Chapter 3: The Teleological-Axiological Question
EVOLUTIONARY THEORY AND THE GOALS OF LAW In the present chapter I try to substantiate the claim that evolutionary theory can be useful in the context of the question about the goals of law, that is, the question about the main values to be realized by law. I also provide some examples of applying evolutionary theory in solving concrete social problems. In the context of the question about the goals of law, one may use evolutionary theory in two markedly different ways. The first way consists in reasoning from the empirical observation that evolution operated according to the principle of the survival and reproduction of the fittest to the normative conclusion that the main goal of law ought to be the ensuring of the survival and reproduction of the fittest. In a more refined version this normative conclusion could take the following form: only such laws should be adopted which increase the quality of genes in the gene pool or at least do not decrease it. This way of applying evolutionary theory is unacceptable for two obvious reasons: it rests on the so-called ‘naturalistic fallacy’ (it unjustifiably identifies the predicate ‘good’ with the predicate ‘contributing to the survival and reproduction of the fittest’), or, to put it equivalently, it makes an illicit leap from the facts of evolution to values; it leads to the normative conclusion that we are at odds with our basic moral intuitions. It is dubious whether any serious thinker has ever used evolutionary theory in this...
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