“Path dependence” is an important explanation in comparative law, but it also recognises that the law does develop by breaking out of the mould cast by the past. Path dependence affects not only the legal concepts that the law uses to solve problems, but whether the law will intervene in a problem area or not. Path dependence assumes that there is no ideal solution, but an equilibrium can be found within a particular society between the role of law and that of other social institutions. The scope for change depends significantly on the extent to which a particular legal approach is “embedded” within the legal system—how many parts of the law depend on it. Real embeddedness involves the way in which a particular rule or practice connects to other parts of the law, especially when it is underpinned by structural or organisational aspects of the system.
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- Professor of Law, University of Cambridge.
- 87 Tul. L. Rev. 787 (2013)