A. Introduction

This contribution aims to apply some insights from evolutionary theory to transnational commercial law and to the harmonisation of private law in the European Union. 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. 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. Both developments raise many questions. This contribution only aims at providing a framework to deal with one of these questions: how to explain (or even predict) the evolution of law beyond the State (of which transnational commercial law and European private law are important examples)? 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 article is built. Section B therefore sets out the analytical presuppositions underlying the application of evolutionary ideas to the development of private law. This framework is a relatively simple one, building on the core of Darwin’s idea of natural selection. Section C subsequently goes on to apply the general framework to understand legal change (looking at law as an organism), while section D takes the argument one step further by applying some evolutionary lessons to transnational commercial law and European private law. Section E draws...