Evolution, Biolegal History, and the Deep Structure of Law
Posted: 15 May 2009
Date Written: May 20, 2009
In this talk, I will discuss the role that evolutionary theory (and, in particular, the concept of a natural function) can play in contributing to what Owen Jones has dubbed "Biolegal History.”
After setting out a general description of this project, and a number of theoretical desiderata that it should presumably meet, I will outline some of my own work, which aims to identify the structural features of the attitudes that breathe life into our legal practices, and give rise to our sense of legal obligation. In the process, I will pay some attention to integrating recent work by a number of other theorists (e.g., Jones, Kurzban, Robinson, Mikhail, and Guttentag) into this general account. On the descriptive side, this work should -- in my view -- be understood as posing a distinctive and underappreciated challenge to the psychological views commonly espoused by most economists (including most behavioral economists). I will, however, also discuss a very different problem that arises in this literature, concerning the appropriate way to picture the relationship between moral and legal obligations. In my view, this relationship has been misconstrued not only by economists but also by most moral and legal philosophers. I will explain why I think this problem arises so robustly, propose a way of resolving it, and then trace out a number of important normative consequences that should follow.
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