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Law as Lag: Inertia as a Social Theory of Law
... No rule in the borrowing jurisdiction can have any significance as regards the rule in the jurisdiction from which it is borrowed" [55]. 1 In other words, legal transplants have no positive effect on the law and may even destroy the borrowing law they are undertaken. ...
... Nevertheless, a well-known earlier critique of Watson's theory by Richard Abel claimed that "[p]erhaps the most serious problem with Watson's theory is that it is not at all a theory" [1]. Rodolfo Sacco, head of the Italian Guild of Comparative Law, prefers the expression legal formants, this being an attempt to capture the social, economic, political and doctrinal elements of a particular legal system [81]. ...
... The alternative point of view is that legal transplants are more difficult to implement because of variations in cultural, social, and economic situations, as well as the possible clash between transplanted laws and existing legal traditions or principles. 1 Italics mine. ...
Legal transplants, the adoption of foreign legal principles into a domestic legal system, have significantly influenced Indonesia’s legal development. As a country characterized by legal pluralism—comprising state law, customary law (adat), and Islamic law—Indonesia has historically relied on legal transplants to modernize its legal system, bridge legal gaps, and harmonize conflicting traditions. This study examines key cases of legal transplantation in Indonesia, including the adoption of anti-money laundering laws based on FATF recommendations, the integration of constitutional injury principles into the Constitutional Court’s procedural norms, and the application of the proportionality principle in judicial review. Furthermore, the incorporation of Islamic family law through the Compilation of Islamic Law, the regulation of endowments under Law No. 41 of 2004, and the development of Shariah economics through KHES illustrate how traditional Islamic concepts have been adapted to align with modern legal frameworks. While some legal transplants involve direct adoption with minimal changes, others require modifications to fit Indonesia’s socio-cultural and legal context. Despite challenges such as potential conflicts with local traditions and legal inconsistencies, legal transplants remain essential for Indonesia’s legal evolution. By carefully integrating foreign legal norms while preserving local values, Indonesia can continue to strengthen its legal system to meet the needs of its diverse and dynamic society.
... With the recognition of the large-scale evolution of law through transplanting foreign laws in the 1970s, Watson first proposed that legal transplantation is socially easy (Watson 1974, 96). The notion of 'easiness' of legal transplants has faced significant and rigorous objection from legal sociologists (Abel 1982;Teubner 1998). Their primary contention lies in the belief that law is intrinsically connected to its unique social context, a perspective that traces its roots back to Montesquieu's initial formulations (Montesquieu 1802). ...
This paper offers a socio-legal historical analysis of the process of formulation and evolution of Chinese marine insurance law by transplanting foreign laws, with a view to grasping from the material of legal history and social reality the deeper significance of the imported law’s relation to tradition, ideology and environmental context. The key argument is that this perspective reveals how transplanted law emerges as an authorless product shaped by social forces and processes. It is created by the operation of institutional arrangements of law-making, which provide the platform for the interplay of diverse traditions and interests generated by the social environment of the importing jurisdiction. This research integrates several lines of discussion of legal transplantation that lack connection, highlights the impact of the transplanting process and contributes to current theoretical debates by proposing potential interdisciplinary research for future studies of legal transplantation.
... However, many related legal instruments are temporarily absent, such as the special regulatory frameworks for ships using electricity, solar power, offshore wind energy, biofuels or fuel cells. This absence also highlights the problem of the "legislative lag" of the international legal regime in the face of emerging issues in the era of carbon neutrality (Abel, 1982). ...
The introduction of several alternative marine fuels is considered an important strategy for maritime decarbonization. These alternative marine fuels include liquefied natural gas (LNG), liquefied biogas (LBG), hydrogen, ammonia, methanol, ethanol, hydrotreated vegetable oil (HVO), etc. In some studies, nuclear power and electricity are also included in the scope of alternative fuels for merchant ships. However, the operation of alternative-fuel-powered ships has some special risks, such as fuel spills, vapor dispersion and fuel pool fires. The existing international legal framework does not address these risks sufficiently. This research adopts the method of legal analysis to examine the existing international legal regime for regulating the development of alternative-fuel-powered ships. From a critical perspective, it evaluates and predicts the consequences of these policies together with their shortcomings. Also, this research explores the potential solutions and countermeasures that might be feasible to deal with the special marine environmental risks posed by alternative-fuel-powered ships in the future.
... In fact, a basic legal realist insight recognises that examination of almost any legal field reveals a gap between the law on the books and the law in action. 108 Accordingly, the emphasis on examining on-the-ground outcomes, including in relation to well-meaning social movement reforms, is a legal realist and critical legal studies tradition. As Scoular showed in the context of sex work regulation, this gap can translate into similar outcomes in reforms of opposite regulatory intent. ...
This article proposes an innovative approach to analysing legal and policy reforms in the regulation of sex work. Using the development of the Israeli 2019 Prohibition on the Consumption of Prostitution Act (hereinafter: End Demand Law) as a case study, we develop a socio-legal analytical framework which combines three elements: 1) the relationship between the “law on the books” and the “law in action” in the context of sex work policy – what are the distributive outcomes of the act? How is it implemented, who gets impacted by it, to which degree and why? 2) the importance of existing legal and policy baselines to evaluate new policy approaches. We argue that the baseline is key not only to understanding policy trajectories, but also to evaluating differences in perception of ‘End Demand’ legislation in different jurisdictions; 3) the lived experience of those affected by the policy. In our case study, sex workers are the population most directly impacted - we include their voices through interviews as well as secondary sources and focus on their perception of the law and its impact on their lives, options, livelihoods, and feminism. Combining these three elements, our analytical framework is used to evaluate the dynamics of change in the regulation of sex work in the context of the Israeli End Demand Law - how it came about, which baselines it emerged from and which international influences affected it, but also how Israeli anti-prostitution governance feminists influenced the legislative and policymaking process. We pay equal attention to sex workers’ voices not only as the most affected population, but also as political actors, activists and aspiring governance feminists in the Israeli context, who were marginalised in the legislative process.
... Let's turn, therefore, to the second explicatory model, the one conceiving of law as something inherently embedded into culture and context. According to this approach, and in particular according to the criticism of Abel to Watson's theory (Abel, 1982), the central tenet is that the dis-functionalities and the divergences between law and society pointed out by Watson are not a sign of the independence of law from society, but that they express instead a multiplicity of functions that law has towards society, that is, the function of legitimation, expression and mystifica- tion. This means that it is precisely for this reason that the study of a legal system must be holistic, relating each single law to the entirety of the legal system, which in its turn must be connected then to the totality of society. ...
This chapter opens the second part of this enquiry with the aim of modelling a new frame for the understanding of the validity of human rights. While in the first two chapters I investigated the difficulties arising from relativism and objectivism in morality and knowledge, and proposed possible directions of investigation therein, here I consider how a normatively acceptable judgmental activity on human rights can be advanced without falling into the two aforementioned competing extremisms. I do so by highlighting how the generalized condition of purposive agency implies that of communicative action, that is, I elaborate how the condition for the realization of one’s goals requires a preliminary condition of social coordination in order to be fulfilled.
... Let's turn, therefore, to the second explicatory model, the one conceiving of law as something inherently embedded into culture and context. According to this approach, and in particular according to the criticism of Abel to Watson's theory ( Abel, 1982), the central tenet is that the dis-functionalities and the divergences between law and society pointed out by Watson are not a sign of the independence of law from society, but that they express instead a multiplicity of functions that law has towards society, that is, the function of legitimation, expression and mystification. This means that it is precisely for this reason that the study of a legal system must be holistic, relating each single law to the entirety of the legal system, which in its turn must be connected then to the totality of society. ...
So far I have defended an epistemic perspective which rests between the two extreme poles of cognitive objectivism and relativism. While rejecting any approach that strays from a situated critical perspective of evaluation, I have also underscored the incoherencies arising from any theory which renounces the formulation of any normative force from within an experiential perspective of reflection. In this chapter, I further investigate my initial insights by extending the scope of the proposed approach to the moral and political realm. For this reason, in the following I consider the challenge that moral relativism and objectivism present to any pretension of universality in morality, while maintaining the objective of formulating an initial frame of understanding for a non objectivist and a non relativist justification of human rights principles.
The article analyzes the definition of the communicative function of law from the point of view of legal communication between the dependent legal systems of the former colonies. In this context, the “evergreen issue” arises about legal transplantation, the legal transfer of norms and institutions and reception of nomadic legal constructs. The modern comparative lexicon uses three types of metaphors related to the interaction of legal systems and their law hybridization: anthropomorphic, communicative and mechanical metaphors. Among the best-known cases of legal transplantation, the authors pay attention to the spread of codes, the diffusion of common law, and the emergence of mixed legal systems. They explore the positivist concept of “legal transplants,” which appeared in comparative discourse thanks to the theory of Alan Watson. The article discusses the comparative opposition to this theory — the so-called cultural concept of legal transplants (transferists vs. culturalist debate), as well as the musical metaphor “legal transposition” and the process of diffusion of law in dependent legal systems. The practice of legal transplants in mixed common law systems and their application in practice are analyzed in national jurisdictions. The article shows criminal legal bijuridism and the process of the so-called “diffuse codification” in India, Canada, Australia and other British former colonies, which is an example of codistics communication of dissimilar political and legal cultures and circulation of model codes between them. In conclusion, attention is drawn to the discourse of the effectiveness, applicability and effectiveness of transplants. It is concluded that the success — failure discourse of legal transplants depends on the degree of communicativeness of transplanted and receptive constructs, their ability to “speak” in an understandable language for the host cultural environment of law.
This volume of essays contributes to the understanding of global law reform by questioning the assumption in law and development theory that laws fail to transfer because of shortcomings in project design and implementation. It brings together leading scholars who demonstrate that a synthesis of law and development, comparative law and regulatory perspectives (disciplines which to date have remained intellectually isolated from each other) can produce a more nuanced understanding about development failures. Arguing for a refocusing of the analysis onto the social demand for legal transfers, and drawing on empirically rich case studies, contributors explore what recipients in developing countries think about global legal reforms. This analytical focus generates insights into how key actors in developing countries understand global law reforms and how to better predict how legal reforms are likely to play out in recipient countries.
Die Reihe „Akten der Gesellschaft für griechische und hellenistische Rechtsgeschiche“ publiziert seit 1975 die Vorträge und Antworten, die auf den regelmäßigen Tagungen der Gesellschaft gehalten werden. Der vorliegende Band enthält dreißig Beiträge, die sich dem Recht Athens, dem öffentlichen Recht und der Administration in den griechischen Poleis, sowie Fragen der Sklaverei und Freilassungen widmen.
Along this fourth and final chapter I transfer the philosophical discourse on human rights into a proper legal dimension. I begin with a hypothesis of classification for the main legal philosophical schools (such as positivism, natural law etc.), and I introduce a proposal on how to conceive the interconnection between positive law and morality. Next, I define the proper function of human rights as laws. What is the balancing between human rights? How can we define a guideline for a reasonable adjudication of the rights in conflict? I conclude with a discussion of an international human rights policy. The democratic peace theory is still today the most considered theory grounding peace on liberal democracy and human rights. Yet, it has some definitional imperfections which leave doubts about its tenability as a theory. Accordingly, I show what the margins for improvement of such theory are in order to obtain a serious expectation for a lasting peace among nations.
El artículo analiza la implementación e influencia del sistema procesal norteamericano en otras jurisdicciones, con especial énfasis en el procedimiento penal y el denominado juicio abreviado. Se propone revisi- tar la idea de “transplante” legal y se sugiere explorar otras figuras, como la de la “traducción”. Tal concepto ilumina mejor el modo en que los sistemas son usados, trasladados e incorporados en sistemas foráneos. En contra de la llamada “tesis de la americanización” se propone observar el modo real en que el “plea bairgaining” estadounidense ha sido adoptado en cuatro jurisdicciones diferentes
Comparison is a very common tool for international lawyers. In fact, international law is built around, and draws upon, constructions necessitating an exercise of comparison. In recent years, however, calls have been made to turn the familiar tool of comparison into a central way to engage with international law. This is the idea of those spearheading the rise of a new field called comparative international law. This article critically examines the promotion of comparison as a central mode of engagement with international law and scrutinizes some of the main features of the comparativist project. It particularly shows that the comparativist project, far from laying bare the plurality of international legal thought and practice, enables a thought-colonizing enterprise. The article ends with some reflective observations on the possibility of limiting colonizing thinking in international legal studies. In doing so, it argues that it must remain possible for international lawyers to engage with alterity in a way that does not unilaterally manufacture the “other,” silence it, and speak on its behalf. This approach is called counter-comparability.
This article uses a socio-legal perspective to analyze the use of ethics guidelines as a governance tool in the development and use of artificial intelligence (AI). This has become a central policy area in several large jurisdictions, including China and Japan, as well as the EU, focused on here. Particular emphasis in this article is placed on the Ethics Guidelines for Trustworthy AI published by the EU Commission’s High-Level Expert Group on Artificial Intelligence in April 2019, as well as the White Paper on AI, published by the EU Commission in February 2020. The guidelines are reflected against partially overlapping and already-existing legislation as well as the ephemeral concept construct surrounding AI as such. The article concludes by pointing to (1) the challenges of a temporal discrepancy between technological and legal change, (2) the need for moving from principle to process in the governance of AI, and (3) the multidisciplinary needs in the study of contemporary applications of data-dependent AI.
Despite tremendous growth in the field, there have been many challenges to law and the behavioral sciences. The most colorful expression is Abel’s charge that “questions and answers have begun to sound a comfortable, but rather boring ‘clackity-clack.”’ On one hand, the achievements of the field cannot be ignored by those who want to think about law seriously. On the other hand, all approaches to the field are flawed and are likely to remain that way. Help in solving the problems of the field might come from a thorough interdisciplinary approach, calling on the contributions of all social sciences while recognizing the limitations of each; knowledge of a minimum amount of law and legal method, but with full awareness of how legal thought may distort definitions of problems; and knowledge of the questions posed by broader social theories in light of an empirical refining of their large explanations.
Systems of law 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 municipalities 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 operation 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 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 comprehensive 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 integration and harmonization processes require reasonably transferable models. Following 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.
p>Desde hace mucho tiempo, en Colombia se tiene conciencia de la importancia de la imitación de normas e instituciones en la evolución de nuestro ordenamiento jurídico. Más allá de las afirmaciones generales que en este sentido se pueden encontrar en muchos manuales y tratados en las diferentes ramas del Derecho. En las últimas décadas en el ámbito del Derecho Comparado han surgido varios estudios que se ocupan puntualmente del fenómeno y que han debatido en torno a la posibilidad de que el Derecho no esté determinado por las estructuras de la sociedad que lo produjo y pueda ser trasplantado de un lugar a otro. El propósito del presente artículo consiste en presentar los debates que se han generado en torno a esta cuestión en términos de trasplante, recepción, influencia, imposición y adaptación en el ámbito jurídico. También se pretende revisar los aportes de este debate y adelantar algunas hipótesis propias al respecto, analizando el fenómeno del trasplante de normas en el marco complejo y diverso de las interacciones entre ordenamientos jurídicos.</p
Treu und Glauben irritieren das britische Recht. Kürzlich hat die berühmtberüchtigte europäische Richtlinie zum Verbraucherschutz das kontinentaleuropäische Prinzip der bona fides direkt in das britische Vertragsrecht implantiert, wo es ein beträchtliches Ausmaß an Irritationen auslöste. Nach der Richtlinie ist eine Vertragsbestimmung mißbräuchlich, »wenn sie entgegen dem Gebot von Treu und Glauben zum Nachteil des Verbrauchers ein erhebliches und ungerechtfertigtes Mißverhältnis der vertraglichen Rechte und Pflichten der Vertragspartner verursacht«.2 Zwar war der ansteckende Virus bereits früher in das Vertragsrecht des common law eingedrungen, insbesondere in den Vereinigten Staaten, wo der Uniform Commercial Code und das Restatement (2d) das Kriterium von Treu und Glauben für die Durchführung und Durchsetzung eines Vertrages eingeführt haben.3 Aber traditionsbewußte britische Gerichte haben bei verschiedenen Gelegenheiten den Krankheitserreger auswärtigen Ursprungs erfolgreich bekämpft, als »inherently repugnant to the adversial position of the parties«, und als »unworkable in practice«.4 Jetzt stehen sie jedoch vor dem Problem, wie sie mit der EG—Richtlinie umgehen sollen. Und es ist zu erwarten, daß sich das Prinzip von Treu und Glauben noch weit über den Bereich des Verbraucherschutzes hinaus ausdehnen wird.5
By its very nature, the act of comparison involves joining things while preserving their integrity as distinct things. It is indeed possible, despite the common saying, to bring together apples and oranges, subsume them for an instant under the common category of ‘fruit’, and compare them in terms of weight, colour, shape, or sugar content without for that matter undermining their distinctiveness as apples and oranges. The act of comparing apples and oranges entails and confirms that apples and oranges can simultaneously be conceived as ‘fruit’as ‘apples/oranges’.
Law-in-translation, as it manifests itself in either oral or written form, can be usefully described as an assemblage in motion. Oscillating between the generic and the singular, legal translation has gradually affirmed a disciplinary identity of sorts vis-à-vis other well-established genres, such as literary translation or the translation of Scripture. Further, legal translation has been moving from the local to the ‘glocal’ scene. This neologism wishes to capture the idea that while law is more and more subject to translation on the European or international level, it remains unable to escape local forms of understanding. Finally, legal translation has been amplifying its semantic range from the literal to the metaphorical. Long confined to the transmission of oral or written statements across languages, law-in-translation features new instantiations as can be illustrated, for instance, through the ever-expanding circulation of legal concepts from one country to another and the re-formulation of law into economic language within international business relations.
This article explores arguments for and against proposals for statutory changes that would require Canadian judges to consider partner or “spousal” abuse when making decisions about child custody and access, in terms of the likely implications for women. The author discusses, in historic context, the relationships of social change to the evolution of social ideology and professional “knowledge” about gender and family and the influences of these on the evolution of family law, in order to demonstrate that legal changes alone are unlikely to produce positive benefits for abused women and their children. Moreover, an analysis of the legal discourse of judges as reported in the Canadian Reports on Family Law between 1983 and 1996 suggests the need for caution. Instead of judicial sensitivity to the special vulnerabilities of women in abusive situations, the case law indicates that judges are applying an “objective” incidents-based approach to assessments of abuse. Because this approach ignores the special vulnerabilities of women and makes it appear that abuse is symmetrical by gender, women may be disadvantaged if judges are required to deny or limit abuser's access to, or custody of, their children. The author concludes that, if what is intended is the protection of abused women and children, the solution lies less in giving more power to judges than in promoting social change through collective action, the evolution of professional “knowledge” that ultimately will find reflection in law, and the allocation of tangible resources for the benefit of abused women and their children.
Dual trends are colliding in U.S. courts. The first trend is a tidal wave of cases requiring courts to engage the domestic laws of foreign legal systems; globalization is the principal driver of this escalation. The second trend is a profound and ever-increasing skepticism of our ability to understand foreign law; the literature of pluralism and postmodernism has illuminated the uniquely local, language-dependent, and culturally embedded nature of law. Courts cope with this dissonance by finding some way to avoid the application of foreign law. But these outcomes are problematic because parties are denied access to court or have their rights and responsibilities determined pursuant to the wrong law. This article offers an exposition of lexical meaning to explain the source of these oppositional trends and to illuminate possible solutions. Legal words and ideas transcend geographic, social, and cultural boundaries. For this reason, the words of another legal system look familiar and, thus, appear knowable to an outsider. Yet autonomous national legal systems tend to tailor the meanings of these shared words for idiosyncratic purposes. Thus ironically — even paradoxically — the more commonly a word is used, the less predictable is its meaning. This differentiation of meanings makes actual knowledge of the foreign law difficult to achieve. As a framework for examining this phenomenon, this article demonstrates that the common meaning of a word is a limited resource. The common meaning of a word erodes when legal systems assign a new meaning to a shared word. Idiosyncratic meanings are useful and generative, but they also introduce an important negative externality because the common meaning of a word is essentially the starting point for measuring the meaning of that word in a foreign system. The more robust the common meaning, the lower the measurement costs. The prototypical solutions to common-pool problems — privatization and regulation — are infeasible here. And ubiquitous efforts to unify, approximate, or harmonize laws tend to exacerbate the problem rather than help solve it. We could drop the pretense that we are able to understand foreign law and eliminate the demand for it. Or, if the doctrines are going to presume familiarity with foreign law, we must address the supply-side and ensure that courts are, in fact, better able to ascertain foreign law.
A kész szövegátvételben végződő joghatások kérdése globalizálódó korunkban egyre általánosodó jelenséggé válik, miközben tudományos feldolgozása alig tart ezzel lépést. Nemcsak fogalmi kerete, gyakorlati tapasztalatainak levonása, s így mögöttesen megbúvó törvényszerűségei és tanulságai levonása, eszményeinek megfogalmazása hiányzik, de még terminológiája is tisztázatlan. Recepció, octroi, jogexport, jogátvitel, jogkölcsönzés, jogátültetés, jogi segítségnyújtás; diszciplínaként pedig a jog és fejlődés, jog és modernizáció amerikai mozgalmai, a franciáknál pedig a fejlesztés joga – mindezek eltérő vonásokat eltérő nézőpontokból fogalmiasítanak. Kritikai áttekintésük és elemzésük (1. Terminusok) lehetőséget teremt elméleti alapok kidolgozására, a jogi mintaadás ontológiájának vázlatos megrajzolására (2. Technikalitás). A legfontosabb tanulság ebben a jogot szabályként azonosító szűkkeblű pozitivisztikus szemlélet meghaladása egy a jogban tételezés, jogértelmezési közeg, egy egész mögöttes jogi kultúra konglomerátumát láttató totalitás-szemlélet javára. Kétségtelen sikerek mellett ez erőteljes kudarcoktól kísért folyamatként érzékeli az elmúlt fél évszázad joghatásra irányuló törekvéseit (3. Kontrasztok a jogátvitelekben és megítélésükben).
Figyelemmel a háttérben megbúvó érdekek makacs önérvényesítésére, sokat jelez már maga a kérdésfeltevés élessége is, hiszen társadalompolitikai magasságokba emelkedve egyre inkább a globalizáció természetére irányul. Nevezetesen, magunkból indulunk-e ki vajon, hogy saját hagyományunkat másokra erőltessük, avagy tudunk-e önzetlenül másokat csupán abban támogatni, hogy önmaguk fejlesztésének útját megleljék? Vagyis narcisztikusan önmagunkra ügyelő hataloméhségünket, avagy segíteni akarásunkat szolgálja-e érdeklődésünk? Végső soron melyik mintát választjuk hát a cirkuszi idomár akaratátviteli mutatványa és a kertésznek mindenkor másra figyelő alázata közül? Hiszen önáldozattal jár az előbbi kísértését elkerülni, ám csakis egy saját tapasztalatok tanulságaihoz visszavezető út lehet hosszú távon sikerre vezető. Mert végül úgyis a célzott rendszer kiválasztó erején múlik minden, miközben a nem-jogi környezet meghatározhatja a jog sorsát. Egy, a természet emberi kultiválásából vett hasonlattal élve, jobb hát lassan megtudni, hogy mit is akar a föld és élő környezete, és utána jöjjön csak a kertész.
Kulcsszavak: jogfejlesztés, jogmodernizáció, jogrecepció, jogátültetés, a jog mint szabály, a jog mint kultúra, jogi imperializmus, globalizmus
The promulgation of the Turkish Civil Code of 1926, a nuanced translation of the Swiss Civil Code of 1907, has long been celebrated as an exceptionally thoroughgoing instance of ‘legal transplantation’. Despite their pervasiveness, such assessments cloud appreciation of the multifarious power dynamics at work in the Code’s preparation and implementation, especially the mechanisms through which it was made to serve Kemalist ideology’s twofold agenda of ‘modernising’ socio-legal relations while retaining – and, in certain instances, augmenting – those ‘traditional’ practices which early republican legislators and administrators found to be of especial value for their ‘nation-building’ project. The chief objective of this study is to reveal the inadequacies of the Turkish Civil Code’s standard characterisation as a ‘success story’ in comparative legal scholarship. Specifically, I demonstrate that the 1926 Code is best understood as the product of a deeply gendered tension between Kemalism’s dedication to a state-driven programme of national ‘modernisation’ and elements of the ‘tradition’ this programme was crafted for the sake of mobilising, radicalising and transforming.
Despite tremendous growth in the field, there have been many challenges to law and the behavioral sciences. The most colorful expression is Abel's charge that “questions and answers have begun to sound a comfortable, but rather boring ‘clackity-clack.’” On one hand, the achievements of the field cannot be ignored by those who want to think about law seriously. On the other hand, all approaches to the field are flawed and are likely to remain that way. Help in solving the problems of the field might come from a thorough interdisciplinary approach, calling on the contributions of all social sciences while recognizing the limitations of each; knowledge of a minimum amount of law and legal method, but with full awareness of how legal thought may distort definitions of problems; and knowledge of the questions posed by broader social theories in light of an empirical refining of their large explanations.
This article discusses Bello's sources and methods in light of Alan Watson's theory of legal transplants. It provides examples from Bello's drafting of provisions on inheritance law in the Chilean Civil Code and specifically addresses the influence of the Code Napoleon.
This paper documents the recent emergence of constitutional review of legislative and administrative action in Korea and Taiwan, two East Asian countries seen to be historically resistant to notions of judicial activism and constitutional constraint. It argues that the ability to draw from foreign legal traditions, especially those of the United States and Germany, empowered judges in these countries and therefore helped to alter the structure of public law away from executive-centered approaches of the past. This is consistent with viewing judicial review as essentially a foreign transplant. Nevertheless, the institution of judicial review has some compatibilities with Confucian legal tradition, a point that has implications for how we think about institutional transfers across borders. By constructing a locally legitimate account of what is undeniably a modern institution of foreign origin, the paper argues that constitutional constraint should not be viewed as an imposition of Western norms, but as a more complex process of adaptation and institutional transformation.
This article analyzes the Americanization thesis in criminal procedure. According to the strong version of this thesis, the U.S. legal system has become the most influential system in the world and, as a consequence, a substantial number of legal systems may gradually come to resemble or mimic the American one and thus become Americanized. This article cautions against the strong version of the Americanization thesis through an examination of the introduction of American-style plea bargaining in four civil law countries - Argentina, France, Germany and Italy. It shows that even if each of these countries has introduced a form of plea bargaining, there are two main series of reasons that explain why these jurisdictions will probably not be Americanized. First, there are important features of civil law countries' inquisitorial system that may neutralize the Americanization effect of the imported practice. Second, these four civil law jurisdictions have introduced plea bargains that present differences - even substantial differences - not only from the American model but also among themselves. As a consequence of these differences between the Argentine, French, German and Italian plea bargains, the article shows that a paradoxical consequence of the American influence on civil law jurisdictions may be the production of fragmentation and divergence, rather than the Americanization of criminal procedures of the civil law tradition. In order to demonstrate these points, this article redesigns two conceptual frameworks. First, it reconceptualizes the adversarial and inquisitorial systems as theoretical categories. The article shows that these systems should be conceived not only as two different techniques to handle criminal cases, but also as two different procedural cultures and as two different ways to distribute powers and responsibilities between the main actors and institutions of the criminal justice system. Second, the article also challenges the framework of the legal transplant as a way to think of the circulation of legal ideas and institutions between legal systems. It shows that the metaphor of the legal transplant is too rigid to account for the transformations that legal ideas and institutions undergo when they are moved into new legal systems. Instead, the article proposes the metaphor of the legal translation as an alternative heuristic device when analyzing the transfer of legal ideas and institutions between legal systems. The adversarial and inquisitorial systems, understood as two different procedural cultures, can be understood as two different systems of productions of meaning. Thus, the transfer of legal institutions from one system to the other can be understood as translations from one system of meaning to the other.
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