Evolutionary Legal Theory

Until the 19th century, it was quite evident that the dominant form of legal theory was that based in the theory of the natural law. However, Charles Darwin’s best known work, on the Origin of Species by Means of Natural Selection upon release would have a profound impact on the established tradition. During this period of scientific discovery and advancement, the law would follow in an attempt to emulate the scientific method.

In Western legal tradition prior to Darwinism, philosophers and legal scholars alike searched for absolute principles and consistency of law. When the theory of evolution entered the legal sphere these ‘natural law’ priniples were essential abandoned. The evolutionary process that replaced the natural law approach looked for changes in the ‘right’ way, it viewed society and laws as something more organic.

A practical example of this is the ‘living document’ approach to constitutional interpretation. This method of interpretation took the approach that a constitution should be interpreted to fit the legal climate and needs of the people of the time, not as a document which outlines the scope, functions and limitations of government. The ‘living document’ extended to a principle of ‘living law’ which operated on similar circumstances; lawmakers and judges too were to give a more broad approach to legal interpretation and development to fit the needs and circumstances of the day.

The concept of evolution in a legal sense, perhaps fittingly, has taken various forms throughout its lifetime. The evolutionary school of legal thought paved the way for other theories of law, such as the School of German Legal Historicism and National-Socialist (Nazi) jurisprudence.


Prominent Thinkers:

Sir Henry Maine     Oliver Wendell Holmes     Auguste Comte    Émile Durkheim     Herbert Spencer


See Also:

Legal Historicism     National Socialist Jurisprudence     Marxism