Law, Economics and Evolutionary Theory
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Law, Economics and Evolutionary Theory

Edited by Peer Zumbansen and Gralf-Peter Calliess

Law and economics has arguably become one of the most influential theories in contemporary legal theory and adjudication. The essays in this volume, authored by both legal scholars and economists, constitute lively and critical engagements between law and economics and new institutional economics from the perspectives of legal and evolutionary theory. The result is a fresh look at core concepts in law and economics – such as ‘institutions’, ‘institutional change’ and ‘market failure‘ – that offer new perspectives on the relationship between economic and legal governance.
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Chapter 14: Darwin at Work: How to Explain Legal Change in Transnational and European Private Law

Jan M. Smits


Jan M. Smits* 1. INTRODUCTION This contribution aims to apply some insights from evolutionary theory to transnational private law and in particular to the harmonisation of private law in the European Union.1 By doing so, it hopes to provide a fresh perspective to the theoretical underpinning of the development of both transnational commercial law and European private law. For transnational commercial law, it has already been well explained that the transformation of the role of the State led to new forms of governance.2 If there was previously a State monopoly on providing legal certainty and enforcement mechanisms, today the goods of legal certainty and enforcement are often provided by others rather than the State institutions, in particular in cross-border transactions. In European private law, an organic development – in which the role of the national States is also rather limited – is the most likely way to create a successful unified law.3 Both developments raise many questions. This contribution only aims at providing a framework to deal with one of these questions: how to explain the evolution of law beyond the State (of which transnational commercial law and European private law are important examples)?4 If legal development can no longer be explained by positivist or natural law thinking, can evolutionary theory fill the gap? As there are many varieties of evolutionary theory, it seems first necessary to sketch the specific evolutionary framework on which this chapter is built. Section 2 therefore sets out the analytical presuppositions underlying the application of evolutionary...

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