Evolutionary Theory and Legal Positivism: A Possible Marriage

Abstract

The basic idea of this work is to arrange a possible marriage of the evolutionary approach to the law with legal positivism, in particular in order to reinforce the position of evolutionary theory within the legal world and, at the same time, to retain those features that make evolutionary theory what it is. In order to reach this goal, Part One starts with some clarifications as to certain general terms used in this discussion (e.g. legal positivism or evolutionary theory). Part Two focuses more specifically on the definition of the main target of the investigation, namely the evolutionary approach to the law. This part aims at explaining what evolutionary is from a legal perspective, in particular in terms of a contribution for a better understanding of how and why legal changes take place. Part Three then moves on to identify the lack in the evolutionary approach of an explicit normative component. How this absence has most likely contributed to the marginalization of evolutionary theory from the legal discourse, which requires both descriptive and normative components, will also be demonstrated. To fill this gap, Part Four explores several well-established contemporary legal theories in order to retrieve a normative message compatible with the basic hypotheses of an evolutionary approach to the law. Based on their ideas as to how and why the law changes through time, these contemporary legal theories will be divided into two ideal-typical groups: “Creationist” and “Darwinist” legal theories. Once “Darwinist” legal theories, such as legal positivism and procedural natural law, are shown to offer certain contributions compatible with an evolutionary approach to law, Part Five focuses in particular on legal positivism (and its emphasis on the sources of law) as the theory whose normative component can better complement the evolutionary theory. In the final Part Six, transnational corporate law and its making will be investigated as a possible concrete field for legal investigation by the “newly married” evolutionary approach, i.e. the one integrated with a normative side borrowed from legal positivism.

Keywords: evolutionary theory, legal positivism, transnational corporate law

JEL Classification: K10, K22