文档介绍：Published in: The Harmonisation of Private Law in Europe: Some Insights from Evolutionary Theory, Special
Volume in Honor of Alan Watson, ia Journal of International parative 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 parative 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 parative 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 basi