Comparative Law, Legal Transplants and Legal Change

Abstract

The changes in the legal universe that have been taking place in the last few decades have increased the potential value of different kinds of comparative law information and thereby urged new objectives for the comparative law community. The comparative method, which was earlier applied in the traditional framework of domestic law, is now being adapted to the new needs created by the ongoing globalization process, becoming broader and more comprehensive with respect to both its scope and goals. Associated with this development is a growing interest in the question of transferability or transplantability of legal norms and institutions across different cultures, especially in so far as current legal integration and harmonization processes require reasonably transferable models. This paper critically examines the issue of transferability of laws with particular attention to the theory of legal transplants propounded by Professor Alan Watson, one of the most influential contemporary comparatists and legal historians. It is submitted that the element of relativity imposed by the special relationship of the law to its socio-cultural environment must be taken into consideration when the comparative method is applied. However, the view held by some scholars that legal transplants are impossible betrays an exaggeration of cultural diversity as it contradicts the teachings of history and is at odds with recent trends towards legal integration in certain world regions. Introductory At a time when our world society is increasingly mobile and legal life is internationalized, the role of comparative law is gaining importance. While the growing interest in foreign legal systems may well be attributed to the dramatic increase in international transactions, this empirical parameter to the growth of comparative legal studies accounts for only part of the explanation. The other part, at least equally important, is the expectation of obtaining a deeper understanding of one's own legal system through the study and comparison of legal norms, institutions and principles found in foreign systems. Besides providing the jurist with a much broader knowledge of the possible range of solutions to legal problems than the study of a single legal order would present, comparative law gives the jurist an opportunity to fathom the interaction of different disciplines and to connect these to the development and operation of legal rules, for example, when one considers the interface between law and history. Historical analyses of law utilizing the comparative method are essential for the further development of law today. Without the knowledge derived from historical-comparative studies it is impossible to investigate contemporary legal institutions, as these are to a considerable extent the product of historical conditions and mutual influences of legal systems in the past. Moreover, comparative legal studies have performed valuable services in empirically testing the propositions of legal theory. 1 These propositions can be tested on the grounds of concrete