Bio-Legal History, Dual Inheritance Theory and Naturalistic Comparative Law: On Content and Context Biases in Legal Evolution

Abstract

In this article, I take a closer look at what contemporary evolutionary approaches to human behavior and culture could have to offer comparative legal theory. I shall argue that these contemporary evolutionary approaches have reached a sufficient level of both sophistication and agreement to warrant their cautious re-inclusion into comparative legal theory. The article is structured as follows. In the first section I will introduce the concept of “bio-legal histories” as a new, but possibly better, variant – inspired by evolutionary psychology – of the much older idea that the “psychic unity of humankind” leads to “universal comparative law.” The contemporary evolutionary approaches to human behavior (and culture) underlying these views – evolutionary psychology and cultural epidemiology – will then be contrasted to dual inheritance theory – a contemporary evolutionary approach to human behavior that is, I believe, better geared towards understanding the mechanisms leading to cultural diversity. I aim to show that the differences between these approaches and their counterparts in the comparative law literature are in large part due to their differing views on the relative likely importance of two different classes of cultural evolutionary forces: content-based biases and context-based biases. This will also allow me to express some doubts as regards memetic approaches to (comparative) law and the application of Generalized Darwinism to evolutionary economics. Finally, some possible implications of the dual inheritance theoretical approach for comparative law are briefly discussed.