Legal transplant
Encyclopedia
The term legal transplant was coined in the 1970s by the Scottish-American legal scholar W.A.J. 'Alan' Watson
to indicate the moving of a rule or a system of law from one country to another (A. Watson, Legal Transplants: An Approach to Comparative Law
, Edinburgh
, 1974). The notion of legal transplantation is diffusionism-based and according to this concept most changes in most legal systems occur as the result of borrowing. As maintained by Watson
, transplantation is the most fertile source of legal development.
Laws are commonly inspired by foreign policies and experiences. Regardless of the academic discourses on whether legal transplants are sustainable as a notion in the legal theory
, they are common practice. Nevertheless, the degree to which new laws are inspired by foreign examples can vary. A frequent and often justified criticism is that imported laws are not suited for a certain local context.
German jurist Friedrich Carl von Savigny
and his historical school of jurisprudence
, which was inspired by the 19th-century Romanticism
, have notably promoted the origins of the German people and their distinctive ethos
, or Volksgeist
(“the spirit of a people”). Savigny’s school of legal thought expressed the need of legal change to respect the continuity of the Volksgeist offering a pre-Darwinian concept of juristic evolution. However, this concept of juristic evolution did not leave much space for notions such as legal transplants and the diffusion of law. In the recent time, Pierre Legrand was one of the strongest opponents of legal transplants.
Today, legal transplants are often mentioned in the broader process of diffusion of law or legal acculturation
. J.W. Powell is credited with coining the word “acculturation”, first using it in an 1880 report by the US Bureau of American Ethnography
. He explained that this term refers to the psychological
changes induced by cross-cultural
imitation
. In a broader context, such notion is by many contemporary scholars applied to legal thought. The diffusion of law is a process of legal change in today’s age of globalization
. Studies on diffusion of law are notably a new area of research in the 21st century.
Alan Watson
Professor W.A.J. 'Alan' Watson is a Scottish law and legal history expert, and is regarded as one of the world's foremost authorities on Roman law, comparative law, legal history, and law and religion...
to indicate the moving of a rule or a system of law from one country to another (A. Watson, Legal Transplants: An Approach to Comparative Law
Comparative law
Comparative law is the study of differences and similarities between the law of different countries. More specifically, it involves study of the different legal systems in existence in the world, including the common law, the civil law, socialist law, Islamic law, Hindu law, and Chinese law...
, Edinburgh
Edinburgh
Edinburgh is the capital city of Scotland, the second largest city in Scotland, and the eighth most populous in the United Kingdom. The City of Edinburgh Council governs one of Scotland's 32 local government council areas. The council area includes urban Edinburgh and a rural area...
, 1974). The notion of legal transplantation is diffusionism-based and according to this concept most changes in most legal systems occur as the result of borrowing. As maintained by Watson
Alan Watson
Professor W.A.J. 'Alan' Watson is a Scottish law and legal history expert, and is regarded as one of the world's foremost authorities on Roman law, comparative law, legal history, and law and religion...
, transplantation is the most fertile source of legal development.
Laws are commonly inspired by foreign policies and experiences. Regardless of the academic discourses on whether legal transplants are sustainable as a notion in the legal theory
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
, they are common practice. Nevertheless, the degree to which new laws are inspired by foreign examples can vary. A frequent and often justified criticism is that imported laws are not suited for a certain local context.
German jurist Friedrich Carl von Savigny
Friedrich Carl von Savigny
Friedrich Carl von Savigny was one of the most respected and influential 19th-century jurists and historians.-Early life and education:...
and his historical school of jurisprudence
German Historical School
The German Historical School of Law is a 19th century intellectual movement in the study of German law. With Romanticism as its background, it emphasized the historical limitations of the law...
, which was inspired by the 19th-century Romanticism
Romanticism
Romanticism was an artistic, literary and intellectual movement that originated in the second half of the 18th century in Europe, and gained strength in reaction to the Industrial Revolution...
, have notably promoted the origins of the German people and their distinctive ethos
Ethos
Ethos is a Greek word meaning "character" that is used to describe the guiding beliefs or ideals that characterize a community, nation, or ideology. The Greeks also used this word to refer to the power of music to influence its hearer's emotions, behaviors, and even morals. Early Greek stories of...
, or Volksgeist
Volksgeist
Volksgeist is a German loanword for a unique "spirit" possessed collectively by each people or nation. The idea has its origins in the Romantic era and was proposed by Johann Gottfried Herder.Herder used this to create cultural sentiments on the people of Germany....
(“the spirit of a people”). Savigny’s school of legal thought expressed the need of legal change to respect the continuity of the Volksgeist offering a pre-Darwinian concept of juristic evolution. However, this concept of juristic evolution did not leave much space for notions such as legal transplants and the diffusion of law. In the recent time, Pierre Legrand was one of the strongest opponents of legal transplants.
Today, legal transplants are often mentioned in the broader process of diffusion of law or legal acculturation
Acculturation
Acculturation explains the process of cultural and psychological change that results following meeting between cultures. The effects of acculturation can be seen at multiple levels in both interacting cultures. At the group level, acculturation often results in changes to culture, customs, and...
. J.W. Powell is credited with coining the word “acculturation”, first using it in an 1880 report by the US Bureau of American Ethnography
Ethnography
Ethnography is a qualitative method aimed to learn and understand cultural phenomena which reflect the knowledge and system of meanings guiding the life of a cultural group...
. He explained that this term refers to the psychological
Psychology
Psychology is the study of the mind and behavior. Its immediate goal is to understand individuals and groups by both establishing general principles and researching specific cases. For many, the ultimate goal of psychology is to benefit society...
changes induced by cross-cultural
Cross-cultural
cross-cultural may refer to*cross-cultural studies, a comparative tendency in various fields of cultural analysis*cross-cultural communication, a field of study that looks at how people from differing cultural backgrounds communicate...
imitation
Imitation
Imitation is an advanced behavior whereby an individual observes and replicates another's. The word can be applied in many contexts, ranging from animal training to international politics.-Anthropology and social sciences:...
. In a broader context, such notion is by many contemporary scholars applied to legal thought. The diffusion of law is a process of legal change in today’s age of globalization
Globalization
Globalization refers to the increasingly global relationships of culture, people and economic activity. Most often, it refers to economics: the global distribution of the production of goods and services, through reduction of barriers to international trade such as tariffs, export fees, and import...
. Studies on diffusion of law are notably a new area of research in the 21st century.