Comprarative Law, Legal Transplants and Legal Change

George Mousourakis
Ritsumeikan University, Faculty of International Relations, Kyoto, Japan; Hiroshima University, Graduate School of Social Sciences, Japan; The New Zealand Centre for Human Rights Law, Policy and Practice, University of Auckland, New Zealand. The first draft of this paper was completed at the Institute for Legal Philosophy, Law on Religion and Culture, University of Vienna. I am indebted to the Director of the Institute, Professor Dr. Elisabeth Holzleithner, who enabled me to spend several weeks in Vienna as a Research Fellow and to make use of the libraries and other facilities of the Faculty of Law.

Law and Forensic Science, Volume 14 (2017/2).

Submitted: June 28, 2017.

The author declares there is no conflict of interest.

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.

Keywords: comparative law, reception of laws, legal harmonization, families of law, legal transplants, legal change

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