There are two fundamental views of the origins of law



By Troy Camplin – Contributor –

There are two fundamental views of the origins of law. There are those who believe that all laws are created by some individual at some particular time and that the law is handed down from that lawmaker. This is a top-down theory of the origins of law. Then there are those who believe that all laws emerge from the bottom-up. But that theory is going to require more than a single line to explain.

Human beings are a hypersocial species of ape. That means our social groups can go well beyond the basic hierarchies of other apes in both size and structure. Chimpanzee social groups can only reach around forty members before the group will split. This is because their social hierarchies cannot be maintained with groups larger than that. Human social groups, on the other hand, can grow well beyond this size. Because we have language, we can maintain rigid hierarchies of up to 150 people. Beyond that size, hierarchies become less and less rigid and more and more complex.

At a certain point, the entire hierarchical network rearranges into what is known as a scale-free network. Very interesting things happen when you move from a hierarchy to a scale-free network. For one, you tend to move from a zero-sum to a positive-sum game. If I am successful in a rigid hierarchy, it is likely at the expense of someone else in that hierarchy. To be leader, I have to get rid of the current leader. But in scale-free networks, I can move up without it harming anyone else; more, my moving up often means others move up with me. Scale-free networks are thus wealth-producing. That wealth may be material wealth, but it may also be cultural, spiritual, artistic, etc. wealth as well. This is all possible because people are hypersocial.

These kinds of social orders – also known as spontaneous orders – are also possible because of our evolved nature. Human beings evolved a number of instincts that drive our actions and interactions. All humans engage in mutually-beneficial trade, for example. This helps create the underlying conditions for the emergence of market economies. Another contributing factor is our varying tendency to trust. All social species have trust – trust for other members of their group. Here humans are no different. However, humans can also extend that trust to unknown others. To the extent any group does this, that group is much more likely to give rise to highly cooperative societies and, thus, to very efficient market economies.

According to the bottom-up view of the emergence of law, humans have evolved instincts which give rise to actions and interactions that result in particular expressions of those instincts. The Westermarck effect is an evolved tendency to avoid incest, which gave rise to all of the various incest taboos around the world. The incest taboo is universal, but there are variations in its expression from culture to culture. In some places you can marry first cousins; in other places that is illegal. But in no place can you marry a sibling or parent. The rare exceptions, such as the alternating generations of the Egyptian pharaohs, involved situations where the exceptions were considered to be more divine than human (and one consistent feature of divine relationships in polytheistic religions is the presence of incest). But do note that the individuals were inevitably considered to be divine and, therefore, not human.

All of the above points to the difficulty in fully understanding the emergence of bottom-up rules or law. It is how common law emerges. It is how the vast majority of our social rules emerge. Nobody came up with them. They evolved naturally – biologically, psychologically, and socially. But that requires understanding a set of very complex interactions.

It is no wonder, then, that the vast majority of people prefer top-down explanations. They are wrong, but they are very easy to understand.

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