Like the winds, that come we know not whence, and blow withersoever they list, the forms of society are derived from an obscure and distant origin; they arise, long before the date of philosophy, from the instincts, not from the speculations, of men. The croud of mankind, are directed in their establishments and measures, by the circumstances in which they are placed; and seldom are turned from their way, to follow the plan of any single projector.Adam Ferguson (1966 (1767), 122)
The second half of the 20th century witnessed a resurgence of evolutionary theory in both natural sciences and social sciences. The most significant feature of this movement has been the extension of the Darwinian theory of evolution – or, more accurately, the neo-Darwinian synthesis – to human culture in order to explain such phenomena as scientific and technological development, the emergence of formal and informal social institutions, language acquisition, and even mind and consciousness. Evolutionary accounts of legal emergence have figured prominently throughout the 20th century in cultural anthropology and within branches of economics, most notably the Austrian and the institutional economics traditions. Although American jurisprudence was quick to embrace evolution after Darwin, legal scholars in the 20th century have only paid sporadic attention to evolutionary accounts of law (Ruhl 1996a, 1412–13). The situation has changed somewhat with the persistent efforts in law and biology by scholars associated with the Gruter Institute for Law and Behavioral Research (Elliot 1997, 596) and the nascent complexity and law movement (Ruhl 1996a, 1996b). Outstanding work is also flowing from the efforts of Owen Jones and his colleagues at the Society for Evolutionary Analysis in Law (SEAL) based in the Vanderbilt University (Jones 1999; Jones & Goldsmith 2005). However, this body of learning has yet to establish its presence in mainstream law school curricula or research.
It is not widely appreciated that the recent blossoming of the evolutionary theory of culture has a distinguished pedigree that pre-dated Darwin's breakthrough and, indeed, provided Darwin with the intellectual tools that helped him to uncover the idea of natural selection (Pollock 1890, 41; Hayek 1982, 1, 152–3). The work of these pre-Darwin scholars is particularly significant in legal theory as they drew their greatest inspiration from the shining example of the common law, and proceeded to establish a solid foundation for an evolutionary jurisprudence.