Comparative Law, Behavioural Economics and Contemporary Evolutionary Functionalism

Abstract

In comparative legal theory, functionalists set about their inquiries from a belief that certain aspects of human behaviour and human societies are universal and that the legal system of every society thus is confronted with basically the same problems, while difference theorists start from a belief that human behaviour and human societies are fundamentally culture-dependent and that each legal system thus is a unique cultural product. However, neither of these approaches shows much interest for empirical support for their respective convictions. In an attempt to save at least some of the scientific aspirations of comparative legal research, we argue that (evolutionary informed) behavioural economics and contemporary evolutionary approaches to human behaviour could be of service in this respect in at least two ways. First, evolutionary informed behavioural economics can prove of assistance in the search for legally sufficiently neutral and empirically better validated standards of comparison that at the same time are inherently variable themselves. Secondly, and admittedly more tentatively, contemporary evolutionary approaches to human behaviour could prove useful in rehabilitating some sort of evolutionary functionalism in comparative law, by incorporating cultural transmission mechanisms into its theoretical framework.