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    Draft version September 2009 – do not quote or cite without permission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

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    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

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    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 theorists 10

    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 aspir