Legal evolution

Veblen’s conception of institutional change bears comparison to Auguste Comte’s, in that social evolution was seen as rooted in psychic evolution through several epochal stages. But Veblen, as might be expected of an economist, insisted that the human mind’s development was driven ulti­mately by the imperatives of livelihood in general, and of technology in particular.

The first stage of material life was that of ‘savagery’, roughly what we today would term the hunter-gatherer economy. As Veblen outlined in his article, ‘The beginnings of ownership’, at this undeveloped and undifferenti­ated stage the right of property (and, we are led to surmise, law as a whole) does not exist: ‘such meager belongings of the savage as would under the nomenclature of a later day be classed as personal property are not thought of by him as his property at all; they pertain organically to his person’ (Veblen, 1898b, p. 357). This pre-legal state of affairs began to change as ‘savagery’ gave way to ‘barbarian’ society, which he associated with the agricultural and pastoral modes of production. It was at this juncture that the use of valuable tools, the accumulation of wealth and the scope for predatory acquisition set the stage for social differentiation between ‘honorific’ employments (war and its civilian analogues) and ‘humiliating’ ones. This economic change issued in the psychic urge for ‘emulation’, by which Veblen meant the desire to demonstrate - or simulate - the status that attends social dominance. The emulative urge, in its turn, ramified in law, first and foremost in the principle of chattel, that is the ownership of womenfolk, slaves and, of course, inani­mate objects, all as tokens of martial prowess (Veblen, 1898a, p. 59; 1898b, p. 364). The whole Hammurabic Code, indeed, Veblen adduced as bespeak­ing the ideological revolution wrought by ‘militant pastoral culture’ (Veblen, 1905, p.

It is worth pausing for a moment to underline, first, the difference between Veblen’s account of legal evolution and the now-standard new institutionalist ones. Whereas the latter tend to point to the rational logic of private property over things and persons, Veblen stressed that it was, and remained, ‘a cultural fact and has to be learned; it is a cultural fact which has grown into an institution in the past through a long course of habituation, and which is transmitted from generation to generation as all cultural factors are’ (Veblen, 1898b, p. 360). Second, Veblen believed that the barbarian, ‘emulative’ im­pulse had survived down to his own day as a hardy vestige, despite the fact that the economic forms which once nourished it had long since expired. This held particularly true of lawyers themselves:

[N]o taint of usefulness, for other than the competitive purpose, attaches to the lawyer’s trade... The lawyer is exclusively occupied with the details of predatory fraud, either in achieving or in checkmating chicane, and success in the profession is therefore accepted as marking a large endowment of that barbarian astuteness which has always commanded men’s respect and fear. (Veblen, 1899, p. 231).

Here, it seems, Veblen had found a theoretical apparatus upon which to hang his long-standing distaste for jurists and their guild.

A second epoch-making change in mentality and law accompanied the incipient industrialization of early modern Europe. Regularization of work effort, a more precise division of labour and at least a vague familiarity with the achievements of the scientific revolution instilled in engineers, operatives and merchants a heightened sense of the underlying mechanical unity of the universe. This new mind-set, which we might term ‘Newtonian’ (Veblen himself called it ‘supernatural’), found its basic legal expression in the doc­trine of natural rights, which ‘grew up and found secure lodgment in the common sense of the community, as well as with its lawgivers and courts, under the discipline of the small industry and petty trade (“domestic indus­try”) whose development culminated in the eighteenth century’ (Veblen, 1904, p.

Veblen believed that the historical conjuncture through which he himself was living was fairly intricate. The regnant principles of private law remained those of Enlightenment natural rights doctrine, but its practice was dominated by attorneys who, as we have seen, were avatars of a more barbaric age. Similarly, the Western powers had seen industrialization and constitutional democracy reinforce one another, but in the new century they now faced a rising German state in which industrialization had been effectively turned to the purposes of a predatory autocracy (Veblen, 1915). And as if this were not complex enough, it was currently becoming clear that the technical and organizational implications of the Second Industrial Revolution were chang­ing the mind-set of the workforce yet again, towards ‘mechanistic’ habits of thought. As he put it, ‘the discipline of daily life, from which the common­sense notions of the vulgar are in good part derived, is no longer in full accord with the natural-rights conceptions handed down from the eighteenth century’ (Veblen, 1904, pp. 282-3). Patriarchal monogamy (‘ownership-mar­riage^,) was already in crisis among the industrial proletariat (Veblen, 1898a, pp. 59-60); the doctrine of absolute freedom of contract had been in decline for some time (‘obsolescent, of course, not in point of law, but in point of fact’, Veblen, 1904, pp. 274-5); and it was only a matter of time before the engineers and their allies declared war on the outmoded conceptions of private property that served only the pecuniary interests of capital (Veblen, 1917, pp. 363-6).

Though he was far too delphic to say it unambiguously, the clear implica­tion of Veblen’s evolutionary scheme was that the future, including the future of law, belonged to engineers and administrators. Technocracy, or rule by ‘a Soviet of technicians’, would ensure that all social elements were combined scientifically and efficiently. With power and reason finally yoked together, law itself - as a system of constraints binding the knowledgeable and the ignorant alike - could be given a decent burial.