Law, Economics and Evolutionary Theory
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Law, Economics and Evolutionary Theory

Edited by Peer Zumbansen and Gralf-Peter Calliess

Law and economics has arguably become one of the most influential theories in contemporary legal theory and adjudication. The essays in this volume, authored by both legal scholars and economists, constitute lively and critical engagements between law and economics and new institutional economics from the perspectives of legal and evolutionary theory. The result is a fresh look at core concepts in law and economics – such as ‘institutions’, ‘institutional change’ and ‘market failure‘ – that offer new perspectives on the relationship between economic and legal governance.
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Chapter 10: The Genesis of Law: On the Paradox of Law’s Origin and its Supplément

Marc Amstutz


Marc Amstutz How did law originate? Was it by distinguishing itself from that which was not lawful? But then, which came first, lawfulness or unlawfulness? Or is there another possibility? Ex facto ius oritur? As so often the case, it is Luhmann who takes the most radical stance: law has no beginning, it starts from the middle. ‘Legal practice,’ he writes, ‘always operates in situations where the law is an historical given, since otherwise the idea that it is distinguishable as legal practice would never even occur to it. Thus, from an historical point of view, law does not have any beginning; there are only situations in which it is sufficiently plausible to assume that the practice of observing legal norms also existed prior to that time.’1 Law begins, in other words, with an act of differentiation, perhaps no more than the creation of a before and an after, a construct that, like all such distinctions, is possible only in hindsight. In systems theory, every social system requires a primary distinction on the basis of which it operates. The political system distinguishes between power and the lack thereof; the economy between what represents value and what does not; art between what fits certain aesthetic criteria and what fails to do so. For the legal system, the primary distinction upon which it operates is that between the lawful and the unlawful. A side product of this logic of distinctions, however, is that it obscures all beginnings. This is its inevitable...

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