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 66 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 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.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