Evolutionary Law and Economics -- Where Do We Stand? Where Should We Go?
It is now 30 years ago that Paul Rubin and George Priest have published their seminal papers on “Why is the Common Law Efficient”. Since then a large number of papers have been written from an economic perspective on how the common law, and how statutory law, evolves. I subsume this wide branch of literature under the label of “Evolutionary Law and Economics”. Parts of this literature have benefited from new insights in evolutionary economics, but other parts have also developed independently. Some normative insights from evolutionary Law and Economics have also migrated in the reverse direction. In this paper I give an overview of the field of evolutionary law and economics as it has evolved itself over the last three decades and as one might expect further insights from more research.
I will start my review with the positive theoretical evolutionary approaches we find in law and economics. I will then turn to the historical evidence supporting these ideas – or rejecting them. The interaction of law and social norms deserves an own section as much as the idea of competing legal orders. In particular in the discussion of this last idea, normative perspectives are prevalent. I therefore consider a number of normative questions in the last section before the conclusions. In each of these sections of the review, I will raise both leading questions of this paper: Where do we stand? and Where should we go?