How to Expand Evolutionary Theory with Legal Positivism

(for the Benefit of Transnational Corporate Law-Making)

Abstract

Even if the combination of two (or more) theoretical approaches can be helpful in order to better understand a certain legal phenomenon, the very idea of combining one legal theory with some components of another approach usually gives rise to a kind of conflicting feelings among the followers of each of the schools or movements involved. Beside the usual conservative tendency typical for most legal scholars, clashing thoughts tend to hunt the legal scholars engaged in the process. On one hand, both parties are well aware of, or at least they perceive the possible advantages arising from combining forces and respective strengths. This combination is usually complementary to the fact that the weakness of a theory in one area can be covered by the strengths of the other school in the same area and vice versa. On the other hand, both parties are afraid that, the necessary compromises which come along with inserting some “foreign” components into one legal theoretical approach, can somehow modify in a fundamental way its being what it is. The compromises can go so long that, in the end, the legal theoretical stream will loose its identity, i.e. the qualities that make it what it is, and it will therefore become weak on all fronts.