Bio-Legal History, Dual Inheritance Theory, and Naturalistic Comparative Law: On Content and Context Biases in Legal Evolution
Posted: 16 May 2010
Date Written: May 14, 2010
It is noteworthy that, at the beginning of the comparative study of law and legal cultures near the end of the 19th century, evolutionary theory appears to have been a major source of scientific inspiration for some of the founding fathers of this by now well-established field of enquiry. For a variety of reasons, evolutionary theory – or perhaps more accurately, certain largely discarded brands of "evolutionism" – nowadays would seem to have lost its appeal among comparative law scholars. Moreover, the mere possibility of ever having a science of comparative law has been thoroughly questioned from a variety of angles, and, at least in theory, interpretive and normative approaches appear to carry the day. Recently, however, the application of various evolutionary approaches to law and legal phenomena has in general been regaining momentum. While some of these approaches have already been probed at least to some extent as regards their possible usefulness for comparative law and its theory, many others as yet remain to be investigated explicitly in this respect. In this paper, I take a closer look at what contemporary evolutionary approaches to human behavior – in the sense of the various approaches delineated in Kevin Laland and Gillian Brown's book Sense and Nonsense, even though I will not address all of them – could have to offer to comparative legal theory.
Before looking at these contemporary evolutionary approaches to human behavior, however, it can be useful to look back at how older versions of evolutionary theory made their way into older writings on comparative law. In admittedly relatively broad strokes, two opposing views can be distinguished: some authors stressed the "psychic unity of mankind", leading to homogeneity in law, while others favored explanations in terms of imitation, leaving room for legal heterogeneity. As I will try to show, both of these – (perhaps too) broadly speaking – "evolutionary" views that were already present at the beginning of the comparative study of law and legal systems to some extent have their counterparts in contemporary cultural evolutionary theory. However, this is not to say that nothing has changed at all. I shall argue, quite the contrary, that these contemporary cultural evolutionary theoretical approaches have reached a sufficient level of both sophistication and agreement to warrant their cautious re-inclusion into comparative legal theory.
The paper is structured as follows. In section 2 I will introduce the concept of "bio-legal histories" as an evolutionary psychologically inspired new, but possibly better variant of the much older idea of the "psychic unity of mankind" leading to "universal comparative law" (section 2). The contemporary evolutionary approaches to human behavior (and culture) underlying these views – evolutionary psychology and cultural epidemiology – will then be contrasted to dual inheritance theory – a contemporary evolutionary approach to human behavior that is, I believe, better geared towards understanding the mechanisms leading to cultural diversity (section 3). I will argue that the differences between these approaches and their counterparts in the comparative law literature are in large part due to their differing opinions on the relative likely importance of two different classes of cultural evolutionary forces: content-based biases and context-based biases. This will also allow me to express some doubts as regards memetic approaches to (comparative) law and Generalized Darwinism in evolutionary economics (section 4). Finally, some possible implications of the dual inheritance theoretical approach for comparative law are briefly discussed (section 5).
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