Legal transplant
The term legal transplant was coined in the 1970s by the Scottish legal scholar
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
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.
In 1998, Gunther Teubner expanded the notion of legal transplantation, introducing the concept of legal irritation: Rather than smoothly integrating into domestic legal systems, a foreign rule disrupts established norms and societal arrangements. This disruption sparks an evolution where the external rule's meaning is redefined and where significant transformations within the internal context are triggered.[1] Lasse Schuldt added that irritation is not spontaneous, but requires institutional drivers. As an example, Schuldt points to the introduction of corporate criminal liability in Thailand (a concept originally stemming from English law), which was driven by pivotal decisions of the Supreme Court of Thailand.[2]
References
- ^ Teubner, Gunther (1998). "Legal Irritants: Good Faith in British Law or How Unifying Law Ends Up in New Divergences". The Modern Law Review. 61 (1): 11.
- ISSN 2194-6078.
Further reading
- Bibliography on Legal Transplants and the Diffusion of Law
- A. Watson, Legal Transplants and European Private Law
- JF Morin and R. Gold, An Integrated Model for Legal Transplantation: The Diffusion of Intellectual Property Law in Developing Countries
- D. Westbrook, Theorizing the Diffusion of Law in an Age of globalization
- P. Shah, Globalisation and the Challenge of Asian Legal Transplants in Europe
- G. Shaffer, Transnational Legal Process and State Change
- C. Grozev, Auto-acculturation of Legal Transplants