Free-Floating Rationales, Normative Hysteresis, and Constitutional Lock-in: Dennett's Contribution to Extended Phenotype Theory and Multilevel Evolutionary Game Theory in Legal Systems

This paper develops three interrelated contributions to the research program combining Extended Phenotype Theory (EPT) and Multilevel Evolutionary Game Theory (EGT) as applied to legal systems. First, it integrates Daniel Dennett's philosophical apparatus (free-floating rationales, the cranes/skyhooks distinction, and sphexism) as the cognitive-mechanistic foundation connecting Dawkins's gene-centered memetics to Gould's hierarchical structuralism. Second, it introduces the concept of normative hysteresis as a mechanism analytically distinct from path dependence, institutional lock-in, and architectural spandrels: while spandrels describe structural byproducts and the Constitutional Lock-in Index (CLI) measures current rigidity, normative hysteresis captures the cumulative, irreversible deformation that each normative intervention leaves in the institutional substrate, a deformation whose return path is never the inverse of the departure path. Third, it develops the parallelism/convergence distinction drawn from evo-devo biology and applies it to legal transplant failure: transplants fail not because pressures are absent but because the recipient system lacks the deep homologous generators that the transplant presupposes. These three contributions generate five falsifiable predictions tested against the Argentine labor reform dataset (23 attempts, 1990–2025) and cross-national comparisons (Argentina CLI 0.89; Chile 0.24; Brazil 0.40; Spain 0.51). The paper builds directly on Lerer (2026a, DOI: 10.5281/zenodo.18829975) and fills the causal gap that prior work identified but could not close: if legal actors deliberate, how can memetic selection operate blindly? Dennett's answer is that deliberation is real but operates at the organism level; selection operates at the replicator level through free-floating rationales that no one formulated and sphexistic routines that no one designed.