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Law as Transposition

Published online by Cambridge University Press:  17 January 2008

Esin Örücü
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Legal scholars approach law in many ways. They are dedicated to various trends such as ‘law as rules’, ‘law as system’, ‘law as culture’, ‘law as tradition’, ‘law as social fact’, ‘law in context’, ‘law and history’, ‘law and economics’, and ‘law and legal theory’. Most comparative lawyers also are aligned to these trends. Some of the trends share belief in the reality of mobility of law, seeing law reform to be partly related to choice from pools of models supplied from a number of legal systems. There is, however, disquiet as to the appropriateness of the phenomenon of ‘legal transplants’ as the predominant explanation of law reform. The disquiet is related both to this mode of law reform and to the conceptual frame suggested by the terminology. It is said that law reform should be from within, and that since a transplanted institution continues to live on in its old habitat as well as having been moved to a new one, the choice of the word ‘transplant’ is inappropriate.1

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Articles
Information
International & Comparative Law Quarterly , Volume 51 , Issue 2 , April 2002 , pp. 205 - 223
Copyright
Copyright © British Institute of International and Comparative Law 2002

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References

1 The term ‘legal transplant’ fits better its original meaning which is, when a people, moving into a new territory with no comparable civilisation, takes its laws with it. Now it is used as a generic term for all transnational or cross-border spread of law.

2 This author has used and analysed the terms ‘transposition’ and ‘tuning’ through examples. See Örücü, E., Critical Comparative Law: Considering Paradoxes for Legal Systems in Transition, Nederlandse Vereniging voor Rechtsvergelijking No: 59 (Deventer: Kluwer, 1999)Google Scholar; id, ‘Shifting Horizons for Comparative Law in the New Century’, (2000) 8 Asia Pacific Law Review, 115–38Google Scholar. Also see id, ‘Comparison in Extraordinary Places’ paper presented to Comparative Legal Studies: Traditions and Traditions Conference, Cambridge 26–3007 2000 (to be published).Google Scholar

3 For example, Berkowitz, Pistor, and Richard say, ‘The existing formal legal order in most countries around the world was shaped by transplanting formal legal systems that have evolved in several European countries in the late eighteenth and early ninteenth centuries’, with these formal legal orders being derived during the nineteenth and early twentieth centuries. D Berkowitz, K Pistor and J-F Richard, ‘Economic Development, Legality, and the Transplant Effect’, Law and Development Paper No 1, CID Working Paper No 39, Mar 2000, Center for International Development at Harvard University at <http://www.cid.harvard.edu.cidwp/039.pdf>.

4 Obviously not all advocates of modernisation see it as appropriate to rely on foreign models. Kulcsar for example, doubts the value of comparisons between societies as diverse as Ethiopia and Hungary, and says, ‘I see the most important characteristic of modernity in whether a society is capable of continuous social change by utilising its own, internal conditions, Kulcsar, K, Modernisation and Law, tran Gathy, V (Budapest: Akademiai Kiado, 1992), 18Google Scholar. Also reviewed by I Pogany in (1994) 43 ICLQ, 483. This would nevertheless involve internal transpositions and tuning, so can be regarded as falling within the ‘law as transposition’ diagnosis.

5 Sacco, R, ‘Legal Formants: A Dynamic Approach to Comparative Law (Installment II of II)’ (1991) 39 Am J Comp Law, 395.Google Scholar

6 Watson, A, Legal Transplants: An Approach to Comparative Law (Edinburgh: Scottish Academic Press, 1974).Google Scholar

7 Legrand, P, ‘The Impossibility of Legal Transplants’ (1998) 4 MJ, 111.Google Scholar

8 Teubner, G, ‘Legal Irritants: Good Faith in British Law or How Unifying Law Ends Up in New Divergencies’ (1998) 61 MLR, 11, at 17.CrossRefGoogle Scholar

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10 Ibid, at 236.

11 For the former see, Watson, op cit, above n 6, his n 53 at 30 where he also mentions imposed reception, solicited imposition, crypto-reception and inoculation. For a more complete list, see also Örücü, , ‘A theoretical framework for transfrontier mobility of law’, in Jagtenberg, R, Örücü, E, and A De, Roo (eds), Transfrontier Mobility of Law (The Hague: Kluwer Law International, 1995), at 5Google Scholar. Here we see cross-pollination, engulfment, emulation, infiltration, infusion, digestion, salad bowl, melting pot, and transposition.

12 Monateri claims that the term ‘legal transplant’ utilised by Watson for ‘scholarly purposes’ is today taken over by ‘purposive practical lawyers’ involved in projects of ‘exporting their own legal systems’. See, Monateri, PG, ‘The “Weak” Law: Contaminations and Legal Cultures’, in Italian National Reports to the XVT International Congress of Comparative Law, Bristol 1998 (Milano: Giuffre editore, 1998), 83Google Scholar. Transplants have also been classified into four groups: direct-receptive, direct-unreceptive, indirect-receptive, indirect-unreceptive, the indication being that even ‘transplant’ from ‘transplant’, that is indirect transplant, rather than from ‘origin’, that is direct transplant, can be successful. See Berkowitz et al, op cit, above n 3, 15.

13 See Ajani, G, ‘La Circulation de Modeles luridiques Dans le Droit Post-Socialiste’, RIDC-4 (1994), 1087–105.CrossRefGoogle Scholar

14 Smits, JM, ‘Systems Mixing and in Transition: Import and Export of Legal Models: The Dutch Experience’, in Hondius, EH (ed), Nederlands Reports to the Fifteenth International Congress of Comparative Law (Antwerp: Intersentia Rechtswetenschappen, 1998), 55.Google Scholar

15 F Schauer, ‘The Politics and Incentives of Legal Transplantations’, Law and Development Paper No 2, CID Working Paper No 44, April 2000, Center for International Development at Harvard University, <http://www.cid.harvard.edu/cidwp/044.htm>.

16 Berkowitz et al, op cit, above n 3 at 5.

17 Ibid, 11.

18 Ibid, 19.

19 Grief, N, ‘The Pervasive Influence of European Community Law in the United Kingdom’, in Watkin, TG (ed), The Europeanisation of Law (UKNCCL, 1998), at 110.Google Scholar

20 Ibid.

21 In historical terms English common law also contaminated ex-colonies such as St Lucia with already existing civilian-based codes.

22 In a similar vein, Zimmermann recounts the parable of the Good Samaritan and uses the image of ‘half alive rather than half dead’ describing the wounded man on the way to Jericho. See Zimmermann, R, Roman Law, Contemporary Law, European Law (Oxford: Oxford University Press, 2001), 188–9.CrossRefGoogle Scholar

23 Teubner, op cit, above n 8, at 12.

24 Ibid, at 11. ‘Good faith’ also appears in Art 1.106 of the Principles of European Contract Law and International Commercial Law.

25 Ibid, at 12.

26 Ibid, at 11.

27 Ibid.

28 Ibid, at 19. A comparison can be drawn with ‘transposition’.

29 Ibid, at 20.

30 Ibid, at 21.

31 Ibid, at 12.

32 Among these external forces, Tuebner cites markets, organisations, the professions, the health sector, social security, family, culture, and religion.

33 Watson, A, ‘Aspects of reception of law’ (1996), 44 Am J Comp L, 345.CrossRefGoogle Scholar

34 Örücü, , ‘Internal Logic of Legal Cultures’ (1987) 7 Legal Studies, 310.CrossRefGoogle Scholar

35 A ‘mixed jurisdiction’ in the classical sense is the outcome of an encounter between legal systems of diverse socio- and/or legal-cultures. See Örücü, , ‘Mixed and Mixing Systems: A Conceptual Search’, in Örücü, E, Attwooll, E and Coyle, S (eds), Studies in Legal Systems: Mixed and Mixing (London: Kluwer Law International, 1996), 344–5Google Scholar. See for another approach, Palmer, VV (ed), Mixed Jurisdictions Worldwide: The Third Legal Family (Cambridge: Cambridge University Press, 2001).Google Scholar

36 See Örücü, above n 11, at 10–12.

37 See the work of Sally Moore here, Law as Process: An Anthropological Approach, (London, Routledge & Kegan Paul, 1978)Google Scholar, and ead, Social Facts and Fabrications: ‘Customary’ Law on Klimanjaro, 1880–1980 (Cambridge: Cambridge University Press, 1986).Google Scholar

38 This type can be called a ‘pureé’ where the elements are totally blended.

39 This type can be called the ‘mixing bowl’.

40 This type can be called the ‘Italian salad bowl’ where although the salad dressing covers the salad, it is easy to detect clearly the ingredients through the side of the glass bowl.

41 This type can be called the ‘English salad plate’.

42 Örücü, op cit, above n 11, at 10–12.

43 Those that want to join the EU for example, cannot but follow Community models, replicate the directives and so on.

44 There is always a danger of over-transplantation and over-supply. However, other inherent dangers are few since donors like to preserve their own reputation, influence, power, wealth and pleasure. See Schauer, op cit, above n 15, at 21.

45 Örücü, above n 35, at 351.

46 See Schauer, op cit, above n 15, at 2–18.

47 Ajani, G, ‘The Role of Comparative Law in the Adoption of New Codifications’, in Italian National Reports to the XVT International Congress of Comparative Law, Bristol 1998 (Milano: Giuffre editore, 1998), 70.Google Scholar

48 See for the influence of the Louisiana Code there Varul, P and Pisuke, H, ‘Louisiana's Contribution to the Estonian Civil Code’ (1999) 73 Tulane Law Review, 1027.Google Scholar Estonia also drafted the American Bankruptcy Law with the help of members of the Georgetown Law School.

49 With the possible exception of Latvia.

50 Ajani, op cit, above n 47, at 72 n 12.

51 It is suggested that in order to understand the CEE systems we should consider them with a bottom-up and source-oriented approach rather than a top-down, target-oriented approach. Any comparisons between common law, civil law and socialist law also demonstrate the ‘translation dilemma’. See Jamieson, N, ‘Source and Target-Oriented Comparative Law‘ (1996) 44 Am J CompL 121.CrossRefGoogle Scholar

52 Evans, A, ‘Voluntary Harmonisation in Integration between the European Community and Eastern Europe’ (1997) 22 EL Rev 201, at 202.Google Scholar

53 Monateri, op cit, above n 12 at 84.

54 See for a discussion of cases reflecting this tuning Örücü, op cit, above n 2 (1999) at 81–118.

55 Monateri, op cit, above n 12, at 85.

56 Sacco, op cit, above n 5, at 400.

57 Yet in their economic analysis, Berkowitz et al, place the Turkish legal system in their Table 3 as an ‘unreceptive’ transplant with nil adaptation and familiarity. Berkowitz et al, op cit, above n 3, at 37.

58 See Örücü, above n 2, and id, ‘Turkey Facing the European Union–Old and New Harmonies’ (2000) 25 EL Rev 523–37.Google Scholar

59 Starr, J and Pool, J, ‘The impact of a legal revolution in rural Turkey’ (1974) 8 Law and Society Review 533CrossRefGoogle Scholar. They submit, ‘our data … suggest that the Turkish revolution is a revolution in more than form.’ See also Banakas, EK, ‘Some thoughts on the method of comparative law: the concept of law revisited’ (1981) 67 Archivfur Recht und Soziale Philosophie, 294Google Scholar. He states that ‘the determination of Turkish leaders to succeed in their objective, finally caused the desired alteration of the existing socio-economic structure, by the imported legal system’.

60 See, eg, Zimmermann, op cit, above n 22, at 107–85.

61 DJ Ibbetson, ‘A Reply to Professor Zimmermann’, in Watkin, op cit, above n 19, at 228.

62 Ibid, at 229.

63 Ibid, at 229–30.

64 See also for frustation of leases National Carriers v Panalpina [1981] AC, 675. For the influence of Scots law on English law in the field of conflict of laws see Watson, op cit, above n 33, at 341.

65 Bingham, Lord, ‘There is a World Elsewhere: The Changing Perspectives of English Law’ (1992) 41 ICLQ, 517.CrossRefGoogle Scholar

66 X Lewis, ‘Europeanisation of the common law’, in R Jagtenberg et al, op cit, above nil, 47 at 50.

67 Grief, op cit, above n 19, 90 at 110.

68 In areas where law is developing fast, or new areas of law are opening up, the British courts, for example, look at other common law jurisdictions where socio- and legal-cultural affinity is deemed to exist. But, even then, occasionally, one can come across cases where New Zealand or Australia are found to be ‘too progressive’ or to rely on ‘other philosophical and social premises’. For such cases see Örücü, , ‘The United Kingdom as an Importer and Exporter of Legal Models in the Context of Reciprocal Influences and Evolving Legal Systems’, in UK Law for the Millennium (1998, UKNCCL, London, and 2nd edn 2001), 206.Google Scholar

69 Consider, eg, the US Uniform Commercial Code in Uzbekhistan, or the German Code of Bankruptcy in the Kyrgyz Republic.

70 Watson, op cit, above n 6, at 79. However, Berkowitz et al demonstrate the importance of not only ‘adaptation’ but ‘familiarity’ as a measure of receptivity. See Berkowitz et al, op cit, above n 3.

71 Cf Gessner, V, ‘Global Legal Interaction and Legal Cultures’ (1994) 7 Ratio Juris 132CrossRefGoogle Scholar, who says that universal harmonisation abstracts completely from the cultural dimension of law and yet this is a major problem for European integration.

72 eg, there will be ample scope to study the impact of the new Dutch Civil Code, which is already becoming a valuable export product.

73 In addition, they will have to provide a better understanding of changing concepts of nation-hood, sovereignty, legal system, legal families, law, and identity.

74 Berry, DS, ‘Interpreting Rights and Culture: Extending Law's Empire’ (1998) IV Res Publica–A Journal of Legal and Social Philosophy 1, at 10.Google Scholar

75 Milo, M and Smits, J, ‘Trusts in Mixed Legal Systems: A Challenge to Comparative Trust Law’, (2000) 3 European Review of Private Law, 421, at 423.CrossRefGoogle Scholar

76 Ibid.

77 Such mixes can be portrayed along a spectrum. See Örücü, op cit, above n 11, at 12

78 eg, in the new South African mix created by the Constitution of 1996, the scope of the mix is extended by regarding traditional law as part of South African law, as well as adding the Canadian and German models to the elements in the mix. In the Hong Kong mix, the common law is shifting from being the overlay to becoming the underlay.

79 For the patterns of internal logic and the outcome of movements of elements between systems, see the schematic exposé in Örücü, op cit, above n 35, 339 and 343.

80 Sacco, op cit, above n 5, at 394, 397.

81 Watson, op cit, above n 33, at 94.

82 Monateri, op cit, above n 12, at.107.

83 It may of course be argued that the soil will be changed and possibly enriched by the fertilisation.

84 See Örücü, ‘Public Law in Mixed Legal Systems and Public Law as a “Mixed System“ ’, vol 5.2 Electronic Journal of Comparative Law, (May 2001), <http://law.kub.nl/ejcl/52/art52/2.html>, 6.