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From “Evolutionary Theory and Law” to a “Legal Evolutionary Theory”

Published online by Cambridge University Press:  06 March 2019

Mauro Zamboni

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Evolutionary theories have always been treated by legal scholars as a sort of cousin to the legal theoretical family, both in Europe and the United States. They are nice theories, they tell interesting stories, you sometimes listen to what they have to say and when among friends, you may even quote them. However, in the modern mononuclear family, when it is time to tackle important issues and reach important decisions, or simply to celebrate some success stories, these cousins are often left outside the door, being simply “relatives” and not part of the legal family in the proper sense. A former evolutionary scholar strikingly stated in a manner that can be seen as representative of the general skepticism towards the evolutionary approach of a large segment of the legal family, “Legal scholarship should not be so timid as to depend on others for its theoretical models. We might take our inspiration where we find it, but we should build our theories within our own discipline, constrained only by the data that defines it and the criteria of quality appropriate to it.” The main objective of this article is to take the first step towards making evolutionary theory “our own discipline,” by elevating evolutionary theory from the status of “cousin” to one of “sibling” (or at least “in-laws”) of the legal family. The focus in particular is to understand why, despite the fact that the evolutionary theory approach to law (or “evolutionary theory and law”) has been present quite a while in the legal scholar's discussion, the legal world at large has left it at the front step of the legal house. Based on this analysis, the task is also to evaluate whether it is possible, after certain adjustments, to invite evolutionary theory into the larger family of legal thinking, in particular as part of the legal theories of law-making (as “legal evolutionary theory”).

Type
Research Article
Information
German Law Journal , Volume 9 , Issue 4: Special Issue - ‘Law, the State and Evolutionary Theory’ , 01 April 2008 , pp. 515 - 546
Copyright
Copyright © 2008 by German Law Journal GbR 

References

1 Sinclair, Michael B. W., Evolution in Law: Second Thoughts, 71 University of Detroit Mercy Law Review 31, 58 (1993). See also Holmes, Oliver Wendell, Law in Science and Science in Law, 12 Harvard Law Review 443, 447 (1899). See, e.g., Leiter, Brian & Weisberg, Michael, Why Evolutionary Biology is (so Far) Irrelevant to Law, 81 The University of Texas School of Law –Public Law and Legal Theory Research Paper 48 (2007), available at: SSRN: http://ssrn.com/abstract=892881, last accessed: 15 January 2008; or Owen D. Jones, Law and Evolutionary Biology: Obstacles and Opportunities, 10 Journal of Contemporary Health Law and Policy 265, 265 (1994). But see Elliott, Donald E., The Evolutionary Tradition in Jurisprudence, 85 Columbia Law Review 38, 38 (1985); or Allan C. Hutchinson, Evolution and the Common Law 10 (2005): “The evolutionary methodology of the common law is defended and celebrated by almost all traditional jurists and lawyers.”Google Scholar

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13 See John H. Beckstrom, Evolutionary Jurisprudence: Prospects and Limitations on the Use of Modern Darwinism throughout the Legal Process 34 (1989). See, e.g., the crude reduction of Holmes’ ideas on the evolution of the law as to the one behind Nazi legal ideology as in Palmer, Ben W., Hobbes, Holmes and Hitler, 31 American Bar Association Journal 569, 571 (1945); or the depiction of Holmes as, among the other things, an amateur prophet of Social Darwinism in Mary L. Dudziak, Oliver Wendell Holmes as a Eugenic Reformer: Rhetoric in the Writing of Constitutional Text, 71 Iowa Law Review 833, 835-836 (1986). See also Neil Duxbury, Patterns of American Jurisprudence 34-35, 41-46 (1997). But see the critique moved by Holmes himself to the evolutionary approach as intended by the US Supreme Court in the famous decision Lochner v. New York, 198 US 45, 75 (1905). See also a list of possible Social Darwinist evolutionary legal thinkers as in Hovenkamp, , supra note 12, 664–671.Google Scholar

14 See Niklas Luhmann, Law as a Social System 230 (2004). As to the political roots behind the use of metaphors in contemporary legal discourse in general and in particular from a “visual” (i.e. as figurative help in the legal debate) to an “aural” use of them (i.e. constitutive of the very legal debate), see Bernard J. Hibbitts, Making Sense of Metaphors: Visuality, Aurality, and the Reconfiguration of American Legal Discourse, 16 Cardozo Law Review 229, 238-300 (1994). As to the other applications of the evolutionary approach (in particular in economics and social sciences), these are not considered in this work. See, e.g., Hans Haferkamp and Neil J. Smelser, Introduction, in Social Change and Modernity 1, 4-6 (Hans Haferkamp & Neil J. Smelser eds., 1992); and generally Nelson, Robert, Recent Evolutionary Theorizing about Economic Change, 33 Journal of Economic Literature 48, 48-90 (1995).Google Scholar

15 See Sinclair, supra note 1, 32; and Elliott, , supra note 1, 90–91. As an example of this confusion, see Alan C. Hutchinson, Work-in-progress: Evolution and Common Law, 11 Texas Wesleyan Law Review 253, 254-255 (2005), where the author points out that “almost all traditional jurists and lawyers” operate based on a theory of legal evolution, while he directly afterwards identifies this theory with a (biological) evolutionary approach to the law (id., 256-257).Google Scholar

16 See, e.g., Henry James Sumner Maine, Ancient Law: Its Connection With the Early History of Society, and Its Relation to Modern Ideas Ch. 2 (2005 [1861]); Oliver Wendell Holmes, The Common Law 1-2 (1963 [1881]); Clark, Robert C., The Interdisciplinary Study of Legal Evolution, 90 Yale Law Journal 1238, 1250-1254, 1257-1258 (1981); Rubin, Paul H., Why Is the Common Law Efficient?, 6 Journal of Legal Studies 51, 51-63 (1977); Alan Watson, The Evolution of Law 98-114 (1985); and Stein, supra note 2, 122. See also Deakin, , supra note 7, 3.Google Scholar

17 See Peter W. Strahlendorf, Evolutionary Jurisprudence: Darwinian Theory of Juridical Science 23-25 (mimeographed copy, 1993), though the author uses the concept of “evolutionary jurisprudence” instead of “evolutionary theory and law.” See also Hutchinson, Allan C. and Archer, Simon, Of Bulldogs and Soapy Sams: The Common Law and Evolutionary Theory, 54 Current Legal Problems 19, 31 (2001); and Hovenkamp, supra note 12, 646: “Not every theory of jurisprudence that includes a theory of legal change qualifies as ‘evolutionary’.” However, as pointed out by Michael S. Fried, “the enormous change in sophistication over time suggests that the literature on evolution and the law may itself be as susceptible to an evolutionary analysis as its subject.” Fried, Michael S., The Evolution of Legal Concepts: The Memetic Perspective, 39 Jurimetrics Journal 291, 303-304 (1999).Google Scholar

18 See Sinclair, Michael B. W., The Use of Evolution Theory in Law, 64 University of Detroit Law Review 451, 451 (1987). See also Teubner, , supra note 4, 241. “What the external point of view cannot reproduce”, Hart tells us nonetheless, “is the way in which rules function as rules in the lives of those who normally are the majority of society.” Herbert L. A. Hart, The Concept of Law 90 (1961) [italics added]. In this sense, in this work “evolutionary approaches to the law” is used in a narrower meaning than the one identified by Elliott, supra note 1, 40. The evolutionary approaches to the law coincide here with Elliot's “doctrinal” theories of legal evolution. See id., 50-62. But see Simon Deakin & Frank Wilkinson, The Law of the Labour Market: Industrialization, Employment and Legal Evolution 28 (2005), stressing how “an evolutionary study of the law requires us to take a dual approach,” i.e. “internal understanding of internal juridical modes of thought” and “external perspective on the law as a social institution or mechanism.”Google Scholar

19 See MacCormack, Geoffrey, Historical Jurisprudence, 5 Legal Studies 251, 252-253 (1985). See also Fried, supra note 17), 313-315 (as an example of “evolutionary” approach); J. B. Ruhl, Complexity Theory as a Paradigm for the Dynamical Law-and-Society System: A Wake-Up Call for Legal Reductionism and the Modern Administrative State, 45 Duke Law Journal 849, 857 (1996) (as an example, with his “goal of the law… to promote sustainability of the system,” of “evolutionist” approach); and Blankenburg, supra note 3, 273, purposely mixing the terms “evolutionary” and “evolutionist.”Google Scholar

20 See Gordon, Robert W., Critical Legal Histories, 36 Stanford Law Review 57, 103 (1984). See, e.g., Karl Marx, Communist Manifesto, in Karl Marx: Selected Writings 219, 234 (David McLellan ed., 1977 [1848]); or generally Priest, George L., The Common Law Process and the Selection of Efficient Rules, 6 Journal of Legal Studies 65, 65-82 (1977); or Richard A. Posner, Economic Analysis of Law 534-536 (4th ed., 1992) designing the road of an “evolution-toward-efficient” legal rules. See also Stein, supra note 2, 46-50, 67-68; and Horowitz, Donald L., The Qur'an and the Common Law: Islamic Law Reform and the Theory of Legal Change, 42 American Journal of Comparative Law 233, 244-247 (1994). But see, e.g., Roe, Mark J., Chaos and Evolution in Law and Economics, 109 Harvard Law Review 641, 654-658 (1996).Google Scholar

21 See Gunther Teubner, Law as an Autopoietic System 48-49 (1993), where the author responds to his critics stressing the fact that his evolutionary theory focuses on the “mechanisms of development” rather than “direction” of such developments. The latter, continues Teubner, are more the focus of attention for “evolutionist” functionalist theories. See also id., 54, refusing the modified version of evolutionary theory suggested by Jürgen Habermas since it implies “an inherent developmental logic… [while] the question of which mechanisms… remains unanswered.” As to a similar line of defense for Holmes’ evolutionary approach, see Philip P. Wiener, Evolution and the Founders of Pragmatism Ch. 8 (1949).Google Scholar

22 See, e.g., Luhmann, supra note 14, 250 (focusing on “property” and “contract”); or Simon Deakin, The Contract of Employment: A Study in Legal Evolution, 11 Historical Studies in Industrial Relations 1, 29-33 (2001).Google Scholar

23 See Deakin & Wilkinson, supra note 18, 31. See also Deakin, supra note 7, 19.Google Scholar

24 See Geoffrey Samuel, Epistemology and Method in Law 220-222 (2003) as to the definition of legal concept. See, e.g., John Bell, Policy Arguments in Judicial Decisions 40-43, 68-77 (1983) (the legal concept of duty of care in negligence); or Neil D. MacCormick, Legal Reasoning and Legal Theory 259 (1997) (the duty for public authorities to hear anyone whose interests are affected by a public decision-making process).Google Scholar

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28 See, e.g., Sward, Ellen E., Justification and Doctrinal Evolution, 37 Connecticut Law Review 389, 391 (2004).Google Scholar

29 Strahlendorf, supra note 17, 591. See also Hovenkamp, supra note 12, 656, where the author identifies actually three versions of evolutionary theory in the legal thinking, all inspired by Darwin's theory: Social Darwinism (e.g. William Graham Sumner), but also Apolitical Darwinism (e.g. Wigmore, John Henry) and the dominating Reform Darwinism (e.g. Pound and Holmes).Google Scholar

30 See Stephen Jay Gould, Bully for Brontosaurus: Reflections in Natural History 455 (1991).Google Scholar

31 See, e.g., Sinclair, supra note 18, 471. But see Luhmann, supra note 14, 233, where the author distances himself (and in general the modern evolutionary approach to law) from the historical antecedents (e.g. Friedrich von Savigny) pointing out that “[e]volution is not a gradual, continuous, seamless increase in complexity but a model… compatible with radical erratic changes… and with long periods of stagnation.” See also Deakin, supra note 7, 39.Google Scholar

32 See Deakin & Wilkinson, supra note 18, 30.Google Scholar

33 Hovenkamp, , supra note 12, 645-646 [footnotes omitted]. See also Stein, supra note 2, ix; Julius Stone, Social Dimensions of Law and Justice 36 (1966); and Deakin, supra note 7, 41-42, talking in particular of “a very tenuous link” between Darwinian thought and established evolutionary approaches to the law.Google Scholar

34 See Luhmann, supra note 14, 230-231; Holmes, , supra note 1, 448-450; and Clark, , supra note 16, 1241. See also Sinclair, supra note 1, 36; and Campbell, Donald T., Variation and Selective Retention in Socio-Cultural Evolution, in Social Change in Developing Areas 19, 27-29 (Herbert Barringer, George Blanksten & Raymond W. Mack eds., 1965).Google Scholar

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36 See Smits, supra note 4, 81: and John H. Beckstrom, Sociobiology and the Law 3-5 (1985). See also Jabbari, David, From Criticism to Construction in Modern Critical Legal Theory, 12 Oxford Journal of Legal Studies 509, 529 (1992).Google Scholar

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38 Teubner, supra note 21, 59. See also Raz, , supra note 8, 201.Google Scholar

39 See, e.g., Deakin, , supra note 7, 35; or Jabbari, , supra note 36, 530. See also Hutchinson and Archer, supra note 17, 24.Google Scholar

40 See, e.g., Jones, Owen D., Evolutionary Analysis in Law: An Introduction and Application to Child Abuse, 75 North Carolina Law Review 1117, 1157-1158 (1997) and his four stages at which an evolutionary theory can be a useful tool for the law-makers. See also Teubner, supra note 21, 49, where the author however limits the possible contribution of evolutionary approach to legal theory to a (rather obscure) idea of “discouraging” the faith in a possible “legal progress.” But see the critiques in Hutchinson, supra note 1, 8–9.Google Scholar

41 See, e.g., Shapo, Marshall S., A Representational Theory of Consumer Protection: Doctrine Function and Legal Liability for Product Disappointment, 60 Virginia Law Review 1109, 1369-1386 (1974) as to the usefulness for the future law-making of understanding the process of creation of legal concepts such as “consumer protection” and “products liability.” See also Varga, Csaba, On The Socially Determined Nature of Legal Reasoning, in Law and Philosophy. Selected Papers in Legal Theory 317, 318 (Csaba Varga ed., 1994), as to the importance in modern society of legislative and judicial law-making and their investigation.Google Scholar

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46 See, e.g., Weber, supra note 26, 669. But see Gordon, supra note 20, 36.Google Scholar

47 See Beckstrom, supra note 13, 28-41, where the author develops the same kind of criticisms, though limited to the socio-biological version of the evolutionary approach to the law. See also Donald E. Elliott, Holmes and Evolution: Legal Process as Artificial Intelligence, 13 The Journal of Legal Studies 113, 114 (1984): “The absence of a strong sense of its own past is a distinctive feature of legal scholarship … Legal scholars, imitating science, purport to be engaged in a quest for new knowledge which, if successful, would sweep aside the paradigms of their predecessors.”Google Scholar

48 See, e.g., Beckstrom, supra note 36, 58-59, not giving any reason why law-making actors should opt for a conservative line instead of a more liberal orientation on the issue of succession law; or Luhmann, supra note 14, 265, where the author points out the birth and development of a certain legal concept (self defense), at the same time failing to offer to future law-making or law-applying actors possible criteria on where to draw the line where the legal/illegal border ought to be drawn. See also Gordon, supra note 20, 68, 71 as to the “hidden” political agenda behind this lack of indication for the future law-making by evolutionary approach to the law.Google Scholar

49 See Holmes, , supra note 7, 474.Google Scholar

50 See, e.g., Strahlendorf, supra note 17 26-27, 574, where the author points out his goal of developing an “evolutionary theory of law” which evaluates changes of the law from an external perspective, i.e. a point of observation grounded in socio-biological findings. See also the critique in Sinclair, Michael B. W., Autopoiesis: Who Needs It?, XVI Legal Studies Forum 81, 81-86 (1992).Google Scholar

51 See Teubner, supra note 21, 52-53, pointing out the different roots between the European evolutionary approach (in the socio-cultural theories of evolution) and some fringes of the American evolutionary approach (in the socio-biological theories of evolution). As to the American version of evolutionary approach to the law, see, e.g., Elliott, supra note 1, 38-39; or Hutchinson, supra note 15, 262-265, where the author uses Darwin's image of species’ evolution like a tree in order to explain the legal evolution. See also Duxbury, supra note 13, 25–32. But see, as representative of a direct application (i.e. not metaphorical) of biology and behaviorist sciences in the understanding of the evolution of the law, Owen D. Jones, Proprioception, Non-Law, and Biolegal History: The Dunwody Distinguished Lecture in Law, 53 Florida Law Review 831, 872-873 (2001; O'Hara, Erin Ann, Apology and Thick Trust: What Spouse Abusers and Negligent Doctors Might Have in Common, 79 Chicago-Kent Law Review 1055, 1055-1058 (2004); or Owen D. Jones, Evolutionary Analysis in Law: Some Objections Considered, 67 Brooklyn Law Review 207, 207 (2001): “Evolutionary analysis in law represents, in large measure, an effort to inform legal thinking with behavioral biology.” As to the European version of evolutionary approach, see, e.g., Teubner, supra note 21, 49, where the author explicitly confines evolutionary theory and its usefulness mainly in the field of legal sociology. See also Smits, supra note 4, 83-88, as a bridge between the two different evolutionary traditions.Google Scholar

52 See Teubner, supra note 3, 300 (stressing the target of his analysis, i.e. the observation of the regularities in the interaction between law and societies). But see Gunther Teubner, “And God Laughed …”: Indeterminacy, Self- Reference and Paradox in Law, in Paradoxes of Self-Reference in the Humanities, Law and the Social Science 15, 29 (Jean-Pierre Dupuy & Gunther Teubner eds., 1991). Compare Edward L. Rubin, Legal Scholarship, in A Companion to Philosophy of Law and Legal Theory 562, 562-563 (Dennis Patterson ed., 1996), pointing out how the internal perspective of the legal actors is not so much a methodology, but the very subject matter of legal investigation. See also the accusation of “reductionism” as addressed to the evolutionary approach to the law in Blankenburg, supra note 3, 381. Another reason behind such lack of normative component can possibly be traced in the fact that evolutionary theory scholars want to clearly mark their distance from Social Darwinism and its “normative hypostasizations.” Teubner, supra note 21, 51. See also Sarah Blaffer Hrdy, The Woman That Never Evolved 12-13 (1981), as to the lack of a normative component as the feature distinguishing in general a Darwinian approach to the evolution from a Social Darwinist perspective. For example, some of the evolutionary approaches to the law stress the idea of “organicity” as underpinning criterion behind legal evolution. See, e.g., Smits, supra note 4, 81; or Robert Sugden, Spontaneous order, in The New Palgrave Dictionary of Economics and the Law Vol. III 485, 488 (Peter Newman ed., 1988). This criterion of “organicity” is used in particular in order to promote the “spontaneous” judicial law-making (as to the American version of the evolutionary theory approach) or the non-state based law-making (as in the case of Smits) against the “creationist” legislative law-making. However, this idea tends to disregard the fact that there is never a spontaneous law-making, being the latter always the creation by institutional actors, either as National assembly or as a conglomerate of business organizations.Google Scholar

53 See Alf Ross, On Law and Justice 47 (1959). See also Thomas S. Ulen, A Nobel Prize in Legal Science: Theory, Empirical Work, and the Scientific Method in the Study of Law, 2002 University of Illinois Law Review 875, 894-895 (2002). But see Luhmann, supra note 14, 252, where the author implicitly underestimates the power of “ideologies” on the legal thinking on law by pointing out the lack of a “general project” behind the evolution of the law. See also id., 270. See, e.g., Deakin, supra note 7, 26–29.Google Scholar

54 Samuel, supra note 24, 222. See Michael B. W. Sinclair, The Semantics of Common Law Predicates, 61 Indiana Law Journal 373, 384-386 (1986); and Ross, supra note 53, 50. See also Quentin Skinner, Introduction: the return of Grand Theory, in The Return of Grand Theory in the Human Sciences 1, 6 (Quentin Skinner ed., 1990). See, e.g., Vogenauer, Stefan, An Empire of Light? II: Learning and Lawmaking in Germany Today, 26 Oxford Journal of Legal Studies 627, 630-637 (2006) (as to the different types of influence exercised by the German scholarship on the German law-making).Google Scholar

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56 As to a similar example in family issues, see Estin, Ann Laquer, Can Families Be Efficient? A Feminist Appraisal, 4 Michigan Journal of Gender and Law 1, 9 (1996). See also Milton Friedman, Essays in Positive Economics 14 (1953).Google Scholar

57 See Merton, Robert K., The self-fulfilling prophecy, 8 Antioch Review 193, 193-210 (1948); and Ross, supra note 53, 47 n. 5. Compare Karl Popper, The Logic of Scientific Discovery 40-41 (1961). See also Lloyd L. Weinreb, Legal Reason: The Use of Analogy in Legal Argument 2-3 (2005); and Hovenkamp, supra note 12, 648. But see, as an example of the current trend of evaluating evolutionary works mainly according to Popper's criteria of falsifiability, Clark, supra note 16, 1258-1259; or Sinclair, supra note 18, 471–474.Google Scholar

58 “[B]y the nineteenth century, at latest, a new kind of society has developed in the West: the society of technology, industry, science, machines… Each advance in science and technology seemed to increase the possibility of control –over nature, over the conditions of life. But control always required regulation, rules, implementation; control was, and had to be, vested in law, legal process, and the state.” Lawrence M. Friedman, Total Justice 42 (1985). See, e.g., Lon Fuller, The Morality of Law 30 (1964).Google Scholar

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62 See Jules Coleman, The Practice of Principle 178, 199-201 (2001). In particular, Coleman points out how scholars that state that every legal theory is normative, are right as long the term “normative” defines the feature of each theory of being “responsive to the norms governing theory construction.” This meaning of normative, however, is not the (narrower) one that has been used throughout this work nor embraced by Coleman himself, i.e. normative theory as a theory defending a specific “ought” of the law. See Jules Coleman, Incorporationism, Conventionality, and the Practical Difference Thesis, in Hart's Postscript. Essays on the Postscript to the Concept of Law 99, 108 n. 22 (Jules Coleman ed., 2001). See also Edward L. Rubin, Law And and the Methodology of Law, 1997 Wisconsin Law Review 521, 543 (1997).Google Scholar

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64 See Summers, Robert, Judge Richard Posner's Jurisprudence, 89 Michigan Law Review 1302, 1304-1305 (1991). In particular, Summers criticizes a purely predictivist theory of law as having a fundamental flaw: it ignores the fact that legal theory must also deals with the basic criteria (“legal standards”) every legal system has (or ought to have) in order to identify what valid law is. See also Peter M. Cicchino, Building on Foundational Myths: Feminism and the Recovery of Human Nature: A Response to Martha Fineman, 8 American University Journal of Gender, Social Policy and the Law 73, 76 (2000). Compare the shifting of Law and Economics from a hard line descriptive legal theory, such as in Richard Posner, The Economic Analysis of Law 14-15 (3rd ed., 1986), to a more mixture of descriptive and normative components, such as in Richard Posner, The Problems of Jurisprudence 353-374 (1990).Google Scholar

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69 For instance, “[t]he modern legal discourse of civil rights is as much a cause as an effect of civil rights thinking within liberal ideology at large.” Duncan Kennedy, A Critique of Adjudication (FIN DE SIECLE) 152 (1997). See also Roger Cotterrell, Law's Community: Legal Theory in Sociological Perspective 250-252 (1995); Sunstein, supra note 59, 191; and Niklas Luhmann, Law as a Social System, 83 Northwestern University Law Review 136, 140 (1989). But see Luhmann, supra note 14, 252, where the author implicitly underestimates the power of “ideologies” on law. See also id., 270. See, e.g., Deakin, , supra note 7, 26–29.Google Scholar

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71 See Plessy v. Ferguson, 163 US 537, 548-552 (1896) and Brown v. Board of Education of Topeka, 347 US 483, 495-495 (1954). See also Derrick Bell, Silent Covenants: Brown v. Board of Education and the Unfulfilled Hopes for Racial Reform 136 (2004). But see, e.g., David A. Strauss, The Common Law Genius of the Warren Court, 49 William and Mary Law Review 845, 862-868 (2007), talking more of Brown as a “final step in a common law development” (at 868); or Milton R. Konvitz, A Century of Civil Rights 70-72 (1961) and the role played by President Truman's Committee on Civil Rights (1946) in setting the stage for Brown v. Board of Education.Google Scholar

72 See Summers, supra note 68, 134–135. See also Jethro W. Brown, Law and Evolution, 29 Yale Law Journal 394, 398 (1920). “[W]e must not forget that actual law is a human product–made and administered by [legal actors] who are not free from human limitations in intelligence and goodwill.” Morris R. Cohen, Law and Social Order: Essays in Legal Philosophy 337 (1933). More in general, as stated by Hutchinson, “any account of legal and biological life that offers an important role for the fact and effects of change will soon itself become a victim of historical change.” Hutchinson, supra note 15, 253. See also Jürgen Habermas, Knowledge and Human Interests 113-139 (1971), and his focus on “inter-subjectivity” instead than on the “objectivity” criterion. But see Deakin, supra note 7, 32, 34 as to the limitation of the subjective element due to the constraint of the legal discourse.Google Scholar

73 See Suzanne B. Goldberg, Constitutional Tipping Points: Civil Rights, Social Change, and Fact-Based Adjudication, 106 Columbia Law Review 1955, 1977-1978 (2006), pointing as key factor the “reconstruction” by the Court of “‘new’ facts to justify new conclusions about previously settled matters while avoiding mention of an underlying norm shift.” See, e.g., Justice Holmes’ refusal of the concept of “equal protection” in Buck v. Bell, 274 US 200, 208 (1927). See also the personal recollection of one of the participant to the process leading eventually to the Supreme Court's decision in Paul E. Wilson, Ad Astra per Aspera-Brown v. Board of Education of Topeka, 68 University of Missouri-Kansas City Law Review 623, 633-634 (2000). But see Robert J. Cottrol, Raymond T. Diamond, & Leland B. Ware, Brown v. Board of Education: Caste, Culture, and the Constitution 78 (2003); and Michael J. Klarman, From Jim Crow to Civil Rights 364-366, 377, 468 (2004) pointing out a significant change towards discrimination based on race in the attitude of the Court's past decisions and of the environment surrounding the legal world.Google Scholar

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75 See Wechsler, Herbert, Toward Neutral Principles of Constitutional Law, 73 Harvard Law Review 1, 32-33 (1959) as reflecting the idea of a political foundation of the decision, more than sociological or legal, an idea shared by many legal actors at that time when Brown was decided. But see Klarman, Michael J., Brown, Racial Change and Civil Rights Movement, 80 Virginia Law Review 7, 10 (1994). See further the reply in Mark Tushnet, The Significance of Brown v. Board of Education, 80 Virginia Law Review 173, 175-177 (1994).Google Scholar

76 See Bernard Schwartz, A History of the Supreme Court 286 (1993); and Friedman, American Law in the 20th Century 502 (2002). See also Ford, Richard Thompson, Brown's Ghost, 117 Harvard Law Review 1305, 1333 (2004): “Brown's relevance is less to our history than to our future” [italics in the text]. As to the “re-constructivist” attitude of evolutionary approach literature when dealing with the unpredictable nature of these type of “revolutions” in legal (and social) history, see Deakin, supra note 7, 14: “The widespread and unavoidable practice of providing after-the-event rationalizations to doctrinal innovations often obscures the historical process by which they were formed.”Google Scholar

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79 See, e.g., Corwin, Edward S., The Impact of the Idea of Evolution on the American Political and Constitutional Tradition, in Evolutionary Thought in America 182, 186 (Stow Persons ed., 1950).Google Scholar

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81 See Teubner, supra note 21, 56-59, where Teubner implicitly stresses the central role played (via the autopoietic nature of contemporary legal systems) by the legal actors’ normative ideology in order to explain the evolution of the law in all the three stages. See, e.g., Teubner, supra note 4, 280 where one of the roles of legal reflexive processes is the construction of value-criteria allowing certain legal measures instead of others.Google Scholar

82 See Luhmann, supra note 14, 252; or Elliott, supra note 1, 38: “Law is a scavenger. It grows by feeding on ideas from outside, not by inventing new ones of its own.”Google Scholar

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84 See Weber, supra note 26, 720-725, 855. See also Trubek, supra note 44, 751. As to another example of purely legal construction, see the concept of property (vs. the factual situation of possession) or the one of contract (vs. the factual situation of transaction) as in Luhmann, supra note 14, 251–252.Google Scholar

85 See Stone, supra note 33, 56–62. See also Teubner, supra note 4, 249–250. “Generating ‘loopholes,’ developing new financing techniques, and creating other legal devices involves careful and insightful use of language, communication, and interpretation skills. In these and numerous other ways legal actors generate and capture value through the interpretive process.” Robin Paul Malloy, Framing The Market: Representations of Meaning and Value in Law, Markets, and Culture, 51 Buffalo Law Review 1, 83 (2003). See also Deakin & Wilkinson, supra note 18, 32, where “the particular stock of precedents available to the draftsman and the courts… [provides] the source of variation in the options from which they could choose” [italics in the text]. But see Israel M. Kirzner, Discovery and the Capitalist Process 141-144 (1985), as to the inefficiency (at least from an economic perspective) of this legally-based process of “discovery” or variation.Google Scholar

86 See, e.g., Teubner, supra note 21, 59: “[T]he success of external innovations depends on the extent to which they can be formulated in terms of legal doctrine's ‘criteria of relevance’” [footnote omitted]. See also Teubner, supra note 4, 248; and Deakin & Wilkinson, supra note 18, 28–29.Google Scholar

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89 Teubner, supra note 21, 59. See also Arthur J. Jacobson, Autopoietic Law: The New Science of Niklas Luhmann, 87 Michigan Law Review 1647, 1662 (1989).Google Scholar

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105 Dworkin, , supra note 5, vii.Google Scholar

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