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Very few studies (although more frequent nowadays) focus on evolutionary analysis of law¹ . As to this area, most studies are concerned with the application of Behavioral Biology, Neurosciences, and Biological Sciences in general, to legal drafting or to a sociological and statistical analysis of positive law. Less frequently, however, researches attempting the inclusion of the existence of legal aspects of human culture, present in every human society, are found within evolutionist theory. This particular feature of the human culture is the most resistant to Darwinian explanation.

Evolutionism provides a substantial explicative theoretical body in the sense that it often uses concepts and references connected with ethics or sociality, however they are mainly derived from common sense more than from a scientifically or philosophically satisfactory differentiation from the «legal phenomenon»² .

From its own perspective, legal science has explicative peculiarities that prevent the production of evolutionist theories from inside: legal science takes shape in different schools which emphasize, at different time, the axiological, social, or formal aspects. Nevertheless, they all do not find a common point, or even a conventional agreement concerning the definition of the subject of their studies.

In order to understand the «legal phenomenon» from an evolutionary point of view, it would be necessary a fine tuning of the traditional concepts of law.

The aim of this work is to investigate the possibility of an evolutionary explanation of the «legal phenomenon» within human societies, by hypothesizing, as far as possible, the origin of it within human culture. My question concerns the lawfulness of human societies: more specifically, it focuses on which human biological predispositions are tied to such a lawfulness and how different they are from similar predispositions tied to social or ethical human behavior. Furthermore, my question regards the role that the legal phenomenon played in the human gene-culture co-evolution. I think that although conjectures on the origin of legal rules within the history of human societies, might be a challenging task, it would be necessary for developing a set of hypotheses that could be empirically confirmed and provide an evolutionary coherent explanation of the legal phenomenon. At the same time, such conjectures could be definitely useful for setting up the concept of law itself.

Scientists who attempt to scientifically explain the evolution of human culture are split into multiple branches of research.

The main boundary between the different theories lies between those assuming that it is possible to explain the entire human cultural phenomenon on exclusively biological-genetic bases, and those maintaining that the existence of selective dynamics is influenced by human culture both at a biological and cultural level, and that human evolution can be fully explained, from the origin of the culture onward, only if the co-evolutionary dynamics of genes and culture are analyzed together. The latter group of hypotheses actually arose in the 1970’s with the researches in Sociobiology carried out by D.S.Wilson³ . Although the devastating criticism (which was in part ideologically motivated), Wilson undoubtedly provided – over the past few years – a convincing theoretical system, which generated, among other things, the multilevel selection theory⁴ . This theory hypothesizes the existence of selective forrces acting at different levels, capable to feed back from group upon the individual, as from the individual upon the genes. Thus, it would be possible to set up a sort of fundamental law of Sociobiology stating:

The co-evolutionary hypothesis holds that culture evolves at the group level; thus, that a selective force, capable of operating directly among groups, exists; that selection within groups acts as a cultural selection and that, simultaneously, individual genetic characteristics affect cultural choices. From these assumptions it follows that natural selection acts in two directions: from gene to culture and vice versa.

It is immediately apparent that a definition of culture must be found, by combining culture with biology and genetics in the selective mechanism, giving an accurate account of the role of law.

As stated in the introduction, no theory of law is, without being self-contradictory, fully explicative of the legal phenomenon. But one of the most recognized features is that law is a normative science. Law’s object are norms, neither social nor ethical (at least not solely), rather legal norms, and what is very disputed is the meaning of «legal».

Evolutionist studies on law carried out by biologists have generally drawn a concept of law derived from morality or sociality, which traces back to the innate predispositions of human sociality.

More recent approaches refer to behaviors as not directly connected with morality, such as the sharing the action in a dispute resolution: the impartial third-party intervention in keeping peace among the group members has been considered a s a cultural antecedent of legal norms⁷ .

From the traditional cultural anthropology, law is regarded as a product of both power management and of the division of the society in hierarchical ranks⁸ .

Object of these studies are human behaviors, not directly law, or rules, or norms.

But this approach does not fully demonstrate the cultural connection within law⁹ : the jurist is generally concerned with norms or rules, which are meanings not naturally contained in behaviors. In some ways, these meanings enjoy a certain objectivity and a shared consensus. The example given by Hans Kelsen is well-known: if some people in a room stand, while others remain seated, this is a natural fact that means nothing other than what it is, while the legal meaning is, or might be, that a law has been voted. The legal meaning is attributed to human behaviors and to natural facts from external cultural sources – thus, it is not necessarily linked to the natural fact, as rooted in it, the only thing able to state that the natural fact has a legal nature, is the existence of a norm, i.e. an objectified meaning, qualifying it as such. The consequence is that if a legal meaning comes true, the legal consequences are not necessary, only depending on human behaviors; such behaviors are always potential: if a man kills another man, he has not necessarily committed a murder, and if he has committed a murder, he is not necessarily condemned to prison. If he is condemned, the punishment may not necessarily be carried out. Legal meanings define whatought to take place if something occurs, but thisought has a human behavior as its recipient, which is thenecessary condition for the consequence to occur. And this is a typical feature of consequences of legal norms: obligations, duties, rights and other legal situations are the expression of a consequence having their own condition for coming into existence in a behavior which is potential, although not necessary. Any legal regulation of a specific case refers to external meanings for the judge, and, from their perspective, social scientists use a concept of law restricted to essentially written contractual or conventional regulation of social relationships, which can be found in historic age. In this way, they take a precedence or prevalence of human social predispositions on the legal phenomenon for granted¹⁰ . The law would have evolved through human genetic predispositions to socialization, from which it would have received its initial imprinting.

Based on this research, an intuition – defended philosophically as well as in the common sense – arises: while ethics could be genetically predisposed in human nature, legal concepts can only express their contents in a conventional, and thus completely cultural way, so unlinked from biology and genes. Thus, legal concepts would have no genetic or biological origin and constraints. Nothing is more suspicious than a scientific idea shared by the common sense. These hypotheses lack any connection with biology or with verified genetic predispositions. Most of all, the hypothesis is refuted in part by the fact that extended human sociality, not restricted only to families of related individuals, exists just in the form of legally regulated societies, that is, with rules composed of objectified meanings, culturally devised and containing a situation regarding anought to be conditioned on a human behavior, as explained above. This fact suggests that human sociality, naturally predisposed at the genetic level, is not itself sufficient to construct human societies in their actual form, and that the evolution of culture itself dependsin a fundamental and forging way on the existence of legal rules. For the coherence and explanatory power of the evolution theory itself, the connection between law and culture must be investigated more thoroughly¹¹ .

The question on the origin of legal behavior matches the relationship between culture and the norms that take shape in it. It is indispensable to go through the pivotal role of «ought to be» and its relation to culture.

A first step is the investigation on the concept of normativity¹² , looking for a meaning coherent and meaningful in an evolutionary model of law. Following in the footsteps of Guttentag we can question: «does an instinct of normativity exist?» or: «which is the origin of the ‹sense› of normativity in humans?» The question must be refined, because normativity is shared with all kind of rules, not only the legal ones, but with the ethical and social ones too, it is a very widespread trait of the human culture. Thus, our endeavor must focus now on the relationship between normativity, law, and evolution of culture. The tiny body of research, dealing with the origin of law, does not provide an explanation on thenormative function of law, as a linguistic and symbolic expression ofwhat ought to be .

Cultural traits are present in many species, as rudimentary and very limited exchanges of information, sometimes not dependent on direct genetic control, but the human behavior is inexplicably open to the exchange of information. The willingness to exchange information, as widespread and pervasive as the human species has, is a trait that might potentially damage the individual, it is a fitness non-maximizing trait, potentially it is a harmful trait. An example could be holding information about where the food is located: it is disadvantageous to share with others this kind of information except when help is needed in order to achieve the food. Non-eusocial animals can share information only between relatives, in order to favor their own genes. But humans don’t, they communicate all kind of information without regard to kinship. Instead of reducing the information exchange to the amount necessary for reproduction, in the case of humans, evolution has favored the opposite behavior. The evolution of symbolic language implied that the exchange of information was not regulated exclusively genetically, and the evolution of this characteristic, so useful for cooperation, as well as dangerous to the individual, required a stabilizing mechanism so as not to destroy the groups which used it.

As with the exchange of information, humans exchange goods in a very wide range of situations, especially when the gain is not immediate, but only foreseeable, or where earnings may be relatively small. Other apes do not exchange goods if earnings are not high, and immediate, nor are they able to use substitutes for goods that function as currency. Unlike the other great apes, humans possess norms regulating the exchange, thus decreasing the danger of defection, and norms regulating property, thus attributing ownership independently of physical possession, and decreasing the danger of aggression. One of the functions of these norms is to increase the trust in the other members of the group¹³ . In human societies such exchanges are always governed by rules that possess the characteristic ofnormativity, and depend on the human behavior in order to be fulfilled.

Normativity lacks reality and objectivity: in order to be known, normativity must be communicated. It cannot be perceived in itself because it has to do with a reality that is expected, imagined or represented, but it does not exist in real. Therefore normativity could not exist without language or a kind of representation of reality. On the other hand, language permits the exchange of a great amount of information, which needs to be enforced by a set of normative rules, in order to be advantageous for the individual.

As a hypothesis, these rules could be seen as the stabilizing mechanism of the trusting behavior, necessary for the exchange to take place.

Our day life is fully rooted in norms of every kind with every kind of contents. Common to all these norms is just one content: normativity itself. The meaning of normativity is ordinarily seen as a direction for our own actions or an advice for determining our own free will.¹⁴ Differently, legal normativity is always directed to someone else’s behavior, and correspondingly it gives to everybody the expectation that other people would hold a certain behavior. So, legal normativity allows to perform in the mind a future and an uncertain behavior or eventas if it were present and, in this regard, normativity could be thought as atemporal shifting ordisplacement which allows contemporaneous considerations of temporally detached realities.

The first component of normativity is the «ought to be»: this is the statement of the fulfilling a future and an uncertain event, assessed with a likelihood relation, in place of the casual relation. A reality thatought to be could be foreseen only believably and accordingly to the behavior of other people. In order to think anought to be reality it is necessary to think stochastically and to express a possible reality with symbols.

The forecast of anought to be is not a neutral one for people who believe that theought to be behavior will occur: foreseeing events and behaviors of other people gives a better chance for setting up one’s own behavior in order to achieve a goal. Thetrust that whatought to be will occur is the second component, typical of legal normativity. This second component highlights another quantitative difference between humans and other animals. The instinct of possession, for instance, is shared with other animals, but the widespread guessing and trusting other people’s future behavior is a human peculiarity: believing that a possessed asset will not be taken away, gives the chance to leave it behind and to gather and store other goods. Trusting the future behaviors of other people makes possession into ownership.

Trust is the positive evaluation that something will occur, it is a mental state tied to cerebral functions. Human societies are built on it, it’s a bias which regulates human social actions.

A guarded trust is a common trait to all prosocial animals: it allows cooperation. The social sharing of goals grounds on the actual trust in the behavior of others at the very time where the action is carried out. But the legal normative trust has to do with a non-actual action, with an action thatought to be .

The question on the origin of normative thought cross, therefore, the other one on the origin of such trusting state in non actual actions. We should wonder whether the evolution of the trusting behaviors with regard to theought to be , namely in situations where the results of an actual cooperative behavior in a group – the achievement of the goal or gaining of the spoils – depends on a future cooperative behavior of the other members of the group.

In another work I have advanced the «cave paintings» hypothesis¹⁵ . I will delve into this issue in the next pages.

Human nature is despotic, there is a «universal drive to dominance» which arises in conflicts and competitions, in form of dominance and submission¹⁶ . But this predisposition to dominance is in some ways counterbalanced from a general drive to parity, necessary in order to make the different human societies possible, where authoritarianism is blended with egalitarianism¹⁷ .

Many anthropological researches have investigated the distinctive feature of the foragers societies, describing these conflicting positions as anethos , a set of values expressing what is important for a given group, which behavior ought to be rewarded and which one ought to be punished.

The anti-authoritarian rule considers the leader of the group, the alpha male, as aprimus inter pares ,¹⁸ and this is a universal rule, shared among all nomadic tribes and bands. The fact that this is not a universal rule among sedentary tribes, although very widespread, upholds the ancient origin of it, when all tribes and bands were nomadic¹⁹ .

Regardless of the human despotic nature, some groups of homo habilis in the Pleistocene begun to share the prey in a non-hierarchy-bounded way²⁰ , and this particular behavior will characterize the whole history of homo habilis and sapiens. The new social system is still present, in its archaic form, in all the modern foragers' tribes. It is not an absolute egalitarian model, but it handles with reciprocal respect of the individual autonomy²¹ . In this new regulation of social relations, the cooperative rules of familiar relations are extended to the individuals of the whole group²² . The egalitarian prey-sharing rules are deeply connected to this anti-authoritarian ethos. What is left to be explained, now, is how was it possible for the evolution to select fitness-non-maximizing traits for the individuals, and why only human societies, otherwise from other apes, have adopted such traits and rules.

These points need an in depth examination: moral traits are not advantageous for individuals, in order to explain the selection of these moral traits, Boehm links morality with language, as a necessary preadaptation. He writes: «Morality is inextricably entangled with language, a fact that has strong relevance to the moralistic suppression of alpha types and other upstarts by human egalitarian communities that deal with deviance. […] A definitive reversal of the flow of power in bands requires some kind of vision of the kind of political society that is desired. Such a vision is based on a sort of political and actuarial intelligence […], but also on a culturally based capacity to communicate in specifics²³ ». This communication needs symbols in order to communicate a non-actual reality: «It seems, then, that a definitive step in the direction of moral behavior cannot be taken in the absence of communication with displacement²⁴ In this context, ‹displacement› means that a subordinate who wants to combine forces with other subordinates to limit alpha power can communicate about something that does not exist in the here and now²⁵ ».

Another pre-adaptation, necessary to the ethos of foragers was, according to Boehm, the actuarial intelligence: «the intuitive human capacity, seen abundantly in hunter-gatherers, to think stochastically and to understand rather complex systems on an intuitive but statistically valid, predictive basis. […] Whatever their ultimate basis, band-wide sharing and cooperative systems depend heavily on actuarial calculations. […] To keep such systems operative and efficient requires a large brain, for future effects of present actions must be calculated in complicated ways²⁶ ».

According to Bohem, the human brain started growing up in volume more than one million years ago²⁷ , and the actuarial capacity has developed together with it. Throughout this long period, homo habilis groups begun manipulating their social systems, acting against the despotic genetic shape, introducing prescriptions directed to enforce pro-social behaviors, in such a way to award cooperative and altruistic behaviors and punish conflicting behaviors such as bullying and serious deception. The innovative change consists in the introduction of a new kind of rules, peculiar to human culture and acting at the group level: the legal normative rules. From now on, individuals can act by following two different kinds of rules: the one innate in the genetic predispositions and the other one outcome of the belonging to a normative regulated group²⁸ .

Thus, normativity found a new expression: i.e. the legal normativity, which regulates the group’s life through the usage of language. Throughout this millions of years the homo habilis should reorganize knowledge which depended not upon reality anymore, but on normativity, that is from the representation of reality and from the trusting expectation of future possible events. On this point Boehm wrote:«symbolic culture permitted orthodox hierarchies to be replaced by egalitarian hierarchies based on cultural rules. Egalitarian society was a cultural invention, one that put a distinctly competitive, ethologically despotic human nature to radically new political uses²⁹ ».

Some different scenarios could be drawn for the evolution of this trait, from revolutionary to more gradual ones, but, along with Boehm, in every scenario, the capability to cooperate in large coalitions aimed at pursuing specific political goals, such as bringing down the alpha male, is necessary. Some cultural pre-adaptations are also necessary, as hunting with weapons, large-game hunting, the evolution of a big brain, within the linguistic, cognitive and the distinguishing cultural traits³⁰ . But none of these pre-adaptations seems to be the keystone of the big change which led to the evolution of culture, especially because, it doesn’t succeed in filling the gap between culture and biology. Along with Boehm, the new anti-authoritarian and anticompetitive rules³¹ are types of a fitness non-optimizing rule, thus the referred behavior is anomalous, and could be aberrant for an evolutionary explanation of culture. However, this rule is intuitively present in the individuals of foragers groups³² . The challenging point is this one: to find out the biological trait that triggered the evolution of culture against the biological predispositions.

In line withBoehm ’s explanation of the evolution of the human biological traits connected to the evolution of culture, we can combine all these traits, and affirm that legal normative thinking is the peculiar trait distinguishing human culture from others, and that this new kind of normative thinking was connected to a change in the transmission of information, bounded to an objectified and conventional representation of reality, like a symbolic language. Thus, normative thinking had the possibility to refer to anought to be reality and particularly to anought to be behavior of other individuals of the group. In this sense, as mentioned above, the new anti-authoritarian and egalitarian sharing rule were a legal norm, not simply a norm belonging to an ethos. But, in order to find a possible biological cause that led to the legal normativity, we can hypothesize that the identification between representation and reality caused the emergence of legal normative thought, and it made the biological mechanism of trust in theought to be operative.

A possible scenario sees the emergence and diffusion of figurative representations of reality, like drawings, paintings and so on, as a result of a cognitive mistake, consisting in the identification between representation and reality. Our ancestors may have virtually identified representations of prey with the prey itself, activating the biological mechanisms of trust. Our ability to identify narrated reality with lived reality shapes the whole human culture – one may think of today’s virtual reality, or even simply of the eroticism inspired through images. In this hypothesis, natural language came up in the human culture at a later time, after a long period in which our ancestors adapted their behaviors to the new group’s rules and to the new system of information’s exchange.

Cave paintings mainly depict hunting scenes. Until then, there was no clear explanation either on their ubiquitous diffusion within the Paleolithic age, or of their usage. For us it is quite natural to live in a world filled up with meaningful representations of it, but, in order to theoretically accept this behavioral trait, it is necessary to find the evolutionary cause for it to select. In my hypothesis, representations trigger the biological processes of trust and the mental state of belief and expectation in what ought to be, and the ought to be allows cooperation among individuals in situations different from those for which the trusting behavior evolved.

The mechanisms of trust at the brain level could be the biological cause that allowed evolution of culture. Figured reality acted as an activator-suppressor of the biological mechanism of trust, already evolved in the homo habilis³³ , and extended the trusting behavior to the ought to be realities. Thus the «trusting monkey³⁴ » has begun behavingas if the figured reality were present. Some altruistic behaviors, unaccountable for the evolutionary theory, could be explained with this «as if» matrix of payoffs in game theory, without leaving the selfish gene hypothesis aside. Some altruistic behaviors, unaccountable for the evolutionary theory, could be explained with this «as if» matrix of payoffs in game theory, without leaving the selfish gene hypothesis aside. The «as if» function modifies the matrix of payoffs, and for the same actual payoff a disadvantageous action can become (virtually) advantageous, thus making individuals acting in an (apparently) irrational way. This temporal shifting in weighing up the fitness’s maximizing behavior allows the individual to hold a behavior that could be immediately disadvantageous for himself, but advantageous at the group level, so that the individual fitness can be maximized at this second level. For this to evolve, it’s very likely that two conditions must occur:

1. predation is so efficient that it produces a big quantity of prey, sufficient for everyone
   
2. the prey is shared more or less equally, that is: proportional to the real needs of each individual.

The first condition is satisfied by the growth of trust among individuals, which provided a more cooperative group, thus a more efficient one. The sociobiological law, already mentioned³⁵ , foresees that a cooperative group will be more efficient in predation, especially in large-game hunting and will beat the non-cooperative groups. Human history is built on the practice of war³⁶ : confrontation between groups has always been a primary source of wealth. The sociobiological law foresees the selection of groups composed by individuals with cooperative biological and cultural traits. Thus the «trusting monkeys» groups will survive and expand.

The representation contains information accessible to everyone: each member of the group can equally understand it, it is uncontrolled in the sense that it avoids the control of both the individual and of the genes. Materialized information contains within itself the power of diffusion, independently from individuals. The introduction of cave paintings could have facilitated equal relationships between individuals, thus disadvantaging hierarchical relationships based on authority. Anyway, the efficient predation allowed for the ever-increasing enrichment of the group, for a continuous growth of the fitness of all its members, and for the working-out of the egalitarian rules, actually introduced by the materialization of information.

The increased wealth allowed the strengthening of the mechanism of legal normativity, so widening the exchange of information. Culture began evolving together with rules that encouraged cooperation against selfish genetic predispositions: this new evolutionary force allowed the group selection to become effective, so enabling cultural changes to act on the biological traits of individual belonging to a group: the societies of primates gave the way for themajor transition to human societies.

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Francesco Romeo is Associate Professor in Philosophy of Law, Dipartimento di Diritto Romano, Storia e Teoria del Diritto «F. De Martino», Università Federico II, Napoli.

http://www.unina.it
francesco.romeo@unina.it

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