Published in: The Harmonisation of Private Law in Europe: Some Insights from Evolutionary Theory, Special Volume in Honor of Alan Watson, Georgia Journal of International and Comparative Law 31(2002), pp. 79- The Harmonisation of Private Law in Europe: Some Insights from Evolutionary Th Jan M. Smits* 1. Introduction Alan Watson has provided us with abundant and beautiful evidence that "most changes in most systems are the result of borrowing". But as a legal historian and comparative lawyer, Watson has not only been concerned with showing the importance of legal transplants. He has also emphasised the need for study of"the nature of legal development". Evolutionary theory or any theory whatsoever-he however considers as too general for this purpose: 3 "There is no equivalent of the invisible hand of economics that under perfect conditions would keep a balance between supply and demand". Yet, one need not go so far as to contend that a theory of legal development should be applicable to all societies for all time and then reject such a theory as being too general to explain the evidence that is present. In the following, I intend to make use of evolutionary theo to obtain a better insight into the present debate on harmonisation of private law in Europe and the changes this may bring to Europes national legal systems. I consider this to be a fertile approach in a time when evolutionary ideas are increasingly used in various disciplines(biology, conomics,psychology, linguistics, etc. ) legal science cannot stay behind This paper presupposes a specific theoretical framework that is made explicit in section 2 In section 3, the insights comparative law studies have provided us with regarding the way lega systems develop, are surveyed. From there, the perspective changes to some other disciplines and the experience these can provide us with in the domain of evolution of legal norms(section 4).On the basis of this experience, some remarks on the future of European private law will be made (section 5) 2. Theoretical Framework on the Possibility of Uniformity in European Private Law Professor of European Private Law, Maastricht University I ALAN WATSON, LEGAL TRANSPLANTS 95(1974) 2 See WATSON, supra note 1, at 7. C. ALAN WATSON, SOCIETY AND LEGAL CHANGE(1977); Alan Watson, Comparative Law and Legal Change, 37 CAMBRIDGE LJ. 313(1978); cf R. Sacco, Legal Formants: A Dynamic Approach to Comparative Law, 39 AM J COMP L 1(1991) WATSON, supra note 1, at 13 C. however the general reflections, at 95, stemming from his survey of evidence. C/ ALAN WATSON, THE EVOLUTION OF LAW(1985) WATSON, supra note 1, at 108
1 Published in: The Harmonisation of Private Law in Europe: Some Insights from Evolutionary Theory, Special Volume in Honor of Alan Watson, Georgia Journal of International and Comparative Law 31 (2002), pp. 79- 99. The Harmonisation of Private Law in Europe: Some Insights from Evolutionary Theory Jan M. Smits* 1. Introduction Alan Watson has provided us with abundant and beautiful evidence that “most changes in most systems are the result of borrowing”.1 But as a legal historian and comparative lawyer, Watson has not only been concerned with showing the importance of legal transplants. He has also emphasised the need for study of “the nature of legal development”.2 Evolutionary theory – or any theory whatsoever – he however considers as too general for this purpose:3 “There is no equivalent of the ‘invisible hand’ of economics that under perfect conditions would keep a balance between supply and demand”.4 Yet, one need not go so far as to contend that a theory of legal development should be applicable to all societies for all time and then reject such a theory as being too general to explain the evidence that is present. In the following, I intend to make use of evolutionary theory to obtain a better insight into the present debate on harmonisation of private law in Europe and the changes this may bring to Europe’s national legal systems. I consider this to be a fertile approach: in a time when evolutionary ideas are increasingly used in various disciplines (biology, economics, psychology, linguistics, etc.), legal science cannot stay behind. This paper presupposes a specific theoretical framework that is made explicit in section 2. In section 3, the insights comparative law studies have provided us with regarding the way legal systems develop, are surveyed. From there, the perspective changes to some other disciplines and the experience these can provide us with in the domain of evolution of legal norms (section 4). On the basis of this experience, some remarks on the future of European private law will be made (section 5). 2. Theoretical Framework on the Possibility of Uniformity in European Private Law * Professor of European Private Law, Maastricht University. 1 ALAN WATSON, LEGAL TRANSPLANTS 95 (1974). 2 See WATSON, supra note 1, at 7. Cf. ALAN WATSON, SOCIETY AND LEGAL CHANGE (1977); Alan Watson, Comparative Law and Legal Change, 37 CAMBRIDGE L.J. 313 (1978); cf. R. Sacco, Legal Formants: A Dynamic Approach to Comparative Law, 39 AM.J. COMP. L. 1 (1991). 3 WATSON, supra note 1, at 13 Cf. however the general reflections, at 95, stemming from his survey of evidence. Cf. ALAN WATSON, THE EVOLUTION OF LAW (1985). 4 WATSON, supra note 1, at 108
The theoretical framework this paper presupposes is that uniformity of law in most of the cases cannot be created by just the imposition of rules in a centralist way. Private law is-at least to some extent- more than just rules and could at least to some degree be considered as part of a national legal culture. Would this be different, there would not be a need to assess any organic evolution of legal norms, other than the evolution of legislation itself law would then be nothing but a positivist artefact of some Sovereign. Moreover, it would not be a question anymore whether it is possible to predict the extent of uniformity that can be created in the future because this would then follow automatically from the famous "berichtigende Worte des gesetzgebers". Two different claims are immanent in this presupposition The first one is that the mere drafting and enacting of" Principles'"of European private law does not in itself lead to uniformity. Private law is to a certain extent harmonisation resistant even when confronted with centrally imposed rules. To which extent this is the case, is a question this paper intends to shine a brighter light on. Too radical however is the contention of Pierre Legrand that legal systems(.) have not been converging, are not converging and will not be converging. Legrand's idea of law as entirely embedded in the society and culture of a specific country has not been recognised as insight Moreover, Legrand's idea of comparative law would by many comparative lawyers not be recognised as falling within the limits of that discipline at all. F H. Lawson for example once stated that comparative law is in itself bound to be superficial"; linking law to other societal and cultural phenomena of a specific country would be impossible The second claim I implicitly make, is that a greater extent of legal uniformity than exists right now is possible, but should to a large extent come about in an organic way. This opens up a whole variety of research themes, related to other disciplines than the law and aiming at the study of cases where organic, spontaneous, orders have originated through evolution and not by creation. I previously defended that the best way of unification of law in Europe would be through a competition of legal rules. In transplanting legal rules from one country to another on a market of legal culture, the best legal rule for Europe may survive. This does not automatically imply that any rule glorifies in some instances, diversity of law may be just as good as uniformity as long as there is a free movement of legal rules, at least creating the possibility of legal change Some of the questions this theory presents us with( When will uniformity prevail? Which rule is the best to survive? Is that rule the result of a race to the bottom or not? are there differences in 5 An elaboration of this framework can be found in JAN SMITS. THE MAKING OF EUROPEAN PRIVATE LAW (2002) For the most outspoken defence of this thesis, see PIERRE LEGRAND, LE DROIT COMPARE (1999) As has been investigated by R.C. Clark, The Morphogenesis of Subchapter C: An Essay in Statutory Evolution and Reform, 87 YALE L.J. 90(1977) and R.C. Clark, The Interdisciplinary Study of legal Evolution, 90 YALE L.J. 1238(1981) JULIUS VON KIRCHMANN, DIE WERTLOSIGKEIT DER JURISPRUDENZ ALS WISSENSCHAFT(1848), 89 9C. in particular PRINCIPLES OF EUROPEAN CONTRACT LAW(Ole Lando& Hugh Beale eds, 2000) Pierre Legrand, European Legal Systems are not Converging, 45 INT'L CoMp. L.Q. 52, 61-62(1996) Cf. ALAN WATSON, LEGAL TRANSPLANTS AND EUROPEAN PRIVATE LAW(lus Commune Lectures No. 2 METRO 2000) F.H. Lawson, The Field of Comparative Law, 61 JURID. REV. 16(1949) I3 Jan Smits, A European Private Law as a Mixed Legal System, 5 MAASTRICHT JOURNAL OF EUROPEAN AND COMPARATIVE LAW [M.J. 328(1998) Cf Ugo Mattei, Eficiency in Legal Transplants: An Essay in Comparative Law and Economics, 1994 INTERNATIONAL REVIEW OF LAW AND ECONOMICS [L.R. L.E. ]3
2 The theoretical framework this paper presupposes5 is that uniformity of law in most of the cases cannot be created by just the imposition of rules in a centralist way. Private law is – at least to some extent – more than just rules and could at least to some degree be considered as part of a national legal culture.6 Would this be different, there would not be a need to assess any organic evolution of legal norms, other than the evolution of legislation itself7 ; law would then be nothing but a positivist artefact of some Sovereign. Moreover, it would not be a question anymore whether it is possible to predict the extent of uniformity that can be created in the future because this would then follow automatically from the famous “berichtigende Worte des Gesetzgebers”.8 Two different claims are immanent in this presupposition. The first one is that the mere drafting and enacting of “Principles” of European private law9 does not in itself lead to uniformity. Private law is to a certain extent harmonisation resistant, even when confronted with centrally imposed rules. To which extent this is the case, is a question this paper intends to shine a brighter light on. Too radical however is the contention of Pierre Legrand that “legal systems (…) have not been converging, are not converging and will not be converging.”10 Legrand’s idea of law as entirely embedded in the society and culture of a specific country has not been recognised as insightful.11 Moreover, Legrand’s idea of comparative law would by many comparative lawyers not be recognised as falling within the limits of that discipline at all. F.H. Lawson for example once stated that comparative law is in itself “bound to be superficial”; linking law to other societal and cultural phenomena of a specific country would be impossible.12 The second claim I implicitly make, is that a greater extent of legal uniformity than exists right now is possible, but should to a large extent come about in an organic way. This opens up a whole variety of research themes, related to other disciplines than the law and aiming at the study of cases where organic, spontaneous, orders have originated through evolution and not by creation. I previously defended that the best way of unification of law in Europe would be through a competition of legal rules.13 In transplanting legal rules from one country to another on a “market of legal culture”,14 the best legal rule for Europe may survive. This does not automatically imply that any rule glorifies: in some instances, diversity of law may be just as good as uniformity as long as there is a free movement of legal rules, at least creating the possibility of legal change. Some of the questions this theory presents us with (When will uniformity prevail? Which rule is the best to survive? Is that rule the result of a “race to the bottom” or not? Are there differences in 5 An elaboration of this framework can be found in JAN SMITS, THE MAKING OF EUROPEAN PRIVATE LAW (2002). 6 For the most outspoken defence of this thesis, see PIERRE LEGRAND, LE DROIT COMPARÉ (1999). 7 As has been investigated by R.C. Clark, The Morphogenesis of Subchapter C: An Essay in Statutory Evolution and Reform, 87 YALE L.J. 90 (1977) and R.C. Clark, The Interdisciplinary Study of Legal Evolution, 90 YALE L.J. 1238 (1981). 8 JULIUS VON KIRCHMANN, DIE WERTLOSIGKEIT DER JURISPRUDENZ ALS WISSENSCHAFT (1848), 89. 9 Cf. in particular PRINCIPLES OF EUROPEAN CONTRACT LAW (Ole Lando & Hugh Beale eds., 2000). 10 Pierre Legrand, European Legal Systems are not Converging, 45 INT’L & COMP. L.Q. 52, 61-62 (1996). 11 Cf. ALAN WATSON, LEGAL TRANSPLANTS AND EUROPEAN PRIVATE LAW (Ius Commune Lectures No. 2, METRO 2000). 12 F.H. Lawson, The Field of Comparative Law, 61 JURID. REV. 16 (1949). 13 Jan Smits, A European Private Law as a Mixed Legal System, 5 MAASTRICHT JOURNAL OF EUROPEAN AND COMPARATIVE LAW [M.J.] 328 (1998). 14 Cf. Ugo Mattei, Efficiency in Legal Transplants: An Essay in Comparative Law and Economics, 1994 INTERNATIONAL REVIEW OF LAW AND ECONOMICS [I.R.L.E.] 3
the extent that various areas of a discipline are touched by the evolutionary process? ) may be provided with a preliminary answer in this paper, partly building on other disciplines 3. Some Traditional Points of view on Legal Change It is surprising to see how little study has been made of the process of legal change. Anyone interested in the process of unification of law in Europe should be aware of the historical evidence that is present within legal systems and that shows how a legal system copes with changes in society as a whole and which rules are better prepared for those changes than others. The explanation for this lack of interest is undoubtedly caused by the positivist stance that private law studies have taken in Europe ever since the enactment of national Civil Codes(which may also explain why the evolutionary tradition is much stronger in Anglo-American jurisprudence). Since then, private law is merely looked at as a design choice of a Creator, not as an organism shaped by its environmental conditions The evolutionary tradition in law that does exist is mainly related to authors opposing codification (like Savigny) or authors from the Anglo-American tradition. The most powerful application in law of evolution theory on the European continent still is the work of Savigny and his Historical School, propagating an"organically progressive jurisprudence, law being part of the Volksgeist. Savignys view is however much too vague to be regarded as a true scientific theory of legal change. Maine does offer such a theory, although he looks at the evolution of the legal system as a whole and not so much at the evolution of legal rules within that system Several other authors- influenced by the publication of Darwin's On the Origin of Species in 185 or not - have offered theories on the evolution of legal institutions though without taking advantage of the insights of other disciplines. Neither of a very precise nature are the traditional comparative law efforts to explain why legal transplants take place. As factors, involved in the taking place of legal transplants, have been mentioned the prestige or quality of the exported legal rules, efficiency, the role of the national elite,chance, practical utility, cultural forces and imposition.These very diverse F.C. VON SAVIGNY, VOM BERUF UNSRER ZEIT FUR GESETZGEBUNG UND RECHTSWISSENSCHAFT(photo reprint1967)(1814) C.E. Donald Elliott, The Evolutionary Tradition in Jurisprudence, 85 COLUM. L REV. 38, 43(1985): " by modern standards Savignys work seems hopelessly metaphorical and unscientific 7H.J. SUMNER MAINE, ANCIENT LAW (1861) For an excellent overview, see Elliott, supra note 16, at 38. C. P. STEIN, LEGAL EVOLUTION: THE STORY OF AN IDEA(1980) i9 See, however, the writings of Clark, cited supra, note 7 and Roe, cited infra, note 48 20 C. ESIN ORUCU, CRITICAL COMPARATIVE LAW 121(1999) For the traditional explanation, sf. Gianmaria Ajani, By Chance and Prestige: Legal Transplants in Russia and Eastern Europe, 43 AM. J. COMP. L 93(1995)and Alan Watson, Aspects of Reception of Law, 44 AM J COMP L. 333, 345(1996), stressing"the need for authority See in particular Mattei, supra note 14, at 3 2PG Monateri, The Weak'Law: Contaminations and Legal Cultures, in ITALIAN NATIONAL REPORTS TO THE XVTH INTERNATIONAL CONGRESS OF COMPARATIVE LAW, 94(1998) Alan Watson, supra note 1.at339 e Alan Watson, supra note 21, at 335
3 the extent that various areas of a discipline are touched by the evolutionary process?) may be provided with a preliminary answer in this paper, partly building on other disciplines. 3. Some Traditional Points of View on Legal Change It is surprising to see how little study has been made of the process of legal change. Anyone interested in the process of unification of law in Europe should be aware of the historical evidence that is present within legal systems and that shows how a legal system copes with changes in society as a whole and which rules are better prepared for those changes than others. The explanation for this lack of interest is undoubtedly caused by the positivist stance that private law studies have taken in Europe ever since the enactment of national Civil Codes (which may also explain why the evolutionary tradition is much stronger in Anglo-American jurisprudence). Since then, private law is merely looked at as a design choice of a Creator, not as an organism shaped by its environmental conditions. The evolutionary tradition in law that does exist is mainly related to authors opposing codification (like Savigny) or authors from the Anglo-American tradition. The most powerful application in law of evolution theory on the European continent still is the work of Savigny and his Historical School, propagating an “organically progressive jurisprudence”, law being part of the Volksgeist. 15 Savigny’s view is however much too vague to be regarded as a true scientific theory of legal change.16 Maine does offer such a theory,17 although he looks at the evolution of the legal system as a whole and not so much at the evolution of legal rules within that system. Several other authors – influenced by the publication of Darwin’s On the Origin of Species in 1859 or not – have offered theories on the evolution of legal institutions,18 though without taking advantage of the insights of other disciplines.19 Neither of a very precise nature are the traditional comparative law efforts to explain why legal transplants take place. As factors, involved in the taking place of legal transplants,20 have been mentioned the prestige or quality of the exported legal rules,21 efficiency,22 the role of the national élite, 23 chance,24 practical utility,25 cultural forces26 and imposition.27 These very diverse 15 F.C. VON SAVIGNY, VOM BERUF UNSRER ZEIT FÜR GESETZGEBUNG UND RECHTSWISSENSCHAFT (photo. reprint 1967) (1814). 16 Cf. E. Donald Elliott, The Evolutionary Tradition in Jurisprudence, 85 COLUM. L. REV. 38, 43 (1985): “by modern standards Savigny’s work seems hopelessly metaphorical and unscientific”. 17 H.J. SUMNER MAINE, ANCIENT LAW (1861). 18 For an excellent overview, see Elliott, supra note 16, at 38. Cf. P. STEIN, LEGAL EVOLUTION: THE STORY OF AN IDEA (1980). 19 See, however, the writings of Clark, cited supra, note 7 and Roe, cited infra, note 48. 20 Cf. ESIN ÖRÜCÜ, CRITICAL COMPARATIVE LAW 121 (1999). 21 For the traditional explanation, cf. Gianmaria Ajani, By Chance and Prestige: Legal Transplants in Russia and Eastern Europe, 43 AM. J. COMP. L. 93 (1995) and Alan Watson, Aspects of Reception of Law, 44 AM. J. COMP. L. 333, 345 (1996), stressing “the need for authority”. 22 See in particular Mattei, supra note 14, at 3. 23 P.G. Monateri, The ‘Weak’ Law: Contaminations and Legal Cultures, in ITALIAN NATIONAL REPORTS TO THE XVTH INTERNATIONAL CONGRESS OF COMPARATIVE LAW, 94 (1998). 24 Alan Watson, supra note 21, at 339. 25 Alan Watson, supra note 21, at 335
factors may indeed explain why legal transplants take place, but a concrete relationship between these factors and the way legal systems change is absent. What we need, is a theory that can explain the examples of legal transplants that Watson provides us with. Could interdisciplinary eory be of use here 4. Some Insights from Evolutionary Biology and Economics The most well known application of evolutionary theory is-of course-to be found in biology According to classical Darwinism, evolutionary change takes place through natural selection. The individual members of a species organise their lives to produce the most surviving offspring and in doing so, they necessarily adapt themselves to changing circumstances. The descent of one or more trees of life thus leads to a diversity of species through speciation, extinction and the evolving of new characteristics within these species. In Darwinism, this process of evolution by natural selection presupposes three requirements. First, there must be variation in the species (otherwise there would be no species that could better survive than others); second, the variation must concern variation in fitness(understood as the ability to survive and reproduce, some species being more able to adapt themselves to changing circumstances than others), third the charac teristics that are constituent for the fitness of the species must be inherited(otherwise, there could be no evolution of the species as such). Only with these three constituents, a"struggle for life" can originate As to the evolution of legal rules in Europe, it is possible to transplant the first two of these requirements: also in European private law, different rules exist as to the solving of identical cases and presumably not all of these rules are as"fit as others to carry out their task. Much of the present day rules in the various European countries are the result of a long evolution, adapting them to the environment these rules had to operate in. According to evolutionary theory, other rules that once existed in these countries must have been eliminated in this process of natural selection and any change of the environment in the future would -again-lead to adaptation of the present rules. The third requirement of Darwinism(the inheritability of characteristics)is more problematic in the context of law because of the simple fact that descendants that take over the genes of the previous species do not exist. As we shall see, however, other disciplines that make use of evolutionary analysis(in particular economics)solve this problem by identifying analogue Apart from these constituents of evolution, theoretical biology distinguishes between the different possible causes of evolution. In this respect, natural selection is only one of them, alongside with mutation, migration, recombination and mating. What is important for the 26 Robin Evans-Jones, Receptions of Law, Mixed Legal Systems and the Myth of the Genius of Scots Private Law, 114 LAW QUARTERLY REVIEW [L Q.R. 228(1998) As is rightly stressed by Esin Orucu, Mixed and Mixing Systems: a Conceptual Search, in 349 STUDIES IN LEGAL SYSTEMS: MIXED AND MIXING(Esin Orucu et al. eds, 1996) Cf. on evolutionary biology ELLIOTT SOBER, PHILOSOPHY OF BIOLOGY(1993); J. MAYNARD SMITH, THE THEORY OF EVOLUTION (1993)and dOUGLAS J FUTUYMA, EVOLUTIONARY BIOLOGY(3rd ed. 1998) 29 William H. Rodgers, Law and Biology, in THE NEW PALGRAVE DICTIONARY OF ECONOMICS AND THE LAW,VOL.I451(1998) 50 SOBER, supra note 28, at9 ld at 18
4 factors may indeed explain why legal transplants take place, but a concrete relationship between these factors and the way legal systems change is absent. What we need, is a theory that can explain the examples of legal transplants that Watson provides us with. Could interdisciplinary evolutionary theory be of use here? 4. Some Insights from Evolutionary Biology and Economics The most well known application of evolutionary theory is – of course – to be found in biology.28 According to classical Darwinism, evolutionary change takes place through natural selection. The individual members of a species organise their lives to produce the most surviving offspring and in doing so, they necessarily adapt themselves to changing circumstances.29 The descent of one or more trees of life thus leads to a diversity of species through speciation, extinction and the evolving of new characteristics within these species. In Darwinism, this process of evolution by natural selection presupposes three requirements.30 First, there must be variation in the species (otherwise there would be no species that could better survive than others); second, the variation must concern variation in fitness (understood as the ability to survive and reproduce, some species being more able to adapt themselves to changing circumstances than others), third the characteristics that are constituent for the fitness of the species must be inherited (otherwise, there could be no evolution of the species as such). Only with these three constituents, a “struggle for life” can originate. As to the evolution of legal rules in Europe, it is possible to transplant the first two of these requirements: also in European private law, different rules exist as to the solving of identical cases and presumably not all of these rules are as “fit” as others to carry out their task. Much of the present day rules in the various European countries are the result of a long evolution, adapting them to the environment these rules had to operate in. According to evolutionary theory, other rules that once existed in these countries must have been eliminated in this process of natural selection and any change of the environment in the future would – again – lead to adaptation of the present rules. The third requirement of Darwinism (the inheritability of characteristics) is more problematic in the context of law because of the simple fact that descendants that take over the genes of the previous species do not exist. As we shall see, however, other disciplines that make use of evolutionary analysis (in particular economics) solve this problem by identifying analogues of genes. Apart from these constituents of evolution, theoretical biology distinguishes between the different possible causes of evolution. In this respect, natural selection is only one of them, alongside with mutation, migration, recombination and mating.31 What is important for the 26 Robin Evans-Jones, Receptions of Law, Mixed Legal Systems and the Myth of the Genius of Scots Private Law, 114 LAW QUARTERLY REVIEW [L.Q.R.] 228 (1998). 27 As is rightly stressed by Esin Örücü, Mixed and Mixing Systems: a Conceptual Search, in 349 STUDIES IN LEGAL SYSTEMS: MIXED AND MIXING (Esin Örücü et al. eds., 1996). 28 Cf. on evolutionary biology ELLIOTT SOBER, PHILOSOPHY OF BIOLOGY (1993); J. MAYNARD SMITH, THE THEORY OF EVOLUTION (1993) and DOUGLAS J. FUTUYMA, EVOLUTIONARY BIOLOGY (3rd ed. 1998). 29 William H. Rodgers, Law and Biology, in THE NEW PALGRAVE DICTIONARY OF ECONOMICS AND THE LAW, VOL. II 451 (1998). 30 SOBER, supra note 28, at 9. 31 Id at 18
purpose of this contribution, is the discussion on what actually causes evolution(" Why do polar bears have white fur and other bears brown fur? ) This discussion on what is called adaptationism is about the importance of natural selection in the process of evolution. What is the actual power of natural selection? The question is important for the evolution of law because it may give us some insight into the question why it is that some legal rules survive and others do not. Biology teaches us that as to the direction of the evolution, adaptation is the main principle Organisms fit themselves into niches of viability offered by their environments. They have to in order to survive the pressure of selective competition from other organisms. What may be of interest for the study of law is that the direction of adaptation is usually toward simplicity, in particular when homogenisation of the environment reduces the number of distinct niches available. The movement is toward complexity when there are only a few species that proliferate within a new environment with many unfilled niches. I will come back to this point later Theoretical biologist Sober provides us with a good insight into another discussion. To predict what the mechanism of evolution leads to, it is possible to make use of simple models of the selection process(for example in case of the evolution of running speed in zebras, fast zebras may survive over slow zebras), taking into account only natural selection and not mutation or other evolutionary processes and abstaining from the fact that running speed may not evolve independently of other characteristics the zebra has. Adaptationists would say that any refinement of the simple model does not affect the prediction of how the running speed would evolve. If this were also true for the law, it would mean that selection of legal rules is a straightforward process, not hampered by other factors than the pursuit of finding the best rule available. As we shall see, however this is not the case in the real world As Darwin intended a theory on how life evolves, other scholars have expanded his theory to other disciplines. Among these are history, psychology, political science, history of science,sociology,3 ethics, 0 linguistics# and economics. In this section, I will focus on Also in this application of evolutionary theory, the idea of an ld a 33 Jack Hirshleifer, Evolutionary Models in Economics and Law, in EVOLUTIONARY ECONOMICS 205(Ulrich Witt ed, 1993) 34 SOBER, supra note 28, at 119 55 THE RETURN OF SCIENCE: EVOLUTIONARY IDEAS AND HISTORY(David Gary Shaw Philip Pomper,eds 1999) HENRY PLOTKIN, EVOLUTION IN MIND: AN INTRODUCTION TO EVOLUTIONARY PSYCHOLOGY(1997) F.A. HAYEK, LAW, LEGISLATION AND LIBERTY (1973-1979) KARL R. POPPER, OBJECTIVE KNOWLEDGE: AN EVOLUTIONARY APPROACH (1979) 39 On the influence of Herbert Spencer cf. GEOFFREY M. HODGSON, ECONOMICS AND EVOLUTION 81(1993) On socio-biology and the claims it makes about explaining morality, cf. SOBER, supra note 28, at 202; see notably the groundwork laid by E.O. WILSON, SOCIOBIOLOGY: THE NEW SYNTHESIS(1975)and R ALEXANDER, THE BIOLOGY OF MORAL SYSTEMS (1987) For an overview cf. JOHN MAYNARD SMITH EORS SZATHMARY, THE ORIGINS OF LIFE: FROM THE BIRTH OF LIFE TO THE ORIGIN OF LANGUAGE(1999); J. MAYNARD SMITH, EVOLUTION AND THE THEORY OF GAMES (1982); JOHN H. BECKSTROM, DARWINISM APPLIED: EVOLUTIONARY PATHS TO SOCIAL GOALS(1993) INSTITUTIONS: ON EVOLUTIONARY ECONOMICS AND THE EVOLUTION OF ECONOMICS(1999): Witt(ed ) supra note 33; HODGSON, supra note 39. On the relationship with biology cf. John Foster, Biology and Economics. in THE ELGAR COMPANION TO INSTITUTIONAL AND EVOLUTIONARY ECONOMICS A-K 23 5
5 purpose of this contribution, is the discussion on what actually causes evolution (“Why do polar bears have white fur and other bears brown fur?”). This discussion on what is called adaptationism is about the importance of natural selection in the process of evolution. What is the actual power of natural selection?32 The question is important for the evolution of law because it may give us some insight into the question why it is that some legal rules survive and others do not. Biology teaches us that as to the direction of the evolution, adaptation is the main principle. Organisms fit themselves into niches of viability offered by their environments. They have to in order to survive the pressure of selective competition from other organisms. What may be of interest for the study of law is that the direction of adaptation is usually toward simplicity, in particular when homogenisation of the environment reduces the number of distinct niches available. The movement is toward complexity when there are only a few species that proliferate within a new environment with many unfilled niches.33 I will come back to this point later. Theoretical biologist Sober provides us with a good insight into another discussion.34 To predict what the mechanism of evolution leads to, it is possible to make use of simple models of the selection process (for example in case of the evolution of running speed in zebras, fast zebras may survive over slow zebras), taking into account only natural selection and not mutation or other evolutionary processes and abstaining from the fact that running speed may not evolve independently of other characteristics the zebra has. Adaptationists would say that any refinement of the simple model does not affect the prediction of how the running speed would evolve. If this were also true for the law, it would mean that selection of legal rules is a straightforward process, not hampered by other factors than the pursuit of finding the best rule available. As we shall see, however, this is not the case in the real world. As Darwin intended a theory on how life evolves, other scholars have expanded his theory to other disciplines. Among these are history,35 psychology,36 political science,37 history of science,38 sociology,39 ethics,40 linguistics41 and economics. In this section, I will focus on evolutionary economics.42 Also in this application of evolutionary theory, the idea of an 32 Id at 119. 33 Jack Hirshleifer, Evolutionary Models in Economics and Law, in EVOLUTIONARY ECONOMICS 205 (Ulrich Witt ed., 1993). 34 SOBER, supra note 28, at 119. 35 THE RETURN OF SCIENCE: EVOLUTIONARY IDEAS AND HISTORY (David Gary Shaw & Philip Pomper, eds., 1999). 36 HENRY PLOTKIN, EVOLUTION IN MIND: AN INTRODUCTION TO EVOLUTIONARY PSYCHOLOGY (1997). 37 F.A. HAYEK, LAW, LEGISLATION AND LIBERTY (1973-1979). 38 KARL R. POPPER, OBJECTIVE KNOWLEDGE: AN EVOLUTIONARY APPROACH (1979). 39 On the influence of Herbert Spencer cf. GEOFFREY M. HODGSON, ECONOMICS AND EVOLUTION 81 (1993). 40 On socio-biology and the claims it makes about explaining morality, cf. SOBER, supra note 28, at 202; see notably the groundwork laid by E.O. WILSON, SOCIOBIOLOGY: THE NEW SYNTHESIS (1975) and R. ALEXANDER, THE BIOLOGY OF MORAL SYSTEMS (1987). 41 For an overview cf. JOHN MAYNARD SMITH & EORS SZATHMARY, THE ORIGINS OF LIFE: FROM THE BIRTH OF LIFE TO THE ORIGIN OF LANGUAGE (1999); J. MAYNARD SMITH, EVOLUTION AND THE THEORY OF GAMES (1982); JOHN H. BECKSTROM, DARWINISM APPLIED: EVOLUTIONARY PATHS TO SOCIAL GOALS (1993). 42 The extensive literature on evolutionary economics includes GEOFFREY M. HODGSON, EVOLUTION AND INSTITUTIONS: ON EVOLUTIONARY ECONOMICS AND THE EVOLUTION OF ECONOMICS (1999); Witt (ed.), supra note 33; HODGSON, supra note 39. On the relationship with biology cf. John Foster, Biology and Economics, in THE ELGAR COMPANION TO INSTITUTIONAL AND EVOLUTIONARY ECONOMICS A-K 23
unalterable human nature or of a conscious design is abandoned for the idea that"selection by the environment" should be the starting point for any analysis of a social or economic order. It is a programmatic contention that some patterns have survived because they were able to be adapted to environmental circumstances. There is however dispute as to the existence of real evidence for this idea. In neo-classical economics, this evidence is for example provided in the sense that only those firms that maximise profit survive the process of market selection. Neo-classical analysis excluding uncertainty anyway-assumes this is the case because of deliberate choices made by these firms, and usually adds to this that in evolutionary theory the natural selection process mimics rational decision making: Market selection will produce rational market behaviour even if firms display irrational behaviour ould this be true for the law as well, it would be an important point for the analysis of European private law. The rough transplantation of this idea to law would mean that even if the legislature decides to enact legislation by deliberate choice, subsequent selection of rules on the market of legal culture would produce the same results. It is however disputed if neo-classical analysis is right at this point. Evolutionary theory makes clear what the significance is of"path dependence"in evolutionary processes. Roe has applied this to the law The future time path the evolution is bound to take, depends on the "adaptive landscape in which various factors such as environment conditions(like natural constraints) are at work What should be the case to have a true spontaneous order evolve, is to have the external environ- mental conditions prevail. Many times, however, there are also internal materials(in organisms these would be genes) that have been shaped by transformations in the past that are now irreversible. These were responsive to the environment of those days, but are now constraints upon adaptive change. The future development is thus affected by the path it has traced out in the past In economic terms: an equilibrium will not originate, and this-as Hodgson puts it-is in contrast with the view that"real time and history could be safely ignored" 50 In biology, especially Gould has pointed out that evolution many times depends on"accidents",leading to an eccentric path, like -in economy -the most efficient organisations may not come out on top because of now irreversible decisions that have been made in the past. The lesson to be learnt from this for the law is that evolution of legal norms may not under all circumstances lead to the best result. The task that lies ahead is to find out where this strong path dependence has had a formative influence on the law of the various european countries Geoffrey Hodgson et al. eds, 1994) :R. nelson S.G. WINTER, AN EVOLUTIONARY THEORY OF ECONOMIC CHANGE(1982). Elliott, supra note 16, at 60 Vromen, Evolutionary Economics: Precursors, Paradigmatic Propositions, Puzzles and Prospects, in ECONOMICS AND EVOLUTION 45 (Jan Reijnders ed, 1997) P C. HODGSON, supra note 42, at 40 ra note 44. at 45 on this discussion 7G.S. Becker, Irrational Behavior and Economic Theory, 70 JOURNAL OF POLITICAL ECONOMY 1(1962) cf. Vromen, supra note 44, at 46 and HODGSON, supra note 42, at 177: the assumption of maximizing behaviour by individual firms is not necessary for the scientific purposes of prediction C. Mark J. Roe, Chaos and Evolution in Law and Economics, 109 HARVARD L R 643, 667(1996) Hirshleifer, supra note 33, at 205 39,at204 STEPHEN J GOULD, WONDERFUL LIFE(1989) HodgsoN 6
6 unalterable human nature or of a conscious design is abandoned for the idea that “selection by the environment”43 should be the starting point for any analysis of a social or economic order. It is a programmatic contention that some patterns have survived because they were able to be adapted to environmental circumstances.44 There is however dispute as to the existence of real evidence for this idea. In neo-classical economics, this evidence is for example provided in the sense that only those firms that maximise profit survive the process of market selection. Neo-classical analysis – excluding uncertainty anyway45 – assumes this is the case because of deliberate choices made by these firms, and usually adds to this that in evolutionary theory the natural selection process mimics rational decision making:46 “Market selection will produce rational market behaviour even if firms display irrational behaviour.”47 Would this be true for the law as well, it would be an important point for the analysis of European private law. The rough transplantation of this idea to law would mean that even if the legislature decides to enact legislation by deliberate choice, subsequent selection of rules on the market of legal culture would produce the same results. It is however disputed if neo-classical analysis is right at this point. Evolutionary theory makes clear what the significance is of “path dependence” in evolutionary processes. Roe has applied this to the law.48 The future time path the evolution is bound to take, depends on the “adaptive landscape” in which various factors such as environment conditions (like natural constraints) are at work. What should be the case to have a true spontaneous order evolve, is to have the external environmental conditions prevail. Many times, however, there are also internal materials (in organisms these would be genes) that have been shaped by transformations in the past that are now irreversible. These were responsive to the environment of those days, but are now constraints upon adaptive change.49 The future development is thus affected by the path it has traced out in the past. In economic terms: an equilibrium will not originate, and this – as Hodgson puts it – is in contrast with the view that “real time and history could be safely ignored”.50 In biology, especially Gould has pointed out that evolution many times depends on “accidents”, leading to an eccentric path,51 like – in economy – the most efficient organisations may not come out on top because of now irreversible decisions that have been made in the past.52 The lesson to be learnt from this for the law is that evolution of legal norms may not under all circumstances lead to the best result. The task that lies ahead is to find out where this strong path dependence has had a formative influence on the law of the various European countries. (Geoffrey Hodgson et al. eds., 1994); R. NELSON & S.G. WINTER, AN EVOLUTIONARY THEORY OF ECONOMIC CHANGE (1982). 43 Elliott, supra note 16, at 60. 44 Cf. Jack J. Vromen, Evolutionary Economics: Precursors, Paradigmatic Propositions, Puzzles and Prospects, in ECONOMICS AND EVOLUTION 45 (Jan Reijnders ed., 1997). 45 Cf. HODGSON,supra note 42, at 40. 46 Cf. Vromen, supra note 44, at 45 on this discussion. 47 G.S. Becker, Irrational Behavior and Economic Theory, 70 JOURNAL OF POLITICAL ECONOMY 1 (1962); cf. Vromen, supra note 44, at 46 and HODGSON, supra note 42, at 177: “the assumption of maximizing behaviour by individual firms is not necessary for the scientific purposes of prediction”. 48 Cf. Mark J. Roe, Chaos and Evolution in Law and Economics, 109 HARVARD L.R. 643, 667 (1996). 49 Hirshleifer, supra note 33, at 205. 50 HODGSON, supra note 39, at 204. 51 STEPHEN J. GOULD, WONDERFUL LIFE (1989). 52 HODGSON, supra note 42, at 204
Another insight evolutionary economics provides us with, is that as to the third requirement of natural selection(the inheritability of characteristics), some analogy to ger possible. Notably Nelson and winter use routines as playing the same role in firms as genes do in organisms. 3 The routines of a firm establish a stable identity of the firm that endures over time and- just like genes - they program the behaviour of the firms. As long as the routine is profitable, firms stick to it. Here, again, it goes without saying that firms are usually not able to change these routines too fast. Vromen points out that this is consistent with evolutionary game theory, which emphasises that agents have fixed, unalterable behavioural strategies, but inconsistent with neo-classical economics which maintains that economic agents are able to respond in an optimal way to change of circumstances Some of the insights of the previously mentioned disciplines have been incorporated into standard Law and Economics scholarship. Of course, the standard hypothesis there is that since people have a desire to eliminate costs, the law evolves toward legal rules that minimise social costs and thus increase economic efficiency. This thesis on the evolution of legal norms is closely related to the more general assertion that the whole of the common law is efficient. Rubin and priest have pointed out that since inefficient rules are more likely to be disputed in court, these rules change in the re-examination by the court, while other rules survive. Cooter and Kornhauser have added to this that evolution does not necessarily lead to only one surviving efficient rule, but to some equilibrium of best and worst legal rules, constantly competing for survival. This would be in accordance with modern biology, in which it is recognised that nature may have very different solutions for one and the same problem. The problem of path dependence however does not play an important role in present day law and Economics scholarship. Roe may be right that this is due to the important role that policy plays in this discipline: evolutionary ideas do not direct us toward some policy direction In the following section, I try to make use of these admittedly eclectic - insights trying to establish the factors that are decisive for the development of uniform private law in Europe 5. Predicting Differences between Areas of Private Law in Europe 5.1 General Observations What is the importance of the above for the venture of creating a uniform private law for Europe? The way I see it, uniform law in Europe primarily comes about by evolution of legal norms. If this note 44. at 52 Vromen. id at 53 SS Paul Rubin, Why is the Common Law Efficient?, 6J. LEGAL STUD. 51(1977); George Priest, The Common Law Process and the Selection of Efficient Rules, 6J. LEGAL STUD. 65(1977) 56 RICHARD A POSNER, ECONOMIC ANALYSIS OF LAW (5th ed 1998) the excellent by Elliott, 16,at62 R. Cooter &r. Kornhauser, Can Litigation Improve the Law Without the Help of udges?, 9 J. LEGAL 16, Roe 48,at667 Economics, in THE NEW PALGRAVE DICTIONARY OF ECONOMICS AND THE LAW, VOL 1, 346(1998) 7
7 Another insight evolutionary economics provides us with, is that as to the third requirement of natural selection (the inheritability of characteristics), some analogy to genes is possible. Notably Nelson and Winter use routines as playing the same role in firms as genes do in organisms.53 The routines of a firm establish a stable identity of the firm that endures over time and – just like genes – they program the behaviour of the firms. As long as the routine is profitable, firms stick to it. Here, again, it goes without saying that firms are usually not able to change these routines too fast. Vromen points out that this is consistent with evolutionary game theory, which emphasises that agents have fixed, unalterable behavioural strategies, but inconsistent with neo-classical economics which maintains that economic agents are able to respond in an optimal way to change of circumstances.54 Some of the insights of the previously mentioned disciplines have been incorporated into standard Law and Economics scholarship. Of course, the standard hypothesis there is that since people have a desire to eliminate costs, the law evolves toward legal rules that minimise social costs and thus increase economic efficiency.55 This thesis on the evolution of legal norms is closely related to the more general assertion that the whole of the common law is efficient.56 Rubin and Priest have pointed out57 that since inefficient rules are more likely to be disputed in court, these rules change in the re-examination by the court, while other rules survive. Cooter and Kornhauser have added to this that evolution does not necessarily lead to only one surviving efficient rule, but to some equilibrium of best and worst legal rules, constantly competing for survival.58 This would be in accordance with modern biology, in which it is recognised that nature may have very different solutions for one and the same problem.59 The problem of path dependence however does not play an important role in present day Law and Economics scholarship. Roe60 may be right that this is due to the important role that policy plays in this discipline: evolutionary ideas do not direct us toward some policy direction. In the following section, I try to make use of these – admittedly eclectic – insights in trying to establish the factors that are decisive for the development of uniform private law in Europe. 5. Predicting Differences between Areas of Private Law in Europe 5.1 General Observations What is the importance of the above for the venture of creating a uniform private law for Europe? The way I see it, uniform law in Europe primarily comes about by evolution of legal norms. If this 53 Vromen, supra note 44, at 52. 54 Vromen, id. at 53. 55 Paul Rubin, Why is the Common Law Efficient?, 6 J. LEGAL STUD. 51 (1977); George Priest, The Common Law Process and the Selection of Efficient Rules, 6 J. LEGAL STUD. 65 (1977). 56 RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW (5th ed. 1998). 57 For an overview, see the excellent survey by Elliott, supra note 16, at 62. 58 R. Cooter & R. Kornhauser, Can Litigation Improve the Law Without the Help of Judges?, 9 J. LEGAL STUD. 139 (1980). 59 Elliott, supra note 16, at 70. 60 Roe, supra note 48, at 667. Cf, however,. Ugo Mattei & Fabrizio Cafaggi, Comparative Law and Economics, in THE NEW PALGRAVE DICTIONARY OF ECONOMICS AND THE LAW, VOL. I, 346 (1998)
is an apt qualification of the unification process, it is subject to the more general mechanisms and principles of evolution just described. First, some general observations that stem from the previous survey are appropriate for the purpose of this contribution. Then, I will elaborate some points in more detail First, the question should be put to what extent the three darwinist requirements for a survival of the fittest are also applicable to European private law. In an evolutionary theory of European unification, the various national rules to solve similar problems may be regarded as the necessary variety of species. This variety has come about through differentiation that started from one" tree of law"(some general concept of fairness from which the various rules originated). The second requirement as to the variation in fitness is met as well as long as it is presumed that not all the legal rules are as"fit as others to carry out their task. Some rules may have been eliminated by the environment in which they had to operate; others may have survived because of their ability to adjust themselves to changing circumstances. The third requirement (inheritability of characteristics) is met if legal institutions are looked at as the"genes"of a legal system: the content of these institutions may differ as the identity of the institution as such remains the same Gust like in economics, routines establish a stable identity of a firm). Just like new routines of firms are seldom entirely new, but most of the time combinations of old ones that guarantee that the specific identities of these firms are maintained, the institutions that program the behaviour of the rules in response to the changing environment, maintain their specific identities as well This idea calls for an application in the field of private law(section 5.2) Secondly, evolutionary theory enlightens us regarding the possibility of the best rule surviving in a"struggle for life". This is definitely not a straightforward mechanism. To predict which rules survive and which do not, one cannot just take efficiency or any other mono- explaining mechanism(the"simple model )as a key-concept. Two different sorts of barriers to the emergence of the best legal rule should be taken into account. First, historically, the rule that has emerged may have been best adapted to the environment in which it had to function in the past. This has for a consequence that some rules may have been responsive to that past environment, at the same time eliminating the rules that were not adaptive in those days, but may have been the best rule for present times, if it had not been for their elimination. Selection on the market of legal rules does in this sense not produce the best available rules. Second, there is a future oriented aspect of this approach as well. Even if one is able to reinvent the rule that disappeared(and legal history can play an important role in doing so), it may be too costly to have that other rule prevail over the one we have become accustomed to. In this case of path dependence(the future development is affected by the path it has set out in the past),an quilibrium cannot evolve. Accidents" may thus be just as important to explain the past and the future development of law. I will elaborate this idea with a view to the harmonisation process in different areas of private law in section 5.3 Thirdly, it is fertile to look at legal rules as having a desire to reproduce themselves. This analysis may explain why it is that over time identical legal rules are often used for different goals This"Funktionswandel"of a rule may indeed happen more frequently than the clear-cut elimination of a rule. As we saw that organisms fit themselves into"niches of viability offered by their environments, legal rules want to survive as well in a changing society. It then is only because of the use of the same terminology or the embedment within the same institution that a stable identity remains(this point is related to the one discussed in section 5.2). Legal transplants Vromen, supra note 44, at 53 8
8 is an apt qualification of the unification process, it is subject to the more general mechanisms and principles of evolution just described. First, some general observations that stem from the previous survey are appropriate for the purpose of this contribution. Then, I will elaborate some points in more detail. First, the question should be put to what extent the three Darwinist requirements for a survival of the fittest are also applicable to European private law. In an evolutionary theory of European unification, the various national rules to solve similar problems may be regarded as the necessary variety of species. This variety has come about through differentiation that started from one “tree of law” (some general concept of fairness from which the various rules originated). The second requirement as to the variation in fitness is met as well as long as it is presumed that not all the legal rules are as “fit” as others to carry out their task. Some rules may have been eliminated by the environment in which they had to operate; others may have survived because of their ability to adjust themselves to changing circumstances. The third requirement (inheritability of characteristics) is met if legal institutions are looked at as the “genes” of a legal system: the content of these institutions may differ as the identity of the institution as such remains the same (just like in economics, routines establish a stable identity of a firm). Just like new routines of firms are seldom entirely new, but most of the time combinations of old ones that guarantee that the specific identities of these firms are maintained,61 the institutions that program the behaviour of the rules in response to the changing environment, maintain their specific identities as well. This idea calls for an application in the field of private law (section 5.2). Secondly, evolutionary theory enlightens us regarding the possibility of the best rule surviving in a “struggle for life”. This is definitely not a straightforward mechanism. To predict which rules survive and which do not, one cannot just take efficiency or any other monoexplaining mechanism (the “simple model”) as a key-concept. Two different sorts of barriers to the emergence of the best legal rule should be taken into account. First, historically, the rule that has emerged may have been best adapted to the environment in which it had to function in the past. This has for a consequence that some rules may have been responsive to that past environment, at the same time eliminating the rules that were not adaptive in those days, but may have been the best rule for present times, if it had not been for their elimination. Selection on the market of legal rules does in this sense not produce the best available rules. Second, there is a future oriented aspect of this approach as well. Even if one is able to “reinvent” the rule that disappeared (and legal history can play an important role in doing so), it may be too costly to have that other rule prevail over the one we have become accustomed to. In this case of path dependence (the future development is affected by the path it has set out in the past), an equilibrium cannot evolve. “Accidents” may thus be just as important to explain the past and the future development of law. I will elaborate this idea with a view to the harmonisation process in different areas of private law in section 5.3. Thirdly, it is fertile to look at legal rules as having a desire to reproduce themselves. This analysis may explain why it is that over time identical legal rules are often used for different goals. This “Funktionswandel” of a rule may indeed happen more frequently than the clear-cut elimination of a rule. As we saw that organisms fit themselves into “niches of viability offered by their environments”, legal rules want to survive as well in a changing society. It then is only because of the use of the same terminology or the embedment within the same institution that a stable identity remains (this point is related to the one discussed in section 5.2). Legal transplants 61 Vromen, supra note 44, at 53
may-at least partly -also be explained by this mechanism. Moreover, it is interesting to find out to what extent the adaptation process in legal rules follows the same principle as in biology. If the direction of adaptation were indeed toward simplicity in case of homogenisation of the environment, it would be an indication of the direction private law would take in a unified Europe (i.e. the environment of a highly uniform economy ) This biological idea is- the way I see it very much related to the famous race to the bottom argument. Unlike the present debate about that argument-that is merely on a normative level -evolutionary theory is able to show us that this process may be inevitable in a changing economic environment(section 5. 4). This argument may even be somewhat generalised with a view to the discussion on mentality as preventing a uniform European private law from coming about. 5.2 About the Way Private Law Rules Adapt to Changing Circumstances For the venture of creating a uniform private law for Europe, it is interesting to see what form this law is bound to take. Evolutionary theory predicts that the external identity of institutions may very well stay the same while their contents differs. This result is consistent with what legal history shows us: concepts like contract, tort, property and marriage may in name remain identical their content on the level of rules differs to a great extent over various periods of time. Thi combination of an"inherited"element and an element of variation guarantees that the adaptation of a rule to a new environment takes place in a not so overt way. To be more precise: a true elimination of one rule for another is not as likely as the adaptation of existing rules. Moreover, this adaptation or mutation of rules is not likely to happen in a stable evolutionary way. In biological evolution, the genes of a species are stable until there is a crisis(like an asteroid hitting the earth). It is only then that the species begins to mutate rather quickly and then either dies or adapts itself to the changed circumstances. The species may then be extremely good adapted for the period of crisis(having the characteristics to survive that crisis), but not for the period thereafter This theory can be substantiated with the following. The environment in which most of the present legal rules in Europe have survived, has been an environment of a national legal system that was most of the time embedded in a mixed market economy. Most of the private law les in continental Europe were able to survive because of their ability to adapt themselves to these characteristics. It is thus not much of a surprise that the surviving rules are the exponents of a liberal and individualistic model: in particular, they were extremely good adapted for the crisis of the French Revolution; these rules have subsequently been laid down in national civil codes Freedom of contract, the liability for damages in case of fault and the absoluteness of property including the rules originating from these concepts -thus have survived. To say that these concepts are well adapted for the present-day environment, is, however, hard to maintain. The many amendments that have been made to the rules emanating from these-indeed still under the same institutional heading- but in particular the importance that is attached to open ended norms (like good faith, reasonableness, negligence) in my view indicates that the present rules are now much less normative(and thus prescribing their future application) than they were at the time of the crisis they have survived Roe, supra note 48, at 663
9 may – at least partly – also be explained by this mechanism. Moreover, it is interesting to find out to what extent the adaptation process in legal rules follows the same principle as in biology. If the direction of adaptation were indeed toward simplicity in case of homogenisation of the environment, it would be an indication of the direction private law would take in a unified Europe (i.e. the environment of a highly uniform economy). This biological idea is – the way I see it – very much related to the famous race to the bottom argument. Unlike the present debate about that argument – that is merely on a normative level – evolutionary theory is able to show us that this process may be inevitable in a changing economic environment (section 5.4). This argument may even be somewhat generalised with a view to the discussion on mentality as preventing a uniform European private law from coming about. 5.2 About the Way Private Law Rules Adapt to Changing Circumstances For the venture of creating a uniform private law for Europe, it is interesting to see what form this law is bound to take. Evolutionary theory predicts that the external identity of institutions may very well stay the same while their contents differs. This result is consistent with what legal history shows us: concepts like contract, tort, property and marriage may in name remain identical, their content on the level of rules differs to a great extent over various periods of time. This combination of an “inherited” element and an element of variation guarantees that the adaptation of a rule to a new environment takes place in a not so overt way. To be more precise: a true elimination of one rule for another is not as likely as the adaptation of existing rules. Moreover, this adaptation or mutation of rules is not likely to happen in a stable evolutionary way. In biological evolution, the genes of a species are stable until there is a crisis (like an asteroid hitting the earth). It is only then that the species begins to mutate rather quickly and then either dies or adapts itself to the changed circumstances.62 The species may then be extremely good adapted for the period of crisis (having the characteristics to survive that crisis), but not for the period thereafter. This theory can be substantiated with the following. The environment in which most of the present legal rules in Europe have survived, has been an environment of a national legal system that was most of the time embedded in a mixed market economy. Most of the private law rules in continental Europe were able to survive because of their ability to adapt themselves to these characteristics. It is thus not much of a surprise that the surviving rules are the exponents of a liberal and individualistic model: in particular, they were extremely good adapted for the “crisis” of the French Revolution; these rules have subsequently been laid down in national civil codes. Freedom of contract, the liability for damages in case of fault and the absoluteness of property – including the rules originating from these concepts – thus have survived. To say that these concepts are well adapted for the present-day environment, is, however, hard to maintain. The many amendments that have been made to the rules emanating from these – indeed still under the same institutional heading – but in particular the importance that is attached to open ended norms (like good faith, reasonableness, negligence) in my view indicates that the present rules are now much less normative (and thus prescribing their future application) than they were at the time of the crisis they have survived. 62 Roe, supra note 48, at 663
a good example of this phenomenon is the elimination of mechanisms that decide which promises are binding and which are not. Causa and laeso enormis served this particular purpose in the continental European private law systems before the great codifications. They were eliminated in the codification process, or immediately after that, because of their uselessness in a system that put so much emphasis on the absolute bindingness of contracts. It would however have been fruitful to have these concepts available in a later period of time, when contract law had to find a mechanism for deciding which contracts have to be binding upon the parties and which are not. But in most European legal systems, courts were not able to refer to these concepts anymore: they now had to use other legal concepts(good faith, the reliance principle in contract law and so on)to reach the desired result. It was only in the common law that the requirement of consideration still could play the role of distinguishing between promises that were enforceable and those that were not -although even here this role has become diluted The coming into being of a common European market may very well be a new evolutionary crisis in the evolutionary sense. It is highly likely that-again-legal institutions will receive a different content while keeping their identity in a process of adaptationism. The new environment that is now emerging at high pace is the European environment of a common market, in contrast to the national environment of a national market that most of the rules have adapted themselves to Joerges rightly points out that market integration leads to a rationalisation process in which all national law that constitutes an obstacle to the functioning of the internal market is under a pressure to change. This calls for a survey of which areas of private law will be most affected by this process 5.3 Path Dependence and Areas of European Private Law It is usually held that the process of emergence of a common market only calls for the unification of those parts of the law that are vital to that market, namely contract law and parts of the law of property(in particular security interests). From the evolutionary perspective that is chosen in this paper, we should however not be concerned with which parts are to be unified from a normative perspective, but-more descriptively- which parts are most likely to be affected by the changing environment To decide to what extent uniformity of private law can come about in Europe, it is at first useful to follow roe67 in his concept of -what he calls-weak-form path dependence. This type of path dependence only explains what has survived; it does not entail that the survivor is better than another: a society chose between two institutions and the choice became embedded, but the On this. see JAMES GORDLEY THE PHILOSOPHICAL FOUNDATIONS OF MODERN CONTRACT DOCtrine (1991) e Christian Joerges, The Europeanisation of Private Law as a Rationalisation Process and as a Contest C. Antonio Gambaro, Perspectives on the Codification of the Law of Property: An Overview, 5 ERPL 497(1997); Andrea Bonomi, La necessite d harmonisation du droit des garanties reelles mobilieres dans le marche umique europeen, in L'EUROPEANISATION DU DROIT PRIVE 497(F. Werro, ed, 1998) I leave aside the view of Richard Epstein, A Taste for Privacy? Evolution and the Emergence of a Naturalistic Ethic, 9 J. LEGAL STUD. 665(1980), who defends the socio-biological thesis that those who follow rules of conduct have a better chance of surviving than others who do not Roe, supra note 48, at 646
10 A good example of this phenomenon is the elimination of mechanisms that decide which promises are binding and which are not. Causa and laesio enormis served this particular purpose in the continental European private law systems before the great codifications.63 They were eliminated in the codification process, or immediately after that, because of their uselessness in a system that put so much emphasis on the absolute bindingness of contracts. It would however have been fruitful to have these concepts available in a later period of time, when contract law had to find a mechanism for deciding which contracts have to be binding upon the parties and which are not. But in most European legal systems, courts were not able to refer to these concepts anymore: they now had to use other legal concepts (good faith, the reliance principle in contract law and so on) to reach the desired result. It was only in the common law that the requirement of consideration still could play the role of distinguishing between promises that were enforceable and those that were not – although even here this role has become diluted. The coming into being of a common European market may very well be a new evolutionary crisis in the evolutionary sense. It is highly likely that – again – legal institutions will receive a different content while keeping their identity in a process of adaptationism. The new environment that is now emerging at high pace is the European environment of a common market, in contrast to the national environment of a national market that most of the rules have adapted themselves to. Joerges rightly points out that market integration leads to a rationalisation process in which all national law that constitutes an obstacle to the functioning of the internal market is under a pressure to change.64 This calls for a survey of which areas of private law will be most affected by this process. 5.3 Path Dependence and Areas of European Private Law It is usually held that the process of emergence of a common market only calls for the unification of those parts of the law that are vital to that market, namely contract law and parts of the law of property (in particular security interests).65 From the evolutionary perspective that is chosen in this paper, we should however not be concerned with which parts are to be unified from a normative perspective, but – more descriptively – which parts are most likely to be affected by the changing environment.66 To decide to what extent uniformity of private law can come about in Europe, it is at first useful to follow Roe67 in his concept of – what he calls – weak-form path dependence. This type of path dependence only explains what has survived; it does not entail that the survivor is better than another: “a society chose between two institutions and the choice became embedded, but the 63 On this, see JAMES GORDLEY, THE PHILOSOPHICAL FOUNDATIONS OF MODERN CONTRACT DOCTRINE (1991). 64 Christian Joerges, The Europeanisation of Private Law as a Rationalisation Process and as a Contest of Disciplines, 3 EUROPEAN REVIEW OF PRIVATE LAW [E.R.P.L.] 179 (1995). 65 Cf. Antonio Gambaro, Perspectives on the Codification of the Law of Property: An Overview, 5 ERPL 497 (1997); Andrea Bonomi, La nécessité d’harmonisation du droit des garanties réelles mobilières dans le marché unique européen, in L’EUROPÉANISATION DU DROIT PRIVÉ 497 (F. Werro, ed., 1998). 66 I leave aside the view of Richard Epstein, A Taste for Privacy? Evolution and the Emergence of a Naturalistic Ethic, 9 J. LEGAL STUD. 665 (1980), who defends the socio-biological thesis that those who follow rules of conduct have a better chance of surviving than others who do not. 67 Roe, supra note 48, at 646