Volume 7, Issue 3 - Symposium on Evolutionary Approaches to (Comparative) Law: Integrating Theoretical Perspectives

The papers in this theme issue arise from an expert seminar held at Ghent University’s Department of Legal Theory and Legal History on April 23-24, 2010. Evolutionary theory was once an important source of inspiration for some of the founding fathers of comparative law, as well as for legal theory more generally. Today, however, while evolutionary theory seems to have lost its appeal in the comparative law community, various evolutionary approaches to law and legal phenomena in general seem to have been regaining momentum. Hence, the main purpose of the seminar was to investigate (a) how these different evolutionary approaches relate to one another and what are their relative strengths and weaknesses, and (b) if and how they could be rendered useful and effectively combined for the purpose of developing a more rigorous explanatory comparative legal theory.

This paper explores the scope for synthesis between economic and systemic approaches to the understanding of legal evolution. The evolutionary and epistemic branches of game theory predict that stable norms will emerge when agents share common beliefs concerning future states of the world. Systems theory sees the legal order as a social system which reproduces itself by recursive acts of legal communication, thereby giving rise to self-reference and operational closure. At the same time, the legal system is cognitively open, that is to say, indirectly influenced by other social systems in its environment. This gives rise to the possibility of coevolution of law and the economy. It will be argued that systems theory, by developing the idea of law as an adaptive system with cognitive properties, provides a missing link in the evolutionary theory of norms. Recent game theoretical models imply that common knowledge is not entirely endogenous to agents’ interactions, but depends to a certain extent on emergent normative structures. These include the public representations of common knowledge which are provided by the legal system. The paper will explore the implications of this idea, argue for an integrated economic and systemic analysis of legal evolution, and consider some of the theoretical and methodological implications of such a step.

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.

The purpose of this article is to investigate whether (evolutionary informed) research in behavioral economics can be of use to reinvigorate comparative legal research. The article is structured as follows. After a brief introduction, the second section identifies two overarching (and closely related) deficiencies that seem to permeate the various contemporary comparative law methodologies: first, their widespread disinterest in empirical support that would substantiate or refute their distinct working assumptions and often sweeping claims, and second, the lack of specification of the otherwise oft-invoked notion of culture. The third section then explores whether research in behavioral economics can be put to use to address these deficiencies. First, it is submitted that the behavioral patterns that form the subject matter of behavioral economics offer an interesting avenue for developing empirically better underpinned and legally sufficiently neutral comparative standards. Subsequently, the article examines research that is collecting data on cross-cultural differences in behavior, attempting to relate the observed behavioral variability to more specified macro-level variables. Although clearly much work remains to be done, it is argued that this type of research can be instructive for comparative legal scholars who take an interest in developing an alternative to the (use of a) fourre-tout concept of culture in comparative law.

Evolutionary Law and Economics explains how law evolves in possibly path dependent ways. The theory therefore seems apt to help comparative legal theory in understanding and evaluating legal variation across jurisdictions. This paper reviews evolutionary approaches in Law and Economics to study in a more precise way whether and how different strands of the approach may be useful for the comparative lawyer.

For most legal rules, an evolutionary perspective may be elucidating. Yet it would be hard to claim that otherwise one misses the essence of the rule-making procedure. This paper uses experimental data to show that customary law is different. While some doctrinal concepts of this source of law try to freeze the resulting rule, and to isolate it from the process of rule generation, Maurice Mendelson (in a 1998 paper in ‘Recueil des Cours’) forcefully argues that this conceptualization misses the very difference between statutory (treaty-based) and customary international law. Consequently, he also challenges the conventional claim that for a new rule of customary law to originate, two conditions must be met: there must be consistent practice, and it must be shown that this practice is motivated by the belief that such behavior is required in law. Mendelson claims that this doctrine misses the fundamentally incomplete nature of public international law. He claims that a new rule emerges when mere practice leads to convergent expectations. This paper uses data from public good experiments to back Mendelson’s theory. This evidence demonstrates that behavior converges even absent verbal communication; that convergence is guided by mean contributions in the previous round, which serve as an implicit norm; that free-riding on this implicit norm is regarded as illegitimate; that cooperation can be stabilized at a high level if the functional equivalent of what public international lawyers call “reprisals” are permitted. Hence the mechanism of norm formation proposed by Maurice Mendelson is fully borne out by the experimental data.

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.

Comparative legal scholarship will benefit from better explanations of legal development. While the complications of legal systems are a challenge for cause and effect stories, evolutionary theory offers a powerful, yet relatively simple, set of explanatory principles that can be appropriately applied to both doctrinal topics and legal systems as a whole. The necessary starting point for an evolutionary analysis is to examine the three core components of evolution: descent, variation, and selection. Engaging these topics and developing good descriptions for each of them for the targeted system can be very helpful in providing good explanations to the “why” questions of comparative law analysis.