Here are some thoughts from law profs Brian Leiter (University of Texas at Austin – School of Law & Department of Philosophy) and Michael Weisberg of the University of Pennsylvania on why evolutionary biology is so far irrelevant to law. Note in particular,
We argue, in particular, that (a) evolutionary psychology is not entitled to assume selectionist accounts of human behaviors, (b) the assumptions necessary for the selectionist accounts to be true are not warranted by standard criteria for theory choice, and (c) only confusions about levels of explanation of human behavior create the appearance that understanding the biology of behavior is important.
What they are saying, I suspect, is that we are not entitled to assume that whatever we do is governed by an attempt on the part of our selfish genes to replicate themselves (for which we bear no responsibility). In short, I could steal your new car and take it for a wild spin on a freeway and crash it up for reasons that have nothing whatever to do with Darwin’s theory or how many grandchildren I end up with. But why did anyone ever doubt that?
The whole abstract is here:
Evolutionary accounts are etiological accounts of how a trait evolved. We argue that an account of causal etiology could be relevant to law if (1) the account of causal etiology is scientifically well-confirmed, and (2) there is an explanation of how the well-confirmed etiology bears on questions of development (what we call the Environmental Gap Objection). We then show that the accounts of causal etiology that might be relevant are not remotely well-confirmed by scientific standards. We argue, in particular, that (a) evolutionary psychology is not entitled to assume selectionist accounts of human behaviors, (b) the assumptions necessary for the selectionist accounts to be true are not warranted by standard criteria for theory choice, and (c) only confusions about levels of explanation of human behavior create the appearance that understanding the biology of behavior is important. We also note that no response to the Environmental Gap Objection has been proffered. In the concluding section of the article, we turn directly to the work of Professor Owen Jones, a leading proponent of the relevance of evolutionary biology to law, and show that he does not come to terms with any of the fundamental problems identified in this article.
The papers, dated October 17, 2007, are here.