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

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

Evolutionary View of Human Nature and the Goals of Law

In this paper an attempt is made to show that evolutionary theory may be used to define the goals of law. While addressing the problem of defining the goals of law, one can use evolutionary theory in two radically different ways. First, one can reason from the empirical observation that evolution operated according to the principle of the survival of the fittest to the normative conclusion that survival of the fittest is good and therefore ought to be the main goal of law. This approach – characteristic for Social Darwinists – cannot be sustained because it commits the so-called “naturalistic fallacy” and it leads to conclusions that are entirely at odds with our basic moral intuitions. Second, one may proceed in a less simplistic way, by, first, trying to identify the view of human nature implied by evolutionary theory, and, subsequently, reflecting on which political-philosophical conception this evolutionary view of human nature can be said to underlie. Given that each political-philosophical conception determines directly or indirectly the goals of law, it can be said that evolutionary theory, by influencing the choice of a political-philosophical conception, indirectly determines the goals of law. This second approach seems to me much more promising. In developing this approach, I divide my analysis into three steps. First, I define the notion of a view of human nature. I argue that a view of human nature is to provide answers to two main questions: what is the main moral motive of our actions; what is the dominant mode of our actions. I defend the claim that evolutionary psychology leads to a view of human nature according to which human beings are narrowly altruistic and imperfectly rational. I call this evolutionary view of human nature “moderately optimistic”. Third, I argue that this view is incompatible with such political-philosophical conceptions as anarchism, marxism, and right-wing libertarianism, and is compatible with liberalism and socialism. This argumentation, if correct, implies that although evolutionary theory cannot provide a unique answer to the question of what the goals of law should be, it can at least eliminate some potential goals of law as unacceptable.

Alf Ross on Practical Reason

In his early work Kritik der Sogenannten  Praktischen Erkenntnis. Zugleich Prolegomena zu Einer Kritik der Rechtswissenschaft the eminent Danish legal philosopher Alf Ross intended to provide the philosophical foundations for the construction of his theory of law. The central element of these foundations is his critique of practical reason (practical cognition). The purpose of this paper is to evaluate this critique. It is argued that in his analysis Ross oscillates between two different understandings of practical reason. According to the first one, practical reason is a special capacity to cognize and establish the objectively existing moral norms (values, or ends); according to the second one, it is a special capacity just to cognize the objectively existing moral norms (values, or ends). It is argued that his most interesting and plausible arguments (pointing at logical inconsistencies) against practical reason apply only to the former understanding thereof, not to the latter. Accordingly, his work fails to provide conclusive reasons for rejecting the concept of practical reason as a special capacity for the cognition of the objectively existing moral norms (values, or ends)

The public hearing and law-making procedures

This article examines the institution of the public hearing in contemporary constitutional systems. After considering the public hearing in light of the concept of deliberative democracy, the authors present various normative and practical measures implemented in selected countries. It is claimed that public deliberation affects the quality of legislation and makes it more legitimate. The public hearing as a stage in the legislative procedure requires a mature reciprocal dialogue between individuals and the state authorities as well as a readiness to reach appropriate decisions. The authors argue that to make the public hearing more effective, the law-maker or its organs should have a duty to inform the opinion about the extent to which the public proposals have been taken into account