Tulsa Law Review

Volume 55 Issue 3

Spring 2020

Law’s Coevolution

Alan Calnan

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Part of the Law Commons

Recommended Citation Alan Calnan, Law’s Coevolution, 55 Tulsa L. Rev. 363 (2020).

Available at: https://digitalcommons.law.utulsa.edu/tlr/vol55/iss3/6

This Article is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Tulsa Law Review by an authorized editor of TU Law Digital Commons. For more information, please contact [email protected]. 42208-tul_55-3 Sheet No. 5 Side A 05/15/2020 10:30:18             

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t UBLISHER UBLISHER ’ P E. Donald Elliott, Elliott, Donald E. , 76C 44 (discussing Sir Henry James Sumner Maine Sumner James Sir Henry (discussing 44 note 2,note 38. at instinct ± don ” ” FOR FOR clear is the ma see also see $V3URIHVVRU('RQDOG(OOLRWWH[SODLQV³7RGD\WKHLGHDWKDWO ” is at 43 at at 46 (quoting Maine 46 (quoting at supra supra ; 3 legal Robert Gordon, W. Anthony J. Sebok, societies, culminating in modernity in culminating societies, must go throughseveral ¶ “ ´ Realism Now Realism What But evolutionaryBut jurisprudence has not Law evolves. For nearly the last two centuries, perhaps no other adage has more more adage has other no perhaps centuries, last two the evolves. For nearly Law , A - FINAL . See generally generally . See . See id. id. . See . See . See id. id. . See . See id. . See . See . See 2 6 7 3 5 1 jurisystems ALNAN dynamic (describing evolutionary functionalism as as functionalism evolutionary (describing µ transformation are not certain, legal positivists typically point to human agency transformation legal are legal positivists while point certain, human to not typically realists cite social influences. historicism, legal realism,historicism, sociological and jurisprudence, even lawthe and economics movement. spectrum of conceptualism everything legal theory, informing andfrom pragmatismspectrum societies ELRORJLFDOWKHRU\OHJDOHYROXWLRQLVDPHWDSKRUIRUGHVFULELQJ continuallymanner, in adapts a linear and progressive law that to its environment holds (1985) (noting the social, doctrinal, economic, and sociobiological approaches to legal evolution). evolution). legal to approaches sociobiological and economic, doctrinal, social, the (noting (1985) progression of this evolutionary theme through the firstthree movements). Elliott, 4. Singer, by designed constructs, social are they system; logical timeless universal, some in inherent not are principles people in specific historical and social contexts for specificpurposes to achieve specific ends natural 364 364 C people cooperate, this instinct foments prosocial impulses, social norm circles, and peer socialfoments instinct impulses, prosocial peer and circles, norm this cooperate, people law localized, and informal proto-legal are these mechanisms Because punishments. such entrenched, them. Once and regulate interlocking reconcile, to coordinate, emerges “ immediately, they resolve human conflicts, relieve social stress, and reinforce social and reinforce immediately,relieve social stress, human conflicts, they resolve eventually which memory, becomes cultural our in shape embedded they also But bonds. In this our DNA. way, law is a bio-social co our sense renews that constantly of legality. shedding old forms as it advances toward as it advances modernity. toward old forms shedding fully captured the essence of modern jurisprudence. captured essence of modern the fully between law and social change for the last two centuries two last the for change and social law between $*.HOOHUSUHVHQWHGDVRFLRELRORJLFDODFFRXQWRIODZ¶VHYROXW and, them,institutions, among law, adjustmentshow to life-conditions by of the stockway selection, factors of Darwinian variation, VR GHHSO\ LQJUDLQHG LQ $QJOR$PHULFDQDZDUHQHVVRIWKHMXULVSUXGHQWLDOWUDGLWLRQZHDUHLQYRNLQJ´ OHJDO WKRXJKW´ WKDW ZH OD 202 (2012) (noting that evolutionary theories of law have have law of theories evolutionary that (noting (2012) 202 theconviction classical of legal positivists that was law founded on reasonand human will); Joseph William 42208-tul_55-3 Sheet No. 5 Side B 05/15/2020 10:30:18 B 05/15/2020 Sheet No. 5 Side 42208-tul_55-3 42208-tul_55-3 Sheet No. 6 Side A 05/15/2020 10:30:18 , 13 J. According to to According Keller was not not Keller was actual material 8 12 HQFHKDVSURYHQ with the very things the very things with 10 with 43 (2017). (2017). 43 ± SOH[LW\%XLOGLQJRQWKLV O¶VIRRW´ RFLRORJ\¶VFDXVDOLW\GHEDWH coevolved the same relationship currently relationship the same .L.J. 1, 27 1, .L.J. 365 365 ² ION s mixture of internal and external influences on on influences external and internal of s mixture T ¶ real phenomenon real evolve; it NTERDISC 5 (1881). 5 (1881). .I coevolution, causalexamined it has the s ). ). just AW ’ AL ´ In recent decades, these truths recent decades, these In been have L C law, like all other living things, is evolutionary, persisting persisting evolutionary, is things, living other all like law, 15 ³ he later described these supposed antipodes as antipodes supposed these described later he law 9 COEVOLU

factors. factors. L.J. 769, 773, 775 (1919). 775 (1919). 773, 769, L.J. , 27 , 27 S. ) 5/6/2020 ) 4:08 PM S OMMON s transitionto this position). ’ ¶ C ALE both ELETE 44 (detailing Holmes HE Holmes and Evolution: Legal Process as Artificial Intelligence Artificial as Process Legal Evolution: and Holmes ± D LAW ,T OT , 28 , 28 Y while the while social sciences demonstrate thesehow instincts . In fact, his realism realism his . renowned fact, was inspiredIn American by N O 14 OLMES (D In short, law did not did not law short, In , not , not and linear. accretive While the legal reason guided system H 13 . 44. 44. 16 ± note 10,note 140 at note 8, at 771 (stating that that (stating 771 8, at note Beyond Jurisprudence Beyond UBLISHER UBLISHER forces in the evolution of human problem solving. problem human the of in evolution forces P ENDELL E. DonaldElliott, 56. 27. Law in Evolution W ± ± supra supra supra supra FOR FOR each other at 115,140 at 23 at 43 of human rationality and surrounding social structures. This dynamic and surrounding rationality was human of LIVER LIVER natural .Holmes (describing 113 (1984) feedback loop in which reason, society, and law continually enlightened and continually society, and law reason, which in loop feedback evolutionary realistevolutionary Elliott, Elliott, Holmes attributed this process not to any isolated factor, but rather isolated but to attributed process not this Holmes factor, any to the Keller, O Alan Calnan, Calnan, Alan 11 TUD . See See Keller and Holmes did more than expand the prevailing did Keller expand and Holmes the than more evolutionary metaphor. The present article now brings this sociological insight to law. It argues that law is that law It argues insight this sociological brings to law. article now The present 7KRXJK.HOOHUDQG+ROPHV¶VPXVLQJVZHUHPHUHO\WKHRUHWLFDOVFL One of the few fields to effectively merge these findings is sociology. While is sociology. these findings merge few to effectively the fields One of S , A - FINAL M K . See . See . See id. . See . See generally generally . See . See . See . See id. . See . See id. . See . See . See C Y circular 12 13 10 11 16 15 14 EGAL ALNAN relationship between human agency and social influence agency human between relationship sociology does not specifically address does not sociology bedeviling legal theory. theorists sociology Historically, their have mirrored or catalyst one that defend splitting intofactions feuding by counterparts jurisprudential Backed approach. taken a has unifying thinkers more of wave a new However, other. the coevolve complex that artifactsnaturally law systems cultural show like by theory, they coordination of the dynamic from 9. refashioned Holmes, these forces did not push law toward some inexorable end. Instead, they formed inexorable toward end. Instead, they some law push did not these forces Holmes, a PXFKHYROXWLRQDU\SURGXFWVDVDUHWKHKRUVH¶VKRRIDQGWKHFDPH only as it secures adjustment toa changing environment 8. A.G. Keller, A.G. 8. 2020] 2020] C from external provided within, society from of a constant source information. integration and systemicsynergistic law). L the only only the jurisprudent Oliver Wendell Holmes Jr. ThoughHolmes famously declaredlaw that emanates experience and logic, from not amplified by systemsamplified by science, reveals which suchhow instincts and institutions become reinforcing. mutually They introduced a radically different set of assumptions. To Keller, the evolution of law law of evolution To the Keller, assumptions. set of different a radically introduced They and society was a heuristic; not rather, it a was a complex information system coevolving with the biological, and sociocultural system information rational, coevolving a complex with V\VWHPVWKDWFRPSULVHLW3DUW,,VHWVWKHVWDJHE\UHYLHZLQJV DQGWUDFLQJWKHILHOG¶VPRYHPHQWWRZDUGVUHFRQFLOLDWLRQDQGFRP that make it intelligible.it make that them correct.mostly The sciencesnatural explain now develop biologicalhumans how instincts conducive to law, symbiotic symbiotic into and cultural legalgrow institutions. causes 42208-tul_55-3 Sheet No. 6 Side A 05/15/2020 10:30:18 A 05/15/2020 Sheet No. 6 Side 42208-tul_55-3 42208-tul_55-3 Sheet No. 6 Side B 05/15/2020 10:30:18 M K C Y This network of 19 HLWVDWLVILHVRXUQHHGIRU 3 (2010). 3 (2010). GHHGRIWKHVRFLDOVFLHQFHVPRUH 17 [Vol. 55:363 55:363 [Vol. TRUCTURES NSIGHTS S I ,QIDFWVRFLRORJ\¶VVHDUFKIRUWKHQDWXUH S ¶ OCIAL OCIAL S ) 5/6/2020 ) 4:08 PM OCIOLOGY OWER OF S ULSA LAW REVIEW LAW ULSA ELETE P Over time, these Over time, mechanisms a complexformed legal T D II. 18 OT 9DVVKDVGHVFULEHGVRFLRORJ\¶VFDXVDOLW\GLVSXWHDV³QRWKLQJ N AUSAL AUSAL O C (D HE ,T ASS UBLISHER UBLISHER P -V The Conclusion Theexplores how Conclusion these explosive are likely to affect findings FOR FOR Part IV. IV.B. Part IV.C. Part IV.C. Part 20 Because law is a central feature of society, this sociological controversy has has sociological this society, controversy of is a central feature Because law LDER beginning first in our biological systems, spreading upward through our social social our through upward spreading systems, biological in our first beginning E 21 ² AVE AVE Law is one of the tools used by societies to solve the problem of group living. living. of group the problem societies to solve the tools used by of is one Law studies positionedBecause societies sociology it is uniquely to and their members, Sociologist DaveSociologist Elder- With this background in place, Part IV identifies the coevolutionary patterns of law. law. of patterns coevolutionary the identifies IV Part place, in background this With , A - FINAL . See infra infra . See infra . See infra . See infra . See 17 18 19 20 ALNAN network that prominent, permanent, autonomous, and preeminent.was network Though individuals within the collective choose their survival strategies, these decisions the consensus expands, others. As are by they approved true and enforced power when gain Before long, practices and community social norms. become soon preferences private conformity for pressure exerting that own, all their a force expectations carry these solidarity.galvanizes group assess only thesehow not associations but and transform, also form determineswhat their Traditionally,dynamics. sociologists have framed terms: causality binary the question in Do or does people society control society its control people?Dissatisfied either by choice, theoristssome have attempted or to reconcile synthesize these causes, often combining by effects. a Today, their new generation of skeptics has another alternative: offered yet societies are complex information systems that shape their constituents human even as as the network them,are constituted a though by they different remains whole always from the than itssumand greater of parts. Structureand A. Agency ³MXULV\VWHPV´HPHUJHGDQGFRQWLQXHVWRIORXULVKQRWRQO\EHFDXV but also because itsocial stability, our heritable urges reinforces and cooperation for coordination. 21. D 21. OHVVWKDQDEDWWOHIRUWKHKHDUWDQGVRXO´RIWKHILHOG³DQGLQ JHQHUDOO\´ theory. law relevance legal for and tremendous or essence of society is reminiscentstrongly of the two trendsmain in jurisprudence. Legal embracepositivists the agency position, that people law arguing theirthrough make systems approach, Part III reveals the natural and social synchrony behind human human behind socialsynchrony and the natural reveals III Part approach, systems it circularevolution. Specifically, of a process shows legality passed human how through causality a through subsystem downward genetic eventually our seeping and into systems, epigeneticscombination of and gene-culture coevolution. 366 366 C It argues that our inner legal instinct expanded outward into the the into initially legalsocial expanded outward instinct inner world, our that It argues proto-legal norm social of collection a impulses, like prosocial mechanisms inspiring peer punishments. circles, and the future of jurisprudence. of future the 42208-tul_55-3 Sheet No. 6 Side B 05/15/2020 10:30:18 B 05/15/2020 Sheet No. 6 Side 42208-tul_55-3 42208-tul_55-3 Sheet No. 7 Side A 05/15/2020 10:30:18 , WHUVLV ILLIAMS W social life, LQVWLWXWLRQ´ By contrast, contrast, By 27 AYMOND AYMOND 49 (2005). 49 (2005).  IUHH UHVXOWLQJ IURP like customs, traditions, 28 YSTEMS ² S 21 (2012) (citing R (citing 21 (2012) 367 367 24 OMPLEX OMPLEX and at still others to refer to social to social refer to others still at and DJHQF\RUHYHQZKDW³VWUXFWXUH´LV C ± ION such specific structuressuch specific are aspects of T 57 (1st ed.1976)). ± ² But even these forces can be refined still still refined be But can even these forces 153 25 ONSTRUCTION OCIETIES AS AS OCIETIES C :S OCIETY COEVOLU

S A more recent sect of biological reductionists look biological reductionists look recent sect of more A OCIAL OCIAL ) 5/6/2020 ) 4:08 PM S S ’ 29 ELETE empirical empirical regularities MERGENCE D ± 64. 64. LAW E ± OT 30 N EALITY OF ULTURE AND O 93 (making the same point). R C OCIAL OCIAL ± (D G VRFLDO VWUXFWXUH ³LV WKH GULYLQJ FDXVDO IRUFH LQ ,S HE This approach dates back to nineteenth-century philosopher Karl to nineteenth-century This Karl philosopher dates back approach 192 ,T 31 note 7, at 474. 474. at 7, note note 7, at 262 &RQYHUVHO\UHDOLVWVDQGVRFLDOWKHRULVWVVD\ODZLVD³VRFLDO ASS UBLISHER UBLISHER AWYER P S -V *LYHQWKHREYLRXVRYHUODSVRFLRORJ\¶VSHUVSHFWLYHRQWKHVH PDW 22 supra supra supra supra 26 FOR FOR OCABULARY OF see also id. id. also see 23 EITH EITH LDER K at 21. at 15. at 30. at 2. E :AV R. Sebok, Sebok, Singer, at 48; at 48; AVE AVE The difficulty in identifying theseThe structures difficulty has fomented about their skepticism The gist of the problem lies in the concept of social structure. Sociologists do not do not Sociologists structure. social concept of the in lies problem the of The gist While both groups agree that people shape society, they differ on how this occurs. occurs. this how society, shape on people differ agree that groups they both While structural Such of social structure. take the sociologists opposite view Other , A - FINAL M K . See id. . See . See . See id. . See . See . See . See id. . See id. . See id. . See . Id. . See . See persistent patterns of behaviour social be can there if or as properties of, are they what clear making without properties some particularof entity. propertiesproperties that are not Sometimes it is used to refer to an entity, paralleling the sense of structure in which a house, structure a house, of paralleling which the in to entity, sense it is used an to refer Sometimes to example, to is a structure;for in the refer is organised, sometimes an entity which way to to refer used it is times other At structure. a has house a in which sense the paralleling C Y 26 27 25 22 28 29 30 31 23 EYWORDS ALNAN shaped by changing social circumstances even if human choices have a hand in its in a hand have choices human if even circumstances social changing shaped by rational choices. rational K 24. D 24. existence. Ontological individualists believethat social structure is real at all butnot aggregatedof summary behavior. just a shorthand individual actually While there may be many different kinds of social structures of kinds different be many there While may institutions, and so forth practices, organizations, and discourse, culture, knowledge. language, social structures bottom, to influence theAt are social forces power causal further. with affairs. human development. instructive our jurisprudence. for particularly structure human agree about phenomena social which Elder-Vass As reports, to mean. supposed 2020] 2020] C

methodological individualists that hold social structures although possessmethodological properties that agency, science to individual be reduced a cannot eventually provide presently will these explaining in for structures individual terms. methodology for deeper explanations. They argue that agency that or the genetics human They our argue explanations. derives from deeper for brains. our in networks neural determining even properties such the as consciousness, individual andof determining rationality, FRJQLWLYHFDSDFLWLHV´ determinists or sociological or sociological determinists thatholists believe primacy have phenomena macrosocial indee individuals; over 9ROXQWDULVW VFKRODUV VD\ WKDW SHRSOH¶V will. human of exercises unabridged FKRLFHV DUH UDWLRQDO DQG 42208-tul_55-3 Sheet No. 7 Side A 05/15/2020 10:30:18 A 05/15/2020 Sheet No. 7 Side 42208-tul_55-3 42208-tul_55-3 Sheet No. 7 Side B 05/15/2020 10:30:18 42 36 M K C Y EHLQJ Rather, 39 Marx was Marx was 32 WVDWUDSSURFKHPHQW 38 FRQVFLRXVQHVV´ KXPDQLQGLYLGXDOV´ 9DVVDGYLVHV³LWLVVWULNLQJWKDW - [Vol. 55:363 55:363 [Vol. Prefacetoa Contribution to theCritique of but he also attributed social behavior he also attributed but emphasizes the importance of structure of emphasizes the importance ² On the other side of the divide, individualist individualist the divide, side On other of the ary authors . . . reject the implication that implication authorsary the . . . reject 37 19 (George Simpson ed., John Spaulding A. George & ± For example, Marx the structuralist not only only not structuralist Marx the For example, 4 (R.C. Tucker ed. 1978)). 35 318 ) 5/6/2020 ) 4:08 PM 88. ± EADER R ULSA LAW REVIEW LAW ULSA ELETE UICIDE T D ,S OT called structuration N NGELS NGELS O -E ² This holistic different spread to view the throughout fields (D note 27, at 87 27, at note 33 URKHEIM ARX note 21, at 1 (quoting Karl Marx, Marx, Karl 1 (quoting at 21, note note 21, at3. 4. at 21, note note 27, at 54. 54. 27, at note D note 27, at 48, 161. 161. 48, at 27, note M 9DVV ³PDQ\ FRQWHPSRU supra , KDW³>L@WLVQRWWKHFRQVFLRXVQHVVRIPHQWKDWGHWHUPLQHVWKHLU HE UBLISHER UBLISHER supra supra P MILE supra supra supra T supra supra supra , , , , , in , 34 FOR FOR Under this approach, it is not possible to analytically separate individual it is approach, Under this possible to analyticallynot separate individual In this sense, In structure and agencyserve to constitute each other. mutually ASS ASS ASS AWYER 40 41 -V -V -V at 3. ; S AWYER AWYER S S (quoting É (quoting LDER LDER LDER One synthesis theory 6RFLRORJ\¶VVWUXJJOHRYHUFDXVDOLW\KDVIRVWHUHGYDULRXVDWWHPS Despite the persistent turf thesewar camps, between there always at hasbeen least E , A - FINAL . Id. . . See . See . See id. . See id. . See id. . See . Id. id. . See . See . See agency. 33 40 34 36 37 38 39 41 42 ALNAN 0D[:HEHUFHUWDLQO\WRXWHGVRFLHW\¶VUDWLRQDOEDVLV the ethic protestant and like to cultural free-marketforces capitalism. Political Economy these progressives see thethese two as compatible or even complementary. forces they Thus, have explored various middle-ground solutions in the hope of finding some means of reconciliation. and action and structure circular action macrosocial in a continual loop of because the two are bound this During process, causality. agencyhuman shapes society even as it is being constrained byand informed existing social structure structures. Thus, is externalnot to agency; rather, instincts individuals making internal and to the a set of memories structure is at least partly choices.the 35. E 35. 32. E 32. EXWRQWKHFRQWUDU\WKHLUVRFLDOEHLQJWKDWGHWHUPLQHVWKHLU to Elder- According B. Reconciliation Marx, who wrote t wrote who Marx, structure and agency represent a binary choice: that either social is behaviour determined E\VWUXFWXUDOIRUFHVRULWLVGHWHUPLQHGE\WKHIUHHFKRLFHVRI 368 368 C twentieth century. Today, structural determinism still determinism structural enjoys Today, a considerable following, century. twentieth sociocultural the of influencing psychologists, work structural and sociologists, network theorists alike. believed that people can make their own history, he also exhorted to do so. he own history, their people them believed can that make

Likewise, Durkheim balanced an insistence Durkheim with sociology thatLikewise, determinist people his have to resist the collective power pressures. Simpson trans., Routledge & Kegan Paul ed. 1952) (1897)). (1897)). 1952) ed. Paul Kegan & Routledge trans., Simpson VRPHFRPPRQJURXQG³>,@IZHORRNPRUHFORVHO\´(OGHU joined by famed sociologistjoined Émile a Durkheim in by the belief by peoplethat are dominated reality. moral collective many apparently structuralist or unwilling unable practice to been in have many thinkers individualist or unwilling thinkers unable dispense agencyhave been and apparently with LQ SUDFWLFH WR GLVSHQVH ZLWK VWUXFWXUH´ 42208-tul_55-3 Sheet No. 7 Side B 05/15/2020 10:30:18 B 05/15/2020 Sheet No. 7 Side 42208-tul_55-3 42208-tul_55-3 Sheet No. 8 Side A 05/15/2020 10:30:18  54 ¶´ ³7KH\ Post- 53 45 and until the and until the 50 KH PRVW ZLGHO\ Social Systems: Complex HUDWHLQUHODWLRQWRWKHLU note 27 (publishedin 2006); op-down Emergence in Social Social in Emergence op-down T KDYHKDGDOPRVWQRLPSDFW GHXSRIDODUJHQXPEHURI agency real are distinct but HQWLILFE\WKHPDLQVWUHDPRI H DSSDUHQW FDXVDO SRZHU RI supra , and 369 369 . 1, 1 (2016). (2016). . 1, 1 AWYER ION T RG structure &O both LVWKDWWKH\DUHFRPSOH[DQGDGDSWLYH´ The catch is, dualism is rapidly disappearing. As rapidly disappearing. As is The catch is, dualism COEVOLU

) 5/6/2020 ) 4:08 PM 46 OMPLEXITY OMPLEXITY S 47 he Dialectic of Bottom-up and and Bottom-up of he Dialectic ’ T 52 :C ELETE D LAW Thesealso condemn critics structuration conflating for OT But that tide is now turning. Beginning in the mid-2000s, the mid-2000s, in Beginning turning. now tide is that But N 44 treating essentially as them same thing. the Since science accepts thenow interdependence and of mind O 51 VLPSOHZD\¶DQGWKDWµJLYHQWKHSURSHUWLHVRIWKHSDUWVDQGWKH note 52, at 1. 1. at 52, note note 21 (published2010); in S MERGENCE ² note 21, at 4. 4. at 21, note (D 48 LWLVQRWDWULYLDOPDWWHUWRLQIHUWKHSURSHUWLHVRIWKHZKROH 30 (2005) (published in 2005); Marta Lenartowicz et al., note 27, at 49, 93. 93. 49, at 27, note supra supra , 18E ± supra supra supra supra , , At the least, At the very say, they structuration is inconsistent on point. this UBLISHER UBLISHER P constitute a constitute society. supra ASS 43 ASS , -V -V C 28, 28 C 28, FOR FOR 2. ± at 125. at 88. at 2. jointly LDER LDER AWYER E S E TRIPLE the structure/agency debate in sociology continues structure/agency the sociology debate in to rage. at 1 at 29. at 29. at 7. at 7. 49 , 3 Structurationists been have taken post-structurationists. group a task to by of These Lenartowicz et al., al., et Lenartowicz Recently, a newhowever, begun voice discussion: has to alter the complex systems Yet the post-structurationists also are not immune from criticism. By proposing the post-structurationists proposing By Yet the criticism. immune from also are not ,Q IDFW RQH PXOWLDXWKRU SXEOLFDWLRQ EROGO\ SURFODLPV WKDW ³>W@ , A - FINAL M K . See . See . Id. . Id. . . See id. . See id. . See . See . See . See id. . See . See id. . See id. . See . Id. C Y 47 54 48 53 44 45 46 52 43 49 50 51 ALNAN Systems Christian Fuchs & Wolfgang Hofkirchner, Hofkirchner, Wolfgang & Fuchs Christian Though it calls structure an abstraction no causal powers,with it also promotes causal the ofrelations. social efficacy structurationists resolve this paradox by agency structurestructurationists resolveseparating this and by from paradox ascribing influencecausal to each. Under this view, individuals andsociety individuals ODVWGHFDGHRUVR³FRPSOH[V\VWHPVFRQFHSWLRQVRI>FDXVDOLW\@ RQ>VRFLRORJLFDO@GHEDWHV´ social structures.social FULWLFV KLJKOLJKW VWUXFWXUDWLRQ¶V FUXFLDO IDLOXUH WR H[SODLQ WK social theorists started experimenting startedsocial theorists complexity experimenting with theories devoted the explaining to of social emergence. Thatphenomenon continues and today to build, momentum a constitutes full-blown movement. 2020] 2020] C DUHFRPSOH[´WKHDXWKRUVQRWH³LQWKHVHQVHWKDWWKH\DUHµPD interact in a parts that non- interaction, their of laws 6XFKV\VWHPVDOVRDUHFRQVLGHUHGDGDSWLYH³LQDVIDUDVWKH\RS environment in such a manner that preserves a certain set of their characteristics invariant their set of a certain in a such preserves environment that manner 6DZ\HUUHODWHVGXDOLVWRQWRORJLHVWRGD\³DUHUHMHFWHGDVXQVFL DOOVFLHQWLILFGLVFLSOLQHV´ C. Complexity sociologists Prior 1990s, generally theory. systemsignored theory, to the matter, things that things causality of people and societies, the post-structurationists appear to support a dualist post-structurationists dualist the societies, people and a to support of causality appear kinds. and social rational of ontology accepted account of social of today accepted account systems Adaptive Lociof Cognition 42208-tul_55-3 Sheet No. 8 Side A 05/15/2020 10:30:18 A 05/15/2020 Sheet No. 8 Side 42208-tul_55-3 42208-tul_55-3 Sheet No. 8 Side B 05/15/2020 10:30:18 So M K UMAN 62 -level C Y H 4, 6 (2005). basis of ± LQIRUPDWLRQ 3 XPLAIN XPLAIN E Consequently, 56 URFHVVHV XVHG WR AN V D VLPXOWDQHRXV VFLHQFHRIFXOWXUH´ He even maps out out He even maps C ULTURES biological 58 C WDOO\LQWHUGLVFLSOLQDU\´ HEORY ULHV´ T note 27, at 8 (relying on recent empirical empirical recent on (relying 8 at 27, note VOLUTION OF [Vol. 55:363 55:363 [Vol. E OHYHO SURFHVVHV´ DQG ³PLFUR ARWINIAN ARWINIAN supra D , Sociologist Keith Sawyer urges other Sociologist Sawyer Keith urges other 59 OW RIGIN AND RIGIN 57 AWYER O :H distinguish[] complex social systems from the complex complex the from systems social complex distinguish[] S ³ HE Ultimately, these information exchanges create exchanges these create Ultimately, information 3. ,T ± 61 55 51 (2011). 51 (2011). ) 5/6/2020 ) 4:08 PM see also recognise and to seek theorise the VOLUTION E ULSA LAW REVIEW LAW ULSA ELETE T D must ICHERSON ). ). CIENCES en unwilling to explain macrolevel patterns and trends that patterns to explain macrolevel en unwilling ´ S OT note 56, at 2 56, note J. R N O note 52, at 2; 2; 52, at note ULTURAL ULTURAL (D group properties emerge from rather complex and subtle differences in symbolic OCIAL OCIAL ³ LQGLYLGXDOEHKDYLRU´ ETER supra supra S , ,C &P supra supra UBLISHER UBLISHER HGYLHZSRLQWOHGVRFLRORJLVWVWRDWKLUGUHYHODWLRQ6RFLHW\¶V 63 P 19. OYD ESOUDI ESOUDI social in nature, but also has clear biological origins. Information, after also social in Information, but has origins. nature, clear biological ± B M 60 FOR FOR just and these informational dynamics dynamics informational these and ´ is that medium. Genes embed information in brains, brains inform bodily acts, acts, bodily inform brains brains, in information Genes embed medium. that is LEX LEX at 6;M at 208 YNTHESIZE THE YNTHESIZE OBERT A R at 2. at 2. account of human action action human of account at 51, 52. 52. at 51, at xii. at xii. at 7. at 7. &S The next dimension of social complexity is itsThe dimension of trans-systemic next connecting medium for This burgeoning account of account socialThis burgeoning complexity has developed The directions. in four This expand 7RDFKLHYHWKHQHFHVVDU\V\QWKHVLV0HVRXGLSURSRVHVD³XQLILHG , A - FINAL full LWKLQDOLPLWHGUDQJHRIYDULDWLRQ´ . See . See . Id. . Id. . Id. . See id. . See . Id. . See id. . See . Id. . See . 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Increasingly, theorists higher agree that lower processes at the information within information then share who individuals, information to other bodies communicate and institutions. organizations, groups, system is not communication studies, Sawyer concludes that that concludes Sawyer studies, all, is merely aall, is of collection merely To data points. smaller assess at the facts macrolevel, one examinemust bytes the informing In them below. human systemsfrom and like society Elder-Vass Indeed, this of level down biology. looking law, means to the says that the beliefs, andthe normsknowledge, behavior. of informs culture, human which further C or w or 370 370 C such a scheme its plausibility. to demonstrate UHVHDUFKHUVWRIROORZVXLW&RPSOH[VRFLRORJ\³PXVWEHIXQGDPHQ 6DZ\HU H[SODLQV ³EHFDXVH D levels analysis: their individuals, of multiple of consideration language, IRFXV communication RQ >VRFLDO@ HPHUJHQFHDQGWKHJURXS´ UHTXLUH rather than rather than exclusively onfocusing agency or social structure, social complexicists human QRZ VWXG\ DOO RI PDQNLQG¶V GDWD them.disseminate VWUHDPV DQG WKH FRPPXQLFDWLRQ S disciplines disciplines such psychology as have to acknowledgefailed to the extent which macrolevel cultural processes shape first first is a zealous of cultural interdisciplinarity. pursuit evolutionist AlexAs Mesoudi points although systemsout, theory requires a linkage between and micro- processes, macro-level social the sciences traditionally have separated these levels,psychology tasking with individuals and assigningexamining to culturalsocieties anthropology. 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) 5/6/2020 ) 4:08 PM S ’ 64 ELETE I WKHLU HPHUJHQFH :H¶OO WKHQ VHH KRZ WKHVH V\VWHPV 66 D LAW ATURAL AND AND ATURAL OT note 52, at 46. at 46. 52, note N N O (D III. supra supra O DQG OHJDO SKHQRPHQD PD\ EH LQIOXHQFHG ³ERWK E\ WKH VRFLDO note 21, at 92 (emphasis added). added). (emphasis 92 at 21, note UBLISHER UBLISHER P supra supra , FOR FOR ASS -V at 194. LDER society, exerting a coordinative force on the the systems on force exerting a coordinative below.society, So to truly understand law, we these bottom-up explain first we law, must understand So to truly and top-down 6RFLRORJ\¶VLQVLJKWVVKHGOLJKWRQDQLPSRUWDQWMXULVSUXGHQWLDO Together, developments these effectively have systematized Given sociology. its But even this deep dive does not go far enough. Because information systems are Because are systems enough. information far go does not dive deep this even But , A - FINAL M K . Id. . Id. Social information can be seen social consciousness as a type of the emerges that social from situation.. social . in a . subjects participating of individual the consciousness of relations Social information constrains enables and individual consciousness and action. this In the have dialectical bottom-up- individual relationshipof information, we and social emergence social information of and the top-down-emergence of individual information. . . endless. The individual of movement information, i.e. the and permanent emergence social two-fold dialectical self-organisation process of is a system, information the that new of in [the]is inherent to system. social this relationship betheorised potentially can an as emergence relation phenomena mental of bodies. and brains physical our from C Y 65 ALNAN growth, this field now this agency the to connect now field of and andhas solve structure one growth, capacity its longest enduring mysteries. it also But promise legal theory.holds for Because social permeatescomplexity all cooperative cultures, it can help the complexus grasp of nature PDQNLQG¶VKLJKHVWFXOWXUDOLQVWLWXWLRQODZ 64. E 64. This means that socia thatThis means conscious of powers human uniquely own our by also but environment, our in structures UHIOH[LYHWKLQNLQJDQGLQGHHGE\ELRORJLFDOIDFWRUV´ 2020] 2020] C coevolve over time as time a real, indivisible agency, over coevolve nature, and whole social structure form is constantlythat shapingshaped and its equallybeing by real parts. dynamics. We will begin by exploring the natural foundations of human sociality, of human the foundations exploring natural by We begin dynamics. will the detailing path o specifically above focus was conceptually restricted to society and its members. But that field now reveals restrictedfocus and its conceptually field now members.was to society But that social law, like other that institutions, is not our social system,it emerges from our of IRUFRRUGLQDWLRQDQGVWDELOLW\$QGWKDW¶VQRWDOO/DZLVDOVR posit law as agents rational posit law powerful legal decisionssocial arise from or do their influences? the this Traditionally, was 66. Fuchs & Hofkirchner, & Fuchs 66. recursive, sociologists finally sociologists interrelationship. Relying to account had on finally recursive, their for theory, social dynamics they complexity now as a portray offlow or dialectical circular informationSuch is just not information. transmitted from system to another; one node it isinstead, locked in a continuous action, cycleIndividual of cognition, and recreation. choices affect society, but social structures simultaneously those decisions. inform As Christian Fuchs explain, and Wolfgang Hofkirchner 42208-tul_55-3 Sheet No. 9 Side A 05/15/2020 10:30:18 A 05/15/2020 Sheet No. 9 Side 42208-tul_55-3 42208-tul_55-3 Sheet No. 9 Side B 05/15/2020 10:30:18 HE M K YLQJ ,T The The C Y 73 NGSTRØM 15 (2017). 15 (2017). reconcile their ² ORST A. E W It follows that my that my It follows AVID  IRUPDO DQG IXQFWLRQDO \DSSURDFK>@WKHZKROH 68 EST AND AND EST &D B 71 UR 6DSROVN\KDVREVHUYHG³ZKHQ O ELSO [Vol. 55:363 55:363 [Vol. K possible to conclude that a behavior a behavior possible that to conclude COTT S UMANS AT UMANS 69 H Now recognized in fields ranging from ranging from recognized fields in Now including parts and wholes and parts including 74 this interdisciplinary insight helps to explain insight interdisciplinary to explain helps this ² 75 IOLOGY OF IOLOGY ) 5/6/2020 ) 4:08 PM B ULSA LAW REVIEW LAW ULSA HE 25 (citing J.A. ELETE ± This process seeks theto diminish instability of such T D :T 72 OT N PHQWLVWKDWKXPDQEHLQJVDUHERUQZLWKDQLQJUDLQHG³OHJDO´ O EHAVE (D Often, people will see only one extreme or another, but their their but extreme one or another, see only Often, people will ,B 70 s work). s work). (2006)). (2006)). ¶ note 14, at 16. 16. at 14, note note 14, 24 14, at note H RU D PDWHULDO SDUWLFOH EXW KH ODWHU H[WHQGHG WKH LGHD WR ³OL UBLISHER UBLISHER P APOLSKY 27. ATURE ATURE supra supra ± ³7KXV´6DSROVN\FRQFOXGHV³LWLVLP N FOR FOR supra supra any given type of explanation is the end product of the influences that influences the of explanation end product is the type any of given M. S 67 at 23 at 24. at 67. ² Calnan, (discussing Bohr (discussing at 16. at 16. (making the same point about the descriptions in his book). book). his in descriptions the about point same the (making OBERT That said, even a workable shorthand depends on a recognized set of universal set of a recognized depends shorthand That on a said, even workable But an initial word of caution is in order. Any linear approach to these subjects will subjects to these approach linear will caution order. Any initial of is in an But word The thrust of my argu of my The thrust The next fundamental principle the complements Known asfirst. coordination Calnan, , A - FINAL . Id. . Id. . Id. . Id. . See . See . See id. . See . See id. . See . . See id. . See 68 69 71 70 72 74 75 73 OMPLEMENTARY OMPLEMENTARY ALNAN internal and externalinternal tensions.

principles. Beneath our diverse human systems diverse exist human Beneath our laws. a common principles. natural number of One of these is complementarity. Discovered acclaimed by physicist Niels Bohr, have contradictory nature complementarity tendencies in thatholds things a that form whole. complementary antinomies by perpetually by antinomies searching stabilizing, for solutions. middle-ground neurobiological, genetic,neurobiological, and developmental descriptions are really just a of type ³VKRUWKDQG´WKDWLQ6DSROVN\¶VZRUGVDOORZVPHWR³WHPSRUDULO PXOWLIDFWRULDODUFIURPDSDUWLFXODUSHUVSHFWLYH´ C 67. R 67. similarities ensure a remarkable degree of consistency. In effect, our inner regulatory regulatory inner our In effect, consistency. of similarities ensure degree a remarkable coordinative systems regulatory eventually corresponding external system produces with clearestBecause to see this is the at locate commonalities to properties. symmetry way examination our each level, and from genes brains an take will trajectory, moving upward socioculturalto the systems above. be a bit necessarily misleading. neuroscientist RobertAs SUHFHGHGLW´ sense that scalessense that to theirfrom up systems their biological cultural social and systems. 7KRXJK WKH WUDQVLWLRQV DW HDFK OHYHO DUH HPHUJHQW WKH V\VWHPV¶ A. Cultural Emergence Cultural A. of all the disciplines, these areexplain a behavior one you you invoking implicitly with disciplines 372 372 C dynamics, it explainssystems natural how dynamics, theoretical physics to physical chemistry, to physical physics theoretical is caused by a gene, a hormone, a childhood trauma, because the second you invoke one invoke second you because the trauma, a hormone, a a childhood by caused gene, is W\SH RI H[SODQDWLRQ \RX DUH GH IDFWR LQYRNLQJ WKHP DOO´ RUJDQLVPV´³FRQVFLRXVLQGLYLGXDOV´DQG³KXPDQFXOWXUHV´ perception depends both on their particular vantage point and on their means of their of and on means point vantage particular their on depends both perception as be viewed could light, which of photons in feature investigation.noticed Bohr this first an intangible wav objective is not necessarily to achieve balance but rather to find the right accommodation accommodation to balance right but necessarily achieve the is not objective to find rather function. system to maintain properties of 42208-tul_55-3 Sheet No. 9 Side B 05/15/2020 10:30:18 B 05/15/2020 Sheet No. 9 Side 42208-tul_55-3 42208-tul_55-3 Sheet No. 10 Side A 05/15/2020 10:30:18 HE ,T 135 (1994). (1994). 135 76 AMASIO D RAIN B OH[LQIRUPDWLRQ namely, the causes namely, WXUH¶VJHQHUDOUXOHV UMAN NTONIO WHP2YHUPLOOHQQLD . (Jan. 3,2000), H A M SURFHVV7KHDQLPDWLQJ (2017) (arguing that homeostasis homeostasis that (arguing (2017) Though it Though sets of a range .A 77 CI AND THE AND , for the system under scrutiny scrutiny under system the for ipolarity is detected, its polar ipolarity 81 one for selfishness and the other one other and the selfishness for 373 373 ULTURES , S both LFK VHHNV WR UHVWRUH WKH V\VWHP¶V ² see generally generally see C EASON ION ,R T AKING OF MOTION M :E COEVOLU But, as we But, as see shortly,we will this stabilizing is force

RROR ) 5/6/2020 ) 4:08 PM 39. S E 79 ± ’ ¶ AND THE AND , sets the parameters for such coordinative variation. such variation. for parameters setscoordinative the ELETE ² D note 75, at 75, note 111. LAW What Is Homeostasis? OT EELING LQWKHHPHUJHQW¶VH[LVWHQFH N ESCARTES O ,F but until some only destabilizingnew comes mechanism along supra supra , note 21, at 38 at 21, note (D ,D IFE ² :L note 77. 77. note supra supra homeostasis , 69. AMASIO UBLISHER UBLISHER ± NGSTRØM ² HINGS D P ASS supra supra T &E -V FOR FOR 7KHV\VWHP¶VYRODWLOLW\GHSHQGVRQWKUHHRWKHUIDFWRUV² Kelvin Rodolfo, at 39, 68 80 ELSO ELSO NTHONY LDER RDER OF K Rodolfo, E A HVHG\QDPLFVEHJLQDWKXPDQLW\¶VFRUH,IKXPDQEHLQJVDUHFRPS In this homeostasis this the sustaining biologicalway, In regulator, serves kind as a of O 78 Collectively, these system laws play all human these play systemvitalCollectively, laws the of emergence roles in A final law final A :KLOHWKHSDUWVYDU\E\V\VWHPWKHUHPDLQLQJIHDWXUHVDELGHQD Th , A - FINAL M K for the circumstances of circumstances its the Thisfor change. system analysis identification an requires of . See . See . See . See . See . See . See . See id. . See We are wired to be social. We are driven by deep motivations to stay connected with friends with friends connected stay to motivations deep by driven are We social. be to wired are We are naturallyand curiousWe family. other of minds aboutthe is going people. on in what And our identities the are formed the callus by values groups our from to own. we lent These C Y 76 77 79 80 78 81 ALNAN TRANGE that bring an emergent bring existence,that into the mechanisms these causes, precipitating and the that forces stabilize and susta https://www.scientificamerican.com/article/what-is-homeostasis/; https://www.scientificamerican.com/article/what-is-homeostasis/; how information is coordinated in genes and proteins, different brain regions, various body body various regions, brain different andproteins, genes coordinated in is information how and structures. social people their and environments, and their organisms parts, S and their limiting constraints between the parts, the relations the boundary parts, and the interaction. limits. fat, protein, salt, sugar, temperature,of water, levels steady by maintaining body human blood pressure, and oxygen. calcium, condition, human regulates entire It actually the functions. bodily solely for reserved not association. conditions human the of including of account claim emergence systems.must any Thus, Homeostasis is a that process self-operating allows natural systems to maintain stability adjusting to conditionswhile survival. that for optimal are these static; points set are not performance, system on or restrictions tolerances functional a continuous represent rather, they changes and lower profile succession upper of within 2020] 2020] C informs the evolution of all life). V\VWHPVWKHKXPDQJHQRPHLVPDQNLQG¶VPRVWEDVLFRSHUDWLQJV\V traits genetic basic developed beings have human two for sociality.for the egocentric Though drive is more sense social widely publicized, our is cognitive to social according In neuroscientist fact, Matthew equally strong. Lieberman, System parts are related by complementarity, parts are related by System cantheir though competitive relationship WDNH DQ\ QXPEHU RI VSHFLILF IRUPV 2QFH WKH V\VWHP¶V E dynamics, wh coordination process is that of cause emergence. cycle of another to stimulate extremes establish its begins Change operational boundaries. destabilizingwhen forces GLVUXSWWKHV\VWHP¶V IXQFWLRQWKXV PHFKDQL]LQJWKHDGDSWDWLRQ and If equilibrium. functional thatwhen state is reached, homeostasis sets the guidelines itsfor continued stability 42208-tul_55-3 Sheet No. 10 Side A 05/15/2020 10:30:18 Side A 05/15/2020 Sheet No. 10 42208-tul_55-3 42208-tul_55-3 Sheet No. 10 Side B 05/15/2020 10:30:18 ² M K C Y OLITICS AND Of course, Of P NDERSTANDING 86 U HQ PDQNLQG¶V 82 with the the security with 87 -processes at the 2 (2013). 2 (2013). R IVIDED BY IVIDED Such diversification diversification Such DG² D 85 moving from families to families from moving RE RE ONNECT A C ² LYLWLHVZLWKLQV\VWHPV PD\ XPLANATION AND AND XPLANATION :E EOPLE EOPLE P IRED TO IRED [Vol. 55:363 55:363 [Vol. W CIENCE OOD RE RE S G A 35. 35. HY ± which include groups of other people other of groups include which OCIAL OCIAL RAINS RAINS S :W B ² IND UR 84 M O ) 5/6/2020 ) 4:08 PM HY note 67, at 534 67, at note ULSA LAW REVIEW LAW ULSA :W ELETE T These faculties prompted the development and of groups 33. HILOSOPHY OF D ± P IGHTEOUS IGHTEOUS 83 supra supra OT , R OCIAL N this difficult becomes conflict increasingly to reconcile. more O ,S HE ² (D EALIST EALIST ,T APOLSKY ,AR note 14, at 29 at 14, note note 14, at 47. 47. at 14, note note 84, at 174. 174. 84, at note AIDT H UBLISHER UBLISHER IEBERMAN P supra supra supra supra supra supra ANICAS D. L , FOR FOR 45. ± 69 (2012); S These environmental factors These environmental T. M ± AIDT ONATHAN ONATHAN 88 J H Calnan, Calnan, at 44 165 ATTHEW ATTHEW ETER Notice that Notice these that while are emergents moral developmentunpredictable, their is Before long, such coordinative information became encoded and embedded in a encoded in became and embedded information coordinative such Before long, These contradictory characteristicsThese contradictory create an informational complementarity.Our , A - FINAL . See . See . Id. . See . See . See . See . See . See From the point of view of biology, an organism is an ordered complex of orderly complex complex orderly of complex ordered an is organism an biology, of view of point the From and atoms the of molecules starts from systems. level Biochemistry upward and works through and to complex organelles, larger systems, cells, molecules the complicated more WLVVXHVRUJDQVV\VWHPVDQG¿QDOO\WRWKHRUJDQLVPLWVHOI $FW their of properties causal transactions, as the have, outcome at higher levels. connections lead to strange behaviors that violate our expectation and rationalself-interest violate of that behaviors connections strange lead to are. we who point a starting as our for sense if nature social make only taken is 86 88 83 84 85 ELIGION ALNAN ZDVLWVHOIDQHPHUJHQWRXWJURZWKRIPDQNLQG¶VSULPDOJHQHWLFG\ and authority loyalty, fairness, and the norms selfish elaborating impulse; the and liberty integrity Meanwhile, the the sociality refining norm. norms and sanctity appearednorms and purity emphasizing systemic coherence, values of notion of the very to solemnify all else. above wholeness and people, elevating places, and principles certain 44 (2006). (2006). 44 biologically constrained.biologically The process begins lowerwhen impact the features system social philosopher Peter explains, systems above. Manicas As cultures around the globe synthesize the globe synthesize dispositionsthese around cultures in divergent but every widely ways, of themember human survival system entersnow the world the same with copingset of instructions. 82. M 82. 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) 5/6/2020 ) 4:08 PM 96 S ’ HE HINKING :T ,T ELETE 05. D LAW ± RAIN OT B N O HE This command mental center a gives us sense of choice, in fact, the in the ofveryfact, power agency sociologists long have believed AHNEMAN (D 95, 104 ± ,T K 97 ² note 14, at 17. 17. at 14, note note 84, at xxi. xxi. at 84, note 82, 91 ANIEL ANIEL UBLISHER UBLISHER ± These competitive eventuallysubsystems spawned a to master module 91 P D 40. 41. 93 AGLEMAN supra supra ± ± supra supra ³+XPDQVFDQQRWÀ\´0DQLFDVTXLSV³DQG E , FOR FOR 21. Though our consciousness can be a useful advisor, it typically seeks to justify ± 90 at 38 at 40 at xx, 61. at 66. at 79, 81 AVID AIDT 100 According to psychologist According Daniel Kahneman, such realized a brain fully has two H Calnan, D at 45. at 45. at 20 94 The slow deliberative system creates emergent consciousness.property system the of deliberative The slow Perhaps the Perhaps the greatest of biologicalthis marvel emergence brain. process is the human :KDW¶V PRUH WKH EUDLQ¶V DXWRPDWLF V\VWHP LV JHQHUDOO\ VHW WR V , A - FINAL M K . See id. . See id. . See . Id. . See id. . See . See id. . See . See . See . Id. . Id. . Id. . See . See id. . See . See . See . See generally . See C Y 89 93 98 99 96 90 91 92 94 97 95 ALNAN 100 101 nine percent of our mental processes occur occur processes our system and are fast,mental percent of our intuitive in nine to consciousness. or inaccessible our unrecognized as the as the human asgenome, beginning a selfish survival and then adding a layer of machine social ingenuity. opposite but integrated systems that think fast and slow. and that systems think fast integrated opposite but ELRORJLF ERXQGDU\ FRQGLWLRQV WKDW ³PDNH>@ VRPH FDSDFLWLHV SRVVL LPSRVVLEOH´ and strategic reasoning stragglesand strategic after. reasoning along WKH PLQG¶V LQLWLDO LQWXLWLYH LQVWLQFW basis stipulated the of behavior on facts. PXFK OLNH DQ DWWRUQH\ UD µELRORJLFDOO\GHWHUPLQHG¶KXPDQQDWXUH´ FHUWDLQO\LQFUHDVHWKHODWLWXGHIRUJHQHWLFYDULDWLRQEXWVXFK &RQVFLRXVQHVVLVWKHXQLILHGIHHOLQJRIRQH¶VVHOIWKDWFRPHVI billions of neurons. of A specialized information processing thebrain emerged specialized system, to calculate A ways to information SURWHFWDQGVHUYHWKHERG\¶VVHOILVKJHQHV 2020] 2020] C accounts for our social practices institutions. Yet our and for oddly Ourmisleading. this accounts is feeling ³IUHH´ZLOOLWVHHPVLVQRWQHDUO\DVIUHHDVZHWKLQN$FFRU autonomy, and free will and free autonomy, interpret and coordinate the signals the coordinate and conflicting the interpret tripartite neural super-now within system. system is simply is simply system equippednot our to lead catalyst to activate it lacks an emotive because intuitions. V\VWHP ³RSHUDWHV DXWRPDWLFDOO\ DQG TXLFNO\ ZLWK OLWWOHYROXQWDU\FRQWURO´ZKLOHWKHLQWHUSUHWLYHV\VWHP³DOORFDWHVDW RU QR H DFWLYLWLHVWKDWGHPDQGLWLQFOXGLQJFRPSOH[FRPSXWDWLRQV´DQG RIDJHQF\FKRLFHDQGFRQFHQWUDWLRQ´ EUHDWKHLQZDWHU´ slow modes of thinking). modes slow VHOILVKQHVV6WXGLHVVKRZWKDWZKHQZHDUHQRWDFWLYHO\WKLQNLQ

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) 5/6/2020 ) 4:08 PM S is script, but it does affect its interpretation. Growing Growing its interpretation. it does affect is script, but ’ ELETE D ³JHQHUDWHGDQHQRUPRXVDPRXQWRIH[FLWHPHQWLQVHYHUDO LAW inner and outer and outer worlds. inner EVELOPING EVELOPING OT A well-established subsidiary of biology, epigenetics has epigenetics A well-establishedhas biology, of subsidiary D N %HFDXVHOLIHH[SHULHQFHVFDQQRWLPSDFWDQLQGLYLGXDO¶V'1$ O 108 HE (D 112 ,T OORE UBLISHER UBLISHER note 108, at 43. 43. at 108, note P S. M FOR FOR HSLJHQHWLFLVW'DYLG0RRUHWKH³UHYROXWLRQDU\´DQG³WUXO\JURXQ supra supra , at 15. at 15. at 12. at 102. AVID To date, epigenetic processes have helped to explain a multitude of biological biological a helped of processes have explain to Tomultitude epigenetic date, . at8, 6,101. D at 8 (internal footnote omitted). omitted). footnote 8 (internal at at 6, 9. 9. at 6, 110 OORE LRQ DJLQJ LQVHFWV¶ ERG\ VKDSHV WKH HIIHFWV RI IDFWRUV OLNH H Systems in every ofwalk life dynamic. are naturally Sociocultural systems are no The epigeneticsscience new of studies between the interaction genes and their M Epigenetics compels a Biologists revision thinking. prior scientific momentous of (SLJHQHWLFVGRHVQ¶WTXLWHIOLSWK , A - FINAL M K . See id. . See . . Id. . See id . See . Id. . See . See . See id. . See id. . See id. . See 22 (2015). (2015). 22 C Y ± ALNAN 112 113 111 109 110 108 114 115 116 and psychological enigmas,and psychological including toxins,environmental and early-life experiences . . cancer, circadian rhythms, obesity and diabetes, autism, trait inheritance, homosexuality, homosexuality, trait inheritance, and diabetes, autism, obesity circadian rhythms, cancer, addict 20 HYLGHQFHUHYHDOVWKDWJHQHVDQGHQYLURQPHQWVLQWHUDFWWKURXJKRX societies coordinate they do form, how the systemsThe with below? answer, we shall see, systematicallyis they coevolve. CoevolutionB. Epigenetics and coordinative powerful to two fact, societies are subject In and institutions different. their Epigeneticsforces. blends cultural and informationgenetic in the short term, while gene- processes the these ages. Together, through down extendsculture this coevolution synergy social geneticensure that the the nor neither super-system subsystem stagnant. becomes Instead, system each to revitalize,serves and stabilizecomplement, other. the contexts or environments. to behavioral discoveries of epigenetics of discoveries have and philosophy, psychology, nutrition, oncology, including disciplines, different RWKHUV´ fact, genes respond to contextual signals, exchanging information in a life-long signals, in exchanging to contextual information genes respond fact, FRQYHUVDWLRQEHWZHHQWKHKRVW¶V 2020] 2020] C WKHJHQRPH¶VG\QDPLFVDQGWKLVFKDQJHGLUHFWO\VKDSHVRXUSK\V

Any modifications to the gene line that that to the line gene modifications Any entire populations across many generations. across many populations entire we live, reproduce, and die with the same genetic information we inherited at the start. same at the the inherited genetic information we and die with reproduce, live, we exploded in popularity over the last decade, inspiring a dramatic upsurge in in a dramatic scholarlyupsurge last decade, inspiring the over popularity in exploded epigenome. the human researchpapers project and an international mapping throughout thethroughout twentieth century thatheld genes passed down parentsfrom to children their a lifetime, change of course over the people relatively remain Although fixed. might genomes typically do not. 42208-tul_55-3 Sheet No. 12 Side A 05/15/2020 10:30:18 Side A 05/15/2020 Sheet No. 12 42208-tul_55-3 42208-tul_55-3 Sheet No. 12 Side B 05/15/2020 10:30:18 123 M K 128 ultiple UHIOHFW C Y KRVW¶V M UARDIAN s lifestyle s lifestyle ¶ odify Future Future odify , G emory of Gene of Gene emory ] (addressing M ’ M For example, For example, This includes This includes Environmental Environmental 127 JHQH¶VHSLJHQHWLF 126 118 ransmit (Feb. 17, 2016), 2016), 17, (Feb. T -economic status. -economic $VDUHVXOWWKHJHQH¶V Epigenetics ‘ 120 RFLR In the cogent words of of cogent the words In AILY 122 D (Oct. 27, 2005), 2005), 27, (Oct. So can external So can conditions like [Vol. 55:363 55:363 [Vol. weaks Genome Function to to Function Genome weaks old aboutold Evolution Wrong Is T 124 CIENCE (Sept. 18, 2014), 2014), 18, (Sept. AILY T D the bloodstream, and modulate genes and bloodstream, modulate the note 124. 124. note AILY eans What We Eat, How We Live And Love, Alters Alters Love, And Live We How Eat, We What eans D , S supra M CIENCE , 2010/mar/19/evolution-darwin-natural-selection-genes- raction with a nurturing mother or a stimulating physical physical a stimulating or mother nurturing a with raction 1135550.htm (noting the effect of a father a of effect the (noting 1135550.htm CIENCE Social Experience Experience Social , S ) 5/6/2020 ) 4:08 PM (July 1,2013), Epigenetics’ Epigenetics’ µ ‘Epigenetics’ ULSA LAW REVIEW LAW ULSA ELETE , S T AILY D In fact, any environmental any fact, factors In significant create that 7KHWHUP³HSLJHQHWLF´OLWHUDOO\PHDQVXSRQRUDERYHWKHJHQHWR D utations Caused by a Father’s Lifestyle Can Be Inherited by Inherited Be Can Lifestyle a Father’s by Caused utations OT M 125 it isnow clear that a wide variety of experiences can influence epigenetic N Why Everything You’veBeen When a gene is epigenetically deactivated, its information ³ O (D CIENCE 119 DNA While the remainsmaterial the same, the Gene Gene emory Is Passed through Generations: Sperm and Eggs Eggs and Sperm Generations: through Is Passed emory M 121 note 108, at 100,217; note 108, at 108, note 217; at 108, note 146. ´ QRWZKDWJHQHV\RXKDYHEXWUDWKHU³ZKDW\RXU'1$LVGRLQJ´ (June 7,2017), https://www.sciencedaily.com/releases/2017/06/170607123933.htm; [g]iven that circumstances, levels[g]iven change genetic different activity in UBLISHER UBLISHER 7KHVH ULSSOHV HYHQWXDOO\ UHDFK WKH EUDLQ ZKHUH WKH\ DOWHU WKH note 108,at14. note 108, at 14. 14. at 108, note P -like control over the gene beneath. beneath. gene the over control -like AILY supra supra supra supra supra , , D , 117 FOR FOR 129 supra supra supra supra , , at 217 (stating that at 39, 42. at12. 5, at 60. OORE OORE OORE ); Oliver Burkeman, ´ , S CIENCE M M M OORE OORE , S To fully this Tograsp mind-bending as DNA to think fully it is idea, light a bulb. of helpful M Many different types of environmental catalysts can trigger these epigenetic effects. these trigger catalysts can environmental of types different Many Such stressorsSuch impact the host a in of They stimulatevariety ways. activity neuronal M , A - FINAL . See id. . See id. . See id. . See id. . See . . See . See . See . See . See id. . See . See How Epigenetic Epigenetic . See How . See . See id. . See . . See id. . See ALNAN 119 120 121 122 123 128 125 126 127 117 118 129 124 adjustments can be just as important to its performance. be just important as adjustments can environment marks, from exposure to certain chemicals or diets to inte to diets or chemicals certain to exposure marks, from (Mar. 19, 2010), https://www.theguardian.com/science/ 2010), (Mar. 19, instructions no longer have a physiological influence, or its physiological influence is physiological or its influence, a have physiological longer no instructions substantially changed. FDQQRWEHUHDGRUDFFHVVHGE\WKHERG\¶VELRFKHPLFDOPDFKLQHU\ pollution, toxins, or toxins, weather. pollution, WKHPROHFXOH¶VVZLWFK factors flip these epigenetic switches, effectively turning the associated gene on or off, or or or off, on epigenetic these turning gene the associated switches, flip effectively factors intensity. in or down up 3URIHVVRU0RRUH³ really matterswhat is Repression to Embryos to Repression https://www.sciencedaily.com/releases/2014/09/140918141448.htm. Behavior Unraveling the Gene-Environment Interaction https://www.sciencedaily.com/releases/2016/02/160217181108.htm. wrong (discussingthese factors in general); How Our Genes Behave [hereinafter https://www.sciencedaily.com/releases/2005/10/051026090636.htm general); in influences these Generations https://www.sciencedaily.com/releases/2013/07/13070 choices onhis children). characteristics. 378 378 C Attached to every gene are epigenetic molecules as that serve switches.

$SHUVRQ¶VGLHWRUOLIHVW\OHFKRLFHVFDQOHDYHDPDUN children can be epigenetically poverty by influenced or abuse, and at least one study VXJJHVWVWKDWDGXOWJHQRPHVPD\EHDIIHFWHGE\WKHKRVW¶VORZV physiological or psychological stress can flip the epigenetic the stress can switch. or psychological flip physiological LQWKHERG\¶VVHQVRU\RUJDQVUHOHDVHKRUPRQHVLQWR cell in nuclei. family dynamics, group interactions, or other dynamics, interactions, or other family of forms socialgroup experience. 42208-tul_55-3 Sheet No. 12 Side B 05/15/2020 10:30:18 Side B 05/15/2020 Sheet No. 12 42208-tul_55-3 42208-tul_55-3 Sheet No. 13 Side A 05/15/2020 10:30:18 ¶ 140 its PHQW 137 the parents ´ inherit the interaction isthe interaction ³ 131 HJHQHWLFDFWLYLW\´ ² not just in one one justnot in way, PSRUDU\RULVRODWHG 136 HVV DV LW LV D JHQHWLF ² -studied examples of examples-studied of ay Be Inherited for Several for Several ay Be Inherited HVLQWHUDFW ZLWKRUJDQ M  WRZDUG KHU FKLOG WKDW hat hat EHKDYLRU T KRVHRIXVZKRKDYHVWXGLHG QH¶VPRGLILHGH[SUHVVLRQFDQ 379 379 This may help explain This child may why ION ,QGHHG ³>Z@HOO 133 Most amazing of research all, recent T 139 134 138 F´ 6 (2013). 6 (2013). %XW WKDW¶V QRW DOO $ SHUVRQ ZLWK D SDUWLFXODU COEVOLU

-to-day evolution seem evolution and to be at least as much, -to-day 132 ) 5/6/2020 ) 4:08 PM S ’ (Aug.2017), 16, As the behavioral of As field epigenetics shows,the VOLUTION E ELETE 130 D AILY LAW D OT N O (D CIENCE ELENTLESS ELENTLESS ,R note 108, at 160. 160. at 108, note at 108, note 63. 9, at 108, note 213. 08, 114. ± UBLISHER UBLISHER P $FFRUGLQJWR3URIHVVRU0RRUH³SHRSOHDQGWKLQJVLQWKHHQYLURQ 79 (discussing rodent research suggesting that a neglected child can can child neglected a that suggesting research rodent (discussing 79 supra supra supra supra ± , , , FOR FOR HOMPSON 141 4. and can persist in the genome for up to five generations. to five up for persist in the genome and can ± at 77 at at 63, 107 at 146, 155, 157, 162, 163, 167. at 21. at 8. at 148. OORE OORE OORE N. T , S 135 M M M at 3 OHN Yet even this realization is driven by a still deeper truth. Genetic, epigenetic, and a still deeper truth. by driven is realization Yet even this (YHQPRUHLPSRUWDQWWKHHQYLURQPHQW¶VJHQHWLFOHJDF\LVQRWWH While some While some rapidwriters epigenetics, urged rise have about the of caution , A - FINAL M K . See id. . See . See . See . See id. . See id. . See . See Changes Epigenetic Can Cause Replication with DNA Problems . See id. . See . See id. . See id. . See . See . Id. . See . See C Y ALNAN 134 137 136 130 135 141 131 132 133 139 140 epigenetic trait can transmit this informational switch to her children transmit informational to her switch this trait can epigenetic EXW WZR ,I WKH HSLJHQHWLF PDUNHU DIIHFWV WKH child similar same the to display switch flip the behavior prompting child, in thus the may SDUHQW¶V EHKDYLRU lifetime. own behavioral characteristics during her memory and learning capacity. learning and memory Generations https://www.sciencedaily.com/releases/2017/08/170816145357.htm. 2020] 2020] C 138. J environmental factors operate synergistically as a complex, synergistically integrated operate environmental factors system. neglectful characteristics without direct genomic transmission). transmission). genomic direct without characteristics neglectful abusers often abused often abusers were children themselves. Environments do not just do not Environments manipulate genes; genes affect environments bidirectional. central central now message seems accepted. Thompson John biologist widely evolutionary As VXFFLQFWO\ VXPPDUL]HG ³HYROXWLRQ LV DV PXFK DQ HFRORJLFDO SURF SURFHVV´DQG³>W@KHSDFHVHWWHUVRIGD\ geneti rather than ecological maybe more, strongly suggests that strongly some epigenetic can features actually through be passedthe on germline, ongoing evolution within our lifetimes are being published in professional journals at such published are being in professional lifetimes our evolution within ongoing DIDVWUDWHWKDWLWLVKDUGWRNHHSXSZLWKWKHP´DQG³>H@YHQW at the speed by impressed become increasingly have populations of evolution ongoing the ZKLFKVRPHSRSXODWLRQVDUHHYROYLQJLQQDWXUH´ Instead,epigenetic activity can residual or even have enduring ramifications. For instance, timeevery its divides a cell during normal replication its epigenetic process, get markers SDVVHGRQIURPWKHSDUHQWFHOOWRLWVGDXJKWHUFHOOVVRWKHJH SHUVLVW IRU WKH UHVW RI WKH KRVW¶V OLIH ensuing epigenetic cascade can have powerful psychologicalthe transforming powerful have effects, epigenetic can cascade ensuing KRVW¶VHPRWLRQDOUHDFWLYLW\PHQWDOKHDOWKDQGHYHQKHUVRFLDO influence behavior, behavior influences neurons, and neurons influenc EXW³JHQHV>DOVR@LQWHUDFW ZLWKFKHPLFDOVOLNH KRUPRQHVKRUPRQ systems like the the brain, and the external brain interacts in like with world, factors 42208-tul_55-3 Sheet No. 13 Side A 05/15/2020 10:30:18 Side A 05/15/2020 Sheet No. 13 42208-tul_55-3 42208-tul_55-3 Sheet No. 13 Side B 05/15/2020 10:30:18 153 143 M K , 366 . 218 CI C Y 3 (1985) (1985) 3 Culture– 155 ± .S 2 OG note 61, at 14. 14. at 61, note C (April 10, 2014), 2014), 10, (April ROCESS EFLECTIONS ON THE EFLECTIONS supra supra P , RENDS RENDS :R UTURE F IRE HW\UHZDUGHGJHQHWLF F , 15 , 15 T ³QHUYHVDQGPXVFOHVWR ICHERSON gene-culture coevolution gene-culture coevolution , BBC If genes and environments 145 &R OLWDWLQJWKHLUFRPPXQLFDWLRQ , VOLUTIONARY 142 E (1998). (1998). OYD ROMETHEAN [Vol. 55:363 55:363 [Vol. ,P D VRFLHW\¶V HQYLURQPHQW JHQHV DQG ILSON NOWLEDGE 146 QDWHG LQ  E\ (GZDUG 2 :LOVRQ¶V K O. W 20, 421, 423; B ULTURE AND THE AND ULTURE Cultures exposed Cultures generate a to malaria sickle- ± ,C NITY OF 149 U DWARD ) 5/6/2020 ) 4:08 PM he Unity of Knowledge he Unity of HE T &E Gene–CultureCoevolution the and Natureof Human Sociality :T including including the development of ULSA LAW REVIEW LAW ULSA Yet other illustrations abound. Societies that raise cows raise cows abound. Societies that illustrations Yet other ELETE and cooking food may have altered the jaw muscles and jaw altered the and muscles have cooking food may and ICHERSON T D note 61, at 6. 6. at 61, note note 144, at 19 144, note note 61 (published in 2005); Maciej Chudek & Joseph Henrich, Henrich, Joseph & Chudek Maciej in 2005); 61 (published note 147 148 151 note 146, at 218. at 218. 146, note ´ OT J. R ´ N domesticationPlant certain chemical us detoxify helped UMSDEN O supra supra supra supra supra supra , , (D , How HumanCulture Influences Our Genetics supra J. L 150 ETER ONSILIENCE Instead, human beings learned to learn from each other. This This other. each from learn to learned beings human Instead, But after being rejuve after But being Consilience: ,C &P 154 . B 877 (2011) (published in 2011). . 2011). in (published (2011) 877 B 144 note 146,at880. HARLES HARLES UBLISHER UBLISHER 152 OC OYD ILSON ICHERSON P ICHERSON ICHERSON C S B supra supra &R &R &R (1983) (explaining this concept as an evolved unit of culture). culture). of unit evolved an as concept this (explaining (1983) FOR FOR O. W OYAL OYAL IND OBERT OYD OYD OYD .R M R Jason G. Goldman, Goldman, G. Jason Chudek & Henrich, Henrich, & Chudek Gintis, Gintis, B B B at 880, 881. DWARD DWARD The gene-environment dialogue is not just epigenetic but generational. Since culture culture Since just but generational. not epigenetic is dialogue The gene-environment Behavioral adaptations require greater explanation. Earlier, we described culture as a The process of gene-cultureThe coevolution process of is relatively clear when it obvious produces , A - FINAL RANS . See . See . See . See . See . Id. generally . See . See . See . See . See . See . See . Id. . See id. . See id. . See id. . See . See .T RIGINS OF RIGINS ALNAN HIL 146 155 144 142 143 154 147 149 148 150 151 152 153 the mouth, larynx and tongue. the mouth, Gene Coevolution, Norm-Psychology and the Emergence of Human Prosociality of Human Emergence the and Norm-Psychology Coevolution, Gene DUHWKHV\VWHP¶VNH\SDUWVHSLJHQHWLFVLVWKHVZLWFKERDUGIDFL of part the is influential and enduring often most is idea This time. not of periods long over entire across populations coevolve cultures back it to the 1980s at least dating as culturgen described was new, when particularly O evolution towardtwo socialevolutionby learning selection driven was ability pressures: safely to the other people. and the coordinate with need to the environment, and exploit navigate pool of information stored in the brains of people and transmitted by communication. transmitted and people of brains in the stored information of pool Individuals striving for natural selection must accumulate and master enough cultural trial-and- this alone, all it do to try could one Although survival. their ensure to information is incrediblyerror approach time-consuming, extremely inefficient, and potentially or deadly. dangerous cell gene to combat it. cell gene crops, our in found compounds eat. to use teeth we SDUHQWVWHDFKHUVSROLWLFDOOHDGHUVDQGHFRQRPLFV\VWHPV´ 380 380 C P has enjoyed a widespread revival in recent in years. a revival enjoyed has widespread

(2011) (published in 2011); Herbert Gintis, Gintis, Herbert 2011); in (published (2011) groundbreaking work, or dual inheritance. or dual adaptations to the human phenotype. Perhaps the most striking examples concern striking Perhaps the the phenotype. most human adaptations to the larynxhuman and facial musculature. behavioral scientistAs Herbert Gintis observes, ³7KHLQFUHDVHGVRFLDOLPSRUWDQFHRIFRPPXQLFDWLRQLQKXPDQVRFL changes that facilitate speech, http://www.bbc.com/future/story/20140410-can-we-drive-our-own-evolution. and drink develop lactosemilk and drink tolerance. (discussing gene-culture coevolution as a dual inheritance theory). theory). inheritance dual as a coevolution gene-culture (discussing 145. E 42208-tul_55-3 Sheet No. 13 Side B 05/15/2020 10:30:18 Side B 05/15/2020 Sheet No. 13 42208-tul_55-3 42208-tul_55-3 Sheet No. 14 Side A 05/15/2020 10:30:18 9, 428. 9, 428. ± initiating a a initiating In this way, this In way, 161 So viewed, this this So viewed, 160 note at 8 144, note 162 supra supra ¶VV\VWHPLFFRPSOH[LW\ , culture coevolution. . . ± -enhancing genetic changes QHVV ICHERSON 381 381 and the coordinative relations that relations coordinative and the But even this strategy is less than &R ² ION Now Now internalized, these social norms 156 T OYD 159 15; B 15; ± vertically from parent child, to vertically horizontally from from COEVOLU

Since the learner is surrounded by people whose people whose by is surrounded the learner Since ) 5/6/2020 ) 4:08 PM S ² ’ 157 ELETE note 61, at 14 at 61, note D LAW note 146, at 224. at 224. 146, note note 146, at 219. at 219. 146, note OT N note 146, at 880. People displaying these dispositions will be more successful successful be these dispositions will more displaying People O supra supra , (D supra supra 158 supra note 146, at 881. 881. at 146, note note 146, at 878. UBLISHER UBLISHER ICHERSON require skills of their own. The learner must be welcomed around others others around be must The own. learner welcomed their skillsrequire of P supra supra ² supra supra &R FOR FOR note145, 157. at at 883. at 224; Gintis, OYD B Ginitis, Ginitis, Chudek & Henrich, Henrich, & Chudek Chudek & Henrich, Henrich, & Chudek Gintis, Gintis, supra supra he altered epigenetic rules change the direction and effectiveness of the channels of cultural of cultural channels the of effectiveness and direction the change rules epigenetic altered he , As this coevolving psychology develops, such knowledge downloadednew gets into The coordination part is especiallyis part The coordination sincetricky the learning itself process requires Of course, observational and imitative learning and imitative observational course, Of T , A - FINAL M K Genesprescribe epigenetic rules,whichare the regularitiesof sensoryperception and mental developmentthat animate and channel the acquisitionculture. of Culturehelps to determine which of the prescribinggenes survive and multiply from one generation next. to the Successful new genesalter theepigenetic rulesof populations. acquisition. . See . See . See id. . See . See . See . See id. . See . See . See . See we know that life-forms affect their own environment and the environments they produce produce they environments the and environment own their affect life-forms that know we Gene . . . undergo. they evolution genetic of pattern the change recogniz[es] society and dynamics, both and that to human genes are subject similar culture LVDFXOWXUDOFRQVWUXFWLRQWKDWSURYLGHVWKHHQYLURQPHQWIRU¿W non-linear dynamic is a complex Such system system. social in resulting The individuals. emergentsystems have other-regarding properties, . . . morality, [including] social norms, C Y ILSON ALNAN 160 161 162 158 159 156 157 morality erupts as an emergent property of of gene-culture erupts as an emergent property coevolution, morality FRHYROXWLRQDU\SURFHVVLV\HWDQRWKHUPDQLIHVWDWLRQRIKXPDQLW\ As Professor Gintis instructs, readily transform into moral values that induce people to conform to the duties and duties values to the into conform induce transform peoplemoral that to readily of society evenobligations external or punishment. without pressure perfect. Besides raising trust and competence issues, it still offers the learner an theissues, an learner it trust offers still Besides and competence raising perfect. insufficiently small sample size. adapted So humans this again, once time learning by observation and imitation. through in accumulating and culturalinformation in lessan adaptive advantagehold their will over skilledsocially counterparts. PDQNLQG¶VJHQHWLFDQGQHXUDORSHUDWLQJV\VWHPV peer to peer, and obliquely from elder to elder younger. from obliquely and to peer, peer social coordination between the learner and her prospective teachers. At first, such learning learning such first, teachers. At prospective her and learner the between coordination social along directly three axes occur might

2020] 2020] C ancestors passedancestors the test of natural selection, copying their is behavior a practical short- cut to collective accessing their cultural wisdom. flow fromthem interaction. To engaging in acceptable of theseand be capable things, achieve of forms she possessmust dispositions, cooperativeness, psychological a like of trust, number and conformity. fairness, stabilizing domino effect that is both self-organized that is domino both stabilizing effect and self-enforcing. Because gene-culture coevolution is a process, it is perhaps best explained as a series of evolutionary steps. steps. evolutionary of series a as explained best perhaps is it process, a is coevolution gene-culture Because way: this progression the describes Wilson, O. Edward biologist, evolutionary Famed W 42208-tul_55-3 Sheet No. 14 Side A 05/15/2020 10:30:18 Side A 05/15/2020 Sheet No. 14 42208-tul_55-3 42208-tul_55-3 Sheet No. 14 Side B 05/15/2020 10:30:18 WV ² M K C Y In this In this 164 LRQDOLW\ DQG HYHQ -making, both human human both -making, VLRQ /HW¶VFRQVLGHUWKHVHOLPLWDWLRQV [Vol. 55:363 55:363 [Vol. are lawful in at least different two senses. systemic 163 ² URISYSTEMS J ) 5/6/2020 ) 4:08 PM 80. ± IV. ULSA LAW REVIEW LAW ULSA ELETE T D nor sufficiently nor sufficiently OT N O (D human whether natural natural or human whether UBLISHER UBLISHER IRUP RI KRPHRVWDVLV /LNH WKH ERG\¶V KRPHRVWDWLF V\VWHP ODZ VH P ² note 146, at 885 (emphasis omitted). omitted). (emphasis 885 at 146, note FOR FOR text accompanying notes 77 notes accompanying text supra supra social Legal theoristsLegal intuitively equate the idea of legality the rules, principles, or with All systems Because human systems are natural, they possessBecausesame law-like human systems the they are natural, characteristics. emerges this Law to regulate and all the systemssocial layer a complex below. As With this understanding in place, we now can begin to explain the legal cansystem the begin to explain now inplace, understanding this we With , A - FINAL . See supra supra . See preferences[,]and internalization the norms.of ALNAN 164 control parameters for human survival, monitors instability, and takes corrective action to action human corrective for instability, parameters control survival, takes and monitors conflicts. Whileresolve these biological have origins, rules constantlythey adapt our impulsesmoral legality environment. to challenges evolving sense of the This by presented these social and influences Over time, behavior. to groups individuals from scales up equilibrium. social maintaining proto-legal for become constraints mechanisms informal is needed. authority so a higher falter, often these mechanisms societies diversify, When is the call now complex legalThat law.we authority network its coordinative by Informed constituents, lawis prominent, permanent, autonomous, It also is and preeminent. the coevolves Once entrenched, regulatory dynamic. with network formal this incredibly ³MXULV\VWHPV´ EHORZ UHVKDSLQJ VRFLDO QRUPV ourrevising basic most homeostatic instincts. FKDQJLQJ KXPDQ UDW A. Legality legal systems. In human fact, narrow. underlying this interpretation is unduly norms But sufficiently it is neither in reverse order, moving from the general to the specific. to the general from the reverse order, moving in The first is the idea that systems are governed by the laws of nature in that they display that they in nature laws of the by are governed systems idea that is the The first speaks connotation The other principles. to according accepted physical patterns regular saw properties. As to system earlier, more we all systems contain conditions or boundary that only parameters not control restrict their parts, but and the coordinate interaction of their relations,also guide shape their functions, and define their holistic identity. 163. Gintis, The longer this system this persists,The becomes it longer to tell harder genes the from memes. 382 382 C Molecular, genetic, neural, and other bodily systems physicalMolecular, all obey laws bodily both genetic, and the and other neural, systemic constraint the complexity. They operate under of homeostasis,laws of sets which the whole of and welfare health the protect part to biologic every for rules performance SHUVRQ%HFDXVHWKHVHELRORJLFDOV\VWHPVLQIRUPWKHKRVW¶VGHFL respect, systems possessrespect, systems a behavioral legality. these fact, In as influence well. to natural susceptible effects and its agency are worldly scale to societies. readily up laws encounters interpersonal When create conflict, the life-threatening again, to the alerting once people homeostatic in kicks impulse human to take them action stability. to restore social responses andSuch are prompting imbalance and reconciliation. coordination the of complexity convey law-like but haphazard not PDQNLQG¶V 42208-tul_55-3 Sheet No. 14 Side B 05/15/2020 10:30:18 Side B 05/15/2020 Sheet No. 14 42208-tul_55-3 42208-tul_55-3 Sheet No. 15 Side A 05/15/2020 10:30:18 \XSWRWKH LQFUHDVHGLQ 166 in one form or form one in \VWHP¶VFRPSOH[LW\ LQG¶VORZHUELRORJLFDO WLPHWKHFRRSHUDWRU¶V Because such qualities PHUJHQWVZHUHIDUIURP Q LQWR RXU '1$ 7KXV 168 RUGLQDWLQJ³LQWXLWLYH´UXOHV everywhere 

) 5/6/2020 ) 4:08 PM 86. S ’ ± ELETE D LAW OT N O (D note 14, at 53 (noting that anthropologist, Donald Brown, considered a human law UBLISHER UBLISHER P echanisms echanisms 69. supra ± M FOR FOR text accompanying notes 85 notes accompanying text tale begins where our coevolutionary story left off. People living in proximity proximity People in left off. tale begins story coevolutionary living our where at 61 at 66 (reportingthis finding other from sources). The reason is that law is not simply historical or diachronic, as most legal as legal diachronic, is law most simply not The is that or historical reason ²RQHWKDWEHJLQVLQPDQNLQG¶VSK\VLRORJ\DQGDVFHQGVDOOWKHZD Calnan, 165 That consistently nature externalizes its homeostatic values practices social into we $VZHVKDOOVHHPRPHQWDULO\RWKHUOHJDOIHDWXUHVYDU\ZLWKDV $OWKRXJK PDQNLQG¶V OHJDO VHQVLELOLW\ LV LQQDWH WKDW SURFOLYLW\ /DZ¶V , A - FINAL M K . See id. . See supra . See . See id. . See . See . See C Y ALNAN 167 168 166 165 universal). universal). system, law exudes the same lawful properties as its subsidiaries, creating boundary boundary exudes the law samesystem, creating subsidiaries, lawful its as properties conflicts resolve and for coordinate relationships, interactions, that order conditions LQGLYLGXDOV JURXSV RUJDQL]DWLRQV LQVWLWXWLRQV DQG VRFLHWLHV human of social cycle of the a larger result Rather,is legality emergence. solely of part emergence VSHFLHV¶ KLJKHVW FXOWXUDO LQVWLWXWLRQV DQG DOO WKH ZD\ EDFNlegality also is not just a GRZ construction.social or cultural Instead, it is embedded in human nature. in scattered cultures over time sporadically up pop does not Law describe as law. its creation. Rather, legal suited for systems exist particularly another. 2020] 2020] C theorists assume. Rather, the legality of legal systems is legal characteristically synchronic, of legality assume.theorists Rather, the FRQVWDQWO\UHFRQFLOLQJPDQNLQG¶VVHOILVKVRFLDODQGUDWLRQDO of conflict. Thus, all conflict. Thus, legalof and systems of property, contract, develop laws tort, crimes, relationsto recurrentdomestic handle like consensualsocial problems, and nonconsensual todistribution and issues relating resource squabbles, matters, procreation. to each other needed to cooperate in order to survive. The better they were at cooperating, at cooperating, were The better they order to survive. in to cooperate needed to each other WKHPRUHVXFFHVVIXOWKH\EHFDPHDWSDVVLQJRQWKHLUJHQHV2YHU complexity overcomplexity the course of Eventually, evolution. human self-regulatory this impulse reached a watershed moment itswhen internal became externalized. operations Homeostasis was just the longer of law no it the person; a proto-legalwas mechanism for did not alone society it did Though law, cause people. of groups coordinating and guiding FRD[ODZ¶VHPHUJHQFHLQWRDKLJKHUVXUYLYDOV\VWHP

F ) 5/6/2020 ) 4:08 PM S ’ ELETE 35. CONOMY D ± LAW E IDFWRULQWKHOLYHVRIYLUWXDOO\DOOKLJKHUDQLPDOVSHFLHV´ OT N ULES FOR A FOR A ULES O (D LOBAL ,R Social Stress Effects on Hormones, Brains, and Behavior and Brains, Hormones, on Effects Stress Social G ). ). note 21, at 123. 123. at 21, note ´ 35 (D.W. Pfaff et al. eds., 2009). 2009). eds., al. et Pfaff (D.W. 35 note 14, at 33 at 14, note In each case, In forces ± UBLISHER UBLISHER ADFIELD P supra supra 183 H OMPLEX OMPLEX , supra supra C FOR FOR ASS 333, 334 333, at 35 (discussing the practicesof public grievance and group punishment). science now helps us understand the social conditions that made it not only social conditions the that us understand only helps it not science now made -V ILLIAN ILLIAN G T FOR A T FOR A Calnan, I 184 form of law. of form LDER Thoughdo we not knowexactly whyor when humanbeings developedformal legal While this historic development solved one stability problem, it also created others. it also created others. historic problem, development this While solved stability one The formation of these these socialof immediateThe systemic has cells formation consequences. The The regulatory system of a readyhomeostasisprovides solution. People can , A - FINAL EHAVIOR M K . See . See . See . See . See id. . See B C Y EINVENT EINVENT ALNAN 184 182 183 Peer punishments could result in injury or death to the punisher or could incite acts incite of or could punisher to the injury result or death in could Peer punishments greater provide sanctions could or social Group friends. her or offender the by retribution environmental ideal. Changing from be far but still punishers, would to the security conditions constantmight cause shifts in societal it values, to difficult both more making time, these shifts could In assess punishers. deviance andwilling to muster fissures cause from free remain not group may punishing aeven so factions, into society splinter that inevitably unpredictability aggressive of reprisal. all uncertainties,Given a pall these these proto-legalsettled over communities. This unease surely of increased the probability consequential more far incited something also have it may But confrontations. future HPHUJHQFHRIPDQNLQG¶VJUHDWHVWVXUYLYDOVWUDWDJHPDFRPSOH[O C. A Complex Legal Network systems, disruption. Thus, these proto-legal an these Thus, disruption. leap giant mechanisms the towards first mark external are expected to observe and enforce them. enforce and observe to expected are 181. E R 2020] 2020] C $FFRUGLQJWRQHXURVFLHQWLVW6DSROVN\³$µVWUHVVRU¶LVDQ\WKLQJ

AND AND 185. C.R. McKittrick et al., al., et 185. McKittrick C.R. emerged inhuman societies SRVVLEOHEXWOLNHO\5HVHDUFKLQWKHELRORJLFDODQGVRFLDOVFL stress ais chronic or recurring morality of each group not only defines and coheres its normative system, it also normative its coheres and defines group each only not of morality and distances itsdistinguishes appear social now members as other from groups, which dissent Even a cell of can arise groups, within competitors. to challenge the These whole. systemsagonistic now confrontingface the problemsame originally survival their or sudden risk or coordinate cooperate to and They find individual must members. ways extinction.gradual equilibrium social by essentialmaintain This of the boundaries enforcing group harmony. decisiverequires action to prevent destabilizing deviations. oneAs I prior in noted work, strategy peer-to-peer to impose early sanctions,was gossiping about the by either violator punishment. to physical her subjecting or by regulates the behavior of a destabilizing inferior system succeeded by group punishments punishments by succeeded in group which representatives of the social control its whole recalcitrant parts. 42208-tul_55-3 Sheet No. 16 Side A 05/15/2020 10:30:18 Side A 05/15/2020 Sheet No. 16 42208-tul_55-3 42208-tul_55-3 Sheet No. 16 Side B 05/15/2020 10:30:18 ns, ns, M K C Y 648, 648 648 648, Because Because -perceived -perceived Dec. 2013,at ± RZLQJXSRU 198 CIENCE , Oct. social stress can social stress can (Nov. 6, 2017), 2017), 6, (Nov. , 308 S 193 (Jan.2015), 6, 192 ODAY EWS EWS VRUUHMHFWLRQ´ WRWUXVWDQGTXLFNWRGHSOR\ .T Eventually, such stress can .N CI SYCH While these conditions While these can exist 194 [Vol. 55:363 55:363 [Vol. EUROPSYCHOTHERAPIST note187, at 648. 190 ,N , P , S supra supra 195 ) 5/6/2020 ) 4:08 PM 65; Sapolsky, 50. 50. Yet the rich and powerful sense extreme pressure as pressure sense as extreme rich and powerful Yet the ± ± ULSA LAW REVIEW LAW ULSA ELETE 191 T D note 67, at 162. 162. at 67, note that homeostatic even ifshe be disrupted, balance that her will LGV³KDYHGLIILFXOW\UHJXODWLQJQHJDWLYHHPRWLRQVDFWLR OT N note 185, at 335. at 335. 185, note note 185, at 335. at 335. 185, note But can also stressors be psychosocial. in Theseare things he Influence of Social Hierarchy on Primate Health O 188 fear supra supra T , (D 187 note 67, at 164 supra supra supra supra note 187, at 648 at 187, note note 67, at 163. 163. at 67, note Stressed k Behavioral Epigenetics and Attachment note 187, at 650. 650. at 187, note APOLSKY supra supra UBLISHER UBLISHER , P supra supra DQGWKXVDUHPRUHSURQHWR³µIOLSSLQJWKHLUOLGV¶DQGHLWKHUEO 196 supra supra , How Stress Changes Your Genes Your Changes Stress How FOR FOR supra supra 197 %XW SHUKDSV WKH PRVW FRPPRQ DQG FULWLFDO IDFWRU LV RQH¶V VHOI A physical stressor external actual, poses A challenges likeor raging wildfires at 648; S APOLSKY Robert M. Sapolsky, Sapolsky, M. Robert 186 S Sapolsky, Sapolsky, McKittrick et al., al., et McKittrick McKittrick et al., al., et McKittrick 189 at 71, 73. 73. at 71, at 73. at 73. APOLSKY Various Various can trigger factors ansuch anticipatory stressresponse, including the As for behavior, As for devastating stress can have consequences social solidarity. for Both physical and epigenetic, psychosocial biological, and behavioral Both stressors have physical Sapolsky, Sapolsky, , A - FINAL . See . See . How Stress Can Change Your DNA Your Change Can Stress How . . See . See . See . See . See . See . Id. . See . . Id. . Id. . See id. . See ALNAN 187 195 194 188 192 190 191 189 198 197 193 DQGWKRXJKWV´ have debilitatinghave consequences immune including body, altering the system for function, and inhibiting male syndrome, disease and metabolic cardiovascular of the risk increasing to psychopathologies and contributing post- reproduction, anxiety, depression, like female stress stress disorder.traumatic disorder, and acute influence the epigenetic markers of the genome, destabilizing sufferers throughout their the the throughout epigenetic genome, destabilizing of sufferers influence markers their descendants. impacting and possibly lives IUHH]LQJLQIULJKWZKHQWKH\GHWHFWVLJQVRIQHJDWLYHLQWHQWLRQ adults are more socially active, their anticipatory stress are active, their reactions socially adults are disruptive. even more more absence of stress outlets or social support, and the exposure to high rates of physical physical rates of to high exposure the and outlets social support, or stress of absence stressors. 186. S EDODQFH´ 386 386 C knife-wielding muggers. knife-wielding in anyin social setting, are exaggeratedthey in status-based hierarchical arrangements. Such one social hierarchy. As the and top of bottom the at pronounced stressors are especially people expect, might low social statuswith feel more stress about basic necessitieslike on. so and security, shelter, food, https://www.psychologytoday.com/us/blog/your-genetic-destiny/201501/how-stress-changes-your-genes-0. https://www.psychologytoday.com/us/blog/your-genetic-destiny/201501/how-stress-changes-your-genes-0. Baylin, 196. Jonathan society thatsociety make someone inability to predict or control the anticipatedthe hazard. to predictinability or control (2005). (2005). http://sitn.hms.harvard.edu/flash/2017/stress-induced-dna-modification-may-play-role-mental-illness/; Mitchell Mitchell http://sitn.hms.harvard.edu/flash/2017/stress-induced-dna-modification-may-play-role-mental-illness/; L. Gaynor, 3V\FKRVRFLDOVWUHVVFDXVHVFKLOGUHQWREH³K\SHUYLJLODQWVORZ >WKHLU@GHIHQVHV´ well, often because they bear responsibility for subordinates, confront challenges confront from subordinates, bear oftenfor they because well, responsibility competitors, face and heightened expectations achievement. their for 67, 70. 70. 67, effects. Besideseffects. inducing an array and endocrine of neural adaptations, faces no immediate danger. immediate no faces 42208-tul_55-3 Sheet No. 16 Side B 05/15/2020 10:30:18 Side B 05/15/2020 Sheet No. 16 42208-tul_55-3 42208-tul_55-3 Sheet No. 17 Side A 05/15/2020 10:30:18 205 206 199 WLRQDO INDINGS F So long So long typically 207 ² AND AND , ONCEPTS ,C It Alters the Brain ona Cellular ; HQHVVDQGVRFLDOFRQWDFW´ HEORIES :T 203 387 387 like proto-legal societies \´ ION Their less is conduct social measured ² T ETWORKS 200 N note 67, at 545. 545. 67, at note supra supra OCIAL OCIAL , S When punishments were required, the strong strong required, When punishments the were COEVOLU In short, stress makes human beings unsociable, stress short, unsociable, beings In human makes 204

) 5/6/2020 ) 4:08 PM S 72. ’ 202 ± APOLSKY When stress fosters pass these rapidly they behaviors, ELETE D LAW y Brain? Stress Isn’t Just Contagious Just Isn’t Stress Brain? y 201 OT M N NDERSTANDING O ,U (D note 185, at 342. 342. at 185, note note 67, at 170 note 84, at 166; S 166; 84, at note note 67, at 175. 175. 67, at note supra ADUSHIN supra supra UBLISHER UBLISHER , P 70. (Mar.2018), 8, https://www.sciencedaily.com/releases/2018/03/180308143212.htm. K ± 20. ± supra supra HVVHQWLDO ERQGLQJ IDFXOWLHV RI ³FRJQLWLRQ LPSXOVH FRQWURO HPR supra supra , , FOR FOR AILY D at 169 at 23. at 18 HARLES HARLES AIDT APOLSKY C S H APOLSKY CIENCE Of course, we cannot say conclusively network say social but whathappenedcannot next, course, we Of This is the likely environment of our proto-legal Social organization was forebears. our environment of likely Thisis the threat from under continual similar faced parties They Dominant uncertainties. were Because any dyadic conflictdyadicany automaticallydisturbsBecause such equilibrium, homeostatic S , A - FINAL 22 (2012). M K , S . See . See . Changing Stress Your See Is . . See . See . See . See id. . See . See id. . See . See id. . See ± C Y ALNAN 200 202 203 205 204 201 207 206 would be called upon to implement them. Yet, like the Yet, like bottom-dwellers them. to implement be called upon would served, they the rest never could at easetop dogs because their disgruntled punishees always could seek such proto-legal Since retaliation. or reproval, corrections from within vindication, came and couldappear authority contingent and their unpredictablean unstable system, ephemeral. some offers valuable clues.theory Simple networks at 21 informal and stratified.informal Given the hierarchical inequalities, the bottompeople of at the necessities, bare for to scrapping addition In about. they worry to a lot had order pecking to stress overhad encroachments constant The above. accusationsfrom lowly make might but credibilitythey treatment, or assistance. guaranteed were not Even unfair theyof if easily attempted could culminate the punishment hand, a helping found in a blood feud. If social power. their and usurping status their alpha lowering intent on subordinates be expected leaders their group on would to intervene their protection, sought underlings physical force. using by often behalf, and more risky and impulsive. and risky and more 3HRSOHXQGHUVRFLDOVWUHVVQRWRQO\GLVSOD\³UHGXFHGDIILOLDWLY Level 199. McKittrick et al., al., 199. et McKittrick 2020] 2020] C While these networks may spawn the status hierarchies, hierarchy While these may networks relationships within More loyalty. for polar strata exchanging protection the reciprocal, with largely remain all important, to adheremembers continue to the same local and values, is person no to anyone superior else. Status positionsjuridically on depending and fall rise merely dynamics. social changing to an element a third stressed naturally Adding networks develop a triadic structure. existing dyad only not makes the system complex, it restores a state of balance. These dyads create the create the These homophilykind of contagious dyads that possible. social living make they also aggressive. and selfish, are they fearful, more as the as the has new a positive relationship themember dyad,with the inevitably addition moves impeding our like a virus from person to person. to person from a virus like regulation, decision making, empathy, and prosocialit empathy, decision making, regulation, contain chains of dyadic relationships founded on notions of reciprocity and mutuality. of reciprocity notions on founded dyadic relationships chains of contain 42208-tul_55-3 Sheet No. 17 Side A 05/15/2020 10:30:18 Side A 05/15/2020 Sheet No. 17 42208-tul_55-3 42208-tul_55-3 Sheet No. 17 Side B 05/15/2020 10:30:18 ¶V M K C Y ODE OF C society. The king The king HE 212 over ,T In fact, Haidt Haidt fact, In YHUKLVSHRSOH and reflects our our and reflects 218 ARPER 216 WKDWPDQ\VFKRODUV H HQWV LQ FRQVSLFXRXV Besides its material Besides its material to quell inner quellto inner tensions. GHHSHVWGULYHV3ODFLQJ 211 RNHGWKHJRGV¶VXSUHPH ² WKURQH´ RANCIS RANCIS F law VRGHHSWKDWPDQ\ODQJXDJHV ² set of fundamental principles, fundamental of set [Vol. 55:363 55:363 [Vol. OBERT s stone pillars represent a watershed in the ¶ ,R permanent Proto-legal societies apparently followed Proto-legal societies followed apparently DQGGHFODUHGLQWKHSURORJXHWKDW³$QXDQG 215 208 and AMMURABI .LQJ+DPPXUDEL¶VFRPSHQGLXPRIVRFLDOUXOHV 214 210 ) 5/6/2020 ) 4:08 PM $V 3URIHVVRU 6DSROVN\ FRQILGHV ³KXPDQV VKRZ ULSA LAW REVIEW LAW ULSA 2250 B.C. 4 (Robert Francis Harper trans., Univ. of Chi. Press 2d ed. ELETE 69. T ± D 217 prominent 213 OT Perhaps the best the and Perhaps law most of notable illustration regulatory system, and elevatedregulatory authority in N O ABOUT ABOUT , 209 (D note 67, at 540. note 184, at 41. at 41. 184, note note 184,at 42. note 84, at 165 84, at note note 67, at 571. 571. 67, at note separate ABYLON supra supra B UBLISHER UBLISHER note 84, at 167 (quoting H supra supra supra supra , P , , supra supra supra supra , , FOR FOR supra supra ING OF ING at77 (noting the commonbelief that Hammurabi at 41, 77. at 77. , ADFIELD ADFIELD AIDT ,K APOLSKY S H H H AIDT APOLSKY On reflection, the transition to legal systems like this seems completely natural. )LQDOO\+DPPXUDELPDGHQRPLVWDNHDERXWWKHFRGH¶VDXWKRULW\R S Although this transformativeAlthough development cannot be traced to specific any historical , A - FINAL . See . See . See . See . See id. . See . See . See id. id. . See . See . See id. . See id. . See id. . See . AMMURABI ALNAN 216 217 208 209 210 214 211 212 213 218 durability, the code also possesseddurability, normative stayingpower. accomplished Hammurabi bythis a persistence including clause that threatened divine vengeance against any monument. his or change words his to corrupt dared rulers who subsequent 1904) (1901)). HPHUJHQFHLV+DPPXUDEL¶V&RGHWKH%&(%DE\ORQLDQDUWLIDFW kind. of its the first among believe was Bel [two gods] called by name me, Hammurabi, the exalted prince, who feared God, to God, to feared exalted who Hammurabi, the prince, name me, called by gods] Bel [two evil-doers; to destroy and the land, the the wicked in righteousness of the rule about bring VRWKDWWKHVWURQJVKRXOGQRWKDUPWKHZHDN´ this pattern. These pattern. dyadicthis systemsadded a third component Legality was no longer just an internal instinct or a desultory intra-systemdesultory practice. Rather,a instinctor an internal just longer no was Legality a transformed into been it had QRWHVWKDW³>W@KHXUJHWRUHVSHFWKLHUDUFKLFDOUHODWLRQVKLSVLV

places throughout his kingdom. his throughout places H the system towards harmony and stability. and harmony towards system the 388 388 C REHGLHQFHWRDXWKRULW\WKDWWUDQVFHQGVDQ\JLYHQRFFXSDQWRID DOVR HQVXUHG WKH FRGH¶V SURPLQHQFH HUHFWLQJ VHYHUDO VXFK PRQXP inbred deference to authority. deference inbred evolution of law). law). of evolution %HVLGHVLWVQHWZRUNRULJLQVODZHPHUJHVIURPPDQ\RIPDQNLQG¶V hierarchy, for urge satisfies our social pyramid the at the top of law checks all of the boxes for a complex legal network. He made the code separate and code and separate the He made legal network. complex a for boxes the checks all of rules carving by his permanent into seven-foot-tallmassive, stone insteadmonuments of them on or papyrus flimsy materialsinscribing tablets. like clay :KLOHWKHUXOHUZDVDQLPSRVLQJILJXUHLQKLVRZQULJKWKHLQY decorated a picture end, rules. Hammurabi with To to sacralize his the will monuments this Sun-Godthe communing with himself of 215. H event, as it the as early occurred fourth BCEhave in societiesmay millennium within Egypt. and Mesopotamia incorporated into a a incorporated into a simple a complex association cooperative been had What legal network.now was 42208-tul_55-3 Sheet No. 17 Side B 05/15/2020 10:30:18 Side B 05/15/2020 Sheet No. 17 42208-tul_55-3 42208-tul_55-3 Sheet No. 18 Side A 05/15/2020 10:30:18 UWDLQO\ GLG $VVRFLHW\¶V 221 UVWREHJURXQGHG HULPHQWHGZLWKDQ The sanctification HQKDQFH LWV VRFLDO WKH+DPPXUDELVRI 225 222 EOH GWKHSRRU Those that promoted group group promoted that Those LWLYH´ KWVIURPRQKLJKHYHQDVWKH\ 227 secular principles fundamental principles secular Inevitably, the coexistence of coexistence the of Inevitably, 389 389 226 ION T rational rational COEVOLU

77. 77. 77. custom or custom ) 5/6/2020 ) 4:08 PM ± ± S ’ the law If acted so, authority. since they law divine the with ELETE D social LAW OT 220 above N O (D note 184, at 42. at 42. 184, note at 6. 184, note were And for good reason. People crave authority for its security. Human Human security. its for People authority crave good for reason. And note 14, at 64. 64. at 14, note 219 they UBLISHER UBLISHER supra supra supra P , , note 84, at 174. at 174. 84, note note 84,at 165. Even when laws are less essential, they are shrouded in ritual, ceremony, laws are shrouded Even when ceremony, essential, they ritual, are less in supra supra 7. 7. ± FOR FOR text accompanying notes 169 notes accompanying text text accompanying notes 169 notes accompanying text 223 By embedding our beliefs and values in law, and then placing them on a a placing and law, then in on and values them beliefs our embedding By supra supra supra supra at 6 at 167. , , ADFIELD ADFIELD 224 H Calnan, H AIDT AIDT $V+DPPXUDEL¶VFRGHDWWHVWVODZ¶VKHLJKWHQHGVWDWXVDOVRDSSHD ,QIDFWLQWKH\HDUVIROORZLQJ+DPPXUDEL¶VFRGHVRFLHWLHVH[S %XWZKDWDERXWODZ¶VFUHDWRUVRUDGPLQLVWUDWRUV",W¶VSRVVLEOH /DZ ILOOV WKLV UROH RSHQO\ DQG H[FOXVLYHO\ +DPPXUDEL¶V FRGH FH H , A - FINAL M K . See supra supra . See . See . See . See supra supra . See . . See . See id. . See . See id. . See . See C Y ALNAN 224 226 223 219 222 227 220 221 225. H clash below. Everyone clash because legal this authority hasnew stake a one in supporting no it.is ever above highest authority, law-the-protector possesses an independence and objectivity law-the-protector authority, unsullied an independence possesses highest and objectivity and the biases pressures by plaguing its proto-legalthis In sense, law forerunners. is the SRVLWLYHIRUFHRIWKHQHZVRFLDOWULDGSUHVHUYLQJSHRSOH¶VULJ in the in foundationmoral of sanctity. Once the rules of social are intercourse designated as lose their The they quality. laws, rules fundamental are regardedmundane as most ³QDWXUDO´RU³LQDOLHQDEOH´DQGWUHDWHGDVWLPHOHVVDQGXQWRXFKD pedestal, our psychology of sacredness to galvanize psychology pedestal, our communities.helps our Thus, moral is sure pillars, law social response its lofty our the someone of under should desecrate one WREHLQ+DLGW¶VZRUGV³VZLIWHPRWLRQDOFROOHFWLYHDQGSXQ authority is not just raw power backed by brute force; rather, force; brute power is authority just raw not by backed a responsibility it is for justice. and order maintaining HQFRGHLWGLUHFWO\´ to human to human flourishing. legal systems religious of assortment ranging from and family groups, local despots, to communes, co-ops,dynasties and guilds. merchant 2020] 2020] C the world thought thought world the lesson. Hierarchical is command and costly learned a quick only the undoubtedly not they legal affirmation is of andsanctity.source the not only godly authority, of human source compass As also earlier, our noted moral points to a ethic ofstrong community, which sanctifies values like a Thus, fairness, justice, and reciprocity. complex legal network longstanding on based be could UHSHDWHGO\WRXWLQJWKHNLQJ¶VFRPPLWPHQWWRSURWHFWWKHZHDNDQ DQG IRUPDOLW\ 7KHVH WUDSSLQJV SURMHFW ODZ¶V ³VSHFLDOQHVV´ DQG authority. cohesion would persist, while those that that persist, the sowed and die. Thus, those cohesion dissensionwould while wither might stuck values to avoid getting conflicting best legal systems seek their to coordinate would Under reality. to this to adapt had emperors and end, even monarchs the In at extremes. these systems placed them in direct or indirect competition. in direct or indirect systemsthese placed them of these of norms, saw, we bolsters of exceptionalism feelings and reinforcesgroup social connectivity. 42208-tul_55-3 Sheet No. 18 Side A 05/15/2020 10:30:18 Side A 05/15/2020 Sheet No. 18 42208-tul_55-3 42208-tul_55-3 Sheet No. 18 Side B 05/15/2020 10:30:18 ² ² 228 M K C Y EOCLASSICAL N rules, so their so their rules, HYHUDOSURSLWLRXV our our EALISM TO EALISM UPVGRQRWKLGHLQVLGH ODZ¶V PRUH LPSRUWDQW R FLDOL]LQJHIIHFWVDUHIDU WZRUNFRRUGLQDWHVVRFLDO VHQJDJHLQVRFLDODFWLYLWLHV USHWXDWHPDQNLQG¶VFRPSOH[ OLMESIAN H [Vol. 55:363 55:363 [Vol. the human capacity to share capacity to share the human mental ROM :F ² ORTS T $V+DLGWSRLQWVRXW³:KHQHYHU\RQHLQDJURXS 229 ) 5/6/2020 ) 4:08 PM ISTORY OF ISTORY H ULSA LAW REVIEW LAW ULSA ELETE T D OT N O flipped on, causing them theirbehaviors. prosocial to increase them causing on, flipped (D EVISIONIST ,AR So was the basis of law. Though people shared social intentionality social intentionality people shared Though law. of the basis So was note 84, at 238. 238. 84, at note UBLISHER UBLISHER 230 P ALNAN supra supra , C FOR FOR 94 (2005). 94 (2005). AIDT LAN LAN H A at 239. 6RWKHXSZDUGG\QDPLFVEHKLQGODZ¶VHPHUJHQFHZHUHHQDEOHGE\V /DZ¶VLPPHGLDWHHIIHFWLVWRPDNHOLIHPRUHSUHGLFWDEOH,WVQR Legal subjects less feel predictableSuch has circular prosocial effects. stability :KLOHWKLVSUHGLFWDELOLW\SDWWHUQLVFLUFXLWRXVODZ¶VRWKHUVR , A - FINAL . Id. . See . See . See . See ATIONALISM ALNAN 230 228 229 R the pacts of the divine right medieval protection reciprocal into enter to had sovereigns kings, tyranny. they of acts engaged if in powers divine their theirsubjects lose could and with 390 390 C exclusivity makes them special. Yet law is also and bigger a us, reflecting better than our and dignifying consciousness than By greater highlighting or group. individual any in proto-legal systems, law literally took it to another level. Law not only embodies these embodies literally systems, proto-legal only level. not in law it to another Law took These it customizes,norms, and sacralizes them. become preserves, legal network. Through a process downwardlegal Through causation, the of cultural network. of law genius innate legality. our refresh to constantly biology coevolved human with their stress about social a result, theyless suspicious,fearful, become surroundings. As and aggressive and reopen themselves to social interaction. this dramatic Becausestress of genomes individual undergo antisocial do not reduction, epigenetic Instead,modification. SHRSOH¶VKLYHVZLWFKHVVWD\ These stress-free other behaviors are learned perpetuate the and copied by who observers, less of stressed children, and the to even These sociability. birth wave give sociophiles coevolutionary cycle repeats its escalating towardmarch social harmony. factors eventuallyfactors which took characteristics.shape These as defining assets certainly enduring existence beings precarious to escape more human their and develop allowed VRFLDOVWUXFWXUHV%XWWKHYHU\VDPHIHDWXUHVDOVRKHOSHGWRSH or the of strangers minds transform with their Law also istastes not or left to the moods. FKDQFHLQLWLDWLYHRIRQH¶VSHHUV,QVWHDGRXUFRPSOH[OHJDOQH a and point,intercourse vantage applying discernable detachedfrom propitious but consistent and even-handed principles in accouterments an open fashion. Its visible codes law even monumental and temples, legal books, law lawyers, judges, lawmakers, ILOO XV ZLWK FRQILGHQFH VKRXOG ZH HYHUpredictability is what or even do not see, experience, People about. we think under living ILQG OHJDO WURXEOH %XW the persistent do not law face imminent threat of extinction. Unlike their proto-legal DQFHVWRUVZKRFRQVWDQWO\IHDUHGIRUWKHLUVDIHW\ODZ¶VFKDUJH loved bodies, and possessions, their secure will protector their permanent that expecting ones. critical induces law of in direct. The two glorification sociability conspicuous more switch hive our flipping respects. It plays legalin system in a the place. first role A major is the highest expression of shared intentionality began to share a common understanding of how things were supposed to be done, and then then and be done, to supposed things how were of understanding a common to share began the those individual violated of first expectations, negativity moral a flash any when felt PDWUL[ZDVERUQ´ representations for a common for representations purpose. 42208-tul_55-3 Sheet No. 18 Side B 05/15/2020 10:30:18 Side B 05/15/2020 Sheet No. 18 42208-tul_55-3 42208-tul_55-3 Sheet No. 19 Side A 05/15/2020 10:30:18 233 acts as 60, 63, 69, ¶VQRUPVDQG NQUIRY .I OC UDMHFWRU\ RI ODZ¶V  SK\VLRORJLFDO DQG \VWHP¶V PRVW YLWDO  VHQVH ODZ like imitation,like norm everyone &S H LQ VKDSLQJ SHRSOH¶V ² Becausethis awareness \QRUPFLUFOHV:KHWKHU UVFDOHODZ¶VPHPRU\WHQGV 234 , 42 L. 236 391 391 That instinct is so sensitive it can be be That is so sensitive it can instinct ION T 231 COEVOLU

) 5/6/2020 ) 4:08 PM S 235 ’ to comply on our Lieberman Professor own. As to comply ²UHPLQGVXVRIVRFLHW\¶VH[SHFWDWLRQVDQGDOHUWVXVWR ELETE D LAW want OT N O (D For example, a person acting in front of a mirror is far less likely to of in a is less acting For example, likelyfront a person to far mirror note 82, at 228 (emphasis omitted). Expressive Law, Social Norms, and Social Groups 232 UBLISHER UBLISHER P 32. ± supra supra , FOR FOR the revered overseer the [e]volution has wired us with panoptic self-control in which the mere the mere self-control in which panoptic us with wired has [e]volution at 229,232. at 231 at 231,234. at 232. ² Janice Nadler, Nadler, Janice IEBERMAN In fact, law law us fact, makes In /DZ¶V ILQDO HIIHFW LV WR IDFLOLWDWH VRFLDO OHDUQLQJ ,Q D EURDG Still, one might wonder how seemingly disparate and intangible things like things and intangible disparate seemingly how wonder might one Still, the legality switch really, But are just parts and its an extendedof flipper super- , A - FINAL M K . See id. . See id. . See . See id. . See id. . See . See 71 (2017) (noting that law works only if people are open to it; and they are open to it only if it reflects their their it reflects if only it to open are they and it; to open are people if only works law that (noting (2017) 71 C Y ± ALNAN 232 233 234 235 236 triggered abstractly, so long as the impetus somehow reminds people of their potential potential reminds their people somehow impetus of so long as the abstractly, triggered others. to visibility social bonds, law effectively effectively our law our switches mindsets inducing social, to bonds, social selfish from collective to the evenfidelity our coercing without obedience. HODERUDWHV ³ of judged and being possibility dramatically evaluated increases by tendency others our to EHKDYHLQOLQHZLWKVRFLHW\¶VYDOXHVDQGPRUDOV´ violate a violate social because the reflectionnorm allows the actor toherself see as others do. elicits self-restraint, law constantly prods us towards constantlyelicits self-restraint, just towards its by sociability law prods us very conspicuous and existence. reflective 231. L 2020] 2020] C values). 70 the reality that are alwaysthe we being andwatched evaluated. values, law Law seems to serve as such a magic mirror. A public projection of of seems projection as public a such to serve Law A magic mirror. VRFLHW\¶V VRFLDO PHPRU\ VWRULQJ on to rely have do not to behave, how to discover they seek people So when information. LQ LWV GDWD EDQNV Instead, observation. they of powers and or even friends their own family their only need DOO RI WKH V WXUQWRODZVRFLHW\¶VRUDFOHRIFROOHFWLYHZLVGRP2QDVPDOOH WRLQIRUPDQGUHLQIRUFHWKHYDOXHVDQGEHOLHIVRIVRFLHW\¶VPDQ they arise in communities, businesses, in communities, arise they schools, professions, religions, or sports, hobbies, ZKDW KDYH \RX WKHVH VXEJURXSV SOD\ SHUKDSV WKH PRVW GLUHFWEHKDYLRU URO 7KXV MXVW DV of threads priming into the down trickles continuously social fabric, our law emergence, QRUP FLUFOHV FRQWULEXWH WR being. social inner to our connecting by compliance for us WKH XSZDUG W information, instincts, dynamics, social cues, a real have or even law, could coordination information, something impact on ascausal as a tangible being. Thehuman trick is to see them asnot being If system. big one aspects of phenomena, as complementary several different but legal flipper. In switch cause to the the to attribute a switch, it is easy flipping social is like associate sanctions, or regulatory we which punitive to single out seem this terms, might antisocial behavior. of indirect deterrence direct and with refined it. During and culture eons of switch biological Evolution our designed system. WKDW SURFHVV WKH KXPDQ JHQRPH DQG EUDLQ DVVHPEOHG WKH VZLWFK¶V psychological components to ensure its mechanical efficacy. Even as the switch was under switch under as the efficacy. Even was to ensure its components psychological mechanical development, society testedswitch-flipping various techniques 42208-tul_55-3 Sheet No. 19 Side A 05/15/2020 10:30:18 Side A 05/15/2020 Sheet No. 19 42208-tul_55-3 42208-tul_55-3 Sheet No. 19 Side B 05/15/2020 10:30:18 ² ely M K C Y VRO LFLQYHVWLJDWLRQ GHQFHDORQH,QVWHDG KDQJH 7KRXJK WKLV ODZ¶V FRHYROXWLRQDU\ G SROLFLHV +RZHYHU LSSHUH[WUDRUGLQDLUHVRLW the social sciences. the of the dynamic forces that forces dynamic the of and all ignoring changeless law. of feature [Vol. 55:363 55:363 [Vol. only ONCLUSION C ) 5/6/2020 ) 4:08 PM V. sources, it is the sources, ULSA LAW REVIEW LAW ULSA ELETE T and trained generations of novice Wereto of trained and novice flippers. generations we D ² OT N infinite O (D 7KXVDQ\³HYROXWLRQDU\´WKHRU\RIODZWKDWFRQWLQXHVWRGHSHQG UBLISHER UBLISHER P FOR FOR scaling up and then back down through human biology, society, and biology, human back through and down then up scaling ² the social science perspective is necessarily too narrow. Indeed, given the given Indeed, too narrow. is necessarily the social science perspective FHODZ¶VFRHYROXWLRQLVUHDOLWFDQQRWEHFDSWXUHGE\MXULVSUX ² The field best The this is field suited for purpose systems science. As sociologists now In this In spirit, some legal theorists already haveenlisted the the help social of Jurisprudence and empirical science empirical and Jurisprudence historically have littlehad common. Yet they in the in evolve does not is this evolutionary Law Unfortunately, maxim misconceived. Sin , A - FINAL SUHVVHGWRJUDVSODZ¶VHVVHQFHZLWKRXWFRQGXFWLQJDPRUHKROLVW ALNAN interconnectedness of these causes, any a blinkered focus on alone single factor may be potentially misleading. Such a of view subject point complex a comprehensive requires culture sciences, the the humanities, natural uniting capable of one systems accounts sciencerecognize, only the not for nested and interdependent structure to explain law, it also strives phenomena like cultural of and them. transform create, sustain, This view stands in stark contrast to existing evolutionary thattheories define law only or conceptual in social or historical terms, as an abstract systems immutable ideal. lesson treat law of central that approaches The is, theory change haswhile sciences. is polycentric Becauselegal coevolution not is But even this enough. and bi- directional nature must bear a heightened responsibility to justify the oversight. Works of the oversight. justify to specific heightened responsibility bear a nature must of spadework important the performing by burden still this could jurisprudence meet XQHDUWKLQJ JUDQXODU WUXWKV DERXWseem generaljurisprudence of ODZ¶Vtheories would into these facts assemble to scholars seeking GRFWULQHV SUDFWLFHV DQ hard- unnecessarily speculative.unnecessarily It also follows that theories circles, and peer punishments peer and circles, one network, if different a completely have would features, we these one of any eliminate H[LVWHGDWDOO2IFRXUVHODZILQDOO\HPHUJHGDVKXPDQLW\¶VIO receives credit. causal often But in truth, it never mastered thesecured or job. it Instead, coordinate complex and to synchronously culture our genes with to coevolve continues jurisystems. 392 392 C it must be founded on science, which employs a reliable methodology to justify on a reliable science, be founded it employs methodology must which such claims. ontological do share one core concept: evolution. Granted, the jurisprudential usage of this term this term Granted, has of jurisprudential coreusage evolution. the concept: one do share been scientific. Instead,never evolution has served mostly as a convenient analogue for GHVFULELQJ WKH ODZ¶V SURFHVV RI and it clearly it persisted because evidence, has by supported never explanation was VRFLDO DGDSWDWLRQ DQG JUDGXDO F succinctly conveys idea. a familiar law Instead, jurisprudents. described by and unilateral fashion progressive, linear, coevolves with genes, brains, societies, people, coordinative, and cultures a loopy, in exchange that promotes and stability survival.information is The to now question what correct simply the conceptual, might we merely were problem the error. If of the make fundamental. are far more the analogy. the ramificationsBut here record and adjust on humanities disciplines like analytic philosophy or history cannot escape appearing escape appearing cannot or history philosophy like analytic disciplines humanities on 42208-tul_55-3 Sheet No. 19 Side B 05/15/2020 10:30:18 Side B 05/15/2020 Sheet No. 19 42208-tul_55-3 42208-tul_55-3 Sheet No. 20 Side A 05/15/2020 10:30:18 H $V D FRPPHQWDWRU WKHF\EHUQHWLFSURFHVVE\ of the epigenetic, genetic, of 393 393 Perhaps if Holmes had lived long Holmes Perhaps lived had if long 237 olve or perish. This truth certainly was certainly Thisperish. truth or olve coordinative synthesis ) 5/6/2020 ) 4:08 PM ELETE and D LAW’S COEVOLUTIONLAW’S OT N O (D systemic UBLISHER UBLISHER P note 10, at 144. 144. 10, at note FOR FOR supra supra In fact, the fact, sameIn appliesBecause principle jurisprudence. to theorylegal of is one , A - FINAL M K experience, but is a experience, but C Y ALNAN ODZ¶VPDLQLQIRUPDWLRQV\VWHPVLWPXVWHLWKHUFRHY QRW ORVW RQ +ROPHV ZKR SRSXODUL]HG ODZ¶V HYROXWLRQDU\ QDUUDWLY Holmesbelieved originally that the of life the law was experience. logic,not But but after Elliott, Professor to changedAccording his gradually mind. he judge, a as serving years +ROPHV¶VODWHUPDQWUDFRXOGKDYHUHDG³7KHOLIHRIWKHODZLV ZKLFKH[SHULHQFHPRGLILHVWKHDYDLODEOHORJLFVHW´ enough to see the dramatic breakthroughs to see the dramatic in the sciences,enough social, and systems natural, his coevolved still. have would thinking is further limitedsurmise, Law, he not logic might by or 237. Elliott, 2020] 2020] C

neuropsychological, and sociocultural forces that help to sustain life itself. life to sustain that help and socioculturalneuropsychological, forces 42208-tul_55-3 Sheet No. 20 Side A 05/15/2020 10:30:18 Side A 05/15/2020 Sheet No. 20 42208-tul_55-3 42208-tul_55-3 Sheet No. 20 Side B 05/15/2020 10:30:18 M K C Y *** 42208-tul_55-3 Sheet No. 20 Side B 05/15/2020 10:30:18 Side B 05/15/2020 Sheet No. 20 42208-tul_55-3