Interpreting legal transfers: What are the lessons for the methodology of comparative law?

In concrete comparative research projects, it is the aim of the research and the research questions that will imply some form of comparative
law (or not). If the aim of the research is making some part of the domestic law more coherent one may well do without any external
comparison. If the aim is to harmonize the law, e.g., within the EU, comparing the legal systems involved is already implied by this aim, but also
the approach to be followed is partly determined by it, as the focus will be on the commonalities, on the common core of the compared legal
systemsandonthepossiblewaysoferasingdifferences.When one tries to improve one’s own legal system, be it as a legislator or as a scholar, it has
become obvious to look at the other side of the borders. However, importing rules and solutions from abroad may not work because of a
difference in context. Hence, a more thorough contextualapproachmayberequired.One may also want to inquire to what extent a legal
evolution in one’s own country finds parallel developments in other countries. A paramount example is the developments in family law, mainly
in Europe, over the last half century (see e.g., Antokolskaja 2007; Boele-Woelki, Dethloff&Gephart2014).When comparing official state law in
African countries with local customary law, one will notice that they show a tension between tradition and modernity, between Western law
only followed by an elite and African law as the large majority of the population perceive it. Hence, an anthropological approach that puts the
law in context will be necessary for explaining this tension, for understandingitandforfindingsolutionsforit.If one’s research question would be
whether the position of the notary public in some continental European country could be abolished and replaced by a civil officer or by a
practising lawyer (advocate), it seems rather obvious to have a look at the common-law countries where such a specific profession doesn’t exist

-------------------------------------------------------------------------

The preceding discussion demonstrates that legal anthropology has made a number of useful contributions to answering the specific
questions this study is concerned with: first in research methods and second in emphasising certain aspects of the legal system that legal
scholars tend to overlook, including the numerous modes of conflict management outside the courts and the general social context of the
law.[48]

THESIS

It has been assumed that lawand governance reform is a technical, managerial and financial matter,which allows for the export of laws and the transplantation of legal andadministrative structures. The disappointing

results of such reformshave illustrated, however, that not enough attention has been given tohow laws, policies, institutions and stakeholders operate in reality, intheir socio-political contexts. The uniqueness of

individual countries,sectors and institutions is often insufficiently understood, and the ac-tual experiences with the myriad of law and governance programmesand projects are not translated into knowledge on how law

and govern-ance reform promotes development.It has been assumed that lawand governance reform is a technical, managerial and financial matter,which allows for the export of laws and the transplantation of legal

andadministrative structures. The disappointing results of such reformshave illustrated, however, that not enough attention has been given tohow laws, policies, institutions and stakeholders operate in reality, intheir

socio-political contexts. The uniqueness of individual countries,sectors and institutions is often insufficiently understood, and the ac-tual experiences with the myriad of law and governance programmesand projects are

not translated into knowledge on how law and govern-ance reform promotes development.

NBNBNB INTROD

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

tothe theory of legal transplants propounded by Professor Alan Watson, one of the most infl uential 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.

NBNBNBN As Rudolf Jhering once remarked, “[T]he reception of a foreign legal institution is not a matter of nationality, but a matter of usefulness and need. No one bothers to fetch a thing from afar when one has one as

good or better at home, but only a fool would refuse a good medicine just because it did not grow in his own back garden.”3 (3 Geist des römischen Rechts. I, 9th ed. 1955, 8 f; quoted in Zweigert, K.–Kötz, H.: An

Introduction to Comparative Law. Oxford, 1987. 16.)

Indeed, contemporarylaw-making and law-reform in many countries is characterized by a sort of eclecticism.This takes the form of using comparative law to investigate legal approaches and solutionsto socio-economic

problems, even if the countries whose laws are studied do not belong tothe same broader legal family as that of the country concerned. Of course, whenever aproposal is put forward to adopt a foreign legal rule, a

legislator must fi rst consider whetherthe rule has proved effi cient in its country of origin when dealing with the specifi c problemat hand and then, second, whether it will produce the desired effects in the

countrycontemplating its adoption. In many cases it may prove impossible to adopt, withoutimportant modifi cations, a rule that was successful in a foreign country because ofdifferences pertaining, for example, to the

court system and the legal process, as well as themore general differences regarding the socio-economic, political and cultural environmentin which the rule would have to fi t.
Political science, economics, sociology, history and anthropology, for example, are each likely to provide insights that will assist the study of how

institutions and communities infl uence the development of legal rules. In particular, there is room for a great deal of work on the question of

transferability of legal models across different cultures, especially in so far as legal integration and harmonization require reasonably transferable

models. In this respect, the need for understanding cultural diversity in a world driven by trends toward global law becomes increasingly important. The

point here is that law is more than simply a body of rules or institutions; it is also a social practice within a legal community. It is this social

practice that shapes the actual meaning of the rules and institutions, their relative weight, and the way they are implemented and operate in society. But

law is not an isolated social practice; it is an aspect of the broader culture to which it belongs. Understanding law presupposes knowledge of the social

practice of the legal community and this, in turn, implies familiarity with the general culture of the society in which the legal community is a part In

the sphere of law, culture manifests itself in the concept of law, and more generally in the notion of social order prevalent in a society. See Jaeger, G.–

Selznick, P.: A Normative Theory of Culture. American Sociological Review, 29 (1964), 653.

‘Legal culture’ is a multi-dimensional term, which is employed in sociological and anthropological studies of law. Several defi nitions of legal culture

are found in the relevant literature. E. Blankenburg and F. Bruinsma, for example, defi ne legal culture in terms of the interplay of all four levels of

legal phenomena: law in the books; the institutional infrastructure (judicial system and legal profession); patterns of legally relevant behaviour (e.g.

legal transactions); and legal consciousness. See Dutch Legal Culture (Deventer–Boston, 1991. 8–9).

Journal of Law and Administrative Sciences

No.9/2018
Maria Beatrice Berna, On Legal Norms and Their Cultural
Context: Some Observations regarding Legal Transplants,
9 J.L. & Admin. Sci. 169 (2018)

The context that will be deemed in our analysis has cultural origin. The transfer of legal rules from ajuridical system to another
constitutes the essence of the legal transplant introduced byAlan Watson. The ,,export" and ,,import" of legal norms between different
legal systemsis possible amid accepting the thesis of law-culture separation. Legal transplant is adeterminer of legal change produced
within the juridical system and the main premise that makes possible legal transplant resides in the independence between the law and
the socio-cultural climate within which it is born. [4] Being totally detached from the culturalreality that society expresses in a certain
point of its evolution, the rule can be extractedand implemented in another legal context and, consequently, in another cultural context.
Once suppressed the cultural dimension, legal transplant is feasible. In opposition toWatson's thesis- that associates the success of legal
transplant to the suppression of thecultural factor-, is situated the thesis of Pierre Legrand- who introduces the cultural factor
within the analytic sphere of the legal transplant. According to Legrand, legal transplantis feasible if we refer to the exterior form
expressed by the legal rule; the content of therule will always have a cultural determiner that will not allow a de piano accommodation
of the respective rule in another cultural-juridical context. The content of the rule is notself-explanatory as it must be extracted from its
original cultural context. [5]

We deem that-, as we cannot de piano transfer a rulethat has an obvious attachment to the cultural rules that are peculiar to a certain
societywithin the juridical system of a State that does not recognize those cultural rules-, wecannot deny the possibility of de piano
transfer of a legal rule that is the bearer ofrecognized universal cultural values. For instance, the rules that protect fundamental
social values-acknowledged as universal moral values- may be easily transfered; therules that bear suis generis cultural values either
cannot be transfered (on account of therejection attitude adopted by the donor State), either will be transfered through
relevantadjustment made within the system of the receiver State.

The question of legal transplant becomes obvious : can we discuss about thelegitimacy of the transplant of a rule of law in the absence of
a mechanism of adaptingthe rule that is the object of transplantation to the requirements of the receiver juridicalsystem? In other words,
can we discuss about the transfer of a given norm if, for lack ofan adequate accommodation with the cultural requirements of the receiver
State, the ruletransfered produces other effects than the effects substantiated in the legal system of thedonor's State? We deem that there is
a connection of direct proportionality between rulesand culture and cultural differences between the donor State and receiver State : the
more there is a stronger connection between the rules and the culture of a State, the morethe cultural and juridical differences between
the donor State and the receiver State willbecome clear. Thus, the legal transplant will take place only in the context of the flexibility
of the juridical system of the receiver State.

Culture operates at the level of individual mental representations, constituting a source of interpretation. It also refers the individual-
receiver of a certain cultural norm to the social enviroment. Relating to the manner of cognition through culture, doctrinaire studies [7]
assess that superior mental functions are, by definition, cultural mediated. Within the legal paradigm, culture acquires identity valencies,
prescribing a desirable human behaviour. Legal culture expresses a pattern of stable behaviour and attitudes socially manifested and
assessed as desirable by inoculating those behaviours and attitudes in the content of a legal norm.{ [8] David Nelken, Using the Concept
of Legal Culture, Australian Journal of Legal Philosophy, Volume 29, 2004, p.1.}

In the hypothesis in which transplanted legal norms enshrine moral values universally validated then legal transplant may be fulfiled
even if the respective legal values are impregnated by legal culture (in the field of human rights, the most representative application
consists in jus cogens norms). If the transplanted legal norms are the bearers of moral norms resulted from local culture, that are not
universally represented, legal transplant will have succes only in the hypothesis in which between the donor's-State legal system and the
legal system of the receiver-State is a convergence of moral-cultural values. In the hypotheis of a cultural divergence, legal transplant
may be fulfiled by means of the receptivity of the legal system of the receiver State.
By admiting the idea according to which the degree of achieving legal transplant directly depends on the universal-cultural nature or on the
relativ-cultural nature of the moral norm enshrined in the legal norm subjected to legal transplant, we take a median position between the
thesis of denying the influence of legal culture upon legal transplant and the thesis of absolute connection between legal transplant and
the convergence between the legal cultures of the donor's and the receiver's State. By including the cultural factor in the analysis of legal
transplant we advance the following peculiarities - (1) moral norms derive from the existing cultural norms; (2) although moral
norms derive from cultural peculiarities, they can be ranked in moral norms of universal ackowledgement and moral norms of regional
or local applicability; (3) norms (either moral or legal) cannot be completly free from social pressure because the reverse
hypothesis would implicitly lead to denying the law-configuration factors; (4) the latter ensure the connection between legal norms and
State peculiarities nevertheless, unlike the cultural element that is transplated through an ideological, spiritual dimension,
lawconfigurating factors imply also material circumstances; (5) in the case of rules of law based on universally recognized moral rules,
legal transplant is a given whereas for legal transplant regarding moral rules subjected to cultural relativism, legal transplant is a
construct; (6) legal transplant is understood in terms of a construct by means of creating cultural convergence; (7) cultural convergence
between the system of the donor State and the system of the receiver State derive either from (a) the openess of the latter
towards the cultural norms advanced by the rules of the donor system, either (b) through unilaterally imposing the norms of the donor
system through prestige and through emulation cultivated by inter-system relations.

The analysis of legal rules through the lenses of resemblances and differences is achieved by virtue of culturalpeculiarities that, in their
turn, determine the notions of legal families and legal cultures. Culture is recognisable at the ideal level, comprising attitudes, values,
opinions about norms and society. [9] Consequently, legal families (under their official denomination of legal systems) represent juridical
infrastructures reunited under a structural unity of the mind

NB Even if weadmit the fact that external law may be only in restrictive conditions a source of guidancefor the rules of public law of
another State (we mainly refer to the convergence betweenlegal cultural values), we cannot adhere to the thesis according to which the
interpretationof rules of law (either if they are comprized or not in the sphere of public law) entail astatic process thus undertaken with
the purpose of ensuring the stability of the legalsystem. The impossibility of denying the connection between culture and rules brings
usin front of the following reasoning - (1) cultural norms are dynamic as they adapt to the degree of State-evolution; (2) legal norms
derive from and are influenced by cultural rules -hence, the necessity of subjecting them to a dynamic hermeneutics, according to the
cultural epistemology to which they owe their formation.

the theory of legal origins

The convergence between the values contained in the legal cultures of States is, undoubtedly, a favorizing factor of legal transplant. The
scientific sustenation of this
resides in the theory of legal origins that describes the process of legal transplant from
the perspective of assuming the law of colonizing powers by the colonized States. The
theory of legal origins sustains the idea of innovating the transfer of rules between those
States that recognize the same legal values. [13]
It is reiterated the connection between
the rule of law and legal tradition, underlining the possibility of legal transplant only in the
hypothesis of the convergence between legal traditions. The transplant fails if the
transplanted rule is implemented within a receiver State that is in dissonance with the
donor State in the field of the transfered legal values. The comparative methodology fails
amid the segregation of legal values but also in the hypothesis of a perfect identity
between legal cultures. The sine qua non premise of applying the legal transplant and the
utility of comparative methodology resides in the existence of minimum two juridical
systems that relate to a set of common values. As we take into discussion at least two
independent legal systems, common cultural values must not find themselves in relations
of identity neither can their relation describe a void mass. Colonial relations mainly describe a state of insubordination in parameters
according to which the right to self-determination of colonized Peoples is breached and
the decisional factor (including in legal matters) becomes the colonizing State. The
transfer of legal rules from the colonizing State to the colonized State is achieved by the
integration of the following factors :
(1) formal powers exerted by the colonizing State; (2)
the prestige of the legal system of the colonizing State and the authoritative enforcement
of its norms within the legal system of the colonized State; (3) the pressures derived from
change and necessity; (4) the hold status regarding the expediency of the transplanted
law; (5) the financial and political recompenses granted to the colonizing State. [14]

Legal transplant is a mainly heuristic phenomenon whose scope may be segregated in two senses : (1) the modernization of the receiver
State through the acknowledgement and assimilation of new standards in the field that is subjected to transplantation; (2) the study of
the standards assimilated by the receiver State and the advancement of methods that will ensure the performance of adopted standards.

Conclusions
Legal transplant is possible by transfering the signification of the rule and byadapting it to context. The latter is, mainly, a context of
cultural source. First of all, wetake into consideration legal culture and its original determiner -social culture; socialculture is understood
as an aggregation of law-configurating factors. In the mattersconcerning legal transplants, the cultural factor is not (necessarily!) a limit
as it is anindicator of the degree in which legal transplant may be achieved in concreto. Beyondthe opposition between the universality
and the relativity of cultural standards, it is clearthat there is an assembly of common moral values that may be applied with the
purposeof implementing legal transplants and, implicitly, with the purpose of demonstarting theutility of the comparative method of
research
Ralf Michaels Forthcoming in Oxford Handbook of European Private Law (Basedow, Hopt, Zimmermann eds., Oxford University Press)

The term legal culture refers to multiple different ideas, which are not always sufficiently separated. Legal culture often describes merely
an extended understanding of law and is thus synonymous with „living law“ (Eugen Ehrlich) or „law in action“ (Roscoe Pound).
Sometimes, the term legal culture is used interchangeably with the term → legal family or legal tradition. More specific concepts exist as
well. Legal sociologists especially understand legal culture as the values, ideas and attitudes that a society has with respect to its law
(Lawrence M. Friedman, James Q. Whitman). Sometimes legal culture itself is seen as a value and placed in opposition to the barbarism of
totalitarianism (Peter Häberle); here, legal culture is used synonymously with the rule of law. Others understand culture as certain
modes of thinking;

2. Law and Culture

An interrelationship between culture and law has long been postulated. Baron de Montesquieu postulated in his “Esprit des Lois” (1748)
the necessity for positive law to be adapted to the geographical features of the country and the cultural characteristics of its people. In
the 19th century the idea of law as the cultural accomplishment of a particular people (as well as the attempt to 2 determine the „spirit“
of particular law) became popular. At the same time, the term culture was also used for a higher stage in the development of law, which
overcame the sectionalism of lower stages. When Friedrich Carl von Savigny explained law as a cultural achievement, what he had in
mind was likely more a European legal culture of legal elites than a national “Volksgeist” limited to Germany.

More useful is the division between internal and external legal culture introduced by Lawrence M. Friedman (but already visible in
Savigny). Internal legal culture describes the attitude towards law of legal actors such as judges and lawyers; external legal culture
describes the attitude towards law of the general population. Legal sociologists frequently consider the external legal culture as more
important; doctrinal lawyers, by contrast, focus more on internal legal culture. The more autonomous law is within the society, the more
important internal legal culture becomes in comparison to external legal culture. Often, these analyses presume a relatively homogenous
and static concept of culture: Culture is used with a view to a community (frequently a nation-state) and provides this group with its
identity, by establishing internal coherence and external difference, as well as relative consistency over time.

NBNBN Cultural analysis like this can in the best case recognise coherence – a preference for order in law correlates with a similar
preference in traffic – but not what is cause and what is effect. Legal culture is more important in explaining and predicting the effect of
law on society, such as in the extent to which promulgated laws will be adhered to and judgments will be implemented. Whether legal
reform will be successful depends to some degree on legal culture. That is especially relevant for legal transplants between legal systems
with different legal cultures (→ Reception of Law). Some believe that such transplants are possible without problems only for legal
norms that are largely independent of culture, though there is no unanimity about which legal norms are included – almost all (Alan
Watson), almost none (Pierre Legrand) or only those of economic law in contrast to family and inheritance law (Ernst Levy). Culturally
dependent legal norms are thought to be transferable only between legal systems with similar legal cultures. Newer studies have shown
it more probable that the success of a legal transplant depends on the legal system of the receiving country and its culture (Otto Kahn-
Freund, Daniel Berkowitz & Katharina Pistor). If, as is frequently the case, the transplanted legal norm or institution interacts with the
recipient legal culture in other ways than it does with the donor legal culture (Gunther Teubner speaks in this context of legal irritants
instead of legal transplants), this does not signify a failed transplant.

Often, a particular legal culture is asserted to exist and then for this reason alone deemed either deserving of protection or (less often) of
rejection. A national codification, for instance, is thought worthy of preservation merely because it represents a cultural achievement.
Such discussions of legal culture frequently have the potential to be quite conservative or even reactionary: changes are rejected with an
often consciously irrational reference to legal culture.

-------------------------------------------------------
According to a theory of classifi cation proposed by Arminjon, Nolde and Wolff,16there exist in the world certain ‘model’ or ‘core’
systems whose legal rules and institutional structures were directly transplanted (often through military conquest or colonization) or
adopted (by virtue of their perceived quality and prestige) in many countries around the world. For these authors, the crucial criterion
for the classifi cation of legal systems is the substantive content of laws; and this requires attention to originality, derivation, and
common elements, rather than to external factors, such as raceor geography.
17

Moreover, the legal systems of many countries in Asia and Africa constitute
a mixture of traditional local law, religious elements and the law imported from European
countries during the colonial period or in more recent times
.20

A great deal of the similarities that exist among legal systems belonging to the samebroader legal family or transnational tradition are the
result of ‘legal borrowing’ or ‘legal transplanting’. ‘Legal transplanting’ involves a legal system incorporating a legal rule, institution or
doctrine adopted from another legal system. It may also pertain to thereception of an entire legal system, which may occur in a centralist
way. To understand thereception of foreign law phenomenon one must examine the historical reasons behind theintroduction of foreign
law in a particular case, e.g. whether it is the result of conquest, colonial expansion or the political influence of the state whose law is
adopted. In other cases the law of the conquering nation was introduced in part or in an indirect fashion. For example, during the British
and French colonial expansion there was a tendency to introduce into the colonies elements of the legal systems of the colonial powers
or to develop systems of law adapted to local circumstances but largely reflecting the character of the metropolitan systems.
Furthermore, one should recognize that the processof legal transplanting might be interrupted, or precipitated, by revolutionary change.
Arevolution may be defi ned as an historical event that may change the identity of a sociopolitical system by altering the ideological
foundations of its legitimacy and, consequently its orientation. A revolutionary legitimacy change is the most radical change that a socio
Political system may undergo.21The transformation of a country’s legal system promptedby such a change may entail the system of law
moving further away from or closer to other systems, so far as ideological differences and similarities with respect to different countries’
socio-political and economic structure are expressed in law
.22

A legislator’s readiness to adopt a foreign legal rule is often associated with considerations of economic effi ciency. According to Mattei,
the reception of foreign legal rules is usually the end result of a competition where each legal system provides different rules for the
resolution of a specifi c problem In a market of a legal culture, where rule suppliers are concerned with satisfying demand, ultimately the
most effi cient rule will be the winner. Moreover, the study of foreign laws can also bevaluable when courts and other authorities
interpret and apply the legal rules of their own legal system. In so far as a judge, in fi lling a gap in the law, is expected to decide in the
way in which the legislator would have decided, then the question is: how does a modern legislator reach their decisions? As already
noted, a legislator often reaches their decisions by taking into account information about foreign systems provided by comparatists. It is
thus unsurprising that judges often seek to justify their decisions by pointing to the fact that a similar approach has been adopted in
other jurisdictions.

NBNBNB a study of legal borrowing must also address the roles that the legal profession, legal science and legal education play in the
reception process; the form of the imported law (whether it is a written, customary or judge-made); and whether (or to what extent) the
importing and exporting countries are compatible with respect to culture, socio-political structure and level of economic development.
The destinies of legal transplants in diverse cultural, socio-economic and politicalcontexts are important to examine for determining the
desirability and applicability of suchtransplants for legislative and judicial practice. It may be true that ethno-cultural, politica l and
socio-economic differences between the exporting and the importing countries do notnecessarily preclude the successful transplantation
of legal rules and institutions. Legalrules can be taken out of context and can serve as a model for legal development in a very different
society. However, one should keep in mind that an imported legal norm isoccasionally ascribed a different, local meaning, when it is
rapidly indigenized on accountof the host culture’s inherent integrative capacity. It is not surprising that, very often, Western legal
concepts, institutions and rules imported by non-Western countries areunderstood in a way that is different from that in the donor
countries. The absence of substantial differences in the wording of a statute law between a donor and a host country does not imply that
legal reality, or everyday legal and social practice in the two countries, should be identical or similar. The legal reality in the host country
may be very different with respect to the way people (including judges and state offi cials) read, interpret and justify the relevant law and
the court decisions based on it. Moreover, the role of statute law in the recipient country may be much weaker than it is in the exporting
country and custom may be a predominant factor. Thus, in practice, social rules might effectively prevent people from initiating a legal
claim or even using a court decision supporting such a claim. As this suggests, it is not good sense to use the perspective and framework
of one’s own legal culture when examining a legal rule or institution borrowed by a legal system operating within the context of another
culture.29Such an approach carries the risk of implying the existence of many more similarities than there actually are.
30

Legal Transplants and Legal Development: Watson’s Theory Revisited

Since the publication of the fi rst edition of his seminal book, Legal Transplants: Anpproach to Comparative Law in 1974, Professor Alan
Watson has produced many workson the relationship between law and society, and the factors accounting for legal change.31In these
works he iterates his belief that changes in a legal system are due to legaltransplants: the transfer of legal rules and institutions from one
legal system to another.According to Watson, the nomadic character or rules proves that the idea of a closerelationship between law and
society is a fallacy.32Law is largely autonomous and developsby transplantation, not because some rule was the inevitable consequence
of the socialstructure, but because those who control law-making were aware of the foreign rule andrecognised the apparent benefi ts
that could derive from it.33Watson does not contemplatethat rules are borrowed without alteration or modifi cation; rather, he indicates
that voluntarytransplants would nearly always–always in the case of a major transplant–involve a changein the law largely unconnected
with particular factors operating within society.34Neitherdoes Watson expect that a rule, once transplanted, will operate in exactly the
same way itdid in the country of its origin. Against this background, Watson argues that comparativelaw, construed as a distinct
intellectual discipline, should be concerned with the study of thehistorical relationships between legal orders and the destinies of legal
transplants in differentcountries.35On this basis one may identify the factors explaining the change or immutabilityof law.36Watson
asserts that comparative law (which he distinguishes from a knowledge of foreign law) can enable those engaged in law reform to better
understand their historicalrole and tasks. It can provide them with a clearer perspective as to whether and to whatextent it is reasonable
to appropriate from other systems and which systems to select; andwhether it is possible to accept foreign legal rules and institutions
with or without modifi cations.
37See, e.g. Watson, A.: Aspects of Reception of Law. American Journal of Comparative Law,3144 (1996), 335; Comparative Law and Legal
Change. Cambridge Law Journal, 37 (1978), 313; LegalTransplants and Law Reform. Law Quarterly Review, 92 (1976) 79; Society and
Legal Change.Edinburgh, 1977; 2nd ed., Philadelphia, 2001; Sources of Law, Legal Change, and Ambiguity.Philadelphia, 1984; The
Evolution of Law, Oxford, 1985; Legal Origins and Legal Change, London,1991; The Evolution of Western Private Law, Baltimore, 2001.
And see Sacco, R.: Legal Formants:A Dynamic Approach to Comparative Law. American Journal of Comparative Law, 39 (1991), 1
and343.Legal Transplants, supra note 19, 108.32Comparative Law and Legal Change. 37 (2) Cambridge Law Journal, 37 (1978) 2, 313,
313–3315 and 32.Watson has identifi ed a number of factors that determine which rules will be borrowed,34including: (a) accessibility
(this pertains to the question of whether the rule is in writing, in a formthat is easily found and understood, and readily available); (b)
habit (once a system is used as a
quarry, it will be borrowed from again, and the more it is borrowed from, the more the right thing todo is to borrow from that system,
even when the rule that is taken is not necessarily appropriate; (c)chance (e.g. a particular written source may be present in a particular
library at a particular time, orlawyers from one country may train in, and become familiar with the law of another country); and (d)
the authority and the prestige of the legal system from which rules are borrowed.Legal Transplants, supra note 19, p. 6.35Ibid. 21. To
illustrate his point, Watson mentions a set of rules concerned with matrimonial36property, which travelled “from the Visigoths to
become the law of the Iberian Peninsula in general,migrating then from Spain to California, [and] from California to other states in the
western UnitedStates.” (Ibid. at 108) He adds, that if one considers a range of legal systems over a long term “thepicture that emerge[s] is
of continual massive borrowing … of rules.” (Ibid. at 107) On this basis heconcludes that the moving of a rule or a system of law from one
country to another has now beenshown to be the most fertile source of legal development, since “most changes in most systems are the
result of borrowing.” (Ibid. at 94).
The concept of transplant bias is an essential element of Watson’s theory that legalchange primarily occurs through the appropriation or
imitation of norms. It refers to asystem’s receptivity to a particular foreign law as a matter distinct from acceptance based
on a thorough assessment of all possible alternatives.38This receptivity varies from systemto system and its extent depends on factors
such as the linguistic tradition shared with apotential donor system; the general prestige of the possible donor system; and the
educational background and experience of the legal professionals in the recipient system.The adoption of an entire foreign legal code is
probably the clearest manifestation oftransplant bias. According to Watson, juristic doctrine is particularly susceptible to foreign
infl uence.39Precedent, on the other hand, seems to be least affected by transplant bias–when judges borrow from foreign legal systems,
the value of the foreign rule for the judge’sown system is often carefully considered and evaluated. Transplant bias involves an
authoritative argument that takes, for example, the form: norm N is a Roman law norm–Roman law is superior–therefore, norm N should
be accepted. Behind the minor premise ofthis inference there is no general appraisal of all norms of Roman law, but rather an opinion
based upon the systematical coherence of the relevant norm. The assertion, ‘Roman law issuperior’, is neither deductive (i.e. based upon
an axiom concerning the superiority ofRoman law) nor inductive (where one should present reasons for considering the particular
norm N good); rather it is quasi-inductive and systematical.The experience of the legal historian underlies Watson’s scepticism towards
the viewthat law is directly derived from social conditions. According to him, history shows thatlegal change in European private law has
occurred mainly by transplantation of legal rulesand is not necessarily due to the impact of social structures. He sees legal change as an
essentially ‘internal’ process,40in the sense that sociological infl uences on legal developmentare considered generally unimportant. The
evidence to support this position is derived fromhistory, which Watson claims to show: that the transplanting of legal rules between
systemsis socially easy even when there are great material and cultural differences between thedonor and recipient societies; that no
area of private law is very resistant to change throughforeign infl uence–contrary to the sociologically oriented argument that culturally
rooted

Alan Watson, Legal Transplants, University of Georgia Press, second edition, 1993; Alan Watson, Legal
Transplants and European Private Law, Electronic Journal of Comparative Law, 2000, Volume 4.4.

[5] Pierre Legrand, The impossibility of "Legal Transplants", Maastricht Journal of European And International Law, 1997, p. 112-114.

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of_the_State_in_Peri-Urban_Ghana