Abstract
Systems of law are concerned with relations between agents (human, legal, unincorporated and otherwise) at a variety of levels. At an international level, public international law governs relations between sovereign states and sets the limits for the exercise of state power in the light of generally recognized norms. At an international or transnational level also operate human rights law, international criminal law, refugee law, international environmental law, transnational arbitration and other systems. Functioning at a territorial state level are the legal systems of nation-states and sub-national (e.g. the legal systems of the individual states within federal states) or sub-state jurisdictions (e.g. the bye-laws of counties or municipalities and the laws of ethnic communities within states which enjoy a degree of autonomy). It is important to note that very few legal orders or systems of rules are complete, self-contained or impervious. Co-existing legal orders interact in complex ways: they may compete or conflict; sustain or reinforce each other; and often they influence each other through interaction, imposition, imitation and transplantation. Nowadays, national legal systems have become interconnected through the operation of international and transnational regimes in a variety of ways. They are subject to, and modified by, international conventions and treaties, trade regulations and various inter-state agreements. Some countries harmonize their laws, coordinate their fiscal policies, and agree to recognize each other’s judgments or cooperate in antitrust enforcement. The changes in the legal universe that have been taking place in the last few decades have increased the potential value of different kinds of comparative law information and thereby urged new objectives for the comparative law community. The comparative method, which was in the past applied in the traditional framework of domestic law, is now being adapted to the new needs created by the ongoing globalization process, becoming broader and more comprehensive with respect to both its scope and goals. Associated with this development is the growing interest in the issue of transferability or transplantability of legal norms and institutions across different systems, especially in so far as current legal integration and harmonization processes require reasonably transferable models. Following a discussion of factors accounting for the divergence and convergence of legal systems, this chapter critically examines the issue of transferability of laws with special attention being paid to the theory of legal transplants propounded by Professor Alan Watson, one of the most influential contemporary comparatists and legal historians.
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- 1.
The term ‘legal system’ is used to highlight the fact that law is comprised of many interconnected elements, which should be examined in the light of their functional interdependence. Related to the term ‘legal system’ is the term ‘legal order’ (Rechtsordnung, ordre juridique). When the latter term is used emphasis is placed on the creative role of the human agency in the formation and development of law.
- 2.
- 3.
However, it should be noted that, notwithstanding their common origins and general characteristics, civil law systems differ from each other in many respects. It is only when the civil law lawyer inspects the common law and other legal systems that they acquire awareness of the affinity between the members of the civil law family. For an overview of the origins and main features of the civil law tradition see Chap. 8 below.
- 4.
As C. D. Gonthier remarks, the civil law is distinguished from the common law by “a difference in intellectual approach, in the quest and ordering of [legal] knowledge. Each approach reflects one of the modes of functioning of the human intellect, that is, on the one hand, the empirical mode based on specific instances from which one may eventually draw rules and even identify principles and, on the other, the theoretical approach based on established principles from which concrete consequences and applications are drawn.” “Some Comments on the Common Law and the Civil Law in Canada: Influences, Parallel Developments and Borrowings”, (1993) 21 Canadian Business Law Journal, 323.
- 5.
The ideology of a legal system is explained by K. Zweigert and H. Kötz as pertaining to “political or economic doctrines or religious belief’. An Introduction to Comparative Law, 2nd ed., (Oxford 1987), 73.
- 6.
David (1988), p. 337 ff.
- 7.
The adversarial system of legal procedure is a system where the facts emerge through a formal context between the parties, while the judge acts as an impartial umpire. In the inquisitorial system, on the other hand, the truth is revealed by an inquiry into the facts conducted by the judge. In this system it is the judge who takes the initiative in conducting the case, leading the investigations, interrogating witnesses and assessing the evidence.
- 8.
Langbein (1985), pp. 823–824.
- 9.
According to M. Damaska, the relatively greater emphasis on certainty in the Civil law model of legal procedure is traced to the influence of the rationalist Natural Law School, and in particular “the rationalist desire to impose a relatively simple order on the rich complexities of life”. “Structures of Authority and Comparative Criminal Procedure”, (1975) 84 Yale Law Journal, 480.
- 10.
- 11.
Schlesinger (1995), p. 477.
- 12.
See Sacco (1991), p. 1.
- 13.
As early as the mid-eighteenth century, the era of the Enlightenment, the French philosopher Montesquieu observed that the laws of a nation were necessarily formed relative to the physical features of a country: to a hot, mild or cold climate; to the quality, situation and scale of formation of the terrain; and to the life-style of the inhabitants as determined by these conditions. He also argued that laws were related with several other factors, such as the degree of liberty that physical conditions made possible; the population’s religious beliefs and cultural attitudes; relative wealth; density of the population; modes of commerce; and customs and manners. What Montesquieu refers to as l’ésprit des lois, the underlying spirit that shapes any set of laws, is the result of the combined influences of all these factors. See Charles de Secondat Montesquieu, De l’Esprit des lois (1748), book I, chapter 3.
- 14.
- 15.
See Wahl (1973), pp. 261–276.
- 16.
Zweigert and Kötz (1987), p. 73.
- 17.
As previously noted, Friedman defines legal culture as the body of ideas, values, expectations and attitudes towards law and legal institutions which some public (or some part of the public) holds. “The Concept of Legal Culture: A Reply”, in D. Nelken (ed.), Comparing Legal Cultures (Brookfield, Vt., 1997), 33–40. And see Chap. 6 above.
- 18.
See on this Friedmann (1972), pp. 22–23.
- 19.
Political decision-making may be described as the uniting link between economic conditions and legal norms.
- 20.
In so far as law is a product of the authoritative power of the state, it is unsurprising that, under certain historical conditions, legislative enactments were strongly influenced by the personal preferences or priorities of a person or persons in a position of great authority. For example, the content of certain family law rules in France at the time of the introduction of the French Civil Code (early nineteenth century) was largely determined by considerations pertaining to Napoleon Bonaparte’s own family situation. In general, however, a legislator’s choice may very rarely be regarded as being entirely arbitrary. In most cases the legislator would adopt one of several possible solutions to a problem generated by a conflict of interests—the solution which appears to him or her the most reasonable in the circumstances—even though in the eyes of another legislator a different solution may have been preferable.
- 21.
As J. Merryman remarks, if the common law is the law of the judges, the civil law is the law of the law professors. TheCivil Law Tradition, An Introduction to the Legal Systems of Western Europe andLatin America (Stanford, CA, 1969), 59–60.
- 22.
See Dawson (1968), p. 231.
- 23.
Legitimacy is the quality of a socio-political system that explains its authority at a particular place and time over a particular community. A system’s legitimacy may be founded on social consensus (democracies), or on a variety of other elements, such as transcendental command (e.g. theocratic states) or, even, arbitrary oppression. In turn, orientation may vary from old-fashioned, open-ended laissez-faire orientations to communism and many other distinct combinations. Efficiency is a quality that refers to the overall performance of a system. A system develops and remains the same to the extent that the foundation of its legitimacy and the direction of its orientation remain stable. Non-revolutionary changes are under legitimacy control. In such a case, since the foundation of legitimacy is not affected, a change in the direction of orientation must satisfy the criteria of the established legitimacy foundation. Revolutionary change may be the result of a catastrophic collapse with respect to the authority or efficiency of a system.
- 24.
On the role of revolution as a factor explaining the divergence or convergence of legal systems see Rodière (1979), p. 21.
- 25.
On the Reception of Roman law in Europe see Chap. 8 below.
- 26.
Seen as constituting an expression of natural reason, Roman law was received in Europe not by virtue of any theory concerning its continued validity as part of the positive law, but in consequence of its own inherent worth. In other words, its validity was accepted not ratione auctoritatis, but auctoritate rationis.
- 27.
Legal relationships are to a large extent organized by forms derived from Roman law (such as contractus and bona fides). One might say that these forms constitute a kind of pre-knowledge for Western legal systems.
- 28.
See Mattei (1994), p. 3 ff; Mattei and Pulitini (1991), p. 207 ff. According to Mattei, from the viewpoint of a particular legal system, ‘efficient’ is whatever makes the legal system work better by lowering transaction costs. Mattei’s approach, which represents an example of the more recent trend to combine comparative law and economics, may be taken to constitute a narrower version of functionalism focusing not on social functions in general but on a particular function, namely the efficiency of a legal rule or institution in economic terms.
- 29.
But, as Mattei recognizes, the existence of differences between legal systems does not necessarily imply inefficiency. Different legal systems may adopt alternative solutions for the same legal problem, which may be regarded as neutral as far as the issue of efficiency is concerned.
- 30.
- 31.
For example, the law codes enacted in Latin American countries following their liberation from Spain in the nineteenth century were based on European legal models, such as the French and German civil codes. For a closer look see Mirow (2000), p. 83; Mirow (2001), p. 291. For a general view consider Mirow (2004). Similarly, in the 1960s countries liberated from colonial rule adopted legal systems based on Western models, especially those of the former colonial powers. However, what was portrayed as a Western contribution to the successful development of former colonies has been criticized as inadequate to meet these countries’ needs, largely due to the socio-cultural differences between the donor and recipient countries. Consider on this issue Gardner (1980). And see Berkowitz et al. (2003), p. 163.
- 32.
In the years following the demise of the communist regimes in Eastern Europe, former communist states in the process of transition to democracy and a market economy introduced major legal reforms in the fields of both public (especially constitutional) and private law. Consider, e.g., Ajani (1995), p. 93. In China too, major legislative reforms were enacted with a view to developing appropriate tools for the country’s growing economy, with considerable input from foreign experts. See Seidman and Seidman (1996), p. 1.
- 33.
For example, after the World War II, both Germany and Japan adopted new constitutions that were drafted with the assistance and under the guidance of the victorious powers, especially the United States. Consider on this, e.g., Hamano (1999), p. 415.
- 34.
A relatively new example in this context is the tendency to consider legal arrangements in other states concerning the acceptance of same-sex marriage and registered partnerships.
- 35.
The adoption of Western models in the domain of commercial law by East European countries should also be understood as being motivated by economic factors and the desire to increase competitiveness. A negative effect of this phenomenon is the so-called ‘race to the bottom’ with respect to welfare legislation and the laws protecting workers’ rights. Consider on this issue Avi-Yonah (2000), p. 1573; Charny (2000), p. 281.
- 36.
Another form of activity on an international plane that influence domestic legislation is that pertaining to the creation of model laws by organs of the United Nations or other international organizations. In this connection, reference should be made to the activities of the United Nations Commission on International Trade Law (UNCITRAL) and the International Institute for the Unification of Private Law(UNIDROIT), mentioned in Chap. 2 above.
- 37.
Consider on this matter Neuman (2004), p. 82.
- 38.
See relevant discussion in Chap. 2 above.
- 39.
See on this Siems (2007), p. 133.
- 40.
According to O. Kahn-Freund, there are ‘degrees of transferability’. All legal rules may to some extent be disconnected from their socio-political setting, and this makes legal transplants across socio-political boundaries theoretically possible. However, since laws get disconnected to varying degrees, some are more likely to survive the journey than others. The author notes, moreover, that socio-political institutional factors determine the degree of coupling between law and society. These factors pertain to the ideological role of law, the distribution of state power and pressure from non-sate interest groups. Transplanted laws should be compatible with the dominant political-legal ideology in host countries; they should accord with host countries’ legal frameworks and political power structures; and should attract sufficient support from special interest groups, such as market support organisations (e.g. banks, trade unions and political parties) in host countries. “On Uses and Misuses of Comparative Law”, (1974) 37 (1) Modern Law Review, 1, 12–14. Consider also Stein (1977–1978), p. 198.
- 41.
As A. Watson has remarked, “except where the systems are closely related, the differences in legal values may be so extreme as to render virtually meaningless the discovery that systems have the same or a different rule”. Legal Transplants, 2nd ed., (Athens, Georgia, 1993), 5. For example, consider the difficulties surrounding the interpretation of the concept of individual freedom, as found in international treaties on human rights. Individual freedom has a rather different meaning in China and other Asian countries, as compared to the Western view, not just because of a political ideology currently or formerly imposed by the rulers of those countries, but because of a more basic, culturally embedded ideology that originates from a very different, collectivist world view. And see Ewald (1995), p. 489. For a closer look at the issue of legal transplants see Siems (2018), p. 231 ff; Graziadei (2019), p. 442; Graziadei (2009), p. 723; Örücü (2002), p. 205; Gillespie (2001), p. 286.
- 42.
- 43.
Legal Transplants, supra note 41, 108.
- 44.
“Comparative Law and Legal Change”, (1978) 37 (2) Cambridge Law Journal, 313, 313–315 and 32.
- 45.
Watson has identified a number of factors that determine which rules will be borrowed, including: (a) accessibility (this pertains to the question of whether the rule is in writing, in a form that is easily found and understood, and readily available); (b) habit (once a system is used as a quarry, it will be borrowed from again, and the more it is borrowed from, the more the right thing to do is to borrow from that system, even when the rule that is taken is not necessarily appropriate; (c) chance (e.g., a particular written source may be present in a particular library at a particular time, or lawyers from one country may train in, and become familiar with the law of another country); and (d) the authority and the prestige of the legal system from which rules are borrowed.
- 46.
Legal Transplants, supra note 41, 6.
- 47.
Legal Transplants, ibid., at 21. To illustrate his point, Watson mentions a set of rules concerned with matrimonial property, which travelled “from the Visigoths to become the law of the Iberian Peninsula in general, migrating then from Spain to California, [and] from California to other states in the western United States.” (Ibid., at 108) He adds, that if one considers a range of legal systems over a long term “the picture that emerge[s] is of continual massive borrowing … of rules.” (Ibid., at 107) On this basis he concludes that the moving of a rule or a system of law from one country to another has now been shown to be the most fertile source of legal development, since “most changes in most systems are the result of borrowing.” (Ibid., at 94). According to R. Sacco “Borrowing and imitation is … of central importance to understanding the course of legal change” … “the birth of a rule or institution is a rarer phenomenon than its imitation.” “Legal Formants: A Dynamic Approach to Comparative Law” II, (1991) 39 American Journal of Comparative Law, 343, at 394 and 397.
- 48.
Despite the rather far-reaching nature of some of his statements, it is important to observe that Watson has generally confined his studies, and the deriving theory of legal change, to the development of private law in Western countries.
- 49.
Transplant bias may be used to denote, for example, a system’s readiness to accept a Roman law norm because the norm is derived from Roman law.
- 50.
This is evidenced by the fact that the reception of Roman law in Continental Europe first occurred in the field of legal science.
- 51.
Although these factors pertain primarily to the Western legal tradition, Watson believes that they are valid also outside this sphere. Consider “Comparative Law and Legal Change”, (1978) 37 (2) Cambridge Law Journal, 313–336.
- 52.
Watson (1978), p. 323.
- 53.
Watson stresses the independence of judges in precedent-based systems. As judges are not elected and their role is not seen as primarily political, they are less likely to be subject to direct pressure by organized groups. He adds that juristic doctrine, as a source of law, is also largely immune from pressure forces, except where a pressure force has great power and authority. In my opinion, Watson over-emphasizes the immunity of judges and jurists from external pressure. Usually there is a system of permanent pressure forces in society, and most lawyers belong to that system. It is important to consider whether or to what extent judges and jurists are susceptible to political arguments, and the degree of participation in politics they are permitted in different systems.
- 54.
Occasionally, widespread resistance to change may be channelled through a social movement or political action groups or lobbyists.
- 55.
Watson remarks that although the persons who will be adversely affected by a proposed change in the law may be more numerous than those who will benefit, the change will most likely be executed if the anticipated gains of each member within the latter group is extensive, whereas the perceived harm to each member of the former group is small. The absence of an organized opposition force in such a case explains why legislation that is overall harmful and generally considered unpopular is occasionally passed without much resistance.
- 56.
For example, the majority of British judges and lawyers insist on wearing the arcane court attire consisting of ceremonial robes and wigs that became fashionable and then mandatory during the reign of King Charles II in the late seventeenth century, although there has been a move led by the Lord Chancellor, head of the country’s judiciary, to wear business attire for every day and use the knee breeches, silk stockings and buckled shoes only on special occasions.
- 57.
Watson observes that although, as a factor of legal change, law-shaping lawyers may be deemed superfluous (as their functions are adequately covered by the notions of source of law and transplant bias), their role deserves special attention. In his more recent work, Watson places greater emphasis on the role of legal culture in shaping law’s internal development. He points out that legal change comes about through the culture of the legal elite, and it is above all determined by that culture. See Watson (2001), p. 264. On the notion of legal culture see Chap. 6 above.
- 58.
Watson (1978), p. 330.
- 59.
However, Watson does not fail to note that an abuse of discretion will entail an adverse reaction. It is true that discretion creates choice, but the use of choice depends on certain other factors. It might be the case, for example, that a controversial parliamentary bill is passed as law after the most questionable paragraphs have been recast in such a way as to enable the judiciary or the executive to exercise discretion (e.g. open wording, general clauses or flexible criteria are used). However, this transfers the problem to another level of decision-making. At that level of micro decision-making, the principle pertaining to the equal treatment of the subjects of law plays a more important part than at the level of law-making, where the criteria of formal justice are introduced. From a comparative point of view, it should be stressed that a mere statement of discretion is rarely sufficient, as discretion is exercised according to some criteria and not at random.
- 60.
He speaks of an ‘internal legal logic’ or of ‘the internal logic of the legal tradition’ governing legal development. See Watson (1985), pp. 21–22.
- 61.
See on this Levy (1950), p. 233.
- 62.
Watson (1976), pp. 80–81.
- 63.
From the viewpoint of the autopoiesis theory, G. Teubner criticizes Watson for placing too much emphasis on the lawyers’ professional practices as such. Teubner argues that these practices are not, in themselves, the motor of legal change but rather the necessary outcome of law’s character as a distinctive discourse concerned chiefly with producing decisions that define what is legal. Because what is legal is law’s essential focus as an independent discourse, law cannot be governed by social developments of the kind sociologists are concerned with. It may react to these developments but it always does so in its own normative terms. Thus, what Watson sees as the autonomous law development by legal elites, proponents of autopoiesis theory regard as the working out of law’s independent evolution as a highly specialized and functionally distinctive communication system. For a closer look see in general Luhmann (1995), Teubner (1993) and Priban and Nelken (2001). On the implications of the autopoiesis theory for comparative law see Teubner (1998), p. 11.
- 64.
According to Watson, “It should be obvious that law exists and flourishes at the level of idea, and is part of culture. As culture it operates in at least three spheres of differing size, one within another. …The spheres are: the population at large, lawyers and lawmakers. By ‘lawmakers’ I mean the members of that elite group who in a particular society have their hands on the levers of legal change, whether as legislators, judges, or jurists. … For a rule to become law it must be institutionalized. It must go through the stages required for achieving the status of law. …Because lawyers and lawmakers are involved in all those processes a rule cannot become law without being subject to legal culture’. “Legal Chance: Sources of Law and Legal Culture”, (1983) 131 University of Pennsylvania Law Review, 1121, 1152–1153.
- 65.
Legal Transplants, supra note 41, 96.
- 66.
Id., 116.
- 67.
See Legrand (1997), pp. 116–120.
- 68.
Ibid., at 120. Consider also Nelken (2003), p. 437.
- 69.
See on this Levi-Strauss (2001), p. 103 ff.
- 70.
- 71.
del Vecchio (1960), p. 497. As Albert Hermann Post, one of the founders of the School of Comparative Anthropology (Rechtsethnologie), has remarked “there are general forms of organization lying in human nature as such, which are not linked to specific peoples. …[F]rom the forms of the ethical and legal conscience of mankind manifested in the customs of all peoples of the world, I seek to find out what is good and just. …I take the legal customs of all peoples of the earth as the manifestations of the living legal conscience of mankind as a starting-point of my legal research and then ask, on this basis, what the law is”. Die Grundlagen des Rechts und die Grundzüge seiner Entwicklungsgeschichte: Leitgedanken für den Aufbau einer allgemeinen Rechtswissenschaft auf sociologischer Basis (Oldenburg 1884), XI. According to Post, [“C]omparative-ethnological research seeks to acquire knowledge of the causes of the facts of the life of peoples by assembling identical or similar phenomena, wherever they appear on earth and by drawing conclusions about identical or similar causes”. Bausteine für eine allgemeine Rechtswissenschaft auf vergleichend-ethnologischer Basis (Oldenburg 1880), citations at 12–13. Other important works of this school include Albert Hermann Post’s Einleitung in das Studium der ethnologischen Jurisprudenz (1886) and Henry Maine’s Ancient Law (1861). For further details see Chap. 4 above.
- 72.
- 73.
See King (1997), p. 119; Ferrari (1990), p. 63; Markesinis (1994), Zimmerman (1995), p. 1. For a critical perspective on this issue see Legrand (1996), pp. 52–61. As previously noted, some scholars have raised the question of whether or not ‘natural convergence’ is simply an euphemism for what they refer to as ‘Western legal imperialism’. See von Mehren (1971), p. 624; Knieper (1996), p. 64.
- 74.
- 75.
Tylor (2010, first published in 1871).
- 76.
See Oliver Wendell Holmes, The Common Law, ed. by S. M. Novick, (New York 1991, first published in 1881), 5 and 35.
- 77.
Consider on this Barnard (2000), p. 158 ff.
- 78.
“Law is power. Law is politics. Law is politics in the sense that persons who have the political power determine which persons or bodies create the law, how the validity of the law is assessed, and how the legal order is to operate. But one cannot simply deduce from that, as is frequently assumed, that it is the holders of political power who determine what the rules are and what the sources of law are to be”. Watson (1991a), p. 97.
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Mousourakis, G. (2019). Comparative Law, Legal Transplants and Legal Change. In: Comparative Law and Legal Traditions. Springer, Cham. https://doi.org/10.1007/978-3-030-28281-3_7
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