Models of the Origins of Law. An Attempt at Appraisal from the Perspective of Evolutionary Theory

Abstract

In this article I make an attempt at evaluating in the light of evolutionary theory various models of the origins of law proposed in philosophical literature. I start by presenting a classification of the models. As a criterion for the classification I propose the question “in whose interest did the law emerge”. This question leads to the division of the models into two general groups: those which assume that law emerged in the interest of only some of the people whose behaviour it regulates, and those which assume that law emerged in the interest of all the people whose behaviour it regulates. The first group embraces two models which I call “Thrasymachian” and “Calliclesian”. The Thrasymachian model assumes that law serves the interests of the strong members of a society who invented it to subjugate the weak, whereas the Calliclesian model assumes that law serves the interests of the weak members of society who invented it to defend against and finally to subjugate the strong. I treat these models as of secondary importance as compared with the models of the second group, which embraces three models: Hobbesian, Hayekian, and Wrightian. The Hobbesian model assumes that the state of nature was a state of social chaos, and that the origins of law, which are simultaneous with those of morality, lie in a social contract. The Hayekian model assumes that the state of nature was not a state of chaos but a state of unstable cooperation, that law emerged spontaneously to “stabilize” cooperation, and that there is a qualitative difference between primitive law and modern law (while the former is an expression of our natural impulses to limit cooperation only to a small group of individuals, the latter is a remedy against these impulses – it makes possible cooperation on a broader scale). Finally, the Wrightian model assumes that the state of nature was not a state of social chaos but a state of unstable cooperation, that law emerged spontaneously to “stabilize” cooperation, and that all the types of law – both primitive and modern law – are a natural extension of our innate tendencies for cooperation. I examine which of these models is most plausible in the light of evolutionary theory. I argue that evolutionary theory falsifies the Hobbesian model but it does not fully confirm either the Hayekian model or the Wrightian model, though it seems to better confirm the latter one.