Lawyers, silliness and racism

You can’t help wondering about legal academics. What with Deakin University’s Mirko Bagaric waxing lyrical about the inherent morality of torture, and his colleague James McConvill arguing a variety of increasingly bizarre propositions (most recently today’s article claiming that insider trading is a wonderful thing that shouldn’t be illegal), you could be forgiven for concluding that academic lawyers’ grasp of the world of ideas beyond black letter law is more than a tad deficient.

Then there’s US legal academic Cass Sunstein, who reckons legislators are under a moral duty to impose the death penalty. But Macquarie University’s Andrew Fraser almost certainly takes the cake for sheer ignorant racist effrontery. He argues for a latter day White Australia policy on the seemingly contradictory twin bases that we might be swamped by black Africans who are so congenitally stupid that they’ll resort to crime and violence in epidemic numbers, and also by Asians who are on average so much smarter than white Australians that we’ll end up as a servile underclass!

Where does this nonsense come from?

Well, there certainly appears to be a live academic debate among psychologists about the existence and extent of race-based IQ differences (and more importantly, what the data connote). Fraser’s claim that black Africans have an average IQ of 70 (borderline moron level) appears to emanate from Irish academic Richard Lynn (there may be an unconscious irony in the fact that the latter is a professor at the University of Ulster), while his broader claims probably emanate partly from J Phillip Rushton’s book Race, Evolution And Behavior: A Life History Perspective:

Rushton posits a panoply of physical and/or mental traits whose incidences run along an continuum with East Asians at one extreme, Africans at the opposite extreme, and Europeans in the middle. ( The book claims that Asians, on average, are the most intelligent, have the lowest crime rates, work hardest, are the least promiscuous, the least aggressive, have the largest brain size, lowest rate of birth to twins, the slowest maturation rates, greatest parental investment in child-rearing, lowest rates of sexually transmitted diseases, the longest life expectancy, the greatest degree of emotional control, and the least amount of body odor (due to their apocrine glands being smallest and least numerous). The book claims that Blacks average at the opposite end on all of these scales, and Whites rank in between Asians and Blacks, but closer to Asians. The book uses averages of hundreds of studies, modern and historical, to support these claims.

Fraser’s obnoxious opinions may also have been partly gleaned from Richard J. Herrnstein and Charles Murray’s 1995 book The Bell Curve.

But more recent research seems to undermine the odiously racist conclusions touted expressly by Rushton and Andrew Fraser (and implicitly by Herrnstein and Murray). Although it now seems fairly well accepted that there are significant measurable differences in average IQ between races, that doesn’t mean what racists like Fraser would have us believe. Some researchers (e.g. Fischer et al. (1996)) have argued that the type of IQ test used by Herrnstein and Murray is really a test of schooling rather than intelligence (a critique that arguably applies to most IQ tests to some extent). Perhaps more importantly, recent research indicates that heredity/genes account for only 40-50% of a person’s intelligence, with the rest being attributable to environment. Thus, the lower IQ scores of black Africans probably reflect much more the cultural bias of the IQ test itself along with extreme social deprivation and poverty (MacIntosh (1998)) than innate genetically determined stupidity:

In a society where many children are severely malnourished and live in grossly overcrowded slums, ravaged by infectious diseases; where relatively few children receive any formal education at all… there can be little doubt that differences in IQ scores will be partly a result of these environmental differences…

That hardly provides a sound basis for excluding them as potential Australian migrants. You would think that this would be somewhat self-evident, but apparently not to Andrew Fraser. He argues that “an expanding black population is a sure-fire recipe for increases in crime, violence and a wide range of other social problems“. But the facts don’t bear out the claim. The only Australian study of crime and ethnicity AFAIK is a 1999 Australian Institute of Criminology paper by Satyanshu Mukherjee, which found that most migrant groups had significantly lower crime rates than white Australians (although Kiwis, Vietnamese and Lebanese are exceptions). Alan Reifman notes recent research specifically directed at Herrnstein and Murray’s claims in The Bell Curve (TBC):

Two teams of scholars — Claude Fischer and colleagues (1996) from Berkeley who focused on predicting poverty, and Francis Cullen and colleagues from various universities who focused on crime outcomes (Cullen, Gendreau, Jarjoura, & Wright, 1997) — set out to rectify matters in their respective areas using the same data source as was used by Herrnstein and Murray, the NLSY.

Fischer et al. (1996), in their book Inequality By Design, recalculated TBC’s equation predicting the probability of being poor. They found that when a fuller set of potential determinants was included (whether someone was reared on a farm, came from a two-parent family, had been in an academic track in school, etc.), the social and environmental factors were more powerful predictors than IQ.

Cullen and colleagues (1997) noted that:

“In a normal scientific approach, Herrnstein and Murray would have first identified the known predictors of crime and then sought to demonstrate that IQ could explain variation above and beyond these criminogenic risk factors. These factors are identified in the readily available literature including Herrnstein’s own [prior] work… By limiting their analysis primarily to three factors — IQ, SES, and age — they risk misspecifying their model and inflating the effects of IQ” (p. 393).

Reanalyses including additional predictors such as religious involvement and academic aspirations indeed showed IQ to have less of an impact on criminal behavior than did the original TBC analyses.

In other words, although IQ isn’t totally irrelevant to life outcomes like crime and poverty, it’s less important than social and environmental factors, and IQ itself is significantly determined by social and environmental factors:

The IQ scores vary greatly among different nations for the same group. Blacks in Africa score much lower than Blacks in the US. The Black-White gap is smaller in the UK than in the U.S. Another example is Jews who score much lower in developing nations and Koreans who score much lower in Japan. There are other examples of IQ score differences between close neighbours in the same nation, for example between French vs. Flemish speakers in Belgium, Slovaks vs. Gypsies in Slovakia, Irish and Scottish vs. English in Great Britain, and white speakers of Afrikaans vs. white speakers of English in South Africa. The difference between the neighboring white Protestants and Catholics in Northern Ireland is as large as the differences between whites and blacks in the U.S.

Like Andrew Fraser, I have no expert knowledge at all about questions of race, IQ, poverty and criminality. But it didn’t take very much Googling to discover that his claims are scientific gobbledygook. He is, as Jason Soon noted, a mountebank (a delightful word that deserves to make a comeback) and a racist.

I suspect the actual state of current human knowledge in this area is best summarised by Turkheimer and Waldron (2000):

[S]ome aspects of the development of complex human behavior may remain outside the domain of systematic scientific investigation for a very long time. Although developmentalists may be disappointed that a substantial portion of human development remains too complex, too interactive, and too resistant to controlled investigation and straightforward statistical methods to yield to systematic scientific analysis as we currently understand it, it must be remembered that the alternative — a world in which human behavior could be understood all the way down in terms of correlations between difference scores — would present its own gloomy prospects in the ethical evaluation of human agency …

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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19 Responses to Lawyers, silliness and racism

  1. Andrew Fraser is right, but he doesn’t go far enough – we should also exclude the drunken Irish, the dirty English, the the drug hoover New Zealanders and especially the Scottish, because their accent is difficult to understand.
    IQ tests do nothing but test your ability to do IQ tests. I was tested three times at school, my lowest score was 142 and I’m not smart enough to come in out of the rain.
    How you’re going to devise a test which is as relevant to a suburban kid from Tokyo as it is to a Sudanese farmer’s boy is beyond me.

  2. Rafe says:

    Ken you are talking about, what, four or five out of a population of many thousands of lawyers. Say 10,000 to keep it simple. That means that 9,995 lawyers did not make outrageous statements during the last month or two. Maybe that is not much consolation for you but is the best I can manage at short notice. If you get bugged by silly statements by lawyers, how do you think other people feel when they keep reading that the tough times during the Industrial Revolution and the Great Depression were caused by unfettered markets!

  3. Jacques Chester says:

    I’m going to have to be silly also, and support the legalisation of insider trading.

    Why, exactly, is it a silly idea?

  4. Ken Parish says:


    Insider trading is obnoxious as a matter of fundamental principle, in that it involves public company directors placing their own private interests before those of the shareholders generally whose interests they are appointed to promote.

    In a more specifically practical sense, McConvill argues (echoing American academic David Haddock) that “mum and dad” investors aren’t hurt by insider trading, because while some mums and dads may inadvertently sell in the early part of a price rise generated by unannounced insider information, others may inadvertently buy and so inadvertently profit. But this argument is surely nonsense. By definition, insider trading results in the insiders capturing the vast majority of a price rise generated by good news, before outsiders even know about it. By the time the news breaks and most of us get an opportunity to buy in, most of the rise has already occurred and insiders are taking their profits by selling to us poor ignorant suckers. The fact that a handful of suckers might accidentally buy during the period before the announcement of the good news does nothing to mitigate the overall adverse effect on the “information poor” outsiders.

    Moreover, there is a likely more general adverse effect. If ordinary investors come to believe (accurately if insider trading laws are abolished) that only insiders can ever reap decent profits from the stock market, then they’re going to be much less likely to invest their hard-earned savings in that market, so that corporate equity capital will become much harder to obtain.

    Finally, McConvill argues that some people will always have an “informational advantage” anyway, and therefore why bother to reduce this by prohibiting insider trading? He’s certainly right that some investors have significant informational advantages over others, just as dedicated punters who religiously study the form and attend trackwork etc have an advantage over those who just stick a pin in the form guide. But few horse racing enthusiasts would argue that this means that racing authorities should abolish all rules prohibiting the doping of horses to produce a predetermined result known only to the insiders who engineered it.

    The stock market, like punting on the gee-gees, is a marketplace, and markets are artificial human constructs that exist only so long as we all subscribe to and enforce some basic rules that maintain reasonable confidence on the part of market participants that they have a fighting chance of making a buck if they’re smart and hard-working enough. Insider trading, like drugging horses, fundamentally undermines that essential basic confidence in the integrity of the market.

    Mind you, no set of rules could ever completely prevent insiders from covertly passing “price sensitive” information to friends or colleagues, and one would be naive to think otherwise. But again that doesn’t mean we should abandon having rules or attempting enforce them as much as reasonably possible. Quite probably only a small proportion of shoplifters are ever caught too, but that doesn’t mean Woolworths should have signs out the front saying “help yourself to a five finger discount”. Making an example of those who ARE detected has a deterrent effect, especially among corporate directors who enjoy basking in social respectability (whether deserved or othewrwise). One would think that the fates of Rovkin, Adler and (to a lesser extent) Vizard will cause others to think twice at least for a while.

  5. Ken,

    I can understand your dismay at finding the profession of legal academic disgraced in this way but I think Rafe may have a point. The only thing I can think to add to it is that the instances you’ve cited are further demonstrations of something I’ve suspected for quite a while; traditional liberal education don’t always work as a moralising influence. (That word “liberal” is going to be a red rag to a few people but I can’t see any way around that. Pointing out that I’m referring to a notion at least as old as the nineteenth century obviously isn’t going to cut it so let’s move on.)
    Take some bastard and give him a university education and, like as not, all you’ll end up with is a knowledgeable bastard.

    Looking on the bright side, I’m heartened by the implied humility in Fraser’s description of his opponents:

    Associate Professor Fraser told the Herald it was only the “educated middle class” who opposed his views. “I think most ordinary people would find what I’m saying more or less self-evident,” he said.

    Translation: look, there’s nothing special about me, I’m just some guy who happens to make a living teaching Law. But when it comes to other stuff – like my opinions on immigration – I can’t hold myself out as an expert. When it comes down to it, I’m no better informed than anyone else whose opinion you might ask.

  6. Ken Parish says:


    I did say that people “could be forgiven” for drawing adverse conclusions about academic lawyers generally from the plethora of silly articles some of our brethren have published ver the last month or two. I didn’t say that this was what I myself believed, and in fact I don’t. I KNOW that there are lots of thoughtful, erudite academic lawyers who are as appalled as I am by the antics of the Frasers and Bagarics. But it IS fairly remarkable that we seem to have such a concentrated burst of noxious thought spewing into the public arena from one professional/academic discipline. Maybe it’s just a statistical anomaly, but it does seem quite strange.

  7. Rafe says:

    Gummo, the apparent failure of liberal education is one of my hobby horses. There are a number of contributing factors, each of which calls for a small thesis. I suppose I should put up a post with appropriate links and indeed I will do so in the near future. Anyway, some of the factors:
    1. The capture of the intellectuals by socialism (the overwhelming majority) or economically illiterate conservatism (like Robert Manne in his conservative mode). This means that the talking and writing classes for about 200 years have mostly been incapable of forming a half decent opinion on economic policy.
    2. The ossification of classical liberal education so that the great scholars in those fields and of course their obedient pupils were usually ignorant or even hostile towards science.
    3. The philistinism of the scientists and the consequent two cultures situation unhelpfully described by Lord Snow.
    4. The strange fads that afflicted the mainstream of philosophy in modern times – positivism, existentialism, Wittgensteinism, POMO, all of which tended to estrange philosophy students from a creative engagement with the larger culture and social issues.
    5. Explosion of the universities post WW2.
    6. Radicalisation of the humanities in the 60s and 70s.
    7. The Dawkins reforms.
    8. A few other things.

  8. PB says:

    Keating spent most of his last two terms appointing the daft sods to the Federal Court bench.

  9. blank says:

    I must say that I have often wondered about the future social effects of Asian and African immigration.

    Will hard-working Asians want their taxes being spent on pensions for ‘lazy whites’ who had every opportunity, but did not provide for their own retirement?

    What will the attitude of Africans be towards indigenous Australians? Will they say “My family was wiped out in Rwanda; I spoke no English when I arrived, but now I’ve got a job, a house and a car – and I’m blacker than you.”

  10. I think there’s a difference between Fraser and Bagaric/McConvill, Ken.

    Fraser obviously is a sincere racist.

    Bagaric and McConvill seem to have cottoned on to the market value of outrageous nonsense for op/ed fame and fortune. As I argued here:

  11. Fair enough, Ken. I’m not too familiar with Bagaric’s work apart from having read the full version of the notorious torture paper.

  12. Jacques Chester says:


    The analogy to a racetrack, though popular, is flawed. In particular you’re trying to connect gambling to what is supposed to be investment. A race is subject to chance, and betters bet on the basis that the outcome is not certain. Fixed races violate those expectations and the suspicion of fixing is enough to bring bookies and racetracks to ruin.

    A stock market is not subject to chance, not directly. The value of a given stock will vary over time but it varies in relation to the perceived fortunes of the company. The future price cannot be fixed – the outcome of a report can’t be fixed, and when it is, that’s fraud, which the law already addresses.

    It makes sense that directors are self-interested, as they’re shareholders too. In a market where they can free buy or sell their shares there would be those in the know watch those who are even more in the know. The vast majority of money in the market is institutional and not individual. Insider trading if legalised is far more likely to be less carefully hidden. John’s gotten out of X and doesn’t mind telling his mate at Acme Prudential that he has.

    More to the point, any market, properly formed, is voluntary. Equity only appears on a company balance sheet when it is issued. After that the shares take on a life of their own, and no amount of buying and selling will affect the underlying profitability of a company which drives the attractiveness of its debt and equity issues.

    Finally, if you ask me, insider trading is an unimpeachably popular law because it’s about jealousy. Why should the folk who have donkey’s years of experience get to know stuff? The bastards!

  13. yobbo says:

    I’ve never had anyone give me a good explanation as to why insider trading should be illegal.

    Most of the time it comes down to “Those bastards have enough money already”. As Jacques said, it’s simply tall-poppy syndrome enshrined in legislation.

  14. PB says:

    The big problem is that it can influence a share price- it is unethical as a board member, who makes the decisions, to benefit from decisisions made that shareholders can’t benefir from- after all, they own the firm. Easily solved by having non-shareholding directors, but then where do you find some dickhead to sit on a board and accept the responsibilities of a director while not obtaining a benefit.
    I’m the director of five companies- if there was no benefit to me, and if I didn’t act on knowledge of the companies performance, I’d be an imbicele to take on the legal responsibility.
    Public companies are different- there are shareholders beyond the directors to take into consideration.
    Fact is, insider trading is what makes the corporate world go ’round, and the odd idiot like Vizard is the cost of doing buss. The only people who think IT is evil are people who are outside the loop.

  15. Andrew Norton says:

    If Fraser was sincere in his concern about IQ, he would call for immigration based direcly on that (though arguably we partially already have it through skilled migration), rather than using a crude proxy like race.

  16. Andrew Norton says:

    Critics of IQ tests like to say that they are culturally specific, eg Dirk above:

    “How you’re going to devise a test which is as relevant to a suburban kid from Tokyo as it is to a Sudanese farmer’s boy is beyond me.”

    But in immigration we don’t need to worry about these things, since culturally-specific attributes are just what we want. What use are Sudanese farm skills in Australia?

  17. PB says:

    I’d like to know why refugee visas aren’t all handled as they were for the Albanian Kosovars? A two year protection visa is more relevant to peole fleeing war/persecution etc, and they can be repatriated when the situation settles down in their home country; many who leave these places are educated and skilled, exactly the sort of people rebuilding nations need. A lmited visa would also cut a lot of opportunists out of the loop. (The commonwealth need to be put on a short leash on this- they’ve given residence to a number of Kosovars who bitched, most of whom are now on welfare).

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