I have recently published a paper in the Oxford Journal of Legal Studies on the question of whether law, and in particular individual rights and responsibilities, can be viewed as a process of evolution. The premise is that natural selection and evolution are largely absent from jurisprudential considerations of the sources or origins of law. This is striking given that many other disciplines, such as economics or psychology, have engaged with or subsumed Darwin’s theory in the past few decades. Yet if you open any textbook on jurisprudence or legal philosophy, you will find no mention of Darwin or evolution.
In my opinion, this is about to change. For example, a recent SSRN paper by US academic E. Scott Fruehwald argues for a biological basis of rights. This is in line with discoveries from evolutionary biology – remarkably, scientists studying the behaviour of monkeys recently concluded that they have a sense of justice. This leads to the conclusion that humans may have an inherited, rather than a learned, sense of justice. The implications for legal scholarship have not been explored, and perhaps the present landscape on the interaction between law and evolution is too narrow.
I found a useful framework for describing this shift in the law and literature discourse. When those two disciplines began to explore common ground, they split into law in literature, and law as literature. Law in literature examines law in fictional texts, the classic example being Kafka’s The Trial; while law as literature applies literary techniques to law, for example using Derrida’s deconstruction manoeuvres in legal criticism. Similarly, law and evolution (a better descriptor than law in evolution!) would refer to the growing body of regulatory machinery around genetic research, including such practices as cloning, or genetic screening. This is the area traditionally governed by ethics, which has gradually ceded ground to law in the interests of public demand for regulation, and is often referred to as ‘bioethics’. It is already well developed domestically and internationally, as seen in the Universal Declaration on the Human Genome and Human Rights or the Council of Europe’s ‘Bioethics Convention’.
However law as evolution asks whether post-World War II international law, as represented through the development of individual rights and responsibility, could be viewed as a process of evolution and indeed could be said to have genetic origins. This latter branch would necessarily subordinate human rights to evolutionary processes, and would seek genetic explanations of rights-based systems and behaviour. At present, it appears confined to a branch of enquiry termed evolutionary psychology, a controversial approach under which genetic explanations of human behaviour and institutions are sought. Thus the psychologist Dennis Krebs has written a chapter on ‘the evolution of a sense of justice’ in a book entitled Evolutionary Forensic Psychology.
Prima facie the parallels between law and natural selection are apparent. As Darwin observes as a starting point, natural selection operates at the level of the individual, not at the level of the species or genus. That legal and political philosophy also led to the conclusion that the individual possessed inherent rights and responsibilities echoes the biological process. Inherent or inalienable rights could be perceived as the evolutionary logic of law. The universality of rights and the universality of genes may implicate the two. Interestingly, both the Universal Declaration of Human Rights and the Nuremberg Charter (in the elaboration of a new category of ‘crimes against humanity’) were founded on a concept of ‘nature’ or ‘natural’ rights, with the former removing the word ‘nature’ from its final draft because of incorrect associations with God, and the latter removing references to naturalist philosophy in the drafts to avoid handing any extra initiative to the defence team of the Nazis. Therefore both documents suppressed their debt to ‘nature’, but its trace can be found in the preparatory materials.
Furthermore there is evidence of behaviour which corresponds to rights in all human societies. Many authors speak metaphorically of human rights in terms of evolution. Perhaps there are also empirical biological or evolutionary markers analogous to certain identifiable rights. As Fruehwald argues, rights can be based on anthropocentric truths, meaning that the fundamentals of rights derived from how our brains evolved, while the details of rights arose from how a particular culture reacted to varying geography, ecology and social conditions.
The dangers of the nascent law as evolution discourse lie in the creeping ‘geneticization’ of society. The word refers to the ways in which the science of genetics is influencing medicine in particular and society in general. The ‘geneticization’ process and the currency of genetic discourses of truth serve ideological and commercial interests and receive scholarly attention with unquestioned acceptance of the ascendancy of the role of genes. Critics such as Antoinette Rouvroy have begun to challenge this, pointing towards a metaphysical and political complicity between ‘geneticization’ and neoliberalism.
The encroachment of this frame of reference into the realm of human rights has already begun. Bioethics regulates the process of law and evolution, but the application of natural selection to the origins of law, or law as evolution, will need a broader philosophical palette. In this regard, legal philosophers will need to engage with critiques such as geneticization or risk subordinating human rights to a problematic scientific endeavour.