Chapter 7

Comparative Law, Legal Transplants

and Legal Change

7.1 Introduction

Systems of law1 are concerned with relations between agents (human, legal,
unincorporated and otherwise) at a variety of levels. At an international level, public
international law governs relations between sovereign states and sets the limits for
the exercise of state power in the light of generally recognized norms. At an
international or transnational level also operate human rights law, international
criminal law, refugee law, international environmental law, transnational arbitration
and other systems. Functioning at a territorial state level are the legal systems of
nation-states and sub-national (e.g. the legal systems of the individual states within
federal states) or sub-state jurisdictions (e.g. the bye-laws of counties or municipal-
ities and the laws of ethnic communities within states which enjoy a degree of
autonomy). It is important to note that very few legal orders or systems of rules are
complete, self-contained or impervious. Co-existing legal orders interact in complex
ways: they may compete or conflict; sustain or reinforce each other; and often they
influence each other through interaction, imposition, imitation and transplantation.
Nowadays, national legal systems have become interconnected through the opera-
tion of international and transnational regimes in a variety of ways. They are subject
to, and modified by, international conventions and treaties, trade regulations and
various inter-state agreements. Some countries harmonize their laws, coordinate
their fiscal policies, and agree to recognize each other’s judgments or cooperate in
antitrust enforcement. 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

1
The term ‘legal system’ is used to highlight the fact that law is comprised of many interconnected
elements, which should be examined in the light of their functional interdependence. Related to the
term ‘legal system’ is the term ‘legal order’ (Rechtsordnung, ordre juridique). When the latter term
is used emphasis is placed on the creative role of the human agency in the formation and
development of law.

© Springer Nature Switzerland AG 2019 169

G. Mousourakis, Comparative Law and Legal Traditions,
https://doi.org/10.1007/978-3-030-28281-3_7
170 7 Comparative Law, Legal Transplants and Legal Change

comparative law information and thereby urged new objectives for the comparative
law community. The comparative method, which was in the past 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 compre-
hensive with respect to both its scope and goals. Associated with this development is
the growing interest in the issue of transferability or transplantability of legal norms
and institutions across different systems, especially in so far as current legal inte-
gration and harmonization processes require reasonably transferable models. Fol-
lowing a discussion of factors accounting for the divergence and convergence of
legal systems, this chapter critically examines the issue of transferability of laws with
special attention being paid to the theory of legal transplants propounded by
Professor Alan Watson, one of the most influential contemporary comparatists and
legal historians.

7.2 Divergence and Convergence of Legal Systems

Contemporary legal systems differ in many respects: the substantive content of legal
rules; the operation and hierarchy of the sources of law; the norms of statutory
interpretation; legal terminology; and style of judicial reasoning.2 For example, as
regards the sources of law and the law-making process, comparatists often draw
attention to certain differences between civil law and common law systems: in the
former, legislation constitutes the principal source of law, while the chief sources of
law in the latter include both case law—a body of principles derived from court
decisions governed by the doctrine of precedent (stare decisis)—and statute law,
i.e. the law contained in legislative enactments. These differences are related to
differences in the modes of legal thinking prevailing in the civil and common law
systems. While civil law practitioners tend to think in terms of enacted rules that may
apply to a particular case, their common law counterparts are inclined to contemplate
the parties and their particular legal relationship, seeking pragmatic answers to the
issues before the court. When a common law lawyer queries the nature of a case he or
she thinks of the facts, with a view to identifying the material circumstances of the
case and showing that these fall within the scope of one rule rather than another. By
contrast, when a civil law lawyer considers a case he or she generally refers to the
legal issues defined in a general way with reference to enacted rules. Legal reasoning
in civil law has a top-down structure, moving from the general to the more specific.
Employing this kind of reasoning, the civil law lawyer may present a legal argument
as if there is only one right answer to any legal problem. In this respect, any
disagreement over the application of the law to the facts is blamed on the presence
of faulty logic. This explains why civil law judges do not offer dissenting opinions.
Every judgment, even in cases decided on appeal, is the judgment of the court as a

2
See Rodière (1979), p. 4 ff; Agostini (1988), p. 10 ff.
7.2 Divergence and Convergence of Legal Systems 171

whole. Under the deductive approach of the civil law, the value of case law is limited
as court decisions are viewed as particular illustrations of, or specific exceptions to,
the law as embodied in a general norm or principle. In this respect, the material of
law may be construed to form an independent, closed system where, at least in
theory, all sorts of questions could or should be answered by interpreting existing
legal norms. The law in civil law is regarded as ‘found’ rather than ‘made’ in each
individual case through the application of deductive reasoning or, if necessary,
reasoning per analogiam or a contrario.3 By contrast, in common law systems no
formulation of a rule, by a judge or anyone else, is regarded as final. Therefore, a
later judge can broaden or narrow the terms in which a legal norm is expressed. In
other words, in common law what is authoritative is what is decided. Law, in this
system, is seen as open-ended in the sense that new extensions to existing rules can
be revealed at any time by the courts. It is by identifying and distinguishing past
cases that the common law lawyer ‘discovers’ the applicable legal rule in the case at
hand. To the common law lawyer, the deductive approach of the civil law lawyer
seems to reverse the natural form of legal reasoning.4
Systems of law may differ, moreover, with respect to the ideological background
and aims of legal institutions. Legal institutions designated by the same name may
function in different ways in the context of national systems operating under
different ideologies.5 For example, in both common law and civil law countries,
contract is in principle regarded as an expression of the autonomy of the will, even
though a person’s freedom to contract may be limited by social, commercial and
legally acceptable norms. By contrast, in the former socialist countries contract
served an entirely different purpose. Contracts involving state property had to be
concluded within the limits stipulated by the law and had to serve the tasks
prescribed by the state economic plan. Agreements at variance with the current
plan were considered void as a matter of private law.6

3
However, it should be noted that, notwithstanding their common origins and general characteris-
tics, civil law systems differ from each other in many respects. It is only when the civil law lawyer
inspects the common law and other legal systems that they acquire awareness of the affinity
between the members of the civil law family. For an overview of the origins and main features of
the civil law tradition see Chap. 8 below.
4
As C. D. Gonthier remarks, the civil law is distinguished from the common law by “a difference in
intellectual approach, in the quest and ordering of [legal] knowledge. Each approach reflects one of
the modes of functioning of the human intellect, that is, on the one hand, the empirical mode based
on specific instances from which one may eventually draw rules and even identify principles and, on
the other, the theoretical approach based on established principles from which concrete conse-
quences and applications are drawn.” “Some Comments on the Common Law and the Civil Law in
Canada: Influences, Parallel Developments and Borrowings”, (1993) 21 Canadian Business Law
Journal, 323.
5
The ideology of a legal system is explained by K. Zweigert and H. Kötz as pertaining to “political
or economic doctrines or religious belief’. An Introduction to Comparative Law, 2nd ed., (Oxford
1987), 73.
6
David (1988), p. 337 ff.
172 7 Comparative Law, Legal Transplants and Legal Change

Notwithstanding the important differences between legal systems, the compara-

tive study of laws also brings to light significant similarities among systems relating
to the letter and spirit of legal rules and institutions, as well as the process by which
these rules and institutions are created and developed. For example, even though, in
contrast to common law systems, case law is not generally regarded as a formal
source of law in civil law systems, it plays an increasingly important role in the latter
systems’ development. Thus, in France key concepts and principles of administra-
tive law developed out of decisions arising from proceedings before the Council of
the State (Conseil d’Etat) and administrative courts. Consequently, the judicial
practice of the Conseil d’Etat and of administrative courts is considered a principal
source of administrative law in that country. Similarly, in Germany the law
governing activities such as strikes and lockouts developed from the decisions of
the Federal Labour Court (Bundesarbeitsgericht). Furthermore, the usual contrast
between the adversarial approach of the common law and the inquisitorial approach
of the civil law should not be exaggerated.7 Langbein, commenting on German and
American procedures, remarks that “[A]part from fact-gathering. . .the lawyers for
the parties play major and broadly comparable roles in both the German and
American systems. Both are adversary systems of civil procedure. There as here,
the lawyers advance partisan positions from first pleadings to final arguments.
German litigators suggest legal theories and lines of factual inquiry, they superintend
and supplement judicial examination of witnesses, they urge inferences from fact,
they discuss and distinguish precedent, they interpret statutes, and they formulate
views of the law that further the interests of their clients”. According to this author,
the chief difference between civil law and American litigators is that the former may
be described as ‘law adversaries’ while the latter as ‘law-and-fact adversaries.’ The
civil law is distinguished from the common law with respect to legal procedure in
that the civil law places greater responsibility upon the judge for the investigation of
the facts, whilst the common law leaves the parties to gather and produce the factual
material on which adjudication depends.8 In a nutshell, the civil law model of legal
procedure is construed to display a preference for ‘centripetal’ decision-making,
determinative rules and a rigid ordering of authority. It also attaches greater impor-
tance to written testimony in the form of official documents and reports.9
Furthermore, comparatists warn against the serious mistake of confusing the
political-ideological aims of a legal rule with the rule’s juridical function. Even

7
The adversarial system of legal procedure is a system where the facts emerge through a formal
context between the parties, while the judge acts as an impartial umpire. In the inquisitorial system,
on the other hand, the truth is revealed by an inquiry into the facts conducted by the judge. In this
system it is the judge who takes the initiative in conducting the case, leading the investigations,
interrogating witnesses and assessing the evidence.
8
Langbein (1985), pp. 823–824.
9
According to M. Damaska, the relatively greater emphasis on certainty in the Civil law model of
legal procedure is traced to the influence of the rationalist Natural Law School, and in particular “the
rationalist desire to impose a relatively simple order on the rich complexities of life”. “Structures of
Authority and Comparative Criminal Procedure”, (1975) 84 Yale Law Journal, 480.
7.2 Divergence and Convergence of Legal Systems 173

though with respect to the former two legal systems may be fundamentally different,
with respect to the latter the systems may be similar or compatible.10 For example, as
no socialist country had eradicated the use of money as a means of exchange for
goods and services, the distribution to citizens of goods and services was made
through a form of a market system regulated by legal rules (concerning, e.g., sales,
leases and loans) that were largely similar in terms of function to the corresponding
rules operating in capitalist countries. A citizen in the former East Germany, who
purchased goods in a state-owned department store was engaged in the same activity
as a citizen of West Germany, who purchased goods in a privately-owned store. Of
course, in theory, the former individual, by means of his citizenship, could be
regarded as a part-owner of the state-owned store. Moreover, in contrast to privately
owned stores in capitalist countries, the operation of state-owned stores in socialist
countries was supposed to be guided not by the goal of profit but by the goal of
serving broader social needs. However, these differences were so remote from the
actual purchase transaction that they did not significantly affect the practical legal
issues that could arise in connection with the purchase. As these issues were largely
the same in both countries, the legal rules by which they were regulated shared many
common features. The same can be said with respect to many rules governing
relationships in other fields of private law.
Contemporary legal systems share a host of common problems derived, among
other things, from revolutionary changes in communication, transport and technol-
ogy, the liberalization of immigration policies and the deregulation of national and
international financial networks. This makes necessary the introduction of uniform
or at least not incompatible legal solutions within national systems. The problems
facing many countries include the control of restrictive business practices; the
protection of public health and consumer protection; the conservation of the envi-
ronment; and the application of new technologies and their impact on the labour
market. Although there is considerable variety in the tools and methods adopted by
different national systems to address these problems, the solutions are often identical
or similar. In other words, the fact that national systems often employ different
mechanisms in response to a social need or in addressing a legal problem does not
preclude their convergence as long as the solutions adopted are compatible. Indeed,
to some extent contemporary law-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 solutions to socio-economic problems, even
if the countries whose laws are studied do not belong to the same broader legal
family as that of the country concerned. The exchange of ideas and models among
legal systems, precipitated by increased communication, mobility and cooperation,
is gaining momentum and contributes to the move towards the convergence of laws.
According to Schlesinger, the phenomenon of convergence between legal systems
occurs when, starting from different stated rules, the systems evolve meeting

10
See, e.g., Bogdan (1978), pp. 2, 93, 95; Bogdan (1994), p. 61 ff; Zweigert and Kötz (1987),
p. 37 ff.
174 7 Comparative Law, Legal Transplants and Legal Change

somewhere at a middle ground.11 Legal converge can occur at a substantive,

institutional or procedural level or, sometimes, on all these levels.12

7.2.1 Factors Accounting for the Divergence

and Convergence of Legal Systems

Elucidating the relationship between legal systems, i.e. identifying and accounting
for their common elements and differences, presupposes an examination of the
factors that influence the development, structure and substantive contents of the
relevant systems. It is the similarities and differences between these factors that
engender many of the similarities and differences observed in the domain of law.
The factors relevant to explaining the differentiation between national systems of
law include: physical and geographical conditions; economic structure and level of
economic development; political ideology; religion and other cultural factors; and
historical circumstances. It is impossible to draw a complete list of all the factors at
work, as many factors may be unknown or entirely incidental. Moreover, the various
factors are not independent of each other but are interrelated or interdependent. Law
may be construed as the product of a synthesis both of exogenous factors, such as
economic structure, culture and political system, and endogenous elements, such as
the operation of the legislative bodies and the nature of judicial decision-making.
The effects of such factors are not the same everywhere but can considerably vary
from case to case.13
The content of national laws is on occasion directly determined by physical
conditions, such as geography, climate and the availability or lack of natural
resources. Obviously, the rules regulating night work in the Arctic regions would
be different from the relevant rules in countries located within the equatorial zone.
Similarly, the legal regulation of water supply cannot be the same in the desert areas
of North Africa and in Scandinavia. In areas where the level of seismic activity is
high, the risk of earthquakes affects the content of the legal rules relating to
construction standards. Climatic conditions are considered when formulating rules

11
Schlesinger (1995), p. 477.
12
See Sacco (1991), p. 1.
13
As early as the mid-eighteenth century, the era of the Enlightenment, the French philosopher
Montesquieu observed that the laws of a nation were necessarily formed relative to the physical
features of a country: to a hot, mild or cold climate; to the quality, situation and scale of formation of
the terrain; and to the life-style of the inhabitants as determined by these conditions. He also argued
that laws were related with several other factors, such as the degree of liberty that physical
conditions made possible; the population’s religious beliefs and cultural attitudes; relative wealth;
density of the population; modes of commerce; and customs and manners. What Montesquieu refers
to as l’ésprit des lois, the underlying spirit that shapes any set of laws, is the result of the combined
influences of all these factors. See Charles de Secondat Montesquieu, De l’Esprit des lois (1748),
book I, chapter 3.
7.2 Divergence and Convergence of Legal Systems 175

on the control of food supply and distribution. The discovery of new energy sources,
such as oil or natural gas, necessitates the introduction of legal rules to regulate their
exploitation.14 Physical conditions play a direct role in the formulation of specific
legal rules, i.e. rules that are introduced to meet needs generated by the conditions
themselves, but they also impact upon the character of the legal system indirectly,
e.g. by influencing the mentality and temperament of the population,15 or by
affecting a country’s economy and, through it, its legal development to the extent
that the law is influenced by economic circumstances.
An interrelationship also exists between economic and legal development. Often
the content of specific legal rules is determined by and directly reflects certain
economic patterns. The economic structure establishes the limits of decision-making
with respect to both the system and details of the law. One can say that the economy
underpins and sets the limits to the law but, on the other hand, law also provides the
framework for economic activity. Countries with different economic systems (free
market economy, centrally planned economy), or at different stages of economic
development, have different legal rules in the economic domain. For example, the
introduction of legal rules against restrictive business practices (antitrust legislation)
becomes necessary only in the context of a free market economy and presupposes a
certain level of concentration of economic power. Moreover, as far as the economic
structure impacts upon other aspects of social life, such as criminality and family life,
it also plays an indirect part in the areas of criminal law and the law governing family
relations. Notwithstanding its importance, the economic system should be regarded
as one of several interrelated factors affecting the character and development of
the law.
The study of cultural history shows the important role that religions have played
in the development of legal systems. The influence of religion on law is manifest not
only in early societies, in which religious, moral and legal norms often overlapped,
but also in modern ones. For example, in countries of the Muslim world religious
norms have directly acquired the status of legal norms or been indirectly incorpo-
rated into the legal system. Likewise, in Western countries religious beliefs and
attitudes have impacted on the development of the law, especially in the fields of
family and criminal law. Moreover, as Zweigert and Kötz have pointed out, religious
beliefs may have a distinctive effect on the style of a legal system as well as people’s
attitudes towards it.16 For example, the influence of Confucian ethics in Asian
countries is a factor that explains the people’s general aversion to laws and judicial
proceedings, and the emphasis placed on compromise and conciliation as a means of
resolving private disputes. It is important to note, however, that one should examine
the effects of religious factors on a particular legal culture in light of the historical
processes that shaped the epoch during which that culture emerged, while always

14
See Grossfeld 1990), p. 75 ff; Rodière (1979), p. 8.
15
See Wahl (1973), pp. 261–276.
16
Zweigert and Kötz (1987), p. 73.
176 7 Comparative Law, Legal Transplants and Legal Change

remaining aware of the connections between these factors and both socio-economic
and political influences.17
To gain a thorough understanding of a country’s legal system and its development
one must also examine its political system. Both the contemporary political system
and the social situation set certain ideological limits on legal regulation. The
legislation reflects the way powerful groups in society conceive the prevailing
state of affairs and the manner in which matters should be arranged. In this respect
one should ask: which social groups possess the power to impose their own world
picture or ideology—their knowledge, beliefs and desires regarding society—as the
basis for legal norms and their application? From this point of view one may explain
differences between the legal systems of democratic and non-democratic states,
especially in the fields of constitutional, criminal and administrative law.18 More-
over, the close connection between a country’s political system and its economic
structure dictates a general explanatory background of economic activity as a
framework for concrete observations.19 Although a particular type of ideology
normally underpins an economic and political system, ideological differences can
be detected even between countries with the same or similar political and economic
systems. For example, differences between the prevailing views in two countries
about the position of women in society are reflected not only in family law, but also
in other branches of law such as labour law and the law of succession. Such
ideological differences may be explained by reference to cultural, religious and
historical factors.
As previously noted, law can only be properly understood when it is placed in a
broad historical context. The defining features of a legal system are the product of
historical processes, especially those that shaped the epoch during which the system
was formed. Thus, historical factors can explain a country’s constitutional structure
(e.g., whether it is a republic or a constitutional monarchy), the hierarchy of sources
of law, the organization of its court system or the enactment of certain laws.20 For

17
As previously noted, Friedman defines legal culture as the body of ideas, values, expectations and
attitudes towards law and legal institutions which some public (or some part of the public) holds.
“The Concept of Legal Culture: A Reply”, in D. Nelken (ed.), Comparing Legal Cultures (Brook-
field, Vt., 1997), 33–40. And see Chap. 6 above.
18
See on this Friedmann (1972), pp. 22–23.
19
Political decision-making may be described as the uniting link between economic conditions and
legal norms.
20
In so far as law is a product of the authoritative power of the state, it is unsurprising that, under
certain historical conditions, legislative enactments were strongly influenced by the personal
preferences or priorities of a person or persons in a position of great authority. For example, the
content of certain family law rules in France at the time of the introduction of the French Civil Code
(early nineteenth century) was largely determined by considerations pertaining to Napoleon
Bonaparte’s own family situation. In general, however, a legislator’s choice may very rarely be
regarded as being entirely arbitrary. In most cases the legislator would adopt one of several possible
solutions to a problem generated by a conflict of interests—the solution which appears to him or her
the most reasonable in the circumstances—even though in the eyes of another legislator a different
solution may have been preferable.
7.2 Divergence and Convergence of Legal Systems 177

instance, consider the phenomenon of codification of law—a distinctive feature of

civil law systems. Codification denotes an authoritative statement of the whole law
in a coherent and systematic way. The tradition of codification is a product of the
rationalist tendencies that prevailed in European political philosophy during the
eighteenth and nineteenth centuries. Its roots, however, can be traced to the great
codification of Roman law by the Emperor Justinian in the sixth century AD. One
can trace to Justinian the idea that the code overrides all legal sources, offering a
fresh start to the law. As previously noted, a great deal of the differences between
civil law and common law systems are, in one way or another, connected with the
contrast between the procedural and the theoretical origin of legal norms, concepts
and principles. Therefore, it is not surprising that legal scholars and academics in
civil law countries enjoy more prestige than judges, for the duty of the civil law
judge is to apply the written law whose meaning is discovered largely from the work
of academic scholars.21 In the civil law, the legal scholar seems to be the senior while
the judge is the junior partner in the legal process. The authority of academic writers
in civil law countries has an historical explanation. When the texts of Justinian’s
legislation were rediscovered in the eleventh century, they appeared so complicated
and difficult to understand that it was left to academic scholars (the glossators and the
commentators) to decipher and explain them. As a result, the works of academic
commentators acquired as much authority as the texts themselves. Judges also came
to greatly rely on legal scholars for information and guidance concerning the
interpretation and application of the law. By the end of the sixteenth century it had
become a common practice for judges in Germany and other Continental European
countries to refer the record of a difficult case to a university law faculty and to adopt
the faculty’s collective opinion on questions of law. This practice, which prevailed
until the nineteenth century, resulted in the accumulation of an extensive body of
legal doctrine. When systematized in reports and treatises the scholarly opinions
rendered in actual cases were regarded as a kind of case law and an authoritative
source of legal interpretations.22 Reference should also be made, in this connection,
to the importance of elucidating the historical relationship between legal orders and
the issue of transferability of legal institutions and norms. The legal systems of
countries such as New Zealand, Australia, Canada, India, and Singapore, share many
common characteristics by reason of their historical inheritance from British colo-
nialism, notwithstanding the fact that the legal rules and institutions received have
often been modified or replaced to meet local conditions and needs.
There is an incessant competition between the factors of differentiation and
uniformity of legal systems. The outcome is determined by the relative weight
ascribed to the various factors in different socio-cultural and legal contexts.

21
As J. Merryman remarks, if the common law is the law of the judges, the civil law is the law of the
law professors. The Civil Law Tradition, An Introduction to the Legal Systems of Western Europe
and Latin America (Stanford, CA, 1969), 59–60.
22
See Dawson (1968), p. 231.
178 7 Comparative Law, Legal Transplants and Legal Change

7.3 Legal Transplants and Reception of Laws

A great deal of the similarities that exist among legal systems belonging to the same
broader legal family or transnational tradition are the result of ‘legal borrowing’ or
‘legal transplanting’. As previously noted, ‘legal transplanting’ involves a legal
system incorporating a legal rule, institution or doctrine adopted from another
legal system. It may also pertain to the reception of an entire legal system, which
may occur in a centralist way. To understand the reception of foreign law phenom-
enon one must examine the historical reasons behind the introduction 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. Territorial expansion through
military conquest did not always entail the imposition of the conquering peoples’
laws on the subjugated populations. For example, in the lands under Roman,
Germanic and Islamic rule subject populations continued to be governed by their
own systems of law under the so-called ‘principle of the personality of law’. In some
cases, a direct imposition did in fact occur, as happened, for instance, with the
introduction of Spanish law in South America. 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 process of
legal transplanting might be interrupted, or precipitated, by revolutionary change. A
revolution may be defined as an historical event that may change the identity of a
socio-political 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.23 The transformation of a
country’s legal system prompted by such a change may entail the system of law
moving further away from or closer to other systems, so far as ideological differ-
ences and similarities with respect to different countries’ socio-political and eco-
nomic structures are expressed in law.24

23
Legitimacy is the quality of a socio-political system that explains its authority at a particular place
and time over a particular community. A system’s legitimacy may be founded on social consensus
(democracies), or on a variety of other elements, such as transcendental command (e.g. theocratic
states) or, even, arbitrary oppression. In turn, orientation may vary from old-fashioned, open-ended
laissez-faire orientations to communism and many other distinct combinations. Efficiency is a
quality that refers to the overall performance of a system. A system develops and remains the
same to the extent that the foundation of its legitimacy and the direction of its orientation remain
stable. Non-revolutionary changes are under legitimacy control. In such a case, since the foundation
of legitimacy is not affected, a change in the direction of orientation must satisfy the criteria of the
established legitimacy foundation. Revolutionary change may be the result of a catastrophic
collapse with respect to the authority or efficiency of a system.
24
On the role of revolution as a factor explaining the divergence or convergence of legal systems see
Rodière (1979), p. 21.
7.3 Legal Transplants and Reception of Laws 179

As commentators have observed, the perceived quality and prestige of the donor
system plays a central part in a legal reception process. Consider, for instance, the
reception of Roman law in Europe and its admirable longevity as a system under
different socio-economic conditions. Roman law, as preserved by the compilers of
Justinian’s codification in the sixth century AD, was one of the strongest formative
forces in the development of Western legal culture. It was adopted and applied in
most of Continental Europe during the Middle Ages and the Renaissance (in wide
areas of Germany and other European regions it remained an immediate source of
law until the end of the nineteenth century).25 Roman law was received in Catholic,
Calvinist and Lutheran countries; it operated in countries where agriculture domi-
nated economic life and it also applied in mercantile centres and later in countries
undergoing an industrialization process. This system of law, first adopted in Europe,
was directly or indirectly (through a European law code) transplanted in South
America, Quebec, Louisiana and many countries in Asia and Africa. But why was
Roman law adopted? The medieval reception of Roman law was partly due to the
lack of centralized governments and developed formal legal systems that could
compete with the comprehensive inheritance of Rome; and partly due to the fact
that the lands formerly governed by the Romans were accustomed to this style of
thought, and accorded it wisdom and authority. A third feature, deriving almost
completely from the model of the Roman Corpus Iuris Civilis, was the desire of the
emerging nation-states to codify their laws and the aspirations of later jurists to
conform their studies to this model. The important point here is that Roman law was
not adopted merely because it was admired, nor because its norms were particularly
suitable for the social conditions in the early European nation-states. In fact, many
norms of Roman law were entirely antiquated. Foremost, it was the perceived
superiority of Roman law as a system that led to the adoption of its norms, even if
this adoption was supported by a learned tradition that endured for centuries.26 Thus,
as an important common denominator of Western legal experience, the conceptual
system of Roman law may be said to be an apt tertium comparationis—a common
basis of the legally organized relationships of life.27
Nowadays, foreign rules or doctrines are usually ‘borrowed’ in the context of
legal practice itself, because they fill a gap or meet a particular need in the importing
country. As already noted, one of the chief objectives of comparative law has
traditionally been the systematic study of foreign laws with the view to deriving
models that would assist the formulation and implementation of the legislative
policies of states. In drafting or revising statutes and law codes, national legislators

25
On the Reception of Roman law in Europe see Chap. 8 below.
26
Seen as constituting an expression of natural reason, Roman law was received in Europe not by
virtue of any theory concerning its continued validity as part of the positive law, but in consequence
of its own inherent worth. In other words, its validity was accepted not ratione auctoritatis, but
auctoritate rationis.
27
Legal relationships are to a large extent organized by forms derived from Roman law (such as
contractus and bona fides). One might say that these forms constitute a kind of pre-knowledge for
Western legal systems.
180 7 Comparative Law, Legal Transplants and Legal Change

often rely on large-scale legislative comparisons that they themselves undertake or

mandate. A legislator’s readiness to adopt a foreign legal rule is often associated
with considerations of economic efficiency. 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 specific problem.28 In a market of a
legal culture, where rule suppliers are concerned with satisfying demand, ultimately
the most efficient rule will be the winner.29 Moreover, the study of foreign laws can
also be valuable when courts and other authorities interpret and apply the legal rules
of their own legal system. In so far as a judge, in filling 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 previously noted, a legislator
often reaches their decisions by taking into consideration 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. This is especially true when a judge interprets and applies rules
that have been borrowed from other legal systems, as well as the rules introduced as
a result of international unification or harmonization of law. As the above discussion
suggests, 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.
Legal transplants can be introduced by all branches of government: legislatures,
courts or administrative bodies. As observed in Chap. 2, legislation involves a
significant potential for legal transplantation due to the extensive power of the
legislature to introduce legal reforms. Probably the most dramatic examples of
legal transplantation through legislation concern transitional periods in a nation’s
history. In such periods, political-legal systems undergo drastic transformation and
the most effective tool for change is legislation. For example, large scale legal
transplantation through legislation was part of the process of opening up to the
West, which transformed the legal system of Japan in the second half of the
nineteenth century.30 In a similar way, large scale legal transplantation through
legislation was part of the new beginnings of legal systems, such as the systems of

28
See Mattei (1994), p. 3 ff; Mattei and Pulitini (1991), p. 207 ff. According to Mattei, from the
viewpoint of a particular legal system, ‘efficient’ is whatever makes the legal system work better by
lowering transaction costs. Mattei’s approach, which represents an example of the more recent trend
to combine comparative law and economics, may be taken to constitute a narrower version of
functionalism focusing not on social functions in general but on a particular function, namely the
efficiency of a legal rule or institution in economic terms.
29
But, as Mattei recognizes, the existence of differences between legal systems does not necessarily
imply inefficiency. Different legal systems may adopt alternative solutions for the same legal
problem, which may be regarded as neutral as far as the issue of efficiency is concerned.
30
See Seizelet (1992), pp. 67–72; Minear (1970) and Röhl (2005).
7.3 Legal Transplants and Reception of Laws 181

countries liberated from colonialism31 and, in later times, from communist rule.32 As
previously noted, a nation in the process of enacting a new constitution is particu-
larly susceptible to external influences and this may be due to its desire to abandon
norms associated with overthrown political regimes or a disappointing constitutional
past.33 In today’s globalized world, legal transplantation through legislative action is
part of everyday reality in most countries. However, the tendency to borrow foreign
legal concepts and institutions varies according to the socio-cultural and political
context, as well as the subject-matter of the legislation at hand. In particular, areas
where a legal system is faced with challenges on which no prior relevant experience
is available are usually more susceptible to borrowing from foreign legal systems.
Technological innovations that make it necessary for legislators to search for models
include, for example, artificial intelligence and new reproduction technologies.34
Furthermore, searching for inspiration from foreign legal systems is often associated
with economic competition between countries. For instance, tax legislation and
special laws facilitating investment are of immediate concern for today’s competing
economies.35 Another type of legislative enactment with outside origins
(as distinguished from legislation inspired by laws enacted by another state) is
legislation introduced in the wake of the conclusion of an international treaty
mandating or encouraging the adoption of conforming laws by the contracting

31
For example, the law codes enacted in Latin American countries following their liberation from
Spain in the nineteenth century were based on European legal models, such as the French and
German civil codes. For a closer look see Mirow (2000), p. 83; Mirow (2001), p. 291. For a general
view consider Mirow (2004). Similarly, in the 1960s countries liberated from colonial rule adopted
legal systems based on Western models, especially those of the former colonial powers. However,
what was portrayed as a Western contribution to the successful development of former colonies has
been criticized as inadequate to meet these countries’ needs, largely due to the socio-cultural
differences between the donor and recipient countries. Consider on this issue Gardner (1980).
And see Berkowitz et al. (2003), p. 163.
32
In the years following the demise of the communist regimes in Eastern Europe, former communist
states in the process of transition to democracy and a market economy introduced major legal
reforms in the fields of both public (especially constitutional) and private law. Consider, e.g., Ajani
(1995), p. 93. In China too, major legislative reforms were enacted with a view to developing
appropriate tools for the country’s growing economy, with considerable input from foreign experts.
See Seidman and Seidman (1996), p. 1.
33
For example, after the World War II, both Germany and Japan adopted new constitutions that
were drafted with the assistance and under the guidance of the victorious powers, especially the
United States. Consider on this, e.g., Hamano (1999), p. 415.
34
A relatively new example in this context is the tendency to consider legal arrangements in other
states concerning the acceptance of same-sex marriage and registered partnerships.
35
The adoption of Western models in the domain of commercial law by East European countries
should also be understood as being motivated by economic factors and the desire to increase
competitiveness. A negative effect of this phenomenon is the so-called ‘race to the bottom’ with
respect to welfare legislation and the laws protecting workers’ rights. Consider on this issue
Avi-Yonah (2000), p. 1573; Charny (2000), p. 281.
182 7 Comparative Law, Legal Transplants and Legal Change

parties.36 Finally, some acts of legislation are motivated by the desire to facilitate the
worldwide or regional harmonization of law and to overcome the diversity of
national laws and the conflicts this gives rise to in certain areas (such as intellectual
property rights or internet law).
As noted in Chap. 2, judges also use the technique of recourse to foreign legal
systems, especially when facing difficult cases. However, as in most cases judges are
expected to apply existing rules (and not to create new ones), the use of foreign legal
material is restricted to the interpretation of current laws in the wake of legal
uncertainty produced by conflicting rulings. To put it otherwise, judges cannot
engage in legal transplantation that entails institutional reform or has no basis in
existing norms that are considered binding within the system. Constitutional norms
concerned with the protection of individual or collective rights are especially open to
judicial interpretation by reference to international and foreign legal standards, due
to their vague wording and the expectation of compliance with international human
rights conventions.37 Furthermore, when courts are confronted with novel problems,
i.e. problems falling outside the scope of both current legislation and judicial
precedent, they often tend to rely on foreign law materials. In general, courts find
it easier to utilise precedents from legal systems belonging to the same legal family
as their own.38 A potential problem with the judicial transplantation of legal norms is
that it presupposes broad judicial discretion concerning the decision when to borrow
and from where.
The practice of transplantation by the executive is an important, although often
neglected, aspect of comparative law today. Although administrators are not
regarded as law-makers, they are engaged in the creation of new legal norms in at
least two ways: through legislation originating in the initiatives of the executive and
when they borrow new administrative models from other countries. As is well
known, significant legislative reforms are often proposed and drafted by the profes-
sional staff of the executive, who would use foreign law materials when they believe
that such material may prove useful. Indirect transplantation may occur also when
government agencies import new methods of governance, such as outsourcing and
privatization, and administrative innovations from foreign countries. Although such
initiatives are in theory only administrative decisions not involving a normative
content, they are often accompanied by a growing incentive to import also the legal
mechanisms developed in the donor country to deal with the relevant administrative
model. A problem with transplantation through administrative initiative is that it
appears to contradict democratic values, in so far as administrative decisions often
lack transparency and are generally not subject to public scrutiny.

36
Another form of activity on an international plane that influence domestic legislation is that
pertaining to the creation of model laws by organs of the United Nations or other international
organizations. In this connection, reference should be made to the activities of the United Nations
Commission on International Trade Law (UNCITRAL) and the International Institute for the
Unification of Private Law (UNIDROIT), mentioned in Chap. 2 above.
37
Consider on this matter Neuman (2004), p. 82.
38
See relevant discussion in Chap. 2 above.
7.3 Legal Transplants and Reception of Laws 183

As the above discussion suggests, the practice of legal transplantation is more

common and complex than is usually perceived. It is utilized not only by lawmakers
and judges but also by members of the executive and administrators. Therefore,
studies which consider the use of foreign law by focusing mainly on legislation and
juridical literature may lead to an incomplete picture of how legal change occurs.39
Examining the destinies of legal transplants in diverse socio-cultural, economic
and political contexts is important for determining the desirability and applicability
of such transplants for legislative and judicial practice. It may be true that socio-
cultural and other differences between the exporting and importing countries do not
necessarily preclude the successful transplantation of legal rules and institutions.
Legal rules can be taken out of context and used as a model for legal development in
a very different society. However, one should keep in mind that an imported legal
norm is occasionally ascribed a different, local meaning, when it is ‘indigenized’ on
account of 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 are understood in a way that is different from that in the donor countries.
The absence of substantial differences in the wording of a legal rule between a donor
and a host country does not imply that legal reality, or everyday legal practice, in the
two countries should be presumed to be identical or similar. The legal reality in the
host country may be very different with respect to the way people (including judges
and legal practitioners) read, construe and justify the relevant law and the court
decisions based on it. Moreover, the role of statutory law in the recipient country
may be weaker than in the exporting country and custom may be a predominant
factor. Thus, in practice, socio-cultural norms 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.40 Such an approach carries the risk of
implying the existence of many more similarities than actually exist.41

39
See on this Siems (2007), p. 133.
40
According to O. Kahn-Freund, there are ‘degrees of transferability’. All legal rules may to some
extent be disconnected from their socio-political setting, and this makes legal transplants across
socio-political boundaries theoretically possible. However, since laws get disconnected to varying
degrees, some are more likely to survive the journey than others. The author notes, moreover, that
socio-political institutional factors determine the degree of coupling between law and society. These
factors pertain to the ideological role of law, the distribution of state power and pressure from
non-sate interest groups. Transplanted laws should be compatible with the dominant political-legal
ideology in host countries; they should accord with host countries’ legal frameworks and political
power structures; and should attract sufficient support from special interest groups, such as market
support organisations (e.g. banks, trade unions and political parties) in host countries. “On Uses and
Misuses of Comparative Law”, (1974) 37 (1) Modern Law Review, 1, 12–14. Consider also Stein
(1977–1978), p. 198.
41
As A. Watson has remarked, “except where the systems are closely related, the differences in
legal values may be so extreme as to render virtually meaningless the discovery that systems have
the same or a different rule”. Legal Transplants, 2nd ed., (Athens, Georgia, 1993), 5. For example,
184 7 Comparative Law, Legal Transplants and Legal Change

7.4 Legal Transplants and Legal Change: Watson’s Theory

Revisited

Since the publication of the first edition of his seminal book, Legal Transplants: An
Approach to Comparative Law in 1974, Professor Alan Watson has produced many
significant works on the relationship between law and society, and the factors
accounting for legal change.42 In these works he iterates his belief that changes in
a legal system are due to legal transplanting: the transfer of legal rules and institu-
tions from one legal system to another. According to Watson, the nomadic character
or rules proves that the idea of a close relationship between law and society is a
fallacy.43 Law is largely autonomous and develops by transplantation, not because
some rule was the inevitable consequence of the social structure, but because those
who control law-making were aware of the foreign rule and recognized the apparent
benefits that could derive from it.44 Watson does not contemplate that rules are
borrowed without alteration or modification; rather, he indicates that voluntary
transplants would nearly always—always in the case of a major transplant—involve
a change in the law largely unconnected with particular factors operating within
society.45 Neither does Watson expect that a rule, once transplanted, will operate in
exactly the same way it did in the country of its origin. Against this background,
Watson argues that comparative law, construed as a distinct intellectual discipline,
should be concerned with the study of the historical relationships between legal
orders and the destinies of legal transplants in different countries.46 On this basis one

consider the difficulties surrounding the interpretation of the concept of individual freedom, as
found in international treaties on human rights. Individual freedom has a rather different meaning in
China and other Asian countries, as compared to the Western view, not just because of a political
ideology currently or formerly imposed by the rulers of those countries, but because of a more basic,
culturally embedded ideology that originates from a very different, collectivist world view. And see
Ewald (1995), p. 489. For a closer look at the issue of legal transplants see Siems (2018), p. 231 ff;
Graziadei (2019), p. 442; Graziadei (2009), p. 723; Örücü (2002), p. 205; Gillespie (2001), p. 286.
42
See, e.g., Watson (1996), p. 335; Watson (1978), p. 313; Watson (1976), p. 79; Watson (1977,
1984, 1985, 1991b, 2001). And see Sacco (1991), p. 343.
43
Legal Transplants, supra note 41, 108.
44
“Comparative Law and Legal Change”, (1978) 37 (2) Cambridge Law Journal, 313, 313–315 and
32.
45
Watson has identified a number of factors that determine which rules will be borrowed, including:
(a) accessibility (this pertains to the question of whether the rule is in writing, in a form that 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 to do 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, or lawyers 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.
46
Legal Transplants, supra note 41, 6.
7.4 Legal Transplants and Legal Change: Watson’s Theory Revisited 185

may identify the factors explaining the change or immutability of law.47 Watson
asserts that comparative law (which he distinguishes from the study of foreign law)
can enable those engaged in law reform to better understand their historical role and
tasks. It can provide them with a clearer perspective as to whether and to what extent
it is reasonable to borrow from other systems and which systems to select; and
whether it is possible to accept foreign legal rules and institutions with or without
modifications.48
The concept of transplant bias is an essential element of Watson’s theory that
legal change primarily occurs through the appropriation or imitation of norms. It
refers to a system’s receptivity to a particular foreign law as a matter distinct from
acceptance based on a thorough assessment of all possible alternatives.49 This
receptivity varies from system to system and its extent depends on factors such as
the linguistic tradition shared with a potential 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 of transplant bias. According to Watson,
juristic doctrine is particularly susceptible to foreign influence.50 Precedent, 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’s own 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 of
this 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 is superior’, is neither deductive (i.e. based upon an axiom concerning
the superiority of Roman law) nor inductive (where one should present reasons for

47
Legal Transplants, ibid., at 21. To illustrate his point, Watson mentions a set of rules concerned
with matrimonial property, 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 United States.” (Ibid., at 108) He adds, that if one considers a range of legal systems
over a long term “the picture that emerge[s] is of continual massive borrowing . . . of rules.” (Ibid.,
at 107) On this basis he concludes that the moving of a rule or a system of law from one country to
another has now been shown to be the most fertile source of legal development, since “most
changes in most systems are the result of borrowing.” (Ibid., at 94). According to R. Sacco
“Borrowing and imitation is . . . of central importance to understanding the course of legal change”
. . . “the birth of a rule or institution is a rarer phenomenon than its imitation.” “Legal Formants: A
Dynamic Approach to Comparative Law” II, (1991) 39 American Journal of Comparative Law,
343, at 394 and 397.
48
Despite the rather far-reaching nature of some of his statements, it is important to observe that
Watson has generally confined his studies, and the deriving theory of legal change, to the
development of private law in Western countries.
49
Transplant bias may be used to denote, for example, a system’s readiness to accept a Roman law
norm because the norm is derived from Roman law.
50
This is evidenced by the fact that the reception of Roman law in Continental Europe first occurred
in the field of legal science.
186 7 Comparative Law, Legal Transplants and Legal Change

considering the particular norm N good); rather it is quasi-inductive and

systematical.
As a factor of legal change, transplant bias interacts with a number of other
factors: source of law; pressure force; opposition force; law-shaping lawyers; dis-
cretion factor; generality factor; inertia; and felt needs.51 Consideration of these
factors is crucial to understanding the phenomenon of legal change.
According to Watson, the development of a legal system is influenced by the
nature of the predominant source of law, whether this is custom, statute, judicial
precedent or juristic doctrine. In general, precedent-based law develops more slowly
than statutory law because precedent-based law “must always wait upon events, and,
at that, on litigated events.” There is no way of precisely defining the ratio decidendi
of a particular case, for “only when there is a line of cases does it become possible to
discover the principle underlying even the first case.”52 While law based on prece-
dent is slow to change, statutory law, which is more systematic and broader in scope,
can be utilized to introduce drastic and swift reforms.
The term pressure force refers to an organized group of persons who believe that
they would derive a benefit from a change in the law. Watson says that the power
wielded by a group to effect legal change varies in accordance with the social and
economic position of its members and its capacity to act on a particular source of
law. In general, development by legislation is more strongly affected by pressure
forces than development by judicial precedent.53 Examples of interest group influ-
ence on lawmaking abound: laws concerned with the use of alcohol or drugs and
sexual behaviour, food and drug legislation, antitrust laws and the like are all well-
known instances of interest group activity. Furthermore, alterations in existing
statutes often result from the influence of those groups who see some advantage in
the proposed changes.
Opposition force is the converse of pressure force and refers to an organized
group of persons who believe that harm will result from a proposed change in the
law. Change may be resisted by groups who fear a loss of power, prestige or wealth,
should a new proposal gain acceptance. There are many different kinds of vested
interests for whom the status quo is profitable or preferable. For example, in some
countries, divorce lawyers constitute a vested interest and for a long time have

51
Although these factors pertain primarily to the Western legal tradition, Watson believes that they
are valid also outside this sphere. Consider “Comparative Law and Legal Change”, (1978)
37 (2) Cambridge Law Journal, 313–336.
52
Watson (1978), p. 323.
53
Watson stresses the independence of judges in precedent-based systems. As judges are not elected
and their role is not seen as primarily political, they are less likely to be subject to direct pressure by
organized groups. He adds that juristic doctrine, as a source of law, is also largely immune from
pressure forces, except where a pressure force has great power and authority. In my opinion, Watson
over-emphasizes the immunity of judges and jurists from external pressure. Usually there is a
system of permanent pressure forces in society, and most lawyers belong to that system. It is
important to consider whether or to what extent judges and jurists are susceptible to political
arguments, and the degree of participation in politics they are permitted in different systems.
7.4 Legal Transplants and Legal Change: Watson’s Theory Revisited 187

resisted efforts to reform divorce laws. Students attending public or state universities
have a vested interest in a tax-supported higher education system. Residents in a
community often organize to oppose zoning changes, interstate highways, the
construction of waste disposal facilities, or the building of prisons.54 In fact, almost
any change through law will adversely affect some groups in society, and to the
degree that those groups consciously recognize the danger, they will oppose the
change. According to Watson, for an opposition force to exist it is required that the
group that would be adversely affected by the change is adequately organized.55
Law-shaping lawyers are the legal elite that shape the legal system and whose
knowledge, imagination, training and experience strongly influence the end product
of any change in the law. Legal professionals mould the law in diverse ways: as
members of parliamentary or governmental committees they are directly involved in
the drafting of legislation; as judges they determine the shape and form of judicial
precedents; and as jurists they contribute to the development of juristic doctrine and
its recognition as a source of law. Watson observes that lawyers are well-placed to
act as pressure or opposition forces.56 Their knowledge of how the legal system
actually works means that they are fully aware of how the current law or its change
affects their well-being.57
The discretion factor refers to the implicit or explicit discretion that exists either
to enforce or not enforce the law, or to press or not press one’s legal rights. The
discretion factor is concerned with “the extent to which the rules permit variations, or
can be evaded. . .or need not or will not be invoked.”58 Watson observes that some
degree of discretion is an inevitable element in any developed legal system. This
discretion may be possessed by individual parties, judges and members of the
executive or actually be built into the legal rules themselves. By providing choice

54
Occasionally, widespread resistance to change may be channelled through a social movement or
political action groups or lobbyists.
55
Watson remarks that although the persons who will be adversely affected by a proposed change in
the law may be more numerous than those who will benefit, the change will most likely be executed
if the anticipated gains of each member within the latter group is extensive, whereas the perceived
harm to each member of the former group is small. The absence of an organized opposition force in
such a case explains why legislation that is overall harmful and generally considered unpopular is
occasionally passed without much resistance.
56
For example, the majority of British judges and lawyers insist on wearing the arcane court attire
consisting of ceremonial robes and wigs that became fashionable and then mandatory during the
reign of King Charles II in the late seventeenth century, although there has been a move led by the
Lord Chancellor, head of the country’s judiciary, to wear business attire for every day and use the
knee breeches, silk stockings and buckled shoes only on special occasions.
57
Watson observes that although, as a factor of legal change, law-shaping lawyers may be deemed
superfluous (as their functions are adequately covered by the notions of source of law and transplant
bias), their role deserves special attention. In his more recent work, Watson places greater emphasis
on the role of legal culture in shaping law’s internal development. He points out that legal change
comes about through the culture of the legal elite, and it is above all determined by that culture. See
Watson (2001), p. 264. On the notion of legal culture see Chap. 6 above.
58
Watson (1978), p. 330.
188 7 Comparative Law, Legal Transplants and Legal Change

the discretion factor tends to mitigate some undesirable requirements or conse-

quences of legal norms, thus prompting an easier acceptance of these norms.59
The generality factor denotes the extent to which legal rules regulate more than
one group of people, or more than one transaction or factual situation. Watson points
out that the greater the generality of law, the more difficult it is to find a rule that
precisely fits the situation of each group, or transaction or factual situation being
regulated. He adds that the greater the generality of a proposed change in the law, the
greater the difficulty of securing agreement on the appropriate rule or rules, and
hence the greater the difficulty of bringing about legal change. The generality factor
interacts to a considerable extent with the pressure or opposition forces. If the scope
of the proposed change in the law is too narrow, the pressure force supporting it may
have little influence. If, on the other hand, the scope of the proposed change is too
broad, it is likely to produce an opposition force as such a change is unlikely to
satisfy all the groups concerned. A connection also exists between the generality
factor and the sources of law: to carry out a legislative change a degree of generality
is required.
Inertia is defined by Watson as the absence of a sustained interest of society and
its ruling elite to endeavour to bring about the most ‘satisfactory’ rule. For legal
change to occur, an impulse must exist (directed through a pressure force operating
on a source of law) that is sufficiently strong to overcome the inertia.
Finally, felt needs are the purposes known to, and considered appropriate by, a
pressure force operating on a source of law. Watson recognizes that elucidating the
nature of felt needs is not always easy. He declares that this requires an examination
of words, deeds and effects: what the pressure force says is needed; how its
constituent elements act both before and after the legal change is implemented;
and how the change actually impacts on the interests of the pressure force concerned.
There are needs that may be general, well-recognized and enduring in time. But
unless these needs are supported by an active pressure force they are not ‘felt needs’
as understood by Watson, even though consideration of these ‘other needs’ is
important for anyone interested in understanding the relationship between law and
society.
The experience of the legal historian underlies Watson’s scepticism towards the
view that law is directly derived from social conditions. According to him, history
shows that legal change in European private law has occurred mainly by

59
However, Watson does not fail to note that an abuse of discretion will entail an adverse reaction. It
is true that discretion creates choice, but the use of choice depends on certain other factors. It might
be the case, for example, that a controversial parliamentary bill is passed as law after the most
questionable paragraphs have been recast in such a way as to enable the judiciary or the executive to
exercise discretion (e.g. open wording, general clauses or flexible criteria are used). However, this
transfers the problem to another level of decision-making. At that level of micro decision-making,
the principle pertaining to the equal treatment of the subjects of law plays a more important part than
at the level of law-making, where the criteria of formal justice are introduced. From a comparative
point of view, it should be stressed that a mere statement of discretion is rarely sufficient, as
discretion is exercised according to some criteria and not at random.
7.4 Legal Transplants and Legal Change: Watson’s Theory Revisited 189

transplantation of legal rules and is not necessarily due to the impact of social
structures. He sees legal change as an essentially ‘internal’ process,60 in the sense
that sociological influences on legal development are considered generally
unimportant. The evidence to support this position is derived from history, which
Watson claims to show: (i) that the transplanting of legal rules between systems is
socially easy even when there are significant material and cultural differences
between the donor and recipient societies; (ii) that no area of private law is very
resistant to change through foreign influence—contrary to the sociologically ori-
ented argument that culturally rooted law is more difficult to change than merely
instrumental law61; and, (iii) that the recipient legal systems require no knowledge of
the context of origin and development of the laws received by transplantation from
another system.62 Social, economic, and political factors affect the shape of the
generated law only to the extent they are present in the consciousness of lawmakers,
i.e. the group of lawyers and jurists who control the mechanisms of legal change.
The lawmakers’ awareness of these factors may be heightened by pressure from
other parts of society, but even then, the lawmakers’ response will be conditioned by
the legal tradition: by their learning, expertise and knowledge of law, domestic and
foreign. Societal pressure may engender a change in the law, but the resulting legal
rule will usually be adopted from a system known to the lawmaker and often
modified without always a full consideration of the local conditions. Watson stresses
that law is, to a large extent, a phenomenon operating at the level of ideology; it is an
autonomous discipline largely resistant to influences beyond the law itself. From this
point of view, he argues that the law itself provides the impetus for change.63 At the
same time, he recognizes that there is a necessary relationship between law and
society, notwithstanding that a considerable disharmony tends to exist between the
best rule that the society envisages for itself and the rule that it actually has. The task
of legal theory with comparative law as the starting-point is to shed light on this
relationship and, in particular, to elucidate the inconsistencies between the law

60
He speaks of an ‘internal legal logic’ or of ‘the internal logic of the legal tradition’ governing legal
development. See Watson (1985), pp. 21–22.
61
See on this Levy (1950), p. 233.
62
Watson (1976), pp. 80–81.
63
From the viewpoint of the autopoiesis theory, G. Teubner criticizes Watson for placing too much
emphasis on the lawyers’ professional practices as such. Teubner argues that these practices are not,
in themselves, the motor of legal change but rather the necessary outcome of law’s character as a
distinctive discourse concerned chiefly with producing decisions that define what is legal. Because
what is legal is law’s essential focus as an independent discourse, law cannot be governed by social
developments of the kind sociologists are concerned with. It may react to these developments but it
always does so in its own normative terms. Thus, what Watson sees as the autonomous law
development by legal elites, proponents of autopoiesis theory regard as the working out of law’s
independent evolution as a highly specialized and functionally distinctive communication system.
For a closer look see in general Luhmann (1995), Teubner (1993) and Priban and Nelken (2001).
On the implications of the autopoiesis theory for comparative law see Teubner (1998), p. 11.
190 7 Comparative Law, Legal Transplants and Legal Change

actually in force and the ideal law, i.e. the law that would correspond to the demands
of society or its dominant strata.64
Watson’s work on the concepts of legal transplants and legal change calls into
question the notion that law is a local phenomenon functionally connected with the
living conditions of a particular society. His statement that “legal rules are not
peculiarly devised for the particular society in which they now operate”65 is descrip-
tive rather than normative in nature. It implies that the reception of foreign legal
norms and institutions often occurs without the benefit of full familiarity with
whatever is adopted in the receiving country. And even when the borrowed rule
remains unaltered, its impact in the new socio-cultural setting may be entirely
different.66 For Watson, the source of the original legal norm or institution does
not control the final result of the process of transplantation or borrowing. It is the
recipient and not the donor system that has the last word on the mode of application
of the imported law. However, as critics have pointed out, Watson’s position
involves a paradox: if the recipient system controls the outcome of the process
initiated by the transplanting, how can one say that foreign models are actually at
work in the new local context?67 According to Legrand, ‘legal transplants’ cannot
happen, for a legal system or rule cannot exist apart from its given meaning, and such
meaning can be found only in the particular socio-cultural context in which the rule
or system operates. As it crosses borders, the original rule undergoes a change that
affects it qua rule. Thus, any approach attributing change in the law to the displace-
ment of rules across borders is ill-founded, for it fails to treat rules as actively
constituted through the life of interpretive communities. Furthermore, such an
approach to the matter fails to make apparent the fact that rules are the product of
divergent and conflicting interests in society, that is, it eliminates the dimension of
power from the equation. Legrand concludes that the shifting complexity of devel-
opment in the law cannot be adequately explained through a rigid framework such as
that furnished by Watson’s legal transplants thesis.68
In my view, the objections of those critics emphasizing cultural diversity do not
militate against the general validity of Watson’s theory. It may be true that each legal
culture is the product of a unique combination of socio-cultural and historical

64
According to Watson, “It should be obvious that law exists and flourishes at the level of idea, and
is part of culture. As culture it operates in at least three spheres of differing size, one within another.
. . .The spheres are: the population at large, lawyers and lawmakers. By ‘lawmakers’ I mean the
members of that elite group who in a particular society have their hands on the levers of legal
change, whether as legislators, judges, or jurists. . . . For a rule to become law it must be
institutionalized. It must go through the stages required for achieving the status of law. . . .Because
lawyers and lawmakers are involved in all those processes a rule cannot become law without being
subject to legal culture’. “Legal Chance: Sources of Law and Legal Culture”, (1983) 131 University
of Pennsylvania Law Review, 1121, 1152–1153.
65
Legal Transplants, supra note 41, 96.
66
Id., 116.
67
See Legrand (1997), pp. 116–120.
68
Ibid., at 120. Consider also Nelken (2003), p. 437.
7.4 Legal Transplants and Legal Change: Watson’s Theory Revisited 191

factors. Nevertheless, it is equally true that collective cultural identities are formed
through interaction with others and no culture can claim to be entirely self-contained
or original.69 There is a degree of uniformity with respect to the emergence of certain
needs as societies progress through similar stages of development and a natural
tendency exists towards imitation, which may be precipitated by a desire to accel-
erate progress or pursue common social and political objectives.70 As del Vecchio
notes, “the basic unity of human spirit makes possible the effective communication
between peoples. Law is not only a national phenomenon; it is, first and foremost, a
human phenomenon. A people can accept and adopt as its own a law created by
another people because, in the nature of both peoples, there exist common demands
and needs which [often] find expression in law”.71 As previously noted, the German
comparatist Konrad Zweigert, cites many examples from various legal systems, to
argue that in ‘unpolitical’ areas of private law, such as commercial and property
transactions and business dealings, the similarities in the substantive contents of
legal rules and the practical solutions to which they lead are so significant that one
may speak of a ‘presumption of similarity’ (praesumptio similitudinis).72 This
presumption, he claims, can serve as a useful tool in the comparative study of
different legal systems. Despite the sheer diversity of cultural traditions in the
world today, the problems dogging the regional harmonization of law (e.g., at a
European level) and the difficulties surrounding the prospect of convergence of the
common and civil law systems, quite a few comparatists today still espouse a
universalist approach either through their description of laws or by looking for
ways in which legal unification or harmonization at an international or transnational
level may be achieved. It is submitted that if it is true that legal rules emanate as a
response to social needs (according to the socio-functional view of law), the

69
See on this Levi-Strauss (2001), p. 103 ff.
70
On the so-called ‘law of imitation’ and its role in the evolution of social institutions see Tarde
(1890). And see Allen (1964), p. 101 ff.
71
del Vecchio (1960), p. 497. As Albert Hermann Post, one of the founders of the School of
Comparative Anthropology (Rechtsethnologie), has remarked “there are general forms of organi-
zation lying in human nature as such, which are not linked to specific peoples. . . .[F]rom the forms
of the ethical and legal conscience of mankind manifested in the customs of all peoples of the world,
I seek to find out what is good and just. . . .I take the legal customs of all peoples of the earth as the
manifestations of the living legal conscience of mankind as a starting-point of my legal research and
then ask, on this basis, what the law is”. Die Grundlagen des Rechts und die Grundzüge seiner
Entwicklungsgeschichte: Leitgedanken für den Aufbau einer allgemeinen Rechtswissenschaft auf
sociologischer Basis (Oldenburg 1884), XI. According to Post, [“C]omparative-ethnological
research seeks to acquire knowledge of the causes of the facts of the life of peoples by assembling
identical or similar phenomena, wherever they appear on earth and by drawing conclusions about
identical or similar causes”. Bausteine für eine allgemeine Rechtswissenschaft auf vergleichend-
ethnologischer Basis (Oldenburg 1880), citations at 12–13. Other important works of this school
include Albert Hermann Post’s Einleitung in das Studium der ethnologischen Jurisprudenz (1886)
and Henry Maine’s Ancient Law (1861). For further details see Chap. 4 above.
72
Zweigert (1966), p 5 ff; Zweigert and Kötz (1987), p. 36.
192 7 Comparative Law, Legal Transplants and Legal Change

emergence of a global society will almost inevitably lead to a greater degree of

convergence among legal systems.73
Watson’s theory of legal transplants has been subjected to strong criticism by
scholars who insist on functional-sociological explanations of law.74 However,
much of this criticism fails to detect the intellectual roots of Watson’s theory and
misses the opportunity to evaluate it in the light of its proper background. As already
noted, Watson remarks that, as a matter of fact, societies often tolerate much law that
has no correspondence with what is ‘needed’ or regarded as efficient. The thesis that
law may be dysfunctional in relation to society lies in the idea of ‘survivals’—a key
concept of nineteenth and early twentieth century evolutionary anthropology. In his
1871 work Primitive Culture, Edward Tylor (often called ‘the father of British
anthropology’), formulated a comprehensive theory to bridge the gap between the
present and the remote past.75 This was the theory of ‘survivals’: elements of culture
or society that evolution has left behind—irrational, obsolete practices and beliefs
that continue past their period of usefulness. Tylor’s influential treatment of sur-
vivals inspired Oliver Wendell Holmes’s analysis of the permanence of legal norms
and institutions after the demise of the beliefs, necessities or customs that generated
them.76 From a functional viewpoint, however, survivals cannot be adequately
understood simply by reference to that mental disposition called ‘conservativism’.
Conservatism is itself in need of explaining and that explanation has to be func-
tional.77 Watson’s notion of ‘inertia’ may be useful to consider in this connection. As
previously noted, inertia is defined as the general absence of a sustained interest of
society and its ruling elite to struggle for the most socially satisfactory rule. For law
to be changed there must exist a sufficiently strong impulse directed through a
pressure force operating on a source of law. This impulse must be strong enough
to overcome the inertia. But how can inertia be explained? Watson notes that there is
a normal desire for stability and society, particularly the dominant elite, have a
generalized interest in maintaining the status quo. This reflects an abstract interest in
stability, which is linked to the fact that many legal norms have no direct impact on
the lives of most citizens. Furthermore, the mystique surrounding law as well as
practical considerations may obstruct legal change. For instance, the case may be
that anticipated long-term benefits are not sufficient to justify a reform if the costs are
not outweighed by the short-term benefits. Legal inertia has, I think, two aspects.

73
See King (1997), p. 119; Ferrari (1990), p. 63; Markesinis (1994), Zimmerman (1995), p. 1. For a
critical perspective on this issue see Legrand (1996), pp. 52–61. As previously noted, some scholars
have raised the question of whether or not ‘natural convergence’ is simply an euphemism for what
they refer to as ‘Western legal imperialism’. See von Mehren (1971), p. 624; Knieper (1996), p. 64.
74
See, e.g., Abel (1982), p. 785; Legrand (2001), p. 55; Wise (1990), p. 1; Murdock (1971), pp. 256.
On the view that law is the result of the social needs of a given society see in general Friedmann
(1972), Damaska (1986) and Friedman (1973).
75
Tylor (2010, first published in 1871).
76
See Oliver Wendell Holmes, The Common Law, ed. by S. M. Novick, (New York 1991, first
published in 1881), 5 and 35.
77
Consider on this Barnard (2000), p. 158 ff.
7.4 Legal Transplants and Legal Change: Watson’s Theory Revisited 193

First, it renders a ‘static’ justification of law sufficient: law is justified by past

behaviour and behaviour by norms. This kind of inertia is inherent in all legal
decision-making that strives to maintain regularity and predictability in the practice
of law. Besides this aspect of inertia, inertia also relates to the structure and function
of law in society. There are two kinds of structural matters for consideration: (a) law
is to a certain extent resistant to certain social change, and society to certain legal
change; and (b) there is a ‘relative resistance’ to change pertaining to the time-lag
between different functionally interdependent changes.
We may now proceed to comment on Watson’s attempt to explain why the legal
rules are quite often borrowed rather than generated by a given society. As previ-
ously noted, for Watson much in the law depends upon its ‘internal logic’—a logic
that is very much that of an elite distancing itself from the rest of society. In the
creation of their product, lawyers enjoy a great deal of freedom and legal transplants
occur thanks to that freedom. According to Watson, in most areas of law, especially
in the domain of private law, it is not the holders of political power (those who
prescribe which persons or bodies create the law and how the validity of the law is
assessed) who determine what the relevant rules are or should be.78 The study of the
activity of the jurisconsults in ancient Rome, the law professors in Continental
Europe and the English judges clearly demonstrates the importance of legal elites
as the real shapers of the law. In Watson’s scheme, the discourses of legal elites are
largely self-referential: the members of a professional group, such as lawyers, regard
the law as belonging to their (distinct) professional culture. Within this group,
authority is derived primarily from reputation. And reputation, in turn, depends on
argumentative skill and inventiveness according to the rules of legal reasoning
governing legal debates—rules that have implicitly been established by the partic-
ipants themselves. This is why lawyers claim to be solving legal problems by
applying a legal logic peculiar to their own profession. Thus, although lawyers
may be involved directly or indirectly in political decisions, their intellectual outlook
does not necessarily depend on their political orientation. Many critics failed to grasp
the functional character of Watson’s explanation as to why lawyers devote so much
energy playing self-referential games. His point is that lawyers’ activities that
apparently do not satisfy any practical need establish and confirm their identity as
an elite. The outcome of lawyers’ discussions may be arbitrary or may reflect specific
power pressures or demands. But even when the result of the process is arbitrary, it
can still be explained functionally.

78
“Law is power. Law is politics. Law is politics in the sense that persons who have the political
power determine which persons or bodies create the law, how the validity of the law is assessed, and
how the legal order is to operate. But one cannot simply deduce from that, as is frequently assumed,
that it is the holders of political power who determine what the rules are and what the sources of law
are to be”. Watson (1991a), p. 97.
194 7 Comparative Law, Legal Transplants and Legal Change

7.5 Concluding Remarks

As previously noted, the starting-point of comparative law is often the appearance of

common social problems in different legal orders. The question is whether there are
common features or, conversely, differences in their legal regulation within these
diverse legal orders. How can these similarities or differences be explained? The
existence of a common social problem is not a sufficient starting-point for compar-
ative law. For a meaningful legal comparison to be undertaken some common
features of culture are essential. The element of relativity must be considered
when comparative law is used in the search for similarities between different legal
systems or relied on to enhance the understanding of one’s own legal system or
employed in the process of harmonizing legal rules or systems. This relativity is
imposed by the special relationship of the law to its socio-cultural, political and
economic environment. To the extent that socio-cultural diversity is a reality, law is
bound to be defined in diversified terms. However, the view that legal transplants are
impossible is too extreme and betrays an exaggeration of cultural diversity. To deny
the possibility of legal transplants contradicts the teachings of history and is at odds
with legal integration processes currently taking place in Europe and other parts of
the world.

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