From “Evolutionary Theory and Law” to a “Legal Evolutionary Theory”

Abstract

Evolutionary theories have always been treated by legal scholars as a sort of cousin to the legal theoretical family, both in Europe and the United States. They are nice theories, they tell interesting stories, you sometimes listen to what they have to say and when among friends, you may even quote them. However, in the modern mononuclear family, when it is time to tackle important issues and reach important decisions, or simply to celebrate some success stories, these cousins are often left outside the door, being simply “relatives” and not part of the legal family in the proper sense. A former evolutionary scholar strikingly stated in a manner that can be seen as representative of the general skepticism towards the evolutionary approach of a large segment of the legal family, “Legal scholarship should not be so timid as to depend on others for its theoretical models. We might take our inspiration where we find it, but we should build our theories within our own discipline, constrained only by the data that defines it and the criteria of quality appropriate to it.” The main objective of this article is to take the first step towards making evolutionary theory “our own discipline,” by elevating evolutionary theory from the status of “cousin” to one of “sibling” (or at least “in-laws”) of the legal family. The focus in particular is to understand why, despite the fact that the evolutionary theory approach to law (or “evolutionary theory and law”) has been present quite a while in the legal scholar's discussion, the legal world at large has left it at the front step of the legal house. Based on this analysis, the task is also to evaluate whether it is possible, after certain adjustments, to invite evolutionary theory into the larger family of legal thinking, in particular as part of the legal theories of law-making (as “legal evolutionary theory”).