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The Economics of Harmonizing European Law

Edited by Alain Marciano and Jean-Michel Josselin

One of the major effects of the continual process of European integration is the growing importance of transnational institutions and the accompanying legal harmonization. Such institutional changes have led to a seemingly irreversible transformation in public decision making, whereby power at the national level is displaced to the European and regional levels. This essential book provides a law and economics analysis of the challenges arising from these shifts in authority.
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Chapter 2: How to predict the differences in uniformity between different areas of a future European private law? An evolutionary approach

Jan M. Smits


Jan M. Smits INTRODUCTION 2.1 In this chapter, it is investigated whether it is possible to predict the evolution of (parts of) national European private law systems toward a uniform private law. In doing so, insights of evolutionary theory, economic analysis of law and (socio)biology are taken into account in what is essentially an interdisciplinary approach toward the evolution of European private law. One of the characteristics of the now rapidly emerging discipline of European private law is after all that it is still so much in its infancy that it is very fertile to try to profit from neighbouring disciplines in establishing the foundations of this discipline.1 Whether it is possible to predict the measure of uniformity in European private law is, of course, of great scholarly and practical interest. From a scholarly point of view, it may give us insight into the differences in types of legal rules and types of private law areas with regard to their resistancy to harmonization. From a practical viewpoint, insight into the measure of uniformity to be attained tells us what public policy should be regarding decisions on the introduction of European Directives on specific fields of private law. Drafters of European ‘Principles’,2 and other projects aiming at being a ‘soft law’ precursor to some European Civil Code,3 may also benefit from these insights. This chapter presupposes a specific theoretical framework that is made explicit in Section 2.2. In Section 2.3, the insights comparative law studies have provided us...

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