1

Comparative Law, Behavioral Economics, and

Contemporary Evolutionary Functionalism

Julie DE CONINCK* & Bart DU LAING

**

Draft version September 2009 – do not quote or cite without permission

* Postdoctoral Fellow of the Research Foundation - Flanders (FWO), Catholic University of Leuven (KU

Leuven); Lecturer at the University of Antwerp.

** Postdoctoral Fellow of the Research Foundation - Flanders (FWO), Ghent University, Department of

Legal Theory and Legal History.

2

I. Introduction

Comparative legal scholars ordinarily embark on their research with certain

preconceptions regarding the universality or diversity of human behavior and societies

that have a strong bearing on the starting point and focus of their investigations. As such,

functionalist comparative legal scholars set about their inquiries from a belief that certain

aspects of human behavior and human societies are universal and that every society’s

legal system thus is presented with essentially the same problems. Difference theorists,

for their part, believe that human behavior and human societies are fundamentally

culture-dependent and that each legal system thus is a unique cultural product.

Notwithstanding the tenacity with which such claims are at times affirmed, neither strand

of scholars has expressed much interest in empirical support for their respective

convictions (infra part II).

In an attempt to save at least some of the scientific aspirations of comparative legal

research, we draw upon the empirical findings and theoretical framework of behavioral

economics and contemporary evolutionary approaches to human behavior. First, we

explore whether and subject to what conditions (evolutionarily informed) behavioral

economics could prove to be of assistance in the search for legally sufficiently neutral

and empirically better validated standards of comparison that at the same time are

inherently variable themselves (infra part III). Second, and admittedly more tentatively,

we inquire into the usefulness of contemporary evolutionary approaches to human

behavior for rehabilitating some sort of evolutionary functionalism in comparative law

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scholarship, mainly by incorporating cultural transmission mechanisms and their

consequences into the latter’s theoretical framework (infra part IV).

Our article’s research question could thus be phrased as follows: How can we (re)connect

functionalism in comparative law with (evolutionarily informed) behavioral economics

and contemporary evolutionary approaches to human behavior in order to strengthen the

functional method of comparative law, as regards both its empirical content and its

theoretical framework?

II. Comparative Law

Functionalist comparative legal scholars typically focus on the social function of the legal

rules, concepts, and institutions they intend to compare. In doing so, they attempt to

tackle what is perceived to be a fundamental problem of all (cross-cultural) comparative

disciplines – that is, the issue of comparability of the items to be compared, to avoid

making “apples to oranges” comparisons.1 While rules, concepts, and institutions

originating from various legal systems may differ to a considerable extent, according to

functionalist legal comparatists, they nevertheless share at least one common property:

they address the same social problems. Hence, they become comparable, at least in terms

of their functional responsiveness to these particular problems.2 So-called difference

1 That is not to say it cannot be done. See notably the tongue-in-cheek experiment by Scott A. Sandford,

Apples and Oranges – A Comparison, 1(3) ANNALS IMPROBABLE RES. (1995), available at

http://www.improbable.com/airchives/paperair/volume1/v1i3/air-1-3-apples.html.

2 E.g., Marc Ancel, Le problème de la comparabilité et la méthode fonctionnelle en droit comparé, in

FESTSCHRIFT FÜR IMRE ZAJTAY 1, 5 (1982); Ernst A. Kramer, Topik und Rechtsvergleichung, 33 RABELS

4

theorists are notoriously skeptical of this assertion since, they argue, “it is far from clear

that there is general agreement as to what constitutes a problem,”3 for “in every society,

the issues of practical life are already shaped by history, culture, religion and language

before they are posed as legal questions.”4 Moreover, and correspondingly, functionalist

legal comparatists are inclined to center their investigations on (presumed) commonalities

between legal systems, whereas difference theorists typically favor (equally presumed)

difference over similarity.5

The opposite claims and interests expressed by functionalist legal comparatists, on the

one hand, and difference theorists, on the other, can be connected to their underlying

belief in or denial of the existence of universal features of human behavior and societies.

Indeed, functionalist legal comparatists are prone to argue that practically all existing

legal systems are to a great extent comparable with one another, simply because they are

ZEITSCHRIFT FÜR AUSLÄNDISCHES UND INTERNATIONALES PRIVATRECHT [RABELSZ] 1, 4-5, 9-10 (1969);

M. Schmitthoff, The Science of Comparative Law, 7 CAMBRIDGE L.J. 94, 96 (1939).

3 Jonathan Hill, Comparative Law, Law Reform and Legal Theory, 9 OXFORD J. LEGAL STUD. 101, 108

(1989).

4 Richard Hyland, Comparative law, in A COMPANION TO PHILOSOPHY OF LAW AND LEGAL THEORY 184,

189 (Dennis Patterson ed., 1996). Put differently, it is argued that the social structures of the various

societies are not sufficiently homogeneous to pose identical and universal problems that merely have to be

regulated by the law. See LÉONTIN-JEAN CONSTANTINESCO, TRAITÉ DE DROIT COMPARÉ, II, LA MÉTHODE

COMPARATIVE 38 (1974); ALAN WATSON, LEGAL TRANSPLANTS 4 (2d ed., University of Georgia Press

1993).

5 Cf. Pierre Legrand, What “Legal Transplants”?, in ADAPTING LEGAL CULTURES 55, 67 (David Nelken &

Johannes Feest eds., 2001) and, more generally, Roger Cotterrell, Is it so Bad to be Different? Comparative

Law and the Appreciation of Diversity, in COMPARATIVE LAW. A HANDBOOK 133 (Esin Örücü & David

Nelken eds., 2007).

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forced to solve the same or very similar problems occurring in the daily life of society.6

This affirmation reflects not only their presumption of a (straightforward) functional

relationship between law and society,7 but also their underlying belief that at least certain

aspects of human behavior and human societies are universal.8 Difference theorists, to the

contrary, disavow the existence of universal problems because of their belief that human

behavior and human societies are fundamentally culture-dependent, so that each legal

system is to be understood as a unique and inherently different cultural (constitutive)

product.9

For the purpose of this article, our interests lie not so much with the diametrically

opposed nature of these beliefs and claims, but rather with the common feature they

display – that is, the blatant disregard of both functionalist legal comparatists and

difference theorists10

for empirical support for their respective claims and convictions.

Some functionalist legal comparatists would even appear to go so far as to maintain that

6 KONRAD ZWEIGERT & HEIN KÖTZ, AN INTRODUCTION TO COMPARATIVE LAW 34 (Tony Weir trans., 3d

ed. 1998); MICHAEL BOGDAN, COMPARATIVE LAW 64 (1994).

7 See also infra text accompanying notes 50 and 74.

8 Cf. Jaakko Husa, Farewell to Functionalism or Methodological Tolerance?, 67 RABELS ZEITSCHRIFT FÜR

AUSLÄNDISCHES UND INTERNATIONALES PRIVATRECHT 419, 430 (2003).

9 See and compare Janet E. Ainsworth, Categories and Culture: On the “Rectification of Names” in

Comparative Law, 82 CORNELL L. REV. 19, 28 (1996); Vivian Grosswald Curran, Dealing in Difference:

Comparative Law’s Potential for Broadening Legal Perspectives, 46 AM. J. COMP. L. 657, 667 (1998)

(suggesting that “the only reliable human universal may be human difference”); Clifford Geertz, Local

Knowledge: Fact and Law in Comparative Perspective, in LOCAL KNOWLEDGE 167, 215 et seq. (1993).

10 With respect to the latter, see the criticism by Raffaele Caterina, Comparative Law and the Cognitive

Revolution, 78 TUL. L. REV. 1501 (2004).

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this lack of concern for empirical support poses no particular problem, since, they

contend, comparative law is and must be an argumentative and normative discipline.11

Contrary to these scholars, we believe that it is still worthwhile to attempt to save at least

some of the more traditionally scientific aspirations of comparative legal research. In this

article, we argue that behavioral economics and contemporary evolutionary approaches to

human behavior could prove to be of service in this respect in at least two ways. First,

(evolutionarily informed) behavioral economics can be of assistance in the quest for

variable standards of comparison that are legally sufficiently neutral and empirically

informed (infra part III). Second, contemporary evolutionary approaches to human

behavior could prove useful by introducing to comparative law an evolutionary

functionalism of a markedly different kind than its much-maligned legal ancestor (infra

part IV).

III. Behavioral Economics

If functionalist comparative legal research is to transcend mere beliefs in the universality

of human behavior and human societies and, correspondingly, the use of mere

constructed – common – problems,12

it could fruitfully benefit from research in

behavioral economics. To begin with, functionalist comparative law can avail itself of the

findings of behavioral economics in an endeavor to ascertain legally sufficiently neutral

11

Prominently, Ralf Michaels, The Functional Method of Comparative Law, in THE OXFORD HANDBOOK

OF COMPARATIVE LAW 339, 366, 381 (Reinhard Zimmermann & Mathias Reimann eds., 2006).

12 See recently, Michaels, supra note 11, at 366, 368-69; Husa, supra note 8, at 430.

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and at the same time empirically better validated standards from which to compare rules,

concepts, and institutions from different legal systems (infra 1). Moreover, the increasing

attention behavioral economists are paying to the cultural variability of the behaviors they

study endorses the possibility of flexible standards of comparison, while ensuing research

is starting to relate this behavioral variability to macro-level institutional variables (infra

2).

1. Empirically Informed Standards of Comparison

Like conventional neoclassical economics, behavioral economics is concerned with

economically relevant human behavior. The latter, however, explicitly focuses on real

observed human behavior. In doing so, behavioral economists refuse to rely upon and

even positively challenge some of the assumptions underlying standard economic models

of judgment and choice, such as the assumption that individuals are self-regarding utility

maximizers with relatively stable and coherent preferences. Over the past few decades,

behavioral economists have gathered a large body of empirical evidence indicating that at

least a substantial percentage of people violates many of the postulates of standard

economic theory. Most famously, behavioral economists have uncovered that in effect

individuals do not behave according to the postulates of full rationality, narrow self-

interest, and absolute self-control.13

13

For an introduction to the main themes of the field, see Colin F. Camerer & George Loewenstein,

Behavioral Economics: Past, Present, Future, in ADVANCES IN BEHAVIORAL ECONOMICS 3 (Colin F.

Camerer et al. eds., 2004); Daniel Kahneman, Maps of Bounded Rationality: Psychology for Behavioral

Economics, 93 AM. ECON. REV. 1449 (2003); Matthew Rabin, A Perspective on Psychology and

Economics, 46 EUR. ECON. REV. 657 (2002).

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Legal scholars have already taken an interest in this line of research, advocating the

relevance of this descriptively more accurate account of actual human behavior for

domestic legal policy.14

Others have contemplated on the findings of behavioral

economics as a possible explanatory factor for the content of the law, in considering

various legal institutions as reflecting determinants of actual decision-making.15

Quite apart from this (domestic) field of “behavioral law and economics,”16

the findings

of behavioral economics appear to hold a more immediate significance for – functionalist

– comparative legal research, as they seem to provide a promising route of inquiry to

study cross-cultural differences and similarities in the ways different legal systems

respond to or act upon human behavior. The various behavioral patterns studied by

behavioral economists indeed could be taken as a pivotal point from which to compare

14

Christine Jolls & Cass R. Sunstein, Debiasing through Law, 35 J. LEGAL STUD. 199 (2006); Russell B.

Korobkin & Thomas S. Ulen, Law and Behavioral Science: Removing the Rationality Assumption from

Law and Economics, 88 CAL. L. REV. 1053 (2000); FRANCESCO PARISI & VERNON L. SMITH EDS., THE

LAW AND ECONOMICS OF IRRATIONAL BEHAVIOR, parts III and IV (2005). Consider also On Amir & Orly

Lobel, Stumble, Predict, Nudge: How Behavioral Economics Informs Law and Policy, 108 COLUM. L. REV.

2098 (2008).

15 Cf., e.g., David Cohen & Jack L. Knetsch, Judicial Choice and Disparities Between Measures of

Economic Values, 30 OSGOODE HALL L.J. 737 (1992) (arguing that various common law doctrines can be

understood as reflecting the higher value commonly placed on losses over gains); Ward Farnsworth, The

Legal Regulation of Self-Serving Bias, 37 U.C. DAVIS L. REV. 567 (2003) (considering multiple features of

the American legal system as responses to self-serving biases); Christine Jolls et al., A Behavioral

Approach to Law and Economics, 50 STAN. L. REV. 1471, 1510-16 (1998) (suggesting that pervasive

fairness concerns may account for many legal bans on voluntary deals – in a similar vein, Avishalom Tor,

The Methodology of the Behavioral Analysis of Law, 4 HAIFA L. REV. 237, 269-70 (2008), available at

http://ssrn.com/abstract=1266169).

16 Or, more generally, behavioral analysis of law (compare Tor, supra note 15, at 314-17).

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how various legal systems deal with or act upon these behavioral patterns.17

Espousing

this approach would enable legal comparatists to address two difficulties that commonly

plague (functionalist) comparative legal research. First, by employing empirically

observed and experimentally measured behavioral patterns as a starting point for their

research, legal comparatists ensure a legally sufficiently neutral standard of comparison,

thereby avoiding the problem of – inadvertently – relying upon parochial legal concepts

and categories. In addition, and by the same token, this course of action provides an

empirically informed basis for comparison, without functionalist legal comparatists

having to resort to mere constructed problems.18

As such, the notorious endowment effect furnishes an interesting empirically

substantiated point of reference from which to compare the ways in which different legal

systems take into account the fact of physical possession. The endowment effect refers to

the finding that, contrary to the standard prediction of near equivalence of such measures

of value, the minimum monetary amount individuals demand to give up a particular good

(willingness to accept or WTA) is typically much higher than the maximum amount they

are willing to pay (WTP) to acquire that same good. These findings suggest that

individuals value goods more highly when they are part of their “endowment” than when

they are not.

17

Compare to a certain extent also the basic suggestion by Roger D. Masters, The Ethological Basis of

Trust, Property and Competition, 23 RECHTSTHEORIE 407 (1992) (advancing the theoretical utility of

ethology for determining elements of legally relevant human behavior that could act as a common

denominator for comparative legal purposes).

18 See Julie De Coninck, Overcoming the Mere Heuristic Aspirations of (Functional) Comparative Legal

Research? An Exploration into the Possibilities and Limits of Behavioral Economics, GLOBAL JURIST

(forthcoming 2009).

10

Observed in numerous real and hypothetical experiments and supported by field data,19

the endowment effect is widely20

regarded as an empirically robust phenomenon. The

robustness of the endowment effect, as observed with adults, seems to be corroborated21

by its occurrence with children22

and by experiments with nonhuman primates suggesting

19

Most famously, the experiments reported by Daniel Kahneman et al., Experimental Tests of the

Endowment Effect and the Coase Theorem, 98 J. POL. ECON. 1325 (1990). For overviews, see John K.

Horowitz & Kenneth E. McConnell, A Review of WTA / WTP Studies, 44 J. ENVTL. ECON. & MGMT. 426

(2002); Serdar Sayman & Ayşe Öncüler, Effects of Study Design Characteristics on the WTA – WTP

Disparity: A Meta Analytical Framework, 26 J. ECON. PSYCHOL. 289 (2005).

20 Though not unanimously. See notably Charles R. Plott & Kathryn Zeiler, The Willingness to Pay-

Willingness to Accept Gap, the “Endowment Effect,” Subject Misconceptions, and Experimental

Procedures for Eliciting Valuations, 95 AM. ECON. REV. 530 (2005). But see also Simon Gächter et al.,

Individual-Level Loss Aversion in Riskless and Risky Choices 3, 13, 18 (CeDEx Discussion Paper No.

2007-02, 2007), available at http://www.nottingham.ac.uk/economics/cedex/papers/2007-02.pdf (last

visited Aug. 30, 2009) (the hypothesis that subject misconception would explain the WTA-WTP gap seems

contradicted by the positive correlation observed between loss aversion in riskless and risky choice) and the

alternative suggested by Botond Kőszegi & Matthew Rabin, A Model of Reference-Dependent Preferences,

121 Q.J. ECON. 1133, esp. at 1142 (2006); Jack L. Knetsch & Wei-Kang Wong, The Endowment Effect and

the Reference State: Evidence and Manipulations, 71 J. ECON. BEHAV. & ORG. 407 (2009).

21 On the conjecture that analogous behaviors observed with adults, children and nonhuman primates may

point to a common, possibly innate (“universal”) ancestry, see, e.g., Laurie R. Santos & Venkat

Lakshminarayanan, Innate Constraints on Judgment and Decision-Making? Insights from Children and

Nonhuman Primates, in THE INNATE MIND. VOLUME 3: FOUNDATIONS AND THE FUTURE 293 (Peter

Carruthers et al. eds., 2007) (with explicit consideration of reference dependence/loss aversion/endowment

effect).

22 See William T. Harbaugh et al., Are Adults Better Behaved than Children? Age, Experience, and the

Endowment Effect, 70 ECON. LETTERS 175 (2001). But consider also Margery M. Lucas et al., Fair Game:

The Intuitive Economics of Resource Exchange in Four-Year Olds, 2 J. SOC., EVOLUTIONARY & CULTURAL

PSYCHOL. 74, 81-82, 85 (2008) (noting that the percentage of their subjects showing an endowment effect

is less than that generally reported in experiments with adults).

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that closely related species would seem to display similar behavioral traits.23

More

recently, researchers have aspired to disentangle the effects of physical possession and

legal ownership; effects that so far have remained intertwined in the traditional design of

endowment effect experiments. In testing for the distinct effects of possession and

ownership, these researchers have observed the marked salience of physical possession in

particular for inducing the endowment effect.24

Taken together with the apparent

robustness of the endowment effect, these findings lend credence to the hypothesis that

the physical possession of an object would be an important factor for vesting individuals

with some legal rights with regard to that object across legal systems.

23

See Sarah F. Brosnan et al., Endowment Effects in Chimpanzees, 17 CURRENT BIOLOGY 1 (2007)

(observing that chimpanzees tend to keep less-preferred food rather than exchange it for preferred food,

thus, arguably, exhibiting some form of endowment effect); M. Keith Chen et al., How Basic Are

Behavioral Biases? Evidence from Capuchin Monkey Trading Behavior, 114 J. POL. ECON. 517 (2006)

(reporting that capuchins display both reference dependence and loss aversion, similar to that commonly

observed in humans – but see for a different interpretation, Alan Silberberg et al., On Loss Aversion in

Capuchin Monkeys, 89 J. EXPERIMENTAL ANALYSIS BEHAV. 145 (2008)); Venkat Lakshminarayanan et al.,

Endowment Effect in Capuchin Monkeys, 363 PHIL. TRANSACTIONS ROYAL SOC’Y B: BIOLOGICAL SCI.

3837 (2008) (testing more explicitly for an endowment effect and controlling for transaction costs and

timing issues).

24 Jochen Reb & Terry Connolly, Possession, Feelings of Ownership and the Endowment Effect, 2

JUDGMENT & DECISION MAKING 107 (2007) (arguing that the higher monetary valuations noted in the

endowment effect result from subjective feelings of ownership that are induced by the possession of an

object, rather than by its legal ownership). Compare also Knetsch & Wong, supra note 20 (whose

experiments suggest that physical possession is at least one factor influencing the subject’s reference state);

James R. Wolf et al., The Power of Touch: An Examination of the Effect of Duration of Physical Contact

on the Valuation of Objects, 3 JUDGMENT & DECISION MAKING 476 (2008) (proffering that subjective

feelings of ownership, leading to an increase in the valuation of an object, may be produced simply by

holding an item).

12

A similar argument could be made in relation to the equally famous experimental

observation that many individuals are not exclusively motivated by material self-interest,

as traditional game theory predicts. Indeed, the cumulative results of numerous ultimatum

games and a panoply of related experimental games25

are commonly interpreted as strong

evidence of a human propensity towards prosocial behavior and costly punishment of

selfish behavior by others. Here again, experimental evidence26

suggesting that closely

related species may exhibit at least (disadvantageous) inequity aversion as well,27

could

25

For reviews/overviews, see Colin F. Camerer & Ernst Fehr, Measuring Social Norms and Preferences

Using Experimental Games: A Guide for Social Scientists, in FOUNDATIONS OF HUMAN SOCIALITY 55

(Joseph Henrich et al. eds., 2004); Ernst Fehr & Klaus M. Schmidt, The Economics of Fairness,

Reciprocity and Altruism – Experimental Evidence and New Theories, in HANDBOOK OF THE ECONOMICS

OF GIVING, ALTRUISM AND RECIPROCITY, 1, FOUNDATIONS 615 (Serge-Christophe Kolm & Jean Mercier

Ythier eds., 2006).

26 Sarah F. Brosnan & Frans B.M. de Waal, Monkeys Reject Unequal Pay, 425 NATURE 297 (2003). See

also Sarah F. Brosnan et al., Tolerance for Inequity May Increase with Social Closeness in Chimpanzees,

272 PROC. ROYAL SOC’Y B: BIOLOGICAL SCI. 253 (2005); Grace E. Fletcher, Attending to the Outcome of

Others: Disadvantageous Inequity Aversion in Male Capuchin Monkeys, 70 AM. J. PRIMATOLOGY 901

(2008); Megan van Wolkenten et al., Inequity Responses of Monkeys Modified by Effort, 104 PROC. NAT’L

ACAD. SCI. U.S. BIOLOGICAL SCI. 18854 (2007).

27 The issue remains disputed and other explanations for such behavior by nonhuman primates have been

advanced, such as frustration due to the mere presence of a more preferred food (e.g., Clive D.L. Wynne,

Fair Refusal by Capuchin Monkeys, 428 NATURE 140 (2004); Diane Dubreuil et al., Are Capuchin

Monkeys (Cebus Apella) Inequity Averse?, 273 PROC. ROYAL SOC’Y B: BIOLOGICAL SCI. 1223 (2006)) or

change in the quality of food (Peter G. Roma et al., Capuchin Monkeys, Inequity Aversion, and the

Frustration Effect, 120 J. COMP. PSYCHOL. 67 (2006) – but see Sarah F. Brosnan & Frans B.M. de Waal,

Partial Support from a Nonreplication: Comment on Roma, Silberberg, Ruggiero, and Suomi (2006), 120 J.

COMP. PSYCHOL. 74 (2006)). Alternatively, others have obtained deviating results (e.g., Keith Jensen et al.,

Chimpanzees Are Rational Maximizers in an Ultimatum Game, 318 SCIENCE 107 (2007); Juliane Bräuer et

al., Are Apes Inequity Averse? New Data on the Token-Exchange Paradigm, 71 AM. J. PRIMATOLOGY 175

(2009)).

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be taken as additional support28

for the conjecture that this tendency represents a

universally occurring human characteristic. And again, we could expect to find some

reflection of this trait across legal systems.29

2. Cultural Variability, Flexible Points of Reference, and Relating Macro- and Micro-

Variables

Yet, in considering the findings of behavioral economics as a possible standard for

comparison, legal comparatists should be wary not to simply treat these, and other,

behavioral patterns documented by behavioral economists as invariant human universals,

no matter how well established they may appear at first glance. As a rule, the subject

pools involved in the countless experiments conducted to ascertain the robustness of

these behavioral tendencies have been composed almost exclusively of western university

students. As has been aptly noted, as a consequence, “no matter how many times

researchers confirm a particular result, one is left wondering to what extent experiments

have tapped human universals as opposed to the comparatively homogeneous culture of

university undergraduates in the world’s OECD countries.”30

And indeed, leastways since

Joseph Henrich’s highly influential article reporting a previously unexplored degree of

28

But see Joseph Henrich, Inequity Aversion in Capuchins?, 428 NATURE 139 (2004); Yosuke Hachiga et

al., Humans (Homo Sapiens) Fail to Show an Inequity Effect in an “Up-Linkage” Analog of the Monkey

Inequity Test, 12 ANIMAL COGNITION 359 (2009), questioning the connection with human-like inequity

aversion.

29 Compare supra note 15.

30 Charles Efferson & Peter J. Richerson, A Prolegomenon to Nonlinear Empiricism in the Human

Behavioral Sciences, 22 BIOLOGY & PHIL. 1, 8 (2007).

14

cross-cultural variability of ultimatum bargaining behavior,31

the erstwhile prevailing

implicit assumption of the panhuman invariance of behavioral tendencies observed with

western subjects seems discredited.

Expanding on these more recent insights, functionalist legal comparatists would be

equally misdirected to anticipate potential cultural differences to be restricted to the legal

realm. Arguably, cultural differences, or at least the possibility of such differences,

should be considered both at the level of the regulated behavior itself and at the level of

its legal regulation.32

If we would then expect legal institutions to reflect – some –

determinants of actual decision-making,33

we would not for that reason expect legal

institutions across cultures to be similar. Rather, we would expect these institutions to

convey some of the cultural variability in actual decision-making.

Appreciating this behavioral variability also sheds a different light on the endeavor by

legal comparatists to ensure the comparability of the items to be compared by

determining a fixed standard of comparison – for functionalist legal comparatists, a social

problem presumed common to all systems under scrutiny. This limited focus on an

invariant point of reference and the reluctance to allow for (cultural) variation within the

standard of comparison itself, which effectively reserves the prospect of such (cultural)

variation to the sole level of the legal regulation, impose a needless and misconceived

31

Joseph Henrich, Does Culture Matter in Economic Behavior? Ultimatum Game Bargaining Among the

Machiguenga of the Peruvian Amazon, 90 AM. ECON. REV. 973 (2000).

32 Cf. Bart Du Laing, Equality in Exchange Revisited – From an Evolutionary (Genetic and Cultural) Point

of View, in LAW, MIND AND BRAIN 267 (Michael Freeman & Oliver R. Goodenough eds., 2009).

33 Cf. supra note 15.

15

constraint on comparative legal research.34

One of the problems of (functionalist)

comparative law indeed lies in its obstinate quest for finding a strictly fixed standard of

comparison.35

Still, if we are to take into account such cultural differences in a meaningful manner, it is

paramount to go beyond the mere use of “culture” as a black box; a vague all-embracing

residual category that is insusceptible to operationalization.36

This point bears special

emphasis. At present, we are witnessing a growing number of experiments that provide

empirical evidence for cross-national variations in various areas of human behavior.

However, documenting differences in behavior between subjects from different countries,

or presumably different cultures, is only a first step. The next step is to identify and

34

De Coninck, supra note 18.

35 The discourse regarding the universality of (identical) social problems to be used as a standard of

comparison (e.g., Michaels, supra note 11, at 367-68. See also supra text accompanying notes 1-4) and the

stratagem of reverting to highly general – universal – problems (e.g., PETER DE CRUZ, COMPARATIVE LAW

IN A CHANGING WORLD 238 (3d ed. 2007) (“while different societies treat differently certain questions …

all societies face the need to resolve their particular domestic/local problems and, whether this is how to

treat the requirements for a valid marriage, or adultery or incest, the basic problem is how should the law

deal with these situations? … In other words, all societies … face the basic problem of how best to regulate

their society and resolve conflict.”) bear clear witness to this fixation on an absolute and immutable point

of reference by functionalist legal comparatists.

36 Regarding the reliance on this unspecified notion of culture, see and compare Amir N. Licht, The Mother

of All Path Dependencies. Toward a Cross-Cultural Theory of Corporate Governance Systems, 26 DEL. J.

CORP. L. 147 (2001) (deploring the use of “culture” as a black box and pointing to the need for a cross-

cultural theory to inform comparative analyses); Luigi Guiso et al., Does Culture Affect Economic

Outcomes?, 20 J. ECON. PERSP. 23 (2006) (finding that as a consequence, many cultural explanations

appear to be no more than post factum rationalizations). See also Raffaele Caterina, Comparative Law and

Economics, in ELGAR ENCYCLOPEDIA OF COMPARATIVE LAW 161, 170 (Jan M. Smits ed., 2006)

(denouncing the “holistic and quasi-mystic way in which some comparative law literature speaks of

cultures and traditions as spiritual entities, opaque to description and impermeable to evaluation.”).

16

specify the cultural variables that drive these behavioral differences. Indeed, although

most people might agree with the idea that culture matters, demonstrating how it matters

is quite a different thing altogether.37

As has been observed, a drawback common to

many traditional cross-country, or self-declared cross-cultural, studies is that cross-

country differences are simply attributed to cultural differences,38

without (sufficiently)

specifying the cultural variables or relating the cross-cultural differences in behavior to

country- or macro-level cultural variables.39

As for this second phase, there is already some research attesting to the viability of such

an approach pertaining to the interaction between cross-culturally obtained data from

behavioral economics and macro-level institutional variables.

Charles Efferson, Masanori Takezawa, and Richard McElreath,40

for instance, have

inquired what price people are willing to pay for equality and how that price varies within

and among societies, using dictator games to measure variation in prosociality. While

37

Cf. Efferson & Richerson, supra note 30, at 9.

38 Compare, in the context of comparative legal research, Reza Banakar, Power, Culture and Method in

Comparative Law, 5 INT’L J.L. CONTEXT 69, 76 (2009) (cautioning that not all differences between legal

systems are cultural in origin).

39 See, e.g., Branden B. Johnson, Risk and Culture Research: Some Cautions, 22 J. CROSS-CULTURAL

PSYCHOL. 141 (1991); Hessel Oosterbeek et al., Cultural Differences in Ultimatum Game Experiments:

Evidence from a Meta-Analysis, 7 EXPERIMENTAL ECON. 171, esp. 172, 184 (2004) and the elaborations by

Elke U. Weber & Christopher K. Hsee, Culture and Individual Judgment and Decision Making, 49

APPLIED PSYCHOL. (2000) 32, 48 et seq. and David Matsumoto & Seung Hee Yoo, Toward a New

Generation of Cross-Cultural Research, 1 PERSP. ON PSYCHOL. SCI. 234 (2006).

40 Charles Efferson et al., New Methods in Quantitative Ethnography. Economic Experiments and Variation

in the Price of Equality, 48 CURRENT ANTHROPOLOGY 912 (2007).

17

they found individual-level measures of market integration and participation in

cooperative activities to be the most important variables for the game results for one

small-scale society, ethnicity was the most important variable for the other small-scale

society. On a more general level, and of distinct interest for the purposes of this article,

the model deployed by these authors to measure variation in the price of equality with

respect to the two societies under scrutiny allows to incorporate variables of many scales,

including higher-level cultural information into the analysis of individual (prosocial)

behavior.

Performing public goods games (which require cooperation to achieve socially beneficial

outcomes) in subject pools around the world, Benedikt Herrmann, Christian Thöni, and

Simon Gächter41

observed that what they call antisocial punishment – that is, the

sanctioning of people who behave prosocially, is a widespread phenomenon. However,

they also found that antisocial punishment is subject to strong cross-societal variation as

to its importance and its detrimental effects on cooperation levels. Relating their results to

macro-level norms of cooperation, they went on to show that weak norms of civic

cooperation and the weakness of the rule of law in a country42

are significant predictors

of this antisocial punishment, and their results indicate that punishment opportunities are

socially beneficial only if complemented by strong social norms of cooperation.

41

Benedikt Herrmann et al., Antisocial Punishment Across Societies, 319 SCIENCE 1362 (2008).

42 According to measures developed by various social scientists extracted from survey data. For a recent

attempt at a more finely grained approach to the rule of law and its measurement, see Stefan Voigt, How to

Measure the Rule of Law (2009), http://ssrn.com/abstract=1420287 (last visited Aug. 30, 2009).

18

As another example, Joseph Henrich et al.’s heavily discussed ongoing work on “the

roots of human sociality”43

deserves to be mentioned here. Using a variety of games,

these researchers have measured levels of cooperation and punishment across various

societies. They proceeded to investigate the relationship between the observed levels of

cooperation and punishment and both individual- and group-level variables and found

that especially group-level differences in economic organization, the structure of social

interactions, and “market integration” were able to account for the observed cross-

societal behavioral variation.

What is interesting about this type of research for our purposes is that it tries to relate

“micro-level” behavioral variables with “macro-level” institutional variables, which can

very well involve features of the legal systems of the cultures considered. Thus, we

concur with Henrich that accounting for cultural differences in behavior “by no means

suggests that we cannot generalize about human behavior. Rather, it suggests we need a

theory of culture, or of cultural transmission, to do so.”44

It is this need for an

encompassing theoretical framework we address in the next section of this article.

43

Joseph Henrich et al., “Economic Man” in Cross-Cultural Perspective: Behavioral Experiments in 15

Small-Scale Societies, 28 BEHAV. & BRAIN SCI. 795 (2005) [hereinafter Henrich et al., Economic Man]

(target paper with commentaries); Joseph Henrich et al., Costly Punishment Across Human Societies, 312

SCIENCE 1767 (2006) (finding that costly punishment covaries with altruistic behavior across populations);

JOSEPH HENRICH ET AL. EDS., FOUNDATIONS OF HUMAN SOCIALITY (2004).

44 Henrich, supra note 31, at 978 n.3.

19

IV. Contemporary Evolutionary Functionalism

In this final section, we take on the problem of establishing a larger theoretical

framework within which to situate the foregoing findings. Indeed, faced with the issue of

the undertheoretization of behavioral economics,45

several authors have already

suggested that evolutionary theory might prove to be useful as an encompassing

theoretical framework and foundation for the various empirically observed and

experimentally measured behavioral patterns outlined above.46

We discuss to what extent and in which ways contemporary evolutionary approaches to

human behavior are currently contributing to this debate, focusing mainly on David Sloan

Wilson’s multi-level selection theory and Robert Boyd and Peter Richerson’s gene-

culture co-evolutionary (or dual inheritance) theory. In doing so, we assess these

approaches as to their capacity of sustaining a more balanced version of evolutionary

functionalism than the older approaches that, implicitly or explicitly, seem to have been

mostly discarded by current comparative legal theory.

45

E.g., Drew Fudenberg, Advancing Beyond Advances in Behavioral Economics, 44 J. ECON. LITERATURE

694 (2006); Owen D. Jones, Time-Shifted Rationality and the Law of Law’s Leverage: Behavioral

Economics Meets Behavioral Biology, 95 NW. U. L. REV. 1141, 1156 et seq. (2001).

46 E.g., Herbert Gintis, A Framework for the Unification of the Behavioral Sciences, 30 BEHAV. & BRAIN

SCI. 1 (2007); Jessica L. Cohen & William T. Dickens, A Foundation for Behavioral Economics, 92 AM.

ECON. REV. 335 (2002); Avner Ben-Ner & Louis Putterman, On Some Implications of Evolutionary

Psychology for the Study of Preferences and Institutions, 43 J. ECON. BEHAV. & ORG. 91 (2000).

20

There have been and continue to be many types of “functionalism.” Moreover,

functionalism in comparative legal theory is not necessarily analogous to functionalism in

disciplines such as sociology and anthropology. Nevertheless, some of these

“functionalisms” seem to share at least some features.

Therefore, in the first subsection, we address questions of levels and mechanisms more

closely related to functionalism in the social sciences, even though these questions are not

unrelated to criticism leveled against the functional method in comparative law or so-

called “evolutionary functionalism” in law more generally (infra 1). However, it should

be emphasized that the latter type of legal scholarship has come to use the term

“evolutionary” in a fashion that would be unrecognizable, if not incomprehensible, for a

contemporary evolutionary biologist interested in human behavior. Astounded by the

meaning the expression “evolutionary” has received in part of the anthropological

literature, biologist David Sloan Wilson, for instance, recently stressed that “[i]f

evolution is the foundation of functionalism, then there is a new foundation upon which

to build.”47

We will come back to this shortly.

The second and third subsections take us closer to functionalism as it is more usually

conceived of with regard to comparative law and its methodology, and we briefly deal

with the issues of dysfunction (infra 2) and difference (infra 3), respectively.

47

DAVID SLOAN WILSON, DARWIN’S CATHEDRAL: EVOLUTION, RELIGION, AND THE NATURE OF SOCIETY

83 (2002).

21

1. Levels and Mechanisms

In discussing functionalism in sociology and anthropology, rather than in comparative

law, as a “supposedly outmoded theory that nevertheless stubbornly refuses to die,”48

Robert Ellickson observes that

to support a Panglossian scenario of group evolutionary progress,

functionalists could not rely simply on the biological theory of natural

selection. They instead had to develop theories to explain how social

control systems would evolve within groups to prevent successful

invasions by deviants who would subvert group welfare. The early

functionalists never came close to filling in this missing theoretical link.49

More generally, functionalists in various guises have regularly been accused of not being

able to provide the underlying mechanisms by which group- or society-level functionality

is supposed to come into being.

With regard to legal research and comparative law, the problem with this older

“evolutionary functionalism” is that it simply assumed that legal rules were there to serve

the needs of a given society, and that these legal rules somehow adapted themselves as

48

Robert C. Ellickson, A Critique of Economic and Sociological Theories of Social Control, 16 J. LEGAL

STUD. 67, 93 (1987). This is a view Ellickson and Wilson would seem to share. See WILSON, supra note 47,

at 83 (“The worst that can be said about functionalism is that it failed to fulfill itself as a research program

during its heyday. Functionalism wasn’t falsified; it merely went out of fashion.”).

49 Ellickson, supra note 48, at 95.

22

the needs of the society changed. Thus, a functional relationship between law and society

was taken as a given and little or no attention was paid to the mechanisms that could

possibly lead to such a result. Moreover and related, this type of functionalism has

regularly been accused of circularity and determinism.50

In contrast, evolutionary biologist David Sloan Wilson’s Darwin’s Cathedral is framed

quite explicitly as an attempt to rehabilitate functionalist approaches in the social sciences

in general, by introducing his version of evolutionary multi-level selection theory.51

Contrary to Ellickson’s admittedly somewhat older statement quoted above, according to

Wilson “[e]volutionary biology is settling into a middle position that acknowledges the

potential for adaptation and natural selection at all levels of the biological hierarchy,

especially in the case of human evolution.”52

Hence, multi-level selection theory could

provide us with an interesting evolutionary theoretical framework within which to

address group-level legal functionality.

Very basically, multi-level selection theory views natural selection as a multi-level

process that operates not only among individuals within groups, but also among groups of

individuals. In addition, it is argued that group selection may be especially important in

the human case. While Wilson acknowledges that “[n]othing is perfectly adaptive or a

50

Cf., e.g., Michaels, supra note 11, at 352-54; Robert W. Gordon, Critical Legal Histories, 36 STAN. L.

REV. 57, 59-65, 100-02 (1984).

51 See WILSON, supra note 47. See also David Sloan Wilson, Group-Level Evolutionary Processes, in THE

OXFORD HANDBOOK OF EVOLUTIONARY PSYCHOLOGY 49 (R.I.M. Dunbar & Louise Barrett eds., 2007);

David Sloan Wilson, Human Groups as Adaptive Units: Toward a Permanent Consensus, in THE INNATE

MIND. VOLUME 2: CULTURE AND COGNITION 78 (Peter Carruthers et al. eds., 2006).

52 WILSON, supra note 47, at 85.

23

product of only one level of selection,”53

he is also of the opinion that “[i]f cultural

phenotypic variation has functional consequences, it is hard to avoid the conclusion that

at least some properties of present-day cultures owe their existence directly to the

winnowing process of natural selection.”54

He goes on to investigate which aspects of

religion and religious groups could be adequately explained by considering these groups

as “adaptive units.” Wilson’s approach, as developed with respect to religious groups,

may be applicable to other forms of human social organization and to certain features of

law and legally relevant behavior. Indeed, other scholars have already recognized the

value of this multi-selection theory to address institutional arrangements within a legal

context. Janet Landa, for instance, recently reformulated her ongoing work on

homogeneous middleman groups in terms of multi-level selection theory in an attempt to

show “how various successful foreign merchant groups, originating from very different

cultures, have adapted to the same underdeveloped economies of their host societies.”55

However, Wilson’s theoretical framework is not alone in drawing attention to the

importance of distinguishing different levels of organization and the respective

evolutionary processes and mechanisms that operate at these different levels. Another

approach that is deeply concerned with these issues is niche construction theory.

According to Marcus Feldman, niche construction theory “allows historical features of a

53

Id. at 45.

54 Id. at 78.

55 Janet T. Landa, The Bioeconomics of Homogeneous Middleman Groups as Adaptive Units: Theory and

Empirical Evidence Viewed from a Group Selection Framework, 10 J. BIOECONOMICS 259, 260 (2008). See

also Janet T. Landa, Bounded Rationality of Homo Classificus: The Law and Bioeconomics of Social

Norms as Classification, 80 CHI.-KENT L. REV. 1167, 1178-79 (2005).

24

population of organisms to be introduced into the continuing processes of evolution.”56

Among other things, this relatively new approach is worth mentioning in view of Robert

Gordon’s statements on critical legal theory:

The Critics’ basic argument … is that by taking the world as we know it as

largely determined by impersonal social forces, evolutionary-

functionalists obscure the ways in which these seemingly inevitable

processes are actually manufactured by people who claim (and believe

themselves) to be only passively adapting to such processes.57

This critique could just as well have been written by niche construction enthusiasts, who,

in their critique of orthodox evolutionary theory, do not shy away from asserting, when

discussing their favorite example of beaver dam building, that “[t]he active agency of

beavers in constructing these modified selection pressures and thereby acting as

codirectors of their own evolution (not to mention that of other species) currently goes

unrecognized.”58

Critical contemporary evolutionary approaches to human behavior and

critical legal theory thus would seem to have more in common than is often presumed.

56

Marcus W. Feldman, Dissent with Modification: Cultural Evolution and Social Niche Construction, in

EXPLAINING CULTURE SCIENTIFICALLY 55, 56 (Melissa J. Brown ed., 2008).

57 Gordon, supra note 50, at 70 (footnote omitted).

58 Kevin N. Laland & Kim Sterelny, Seven Reasons (Not) to Neglect Niche Construction, 60 EVOLUTION

1751, 1752 (2006). See also Kevin N. Laland et al., Niche Construction, Ecological Inheritance, and

Cycles of Contingency in Evolution, in CYCLES OF CONTINGENCY: DEVELOPMENTAL SYSTEMS AND

EVOLUTION 117 (Susan Oyama et al. eds., 2001); Kevin N. Laland et al., Niche Construction, Biological

Evolution, and Cultural Change, 23 BEHAV. & BRAIN SCI. 131 (2000), and Samuel Bowles’ commentary

entitled Economic Institutions as Ecological Niches at 148.

25

This having been said, there are also good reasons to believe that the population-level

consequences of agency and intentionality are often overestimated.59

Arguably the most important framework for our present purposes is Robert Boyd and

Peter Richerson’s gene-culture co-evolutionary (or dual inheritance) theory.60

In order to

address the emergence of a possibly wide variety of stable norms at the level of human

groups regulating similar individual behavior their approach incorporates not only

multiple levels of analysis,61

but also cultural transmission mechanisms – such as, a

frequency-based conformity bias (“do what the majority of the population is doing”) and

a model-based prestige bias (“do what successful individuals in the population are

doing”) – as well as the notion of cultural group selection. Their evolutionary theoretical

framework differs from other contemporary evolutionary approaches to human behavior

in that it carves out a more fundamental role for human cultural capacities than has been

59

For the latter, as well as for an interesting rebuttal of the alleged teleology inherent in evolutionary

thinking, see most recently Alex Mesoudi, Foresight in Cultural Evolution, 23 BIOLOGY & PHIL. 243

(2008).

60 See generally PETER J. RICHERSON & ROBERT BOYD, NOT BY GENES ALONE: HOW CULTURE

TRANSFORMED HUMAN EVOLUTION (2005); Robert Boyd & Peter J. Richerson, Gene-Culture Coevolution

and the Evolution of Social Institutions, in BETTER THAN CONSCIOUS? DECISION MAKING, THE HUMAN

MIND, AND IMPLICATIONS FOR INSTITUTIONS 305 (Christoph Engel & Wolf Singer eds., 2008). A recent

collection of more technical papers can be found in ROBERT BOYD & PETER J. RICHERSON, THE ORIGIN

AND EVOLUTION OF CULTURES (2005) [hereinafter BOYD & RICHERSON, ORIGIN AND EVOLUTION OF

CULTURES]. See also Joseph Henrich & Richard McElreath, Dual-Inheritance Theory: The Evolution of

Human Cultural Capacities and Cultural Evolution, in THE OXFORD HANDBOOK OF EVOLUTIONARY

PSYCHOLOGY 555 (R.I.M. Dunbar & Louise Barrett eds., 2007); Richard McElreath & Joseph Henrich,

Modelling Cultural Evolution, in THE OXFORD HANDBOOK OF EVOLUTIONARY PSYCHOLOGY 571 (R.I.M.

Dunbar & Louise Barrett eds., 2007).

61 Cf. Peter J. Richerson et al., Cultural Evolution of Human Cooperation, in GENETIC AND CULTURAL

EVOLUTION OF COOPERATION 357, 363-65 (Peter Hammerstein ed., 2003).

26

and still is traditionally allowed for within the evolutionary human behavioral sciences.62

This is a concern they seem to share with at least some commentators on comparative

law.63

Indeed, dual inheritance theorists are concerned first with the question of how

psychological mechanisms for cultural learning could have evolved. In their research they

consider “culture,” by way of a working definition, to consist of “information capable of

affecting individuals’ behavior that they acquire from other members of their species

through teaching, imitation, and other forms of social transmission.”64

Dual inheritance

theorists are particularly interested in finding out how individuals come to hold certain

cultural variants rather than others and in determining which decision rules, if any,

individuals adopt in so doing. At the risk of oversimplifying their actually quite complex

– in their own words even baroque – framework, two likely candidates for such decision-

making forces have been at the center of their theoretical and, more recently, empirical

investigations. This body of work suggests that, when confronted with complex and

62

On the differences and similarities between the major contemporary evolutionary approaches to human

behavior, and on the question of their compatibility, see, e.g., KEVIN N. LALAND & GILLIAN R. BROWN,

SENSE AND NONSENSE: EVOLUTIONARY PERSPECTIVES ON HUMAN BEHAVIOUR (2002); Matteo Mameli,

Sociobiology, Evolutionary Psychology, and Cultural Evolution, in THE OXFORD HANDBOOK OF

PHILOSOPHY OF BIOLOGY 410 (Michael Ruse ed., 2008); Rebecca Sear et al., Synthesis in the Human

Evolutionary Behavioural Sciences, 5 J. EVOLUTIONARY PSYCHOL. 3 (2007); Eric Alden Smith, Three

Styles in the Evolutionary Analysis of Human Behavior, in ADAPTATION AND HUMAN BEHAVIOR: AN

ANTHROPOLOGICAL PERSPECTIVE 27 (Lee Cronk et al. eds., 2000). Cf. also Daniel Nettle, Beyond Nature

Versus Culture: Cultural Variation as an Evolved Characteristic, 15 J. ROYAL ANTHROPOLOGICAL INST.

223 (2009).

63 Cf. Wilbert E. Moore & Joyce Sterling, The Comparison of Legal Systems: A Critique, 14 QUADERNI

FIORENTINI PER LA STORIA DEL PENSIERO GIURIDICO MODERNO 77, 101-02 (1985).

64 RICHERSON & BOYD, supra note 60, at 5.

27

variable environments, it may generally be adaptive for an individual to imitate the most

common behavior in a population (conformity bias) or to imitate the behavior of

successful individuals in the population (prestige bias). In this sense, human cultural

capacities can probably be regarded as adaptations,65

as being “designed” by natural

selection to solve some of the adaptive problems our ancestors faced.

Although other forces of cultural transmission as well as their respective strength in given

individual cases undoubtedly have to be taken into consideration,66

both these

transmission biases can help to maintain stable variation between different cultural

groups. Indeed, in Henrich’s words, “[w]hat matters is that within-group learning

processes generate locally stable equilibria (these can be polymorphic equilibria),67

and

that there are multiple stable equilibria that generate different group-level properties.”68

Insofar as cultural transmission mechanisms, like the ones just described, can lead to such

stable differences at the level of human cultural groups, on which cultural group selection

could then act, we have at least one plausible way of attaining group-level functionality.

65

Id. at 99-147 (chapter “Culture Is an Adaptation”).

66 A still very provisional list, for instance, also would have to include not only natural selection acting on

cultural variants at individual or group levels, but also other decision-making forces such as guided

variation and content-based biases. See, e.g., Lesley Newson et al., Cultural Evolution and the Shaping of

Cultural Diversity, in HANDBOOK OF CULTURAL PSYCHOLOGY 454 (Shinobu Kitayama & Dov Cohen eds.,

2007).

67 Meaning that not every individual within a group has to hold the same cultural variant; that there are

different “strategies” present in the population.

68 Joseph Henrich, Reply, 53 J. ECON. BEHAV. & ORG. 127, 134 (2004). See also the section of the target

paper itself, entitled Cultural Group Selection, Coevolutionary Processes and Large-Scale Cooperation, at

20-29 of the same issue.

28

Contemporary evolutionary functionalists thus are not only well aware of Ellickson’s

missing theoretical link,69

but they are also coming closer to filling it in.

Not surprisingly, quite a bit of the behavioral economic research mentioned in the

previous section can be situated within this larger gene-culture co-evolutionary

theoretical framework.70

This is especially the case for the cross-cultural research projects

that have been undertaken by Joseph Henrich and his colleagues. According to these

researchers,

The theory sketched above has two immediate empirical entailments.

First, people should rely on cultural learning to acquire significant

components of their social behavior. If they do not, the theory cannot even

get off the ground. Second, as a consequence of these adaptive learning

processes, societies with different historical trajectories are likely to arrive

at different social equilibria. As such, people from different societies will

tend to express different preferences and beliefs: one should be able to

measure between-group variation.71

69

See supra text accompanying note 49.

70 This general assessment would seem to be acknowledged even by authors who are otherwise critical of

some aspects of the work outlined here. See, e.g., Edward H. Hagen & Peter Hammerstein, Game Theory

and Human Evolution: A Critique of Some Recent Interpretations of Experimental Games, 69

THEORETICAL POPULATION BIOLOGY 339, 346 (2006).

71 Henrich et al., Economic Man, supra note 43, at 813. See also Gintis, supra note 46.

29

In short, the upshot of our argument is that the same cultural transmission mechanisms

generating the much-needed cross-cultural variability within the standard of comparison

to be used for comparative legal research itself72

could very well be the ones that are

capable of filling at least part of the mechanistic gap haunting traditional social science

functionalism.73

Moreover, introducing these contemporary evolutionary approaches to

human behavior to comparative legal theory promises to be able to address two other

problems commonly associated with the functionalist approach in comparative law, that

is, the issues of dysfunction and difference.

2. Function and Dysfunction

First, what is needed is a theoretical framework that is not restricted to having to assume

the unqualified functionality of legal systems, normative systems, or social contracts, but

that is also capable of dealing with non-functionality and dysfunctionality. This seems

quite important because legal history provides us with sufficient examples of legal rules

that are not, or at least not obviously, positively related to the needs of the societies they

supposedly aim to regulate.74

72

Supra text accompanying notes 34-35.

73 Cf. also Joseph Henrich et al., Five Misunderstandings About Cultural Evolution, 19 HUM. NATURE 119,

127-29 (2008).

74 See WATSON, supra note 4. Cf. also William Ewald, Comparative Jurisprudence (II): The Logic of Legal

Transplants, 43 AM. J. COMP. L. 489 (1995).

30

Quite evidently, both the reproach of (past) adaptationism75

and, alternatively, that of

(current) adaptivism76

are not unheard of in evolutionary circles. Nevertheless, some

authors never cease to be amazed by such types of criticism. Boyd and Richerson for

instance state the following:

Oddly, the existence of maladaptive and neutral variation has been used to

contest the Darwinian approach to social science, when in fact

explanations for maladaptations are the strongest arrows in our quiver!

Special creation is a good account of adaptations, one that most pre-

Darwinian scientists, including the youthful Darwin, subscribed to.

Darwin’s account was superior because it could account for maladaptation

– individual variation, vestigial organs, uselessly exaggerated ornaments,

and the like.77

Boyd and Richerson’s work clearly shows that cultural transmission – more specifically,

a combination of conformity bias and moralistic punishment – can quite naturally lead to

group-level norms and institutions that are neutral with regard to or even have deleterious

75

It should be noted here that we do not want to deny the possibility of adaptedness to past environments

leading to current dysfunction. Cf. in law, e.g., Simon Deakin, Evolution For Our Time: A Theory of Legal

Memetics, in CURRENT LEGAL PROBLEMS 2002, 1, 35-36 (M.D.A. Freeman ed., 2003).

76 On the difference between the two and their relation to various schools of thought within contemporary

evolutionary approaches to human behavior, see LALAND & BROWN, supra note 62, at 132-35, 139-45.

77 Peter J. Richerson & Robert Boyd, Cultural Evolution: Accomplishments and Future Prospects, in

EXPLAINING CULTURE SCIENTIFICALLY 75, 95 (Melissa J. Brown ed., 2008). See also ROBERT BOYD &

PETER J. RICHERSON, CULTURE AND THE EVOLUTIONARY PROCESS 277-79 (1985); RICHERSON & BOYD,

supra note 60, at 243-45.

31

effects for the individuals in a group and/or the group of individuals itself. Again, far

from all of the many possible cultural equilibria mentioned earlier are necessarily

beneficial.

Generally speaking, while cultural capacities are seen as evolved adaptations within this

gene-culture co-evolutionary framework, they simultaneously carry with them the

possibility of maladaptive population-level outcomes: “adaptation and maladaptation

have the same evolutionary roots.”78

Prestige-biased cultural transmission, for instance, is

potentially prone to a sort of “runaway” cultural process, leading – much like the peacock

male’s elaborate tail – to grossly exaggerated cultural traits signaling status.79

3. Similarities and Differences

Second, returning to our starting point regarding the diverging beliefs of comparative

legal functionalists and difference theorists,80

we believe that, contrary to what is often

78

RICHERSON & BOYD, supra note 60, at 148-90 (chapter “Culture Is Maladaptive”), at 151. Ironically, this

seems to lead these authors to distance themselves to some extent from functionalist schools in the

(evolutionary) social sciences. Cf. Richerson & Boyd, supra note 77, at 92.

79 While it is tempting to relate Boyd and Richerson’s prestige bias to Alan Watson’s work on the role of

prestige and elites in legal transplants, we shall refrain from pursuing this further here. But see on this

aspect of Watson’s work, e.g., Michele Graziadei, The Functionalist Heritage, in COMPARATIVE LEGAL

STUDIES: TRADITIONS AND TRANSITIONS 100, 121-24 (Pierre Legrand & Roderick Munday eds., 2003).

80 See supra text accompanying notes 6-8.

32

implied in the literature on comparative law,81

evolutionary theory constitutes an

important way to approach both cultural similarities and differences.

Perhaps somewhat surprisingly, given their basic point of departure that people

everywhere have to solve basically the same problems, even functionalist legal

comparatists seem to have but very little sympathy for – admittedly early – evolutionary

theoretically inspired attempts at forging a “science of universal comparative law.” An

edited, but still somewhat lengthy quotation from Konrad Zweigert and Hein Kötz’s

famous An Introduction to Comparative Law, where they address 19th

century

comparative legal ethnology, may serve to illustrate this:

At its outset legal ethnology rested on a specific belief ... now regarded as

invalid … that mankind, with its common psyche, follows the same path

of development in everything regardless of location or race. This belief led

scholars to focus on the so-called primitive systems of law, if systems they

can be called, still to be found among backward peoples. From the legal

practices of these peoples they drew conclusions about the condition many

ages ago, at a period from which we have no legal muniments or even

evidence of any kind, of the legal systems which are now highly

developed. … The basic tenet of ethnological legal studies, namely that all

81

Compare the way in which Masters (supra note 17, at 409) captures the view, common among legal

scholars, that ethology, with its appeal to human nature, can have little to offer to comparative law: “how

can a constant explain variations in law from one country or time to another?”. Cf. also E. Donald Elliott,

The Evolutionary Tradition in Jurisprudence, 85 COLUM. L. REV. 38, 74-75 (1985) (discussing A.G.

Keller, Law in Evolution, 28 YALE L.J. 769 (1919)).

33

peoples develop as it were in parallel from a common original condition,

was controverted principally by the so-called theory of cultural groups

(Kulturkreislehre) according to which every cultural development of any

group anywhere was, as a historical event, unique. … The more modern

view … is that the development of a legal system is the product of factors,

some of which are typical and occur everywhere, and some of which are

atypical. … [T]he typical factors are not natural and inevitable, like

Bastian’s elementary ideas, but historical: a group of people in a particular

geographical social and economic situation develops in a particular way

with regard to law as well as other things.82

Notwithstanding this, however, functionalist legal comparatists themselves have often

been accused of focusing too unilaterally on similarities between legal systems.83

It may be true that some contemporary evolutionary approaches to human behavior are

equally prone to finding human universals as were some of their late 19th

century

forebears, as well as sharing the latter’s fascination for hunter-gatherer and other

(erstwhile called “primitive”) small-scale societies. And it may also be the case that some

contemporary applications to law of certain evolutionary approaches to human behavior

82

ZWEIGERT & KÖTZ, supra note 6, at 9. For examples of some of the literature to which they are referring,

see the opening chapters of ALBERT KOCOUREK & JOHN H. WIGMORE EDS., EVOLUTION OF LAW: SELECT

READINGS ON THE ORIGIN AND DEVELOPMENT OF LEGAL INSTITUTIONS. VOLUME II: PRIMITIVE AND

ANCIENT LEGAL INSTITUTIONS (1915).

83 See, e.g., Graziadei, supra note 79, at 108-13; Pierre Legrand, The Same and the Different, in

COMPARATIVE LEGAL STUDIES: TRADITIONS AND TRANSITIONS 240, 245-50 (Pierre Legrand & Roderick

Munday eds., 2003).

34

yet again predominantly focus on finding universal aspects of legal systems around the

globe.84

But this does not mean that contemporary evolutionary approaches to human

behavior are inherently incapable of meaningfully dealing with cultural diversity – albeit

a meaningfulness of an altogether different kind than the interpretive one apparently

currently favored in large parts of the literature on comparative legal theory.85

Paraphrasing Wilson, “we need to reconcile two seemingly contradictory facts: the fact

that [legal] systems require innate psychological mechanisms, and the fact that they can

rapidly evolve by cultural evolution.”86

The contemporary evolutionary approaches to

human behavior we have discussed in this article are trying to do exactly this. Boyd and

84

Cf., e.g., Owen D. Jones, Proprioception, Non-Law, and Biolegal History, 53 FLA. L. REV. 831 (2001);

Owen D. Jones & Timothy H. Goldsmith, Law and Behavioral Biology, 105 COLUM. L. REV. 405, 474-75

(2005) (“[B]ehavioral biology – and the insights it offers about the relentless effects of evolutionary

processes on species-typical patterns of predispositions – provides ample support for believing that biolegal

histories connect the world’s disparate legal systems together. Those systems are different, but as closely

related as are all human populations on the planet.”). Similarly, while Caterina (supra note 10)

convincingly demonstrates some flaws in difference theoretical thinking, he pays rather less attention to the

limitations of Evolutionary Psychology and its extensions in anthropological theory.

85 Not to put too fine a point on it, we find Whitman’s approving statement that difference theorists “have

made comparative law a little more like cultural anthropology, have given it more sensitivity to the deep

differences in human value-orders” (James Q. Whitman, The Neo-Romantic Turn, in COMPARATIVE LEGAL

STUDIES: TRADITIONS AND TRANSITIONS 312, 313 (Pierre Legrand & Roderick Munday eds., 2003))

problematic, given that statements like this tend to obscure the differences of opinion and the variety of

approaches within the field of (cultural) anthropology itself. For a lucid and nuanced exposition of some of

the issues at stake, see DAN SPERBER, EXPLAINING CULTURE: A NATURALISTIC APPROACH 9-55, 151-55

(1996).

86 WILSON, supra note 47, at 25. This is a project Wilson sometimes refers to as “evolutionary social

constructivism”, on which see David Sloan Wilson, Evolutionary Social Constructivism, in THE LITERARY

ANIMAL: EVOLUTION AND THE NATURE OF NARRATIVE 20 (Jonathan Gottschall & David Sloan Wilson

eds., 2005); Andreas De Block & Bart Du Laing, Paving the Way for an Evolutionary Social

Constructivism, 2 BIOLOGICAL THEORY 337 (2007).

35

Richerson have convincingly argued that evolutionary theories of cultural change need

not be opposed to interpretive and particularistic historical explanations of culture (and

differences between human societies). Indeed, evolutionary processes can and, more

often than not, do give rise to unique, contingent pathways of cultural evolution.87

V. Conclusion

It was the observation that functionalist legal comparatists seem fairly indifferent to the

substantiation of their various claims and beliefs that prompted this study. It led us to

investigate whether behavioral economics and contemporary evolutionary approaches to

human behavior could be engaged to strengthen the functional method of comparative

law, as regards both its empirical content and its theoretical framework.

In the preceding sections, we may have created the impression that we somewhat

overzealously have come to share the view, not uncommon among the participants at the

1900 Paris International Congress of Comparative Law, that “social science would

establish general laws that show how legal institutions appear, develop, and disappear,”88

87

See Robert Boyd & Peter J. Richerson, How Microevolutionary Processes Give Rise to History, in

HISTORY AND EVOLUTION 179 (Matthew H. Nitecki & Doris V. Nitecki eds., 1992). Cf. for an in some

respects similar argument by a law and economics scholar Richard H. McAdams, Cultural Contingency

and Economic Function: Bridge-Building from the Law & Economics Side, 38 LAW & SOC’Y REV. 221

(2004).

88 David S. Clark, Nothing New in 2000? Comparative Law in 1900 and Today, 75 TUL. L. REV. 871, 895

(2001).

36

or indeed even that such “laws”89

have in the meantime already been successfully

established. So perhaps it is no more than appropriate to restate by way of conclusion the

rather more modest claims we have made in this article.

We consider behavioral economics to be of marked interest for functionalist legal

comparatists hoping to move beyond mere beliefs in the universality of human behavior

and societies. At the very least, the findings of behavioral economics could be employed

in establishing legally sufficiently neutral and empirically informed standards of

comparison. The somewhat more recent interest this line of research has taken with the

cultural variability of the behaviors it studies holds an even greater potential for legal

comparatists. For one, on a general level, these findings challenge the long-lasting quest

by legal comparatists for finding fixed standards of comparisons. Moreover, as this

research is developing, it attests to the feasibility of relating the cross-culturally obtained

data from behavioral economics with more specified macro-level institutional variables,

which can involve features pertaining to the legal systems of the cultures studied.

Contemporary evolutionary approaches to human behavior, for their part, in our view

provide an appropriate framework within which to analyze, and compare, the results

obtained from cross-cultural economic experiments. While much work remains to be

done, at least some of these approaches are also able to shed new light on problems

89

Cf., for that matter, BOYD & RICHERSON, ORIGIN AND EVOLUTION OF CULTURES, supra note 60, at 283

(“[E]volutionary scientists do not try to jam ... complexity into the straitjacket of general laws like those in

physics. Instead, they aim to develop a toolkit of models and a collection of related empirical

generalizations. The phenomena of evolution are not only complex but also diverse. No model and no

empirical generalization is guaranteed to hold from one case to the next.”).

37

commonly associated with functionalism, in or outside of comparative law, perhaps most

prominently the problem of missing mechanisms. Besides, trying to adjust the negative

image evolutionary theory seems to suffer from in current comparative legal theory, by

introducing such a contemporary evolutionary theoretical framework, appears worthwhile

in its own right. Put differently, and paraphrasing Annelise Riles, there is really no reason

why comparative legal scholarship tailored for these contemporary evolutionary ideas

that clearly postdate the introduction of modernist social scientific paradigms, should, for

that reason, remain as amateuristic as the use of the old evolutionary paradigm in

comparative law nowadays must seem.90

While it is perhaps premature to claim that the framework we present above will

conclusively unify the various human social and behavioral sciences,91

we do feel that we

have provided some good reasons why it is still very worthwhile to pursue in comparative

law what Günter Frankenberg rather disparagingly has called “cognitive control.”92

90

Cf. Annelise Riles, Encountering Amateurism: John Henry Wigmore and the Uses of American

Formalism, in RETHINKING THE MASTERS OF COMPARATIVE LAW 94, 94 n.1 (Annelise Riles ed., 2001).

91 See Gintis, supra note 46.

92 Günter Frankenberg, Critical Comparisons: Re-thinking Comparative Law, 26 HARV. INT’L L.J. 411,

421-26 (1985).