Evolutionary Public Law: Constituting and Administering Human Ultra-Sociality

Abstract

This chapter reflects on how public law, and more specifically constitutional and administrative law, can be understood as expressions of what evolutionary anthropologists and other specialists call human ‘ultra-sociality’. The analysis extends on a framework theory of institutional foundation and change, as well as the ‘metabolic’ function of constitutions as opposed to administrative bodies, that I have introduced elsewhere and now seek to refine in light of the evolutionary perspective this chapter develops. The ultimate focus is on the emergence of a cultural-evolutionary phenomenon — a pervasive conception of ‘right’ (what we now call public law) — that was bound up with, and in turn fed into, the phase transitions that marked the emergence of increasingly complex societies and polities (‘states’) over the course of human history. The chapter focuses on three interrelated, foundational phase transitions in particular: first, the emergence of a collective capacity to mobilize surplus human and fiscal resources (‘blood’ and ‘treasure’); second, the emergence of a social-psychological sense of legitimate political obligation; and, third, the emergence of scalable forms of political and legal management as between a governing principal — the person/institution to which political obligation and legitimacy is ultimately owed — and agents who are understood to carry out tasks on behalf of the principal. Obviously, this third transition comes closest to the concerns of this volume (indeed, such principal-agent mechanisms are arguably central to what today we understand to be administrative law). Nonetheless, by stressing the importance of the first two developments as a predicate to the third, this chapter stresses that we cannot understand how a polity is administered without first understanding how it is constituted. Indeed, one of the main advantages of the evolutionary perspective is that it helps us better understand how the constitutional and administrative dimensions of state formation are in fact inextricably intertwined, two sides of the same ‘ultra-social’ governance coin.

Keywords: cultural evolution, dual-inheritance, administrative law, constitutional law, public law, institutional change, political metabolism, ultra-sociality, principal-agent theory, legitimacy

JEL Classification: B52, Z13