Legal evolution is a branch of legal theory which proposes that law and legal systems change and develop according to regular, natural laws. It is closely related to social evolution and was developed in the 18th century, peaking in popularity in the 19th century before entering a prolonged hiatus. Legal evolution saw a revival at the end of the 20th century and is continued in multiple contemporary theories. Theories of legal evolution use a variety of methodologies, including elements of sociological, historical, philosophical approaches.
Methodology and theory
The term 'legal evolution' covers a broad range of theories with different goals and approaches, but the theories share several features. Theories of legal evolution attempt to provide an explanation for the ways in which law changes with reference to wider factors outside the legal system. For example, the German historical school suggested that law developed alongside the nation containing it, an idea carried on by Henry Maine (1822-1888) in Britain in his theory of 'progressive evolution'. Likewise, legal memetics explains legal development according to the interplay between external information in society and its process of 'encoding' within legal rules.Deakin, ‘Evolution for Our Time: A Theory of Legal Memetics’ (2002) Current Legal Problems, 55, 1, 1–42 Another common thesis suggests that legal development is progressive, with legal systems tending towards greater complexity, completeness, or 'advancement'. John Millar (1735-1801) proposed, for instance, that legal systems progressed from hunter-gathering societies with minimal property to modern systems of international commerce.J. Millar. The Origin of the Distinction of Ranks. (Indianapolis: Liberty Fund, 2012).
Theories of legal evolution deploy a wide range of methodological tools. The German historical school was noteworthy for its use of a rigorous historical methodology, paying close attention to primary sources and manuscripts. Another common source of material, anthropological studies, include (for example) surveys of Native Americans, which evolutionary theorists use to deduce a progression of rules from primitive societies to modern market ones. The evolutionary theorist might also rely upon universal laws of morals or upon general sociological hypotheses to explain a natural trend in legal development. A persistent theme is the frequent use of scientific metaphor. Maine in his work "Ancient Law" drew upon scientific theories of geology and possibly upon Darwinism, whereas John Henry Wigmore (1863-1943) argued that legal evolution was more like complex gravitational interplay between planets.J.H. Wigmore, "Planetary Theory of Law's Evolution" in Kocourek & J. Wigmore eds., Evolution of Law: Select Readings on the Origin and Development of Legal Institutions (Vol 3) (Boston: Little Brown & Co, 1915-1918) This theory can be used, in particular, to explain the interplay between different areas of the law or different legal systems. Similarly, legal memetics draws widely from biology and, as a subset of memetics, relies upon analogies between genes, evolutionary pressure, and the cultural transmission of ideas. Other theories are rooted in sociobiology, attempting to generalise from supposed universal features of humankind, or even from living creatures as a whole,R. Petrucci, "Natural Origins of Property Among Birds, Bees, and Fishes" in Kocourek & J. Wigmore eds., Evolution of Law: Select Readings on the Origin and Development of Legal Institutions (Vol 3) (Boston: Little Brown & Co, 1915-1918) to explain the development of legal rules, institutions, and ideas.
History
Early-modern theories
The idea of legal evolution first appears in the 18th century. Peter Stein argues that one of the main impetuses in its development was the inadequacy of theories of immemorial custom, popular heritage, sovereign will, and natural reason in explaining how legal systems change. Early examples include Pufendorf and Grotius who, despite their status as exemplars of natural law theorists, recognised that 'government and private property are not 'original' but appear only when man is ready for them'. They were followed by David Hume, who, as part of his argument against social contract theory, suggested law and government formed as a matter of habit over time. A French strand in evolutionary thinking developed simultaneously and was closely followed by the subsequent Scottish theorists. Montesquieu provided a highly detailed theory connecting law to society in 'The Spirit of the Laws', giving many specific examples of legal rules drawn from antiquity, contemporary law, and travel writers.Montesquieu (1977). David Wallace Carrithers (ed.). The Spirit of the Laws: A Compendium of the First English Edition. Berkeley: U California P. However, he was unwilling to develop a general thesis of change, regarding it as unsubstantiated. Conversely, other French writers, such as Lafitau who compared Native Americans to the ancient Greeks, and Goguet, who traced economic and social effects on law, were willing to posit general theories of progress.
The Scottish philosophical school of history was more full-blooded in its adoption of legal evolution. John Dalrymple wrote 'An Essay towards a General Theory of Feudal Property in Great Britain' in 1759 which provided three stages of societal and legal development. These were, in ascending order of sophistication, hunting and fishing; pasturage and agriculture; and arts and industry. He linked these with the evolution of property, explaining in the first state that people would have at most a few moveable items of property whereas all immoveable property would be owned in common. Only with agricultural development would it be possible for land to be enclosed as property, and with crafts the development of more extensive forms of personal property. Lord Kames added a final stage, that of commerce produced by agricultural surplus, which explains the growth of contract law. Later Scottish writers include Adam Smith, who tied the four stages to political control of land in his Lectures in Jurisprudence,Smith, Adam (1976), Meek, Ronald L.; Raphael, David D.; Stein G. Peter (eds.), Lectures on Jurisprudence (1 ed.), Oxford: Oxford University Press and John Millar, who sought a causal explanation for history focusing on factors such as soil, climate, population, and sophistication in crafts.
19th-century theories
German Historical School
The predominant theorist in the German Historical School developing an approach to legal evolution was Friedrich Karl von Savigny. Savigny combined Montesquieu's theory of the spirit of society; Edmund Burke's theory of political conservatism; Herder's concept of the nation as a cultural entity, individuated by its language and literature; and a historical approach. The result was a theory which linked the development of law to the particular character of a nation at a particular time. Savigny argued that 'in the earliest times to which authentic history extends, law will be found to have already attained a fixed character, peculiar to the people, like their language, manners and constitution.' His famous pamphlet, Of the vocation of Our Age for Legislation and Jurisprudence, used an organic metaphor to suggest law grows and withers away cyclically alongside the growth and decay of society, using the law of Rome as its paradigm. Savigny's theory served a political purpose as well, opposing attempts at legal codification and giving paramount authority to the jurists who would be responsible for developing the legal system.
Savigny was followed by Rudolf von Jhering, who examined the law of Rome and its connection to states of society closely.J.Gaudemet, 'Organicisme et évolution dans la conception de l'historie du droit chez Jhering', Jherings Erbe, ed. F. Wieacker and C. Wollschläger (Abhandlungen der Akademie der Wissenschaften in Göttingen, Phil-hist. Kl., III folge, Nr. 75) (Göttingen 1970), 29-39 He criticised Savigny's theory of the character of the nation, suggesting it implied the presence of Roman influence in Germanic law was indefensible and had corrupted its natural evolution. However, he suggested this was not only impossible but undesirable - law was an 'intellectual organism' which was the product of numerous external influences.Jhering, Rudolf von: Geist des römischen Rechts auf den verschiedenen Stufen seiner Entwicklung. Teil 3, Bd. 1. Leipzig, 1865. Jhering drew links between law and anatomy and physiology, preferring organic growth based on experience to 'mathematical jurisprudence' using a priori truth and deduction. His model of evolution also built on Savigny's by emphasising the role of lawyers in applying practical solutions to problems, giving more room to conscious development. Whereas early societies may develop law unconsciously like language, in progressive societies he proposed a functional approach giving a greater role to deliberate change.
English movement of legal evolution The dominant view prior to the 19th century in England was that law was based on ancient custom, refined over centuries by practical reason. This view began to alter with influence from the German Historical School and social evolutionists, such as Auguste Comte. A clear indication of change is in the entry on law in the eighth edition of the Encyclopædia Britannica, authored by J.F. McLennan under influence from Savigny, Montesquieu, Smith, and Comte. It states: 'the fulness of the idea of law has not been reached by the whole of any system of laws now administered; but in the progress of civilisation the tendency everywhere is towards its realisation.'McLennan, J.F. 'Law' in The Encyclopaedia Britannica 8th ed (1857), XIII.255 The peak of legal evolution in this period was the publishing of Maine's 'Ancient Law', which proposed an evolutionary theory of law. Maine argued that societies naturally progressed from 'status' based laws to a theory of independent contract, memorably summarised in the line 'from status to contract'.
In addition, he suggested there was an evolution in law-making practices. Initially, societies use legal fictions to disguise law making. They then move to broad discretion in the form of equity, and finally reaching the modern period, explicit law-making in the form of legislation. Maine also adopted a 'progressive development' theory which held contemporary 'noble' or 'progressive' nations were approaching the apotheosis of legal science achieved by Roman law. To show this, he adopted a comparative-historical approach focusing primarily on Indo-European comparisons, coupled with a geological scientific metaphor: 'If by any means we can determine the early forms of jural conceptions, they will be invaluable to us. These rudimentary ideas are to the jurist what the primary crusts of the earth are to the geologist. They contain, potentially, all the forms in which law has subsequently exhibited itself...The inquiries of the jurist are in truth prosecuted much as inquiry in physics and physiology was prosecuted before observation had taken the place of assumption.' Ancient law was immensely popular in the Victorian period. Its attribution of continuous, impersonal natural laws to legal development was well matched to the great social and technological changes Britain was undergoing. Additionally, though likely completed before Origin of Species was published, Maine's work fitted with the vogue of Darwinian thinking. Nonetheless, despite its influence, Ancient law was criticised soon after being published for the inaccuracy of its historical material and anthropological commentary.
American doctrinal legal evolution