“A CRITICAL ANALYSIS OF THE EVOLUTION OF

LAW THEORY”

GROUP MEMBERS-

Tanisha Mukherjee
Aishi Das
Sakshi Singh

(Semester 2)

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ABSTRACT

With the full-fledged manifestos by Piketty and Guldi & Armitage

serving as points of reference, this manifesto, or tiny manifesto, uses the
historical analysis of American penalty as an example to illustrate legal
history as a mode of critical examination of law. In this context,
historical analysis of law is seen as one form of critical analysis, among
other forms such as comparative, economic, philosophical, sociological,
ethical, and so forth. Stated differently, historical analysis of law is not a
subspecies of law or history, but rather a form of legal scholarship in
and of itself. It is a thorough analysis of the law from a certain critical
vantage point; it is a method of applying the law rather than applying
the law to things. In this respect, legal history is less legal history than
historical jurisprudence, and law and history is less legal history than
law as history. In this respect, legal history is less legal history than
historical jurisprudence, and law and history is less legal history than
law as history. There is an interesting parallel between the processes of
biological evolution and the formation of legal systems, according to the
evolutionary theory of law. Legal systems adjust to meet the
requirements of evolving society, much as living things do to survive and
thrive in ever-changing settings.
Legislation, judicial precedent, and cultural transmission are examples
of evolutionary mechanisms that facilitate the cross-generational
transfer of successful legal innovations for the aim of both progressive
change and continuous existence.
Therefore, the theory of legal evolution offers a useful framework for
examining the natural development of legal systems and the conflicts
that arise between tradition and modernity in the sake of social fairness
and peace.

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EXPLANATION
The evolution of contract law serves as an outstanding illustration of the

evolutionary theory of law. It began in ancient societies as a basic, unofficial

practice and developed into a sophisticated system that successfully handles

the ever-increasing complexity of transactions. From the early civilisations of

the Babylonians and Romans to the present, contract law has successfully

adapted to new agreements and problems, including those brought about by

the Industrial Revolution and globalisation, while also altering to reflect

shifting societal standards. The ideas of the evolutionary theory of law are

exemplified by the way that variation, selection, inheritance, and adaptation

have refined contract law and demonstrated its dynamic nature and

adaptability to changing societal demands.

Oliver Wendell Holmes Jr.

The 'founder' of the evolutionary theory of law is frequently recognised as

Oliver Wendell Holmes Jr., a highly prominent American jurist who was an

Associate Justice of the US Supreme Court from 1902 to 1932. Holmes made

clear in his writings and judicial rulings that law is an evolutionary process,

even though he did not develop a coherent theory of law based on evolution.

In his well-known work Holmes introduced the idea that law is dynamic and

develops over time in response to societal, economic, and cultural shifts in

"The Common Law" (1881). His renowned description of the common law as a

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process of "judicial brooding" over the disorganised body of law stressed the

significance of taking into account the social context and historical evolution

of legal concepts. Later researchers developed more structured theories of

evolutionary jurisprudence, drawing on a variety of disciplines like biology,

psychology, and anthropology, thanks to this emphasis on the evolutionary

nature of law. Although Holmes may not have been the only person to develop

evolutionary legal theory, his contributions were crucial in forming the

theory's tenets.

KEY PRINCIPLES:

Key principles of the evolutionary theory of law include:

1. Variation: Because of varied cultures, histories, and social contexts, legal

systems have different laws, institutional frameworks, and procedural

practices.
2. Selection: The pressure of selection shapes legal norms and institutions;

that is, the law is created, grows, and evolves according to how well it
serves the purposes of society, the social order, and the settlement of
conflicts.
3. For example, a legal system that provides procedures for conflict

resolution that are both effective and impartial will be retained and
further developed, whereas a system that lacks a mechanism for conflict
resolution may be eliminated as an option. Similarly, legal norms that are

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consistent with existing cultural values and social norms will receive
more societal support for implementation and enforcement.
4. Inheritance: Legal systems pass down current rules, norms, and
institutional structures to future generations through legislative
processes, judicial precedents, and cultural transmission.
5. Adaptation: Legal systems develop over time as they respond to new
societal, technological, and external issues. Insufficient legal standards
and structures are naturally eradicated, while strong ones stay in place
while evolving over time.
6. Continuity and Change: Legal evolution depends on the duality of
continuity as well as change, whereby determined original principles and
organizations are occasionally replaced or transformed by fresh
difficulties and possibilities.

Advocates of the contention that law is an outgrowth of development believe

that establishing an evolutionary perspective might offer useful knowledge into

the development, operations, as well as efficiency of the legal system.

Understanding the factors affecting change, hiring, passing on, and

modifications might assist those making decisions better predict the

consequences of new difficulties risks that exist or challenges that get on future

years systems of law.

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CRITICISM

Several reviewers are sceptical of the evolutionary concept of law maintain

that, whereas it serves as a useful metaphorical guideline to comprehend the
gradual development of law, it overgeneralizes the complicated nature of law
and disregarded the role of human agency, the interaction of power, alongside
disagreements about ideology in the advancement of legal frameworks. The
organization maintain that witnessing the law as something of an exclusively
responsive procedure, a tool in the control of elected officials, advocacy
organizations, as well as wealthy individuals, whose work influence laws in
accordance with their own personal purposes, has become negligent.
In addition, opponents highlight the application of philosophical reasoning, a
phenomenon inherent to adaptive and comparisons, and they caution humanity
contrary to the widely held belief that natural selection in juridical structures
has to result in increased efficiencies or justice. Additionally, the concept is not
likely to take into account significance of discontinuities from one another
breaks down and revolutions in the evolution of law, instead focusing on
archaeological unforeseen circumstances and uncertain occurrences which
determine historical pathways in the advancement of law.
This illustrates the hypothesis's exclusion in demonstrating why it failed of
attempts to eliminate unfair treatment, encouraging critics to advocate for
intentional actions such as changes to legislation, judicial interventions, and
community mobilization to address systemic disparities and promote equitable
conditions.

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NATURAL LAW THEORY-

Overview: Natural law theory posits that law is derived from universal

principles inherent in human nature or the natural order. It suggests that

certain ethical principles are intrinsic and should guide legal systems.

Critique: Critics argue that identifying universally applicable natural laws is

problematic, as interpretations of what is "natural" vary across cultures and time

periods. Additionally, natural law theory can be criticized for being overly

abstract and disconnected from the realities of legal practice.

LEGAL POSITIVISM-

Overview: Legal positivism asserts that law is a social construct, distinct from

morality, and derives its validity from sources such as legislation, judicial

decisions, and social norms.

Critique: Critics argue that legal positivism fails to account for the moral

dimensions of law and can potentially legitimize unjust laws simply because

they are enacted by legitimate authorities. Additionally, the emphasis on the

sovereignty of the state in legal positivism has been criticized for neglecting the

rights of individuals.

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LEGAL REALISM-

Overview: Legal realism emerged in the early 20th century and emphasizes the

role of judges in interpreting and shaping the law based on social, economic,

and political considerations.

Critique: While legal realism offers valuable insights into the pragmatic realities

of legal decision-making, critics argue that it can lead to judicial activism and

undermine the rule of law by subjecting legal decisions to arbitrary personal or

political biases.

CRITICAL LEGAL STUDIES (CLS):

Overview: CLS emerged in the late 20th century and critiques the traditional

legal framework, particularly its role in perpetuating social inequalities and

power structures.

Critique: While CLS highlights the social and political dimensions of law,

critics argue that it sometimes lacks a coherent alternative framework for legal

analysis. Moreover, its scepticism toward legal institutions and norms can be

seen as overly radical and impractical.

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FEMINIST LEGAL THEORY:

Overview: Feminist legal theory examines how law perpetuates gender-based

inequalities and seeks to reform legal institutions and practices to promote

gender justice.

Critique: Critics argue that feminist legal theory can sometimes overlook

intersectional issues and essentialize gender experiences. Additionally, its

emphasis on gender can sometimes overshadow other forms of oppression.

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Social and Political Context

Legal revolutions often occur in response to broader social and political

movements. For example, the civil rights movement in the United States led to

legal revolutions such as the desegregation of schools and the expansion of civil

rights protections. It's essential to critically analyse the underlying social forces

that drive legal change and consider whose interests are being advanced or

suppressed.

Impact on Power Structures

Legal revolutions can challenge existing power structures and redistribute

authority within society. For instance, the overthrow of authoritarian regimes

may result in the establishment of new legal frameworks that prioritize

democracy and human rights. However, it's crucial to examine whether legal

revolutions genuinely dismantle entrenched power dynamics or merely

reconfigure them in different forms.

Institutional Transformation

Legal revolutions often involve significant changes to legal institutions, such as

the judiciary, legislative bodies, and law enforcement agencies. Critical analysis

should assess whether these changes enhance the effectiveness, accountability

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Normative Shifts

Legal revolutions can reflect shifts in societal norms and values. For example,

the legalization of same-sex marriage in many countries represents a significant

normative change regarding gender and sexuality. However, it's essential to

critically examine whose values are being privileged or marginalized in the

process of legal transformation and whether these changes genuinely promote

justice and equality for all members of society.

Global and Comparative Perspectives

Legal revolutions often occur within a global context influenced by

transnational legal norms, institutions, and movements. Critical analysis should

consider how legal revolutions in one country or region interact with broader

global trends and how they compare to similar processes of legal change in

other contexts. This comparative approach can help identify common patterns,

challenges, and opportunities for advancing legal reform.

Unintended Consequences

Legal revolutions can have unintended consequences that may exacerbate

existing inequalities or create new forms of injustice. For example, efforts to

combat terrorism through expansive surveillance and security measures may

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undermine civil liberties and disproportionately target marginalized

communities. Critical analysis should anticipate and evaluate these unintended

consequences to ensure that legal revolutions promote the public good and

uphold fundamental rights and freedoms.

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BIBLIOGRAPHY

For successfully completing the project I have taken help from the following

links and books:

1. https://legalserviceindia.com

2. New Historical Jurisprudence: Legal History as Critical Analysis of Law-

book by Markus D. Dubber

3. https://www.jstor.org

4. https://lawcian.com

5. https://cal.library.utoronto.ca

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