Darwin-L Message Log 1:205 (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.

<1:205>From junger@samsara.law.cwru.edu  Fri Sep 24 13:07:41 1993

Date: Fri, 24 Sep 93 14:05:23 EDT
From: junger@samsara.law.cwru.edu (Peter D. Junger)
To: darwin-l@ukanaix.cc.ukans.edu
Subject: Re: Re: Heritability and cultural evolution

I think that it may confuse things to speak of cultural inheritance as
if the ancestors and the heirs that one is concerned with are biological

Thus when I look at the evolution of the forms of action at common law,
I can see that one form ("trover and conversion", for example) is
descended from another earlier form (which would be "trespass on the
case") and that the newer form has "inherited" many of the
characteristics of the older form (in the example, the form of trover
and conversion is identical to the form of trespass on the case; the
only difference being that the "description" of the case has become a
fixed formula in trover and conversion, while in trespass on the case
the pleader may still insert any novel allegations that won't fit into
one of the standard writs). For another example, I gather that computer
programmers using a language with "objects" like C++, actually use the
word "inheritance" to describe the relationship between two objects.
(And whatever those objects may be, they are not biological critters.)

It seems to me that the difficulty with discussions of cultural
inheritance lies in choosing the objects whose evolution is to be
studied.  If the right sort of cultural object is chosen, then there
may well be little problem in specifying the mechanics--the selective
processes--that drive the evolution of those objects.  Thus in the case
of the forms of actions, the selection is done primarily by plaintiffs'
lawyers picking a form of action that will come closest to accomplishing
what their clients want (but the selection will also be influenced by
the efforts of defendants' lawyers to find ways to nullify the
advantages of a particular writ) and by the judges of each of the three
different common law courts trying to come up with writs that will bring
business into their particular courts.  If on, the other hand, one tries
to trace the evolution of the concept of something like "contracts", one
is not likely to find any satisfactory mechanism.  (And that may be
because one cannot find any "population" that embodies "contracts" the
way that the population of "law suits"--or "legal actions"--embodies the
forms of action.)

This is very sketchy.  I have not really thought the matter through.
But I have the feeling that I am on the track of something.

Please tell me if I have gone astray.

Peter D. Junger

Case Western Reserve University Law School, Cleveland, OH

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