Some evolutionary psychologists claim that humans are good at creating superstimuli, and that many pleasure technologies are detrimental to our reproductive fitness. Most of the evolutionary psychological literature makes use of some version of Lorenz and Tinbergen's largely embryonic conceptual framework to make sense of supernormal stimulation and bias exploitation in humans. However, the early ethological concept -superstimulus‖ was intimately connected to other erstwhile core ethological notions, such as the innate releasing mechanism, sign stimuli and the fixed action pattern, notions that nowadays have, for the most part, been discarded by ethologists. The purpose of this paper is twofold. First, we will reconnect the discussion of superstimuli in humans with more recent theoretical ethological literature on stimulus selection and supernormal stimulation. This will allow for a reconceptualisation of evolutionary psychology's formulation of (supernormal) stimulus selection in terms of domain-specificity and modularity. Second, we will argue that bias exploitation in a cultural species differs substantially from bias exploitation in non-cultural animals. We will explore several of those differences, and explicate why they put important constraints on the use of the superstimulus concept in the evolutionary social sciences.

The various contributions to this theme issue are likely to have at least two (non-trivial) things in common. First, they aim to contribute to a research project on “Legal certainty for globalized exchange processes” and to the latter's attempts to explain the observed transformation “towards the transnationalization of commercial law, which is understood as a combination of the internationalization and privatization of the responsibility of the state for the production of the normative good of legal certainty for global commerce”. Secondly, they aim to fulfill this task by making use of “evolutionary theory” or, as it was again expressed in the original conference announcement, by dealing with “a theoretical perspective that gives some substance to the meaning of the term “evolution” with regard to law, social organization, and the state”. Since, as I will try to explain shortly, my own particular take on this – it would appear – relatively small set of commonalities involves more specifically the use of contemporary evolutionary approaches to human behavior. I must admit to having been surprised that no one else seemed to have much use for these approaches in their respective takes on the problems that united us in the conference from which this contribution stems. After all, what better use to make of a theory originating from biology than to elucidate the biological underpinnings of our behavior and its underlying psychological mechanisms as they relate to law and legally relevant phenomena? Perhaps some of the reasons for these at first sight, striking differences in opinion on which “evolutionary theory” to make use of, or what meaning to impinge upon the term “evolution” will become clearer in the pages that follow, offering ways in which eventually to combine them. Or perhaps the two things we had in common when we started out will be all there is left to look at in the end.

In this article, I take a closer look at what contemporary evolutionary approaches to human behavior and culture could have to offer comparative legal theory. I shall argue that these contemporary evolutionary approaches have reached a sufficient level of both sophistication and agreement to warrant their cautious re-inclusion into comparative legal theory. The article is structured as follows. In the first section I will introduce the concept of “bio-legal histories” as a new, but possibly better, variant – inspired by evolutionary psychology – of the much older idea that the “psychic unity of humankind” leads to “universal comparative law.” The contemporary evolutionary approaches to human behavior (and culture) underlying these views – evolutionary psychology and cultural epidemiology – will then be contrasted to dual inheritance theory – a contemporary evolutionary approach to human behavior that is, I believe, better geared towards understanding the mechanisms leading to cultural diversity. I aim to show that the differences between these approaches and their counterparts in the comparative law literature are in large part due to their differing views on the relative likely importance of two different classes of cultural evolutionary forces: content-based biases and context-based biases. This will also allow me to express some doubts as regards memetic approaches to (comparative) law and the application of Generalized Darwinism to evolutionary economics. Finally, some possible implications of the dual inheritance theoretical approach for comparative law are briefly discussed.

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