SCOTLAND ASA MIXED JURISDICTION AND THE DEVELOPMENT OF EUROPEAN PRIVATE LAW: Is There Something to Learn from Evolutionary Theory? Jan smits Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or othenwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and room use Introduction The aim of this contribution is to consider whether there are any lessons to be learnt from the development of mixed jurisd ictions, such as Scots law, for the emergence of a uniform private law for Europe. Or, to put it otherwise: Can mixed jurisd ictions be a model for the future developments within the European Union? This question is, of course, not a new one model, also outside the European context, is even much older. Hector Mac Queen n his w as a It has received more and more interest over the last few years The very idea of Scots law as a Utrecht lus Commune lecture 2 traces the idea back to 1924. when the famous French comparatist Levy Ullmann noted that"Scots law gives us a picture of what will be some day the law of the civilised nations, namely a combination between the Anglo-Saxon and the Continental system'. In the recent debate on the possibilities of attaining a uniform Europea private law, several authors have pointed to the experience Scots law can offer in this respect In drafting sets of principles of European private law, Scots law has already played an important role. 4 This contribution does not focus on the many different reasons why it could be useful to look at Scots law as a model for the development of private law in Europe. I want to focus on the idea of Scots law as being able to make a selection for the best rules of different legal trad itions. After all, the often held belief is not that Scots law is of importance just because Professor of European Private Law, Maastricht University. I have as much as possible reta ined the text of the original lecture held in Edinburgh on 20 June 2003 2 Hector L MacQueen, Scots Law and the Road to the New lus Commune, lus Commune Lectures on European Private Law 1, Maastricht 2000, p 2(also published in EJCL, vol. 4. 4(Decem ber 2000) tp:/www.eiclorg/44/art44-1htmP 3 Cf the overview in Jan Smits, Introduction: Mixed Legal Systems and European Private Law, in: Jan Smits(ed ) The Contribution of Mixed Legal Systems to European Private Law(Antwerp: Intersentia, 2001), pp 1-13 In particular in the case of the PECL(O. Lando H. Beale(eds ) Principles of European Contract Law, Parts I andll(The Hague: Kluwer Law International, 2000) O. Lando, E. Clive, A Prum r Zimmermann(eds ) Principles of European Contract Law, Part Ill (The Hague: Kluwer Law International 2003))and the PETL D.J. Hayton,S.CJ.J Kortmann& H.L. E. Verhagen(eds ) Principles of European Trust Law(The Hague: Kluwer Law International, 1999)
1 SCOTLAND AS A MIXED JURISDICTION AND THE DEVELOPMENT OF EUROPEAN PRIVATE LAW: Is There Something to Learn from Evolutionary Theory? Jan Smits1 Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or otherwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use. 1. Introduction The aim of this contribution is to consider whether there are any lessons to be learnt from the development of mixed jurisdictions, such as Scots law, for the emergence of a uniform private law for Europe. Or, to put it otherwise: Can mixed jurisdictions be a model for the future developments within the European Union? This question is, of course, not a new one. It has received more and more interest over the last few years. The very idea of Scots law as a model, also outside the European context, is even much older. Hector MacQueen in his Utrecht Ius Commune lecture,2 traces the idea back to 1924, when the famous French comparatist Lévy Ullmann noted that ‘Scots law gives us a picture of what will be some day the law of the civilised nations, namely a combination between the Anglo-Saxon and the Continental system’. In the recent debate on the possibilities of attaining a uniform European private law, several authors have pointed to the experience Scots law can offer in this respect.3 In drafting sets of principles of European private law, Scots law has already played an important role.4 This contribution does not focus on the many different reasons why it could be useful to look at Scots law as a model for the development of private law in Europe. I want to focus on the idea of Scots law as being able to make a selection for the best rules of different legal traditions. After all, the often held belief is not that Scots law is of importance just because 1 Professor of European Private Law, Maastricht University. I have as much as possible retained the text of the original lecture held in Edinburgh on 20 June 2003. 2 Hector L. MacQueen, Scots Law and the Road to the New Ius Commune, Ius Commune Lectures on European Private Law 1, Maastricht 2000, p. 2 (also published in EJCL, vol. 4.4 (December 2000), <http://www.ejcl.org/44/art44-1.html>. 3 Cf. the overview in Jan Smits, Introduction: Mixed Legal Systems and European Private Law, in: Jan Smits (ed.), The Contribution of Mixed Legal Systems to European Private Law (Antwerp: Intersentia, 2001), pp. 1-13. 4 In particular in the case of the PECL (O. Lando & H. Beale (eds.), Principles of European Contract Law, Parts I and II (The Hague: Kluwer Law International, 2000); O. Lando, E. Clive, A. Prüm & R. Zimmermann (eds.), Principles of European Contract Law, Part III (The Hague: Kluwer Law International, 2003)) and the PETL (D.J. Hayton, S.C.J.J. Kortmann & H.L.E. Verhagen (eds.), Principles of European Trust Law (The Hague: Kluwer Law International, 1999))
there is some mixture of civil law and common law, but because this mixture is one of quality supposedly the best rules of both the civil law and the common law trad itions were selected by(in particular)the courts.5 The famous saying of Lord Cooper that Scots law went through a process of ' critically choosing and picking ' illustrates this well. In the following, I will first pay some attention to the idea of selecting rules and try to show that this method is gaining importance. Then, I will contrast the theoretical idea with the practice in the Scots and South African courts. This practice shows that selection of rules may be understood, not as a matter of quality of those rules, but rather along the lines of evolutionary theory With this focus on evolutionary theory, I intend to give a new dimension to the debate on the emergence of European private law. Usually, the question is asked whether a uniform private law for Europe is desirable. Here, the perspective is different: Is it likely that such a surprising since it can only be answered by looking at theories outside law about ho o uniform law will develop? This question has received little attention so far, which is not institutions tend to develop. In order to do this, we need some input from evolutionary theory 2. The selection of rules: a theoretical framework There is no easy answer to the question how to come to a uniform or harmonised private law for Europe. It is clear, however, that any method has to find a way to diminish the total amount of rules at present available in Europe's various legal systems. Often, similar questions are answered in different ways in each of these systems. Most of the methods that were developed by legal scholars differ as to how to select the 'best rules. Generally speaking, these methods can be distinguished from each other in two different ways. The first is the way in which the selection of the relevant rules takes place, the second is the way which the selected rules subsequently become part of the national legal systems As to the way of selecting rules, a popular view holds that the rules for a future European private law should be newly formulated rules. This is also the approach adopted by the drafters of the European principles of private law, as practised by the drafters of the Principles of European Contract Law and the collaborators within the European Civil Code project. Here, new principles'are formulated because they are to constitute the common core of Europe's legal systems or are supposed to be of high quality. This selecting method i usually associated with imposition of these rules on the European Member States: once the by a new "European legal system. Thus, it is the drafting committee(such as the gal systems principles have been drafted, they can be implemented by replacing the national Commission on European Contract Law) that decides what the future law will be. However this is not necessarily the case: a set of principles of contract law may also be used as ar alternative to national legal systems, leaving it to the contracting parties to opt in to this set or to the courts to make use of it in decid ing a case Debated, however, by Robin Evans-Jones, Receptions of Law. Mixed Legal Systems and the Myth of the Genius of Scots Private Law, Law quarterly Review 1998, pp. 228 ff (Antwe, For an overview of the various options, see Jan Sm its, The Making of European Private Law en: Intersentia, 2002), pp 6 ff. On this project, see C. Von Bar, Le groupe d Etudes sur un Code Civil Europeen, Revue Internationale de Droit Compare 2001, pp. 127 ff
2 there is some mixture of civil law and common law, but because this mixture is one of quality: supposedly the best rules of both the civil law and the common law traditions were selected by (in particular) the courts.5 The famous saying of Lord Cooper that Scots law went through a process of ‘critically choosing and picking’ illustrates this well. In the following, I will first pay some attention to the idea of selecting rules and try to show that this method is gaining importance. Then, I will contrast the theoretical idea with the practice in the Scots and South African courts. This practice shows that selection of rules may be understood, not as a matter of quality of those rules, but rather along the lines of evolutionary theory. With this focus on evolutionary theory, I intend to give a new dimension to the debate on the emergence of European private law. Usually, the question is asked whether a uniform private law for Europe is desirable. Here, the perspective is different: Is it likely that such a uniform law will develop? This question has received little attention so far, which is not surprising since it can only be answered by looking at theories outside law about how institutions tend to develop. In order to do this, we need some input from evolutionary theory. 2. The selection of rules: A theoretical framework There is no easy answer to the question how to come to a uniform or harmonised private law for Europe.6 It is clear, however, that any method has to find a way to diminish the total amount of rules at present available in Europe’s various legal systems. Often, similar questions are answered in different ways in each of these systems. Most of the methods that were developed by legal scholars differ as to how to select the ‘best’ rules. Generally speaking, these methods can be distinguished from each other in two different ways. The first is the way in which the selection of the relevant rules takes place; the second is the way in which the selected rules subsequently become part of the national legal systems. As to the way of selecting rules, a popular view holds that the rules for a future European private law should be newly formulated rules. This is also the approach adopted by the drafters of the European principles of private law, as practised by the drafters of the Principles of European Contract Law and the collaborators within the European Civil Code project.7 Here, new ‘principles’ are formulated because they are to constitute the common core of Europe’s legal systems or are supposed to be of high quality. This selecting method is usually associated with imposition of these rules on the European Member States: once the principles have been drafted, they can be implemented by replacing the national legal systems by a new ‘European’ legal system. Thus, it is the drafting committee (such as the Commission on European Contract Law) that decides what the future law will be. However, this is not necessarily the case: a set of principles of contract law may also be used as an alternative to national legal systems, leaving it to the contracting parties to opt in to this set, or to the courts to make use of it in deciding a case. 5 Debated, however, by Robin Evans-Jones, Receptions of Law: Mixed Legal Systems and the Myth of the Genius of Scots Private Law, Law Quarterly Review 1998, pp. 228 ff. 6 For an overview of the various options, see Jan Smits, The Making of European Private Law (Antwerpen: Intersentia, 2002), pp. 6 ff. 7 On this project, see C. Von Bar, Le Groupe d’Études sur un Code Civil Européen, Revue Internationale de Droit Comparé2001, pp. 127 ff
Another way of selecting the applicable rules is to leave it primarily to the market which rules should be adopted. In this method, it is more likely that the already existing rules of national legal systems will be chosen by the contracting parties(or the courts )as the applicable law. 8 This method is usually associated withsoft law harmonisation: leaving it to the legal actors themselves means that harmonisation can only be a slow process that is completely dependent on the market. Some coordination of this process is possible however I want to add that the idea of a free selection of rules is gaining more and more importance, even among the European institutions. In the european Commissions recent action plan on a more coherent European contract law, 0 for example, the Commission set out its plans for the further development of contract law in Europe. The most important measures proposed in this action plan are the following. First, it is proposed to solve the problems tha are created by the intervention by the EC itself: the existing directives on contract law are often vague or inconsistent with each other. It is, of course, wise to remedy these deficiencies in the acquis that the eC has created itself. Second, and this is important for this contribution, the Commission proposes to introduce an optional instrumenton European contract law This may be a contract code for cross-border transactions that the parties can adhere to if the so wish. This Code thus provides the parties with a new legal regime, next to the existing national legal systems and next to the regime of the CISG. Selection of what is considered best, is thus left to practice: it is up to the parties to decide whether they want to make use of this new regime or not It is now time to put these ideas about the selection of rules to the test. If one looks at mixed legal systems, such as Scots and South African law, is it really true that a choice was made for the better law and how was this choice made? 3. The selection of rules in practice: The experience of Scots and South African law What are the facts in mixed legal systems such as Scots law as to the selection of rules? Is it true that choices were made for the better law(which of course presupposes that some solutions are worse than others If one looks at Scots contract law, what one sees is indeed that choices have often been made for rules from either the civil law or the common law trad ition. These facts are well known. In the field of contracts, Scots law did not adopt the English consideration doctrine. Furthermore, it did not adopt the idea of specific performance as only a secondary remedy, as it is in English law: instead, a specific implement is, as it is on the continent, the primary action. On the other hand, the Scots accepted the English postal rule and the breach of contract by repud iation. also the idea of the undisclosed principal unknown to Roman-Dutch law, was taken from the English. In property law, the legitimate portion was abolished. One can go on and on in this way Are these really choices for the better'rules? This is a question that cannot be Cf Smits, The Making of European Private Law, pp 59 ff Cf. Arnald J Kanning, Review, Modern Law Review 2003, pp 650 ff. Communication from the Commission to the European Parliament and the Council, A More Coherent European Contract Law. An Action Plan, 12 February 2003, COM(2003)68 final, also availableat com/cnc/2003/com 2003 0068en0L pdf>
3 Another way of selecting the applicable rules is to leave it primarily to the market which rules should be adopted. In this method, it is more likely that the already existing rules of national legal systems will be chosen by the contracting parties (or the courts) as the applicable law.8 This method is usually associated with ‘soft law’ harmonisation: leaving it to the legal actors themselves means that harmonisation can only be a slow process that is completely dependent on the market. Some coordination of this process is possible, however.9 I want to add that the idea of a free selection of rules is gaining more and more importance, even among the European institutions. In the European Commission’s recent action plan on a more coherent European contract law,10 for example, the Commission set out its plans for the further development of contract law in Europe. The most important measures proposed in this action plan are the following. First, it is proposed to solve the problems that are created by the intervention by the EC itself: the existing directives on contract law are often vague or inconsistent with each other. It is, of course, wise to remedy these deficiencies in the acquis that the EC has created itself. Second, and this is important for this contribution, the Commission proposes to introduce an ‘optional instrument’ on European contract law. This may be a contract code for cross-border transactions that the parties can adhere to if they so wish. This Code thus provides the parties with a new legal regime, next to the existing national legal systems and next to the regime of the CISG. Selection of what is considered best, is thus left to practice: it is up to the parties to decide whether they want to make use of this new regime or not. It is now time to put these ideas about the selection of rules to the test. If one looks at mixed legal systems, such as Scots and South African law, is it really true that a choice was made for the ‘better’ law and how was this choice made? 3. The selection of rules in practice: The experience of Scots and South African law What are the facts in mixed legal systems such as Scots law as to the selection of rules? Is it true that choices were made for the better law (which of course presupposes that some solutions are worse than others)? If one looks at Scots contract law, what one sees is indeed that choices have often been made for rules from either the civil law or the common law tradition. These facts are well known. In the field of contracts, Scots law did not adopt the English consideration doctrine. Furthermore, it did not adopt the idea of specific performance as only a secondary remedy, as it is in English law: instead, a specific implement is, as it is on the continent, the primary action. On the other hand, the Scots accepted the English postal rule and the breach of contract by repudiation. Also the idea of the undisclosed principal, unknown to Roman-Dutch law, was taken from the English. In property law, the legitimate portion was abolished. One can go on and on in this way. Are these really choices for the ‘better’ rules? This is a question that cannot be 8 Cf. Smits, The Making of European Private Law, pp. 59 ff. 9 Cf. Arnald J. Kanning, Review, Modern Law Review 2003, pp. 650 ff. 10 Communication from the Commission to the European Parliament and the Council, A More Coherent European Contract Law: An Action Plan, 12 February 2003, COM(2003) 68 final, also available at <http://europa.eu.int/eur-lex/en/com/cnc/2003/com2003_0068en01.pdf>
answered without a criterion to decide what is better. It is very difficult to find a criterion that everyone will agree upon. In South African law, during the 1950s and 1960s, when Purism reigned, the decisive criterion for the courts was whether the rule was civil law(even more was Roman-Dutch law)or not. There is a famous statement by the South african judge va den heever: "Since we observe the laws of Holland we must exclude the romanists of other countries, as well as the pragmatists from neighbouring regions'(like the Frisians or the Germans). This even led to the replacement, in 1963, of the well-developed English doctrine of nuisance( that had been established law at that moment in time for more than 80 years) by the Roman-Dutch law on rights of neighbours. In doing so, the court commented that it was such a pity that a fully worked-out system had to be replaced by an admittedly fragmentary treatment. 2 But it was the only thing the court felt it could do if it wanted to give effect to its preference for Roman-Dutch law. This is the worst result a mixed legal system can achieve. Of course, the criterion whether a rule is civil law or common law, can in a mixed system, never be the criterion for decid ing what rule should be adopted Are there any other criteria to decide which rule is best? It is indeed possible to propose such criteria, such as the clarity or transparency of the rule, its consistency with the prevailing legal system, the extent to which it gives effect to the prevailing socio-economic order, et cetera. In my view, however, it is simply impossible to hold the civil law solution or the common law solution to be the better one on the basis of any other criterion than that this solution is selected by the market. In this respect, the spontaneous process in which some rules are chosen and others are not is the only criterion we have. It is useful to make a comparison here with the world of the animals. Just as the consideration doctrine is not any better than the causa doctrine, the polar bear is not any better than the lion or is the Indian elephant inferior to the African elephant. These animals, just like legal rules, are just differe i should add that if this were otherwise, if there were inherently better solutions, it would mean that those solutions would have been chosen in all mixed legal systems. This however, is clearly not the case. The legitimate portion, for example, was abolished in South African law, but it still exists in Guyana. 3 Likewise, there were d ifferent choices made in Scots law and South african law although i admit sometimes similar choices were made as If one accepts the line of reasoning developed in the above, it means that there are not any inherently ' better'rules in civil law than in common law and vice versa. There are only different solutions. The consequence is that the existing law of the mixed systems must have emerged for other reasons than just the quality of the rule. Now, I should admit that there is probably no monolithic explanation for the taking-over of certain elements from another legal system: several factors play a role here, includ ing the belief of the courts that one solution is superior to the other and the factor of economic power(it is not a coincidence that most of the influence of English law on Scots law took place in the 19th century, in the heyday of the English empire). Still, it seems worthwhile to look into one specific theory that may explain these developments and that was not tested before. I am referring to a theory that was Van den Heever JA, Tjollo Ateljees(Eins) Bpk v Sma 1949 1 South African Law Reports 856(AD) 865 Smits, The Making of European Private Law, p. 170 On how the Republic of Guyana still retains Roman-Dutch law in the fields of property law and succession,Smits, The Making of European Private Law, p. 139 4
4 answered without a criterion to decide what is better. It is very difficult to find a criterion that everyone will agree upon. In South African law, during the 1950s and 1960s, when Purism reigned, the decisive criterion for the courts was whether the rule was civil law (even more, was Roman-Dutch law) or not. There is a famous statement by the South African judge Van den Heever: ‘Since we observe the laws of Holland, we must exclude the Romanists of other countries, as well as the pragmatists from neighbouring regions’ (like the Frisians or the Germans).11 This even led to the replacement, in 1963, of the well-developed English doctrine of nuisance (that had been established law at that moment in time for more than 80 years) by the Roman-Dutch law on rights of neighbours. In doing so, the court commented that it was such a pity that a fully worked-out system had to be replaced by an admittedly fragmentary treatment.12 But it was the only thing the court felt it could do if it wanted to give effect to its preference for Roman-Dutch law. This is the worst result a mixed legal system can achieve. Of course, the criterion whether a rule is civil law or common law, can, in a mixed system, never be the criterion for deciding what rule should be adopted. Are there any other criteria to decide which rule is best? It is indeed possible to propose such criteria, such as the clarity or transparency of the rule, its consistency with the prevailing legal system, the extent to which it gives effect to the prevailing socio-economic order, et cetera. In my view, however, it is simply impossible to hold the civil law solution or the common law solution to be the better one on the basis of any other criterion than that this solution is selected by the market. In this respect, the spontaneous process in which some rules are chosen and others are not is the only criterion we have. It is useful to make a comparison here with the world of the animals. Just as the consideration doctrine is not any better than the causa doctrine, the polar bear is not any better than the lion or is the Indian elephant inferior to the African elephant. These animals, just like legal rules, are just different. I should add that if this were otherwise, if there were inherently better solutions, it would mean that those solutions would have been chosen in all mixed legal systems. This, however, is clearly not the case. The legitimate portion, for example, was abolished in South African law, but it still exists in Guyana.13 Likewise, there were different choices made in Scots law and South African law, although I admit sometimes similar choices were made as well. If one accepts the line of reasoning developed in the above, it means that there are not any inherently ‘better’ rules in civil law than in common law and vice versa. There are only different solutions. The consequence is that the existing law of the mixed systems must have emerged for other reasons than just the quality of the rule. Now, I should admit that there is probably no monolithic explanation for the taking-over of certain elements from another legal system: several factors play a role here, including the belief of the courts that one solution is superior to the other and the factor of economic power (it is not a coincidence that most of the influence of English law on Scots law took place in the 19th century, in the heyday of the English empire). Still, it seems worthwhile to look into one specific theory that may explain these developments and that was not tested before. I am referring to a theory that was 11 Van den Heever JA, Tjollo Ateljees (Eins) Bpk v. Small 1949 1 South African Law Reports 8 56 (AD), 865. 12 Smits, The Making of European Private Law, p. 170. 13 On how the Republic of Guyana still retains Roman-Dutch law in the fields of property law and succession, Smits, The Making of European Private Law, p. 139
developed initially by Charles Darwin, one of the most famous former students of the University of Edinburgh. His ideas on evolution and survival of the fittest are still of crucial importance today in many other disciplines than just biology. These disciplines include psychology, political science, economics and even linguistics. 4 What the evolutionary of a conscious design should be abandoned in favour of the idea of selection by the ure or framework in all these disciplines implies is that the idea of an unalterable human nature or environment, dependent on two different factors, namely nature and nurture If one transplants this idea to law, one finds that what is important in explaining, or even pred icting, legal development is the emvironment in which the rules have to function (nurture)and the characteristics of the rules themselves(nature) The interaction between the two is what might explain legal development. The importance of this approach is illustrated by two 'evolutionary lessons' that I will apply to Scots and South African law and to the further development of private law in Europe 4. The selection of rules: Restraints on choosing? The first question I want to address is whether it is possible to select rules on the basis of the inherent qualities of those rules. If one looks at the present debate on the emergence of a European private law, the answer seems to be affirmative. The prevailing idea is that the European Member States, but also contracting parties, will choose for the rules that best reflect their interests. Regarding the Principles of European Contract Law, 5 for example, many believe that these principles will be chosen by contracting parties that want to draft an ptimal contract, or by legislators(in particular those in Central and Eastern Europe)that have to draft new national codes of contract law. The reason for this is that these principles are of high quality: they form what, accord ing to eminent European experts, is the desired contract law for Europe If one looks at this high-stemmed ideal from the evolutionary perspective, it becomes clear that reality is different. What evolutionary theory emphasises is that not only the content (high quality of the rules is decisive for their being taken over in a legal system, but also the environment in which these rules have to operate. This environment consists of the existing national legal system and this is not a new one. On the contrary, it has usually been formed over many centuries, often on the basis of coincidence and all kinds of other factors of a political, economic and cultural nature. My point is that these factors are today often a constraint on change. The standard example 6 is that of a road built a hundred years ago on the left-hand side of a river, while today it would be more advantageous to have it built on the ight-hand side, because that is where the view is nicer or where most people live now. Yet,it is highly unlikely that the road will be rebuilt. This would simply cost too much, not only in For more details, see Jan M. Smits, How to Predict the Differences in Uniformity between Different Areas of a Future European Private Law? An Evolutionary Approach, in: Ala in Marciano& Jean-Michel Josselin(eds ) The Economics of Harmonizing European Law( Cheltenham: Edward Elgar, 2002), pp 50, 53 ando Beale, Principles of European Contract Law, Parts I and ll; Lando, Clive, Prum Zimmermann, Principles of European Contract L Cf Mark J. Roe, Chaos and Evolution in Law and Economics, Harvard Law Review 109(1996), pp 641, 646 and Smits, How to Predict, p 60
5 developed initially by Charles Darwin, one of the most famous former students of the University of Edinburgh. His ideas on evolution and survival of the fittest are still of crucial importance today in many other disciplines than just biology. These disciplines include psychology, political science, economics and even linguistics.14 What the evolutionary framework in all these disciplines implies is that the idea of an unalterable human nature or of a conscious design should be abandoned in favour of the idea of ‘selection by the environment’, dependent on two different factors, namely nature and nurture. If one transplants this idea to law, one finds that what is important in explaining, or even predicting, legal development is the environment in which the rules have to function (nurture) and the characteristics of the rules themselves (nature). The interaction between the two is what might explain legal development. The importance of this approach is illustrated by two ‘evolutionary lessons’ that I will apply to Scots and South African law and to the further development of private law in Europe. 4. The selection of rules: Restraints on choosing? The first question I want to address is whether it is possible to select rules on the basis of the inherent qualities of those rules. If one looks at the present debate on the emergence of a European private law, the answer seems to be affirmative. The prevailing idea is that the European Member States, but also contracting parties, will choose for the rules that best reflect their interests. Regarding the Principles of European Contract Law,15 for example, many believe that these principles will be chosen by contracting parties that want to draft an optimal contract, or by legislators (in particular those in Central and Eastern Europe) that have to draft new national codes of contract law. The reason for this is that these principles are of high quality: they form what, according to eminent European experts, is the desired contract law for Europe. If one looks at this high-stemmed ideal from the evolutionary perspective, it becomes clear that reality is different. What evolutionary theory emphasises is that not only the content (high quality) of the rules is decisive for their being taken over in a legal system, but also the environment in which these rules have to operate. This environment consists of the existing national legal system and this is not a new one. On the contrary, it has usually been formed over many centuries, often on the basis of coincidence and all kinds of other factors of a political, economic and cultural nature. My point is that these factors are today often a constraint on change. The standard example16 is that of a road built a hundred years ago on the left-hand side of a river, while today it would be more advantageous to have it built on the right-hand side, because that is where the view is nicer or where most people live now. Yet, it is highly unlikely that the road will be rebuilt. This would simply cost too much, not only in 14 For more details, see Jan M. Smits, How to Predict the Differences in Uniformity between Different Areas of a Future European Private Law? An Evolutionary Approach, in: Alain Marciano & Jean -Michel Josselin (eds.), The Economics of Harmonizing European Law (Cheltenham: Edward Elgar, 2002), pp. 50, 53. 15 Lando & Beale, Principles of European Contract Law, Parts I and II; Lando, Clive, Prüm & Zimmermann, Principles of European Contract Law. 16 Cf. Mark J. Roe, Chaos and Evolution in Law and Economics, Harvard Law Review 109 (1996), pp. 641, 646 and Smits, How to Predict, p. 60