Sameness and subordination: the dangers of a universal solution.

• Author: Sturm, Susan P.
• Position: Response to article by Robert A. Burt in this issue, p. 179 - David L. Bazelon Conference in Science, Technology, and Law

Judges, Behavioral Scientists, and the Demands of Humanity(1) grapples with one of the most pressing and difficult challenges of our time-how to overcome deep and enduring conflicts that currently divide our community. Professor Burt offers insights into the importance of empathy and identification in breaking down the categories that we use to distance ourselves from the humanity of others and to justify oppression of those we define as outsiders. His solution is hopeful, almost noble. He exhorts judges, social scientists, and by implication, all of us to be our best selves, to focus on how we are part of one overarching human community, to emphasize our commonalities, and to transcend our differences.

Professor Burt's interpretation of the Linus cartoon provides a perspective on the role of empathy and understanding in assessing moral responsibility and legal consequences.(2) If only Lucy understood, she would have behaved differently. She and Linus could have worked it out and transcended this conflict. If only we could see that 'all human beings are fundamentally alike,' that 'each of us can properly be understood as members of the same human species whose essential nature develops according to the same natural rules,"(3) we would understand each other and get along. Indeed, Professor Burt asserts that this acknowledgement of sameness is a prerequisite to our ability and willingness to transcend the enduring social conflict underlying our most difficult legal and social problems.(4) He calls on social scientists and judges to assume responsibility for resolving these deep conflicts by using their roles to emphasize our sameness rather than our differences.

I share Professor Burt's aspirations both to transcend enduring hostilities and oppression and to engage judges and behavioral scientists in this endeavor. I, like Professor Burt, seek to develop a framework that promotes understanding and acceptance of all members of the community and rejects the legitimacy of treating any individual in a manner that denies his or her status as a human being. I also embrace the moral premise of Professor Burt's position-that members of the community share 'undifferentiated moral status' as citizens.(5) Despite this common ground, my comments on Professor Burt's article proceed from a basic skepticism about proposals that embrace a universal emphasis on sameness.

This tension between a common aspiration toward a moral community and a fundamental difference in our starting assumptions underlies the exchange of ideas embodied in this colloquy. It has led to an extremely interesting and ongoing exchange of ideas following the Symposium, including Professor Burt's letter responding to my initial written commentary on Judges, Behavioral Scientists, and the Demands of Humanity. This colloquy illustrates a phenomenon that is quite common to discussions about sameness and difference. Participants in the discussion frequently talk past each other because they use the same words to mean very different things. The risk of misunderstanding becomes accentuated when the discussion centers on abstract principles and generalized solutions, rather than concrete responses to particular problems. The failure to communicate can occur because the discussants are focusing on different levels of generality.(6) It can also occur because participants in the dialogue begin with different sets of experiences or concerns which lead them to concentrate on different aspects of the problem.(7) They may focus their attention on different audiences-the Supreme Court, the lower courts, or actual participants in group conflict. They may proceed from different assumptions about the potential and role of law as a moral force and an instrument of social change.(8) Finally, miscommunication may stem from participants' differing assumptions about power and its role in structuring possible solutions to subordination.(9)

My response to Professor Burt's emphasis on commonality grows out of and reflects the dangers of miscommunication inherent in efforts to address sameness and difference. Each of these differences in perspective and approach has informed and, to some extent, distorted our communication. Understanding the basis for this 'communication gap' is perhaps the most important lesson that can be taken from this conversation about sameness and difference.

I read Judges, Behavioral Scientists, and the Demands of Humanity to go beyond asserting that we all should strive to understand how we share a common humanity and equal status as citizens. My reading discerns an insistence on sameness as the predicate for judicial inquiry, regardless of context or the issue under consideration.(10) I also perceive a move to descriptive sameness as a strategy for promoting empathy and transcending social conflict. Professor Burt calls on scientists to participate in the enterprise of "emphasizing the proposition that all human beings are fundamentally alike."(11) This invocation rests on the assumption that scientists can empirically demonstrate commonality and that they should do so.(12)

My portrayal of the role of descriptive inquiry in Professor Burt's scheme for establishing and justifying sameness prompted his most forceful dissent. One explanation of our communication gap stems from the differing levels of generality that can frame the sameness inquiry. Are we speaking of the essential attributes of human beings qua human beings or the more specific attributes that might be made relevant by particular legal or scientific inquiries? Professor Burt's justification for insisting on a commonality solution proceeds at a basic and general level: we are all members of the same species; we are all members of the human community; and hence, we are all entitled to equal moral status.

At this level of generality, sameness is a relatively uncontroversial but, in my view, limited observation. It can play a role in disciplining and forestalling decisions to place individuals outside the bounds of humanity, such as through the death penalty or formal exclusion from citizenship. I do not think, however, that definitional sameness justifies the move to the sameness solution in other contexts. It seems question-begging to rely on a purely definitional, conceptual(13) argument-that human beings are alike as members of the same species-as a basis for the prescriptive claim that scientists should emphasize sameness. That prescriptive claim must rest on descriptive claims and moral arguments.

As a descriptive matter, it would be difficult to defend the position that science can empirically establish our fundamental sameness once we move beyond the level of membership in the species. Professor Burt acknowledges this point.(14) However, I worry that it is very easy to slip from the logical to the descriptive, from the general to the specific, in one's assertion of sameness and difference. Indeed, this slippage from the logical to the descriptive, either by Professor Burt or by me in my original remarks, seems to account in large part for our communication gap on this issue.(15)

By far the more central and significant aspect of Professor Burt's argument concerns the moral and strategic justifications for insisting on descriptive sameness rather than difference. Professor Burt is offering more than a logical justification for employing science to emphasize sameness. His approach fulfills a moral vision and a strategic concern. His moral vision, which I share, is that people occupy and should strive to achieve undifferentiated moral status as citizens. This moral choice drives his more strategic concern: If we focus on difference, we will inevitably end up justifying oppression.(16) To avoid this end, judges should enlist scientists to emphasize commonalities, rather than differences. We should ask scientists to determine that differences rarely, if ever, matter.

It is not clear to me why we should delegate to scientists the moral or political question of whether sameness or difference matters in a particular legal or social context. Professor Burt has acknowledged that this decision cannot be determined on scientific grounds.(17) The judgment of sameness or difference is not one that scientists are any better equipped or authorized to make than other members of the community. If we direct scientists to make unilateral moral judgments about sameness and difference, we encourage them to merge moral and scientific judgments-a tendency that both Professor Burt and Judge Bazelon have worked to overcome.(18) We remove from public scrutiny the moral judgment that drove the scientific inquiry. We thus hamper our capacity as a community to use the knowledge that scientists can provide and to make responsible moral and political judgments about sameness and difference. Thus, neither morality nor descriptive truth provides a justification for a descriptive sameness solution.

This leaves the strategic argument for descriptive sameness. Professor Burt recounts and appears to endorse the belief that 'if human beings focused clearly and rationally on the descriptive scientific proposition that we are all fundamentally alike in our nature, then we would be more inclined to view one another with sympathy, with mutual understanding and fellow feeling."(19) For me, science's effectiveness in promoting empathy depends on the context and dynamics surrounding the use of information, rather than on science's emphasis on sameness as opposed to difference. In some contexts, insistence on sameness can take on an artificial - even disingenuous-quality that can easily backfire as a means of transcending social conflict. Facts in and of themselves will not necessarily alter attitudes or behavior, nor will they lead people to acknowledge commonality. The impact of information depends on a context that permits and encourages meaningful communication and assimilation of that information.

Consider the...