall short of the record?

There is one alternative explanation.  Most men with normal male testosterone levels cannot run faster than elite female runners; and even most good male runners who can run as fast as elite women cannot run as fast as elite male runners.  Is Semenya a good male runner who is good enough to compete with elite female runners, thus showing his male advantage, but not good enough to compete with elite male runners?  If so, could this be true for other "46 XY males with DSD"?

I don't have good answers to those questions.

AN "INTERSEX" OLYMPICS?

In any case, we should consider that one way out of this debate would be to create a third category for sexually segregated athletic competition--"intersex" events in which atypicaly males/females could compete against one another.  This would be similar to what is done now with the Paralympic Games--a highly successful event for athletes with disabilities.

Kenya's Margaret Wambui--the biological male with DSD who won the bronze medal in the 2016 Olympic 800m event when Semenya won the gold--has proposed this.  But Semenya rejects it.

REFERENCES

Hunter, Sandra K., et al. 2023. "The Biological Basis of Sex Differences in Athletic Performance: Consensus Statement for the American College of Sports Medicine." Medicine and Science in Sports and Exercise 55: 2328-2360.

Semenya, Caster. 2023. The Race To Be Myself: A Memoir.  New York:  W. W. Norton & Company.

Whipp, Brian J., and Susan A. Ward. 1992. "Will Women Soon Outrun Men?" Nature 355 (January 2): 25.

The Evidence for Women and Men as (Persistent) Hunters

 

A Famous Photograph of the Ultrarunner Sophie Power in 2018, Who Was Running the 105-mile Ultra-Trail du Mont-Blanc Race in the Alps, While Breastfeeding Her Child at Rest Stations

One of the best arguments of Cara Ocobock and Sarah Lacy for "Woman the Hunter" is that the physiology of women's bodies and brains gives them an endurance activity advantage over men, and this would have made Early Stone Age women good as persistent hunters who chased their prey over long distances.  But because of Ocobock and Lacy's false view of the "Man the Hunter" theory as denying women's participation in hunting, they mistakenly criticize the proponents of the persistence hunting hypothesis for assuming that only men engaged in persistence hunting.  They thus fail to see how recognizing that men have predominated in hunting that requires endurance running is compatible with recognizing that women in foraging societies have often engaged in endurance running in hunting and scavenging for food.

The most important proponents of the persistence hunting hypothesis have been Daniel Lieberman, Dennis Bramble, and Louis Liebenberg (Bramble and Lieberman 2004; Liebenberg 2006).  The idea was first suggested by David Carrier (1984).  The best short summary of the reasoning is Lieberman and Bramble's "The Evolution of Marathon Running" (2007).  I first wrote about this in an essay six years ago.  Some critics have dismissed the endurance running hypothesis as implausible (Pickering and Bunn 2007).  Lieberman and his colleagues (2007) and Liebenberg (2008) have replied to these critics.

The reasoning begins with the observation that humans are unique among primates in their capacity for endurance running, defined as the ability to run at a high speed over long distances (over three miles) using aerobic metabolism.  Chimpanzees can only rarely sprint for short distances, and they never run marathon-length distances.  While most mammals good at running can out-sprint humans, humans can outrun most of them over long distances.  Sometimes they can even outrun horses in hot weather.

This raises the questions of how, when, and why this uniquely human capacity for running long distances evolved.

How?  The mass-spring mechanics of human running depends on storing spring-like energy in the tendons and ligaments of the legs and feet.  The largest tendon in the body is the Achilles tendon, which connects the calf muscles to the heel bone.  The non-human African apes do not have a well-developed Achilles tendon.  Humans also have long legs relative to body mass, more compact feet, and relatively short toes.  These and other bodily traits provide the energetic needs of human running.

There is also a need to stabilize the body's center of mass during running.  The trunk and neck of human runners are forwardly inclined in running, which creates a tendency to pitch forward.  The human body has many features that help to stabilize the trunk, including a greatly enlarged gluteus maximus.  This is the single largest muscle in the body and one of the most distinctive features of the human body--our big butts.

The greatest physiological challenge for runners is heat.  Running generates as much as ten times more internal heat in the body than walking.  Runners must cool down to avoid hyperthermia.  Most mammals cannot run over long distances without suffering hyperthermia, particularly in hot weather.  Humans are unique in their ability to run long distances in hot weather, because of their many eccrine sweat glands and reduced body hair that allow for dissipating heat more effectively than other mammals who cool the body by panting.  This reliance on sweating for thermoregulation does, however, create the problem of high water and salt demands for human runners.

When?  The fossil evidence for the first emergence of endurance running in our hominid ancestors is hard to interpret.  But Lieberman and his colleagues believe that this likely arose first about 2 million years ago with Homo erectus, because most of the structural bases of endurance running in the skeleton are present in early H. erectus.

Why? Archaeological and ethnographic evidence suggests that endurance running evolved when our early hominid ancestors became carnivorous hunters and scavengers without sophisticated projectile weaponry. As I have indicated in some previous posts, stone-tipped spears appeared first about 200,000 years ago, and the bow and arrow arose not much earlier than 50,000 years ago.

The first hunters probably had no weapons better than stones and untipped spears.  They could have scavenged carcasses left by lions, but to do this, they would have had to run to the carcasses before hyenas arrived.  It is hard (and dangerous) to kill large animals with a spear.  But in hot weather, human hunters could have persistently chased their prey until the animal was driven to hyperthermia, and then it could be safely killed at close range.

Ethnographic studies of hunter-gatherer societies in the modern world have few reports of persistence hunting, because recent foragers have not needed to rely on this hunting strategy.  Hunting with projectile weapons, hunting dogs, and other hunting tools works better.  And yet, persistent hunting has been documented for the Kalahari Bushmen, the Tarahumara of northern Mexico, the Navajo and Paiutes of the American Southwest, and the Australian Aborigines (Lieberman et al. 2007; Lieberman et al. 2009; Lieberman et al. 2020).  There is a good YouTube video of persistence hunting in the Kalahari.

Woman the Persistent Hunter?  Even if we are persuaded by Ocobock and Lacy's claim that women in foraging society hunted, we might assume that it would have been hard for women to engage in persistence hunting, particularly when they were encumbered by caring for young children.  But that picture of Sophie Power breastfeeding her three-month-old child while running a 105-mile race in the Alps is for Ocobock and Lacy a vivid refutation of that assumption.  Yes, of course, she needed some help from her husband, who transported the child between rest stations.  But we know that women in foraging societies have generally relied on "alloparenting" (relatives and friends helping women with their childcare), and so this could have allowed them to run down prey over long distances.

Ocobock and Lacy concede that men do have a "power activity advantage" that would have made them good hunters--the advantage that comes from high testosterone that increases muscle growth, more type II ("fast-twitch") fibers, a larger heart and lungs, a greater number of red blood cells for carrying oxygen, and increased glycogen utilization.

But, on the other hand, they stress the "endurance activity advantage" of women over men, because women have more type-I ("slow-twitch") fibers that increase endurance, greater fat stores that aid endurance, and higher estrogen levels that enhance athletic performance in various ways (Ocobock and Lacy 2023a).

Until recently, female ultra-racers like Sophie Powers have finished with slower times than the fastest men.  But now the women are sometimes winning these ultramarathon races.  In 2019, Jasmine Paris had the overall winning time for the 268-mile Spine Race through England and Scotland.  Perhaps this shows what their Early Stone Age female ancestors could do.

Ocobock and Lacy (2023b) complain that the proponents of the persistence hunting hypothesis assume that such hunting was exclusively male:

"Bramble and Lieberman's (2004) introduction to the persistence hunting hypothesis never mentions sex, so it is not clear whether values given related to human endurance running are averages of both sexes or are exclusively male.  They describe the Homo form in contrast to Australopithecus in what could be interpreted to be male or masculine terms, e.g., 'tall, narrow body form,' 'low, wide shoulders,' 'narrow pelvis' (348) along with masculine figures, as if it were obvious that the endurance runners of human evolution were male, and it need not be explicitly stated.  A discussion of sex and female endurance capabilities would actually further their argument if it were acknowledged and included rather than defaulting to males alone" (3).

Ocobock and Lacy are mistaken about this.  They ignore the many places in Lieberman's writing where he explicitly indicates that women have sometimes engaged in persistence hunting, and that they are as capable of endurance running as men are.  For example, in his book Exercised (2021), he writes: "These traditions remind us that running was never just for men.  If you attend any major race today, women comprise half the runners, thanks to pioneers like Bobbi Gibb and Katherine Switzer.  Although men do most hunting in hunter-gatherer societies, women also sometimes persistence hunted, and they ran races both sacred and secular" (213).  He has also quoted from Nisa, a San hunter-gatherer, recounting cases in which she used endurance running in hunting.  He sees this as showing: "Hunting is generally a male activity in recent hunter-gatherer societies, but older children and women (the latter unaccompanied by6 children or infants) who were good at endurance running would also have been effective persistence hunters with little risk" (Lieberman et al. 2009: 84, 86).  Lieberman has also written an article arguing that the wider pelvis of women does not impede their locomotion, and that "women and men are equally efficient at both walking and running" (Warrener et al. 2015).  Ocobock and Lacy actually cite this article, but without acknowledging that this denies their claim that Lieberman ignores women's capacity for endurance running and persistent hunting.

This all reinforces my general point that even if men in foraging societies have been predominantly the hunters, some women have often been hunters, even persistent hunters.

REFERENCES

Bramble, Dennis M., and Daniel E. Lieberman. 2004. "Endurance Running and the Evolution of Homo." Nature 432: 345-52.

Carrier, David R. 1984.  "The Energetic Paradox of Human Running and Hominid Evolution." Current Anthropology 25: 483-95.

Liebenberg, Louis. 2006. "Persistence Hunting by Modern Hunter-Gatherers." Current Anthropology 47: 1017-25.

Liebenberg, Louis. 2008. "The Relevance of Persistence Hunting to Human Evolution." Journal of Human Evolution 55: 1156-59.

Lieberman, Daniel E. 2021. Exercised: Why Something We Never Evolved to Do Is Healthy and 
Rewarding. New York: Vintage.

Lieberman, Daniel E., and Dennis M. Bramble. 2007.  "The Evolution of Marathon Running." Sports Medicine 37: 288-90.

Lieberman, Daniel E., et al.  2007.  "The Evolution of Endurance Running and the Tyranny of Ethnography:  A Reply to Pickering and Bunn."  Journal of Human Evolution 53: 439-42.

Lieberman, Daniel E., et al. 2009.  "Brains, Brawn, and the Evolution of Human Endurance Running Capabilities." In Frederick Grine, John G. Fleagle, and Richard E. Leakey, eds., The First Humans--Origin and Early Evolution of the Genus Homo, 77-92.  New York: Springer.

Lieberman, Daniel E., et al. 2020. "Running in Tarahumara (Raramuri) Culture: Persistence Hunting, Footracing, Dancing, Work, and the Fallacy of the Athletic Savage." Current Anthropology 61: 356-79.

Ocobock, Cara, and Sarah Lacy. 2023a. "Woman the Hunter." Scientific American 329 (November): 22-29.

Ocobock, Cara, and Sarah Lacy. 2023b. "Woman the Hunter: The Physiological Evidence." American Anthropologist, 1-12.

Pickering, Travis Rayne, and Henry T. Bunn. 2007. "The Endurance Running Hypothesis and Hunting and Scavenging in Savanna-Woodlands." Journal of Human Evolution 53: 434-38.

Warrener, Anna G., Kristi L. Lewton, Herman Pontzer, and Daniel E. Lieberman. 2015. PLoS ONE 10 (3): e0118903.

Woman the Hunter? But Not Predominantly?

An Artistic Rendering of an Ancient Female Hunter Using an Atlatl to Hunt Vacunas in the Andean Highlands of Peru (Based on an Archaeological Discovery by Randall Haas and His Colleagues)

The cover article for the November issue of Scientific American is "Woman the Hunter" by Cara Ocobock and Sarah Lacy.  This article briefly summarizes the argument and evidence that Ocobock and Lacy have recently elaborated in two articles for American Anthropologist.  Much of the research that they cite in these articles has come up in some of my previous posts on this "Woman the Hunter" thesis.

Ocobock and Lacy frame their argument as a refutation of the book Man the Hunter, edited by Richard Lee and Irven DeVore, and first published in 1968.  This collection of papers was the first extensive survey of the hunter-gatherer way of life that was considered the first stage of human evolutionary development.  One of the central themes of the book was the sexual division of labor in the foraging for food, in which men were predominantly the hunters of wild animals, and women were predominantly the gatherers of wild plants.

Contrary to what Ocobock and Lacy repeatedly assert, the authors in Man the Hunter did not say that "only men hunted" or that "women were excluded from hunting" (see Ocobock and Lacy 2023a: 24; Lacy and Ocobock 2023: 2-3, 5-6, 9).  The claim of the "Man the Hunter" hypothesis was that while some women in foraging societies sometimes hunted, men were predominantly the hunters.  So, when Ocobock and Lacy present evidence that some foraging women hunted, and thus refute the idea that only men hunted, they are attacking a straw man (or straw woman).

Ocobock and Lacy offer three kinds of evidence for "Woman the Hunter"--ethnographic, archaeological, and physiological.  While this evidence does show that some foraging women hunted and that modern women today still have the mental and physical capacities required for hunting, this does not deny the fact that in foraging societies, hunting (and particularly the hunting of big mammals) has been mostly a male activity.  

Moreover, what they say about the comparative athletic physiology of men and women confirms that men have a power activity advantage, while women have an endurance activity advantage.  This explains why someone like Caster Semenya--a chromosomal (XY) male with some external female features--has an unfair male advantage in competing with women in an 800-meter race but not in a 5,000-meter race.

THE ETHNOGRAPHIC EVIDENCE

In their Scientific American article, Ocobock and Lacy report:

". . . A recent study of ethnographic data spanning the past 100 years--much of which was ignored by Man the Hunter contributors--found that women from a wide range of cultures hunt animals for food.  Abigail Anderson and Cara Wall-Scheffler of Seattle Pacific University and their colleagues report that 79 percent of the 63 foraging societies with clear descriptions of their hunting strategies feature women hunters. . . ." (29).

What Ocobock and Lacy fail to make clear for their readers, however, is that this study found that in these 50 foraging societies, some women sometimes engage in hunting.  This was said to refute "the traditional paradigm that women exclusively gather, and men exclusively hunt" (Anderson et al. 2023: 7).  

As I pointed out in my post on this article, the authors do a good job in refuting the idea that men are exclusively the hunters and women exclusively the gatherers.  James Woodburn expressed this idea in the original Man the Hunter volume when he said:  "Hunting is done exclusively by men and boys" (Woodburn 1968, 51).  But this one sentence is the only place in the book where this claim is made.  No one else said this.  The other authors explained that while hunting is "predominantly men's work," some women do sometimes hunt:  "women's hunting activities are confined to small animal hunts, communal hunts in which they take part in driving, and, very rarely, individual hunts of larger animals" (Lee and DeVore 1968: 74, 187). They would have agreed with Robert Kelly (2013, 218-24) that while hunting is not done exclusively by men, it is predominantly done by men, particularly the hunting of big game.  So, the difference between men and women is a matter of degree rather than kind.

None of the evidence in Anderson et al.'s article shows that women are the same as men in the regular hunting of large game.  Consider, for example, three societies where they see women hunting large game—the !Kung San, the Hadza, and the Bakola.  According to their authority for the !Kung San, although there are a few cases of women hunting small game, "basically they leave hunting to the men" (Lee 1979, 235).

According to their authority for the Hadza, although "the common view that males only hunt and females only gather is not true," it is nevertheless true that women mostly hunt small animals, and there is "a marked division of foraging labor" between men and women (Marlowe 2010, 269).

According to their authority for the Bakola, although the women participate in hunting, gathering "is reserved mostly for women and children" (Ngima 2006, 58); women participate in net hunting, but only as beaters and not as hunters (51, 57, 65-67); and women are excluded from ceremonial net hunting (66).

They cannot point to any evidence for a hunter-gatherer society where the hunting of big game is predominantly by women, or at least equally with men.

Anderson and her colleagues also cite the example of the Agta people of the Philippines.  Ocobock and Lacy repeat this claim: "Agta women hunt while menstruating, pregnant, and breastfeeding, and they have the same hunting success as Agta men" (Ocobock and Lacy 2023a: 29).  But they fail to point out that very few Agta women hunt (fewer than 100 in a population of 9,000), while all Agta men do hunt; and the most serious female Agta hunters are those who are sterile, those with children old enough to care for themselves, or those beyond their childbearing years (Kelly 2013: 218-22).

ARCHAEOLOGICAL EVIDENCE

In their paper on the archaeological evidence for "Woman the Hunter," Ocobock and Lacy present some indirect evidence that men and women in the Paleolithic might have been engaged in similar activities.  But that there might be evidence that women were engaged in hunting big game animals just as much as men is suggested in only one sentence: "In some cases, the grave goods and paleopathology agree in demonstrating women were well-practiced projectile hunters, such as at the Peruvian Early Holocene site of Wilamaya Pratxa (Haas et al. 2020)" (Lucy and Ocobock 2023: 7).

As I indicated in my post on the article cited here by Ocobock and Lucy, Richard Haas and his colleagues have provided us what looks like one clear case of an ancient female hunter.  In 2018, Haas's team excavated an archaeological site called Wilamaya Patjxa in the Andean highlands of southern Peru at an elevation of 12,877 feet. They found five human burial pits with six individuals.  Two of these individuals were associated with projectile points from the Early Holocene (beginning around 12,000 to 11,500 years ago).  

One of these two individuals--the Wilamayo Patjxa individual 6 (WMP6)--was identified as a 17-19 year old woman, which was determined by studies of her bones and tooth enamel protein. She was associated with stones that were identified as an integrated toolkit for hunting.  There were stone projectile points that could have been used to kill big game.  There were other stones that could have been used for dressing the game and red ochre nodules for tanning hides.  There were some mammal bone fragments that could have been from one of the species endemic to the Andean highlands--vicuna (a relative of llamas) or taruca (a species of deer).  As depicted in their artistic rendering of WMP6 hunting, Haas's team speculated that she used an atlatl made from a camelid radioulna bone to throw a spear at a vicuna.  However, there is nothing that looks like an atlatl at the burial site.  (I have a post on the evolution of the atlatl.)

And yet, even if one agrees that this is good evidence for identifying WMP6 as a female hunter of big game animals, one must then ask whether this is only one isolated case or part of a general behavioral pattern.  To find the evidence for a general pattern of female hunting, Haas's team reviewed the reports of Late Pleistocene and Early Holocene burials in the Americas.  They identified 429 individuals from 107 sites.  They found 27 individuals from 18 sites who were associated with big-game hunting tools.  Of theses, 11 of the individuals from 10 sites were identified as female, and 16 individuals from 15 sites were identified as male.  They see this distribution--11 female hunters and 16 male hunters--as "statistical parity" between males and females in hunting behavior, which supports "the hypothesis of non-gendered big-game hunting among early populations."

This step in their argument has been identified by their critics as the weakest part of their reasoning.  Notice that Haas and his colleagues have to assume that in ancient burials, "the objects that accompany people in death tend to be those that accompany them in life" (Haas et al. 2020, 5).  So, if individuals are buried with hunting tools, that proves that they were hunters.  Robert Kelly, Ben Potter, and others challenge this assumption: that individuals were buried with hunting tools does not directly prove that they were hunters.  Burial goods are symbolic offerings from the living to the dead, and the interpretations of their meaning are often ambiguous.

This problem is particularly clear in the case of the two female individuals buried at the Upward Sun River site in Alaska (dated to around 11,500 years ago), which has been studied by Potter and his colleagues (2014).  One individual was estimated to have died a few weeks after birth, and the other was identified as a late-term fetus.  Four antler rods, two large dart points, and a third biface lithic tool were found associated with these two individuals.  Potter's team observes: "The presence of the hafted points may reflect the importance of hunting implements in the burial ceremony at USR and within the population as a whole" (17064).  Potter's team does not see this as evidence that females were hunters in this ancient population of hunter-gatherers.  But Haas and his colleagues, in their online Supplement to their article, write: "The Upward Sun River females are both infants and thus were not hunters per se, although they appear to have been gendered in a way that recognized females as being associated with big game hunting."  So although these infants were not hunters, burying them with hunting tools was a symbolic ritual statement that they could have become hunters if they had lived to adulthood!  Potter disagrees.  In an email message to me, he wrote: "I think the most parsimonious and plausible interpretation of the hunting implements in the infants' grave is that they represent symbolic 'sacrifices' of perfectly usable hunting weapons by the father(s)."

There is another closely related problem here that Haas's team makes clear in their online Supplement but not in their article.  In determining whether females were buried with big-game hunting tools, they distinguish "secure" evidence and "tentative" evidence.  They also distinguish between "securely associated with big game hunting tools" and "securely identified as a big-game hunter burial."  There are "secure cases in which context, sex, and date estimates are each determined to be secure," and there are "tentative associations" where the evidence for context, sex, and dating is not so secure.

The WMP6 burial and the two Upward Sun River burials are the only female burials securely associated with big game hunting tools.  But the two Upward Sun River burials are not securely identified as big game hunter burials.  Consequently, in their Supplement, Haas's team concludes: "the WMP6 burial is the only burial securely identified as a big-game hunter burial in the entire sample of late Pleistocene and early Holocene burials in the Americas.  Under the most conservative criteria, we identify one female hunter burial and no male hunter burials."  

Remarkably, this statement is hidden away in the Supplement, and it does not appear in the article.  In effect, this concedes the point made by the critics--that Haas and his colleagues have at best found only one case of a female hunter burial, which suggests that while some individual females in hunter-gatherer societies will become hunters, there is still generally a sexual division of labor in which men hunt and women gather.

The 8 cases where Haas's team think they see "tentative" evidence for the burial of a female big-game hunter are actually quite dubious.  Consider this example, which they report: "Ashworth Shelter is a rockshelter site in Kentucky . . . .  The following summary is based on Walthall's review (46).  A primary inhumation identified as an adult female had a Kirk style projectile embedded in a vertebra and a second point located near the left patella."

Haas's team here is relying on an article by John Walthall (1999), in which he reports the findings of Philip DiBlasi (1981) in a Master's Thesis at the University of Louisville, which is available online.  In describing "burial #4" in the Ashworth Shelter, DiBlasi writes:

"As mentioned above, a projectile point was found imbedded in the body of the third thoracic vertebra.  This projectile entered from the left rear of the individual splitting the neural arch between the left superior and inferior articulating surfaces and the spinous process.  The extreme distal portion (tip) of the projectile entered the dorsal surface of the body of the vertebra with sufficient force to split the vertebra in half.  The left superior articular surface of the fourth vertebra was also damaged."

"A wound of this type would have caused death almost immediately.  The most apparent cause of death would have been hypotensive shock resulting from the direct reflex shock to the central nervous system caused by the impact and resulting rebound of the spinal cord. .  . Paralysis of intercostal muscles would make breathing impossible, again causing death within a short period of time" (1981, 74-75).

Neither DiBlasi nor Walthall identify this as evidence that this individual had been a female hunter. After all, how can the fact that she was killed by a projectile point thrust into her back with sufficient force to split her spine in half be even "tentative" evidence that she was a big-game hunter?

The careful reader might well conclude that the most important sentence in the writing of Haas and his colleagues is not in their published article but in the online Supplement to the article: "Thus the WMP6 burial is the only burial securely identified as a big-game hunter burial in the entire sample of late Pleistocene and early Holocene burials in the Americas."

The archaeological evidence for "Woman the Hunter" seems very skimpy indeed.

In my next post, I will take up Ocobock and Lacy's physiological evidence for female versus male athletic advantages, which they offer as evidence that women have the physiological capacity for hunting, particularly hunting that requires endurance running.

REFERENCES

Anderson, Abigail, Sophia Chilczuk, Kaylie Nelson, Roxanne Ruther, and Cara Wall-Scheffler. 2023. "The Myth of Man the Hunter: Women's Contribution to the Hunt Across Ethnographic Contexts."  PLoS ONE 18(6): e0287101.

DiBlasi, Philip. 1981. "A New Assessment of the Archaeological Significance of the Ashworth Site (15Bu236)." A Master's Thesis. University of Louisville

Haas, Randall, et al. 2020. "Female Hunters of the Early Americas." Science Advances 6: 1-10.

Kelly, Robert L. 2013. The Lifeways of Hunter-Gatherers: The Foraging Spectrum. Cambridge: Cambridge University Press.

Lacy, Sarah, and Cara Ocobock. 2023. "Woman the Hunter: The Archaeological Evidence." American Anthropologist, 1-13.  DOI: 10.1111/aman.13914

Lee, Richard B. 1979. The !Kung San: Men, Women, and Work in a Foraging Society. Cambridge: Cambridge University Press.

Lee, Richard B., and Irven DeVore, eds.  1968.  Man the Hunter.  Chicago: Aldine Publishing Company.

Marlowe, Frank W. 2010. The Hadza: Hunter-Gatherers of Tanzania.  Berkeley: University of California Press.

Ngima Mawoung, Godefroy.  2006.  "Perception of Hunting, Gathering, and Fishing Techniques of the Bakola of the Coastal Region, Southern Cameroon." African Study Monographs, Suppl. 33: 49-69.

Ocobock, Cara, and Sarah Lacy.  2023a.  "Woman the Hunter."  Scientific American.  November: 23-29.

Ocobock, Cara, and Sarah Lacy.  2023b.  "Woman the Hunter: The Physiological Evidence."  American Anthropologist, 1-12.  DOI: 10.1111/aman.13915.

Potter, Ben A., et al. 2014. "New Insights into Eastern Beringian Mortuary Behavior: A Terminal Pleistocene Double Infant Burial at Upward Sun River." Proceedings of the National Academy of Sciences. 111, no. 48: 17060-17065.

Walthall, John. 1999. "Mortuary Behavior and Early Holocene Land Use in the North American Midcontinent." North American Archaeologist 20: 1-30.

Woodburn, James. 1968. "An Introduction to Hadza Ecology." In Lee and DeVore, 49-55.