Article by Raffaele Caterina
The polemical target of this Article is an approach which is widespread among comparative lawyers and legal anthropologists. This approach affirms that comparing legal systems is comparing different “world versions”; that since human beings live in a world created by their culture, people from different cultures inhabit different worlds, and therefore cannot ever reach perfect understanding between each other; that comparative lawyers cannot expect but differences, that every discovery of similarities, of “common cores” of principles across legal systems is the result at best of a reductionistic approach, at worst of more or less conscious cultural imperialism. This approach has been called “difference theory.”
Today the development of cognitive science brings on stage human nature. Models of vision and object recognition, generation and comprehension of language, reasoning and other cognitive processes elaborated by cognitive science are universal models. The linking of the cognitive processes to deep mechanisms characteristic of our species brings with itself the reconstruction of human nature.
The past few years have seen a resurgence of nativist theorizing. Today many psychologists, linguists, anthropologists, philosophers, and ethologists accept (even if in rather different versions) nativistic theories about the cognitive mind. These scholars believe that man has innate knowledge at disposal, or at least that human knowledge is bound by substantive and universal properties of human psychology.
In Part I of the Article, the author shows that even a rather moderate version of these theories is sufficient to confute the most radical versions of difference theory, and the integrally cultural image of man that they imply. In Part II, the author shows how some more controversial theses, formulated by evolutionary psychology, or in any case in the context of massively modular conceptions of the human mind, can contribute to the comparative study of law by posing new questions and by challenging traditional approaches.
About the Author
Raffaele Caterina. Professor of Law, University of Torino, Italy. Dr. Giur. University of Torino; M.St. University of Oxford.
Citation
78 Tul. L. Rev. 1501 (2004)