This Article begins to fill that void by considering how the most influential idea of the last century, Charles Darwin's theory of biological evolution, has affected the way lawyers think about law. The fountain head for Anglo-American theories of legal evolution of the "social" variety was the nineteenth century German “historical school" of jurisprudence, founded by Friedrich Karl von Savigny. Rather, legal evolution means only that the law continually adapts to changes in the environment. By making assumptions and developing a formal, mathematical model of common law evolution, Cooter and Kornhauser prove that evolutionary pressures arising from settlement decisions by litigants "are insufficient to cause the legal system to adopt and retain the best legal rule without the help of judges. Keller introduces his socio- biological theory of legal evolution by quoting Holmes, and announcing that he is planning on "asserting and maintaining" Holmes’ implication "that law is evolutionary. Except for Brown’s comment, Keller's theory of legal evolution attracted surprisingly little attention even though it anticipated many of the themes of sociobiology which were to create a storm of intellectual controversy half a century later.

The government of the United States was constructed upon the Whig theory of political dynamics, which was a sort of unconscious copy of the Newtonian theory of the universe. In our own day, whenever we discuss the structure or development of anything, whether in nature or in society, we consciously or unconsciously follow Mr. Darwin. Woodrow Wilson (1908).¹

Law is a scavenger. It grows by feeding on ideas from outside, not by inventing new ones of its own. How borrowed ideas -- not political and social theories, but abstract ideas borrowed from other disciplines -- affect the law is a topic scholars have over looked. This Article begins to fill that void by considering how the most influential idea of the last century, Charles Darwin's theory of biological evolution, has affected the way lawyers think about law.[2]

Today the idea that law "evolves" is so deeplying rained in Anglo-American legal thought that most lawyers are no longer even conscious of it as a metaphor. We speak of the law “adapting" to its social, cultural, and technological environment without the slightest awareness of the jurisprudential tradition we are invoking. The central purpose of this Article is to bring to light the evolutionary tradition in Anglo-American jurisprudence, which underlies many of our assumptions about law.[3]

The first step will be to trace the metaphor of biological evolution as used by legal writers who have influenced American law. Reviewing evolutionary theories of law has several purposes. The first is essentially archival: to reclaim from obscurity and to evaluate several evolutionary theories of law which have either been forgotten or misunderstood. But there is also a second, more subtle goal: to define and thereby to create an evolutionary tradition in jurisprudence with a cumulative power that transcends the individual works.[4]

It was considered that the theories about the nature and sources of law to be “evolutionary" if they propose that the law is shaped by its environment in a way that is analogized explicitly to the theory of evolution in biology namely, the theory, usually attributed to Charles Darwin, that the forms of living things are shaped by environmental conditions, not by the design choices of a Creator. By referring to legal theories as “evolutionary," it does not mean to imply, however, that they are based on a correct understanding of evolutionary theory in biology. My central concern is the effect that evolutionary ideas have had on legal thought, not whether the lawyers got their biology right.[5]

Necessarily omitted from this review is the much larger body of legal theories that express parallel thoughts but without explicit reference to the biological theory of evolution. Nor is it possible in a work of this length to undertake the more basic anthropological inquiry into how lawyers and judges use evolutionary metaphors. Instead, the focus here in on formal theories of law based on self-conscious analogies to evolutionary theory in biology.[6]

It is possible to subdivide theories of legal evolution into four basic groups, which are basically known as the social, the doctrinal, the economic, and the socio- biological approaches to legal evolution. These four categories represent different schools of evolutionary thought; each draws a different analogy between biological evolution and law.[7]

The "social" approach to legal evolution is the oldest of the four. It is characterized by the assertion that law is not an autonomous system, but an integral part of the social life of a community. In these theories, it is not so much the law that evolves, as it is society. As the language, culture, political system, and economic structure of society evolve the law changes with them.[8]

The fountain head for Anglo-American theories of legal evolution of the "social" variety was the nineteenth century German “historical school" of jurisprudence, founded by Friedrich Karl von Savigny. The historical school proposed that, rather than building on abstract speculation about states of nature, jurisprudence should study the historical foundations of law. Savigny, a professor of Roman law at the University of Berlin from 1810 through 1842, wrote several multi-volume treatises on Roman legal history, but his influence on Anglo-American jurisprudence rests primarily on a minor political tract, published in 1814, and translated into English in 1831 under the title of the Vocation of Our Age for Legislation and Jurisprudence.[9]

Savigny advocates "an organically progressive jurisprudence," an idea that struck a responsive chord for English and American lawyers. They interpreted Savigny as defending the common law, as opposed to civil law codes. Savigny's argument, however, is not actually a brief for the common law method. Savigny wrote to attack a proposal that all the German principal ties should adopt one unified code of laws following the overthrow of Napoleon. He claimed that the present age was "not qualified to frame a code" which would establish the law for all time. Drawing on Roman legal history, Savigny argued that legal systems pass through several stages before they reach a period in which codification is appropriate. Early nineteenth century Germany, according to Savigny, had not yet reached the stage of mature legal development necessary before codification would be successful.

Savigny's theory of stages of legal development is built on a self-conscious analogy to evolution in nature, albeit the pre-Darwinian understanding of evolution which lacked the concept of natural selection: "In recent times, the view has become common that in the beginning all societies lived in an animalistic state, and from there have come to a tolerable existence through gradual evolution, and finally to the heights upon which we now stand." The word which Savigny uses again and again to describe legal charge is Entwicklung, which in context should be translated as "evolution."

Savigny attacks the proposal to codify German law as an outgrowth of the spirit of radical change which swept across Europe following the French Revolution, claiming that, in a "blind rage for improvement, sense and feeling of the greatness by which other times were characterized, as also of the natural evolution of communities and institutions, all, consequently, that is wholesome and profitable in history, was lost." He sees this spirit of radical change as reflecting a false, positivist jurisprudence: "According to this theory, all law, in its concrete form, is founded upon the express enactments of the supreme power." Savigny proposes that law is not the arbitrary creation of government officials, but an integral part of the “spirit of a people," what we would now call "culture." According to Savigny, law and culture evolve together.

But this organic connection of the law with the essence and character of a people manifests itself also over time, and here also it is to be compared to language. As with language, so too the law does not stand absolutely still for even an instant, but undergoes the same movement and evolution as every other aspect of a people, and this evolution is subject to the same law of internal necessity as every earlier development, therefore, the law grows forward with a people, constitutes itself out of them, and finally becomes extinct as a people lose their individuality.[10]

Although Savigny does not present any evidence to support his theories, he does identify two distinct forces which he maintains underlie the evolution of law. Law is first developed by custom and conventional morality, next by jurisprudence, everywhere, therefore, by internal silently-operating powers, not by the arbitrary will of a law-giver."

Savigny's theory was revolutionary for its suggestion that law was not the intentional creation of governors, but somehow evolved out of the common spirit of a people. Nevertheless, by modern standards Savigny's work seems hopelessly metaphorical and unscientific. Savigny is vague about the mechanisms which cause law to evolve (and indeed, about what the concept of legal evolution really means). Moreover, he never explains why the codification movement which he opposed was not as "natural" an outgrowth of the spirit of the people as any other change.[11]

Savigny’s thesis has been criticized on a number of grounds:

Saving is considered by many to be the greatest jurist of nineteenth century. Ihering said that with the appearance of savigny’s earliest work ‘Das Rhect Des Bestizes’ in 1803 modern jurisprudence was born.

His theory came as a powerful reaction against 18^th century’ rationalism and principles of natural law’, the advocates of which tried to establish a legal theory of universal application without any consideration of time and place. Prof. Allen rightly says that ‘the historical movement in jurisprudence may be called the revolt of fact against fancy’. The view that the source of law is the institutive sense of possessed by the community in negative the conception of the unitary sovereign whose command is law. He made the’ juristic world perpetually conscious of the iceberg quality of law, with its present pinnacle concealing and denying the hidden nine-tenths of it’s past’.[18]

The great truth that the theory of Volksgeist contains is that a nation’s legal system is greatly influenced by the culture and character. Savigny was mainly occupied with how law becomes and whether it tends, or what the conscious effort can make it to tend, and his thesis in this respect still substantially holds good.[19]

It was the misfortune of this theory of historical school, later on, influenced many jurists. It was after Savigny that the value of the historical method was fully understood. Apart from his followers in his own country and Lord Bryce, and many others who made studies of various legal systems on historical lines and purged them of many of the exaggerations of Savigny’s theory and traced the course of evolution of law in various societies. Pollock, Maitland, Holdsworth and Holmes in their works pointed out that the course of development of common law was determined by social and political conditions of particular time.[20]

Warning against hasty legislation: The view that the law is closely connected with the people and it closely evolves contained the germs of future sociological theories. That is why Savigny is called by some as Darwinian before ‘Darwin and a sociologist before sociologist.’ After Savigny, Ehrlich stressed the importance of the study of ‘living’, which, he said, is different from the dry skeleton of law, that is, law, in its formal shape. Savigny sounded a note of warning against hasty legislation and the introduction of revolutionary ideas and aspirations based on abstract principle. His influence in Germany was great and the codification was delayed for a long time.[21]