Is Law a Parasite? An Evolutionary Explanation of Differences among Legal Traditions

J.M. Smits*

*Corresponding author for this work

Research output: Contribution to journalArticleAcademicpeer-review

Abstract

One of the most salient characteristics of law is that it can be seen as a tradition: law is passed on from one generation to another and, even though profound changes in the law may occur over time, its development is usually seen as a continuous one. Thus, in The Common Law, Oliver Wendell Holmes states that “‘the law embodies the story of a nation’s development through many centuries (...).” Alan Watson also emphasizes the extraordinary persistence of rules by noting that similar rules have been transplanted from one society to another. This paper seeks to explain differences among legal traditions by applying a specific evolutionary framework. This framework is based on ‘symbiosism,’ a Darwinian theory developed by linguists to explain the origins and development of language. The basis for this theory is that language is an organism residing in the human brain and therefore a memetic life form. In this respect, interesting parallels can be drawn between language and law. This theory can be used to help explain differences among jurisdictions, in particular why it is that these differences continue to exist over time.
Original languageEnglish
Pages (from-to)791-804
JournalReview of Law & Economics
Volume7
DOIs
Publication statusPublished - 1 Jan 2011

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