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 3353 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