Is there a law instinct?

• Author: Guttentag, Michael D.
• Position: Use of legal systems to organize social behavior

Table of Contents INTRODUCTION I. THE LAW INSTINCT HYPOTHESIS A. On the Three Essential Features of a Legal System 1. Distinguishing Legal Systems from Other Types of Normative Behavior 2. Distinguishing the Law Instinct Hypothesis from Related Claims 3. The Normativity of Law 4. The Union of Primary Rules and Secondary Rules 5. The Social Nature of Law II. EVIDENCE OF A LAW INSTINCT A. Early and Predictable Individual Development 1. Children's Aptitude with the Moral/Conventional Distinction 2. Secondary Rules in Children's Games B. Underlying Logic Inaccessible to Conscious Reflection (Dumbfounding) 1. Law and Dumbfounding in Economic Experiments a. Economic Experiments as Nascent Legal Systems (1) Normative Behavior in Economic Experiments (2) Two-Tiered Rule Structures in Economic Experiments (a) The Effects of Communication in Economic Experiments (b) Framing Effects in Economic Experiments (3) A Shared Practice of Rule Following in Economic Experiments b. Dumbfounding in Economic Experiments 2. Confusion about Law in Everyday Life C. Specialized Faculties 1. The Neuroanatomy of Participation in a Legal System 2. Genetics and Participation in a Legal System 3. Specialized Cognitive Abilities D. Universality 1. Anthropological Research 2. The Historical Record 3. Behavior in Psychology Experiments E. Viable Product of Evolutionary Processes 1. Comparative Ethology 2. Modeling the Evolution of a Law Instinct Conclusions INTRODUCTION

Almost all legal scholars assume that legal systems develop in response to purposeful efforts to achieve economic, political, or social objectives. (1) Evolutionary scientists, (2) jurisprudential scholars, (3) and law and economics scholars (4) either explicitly or implicitly presume that our reliance on legal systems is a matter of considered choice. For example, Owen Jones, a leading investigator of the relationship between evolutionary science and the law, (5) often uses the metaphor of the law as a "lever" to communicate the idea that law is an instrument used to shift behavior away from innate tendencies. (6) This Article considers the alternative view that the use of legal systems to organize social behavior is an integral part of human nature.

The view that legal systems are a product of instinct is consistent with a growing recognition among scholars that innate predispositions play a crucial role in shaping many aspects of human behavior. (7) For example, research on human communication shows that humans possess a suite of innate capabilities that are essential to the acquisition and use of language. (8) Steven Pinker introduces the idea of a "language instinct" to describe these various capabilities. (9) Other species may possess innate abilities to learn vocalizations, but no other species exhibits the nuanced, flexible, and protean grammar present in all human languages. (10)

There is evidence that innate predispositions strongly influence human faculties other than language as well. (11) Attention has recently focused on the extent to which moral behavior may be influenced by predispositions developed over evolutionary time. (12) John Rawls speculates in A Theory of Justice that morality has a deep innate structure, much as language does, (13) and researchers such as Joshua Greene and Marc Hauser provide evidence of the extent to which moral decision making is directly shaped by innate capabilities. (14)

Legal scholars have begun to explore how insight into the innate foundations of human behavior affects our understanding of what motivates formation of and participation in a legal system. (15) Robin Kar utilizes evolutionary science research to support his claim that both legal systems and moral systems rely on humans' innate abilities to engage in obligatory behavior. (16) Others have suggested that specific substantive areas of law, including criminal law (17) and property law, (18) are directly influenced by predispositions shaped by evolution. (19) Some scholars argue that similarities between legal systems and the social behavior of other species show that participation in a legal system is more than simply a cultural phenomenon. (20)

Is the basic structure of our legal systems shaped by innate predispositions similar to the way the flexible and protean structure of language is shaped by instinct? This fundamental question about the relationship between legal systems and innate predispositions remains unanswered and largely unexplored. This Article considers whether humans instinctively turn to a protean system of legal rules to organize social behavior, a claim that I call the "law instinct" hypothesis.

In considering whether humans possess a law instinct, Part I first identifies essential and distinctive attributes of a legal system. Largely following H.L.A. Hart's work, (21) this Article identifies three attributes as providing the necessary and sufficient conditions for the existence of a legal system. These three attributes are: (1) subjective acceptance that legal rules create legitimate obligations (the normativity of law); (2) the union of primary rules, which specify duties, with secondary rules, which dictate how to create, modify, and adjudicate the system's primary rules (the two-tiered rule structure of law); and (3) a shared practice of abiding by the rules of the legal system (the social nature of law). My claim is that each of these three features is essential to the existence of a legal system and directly draws upon innate predispositions for its expression.

Part II presents evidence that humans possess a law instinct. I present evidence as support for the law instinct hypothesis that is similar to the evidence presented by others in support of the moral-instinct and language-instinct hypotheses. This research highlights several indicia that, when combined, suggest that a behavior draws directly upon innate predispositions for its expression: (1) evidence that the behavior is expressed early and predictably in individual development, (2) evidence that the underlying logic of the behavior is inaccessible to conscious reflection (dumbfounding), (3) evidence of specialized capabilities that are particularly well-suited to carrying out the behavior, (4) evidence that the behavior occurs in all societies (universality), and (5) evidence that the behavior could be a product of evolutionary processes. Not only is each of these indicia present when people use language or make moral decisions, but also when people participate in a legal system.

As noted above, a first indication that a behavior draws upon innate predispositions for its expression is the early and predictable appearance of the behavior in individual development. In the context of language, for example, Noam Chomsky observes that it is "a system of remarkable complexity," which "[a] normal child acquires ... on relatively slight exposure and without specific training." (22) The ease with which children form and participate in legal systems is evident both in the psychology laboratory and on the playground. Psychology experiments reveal that young children recognize that the content of certain rules of behavior can be modified by an authority figure in a manner similar to the operation of the two-tiered rule structure of a legal system. (23) Likewise, many children's games contain both primary rules, which dictate how a game is to be played, and secondary rules, which dictate how the game's primary rules are to be established, modified, and adjudicated. (24)

A second indication that a behavior is innate is that the behavior is based on a predictable and nuanced logic that is inaccessible to conscious reflection (dumbfounding). In the context of morality, for example, Jonathan Haidt shows that most people strongly disapprove of incestuous behavior but are incapable of providing a plausible explanation for their disapproval. (25) Haidt argues that such dumbfounding provides evidence that our morality is influenced by innate predispositions. (26) The logic underlying our participation in a legal system also appears to be inaccessible to our conscious reflection. Much of the behavior observed in psychology experiments resembles the type of behavior engaged when participating in a legal system; however, the participants in these experiments are generally incapable of explaining the subtle and complex rules guiding their behavior. (27) subjects in these experiments appear to participate in a kind of nascent legal system and do so based on a logic that is inaccessible to conscious reflection.

A third indication that a behavior is innate is the existence of specialized faculties that are especially well-suited to carrying out that particular behavior. At present, evidence linking specialized faculties to participation in a legal system is preliminary. (28) Research from three different disciplines--anatomy, cognitive science, and genetics--can reveal the kinds of specialized faculties that suggest a behavior is innate. In anatomy, neural imaging technologies suggest a link between specific neural substrates and normative decision making generally, (29) but these findings do not yet illuminate neural underpinnings specific to law-like behavior. (30) More suggestive of specialized faculties particularly well-suited for participation in a legal system are findings from a series of cognitive science experiments involving the was on selection task. These experiments show that people are more adept at applying logical rules when a problem is set in the context of a social rule. (31) A cognitive ability attuned to social-rule calculations is precisely the type of specialized faculty that would facilitate participation in a legal system.

The ubiquitous expression of a behavior is a fourth indicator that the behavior under study draws directly upon innate predispositions. (32) Language, for example, is present in all human societies--even among children who are raised in the absence of...