Goldbach 2019 Why Legal Transplants
Goldbach 2019 Why Legal Transplants
Goldbach 2019 Why Legal Transplants
583
LS15CH30_Goldbach ARjats.cls October 3, 2019 13:39
from one jurisdiction or legal system to another. It deliberately refers to and evokes the image of
an organ transplant to denote law as a living thing, an organic entity (Teubner 1998) capable of
accepting, rejecting, or adapting to change. At its most general, then, research on legal transplants
Access provided by 185.57.79.28 on 01/14/24. For personal use only.
involves the study of the movement of law and of legal change. How do laws, legal institutions, or
legal systems develop? What constitutes legal change, and why does legal change happen? These
questions probe law as a site of social action: one that is contingent, culturally embedded, and
capable of both inequality and social justice (Abel 2010, Seron & Silbey 2004). Thus, to the extent
that law and social science scholars care about the social processes involved in making law and
the social places of law internationally (Hans 2017, Merry 2006, Shaffer 2016), scholarship on
legal transplants can serve as a rich source of deliberation and information. At the same time,
comparative law scholars can learn a great deal from the field of law and social science (Nelken
2003). For example, comparative law scholars could employ law and social science methods to
investigate the politics and relations of power implicit in law reform work and to analyze the social
(individual and group) factors, forces, and processes involved in the movement of law (Gillespie
2015, Twining 2005).
Forty years after its metaphorical breakthrough seems like a good time to take stock of the
research on legal transplants and to declare winners and losers in the debates that have played out
in the literature about law and culture and legal families. I argue that although “legal transplant”
is an easy and useful term to evoke the idea of the movement of law, the nomenclature carries
with it a considerable amount of baggage. Law and social science scholars interested in studying
the movement of law across jurisdictions will want to draw on the helpful methods of empirical
research. They will also want to be cautious of the biases that have beset some legal transplant
scholarship, especially with regard to identifying the framing forces (Silbey & Sarat 1987) at play.
In particular, they should be wary of using the legal transplant metaphor as a seemingly apolitical
tool for assessing law reform and legal change.
METAPHORICAL DISCOVERIES
Comparative law scholars generally attribute the origin of interest in legal transplants to Otto
Kahn-Freund and Alan Watson (Cairns 2013, Ewald 1995, Merryman 1981, Twining 2005). Both
authors, writing in the late 1970s, used organ transplant as a metaphor to invoke the image of a
foreign legal system taking in another legal system’s rules or institutions (Cairns 2013, p. 643).
For both Watson and Kahn-Freund, this was part of a “dynamic” approach to comparative law
(Ajani 2007, Sacco 1991) whereby comparing legal systems would not solely be a matter of com-
piling an inventory of similarities and differences between (static) legal systems or institutions.
584 Goldbach
LS15CH30_Goldbach ARjats.cls October 3, 2019 13:39
Instead, comparative law scholars would inquire into the changing nature of law and the causes
and processes involved in law reform and legal change. Cairns (2013), Cohn (2010), and Twining
(2005) have written excellent summaries of the history of legal transplants as a subdiscipline of
comparative law, and I do not mean to repeat that history here (see also Ewald 1995, Graziadei
2009). I do, however, want to briefly recount the early literature on legal transplants to introduce
its main debates and make the case for the literature’s potential contribution to the study of law
and social science.
Both Kahn-Freund (1974) and Watson (1978, 1993) were interested in revitalizing comparative
law as a discipline, as well as addressing the purpose of comparative law. Kahn-Freund (1974, p. 5)
was particularly concerned about the use of legal comparison as a tool for law reform, and thus his
application of the term transplantation was a deliberate effort to evoke the complications and haz-
ards of transferring part of one living system to another. Watson, by comparison, was untroubled
by the idea of legal rules moving across jurisdictional boundaries. In contrast to Kahn-Freund,
Annu. Rev. Law. Soc. Sci. 2019.15:583-601. Downloaded from www.annualreviews.org
Watson used the transplant metaphor to suggest the positive possibilities for borrowed rules. He
employed the phrase legal transplant as a way to highlight the nature of legal development as a
Access provided by 185.57.79.28 on 01/14/24. For personal use only.
and convictions” (Zimmerman 1994, p. 73). In addition to having to compare and contrast the
effectiveness of legal rules and institutions, scholars had to consider how law moved and whether
some kind of bridge between a continent of civil law and the common law of the British Isles
would be possible. Moreover, the three conditions for entry into the European Union—“respect
for democracy and human rights, a functioning market economy, and the capacity to adopt and
implement past and future EU legislation” (Katzenstein 2005, p. 29)—meant that the movement
of law would be an ongoing topic for research and consideration.
Finally, outside Europe, in the world of development economics, institutions—in particular, le-
gal and judicial institutions—were galvanizing a renewed interest in law and development (Rittich
2004, Trubek 2016). Douglas North (1991, p. 100), winner of the Nobel prize for Economic Sci-
ences in 1993, argued that institutions were essential to effectively define and enforce “complex
and impersonal forms of exchange,” including economic interactions. Consequently, New Institu-
tional Economics put legal institutions at the front and center in supporting and driving economic
Annu. Rev. Law. Soc. Sci. 2019.15:583-601. Downloaded from www.annualreviews.org
activity (Thomas 2011, p. 980). Development practitioners who had previously emphasized free
trade and fiscal reform altered their portfolios to include legal and judicial institutions (Botero
Access provided by 185.57.79.28 on 01/14/24. For personal use only.
et al. 2003, Davis & Trebilcock 2008, Ohnesorge 2016, Rittich 2004, Tshuma 1999). Thus, by
2002, the Legal Vice Presidency of the World Bank was already able to report that the Bank had
provided support to a staggering 87 countries in 45 “main areas of specialized legal assistance,”
including such areas as taxation, contracts, legislative drafting, indigenous peoples laws, resettle-
ment, natural resources law, rural credit, and AIDs-related laws (World Bank 2002, p. 9).
The rise of New Institutional Economics meant that the development community could look
to legal institutions for both prognosis of illness and prescriptions for reform (Ginsburg 2002,
World Bank 2002; see also Daniels et al. 2011). Legal reforms often involved transplanting rules
or practices that were successful in the Global North or in high-income countries sponsoring the
reforms (Ajani 1995, Desai & Woolcock 2015, Kroncke 2012). These could include strengthening
court administration, drafting alternative dispute resolution mechanisms, establishing administra-
tive courts systems, or developing bankruptcy and commercial courts (Botero et al. 2003, Wanis-St.
John 2000, World Bank 2002). Support for such reforms assumed that they could be structured
and implemented in a technocratic and apolitical manner, an issue of particular importance for the
World Bank, whose governance structure prohibits it from political engagement (Tshuma 1999).
The problems underlying such assumptions have long been the subject of scholarship that grap-
ples with the relationship between law and politics (for reviews of this literature, see Abel 2010,
Silbey & Sarat 1987).
Against this background of rapid structural and legal change, globalization and regional har-
monization, and shifting developmental economics that now emphasized institutions, legal trans-
plant research was poised to move into the present. The movement, borrowing, and adaption of
law were no longer issues of theoretical consideration alone but rather real-time matters about
what it would actually take to successfully implement foreign legal institutions.
586 Goldbach
LS15CH30_Goldbach ARjats.cls October 3, 2019 13:39
into Japan (Kahn-Freund 1974, Waelde & Gunderson 1994). This early literature was written
mostly by European comparative law scholars who focused on transplants within legal traditions
or the movement of law from the West to less “modern” legal systems (Mattei 1994b, p. 197; see,
e.g., Merryman 1981), an approach clearly influenced by evolutionary thinking that imagined a
natural history to legal development (Stein 1980). Beckstrom’s (1973) investigation of European
legal transplants into Ethiopia—published roughly one year before civil war broke out there—was
an exception to scholarship that largely looked backward and was situated almost exclusively in
the West. It also foreshadowed the bond that would develop some 20 to 30 years later between
legal transplants and law and development.
In the 1990s, work on legal transplants began to reflect contemporary interest in EU harmo-
nization and post–Soviet Union reconstruction (Ajani 1995; Damaška 1997; Legrand 1996, 1997;
Waelde & Gunderson 1994). For instance, Waelde & Gunderson (1994) discussed the reform
process in post-Soviet Eastern Europe, where technical assistance agencies were helping with leg-
Annu. Rev. Law. Soc. Sci. 2019.15:583-601. Downloaded from www.annualreviews.org
[In] times of dramatic change, there is no time carefully to craft “organic,” home-made legislation.
Particularly with regard to legislation of a more technical, less political character (as traditional core
contract law) it makes sense not to try to reinvent the wheel; indeed it may seem that “technical” or
“formal” rules, i.e., those that do not have a strong linkage with the prevailing social and political beliefs,
interests and institutions, can be transplanted quite easily. (Waelde & Gunderson 1994, pp. 368–69)
They argued, however, that social and institutional change needed to accompany legislative re-
form to support new legislation (p. 360). Development assistance would fail if the institutional
environment could not carry out and enforce new law. States thus needed assistance with “the
challenges of helping to build up the organisations required and the institutional environment
within which a legal culture can emerge and flourish” (p. 361).
With respect to harmonizing law across the European Union, legal transplant scholars dis-
cussed the viability of convergence of laws across jurisdictions, some of which had common law
traditions marked by pragmatism and inductive reasoning, and others of which had civil law tra-
ditions marked by formalism, codes, and normative coherence (Damaška 1997, Legrand 1996).
The 1990s also saw growing interest in tracking the reception of US law abroad (Lempert 1992,
Wiegand 1991) and in the prospects for legal transplants in developing countries (La Porta et al.
1997). Papers looked at the movement of US private law, such as banking and securities regulation
or consumer protection (Wiegand 1991), and the possibility of adopting United States–style jury
systems in civil law noncontinuous trials in Japan (Lempert 1992).
At the intersection of comparative law, financial economics, and law and development, La Porta
et al. (1997) embarked on a large-scale quantitative study into the impact of law and legal insti-
tutions on financial markets and economic development. This group of scholars—who are com-
monly known by reference to their combined initials, LLSV (La Porta, Lopez-de-Silanes, Shleifer,
and Vishny)—tracked the development of investor-friendly legislation (e.g., shareholder and cred-
itor protections) across multiple jurisdictions to determine if particular legal traditions or legal
families encouraged legal institutions supportive of investment. LLSV’s findings indicated that
countries with common law legal traditions had the most investor-friendly laws, whereas coun-
tries with French and German legal traditions had the least friendly laws (La Porta et al. 1997,
2000; see also La Porta et al. 2008). The policy implication was that countries interested in eco-
nomic development would benefit from transplanting common law rules and institutions (Pistor
et al. 2003).
These articles triggered an immediate backlash, most directly from a counter-group of schol-
ars who took issue with LLSV’s emphasis on formal legal rules as opposed to legal practice on
6
term “legal transplant(s)” in AJCL
Number of articles using the
1
Annu. Rev. Law. Soc. Sci. 2019.15:583-601. Downloaded from www.annualreviews.org
0
1982 1984 1986 1988 1990 1992 1994 1996 1998 2000 2002 2004 2006 2008 2010 2012 2014 2016
Year of publication (1982–2017)
Access provided by 185.57.79.28 on 01/14/24. For personal use only.
Figure 1
Number of articles that mention the phrase “legal transplant(s)” in the American Journal of Comparative Law (AJCL) between 1982 and
2017.
the ground (Daniels et al. 2011, Michaels 2009, Milhaupt 2009, Pistor et al. 2003). Scholars also
critiqued LLSV for their disregard of the process of implementing legal rules and procedures
(Berkowitz et al. 2003), which are discussed in greater detail below.
1 The American Journal of Comparative Law is consistently ranked first under the topic of “comparative law”
in the Washington and Lee University law journals rankings, with, in 2017, an overall ranking of 75 and an
impact factor of 0.87. To be included in this count, an article had to mention the phrase “legal transplant” or
“legal transplants” at least one time in the text of the article. I did not include articles that mentioned legal
transplants only in footnotes or by way of reference to another author’s written work. The phrase first appeared
in an article in 1982. Data were available up to and including the year 2017.
588 Goldbach
LS15CH30_Goldbach ARjats.cls October 3, 2019 13:39
Research on legal transplants also included the study of informal law, dispute resolution, and
concepts of legality such as due process, good governance, and the rule of law (Ajani 2007, Alkon
2011, Kessler 2009, Nader & Grande 2002, Simoni & Whitecross 2007, Wanis-St. John 2000).
Nader & Grande (2002) examined the difficulties associated with the spread of United States–
style alternative dispute resolution—typically consensus-based, private processes conducted by
formally trained third-party strangers—into African countries. Similarly, Kessler (2009) described
the mixed success of attempts to transplant Dutch- and French-style conciliation courts into the
post–Civil War Reconstruction Era American South.
Legal history and legal transplants continued to be a popular pairing (e.g., Daniels et al. 2011,
Del Duca & Levasseur 2010, Harris 2006), but researchers moved beyond Western European
history to explore formerly untouched areas, such as the movement of company law to British-
Mandate Palestine (Harris & Crystal 2009) and Caribbean slavery laws to the United States
(Tomlins 2009). In a particularly rich set of papers, scholars who were part of a research group
Annu. Rev. Law. Soc. Sci. 2019.15:583-601. Downloaded from www.annualreviews.org
at the Institute for Advanced Studies of Jerusalem explored various “Histories of Common Law
Legal Transplants.” For instance, Tomlins (2009, p. 391) demonstrated how legal transplants
Access provided by 185.57.79.28 on 01/14/24. For personal use only.
helped to supply the “ideological and technical means from which Anglo-American slave regimes
were fashioned.” Harris & Crystal (2009) described how personal connections and professional
competition among lawyers working for different departments of the British Empire influenced
the way commercial law was exported.
This topic of professional competition and the social capital involved in the movement of law
should be of interest to a law and social science audience (see, e.g., Dezalay & Garth 2010). The
“Histories of Common Law Legal Transplants” papers also demonstrated the possibilities for
using empirical methods to examine “the societal, political, and legal circumstances and actions
that [lead] to the adoption, expansion” (Hans 2017, p. 472), or, in some cases, rejection of legal
transplants. By exploring the micro-level forces (Graziadei 2009) involved, these scholars shed
light on the individual action, ideology and discourse, and professional competition involved in
the movement of law (Harris & Crystal 2009, Kessler 2009, Tomlins 2009).
Globalization and the reemergence of law and development as a reputable area of research
encouraged the study of colonial legal transplants as both an historical and a pragmatic exercise
(Berkowitz et al. 2003, Daniels et al. 2011, Davis & Trebilcock 2008, Pistor et al. 2003). The be-
lief that institutions matter, and in particular that legal institutions matter, has meant that policy
makers and development practitioners have been interested in the possibilities for exporting in-
stitutions that promise to achieve desirable development outcomes, as well as in “the dynamics
that shape institutional change” (Daniels et al. 2011, p. 112). In that vein, Daniels et al. (2011) re-
viewed British colonial rule as an exercise of legal transplantation, whereas Harris (2006) looked at
the movement of discourse on “corporate personality” from Germany to Britain and the United
States at the end of the nineteenth century. La Porta et al.’s study, discussed above, elicited several
articles that pushed back against the idea that legal families were determinative of healthy investor
markets and opportunities for development (Cabrelli & Siems 2015, Milhaupt & Pistor 2008, Puri
2009).
Several scholars tracked legal transplants as a way to challenge the Americanization thesis
(Brake & Katzenstein 2013, Grande 2016, Kroncke 2016, Langer 2004)—the theory that US inter-
ests abroad are bolstered by the spread of neoliberal legal institutions and adversarial prolitigation
modes of government (Kagan 2007). Several scholars found that, notwithstanding the ability of
the United States to use its economic and political advantage to influence states [and notwith-
standing early efforts by organizations such as the Ford Foundation to export United States–style
legal education and public interest law (Langer 2007, Trubek 2016)], evidence was mixed as to the
wholesale export of US law (Grande 2000, 2016; Mattei 1994a; Nader & Grande 2002; Puchniak
& Lan 2017; Wiegand 1991). Instead, the study of legal transplants evidenced syncretism, com-
petition, and a global market for legal ideas and institutions (Affolder 2019, Frankenberg 2013,
Goldbach et al. 2013).
However, as Mattei & Nader (2008) pointed out, Americanization is not just the export of law,
rules, and legal institutions. It is also the export of ideas about law, including normatively loaded
notions such as “the idea that the law should be grounded in economic efficiency rather than social
justice” (p. 95) or the belief that individual creativity deserves the reward of exclusive property
rights. Nonetheless, Lienau’s (2017) recent investigation into hidden or unstated market principles
at work in the global legal order—such as collective beliefs about market functioning and capital
account liberalization—continues to challenge the idea of a coordinated effort to promote US
interests abroad (Lienau 2017, p. 557).
Recent literature on legal transplants studies the movement of law in times of transitional
justice ( Jupp 2013), the uneven reception of competition law in Vietnam (Gillespie 2015), the
Annu. Rev. Law. Soc. Sci. 2019.15:583-601. Downloaded from www.annualreviews.org
spread of the Environmental Impact Assessment form (Affolder 2019), the import of adversar-
ial cross-examination into Continental Europe (Grande 2016), and the movement of indigenous
Access provided by 185.57.79.28 on 01/14/24. For personal use only.
legal traditions into state-centered institutions (Goldbach 2015). In an important move, Hans
(2017) reflects on the role of scholars in the transplantation of trial by jury, describing the connec-
tions between international scholars through the Law and Society Association and other research
networks.
Since 2005, five Argentinian provinces have introduced lay participation in criminal trials, in-
cluding a mixed court of professional and lay judges in Córdoba and trial by a gender-parity and
intercultural jury in Neuquén. In telling the story of these reforms, Hans includes her own story
working with scholars from Argentina through the Law and Society Association and traveling
to Buenos Aires to give lectures and meet with members of the legal profession. Bergoglio (2017,
p. 515) challenges Hans’s narrative, warning against “overestimating the role played by socio-legal
scholars” in socio-legal change. Their exchange raises important methodological issues for the
study of legal transplants (Lasser 2003). How should scholars track the movement of legal norms
or ideas about best practices over long-term periods and multiple jurisdictions? How should we
conceptualize methodologies for studying legal change in a way that captures the interchange
between technical legal rule changes and sociocultural change (Torres 2007)?
Recent literature also considers legal transplants beyond the state, including the movement
of law through nonstate channels, such as transnational expert networks (Dezalay 2007, Langer
2007), international organizations (Ajani 2007), and private contracting parties (Lin 2009, Penca
2016, Puchniak & Lan 2017, Tsai & Wu 2018). This literature seeks to push the boundaries of
legal transplant scholarship by tracking the movement of private law and regulatory standards such
as corporate social responsibility, independent directorship in corporate governance (Puchniak &
Lan 2017), codes of vendor conduct (Tsai & Wu 2018), mechanisms for biodiversity conservation
(Penca 2016), and commercial arbitration clauses (Lin 2009).
Here we get into the difficult normative and descriptive questions about what constitutes law.
What type of ordering is legal (Shaffer 2016)? On the other hand, the sorting and separating out
of specific modes of governance as private or public, or transnational versus local—as if those were
technical allocations of jurisdiction—obscures the “structural incommensurability that character-
izes interlegality” (Valverde 2009, p. 141). Rather than ruminate and generalize about what makes
something legal, scholars should study the taken-for-granted nature of scale and jurisdiction in
legal transplants, the contradictions in rationalities of governance, and the ways that legal artifacts
generate an “illusion of order” (Rodríguez-Garavito 2011, p. 266). Scholars could ask, who wins
in the “everyday workings of jurisdiction” (Valverde 2009, p. 142)?
590 Goldbach
LS15CH30_Goldbach ARjats.cls October 3, 2019 13:39
Imitation happens when states choose to adopt the laws of a foreign country (Merryman 1981),
in particular, when laws or legal institutions carry with them a level of prestige that states identify
as beneficial (Graziadei 2006). For example, after the fall of the Soviet Union, many legal reforms
Access provided by 185.57.79.28 on 01/14/24. For personal use only.
were part of ad hoc initiatives, promoted based on the prestige of the legal rules or the people
proposing them (Ajani 1995). Grande (2000) thus argued that the ideological underpinnings of
US criminal procedure—as the best safeguard for the individual against state abuses—induced
Italy to imitate US adversarial procedures in the 1980s and 1990s. At the same time, Grande also
noted that Italy adopted US criminal procedure as a way to “open up” its justice system and signal
an interest in democracy (Grande 2000, p. 232).
Political scientists—particularly international relations scholars—have a robust literature on
signaling and reputation as ways to account for state behavior with respect to international treaties.
This literature may be helpful for scholars examining imitation in legal transplants. As Lienau
(2017, p. 551) explains, states are keenly aware that their actions may “affect [their] reputation
in the eyes of a broader range of actors, possibly up to the international community writ large.”
States may thus participate in or even comply with international agreements to signal intentions
and increase reputational stakes (Davis & Trebilcock 2008, p. 905).
The same rationale applies to states that adopt foreign legislation or import certain legal in-
stitutions. Law-on-the-books may be enough to give the right signals to certain constituencies
and stakeholders even if there is little change in substance or to the “reality on the ground”
(McCormack 2018, p. 656; see Ohnesorge 2016, p. 101). On this basis, many have criticized the
thin conceptions of law reform and legal change that are presumably the foundation for develop-
ment documents like the World Bank Doing Business reports (Davis & Kruse 2007, McCormack
2018, Michaels 2009). Michaels (2009, p. 776) aptly wrote, “Changing legal rules is easy, but it is
also mostly ineffective.” Here there is an opportunity for further research on the extent to which
states transplant legal rules for signaling purposes or in an effort to increase reputation.
To imposition and prestige (Graziadei 2006), Mattei (1994a, p. 9) added efficiency, arguing
that in a modern market for laws and legal institutions, competition determines “the survival of
the most efficient legal doctrine.” Mattei provided the example of the doctrine of trusts, a peculiar
legal doctrine because of its historical foundations in both common law and equity. However,
because trusts put beneficiaries in a better position than they would be under its civil law counter-
part, trusts have been in high demand. Several Latin American countries created trust institutions
through legislation, and in 1985, a Hague convention was created on the recognition of trusts
(Mattei 1994a). Although Graziadei (2006) warned against attributing too much explanatory
power to competition among legal institutions, scholars have studied competition between legal
institutions or authority in the management of certain types of disputes as part of the process of
the development of legal norms (Dezalay & Garth 2010). Thus, Cuniberti (2012) described how
the French Cour de cassation transplanted the Anglo-American doctrine of estoppel to remain
competitive in international commercial arbitration.
Typologies have also been popular in the legal transplant literature (Cohn 2010; Daniels et al.
2011; Gidi 2003; Siems 2014, 2018; Tsai & Wu 2018). Relying on examples from Argentina,
Miller (2003) described four types of legal transplants: cost-saving, entrepreneurial, legitimacy-
generating, and externally dictated transplants. Miller’s typology essentially mirrored the various
reasons noted above for states to adopt legal transplants. For instance, similar to imitation or pres-
tige, Miller’s legitimacy-generating transplants were foreign rules that states imported in order to
provide a source of legitimacy for an otherwise weak state apparatus. Notably, Miller’s typology
brings imposition into the twenty-first century by including “externally dictated” transplants—
laws “dictated” by investors such as the International Monetary Fund or the World Bank, who
often condition their loans on the adoption of particular legal reforms (Miller 2003, p. 847; see
Annu. Rev. Law. Soc. Sci. 2019.15:583-601. Downloaded from www.annualreviews.org
also Milhaupt 2009). Most recently, Siems (2018, p. 104) adds a new type of legal transplant, the
malicious transplant, whose introduction is “harmful to the, previously intact, social coexistence
Access provided by 185.57.79.28 on 01/14/24. For personal use only.
592 Goldbach
LS15CH30_Goldbach ARjats.cls October 3, 2019 13:39
who demonstrated a strong effort internationally for family law convergence, or scholars who ad-
vance accounts of legal and business cultures in corporate commercial law and financial regulation
(Gillespie 2015, Liao 2019, Lienau 2017).
Scholars have dedicated much time and many words to the “Does culture matter?” debate
(Cohn 2010, Goldbach 2015, Legrand 1997, Siems 2014, Twining 2005). Many articles have at-
tempted to argue in favor of connections between law and culture. Others have parsed the meaning
of Watson’s early work on legal transplants (Ewald 1995, Örücü 2004). There have been “strong
contextualists” (Legrand 1997), “strong mirror theses” (Twining 2005, p. 212), micro “legal views”
(Cairns 2013, p. 648; see also Graziadei 2009), “strong Watsons,” and “weak Watsons” (Ewald
1995). It is time for this debate to be put to rest. Social scientists are well aware of the connections
between law, culture, and society (Cotterrell 2006, Nelken 2016, Seron & Silbey 2004). We study
law and culture among elites (Riles 2006, Sarfaty 2009), as well as places of law and legal culture
among laypersons (Abel 2010, Gastil et al. 2010, Reyna et al. 2015). We study multiple overlap-
Annu. Rev. Law. Soc. Sci. 2019.15:583-601. Downloaded from www.annualreviews.org
ping sources of jurisdiction (Merry 2006) and embrace the fluidity of cultures (Gillespie 2015, Riles
2005). We are also aware that cultures, societies, and social movements constitute and are consti-
Access provided by 185.57.79.28 on 01/14/24. For personal use only.
tuted by law (Silbey & Sarat 1987). For some social scientists, to even speak of law and culture as
empirically distinct spheres is to fictionalize conceptual and material boundaries (Silbey 2005).
Culture matters. Nonetheless, there are still many interesting questions to pursue with respect
to culture and the movement of law. What kinds of culture are being built at and through interna-
tional institutions and organizations that impede or encourage the spread of law (Affolder 2019,
Sarfaty 2009)? Whose cultures are being promoted, and why? When or how is culture employed
as a means to achieve instrumental legal goals (Goldbach 2015)? And what are the implications of
using culture as an instrument for reform?
political system (Gillespie 2015)? Do different aspects of the reception process make users more
conscious of legality? For example, in a study of the effect of jury service on civic participation,
Gastil et al. (2010) demonstrated that merely serving as a juror does not affect laypersons’ political
behavior as much as participating in the process of decision-making. In contrast, legal transplant
scholars have tended to combine what might be different aspects or stages of reception as one
extended process of translation (Langer 2004) or adaptation (Berkowitz et al. 2003). We could
imagine, however, disaggregating different stages of reception to study effects on legal actors. A
review of the existing literature reveals at least three stages: investigating foreign legal institutions
and/or consulting with foreign legal experts (Lempert 1992), drafting new legislation to reflect
reforms (Langer 2004), and implementing new laws and legal institutions. Does participating in
a particular phase of the transplant process have a greater effect on commitment to or legitimacy
of the new legal institution?
Other process-related research questions that scholars could ask include, what kinds of in-
Annu. Rev. Law. Soc. Sci. 2019.15:583-601. Downloaded from www.annualreviews.org
centive draw legal actors to imported rules? What are the “hierarchical and contested processes”
(Dezalay & Garth 2010, p. 114) involved? What types of power (Barnett & Duvall 2005) are in-
Access provided by 185.57.79.28 on 01/14/24. For personal use only.
594 Goldbach
LS15CH30_Goldbach ARjats.cls October 3, 2019 13:39
Watson 1993; Wiegand 1991, p. 233). However, scholars need to undertake more empirically
based research to examine the causal connections between students who study abroad and the
movement of ideas about law, legal institutions, and legal practice.
Legal transplant scholars could also engage with para-ethnographic methodologies to work
with judges, development practitioners, and legal professionals who participate in the transna-
tional movement of law. Para-ethnography is a way of incorporating the perspectives of “reflex-
ive subjects” who are not “mere informants” but rather participants in the intellectual work and
scope of a project (Marcus 2007, p. 1133). Instead of performing the ethnographic relationship
of researcher and subject-informant, the para-ethnographer seeks a collaboration with research
partners and considers those actors’ understanding of their work in formulating research ques-
tions. We are beginning to hear about judges’ experiences traveling abroad as part of rule of law
projects and judicial education initiatives (Garth et al. 2017, Goldbach 2016). How can we engage
with judges and legal professionals to learn more about nondisputing judicial activity (Goldbach
Annu. Rev. Law. Soc. Sci. 2019.15:583-601. Downloaded from www.annualreviews.org
2018) and other informal places of law reform and legal change? How can we study the hidden or
behind-the-scenes places of influence and transnational knowledge dissemination?
Access provided by 185.57.79.28 on 01/14/24. For personal use only.
For example, Liao (2019) notes the efforts of private entrepreneurs who established B Lab, a
Philadelphia-based nonprofit organization, which partners with social activists abroad to pressure
governments to adopt the Benefit Corporation model. Here there are opportunities to bridge
work on expertise (Desai & Woolcock 2015, Ohnesorge 2016, Riles 2006) with the development
of a sociology of the movement of law.
Barnett & Duvall (2005, p. 55) linked actors’ capacities to social processes that shape their
“self-understandings and perceived interests.” Institutions, including the many institutions within
which legal transplants travel, constitute actors (DiMaggio & Powell 1991). Moreover, diffuse so-
cial processes like knowledge communication or discursive practices continuously shape actors’
interests and preferences. These background forces have effects that are indelibly linked to the
causes and cultures we value and promote (Schauer 2017). A legal transplant is therefore “not
merely an instrument or tool” (Silbey 2005, p. 327) to improve contractual relations or assist in
the procurement of foreign direct investment. It is also part of systems of knowledge and sets of
discursive practices that “help construct, compose, communicate, and interpret social relations”
(p. 327). Scholars need to consider how power is instantiated in law reform projects, in the move-
ment of law, and in development projects that seek to implement best practices. A sociology of the
movement of law should ask the mundane but powerful questions: “Who is providing funding?
Who is asking the questions? Who benefits?” (Nader & Grande 2002, p. 577).
Annu. Rev. Law. Soc. Sci. 2019.15:583-601. Downloaded from www.annualreviews.org
Finally, I want to briefly address the competing terms and phrases currently in play and answer
the original question posed: Why legal transplants? Why continue to use the term legal transplant
when other concepts, such as diffusion (Forman 2009, Rodríguez-Garavito 2011, Twining 2005),
translation (Langer 2004), transposition (Örücü 2004), and transnational legal order (Shaffer
2016), are available? As a metaphor, legal transplant is somewhat pejorative (and potentially in-
accurate) in its implication that a donor state is healthy whereas the receiving jurisdiction is ill,
weak, or in crisis.
As Hans (2017) demonstrates, a receiving state may implement a legal transplant in a way that
provides for a healthier legal institution. For example, the Argentinian province of Neuquén leg-
islated a jury system that required gender parity and representation from “the social and cultural
background of the defendant” (Hans 2017, p. 477). Hence, Siems (2014, p. 133) refers to the “cu-
rious case of overfitting legal transplants,” where a law works better in the receiving jurisdiction.
Moreover, the multidirectional transfer of some legal institutions is not captured by an analogy to
organ transplants. As Affolder (2019, emphasis in original) argues, “Given the multiple sites and
vectors of travel implicated in the spreading of legal ideas, it is possible that something is afoot that
is both quantitatively and qualitatively distinct than what is suggested by the transplant metaphor.”
Nevertheless, the legal transplant metaphor is helpful in evoking the people involved in the
spread of ideas about law. Legal transplant also brings with it a rich history that is thoughtful
about methodology and is, at least at times, antifunctional (Graziadei 2009, Lasser 2003, Michaels
2009). Are there ways to approach legal transplant research to attend to concerns about parochial-
ism? One way might be for legal transplant scholars to study South-to-North or other such un-
expected legal transplants. For example, in studying the use of sentencing circles in the criminal
trial (Goldbach 2015), I invoke the transplant metaphor deliberately to convey a recognition of
Indigenous legal traditions in Canada. What other opportunities are there for scholars to study
transnational sites of clashes or places where legal transplants are sources of resistance? On the
other hand, how can scholars really account for the power dynamics and positionalities embedded
within their own projects?
CONCLUSION
This article has examined the rich history of the study of legal transplants since its metaphor-
ical discovery more than 40 years ago. Throughout, it has argued for a shift in emphasis away
596 Goldbach
LS15CH30_Goldbach ARjats.cls October 3, 2019 13:39
from internally focused debates to a considered and sociological study of the movement of law.
Although research on legal transplants provides a healthy source of information on the sources of
legal change and law as a site of social action, law and social science scholars must be careful not to
replicate the literature’s occasional misuse of comparative law as an apolitical tool for law reform.
Is there a remedy for what ails legal transplants? One should hope so. With legal scholarship con-
tinuously and increasingly looking to the international, the legal transplant is likely to be a concept
that will endure. As such, scholars should develop a facility for investigating power dynamics, com-
petition, and contingency in choice of law and use social science methods to study varying aspects
of inequality and social justice activated by the movement of law across jurisdictions.
DISCLOSURE STATEMENT
Annu. Rev. Law. Soc. Sci. 2019.15:583-601. Downloaded from www.annualreviews.org
The author is not aware of any affiliations, memberships, funding, or financial holdings that might
be perceived as affecting the objectivity of this review.
Access provided by 185.57.79.28 on 01/14/24. For personal use only.
LITERATURE CITED
Abel RL. 2010. Law and society: project and practice. Annu. Rev. Law Soc. Sci. 6:1–23
Affolder N. 2019. Contagious environmental lawmaking. J. Environ. Law. 2019:1–26
Ajani G. 1995. By chance and prestige: legal transplants in Russia and Eastern Europe. Am. J. Comp. Law
43(1):93–117
Ajani G. 2007. Transplants, legal borrowing and reception. In Encyclopedia of Law & Society: American and Global
Perspectives, Vol. 1, ed. DS Clark, pp. 1509–12. Thousand Oaks, CA: Sage
Alkon C. 2011. Lost in translation: Can exporting ADR harm rule of law development? J. Disput. Resolut.
2011(1):165–87
Alter KJ, Helfer LR, Saldias O. 2012. Transplanting the European Court of Justice: the experience of the
Andean Tribunal of Justice. Am. J. Comp. Law 60(3):629–64
Amos M. 2013. Transplanting human rights norms: the case of the United Kingdom’s Human Rights Act.
Hum. Rights Q. 35(2):386–407
Barnett M, Duvall R. 2005. Power in international politics. Int. Organ. 59(1):39–75
Beckstrom JH. 1973. Transplantation of legal systems: an early report on the reception of Western laws in
Ethiopia. Am. J. Comp. Law 21(3):557–83
Bergoglio MI. 2017. The dissemination of jury trials: a reading from Argentina: the dissemination of jury
trials. Law Soc. Rev. 51(3):510–16
Berkowitz D, Pistor K, Richard J. 2003. Economic development, legality, and the transplant effect. Eur. Econ.
Rev. 47(1):165–95
Botero JC, Porta RL, López-de-Silanes F, Shleifer A, Volokh A. 2003. Judicial reform. World Bank Res. Obs.
18(1):61–88
Brake B, Katzenstein PJ. 2013. Lost in translation? Nonstate actors and the transnational movement of pro-
cedural law. Int. Organ. 67(4):725–57
Cabrelli D, Siems M. 2015. Convergence, legal origins, and transplants in comparative corporate law: a case-
based and quantitative analysis. Am. J. Comp. Law 63(1):109–53
Cairns JW. 2013. Watson, Walton, and the history of “legal transplants” Ga. J. Int. Comp. Law 41(3):637–96
Carothers T. 1999. Aiding Democracy Abroad: The Learning Curve. Washington, DC: Carnegie Endow. Int.
Peace
Cohn M. 2010. Legal transplant chronicles: the evolution of unreasonableness and proportionality review of
the administration in the United Kingdom. Am. J. Comp. Law 58(3):583–629
Cotterrell R. 2006. Law, Culture and Society: Legal Ideas in the Mirror of Social Theory. Aldershot, UK: Ashgate
Cuniberti G. 2012. Enhancing judicial reputation through legal transplants—Estoppel travels to France. Am.
J. Comp. Law 60(2):383–400
Damaška M. 1997. The uncertain fate of evidentiary transplants: Anglo-American and Continental experi-
ments. Am. J. Comp. Law 45(4):839–52
Daniels RJ, Trebilcock MJ, Carson LD. 2011. The legacy of empire: the common law inheritance and com-
mitments to legality in former British colonies. Am. J. Comp. Law 59(1):111–78
Davis KE, Kruse MB. 2007. Taking the measure of law: the case of the Doing Business Project. Law Soc. Inq.
32(4):1095–119
Davis KE, Trebilcock MJ. 2008. The relationship between law and development: optimists versus skeptics.
Am. J. Comp. Law 56(4):895–946
Del Duca LF, Levasseur AA. 2010. Impact of legal culture and legal transplants on the evolution of the U.S.
legal system. Am. J. Comp. Law 58(1):1–29
Desai D, Woolcock M. 2015. Experimental justice reform: lessons from the World Bank and beyond. Annu.
Rev. Law Soc. Sci. 11:155–74
Dezalay Y. 2007. From a symbolic boom to a marketing bust: genesis and reconstruction of a field of legal and
political expertise at the crossroads of a Europe opening to the Atlantic. Law Soc. Inq. 32(1):161–81
Annu. Rev. Law. Soc. Sci. 2019.15:583-601. Downloaded from www.annualreviews.org
Dezalay Y, Garth BG. 2010. Marketing and selling transnational “judges” and global “experts”: building the
credibility of (quasi)judicial regulation. Socio-Econ. Rev. 8(1):113–30
DiMaggio P, Powell WW. 1991. Introduction. In The New Institutionalism in Organizational Analysis, ed. WW
Access provided by 185.57.79.28 on 01/14/24. For personal use only.
598 Goldbach
LS15CH30_Goldbach ARjats.cls October 3, 2019 13:39
Harris R, Crystal M. 2009. Some reflections on the transplantation of British company law in post-Ottoman
Palestine. Theor. Inq. Law 10(2):561–87
Johnson J. 2002. In pursuit of a prosperous international system. In Exporting Democracy: Rhetoric versus Reality,
ed. PJ Schraeder, pp. 31–71. Boulder, CO: Lynne Rienner
Jupp J. 2013. Legal transplants as solutions for post-intervention criminal law reform: Afghanistan’s interim
criminal procedure code. Am. J. Comp. Law 61(1):51–92
Kagan RA. 2007. Globalization and legal change: the “Americanization” of European law? Regul. Gov. 1(2):99–
120
Kahn-Freund O. 1974. On uses and misuses of comparative law. Mod. Law Rev. 37(1):1–27
Katzenstein PJ. 2005. A World of Regions: Asia and Europe in the American Imperium. Ithaca, NY: Cornell Univ.
Press
Kennedy D. 1997. New approaches to comparative law: comparativism and international governance. Utah
Law Rev. 1997(2):545–637
Kessler AD. 2009. Deciding against conciliation: the nineteenth-century rejection of a European transplant
Annu. Rev. Law. Soc. Sci. 2019.15:583-601. Downloaded from www.annualreviews.org
and the rise of a distinctively American ideal of adversarial adjudication. Theor. Inq. Law 10(2):423–83
Kroncke JJ. 2012. Law and development as anti-comparative law. Vanderbilt J. Transnatl. Law 45(1):477–555
Kroncke JJ. 2016. The Futility of Law and Development: China and the Dangers of Exporting American Law. New
Access provided by 185.57.79.28 on 01/14/24. For personal use only.
Merryman JH. 1977. Comparative law and social change: on the origins, style, decline, and revival of the law
and development movement. Am. J. Comp. Law 25(3):457–91
Merryman JH. 1981. On the convergence (and divergence) of the civil law and the common law. Stanford J.
Int. Law 17(2):357–88
Michaels R. 2009. Comparative law by numbers? Legal origins thesis, Doing Business reports, and the silence
of traditional comparative law. Am. J. Comp. Law 57(4):765–95
Milhaupt CJ. 2009. Beyond legal origin: rethinking law’s relationship to the economy: implications for policy.
Am. J. Comp. Law 57(4):831–46
Milhaupt CJ, Pistor K. 2008. Law and Capitalism: What Corporate Crises Reveal about Legal Systems and Economic
Development Around the World. Chicago: Univ. Chicago Press
Miller JM. 2003. A typology of legal transplants: using sociology, legal history, and Argentine examples to
explain the transplant process. Am. J. Comp. Law 51(4):839–85
Miller JM. 2007. Transplants, legal exports as. In Encyclopedia of Law & Society: American and Global Perspectives,
Vol. 1, ed. DS Clark, pp. 1513–16. Thousand Oaks, CA: Sage
Annu. Rev. Law. Soc. Sci. 2019.15:583-601. Downloaded from www.annualreviews.org
Nader L, Grande E. 2002. Current illusions and delusions about conflict management in Africa and elsewhere.
Law Soc. Inq. 27(3):573–94
Nelken D. 2003. Comparatists and transferability. In Comparative Legal Studies: Traditions and Transitions, ed.
Access provided by 185.57.79.28 on 01/14/24. For personal use only.
600 Goldbach
LS15CH30_Goldbach ARjats.cls October 3, 2019 13:39
Shaffer G. 2016. Theorizing transnational legal ordering. Annu. Rev. Law Soc. Sci. 12:231–53
Siems MM. 2014. The curious case of overfitting legal transplants. In The Method and Culture of Comparative
Law: Essays in Honour of Mark Van Hoecke, ed. M Adams, D Heirbaut, pp. 133–45. Oxford, UK: Hart
Siems MM. 2018. Malicious legal transplants. Leg. Stud. 38(1):103–19
Silbey SS. 2005. After legal consciousness. Annu. Rev. Law Soc. Sci. 1:323–68
Silbey SS, Sarat A. 1987. Critical traditions in law and society research. Law Soc. Rev. 21(1):165–74
Simoni A, Whitecross RW. 2007. Gross national happiness and the heavenly stream of justice: modernization
and dispute resolution in the Kingdom of Bhutan. Am. J. Comp. Law 55(1):165–95
Stein P. 1980. Legal Evolution: The Story of an Idea. New York/Cambridge, UK: Cambridge Univ. Press
Teubner G. 1998. Legal irritants: good faith in British law, or how unifying law ends up in new divergencies.
Mod. Law Rev. 61(1):11–32
Thomas C. 2011. Law and neoclassical economic development in theory and practice: toward an institution-
alist critique of institutionalism. Cornell Law Rev. 96(4):967–1024
Tomlins C. 2009. Transplants and timing: passages in the creation of an Anglo-American law of slavery. Theor.
Annu. Rev. Law. Soc. Sci. 2019.15:583-601. Downloaded from www.annualreviews.org
66(3):301–29
Tsai C-H, Wu Y-N. 2018. What conflict minerals rules tell us about the legal transplantation of corporate
social responsibility standards without the state: from the United Nations to the United States to Taiwan.
Northwest. J. Int. Law Bus. 38(2):233–84
Tshuma L. 1999. The political economy of the World Bank’s legal framework for economic development. Soc.
Leg. Stud. 8(1):75–96
Twining W. 2005. Social science and diffusion of law. J. Law Soc. 32(2):203–40
Valverde M. 2009. Jurisdiction and scale: legal “technicalities” as resources for theory. Soc. Leg. Stud. 18(2):139–
57
Waelde TW, Gunderson JL. 1994. Legislative reform in transition economies: Western transplants—a short-
cut to social market economy status? Int. Comp. Law Q. 43(2):347–78
Wanis-St. John A. 2000. Implementing ADR in transitioning states: lessons learned from practice. Harvard
Negot. Law Rev. 5(3):339–82
Watson A. 1978. Comparative law and legal change. Cambridge Law J. 37(2):313–36
Watson A. 1993. Legal Transplants: An Approach to Comparative Law. Athens: Univ. Ga. Press. 2nd ed.
Watson A. 1995. From legal transplants to legal formants. Am. J. Comp. Law 43(3):469–76
Wiegand W. 1991. The reception of American law in Europe. Am. J. Comp. Law 39(2):229–48
Wise EM. 1990. The transplant of legal patterns. Am. J. Comp. Law 38(Suppl.):1–22
World Bank (Legal Vice Presidency). 2002. Initiatives in legal and judicial reform. Rep., World Bank,
Washington, DC
Zimmerman R. 1994. Civil code and civil law: the “Europeanization” of private law within the European
Community and the re-emergence of a European legal science. Columbia J. Eur. Law 1(1):63–105
Annual Review of
Law and Social
Science
Contents
Annu. Rev. Law. Soc. Sci. 2019.15:583-601. Downloaded from www.annualreviews.org
Access provided by 185.57.79.28 on 01/14/24. For personal use only.
Perspectives
Current Interest
v
LS15_Front_Matter ARI 30 August 2019 17:7
vi Contents
LS15_Front_Matter ARI 30 August 2019 17:7
Indexes
Errata
An online log of corrections to Annual Review of Law and Social Science articles may be
found at http://www.annualreviews.org/errata/lawsocsci
Contents vii