ABSTRACT
Reinach believed that basic legal concepts really exist, that their existence is independent of the positive law, and their existence is independent of morality. In this idiosyncratic juxtaposition of positions, Reinach is joined by contemporary theorists drawing on evolutionary psychology and cognitive science in jurisprudence. But Reinach emphatically insisted that his claims were ontological, not psychological.
This Chapter explains why. For Reinach himself, the ontological status of legal concepts was one front in a broader debate over whether mathematical and logical concepts were true a priori or features of human psychology; a demonstrative project in the breadth of the a priori. But I suggest that today’s theorists need not be as pre-occupied with this distinction as Reinach was. Not only is the practical difference between ontological and evolutionary theories not as wide as Reinach seems to have assumed, but his own insistence on the possibility and desirability of descriptive analysis of legal concepts largely lets us sidestep the issue.
Toomey, James, Darwin’s Reinach (July 26, 2023). Forthcoming in Reinach and the Foundations of Private Law (Cambridge University Press, Marietta Auer, Paul B Miller, Henry E Smith and James Toomey, eds).
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