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The Evolutionary Game-Theoretic Foundations of Law

Published online by Cambridge University Press:  27 December 2018

Robin Bradley Kar
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Abstract

Interdisciplinary work in the law often starts and stops with the social sciences. To produce a complete understanding of how law, evolutionary game-theoretic insights must, however, supplement these more standard social scientific methods. To illustrate, this article critically examines The Force of Law by Frederick Schauer and The Expressive Powers of Law by Richard McAdams. Combining the methods of analytic jurisprudence and social psychology, Schauer clarifies the need for a philosophically respectable and empirically well-grounded account of the ubiquity of legal sanctions. Drawing primarily on economic and social psychological paradigms, McAdams highlights law's potential to alter human behavior through expressions that coordinate. Still, these contributions generate further puzzles about how law works, which can be addressed using evolutionary game-theoretic resources. Drawing on these resources, this article argues that legal sanctions are ubiquitous to law not only because they can motivate legal compliance, as Schauer suggests, but also because they provide the general evolutionary stability conditions for intrinsic legal motivation. In reaction to McAdams, this article argues that law's expressive powers can function to coordinate human behavior only because humans are naturally and culturally evolved to share a prior background agreement in forms of life. Evolutionary game-theoretic resources can thus be used to develop a unified framework from within which to understand some of the complex interrelationships between legal sanctions, intrinsic legal motivation, and law's coordinating power. Going forward, interdisciplinary studies of how law works should include greater syntheses of contemporary insights from evolutionary game theory.

Type
Articles
Information
Law & Social Inquiry , Volume 42 , Issue 1 , Winter 2017 , pp. 38 - 48
Copyright
Copyright © American Bar Foundation, 2017 

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References

Cosmides, Leda, and Tooby, John. 2008. Can a General Deontic Logic Capture the Facts of Human Moral Reasoning? How the Mind Interprets Social Exchange Rules and Detects Cheaters. In Moral Psychology: The Evolution of Morality: Adaptations and Innateness, ed. Sinnott‐Armstrong, Walter, Vol. 1, 53–119. Cambridge, MA: MIT Press.Google Scholar
Ellickson, Robert C. 1994. Order Without Law: How Neighbors Settle Disputes, rev. ed. Cambridge, MA: Harvard University Press.Google Scholar
Haidt, Jonathan. 2001. The Emotional Dog and Its Rational Tail: A Social Intuitionist Approach to Moral Judgment, Psychological Review 108:814–34.Google Scholar
Hart, H. L. A. [1961] 2004. The Concept of Law, 2nd ed., ed. Bulloch, Penelope A. and Raz, Joseph. Oxford: Oxford University Press.Google Scholar
Kar, Robin Bradley. 2006. The Deep Structure of Law and Morality. Texas Law Review 84:877–942.Google Scholar
Kar, Robin Bradley. 2012. The Two Faces of Morality: How Evolutionary Theory Can Both Vindicate and Debunk Morality (with a Special Nod to the Growing Importance of Law). In NOMOS LII: Evolution & Morality, ed. Fleming, James E. and Levinson, Sanford, 31–99. New York: New York University Press.Google Scholar
Lewis, David. [1969] 2002. Convention: A Philosophical Study. Malden, MA: Wiley‐Blackwell.Google Scholar
Maynard‐Smith, John. 1982. Evolution and the Theory of Games. New York: Cambridge University Press.Google Scholar
McAdams, Richard H. 2015. The Expressive Powers of Law: Theories and Limits. Cambridge, MA: Harvard University Press.Google Scholar
Quine, W. V. O. 1960. Word and Object: Studies in Communication. Cambridge, MA: MIT Press.Google Scholar
Schauer, Frederick. 2015. The Force of Law. Cambridge, MA: Harvard University Press.Google Scholar
Wittgenstein, Ludwig. 1953. Philosophical Investigations. Trans. Anscombe, G. E. M. New York: Macmillan.Google Scholar