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EVOLUTIONARY ANALYSIS IN LAW AND THE THEORY AND PRACTICE OF LEGISLATION

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Abstract:

The article wishes to explore the common ground between contemporary evolutionary approaches to human behaviour and both the theory and practice of legislation. In the first section, I sketch the dominant approach to evolutionary analysis in law and its possible uses in the practice of legislation, before offering a reply to some of its critics. In the next section, synthesizing literature on primate social behaviour, evolutionary game theory and, most importantly, geneculture co-evolutionary theory, I investigate other ways of incorporating evolutionary theory in the theory of legislation. While (so far) perhaps less relevant to the specific policy questions involved in legal regulation than some would like it to be, I hope to show why evolutionary (genetic and cultural) theory (already) could be deemed indispensable in accounting, at least in part, for some of the more general questions of interest to law and legal theory.

Keywords: Evolutionary analysis in law; gene-culture co-evolutionary theory; legisprudence; social contract; theory of legislation

Document Type: Research Article

Publication date: January 1, 2007

More about this publication?
  • Legisprudence aims at contributing to the improvement of legislation by studying the processes of legislation from the perspective of legal theory. The content of the journal covers legislation in a broad sense. This comprises legislation in both the formal and the material sense (from national and European parliaments, regulation, international law), and alternatives to legislation (covenants, sunset legislation, etc.). It also takes in regulation (pseudo-legislation, codes of behaviour and deontological codes, etc.). The journal is theoretical and reflective. Contributions to the journal make use of an interdisciplinary method in legal theory. Comparative and system transcending approaches are encouraged. Sociological, historical, or economic studies are taken into account to the extent that they are relevant from the perspective of interdisciplinary legal theory. Dogmatic descriptions of positive law are not taken into consideration.
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