Orgel’s second rule states “evolution is cleverer than you are.” By this, he meant that our inability to explain how this or that feature might have evolved only demonstrates a lack of imagination or understanding on our part. It does not serve as positive evidence against the evolution of that feature. But there’s another meaning one can take from this – certain features of evolution that might seem inefficient or counterproductive may in fact actually serve as efficient adaptations to the constraints under which those features evolved. 

To see an example of this in action, consider this rather amusing talk given by Douglas Adams on the mating ritual of the kakapo, a flightless parrot native to New Zealand. He goes into detail about how every aspect of the kakapo’s mating ritual seems actively counterproductive to actually producing offspring:

 

He describes the overall process as “incredibly long and drawn-out, fantastically complicated and almost entirely ineffective.” The first problem is “that the mating call of the male kakapo actively repels the female,” which certainly seems like a suboptimal start. He then describes how the kakapo mating call consists of deep, pulsing bass sound. This creates another complication, Adams says. He makes an analogy with a home speaker system, consisting of two smaller speakers “that give you your treble sound and you have to put them very carefully in the room, because they’re going to define the stereo image.” But you also have a subwoofer to produce bass sounds, “and you can put that anywhere in the room you like. You can put it behind the sofa if you like, because the other characteristic of bass sound – and remember, we’re talking about the mating call of the male kakapo – is that you can’t tell where it’s coming from.” Summing up the whole scenario, we are informed that for the female kakapo’s part, “supposing she’s out there, which she probably isn’t, and supposing she likes the sound of the booming, which she probably doesn’t, and supposing she can find him, which she probably can’t, she will then only consent to mate if the Pōhutukawa tree is in fruit.” 

Now, one might study this mating process and think that evolution dropped the ball here. How on earth could it have been a good thing for kakapos to evolve such an inefficient mating ritual? But there is an answer. 

On New Zealand, the kakapo had no natural predators, and thus faced no checks on its population. As a result, if kakapos bred like proverbial rabbits, they would quickly end up overpopulating the island on which they lived, harming their own long-term survival. The incredibly inefficient mating rituals of the kakapo actually turn out to be an efficient adaptation to keep population levels in check in the absence of predation or other outside pressures. And this convoluted mating process still resulted in an island that was teeming with kakapos – if they were able to mate any more effectively, they’d have actually harmed their own survival prospects. Just like with the institution of gift-giving among humans, what initially appears to be highly inefficient when viewed in static terms turns out to be dynamically efficient, once one has a deeper understanding. The upshot – evolved social norms, customs, and institutions that seem to “make no sense” or even seem to be socially harmful may very well turn out to be like the kakapo mating ritual – a seemingly inefficient practice that is actually an efficient adaptation. 

Unfortunately, this adaptation that was once an asset is now a threat, because the circumstances the kakapo face now are very different from the circumstances under which this mating ritual evolved. Predators have been introduced to the island, and the kakapo has no instinct to flee from predators, or from people. As a result, this once abundant animal is now critically endangered yet repopulation depends on this unchanged mating ritual – which does not bode well for the prospect of recovery. 

So am I just rambling, or do I have an overall point? Of course I do, which is [dear EconLog editor, please insert a point here. 😉 ] But that point aside, we should take this as an opportunity to reflect on what Hayek said about about the distinction between law and legislation, and why we cannot “altogether dispense with legislation.” 

F. A. Hayek was as strong a defender of the value of evolved order as one is likely to find. But in Rules and Order, the first volume of Law, Legislation, and Liberty, Hayek also says there are times when “grown law requires correction by legislation.” One such circumstance comes about when “the spontaneous process of growth may lead to an impasse from which it cannot extricate itself by its own forces or which it will at least not correct quickly enough.” Thinking about the current situation of the kakapo made me think back to this statement by Hayek. (Yes, I did somehow draw a connection between the mating rituals of flightless parrots and Hayek’s work on social order. That’s just how my mind works – I don’t really understand it myself, but here we are.) Evolution is far too slow for the kakapo to develop a new mating ritual for its radically new environment. Similarly, cultural and institutional evolution may be too slow to adapt to changes in our social environment, leading to situations where legislation may be necessary. 

However, it also seems important to keep an extremely high bar for this idea. First of all, it’s very difficult to justifiably know whether a social institution is genuinely inefficient or harmful, or if it might be efficiently inefficient in a way you can’t understand. Second, even if we do know a social institution is suboptimal, it’s often far from clear what a solution might be, and people have a strong bias to think they understand more than they do. And we need strong reasons to think the net benefits will be very large, because top-down alterations of evolved orders incur significant transaction costs. Richard Hooker put it best:

When people see things suddenly discarded, annulled, and rejected that long custom had made into matters of second nature, they are bewildered, and begin to doubt whether anything is in itself naturally good or evil, rather than simply whatever men choose to call it at any given moment…Thus, whenever we change any law, in the eyes of the people it cannot help but impair and weaken the force that makes all laws effectual.

Hooker then concludes, 

If the newer laws are only slightly more beneficial, we should generally conclude that to endure a minor sore is better than to attempt a dangerous remedy.

How often is it the case that we find ourselves circumstances where we should attempt a remedy? I’m not sure. But the answer isn’t “never.” Unfortunately, while Hayek does describe a few different circumstances where, in principle, legislation can serve as a useful corrective to grown law, I’m not aware of him citing specific, concrete examples of this in practice. 

But I’d also be curious to hear from the readers. How often is it the case that top down correction of evolved institutions can be beneficial? And what’s the greater risk? The possibility that we will overestimate our ability to carry out such remedies effectively, and end up doing more harm than good by constantly trying to tinker with a system we don’t understand? Or that an overly strong reluctance to attempt such remedies will leave us in the same position as the kakapo, stuck with behaviors that were once helpful but are now harmful?