Chapter 2: The Ontological Question
THE PROBLEM OF THE ORIGINS OF LAW AND THE ONTOLOGICAL QUESTION The purpose of the present chapter is to analyse from the standpoint of evolutionary theory the problem of the origins of law and the problem of the nature of law. These two problems may seem prima facie entirely different but I shall contend that they are in fact interconnected. More specifically, a joint examination of these two problems seems to me fruiful because – as we shall see – different answers to the question about the nature of law can be better understood when they are located in the broader context of the question about the origins of law. I focus on three models of the origins of law, which I call ‘Hobbesian’, ‘Hayekian’ and ‘Darwinian’, and try to assess them from the evolutionary perspective. The name ‘Hobbesian model’ may be misleading, as Hobbes did not intend his account of the state of nature and social contract as a historical description. Nonetheless, this account can be interpreted in this way. The name ‘Darwinian model’ may be even more misleading, as Darwin did not deal with the problem of the origins of law at all. I shall argue, however, that this model is supported by evolutionary theory, which justifies the usage of this name. In my analysis I make use of the distinction between primitive law, that is, the law of stateless societies, and non-primitive law, that is, the law of state societies. These two types of law can also be called,...
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