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EVOLUTIONARY TRADITION IN JURISPRUDENCE INTRO o Law grows by feeding on ideas from outside, not inventing its own Borrowed

ed ideas affect law o Darwins theory of evolution affects how we think about law o Purpose of reviewing evolutionary theories Archival: reclaim from obscurity those lost or forgotten Define and create evolutionary tradition in jurisprudence with cumulative power o Evolutionary Theory if they propose that the law is shaped by its environment and not by design choices of a creator o Four basic groups of legal evolution: social, doctrinal, economic, sociobiological SOCIAL THEORIES OF LEGAL EVOLUTION o Law is an integral part of the social life of a community o Its not the law that evolves, but society o SAVIGNY Historical School of Jurisprudence Instead of abstract speculations, study historical foundations (look to past instead of worry about future) Organically Progressive Jurisprudence Not a defense of common law, but stages of legal development before a legal system is ready for codification Pre-Darwinian understanding no concept of natural selection Legal change = entwickling = evolution Law should not be the arbitrary creation of officials, but an integral part of the spirit of the people aka culture Law and culture evolve together Law: custom jurisprudence o MAINE o Stages of Progressive Societies Each stage growing out of the prior one Judgment of Kings (mere commands) Dominion of Aristocracies o Council of Chiefs > King o Body of Rules Customary Law Codification

Patriarchal Theory eldest male parent is the supreme of the household Society = aggregation of families, the house, the tribe Progression of Law from status to contract Found it inconceivable society could develop through different paths/stages Describes patterns but doesnt explain how or why What society adopts in infancy is probably what is best suited for is If retained --> upward march of society o WIGMORE Natural Selection Environmental conditions are responsible for forms Law submits to, among other things, geographic imperative Planetary Theory Not simplistic Interaction of a number of forces Law is an equilibrium between competing social forces that differ with place and time therefore not subject to formula DOCTRINAL THEORIES OF LEGAL EVOLUTION o Evolution not just society level but also on statements of rules and principles o HOLMES Judges make law Law evolves to adapt to the felt necessities of the time Doctrine evolves in response to social changes Common Law: the life of law is not logic, but experience Evolutionary Pragmatism: societys constant reinterpretation of legal forms to serve new purposes Law in science and science in law: biological structures Gradual transformation of ideas in the law, analogy to natures niggardly uninventiveness Spencers Integration legal concepts expand and become more general through the extension of their internal logic Law expands as concept does Darwinian natural selection: The laws struggle for life among competing ideas Judges choice between two social desires Pattern of choices o CORBIN Evolutionary theory of jurisprudence Growth of law evolutionary Living thing: some are still-born, some are sterile, others life to see their children and childrens children in high places

However well-set a rule may be, application is still uncertain Survival of the Fittest re acceptance: some more likely to be accepted than others Judges may lead the multitude, justified only by success in the community Law never speaks with a single voice records of cases are instructive but never harmonious Principles from outside enter the law: more sources than just statute and precedent

o CLARK Statutes also evolve The Interdisciplinary Study of Legal Evolution outlined six examples of legal evolution Exemplified two general patterns of change o Cost reduction in response to social or technological changes o Connection between change in size of economic units/transactions and development of new institutions and rules ECONOMIC THEORIES OF LEGAL EVOLUTION o Modeling the processes that cause change o Shared goal of reducing unnecessary costs causes the law to evolve towards less wasteful laws o RUBIN Decisions by litigants, not judges, determines which legal principles survive Efficiency is maximizing decisions of disputants rather than the wisdom of judges Nothing in this argument justifies how this process can overcome judges biases This argument assumes people are always rational and utility maximizing when theyre not o PRIEST Inefficient rules create inefficient cost Inefficient more likely to be litigated therefore more likely to be subject to review Re judges bias: larger proportion of laws will be of efficient rules than the biases and incapacity of judges o COOTER AND KORNHAUSER Evolutionary forces will lead to an equilibrium Broad distribution of varying solutions o RETROSPECTIVE

Clarks critique re Rubin-Priest: selective relitigation effect could be a real but trivial factor in the actual evolution of the common law Have (finally) focused attention on the mechanisms that may account for patterns

SOCIOBIOLOGICAL THEORIES OF LEGAL EVOLUTION o Effects of evolution are not restricted to biological structures but that many aspects of behavior are also shaped by natural selection o Sociobiologists are willing to presume that evolutionary forces explain a broad spectrum of individual and cultural practices, based on fragmentary and anecdotal evidence not regarded as convincing by more mainstream scientists. o KELLER Darwinian process of evolutionary selection shapes cultural mores in general, laws in particular Law evolves when the power of the state stands behind a particular cultural more Much of the selection of the law has been automatic and unconscious Brown: Rational thinking is one part of it o HIRSHLEIFER Law as a third party that controls internal conflict, like parents of rival siblings Reducing conflict gives certain groups an advantage Legal system that promotes mutually beneficial exchanges while keeping the peace provides an additional survival advantage than one that just suppresses conflict Survival likely if there is a shared definition of appropriate behavior Evidence: animal kingdom Three Social Ethics (probably none of which are observed in their pure forms) The Golden Rule of Communal Sharing The Silver Rule of Private Rights The Iron Rule of Dominance Allows that sometimes, evolution allows for altruism (vs economic self-seeking_ to benefit the group o EPSTEIN Humans who follow rules of conduct are more likely to survive and reproduce Eventually: norms as common instinctive responses Seems implausible that evolution can have much to do with the bulk of the law, which deals with issues removed from survival and reproduction Laws result from evolutionary adaptation under different circumstances

Fundamental norm of minimizing internal struggle is built into the legal syste by evolution, then can derive principles Do not have to wait for extinction each time o RODGERS Draw upon behavioral preferences of human beings as revealed by laws of biology Biology controls social behavior e.g. biologically-justified property being protected (food base, security, identity) Nuisance Laws: essential, even if defendant loses more in an economic sense than plaintiff gains Enforces reciprocal altruism Mumamaslow: basic needs, then altruism Biological theory is not all-encompassing WHY EVOLUTION o Not whether the theory is true or false, but whether or not it is useful o Challenge to consider human nature and the relationship between humans and the environment