Comparative Law, Behavioral Economics, and
Contemporary Evolutionary Functionalism
Julie DE CONINCK* & Bart DU LAING**
Draft version September 2009 – do not quote or cite without permission
*
Postdoctoral Fellow of the Research Foundation - Flanders (FWO), Catholic University of Leuven (KU
Leuven); Lecturer at the University of Antwerp.
**
Postdoctoral Fellow of the Research Foundation - Flanders (FWO), Ghent University, Department of
Legal Theory and Legal History.
1
I. Introduction
Comparative legal scholars ordinarily embark on their research with certain
preconceptions regarding the universality or diversity of human behavior and societies
that have a strong bearing on the starting point and focus of their investigations. As such,
functionalist comparative legal scholars set about their inquiries from a belief that certain
aspects of human behavior and human societies are universal and that every society’s
legal system thus is presented with essentially the same problems. Difference theorists,
for their part, believe that human behavior and human societies are fundamentally
culture-dependent and that each legal system thus is a unique cultural product.
Notwithstanding the tenacity with which such claims are at times affirmed, neither strand
of scholars has expressed much interest in empirical support for their respective
convictions (infra part II).
In an attempt to save at least some of the scientific aspirations of comparative legal
research, we draw upon the empirical findings and theoretical framework of behavioral
economics and contemporary evolutionary approaches to human behavior. First, we
explore whether and subject to what conditions (evolutionarily informed) behavioral
economics could prove to be of assistance in the search for legally sufficiently neutral
and empirically better validated standards of comparison that at the same time are
inherently variable themselves (infra part III). Second, and admittedly more tentatively,
we inquire into the usefulness of contemporary evolutionary approaches to human
behavior for rehabilitating some sort of evolutionary functionalism in comparative law
2
scholarship, mainly by incorporating cultural transmission mechanisms and their
consequences into the latter’s theoretical framework (infra part IV).
Our article’s research question could thus be phrased as follows: How can we (re)connect
functionalism in comparative law with (evolutionarily informed) behavioral economics
and contemporary evolutionary approaches to human behavior in order to strengthen the
functional method of comparative law, as regards both its empirical content and its
theoretical framework?
II. Comparative Law
Functionalist comparative legal scholars typically focus on the social function of the legal
rules, concepts, and institutions they intend to compare. In doing so, they attempt to
tackle what is perceived to be a fundamental problem of all (cross-cultural) comparative
disciplines – that is, the issue of comparability of the items to be compared, to avoid
making “apples to oranges” comparisons.1 While rules, concepts, and institutions
originating from various legal systems may differ to a considerable extent, according to
functionalist legal comparatists, they nevertheless share at least one common property:
they address the same social problems. Hence, they become comparable, at least in terms
of their functional responsiveness to these particular problems.2 So-called difference
1
That is not to say it cannot be done. See notably the tongue-in-cheek experiment by Scott A. Sandford,
Apples and Oranges – A Comparison, 1(3) ANNALS IMPROBABLE RES. (1995), available at
http://www.improbable.com/airchives/paperair/volume1/v1i3/air-1-3-apples.html.
2
E.g., Marc Ancel, Le problème de la comparabilité et la méthode fonctionnelle en droit comparé, in
FESTSCHRIFT FÜR IMRE ZAJTAY 1, 5 (1982); Ernst A. Kramer, Topik und Rechtsvergleichung, 33 RABELS
3
theorists are notoriously skeptical of this assertion since, they argue, “it is far from clear
that there is general agreement as to what constitutes a problem,”3 for “in every society,
the issues of practical life are already shaped by history, culture, religion and language
before they are posed as legal questions.”4 Moreover, and correspondingly, functionalist
legal comparatists are inclined to center their investigations on (presumed) commonalities
between legal systems, whereas difference theorists typically favor (equally presumed)
difference over similarity.5
The opposite claims and interests expressed by functionalist legal comparatists, on the
one hand, and difference theorists, on the other, can be connected to their underlying
belief in or denial of the existence of universal features of human behavior and societies.
Indeed, functionalist legal comparatists are prone to argue that practically all existing
legal systems are to a great extent comparable with one another, simply because they are
ZEITSCHRIFT FÜR AUSLÄNDISCHES UND INTERNATIONALES PRIVATRECHT [RABELSZ] 1, 4-5, 9-10 (1969);
M. Schmitthoff, The Science of Comparative Law, 7 CAMBRIDGE L.J. 94, 96 (1939).
3
Jonathan Hill, Comparative Law, Law Reform and Legal Theory, 9 OXFORD J. LEGAL STUD. 101, 108
(1989).
4
Richard Hyland, Comparative law, in A COMPANION TO PHILOSOPHY OF LAW AND LEGAL THEORY 184,
189 (Dennis Patterson ed., 1996). Put differently, it is argued that the social structures of the various
societies are not sufficiently homogeneous to pose identical and universal problems that merely have to be
regulated by the law. See LÉONTIN-JEAN CONSTANTINESCO, TRAITÉ DE DROIT COMPARÉ, II, LA MÉTHODE
COMPARATIVE
38 (1974); ALAN WATSON, LEGAL TRANSPLANTS 4 (2d ed., University of Georgia Press
1993).
5
Cf. Pierre Legrand, What “Legal Transplants”?, in ADAPTING LEGAL CULTURES 55, 67 (David Nelken &
Johannes Feest eds., 2001) and, more generally, Roger Cotterrell, Is it so Bad to be Different? Comparative
Law and the Appreciation of Diversity, in COMPARATIVE LAW. A HANDBOOK 133 (Esin Örücü & David
Nelken eds., 2007).
4
forced to solve the same or very similar problems occurring in the daily life of society. 6
This affirmation reflects not only their presumption of a (straightforward) functional
relationship between law and society,7 but also their underlying belief that at least certain
aspects of human behavior and human societies are universal.8 Difference theorists, to the
contrary, disavow the existence of universal problems because of their belief that human
behavior and human societies are fundamentally culture-dependent, so that each legal
system is to be understood as a unique and inherently different cultural (constitutive)
product.9
For the purpose of this article, our interests lie not so much with the diametrically
opposed nature of these beliefs and claims, but rather with the common feature they
display – that is, the blatant disregard of both functionalist legal comparatists and
difference theorists10 for empirical support for their respective claims and convictions.
Some functionalist legal comparatists would even appear to go so far as to maintain that
6
KONRAD ZWEIGERT & HEIN KÖTZ, AN INTRODUCTION TO COMPARATIVE LAW 34 (Tony Weir trans., 3d
ed. 1998); MICHAEL BOGDAN, COMPARATIVE LAW 64 (1994).
7
See also infra text accompanying notes 50 and 74.
8
Cf. Jaakko Husa, Farewell to Functionalism or Methodological Tolerance?, 67 RABELS ZEITSCHRIFT FÜR
AUSLÄNDISCHES UND INTERNATIONALES PRIVATRECHT
9
419, 430 (2003).
See and compare Janet E. Ainsworth, Categories and Culture: On the “Rectification of Names” in
Comparative Law, 82 CORNELL L. REV. 19, 28 (1996); Vivian Grosswald Curran, Dealing in Difference:
Comparative Law’s Potential for Broadening Legal Perspectives, 46 AM. J. COMP. L. 657, 667 (1998)
(suggesting that “the only reliable human universal may be human difference”); Clifford Geertz, Local
Knowledge: Fact and Law in Comparative Perspective, in LOCAL KNOWLEDGE 167, 215 et seq. (1993).
10
With respect to the latter, see the criticism by Raffaele Caterina, Comparative Law and the Cognitive
Revolution, 78 TUL. L. REV. 1501 (2004).
5
this lack of concern for empirical support poses no particular problem, since, they
contend, comparative law is and must be an argumentative and normative discipline.11
Contrary to these scholars, we believe that it is still worthwhile to attempt to save at least
some of the more traditionally scientific aspirations of comparative legal research. In this
article, we argue that behavioral economics and contemporary evolutionary approaches to
human behavior could prove to be of service in this respect in at least two ways. First,
(evolutionarily informed) behavioral economics can be of assistance in the quest for
variable standards of comparison that are legally sufficiently neutral and empirically
informed (infra part III). Second, contemporary evolutionary approaches to human
behavior could prove useful by introducing to comparative law an evolutionary
functionalism of a markedly different kind than its much-maligned legal ancestor (infra
part IV).
III. Behavioral Economics
If functionalist comparative legal research is to transcend mere beliefs in the universality
of human behavior and human societies and, correspondingly, the use of mere
constructed – common – problems,12 it could fruitfully benefit from research in
behavioral economics. To begin with, functionalist comparative law can avail itself of the
findings of behavioral economics in an endeavor to ascertain legally sufficiently neutral
11
Prominently, Ralf Michaels, The Functional Method of Comparative Law, in THE OXFORD HANDBOOK
OF COMPARATIVE LAW 339,
12
366, 381 (Reinhard Zimmermann & Mathias Reimann eds., 2006).
See recently, Michaels, supra note 11, at 366, 368-69; Husa, supra note 8, at 430.
6
and at the same time empirically better validated standards from which to compare rules,
concepts, and institutions from different legal systems (infra 1). Moreover, the increasing
attention behavioral economists are paying to the cultural variability of the behaviors they
study endorses the possibility of flexible standards of comparison, while ensuing research
is starting to relate this behavioral variability to macro-level institutional variables (infra
2).
1. Empirically Informed Standards of Comparison
Like conventional neoclassical economics, behavioral economics is concerned with
economically relevant human behavior. The latter, however, explicitly focuses on real
observed human behavior. In doing so, behavioral economists refuse to rely upon and
even positively challenge some of the assumptions underlying standard economic models
of judgment and choice, such as the assumption that individuals are self-regarding utility
maximizers with relatively stable and coherent preferences. Over the past few decades,
behavioral economists have gathered a large body of empirical evidence indicating that at
least a substantial percentage of people violates many of the postulates of standard
economic theory. Most famously, behavioral economists have uncovered that in effect
individuals do not behave according to the postulates of full rationality, narrow selfinterest, and absolute self-control.13
13
For an introduction to the main themes of the field, see Colin F. Camerer & George Loewenstein,
Behavioral Economics: Past, Present, Future, in ADVANCES IN BEHAVIORAL ECONOMICS 3 (Colin F.
Camerer et al. eds., 2004); Daniel Kahneman, Maps of Bounded Rationality: Psychology for Behavioral
Economics, 93 AM. ECON. REV. 1449 (2003); Matthew Rabin, A Perspective on Psychology and
Economics, 46 EUR. ECON. REV. 657 (2002).
7
Legal scholars have already taken an interest in this line of research, advocating the
relevance of this descriptively more accurate account of actual human behavior for
domestic legal policy.14 Others have contemplated on the findings of behavioral
economics as a possible explanatory factor for the content of the law, in considering
various legal institutions as reflecting determinants of actual decision-making.15
Quite apart from this (domestic) field of “behavioral law and economics,”16 the findings
of behavioral economics appear to hold a more immediate significance for – functionalist
– comparative legal research, as they seem to provide a promising route of inquiry to
study cross-cultural differences and similarities in the ways different legal systems
respond to or act upon human behavior. The various behavioral patterns studied by
behavioral economists indeed could be taken as a pivotal point from which to compare
14
Christine Jolls & Cass R. Sunstein, Debiasing through Law, 35 J. LEGAL STUD. 199 (2006); Russell B.
Korobkin & Thomas S. Ulen, Law and Behavioral Science: Removing the Rationality Assumption from
Law and Economics, 88 CAL. L. REV. 1053 (2000); FRANCESCO PARISI & VERNON L. SMITH EDS., THE
LAW AND ECONOMICS OF IRRATIONAL BEHAVIOR, parts III and IV (2005). Consider also On Amir & Orly
Lobel, Stumble, Predict, Nudge: How Behavioral Economics Informs Law and Policy, 108 COLUM. L. REV.
2098 (2008).
15
Cf., e.g., David Cohen & Jack L. Knetsch, Judicial Choice and Disparities Between Measures of
Economic Values, 30 OSGOODE HALL L.J. 737 (1992) (arguing that various common law doctrines can be
understood as reflecting the higher value commonly placed on losses over gains); Ward Farnsworth, The
Legal Regulation of Self-Serving Bias, 37 U.C. DAVIS L. REV. 567 (2003) (considering multiple features of
the American legal system as responses to self-serving biases); Christine Jolls et al., A Behavioral
Approach to Law and Economics, 50 STAN. L. REV. 1471, 1510-16 (1998) (suggesting that pervasive
fairness concerns may account for many legal bans on voluntary deals – in a similar vein, Avishalom Tor,
The Methodology of the Behavioral Analysis of Law, 4 HAIFA L. REV. 237, 269-70 (2008), available at
http://ssrn.com/abstract=1266169).
16
Or, more generally, behavioral analysis of law (compare Tor, supra note 15, at 314-17).
8
how various legal systems deal with or act upon these behavioral patterns.17 Espousing
this approach would enable legal comparatists to address two difficulties that commonly
plague (functionalist) comparative legal research. First, by employing empirically
observed and experimentally measured behavioral patterns as a starting point for their
research, legal comparatists ensure a legally sufficiently neutral standard of comparison,
thereby avoiding the problem of – inadvertently – relying upon parochial legal concepts
and categories. In addition, and by the same token, this course of action provides an
empirically informed basis for comparison, without functionalist legal comparatists
having to resort to mere constructed problems.18
As such, the notorious endowment effect furnishes an interesting empirically
substantiated point of reference from which to compare the ways in which different legal
systems take into account the fact of physical possession. The endowment effect refers to
the finding that, contrary to the standard prediction of near equivalence of such measures
of value, the minimum monetary amount individuals demand to give up a particular good
(willingness to accept or WTA) is typically much higher than the maximum amount they
are willing to pay (WTP) to acquire that same good. These findings suggest that
individuals value goods more highly when they are part of their “endowment” than when
they are not.
17
Compare to a certain extent also the basic suggestion by Roger D. Masters, The Ethological Basis of
Trust, Property and Competition, 23 RECHTSTHEORIE 407 (1992) (advancing the theoretical utility of
ethology for determining elements of legally relevant human behavior that could act as a common
denominator for comparative legal purposes).
18
See Julie De Coninck, Overcoming the Mere Heuristic Aspirations of (Functional) Comparative Legal
Research? An Exploration into the Possibilities and Limits of Behavioral Economics, GLOBAL JURIST
(forthcoming 2009).
9
Observed in numerous real and hypothetical experiments and supported by field data,19
the endowment effect is widely20 regarded as an empirically robust phenomenon. The
robustness of the endowment effect, as observed with adults, seems to be corroborated21
by its occurrence with children22 and by experiments with nonhuman primates suggesting
19
Most famously, the experiments reported by Daniel Kahneman et al., Experimental Tests of the
Endowment Effect and the Coase Theorem, 98 J. POL. ECON. 1325 (1990). For overviews, see John K.
Horowitz & Kenneth E. McConnell, A Review of WTA / WTP Studies, 44 J. ENVTL. ECON. & MGMT. 426
(2002); Serdar Sayman & Ayşe Öncüler, Effects of Study Design Characteristics on the WTA – WTP
Disparity: A Meta Analytical Framework, 26 J. ECON. PSYCHOL. 289 (2005).
20
Though not unanimously. See notably Charles R. Plott & Kathryn Zeiler, The Willingness to Pay-
Willingness to Accept Gap, the “Endowment Effect,” Subject Misconceptions, and Experimental
Procedures for Eliciting Valuations, 95 AM. ECON. REV. 530 (2005). But see also Simon Gächter et al.,
Individual-Level Loss Aversion in Riskless and Risky Choices 3, 13, 18 (CeDEx Discussion Paper No.
2007-02, 2007), available at http://www.nottingham.ac.uk/economics/cedex/papers/2007-02.pdf (last
visited Aug. 30, 2009) (the hypothesis that subject misconception would explain the WTA-WTP gap seems
contradicted by the positive correlation observed between loss aversion in riskless and risky choice) and the
alternative suggested by Botond Kőszegi & Matthew Rabin, A Model of Reference-Dependent Preferences,
121 Q.J. ECON. 1133, esp. at 1142 (2006); Jack L. Knetsch & Wei-Kang Wong, The Endowment Effect and
the Reference State: Evidence and Manipulations, 71 J. ECON. BEHAV. & ORG. 407 (2009).
21
On the conjecture that analogous behaviors observed with adults, children and nonhuman primates may
point to a common, possibly innate (“universal”) ancestry, see, e.g., Laurie R. Santos & Venkat
Lakshminarayanan, Innate Constraints on Judgment and Decision-Making? Insights from Children and
Nonhuman Primates, in THE INNATE MIND. VOLUME 3: FOUNDATIONS AND THE FUTURE 293 (Peter
Carruthers et al. eds., 2007) (with explicit consideration of reference dependence/loss aversion/endowment
effect).
22
See William T. Harbaugh et al., Are Adults Better Behaved than Children? Age, Experience, and the
Endowment Effect, 70 ECON. LETTERS 175 (2001). But consider also Margery M. Lucas et al., Fair Game:
The Intuitive Economics of Resource Exchange in Four-Year Olds, 2 J. SOC., EVOLUTIONARY & CULTURAL
PSYCHOL. 74, 81-82, 85 (2008) (noting that the percentage of their subjects showing an endowment effect
is less than that generally reported in experiments with adults).
10
that closely related species would seem to display similar behavioral traits. 23 More
recently, researchers have aspired to disentangle the effects of physical possession and
legal ownership; effects that so far have remained intertwined in the traditional design of
endowment effect experiments. In testing for the distinct effects of possession and
ownership, these researchers have observed the marked salience of physical possession in
particular for inducing the endowment effect.24 Taken together with the apparent
robustness of the endowment effect, these findings lend credence to the hypothesis that
the physical possession of an object would be an important factor for vesting individuals
with some legal rights with regard to that object across legal systems.
23
See Sarah F. Brosnan et al., Endowment Effects in Chimpanzees, 17 CURRENT BIOLOGY 1 (2007)
(observing that chimpanzees tend to keep less-preferred food rather than exchange it for preferred food,
thus, arguably, exhibiting some form of endowment effect); M. Keith Chen et al., How Basic Are
Behavioral Biases? Evidence from Capuchin Monkey Trading Behavior, 114 J. POL. ECON. 517 (2006)
(reporting that capuchins display both reference dependence and loss aversion, similar to that commonly
observed in humans – but see for a different interpretation, Alan Silberberg et al., On Loss Aversion in
Capuchin Monkeys, 89 J. EXPERIMENTAL ANALYSIS BEHAV. 145 (2008)); Venkat Lakshminarayanan et al.,
Endowment Effect in Capuchin Monkeys, 363 PHIL. TRANSACTIONS ROYAL SOC’Y B: BIOLOGICAL SCI.
3837 (2008) (testing more explicitly for an endowment effect and controlling for transaction costs and
timing issues).
24
Jochen Reb & Terry Connolly, Possession, Feelings of Ownership and the Endowment Effect, 2
JUDGMENT & DECISION MAKING 107 (2007) (arguing that the higher monetary valuations noted in the
endowment effect result from subjective feelings of ownership that are induced by the possession of an
object, rather than by its legal ownership). Compare also Knetsch & Wong, supra note 20 (whose
experiments suggest that physical possession is at least one factor influencing the subject’s reference state);
James R. Wolf et al., The Power of Touch: An Examination of the Effect of Duration of Physical Contact
on the Valuation of Objects, 3 JUDGMENT & DECISION MAKING 476 (2008) (proffering that subjective
feelings of ownership, leading to an increase in the valuation of an object, may be produced simply by
holding an item).
11
A similar argument could be made in relation to the equally famous experimental
observation that many individuals are not exclusively motivated by material self-interest,
as traditional game theory predicts. Indeed, the cumulative results of numerous ultimatum
games and a panoply of related experimental games25 are commonly interpreted as strong
evidence of a human propensity towards prosocial behavior and costly punishment of
selfish behavior by others. Here again, experimental evidence26 suggesting that closely
related species may exhibit at least (disadvantageous) inequity aversion as well,27 could
25
For reviews/overviews, see Colin F. Camerer & Ernst Fehr, Measuring Social Norms and Preferences
Using Experimental Games: A Guide for Social Scientists, in FOUNDATIONS OF HUMAN SOCIALITY 55
(Joseph Henrich et al. eds., 2004); Ernst Fehr & Klaus M. Schmidt, The Economics of Fairness,
Reciprocity and Altruism – Experimental Evidence and New Theories, in HANDBOOK OF THE ECONOMICS
OF
GIVING, ALTRUISM AND RECIPROCITY, 1, FOUNDATIONS 615 (Serge-Christophe Kolm & Jean Mercier
Ythier eds., 2006).
26
Sarah F. Brosnan & Frans B.M. de Waal, Monkeys Reject Unequal Pay, 425 NATURE 297 (2003). See
also Sarah F. Brosnan et al., Tolerance for Inequity May Increase with Social Closeness in Chimpanzees,
272 PROC. ROYAL SOC’Y B: BIOLOGICAL SCI. 253 (2005); Grace E. Fletcher, Attending to the Outcome of
Others: Disadvantageous Inequity Aversion in Male Capuchin Monkeys, 70 AM. J. PRIMATOLOGY 901
(2008); Megan van Wolkenten et al., Inequity Responses of Monkeys Modified by Effort, 104 PROC. NAT’L
ACAD. SCI. U.S. BIOLOGICAL SCI. 18854 (2007).
27
The issue remains disputed and other explanations for such behavior by nonhuman primates have been
advanced, such as frustration due to the mere presence of a more preferred food (e.g., Clive D.L. Wynne,
Fair Refusal by Capuchin Monkeys, 428 NATURE 140 (2004); Diane Dubreuil et al., Are Capuchin
Monkeys (Cebus Apella) Inequity Averse?, 273 PROC. ROYAL SOC’Y B: BIOLOGICAL SCI. 1223 (2006)) or
change in the quality of food (Peter G. Roma et al., Capuchin Monkeys, Inequity Aversion, and the
Frustration Effect, 120 J. COMP. PSYCHOL. 67 (2006) – but see Sarah F. Brosnan & Frans B.M. de Waal,
Partial Support from a Nonreplication: Comment on Roma, Silberberg, Ruggiero, and Suomi (2006), 120 J.
COMP. PSYCHOL. 74 (2006)). Alternatively, others have obtained deviating results (e.g., Keith Jensen et al.,
Chimpanzees Are Rational Maximizers in an Ultimatum Game, 318 SCIENCE 107 (2007); Juliane Bräuer et
al., Are Apes Inequity Averse? New Data on the Token-Exchange Paradigm, 71 AM. J. PRIMATOLOGY 175
(2009)).
12
be taken as additional support28 for the conjecture that this tendency represents a
universally occurring human characteristic. And again, we could expect to find some
reflection of this trait across legal systems.29
2. Cultural Variability, Flexible Points of Reference, and Relating Macro- and MicroVariables
Yet, in considering the findings of behavioral economics as a possible standard for
comparison, legal comparatists should be wary not to simply treat these, and other,
behavioral patterns documented by behavioral economists as invariant human universals,
no matter how well established they may appear at first glance. As a rule, the subject
pools involved in the countless experiments conducted to ascertain the robustness of
these behavioral tendencies have been composed almost exclusively of western university
students. As has been aptly noted, as a consequence, “no matter how many times
researchers confirm a particular result, one is left wondering to what extent experiments
have tapped human universals as opposed to the comparatively homogeneous culture of
university undergraduates in the world’s OECD countries.”30 And indeed, leastways since
Joseph Henrich’s highly influential article reporting a previously unexplored degree of
28
But see Joseph Henrich, Inequity Aversion in Capuchins?, 428 NATURE 139 (2004); Yosuke Hachiga et
al., Humans (Homo Sapiens) Fail to Show an Inequity Effect in an “Up-Linkage” Analog of the Monkey
Inequity Test, 12 ANIMAL COGNITION 359 (2009), questioning the connection with human-like inequity
aversion.
29
30
Compare supra note 15.
Charles Efferson & Peter J. Richerson, A Prolegomenon to Nonlinear Empiricism in the Human
Behavioral Sciences, 22 BIOLOGY & PHIL. 1, 8 (2007).
13
cross-cultural variability of ultimatum bargaining behavior,31 the erstwhile prevailing
implicit assumption of the panhuman invariance of behavioral tendencies observed with
western subjects seems discredited.
Expanding on these more recent insights, functionalist legal comparatists would be
equally misdirected to anticipate potential cultural differences to be restricted to the legal
realm. Arguably, cultural differences, or at least the possibility of such differences,
should be considered both at the level of the regulated behavior itself and at the level of
its legal regulation.32 If we would then expect legal institutions to reflect – some –
determinants of actual decision-making,33 we would not for that reason expect legal
institutions across cultures to be similar. Rather, we would expect these institutions to
convey some of the cultural variability in actual decision-making.
Appreciating this behavioral variability also sheds a different light on the endeavor by
legal comparatists to ensure the comparability of the items to be compared by
determining a fixed standard of comparison – for functionalist legal comparatists, a social
problem presumed common to all systems under scrutiny. This limited focus on an
invariant point of reference and the reluctance to allow for (cultural) variation within the
standard of comparison itself, which effectively reserves the prospect of such (cultural)
variation to the sole level of the legal regulation, impose a needless and misconceived
31
Joseph Henrich, Does Culture Matter in Economic Behavior? Ultimatum Game Bargaining Among the
Machiguenga of the Peruvian Amazon, 90 AM. ECON. REV. 973 (2000).
32
Cf. Bart Du Laing, Equality in Exchange Revisited – From an Evolutionary (Genetic and Cultural) Point
of View, in LAW, MIND AND BRAIN 267 (Michael Freeman & Oliver R. Goodenough eds., 2009).
33
Cf. supra note 15.
14
constraint on comparative legal research.34 One of the problems of (functionalist)
comparative law indeed lies in its obstinate quest for finding a strictly fixed standard of
comparison.35
Still, if we are to take into account such cultural differences in a meaningful manner, it is
paramount to go beyond the mere use of “culture” as a black box; a vague all-embracing
residual category that is insusceptible to operationalization.36 This point bears special
emphasis. At present, we are witnessing a growing number of experiments that provide
empirical evidence for cross-national variations in various areas of human behavior.
However, documenting differences in behavior between subjects from different countries,
or presumably different cultures, is only a first step. The next step is to identify and
34
35
De Coninck, supra note 18.
The discourse regarding the universality of (identical) social problems to be used as a standard of
comparison (e.g., Michaels, supra note 11, at 367-68. See also supra text accompanying notes 1-4) and the
stratagem of reverting to highly general – universal – problems (e.g., PETER DE CRUZ, COMPARATIVE LAW
IN A
CHANGING WORLD 238 (3d ed. 2007) (“while different societies treat differently certain questions …
all societies face the need to resolve their particular domestic/local problems and, whether this is how to
treat the requirements for a valid marriage, or adultery or incest, the basic problem is how should the law
deal with these situations? … In other words, all societies … face the basic problem of how best to regulate
their society and resolve conflict.”) bear clear witness to this fixation on an absolute and immutable point
of reference by functionalist legal comparatists.
36
Regarding the reliance on this unspecified notion of culture, see and compare Amir N. Licht, The Mother
of All Path Dependencies. Toward a Cross-Cultural Theory of Corporate Governance Systems, 26 DEL. J.
CORP. L. 147 (2001) (deploring the use of “culture” as a black box and pointing to the need for a crosscultural theory to inform comparative analyses); Luigi Guiso et al., Does Culture Affect Economic
Outcomes?, 20 J. ECON. PERSP. 23 (2006) (finding that as a consequence, many cultural explanations
appear to be no more than post factum rationalizations). See also Raffaele Caterina, Comparative Law and
Economics, in ELGAR ENCYCLOPEDIA OF COMPARATIVE LAW 161, 170 (Jan M. Smits ed., 2006)
(denouncing the “holistic and quasi-mystic way in which some comparative law literature speaks of
cultures and traditions as spiritual entities, opaque to description and impermeable to evaluation.”).
15
specify the cultural variables that drive these behavioral differences. Indeed, although
most people might agree with the idea that culture matters, demonstrating how it matters
is quite a different thing altogether.37 As has been observed, a drawback common to
many traditional cross-country, or self-declared cross-cultural, studies is that crosscountry differences are simply attributed to cultural differences,38 without (sufficiently)
specifying the cultural variables or relating the cross-cultural differences in behavior to
country- or macro-level cultural variables.39
As for this second phase, there is already some research attesting to the viability of such
an approach pertaining to the interaction between cross-culturally obtained data from
behavioral economics and macro-level institutional variables.
Charles Efferson, Masanori Takezawa, and Richard McElreath,40 for instance, have
inquired what price people are willing to pay for equality and how that price varies within
and among societies, using dictator games to measure variation in prosociality. While
37
Cf. Efferson & Richerson, supra note 30, at 9.
38
Compare, in the context of comparative legal research, Reza Banakar, Power, Culture and Method in
Comparative Law, 5 INT’L J.L. CONTEXT 69, 76 (2009) (cautioning that not all differences between legal
systems are cultural in origin).
39
See, e.g., Branden B. Johnson, Risk and Culture Research: Some Cautions, 22 J. CROSS-CULTURAL
PSYCHOL. 141 (1991); Hessel Oosterbeek et al., Cultural Differences in Ultimatum Game Experiments:
Evidence from a Meta-Analysis, 7 EXPERIMENTAL ECON. 171, esp. 172, 184 (2004) and the elaborations by
Elke U. Weber & Christopher K. Hsee, Culture and Individual Judgment and Decision Making, 49
APPLIED PSYCHOL. (2000) 32, 48 et seq. and David Matsumoto & Seung Hee Yoo, Toward a New
Generation of Cross-Cultural Research, 1 PERSP. ON PSYCHOL. SCI. 234 (2006).
40
Charles Efferson et al., New Methods in Quantitative Ethnography. Economic Experiments and Variation
in the Price of Equality, 48 CURRENT ANTHROPOLOGY 912 (2007).
16
they found individual-level measures of market integration and participation in
cooperative activities to be the most important variables for the game results for one
small-scale society, ethnicity was the most important variable for the other small-scale
society. On a more general level, and of distinct interest for the purposes of this article,
the model deployed by these authors to measure variation in the price of equality with
respect to the two societies under scrutiny allows to incorporate variables of many scales,
including higher-level cultural information into the analysis of individual (prosocial)
behavior.
Performing public goods games (which require cooperation to achieve socially beneficial
outcomes) in subject pools around the world, Benedikt Herrmann, Christian Thöni, and
Simon Gächter41 observed that what they call antisocial punishment – that is, the
sanctioning of people who behave prosocially, is a widespread phenomenon. However,
they also found that antisocial punishment is subject to strong cross-societal variation as
to its importance and its detrimental effects on cooperation levels. Relating their results to
macro-level norms of cooperation, they went on to show that weak norms of civic
cooperation and the weakness of the rule of law in a country42 are significant predictors
of this antisocial punishment, and their results indicate that punishment opportunities are
socially beneficial only if complemented by strong social norms of cooperation.
41
Benedikt Herrmann et al., Antisocial Punishment Across Societies, 319 SCIENCE 1362 (2008).
42
According to measures developed by various social scientists extracted from survey data. For a recent
attempt at a more finely grained approach to the rule of law and its measurement, see Stefan Voigt, How to
Measure the Rule of Law (2009), http://ssrn.com/abstract=1420287 (last visited Aug. 30, 2009).
17
As another example, Joseph Henrich et al.’s heavily discussed ongoing work on “the
roots of human sociality”43 deserves to be mentioned here. Using a variety of games,
these researchers have measured levels of cooperation and punishment across various
societies. They proceeded to investigate the relationship between the observed levels of
cooperation and punishment and both individual- and group-level variables and found
that especially group-level differences in economic organization, the structure of social
interactions, and “market integration” were able to account for the observed crosssocietal behavioral variation.
What is interesting about this type of research for our purposes is that it tries to relate
“micro-level” behavioral variables with “macro-level” institutional variables, which can
very well involve features of the legal systems of the cultures considered. Thus, we
concur with Henrich that accounting for cultural differences in behavior “by no means
suggests that we cannot generalize about human behavior. Rather, it suggests we need a
theory of culture, or of cultural transmission, to do so.”44 It is this need for an
encompassing theoretical framework we address in the next section of this article.
43
Joseph Henrich et al., “Economic Man” in Cross-Cultural Perspective: Behavioral Experiments in 15
Small-Scale Societies, 28 BEHAV. & BRAIN SCI. 795 (2005) [hereinafter Henrich et al., Economic Man]
(target paper with commentaries); Joseph Henrich et al., Costly Punishment Across Human Societies, 312
SCIENCE 1767 (2006) (finding that costly punishment covaries with altruistic behavior across populations);
JOSEPH HENRICH ET AL. EDS., FOUNDATIONS OF HUMAN SOCIALITY (2004).
44
Henrich, supra note 31, at 978 n.3.
18
IV. Contemporary Evolutionary Functionalism
In this final section, we take on the problem of establishing a larger theoretical
framework within which to situate the foregoing findings. Indeed, faced with the issue of
the undertheoretization of behavioral economics,45 several authors have already
suggested that evolutionary theory might prove to be useful as an encompassing
theoretical framework and foundation for the various empirically observed and
experimentally measured behavioral patterns outlined above.46
We discuss to what extent and in which ways contemporary evolutionary approaches to
human behavior are currently contributing to this debate, focusing mainly on David Sloan
Wilson’s multi-level selection theory and Robert Boyd and Peter Richerson’s geneculture co-evolutionary (or dual inheritance) theory. In doing so, we assess these
approaches as to their capacity of sustaining a more balanced version of evolutionary
functionalism than the older approaches that, implicitly or explicitly, seem to have been
mostly discarded by current comparative legal theory.
45
E.g., Drew Fudenberg, Advancing Beyond Advances in Behavioral Economics, 44 J. ECON. LITERATURE
694 (2006); Owen D. Jones, Time-Shifted Rationality and the Law of Law’s Leverage: Behavioral
Economics Meets Behavioral Biology, 95 NW. U. L. REV. 1141, 1156 et seq. (2001).
46
E.g., Herbert Gintis, A Framework for the Unification of the Behavioral Sciences, 30 BEHAV. & BRAIN
SCI. 1 (2007); Jessica L. Cohen & William T. Dickens, A Foundation for Behavioral Economics, 92 AM.
ECON. REV. 335 (2002); Avner Ben-Ner & Louis Putterman, On Some Implications of Evolutionary
Psychology for the Study of Preferences and Institutions, 43 J. ECON. BEHAV. & ORG. 91 (2000).
19
There have been and continue to be many types of “functionalism.” Moreover,
functionalism in comparative legal theory is not necessarily analogous to functionalism in
disciplines such as sociology and anthropology. Nevertheless, some of these
“functionalisms” seem to share at least some features.
Therefore, in the first subsection, we address questions of levels and mechanisms more
closely related to functionalism in the social sciences, even though these questions are not
unrelated to criticism leveled against the functional method in comparative law or socalled “evolutionary functionalism” in law more generally (infra 1). However, it should
be emphasized that the latter type of legal scholarship has come to use the term
“evolutionary” in a fashion that would be unrecognizable, if not incomprehensible, for a
contemporary evolutionary biologist interested in human behavior. Astounded by the
meaning the expression “evolutionary” has received in part of the anthropological
literature, biologist David Sloan Wilson, for instance, recently stressed that “[i]f
evolution is the foundation of functionalism, then there is a new foundation upon which
to build.”47 We will come back to this shortly.
The second and third subsections take us closer to functionalism as it is more usually
conceived of with regard to comparative law and its methodology, and we briefly deal
with the issues of dysfunction (infra 2) and difference (infra 3), respectively.
47
DAVID SLOAN WILSON, DARWIN’S CATHEDRAL: EVOLUTION, RELIGION, AND THE NATURE OF SOCIETY
83 (2002).
20
1. Levels and Mechanisms
In discussing functionalism in sociology and anthropology, rather than in comparative
law, as a “supposedly outmoded theory that nevertheless stubbornly refuses to die,”48
Robert Ellickson observes that
to support a Panglossian scenario of group evolutionary progress,
functionalists could not rely simply on the biological theory of natural
selection. They instead had to develop theories to explain how social
control systems would evolve within groups to prevent successful
invasions by deviants who would subvert group welfare. The early
functionalists never came close to filling in this missing theoretical link.49
More generally, functionalists in various guises have regularly been accused of not being
able to provide the underlying mechanisms by which group- or society-level functionality
is supposed to come into being.
With regard to legal research and comparative law, the problem with this older
“evolutionary functionalism” is that it simply assumed that legal rules were there to serve
the needs of a given society, and that these legal rules somehow adapted themselves as
48
Robert C. Ellickson, A Critique of Economic and Sociological Theories of Social Control, 16 J. LEGAL
STUD. 67, 93 (1987). This is a view Ellickson and Wilson would seem to share. See WILSON, supra note 47,
at 83 (“The worst that can be said about functionalism is that it failed to fulfill itself as a research program
during its heyday. Functionalism wasn’t falsified; it merely went out of fashion.”).
49
Ellickson, supra note 48, at 95.
21
the needs of the society changed. Thus, a functional relationship between law and society
was taken as a given and little or no attention was paid to the mechanisms that could
possibly lead to such a result. Moreover and related, this type of functionalism has
regularly been accused of circularity and determinism.50
In contrast, evolutionary biologist David Sloan Wilson’s Darwin’s Cathedral is framed
quite explicitly as an attempt to rehabilitate functionalist approaches in the social sciences
in general, by introducing his version of evolutionary multi-level selection theory.51
Contrary to Ellickson’s admittedly somewhat older statement quoted above, according to
Wilson “[e]volutionary biology is settling into a middle position that acknowledges the
potential for adaptation and natural selection at all levels of the biological hierarchy,
especially in the case of human evolution.”52 Hence, multi-level selection theory could
provide us with an interesting evolutionary theoretical framework within which to
address group-level legal functionality.
Very basically, multi-level selection theory views natural selection as a multi-level
process that operates not only among individuals within groups, but also among groups of
individuals. In addition, it is argued that group selection may be especially important in
the human case. While Wilson acknowledges that “[n]othing is perfectly adaptive or a
50
Cf., e.g., Michaels, supra note 11, at 352-54; Robert W. Gordon, Critical Legal Histories, 36 STAN. L.
REV. 57, 59-65, 100-02 (1984).
51
See WILSON, supra note 47. See also David Sloan Wilson, Group-Level Evolutionary Processes, in THE
OXFORD HANDBOOK OF EVOLUTIONARY PSYCHOLOGY 49 (R.I.M. Dunbar & Louise Barrett eds., 2007);
David Sloan Wilson, Human Groups as Adaptive Units: Toward a Permanent Consensus, in THE INNATE
MIND. VOLUME 2: CULTURE AND COGNITION 78 (Peter Carruthers et al. eds., 2006).
52
WILSON, supra note 47, at 85.
22
product of only one level of selection,”53 he is also of the opinion that “[i]f cultural
phenotypic variation has functional consequences, it is hard to avoid the conclusion that
at least some properties of present-day cultures owe their existence directly to the
winnowing process of natural selection.”54 He goes on to investigate which aspects of
religion and religious groups could be adequately explained by considering these groups
as “adaptive units.” Wilson’s approach, as developed with respect to religious groups,
may be applicable to other forms of human social organization and to certain features of
law and legally relevant behavior. Indeed, other scholars have already recognized the
value of this multi-selection theory to address institutional arrangements within a legal
context. Janet Landa, for instance, recently reformulated her ongoing work on
homogeneous middleman groups in terms of multi-level selection theory in an attempt to
show “how various successful foreign merchant groups, originating from very different
cultures, have adapted to the same underdeveloped economies of their host societies.”55
However, Wilson’s theoretical framework is not alone in drawing attention to the
importance of distinguishing different levels of organization and the respective
evolutionary processes and mechanisms that operate at these different levels. Another
approach that is deeply concerned with these issues is niche construction theory.
According to Marcus Feldman, niche construction theory “allows historical features of a
53
Id. at 45.
54
Id. at 78.
55
Janet T. Landa, The Bioeconomics of Homogeneous Middleman Groups as Adaptive Units: Theory and
Empirical Evidence Viewed from a Group Selection Framework, 10 J. BIOECONOMICS 259, 260 (2008). See
also Janet T. Landa, Bounded Rationality of Homo Classificus: The Law and Bioeconomics of Social
Norms as Classification, 80 CHI.-KENT L. REV. 1167, 1178-79 (2005).
23
population of organisms to be introduced into the continuing processes of evolution.”56
Among other things, this relatively new approach is worth mentioning in view of Robert
Gordon’s statements on critical legal theory:
The Critics’ basic argument … is that by taking the world as we know it as
largely
determined
by
impersonal
social
forces,
evolutionary-
functionalists obscure the ways in which these seemingly inevitable
processes are actually manufactured by people who claim (and believe
themselves) to be only passively adapting to such processes.57
This critique could just as well have been written by niche construction enthusiasts, who,
in their critique of orthodox evolutionary theory, do not shy away from asserting, when
discussing their favorite example of beaver dam building, that “[t]he active agency of
beavers in constructing these modified selection pressures and thereby acting as
codirectors of their own evolution (not to mention that of other species) currently goes
unrecognized.”58 Critical contemporary evolutionary approaches to human behavior and
critical legal theory thus would seem to have more in common than is often presumed.
56
Marcus W. Feldman, Dissent with Modification: Cultural Evolution and Social Niche Construction, in
EXPLAINING CULTURE SCIENTIFICALLY 55, 56 (Melissa J. Brown ed., 2008).
57
Gordon, supra note 50, at 70 (footnote omitted).
58
Kevin N. Laland & Kim Sterelny, Seven Reasons (Not) to Neglect Niche Construction, 60 EVOLUTION
1751, 1752 (2006). See also Kevin N. Laland et al., Niche Construction, Ecological Inheritance, and
Cycles of Contingency in Evolution, in CYCLES OF CONTINGENCY: DEVELOPMENTAL SYSTEMS AND
EVOLUTION 117 (Susan Oyama et al. eds., 2001); Kevin N. Laland et al., Niche Construction, Biological
Evolution, and Cultural Change, 23 BEHAV. & BRAIN SCI. 131 (2000), and Samuel Bowles’ commentary
entitled Economic Institutions as Ecological Niches at 148.
24
This having been said, there are also good reasons to believe that the population-level
consequences of agency and intentionality are often overestimated.59
Arguably the most important framework for our present purposes is Robert Boyd and
Peter Richerson’s gene-culture co-evolutionary (or dual inheritance) theory.60 In order to
address the emergence of a possibly wide variety of stable norms at the level of human
groups regulating similar individual behavior their approach incorporates not only
multiple levels of analysis,61 but also cultural transmission mechanisms – such as, a
frequency-based conformity bias (“do what the majority of the population is doing”) and
a model-based prestige bias (“do what successful individuals in the population are
doing”) – as well as the notion of cultural group selection. Their evolutionary theoretical
framework differs from other contemporary evolutionary approaches to human behavior
in that it carves out a more fundamental role for human cultural capacities than has been
59
For the latter, as well as for an interesting rebuttal of the alleged teleology inherent in evolutionary
thinking, see most recently Alex Mesoudi, Foresight in Cultural Evolution, 23 BIOLOGY & PHIL. 243
(2008).
60
See generally PETER J. RICHERSON & ROBERT BOYD, NOT BY GENES ALONE: HOW CULTURE
TRANSFORMED HUMAN EVOLUTION (2005); Robert Boyd & Peter J. Richerson, Gene-Culture Coevolution
and the Evolution of Social Institutions, in BETTER THAN CONSCIOUS? DECISION MAKING, THE HUMAN
MIND, AND IMPLICATIONS FOR INSTITUTIONS 305 (Christoph Engel & Wolf Singer eds., 2008). A recent
collection of more technical papers can be found in ROBERT BOYD & PETER J. RICHERSON, THE ORIGIN
AND
EVOLUTION OF CULTURES (2005) [hereinafter BOYD & RICHERSON, ORIGIN AND EVOLUTION OF
CULTURES]. See also Joseph Henrich & Richard McElreath, Dual-Inheritance Theory: The Evolution of
Human Cultural Capacities and Cultural Evolution, in THE OXFORD HANDBOOK OF EVOLUTIONARY
PSYCHOLOGY 555 (R.I.M. Dunbar & Louise Barrett eds., 2007); Richard McElreath & Joseph Henrich,
Modelling Cultural Evolution, in THE OXFORD HANDBOOK OF EVOLUTIONARY PSYCHOLOGY 571 (R.I.M.
Dunbar & Louise Barrett eds., 2007).
61
Cf. Peter J. Richerson et al., Cultural Evolution of Human Cooperation, in GENETIC AND CULTURAL
EVOLUTION OF COOPERATION 357, 363-65 (Peter Hammerstein ed., 2003).
25
and still is traditionally allowed for within the evolutionary human behavioral sciences.62
This is a concern they seem to share with at least some commentators on comparative
law.63
Indeed, dual inheritance theorists are concerned first with the question of how
psychological mechanisms for cultural learning could have evolved. In their research they
consider “culture,” by way of a working definition, to consist of “information capable of
affecting individuals’ behavior that they acquire from other members of their species
through teaching, imitation, and other forms of social transmission.”64 Dual inheritance
theorists are particularly interested in finding out how individuals come to hold certain
cultural variants rather than others and in determining which decision rules, if any,
individuals adopt in so doing. At the risk of oversimplifying their actually quite complex
– in their own words even baroque – framework, two likely candidates for such decisionmaking forces have been at the center of their theoretical and, more recently, empirical
investigations. This body of work suggests that, when confronted with complex and
62
On the differences and similarities between the major contemporary evolutionary approaches to human
behavior, and on the question of their compatibility, see, e.g., KEVIN N. LALAND & GILLIAN R. BROWN,
SENSE AND NONSENSE: EVOLUTIONARY PERSPECTIVES ON HUMAN BEHAVIOUR (2002); Matteo Mameli,
Sociobiology, Evolutionary Psychology, and Cultural Evolution, in THE OXFORD HANDBOOK OF
PHILOSOPHY OF BIOLOGY 410 (Michael Ruse ed., 2008); Rebecca Sear et al., Synthesis in the Human
Evolutionary Behavioural Sciences, 5 J. EVOLUTIONARY PSYCHOL. 3 (2007); Eric Alden Smith, Three
Styles in the Evolutionary Analysis of Human Behavior, in ADAPTATION AND HUMAN BEHAVIOR: AN
ANTHROPOLOGICAL PERSPECTIVE 27 (Lee Cronk et al. eds., 2000). Cf. also Daniel Nettle, Beyond Nature
Versus Culture: Cultural Variation as an Evolved Characteristic, 15 J. ROYAL ANTHROPOLOGICAL INST.
223 (2009).
63
Cf. Wilbert E. Moore & Joyce Sterling, The Comparison of Legal Systems: A Critique, 14 QUADERNI
FIORENTINI PER LA STORIA DEL PENSIERO GIURIDICO MODERNO 77,
64
RICHERSON & BOYD, supra note 60, at 5.
26
101-02 (1985).
variable environments, it may generally be adaptive for an individual to imitate the most
common behavior in a population (conformity bias) or to imitate the behavior of
successful individuals in the population (prestige bias). In this sense, human cultural
capacities can probably be regarded as adaptations,65 as being “designed” by natural
selection to solve some of the adaptive problems our ancestors faced.
Although other forces of cultural transmission as well as their respective strength in given
individual cases undoubtedly have to be taken into consideration,66 both these
transmission biases can help to maintain stable variation between different cultural
groups. Indeed, in Henrich’s words, “[w]hat matters is that within-group learning
processes generate locally stable equilibria (these can be polymorphic equilibria),67 and
that there are multiple stable equilibria that generate different group-level properties.”68
Insofar as cultural transmission mechanisms, like the ones just described, can lead to such
stable differences at the level of human cultural groups, on which cultural group selection
could then act, we have at least one plausible way of attaining group-level functionality.
65
Id. at 99-147 (chapter “Culture Is an Adaptation”).
66
A still very provisional list, for instance, also would have to include not only natural selection acting on
cultural variants at individual or group levels, but also other decision-making forces such as guided
variation and content-based biases. See, e.g., Lesley Newson et al., Cultural Evolution and the Shaping of
Cultural Diversity, in HANDBOOK OF CULTURAL PSYCHOLOGY 454 (Shinobu Kitayama & Dov Cohen eds.,
2007).
67
Meaning that not every individual within a group has to hold the same cultural variant; that there are
different “strategies” present in the population.
68
Joseph Henrich, Reply, 53 J. ECON. BEHAV. & ORG. 127, 134 (2004). See also the section of the target
paper itself, entitled Cultural Group Selection, Coevolutionary Processes and Large-Scale Cooperation, at
20-29 of the same issue.
27
Contemporary evolutionary functionalists thus are not only well aware of Ellickson’s
missing theoretical link,69 but they are also coming closer to filling it in.
Not surprisingly, quite a bit of the behavioral economic research mentioned in the
previous section can be situated within this larger gene-culture co-evolutionary
theoretical framework.70 This is especially the case for the cross-cultural research projects
that have been undertaken by Joseph Henrich and his colleagues. According to these
researchers,
The theory sketched above has two immediate empirical entailments.
First, people should rely on cultural learning to acquire significant
components of their social behavior. If they do not, the theory cannot even
get off the ground. Second, as a consequence of these adaptive learning
processes, societies with different historical trajectories are likely to arrive
at different social equilibria. As such, people from different societies will
tend to express different preferences and beliefs: one should be able to
measure between-group variation.71
69
See supra text accompanying note 49.
70
This general assessment would seem to be acknowledged even by authors who are otherwise critical of
some aspects of the work outlined here. See, e.g., Edward H. Hagen & Peter Hammerstein, Game Theory
and Human Evolution: A Critique of Some Recent Interpretations of Experimental Games, 69
THEORETICAL POPULATION BIOLOGY 339, 346 (2006).
71
Henrich et al., Economic Man, supra note 43, at 813. See also Gintis, supra note 46.
28
In short, the upshot of our argument is that the same cultural transmission mechanisms
generating the much-needed cross-cultural variability within the standard of comparison
to be used for comparative legal research itself72 could very well be the ones that are
capable of filling at least part of the mechanistic gap haunting traditional social science
functionalism.73 Moreover, introducing these contemporary evolutionary approaches to
human behavior to comparative legal theory promises to be able to address two other
problems commonly associated with the functionalist approach in comparative law, that
is, the issues of dysfunction and difference.
2. Function and Dysfunction
First, what is needed is a theoretical framework that is not restricted to having to assume
the unqualified functionality of legal systems, normative systems, or social contracts, but
that is also capable of dealing with non-functionality and dysfunctionality. This seems
quite important because legal history provides us with sufficient examples of legal rules
that are not, or at least not obviously, positively related to the needs of the societies they
supposedly aim to regulate.74
72
Supra text accompanying notes 34-35.
73
Cf. also Joseph Henrich et al., Five Misunderstandings About Cultural Evolution, 19 HUM. NATURE 119,
127-29 (2008).
74
See WATSON, supra note 4. Cf. also William Ewald, Comparative Jurisprudence (II): The Logic of Legal
Transplants, 43 AM. J. COMP. L. 489 (1995).
29
Quite evidently, both the reproach of (past) adaptationism75 and, alternatively, that of
(current) adaptivism76 are not unheard of in evolutionary circles. Nevertheless, some
authors never cease to be amazed by such types of criticism. Boyd and Richerson for
instance state the following:
Oddly, the existence of maladaptive and neutral variation has been used to
contest the Darwinian approach to social science, when in fact
explanations for maladaptations are the strongest arrows in our quiver!
Special creation is a good account of adaptations, one that most preDarwinian scientists, including the youthful Darwin, subscribed to.
Darwin’s account was superior because it could account for maladaptation
– individual variation, vestigial organs, uselessly exaggerated ornaments,
and the like.77
Boyd and Richerson’s work clearly shows that cultural transmission – more specifically,
a combination of conformity bias and moralistic punishment – can quite naturally lead to
group-level norms and institutions that are neutral with regard to or even have deleterious
75
It should be noted here that we do not want to deny the possibility of adaptedness to past environments
leading to current dysfunction. Cf. in law, e.g., Simon Deakin, Evolution For Our Time: A Theory of Legal
Memetics, in CURRENT LEGAL PROBLEMS 2002, 1, 35-36 (M.D.A. Freeman ed., 2003).
76
On the difference between the two and their relation to various schools of thought within contemporary
evolutionary approaches to human behavior, see LALAND & BROWN, supra note 62, at 132-35, 139-45.
77
Peter J. Richerson & Robert Boyd, Cultural Evolution: Accomplishments and Future Prospects, in
EXPLAINING CULTURE SCIENTIFICALLY 75, 95 (Melissa J. Brown ed., 2008). See also ROBERT BOYD &
PETER J. RICHERSON, CULTURE AND THE EVOLUTIONARY PROCESS 277-79 (1985); RICHERSON & BOYD,
supra note 60, at 243-45.
30
effects for the individuals in a group and/or the group of individuals itself. Again, far
from all of the many possible cultural equilibria mentioned earlier are necessarily
beneficial.
Generally speaking, while cultural capacities are seen as evolved adaptations within this
gene-culture co-evolutionary framework, they simultaneously carry with them the
possibility of maladaptive population-level outcomes: “adaptation and maladaptation
have the same evolutionary roots.”78 Prestige-biased cultural transmission, for instance, is
potentially prone to a sort of “runaway” cultural process, leading – much like the peacock
male’s elaborate tail – to grossly exaggerated cultural traits signaling status.79
3. Similarities and Differences
Second, returning to our starting point regarding the diverging beliefs of comparative
legal functionalists and difference theorists,80 we believe that, contrary to what is often
78
RICHERSON & BOYD, supra note 60, at 148-90 (chapter “Culture Is Maladaptive”), at 151. Ironically, this
seems to lead these authors to distance themselves to some extent from functionalist schools in the
(evolutionary) social sciences. Cf. Richerson & Boyd, supra note 77, at 92.
79
While it is tempting to relate Boyd and Richerson’s prestige bias to Alan Watson’s work on the role of
prestige and elites in legal transplants, we shall refrain from pursuing this further here. But see on this
aspect of Watson’s work, e.g., Michele Graziadei, The Functionalist Heritage, in COMPARATIVE LEGAL
STUDIES: TRADITIONS AND TRANSITIONS 100, 121-24 (Pierre Legrand & Roderick Munday eds., 2003).
80
See supra text accompanying notes 6-8.
31
implied in the literature on comparative law,81 evolutionary theory constitutes an
important way to approach both cultural similarities and differences.
Perhaps somewhat surprisingly, given their basic point of departure that people
everywhere have to solve basically the same problems, even functionalist legal
comparatists seem to have but very little sympathy for – admittedly early – evolutionary
theoretically inspired attempts at forging a “science of universal comparative law.” An
edited, but still somewhat lengthy quotation from Konrad Zweigert and Hein Kötz’s
famous An Introduction to Comparative Law, where they address 19th century
comparative legal ethnology, may serve to illustrate this:
At its outset legal ethnology rested on a specific belief ... now regarded as
invalid … that mankind, with its common psyche, follows the same path
of development in everything regardless of location or race. This belief led
scholars to focus on the so-called primitive systems of law, if systems they
can be called, still to be found among backward peoples. From the legal
practices of these peoples they drew conclusions about the condition many
ages ago, at a period from which we have no legal muniments or even
evidence of any kind, of the legal systems which are now highly
developed. … The basic tenet of ethnological legal studies, namely that all
81
Compare the way in which Masters (supra note 17, at 409) captures the view, common among legal
scholars, that ethology, with its appeal to human nature, can have little to offer to comparative law: “how
can a constant explain variations in law from one country or time to another?”. Cf. also E. Donald Elliott,
The Evolutionary Tradition in Jurisprudence, 85 COLUM. L. REV. 38, 74-75 (1985) (discussing A.G.
Keller, Law in Evolution, 28 YALE L.J. 769 (1919)).
32
peoples develop as it were in parallel from a common original condition,
was controverted principally by the so-called theory of cultural groups
(Kulturkreislehre) according to which every cultural development of any
group anywhere was, as a historical event, unique. … The more modern
view … is that the development of a legal system is the product of factors,
some of which are typical and occur everywhere, and some of which are
atypical. … [T]he typical factors are not natural and inevitable, like
Bastian’s elementary ideas, but historical: a group of people in a particular
geographical social and economic situation develops in a particular way
with regard to law as well as other things.82
Notwithstanding this, however, functionalist legal comparatists themselves have often
been accused of focusing too unilaterally on similarities between legal systems.83
It may be true that some contemporary evolutionary approaches to human behavior are
equally prone to finding human universals as were some of their late 19th century
forebears, as well as sharing the latter’s fascination for hunter-gatherer and other
(erstwhile called “primitive”) small-scale societies. And it may also be the case that some
contemporary applications to law of certain evolutionary approaches to human behavior
82
ZWEIGERT & KÖTZ, supra note 6, at 9. For examples of some of the literature to which they are referring,
see the opening chapters of ALBERT KOCOUREK & JOHN H. WIGMORE EDS., EVOLUTION OF LAW: SELECT
READINGS ON THE ORIGIN AND DEVELOPMENT OF LEGAL INSTITUTIONS. VOLUME II: PRIMITIVE AND
ANCIENT LEGAL INSTITUTIONS (1915).
83
See, e.g., Graziadei, supra note 79, at 108-13; Pierre Legrand, The Same and the Different, in
COMPARATIVE LEGAL STUDIES: TRADITIONS AND TRANSITIONS 240, 245-50 (Pierre Legrand & Roderick
Munday eds., 2003).
33
yet again predominantly focus on finding universal aspects of legal systems around the
globe.84 But this does not mean that contemporary evolutionary approaches to human
behavior are inherently incapable of meaningfully dealing with cultural diversity – albeit
a meaningfulness of an altogether different kind than the interpretive one apparently
currently favored in large parts of the literature on comparative legal theory.85
Paraphrasing Wilson, “we need to reconcile two seemingly contradictory facts: the fact
that [legal] systems require innate psychological mechanisms, and the fact that they can
rapidly evolve by cultural evolution.”86 The contemporary evolutionary approaches to
human behavior we have discussed in this article are trying to do exactly this. Boyd and
84
Cf., e.g., Owen D. Jones, Proprioception, Non-Law, and Biolegal History, 53 FLA. L. REV. 831 (2001);
Owen D. Jones & Timothy H. Goldsmith, Law and Behavioral Biology, 105 COLUM. L. REV. 405, 474-75
(2005) (“[B]ehavioral biology – and the insights it offers about the relentless effects of evolutionary
processes on species-typical patterns of predispositions – provides ample support for believing that biolegal
histories connect the world’s disparate legal systems together. Those systems are different, but as closely
related as are all human populations on the planet.”). Similarly, while Caterina (supra note 10)
convincingly demonstrates some flaws in difference theoretical thinking, he pays rather less attention to the
limitations of Evolutionary Psychology and its extensions in anthropological theory.
85
Not to put too fine a point on it, we find Whitman’s approving statement that difference theorists “have
made comparative law a little more like cultural anthropology, have given it more sensitivity to the deep
differences in human value-orders” (James Q. Whitman, The Neo-Romantic Turn, in COMPARATIVE LEGAL
STUDIES: TRADITIONS AND TRANSITIONS 312, 313 (Pierre Legrand & Roderick Munday eds., 2003))
problematic, given that statements like this tend to obscure the differences of opinion and the variety of
approaches within the field of (cultural) anthropology itself. For a lucid and nuanced exposition of some of
the issues at stake, see DAN SPERBER, EXPLAINING CULTURE: A NATURALISTIC APPROACH 9-55, 151-55
(1996).
86
WILSON, supra note 47, at 25. This is a project Wilson sometimes refers to as “evolutionary social
constructivism”, on which see David Sloan Wilson, Evolutionary Social Constructivism, in THE LITERARY
ANIMAL: EVOLUTION AND THE NATURE OF NARRATIVE 20 (Jonathan Gottschall & David Sloan Wilson
eds., 2005); Andreas De Block & Bart Du Laing, Paving the Way for an Evolutionary Social
Constructivism, 2 BIOLOGICAL THEORY 337 (2007).
34
Richerson have convincingly argued that evolutionary theories of cultural change need
not be opposed to interpretive and particularistic historical explanations of culture (and
differences between human societies). Indeed, evolutionary processes can and, more
often than not, do give rise to unique, contingent pathways of cultural evolution.87
V. Conclusion
It was the observation that functionalist legal comparatists seem fairly indifferent to the
substantiation of their various claims and beliefs that prompted this study. It led us to
investigate whether behavioral economics and contemporary evolutionary approaches to
human behavior could be engaged to strengthen the functional method of comparative
law, as regards both its empirical content and its theoretical framework.
In the preceding sections, we may have created the impression that we somewhat
overzealously have come to share the view, not uncommon among the participants at the
1900 Paris International Congress of Comparative Law, that “social science would
establish general laws that show how legal institutions appear, develop, and disappear,”88
87
See Robert Boyd & Peter J. Richerson, How Microevolutionary Processes Give Rise to History, in
HISTORY AND EVOLUTION 179 (Matthew H. Nitecki & Doris V. Nitecki eds., 1992). Cf. for an in some
respects similar argument by a law and economics scholar Richard H. McAdams, Cultural Contingency
and Economic Function: Bridge-Building from the Law & Economics Side, 38 LAW & SOC’Y REV. 221
(2004).
88
David S. Clark, Nothing New in 2000? Comparative Law in 1900 and Today, 75 TUL. L. REV. 871, 895
(2001).
35
or indeed even that such “laws”89 have in the meantime already been successfully
established. So perhaps it is no more than appropriate to restate by way of conclusion the
rather more modest claims we have made in this article.
We consider behavioral economics to be of marked interest for functionalist legal
comparatists hoping to move beyond mere beliefs in the universality of human behavior
and societies. At the very least, the findings of behavioral economics could be employed
in establishing legally sufficiently neutral and empirically informed standards of
comparison. The somewhat more recent interest this line of research has taken with the
cultural variability of the behaviors it studies holds an even greater potential for legal
comparatists. For one, on a general level, these findings challenge the long-lasting quest
by legal comparatists for finding fixed standards of comparisons. Moreover, as this
research is developing, it attests to the feasibility of relating the cross-culturally obtained
data from behavioral economics with more specified macro-level institutional variables,
which can involve features pertaining to the legal systems of the cultures studied.
Contemporary evolutionary approaches to human behavior, for their part, in our view
provide an appropriate framework within which to analyze, and compare, the results
obtained from cross-cultural economic experiments. While much work remains to be
done, at least some of these approaches are also able to shed new light on problems
89
Cf., for that matter, BOYD & RICHERSON, ORIGIN AND EVOLUTION OF CULTURES, supra note 60, at 283
(“[E]volutionary scientists do not try to jam ... complexity into the straitjacket of general laws like those in
physics. Instead, they aim to develop a toolkit of models and a collection of related empirical
generalizations. The phenomena of evolution are not only complex but also diverse. No model and no
empirical generalization is guaranteed to hold from one case to the next.”).
36
commonly associated with functionalism, in or outside of comparative law, perhaps most
prominently the problem of missing mechanisms. Besides, trying to adjust the negative
image evolutionary theory seems to suffer from in current comparative legal theory, by
introducing such a contemporary evolutionary theoretical framework, appears worthwhile
in its own right. Put differently, and paraphrasing Annelise Riles, there is really no reason
why comparative legal scholarship tailored for these contemporary evolutionary ideas
that clearly postdate the introduction of modernist social scientific paradigms, should, for
that reason, remain as amateuristic as the use of the old evolutionary paradigm in
comparative law nowadays must seem.90
While it is perhaps premature to claim that the framework we present above will
conclusively unify the various human social and behavioral sciences,91 we do feel that we
have provided some good reasons why it is still very worthwhile to pursue in comparative
law what Günter Frankenberg rather disparagingly has called “cognitive control.”92
90
Cf. Annelise Riles, Encountering Amateurism: John Henry Wigmore and the Uses of American
Formalism, in RETHINKING THE MASTERS OF COMPARATIVE LAW 94, 94 n.1 (Annelise Riles ed., 2001).
91
See Gintis, supra note 46.
92
Günter Frankenberg, Critical Comparisons: Re-thinking Comparative Law, 26 HARV. INT’L L.J. 411,
421-26 (1985).
37