Thursday, March 13, 2008

James C. Carter's Evolutionary Jurisprudence

Today, I am going to Indianapolis to be the discussion leader for a Liberty Fund conference on James Coolidge Carter's book Law: Its Origin, Growth, and Function. Carter was one of the most prominent American lawyers at the end of the nineteenth century. He wrote his book as a series of lectures to be delivered at Harvard Law School in 1905, although he died before he could deliver the lectures.

Carter's primary argument is that all law is ultimately rooted in custom. In defense of customary law, he argues against attempts to codify the rules of common law and thus replace unwritten law with the written law of statutory legislation. He thus opposes proponents of "positive law"--like Jeremy Bentham and John Austin--who claim that all law is ultimately made by command of the sovereign lawmaker. He also opposes proponents of "natural law"--like Cicero and William Blackstone--who claim that all law is ultimately discovered as part of the natural order of things.

But even as Carter elevates customary law over both natural law and positive law, he implicitly concedes the partial truth in the natural law and positive law positions. The order of custom evolves from the natural dispositions and capacities of human beings as they discover over long periods of time the customary norms of social order. And along the way, human beings learn how to deliberately design rules of order that perfect the evolutionary tendencies of human nature and human custom.

Carter thus moves towards a view of social and legal order as rooted in nature, custom, and reason, which conforms to what I have proposed as the three levels of order in which custom is constrained by nature, and reason is constrained by both nature and custom. This is implicit in Darwin's account of the evolution of human morality as rooted in the complex interaction of natural evolution, cultural evolution, and deliberate choice.

The evolutionary character of Carter's jurisprudence becomes clear when he acknowledges his debt to Alexander Sutherland's book The Origin and Growth of the Moral Instinct. Sutherland indicates that his book elaborates the reasoning of Darwin in The Descent of Man to explain the evolution of the moral sense.

Traditionally, the philosophy of law has been divided into competing intellectual camps defending natural law, customary law, or positive law as the ultimate ground of all law. An evolutionary jurisprudence would reconcile these opposing positions by showing how they each represent a partial truth, because a full account of legal order requires a complex interaction of nature, custom, and reason.

I have tried to sketch such an evolutionary jurisprudence in various parts of Darwinian Natural Right and Darwinian Conservatism.

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