Evolutionary Theories of Law

Objectives

On successful completion of this module, you should be able to demonstrate –

LO1: Knowledge of (a) international and comparative contexts of the social and historical development of law; (b) social, historical, philosophical and economic contexts in which legal issues arise; and (d) evolutionary theories of law, and the distinctive features of legal evolutionary thought

LO3: Thinking skills

1. Identify and articulate evolutionary explanations and critiques of legal issues
2. Comprehend materials relating to legal evolution.

Learning resources

Ratnapala, 333–362

Selected Reading 10.1: Lord Kames, Historical Law Tracts (1761, reprinted 1988) 79–143.

Selected Reading 10.2: Adam Smith, Lectures on Jurisprudence (Clarendon Press, 1978) 14–16.

Selected Reading 10.3: FC von Savigny, Of the Vocation of Our Age for Legislation and Jurisprudence (Cambridge University Press, 2nd ed, 1831) 24–31, 53–60.

Selected Reading 10.4: P Stein, Legal Evolution (1980) 69–98.

Selected Reading 10.5: Sir Julius Stone, Social Dimensions of Law and Justice (Maitland Publishers, 1966) 86–118.

Prepare answers to all five questions

The legal evolutionists deal with law and its relationship with society.  How do they respond to the ‘what is law’ question? Would they be more inclined to natural law or positivism?

Is there any validity to the Scottish Enlightenment philosophers’ idea of three or four stages of social and legal evolution?

Is there a Volksgeist? Is there anything like it?  If there is, should the law remain close to it?

What is a ‘spontaneous order’?  How is the common law a spontaneous order? What does Ratnapala mean when he says that ‘spontaneous order’ theory ‘denies … that human beings act with prescience, not that they act with intent’?  If the theory is right about the lack of prescience, what implications does that have for lawmaking – by judges and Parliaments?  Is spontaneous order theory right about lack of prescience?