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) 77 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)