take into account major economic, political and social changes, was built on the foundations of the old one. It was thought to be unwise to force the judiciary to abandon familiar rules even where they fitted quite well into the new situation. 2 It is clear that the QWerty phenomenon constitutes a serious barrier to the development of European contract law. Only very determined efforts will be capable of well-known Commission on European Contract Law(Lando) and the Study Group on a e breaking through it. This seems only possible by trying to enlarge the areas of consensus. The European Civil Code(Von Bar)have paid much attention to this, stressing the importance of option 2. Formulating general principles, even as soft law, may serve continuity by establishing a common core of contract law and by furnishing a basis for consensus. Others have sought the solution in building castles in Spain. I will point out two of them 3. The first castle in Spain: Common historical roots Many supporters of the concept of a European civil code ask attention for our common roots in Roman law. I will not digress here on the unrealistic hope for a revival of a ius commune The time for historical interpretation is over. But I share the nostalgia for the beautiful times when we were all able to communicate in perfect Latin instead of in the barbaric vernacular in that i am using now 4. The second castle in Spain: The invisible hand It has been argued by several writers that unification of law should be left to a free movement of legal rules which will lead to competition in which only the best rules will survive. In this theory, the market mechanism is applicable to law systems and, in the view of Smits, also on individual rules of law. 3 Automatically, the parties active on the market will select the rules that they think most effective in the sense of most favouring their interests. The example is cited of the fifty states of the U. S, each having their own company law and entrepreneurs being free to incorporate their companies in the state of their choice. This will automatically attract investors to the most beneficial state which is the state with the lowest standards ( Delaware), the so-called race to the bottom. I will not go into the merits of this theory as a way of explaining certain phenomena. What interests me here is the pretension of this theory that it relieves the legislator from the task of cod ifying the most efficient rule, because it will evolve all by itself in practice The theory has been linked to Darwinist concepts, such as adaptation to the environment, natural selection and survival of the fittest. Law is seen as a living organism shaped by its environmental cond itions. As Smits states: 'A system of rules should primarily be looked at as a spontaneous order that emerges in response to the environment. In this sense the whole venture of creating a common European market automatically invokes a new, See W. Snijders, " De exportpretentie van het Nederlands Bw. De Russische ervaring, Trema 2002, October special, p. 430 ff. J. Smits, The Making of European Private Law, Antwerp/Oxford/New York 2002, pp. 59-71take into account major economic, political and social changes, was built on the foundations of the old one. It was thought to be unwise to force the judiciary to abandon familiar rules even where they fitted quite well into the new situation.12 It is clear that the QWERTY phenomenon constitutes a serious barrier to the development of European contract law. Only very determined efforts will be capable of breaking through it. This seems only possible by trying to enlarge the areas of consensus. The well-known Commission on European Contract Law (Lando) and the Study Group on a European Civil Code (Von Bar) have paid much attention to this, stressing the importance of option 2. Formulating general principles, even as soft law, may serve continuity by establishing a common core of contract law and by furnishing a basis for consensus. Others have sought the solution in building castles in Spain. I will point out two of them. 3. The first castle in Spain: Common historical roots Many supporters of the concept of a European civil code ask attention for our common roots in Roman law. I will not digress here on the unrealistic hope for a revival of a ius commune. The time for historical interpretation is over. But I share the nostalgia for the beautiful times when we were all able to communicate in perfect Latin instead of in the barbaric vernacular in that I am using now. 4. The second castle in Spain: The invisible hand It has been argued by several writers that unification of law should be left to a free movement of legal rules which will lead to competition in which only the best rules will survive. In this theory, the market mechanism is applicable to law systems and, in the view of Smits, also on individual rules of law.13 Automatically, the parties active on the market will select the rules that they think most effective in the sense of most favouring their interests. The example is cited of the fifty states of the U.S., each having their own company law and entrepreneurs being free to incorporate their companies in the state of their choice. This will automatically attract investors to the most beneficial state, which is the state with the lowest standards (Delaware), the so-called race to the bottom. I will not go into the merits of this theory as a way of explaining certain phenomena. What interests me here is the pretension of this theory that it relieves the legislator from the task of codifying the most efficient rule, because it will evolve all by itself in practice. The theory has been linked to Darwinist concepts, such as adaptation to the environment, natural selection and survival of the fittest. Law is seen as a living organism shaped by its environmental conditions. As Smits states: ‘A system of rules should primarily be looked at as a spontaneous order that emerges in response to the environment. In this sense the whole venture of creating a common European market automatically invokes a new, 12 See W. Snijders, ‘De exportpretentie van het Nederlands BW. De Russische ervaring’, Trema 2002, October special, p. 430 ff. 13 J. Smits, The Making of European Private Law, Antwerp/Oxford/New York 2002, pp. 59-71