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Philosophical instinct, Prelegal categories


Common Law | Law and Society | Legal History


Ancient mythology, literary fiction, and modern science fiction films all recount a similar cautionary tale: human ingenuity gives rise to a powerful invention, but through human fallibility and, in some tellings, venality, the invention becomes a monster and turns on its creators. Perhaps the most famous example is Mary Shelley's Frankenstein, in which Dr. Frankenstein's attempt to fashion a living man from the dead remains of others succeeds, only then to go horribly awry. Such stories are timeless because they warn of the dangers of indelible features of human nature: hubris and short-sightedness. Recent large-scale catastrophes such as the 2010 Deepwater Horizon Gulf oil spill and the 2011 tsunami-induced radiation leakage at the Fukushima nuclear power facility are only the latest reminders of the limits of human ingenuity and the continuing relevance of the Frankenstein story.

But if the unintended consequences of human ingenuity can sometimes prove disastrous, at other times, they may turn out to be felicitous. We are all familiar with accidental inventions like penicillin, Post-it Notes, and the microwave oven. Spandrels are a more whimsical example. A spandrel is the space between a curved arch and a rectangular boundary; although an artifact of architecture and geometry, since ancient times, artists and architects have used spandrels to enhance the beauty of buildings.

We see a similar process in nature: evolution, or in the case of human culture, our own artifice, retrofits organs and capacities that were originally selected for one purpose to serve some very different purpose. Feathers evolved as insulation but proved useful for flight. Evolutionary biologists debate the causal origins of sophisticated human language, but it certainly did not evolve to enable the writing of sonnets or the delivery of lectures on law. The late evolutionary biologist Stephen Jay Gould popularized the term “exaptation” to refer to this phenomenon, expressly analogizing it to spandrels in architecture.

So much for literature, science, and art. Let me turn now to something about which I am more qualified to express an opinion: law. The law contains numerous examples of retrofitting. Legal institutions, doctrines, and texts that were originally thought to serve one purpose can come to serve quite different purposes.

Publication Citation

Published in: William & Mary Law Review, vol. 54, no. 2 (November 2012).