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 1081 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