Legal Evolution: Theories and Models (System, Complexity, Chaos)

The first lecture, on Legal evolution: theories and models (system, complexity, chaos) introduces basic concepts of evolutionary thought and considers their explanatory force in relation to law.   There is no single, dominant theory of evolution which is relevant to law, but rather a family of inter-related ideas and models.  In principle, genetic models may be of interest to law by way of analogy or metaphor, rather than as descriptions of legal or other social phenomena. We should be very careful to scrutinise claims for the direct influence of genetic factors on social institutions, in the manner of the disciplines of ‘sociobiology’ or ‘evolutionary psychology’.  While it is self-evident that there is a genetic foundation or ‘substrate’ to all human behaviour, we have no reliable way of knowing how far genetic factors influence the institutional structures we observe in modern society, and no sound theoretical or empirical basis for believing that human genetic variation is reflected in the cross-cultural and cross-national diversity we observe in contemporary societies.  A more modest and defensible, and hence more useful, hypothesis is that human institutions have evolutionary properties which bear a family resemblance to the mechanisms identified in the biological sciences.  However, we should not expect the mechanisms of social evolution to be identical to those underlying processes operating in nature.

With these caveats, a version of the Darwinian ‘variation-selection-retention algorithm’ can be seen to account for the way legal rules evolve in response to changes in their wider economic, political and technological environments.  This model is a good fit with the observed path-dependence of the law and also captures law’s cognitive function, that is, the sense in which the rules and concepts used in legal reasoning allow for the retention and application of socially useful knowledge. The model is very far from the ‘evolution to efficiency’ account of legal change which is implied by the modern ‘law and economics’ literature: rather, legal change is error-prone and chaotic, with no guarantee of an optimal outcome.  Having said that, law of the kind that has evolved alongside the contemporaneous rise of the market economy and rule of law state has properties which are broadly conducive to the maintenance of the liberal-democratic order. The law’s role is not confined to the stabilisation of economic expectations, important as this is. The legal order is also one of the ultimate guarantors of effective participation by citizens and groups in the social and economic life of the polity.