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’. Continue reading “Law as Evolution?”