The Evolution Of Law 

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Introduction

'Law' to a modern human is so much a 'top-down' feature of the highly regulated States we almost all live in, that it takes an effort of mind to realize that large parts of law are in fact 'bottom-up' in the sense that they represent moral structures that are intrinsic to all human groups, even if most of these laws have nowadays been taken over by the State.

Indeed, there is no easy way of distinguishing between the components of the law that stem from the genetic endowment of humans, and its cultural elements. (The word 'cultural' is here used to refer to social constructs which are not biologically evolved but which have developed as human society has become more complex and which are transmitted from generation to generation by education or via external stores of information such as books.)

To illustrate the distinction: injury caused by a man to his wife has been the subject of sanctions in a tribe or kin-group for a very long time, and there are few if any human societies in which it is not regarded as requiring a response, although that response varies very widely; whereas sanctions for failure to fill in an annual return form are a feature of some bureaucratic modern societies that would have had no adaptive benefit 250,000 years ago.

Curiously, it is quite difficult to think of a branch of modern law that doesn't owe its origins in part at least to the genetic moral template, although by now all types of law are festooned with the regulatory outpourings of the nanny State, and of course must take account of numberless circumstances which were different or just absent at the time that we evolved as social animals.

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'Evolved' Law

It is probably uncontentious by now to assert that a code of behaviour evolved during the development of the human social group, to enable individuals to function with each other and as part of the group. Since it is hard to imagine that any very sophisticated interaction could have taken place in the group until the emergence of language, it is perhaps also reasonable to date the availability of a set of 'groupish' moral templates to the same period.

There is still controversy over the pattern of cause and effect as between increased human brain size, erect posture, the gradual enlargement of the group, and the cognitive advances that accompanied them, including the development of language, the enlargement of consciousness, and the emergence of myth as a central feature of human group life.

It's not in doubt, though, that these various changes and innovations began to take place with the arrival of homo habilis, approximately 2m years ago, and were completed by the time of the appearance of homo sapiens, approximately no later than 250,000 years ago.

Little change can have taken place to the genetic inheritance of modern man since then, so we can assert that the genetically-embedded moral structure of humans is at least 250,000 years old.

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Many commentators locate the emergence of complex social interaction in the hunter-gatherer group, comprised of men (in most cases) who separated out from the undifferentiated, mixed kin-group, and needed to develop sophisticated techniques for co-operation and communication. This may explain why it was through 'The Fathers', or the male elders of the tribe, that law emerged as the basis of all conduct, moral or otherwise. The feminine emancipation of the last 150 years has shifted the law into the hands of women as equal partners alongside men, but the masculine origins of the law are hard to dispute.

For rules of conduct to be more than pious aspirations on the part of the more reflective members of a group, there also needs to be a propensity to accept such rules among all group members, and it is clear that this propensity did develop alongside the rules themselves.

Inside the human group there is very strong pressure for conformity - what is loosely referred to, often pejoratively, as the 'herd' instinct. It's obvious that the group would seek to impose conformity on its members in many respects (although dissent is adaptive when it comes to competition between groups, because it allows for greater flexibility of group behaviour). It's also obvious that one of the best ways of ensuring conformity (after mimetics) is by reference to an objective body of rules (or morals or laws or whatever) which all members of the group accept. It's not difficult to see how 'the law' would have evolved as a mechanism for ensuring group solidarity, initially through 'The Fathers' and later on as a separate body of rules independent of any particular sub-group, although there would always be a sub-group (or groups) with devolved responsibility for maintenance and enforcement of the rules. Today, the judiciary and the police are those groups; in the hunter-gatherer group, it was the Fathers, and perhaps even they had 'heavies' at their disposal (in return for extra meat?).

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From a cognitive aspect, consciousness had a key role to play in the development of 'groupish' feelings and behaviour. Whether or not consciousness (reflective self-awareness) arose because of the need for it in the group, or whether a primitive type of consciousness already present in primates simply became the basis for self-awareness, is uncertain. But there is wide agreement that consciousness was a key tool in the process through which the group imposed its ethical rules on its members.

In Depth Psychology and a New Ethic, (published even before his Origins and History of Consciousness), Ernest Neumann paints the consciousness as being at the centre of the process by which the collective (the group in its most general sense) applies an ethical (moral) structure to its members.

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Our direct, evidence-based knowledge of legal structures in human social groups dates only from very recent times, say at most the last 10,000 years, so that most theories about how social groups may have organised themselves during most of the last 250,000 years are heavily dependent on the study of modern tribal societies which are presumed to be similar in most respects to earlier pre-literate societies. Hardly any of these societies remain uncontaminated by modern man, so that new studies become less and less valid - field anthropology had its heyday in the 20th century. Prior to that, much work was unscientific or badly documented. On this tiny base of evidence, mighty cathedrals of social theory have been erected. With this proviso, much can be said about the governance of primitive socieites, and some of it has a limited degree of indirect archeological or paleontological backing.

Almost all modern (20th century) writers agree that the governance of the early human social group arose out of its nature, that is to say, was genetically inspired. The two strongest pieces of evidence for this are first, that all primitive groups that have been studied share the same basic moral templates; and second, the persistence of 'customary' law among modern societies despite the growing tendency of lords, kings and eventually the State to impose their own rules.

Peter Kropotkin in Mutual Aid emphasizes the long continuity of village- or community-based law in Europe and Russia, throughout history and up to the 15th century. Such law is very centered on individual relationships within the group, on solving problems in the group, on assessing 'right' and 'wrong' as between people and dealing with compensation. However, at all times the individual is treated as being part of the group, and the actions of an individual are treated as actions of the group.

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Kropotkin also notes that the death penalty, indeed all penalties, were scarcely available under customary law. If a person was unable to pay compensation, even for killing, he would normally join the family or group of the injured party.

Matt Ridley points out in The Origins of Virtue that the body of law in primitive (tribal?) societies applies within the group to its members, but not to the outgroup. 'When Joshua killed 12,000 heathen in a day and gave thanks to the Lord afterwards by carving the 10 Commandments in stone, including the phrase "Thou shalt not kill", he was not being hypocritical.'

Richard Alexander in The Biology of Moral Systems says: 'The rules of morality and law alike seem not to be designed explicitly to allow people to live in harmony within societies but to enable societies to be sufficiently united to deter their enemies.' But that is surely too limiting: a group has a competitive advantage if it has a set of agreed-upon rules, but that doesn't prevent the rules from achieving other goals - division of labour between men and women, efficient hunting and so on.

Bertrand de Jouvenel, in his classic On Power, tracing the growth of the power of the monarch and then the State, points out that in mediaeval times such power was severely tramelled by the 'Lex Terrae', the customs of the country, 'which was thought of as a thing immutable'. 'And when the English Barons uttered their Nolumus leges Angliae mutari (We object to changes in the laws of England), they were only giving vent to the general feeling of the time.'

De Jouvenel says that 'sovereignty', in the sense of the over-arching power of the sovereign, was a 17th century construction, and that all previous societies regarded themselves as being assemblages of individuals subject to a common law, which applied to the sovereign (if there was one) as much as to any other citizen. For instance, in Rome, 'what they saw in their mind's eye was not a person, Rome, but rather the physical reality of a collection of individuals beloning to a group'.

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De Jouvenel quotes Westermarck in The Origin and Development of the Moral Ideas, Vol. I p 162: 'The Rejangs of Sumatra do not acknowledge a right in the chiefs to constitute what laws they think proper, or to repeal or alter their ancient usages, of which they are extremely tenacious and jealous. There is no word in their language which signifies law.'

Indeed the word 'law' carries with it at least nowadays a sense that rules are being imposed which can be enforced, ie that there is some external agency, whether that be the Gods or the king or the police or the State, which is available to administer the law.

This is how law was understood by Durkheim, a key figure in anthropological analysis in the late 19th century. Durkheim says that law in the earlier societies (say up to the time of the Greeks) was primarily 'repressive' or 'penal', and was almost synonymous with 'religious' law. Nonetheless, Durkheim accepts that all this law was an expression of the moral structures and customs of the group, and represented a codification of the precepts of the 'collective consciousness' (a phrase which is more or less equivalent to the modern usage of 'unconscious' in Durkheim!).

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However, Durkheim did not have the advantage of access to modern ethnological and anthropological research, and underestimated the extent to which law (or at any rate moral structures) in primitive societies antedated religion. Even so, he accepts that 'religious' law exists for the purposes of society: 'If criminal law was originally religious law, we may be sure that the interests it served were social. It is offences against themselves that the Gods avenge by punishment, and not those of individuals. But the offences against the Gods are offences against society.'

His position is really inconsistent, but perhaps he can't be blamed for not realising that groups and society antedated religion, which merely took over existing bodies of customary law. Durkheim was writing in the tradition of French cartesianism, so that allowance must also be made for a degree of dirigisme in his outlook.

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Trade Before Law

Quite early on in the development of the human group, and certainly before any codified system of law existed (which required a symbolic language) trade outside the group became a key driver of social growth, and the propensity to trade became part of our genetic inheritance. Indeed, it is possible to see trade as one of the main origins of law.

That sounds topsy-turvy to modern minds; it is commonly thought, even by free-traders, that trade can only flourish where the rule of law has been established, as in 'Trade follows the flag'. The reality is almost exactly the reverse, as the colonial histories of European nation states demonstrate: the East India Company is just one of dozens of examples of private enterprise based on trade which were later subsumed by nation states as the basis of colonies.

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The gradual development of trading networks covering large geographical areas is presumed to have taken place during the period that homo erectus was spreading from Africa to colonize most parts of the world, that's to say, between 1.5m and 500,000 years ago. This then is the period during which the moral structures we may call 'trading law' would have evolved alongside the trading itself.

'Trading law' would have to include property rights, concepts of 'fair' valuation and methods of resolving conflicts, at a minimum. Large tracts of modern law and of the judicial system are devoted to these subjects, of course.

The happy fact that trade leads to the creation of stable multi-group alliances may have been the way in which early human groups did not destroy each other, and during recorded history there are many examples of it.

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The city-states of Europe provided a settled environment in which trade could flourish, and they were certainly not the expression of feudal power; on the contrary, they were created on the basis of the guilds, associations of traders of various types, and commercial law was developed by the guilds in the form of codes of conduct. This was even more true internationally (so far as that term has a meaning before nation states existed). The Hansa is the supreme expression in Europe of the pre-eminence of private commercial law; it is nowadays hardly remembered, but in its day the Hanseatic League, uniting the traders of modern Germany and the Baltic States was the strongest and longest-lived institution in Northern Europe. For hundreds of years it provided a legal and social framework within which commercial activity could take place.

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The Hansa and the European city-states were straightforward expressions of groupish behaviour among traders and craftsmen, confronting the State (still quite weak) rather than within it. In the Aztec Empire (AD 1200 - 1500), the state had perhaps more power than was the case in Europe, but international or long-distance trade was still organized around a structure of merchant guilds which seems to have been remarkably similar to the European model, operating with a quasi-independent legal structure, and making much use of privately sponsored marketplaces.

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By the time of the colonial trading companies, however, the State had become much more powerful, and easily took over their private activities.

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The Heyday Of The State

The State as it developed between approximately 1600 and 1900 also took over the legal systems which the traders had developed, as it would later take over education and the provision of other social goods. And with similarly adverse results: by the 19th century, traders, especially international ones, were so dissatisfied with State legal systems that they re-invented their own legal systems through the arbitration process. In the 20th century the State was busy once again trying to nationalize arbitration (States after all are run by lawyers!). However, globalization has undermined the nation state and has given a new lease of life to independent (private) commercial law. The WTO is nothing but the Hansa writ large.

The message is that trade takes place within and between groups, and that the rules governing trade are best developed within and among those groups. The State, which is the negation of groupedness - a kind of devil in the face of the God of groups - is very bad at managing trade.

The battle between the State and the folkways for control of law and regulation is at its peak in the early 21st century. Governments legislate and regulate ever more furiously as the complexity of life in modern society becomes ever greater. But they are on a losing wicket, even if they don't yet see it.

There has always been a strand in philosophical thought that advocated the minimally intrusive State. There have even been individual politicians who believed in 'rolling back' the State. Many politicians pay lip service to this idea, but judged by their deeds almost none of them measures up to the ideal. So it is not to governments that we should look for salvation from increasing and inappropriate legislation; instead, it will be delivered by globalisation, much helped along by the Internet, and the empowered individual.

It's a curiosity of the modern world that competition (even the little remaining competition between nations, which may have been driving social evolution) is being legislated away by the globalization process. Nowadays it is 'managed' competition. That's a worry perhaps, in so far as global institutions have monopolies for the most part, and even the saintly WTO is liable to go astray if it doesn't have competition. So far, at any rate, globalisation has been a success: the WTO, the OECD, the UN, the IMF, Greenpeace, Medecins Sans Frontieres, WIPO appear mostly to be beneficial monopolies, although the UN has committed some egregious crimes against the folkways, and the recent history of the OECD shows what can happen if an entrenched monopoly, however beneficent, falls into the wrong hands.

Globalization began in the commercial sector, as described above, with international dispute resolution through arbitration, and it has spread to most economic sectors. International - and often global - conventions, ruling bodies, courts, treaties etc etc now cover shipping, airlines, banking, insurance, telecommunications, investment, intellectual property, and even the environment, to pick just some of the most obvious examples. Governments have no power to intervene once they have signed up to such international instruments.

Largely but not entirely because of the fight against money laundering and terrorism, international co-operation is now beginning to impact on taxation and some aspects of criminal law.

It really is only a matter of time before the legislative canvas of a national government will be limited to a few, minor domestic fields, and what is important is that the power which is seeping away from nations is not seeping towards a mighty international ruler (pace the European Community), but into the hands of consultative, rule-based , democratic, international bodies, of which the WTO is the most obvious example.

It's an open question whether the WTO is more groupish than a nation state, but its procedures (and those of any other multinational body) are a good deal more transparent and democratic than those of any State, which is a major step in the right direction. What will definitely reintroduce 'groupish' law into the affairs of individuals is however the Internet.

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Groups on the Internet

Even without the Internet (which perhaps, like God, really does deserve its initial capital) there has been an enormous expansion of the information available to an individual, through radio, television, personal computer storage, etc. On its own, the extra information may make it possible for an individual to recreate herself apart from the herd; but it doesn't offer a structure within which 8 bn people can co-exist peacefully and productively.

It is arguable, however, that the Internet will enable just that, and it will do it by providing groupish moral standards which will come to affect more and more areas of an individual's life.

Journalist Peter Ludlow was kicked out of Alphaville in The Sims Online (a virtual reality community) in 2004 because he criticized lax moral standards in the community; this set off a wide debate in the US on 'free speech' in virtual reality worlds, and the applicability of the First Amendment.

It's a problem in society that the people who are most likely to understand published moral guidelines are the people who are the least likely to need them; or to put it the other way about, the people who are most likely to behave unsocially are the ones who are least likely to be confronted with moral guidelines in their daily lives. Game shows, Big Brother, football or baseball matches, the neighbourhood bar and the gutter press do not add up to a morally edifying diet.

One of the advantages of religion as a conduit for disseminating morality was that it encompassed all levels of society. It is arguable that the Internet will be similarly pervasive, and specifically through its encouragement to groupish activities and feelings.

Let's examine the uses people make of the Internet, with a view to finding out how far the Internet has already travelled in terms of providing moral or ethical guidance for its users by virtue of their membership of groups.

This table (following research published by Harris Interactive in November, 2004) lists key uses of the Internet:

1. To send or receive email. Of itself, the sending of an e-mail is not perhaps a groupish activity, but a high proportion of e-mails are presumably sent to family, friends, work colleagues and other members of groups to which a user belongs. This could be measured quite easily (and probably has been).

2. To do research for work or school. This is not at first sight a groupish activity; but in fact a surfer will very quickly be offered group membership as an aid to gaining in depth information. In order to explore this, let's imagine an accountant in the UK who has been asked by a client for information about Section 660 (the Inland Revenue's threat to assess additional tax on dividends paid to spouses in family businesses). Searching in Yahoo for Section 660, the first three relevant results (there are some US Section 660 references) are:

Notice that there are no pure information sources in the first three results; these are three groups. Further down the listing there are purer information sources, but you have to work to get to them.

3. To check on news updates, weather, etc. This is not a very groupish area, dominated by CNN, CBS, Fox, the BBC, and the like. However, a Yahoo search for 'weather news' brings up a 'sponsored link' at the top right to Parmedia, a membership news blog, which has an extensive Compact setting out the standards members are expected to adhere to.

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4. To get information about a hobby or special interest. Randomly picking 'greyhound racing' as a search term on Yahoo, we are given three national greyhound racing associations in the top ten search results. The first in order of these is the American Greyhound Racing Association. It offers membership, with access to a range of information and benefits, and it has a Code of Conduct for its members.

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This Code is representative of the hundreds of thousands of affiliation groups that exist on the Internet, and it is very clear that this group sets out desired behaviours among its members that have quite strong moral overtones. There is also a connection to relevant legislation, an appeal to fight against other, negatively-portrayed groups, and a call for financial support. There is no mention of trading; but this is a quasi-official body, and likely to frown on commercial activity.

This was a completely random example; any search term whatever with hobby or interest relevance is extremely likely to generate group membership invitations high up in the search results.

5. To gather information about products and services. Although there are possibilities for groupish relationships in the direct supplier/customer relationship, they are not widespread. The first result, Xerox, doesn't have a membership program, although there is a Channel Partners membership program for resellers, which is a bit groupish. However, a further search for Xerox Computer Printers is more fruitful: the first listing is for BizRate, a shopping search engine with a membership program which gives access to members' product reviews and has a forum-like feature. A search for 'Xerox users forum', something that a prospective purchaser might well undertake, yields a number of user forums. The first, very small, is www.printerscannercopier.com; the second is printer-review.com, which was quite active in 2003, but now looks quiet; the third listing is for Print-Planet.com, which is part of E-Communities, an extensive series of computer user groups which requires a substantial amount of personal and professional information before admitting members. It has a long user agreement.

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Members can send e-mails and other messsages ('posts') to their fellow members, which can have trading or commercial content, within limitations.

It's probably unnecessary to go on. Any use of the Internet comes up against user groups, forums, communities etc in short order; and they normally have sets of rules with more or less ethical content which seek to control the behaviour of members.

Curiously, the Harris poll didn't list - and perhaps didn't ask about - sex or gaming, which are regularly reported to be the two main uses of the Internet. Both of them no doubt have plentiful clubs, membership priviliges, forums, etc; but perhaps the most interesting aspect of gaming, loosely interpreted, from a groupish point of view, is to be found in the 'lifestyle' or virtual reality sites previously mentioned.

A quick search using search aggregator Copernic (just for a change!) yielded:

secondlife.com, a subscription membership service. Secondlife's 'Community Standards' are a good sample of virtual world 'ethical codes'.

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With fairly minor adaptions, it would do very well for a code of social ethics under which most 'real-world' inhabitants would be only too happy to live their lives!

Briefly, the Copernic search also yielded:

It may be objected that the Internet will never be more than peripheral to an average citizen's personal and social life. See Groups and The Internet for a short exploration of that topic, which comes to a completely opposite conclusion, ie that for most people the Internet will provide increasingly important support and involvement for many key aspects of their lives. In particular, the Internet will encourage the formation of multiple groups to which people will willingly belong, and each group will provide a framework of morals, ethics or law (call it what you will) for its members. These frameworks will owe almost everything to the genetic moral templates of group members, and almost nothing to government.

Governments will of course continue to provide 'repressive' law, in Durkheim's term, dealing with the public behaviour of people, and multinational organisations will provide law for most public economic activity, as described above, while the Internet will increasingly provide guidance for people's private behaviour.

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