The Limits of Legal Evolution: Knowledge and Normativity in Theories of Legal Change

307 Pages Posted: 23 Jun 2019

See all articles by Liam McHugh-Russell

Liam McHugh-Russell

Dalhousie University - Schulich School of Law; Labour Law and Development Research Lab

Date Written: June 14, 2019

Abstract

Over the last forty years, legal theory and policy advice have come to draw heavily from an ‘evolutionary’ jurisprudence that explains legal transformation by drawing inspiration from the theoretical successes of Darwinian natural selection. This project seeks to enrich and critique this tradition using an analytical perspective that emphasizes the material consequences of concepts and ideas. Existing theories of legal evolution depend on a positivist epistemology that strictly distinguishes the objects of social life — interests, institutions, systems — from knowledge about those objects. My dissertation explores how knowledge, and especially non-legal expertise, acts as an independent site and locus of transformation, mediating the interaction between law and social phenomena and acting as a catalyst of legal innovation. Prior work by Simon Deakin has integrated insights from systems theory to show how the interaction between law and economic institutions can only be properly understood by attending to the epistemic frame law uses to interpret economic practice. Using a case study on the impact of ‘law and finance’ literature on World Bank policy advice and, consequentially, on legal reforms adopted by many developing countries between 2000 and the present, I show that such attention to legal knowledge is inadequate. The case points, first, to the contingency of the intellectual tools used to understand legal institutions. Rather than deploying a determinate rationality, private and public actors address legal, economic, and ethical problems using a variety of paradigms: viewpoints are not determined by realities. More fundamentally, the cases suggest that successful paradigms, rather than economic or political realities alone, shape the dynamics of socio-legal change. My conclusions address some normative questions that arise when researchers in a social scientific mode are implicated in the processes they seek to document.

Suggested Citation

McHugh-Russell, Liam, The Limits of Legal Evolution: Knowledge and Normativity in Theories of Legal Change (June 14, 2019). Available at SSRN: https://ssrn.com/abstract=3404815 or http://dx.doi.org/10.2139/ssrn.3404815

Liam McHugh-Russell (Contact Author)

Dalhousie University - Schulich School of Law ( email )

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6061 University Ave
Halifax, Nova Scotia B3H 4H9
Canada

Labour Law and Development Research Lab ( email )

3644 Peel Street
Montreal H3A 1W9, Quebec H3A 1W9
Canada

HOME PAGE: http://https://www.mcgill.ca/lldrl/

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