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Book Review: ALLAN C. HUTCHINSON, Evolution and the Common Law. Cambridge: Cambridge University Press, 2005, 304 pp., ISBN 0521614910, £34.99 (pbk)

Document Cited in Related
Vincent
AuthorBart Du Laing
Published date01 December 2007
Date01 December 2007
DOIhttp://doi.org/10.1177/0964663907082739
Subject MatterArticles
/tmp/tmp-18izVV5nLupDcc/input BOOK REVIEWS
ALLAN C. HUTCHINSON, Evolution and the Common Law. Cambridge: Cambridge
University Press, 2005, 304 pp., ISBN 0521614910, £34.99 (pbk).
Central to Allan Hutchinson’s ‘radical challenge to all existing accounts of the common
law’s development’ (p. i) is the problematic relationship between stability and change,
or between tradition and transformation, as they make their appearance in the
common law. For Hutchinson, the main question is ‘how it might be possible to
account for stability in a process that is marked by its dynamism and organic quality’
(p. 2), rather than the other way round. To this end, the author draws upon the work
of Darwin and Gadamer, two scholars who are said to meet each other in that they
both ‘embrace a thoroughly historicized and contingent view of life and human
activity in which form, function, and goal are never given but shift and vary with
context and over time’ (pp. 17, 164).
Hutchinson presents Darwin’s theory of evolution as a descriptive and historically
based explanation of contingent organic development. An evolutionary approach to
development at the level of the legal system cannot, of course, function as a foun-
dation for ‘traditional’ teleological or normative accounts of (change in) the common
law. The evolutionary metaphor is said to merely underscore the fact that legal
development is not directed towards any goal and that any prior development is not
to be used as a normative basis for further action.
In the next two chapters, some particular debates around Darwin’s theory of evolu-
tion are used metaphorically to frame two competing ‘foundationalist’ jurisprudential
approaches. In the same way that ‘creationists’ see an ‘intelligent designer’ at work in
the existing complexity of biological organisms, Ronald Dworkin’s idea of law as an
abstract coherent system that is ‘working itself pure’, it is argued, unjustifiably intro-
duces a teleological dimension to the development of the common law. Richard
Posner’s more pragmatic and scientific...

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