The Evolution of Everything: How Small Changes Transform Our World

Certainly, there do seem to be some remarkably fortuitous features of our own universe without which life would be impossible. If the cosmological constant were any larger, the pressure of antigravity would be greater and the universe would have blown itself to smithereens long before galaxies, stars and planets could have evolved. Electrical and nuclear forces are just the right strength for carbon to be one of the most common elements, and carbon is vital to life because of its capacity to form multiple bonds. Molecular bonds are just the right strength to be stable but breakable at the sort of temperatures found at the typical distance of a planet from a star: any weaker and the universe would be too hot for chemistry, any stronger and it would be too cold.

True, but to anybody outside a small clique of cosmologists who had spent too long with their telescopes, the idea of the anthropic principle was either banal or barmy, depending on how seriously you take it. It so obviously confuses cause and effect. Life adapted to the laws of physics, not vice versa. In a world where water is liquid, carbon can polymerise and solar systems last for billions of years, then life emerged as a carbon-based system with water-soluble proteins in fluid-filled cells. In a different world, a different kind of life might emerge, if it could. As David Waltham puts it in his book Lucky Planet, ‘It is all but inevitable that we occupy a favoured location, one of the rare neighbourhoods where by-laws allow the emergence of intelligent life.’ No anthropic principle needed.

Waltham himself goes on to make the argument that the earth may be rare or even unique because of the string of ridiculous coincidences required to produce a planet with a stable temperature with liquid water on it for four billion years. The moon was a particular stroke of luck, having been formed by an interplanetary collision and having then withdrawn slowly into space as a result of the earth’s tides (it is now ten times as far away as when it first formed). Had the moon been a tiny bit bigger or smaller, and the earth’s day a tiny bit longer or shorter after the collision, then we would have had an unstable axis and a tendency to periodic life-destroying climate catastrophes that would have precluded the emergence of intelligent life. God might claim credit for this lunar coincidence, but Gaia – James Lovelock’s theory that life itself controls the climate – cannot. So we may be extraordinarily lucky and vanishingly rare. But that does not make us special: we would not be here if it had not worked out so far.

Leave the last word on the anthropic principle to Douglas Adams: ‘Imagine a puddle waking up one morning and thinking, “This is an interesting world I find myself in – an interesting hole I find myself in – fits me rather neatly, doesn’t it? In fact it fits me staggeringly well, may have been made to have me in it!”’

Thinking for ourselves

It is no accident that political and economic enlightenment came in the wake of Newton and his followers. As David Bodanis argues in his biography of Voltaire and his mistress, Passionate Minds, people would be inspired by Newton’s example to question traditions around them that had apparently been accepted since time immemorial. ‘Authority no longer had to come from what you were told by a priest or a royal official, and the whole establishment of the established church or the state behind them. It could come, dangerously, from small, portable books – and even from ideas you came to yourself.’

Gradually, by reading Lucretius and by experiment and thought, the Enlightenment embraced the idea that you could explain astronomy, biology and society without recourse to intelligent design. Nikolaus Copernicus, Galileo Galilei, Baruch Spinoza and Isaac Newton made their tentative steps away from top–down thinking and into the bottom–up world. Then, with gathering excitement, Locke and Montesquieu, Voltaire and Diderot, Hume and Smith, Franklin and Jefferson, Darwin and Wallace, would commit similar heresies against design. Natural explanations displaced supernatural ones. The emergent world emerged.

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The Evolution of Morality (#ulink_3fcd0563-a66a-56f8-9b26-8b871f49f4f3)

O miserable minds of men! O hearts that cannot see!

Beset by such great dangers and in such obscurity

You spend your lot of life! Don’t you know it’s plain

That all your nature yelps for is a body free from pain,

And, to enjoy pleasure, a mind removed from fear and care?

Lucretius, De Rerum Natura, Book 2, lines 1–5

Soon a far more subversive thought evolved from the followers of Lucretius and Newton. What if morality itself was not handed down from the Judeo-Christian God as a prescription? And was not even the imitation of a Platonic ideal, but was a spontaneous thing produced by social interaction among people seeking to find ways to get along? In 1689, John Locke argued for religious tolerance – though not for atheists or Catholics – and brought a storm of protest down upon his head from those who saw government enforcement of religious orthodoxy as the only thing that prevented society from descending into chaos. But the idea of spontaneous morality did not die out, and some time later David Hume and then Adam Smith began to dust it off and show it to the world: morality as a spontaneous phenomenon. Hume realised that it was good for society if people were nice to each other, so he thought that rational calculation, rather than moral instruction, lay behind social cohesion. Smith went one step further, and suggested that morality emerged unbidden and unplanned from a peculiar feature of human nature: sympathy.

Quite how a shy, awkward, unmarried professor from Kirkcaldy who lived with his mother and ended his life as a customs inspector came to have such piercing insights into human nature is one of history’s great mysteries. But Adam Smith was lucky in his friends. Being taught by the brilliant Irish lecturer Francis Hutcheson, talking regularly with David Hume, and reading Denis Diderot’s new Encyclopédie, with its relentless interest in bottom–up explanations, gave him plenty with which to get started. At Balliol College, Oxford, he found the lecturers ‘had altogether given up even the pretence of teaching’, but the library was ‘marvellous’. Teaching in Glasgow gave him experience of merchants in a thriving trading port and ‘a feudal, Calvinist world dissolving into a commercial, capitalist one’. Glasgow had seen explosive growth thanks to increasing trade with the New World in the eighteenth century, and was fizzing with entrepreneurial energy. Later, floating around France as the tutor to the young Duke of Buccleuch enabled Smith to meet d’Holbach and Voltaire, who thought him ‘an excellent man. We have nothing to compare with him.’ But that was after his first, penetrating book on human nature and the evolution of morality. Anyway, somehow this shy Scottish man stumbled upon the insights to explore two gigantic ideas that were far ahead of their time. Both concerned emergent, evolutionary phenomena: things that are the result of human action, but not the result of human design.

Adam Smith spent his life exploring and explaining such emergent phenomena, beginning with language and morality, moving on to markets and the economy, ending with the law, though he never published his planned book on jurisprudence. Smith began lecturing on moral philosophy at Glasgow University in the 1750s, and in 1759 he put together his lectures as a book, The Theory of Moral Sentiments. Today it seems nothing remarkable: a dense and verbose eighteenth-century ramble through ideas about ethics. It is not a rattling read. But in its time it was surely one of the most subversive books ever written. Remember that morality was something that you had to be taught, and that without Jesus telling us what to teach, could not even exist. To try to raise a child without moral teaching and expect him to behave well was like raising him without Latin and expecting him to recite Virgil. Adam Smith begged to differ. He thought that morality owed little to teaching and nothing to reason, but evolved by a sort of reciprocal exchange within each person’s mind as he or she grew from childhood, and within society. Morality therefore emerged as a consequence of certain aspects of human nature in response to social conditions.

As the Adam Smith scholar James Otteson has observed, Smith, who wrote a history of astronomy early in his career, saw himself as following explicitly in Newton’s footsteps, both by looking for regularities in natural phenomena and by employing the parsimony principle of using as simple an explanation as possible. He praised Newton in his history of astronomy for the fact that he ‘discovered that he could join together the movement of the planets by so familiar a principle of connection’. Smith was also part of a Scottish tradition that sought cause and effect in the history of a topic: instead of asking what is the perfect Platonic ideal of a moral system, ask rather how it came about.

It was exactly this modus operandi that Smith brought to moral philosophy. He wanted to understand where morality came from, and to explain it simply. As so often with Adam Smith, he deftly avoided the pitfalls into which later generations would fall. He saw straight through the nature-versus-nurture debate and came up with a nature-via-nurture explanation that was far ahead of its time. He starts The Theory of Moral Sentiments with a simple observation: we all enjoy making other people happy.

How selfish soever man may be supposed, there are evidently some principles in his nature, which interest him in the fortunes of others, and render their happiness necessary to him, though he derives nothing from it, but the pleasure of seeing it.

And we all desire what he calls mutual sympathy of sentiments: ‘Nothing pleases us more than to observe in other men a fellow-feeling with all the emotions of our own breast.’ Yet the childless Smith observed that a child does not have a sense of morality, and has to find out the hard way that he or she is not the centre of the universe. Gradually, by trial and error, a child discovers what behaviour leads to mutual sympathy of sentiments, and therefore can make him or her happy by making others happy. It is through everybody accommodating their desires to those of others that a system of shared morality arises, according to Smith. An invisible hand (the phrase first appears in Smith’s lectures on astronomy, then here in Moral Sentiments and once more in The Wealth of Nations) guides us towards a common moral code. Otteson explains that the hand is invisible, because people are not setting out to create a shared system of morality; they aim only to achieve mutual sympathy now with the people they are dealing with. The parallel with Smith’s later explanation of the market is clear to see: both are phenomena that emerge from individual actions, but not from deliberate design.

Smith’s most famous innovation in moral philosophy is the ‘impartial spectator’, who we imagine to be watching over us when we are required to be moral. In other words, just as we learn to be moral by judging others’ reactions to our actions, so we can imagine those reactions by positing a neutral observer who embodies our conscience. What would a disinterested observer, who knows all the facts, think of our conduct? We get pleasure from doing what he recommends, and guilt from not doing so. Voltaire put it pithily: ‘The safest course is to do nothing against one’s conscience. With this secret, we can enjoy life and have no fear from death.’

How morality emerges

There is, note, no need for God in this philosophy. As a teacher of Natural Theology among other courses, Smith was no declared atheist, but occasionally he strays dangerously close to Lucretian scepticism. It is hardly surprising that he at least paid lip service to God, because three of his predecessors at Glasgow University, including Hutcheson, had been charged with heresy for not sticking to Calvinist orthodoxy. The mullahs of the day were vigilant. There remains one tantalising anecdote from a student, a disapproving John Ramsay, that Smith ‘petitioned the Senatus … to be relieved of the duty of opening his class with a prayer’, and, when refused, that his lectures led his students to ‘draw an unwarranted conclusion, viz. that the great truths of theology, together with the duties which man owes to God and his neighbours, may be discovered in the light of nature without any special revelation’. The Adam Smith scholar Gavin Kennedy points out that in the sixth edition (1789) of The Theory of Moral Sentiments, published after his devout mother died, Smith excised or changed many religious references. He may have been a closet atheist, but he might also have been a theist, not taking Christianity literally, but assuming that some kind of god implanted benevolence in the human breast.

Morality, in Smith’s view, is a spontaneous phenomenon, in the sense that people decide their own moral codes by seeking mutual sympathy of sentiments in society, and moralists then observe and record these conventions and teach them back to people as top–down instructions. Smith is essentially saying that the priest who tells you how to behave is basing his moral code on observations of what moral people actually do.

There is a good parallel with teachers of grammar, who do little more than codify the patterns they see in everyday speech and tell them back to us as rules. Only occasionally, as with split infinitives, do their rules go counter to what good writers do. Of course, it is possible for a priest to invent and promote a new rule of morality, just as it is possible for a language maven to invent and promote a new rule of grammar or syntax, but it is remarkably rare. In both cases, what happens is that usage changes and the teachers gradually go along with it, sometimes pretending to be the authors.

So, for example, in my lifetime, disapproval of homosexuality has become ever more morally unacceptable in the West, while disapproval of paedophilia has become ever more morally mandatory. Male celebrities who broke the rules with under-age girls long ago and thought little of it now find themselves in court and in disgrace; while others who broke the (then) rules with adult men long ago and risked disgrace can now openly speak of their love. Don’t get me wrong: I approve of both these trends – but that’s not my point. My point is that the changes did not come about because some moral leader or committee ordained them, at least not mainly, let alone that some biblical instruction to make the changes came to light. Rather, the moral negotiation among ordinary people gradually changed the common views in society, with moral teachers reflecting the changes along the way. Morality, quite literally, evolved. In just the same way, words like ‘enormity’ and ‘prevaricate’ have changed their meaning in my lifetime, though no committee met to consider an alteration in the meaning of the words, and there is very little the grammarians can do to prevent it. (Indeed, grammarians spend most of their time deploring linguistic innovation.) Otteson points out that Smith in his writing uses the word ‘brothers’ and ‘brethren’ interchangeably, with a slight preference for the latter. Today, however, the rules have changed, and you would only use ‘brethren’ for the plural of brothers if you were being affected, antiquarian or mocking.

Smith was acutely aware of this parallel with language, which is why he insisted on appending his short essay on the origin of language to his Theory of Moral Sentiments in its second and later editions. In the essay, Smith makes the point that the laws of language are an invention, rather than a discovery – unlike, say, the laws of physics. But they are still laws: children are corrected by their parents and their peers if they say ‘bringed’ instead of ‘brought’. So language is an ordered system, albeit arrived at spontaneously through some kind of trial and error among people trying to make ‘their mutual wants intelligible to each other’. Nobody is in charge, but the system is orderly. What a peculiar and novel idea. What a subversive thought. If God is not needed for morality, and if language is a spontaneous system, then perhaps the king, the pope and the official are not quite as vital to the functioning of an orderly society as they pretend?

As the American political scientist Larry Arnhart puts it, Smith is a founder of a key tenet of liberalism, because he rejects the Western tradition that morality must conform to a transcendental cosmic order, whether in the form of a cosmic God, a cosmic Reason, or a cosmic Nature. ‘Instead of this transcendental moral cosmology, liberal morality is founded on an empirical moral anthropology, in which moral order arises from within human experience.’

Above all, Smith allows morality and language to change, to evolve. As Otteson puts it, for Smith, moral judgements are generalisations arrived at inductively on the basis of past experience. We log our own approvals and disapprovals of our own and others’ conduct, and observe others doing the same. ‘Frequently repeated patterns of judgement can come to have the appearance of moral duties or even commandments from on high, while patterns that recur with less frequency will enjoy commensurately less confidence.’ It is in the messy empirical world of human experience that we find morality. Moral philosophers observe what we do; they do not invent it.

Better angels

Good grief. Here is an eighteenth-century, middle-class Scottish professor saying that morality is an accidental by-product of the way human beings adjust their behaviour towards each other as they grow up; saying that morality is an emergent phenomenon that arises spontaneously among human beings in a relatively peaceful society; saying that goodness does not need to be taught, let alone associated with the superstitious belief that it would not exist but for the divine origin of an ancient Palestinian carpenter. Smith sounds remarkably like Lucretius (whom he certainly read) in parts of his Moral Sentiments book, but he also sounds remarkably like Steven Pinker of Harvard University today discussing the evolution of society towards tolerance and away from violence.

As I will explore, there is in fact a fascinating convergence here. Pinker’s account of morality growing strongly over time is, at bottom, very like Smith’s. To put it at its baldest, a Smithian child, developing his sense of morality in a violent medieval society in Prussia (say) by trial and error, would end up with a moral code quite different from such a child growing up in a peaceful German (say) suburb today. The medieval person would be judged moral if he killed people in defence of his honour or his city; whereas today he would be thought moral if he refused meat and gave copiously to charity, and thought shockingly immoral if he killed somebody for any reason at all, and especially for honour. In Smith’s evolutionary view of morality, it is easy to see how morality is relative and will evolve to a different end point in different societies, which is exactly what Pinker documents.

Pinker’s book The Better Angels of Our Nature chronicles the astonishing and continuing decline in violence of recent centuries. We have just lived through the decade with the lowest global death rate in warfare on record; we have seen homicide rates fall by 99 per cent in most Western countries since medieval times; we have seen racial, sexual, domestic, corporal, capital and other forms of violence in headlong retreat; we have seen discrimination and prejudice go from normal to disgraceful; we have come to disapprove of all sorts of violence as entertainment, even against animals. This is not to say there is no violence left, but the declines that Pinker documents are quite remarkable, and our horror at the violence that still remains implies that the decline will continue. Our grandchildren will stand amazed at some of the things we still find quite normal.

To explain these trends, Pinker turns to a theory first elaborated by Norbert Elias, who had the misfortune to publish it as a Jewish refugee from Germany in Britain in 1939, shortly before he was interned by the British on the grounds that he was German. Not a good position from which to suggest that violence and coercion were diminishing. It was not until it was translated into English three decades later in 1969, in a happier time, that his theory was widely appreciated. Elias argued that a ‘civilising process’ had sharply altered the habits of Europeans since the Middle Ages, that as people became more urban, crowded, capitalist and secular, they became nicer too. He hit upon this paradoxical realisation – for which there is now, but was not then, strong statistical evidence – by combing the literature of medieval Europe and documenting the casual, frequent and routine violence that was then normal. Feuds flared into murders all the time; mutilation and death were common punishments; religion enforced its rules with torture and sadism; entertainments were often violent. Barbara Tuchman in her book A Distant Mirror gives an example of a popular game in medieval France: people with their hands tied behind their backs competed to kill a cat nailed to a post by battering it with their heads, risking the loss of an eye from the scratching of the desperate cat in the process. Ha ha.

Elias argued that moral standards evolved; to illustrate the point he documented the etiquette guides published by Erasmus and other philosophers. These guides are full of suggestions about table manners, toilet manners and bedside manners that seem unnecessary to state, but are therefore revealing: ‘Don’t greet someone while they are urinating or defecating … don’t blow your nose on to the table-cloth or into your fingers, sleeve or hat … turn away when spitting lest your saliva fall on someone … don’t pick your nose while eating.’ In short, the very fact that these injunctions needed mentioning implies that medieval European life was pretty disgusting by modern standards. Pinker comments: ‘These are the kind of directives you’d expect a parent to give to a three-year-old, not a great philosopher to a literate readership.’ Elias argued that the habits of refinement, self-control and consideration that are second nature to us today had to be acquired. As time went by, people ‘increasingly inhibited their impulses, anticipated the long-term consequences of their actions, and took other people’s thoughts and feelings into consideration’. In other words, not blowing your nose on the tablecloth was all one with not stabbing your neighbour. It’s a bit like a historical version of the broken-window theory: intolerance of small crimes leads to intolerance of big ones.

Doux commerce

But how were these gentler habits acquired? Elias realised that we have internalised the punishment for breaking these rules (and the ones against more serious violence) in the form of a sense of shame. That is to say, just as Adam Smith argued, we rely on an impartial spectator, and we learned earlier and earlier in life to see his point of view as he became ever more censorious. But why? Elias and Pinker give two chief reasons: government and commerce. With an increasingly centralised government focused on the king and his court, rather than local warlords, people had to behave more like courtiers and less like warriors. That meant not only less violent, but also more refined. Leviathan enforced the peace, if only to have more productive peasants to tax. Revenge for murder was nationalised as a crime to be punished, rather than privatised as a wrong to be righted. At the same time, commerce led people to value the opportunity to be trusted by a stranger in a transaction. With increasingly money-based interactions among strangers, people increasingly began to think of neighbours as potential trading partners rather than potential prey. Killing the shopkeeper makes no sense. So empathy, self-control and morality became second nature, though morality was always a double-edged sword, as likely to cause violence as to prevent it through most of history.

Lao Tzu saw this twenty-six centuries ago: ‘The more prohibitions you have, the less virtuous people will be.’ Montesquieu’s phrase for the calming effect of trade on human violence, intolerance and enmity was ‘doux commerce’ – sweet commerce. And he has been amply vindicated in the centuries since. The richer and more market-oriented societies have become, the nicer people have behaved. Think of the Dutch after 1600, the Swedes after 1800, the Japanese after 1945, the Germans likewise, the Chinese after 1978. The long peace of the nineteenth century coincided with the growth of free trade. The paroxysm of violence that convulsed the world in the first half of the twentieth century coincided with protectionism.

Countries where commerce thrives have far less violence than countries where it is suppressed. Does Syria suffer from a surfeit of commerce? Or Zimbabwe? Or Venezuela? Is Hong Kong largely peaceful because it eschews commerce? Or California? Or New Zealand? I once interviewed Pinker in front of an audience in London, and was very struck by the passion of his reply when an audience member insisted that profit was a form of violence and was on the increase. Pinker simply replied with a biographical story. His grandfather, born in Warsaw in 1900, emigrated to Montreal in 1926, worked for a shirt company (the family had made gloves in Poland), was laid off during the Great Depression, and then, with his grandmother, sewed neckties in his apartment, eventually earning enough to set up a small factory, which they ran until their deaths. And yes, it made a small profit (just enough to pay the rent and bring up Pinker’s mother and her brothers), and no, his grandfather never hurt a fly. Commerce, he said, cannot be equated with violence.

‘Participation in capitalist markets and bourgeois virtues has civilized the world,’ writes Deirdre McCloskey in her book The Bourgeois Virtues. ‘Richer and more urban people, contrary to what the magazines of opinion sometimes suggest, are less materialistic, less violent, less superficial than poor and rural people’ (emphasis in original).

How is it then that conventional wisdom – especially among teachers and religious leaders – maintains that commerce is the cause of nastiness, not niceness? That the more we grow the economy and the more we take part in ‘capitalism’, the more selfish, individualistic and thoughtless we become? This view is so widespread it even leads such people to assume – against the evidence – that violence is on the increase. As Pope Francis put it in his 2013 apostolic exhortation Evangelii Gaudium, ‘unbridled’ capitalism has made the poor miserable even as it enriched the rich, and is responsible for the fact that ‘lack of respect for others and violence are on the rise’. Well, this is just one of those conventional wisdoms that is plain wrong. There has been a decline in violence, not an increase, and it has been fastest in the countries with the least bridled versions of capitalism – not that there is such a thing as unbridled capitalism anywhere in the world. The ten most violent countries in the world in 2014 – Syria, Afghanistan, South Sudan, Iraq, Somalia, Sudan, Central African Republic, Democratic Republic of the Congo, Pakistan and North Korea – are all among the least capitalist. The ten most peaceful – Iceland, Denmark, Austria, New Zealand, Switzerland, Finland, Canada, Japan, Belgium and Norway – are all firmly capitalist.

My reason for describing Pinker’s account of the Elias theory in such detail is because it is a thoroughly evolutionary argument. Even when Pinker credits Leviathan – government policy – for reducing violence, he implies that the policy is as much an attempt to reflect changing sensibility as to change sensibility. Besides, even Leviathan’s role is unwitting: it did not set out to civilise, but to monopolise. It is an extension of Adam Smith’s theory, uses Smith’s historical reasoning, and posits that the moral sense, and the propensity to violence and sordid behaviour, evolve. They evolve not because somebody ordains that they should evolve, but spontaneously. The moral order emerges and continually changes. Of course, it can evolve towards greater violence, and has done so from time to time, but mostly it has evolved towards peace, as Pinker documents in exhaustive detail. In general, over the past five hundred years in Europe and much of the rest of the world, people became steadily less violent, more tolerant and more ethical, without even realising they were doing so. It was not until Elias spotted the trend in words, and later historians then confirmed it in statistics, that we even knew it was happening. It happened to us, not we to it.

The evolution of law

It is an extraordinary fact, unremembered by most, that in the Anglosphere people live by laws that did not originate with governments at all. British and American law derives ultimately from the common law, which is a code of ethics that was written by nobody and everybody. That is to say, unlike the Ten Commandments or most statute law, the common law emerges and evolves through precedent and adversarial argument. It ‘evolves incrementally, rather than leaps convulsively or stagnates idly’, in the words of legal scholar Allan Hutchinson. It is ‘a perpetual work-in-progress – evanescent, dynamic, messy, productive, tantalizing, and bottom up’. The author Kevin Williamson reminds us to be astonished by this fact: ‘The most successful, most practical, most cherished legal system in the world did not have an author. Nobody planned it, no sublime legal genius thought it up. It emerged in an iterative, evolutionary manner much like a language emerges.’ Trying to replace the common law with a rationally designed law is, he jests, like trying to design a better rhinoceros in a laboratory.

Judges change the common law incrementally, adjusting legal doctrine case by case to fit the facts on the ground. When a new puzzle arises, different judges come to different conclusions about how to deal with it, and the result is a sort of genteel competition, as successive courts gradually choose which line they prefer. In this sense, the common law is built by natural selection.

Common law is a peculiarly English development, found mainly in countries that are former British colonies or have been influenced by the Anglo-Saxon tradition, such as Australia, India, Canada and the United States. It is a beautiful example of spontaneous order. Before the Norman Conquest, different rules and customs applied in different regions of England. But after 1066 judges created a common law by drawing on customs across the country, with an occasional nod towards the rulings of monarchs. Powerful Plantagenet kings such as Henry II set about standardising the laws to make them consistent across the country, and absorbed much of the common law into the royal courts. But they did not invent it. By contrast, European rulers drew on Roman law, and in particular a compilation of rules issued by the Emperor Justinian in the sixth century that was rediscovered in eleventh-century Italy. Civil law, as practised on the continent of Europe, is generally written by government.

In common law, the elements needed to prove the crime of murder, for instance, are contained in case law rather than defined by statute. To ensure consistency, courts abide by precedents set by higher courts examining the same issue. In civil-law systems, by contrast, codes and statutes are designed to cover all eventualities, and judges have a more limited role of applying the law to the case in hand. Past judgements are no more than loose guides. When it comes to court cases, judges in civil-law systems tend towards being investigators, while their peers in common-law systems act as arbiters between parties that present their arguments.

Which of these systems you prefer depends on your priorities. Jeremy Bentham argued that the common law lacked coherence and rationality, and was a repository of ‘dead men’s thoughts’. The libertarian economist Gordon Tullock, a founder of the public-choice school, argued that the common-law method of adjudication is inherently inferior because of its duplicative costs, inefficient means of ascertaining the facts, and scope for wealth-destroying judicial activism.