Patternicity and Persuasion: Evolutionary Biology as a Bridge Between Economic and Narrative Analysis in the Law
Southern Illinois University Law Journal, Vol. 35, p. 269, 2011
40 Pages Posted: 4 Aug 2010 Last revised: 6 Apr 2011
Date Written: January 7, 2011
Although economic and narrative analysis are clearly useful in exploring legal issues, their foundations and persuasive power have not been thoroughly investigated. Evolutionary biology can now explain how human beings instinctively approach legal problems, and what features from economic and narrative analysis are rooted in the information processing functions of the brain. As a result, the most effective aspects of each can be synthesized into a new tool the archetypal narratives of human interaction. This article proposes that evolutionary biology indicates that human beings process legal arguments using three archetypal narratives: (1) the story of cooperation, which describes maximizing the gain produced; (2) the story of competition, which describes the fairness of the process; and (3) the story of the accident, which describes the foreseeablity of the unintended interaction. These archetypes represent a universal approach that can be applied to constructing and deconstructing arguments throughout the full spectrum of legal issues. Furthermore, the tool has tantalizing substantive implications. In particular, evolutionary biology may outline a coherent middle ground between competing substantive approaches advanced by law and economics scholars on the one hand and law, and society scholars on the other, as well as suggesting a biological basis for understanding other philosophical divisions in legal theory.
Keywords: evolutionary biology, law and society, law and economics, narrative legal theory
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