Chapter 12: Making Evolutionary Theory Useful for Legal Actors
Mauro Zamboni* As pointed out by many scholars, there is a general skeptical attitude of a large sector of the legal scholarship towards the evolutionary approach.1 The main objective of this chapter is to make the first step in the direction of making evolutionary theory more useful for and therefore sympathetic to lawyers and legal actors in general. This step consists in elevating evolutionary theory from the status of external investigation of the legal phenomenon to being a fundamental contributor to the legal discourse also in its normative parts. The focus in particular is to understand why, though the evolutionary theory approach to law has been around quite a while in the legal scholar’s discussion, the legal world has left it at the front step of the legal house.2 Based on this analysis, the task is also to evaluate whether it is possible, after certain adjustments, to invite evolutionary theory into the larger family of legal thinking, in particular as part of the legal theories of law-making. As stressed by many critiques, it is possible to detect in most of the evolutionary approaches to the law some hidden normative components.3 For example, when using statements such as ‘legal uniformity . . . should to a large extent come about in an organic way,’ evolutionary scholars implicitly assume a normative proposal (i.e. that ‘the organic way ought to be pursued’) while, at the same time, they hide the criteria according to which this proposal is preferable to another (if the ‘organic way’ is...
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