4 Stages in the Evolution of a Society`s Legal System

One of the most recent developments in the development of law has been the application of memetics to law. Memetics provides a model for the cultural transmission of information using a genetic metaphor related to gene movement and alteration. As Simon Deakin notes, memetics assumes that “patterns of cultural evolution are closely analogous to those that occur in the natural world as a result of the interaction between genes, organisms, and environments.” [5] Deakin provides a theory of legal memetics based on three theses. First, this change in law can be cumulative, and successive changes can lead to “complex and multifunctional legal institutions.” Second, that legal systems are adaptable, although they are not optimized to become more efficient. They are limited by history without tending towards an optimal state. Third, he argues that legal concepts act as genes, encode information about society and the world, and are transmitted in a manner analogous to genetic inheritance. [5] According to legal memetics, legal forms, such as biological adaptation, often survive their original purposes and can then be adopted in different contexts. This can lead to a “lock-in”, a form of path dependency where a particular legal innovation has a long-term impact by increasing the cost of switching to a different legal model. [42] Similarly, biological adaptation often involves the reuse of earlier adaptations that may limit possible future pathways. [43] Such phenomena are very common in legal systems[44] and suggest that legal terms contain information about the previous environments that shaped them.

The legal and economic movement has been treated by some scholars as a continuation of earlier theories of legal evolution. [2] Legal and economic theorists developed in the mid-20th century attempt to apply methods of economic analysis to law. [32] Elliott argues that the Law and Economics movement claims to have solved the mystery of why some legal rules survive and develop, while others are rejected by classical economics. For example, Clark used “cost reduction” to explain the power behind the legal development of the law. [33] Among the early influential jurists and economists who adopted this approach were Richard Posner,[34] Paul Rubin,[35] and George L. Priester. [36] Other factors that influence the memetic success of a legal concept are its institutional authority, such as: appeal in several precedents; adaptability; and its ease of memorization and replication. [45] For example, Erika Chamberlain suggests that the neighbor principle in Donoghue vs. Stevenson as a self-propagating meme may have been successful in part because of the memorable facts of the case, Lord Atkin`s rhetorical means, and narrative structure. [46] The prevailing view in England before the 19th century was that the law was based on ancient customs that had been refined over the centuries for practical reasons. This view began to change with the influence of the German historical school and social evolutionists such as Auguste Comte. [1] A clear indication of a change can be found in the legal entry of the eighth edition of the Encyclopædia Britannica, written by J.F.

McLennan under the influence of Savigny, Montesquieu, Smith and Comte. He declares: “The fullness of the idea of law has not been attained by the whole of a system of laws that is now administered; but in the progress of civilization, the tendency everywhere goes to its realization. [24] The culmination of legal development during this period was the publication of Maine`s “ancient law,” which proposed an evolutionary theory of law. Maine has argued that corporations have naturally moved from “status-based” laws to an independent contract theory, memorably summarized in the line “from one status to another.” [25] This chapter develops a working definition of law and the legal system that is used throughout the book. The law is the set of rules and regulations applied by the government. However, formal law is only one part of a broader legal system that encompasses the structures, substance, and culture that breathe life into the law in books. Together, the law and the legal system function both as a method of social control and as a means of resolving disputes. The last part of the chapter places the U.S. legal system in the broader realm of civil law and common law systems around the world. Teubner developed this process more precisely and analogous to legal systems with biological cells.

Cells have an internal structure, but react to the environment via autonomous processes. [40] Teubner accepts changes in the law and reacts to independent events, but only at his own pace. Nevertheless, changing the law is not entirely automatic – it works deliberately, with justice serving as the ultimate program. The law seeks to align with the external requirements of justice and to remain consistent; Teubner succinctly summarizes this dichotomy: “Inner coherence more responsiveness to ecological requirements – this is the double requirement of legal justice”. [41] A theory closely related to systems theory is the concept of path dependence, in which developments in a particular legal form can determine further development. [42] [37] The idea of legal evolution first appeared in the 18th century. Peter Stein argues that one of the main impulses of its development has been the inadequacy of theories about unimaginable customs, popular heritage, sovereign will, and natural reason to explain how legal systems change. [1] Early examples are Pufendorf and Grotius, who, despite their status as models of natural law theorists, recognized that “the state and private property are not `original`, but appear only when man is willing to do so.” [1] [10] They were followed by David Hume, who, as part of his argument against the theory of social contracts, suggested that law and government were formed out of habit over time. [10] [11] A French strand of evolutionary thought developed simultaneously and was closely followed by later Scottish theorists. Montesquieu provided a very detailed theory in “The Spirit of Laws” that connects law to society, and gave many specific examples of legal norms of antiquity, contemporary law, and travel writers.

[12] However, he was not willing to develop a general thesis of change, as he considered it unfounded. Conversely, other French authors, such as Lafitau, who compared the Amerindians to the ancient Greeks,[13] and Goguet, who traced the economic and social impact on the law, were ready to propose general theories of progress. [14] 14 Advantages of English common lawA usual legal network has developed A system of carefully followed precedents The process used to achieve this goal is called the English common law system The legal system in the United States is based on English common law Do you mean that the law must be taught in schools? Evolution has been the accepted theory about the origin of “complex” life for about 150 years. I don`t know when it became legal to be taught in schools. Probably around the same time, the scientific community accepted it. The old law was very popular in Victorian times. His attribution of continuous and impersonal laws of nature to the development of law was well suited to the great social and technological changes that Britain was undergoing. [1] Although probably completed before the publication of Origin of Species,[7] Maine`s work corresponds to the fashion of Darwinian thought. Despite its influence, ancient law was criticized shortly after its publication for the inaccuracy of its historical material and anthropological commentary. [2] The term “legal evolution” encompasses a wide range of theories with different objectives and approaches, but several characteristics are shared. Theories of legal evolution seek to provide an explanation of how law changes by reference to broader factors outside the legal system. For example, the German historical school suggested that the law be developed with the nation that contained it, an idea that was pursued by Henry Maine in Britain in his theory of “progressive evolution.” [4] Similarly, legal memetics explains the development of law after the interaction of external information in society and its process of “coding” in legal norms.

[5] Another common thesis is that legal development is progressive, with legal systems tending towards greater complexity, comprehensiveness or “progress”.