Tuesday, July 2, 2019

Evolutionary Biology and the Law: Beyond Jurisprudence

I have been arguing for several years that jurisprudence scholars should draw on recent findings in evolutionary biology and the cognitive sciences.  (here, here)  The discoveries in these fields have helped us better understand how the brain works and how morality developed.  Any jurisprudence scholar who ignores these fields does so at the risk of making fundamental errors.

Alan Calnan has written an article that draws on these fields to go Beyond Jurisprudence.

Key paragraphs:

"The answer, it turns out, is everywhere. To comprehend the nature of law, we must grasp the complex natural systems that inform and transform it. For this to occur, jurisprudents first must abandon dualism, embrace holism, and expand their methods of investigation. Instead of choosing between philosophy or science, they must practice consilience."

"Consilience is the integration of knowledge across all academic disciplines. . . .  Just as a leaf cannot be understood apart from the chemical processes of the tree, law cannot be understood apart from the complex systems that brought it into being."

"With consilience's insights, these systemic forces quickly snap into sharp focus. We finally see that law is the culmination of three natural phenomena: complexity, complementarity, and coordination dynamics. . .  law is both permanently grounded in human nature, and constantly adapting to social and cultural progress."

"In fact, law is really just the mirror image of its human creator--a complementary collection of problem-solving systems dynamically coordinating and reconciling their antagonistic tendencies in pursuit of survival and flourishing."

Abstract

"This article takes a new approach to legal theory. Because it views law as part of a complex natural system, it uses complex systems theory as its central investigative framework. Unlike traditional jurisprudence, which separates human artifacts from nature, complexity theory shows that human and natural systems are interdependent. Such systems cannot be studied in isolation, but require consilience. Consilience unites knowledge from the natural sciences, the social sciences, and the humanities. By merging consilience with complexity theory, the article moves beyond jurisprudence toward “jurisilience.”

Jurisilience shows that law is a complex cultural system caused by complex social systems of cooperation. Yet law is not just a social construction. Law’s tree of causality has biological roots. Human social practices derive from complex psychological systems that stimulate empathy and trust. These systems, in turn, emerge from complex neural and genetic systems that propagate man’s selfish and social instincts. According to complexity theory, system pressures operate both within and between man’s developmental tiers, triggering attitudinal and behavioral changes that run not only from individuals up to societies and cultures, but also back down into the human genome. In this way, law is both permanently grounded in human nature and constantly adapting to social and cultural progress.

Like all natural systems, man’s systemic cycles are governed by coordination dynamics. Though human beings seek self-preservation, they possess complementary but conflicting properties that jeopardize their survival. Coordination dynamics reconcile such conflicts. Our biological systems coordinate our bodily functions and psychological drives, while our social and cultural systems coordinate our relationships with other people. As a cultural institution, our legal system stands above society, stabilizing the persistent discord below. But law never loses its human footing. In fact, law is really just the mirror image of its human creator – a complementary collection of problem-solving systems dynamically coordinating and reconciling their antagonistic tendencies in pursuit of survival and flourishing."

I could go on and on quoting gems from the article, but it is time to stop.  You should read the article yourself because it is an important advance in combing science with the law.

(Scott Fruehwald)

https://lawprofessors.typepad.com/legal_skills/2019/07/the-answer-it-turns-out-is-everywhere-to-comprehend-the-nature-of-law-we-must-grasp-the-complex-natural-systemsthat-infor.html

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