The university of queensland legal research series



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THE UNIVERSITY OF QUEENSLAND

LEGAL RESEARCH SERIES





This article was originally published in Constitutional Political Economy published by Springer and reproduced here with kind permission.

S Ratnapala, 'Eighteenth-century Evolutionary Thought and Its Relevance in the Age of Legislation' (2001) 12 (1) Constitutional Political Economy 51-75



Eighteenth Century Evolutionary Thought and its Relevance in the Age of Legislation1
SURI RATNAPALA

T C Beirne School of Law, University of Queensland, Australia, 4072
Abstract. This essay revisits the evolutionist writings of the eighteenth century to clarify their key ideas concerning legal and social evolution and to assess their relevance in the present era of pervasive legislation. The discovery of the principle of the accumulation of design is traced to these writings and the continuity of twentieth century spontaneous order theory and new institutional economics with this tradition is noted. While highlighting the contributions of other institutional theorists to the elucidation of the role of purposive action in legal evolution the author argues that input designing does not alter the fundamental nature of legal emergence as postulated by the eighteenth century scholars. The essay supports the ideal of legal generality, free speech, property and contractual freedom as normative implications of the evolutionary viewpoint.

Like the winds, that come we know not whence, and blow withersoever they list, the forms of society are derived from an obscure and distant origin; they arise, long before the date of philosophy, from the instincts, not from the speculations, of men.

The croud of mankind, are directed in their establishments and measures, by the circumstances in which they are placed; and seldom are turned from their way, to follow the plan of any single projector.
Adam Ferguson (1966:122)
Key words

Evolutionary jurisprudence – eighteenth century evolutionists – ‘Darwinians before Darwin’ constitutional political economy – emergent complexity – roles of judge and legislator – common law




  1. Introduction

The second half of the twentieth century has witnessed a resurgence of evolutionary theory in both the natural sciences and the social sciences. The most significant feature of this movement has been the extension of the Darwinian theory of evolution or more accurately the neo-Darwinian synthesis, to human culture in order to explain such phenomena as scientific and technological development, the emergence of formal and informal social institutions, language acquisition and even mind and consciousness. Evolutionary accounts of legal emergence, have figured prominently throughout the twentieth in cultural anthropology and within branches of economics, most notably the Austrian and the institutional economics traditions. Although American jurisprudence was quick to embrace evolution after Darwin, there has been only sporadic attention to contributions to evolutionary accounting of law during much of the twentieth century. (Ruhl 1996: 1412-1413). The situation has changed somewhat recently with the persistent efforts in law and biology by scholars associated with the Gruter Institute for Law and Behavioral Research (Elliot 1997: 596) and the nascent complexity and law movement. (Ruhl 1996)

It is not widely appreciated, except in circles such as the readership of this journal, that the current blossoming of evolutionary theory in relation to culture has a distinguished historical precedent which pre-dates Darwin’s breakthrough and, indeed, provided Darwin with the intellectual tools with which to uncover the idea of natural selection.2 The work of these pre-Darwin scholars is particularly significant in legal theory as they drew their greatest inspiration from the shining example of the common law and proceeded to establish a solid foundation for an evolutionary jurisprudence. The recent developments in evolutionary scholarship allows us to build on this foundation, a richer account of the law in both its customary and statutory forms. Such a jurisprudence may be developed by drawing together, the eighteenth century evolutionist thought, the neo-Darwinist synthesis, evolutionary epistemology, the emerging science of complexity and self-organization and the central ideas developed in institutional economics. That task is beyond the scope of this essay, but I hope to kindle interest in such a project by clarifying the central ideas of the eighteenth century evolutionists and by assessing their relevance in the era of pervasive legislation in the light of recent developments in the aforementioned fields. In what follows, I will explain the need for an evolutionary jurisprudence, discuss the key ideas of the eighteenth century evolutionary viewpoint, consider the development of that viewpoint in the twentieth century and draw some of the normative implications from the evolutionary approach.

2. The need for an evolutionary jurisprudence

The idea that all law stems from the will of an identifiable law maker remains influential in law schools despite being contradicted by the natural history of the human race and by what we know of contemporary society. It would be a rare cultural anthropologist who would deny that law existed before there were legislators or courts. Although legislation and judicial precedents form the major sources of law today, it is evident that law formation is a complex and dynamic process grounded in social realities that are beyond the comprehensive control of any authority. Despite its best efforts, the state has failed to monopolize the enterprise of law. As the frontiers of human experience expand, rules become modified by practice to meet the coordination needs of the new field of experience. This phenomenon has been observed throughout history and is illustrated in our age by the continuing evolution of the common law and the emergence of new rules of behavior fields such as transnational commerce and new technologies.



Mainstream jurisprudence typically responds to the presence of such rules by ignoring them, by denying them the name ‘law’ or by treating them as the vicarious achievements of the official legal system. Jurisprudence which limits its concerns to the description of state law and consigns non-state law to other disciplines admits failure. Sophisticated analytical positivists such as Herbert Hart, Neil MacCormick and Joseph Raz have abandoned the dogma that law is any command of a sovereign political authority that has capacity to enforce its commands in favor of an idea of a legal system which establishes the ways in which norms become laws that attract the coercive attention of the state. However, the concept of a legal system developed by these writers, though internally coherent, does not explain satisfactorily the nature of the legal system as part of the overall dynamic order of society. In particular, it leaves to other disciplines, the following questions: (1) How do legal systems arise and change over time? (2) How do we account for the continuing emergence of rules which not only exist side by side with state law but also supply some of the normative content of new state law? It is proposed that these questions should be addressed within jurisprudence and that the evolutionary approach outlined in this essay is appropriate to that task.

3. Argument from design versus the principle of the accumulation of design

To appreciate the achievement of the pre-Darwin evolutionists, it is necessary to recall the ascendancy of what is known as the argument from design. The human intellect tends to divide the world into two categories, the natural and the artificial, with nothing in between. Structures like machines, buildings and organizations are identified as artificial, being the products of human intelligence and labor. There are other structures, physical and biological which are considered to be beyond the creative power of humans and hence are treated as natural. However, the diversity, complexity and beauty of the natural structures, and the way they reflect the adaptation of means to ends have intrigued thinkers. The minds of our ancient ancestors could only come up with the anthropomorphic answer that they were the work of a supernatural Intelligent Artificer. As Hume’s Cleanthes in the Dialogues Concerning Natural Religion, put this argument, ‘The curious adapting of means to ends throughout all nature, resembles exactly, though it much exceeds, the productions of human contrivance; of human design, thought, wisdom, and intelligence ... hence we are led to infer ... that the Author of nature is somewhat similar to the mind of man’. (Hume 1947:143).

This argument from design would not have mattered much in legal theory had there not been three different types of law: 1. legislation 2. customary law and 3. higher natural law. Legal enactments of human agencies were considered artificial and later came to be known as positive law. There was another kind of law which existed from time immemorial with no evidence of human authorship. Every society, including the oldest, has its inheritance of laws which cannot be attributed to human legislators. The ancients had little choice but to assign these to the natural category and hence to supernatural design. Hayek thought that the Greeks recognized a separate category of structures established by convention that included things such as custom, law, language, morals and money, only to lose it in terminological confusion. This category comprised things that were neither natural nor artificial but were as Adam Ferguson was to describe later, ‘indeed the result of human action, but not the execution of any human design’ (1966:122). There was certainly another close encounter with this third kind by the medieval schoolmen but they, like the Greeks before them eventually classed it as natural (Hayek 1973:20-21). Whichever way the law was classified it was thought to have been designed like everything else.



The classification of the inherited customary law with things natural created two major problems for legal theory. As mentioned, there was a third type of law with a long standing claim to the name ‘natural law’. This natural law comprised the fundamental, universal, and immutable principles of justice and morality the violation of which, was said to deprive human (positive) laws of their validity on the principle lex injusta non est lex. (Unjust law is not law. Alternatively, non lex sed legis corruptio: not law but corruption of law.) The first problem was that the equation of the inherited customary or folk law with this higher unchanging natural law further obscured the organic or evolutionary character of that law. Customary law was adaptive, not immutable like the higher natural law. The second problem was that this classification suggested that customary law as natural law was inviolable by human legislators. This implication was clearly incompatible with the legislative power of sovereign rulers who claimed the right to abrogate customary law. In societies where legislation is uncommon and customary morality and customary law are hard to separate, the problem is not acute. The situation is very different where the ruler’s power to make and unmake the law co-exists with a substantial body of inherited customary law as was the case in England. This problem was recognized by Hobbes and Locke, the seventeenth century social contract theorists. Their response was to remove customary law from the category of the natural to the artificial. Though the classification changed, the argument from design remained.

Both Hobbes and Locke thought that law began only with the establishment of sovereign political authority by the social contract which brought society itself into existence. Indeed the very purpose of the social contract, they said, was to escape the condition of lawlessness, which according to Hobbes made life ‘solitary, poore, nasty, brutish and short’ (1991:89). Locke’s state of nature was a little more benign, but still ‘full of fears and continual dangers’ (1988:350) because, in the absence of established and known laws and organized executive power, each individual was his or her own lawmaker, judge and executioner (1988:351). According to both theorists the social contract established a supreme legislature to which was entrusted the exclusive power to make law. Though both believed in the existence of a higher natural law, they insisted that the only source of human law was the sovereign person or assembly. Locke denied custom any legal force, treating the legislative as antecedent to all positive law (1988:373). According to Hobbes customs were ‘antiently Lawes written, or otherwise made known, for the Constitutions, and Statutes of their Soveraigns; and are now Lawes, not by vertue of the Praescription of time, but by the Constitutions of their present Soveraigns’ (1991:186). Hobbes insisted that law should not only be designed, but to be valid, its designer or Author should be sufficiently known (1991:189). Thus, with respect to law, social contract theory further entrenched the argument from design.

It is generally thought that until Charles Darwin and Alfred Russell Wallace stumbled upon the idea of the evolution of species by natural selection, there was no alternative to the argument from design. The basic idea of natural selection is very simple though its implications are endless. Animals give birth to off-spring who have varying qualities. Offspring who are better adapted to their environment tend to survive to produce more offspring like themselves while those who are ill-adapted tend not to survive to a reproducing age. Over very long periods of time, this game of statistics leads to the gradual evolution of some species and the extinction of others. One of the principal insights from this idea is that the incredibly complex life forms that we observe and their remarkable adaptation of means to ends can result from this simple algorithmic process without the intervention of an Intelligent Artificer. This insight discloses what is known as the principle of accumulation of design, according to which the R & D that complex and adaptive structures require are attained through the slow build up of their design features in the course of natural selection (Dennett 1995:68). It was certainly Darwin who demonstrated this principle in relation to biological evolution. However, as shown in the next section, the principle of accumulation of design was discovered in relation to social evolution more than one hundred years before the publication of Darwin’s Origin of the Species, by eighteenth century scholars in England and Scotland.



4. The common law beginnings and the Darwinians before Darwin

The fact that the first understandings of the principle of accumulation of design occurred in eighteenth century England perhaps had something to do with that country possessing one of the most unambiguous illustrations of the principle in action in the form of the common law. Even before the Napoleonic Codification, the lex scripta (written law) was a major source of law in the nations of continental Europe. The law of these nations were amalgams of the written Roman Law, local statutes and local custom. The dominance of the lex scripta obscured the evolutionary character of the law. In England, by contrast, the common law reigned in its classical form without serious challenge from the Roman law or legislation. It was in this context that the Chief Justice Sir Matthew Hale observed that law is ‘accommodate to the Conditions, Exigencies and Conveniences of the People’ and ‘as those Exigencies and Conveniences do insensibly grow upon the People, so many Times there grows insensibly a Variation of Laws, especially in a long Tract of Time’(Hale 1971:39). Hale also understood the self-ordering nature of the common law that enabled it to maintain itself while undergoing constant change. Hale identified the two properties of the common law which reveal its essentially evolutionary character. The first is that the common law has no author or designer but grows endogenously over long periods of time through the process of accumulation. The second is that common law is part of the process by which the social order adapts to emergent reality.

The first of the eighteenth century evolutionary thinkers was Bernard Mandeville a Dutch physician practicing in London, to whom Hayek pays the extraordinary compliment that he made Hume possible (Hayek 1978:264). In his startling parody, the ‘The Grumbling Hive; or Knaves turn’d Honest’, Mandeville argued that if all self-interested acts were vices as the moral rigorists of the time believed, then the public good must result from vice since human beings act in their self-interest (1924: vol. 1, 44ff). Mandeville’s message was that if every individual was acting in his or her self interest, what we call culture could not have been designed by anyone but must be the unintended result of individual strivings. In elaborating on this process, Mandeville anticipated the principle of the accumulation of design. In his third dialogue, Cleomenes says, ‘That we often ascribe to the Excellency of Man’s Genious, and the Depth of his Penetration, what is in reality owing to length of Time, and the Experience of many Generations, all of them very little differing from one another in natural Parts and Sagacity’ (1924: vol. 2, 142). In the sixth dialogue, Cleomenes compares the process by which the law attains its sophistication to the mechanical process of weaving stockings (id:32). Compare these with Dennett’s paraphrasing of Darwin’s principle: ‘What Darwin saw was that in principle the same work [previously attributed to a designing agent] could be done by a different sort of process that distributed that work over huge amounts of time, by thriftily conserving the design work that had been accomplished at each stage, so that it didn’t have to be done over again’ (1995:68).

Mandeville’s pragmatic view of cultural evolution became in Hume’s hands, an epistemological thesis. The profound connection between Hume’s skeptical view of knowledge and the natural selection paradigm is not well recognized even by evolutionists. Even today, when the Darwinian theory of evolution is generally accepted, there is a general reluctance in philosophy and social science to concede that the process of blind variation and selective retention explains the achievements of the mind and its capacity to reason. In Hume’s time the idea was mind-boggling. Yet, in A Treatise of Human Nature (1839-1840), Hume argued that reason alone can never give rise to any original idea and that the basis of our knowledge was nothing more than custom or accumulated experience (Hume 1978:157).



Hume observed that there are only perceptions and the memory of perceptions present to the mind. The objects that cause our perceptions are not knowable directly. What we do not perceive directly, we infer on the principle of cause and effect. Causation is a relation and not a thing. We infer from the presence of one thing, the presence of another as when we associate fire with heat. Yet, however hard we try, we cannot show the essence that connects the two. We cannot infer that one object causes another on the first occasion that we perceive them. It is only our past experience of their repeated conjunction that gives rise to the expectation that where one is found the other will also be found. Hence, our expectation that the future will resemble the past is based on nothing better than custom (id:104-106). Hume rejected the notion of innate ideas. We can, of course, construct theories and test them by controlled experiments, but this process too is based on the ‘general habit, by which we transfer the known to the unknown, and conceive the latter to resemble the former’ (1975:107). Even scientific theorizing depends in part on experience and in part on ‘blind’ speculation. In a startling pre-emption of not only Darwinism but also modern evolutionary epistemology, Hume declared in An Inquiry Concerning Human Understanding that ‘experimental reasoning itself, which we possess in common with beasts, and on which the whole conduct of life depends, is nothing but a species of instinct or mechanical power, that acts in us unknown to ourselves’ (id:108).

This theory of knowledge led Hume to his view that social institutions originated in convention not design or agreement. Social order reflected the build up of experience, not the outcome of reason. Hume rejected the social contract theory of the establishment of law and society, in both its naive historical form as well as its idealized expository form. He argued that law and society could not have been established by a promise as the institution of the promise was itself an unintended result of social life. In short, the social contractarians were guilty of putting the cart before the horse! Hume, has to be read with extreme care in order to avoid misunderstandings of his views on law and justice. Hume retained the natural - artificial dichotomy and placed justice in the artificial category. However, he was at pains to explain that justice belonged to a subset of artificial things which arose from convention as opposed to reason. He wrote, ‘Tho’ the rules of justice be artificial, they are not arbitrary. Nor is the expression improper to call the Law of Nature; if by natural we understand what is common to any species, or even if we confine it to mean what is inseparable from the species’ (id:484). The rules of justice arise out of a sense of mutual need. This shared sense does not result from verbal exchanges but through the coincidence of behavior as when ‘two men, who pull the oars of a boat, do it by an agreement or convention, tho’ they have never given promises to each other’. Thus, rules of justice, like other conventional things such as language and currency, ‘arise gradually, and acquire force by a slow progression, and by our repeated experience of the inconvenience of transgressing it’ (id:490). In these passages, Hume struck upon the quintessentially evolutionary idea that rule formation is a process of habit meshing that occurs through the proclivity of punishing encounters to extinguish and rewarding encounters to re-enforce behavioral tendencies of interacting parties (Cf. Campbell 1965:32-33).

Hume regarded law as antecedent to government for though men can maintain ‘a small uncultivated society without government, ‘tis impossible they shou’d maintain a society of any kind without justice and the observance of the three fundamental laws concerning the stability of possession, its translation by consent and the performance of promises’ (1975:541). According to him, government did not originate from a necessity to make law but from the need to impartially administer the law (id:537).




Like Hume, Adam Smith rejected social contract theory and treated social order, law and government as the outcomes of ‘the natural progress which men make in society’ (Smith 1981: vol. II, 710). The starting point of Smith’s philosophy is the concept of ‘the original passions of human nature’. One of these passions is ‘fellow feeling’ or ‘sympathy’. Though man is selfish by nature ‘there are evidently some principles in his nature, which interest him in the fortune of others, and render their happiness necessary to him, though he derives nothing from it except the pleasure of seeing it’ (Smith 1976:9). This sympathy is the origin of the ideas of beneficence and of justice. The absence of beneficence or of the sense of justice in a person evokes disapprobation. However it is only unjust conduct that inspires the stronger feeling of resentment and leads to the demand for retribution. This is a critical distinction. Beneficence involves positive action but justice is concerned with the breach of prohibitions cast in negative terms. That one should show gratitude to one’s benefactor is a principle of beneficence. That one should not steal another’s belongings is a rule of justice. A person could be just without being beneficent. As Smith wrote, ‘We may often fulfil all the rules of justice by sitting still and doing nothing’ (id:82). How does the sense of justice, which is hardwired in us give rise to the rules of justice? Rules arise because our sense of justice fails us when we most need it. We cannot make reasoned judgments before every action not only because of the lack of time but also because we are driven by our passions. Afterwards, if we have acted unjustly, we are prone to forgive ourselves (id:157). This flaw in our nature is overcome by other instincts which, through the observation of the conduct of others, ‘insensibly lead us to form to ourselves certain general rules concerning what is fit and proper either to be done or to be avoided’ (id:159). We avoid self-deception through rule following and rule formation occurs insensibly by the coincidence of individual behavior. Smith could have been more reductionist in his search for the origins of rules in the manner of later game theorists who attributed the evolution of cooperation to the dominance of the ‘tit for tat’ or ‘eye for an eye’ strategy. (Axelrod 1984). However, Smith deserves credit for noticing that cooperation is the outgrowth of not only the instinct of retribution but also of the instinct of sympathy.

Smith’s theory is strikingly Darwinian and, in fact, avoids a mistake commonly made even by Darwinists. Smith argued that though social life is impossible without the rules of justice, it is not this consideration which animates the rules of justice initially, but our natural passions (id:89). The human species did not acquire its sense of justice and make itself social rules because they helped it to prosper, but rather, the race prospered because its members inherited a sense of justice and the instinct for rule following. Smith also brought out the underlying unity of the social, economic and legal evolution throughout his work. A clear demonstration of this unity is offered in his speculation concerning the emergence of the division of labor and money. The division of labor, Smith maintained, is not the product of human wisdom that foresees its great advantages, but ‘is the necessary, though very slow and gradual consequence of a certain propensity in human nature which has in view no such utility; the propensity to truck, barter, and exchange one thing for another’ (1981: vol. 1, 25). This propensity to exchange, which could be said to be driven by the more basic instincts of self-advancement brings about the practice of contracting. However, barter is a severely limited form of exchange as one has to always keep a quantity of things which others commonly need such as oxen, salt or pelts, in order to gain what one wants. No exchange will take place where people have no need for is being offered. This problem activates a Darwinian type selection whereby certain kinds of metals survive the elimination process to become standard currency for exchange. The emergence of this practice has a catalytic effect on both commerce and commercial law. The need to certify the weight or value of the metals lead to the practice of official coinage and hence, we might add, to the law of financial institutions (id:41-46).

The idea that social patterns emerge through the cumulative effects of the adaptive behavior of individuals responding instinctively to local conditions was systematically developed by Adam Ferguson in his An Essay on the History of Civil Society, first published in 1767. Ferguson clearly perceived that human beings are able do the right thing in particular instances without knowing the reason why it is right. We derive general rules of morality, law, language and so forth by observing the consistency of these unrationalised particular actions. Such is the ability of the uneducated peasant or child to reason and judge, and speak his language with discernment consistency and regard to analogy, that logicians, moralists, and the grammarians, are perplexed when they find the underlying principles or general rules which they appear to be unknowingly observing (Ferguson 1966:34). Ferguson argued, that the sense of legal right inheres in human nature. ‘Every peasant will tell us, that a man hath his rights; and that to trespass on those rights is injustice’. If we ask him what he means by ‘right’, we force him ‘to substitute a less significant, or less proper term, in place of this; or require him to account for what is an original mode of his mind, and a sentiment to which he refers, when he would explain himself upon any particular application of his language’ (ibid).



Ferguson was conscious that human learning was radically different from other animal learning as the human race can accumulate knowledge from generation to generation (id:5). Yet, like Hume and Smith, he anticipated the Darwinian insight that all human knowledge gains are achieved without prescience. ‘Every step and every movement of the multitude, even in what are termed enlightened ages, are made with equal blindness to the future; and nations stumble upon establishments, which are indeed the result human action, but not the execution of any human design’ (id:122). With Hume and Smith, he rejected patriarchal and contractarian theories of state, observing that they ‘ascribe to a previous design, what came to be known only by experience, what no human wisdom could foresee, and what, without the concurring humor and disposition of his age, no authority could enable an individual to execute’ (id:123).


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