The Evolutionary Tradition in Jurisprudence

Abstract

Law is a scavenger. It grows by feeding on ideas from outside, not by inventing new ones of its own. How borrowed ideas-not political and social theories, but abstract ideas borrowed from other disciplines- affect the law is a topic scholars have overlooked. This Article begins to fill that void by considering how the most influential idea of the last century, Charles Darwin's theory of biological evolution, has affected the way lawyers think about law. Today the idea that law "evolves" is so deeply ingrained in Anglo- American legal thought that most lawyers are no longer even conscious of it as a metaphor. We speak of the law "adapting" to its social, cultural, and technological environment without the slightest awareness of the jurisprudential tradition we are invoking. The central purpose of this Article is to bring to light the evolutionary tradition in Anglo- American jurisprudence, which underlies many of our assumptions about law.