Is Law a Parasite? An Evolutionary Explanation of Differences Among Legal Traditions

Review of Law and Economics, Vol. 7, pp. 791-804, 2011

Maastricht European Private Law Institute Working Paper No. 2011/31

14 Pages Posted: 9 Sep 2011 Last revised: 10 Jan 2012

See all articles by Jan M. Smits

Jan M. Smits

Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI)

Date Written: September 9, 2011

Abstract

One of the most salient characteristics of law is that it can be seen as a tradition: law is passed on from one generation to another and, even though profound changes in the law may occur over time, its development is usually seen as a continuous one. Thus, in The Common Law, Oliver Wendell Holmes states that ‘the law embodies the story of a nation’s development through many centuries (...).’ Alan Watson also emphasizes the extraordinary persistence of rules by noting that similar rules have been transplanted from one society to another. This paper seeks to explain differences among legal traditions by applying a specific evolutionary framework. This framework is based on ‘symbiosism’, a Darwinian theory developed by linguists to explain the origins and development of language. The basis for this theory is that language is an organism residing in the human brain and therefore a memetic life form. In this respect, interesting parallels can be drawn between language and law. This theory can be used to help explain differences among jurisdictions, in particular why it is that these differences continue to exist over time.

Keywords: evolutionary analysis of law, memetics, comparative law

JEL Classification: K00

Suggested Citation

Smits, Jan M., Is Law a Parasite? An Evolutionary Explanation of Differences Among Legal Traditions (September 9, 2011). Review of Law and Economics, Vol. 7, pp. 791-804, 2011; Maastricht European Private Law Institute Working Paper No. 2011/31. Available at SSRN: https://ssrn.com/abstract=1924345 or http://dx.doi.org/10.2139/ssrn.1924345

Jan M. Smits (Contact Author)

Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI) ( email )

P.O. Box 616
Maastricht, NL-6200 MD
Netherlands

HOME PAGE: http://www.jansmits.eu

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