Why Evolutionary Biology is (so Far) Irrelevant to Law

50 Pages Posted: 23 Mar 2006 Last revised: 13 Feb 2014

See all articles by Brian Leiter

Brian Leiter

University of Chicago

Michael Weisberg

University of Pennsylvania

Date Written: October 17, 2007


Evolutionary biology - or, more precisely, two (purported) applications of Darwin's theory of evolution by natural selection, namely, evolutionary psychology and what has been called human behavioral biology - is on the cusp of becoming the new rage among legal scholars looking for interdisciplinary insights into the law. We argue that as the actual science stands today, evolutionary biology offers nothing to help with questions about legal regulation of behavior. Only systematic misrepresentations or lack of understanding of the relevant biology, together with far-reaching analytical and philosophical confusions, have led anyone to think otherwise.

Evolutionary accounts are etiological accounts of how a trait evolved. We argue that an account of causal etiology could be relevant to law if (1) the account of causal etiology is scientifically well-confirmed, and (2) there is an explanation of how the well-confirmed etiology bears on questions of development (what we call the Environmental Gap Objection). We then show that the accounts of causal etiology that might be relevant are not remotely well-confirmed by scientific standards. We argue, in particular, that (a) evolutionary psychology is not entitled to assume selectionist accounts of human behaviors, (b) the assumptions necessary for the selectionist accounts to be true are not warranted by standard criteria for theory choice, and (c) only confusions about levels of explanation of human behavior create the appearance that understanding the biology of behavior is important. We also note that no response to the Environmental Gap Objection has been proffered. In the concluding section of the article, we turn directly to the work of Professor Owen Jones, a leading proponent of the relevance of evolutionary biology to law, and show that he does not come to terms with any of the fundamental problems identified in this article.

Keywords: evolution, natural selection, law, biology

JEL Classification: K00

Suggested Citation

Leiter, Brian and Weisberg, Michael, Why Evolutionary Biology is (so Far) Irrelevant to Law (October 17, 2007). U of Texas Law, Law & Econ Research Paper No. 81, U of Texas Law, Public Law Research Paper No. 89, Available at SSRN: https://ssrn.com/abstract=892881 or http://dx.doi.org/10.2139/ssrn.892881

Brian Leiter (Contact Author)

University of Chicago ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

Michael Weisberg

University of Pennsylvania ( email )

Department of Philosophy
433 Logan Hall
Philadelphia, PA 19104
United States

HOME PAGE: http://www.phil.upenn.edu/~weisberg

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