Marc Amstutz
Biography
Marc Amstutz is Professor of Commercial Law, Legal Theory and Sociology of Law at the University of Freiburg. He has studied in Bern, Zurich and Harvard and has taught as a visiting professor in several European Universities. He is a member of the executive board of the German Association for Law & Society (Vereinigung für Recht und Gesellschaf) and co-founder of the Institut für Recht und Wirtschaft (IDÉ) at the University of Freiburg where he is executive director.
His publications in English include: In-Between Worlds: Marleasing and the Emergence of Interlegality in Legal Reasoning, European Law Journal 11 (2005), 766-784; Civil Society Constitutionalism: The Power of Contract Law, Indiana Journal of Global Legal Studies 14 (2007) (together with Vaios Karavas); Global (Non-) Law: The Perspective of Evolutionary Jurisprudence, German Law Journal 2008, 235-258; Networks: Legal Issues of Multilateral Co-operation, Hart Publishing 2008 (ed. together with Gunther Teubner); The Mutation of Law: On the Genesis and Evolution of Transnational Law, in: Peer Zumbansen/Gralf Calliess (eds.), Law, Economics and Evolutionary Theory (in print, Edward Elgar 2010) (together with Vaios Karavas); Globalizing Speenhamland: On the Transnational Metamorphosis of Corporate Social Responsibility, in: Christian Joerges/Josef Falke (eds.), Karl Polanyi, Globalisation and the Potential of Law in Transnational Markets (in print, Hart 2010).
Abstract
Mechanisms of Evolution for a Law of the Future
The present remarks focus on the subject of how law changes over time. This is a question of particular relevance within the context of globalisation, but to which the literature has not yet provided a satisfying response. The difficulty, it is argued, lies in a widely held conception of law as developing along a linear path, adapting to change through the intervention of an external agent, the lawmaker, who acts as a ‘legal planner’ (legal positivisim). A more useful understanding of law, it is argued, may be found in the circular model proposed by evolutionary theory, according to which the primary mechanisms for change in the legal system are the same as those found in other natural systems: selection and spontaneous self-organisation. In this paradigm, the legal system is observed within the overall context of the society to which it belongs – and not simply as an instrument of the political system – providing a multidimensional portrayal of the synchonicity of social and legal developments. The approach here proposed has two immediate thematic objectives. The first is to work out a fully elaborated theory of legal evolution; the second is to investigate the potential for practical application of that theory as a model for the orientation of legal operations. The ultimate purpose is to enhance the ability of legal systems to adapt as circumstances change and, by that means, to raise the degree of social responsiveness with which the law is applied.
