[Editor's Note: Due to its large size the HTML Version of this article – this version – is published in two parts. This is part II/II. The PDF Version is published in one installment]

E. Evolutionary Theory and Law: Re-adjusting The Evolutionary Perspective

The adjustment necessary in order for evolutionary theory to become a legal evolutionary theory of the law in general and law-making in particular, is caused by the fact that evolutionary theory was born in order to explain phenomena different from the law, or at least to explain the legal phenomenon from a non-legal perspective.[50] The evolutionary approach was born as a metaphorical or analogical reproduction of the results reached in the natural sciences and biology (as to some American versions of evolutionary theory) or as a (more or less) direct transposition into legal analysis of methodologies created for social and economic sciences (as for the European side of the coin).[51] As a consequence, evolutionary theory when applied to the legal phenomenon tends to disregard both the specific nature of its object of investigation (the law) and the fundamental role played in the very formation of this object by the (internal) perspective adopted by the legal players, among which legal scholars should be included.[52]

One feature of the role of the legal discipline in the legal phenomenon in particular, as pointed out by Ross among the others, is its capability of changing the very object of observation.[53] In contrast to most natural sciences, and to a more direct and higher degree than for most social and economic sciences, legal scholars can actually directly influence the choice of patterns of future development of the law.

Legal categories such as ‘contract', ‘tort' and ‘criminal' have all, for example, been the objects of intense theoretical writing and this theoretical literature has in turn had important influences on shaping directly or indirectly the functioning of the legal reasoning within each category.[54]

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