The challenges of legal transplants in a globalized context:

A case study on ‘working’ examples

María Paula Reyes Gaitán

Dissertation submitted in partial fulfillment of the requirements for the

Master of Laws degree in International Economic Law at the

University of Warwick

October 2014

9,698 words

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Abstract

Globalization has led legal systems to influence each other throughout history and

legal transplants have not been immune to that process either. Nowadays we do not

just see examples of legal transplants but come across cases of 'cross-fertilization' of

case law. An emergence of unstudied trends that have spread around the world in a

voluntary and involuntary way across legal cultures can also be witnessed. However it

seems that legal transplants have been largely misunderstood and have been

condemned as mere copy-paste exercises due to their history. This paper studies the

different theories of legal transplants in comparative law and also analyses some

particular cases that have eventually ‘worked’ efficiently both in the country of origin

and in the country where those laws were adopted. We can no longer say that legal

transplants are impossible; they are a reality we cannot run away from. Amongst the

many challenges faced by this phenomenon, the primary one is to overcome all the

obstacles imposed by a ‘legal globalization’ that is threatening developing countries

by focusing more on the liberalization of markets, rather than on policies supporting

social welfare. Despite this fact, there is still hope for a new concept of ‘legal

globalization’, one that includes executing a serious study of the trends that not only

developing countries are in need of, but also is a need of the developed countries,

which is the adoption of policies towards social welfare, one of the biggest challenges

that face modern legal comparatists today.

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Acknowledgments

I am most grateful to the following for their valuable assistance:

���1. I would like to express my deepest appreciation for my supervisor, Professor Julio

Faundez for his ongoing support and guidance. Without his most valuable assistance

and persistent help this dissertation would not have been possible.

2. I would also like to thank Professor Dalvinder Singh, who was very kind in

providing me tips over the phone and email and helping and supporting me when I

had fractured my right wrist a month before my submission date.

3. I am also most grateful to Professor Mathias M. Siems, author of "Comparative

Law". Cambridge University Press. June 2014 who took time out of his busy schedule

to reply to my email queries that I had after reading his book.

4. I also would like to thank Professor Elena-Simina Tănăsescu from University of

Bucharest, Romania who was very kind in replying to my email queries and also sent

me relevant reading material.

5. Thanks is also due to my friends Mr. Enrique Prieto and Sunny Jaggi for proof

reading my dissertation.

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Table of contents

1. Introduction ............................................................................................................ 5

2. A historic background on the evolution of legal transplants ................................. 10

2.1.) Copy-paste and harmonization trends ............................................................... 12

3. Views on different legal transplant theories .......................................................... 15

3.1.) Transferists vs. Culturalists ............................................................................... 16

3.2.) Intermediate interpretations .............................................................................. 18

3.3.) Independent analysis ......................................................................................... 22

4. An overview of the challenges of globalization related to legal transplants ......... 23

5. Case study on ‘working’ examples of legal transplants ........................................ 29

5.1. A good fusion of legal systems .......................................................................... 31

a.) South Africa ......................................................................................................... 32

b.) Scotland ............................................................................................................... 33

c.) Malaysia ............................................................................................................... 34

5.2. Satisfactory and relevant conditions for legal transplants .................................. 36

a.) China and the German two-tier board system ...................................................... 38

5.3. Needs of the destination countries for prestigious complements ...................... 39

a.) Americanization of global law ............................................................................. 40

b.) Good faith principle ............................................................................................. 41

c.) Globalization of Human Rights ........................................................................... 42

d.) Antidiscrimination law ........................................................................................ 46

6. Conclusions ........................................................................................................... 48

7. Bibliography .......................................................................................................... 52

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1. Introduction

The first impression that globalization has left on our minds is that the world shrank

in the late 19th and early 20th centuries and became just one big ‘neighborhood’.1

This worldwide ‘homogenization of culture’ that comprehends different dimensions

as described by Professor Steger - the economic, political, cultural, ecological and

ideological2; allows the last dimension to cut across the other four, as it is integrated

by a series of beliefs, rules and claims, which in a way is the more complex and

human dimension.

Globalization has led legal systems to influence each other throughout legal history,

unfortunately it has become a discourse in itself and has turned into a commodity

designed for public consumption as stated by Steger, and when the market controls

social and political policies, the rewards of globalization end up being distributed in

an unequal and unfair manner.3

                                                                                                                         1 “Globalization as a phenomena creates that (a) “as a result of the increasing cultural contact a number of traditional practices, whole ways of life and worldviews disappear and (b) at the same time globality leads to the emergence of new cultural forms (...) everywhere cultural traditions mix and create new practices and worldviews”. Breidenbarch, Joana, The Dynamics of Cultural Globalisation. The myths of cultural globalization. 2 “The neoliberal language about globalization is ideological in the sense that it is politically motivated and contributes towards the construction of particular meanings of globalization that preserve and stabilize existing asymmetrical power relations”. Steger, Manfred (2009). Globalization: A very short introduction, p. 112. 3 “Like all social processes, globalization contains an ideological dimension filled with a range of norms, claims, beliefs, and narratives about the phenomenon itself. For example, the heated public debate over whether globalization represents a 'good' or a "bad' thing occurs in the arena of ideology. Given that the exchange of commodities constitutes the core activity of all market societies, the discourse of globalization itself has turned into an extremely important commodity destined for public consumption. Globalists have been successful because they have persuaded the public that their neoliberal account of globalization represents an objective, or at least a neutral, diagnosis of the very conditions it purports to analyse. The idea of inevitability also makes it easier to convince the general public to share the burdens of globalization, thus supporting an excuse often utilized by neoliberal politicians: 'It is the market that made us cut social programmes.' As German President Roman Herzog put it in a nationally televised appeal, the irresistible pressure of global forces demands that everyone will have to make sacrifices. Recent examples, such as the spectacular collapse of Enron Corporation in the United States, suggest that it is much more likely that sacrifices will have to be borne disproportionately by those workers and employees who lose their jobs or social benefits as a result of

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‘Legal transplants’, a term devised in the 1970’s by Alan Watson, implies “the

moving of a rule or a system of law from one country to another”4. Comparative law

research is more than the study of the traditional legal systems as it doesn’t just

concentrate on ‘case law’ but goes far beyond.

Legal transplants, a subject that has been extensively covered by Alan Watson and

Pierre Legrand5 besides being a branch in comparative law research is an area of law

in which the interest and attraction of law makers all over the world has not

diminished with time. Nowadays we do not just come across simple legal transplants

whereby the laws from one country seem to get copied by another country but also

come across 'cross-fertilization' of case law, i.e. the modern examples are not just

mere copying of legal reasoning from one country to the other.

Throughout history, technological developments, norms, beliefs and needs have been

displaced due to the effects and influences of globalization. It is inevitable that when

something does not work as expected, new solutions to new problems are sought. This

applies to the legal sphere too.

The influence of globalization, for those who believe in it, has permeated into

different areas of law including comparative law. The phenomenon of legal

transplants actually has gained more interest, adepts and relevance since 1970’s,

especially since the importance of comparative law lies in its aptitude to explain legal

                                                                                                                                                                                                                                                                                                                                                           neoliberal policies”. Steger, Manfred (2009). Globalization: A very short introduction. New York: Oxford University, Press. p. 93.” Steger, Manfred (2009). Globalization: A very short introduction, p. 104. 4 Watson, Alan. Legal Transplants: An Approach to Comparative Law, Edinburgh, 1974. 5 Both authors keep an update of their academic work on their own website http://www.pierre-legrand.com/transplants.pdf and http://www.alanwatson.org/legal_transplants.pdf 22 May of 2014.  

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developments. It can also be explained as, “the relationship of law to society, and at

this stage of its development - comparative law is in its infancy - the simplest way to

exploit comparative law is by examining, and accounting for, similarities and

differences in systems that have a historical relationship”.6

This paper will study the different theories of legal transplants in comparative law and

also will analyse those particular cases that have eventually ‘worked’ as efficiently in

the adopted countries as they did in the country of their origin. It is not our resolution

to find a definitive answer that proves either stream right or wrong, rather our aim is

to explain some of them in order to gain comprehension of the legal transplants

subject and in order to have the capacity and right tools to be able to interpret

independently each and specific legal transplant case in their own context.

The purpose of this research paper is to show how the results of legal transplants

depend on the circumstances of each individual case, and in order to do so we will

mention and analyse some ‘atypical’ cases of legal transplants that have one particular

thing in common: they all unexpectedly worked without any major negative

consequences. Furthermore some of these legal transplants ended up ‘over fitting’7 the

initial expectations of both transplant and country of origin, regardless of their

‘developed’ or ‘developing’ preconception.

It is rather important to mention that not a lot of authors have treated these kind of

legal transplants cases that for some reason or another have worked as efficiently as in

                                                                                                                         6 Watson, Alan. Legal Transplants and European Private Law, p. 23. 7 A term borrowed from Professor Mathias M. Siems, Professor of Commercial Law, Durham University, Research Associate, Centre for Business Research, University of Cambridge, and Visiting Fellow, Institute of Advanced Legal Studies, University of London, UK.

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the country of origin, or even better in some of the cases. Although our aim is to

escape falling into the trap of defending one theory or another, let alone thinking as a

‘transferist’ or ‘culturalist’ or as an advocate of any other movement, the goal is to

acknowledge each legal transplant case as autonomous and to avoid generalization of

the cases regarding legal transplants by not getting married to a specific theory.

Our goal is not to support either of the flows of ‘transferist’ or ‘culturalist’, however

we need to expose and uncover as many theories as we can in order to explain the

challenges that legal transplants face in a globalized context. Whereas there are many

examples and streams in the legal history that support the failure of legal transplants

starting with the Montesquieu pessimistic view8, there are also positive outcomes that

we must take into account in order to exceed in our task of analysing the challenges of

legal transplants, which are nurtured by a very few but exceptional and recent cases

that perhaps have not been discussed enough in the academic fields.

All the above leads to the research questions of this paper as to what extent and how

convenient can a legal transplant become, in which contexts can it happen, and are

there any successful cases worth the merit of being termed as ‘working’ transplants?

                                                                                                                         8 “Unlike Montesquieu, the nineteenth-century thinkers treat law as being purely man made (...) Watson challenges the Montesquieu view that law is a local phenomenon linked to the living conditions of a given society. In most cases, legal rules are not peculiarly reflective of the particular society in which they operate. Borrowing occurs primarily because existing law in a given polity is not in touch or in concert with current social or economic needs. As systemic needs evolve, critical gaps in existing law call for completion, more often that not through borrowing” See more Kingston, Rebecca. Montesquieu and his Legacy, p. 206.

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In order to gain a rich understanding of the research subject and to present both sides

of the argument9 this paper will firstly understand the various theories and diverse

backgrounds that surround the main topic with authority arguments from mostly

books, academic articles and historic facts. Secondly, our methodology will adopt a

case study strategy in answering the research question by selecting some cases that

legal literature and scholars have supported as positive legal transplants.

There are not many examples of successful legal transplants and this in a way helps us

narrow down the current extensive case legal transplants research. The positive

examples include “objectivity in law”10 an element towards legal uniformity, a

corporate governance company law adopted in the 90’s that benefited a political

socialist background in China11 and the globalization of human rights, just to mention

some examples that later on will be reviewed in more detail.

In order to comprehend the cases that might be termed as ‘working’ transplants we

will analyse and give some examples of the cases that might have not worked in the

past along with the various different theories given by scholars regarding legal

transplants.

                                                                                                                         9 The both sides of the argument include the two main positions about legal transplants represented mainly by Alan Watson and Pierre Legrand.  10 See more Jaakko Husa and Mark Van Hoecke (eds), Objectivity in Law and Legal Reasoning. 11 “China began experimenting in modern enterprise structure in the mid- 1990s. The passage of the Company Law, the first comprehensive law that fully delineated the rights and responsibilities of modern companies in China, was a big step in developing Corporate Governance in China. (...) The Company Law adopted a two-tier board system similar to that in Germany. This system is believed to provide a governance structure that delivers a strong monitoring function over managerial performance” (Zhang, Kan, Corporate Governance in China: How Does The State Influence Its Own Enterprises? Corporate Governance in China. International Law & Management Review, Volume 9, Summer 2013).

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This is an analysis that could probably lead to an explanation as to why certain cases

of legal transplants have worked in the past and therefore what can we possibly expect

in the future in the field of this comparative law branch which is one of the most

inexorable and unstoppable components of legal globalization.

We must insist that there is no magic formula that can ensure the success of and or

predict the failure of legal transplants in a particular country, economy, market or

enterprise. For that purpose it would be necessary to refer to each and every case

individually in order to say what can be a positive or a negative legal transplant. As

this is not possible in this research paper therefore we must consider and analyze

some cases of legal transplants that according to our view have worked so far in order

to outline possible categories and examples and to show how law-makers may be able

to make use of the elements to make these legal transplants at least conceivable or

‘working’ if not completely successful.

2. A historic background on the evolution of legal transplants

Modern and yesteryears comparatist scholars have studied the legal transplants

phenomena for quite a long time. The first examples of transplants of private law can

be evoked from the Code of Hammurabi (1,700 B.C.)12, Watson supports that today

legal transplants are as blooming and alive as they where in the time of Hammurabi13.

The referred Code according to Maastricht is apparently based upon the laws that

                                                                                                                         12 Watson, Alan. Legal Transplants: An Approach to Comparative Law, pp. 22-24. 13 “Not later than the early 17th century B.C.: see, e.g., Alan Watson, Legal Transplants, p. 22”. (See more A. Watson, Legal Transplants and European Private Law, vol 4.4 Electronic Journal of Comparative Law, 2000).

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were prevailing in the Near East and she further also states that, “The Twelve Tables”

(450 B.C.) is the first known source of comparative law, influenced by Roman visits

to foreign and mostly Greek cities.14

Kenneth Pennington states that after a long process of legal transplants from

Babylonia almost four thousand years ago and once the influence of the Code of

Hammurabi were integrated into the Roman law, the same ideas also stimulated

European Civil Codes to develop.15

Our legal history gives us others examples of legal transplants that are no longer

relevant today because they are no longer in force.16 Although this would probably be

a good topic for cultural and historical legal studies, our aim is not to quote all the

chronological details or to provide an analysis of all the unsuccessful legal transplants

throughout history.

Nowadays the frequent and various legal transplants that have come with

globalization and economic development cannot be seem the same way as those

mentioned previously above, and whereas some part of the literature has only

                                                                                                                         14 Maastricht, Jan Smiths. Comparative Law and its Influence on National Legal Systems, p. 9. 15 “The resurrection of Roman law at the end of the eleventh century was a unique event in legal history and changed the future of European law” (Pennington, Kenneth. Roman and Secular Law in the Middle Ages. 1996 published in Medieval Latin: An Introduction and Bibliographical Guide, edd. F.A.C. Mantello and A.G. Rigg (Washington, D.C.: Catholic University Press of America, 1996, pp. 254-266)  16 “Romania is a very interesting case for legal transplants as they copied the Belgian Constitution of 1831 when adopting their own Constitution in 1866 and also were largely inspired by the Napoleonic Civil code of 1801 when introducing the Romanian Civil code of 1864 (abolished in 2012 by another one which is largely inspired by the Quebec relevant codification because it offers 'the best synthesis of both roman and common law traditions' according to its authors)” See Tanescu, Simina. Use of Foreign Precedents by the Constitutional Court of Romania. Workshop No. 12 Foreign Law: Jurisprudence Cross-Fertilization. University of Bucharest (CDCIP).  

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complained about the failure in explaining why legal transplants happen, there is

another portion of scholars that have explained the motivations of them.17

2.1.) Copy- paste and harmonization trends

Historically there is an important distinction between those legal transplants that are

based on a simple copy-paste act18 and others that are a result of the harmonization of

legal ideas with existing waves and fashions19. The former basically refer to a mere

import of legal rules (either complete or partial) as an act that is blindly copied and

pasted,20 whose aim is to achieve “modernisation” of the society through the adoption

of trends designed elsewhere and valued as positive or good by the receptor society.

The latter suggests a synchronization- harmonization with prevailing waves and

tendencies truly motivated by a transition process and the need to catch up with other

societies and associations, justified by a high chance of improving and developing its

legal system for the benefit of their nationals.

                                                                                                                         17 Miller, Jonathan M. A Typology of Legal Transplants: Using Sociology, Legal History and Argentine Examples to Explain the Transplant Process. The American Journal of Comparative Law. Vol. 51, No. 4 (Autumn, 2003), pp. 839-885. 18 Countries like Colombia enacted practically all articles from the Spanish Commercial Code of 1829 borrowing legal rules that were blindly copied. 19 “A complete list of countries in such transition would include Cuba, Vietnam, China, and even certain African countries like Angola, Ethiopia, and Mozambique (...) the development of the institutional and legal framework for a market economy (including the creation of a market-based financial system)” Fischer, Stanley and Sahay, Ratna and Vegh, Carlos (1996): Stabilization and growth in transition economies: The early experience. http://mpra.ub.uni-muenchen.de/20631/ Also see cases on Post-communist developments in South-East Asia or Eastern Europe that were moved by the transition process and the need to connect and catch-up with other societies on Ekiert, Grzegorz “Dilemmas of Europeanization: Eastern and Central Europe after the EU Enlargement” Acta Slavica Iaponica, Tomus 25, pp 128. 20 For more detail see Pistor, Katharina and Milhaupt, Curtis J.: Law and Capitalism, “What Corporate crisis reveal about legal systems and economic development around the world”. p. 221.

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The difference between these two flows lies in the motivation roots of the legal

transplant. In the first scenario there is a blind copy-paste act of the legal rule hoping

that it would aptly suit a modern society just for the sake of fitting in and without any

prior assessment; on the other hand in the synchronization- harmonization view the

motivation goes beyond a simple copy-paste act, that exceeds the interests of the

origin country (the exporter) as there is an actual transition process that needs to be

completed. An adaptation to the local legal culture then successively follows once the

legal institutions start following the imported models.21

Most of the failed legal transplants can be considered as blind copy-paste acts, for

instance in 1866 when Romania agreed to implement a Constitution that was

mimicking the Belgian one but unintentionally ended-up with an authoritarian

political regime and not with a ‘Western-kind’ of representative democracy. The fact

that the Belgian Constitution was working for the Belgians didn’t automatically mean

that it would be equally effective for the Romanians as well. Similarly in Bulgaria

the evolution of the Mores and the society proved that ‘the legal transplant theory’ is

not always successful. The fact that the Bulgarians rejected the opportunity to analyze

their own problems in order to discover their own solutions also brought about

negative consequences. 22

Copy-paste legal transplants can be motivated by many factors, for example

imitations can be expected to occur usually because the idea of adopting someone

                                                                                                                         21 See Tanescu, Simina. Use of Foreign Precedents by the Constitutional Court of Romania. Workshop No. 12 Foreign Law: Jurisprudence Cross-Fertilization. University of Bucharest (CDCIP). 22 Ibid, at. 2-4.

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else’s work is considered ‘superior’23 and the craving for prestige represents

innovation. However some scholars have ventured to rate the prestige idea as

‘empty’24 as most of Latin American civil law countries that historically followed the

French private law guidelines did it based on the prestige idea that their legal systems

would become accomplished and will be enriched as a result of the reception of the

Code of Napoleon.25

However Grajzl highlights the risks of this path and shows how local conditions are a

fundamental factor of the appropriate institutional reform lane.26 He further points out

that although the initial cost of legislating is avoided with transplanted laws as

compared to indigenously developed rules, the probability of incurring subsequent

costs of modification is a lot higher.27

At least a dozen constitution-making processes28 were adopted after periods of

dictatorship and repression in Spain, Portugal, and most of the East European

countries. Although the condition which gave priority of application to the

international standards quoting the protection of human rights to the detriment of

national legal rules is not strictly associated with a legal transplant, it rather proved a

                                                                                                                         23 “The reception takes place because of the desire to appropriate the work of others. The desire arises because this work has a quality one can only describe as prestige. This explanation in terms of prestige is tautological, and comparative law has no definition of the word prestige to offer” Sacco, Rodolfo. ‘Legal Formants: A Dynamic Approach to Comparative Law (II)’, the American Journal of Comparative Law, 1991, 39 (2), p. 398. 24 See more Ugo Mattei, Comparative Law and Economics. 25 Valderrama, Irma. Legal Transplants and Comparative Law, p. 9. 26 Grajzl, Peter. The Choice in the Lawmaking Process: Legal Transplants vs. Indigenous Law. Review of Law & Economics, pp. 615-660. 27 Garzarelli, Giampaollo “All that glisters is not gold” An essay on a competition law transplant. Institutions and Political Economy Group (IPEG). School of Economic and Business Sciences. University of the Witwatersrand Private Bag X3, WITS 2050. Johannesburg, Republic of South Africa. 28 See more Elster, Jon. Constitutionalism in Eastern Europe: An Introduction. The University of Chicago Law Review. Vol. 58, No. 2, Approaching Democracy: A new legal order for Eastern Europe (Spring, 1991), pp. 447-482.

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specific global vision with regard to the relationship between national and

international legal systems and illustrates a certain trend or evolution that happened in

this area over the last forty years.29

As the ‘legal transplants’ topic and interest has not diminished in time the modern

comparatists acknowledge the fact that this concept has been challenged by new

movements such as ‘cross-fertilization’ and ‘legal culture’ which are continuously

studied in order to develop a more comprehensive and extensive approach of the

ideological background of legal practice and contemporary law problems. These

challenges include and given the tittle of this paper, a case study on ‘working’

examples of legal transplants in a globalized context whilst we also analyse the

different legal theories towards a comprehensive comparative research.

3. Views on different legal transplant theories

Strong positions have been stated against and in favour of legal transplants in the

academy. Pierre Legrand is one of the sharpest opponents of legal transplants,30

whereas Alan Watson believes that legal transplantation is at the top of the fertile

sources of legal development.31

Both scholars have given strong and rich arguments to defend the successes and

failures of legal transplants and how they can further influence the legal world. Whilst

                                                                                                                         29 Ibid, at 4.  30 Legrand, Pierre. The Impossibility of legal transplants. p. 6. 31 Watson, Alan. (1974) Legal Transplants: An Approach to Comparative Law. Edinburgh: Scottish Academic Press. p. 19.

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Legrand quotes Max Weber to confirm why ‘legal transplants” are impossible32 and

asks Watson how “could law travel if it was not segregated from society?”33, Watson

calls Legrand ‘old-fashioned’ as “he appears to believe that legal philosophy is the

key to understanding law in society, as for laws are borrowed from pre-existing laws

in other legal systems without any initial inherent relationship between these laws

(transplants) and society. However, once brought over, the interpretation and impact

of the law is adapted locally”34.   Many more academics refer to the interrogation

regarding the convenience or not of legal transplants, 35 especially in the private law

field.36  

3.1.) Transferists vs. Culturalists

On one hand we have ‘transferists’, the academics who optimistically recognize and

support law-makers in copying foreign rules; within this source are scholars like

Watson and La Porta37 and law-development organizations such as the World Bank38,

                                                                                                                         32 “A comparative study should not aim at finding 'analogies' and 'parallels', engrossed in the currently fashionable enterprise of constructing general schemes of development. The aim should, rather, be precisely the opposite: to identify and define the individuality of each development, the characteristics which made the one conclude in a manner so different from that of the other. This done, one can then determine the causes which led to these differences.” (Max Weber, The Agrarian Sociology of Ancient Civilizations, transl. by R.I. Frank (NLB, 1976) at 385 [originally published, in German, in 1909). 33 Legrand, Pierre. The Impossibility of legal transplants. p. 2. 34 “Legal history, including comparative legal history, has little place in his scheme of things. Underlying his approach is the unspoken - yet at times almost explicit - view that law is the ‘spirit of the people’. At the very least, for him a legal rule in one country expressed in exactly the same wording in another is not the same law. Context is everything. I could not agree more. Indeed from early days I have argued that a rule once transplanted is different in its new home”.(Watson, Alan. Legal Transplants and European Private Law. Alan Watson Foundation. University of Belgrade, School of Law. Belgrade, 2006). 35 See Michaels, Ralf. “One size fits all – On the mass productions of legal transplants”. p. 6. 36 See more A. Watson, Legal Transplants and European Private Law, p. 5. 37 La Porta, Rafael. ‘The Economic Consequences of Legal Origins’ p. 12. 38 IFC/ World Bank, Doing Business in 2004: Understanding Regulation (2004) xvi.

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institutions which are trying to manufacture and export the perfect “effective legal

system”.39

On the other hand we can find the ‘culturalists’, a much more pessimistic stream

represented mainly by Legrand who believes legal transplants are ‘impossible’. Other

scholars like Gunther Teubner consider transplanted laws as a major ‘irritation’

capable of activating unwanted and unexpected events when a foreign rule is imposed

on a domestic culture40; for Pistor, legal transplants success is conditioned on the

receptivity of the transplanting legal systems41 e.g. civil law and common law. And

similar to Pistor, we can find Hantrais42 who engages into a similar debate about

political science and the conditions for transferability of policies based on similar

resources, political orientations and values. The views hence expressed by the

‘culturalists’ put forth the argument that rules are not ‘self-explanatory’ as they rely

on more complex and subjective ‘cultural’ particular meaning.

Watson, who devised the term ‘legal transplants’ perceives law as a compilation of

rules that can be transferred because there is no association between a society and its

law43 and because legal transplants are the most fertile source of development and a

                                                                                                                         39 “Can an effective legal system for economic growth be imported, which is the assumption behind a decade’s worth of World Bank–generated institutional reforms?” (Pistor, Katharina and Milhaupt, Curtis J. Law and Capitalism. What corporate crises reveal about legal systems and economic development around the world. p. 3. 40 Teubner, Gunther. Legal Irritants: Good Faith in British Law or How Unifying Law Ends Up in New Differences. pp. 11-32. 41 Daniel Berkowitz, Katharina Pistor and Jean-Francois Richard. The Transplant Effect. The American Journal of Comparative Law. 42 Hantrais, Linda. International Comparative Research: Theory, Methods and Practice. Palgrave Macmillan. 2009. p. 45.  43 Watson, Alan. (1974) Legal Transplants: An Approach to Comparative Law. Edinburgh: Scottish Academic Press. p. 108. Watson’s works to date fill around twenty books and more than one hundred articles.

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highest record of positive changes in the society are the result of a legal borrowing.44

Watson also feels that Legrand completely neglects comparative legal history.45

On the contrary, Legrand46 claims that a law is meant to reject a foreign rule because

its mere existence is subject to an already established cohesive legal system. He also

maintains that successful transplants are impossible and transplanting a legal rule per

se is insufficient, as the whole process would require transplanting all over again an

entire ‘legal culture’.

JF Morin’s view is that most scholars “fall between these formalist and culturalist

perspectives, recognizing that transplanted rules are likely to be interpreted, applied

and enforced differently in the adopting legal system”47.

3.2.) Intermediate interpretations

Now as for the intermediate position,48 we can find it expressed by scholars like

Kahn-Freud49 who compares legal borrowings to the transplant of a kidney or a heart;

                                                                                                                         44 “As a matter of observed fact, legal borrowings have been ‘the most fertile’ source of legal change in the Western world. The rules of Roman law have been transplanted in bulk into most of the countries in Continental Europe, and form the foundation of their legal systems; in addition, within a legal system change often occurs as a result of internal borrowing, when a new rule is developed by analogy to an old rule on a different subject” (Ewald, William, Comparative Jurisprudence (II): The Logic of Legal Transplants, The American Journal of Comparative Law, Vol. 43, No. 4 (Autumn, 1995), pp. 489-510. 45 “I believe I detect a subtext in Pierre Legrand’s paper: he is opposed to the notion of a common civil code for the European Union. (As with Legrand’s ‘Impossibility’, I find no substance in this article). His subtext, I think, is that a common code would be a misadventure because the law would still vary from place to place. The law would still vary from place to place. Still, I believe it would be reasonably easy to draft a civil code for the European Union that would provide a framework for greater uniformity of private law (Whether such greater uniformity is desirable is another issue) The lesson of comparative law is that it teaches what has been done, therefore what can be done”. (Watson, Alan. Legal Transplants and European Private Law. University of Belgrade, School of Law. 2006. p. 4. 46 See Legrand, Pierre. (2001) What Legal Transplants? In Adapting Legal Cultures, edited by David Nelken and Johannes Feest, 55-70. Oxford: Hart. 47 Morin, Jean-Frédérich and Gold, E. Richard. An Integrated Model of Legal Transplantation: The Diffusion of Intellectual Property Law in Developing Countries. p. 19.

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he states that legal transplants as well as surgical transplants have the risk of being

rejected and that it is dangerous to transplant a law that is culturally and vitally

attached to a particular society because all jurisdictions have a unique and different

social constitution.50

Likewise Marc Galanter compares legal cultures to languages, as instruments that can

engage with foreign material while maintaining its unique characteristics and

idiosyncrasy.51 Similarly T.T. Arvind52 uses an analogy with wine grapes to conclude

that even though a variety of grape is able to travel abroad and grow outside its native

ground, the wine however will always taste different and according to him this

situation applies to transplanted laws as well.53

Örücü54 justifies the process of legal borrowing as a matter of chance or necessity but

not as matter of choice and he sustains that mixed legal systems in the European

integration process have expanded along the way. Likewise Jan Smits55 supports

mixed legal systems process e.g. Scotland, South Africa and Quebec, as they are a

source of motivation and encouragement source for the European private law future

projects.

                                                                                                                                                                                                                                                                                                                                                           48 “The law forms a continuum of legal rules of which some can be readily transferred by mechanical insertion and, on the other end, a rule comparable to a living organism which can be transplanted only like a transplant of kidney with the attendant risk of rejectin by the home environment (...) any given rule or institution must be placed at an appropriate point of this continuum” Mathias Reimann and Reinhard Zimmermann. “The Oxford Handbook of Comparative Law”. 49 See more Otto, Kahn-Freud. On use and misuse of comparative law. (1974) 37 Modern LR 1, 2 ff. 50 Drummond, Susan G. The process geography of law (As approached through Andalucian Gitano family law). p. 5. 51 Galanter, Marc. Predators and Parasites: Lawyer-Bashing and Civil Justice (28) Georgia Law Review 633 at 680. 52 Arvind TT. The 'transplant effect' in harmonisation. In: International & Comparative Law Quarterly, Vol. 59, No. 1, 01.2010, p. 65-88. 53 Siems, Mathias. “Comparative Law”. Cambridge University Press. June 2014. p. 190. 54 Örücü, Esin, “Family Trees for Legal Systems: Towards a Contemporary Approach”, p. 9. 55 Smits, JM. ‘A European Private Law as a Mixed Legal System, p. 3.

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There are also legal transplants which owe their origins to political reasons, for

example Frederich Schauer explains that host/ origin countries, countries in need of

transplants, and third parties e.g. NGOs have political, reputational and economic

incentives among other factors that are prone to be imperative in determining the

shapes of legal transplants.56 He challenges the presumption that some academics

have regarding what they think is the ‘predominant factor in determining which laws

are transplanted and from where’ by stating there is more to this subject than just an

‘expected efficacy’.57

Scholars have also suggested ‘prestige and imposition’ as predominant factors in

determining the transplantation of laws. As we previously and briefly discussed in

copy-paste legal transplants, Sacco approaches this line by affirming that ‘imposition

and prestige’ are the two original causes of imitation throughout the legal

transplantation process. According to him strong and powerful societies that have

faith in themselves tend to impose and spread their own culture and institutions to the

weaker societies and yet those kinds of receptions that come originally with force are

rescindable and only last until the same imposition is removed.58

Other academics like Margit Cohn59 explain the process of legal transplants as a

complex method of interaction developed by further alternatives and sophisticated

typologies. According to Cohn no transplant is ‘an island’ and law is the primary                                                                                                                          56 Schauer, Frederick, The politics and incentives of legal transplantation, p. 12. 57 “Transnational and cross-border spread of law and legal ideas is not, as it may be for scientific, technical, and economic ideas, largely a matter of the power and value of the ideas themselves, but may instead be substantially dependent, both on the supply side and on the demand side, on political and symbolic factors that may have more explanatory power in determining how law migrates than do factors that relate to the intrinsic or instrumental value of the migrating law itself” (Op. cit.) 58 Sacco, Rodolfo. ‘Legal Formants: A Dynamic Approach to Comparative Law (II)’, the American Journal of Comparative Law, p. 398. 59 See more Cohn, Margit. Legal Transplant Chronicles: The Evolution of Unreasonableness and Proportionality Review of the Administration in the United Kingdom. pp. 583-629.

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source, despite Watson’s claim that cross-system fertilization is the most important

influence in legal improvements as it has led human history. 60

For Cohn61, rules still have the value of ‘the original source’ and trans-border law

movements don’t have as much weight as an unprecedented rule in the field of legal

literature. As per her the legal transplants proliferation is a process in which

globalization and transnational law growth must be focused. Cohn develops some

categories in which the transplant has been “more or less successful: ‘full

convergence’, ‘fine tuning’ and ‘pro-transplant transposition’. But she also maintains

that it is also possible that the transplant has not been well received, thus leading to

‘counter-transplant cross-fertilization’, ‘distortion’, ‘mutation’ or even ‘rejection’”.62

We must also highlight that on the connection between law and context, the concept

of a ‘successful’ transplant may vary, David Nelken for example contemplates that

success of a legal transplant depends on how often these are geared and engaged into

“fitting an imagined future”63, and this is contrary to what Legrand states that it would

be wrong to admit a relationship between law and culture as something absolute,

hence the impact of globalization has been acknowledged broadly64. Relatedly,

Cotterrell’s definition of success depends on the view of law as an instrument.65

                                                                                                                         60 Op. cit. 61 Op. cit.  62 “Sacco’s claim that “perhaps one in a thousand is an original innovation.” (Siems, Mathias. “Comparative Law”. p. 198). 63 Nelken, David. Comparing Legal Cultures, Dartmouth 1997, Nelken D, Tsinghua university Press, Peking, China (2003) p. 57. 64 Nelken, David. Using the Concept of Legal Culture, Dartmouth 1997, Center for the Study of Law and Society Jurisprudence and Social Policy Program (2004) p. 6. 65 See more Cotterrell, Is there a logic of legal transplants? in adopting legal cultures, ed. D Nelken and J Feest.  

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3.3.) Independent analysis

Brian Tamanaha offers a more independent view; he starts by elucidating that the

problem is to believe that ‘law’ can ‘rule whatever it addresses’, as to pluralism dares

this presumption66. From an historical context he principally explains why

monopolistic law is turning obsolete as it ignores the existence of legal pluralism67, a

common historical condition that challenges the extensive and dominant view that

“law is a unified and uniform system administered by the state has erased our

consciousness of the extended history of legal pluralism.”68

For example, during the medieval period legal pluralism was reduced as a result of the

new consolidation of state power69, and in the late medieval period ‘the law’ was

viewed as a monopoly of the state. Tamanaha points out that in order to understand

legal pluralism we must first be aware on how actors negotiate the complexities of

normative systems, as specialists of the medieval period and those expert in

colonisation made the same statement as to ‘customary law’ officially recognised did

not necessarily correspond to real habits70.

                                                                                                                         66 Tamanaha, Brian Z. Understanding Legal Pluralism: Past to present, local to global. p. 21. 67 “Legal pluralism is everywhere. There is, in every social arena one examines, a seeming multiplicity of legal orders, from the lowest local level to the most expansive global level. There are village, town, or municipal laws of various types; there are state, district or regional laws of various types; there are national, transnational and international laws of various types. In addition to these familiar bodies of law, in many societies there are more exotic forms of law, like customary law, indigenous law, religious law, or law connected to distinct ethnic or cultural groups within a society. There is also an evident increase in quasi-legal activities, from private policing and judging, to privately run prisons, to the ongoing creation of the new lex mercatoria, a body of transnational commercial law that is almost entirely the product of private law-making activities” (Op. cit.). 68 Ibid, p. 376. 69 Ibid, p. 376. 70 “To offer another example, in colonial Latin American people concerned about the treatment of native Indians invoked Catholic norms and institutions to challenge their treatment by local government in the much same way that advocates for women’s rights today invoke human rights norms to challenge the legal rights of women in post-colonial countries. Patterns that emerge from such disparate contexts (in time and circumstances) promise to shed light on fundamental issues with respect to coexisting regulatory systems”. (Op. cit. p. 410).

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To paraphrase Tamanaha, people who believe in normative systems (monopolistic

law) will keep on supporting their power and positions as long as they benefit from

the system, whereas groups (legal pluralism) dealing with coexisting and conflicting

normative systems ‘in the pursuit of their objectives’, challenge all the time various

legal systems against each other, they never settle for less and always ‘keep an eye’

on their normative systems on how strategic actors relate to legally plural systems. In

both medieval and colonial periods the state legal order was diverse and plural and

combinations of indigenous norms and transplanted systems were made. However it

seems as globalization “is bringing another layer of supranational and international

legal regimes, with the potential for directly affecting people no matter where they

live”.71 Nowadays, pluralism is once again growing due to increasing powers of other

entities (morphing into different political or legal patterns) that show that the states

are no longer the only ones regulating.

4. An overview of the challenges of globalization related to legal transplants

Legal transplants materialise on a global scale, as they no longer happen in isolation,

according to Michaels it is indeed a process that needs formalization and also

standardization. ‘Context-specific’ rules only make sense as ‘local rules’ as long as

the context remains ‘local’; although under globalization conditions, such locality

becomes questionable.72

                                                                                                                         71 “Legal pluralism was a normal condition during the medieval period; after law was consolidated within state structures, legal pluralism was reduced in Western Europe just as it was being increased elsewhere through colonisation”. (Tamanaha, Brian Z. Understanding Legal Pluralism: Past to present, local to global). 72  Michaels, Ralf. “One size fits all – On the mass productions of legal transplants”. p.3.  

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At this stage we must recognize that globalization -for better or for worse- is changing

the conditions of legal transplants and “such problems are also discussed with

reference to substantive and specific case studies73. Also, there is a huge difference

between analyzing reforms made during the last three decades (modern era) and

studying those legal transplants that took place long time ago, over more than two

hundred years ago and between vastly different societies; it is clear that the former are

still going through a stage of development within the context of globalization,

whereas the latter remain in a perpetual condition and we can only analyse them from

a historical view.

Up to this point, the purpose of having brought numerous arguments of academics

regarding their view of legal transplants helps and allows us to exclude and review

some arguments in order to establish our own view regarding legal transplants. For

example we learned from Legrand that legal transplants are impossible74, he also says

they lead to unfavourable results, and therefore they are to be rejected75. But we

wonder how can something be detrimental and without a consequence at the same

time, isn’t that a bit inconsistent?76 If legal transplants are impossible, how can they

cause such a bad impact in a country due to the process of transplantation? Legrand’s

cultural arguments are strong but perhaps too extreme when he labels a legal

transplant as ‘impossible’.

                                                                                                                           73 “When and why did Japanese rules of product liability come into line with those of the EU and the USA? How and why did judicial review come late to the legal systems of Holland and Scandinavia? Why is the present wave of USA-influenced legal reforms in Latin America apparently having more success than the previous round? How does competition between the legal and accountancy professions affect patterns of bankruptcy?” See more Nelken, David and Feest, Johannes. Adapting Legal Cultures. John Bell The International and Comparative Law Quarterly, pp. 270-272. 74 “Legal transplants are impossible”. (Legrand, Pierre. The Impossibility of “Legal Transplants” p. 114). 75 See more Legrand, Pierre. The Impossibility of “Legal Transplants”. 76 Michaels, Ralf. “One size fits all – On the mass productions of legal transplants”. p.11.

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Although we cannot oversimplify an important phenomenon in black and white, we

believe that legal transplants are ‘possible’ under certain circumstances. However, the

conditions that surround modern legal transplants are within the globalization context

and, as appreciated in the introduction, sadly the phenomenon has itself become an

ideological discourse that in neoliberal language is “politically motivated and

contributes towards the construction of particular meanings of globalization that

preserve and stabilize existing asymmetrical power relations”.77

Globalization besides being the context in which legal transplants take place, it is

often a threat to ‘developing countries’78 because the motivation and efforts are more

involved with the liberalization of markets instead of being engaged with social

welfare. Despite of this fact we cannot only blame the context in which globalization

is developing, it is therefore our responsibility to change that landscape regarding

modern legal transplants.

If globalization is the cause of growth of legal transplants it is because of its ability to

bring laws and cultures together. The relationship between law and culture arises into

a more intimate, open and problematic contact since legal professionals want to be in

contact with foreign law and all the elements in the comparative law field, such as

how laws transfer and the acquiring and information process. Gerber’s expectation,

                                                                                                                         77 Steger, Manfred (2009). Globalization: A very short introduction. New York: Oxford University, Press. p. 112. 78 “Globalists who deviate from the official portrayal of globalization as benefiting everyone must bear the consequences of their criticism. Joseph Stiglitz, the Nobel Prize-winning former chief economist of the World Bank, was severely attacked for publicly criticizing the neoliberal economic policies created by his institution. He argued that the structural adjustment programmes imposed upon developing countries by both the World Bank and the IMF often led to disastrous results. He also noted that 'market ideologues' had used the 1997-8 Asian economic crisis to discredit state intervention and to promote more market liberalization. At the end of 1999, Stiglitz was pressured into resigning from his position. Five months later, his consulting contract with the World Bank was terminated”. Steger, Manfred (2009). Globalization: A very short introduction. p. 109-110.

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for example, is “to replete with efforts to comprehend globalization and its impacts on

law and to develop strategies for dealing with them, as the objective in turning to

these disciplines is not to copy their methods or to import their conceptual

frameworks, but to investigate them with an eye to their potential value in the

comparative law context.”79

As globalism leads to the emergence of new cultural forms, the most powerful

countries establish the impact of globalization through the creation of political

institutions and international organizations, which are designed and established as

means, in order to assist a project of independence and freedom of the nations.

However, globalization has actually created global interdependence and therefore

converted the institutions and international organizations into ends, a reality in which

inherited and preserved nation-state political institutions are not really functional.80

International organizations are supposed to be called upon in order to make economic

progress in developing countries but in Smith’s opinion they fail in their purpose of

promoting sustained growth because they don’t have enough influence to encourage

leaders from developing countries in order to make significant political reforms and

the mostly support the maintenance of political regimes whose policies produce only

more poverty. He brings Kenya as an example in order to highlight how resources and

wealth destined for poverty relief often ends up in the hands of the politicians.81

                                                                                                                         79 Gerber, David J., “Globalisation and legal knowledge: Implications for Comparative Law”, p. 950. 80 See more Tamanaha, Brian Z. Understanding Legal Pluralism: Past to present, local to global. 81 Smith, Alastair. Why International Organizations will continue to fail their development goals. pp. 565-567.

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Global markets as they work today do not regularly allocate their benefits equally, and

developed and developing nations tend to appropriate the “development concept” for

their own ends. The process of the global economic integration can be too vague and

ambiguous, especially when it promises abundant benefits to all the parties.

As one of the multiple globalization effects, witnesses have noted that states do not

have the same political power and control they used to have before, for instance in the

European Union, member states gave up some of their sovereign power to control

their own affairs in the economic, political and legal matters, subjecting themselves to

a higher authority82. Nations also have been fragmented into smaller divisions that go

along better with communities of ‘shared identity’, “as occurred with the former

Soviet Union and Yugoslavia; a similar process short of complete separation can be

seen in the movements for greater autonomy in Scotland, Quebec, Kurdistan, the

Basque regions of France and Spain, and other places”.83

Further to these political developments, nations do not have the same capacity in

leading, guiding and protecting their economies according to Tamanaha, “as virtually

every state is now deeply enmeshed in and subject to the vagaries of hyper-

competitive, free-wheeling global markets”84. Situation that repeats at the regional

level with problems such as lack of organization and fragmentation e.g. within the

EU, where “legal regimes of member states vary in certain respects from one another,

and also come into conflict with overarching EU laws and institutions”.85 Perhaps

                                                                                                                         82 Ibid p. 8.  83  Tamanaha, Brian Z. Understanding Legal Pluralism: Past to present, local to global. p. 8 84 Ibid p. 10.  85 “At the close of the 20th century, the various modes and manifestations of what has been labelled ‘globalisation’ have given rise to yet another wave of legal pluralism. Globalisation refers to a cluster of characteristics that reflect an increasingly interconnected world: the migration of people across

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what this reflects is that a fragmented society is in charge of making the rules despite

the fact that we ourselves proclaim to be living in a globalized era. It is therefore a bit

ambiguous to support a ‘globalization’ that ends up creating localization at some

point, as some scholars like de Sousa Santos state: “Globalization presupposes

localization”86 which allows us to say that the same processes that create global

hierarchies are also responsible for the local ones to be dominated and to be in an

inferior position.87

Despite the above legal systems are not motionless or static because public88 and

private89 interests nurture their demands for a change, and globalization according to

La Porta helps when a faster exchange of ideas is needed, laws and regulations then

encourage the transmission of legal knowledge. Globalization has also positive outlets

for business in general, as it supports competition among countries for foreign direct                                                                                                                                                                                                                                                                                                                                                            national borders; the creation of global networks of communication (mass media and the internet), global transportation systems, and global financial markets; the building of global or transnational political organisations or regulatory regimes (European Union (‘EU’), World Trade Organization (‘WTO’), North American Free Trade Agreement (‘NAFTA’), Association of Southeast Asian Nations (‘ASEAN’)); the consolidation of a global commercial system comprised of transnational corporations with production and sales networks that span countries around the world; the presence of non-governmental organisations that carry on activities around the world; the infliction of global or transnational environmental damage (damage to the ozone, global warming, Chernobyl nuclear fallout, depletion of fish stocks, acid rain and chemical pollution of rivers that cross several countries, etc), and terrorism with a global reach”. Tamanaha, Brian Z. Understanding Legal Pluralism: Past to present, local to global. p. 9. 86 “Globalization presupposes localization. We live as much in a world of globalizations as we live in a world of localizations. The production of globalization therefore entails the production of localization”. Sousa Santos, Boaventura. Globalizations. p. 396. 87 “The localized globalism. It consists of the specific impact on local conditions produced by transnational practices and imperatives that arise from globalized localisms. To respond to these transnational imperatives, local conditions are disin- tegrated, oppressed, excluded, destructured, and, eventually, restructured as subordinate inclusion. Such localized globalisms include: the elimination of traditional commerce and subsistence agriculture; the creation of free trade enclaves or zones; the deforestation and massive destruction of natural resources in order to pay off external debt; the use of historic treasures, religious ceremonies or places, craftsmanship and wildlife for the benefit of the global tourism industry; ecological dumping (the ‘purchase’ by Third World countries of toxic waste produced in the core capitalist countries in order to pay for foreign debt); the conver- sion of subsistence agriculture into agriculture for export as part of ‘structural adjustment’; and the ethnicization of the workplace (devaluing of salaries because the workers belong to an ethnic group considered ‘inferior’)” de Sousa Santos, Boaventura. Globalizations. p. 397.  88 Entities such as International Organizations, National Governments, government- funded construction, government-owned corporation, School districts, colleges, public universities, etc. 89 Private companies, Non-governmental organizations, private associations, etc.

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investment, which helps to put some pressure towards the adoption of good legal rules

and regulations90.

So far the challenges of globalization related to legal transplants are to overcome

Legrand’s 'impossibility' of legal transplants. To support policies that involve social

welfare as a priority over liberalization of the markets91; to lower down asymmetrical

power relations with underprivileged developing countries, the fragmentation of states

and the lack of autonomy are just a few examples of challenges that must be faced by

legal transplants in the context of globalization. Hereinafter we will be able to see

how these challenges are directly related to some cases of special legal transplants.

5. Case study on ‘working’ examples of legal transplants

Our purpose is to outline some cases of ‘working’ transplants found so far, in order to

identify, if there are any common factors and conditions under which they can be

transplanted and whether they are even possible in the first place.

When we analyse as to what extent can legal transplants become favourable in a

specific case and also discuss further as to what cases can be found to be progressive                                                                                                                          90 La Porta, Rafael. ‘The Economic Consequences of Legal Origins’. p. 25.  91 “The idea of inevitability of globalization also makes it easier to convince the general public to share the burdens of it, thus supporting an excuse often utilized by neoliberal politicians: 'It is the market that made us cut social programmes'. As German President Roman Herzog put it in a nationally televised appeal, the irresistible pressure of global forces demands that everyone will have to make sacrifices. Recent examples, such as the spectacular collapse of Enron Corporation in the United States, suggest that it is much more likely that sacrifices will have to be borne disproportionately by those workers and employees who lose their jobs or social benefits as a result of neoliberal policies (...) We find inexorable laws of nature favouring Western civilization, the self-regulating economic model of perfect competition, the virtues of free enterprise, the vices of state interference, the principle of laissez-faire, and the irreversible, evolutionary process leading up to the survival of the fittest”. (Steger, Manfred (2009). Globalization: A very short introduction. p. 101).

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in this matter, we then find that even some scholars have ventured to name the

working cases of legal transplants as ‘Overfitting Legal Transplants’92 in order to

explain that “a transplant may work almost as good as in the country of origin (and, at

worst, it may be irrelevant, or even harmful to the transplant country)”93.

Comparative researcher’s duty is to study the possibility of making legal borrowings

or transplants.94 As per Kassahun, despite numerous critiques in the early 1970s of

legal transplantation as a failure, such approach was nevertheless employed on an

extensive basis in the transition countries of East and Central Europe. According to

him similar outcomes are broadly evident in transition and developing countries.95

Scholars have revealed different categories and examples of legal transplants in many

occasions and different contexts. We have previously mentioned the reasons why

legal transplants take place96; amongst these arguments for instance, we found that

they rely on political and economical motivation, the need for authority, chance,

prestige, reputation, imposition, necessity, an expectation of efficacy of the law,

among other reasons.

                                                                                                                         92 Siems, Mathias M. The Curious Case of Over fitting transplants. Essays in Honour of Mark Van Hoecke, Oxford: Hart Publishing, 2014, pp. 133-146. 93 Ibid, p. 1. 94 “An investigation into the legal transplants that have occurred: how, when, why and from which systems have they been made, the circumstances in which they have succeeded and failed; and the impact on them of their new environment” Watson, Alan. Legal Transplants and European Private Law. p. 21. 95 “Japan’s received competition laws by the American post world war II, transition and German adoption of competition law forced by the American legal system, had local remaking and adjustment to the social and political outlook of the countries.” Kassahun, Yohaness, Legal and Governance Reform: Lesson learned, no. 1 2006. Searching for Success. Narative Accounts of Legal Reform in Developing and Transition Countries. p. 179. 96 See “Intermediate interpretations” from page 18 of this paper.

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The examples taken in this chapter will allow us to understand under which

circumstances those legal transplants ‘worked’ and why a good fusion of legal

systems, relevant conditions and prestigious complements, e.g. two-tier board system

adopted in socialist countries, globalization of the human rights and the inclusion of

the ‘good faith’ principle, are gears that can be useful when it comes to adopting legal

transplants.

5.1. A good fusion of legal systems

When a special combination of elements between different law systems bring benefits

to a country, the experience can be valued more when they mix in order to bring the

best of its foundations; for example when civil and common law systems came

together in South Africa the courts moved away from the archaic ways of the old

Roman-Dutch influence and imbibed the distinctions of English law and started to pay

attention to the intention of the parties when they contracted in private law.97

There are other examples of working legal transplants such as the Scottish law, most

of which was raised under Roman continental law. Another good example is the

insertion of civil and common law in Malaysia as an attempt to balance customary

and Islamic law.

                                                                                                                         97 See O.D. Schreiner, The Contribution of English Law to South African Law; and the rule of Law in South Africa. p. 49.

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a.) South Africa

The development of South African system has a story of parallel development that

goes across the two legal systems of English and Dutch law, according to O.D.

Schreiner98 South African observance to the English law were contributions to South

African law and were in no way responsible for the 90 and 180 days detentions and

other transgressions to the Rule of Law. In fact, South African adherence to the Rule

of Law was general and committed.

In the nineteenth century lawyers from South Africa familiarized themselves with the

English Law as it had many principles in common with South African law and it was

not difficult to adopt it. The two systems came along together and the fact that English

cases and textbooks were provided during the process made it a convenient and very

useful guidance. It has also been said that South African case can be explained too as

a ‘parallel development example’ and the fact that English law supported in

developing the law of agency to the current stage.99

                                                                                                                         98 See O.D. Schreiner, The Contribution of English Law to South African Law; and the rule of Law in South Africa. p. 47. 99 “I turn now to that great branch of the common law that is called in South Africa the law of delict and in England the law of torts. The difference between the singular and the plural corresponds roughly to a difference in historical back- grounds, though it is sometimes treated as of more importance than it deserves. In English law the prevailing picture is one of individual wrongs which the courts at various stages in the law's long history came to recognise as requiring an action for damages at the suit of the injured party. The English law of torts is thus a compendious description of the rules that apply respectively to the separate civil wrongs that have come to be treated as such over the centuries. In South Africa, on the other hand, we are accustomed to say that, with trifling exceptions, our law of delict rests on two ancient Roman remedies—(a) the actio injuriarum, to compensate for and penalise attacks on the person, which originated in the XII Tables and was developed by praetorian edicts; and (b) the actiolegis Aquiliae, the action to recover compensation, including originally a penal element, for harm done to another's property; in the later law harm to the other's body was included, and all forms of harm had to have been caused intentionally or negligently. There being thus, substantially, only two major bases for our law of delict, we are inclined to claim that this law is broader and more capable of being reduced to a few principles than is the English law, with its multiform distinct torts” (Id, p. 52).

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However the most important achievement in the South African case is the transplant

of human rights law with the adoption of the South African Constitution of 1996, a

topic that we will examine below in the globalization of human rights section.

b.) Scotland

Another good example that can be mentioned as a good mix of legal systems is the

Scottish law.100 Scotland represents an alternative model that shows both civil and

common law traditions merged, starting from the various resemblances to the Roman-

Dutch Law in South Africa due to the fact that historically great part of the Scottish

law was raised under Roman continental law.

Jan Smiths highlights for example that legal transplants in contract law have had more

success compared to property law because “law of obligations as a whole is richer and

blended than property law”101. Property law is on the other hand so deeply rooted to

the history that despite the pressures from the English Law this view cannot be

changed. This fact has been established by both Scottish and South African systems as

property law was influenced by Feudal and Roman-Dutch law.

                                                                                                                         100 “Other examples may refer to more specific mixtures between legal rules that derive from different models such ‘vertically divided legal systems’ are fairly common”. (Siems, Mathias M. The Curious Case of Over fitting transplants. pp. 133-146). See Mathias Siems, Comparative Law (Cambridge, Cambridge University Press, 2014, forthcoming chapter 4. 101 “The same may explain why even in other systems a change in the law of obligations takes place more easily than a change in property law. And even within the law of obligations, there is a tendency to stick to the already existing law”. Smiths, Jan. Scotland as a mixed Jurisdiction and the Development of European Private Law: Is there something to learn from evolutionary theory? p. 6.

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Although in Scottish law, Feudal land law was not Romanized; “other parts of Scots

property law have remained civilian as well, despite strong pressure from English

law”.102  

 

Transplanted laws offer and provide new resources from the traditionally ‘uncodified’

common law to the ‘codified’ civil law, and vice-versa. While common law

methodology is pragmatic, civil law approach is conceptual, and that is one advantage

some countries with mixed legal systems can take without discontent. There is for

sure an improvement that comes from mixing both worlds of legal and pragmatic

concepts, as legal consistency is highly rewarded for its ‘objectivity in law’.103

c.) Malaysia

We have seen examples of two legal systems mixing, but there are also cases that are

examples of a mixture of two or even more systems, as in the case of Malaysia104, a

country that applies not only Civil and Common law, but also Customary and Islamic

law in an attempt to balance the religious needs of its population with secular laws.105

Scholars have recognized that Malaysia has attempted to move forward thorough a

law reform by building a national economic framework with the integration into the                                                                                                                          102 Ibid, p. 6. 103 Jaakko Husa and Mark Van Hoecke make reference to “Objectivity in Law and Legal Reasoning” in order to understand why legal theory is “unavoidably confronted with varying conceptions of law, underlying ideologies, approaches to legal method, argumentation and discourse etc, which limit the possibilities of 'objectivity' in law and in legal reasoning”. (Objectivity in Law and Legal Reasoning, European Academy Of Legal Theory Series, Hart Publishing, 278 pp. 104 See more Katharina Pistor and Phillip Wellons, Asian Development Bank, the role of law: the legal Institutions In Asian Economic Development 1960–1995. 105 “The Malaysian experience may or may not be suitable for other countries facing a similar crisis, as an appropriate policy package would have to be one that is tailored to the specific features of the country and the specific problems it faces”. (Khor, Martin, Third World Network, Global Economy Series No. 4 p. 4.

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national economy of groups in disadvantage through successive law reform

programmes.106 Although there is a high risk that the adoption of new laws can be

obstructed by the cultural and social contexts of the particular countries, there is still a

chance that laws can be ‘re-integrated’ “into the societal patterns to address major

pathologies in new market-oriented economies”.107

The progress of Malaysian company law development is not solely influenced by

United Kingdom, influences from Australia, Singapore and New Zealand have also

played a major role. Influences from the Commonwealth case law and statutory

advances are also most notable. For instance, Singapore and Malaysia, “imported their

insider trading regulation much later from Australia. The rule adopted by Malaysia

and Singapore in 1973 was a copy of a precursor provision from Australian law that,

whether it counts as an insider trading provision or not, was certainly adopted first in

Australia”.108

The best of conceptual-theoretical and pragmatic spheres can ‘work’ as there is still

hope regarding legal transplants but that doesn’t mean that the process and its results

will always turn out to be ‘perfect’, as there is no legal system without a fault as legal

                                                                                                                         106 Kassahun, Yohaness, Legal and Governance Reform: Lesson learned, no. 1 2006. Searching for Success. Narative Accounts of Legal Reform in Developing and Transition Countries. Epilogue: An overview of law reform in the economic development context. International Development Law Organization (IDLO) p. 178. 107 “The imported laws created a superstructure, while the underlying societal norms—conditioned by socialist ideology—continued to guide behavior. This discrepancy forced the re-adaptation of laws within the societal context of the respective countries. The laws were to be integrated into the societal norms to address major pathologies in new market-oriented societies. The reformed laws were meant to overcome the discrepancies between the policy orientation and the underlying conditions that reflected preexisting institutional and individual behavior. In Eastern Europe, the re-adaptation process was facilitated through the EU accession process. Such incentives may help these countries escape the consequences of the non-assimilation of the legal transplants seen in African and Middle Eastern societies” (Ibid, p. 179). 108 Holger Spamann Spamann, Contemporary Legal Transplants: Legal Families and the Diffusion of (Corporate) Law, p. 1869.

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systems are designed by humans and there is and always will be a large scope of

further development and improvement in the future.109

5.2. Satisfactory and relevant conditions for legal transplants

When a transplant is pursued in its right track, a healthy sign is that the country in

need of the transplant is actually and actively looking for solutions and options, rather

than waiting for the host- origin country (similar to the colonization process) to

impose conditions for the implementation of laws that do not really fit their needs.

This is also brought up because according to McMahon there have been some cases of

countries such as Indonesia110, which “adopted competition law as a direct condition

of the receipt of funding from the International Monetary Fund, and for other post-

Soviet and transitional economies in Eastern Europe its adoption was seen as

preparation for eventual membership of the European Union (EU)”111 Unfortunately

those legal transplants never came to a happy ending for these developing countries.112

                                                                                                                         109 “I like the picture of the growing law, developing indefinitely into the future, not losing its roots but ever throwing out fresh branches and deriving its sustenance from any source above or below the ground that can be of use to it. Looking at it that way one can see that your legal system and mine can continue to grow in beauty side by side—if one's interest is in the harmony of the law—or providing ever more appropriate and convenient rules—if one is more concerned with the practical service of the community. I suggest that we can both be proud of our legal systems and of the association that has for more than a century existed between them. Long may that association continue and much may we together contribute to the strengthening of the supremacy of the law inside our respective jurisdictions and, above all, in these dangerous days, between the nations of the world” O.D. Schreiner, The Contribution of English Law to South African Law; and the rule of Law in South Africa. Published under the auspices of the Hamlyn trust. London, Steves & Sons, Juta and Company limited, 1967, p. 105. 110 “During the Indonesia crisis, the IMF advice to the government to close 16 banks, without first assuring the public that their deposits in the banking system were safe, led to large deposit withdrawals and capital flight from the country. This is now recognised as a blunder. Even in a major economic area of structural conditionality, i.e. that of trade policy and reform, the potential of mistakes can be high. The IMF and World Bank are well known for advising developing countries under their charge to undergo rapid trade liberalisation”. (Khor, Martin, Third World Network, Global Economy Series No. 4, p. 4. 111 Mc Mahon, Kathryn. Developing Countries and International Competition Law and Policy. International Law, Economic Globalization and Development, Julio Faundez, Celine Tan, p. 3. 112 “Many, if not most, developing countries are neither growing nor developing. The situation is bleak for many. Business as usual cannot be the response, as it has generally failed. The issue of

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Berkowitz agrees to this view, he points out that the modern formal legal order that

evolved in some Western countries and was transplanted into other countries is a

more important determinant than the supply of a particular legal code113, his argument

is based on two key hypotheses that apply specially for post-socialist economies,

firstly the context in which the law is applied has to be meaningful, in other words for

the law to be successful the enforceability of the law along with its context has to

‘work’ in order to be able to develop and finally enforce this law. Secondly, all legal

mediators involved in the process of developing the law (judges, lawyers, etc) have

the responsibility of “increasing the quality of law in a way that is responsive to

demand for legality”114.

The following example of China adopting the German tow tier board system explains

this in more detail.

                                                                                                                                                                                                                                                                                                                                                           conditionality and ownership should be viewed in a broad perspective, and this includes looking critically not only at the roads taken by the IMF but also at the roads not taken. The failure of the IMF and other international financial agencies to prevent such crises should be recognized as one of its major flaws, and this should be rectified. Indeed, the failure of the IMF in preventing the global financial system from going down the road of such rapid deregulation and liberalization (with the consequences of currency instability, volatility of capital flows and financial speculation), and instead presiding over this road that was taken, is a major mistake. It also goes against the original role of the IMF to establish and maintain a stable financial order. IMF conditionality policies have come under severe criticism for at least three reasons: (i) that there has been "over-reach" in that the conditions widened in range through time to include "structural policies" not needed for managing the crisis; (ii) that the policies in the core economic and financial areas of IMF competence have also been inappropriate as they were contractionary and did not generate growth; and (iii) that the policies were designed in ways insensitive to social impacts, and the burden of adjustment fell heavily on the poor and at the expense of social and public services. Many of the conditions were not relevant or critical to the causes or the management of the crisis the countries found themselves in. Some of these conditions were put into the conditionality package under the influence or pressure of major IMF shareholders for their own interest or agenda, rather than in the interests of the debtor country. ” (Khor, Martin, for the conditionalities subject and why the International Monetary Fund (IMF) is facing a crisis of legitimacy, p. 7). 113 Berkowitz, Daniel. Economic Development, Legality, and the Transplant Effect. p. 11. 114 Ibid, p. 12.

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a) China and the German two-tier board system

We managed to escape earlier from considering another law system: the ‘socialist law

system’ built under original precepts of the Marxist-socialism which focuses on

economic, political, and social concepts as policies of the state. We said that ‘we

managed to escape’ because our purpose is to use a socialist law system like China115

as an example for the nature of the discussion of this category of legal transplant.

When Grajzl stressed that “local conditions are a crucial determinant of the

appropriate path of institutional reform”116, he was inadvertently referring to China,

and the fact that they adopted the German two-tier board system117 during the period

of 1984 to 1992118, which matched not only their needs and context of the country but

also their social, economical and political policies of state already implemented and

the notion of ‘employee representatives’.

Germany’s two-tier board model not only tempted China “on the basis of a need to

promote solidarity in the face of social collapse after the two World Wars”119 the

employee representation on the supervisory board was also taken as an important

element characteristic of a socialist country. Siems suggests that “this is an over

                                                                                                                         115 “The implications for conditionality are significant. Evidence is emerging that wrongly sequenced and improperly implemented trade liberalisation is adding to developing countries' trade deficits. On average the trade deficit of developing countries (excluding China) worsened by an average of 3 percentage points of GNP between the 1970s to the 1990s. The IMF should thus review its trade liberalisation conditionality to take account of the need to enable countries to tailor their trade policy to their particular conditions and their development needs”. (Khor, Martin, Third World Network, Global Economy Series No. 4, p. 6. 116 Grajzl, Peter. The Choice in the Lawmaking Process: Legal Transplants vs. Indigenous Law. Review of Law & Economics, Vol. 5, No. 1, pp. 615-660. 117 Even since Qing Chinese dynasty the struggle to reform the law codes was primarily characterized by importing German codes with minimal modifications. 118 As seen in Yu, Jinping . Two-tier price system and economic transition. Journal of Economics, business and law. 2001, 3, p. 53-67. 119 Davies, Paul, Board Structure in the UK and Germany: Convergence or Continuing Divergence?, University of Oxford- Faculty of Law, p. 6.

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fitting legal transplant since employee involvement in companies makes politically

even more sense in a socialist country, such as the People's Republic of China, than in

a social market economy, such as Germany”120. For China, the fact that a simple rule

forbids “stealing in the context of communal property is a case in point. Other

examples include the transplantation of limited liability companies to China in the

early twentieth century.”121

Also when it comes to the improvement of the social welfare it has been argued by

scholars that the two-tier system contributed to it by preventing any major reductions

in productivity.122

5.3. Needs of the destination countries for prestigious complements

Foreign law can bring an important element to a country in need of a transplant, in

order to be sometimes more effective. Miller examines this additional element by

asserting that in terms of likelihood of success “a legitimacy-generating transplant

will only suffer in the face of a sharp decline in the prestige of the transplant donor,

                                                                                                                         120 Siems, Mathias M. The Curious Case of Over fitting transplants. Essays in Honour of Mark Van Hoecke, p. 142.  121 See more Berkowitz, Daniel. Economic Development, Legality, and the Transplant Effect. William Davidson Working Paper Number 410. 122 “China adopted a two-tier price system during the long period from 1984 to 1992. In this system, an identical good is offered for sale under different prices and availability conditions on two distinct allocation mechanisms: the government institutions and the market. Few could deny that the two-tier price system is a source of numerous distortions. This paper presents an interpretation of the rationality of this idiosyncratic system. At the beginning of economic transition, the undeveloped market lacked of complete information and corresponding legal institutions. As a transient device, the two-tier price system contributes to avoiding the drastic decrease in output and improving the social welfare.” See more Yu, Jinping . Two-tier price system and economic transition. Journal of Economics, business and law. 2001, 3, p. 53.

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since the transplant will lose its prestige as well”123 Likewise, the success of the

reception of a legal transplant depends on the acceptance of the destination country,

its system and also some structural factors. This proves Watson’s principle of

authority as to whether the laws of the importer country have the autonomy and

enough strength in its reception system, beyond the simple and ‘appropriate’

procedural enactment.124

a.) Americanization of global law

Globalization in this category plays a main role as market integration and capital

flows are in charge of putting pressure on different constituencies that can benefit or

lose within a given system, according to Pistor “it also adds new constituencies, in

particular, foreign strategic and portfolio investors, whose demand for formal legal

solutions to governance issues may differ from that of domestic constituencies. The

variety of motivations for the increased supply and demand for law in a global

environment confirms the multiplicity of roles that law plays in capitalist societies”125.

In addition, we previously mentioned Schauer126 to explain why legal transplants also

owe their origins to power, political and value reasons, and an example in this regard

is brought forward by Grosheide127 with the ‘Americanization of international contract

                                                                                                                         123 Miller, Jonathan M. A typology of legal transplants using sociology, legal history and Argentine examples to explain the transplant process, 2003. 51 American Journal of Comparative Law, p. 869. 124 Ibid, p. 48. 125 Pistor, Katharina and Milhaupt, Curtis J. Law and Capitalism. What corporate crises reveal about legal systems and economic development around the world. p. 56. 126 See more Schauer, Frederick, The politics and incentives of legal transplantation, p. 1. 127 Grosheide, F.W., Legal borrowing and drafting international commercial contracts in Comparability and Evaluation Essays in honour of Dimitra Kokkini-Iatridou, p. 18.

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law’, a phenomenon that has affected and influenced several countries in order to

integrate concepts such as leasing, factoring and franchising into their legal systems.

For instance “the economic relations may constitute a factor of influence of

transplantation for example, the United States given the Americanization of

international contract law have influenced the countries to incorporate American

concepts such as leasing, factoring and franchising in their legal systems”.128

Nowadays it is not less important to say that trends such as ‘Europeanisation’,

‘Americanization’ among other terms show an important effect of the globalization, to

the point that legal systems have taken a back seat in comparison to the role

previously fulfilled.

Today, these involuntary trends have become the framework of the contemporaneous

legal transplants.129

b.) Good faith principle

A second example can be appreciated if we take the principle of good faith, an

element transplanted to Chinese contract law which can be considered as a

“successful reception of foreign law”130 since this principle was able to be integrated

into Chinese culture and Confucian ideas along with other principles such as ‘freedom

                                                                                                                         128 Mosquera, Irma Johanna, Legal transplants and Comparative law, International Law: Colombian Journal of International Law, p. 268. 129 See Laura Nader, The Americanization of International Law, in Mobile People, Mobile Law: Expanding Legal Relations in a Contracting World pp. 199-213.  130 Siems, Mathias. “Comparative Law”, p. 213.

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of contract’ and the principle of ‘fostering transactions’ as ultimate and necessary

principles in China’s contract law.

Moreover, Liming Wang and Xu Chuanxi131 discuss the reception of this principle

into China’s culture as one of the three main principles and ‘spirit’ of the Contract

law. One of China’s challenges with the enactment of the bona fide principle is to

make sure it goes along with the current international business practice, which

basically will allow China to update their regulations in order to fit in with the global

economic standards.132

c.) Globalization of Human Rights

A third and broad example in this last category can be appreciated in the globalization

of human rights field that can also be cost-effectively favorable because it lowers

down the transaction costs that come from understanding different legal systems,

                                                                                                                         131 “As with any complex piece of legislation, of course, there may arise various problems and issues as the Contract Law is being implemented and interacts with various courts, arbitration tribunals, practicing lawyers, as well as particular contracting individuals and entities in their multitude of legal and/or business contexts. To tackle such problems and issues as they emerge, especially when China's business practice is in a flux and rapidly evolving, will undoubtedly be a serious and fascinating challenge.” (See Liming Wang and Xu Chuanxi, 1999, ‘Fundamental Principles of China’s Contract Law’, Columbian Journal of Asian Law, Vol. 13, No. 1). 132 “The principle of good faith will help to maintain China's traditional mores and commercial ethics. Chinese society has been under the crucial influence of Confucianism and has constantly been holding up the value of good faith. Good faith has not only been one of the general principles for people's everyday conduct but has also been a crucial moral precept in China's commercial practice. By embracing the principle of good faith, the Contract Law is recognizing China's traditional morality and business ethics, which is also consistent with the norms of international commercial practice. With its strong moral force, the principle of good faith can be expected to contribute much to the establishment of a normal transactional order in China (...) In view of the many social and economic changes occurring in China, many laws and regulations are no longer suitable to the current economic situation. Thus, if we adopt the principle of good faith and enable judges to fill the legal loopholes/vacuums accordingly, this will help to develop and improve China's legal system” (Ibid, p. 8).

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among other benefits covered in the process of legal transplantation for their

destination countries.133

The codified human rights laws originated in France and the United States and civil

and political rights were included into their catalogue since the nineteenth century.

They were gradually introduced in the constitutions of the continental European

countries, for example after the Second World War into Germany by the United

States, and after the fall of the Berlin wall to Central and Eastern European countries.

There are also vast differences between the civil and common law systems followed

by various countries in Europe though they appear to follow the same standards and

systems of law. Similarly differences can also be noticed between France and the

United States, while the former focuses its catalogue on social and economic rights,

the developments of the latter has a stronger concentration on cultural rights of

minorities.134

Although most of the historical concepts of human rights originated in the Western

culture135 that doesn’t turn human rights into universal rights; therefore we cannot talk

about an imposition of human rights, rather they were and are still in the process of a

voluntary adoption by other countries.136

                                                                                                                         133 Siems, Mathias M. “The Curious Case of Over fitting transplants” Essays in Honour of Mark Van Hoecke, p. 11. 134 See Siems, Mathias. “Comparative Law”. p. 214. 135 “Landmarks for civil and political rights are the English Carta Magna Libertatum of 2015, the Age of Enlightment (notably the philosophers John Locke, Jean-Jackes Rousseau and Immanuel Kant), the American Declaration of Independence of 1776, and the French Declaration of Human Rights of 1789. The nineteenth and twentieth centuries have also left their marks on human rights” for instance, reactions to the industrial revolution triggered the idea of social and economic rights, and those to Fascisim and Nazism the need to protect ethnic and religious minorities” (Siems, Mathias. “Comparative Law”, p. 215). 136 For instance, it can be a challenge to force the adoption of them in “Africa and the middle East, which are based on kinship and other group-centred social structures, and where law and religion are not strictly separated. It has also been said that ‘Asian values’ may be irreconcilable with human rights,

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Nevertheless, there is no doubt that South African Constitution of 1996 was

influenced by the Western culture and their notion oh human rights. It has also been

said that this legal transplant worked well “not only for the protection of individual

rights, but also as a means of reconciliation and transnational justice in post-Apartheid

South Africa”.137 Besides being an expression of modernity, human rights are on the

right track to be transplanted to non-Western countries, however, as most of the

examples of positive legal transplants we have reviewed, this process should be

voluntary and not forced138. Although some of the scholar’s view is that human rights

origin comes from the Western civilization some have shown on the contrary that “it

is misleading to postulate isolated legal orders and, for instance, a strict dichotomy

between European and Asian values”139. The human rights movement is positioned

within the historical field of Eurocentrism140 as a civilizing assignment, in other words

it can be construed or appear to be alien to non-European cultures. Academics who

claim the origin of human rights came from the west may have forgotten that it was

European and not non-European outrages that gave rise to the human rights in the first

place.141

                                                                                                                                                                                                                                                                                                                                                           reference is made to the collectivist and communitarian principles in Asian culture, the idea of thinking about what is ‘good’ (not what is right), as well as ‘a deep Asian spiritualism, historical practice of non-violence, and inner respect for the environment” (Siems, Mathias. “Comparative Law”. p. 216). 137 “The bill of rights of the South African Constitution of 1996 has been influenced by its German, Canadian, and Indian counterparts. In its application, the South African Constitutional Court has also considered the case law of other countries: for instance, in considering the horizontal effect of human rights, it referred to the German Constitutional Court.” (Siems, Mathias M. “The Curious Case of Over fitting transplants”. Essays in Honour of Mark Van Hoecke, p. 10). 138 “The overall result is that, in non-colonial non-Western countries, the experience of legal transplants shows many similarities to those of colonial and Western countries: laws have been frequently transplanted, affecting the local environment, but not in a naive and mechanical way”. (Siems, Mathias. “Comparative Law”, p. 213). 139 Ibid, p. 217. 140 “More specifically, scholars have shown that human rights are not simply a ‘gift of the West to the rest’, but that they can also be reconciled with African, Islamic and other traditions. Thus, according to this view, a global ethic and a dialogical human rights discourse are the way forward, not simply one-sided transplants of ‘Western’ human rights. (Siems, Mathias. “Comparative Law”, p. 217). 141 Hesford, Wendy S. Spectacular Rethorics, Human Rights Visions, Recognitions, Feminisms. p. 33.

  45  

However the posture of the United Nations is that “the promotion and the protection

of all human rights is one of the priorities of the international community (...)

irrespective of their political, economic and cultural systems, to promote and protect

all human rights and fundamental freedoms”142. Many Islamic countries have however

shown their reluctance in the adoption of human rights citing their incompatibility to

their religious and cultural fundamentals. Even though some Islamic countries have

tried to implement their own version of human rights (Islamic human rights) with the

Cairo Declaration of Human Rights in Islam (CDHRI) adopted in Cairo in 1990, these

efforts have not done a lot in order to assure the rights of religious minorities where

Islam is the dominating religion, let alone leaving Islam as a religion, as this is

considered as apostasy and it is very rigorously punished.

Furthermore studies of quantitative research have shown that in fact the

implementation of human rights have helped to lower human rights violations.143

However the fact that legal transplants take place in countries that violate human

rights does not guarantee the effective protection of these, as most of the times it only

represents a symbolic gesture from importer countries that are not really committed to

the implementation of the acquired obligations and they just ‘adopt’ a law for the sake

of not being criticized, but most important because without these implementation they

cannot have access to economical and financial help from international organizations,

and international provisions in order to receive economical benefits.

                                                                                                                         142 "The recognition that all human rights - civil, cultural, economic, political and social - are universal, indivisible, interdependent and interrelated and that, while the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms”. (United Nations General Assembly A/RES/48/141, 85th plenary meeting, 20 December 1993). 143  Siems, Mathias. “Comparative Law”, p. 218.

  46  

Besides the positive legal transplant of South African constitution, the defense of

human rights have been safeguarded by India too, although the reason why it has

happened is not due a legal transplant, rather “the Indian Constitution can also be seen

as following a general trend, since social, economic and cultural rights were also part

of the United Declaration on Human Rights of 1948”144

D.) Anti discrimination law

Hand in hand with the legal transplant process of human rights another noteworthy

consequence of globalization is the law against discrimination. Originated in the U.S

in the 70’s and borrowed by the British, it achieved a model that underlined the

dynamics between political and legal culture. The EU race Directive of 2000 of 29

June 2000145 required France and Germany to implement antidiscrimination laws in

order to promote the principle of equal treatment to a multicultural and diverse

Europe, aiming for equal opportunities in employment, irrespective of gender, origin,

religion, sexual orientation, disabilities, etc.

However, besides promoting equal treatment, one of the ultimate and real goals of the

law was and still is to reform a culture of racism and stereotyping. Can a law truly

achieve this goal? It is in fact a hard and long process to implement antidiscrimination

laws, as the target may seem to be too broad and ambitious. One way to ensure these

policies have the right effect is to require member states to enact antidiscrimination

regulation along with the their national judicial systems, perhaps a coherent way to                                                                                                                          144 “The strong rights for religious and cultural minorities in the Indian Constitution of 1950 are said to be more closely related to the specific Indian historical context, namely the growing tensions between Hindus and Muslims after gaining independence” (Siems, Mathias. “Comparative Law”. p. 219). 145 Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin.

  47  

implement something new. Although multiple legal obstacles can be considered for

instance in France where there is no class-action and therefore and due to its nature,

there is no way to determine damages derived from an act of discrimination and let

alone the process of proving such acts from an employer, for instance. All in all,

comparative lawyers need to focus more attentively on this complex dynamics.

  48  

6. Conclusions

Revisiting the original question of the extent of the positivity of legal transplants we

have analysed and discussed a number of specific cases in which the results of legal

transplants can be ‘marked’ as optimistic. Does this means that a transplant can work

always or almost as good as in the country of origin? No. But it is an important

contribution to the academic literature in order to start rising and implementing a

different strategy from what it has been created before.

Legal transplants can be more effective than expected when their motivation is not a

deliberate plagiarizing by the country that is in need of the transplant, they also work

better when they are not imposed, therefore their nature should be ‘voluntary’,

unfortunately that is not the common imperative. There is also a big difference

between ‘old’ legal transplants made in the colonial times and what can be termed as

‘modern’ legal transplants.

There is no established path to predict the achievement of an effective legal transplant

whatsoever, the capacity to calculate or forecast a ‘workable’ legal transplant seems

to be more a result of chance and good preparation. There is no determined route that

defines the right way when considering all legal transplants, but it is highly

recommended that law-makers should outline the prospective opportunities that come

with the adoption of particular elements by choosing the reasons that may inspire the

legal transplant. This could be determined autonomously by the requests of the

countries in need of the legal transplants and that is one of the biggest challenges that

face modern legal comparatists.

  49  

Our view disagrees with the ‘successful vs. failure discussion’, and that is the main

reason why the tittle of this paper is not on absolute ‘successful examples’; rather we

decided to use the expression ‘working’. To support one position or another is to fall

into a trap of a hasty generalization that includes all legal transplants cases around the

world, in all fields of law. Also working legal transplants cannot be always called

‘successful’; perhaps the fact that they manage to survive doesn’t make them

successful. Moreover, deciding that legal transplants are a failure or a success overall

without considering all of the components is centering the discussion on insufficient

evidence. Consequently, the answer to every case must be studied specifically and not

overall.

Legal transplants are real and cannot be ‘impossible’. The very existence of them

makes Legrand's thesis of 'impossibility' and harmful effects of legal transplants not

only too extreme but also inconsistent as something cannot be damaging and

inexistent at the same time. If legal transplants were irrelevant, like ‘culturalists’ and

some postmodern views support, and the incompatibility between deep-rooted and

different law were negative due to social, economic, political and cultural differences

between domestic and foreign law, then no country will be able to engage and

integrate (cross-fertilization) new concepts to their legal system, and in a way they

will be condemned to be “prisoners of its own past traditions”146.

Now is it worth being anchored to the past when there is a variety of legal ranges to

choose from? Does the sole fact of trying to implement new policies and regulations

imply losing autonomy? No, on the contrary, the autonomy is in allowing to find the

                                                                                                                         146 Arvind, TT (Thiruvallore Thattai), ‘The ‘transplant effect’ in harmonization’ pp. 65-81.  

  50  

best solutions to problems that could not be solved by the original and old legal frame

work. As Watson would say “the lesson of comparative law is that it teaches what has

been done, therefore what can be done”147

If a legal transplant is a “smart way of choosing a foreign legal model that has proven

to work well”148 importing and exporting countries must also have an understanding

of their interests in the legal transplantation which basically means they both have

expectations and interests in developing their societies, although it can also happen

that “some legal transplants are not directly related to the benefits of either of the two

countries involved”149.

Conditions for legal transplants are also favourable when the adoptions of new laws

have positive effects despite of them being outside of the domestic legal system.

Every failed legal transplant has a history of their faults and virtues that comparatists

must learn from. It is also to consider that law modification must not always be

tailored to the specific social context, for we can see the example of human rights

legal transplants from America.

Notwithstanding, the biggest challenges of legal transplants are to overcome all the

obstacles imposed by ‘a legal globalization’ that often threatens with the exploitation

of developing countries. It is clear that local and specific rules ‘work’ as long as their

nature persists -as- local. However, legal transplants are everything but local and the

                                                                                                                         147 Watson, Alan. Legal Transplants and European Private Law, p. 4. 148 Siems, Mathias. “Comparative Law”, p. 190. 149 Ibid, at. 192.

  51  

spread of fields like human rights, americanization of the law etc, shows this rules

across legal cultures, and as a consequence such ‘regionalism’ becomes debateable.

The threats of globalization often occur when the market tries too hard to dominate

social and political aftereffects; therefore globalization rewards end up spreading

unequally150. To fight the threats of a globalization that we believe concentrates all its

wealth amongst a select group of regions, we should not give priority to the

liberalization of markets, as it is clear that we need to go towards policies that support

social welfare, access, and substantive equality and justice, rather than overall

economic efficiency.

In other words, a globalization that is more focused on “the liberalization of markets

rather than social welfare, on negative rights rather than positive rights and access, on

overall economic efficiency rather than substantive equality and justice”151 should not

be adopted as a context for legal transplants; therefore we must reconsider the notion

of ‘globalization’. A different globalization needs to take seriously the human

interdependency performance, the humankind unification process and the true nature

of its global context. It needs to quit its double standards and needs to start being

more inclusive and less exclusive152. If legal transplants are inevitable, they must

therefore develop in a different path where the principal aim is to lower down

asymmetrical power relations.

                                                                                                                         150 Steger, Manfred (2009). Globalization: A very short introduction, p. 104. 151 Siems, Mathias. “Comparative Law”, p. 190.  152 “Even data taken from the World Bank suggest that income disparities between nations are actually widening at a quicker pace than ever before in recent history”. Steger, Manfred (2009). Globalization: A very short introduction. New York: Oxford University, Press. p. 104.  

  52  

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