Zamboni, Mauro --- "Making Evolutionary Theory Useful for Legal Actors" [2011] ELECD 248; in Zumbansen, Peer; Calliess, Gralf-Peter (eds), "Law, Economics and Evolutionary Theory" (Edward Elgar Publishing, 2011)

Book Title: Law, Economics and Evolutionary Theory

Editor(s): Zumbansen, Peer; Calliess, Gralf-Peter

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848448230

Section: Chapter 12

Section Title: Making Evolutionary Theory Useful for Legal Actors

Author(s): Zamboni, Mauro

Number of pages: 25

Extract:

12. Making evolutionary theory useful for legal
actors
Mauro Zamboni*

As pointed out by many scholars, there is a general skeptical attitude of a large sector
of the legal scholarship towards the evolutionary approach.1 The main objective of this
chapter is to make the first step in the direction of making evolutionary theory more
useful for and therefore sympathetic to lawyers and legal actors in general. This step
consists in elevating evolutionary theory from the status of external investigation of the
legal phenomenon to being a fundamental contributor to the legal discourse also in its
normative parts. The focus in particular is to understand why, though the evolutionary
theory approach to law has been around quite a while in the legal scholar's discussion, the
legal world has left it at the front step of the legal house.2 Based on this analysis, the task
is also to evaluate whether it is possible, after certain adjustments, to invite evolutionary
theory into the larger family of legal thinking, in particular as part of the legal theories
of law-making.
As stressed by many critiques, it is possible to detect in most of the evolutionary
approaches to the law some hidden normative components.3 For example, when using
statements such as `legal uniformity . . . should to a large extent come about in an organic
way,' evolutionary scholars implicitly assume a normative proposal (i.e. that `the organic
way ought to be pursued') while, at the same time, they hide the criteria according ...