Evolutionary Public Law: Constituting and Administering Human Ultra-Sociality

This paper seeks to distinguish constitutional and administrative law by exploring them both as expressions of what evolutionary anthropologists call human ‘ultra-sociality’. The focus is on three interrelated dimensions of the phenomenon: first, the emergence of a collective capacity to mobilize surplus human and fiscal resources (‘blood’ and ‘treasure’); second, the emergence of a social-psychological sense of legitimate political obligation; and, third, the emergence of scalable forms of political and legal management as between a 'constitutional' principal—the person/institution to which political obligation and legitimacy is ultimately owed—and 'administrative' agents who are understood to carry out tasks on behalf of the principal(s). By stressing the importance of the first two developments as a predicate to the third, this paper stresses that we cannot understand how a polity is 'administered' without first understanding how it is 'constituted'.