Darwin-L Message Log 1:98 (September 1993)

Academic Discussion on the History and Theory of the Historical Sciences

This is one message from the Archives of Darwin-L (1993–1997), a professional discussion group on the history and theory of the historical sciences.

Note: Additional publications on evolution and the historical sciences by the Darwin-L list owner are available on SSRN.

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<1:98>From DARWIN@iris.uncg.edu  Sat Sep 11 16:30:22 1993

Date: Sat, 11 Sep 1993 17:36:41 -0400 (EDT)
From: DARWIN@iris.uncg.edu
Subject: Historical jurisprudence and evolution
To: darwin-l@ukanaix.cc.ukans.edu
Organization: University of NC at Greensboro

I was very pleased to read Peter Junger's introduction and his discussion of
the history of law, because I have just recently come to see how well the
history of law fits into the general domain of the historical sciences.  I have
almost no knowledge of law and legal terminology, but have come across a couple
of examples that illustrate the parallels between historical jurisprudence and
evolutionary history very clearly.  I will prefix them with a quotation from
Darwin that evolutionary biologists will know, a quotation that describes the
consequences of adopting an historical view of living things:

"When we no longer look at an organic being as a savage looks at a ship, as at
something wholly beyond his comprehension; when we regard every production of
nature as one which has had a history; when we contemplate every complex
structure and instinct as the summing up of many contrivances, each useful to
the possessor, nearly in the same way as when we look at any great mechanical
invention as the summing up of the labour, the experience, the reason, and even
the blunders of numerous workmen; when we thus view each organic being, how far
more interesting, I speak from experience, will the study of natural history
become!"  (Darwin, _Origin of Species_, 1859:485-486)


Compare Darwin's perspective with the following two legal examples, the first
one of which concerns Sir Henry Maine, a British Victorian legal scholar, known
for his book _Ancient Law_:

"No one who is interested in the growth of human ideas or the origins of human
society can afford to neglect Maine's _Ancient Law_.  Published in 1861, it
immediately took rank as a classic, and its epoch-making influence may not
unfitly be compared to that exercised by Darwin's _Origin of Species_.  The
revolution effected by the latter in the study of biology was hardly more
remarkable than that effected by Maine's brilliant treatise in the study of
early institutions.  Well does one of Maine's latest and most learned
commentators say of his work that 'he did nothing less than create the natural
history of law.'  This is only another way of saying that he demonstrated that
our legal conceptions -- using that term in its largest sense to include social
and political institutions -- are as much the product of historical development
as biological organisms are the outcome of evolution.  This was a new
departure, inasmuch as the school of jurists, represented by Bentham and
Austin, and of political philosophers, headed by Hobbes, Locke, and their
nineteenth-century disciples, had approached the study of law and political
society almost entirely from an unhistoric point of view and had substituted
dogmatism for historical investigation.  They had read history, so far as they
troubled to read it at all, 'backwards,' and had invested early man and early
society with conceptions which, as a matter of fact, are themselves historical
products."  (J. H. Morgan, "Introduction", p. 1, in: Henry Maine, _Ancient
Law_, Everyman's Library edition, 1917)


The second legal example comes from Oliver Wendell Holmes, Jr., who was born in
Boston in 1841 and eventually became an associate justice of the United States
Supreme Court.  Holmes was a founding member of the "pragmatist" school of
philosophers who, under the influence of Chauncey Wright, William James,
Charles Sanders Peirce and others, began to apply a generally Darwinian,
historical, populational, and sometimes progressivist view of the world to many
spheres of human activity.  For "logic" in the first sentence try reading
"design", and for "experience" "variation and selection":

"The life of the law has not been logic: it has been experience.  The felt
necessities of the time, the prevalent moral and political theories, intuitions
of public policy, avowed or unconscious, even the prejudices which judges share
with their fellow-men, have had a good deal more to do than the syllogism in
determining the rules by which men should be governed.  The law embodies the
story of a nation's development through many centuries, and it cannot be dealt
with as if it contained only the axioms and corollaries of a book of
mathematics.  In order to know what it is, we must know what it has been, and
what it tends to become.  We must alternately consult history and existing
theories of legislation.... In Massachusetts to-day, while, on the one hand,
there are a great many rules which are quite sufficiently accounted for by
their manifest good sense, on the other, there are some which can only be
understood by reference to the infancy of procedure among German tribes, or to
the social condition of Rome under the Decemvirs." (Oliver Wendell Holmes, Jr.,
_The Common Law_, 1881:1-2)

Bob O'Hara, Darwin-L list owner

Robert J. O'Hara (darwin@iris.uncg.edu)
Center for Critical Inquiry and Department of Biology
100 Foust Building, University of North Carolina at Greensboro
Greensboro, North Carolina 27412 U.S.A.

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