Alan Calnan

One of most pervasive maxims of American jurisprudence is that law evolves. Applied metaphorically, it expresses the broad idea that law gradually adapts to its environment, unfolding in a linear and progressive trajectory controlled by either human reason or social influence. But science now discredits these assumptions. Law does not just evolve philosophically; it coevolves with everything in nature. Recent breakthroughs in the natural sciences show that humans are born with an instinct for legality. According to the social and systems sciences, this neurobiological faculty extended outward into the social world, initially inspiring a collection of proto-legal mechanisms like prosocial impulses, social norm circles, and peer punishments. Eventually, these social mechanisms culminated in complex legal networks that were prominent, permanent, autonomous, and preeminent. Once entrenched, these “jurisystems” have triggered a number of downward effects, coordinating human conflicts, relieving social stress, and reinforcing social bonds. As law’s influence grows, it continuously shapes social behavior and cultural memory, completing a cycle of epigenetics and gene-culture coevolution that renews our sense of legality. In sum, law coevolves with our genes, brains, societies, and cultures in a loopy, coordinative, information exchange that promotes stability and survival.

Social Legal Theory (SLT) has been heralded as the “third pillar” of jurisprudence, offering a social scientific alternative to the rational relativity of legal positivism and the moral determinism of natural law. Yet recently SLT’s most ardent champion, Professor Brian Tamanaha, appears to have broken ranks. Assuming a “holistic” perspective, Tamanaha now contends that law “emerges” from both social and naturalistic influences. This move not only undermines SLT, it seemingly transforms that view into the existing theory of jurisilience, which uses the holistic epistemology of consilience to provide a bio-socio-cultural account of law’s essence.

Despite outward appearances, however, these approaches are far from identical. Unlike the revamped version of SLT, which is ontologically constrained and conflicted, jurisilience explains law’s emergence through systems science and cutting-edge sociology. It shows that law is not a simple assemblage of social and/or natural forces. Instead, it is a complex information network of interdependent “jurisystems.” Grounded in our natural need for homeostasis, human legality originates in our genetic and neurobiological systems, scales up to our normative social systems, and becomes externalized as a supreme system of formal law. Once entrenched, law does not remain stagnant, but continuously coordinates human conflicts, relieves social stress, and reinforces social bonds. Over time, law’s dynamism changes social behavior and cultural memory, initiating a cycle of epigenetics and gene-culture coevolution that renews our biological disposition for legality. Given law’s systemic nature, any socio-centric jurisprudence now seems obsolete. The fact is, jurisilience and jurisystems do not just systematize SLT; they systematize SLT right out of existence.

This article offers a science-based answer to an old philosophical question, “What is the essential nature of torts?” Building on the “process theory” of torts and my own general theory of “jurisilience,” the proposed answer emerges from a neglected natural fact: torts is a complex system. Like all such systems, torts is both shaped by and composed of various subsystems. Mankind’s biological, neuro-psychological, and socio-cultural subsystems create selfish, social, and ratio-moral conflicts that influence torts’ history, content, and practice. This inner tension also accounts for torts’ adversarial structure, which includes three systems in one—a dispute resolution system, a lawmaking system, and the social value system at large.

The discordant form of these features reveals torts’ true function. To manage complexity, torts continuously coordinates its friction points, using its trilateral subsystems to harmonize its disparate goals and values and reconcile society’s interpersonal disputes.

Though tort law constrains this coordinative process, it does not control it. Rather, like every other complex system, torts’ coordinative process is decentralized, spontaneous, and synergistic. This can be seen horizontally across tort theories, as “core” distinctions among intentional torts, negligence, and strict liability progressively erode and transform. It also is evident within each theory’s “indispensable” elements, which are constantly adjusted, informed, or blurred by other key concepts. These emergent patterns even extend vertically in the development of important fields like pure emotional distress, premises liability, and strict products liability, where system dynamics can take different trajectories and produce unplanned and unpredictable results.

In this sense, torts is not a stable concept that can be comprehended solely by studying its prominent components, as tort theorists have long supposed. Instead, it is really a false façade for the turbulent vortex of conflict and change animating the complex systems beneath.

This article marks an end and a beginning to legal theory. If general jurisprudence is a genuine search for law’s true nature, it cannot help but fail. It assumes artificial perspectives, uses selective evidence, and applies unreliable methodologies to reach false and irreconcilable conclusions. Worst of all, this flawed framework ignores law’s core feature: its humanity. Because these defects are endemic, we must move beyond jurisprudence toward “jurisilience.” Inspired by the consilience movement outside legal academia, jurisilience seeks to unite all forms of human knowledge to enrich our understanding of law, legal systems, and legal theorizing. This piece begins that epic effort, coordinating insights from the natural sciences, the social sciences, and the humanities. It offers two connected revelations. First, the nature of law is human nature itself; and second, both law and humanity are shaped by the same causal forces that govern the natural world. Known to science as complementarity and coordination dynamics, these forces address the problem of survival by harmonizing competing elements within complex systems. In mankind, this process tracks human evolution, holistically integrating our genetic, neural, psychological, social, and cultural systems, including our supreme coordination system, law. Yet complementarity and coordination dynamics do not just cause law; they actively influence its history, structure, content, procedure, and interpretation. So viewed, law is actually a mirror image of its creator – a complementary collection of problem-solving systems dynamically coordinating and reconciling their antagonistic tendencies in pursuit of human well-being.

Until now, the controversy surrounding Supreme Court nominee, Merrick Garland, has been analyzed from traditional legal perspectives like history, constitutional philosophy, and political theory. So viewed, the appointment crisis is simply a problem of general jurisprudence, which relies upon the humanities and “soft” sciences to understand and explain law’s concepts and conundrums. But this problem-solving approach itself is problematic. Because legal institutions like the Supreme Court are complex social systems, they are susceptible to deeper scientific explanation. In fact, two of “hard” science’s most exciting discoveries — complex systems theory and coordination dynamics — seem to offer insights not accessible through rational analysis or rhetorical argumentation. This brief essay highlights these scientific breakthroughs, explains their key features, and reveals their significance for the law, the Supreme Court, and the Court’s appointment process.

General jurisprudence rests on five interrelated myths. The first three misconceptions are epistemological, while the final two are ontological. First, the domains of human knowledge — specifically, the natural sciences, the social sciences, and the humanities — are essentially independent and incompatible. Second, law is an exceptional phenomenon decipherable only through certain knowledge domains (especially the humanities and “soft” social sciences) and not others (especially the natural sciences). Third, because the methodologies for understanding law vary by knowledge domain (compare the internalism of analytic philosophy with the externalism of science), they cannot be integrated or synthesized but instead must be distinguished and prioritized. Fourth, given this (false) balkanization of knowledge, theories about law inevitably yield dualistic accounts, like essentialism-antiessentialism, monism-pluralism, positivism-naturalism, and conceptualism-empiricism. Fifth, and finally, these legal theories need not consider or reflect human nature, but rather must seek truths that either transcend humanity (through conceptual analysis) or fixate on its singularities (through biological or sociological research).

The current project explodes these myths. Moving beyond jurisprudence, it proposes a new type of descriptive legal theory called jurisilience. Jurisilience is grounded in the epistemology of consilience, the interdisciplinary movement to unite the sciences and humanities. Proliferating outside of law, consilience’s cross-fertilization trend runs in both directions, with new specialties like sociobiology and evolutionary psychology growing up from the roots of the knowledge tree, and hybrids like experimental philosophy and the philosophies of mind and science extending down from its loftiest branches. Because these fusions are reciprocally transformative, knowledge from across the academic spectrum can be productively integrated to enlighten any human subject, including law.

Jurisilience is the first attempt at such a comprehensive legal ontology. Combining research from physics, evolutionary biology, neuroscience, complex systems theory, moral and developmental psychology, sociology, and anthropology, jurisilience argues that the essential nature of law is human nature itself. That nature is holistic and synergistic, not dyadic and antagonistic. Human beings are complex biological systems propagating complex socio-cultural systems to complete and continue the circle of life. Although these systems possess contradictory tendencies — like competition and cooperation — they are harmonized by complementarity and coordination dynamics. Working in tandem, these universal forces turn antimonies into spectral boundaries that facilitate pragmatic, medial solutions to recurring survival problems. This dynamical process is not contextual or contingent, but operates at every level of human existence. While genes coordinate egoism and altruism, and brains coordinate impulse and reason, societies and cultures coordinate individuals and groups. Together, these reconciliatory systems beget a remarkably potent “law instinct.” As jurisilience now shows, mankind’s coordinative nature is not just implemented by law; it also is embedded in law, shaping the history, structure, substance, procedure, and yes, even the interpretation of this quintessential human institution.

The current piece is a modified version of a substantially longer paper. While this revision eliminates discussion of a proposed interdisciplinary standard of reliability — a standard jurisilience eventually must meet — it also adds empirical depth in several areas. Notwithstanding its still considerable length, this introductory entry is offered as a general outline of a working hypothesis and not as definitive proof of its truth.