THE IDEA OF LEGAL TRANSPLANT

This article was written by Tripti Kejriwal, a student of National Law University, Assam.

INTRODUCTION

‘Transplant’, as defined by the Oxford English Dictionary means ‘remove or reposition’ or to ‘convey or remove elsewhere’ or to ‘transfer to another country or place of residence.’ It also implies ‘displacement’. The term ‘Legal Transplant’ was first coined by Alan Watson, who is credited with the incorporation and development of this element of Comparative Law. In simple language, Legal Transplant means reposition or transfer of rules, principles, legal concepts and transport of laws and legislations across different legal systems. In the professional language of law, the term defines the transfer of laws or legislations across jurisdictions.

Legal Transplant was described by Alan Watson as the “moving of a rule […] from one country to another, or from one people to another.”[1] Alan opined that the proper task of comparative law as an academic discipline was to explore and examine the correlation between legal systems. He claimed that there was no necessary and close connection between laws and the society in which they operated. In fact, laws were usually borrowed from elsewhere, so that laws often operated in societies and in places very different from those in which they had initially developed. Laws were often strongly rooted in the past. Transplanting of laws was easy.[2]

However, the concept or the whole idea of legal transplant has been very debatable from the point of its consideration since the very beginning. Various thinkers opposed the relevance of this idea and have justified this by opining that each and every society has its own distinguished attributes in terms of its history, culture, norms, conduct, values, morals and evolution. Therefore, each society functions in its own idiosyncratic way and hence a single law cannot be enforced on every society with the same level of efficacy.

 A group of thinkers are of the opinion that Alan’s proposition was as practical enough and is also prevalent in the present era as it was in the primitive times. There have various successful cases involving a fusion of laws and legislations across a number of cultures, societies and countries. Therefore, this concept is highly unpredictable and at the same time, very debatable.

IDEA OF LEGAL TRANSPLANT

The issue on legal transplants is one of the most highly debatable points of discussion in the contemporary field of comparative law. It does not only include the technicalities of success and failures of the rules transferred or borrowed, but also goes into the depth of  philosophy of comparative law by way of the link between law and the society. The theory of legal transplant of Comparative Legal Studies intersects with the ‘mirror theory’ of Law. The mirror theory is supported by the thinkers from Montesquieu to Hegel. This theory rightly states that the legal system is the reflection of the inner spirit of a society. It also asserts that the profound secrets of the way through which men in a society are held together are exhibited by the prevailing laws of such society which suggests the association between them.

The reason for the transplantation of laws is also another burning topic. It is highly debated that if the motive behind legal transplants are merely emulating the ideas and legal concepts from developed legal systems for the development of their own country, then there are slight chances for such transplants to become successful and possible in the practical field. Rather, if the implementation and execution of laws from other society is done with the view of accepting the society, then there is high possibility for such transplants to become successful.

Different thinkers proposed varied views on the relevance and practical application of this idea. Alan Watson has always remained positive towards this idea and has been in favour of it and has advocated that legal transplant is the most influential source of legal development all over the globe. Whereas, on the other hand, Legrand has always blatantly opposed the idea of legal transplant on the basis that law and society are interdependent and interrelated and hence separation of law for its diffusion to another country, from its inherent society is not possible. Both the thinkers have given strong arguments in support of their beliefs in the discussion of success and failure of legal transplants respectively.

Now, there are specifically two streams namely, the Transferists, who acknowledge and support the duplication of foreign rules, and within this source are scholars like Watson and La Porta.[3] Another very remarkable preacher of the concept is the “World bank”, law development organisation which has been continuously making efforts to manufacture and export the perfect “effective legal system.”

The other stream is that of the Culturalists, like Legrand, who are the staunch pessimists and they do not believe in the existence of Legal transplants and firmly negate the possibility of legal transplants. Some of them have even stated that transplanted laws are nothing but unwanted irritation to the existing culture. They go even further to argue that rules are not “self-explanatory” and rely considerably on the ‘subjective’ cultural meaning.

However, J.F. Morin’s view on this subject is that most of the other scholars fall between these extremists i.e., formalist and culturalist and are of the viewpoint that transplanted laws are likely to be analysed, interpreted, applied and enforced in the adopting legal system.[4]

Also, there are some scholars like Kahn-Freud, who are in the intermediate position and are of the opinion that legal transplantation is analogous to the surgical transplantation of organs and thus in the same manner, they have a fair chance of dismissal as well as that of  affirmation. Some of these scholars have also compared transplanted laws to languages. Just like even after blending with foreign culture, languages don’t lose their eccentricity, legislations also retain their uniqueness.[5]

Some important reasons for which legal transplantations are considered significant are need for an authority, political reasons, necessity for law reformation, and reliance on political and economic motivations, etc.

There are two predominant factors responsible for determining the transplantation of laws and imitation through various legal systems, and they are ‘imposition and prestige’, as suggested by some scholars. Sacco opines that there are some societies wherein the laws of developed countries are blindly followed. This would merely lead to the failure of the growth transplantation due to bare imitation of laws. There are also some countries which hold themselves in such a high position that they simply impose their laws and legislations to the countries inferior to them.

Through the whole process of debate, certain criteria can be specifically listed which are essential to fulfil for the successful transplantation of laws. The first one is that the law should be parallel to the existing culture and principles of the country which is receiving the law. Also, in addition to this, the accepting society should not be hesitant towards changes and rather be receptive towards it. If these two main attributes are not satisfied by the accepting society, then there are high chances that the transplantation will not take place.

The transplants debate in comparative law became checkmated in a contest between prominent legal scholars arguing on the one hand that transplants can survive everywhere and on the other hand that legal transplants are impossible and irrelevant because law is implanted in culture and cultures cannot be transferred. This debate remained concealed as much as it illuminated the relation between law and the society at large.

EXAMPLES OF SUCCESSFUL LEGAL TRANSPLANTS

Acceptance of laws, that are universal, depends on the permit of the society. There has been an ongoing debate on the success or failures of legal transplantation and there are various arguments put forward by different scholars on the same. Despite some scholars opposing the idea of legal transplant and claiming it to be irrelevant, there have been various instances when successful legal transplant has taken place and has resulted in the fusion of legal systems. Some of them are mentioned below:

An outstanding example of the successful implementation of legal transplant has taken place in South Africa, wherein there was a fusion of the civil and common law systems and this resulted in changing the courts from the archaic ways of the old Roman – Dutch influence and absorbed the distinction of the English law. As in case of private law, the intention of the parties is taken into consideration in a significant manner. There was also introduction of the principles of separation of powers, bicameral legislation, judicial review, etc in the legal system of South Africa. However, the most important and influential achievement in this is the transplant of human rights law with the adoption of the South Africa Constitution, 1996.

Another good example of successful transplantation which has a remarkable attribute of good mix of legal systems is the Scottish law. The legal system of Scotland depicts the merging of both the civil and common law traditions because the development of most Scottish law was under the Roman law. Jan Smiths highlights for example that legal transplants in contract law have had more success compared to property law because “law of obligations as a whole is richer and blended than property law.”[6] On the other hand, despite great pressure from the English law, the Property law is firmly rooted in the Scottish law and it cannot be altered or substituted.

Malaysia has witnessed one of the most ingenious legal transplants. There has been fusion of not only two laws namely, common and civil but together with these, there was also a combination of the local Islamic and Customary laws traced with it.  This was done to maintain and retain the secularity of the country as well as to respect the religious sentiments of the population. Also, Singapore and Malaysia have adopted Trading Regulation Rule from Australia in 1973.[7] The countries like Australia, Singapore and New Zealand has also played a pivotal role in the progress of Malaysian company law.

Thus, it can be said that no legal transplant and legal system is perfect. Due to the designing of these systems by man, there is always a large scope for its development and improvement.

EXAMPLES OF UNSUCCESSFUL LEGAL TRANSPLANTS

Although looking at the examples cited above, it can be seen that there have been a number of cases wherein legal transplants have been successful. But, along with this, the cases which led to a failure cannot be neglected to be discussed. Some scholars who have rightly pointed out the impracticability of this concept can be highlighted through these examples.

The most important and significant failure of transplants was that of the takeover law in Egypt from France. It should be noted that even though the Egyptian legal system was a product of the French legal system, yet the takeover was a massive failure. This could be because of lack of infrastructure to adopt the takeover of French law. Egyptian law belongs to the Romano Germanic family of law.[8] Egypt has begun the modernization of its laws in the reign of Mohammad Ali. This was done by Egypt in order to adopt the civil law system. The transformation from Shari’a law to civil law started with the establishment of specialised judicial councils. However, the competence of the Shari’a law was only limited to the civil matters under the authority of the judicial councils. The Western law highly influenced the Egyptian government, and so even though Egypt was a part of the Ottoman Empire, the government duly implemented the codes inspired by the Napoleonic law.

The reliance of Egypt on the French code was due to the reason that the codification of French law provided easy access to its authorities.

The economic policy of a state is inclusive of the takeover regulations. France is a member of the European Union, but even then, it has always adopted antagonistic policies to foreign investments due to the fear of major industries holding by the rivals. France didn’t comply with the European Union takeover policy which aimed at unification of laws in order to secure easy transfer of capital across the globe. These factors were taken into consideration at the time of the takeover policy of France in Egypt. Egypt was a developed country and was in need of investments and development of free financial markets, but due to the anti- investment nature of the French takeover regulations, this led to a failure. Thus, it can be said that the French takeover regulations lay contrary to what the Egyptian system required for the reformation of their economic markets. This resulted in the failure of the transplant.

Thus, it can be concluded that transplantations should take place keeping in mind the link between the society and law for its successful operation.

STUDY OF LEGAL TRANSPLANT IN INDIA

India is said to a land of diversity. Due to the differences in the cultural and geographical aspects of India, it has always remained diverse and complex. The dynamic and rich history of India is one of the major causes for India being such a vibrant country. The law and legislation of India has been prone to many changes until the present time.

This can be traced from the period of the reign of the Mughal rulers where Islamic laws prevailed. But with the advent of the British in India in the colonial period, these Islamic laws were substituted by English laws. The prevailing Constitution of India has also adopted provisions and laws from several other countries. This can be thus cited as a perfect example of successful legal transplantation. For instance, the Directive Principles of State Policy and the method of Election of the President are borrowed from Ireland. In the similar manner, the Parliamentary form of government and the concept of Bicameralism have been taken successfully from Britain. United Nations of America has given India the concept of the Preamble, Fundamental Rights, etc. Also, the ideals of justice, fraternity, liberty and the concept of a “Republic” have been granted by the French Constitution. Therefore, Indian constitution is the result of successful legal transplants from all over the world.[9]

Apart from the successful legal transplantation, India has been prone to the failure of it as well. The Charter of 1683 approved the establishment of Admiralty courts in India. Furthermore, due to the authority of the Charter of 1687 and 1726, Mayor’s court was established in Madras and the also there was application of English laws on the citizens respectively. The Englishmen was however not under the jurisdiction of any law be it local or English laws.

It was after the Battle of Plassey that the English East India Company could no longer restrain them from the jurisdiction of the British Parliament. As a result, the British could no longer share a good equation with the natives nor the British Parliament.

Therefore, Indian history has also witnessed cases of transplants which have to meet failures at its ends. Thus, legal transplants have been a part and parcel of the legal systems prevailing across the world.

CONCLUSION

Legal transplants are not abstract and rather real. They cannot be impossible. Legrand was completely wrong in illuminating the impossibility of transplantations. They are effective when there is no motivation of deliberately duplicating. Rather, it should be of voluntary nature. In order to make the legal transplants successful and effective, the law makers should specifically list the prospective opportunities that come with the adoption of legislations and laws across different system of different countries.

Legal transplants have an edge. It can lead to better and effective administration due to the fusion of various laws and legislations. It may also enhance feasibility and help in easy and smooth functioning. The mixed legal systems which are formed as a result of fusion of laws are of very vibrant nature. They provide a transparency in the application of laws which are subjected to different sets of circumstances.

Thus, the concept and idea of legal cannot be negated and denied. It has remained functional and practical from the very primitive times and is also accepted in the present era. It is a source of legal development and can be of great help for imparting legal education.

[1]Alan Watson, Legal Transplants, 2d ed. (University of Georgia Press, 1993) at 21.

[2] John W. Cairns,Watson,Walton, and the History of Legal Transplants.

[3] La Porta, Rafael. ‘The Economic Consequences of Legal Origins’ p. 12.

[4]Morin, Jean-Frédérich and Gold, E. Richard, An Integrated Model of Legal Transplantation: The Diffusion of Intellectual Property Law in Developing Countries, p.19.

[5]Drummond, Susan G, The process geography of law (As approached through Andalucian Gitano family law). p. 5.

[6] “The same may explain why even in other systems a change in the law of obligations takes place

more easily than a change in property law. And even within the law of obligations, there is a tendency

to stick to the already existing law”. Smiths, Jan. Scotland as a mixed Jurisdiction and the Development

of European Private Law: Is there something to learn from evolutionary theory? p. 6.

[7]María Paula Reyes Gaitán, The Challenges of Legal Transplants in a Globalized Context: A case study on ‘working’ examples, October 2014.

[8] Rene David & John Brierley, Major Legal Systems In The World Today 22-

24 (3d ed. 1985)

[9] http://www.jagranjosh.com/general-knowledge/constitution-of-india-features-taken-from-other-countries-1409660545-1.