19 Pages Posted: 15 Apr 2011 Last revised: 30 May 2011
Date Written: April 14, 2011
In essence, the author's biological theory of law is based on fractal patterns. Macroscale patterns mirror microscale patterns. This way of thinking is related to evolutionary theories. However, the actual type of natural selection does not affect the idea that properties of molecules can be recognized in human behaviour. By focusing on the fractal pattern, we can evade detailed biological discussions on exactly how natural selection takes place. That discussion would either bog us down or divert us from the main issue, which is the link between the properties of genes and basic notions in law. By recognizing fractal structures in our empiric reality, we can link very different levels and disciplines and subsequently jump from genes to emotions to law in a systematic manner.
In his famous work The Concept of Law Hart asked himself the question ‘what is law?’ Ever since the publication of this book in 1961, Hart’s answers have retained their appeal and persuasive force. But will it survive another 50 years of encroachment? Hart based his theory on sociological observations. Sociologists for a long time – especially in the 1960s – believed that society itself can prescribe norms and rules. Individuals make society. In what he calls the minimum content of natural law, Hart describes why members of a society cooperate. Without cooperation people cannot survive. Hart appears to adhere to dualism by making a ‘birth’ distinction between rules and morals: morals are rooted in biology, rules source back to society. Biology, however, is monistic in character. Organisms, traits of organisms, thoughts and constructs of organisms – and these include human-made rules – inevitably have their origins in genes, in molecules that act (and react) in accordance with chemical laws of nature.
Dworkin has introduced political principles. However, he is trying to find these principles by searching in common law, which is, in turn, based on these principles. The author does not find this convincing. Where Dworkin rejects the idea of objective morals, modern biology could probably deliver a more fundamental theory on morals and principle. Posner’s pragmatic theory does not convince the author either. If pragmatic judges interpret a statute by what they think a legislator would have done, they are still weighing consequences, and this simply cannot be done in a rational way. Biology and psychology teach us that we unconsciously apply evolutionary principles of which many judges and legislators are not aware. To put it bluntly, biological facts, to a degree, determine our norms and rules.
In this paper, the author reforms Hart’s concept of law into a molecular concept of law that fits a modern, monistic biological perspective.
The molecular concept of law has been eloborated in Hendrik Gommer, A Biological Theory of Law: Amazon 2011.
Keywords: genes, biology, law, Hart, Dorkin, Posner, fractals, CLS, Critical Legal Studies, emotion, reproduction, justice, moral, is-ought problem, Dunbar
JEL Classification: K00, K40
Suggested Citation: Suggested Citation
Gommer, Hendrik, The Molecular Concept of Law (April 14, 2011). Utrecht Law Review, Vol. 7, No. 2, 2011. Available at SSRN: https://ssrn.com/abstract=1809758