The Legal Transplants Debate: Getting Beyond the Impasse?

The Legal Transplants Debate: Getting Beyond the Impasse?
By Andrew Harding

Watson/ Legrand and other Binaries
The debate about legal transplants is very well known.[1] Unfortunately that debate, while familiar, or at least familiarly confusing, to many, has become trapped in a number of rather fixed binaries. It appears to have failed to achieve either resolution or forward movement.  And this is in spite of a number of laudable attempts to untie the knot. These binaries may be stated briefly as follows:

1.      Legal transplants are said to be either possible or impossible (but does this mean logically or just in practice?)
2.      They are fundamentally either related or unrelated to society and ‘culture’.
3.      They are only possible in private, not public, law; or they are possible in both. (This issue I do not explore here).
4.      What counts as success? It is possible/ impossible to say, or there is no such thing.

Unfortunately much of this debate centres on, and commences with, the views of Alan Watson and Pierre Legrand. I say unfortunately not out of disrespect (in fact I will go on to state what we owe to both of these scholars), but because, to judge by the lists of their publications at least,[2] neither of them appears to have any real interest in legal transplantation as a phenomenon relevant to the law in any area or areas of the world where attempts are being made to reform and develop the legal system. Their concerns are not with the development of law as a project but rather with legal theory. Watson is a legal historian concerned mainly with the ‘reception’ of Roman law in Europe and with European or civil law more generally,[3] while Legrand is a legal theorist with an interest in comparative law. It might seem unlikely that these scholars, whichever is right (and in my view they are both wrong in important respects on the issue of legal transplants), having very little experience of these issues across the world, would have any convincing judgment to offer. Indeed, one supposes that such judgment would have to be based on research that is both deeply considered and broadly based. Reference to research of this kind is missing in their work.
In Legrand’s case, if he is correct in saying, as he does, that legal transplantation is logically impossible,[4] he could of course be excused from investigating the empirical truth of his assertion, because on his thesis facts would be completely irrelevant. Nonetheless, we could I think reasonably demand in return that he provide an explanation of what exactly it is that thousands of law reformers are doing when they perform the task the rest of us are inclined to call (even if inaccurately as Legrand avers) ‘legal transplantation’. They are patently engaged in doing something, whatever name we choose to give to it. We cannot simply deny that a multi-billion-dollars-a-year industry exists, even if we wish it did not, or we believe its premises to be misguided or perhaps even dangerous.[5] The debate on both sides makes very large claims indeed without, apparently, there being any obligation on either scholar to check whether these claims are in fact true in what (to use a neutral term, and in the absence of any other likely candidate) I will call ‘the real world of legal diffusion’.[6] Empirical inquiry is just not on the agenda of either of these scholars, and they have no pretence of engaging in socio-legal research of a kind that would furnish some answers to the important questions about legal transplants. Now, admittedly it would be difficult to even design let alone execute a research project on legal transplantation in the real world of legal diffusion that would definitively answer the questions posed by this debate, given the potential breadth and complexity of such a project. This difficulty should encourage us to be modest and provisional, rather than sweeping and definitive, about our conclusions. This does not describe the work of either Watson or Legrand.
As a teacher who has taught classes on legal transplants for many years, I can affirm that it is quite obvious to most students in my classes (currently second year undergraduate LLB students at the National University of Singapore) that Watson and Legrand do not actually address the same issues, and that their disagreements are largely about the use of words rather than the use of law. It takes most of my students about two or three hours of familiarity with the literature (that is, the time taken to absorb two or three representative pieces) to realise that this is so. Unfortunately the sterile nature of the debate about legal transplants gives the impression that the debate is over because it has reached an impasse. We are right to move on from the Watson-Legrand binary,[7] but we are not right to conclude that the debate is therefore over. Indeed in many ways it seems to me the debate has not even been properly joined, because it has largely proceeded on the basis of false premises and irrelevant concerns, and a kind of disengagement with the real world of legal diffusion that I find, frankly, quite astonishing. I say ‘largely’ because I believe there are in fact some very useful things to be learned from the legal transplants debate and indeed from both scholars; so before we move forward let me indicate in what ways we have profited from this titanic if unfortunate clash, as well as the ways in which this clash propels us to other issues or approaches. Following that I will critique the binaries listed above, drawing on Asian experiences. I do so partly because I know more about law in Asia than in other regions, and partly because I wish to demonstrate quite concretely with examples (as does Foster, using the concept of universal security in England, France and Quebec[8]) just how far the debate has been drawn away from the real world of legal diffusion. Asian experience could also help us test the universality of relevant propositions. Given the space limitations I am not able to be thorough in this task, and will make use of examples rather than macro-comparative research.
Legrand claims that Watson does not consider ‘sociological, economic, political, historical, cultural, epistemological or ethical’[9] realities; but at the same time adduces no evidence of this kind himself to support his ideas; he merely makes assertions. Watson similarly makes use of very little evidence other than the reception of Roman law in medieval Europe. Both approaches seem as far from the real world of legal diffusion it they could possibly be.

The Watson/ Legrand Debate: Positive and Negative Contributions
Watson informs us (I believe he is right here) that law can in principle be detached from the social, political, and economic conditions of the society in which it originates. We call this the ‘donor’ society, the ‘donee’ being the receiving society; but the generosity of such transfers is not terribly apparent. Moreover he says that legal transplantation is the primary means of legal change.[10] His work created controversy because he denied that law is a mirror of society. Using his own example, it is of no interest for legal transplantation purposes (although it is extremely interesting from other points of view) to know how law operated in the Roman empire – let us say in Constantinople at the time of Justinian and the formulation of the corpus juris civilis. Indeed at the time of the great reception of Roman civil law in Europe (Watson’s prime example[11]) we knew nothing about this, and probably cared even less; even now we know relatively little about the real world of Roman law.[12] One can of course imagine the plebs Romana reacting cynically to the tendency of their leaders to praise their ancient law and see it as defining them off from the rest of juridically-impoverished humanity. However, this is something we are right not to worry about.
Based on legal experience in South East Asia, which is my own area of interest, it seems to me quite correct both to say that law is not a mirror of society and that legal transplantation is the primary mode of legal change. In that region there is a plurality of laws but almost all were transplanted by some means or other from elsewhere. The issue of the law-and-society-gap is not simply a matter of defective enforcement of law; it is also a matter of societal fit. The existence of such a gap is  hardly surprising when most of the law in that region is derived from civil law or common law, both of which were developed in Europe and largely imposed (except for Thailand) by colonial governments. [13] This rather obvious issue leads me to think that law is indeed not entirely a mirror of society. On this point Watson is right. But the gap also alerts us to the problems we undoubtedly find when law is transplanted. Watson claims that he never said legal transplantation was easy. In fact he does say that, leading us to think, with Ewald, that there is a ‘strong’ Watson and a ‘weak’ Watson.[14] However that may be, we should in legal transplantation pay attention to the obvious fact that legal transplants encounter problems of ‘fit’ of the kind that Legrand draws our attention to.
It could of course be argued that what we should be paying attention to is not law as set out in the books, but the lived reality of law, which especially in legal-transplant areas like SE Asia will differ very much from law in the books. This calls into question our definition of law. It makes little sense to me to define law in terms of lived experience or cultural factors, and so on. This is not because such lived experience is illusory or irrelevant (far from it), but because reasonable use of language demands it. If law is defined in such a way, then the statement, ‘the law does not reflect society’s lived experience of law’ would be quite incoherent, equivalent to saying ‘the law does not reflect itself’. So I wish to insist that there is indeed a gap between law and society, and that law does not always mirror, or variably mirrors, society. This does not entail the impossibility of legal transplants, either logically or practically. Nor does it mean defining law in a way that folds into it a number of non-legal factors. The fact that I use the term ‘non-legal’ here (I suggest neither controversially nor vaguely) rather proves my point about the use of language. Here of course we are close to entering another problematical debate – that concerning legal pluralism – but that will have to be left on one side.[15]
One other issue to which the legal transplants debate therefore alerts us is the indeterminacy of the words ‘law’ and ‘legal’, at least as used by legal scholars. In this sense the debate contributes to understanding of ‘law’, even if not of legal transplantation as such. We might wish to see ‘law’ as a collection of ideas or socially inflected norms, not necessarily just as a collection of rules (although I think most people see law as precisely a set of rules, as I have hinted in the last paragraph, and they are not in essence wrong to do so). Legrand shows us that even the notion of a ‘rule’ is indeterminate, whereas Watson appears to think the meanings of the words ‘law’ and ‘rule’ are obvious. What we learn from Legrand is that a rule carries along with it a good deal of interpretive baggage, and indeed he goes further to say it is meaningless without that baggage. He sees law as a combination of propositional statements and their culture-specific meanings.[16]
Let us then examine Legrand’s idea a little further. Are rules really always subject to culture-specific meaning? For example, a rule that says a person can marry only on attaining the age of 18 – is there really any room for such culture-specific meaning?

Now of course it may be argued that words such as ‘can’, ‘marry’ and ‘age’ may have such meanings and, if we stretch our imaginations beyond what is reasonable, I suppose these might differ somewhat from one society to another. But what would be relevant to our inquiry is simply the legal meaning. Legal meanings are, obviously, not always completely clear, nor are they always taken seriously or complied with; but they are not unclear in the sense that they differ from ordinary usage. Let us consider an example.
If for example, we found, as is indeed often the case, that couples in Singapore go through a customary marriage ceremony long after they have registered the marriage officially (which they might do in order, for example, to gain an advantage in the public housing queue),[17] the fact that their wedding banquet guests congratulated them on being ‘married’ would not alter the fact that they were actually already married. A guest might of course be quite aware of this, but would be using the word ‘married’ in a special (sociological or cultural) sense. If the happy couple were told that Legrand says they were not married, because the rule needs to have some baggage attached to it before we can understand it, they might fear losing their place in the queue; but they would fear this outcome for no good reason – they are married.
The legal meaning of marriage would only be unclear if there was legal doubt as to whether observance of custom or official registration was the legally salient event; or if one of the partners were Muslim, a different rule might be applicable. What society thinks or unconsciously assumes may be interesting sociologically or psychologically, but it would actually be legally and practically irrelevant. If this is not so, then why do clients see lawyers in order to ascertain the meanings of rules affecting them? Imagine if a young woman seeking to marry her fiancĂ© faced a problem of having lost her birth certificate. Her lawyer should, on Legrand’s hypothesis, advise her as follows: ‘Never mind the lack of proof that you are 18; we can always get a socio-linguist carry out a survey to discover how the language in question is interpreted sociologically, and then you can go through a culturally-informed wedding ceremony in which your adulthood is part of the deal. The rule, you see, is in itself meaningless’. A court may well not be impressed by this, and the client, I suggest, should not pay for the advice rendered.
We can of course also question, when we say ‘culture-specific meaning’, what this term actually means. Whose culture and how specific? Would the socio-linguist in my example actually be able to carry out the relevant survey even if it were relevant? Where should he or she start and when would the answer truly have been found?
Watson, on the other hand, defines law as consisting of ‘bare propositional statements’[18]), which on Legrand’s view cannot survive their removal to another society. This is the ‘borrowing of a bare string of words … a rhetorical strategy involving the ordinary act of repetition’.[19] For me this insight of Legrand can be taken along with the work of Rodolfo Sacco[20] on legal formants. It helps us understand the complex relationship between law and society, and in practice it is a forceful reminder of the fact that legal transplantation is never easy; it does not, however, lead to the conclusion that it is impossible. Nor does it lead to the conclusion that law is not, indeed, a series of bare propositional statements. Watson replies to Legrand that he never said that legal transplantation was easy;[21] and that he agrees that once a rule is transplanted its effect is changed by the new context in which it finds itself.[22] And despite Legrand’s contempt for bare strings of words, it seems a perverse use of language to say that, if such a bare string of words finds itself on somebody else’s statute book, then it is simply not law. The issue is actually not whether it is law, but whether it is good law.

What is it we transplant, when we ‘transplant law’?
The word ‘law’ in English translates rather uncertainly or ambiguously into most other languages. Asian languages, for example, tend to have different words indicating the different things we subsume into ‘law’.[23] To this extent ‘law’ is indeterminate in some contexts, and may explain some of the confusion we encounter in this debate. It catches too much. In many legal-transplant situations the ‘law’ that is being transplanted is likely in fact to be just an idea of a law,[24] where the institutional and interpretive baggage that Legrand finds so problematical in practice (and indeed in logic) has been stripped away. Here we can see ‘law’ or ‘legal’ as relating to a mere idea; we should in fact find another word to indicate this, because in my view it is probably at least as common as transplanting a statute or a legal rule as such, narrowly defined in the way I have set out above. The notion of a legal idea is helpful in explaining how law can be transplanted. It needs to be separated from its context, which (I agree with Watson) can be achieved easily. The problem is how to fit it into its new context. Largely in practice we are talking about the transplantation of a legal idea, not a law as such. To that extent Legrand’s objections are irrelevant in practice.
To give an example of this, many societies have adopted law reflecting, say, regressive taxation, constitutional review of legislation, insanity as a defence to a criminal charge, the inability of a vendor with a defective title to pass on a good title to goods, or the legal recognition of same-sex marriages. Asking where this ‘law’ came from might seem to the legislator a rather odd question. She might well reply, ‘why should it matter? It is just an idea (maybe even an obvious one) that we took and used to our advantage’; equally she might, I suppose, reply ‘I don’t recall, it doesn’t matter’, or ‘Queensland’, or ‘utilitarianism’, or ‘international law’. She might even, I suppose, reply that Japanese law was carefully examined to see if it worked well in practice. So – yes there are plenty of cases where a body of law is regarded as authoritative, comprehensive and tested by evident utility in a given society; my point is that there are also plenty of cases where nothing like that is true, and as far as I can see the increased sophistication of the process we call ‘transplantation’ may lead us to think that it is not actually properly called ‘transplantation’ at all: it is more like paying attention to the global white noise of law. There is indeed a lot of it about to listen to these days; but little of it can be investigated sociologically to discover whether it is useful noise. We just make rough assumptions that in general do not take account of the legal ‘fit’ in the donor society, partly because we do not have the information and partly because it would probably be irrelevant.
It is of course then a difficulty to know when there is a true transplant. Given that the outcome in terms of law in the donee system is likely not to resemble precisely the law of the donor system, even in a strong case, at what point on the spectrum between law-as-an-idea and law-as-specific-statutory-provisions do we apply the term ‘legal transplant’? This is not, it seems, terribly clear. For this reason we might want to abandon the term ‘legal transplant’. I will suggest some changes in usage later in this article.
On the issue of culture the case of international law that Watson also discusses is a good case in point.[25] Much legal reform is derived these days from international law or an obligation to comply with it; from what jurisdiction is such law being transplanted and what is the Legrand-style baggage that such law carries along? On the contrary, in such a case law is at its most abstract and we do not need to examine the ‘culture’ or the ‘society’ that ‘has’ international law to discover either the secret of its success or its authority (if it has either); this is because essentially no such thing exists. Indeed international lawyers might fairly be accused of caring little for the practical problems encountered by legal transplantation: law here is simply an obligation you have agreed to fulfil, and that is the end of the matter.
Let me also adduce another example from China, which seems to me somewhat more typical in the Asian context than the examples in the literature.
Lacking the device common lawyers call a trust, which is absent from the civil law as transplanted to China, China adopted this common-law device, itself part of that curious type of law that common lawyers call ‘equity’. It is hard to find anything less promising as a potential legal transplant, even given the evident utility of the trust in common-law systems as a legal device for the holding of property. Since China has a civil law system, the trust, adapted to Chinese law and society, was pragmatically grafted onto its legal system by a statute. The result was something different from both common law and civil law (Teubner, the coiner of the term ‘legal irritant’,[26] would be pleased with this example, I think). According to Chinese judgment (and I suppose, Watson’s too) this is a ‘successful’ transplant; according to Legrand this is not even a transplant at all. The real issue, irrespective of the correct terminology to describe what happened in this case, is whether such a process results in law that we may plausibly judge to be effective or useful. If the case proves anything, it proves that a broad range of legal ideas can be transplanted, but that some skill or imagination is required to translate them into a comprehensible and functional vernacular. We should bear in mind here that questions of fit are seen in the context of Asian development in a totally different way from the assumption of legal theorists. Often the entire purpose of legal change is to change society’s behaviour, not to find the best societal fit. One can imagine a law reformer castigating a foreign legal consultant along the lines that he was not invited there to advise on how to transplant law without disturbing anything, because otherwise it will be difficult. Note that the Chinese law-reformers did not feel a need to understand the evolution of medieval English equity before moving forward with reform. They merely needed to understand what China needs at the present time, and the legal concepts used in their own law. Neither of these things proved exceptionally difficult in the event.[27] In discussing this I do not see the need to decide whether this is or is not a legal transplant.
Having said that, it is I think, however, a mistake to extend Watson’s argument too far and say that law is somehow always detached from societal conditions in the donee society too. Watson’s mistake is alleged to be that of regarding law as simply a piece of technology, safeguarded by the inherent conservatism of a legal tradition fiercely maintained by the legal profession.[28] To use Kahn-Freund’s analogy, law (or as I would have it, a legal idea) is being regarded by Watson, the critique might go, as being like a carburettor rather than a kidney.[29] To use a more contemporary analogy, I do not find anyone arguing that the mobile phone is inconsistent with some group’s cultural values, and that they should therefore reject its use (perhaps the Amish in the United States are a narrow exception). Some law is indeed analogous to a mobile phone, but other kinds of law are more akin to K-pop. Both have spread across the world, but just as jihadists use mobile phones, I seriously doubt if they tune in to K-pop. One is technology, the other is culture. The same is I think true of law: some law has a potentially complex relation to culture (for example, rules concerning the age at which one can marry) and some law potentially does not (for example, rules concerning the validity of a will). For this reason some laws are easy to transplant and others are not. Laws introducing a ‘modern’ marriage system in SE Asian countries such as Malaysia and Indonesia have encountered a difficult choice. With regard to the validity of customary marriages concluded after the change in the law, does the need for legal certainty outweigh the need not to invalidate customary marriages on a socially disruptive scale?[30] Similarly it has been seen that a laudable attempt to create registration of land titles in Cambodia has led directly to instances of abusive land-grabbing in areas deliberately excluded from the project. The problem, let me emphasise, is not one of not being clear what the law is; it is a problem of the effects of legal change. The cultural point (do Cambodians actually, culturally, understand land registration?) seems curiously irrelevant; they understood land registration all too well when they saw their land and houses unjustly taken away just because they lived on a lake. [31]
Watson does concede that donee societies look at foreign law carefully when legislating in order to ensure so far as possible an effective transplant.[32] The crafting of Singapore’s Personal Data Protection Act, for example, was influenced by the data protection laws of Canada, Hong Kong and New Zealand in order to ‘develop the most suitable model for Singapore’.[33] (We can seriously ask if this is a legal transplant – if so, from which garden was this law transplanted? Does it really matter?) Another example from South East Asia is the French Civil Code of 1931, which as a result of French colonialism operated in Vietnam until 1950. This Code has been continually reinterpreted to suit ‘guiding principles’ and new governmental policies.[34] The process of adaptation of a law may go on long after the law has been transplanted. This makes it very difficult to talk of success and failure. What looks like short-term failure may turn out to be a success in the longer term. Equally short-term success may turn out badly in the longer term; although longevity must surely be one of the relevant criteria, however we define success. Thus we may well find in the real world of legal diffusion that there is a series of legislative initiatives; but when and in relation to what do we judge success? Even Watson allows that law is ‘the fruit of human experience’.[35] We muddle through these exercises more often than not, and human experience does not necessarily aggregate in our favour.

Here again, though, there is something to be learned from Watson. To the extent that law can be seen as technical (Mattei helpfully calls this ‘professional lawyers’ law’ as opposed to ‘the law of politics’ or ‘traditional law’[36]) it might well be more easily transplanted. We would not, for example, think of discussing the transplantation of customary law, because we see it is virtually impossible, apart from the transplanting of customary law via migrant populations (here it is strictly a population, not law, that is being transplanted). Conversely, the index-linked pension, for example, seems so easily transplanted that we may not even think of using the term ‘transplant’ in such a context – these innovations are obviously fair and useful pieces of social-engineering-style legal technology. The mistake is to think that what are good laws for one society are always good laws for another. We may think this is obvious, but Bentham believed that they were, and many international agencies still proceed as if he were right. This has been the real lesson of legal transplants, and it is not clear that the lesson has been learned even now.[37] If Legrand has encouraged us to think along these lines, then we should agree.

Success and failure: treating these two imposters just the same?
The trick of successful legal transplantation is, I have argued, to understand very precisely how a law would operate in the donee society, not how it operates practically in the donor society. The latter information may well be useful in some cases, but is not a universally mandatory requirement. If it were, legal reform would be almost impossible to achieve, and we would waste a lot of time on quite irrelevant inquiries. I would of course concede that knowledge of why a law operates effectively in the donor society might be helpful, but that is a contingent factor. To illustrate this, legal reformers in Thailand adopted the civil code, adapted from France and Germany (completed in 1935), because those systems were authoritative in terms of ‘modern’ law that they were seeking; and because the Japanese had been there first and did not see that having an Asian society was a hindrance, (nor in fact did China, which did the same as Thailand in 1930).[38] None of these factors was capable of being rigorously assessed. Yet the transplant seems to have worked in the sense that there is no obvious lack of fit eight decades on; at least there has been no rejection. As we have seen the same is largely true in Vietnam despite the colonial origins of civil law there.
A law that works badly in one society might work very well in another; the conditions for success may be more favourable. On the other hand a practically problematical law is rather unlikely to become a candidate for transplantation in the first place. It would lack authority. The same applies over time in the same society: an effective law may become ineffective due to change of circumstances, for example, and an ineffective law effective due to superior enforcement. But the real emphasis should be on the donee society not the donor society. Legislators seek in vain the silver bullet that makes a good law successful in the donor society.
The least knowledge of legal technical assistance (what an interesting phrase that is – is legal assistance always technical or is that a way of avoiding real issues of political or moral weight, or of cultural specificity?) will indicate that the main problem is indeed the dire and persistent tendency to transplant law without due regard to its appropriateness in the given societal context. To this extent Legrand is clearly right in drawing attention to the link between law and society (‘weak’ Watson agrees with Legrand here, ‘strong’ Watson does not[39]). To call this process a logical impossibility is however rather like calling the black swan a logical impossibility, as indeed it once was, before in the late 17th century Australian experience redefined the swan in terms of evolution not colour: if the black ‘swan’ is not a swan at all, then what on earth is it? (Australian aboriginal people had observed black swans for about 40,000 years, so they had no problem with the idea of a black swan).[40] I do not see in Legrand’s work any notion of legal diffusion that takes place via the best processes of which we are capable, addressing common problems having a narrow range of possible legal solutions. Again, Watson is correct; for a given problem the scope for original solutions is really quite limited: almost everything has been tried before. To this extent Legrand’s work makes us think more carefully about the true nature of law; but it is not useful in any important respect – it does not solve any problems. Indeed the lesson of legal diffusion is quite the opposite of Legrand’s message: we can strip a law or a rule of its Legrand-baggage and by doing so we are more likely to achieve clarity and perhaps even an effective transplant.
It should be apparent at this point that the legal transplant debate is largely and unhelpfully about the correct use of terminology; it does not really assist us in understanding legal diffusion, especially in areas like Asia and Africa, which have seen a great deal of what is still called ‘legal transplantation’. Clifford Geertz quipped that SE Asia has every kind of law except African law and Eskimo law, almost all kinds being transplanted from elsewhere (pure Watson); but he also described law as ‘local knowledge’ (pure Legrand).[41] How ‘global doctrine’ (law as a set of general legal ideas abstracted from the lived experience of law) becomes ‘local knowledge’ (law as ingested normative ideas applicable, effective, and accurate in a given society) should be the focus of scholarly effort at this crucial interface.[42] Law cannot be understood properly except in its context,[43] but that very context, in most societies at least, needs to address the way in which foreign laws influence or provide solutions to local problems. We know too little about these processes. Shutting one’s eyes to such things occurring, or denying that they are transplants, avoids what seems to me to be the central issue.

The terminology of transplants
I have avoided thus far being entirely clear about terminology, but in failing to define my own use of terms clearly I have perhaps illustrated how confusing the debate has become. I have indicated, however, that we lack rigour in our use of virtually all of the terms involved, and it might be useful to start over again.
Let us start with ‘legal transplants’. This needs renovation on two grounds. First, it catches too much; and secondly, it is a misleading metaphor.[44] Adopting Roman law in medieval Europe is very different, for example, from adopting, say, a new law on environmental management in Malaysia. ‘Legal transplantation’ seems to try to deal with everything from the Great Reception to the diffusion of common law in the British empire, to the High Court of Australia following a decision from New Zealand. We need to break all this down into distinct ideas and areas, or even modes or agents of operation. That is a task too large to undertake here, but we could, for example, distinguish the adoption of a legal idea, that is just part of the corpus of legal understanding and experience, from the wholesale incorporation of a regulatory statute, or the adoption of a doctrinal principle that has appealed to courts in other jurisdictions.
The idea of a transplant carries images of something growing in its own soil, and then removed by an Olympian gardener to someone else’s garden, where it might grow or fail to grow. This is not of course in general how legal diffusion takes place. Law is not a garden, nor are horticultural metaphors really helpful.[45] What we call legal transplantation involves many types of legal project instituted for many different reasons by many different actors using many legal sources. We look to other jurisdictions for solutions, or at least types of solution, because we are chary of absolute innovation. The details of the law that is ultimately enacted will typically vary considerably, because laws tend to attach to institutional settings, procedural preferences, and constitutional constraints, for example. Whether these contingencies will prove obstacles to transplantation depends on the degree of specificity sought and the extent to which the law in question is organically connected. That a statute with all its Legrand-baggage cannot easily be successfully transplanted to another society is in general fairly obvious. Nonetheless there are I think plenty of examples of this happening. In Vietnam the Law on Legislation assumes that careful canvassing of foreign legal experience is de rigueur when drafting legislation.[46] This indicates that the Vietnamese legislator both believes that law can be transplanted, and that whatever varieties exist should be examined carefully.
I would suggest that we confine ‘legal transplantation’ to the imperial transplanting of law to colonies, and that ‘legal mimesis’ or copying captures better what happens in 21st century law-reform processes, where we are looking at ideas from elsewhere. ‘Legal reception’ should be confined to the Great Reception of Roman law, and possibly to statutes which use the phrase ‘on the topic x the law of y shall be received into jurisdiction z’;[47] in this latter instance there is usually a problem defining what circumstances or what degree or scope of applicability is being envisaged, but ‘reception’ merely echoes the term the legislator has decided to use, and is therefore defensible. I do not, for lack of space, continue to discuss what we mean by ‘legal’ or ‘law’ in the circumstances I have just adumbrated. But I do think that we need to have a flexible notion of law in order to capture a range of possible approaches in practice. One might, for example, adopt an institution without formal resort to enacting a statutory basis for it, in order to see how it might work before formalising the position.[48]
Another binary to get beyond (but I have no clear idea how) is the idea of successful/ unsuccessful transplantation. I have used the word ‘effective’ in what I have stated above, but although preferable that does not avoid the problem, which is that we have no criteria to apply in deciding whether a law is successful or effective. Do we judge by the objectives of those promoting the legal change? If so, over what period of time? What if, as is typical, a legal change is largely accepted, but fails in the short-to-medium term to deliver to a substantial extent what was desired, and leads to other problems which are being addressed by further proposals for legal change? Or what if it appears to work in the sense of being complied with, but at much greater economic, social or political cost than was anticipated? Or as in the Cambodian case, it has some unforeseen catastrophic effects, but was doubtless a good idea in the first place? It is hard to draw any conclusions. Indeed we usually have no solid socio-legal data from which we could even in principle draw such conclusions.
But we can still try. In relation to constitutional review, for example, Alec Stone Sweet has set out three benchmarks as a good general indicator: ‘constitutional review can be said to be effective to the extent that the important constitutional disputes arising in a polity are brought to the [constitutional court] on a regular basis, that the judges who resolve these disputes give reasons for their findings, and that those who are governed by the constitutional law accept that the court’s rulings have some precedential effect’.[49] One might add that they should routinely accept the court’s rulings per se, and act upon them. These markers merely of course describe a system that functions in terms understood in Western legal thinking. Whether in the larger picture a court innovation is effective might depend on a wider range of inquiry. HP Lee (Lee 2010) points out, for example, that the special court for trying cases against traditional rulers in Malaysia has been successful because of rather than despite the small number of cases brought before it; on Stone Sweet’s test this court might be seen as a failure. Disputes concerning Rulers’ behaviour are usually not settled in the special court, and persons affected might well be fearful of bringing a case at all; but the threat of such a process appears to have improved the behaviour of the royal families, which was the purpose of the innovation.[50] It is a toss-up whether this is what we would call a successful innovation. It is also not very obviously any kind of a legal transplant, except insofar as one might see it as a transplant from the ordinary court system, resembling that system in almost every respect. Law reform with its highly eclectic approach and wide range of inspirations is not in any sense a science at this juncture.
We know that new law never fits society completely. If it did it would have become law long before it was adopted, or would not have been strictly necessary. Often law is adopted precisely because it does not fit society – the objective being to change society, not to reflect it. The fact is that in the mirror analogy some laws mirror what society does, while others are designed to engineer what society wants to achieve by legal change. In practice most statute laws are probably somewhat muddily incoherent compromises between these two objectives, moulded by vested interest, political ambition, and bureaucratic caution. They derive legitimacy from the process of enactment but are not even designed to fulfil precisely the intention of their promoters. (I am indeed somewhat mystified by the idea that the intention of those promoting a statute that has been amended several times, as statutes typically are, should have their intention promoted to the level of a legal principle.) The legitimacy to which I refer is often achieved by compromising the objective, not by fulfilling it to the letter. Legislation is after all an art of the possible. But hopefully we have finally learned that societal fit or at least impact is something we need to understand rather deeply before we legislate. I am therefore unsure that we could decide on appropriate standards for judging success or effectiveness in law reform other than to judge by the intention of the legislator if indeed such intention can be identified. But we also need to understand that the binary of law and society is also to some extent misleading. Legal change is not an art of designing the best fit, as if we are tailors making comfortable clothing. To this extent Teubner’s ‘legal irritants’ is probably a more accurate term than most to describe what happens.
Let me adduce here, to illustrate the complexity of the issue of legal transplantation, the example of Singapore’s Maintenance of Parents Act 1993. This law was presented as reflecting society’s fundamental value of filial piety by ensuring that children provide for their indigent parents. But to the extent that they did not do so, it was also attempt to change the culture, with legal proceedings before a tribunal as the sanction. The use of Confucianism to justify the law was controversial; Confucianism encourages filial piety but is also very hostile to law suits, especially between children and their parents. Some saw the measure as simply offloading responsibility for the aged onto the population, which was seen, variously, as a good and as a bad thing, according to one’s view of the role of the state. In the end, it is hard to say whether such a law was effective.[51] We would have to conduct research to see if the purpose had been fulfilled. But there lies the problem: what purpose should we start by identifying? Do we look for a decline in the number of uncared-for parents? Or an increase in filial piety (judged how, exactly)? Or do we look at the number of cases successfully resolved by the tribunal? It is also hard to say if it was a legal transplant, because we do not have a clear definition of a legal transplant. Suffice it to say that as an idea it was in evidence in other jurisdictions, and in turn it may well have influenced jurisdictions such as China that have adopted filial-piety laws.[52] I doubt that these instances are ones in which the legislator has discovered anything about the success or failure of the Singapore statute. It is probably assumed to be authoritative because statutory innovations in Singapore tend to be effective due to rigorous enforcement.[53]
Seen in this light we might revisit the work of Teubner, who coined the term ‘legal irritant’ to replace ‘legal transplant’. In Teubner’s theory new law derived from elsewhere irritates the receiving system, creating a debate that settles the irritation, often with new outcomes. It is a classic case of thesis, antithesis and synthesis. This approach explains much about these processes and is more in line with our experience of legal diffusion, as I think several papers in this conference suggest. I find it hard, however, to think of this as an over-arching theory of what happens in law reform. As with other writing in this area, it is not based on empirical research, but relies on a single, rather doctrinal, example – the adoption of good faith in English contract law. But not all of these exercises actually involve irritation.

Conclusion
Finally let me revisit the binaries set out at the beginning of this discussion.
I conclude as follows:
i)                   Legal transplants are possible both logically and practically, although the process is not easy.
ii)                 They are fundamentally related to the society of the donee but not necessarily that of the donor.
iii)              They are possible in private and in public law. This issue is not elaborated here, but a scan of the examples used does not indicate a distinction in principle between private and public law.
iv)               Success is hard to assess, but legal change is not for that reason impossible to achieve or dangerous to undertake.

By way of conclusion, I think the idea of legal transplantation needs to be broken down into distinct types of legal activity, and we need to study how these work in practice across the world. We need more understanding of these processes, how to assess their impact, and how to improve them. In doing so, I wish to insist, we do live in a world of legal connectivity in which we share common problems which can only be addressed by a limited range of solutions which are unlikely not to have been tried before. As Watson argues, transplantation in all its forms is still the main way in which law changes. But I the final analysis, both Watson and Legrand seem to approach the starting line, in different stadia, claiming to have won a race that has not quite yet begun.



[1] For good summaries of the debate, see W Ewald, ‘Comparative Jurisprudence (II): the Logic of Legal Transplants’ (1995) 43 American Journal of Comparative Law 489; and, for a comparative commercial law scholar’s views, N Foster, ‘Transmigration and Transferability of Commercial Law in a Globalized World’, ch.4 of A Harding and E Orucu (eds),  Comparative Law in the 21st Century (The Hague, Kluwer, 2001).
[2] For Alan Watson see http://www.law.ed.ac.uk/people/alanwatson; his work is directed mainly to EU law and legal history. For a conspectus of Legrand’s work, see https://www.sandiego.edu/law/faculty/recent-scholarship.php?ID=639.
[3] He has however advised on the drafting of a civil code for Armenia: see above n.2.
[4] P Legrand, ‘The impossibility of “legal transplants”’ (1997) 4 Maastricht Journal of European and Comparative Law 111.
[5] For discussion of legal transplants in relation to legal technical assistance, see J Arnscheidt, B Van Rooij, and JM Otto (eds), Lawmaking for Development: Explorations into Theory and Pratice of International Legislative Projects (Leiden, Leiden University Press, 2008).
[6] W Twining, ‘Diffusion of law: A global perspective’, ch.9 of W Twining, General Jurisprudence: Understanding Law from a Global Perspective (Cambridge, Cambridge University Press, 2004).
[7] See, further, Foster, above n.2; and G Teubner, ‘Legal Irritants: Good Faith in British Law or How Unifying Law Ends Up in New Divergences’ (1998) 61 Modern Law Review 11.
[8] Above, n.2.
[9] Legrand, above n.4, at 122.
[12] See, however, P Du Plessis, C Ando, and K Tuori (eds), The Oxford Handbook of Roman Law and Society (Oxford, Oxford University Press, 2016).
[13] I have set the argument out in full in A Harding, ‘Comparative Law and Legal Transplantation in South East Asia: Making Sense of the "Nomic Din"’, ch.9 of D Nelken and J Feest (ed), Adapting Legal Cultures (Oxford, Hart Publishing, 2001); see also A Harding, ‘Legal traditions of Southeast Asia’, in JD Wright (editor-in-chief), International Encyclopedia of the Social & Behavioral Sciences, 2nd edition, Vol 13 (Oxford, Elsevier. 2015), 812.
[14] Ewald, above n.1, at 491.
[15] B Tamanaha, ‘Understanding legal pluralism: From past to present, global to local’ 30 Sydney Law Review 375 (2007).
[16] Legrand, above n.4, 114.
[17] C Tan, ‘We are registered: Actual processes and the law of marriage in Singapore’ 13 International Journal of law, Policy and the Family 1 (1999).
[18] Legrand, above n.4, 113.
[19] Ibid., 121
[20] R Sacco, ‘Legal formants: a Dynamic approach to comparative law’ (1991) 39 American Journal of Comparative Law 1, 343.
[21] Actually he did: Watson, above n.4, 95-6.
[23] In Malay/ Indonesian, for example, ‘law’, according to the context, can be translated as ‘hukum’ (as in law and order), ‘undang-undang’ (as in to obey the law), or ‘keadilan’ (as in court of law).
[24] TBC. I need a reference to Tony Allott here.
[26] Teubner, above, n.4.
[27] S Tensmeyer, ‘Modernising Chinese trust law’ 90 New York University Law Review 710 (2015).
[28] Watson, above n.4, 27.
[29]  O Kahn-Freund, ‘Uses and misuses of comparative Law’ (1974) 37 Modern Law Review 1.
[31] L Trzcinski and F Upham (2014), ‘Creating law from the ground up: Land law in post-conflict Cambodia’, 1:1 Asian Journal of Law and Society 55.
[32] Watson,above n.4, 99. In China and Vietnam there is a Law on Legislation which, contrary to many perceptions of legal transplantation, requires as a matter of law that the government carry out careful processes of scrutiny and even socio-legal inquiry before legislating. This is aimed at legal transplantation. Few legislative initiatives have never been tried anywhere else.
[33] Parliamentary Debates Singapore: Official Report, vol 89 (15 October 2012) (Assoc Prof Dr Yaacob Ibrahim). I am grateful to one of my students in anonymous work for this information and citation.
[34] P Nicholson, Borrowing Court Systems: The Experience of Socialist Vietnam (Leiden, Brill, 2007), 38.
[35] Watson, above n.4, 100.
[37] A Harding, ‘Law and development in its Burmese moment: Legal reform in an emerging democracy’, ch.20 of T Lindsey and M Crouch (eds), Law, Society and Transition in Myanmar, (Oxford, Hart Publishing, 2014).
[38] A Harding, ‘The eclipse of the astrologers: King Mongkut, his successors, and the reformation of law in Thailand’, ch.10 of P Nicholson and S Biddulph (eds), Examining Practice, Interrogating Theory: Comparative Legal Studies in Asia (Leiden, Brill, 2008).
[39] Ewald, above, n.17.
[41] C Geetz, Local Knowledge
[42]  A Harding, ‘Global doctrine and local knowledge: law in South East Asia’ ICLQ
[43] Cotterrell …
[44] Nelken …
[45] Orucu
[47] A Phang, ‘The reception of English Law in Singapore: Problems and proposed solutions’, 2 Singapore Academy of Law Journal, 20 (1990).
[48] For example of this (Myanmar’s Human rights Commission), see C Renshaw, ‘Human rights under the new regime’, ch.11 of A Harding and Khin Khin Oo (eds), Constitutionalism and Legal Change in Myanmar (Oxford, Hart Publishing, 2017).
[49] A Stone Sweet, ‘Constitutional Courts’, in M Rosenfeld and A Sajo (eds), The Oxford Handbook of Comparative Constitutional Law (Oxford, Oxford University Press, 2012), at 825.
[50] HP Lee, ‘Malaysian royalty and the special court’, ch.15 of A Harding and P Nicholson (eds), New Courts in Asia (Abingdon, Routledge, 2010).
[51] WC Chan, ‘The duty to support an aged parent in Singapore’ 13:3 Pacific Rim Law and Policy Journal 547 (2004).
[52] Law of the People’s Republic of China on the Protection of the Rights and Interests of Elderly People, 2013, http://www.china.org.cn/english/government/207404.htm (accessed 24 May 2017).
[53] See, e.g., Kevin YL Tan, ‘Defaming politicians, scandalising the courts: A look at recent developments in Singapore’, ch.5 of AT Kenyon, T Marjoribanks and A Whiting (eds), Democracy, Media and Law in Malaysia and Singapore: A Space for Speech (Abingdon, Routledge, 2014).

Comments

Popular posts from this blog

A Breach of Promise and a Matter of Sovereign Immunity: Mighell v The Sultan of Johor

Comparative Law and Legal Transplantation in South East Asia: Making Sense of the "Nomic Din"

PROSPECTS FOR MALAYSIA BARU: CONSTITUTIONAL CHANGE WITHOUT CHANGING THE CONSTITUTION