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 108
1 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
The theoretical framework this paper presupposes is that uniformity of law in most of the cases cannot be created by just the imposition of rules in a centralist way. Private law is-at least to some extent- more than just rules and could at least to some degree be considered as part of a national legal culture. Would this be different, there would not be a need to assess any organic evolution of legal norms, other than the evolution of legislation itself law would then be nothing but a positivist artefact of some Sovereign. Moreover, it would not be a question anymore whether it is possible to predict the extent of uniformity that can be created in the future because this would then follow automatically from the famous "berichtigende Worte des gesetzgebers". Two different claims are immanent in this presupposition The first one is that the mere drafting and enacting of" Principles'"of European private law does not in itself lead to uniformity. Private law is to a certain extent harmonisation resistant even when confronted with centrally imposed rules. To which extent this is the case, is a question this paper intends to shine a brighter light on. Too radical however is the contention of Pierre Legrand that legal systems(.) have not been converging, are not converging and will not be converging. Legrand's idea of law as entirely embedded in the society and culture of a specific country has not been recognised as insight Moreover, Legrand's idea of comparative law would by many comparative lawyers not be recognised as falling within the limits of that discipline at all. F H. Lawson for example once stated that comparative law is in itself bound to be superficial"; linking law to other societal and cultural phenomena of a specific country would be impossible The second claim I implicitly make, is that a greater extent of legal uniformity than exists right now is possible, but should to a large extent come about in an organic way. This opens up a whole variety of research themes, related to other disciplines than the law and aiming at the study of cases where organic, spontaneous, orders have originated through evolution and not by creation. I previously defended that the best way of unification of law in Europe would be through a competition of legal rules. In transplanting legal rules from one country to another on a market of legal culture, the best legal rule for Europe may survive. This does not automatically imply that any rule glorifies in some instances, diversity of law may be just as good as uniformity as long as there is a free movement of legal rules, at least creating the possibility of legal change Some of the questions this theory presents us with( When will uniformity prevail? Which rule is the best to survive? Is that rule the result of a race to the bottom or not? are there differences in 5 An elaboration of this framework can be found in JAN SMITS. THE MAKING OF EUROPEAN PRIVATE LAW (2002) For the most outspoken defence of this thesis, see PIERRE LEGRAND, LE DROIT COMPARE (1999) As has been investigated by R.C. Clark, The Morphogenesis of Subchapter C: An Essay in Statutory Evolution and Reform, 87 YALE L.J. 90(1977) and R.C. Clark, The Interdisciplinary Study of legal Evolution, 90 YALE L.J. 1238(1981) JULIUS VON KIRCHMANN, DIE WERTLOSIGKEIT DER JURISPRUDENZ ALS WISSENSCHAFT(1848), 89 9C. in particular PRINCIPLES OF EUROPEAN CONTRACT LAW(Ole Lando& Hugh Beale eds, 2000) Pierre Legrand, European Legal Systems are not Converging, 45 INT'L CoMp. L.Q. 52, 61-62(1996) Cf. ALAN WATSON, LEGAL TRANSPLANTS AND EUROPEAN PRIVATE LAW(lus Commune Lectures No. 2 METRO 2000) F.H. Lawson, The Field of Comparative Law, 61 JURID. REV. 16(1949) I3 Jan Smits, A European Private Law as a Mixed Legal System, 5 MAASTRICHT JOURNAL OF EUROPEAN AND COMPARATIVE LAW [M.J. 328(1998) Cf Ugo Mattei, Eficiency in Legal Transplants: An Essay in Comparative Law and Economics, 1994 INTERNATIONAL REVIEW OF LAW AND ECONOMICS [L.R. L.E. ]3
2 The theoretical framework this paper presupposes5 is that uniformity of law in most of the cases cannot be created by just the imposition of rules in a centralist way. Private law is – at least to some extent – more than just rules and could at least to some degree be considered as part of a national legal culture.6 Would this be different, there would not be a need to assess any organic evolution of legal norms, other than the evolution of legislation itself7 ; law would then be nothing but a positivist artefact of some Sovereign. Moreover, it would not be a question anymore whether it is possible to predict the extent of uniformity that can be created in the future because this would then follow automatically from the famous “berichtigende Worte des Gesetzgebers”.8 Two different claims are immanent in this presupposition. The first one is that the mere drafting and enacting of “Principles” of European private law9 does not in itself lead to uniformity. Private law is to a certain extent harmonisation resistant, even when confronted with centrally imposed rules. To which extent this is the case, is a question this paper intends to shine a brighter light on. Too radical however is the contention of Pierre Legrand that “legal systems (…) have not been converging, are not converging and will not be converging.”10 Legrand’s idea of law as entirely embedded in the society and culture of a specific country has not been recognised as insightful.11 Moreover, Legrand’s idea of comparative law would by many comparative lawyers not be recognised as falling within the limits of that discipline at all. F.H. Lawson for example once stated that comparative law is in itself “bound to be superficial”; linking law to other societal and cultural phenomena of a specific country would be impossible.12 The second claim I implicitly make, is that a greater extent of legal uniformity than exists right now is possible, but should to a large extent come about in an organic way. This opens up a whole variety of research themes, related to other disciplines than the law and aiming at the study of cases where organic, spontaneous, orders have originated through evolution and not by creation. I previously defended that the best way of unification of law in Europe would be through a competition of legal rules.13 In transplanting legal rules from one country to another on a “market of legal culture”,14 the best legal rule for Europe may survive. This does not automatically imply that any rule glorifies: in some instances, diversity of law may be just as good as uniformity as long as there is a free movement of legal rules, at least creating the possibility of legal change. Some of the questions this theory presents us with (When will uniformity prevail? Which rule is the best to survive? Is that rule the result of a “race to the bottom” or not? Are there differences in 5 An elaboration of this framework can be found in JAN SMITS, THE MAKING OF EUROPEAN PRIVATE LAW (2002). 6 For the most outspoken defence of this thesis, see PIERRE LEGRAND, LE DROIT COMPARÉ (1999). 7 As has been investigated by R.C. Clark, The Morphogenesis of Subchapter C: An Essay in Statutory Evolution and Reform, 87 YALE L.J. 90 (1977) and R.C. Clark, The Interdisciplinary Study of Legal Evolution, 90 YALE L.J. 1238 (1981). 8 JULIUS VON KIRCHMANN, DIE WERTLOSIGKEIT DER JURISPRUDENZ ALS WISSENSCHAFT (1848), 89. 9 Cf. in particular PRINCIPLES OF EUROPEAN CONTRACT LAW (Ole Lando & Hugh Beale eds., 2000). 10 Pierre Legrand, European Legal Systems are not Converging, 45 INT’L & COMP. L.Q. 52, 61-62 (1996). 11 Cf. ALAN WATSON, LEGAL TRANSPLANTS AND EUROPEAN PRIVATE LAW (Ius Commune Lectures No. 2, METRO 2000). 12 F.H. Lawson, The Field of Comparative Law, 61 JURID. REV. 16 (1949). 13 Jan Smits, A European Private Law as a Mixed Legal System, 5 MAASTRICHT JOURNAL OF EUROPEAN AND COMPARATIVE LAW [M.J.] 328 (1998). 14 Cf. Ugo Mattei, Efficiency in Legal Transplants: An Essay in Comparative Law and Economics, 1994 INTERNATIONAL REVIEW OF LAW AND ECONOMICS [I.R.L.E.] 3
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 335
3 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
factors may indeed explain why legal transplants take place, but a concrete relationship between these factors and the way legal systems change is absent. What we need, is a theory that can explain the examples of legal transplants that Watson provides us with. Could interdisciplinary eory be of use here 4. Some Insights from Evolutionary Biology and Economics The most well known application of evolutionary theory is-of course-to be found in biology According to classical Darwinism, evolutionary change takes place through natural selection. The individual members of a species organise their lives to produce the most surviving offspring and in doing so, they necessarily adapt themselves to changing circumstances. The descent of one or more trees of life thus leads to a diversity of species through speciation, extinction and the evolving of new characteristics within these species. In Darwinism, this process of evolution by natural selection presupposes three requirements. First, there must be variation in the species (otherwise there would be no species that could better survive than others); second, the variation must concern variation in fitness(understood as the ability to survive and reproduce, some species being more able to adapt themselves to changing circumstances than others), third the charac teristics that are constituent for the fitness of the species must be inherited(otherwise, there could be no evolution of the species as such). Only with these three constituents, a"struggle for life" can originate As to the evolution of legal rules in Europe, it is possible to transplant the first two of these requirements: also in European private law, different rules exist as to the solving of identical cases and presumably not all of these rules are as"fit as others to carry out their task. Much of the present day rules in the various European countries are the result of a long evolution, adapting them to the environment these rules had to operate in. According to evolutionary theory, other rules that once existed in these countries must have been eliminated in this process of natural selection and any change of the environment in the future would -again-lead to adaptation of the present rules. The third requirement of Darwinism(the inheritability of characteristics)is more problematic in the context of law because of the simple fact that descendants that take over the genes of the previous species do not exist. As we shall see, however, other disciplines that make use of evolutionary analysis(in particular economics)solve this problem by identifying analogue Apart from these constituents of evolution, theoretical biology distinguishes between the different possible causes of evolution. In this respect, natural selection is only one of them, alongside with mutation, migration, recombination and mating. What is important for the 26 Robin Evans-Jones, Receptions of Law, Mixed Legal Systems and the Myth of the Genius of Scots Private Law, 114 LAW QUARTERLY REVIEW [L Q.R. 228(1998) As is rightly stressed by Esin Orucu, Mixed and Mixing Systems: a Conceptual Search, in 349 STUDIES IN LEGAL SYSTEMS: MIXED AND MIXING(Esin Orucu et al. eds, 1996) Cf. on evolutionary biology ELLIOTT SOBER, PHILOSOPHY OF BIOLOGY(1993); J. MAYNARD SMITH, THE THEORY OF EVOLUTION (1993)and dOUGLAS J FUTUYMA, EVOLUTIONARY BIOLOGY(3rd ed. 1998) 29 William H. Rodgers, Law and Biology, in THE NEW PALGRAVE DICTIONARY OF ECONOMICS AND THE LAW,VOL.I451(1998) 50 SOBER, supra note 28, at9 ld at 18
4 factors may indeed explain why legal transplants take place, but a concrete relationship between these factors and the way legal systems change is absent. What we need, is a theory that can explain the examples of legal transplants that Watson provides us with. Could interdisciplinary evolutionary theory be of use here? 4. Some Insights from Evolutionary Biology and Economics The most well known application of evolutionary theory is – of course – to be found in biology.28 According to classical Darwinism, evolutionary change takes place through natural selection. The individual members of a species organise their lives to produce the most surviving offspring and in doing so, they necessarily adapt themselves to changing circumstances.29 The descent of one or more trees of life thus leads to a diversity of species through speciation, extinction and the evolving of new characteristics within these species. In Darwinism, this process of evolution by natural selection presupposes three requirements.30 First, there must be variation in the species (otherwise there would be no species that could better survive than others); second, the variation must concern variation in fitness (understood as the ability to survive and reproduce, some species being more able to adapt themselves to changing circumstances than others), third the characteristics that are constituent for the fitness of the species must be inherited (otherwise, there could be no evolution of the species as such). Only with these three constituents, a “struggle for life” can originate. As to the evolution of legal rules in Europe, it is possible to transplant the first two of these requirements: also in European private law, different rules exist as to the solving of identical cases and presumably not all of these rules are as “fit” as others to carry out their task. Much of the present day rules in the various European countries are the result of a long evolution, adapting them to the environment these rules had to operate in. According to evolutionary theory, other rules that once existed in these countries must have been eliminated in this process of natural selection and any change of the environment in the future would – again – lead to adaptation of the present rules. The third requirement of Darwinism (the inheritability of characteristics) is more problematic in the context of law because of the simple fact that descendants that take over the genes of the previous species do not exist. As we shall see, however, other disciplines that make use of evolutionary analysis (in particular economics) solve this problem by identifying analogues of genes. Apart from these constituents of evolution, theoretical biology distinguishes between the different possible causes of evolution. In this respect, natural selection is only one of them, alongside with mutation, migration, recombination and mating.31 What is important for the 26 Robin Evans-Jones, Receptions of Law, Mixed Legal Systems and the Myth of the Genius of Scots Private Law, 114 LAW QUARTERLY REVIEW [L.Q.R.] 228 (1998). 27 As is rightly stressed by Esin Örücü, Mixed and Mixing Systems: a Conceptual Search, in 349 STUDIES IN LEGAL SYSTEMS: MIXED AND MIXING (Esin Örücü et al. eds., 1996). 28 Cf. on evolutionary biology ELLIOTT SOBER, PHILOSOPHY OF BIOLOGY (1993); J. MAYNARD SMITH, THE THEORY OF EVOLUTION (1993) and DOUGLAS J. FUTUYMA, EVOLUTIONARY BIOLOGY (3rd ed. 1998). 29 William H. Rodgers, Law and Biology, in THE NEW PALGRAVE DICTIONARY OF ECONOMICS AND THE LAW, VOL. II 451 (1998). 30 SOBER, supra note 28, at 9. 31 Id at 18
purpose of this contribution, is the discussion on what actually causes evolution(" Why do polar bears have white fur and other bears brown fur? ) This discussion on what is called adaptationism is about the importance of natural selection in the process of evolution. What is the actual power of natural selection? The question is important for the evolution of law because it may give us some insight into the question why it is that some legal rules survive and others do not. Biology teaches us that as to the direction of the evolution, adaptation is the main principle Organisms fit themselves into niches of viability offered by their environments. They have to in order to survive the pressure of selective competition from other organisms. What may be of interest for the study of law is that the direction of adaptation is usually toward simplicity, in particular when homogenisation of the environment reduces the number of distinct niches available. The movement is toward complexity when there are only a few species that proliferate within a new environment with many unfilled niches. I will come back to this point later Theoretical biologist Sober provides us with a good insight into another discussion. To predict what the mechanism of evolution leads to, it is possible to make use of simple models of the selection process(for example in case of the evolution of running speed in zebras, fast zebras may survive over slow zebras), taking into account only natural selection and not mutation or other evolutionary processes and abstaining from the fact that running speed may not evolve independently of other characteristics the zebra has. Adaptationists would say that any refinement of the simple model does not affect the prediction of how the running speed would evolve. If this were also true for the law, it would mean that selection of legal rules is a straightforward process, not hampered by other factors than the pursuit of finding the best rule available. As we shall see, however this is not the case in the real world As Darwin intended a theory on how life evolves, other scholars have expanded his theory to other disciplines. Among these are history, psychology, political science, history of science,sociology,3 ethics, 0 linguistics# and economics. In this section, I will focus on Also in this application of evolutionary theory, the idea of an ld a 33 Jack Hirshleifer, Evolutionary Models in Economics and Law, in EVOLUTIONARY ECONOMICS 205(Ulrich Witt ed, 1993) 34 SOBER, supra note 28, at 119 55 THE RETURN OF SCIENCE: EVOLUTIONARY IDEAS AND HISTORY(David Gary Shaw Philip Pomper,eds 1999) HENRY PLOTKIN, EVOLUTION IN MIND: AN INTRODUCTION TO EVOLUTIONARY PSYCHOLOGY(1997) F.A. HAYEK, LAW, LEGISLATION AND LIBERTY (1973-1979) KARL R. POPPER, OBJECTIVE KNOWLEDGE: AN EVOLUTIONARY APPROACH (1979) 39 On the influence of Herbert Spencer cf. GEOFFREY M. HODGSON, ECONOMICS AND EVOLUTION 81(1993) On socio-biology and the claims it makes about explaining morality, cf. SOBER, supra note 28, at 202; see notably the groundwork laid by E.O. WILSON, SOCIOBIOLOGY: THE NEW SYNTHESIS(1975)and R ALEXANDER, THE BIOLOGY OF MORAL SYSTEMS (1987) For an overview cf. JOHN MAYNARD SMITH EORS SZATHMARY, THE ORIGINS OF LIFE: FROM THE BIRTH OF LIFE TO THE ORIGIN OF LANGUAGE(1999); J. MAYNARD SMITH, EVOLUTION AND THE THEORY OF GAMES (1982); JOHN H. BECKSTROM, DARWINISM APPLIED: EVOLUTIONARY PATHS TO SOCIAL GOALS(1993) INSTITUTIONS: ON EVOLUTIONARY ECONOMICS AND THE EVOLUTION OF ECONOMICS(1999): Witt(ed ) supra note 33; HODGSON, supra note 39. On the relationship with biology cf. John Foster, Biology and Economics. in THE ELGAR COMPANION TO INSTITUTIONAL AND EVOLUTIONARY ECONOMICS A-K 23 5
5 purpose of this contribution, is the discussion on what actually causes evolution (“Why do polar bears have white fur and other bears brown fur?”). This discussion on what is called adaptationism is about the importance of natural selection in the process of evolution. What is the actual power of natural selection?32 The question is important for the evolution of law because it may give us some insight into the question why it is that some legal rules survive and others do not. Biology teaches us that as to the direction of the evolution, adaptation is the main principle. Organisms fit themselves into niches of viability offered by their environments. They have to in order to survive the pressure of selective competition from other organisms. What may be of interest for the study of law is that the direction of adaptation is usually toward simplicity, in particular when homogenisation of the environment reduces the number of distinct niches available. The movement is toward complexity when there are only a few species that proliferate within a new environment with many unfilled niches.33 I will come back to this point later. Theoretical biologist Sober provides us with a good insight into another discussion.34 To predict what the mechanism of evolution leads to, it is possible to make use of simple models of the selection process (for example in case of the evolution of running speed in zebras, fast zebras may survive over slow zebras), taking into account only natural selection and not mutation or other evolutionary processes and abstaining from the fact that running speed may not evolve independently of other characteristics the zebra has. Adaptationists would say that any refinement of the simple model does not affect the prediction of how the running speed would evolve. If this were also true for the law, it would mean that selection of legal rules is a straightforward process, not hampered by other factors than the pursuit of finding the best rule available. As we shall see, however, this is not the case in the real world. As Darwin intended a theory on how life evolves, other scholars have expanded his theory to other disciplines. Among these are history,35 psychology,36 political science,37 history of science,38 sociology,39 ethics,40 linguistics41 and economics. In this section, I will focus on evolutionary economics.42 Also in this application of evolutionary theory, the idea of an 32 Id at 119. 33 Jack Hirshleifer, Evolutionary Models in Economics and Law, in EVOLUTIONARY ECONOMICS 205 (Ulrich Witt ed., 1993). 34 SOBER, supra note 28, at 119. 35 THE RETURN OF SCIENCE: EVOLUTIONARY IDEAS AND HISTORY (David Gary Shaw & Philip Pomper, eds., 1999). 36 HENRY PLOTKIN, EVOLUTION IN MIND: AN INTRODUCTION TO EVOLUTIONARY PSYCHOLOGY (1997). 37 F.A. HAYEK, LAW, LEGISLATION AND LIBERTY (1973-1979). 38 KARL R. POPPER, OBJECTIVE KNOWLEDGE: AN EVOLUTIONARY APPROACH (1979). 39 On the influence of Herbert Spencer cf. GEOFFREY M. HODGSON, ECONOMICS AND EVOLUTION 81 (1993). 40 On socio-biology and the claims it makes about explaining morality, cf. SOBER, supra note 28, at 202; see notably the groundwork laid by E.O. WILSON, SOCIOBIOLOGY: THE NEW SYNTHESIS (1975) and R. ALEXANDER, THE BIOLOGY OF MORAL SYSTEMS (1987). 41 For an overview cf. JOHN MAYNARD SMITH & EORS SZATHMARY, THE ORIGINS OF LIFE: FROM THE BIRTH OF LIFE TO THE ORIGIN OF LANGUAGE (1999); J. MAYNARD SMITH, EVOLUTION AND THE THEORY OF GAMES (1982); JOHN H. BECKSTROM, DARWINISM APPLIED: EVOLUTIONARY PATHS TO SOCIAL GOALS (1993). 42 The extensive literature on evolutionary economics includes GEOFFREY M. HODGSON, EVOLUTION AND INSTITUTIONS: ON EVOLUTIONARY ECONOMICS AND THE EVOLUTION OF ECONOMICS (1999); Witt (ed.), supra note 33; HODGSON, supra note 39. On the relationship with biology cf. John Foster, Biology and Economics, in THE ELGAR COMPANION TO INSTITUTIONAL AND EVOLUTIONARY ECONOMICS A-K 23