Work-In-Progress: Evolution and Common Law

Abstract

It is a trite observation that time and tide wait for no one. Canute learned this much to his chagrin. And every other would-be commander or commentator is well advised to remember this mundane wisdom. Indeed, change is one of the few indisputable facts of life. In truly paradoxical fashion, it can safely be reported that change is a constant feature of the world. Whether considered locally or over vast eons of time, change is what makes the world what it is. The central challenge, therefore, for any one who wishes to understand or affect the world, is to come to terms with change and incorporate its dynamics into any account of how the world, or its constituent parts, work. Consequently, any account of legal and biological life that offers an important role for the fact and effects of change will soon itself become a victim of historical change. Nevertheless, human attitudes to change are no less complex or perplexing than the phenomenon of change itself. Being part of the changing world, human views on the hows and whys of change are themselves constantly changing. At the heart of this intellectual challenge is the persistent effort to fathom the relation, if any, between "change" and "progress." While there is a wide, if often begrudging, acceptance that change is inevitable and inexorable, there is also considerable disagreement over not only the pace and dynamics of such movement, but also its direction and putative destination. This debate and controversy is as heated in law as it is in any other field of study. In a world in which law has a relatively privileged place in addressing and channelling political power, the issue of whether the common law is merely changing or making progress is of considerable moment.