Is Law a Parasite? An Evolutionary Explanation of Differences among Legal Traditions
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Jan M. Smits
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.
©2012 Walter de Gruyter GmbH & Co. KG, Berlin/Boston
Articles in the same Issue
- Article
- Introduction: Symposium on Evolutionary Approaches to (Comparative) Law: Integrating Theoretical Perspectives
- Legal Evolution: Integrating Economic and Systemic Approaches
- Bio-Legal History, Dual Inheritance Theory and Naturalistic Comparative Law: On Content and Context Biases in Legal Evolution
- Reinvigorating Comparative Law through Behavioral Economics? A Cautiously Optimistic View
- Evolutionary Theories in Law and Economics and Their Use for Comparative Legal Theory
- The Emergence of a New Rule of Customary Law: An Experimental Contribution
- Is Law a Parasite? An Evolutionary Explanation of Differences among Legal Traditions
- When "Stuff Happens" Isn't Enough: How An Evolutionary Theory of Doctrinal and Legal System Development Can Enrich Comparative Legal Studies
Articles in the same Issue
- Article
- Introduction: Symposium on Evolutionary Approaches to (Comparative) Law: Integrating Theoretical Perspectives
- Legal Evolution: Integrating Economic and Systemic Approaches
- Bio-Legal History, Dual Inheritance Theory and Naturalistic Comparative Law: On Content and Context Biases in Legal Evolution
- Reinvigorating Comparative Law through Behavioral Economics? A Cautiously Optimistic View
- Evolutionary Theories in Law and Economics and Their Use for Comparative Legal Theory
- The Emergence of a New Rule of Customary Law: An Experimental Contribution
- Is Law a Parasite? An Evolutionary Explanation of Differences among Legal Traditions
- When "Stuff Happens" Isn't Enough: How An Evolutionary Theory of Doctrinal and Legal System Development Can Enrich Comparative Legal Studies
