Arthur Dyevre (CEPC) has posted Legal Positivism and Evolutionary Psychology: Can Legal Positivists Learn Something from Darwin? on SSRN. Here is the abstract:
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In the present essay, I consider the relevance of Evolutionary Psychology (EP) for legal positivism, addressing the two main traditions in the legal positivist family: (1) The tradition I identify with the works of H.L.A. Hart and Hans Kelsen and characterize as “normativist,” as it tries to describe law as a purely or, at least, as an essentially normative phenomenon while remaining true to the ideal of scientific objectivity and value-neutrality. (2) The tradition I broadly refer to as “legal realism,” which equates with adjudication and “legal science” with the task of explaining judicial behaviour. On the assumption that the claims of EP are correct, I try to establish whether EP could and should inform the legal theories that have developed within these two traditions. My conclusions warrant a degree of scepticism, although I am somewhat less sceptical about possible interconnections between EP and the legal realist approach than I am about the Hartian-Kelsenian brand of legal positivism. What motivates my scepticism is the nature of the normativist enterprise, how normativists construct their theories and delineate their subject-matter. The truth is EP has little to say about the questions that are of interest to legal positivists of that persuasion. The situation is slightly different for the legal realist tradition and the theories that try to study judicial behaviour in causal terms. The question, however, is whether EP can help generate new testable hypotheses about judicial decision-making.
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As controversial as EP might be, I will not take issue with its scientific merits here. Instead I will assume – for the sake of argument, as it were – that what EP says about human behaviour and the human mind is correct. However, alone this assumption does not guarantee that EP should be relevant for the social sciences, much less for positivist theories of law. As Brian Leiter and Michael Weisberg rightly point out, a sequential, developmental account of human psychology – that is a theory that primarily focuses on the genesis of human psychological traits – will be relevant for social sciences only to the extent that it helps researchers identify the degree of plasticity of human behaviour in its current environment.16 To put it differently, an account of the genesis of human psychological traits will be of interest to social scientists only to the extent that it helps identify sticky behaviour – that is, human conducts and tendencies that are less sensitive to institutions, incentives or to legal and social norms. Moreover, the significance of the resulting account of human nature for the social sciences will depend on its thickness. Obviously, a thin theory of human nature –in which the human mind is not quite a blank slate but remains, by and large, the product of social nurture – will have less far- reaching implications for the social sciences. On the other hand, a thick theory characterizing human nature as essentially non plastic should have wide consequences for any theory concerned with human behaviour.
