Social Science and Diffusion of Law

Author(s): William Twining

Source: Journal of Law and Society , Jun., 2005, Vol. 32, No. 2 (Jun., 2005), pp. 203-240
Published by: Wiley on behalf of Cardiff University

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JOURNAL OF LAW AND SOCIETY
VOLUME 32, NUMBER 2, JUNE 2005
ISSN: 0263-323X, pp. 203-40

Social Science and Diffusion of Law

WILLIAM TWINING*

The purpose of this paper is to point out a remarkable gap between the
social science literature on diffusion and the legal literature on
reception and transplantation and to explore the implications of this
gap for research on diffusion of law.

INTRODUCTION

'[Comparative law's] failure to develop is evident in several regards

'Country and Western tradition' with its main focus on nation st
systems of Western capitalist societies, its obsession with the comm
civil law dichotomy, and its preoccupation with private law ru
doctrines, may have been adequate at the time but is in dire need of
overhaul. Furthermore, despite many admonitions and obvious
comparative law has still not become interdisciplinary. To be sure,
occasional interdisciplinary work, but it is a rare exception and has
broader trend. And despite many criticisms, comparative law has
acquired a solid empirical base.'

Modem sociological accounts of diffusion and modem legal discu

reception and transplants are a rather clear example of two b

* University College London, 4 Endsleigh Gardens, London WC1H

England
wlt@[Link]. co. uk
This article is a sequel to 'Diffusion of Law: A Global Perspective' ((2005) 49 J. of Legal
Pluralism 1-45, hereafter Twining, 'Diffusion' (2005)). Much of the research for this
paper was undertaken at the Center for Advanced Study in the Behavioral Sciences at
Stanford in 1999-2000. I am grateful for the wonderful support of the staff of the Center
and for advice on the historical and social science literature from Carol Gluck, Harvey
Molotch, and David Snow. I am also grateful to Deirdre Dwyer, Trisha Greenhalgh, John
Griffiths, David Nelken, Esin Orficti, and Gordon Woodman for helpful comments.

1 M. Reiman, 'The Progress and Failure of Comparative Law' (2002) 50 Am. J. of

Comparative Law 671, at 685-6. On 'The Country and Western Tradition', see W.
Twining, 'Comparative Law and Legal Theory: The Country and Western Tradition'
in Comparative Law in Global Perspective, ed. I. Edge (2000a) ch. 2; see, also, W.
Twining, Globalisation and Legal Theory (2000b) at 184-9.

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literature seemingly addressed to similar phenomena that largely ignore each
other.2 Both are concerned with the spread of ideas. The purpose of this
essay is to draw attention to this phenomenon and to explore its implications.
It may be read as an introduction to these two bodies of literature or as a
modest contribution to diffusion theory. It may be used to provide some
general guidance to someone embarking on a study of some particular aspect
of diffusion of law. It can be taken as an invitation to social scientists to pay
more attention to law; and it may be interpreted as a further plea to social
scientists, socio-legal scholars, and comparative lawyers to contribute to the
cause of giving comparative law a more solid empirical base.
Leading comparative lawyers, including Sacco, Watson, Glenn, and
O)riicil, treat diffusion as central to comparative law as a sub-discipline.3 In a
companion paper I argue that we lack a systematic theory of diffusion of law
and that from a number of widespread, though not universal, assumptions in
the discourse about 'reception' and 'transplantation' of law, one can
construct a 'naive model of diffusion', consisting of twelve elements.4 If one
adopts a global perspective and a broad conception of law (including major
examples of 'non-state law'), then each of the elements can be shown to be
neither necessary nor even characteristic features of processes of legal
diffusion. Instead of a single paradigm case one needs to construct a picture
that emphasizes the complexity and variety of these processes.
In this paper I shall suggest that the heritage of studies of diffusion of law
does not belong to a single research tradition. It has been generated by a
variety of concerns - often diffusion has not been the primary focus - and it
lacks a coherent framework, partly because of the complexity and variety of
the phenomena involved. It contains some valuable case studies, some useful
concepts and distinctions, and some unsatisfactory debates. Most of the
leading studies have not deviated far from the 'Country and Western'
tradition of comparative law and a naive model of diffusion. On the other
hand, there is a vast and varied social science literature on diffusion that has

2 Vol. 6 of The International Encyclopedia of the Social and Behavioral Sciences

(2001) (hereafter IESBS) presents an overview of the historical development of
diffusion studies in three separate articles, none of which even mentions law: R.
Stade, 'Diffusion: Anthropological Aspects' (at 3673-76); L.A. Brown, 'Diffusion:
Geographical Aspects' (at 3676-80), and N. Alter, 'Diffusion, Sociology of (at
3680-84). This pattern is repeated in nearly all of the social scientific works
considered below. On the variety of terms and metaphors (transplants, reception,
importation, and so on) used to designate the field, see Twining, 'Diffusion' (2005).
'Diffusion of law' is here used as the generic term for the subject in order to point to
the links with the social science literature.
3 A. Watson, Legal Transplants (2nd edn., 1993) ch. 1; E. Oriicii, Critical
Comparative Law: Considering Paradoxes for Legal Systems in Transition
(1999); R. Sacco, 'Legal Formants: A Dynamic Approach to Comparative Law II'
(1991) 39 Am. J. of Comparative Law 343; H.P. Glenn, Legal Traditions of the
World (2nd edn., 2004)
4 Twining, 'Diffusion' (2005).

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been largely ignored by legal scholars, who have in turn been ignored by the
social scientists. This heritage of literature, much of it empirically grounded,
can provide us with some basic tools for analysing particular examples of
diffusion processes and a vast treasure house of concepts, hypotheses,
findings, debates, concrete examples, and suggestive analogies that could
help to guide, fertilize, and illuminate particular lines of research.
The naive model postulates a paradigm case with the following
characteristics:

[A] bipolar relationship between two countries involving a direct one-way

transfer of legal rules or institutions through the agency of governments
involving formal enactment or adoption at a particular moment of time (a
reception date) without major change. Although not explicitly stated in this
example, it is commonly assumed that the standard case involves transfer from
an advanced (parent) civil or common law system to a less developed one, in
order to bring about technological change ('to modernize') by filling in gaps
or replacing prior local law. There is also considerable vagueness about the
criteria for 'success' of a reception - one common assumption seems to be that
if it has survived for a significant period 'it works'.5

While few writers on reception/transplantation have accepted this model

in its entirety, all of the elements are still quite widespread in discourse and
literature on the subject. The phenomena are too varied to be reduced to a
single model.

Table I. A standard case and some variants

Standard case Variants

a. Source- Bipolar: single Single exporter to multiple

destination exporter to single destinations
importer Single importer from multiple
sources

Multiple sources to multiple

destinations, etc.

b. Level Municipal legal Cross-level transfers

system-municipal Horizontal transfers at other levels
legal system (for example, regional, sub-state,
non-state transnational)

c. Pathways Direct one-way Complex paths

transfer Reciprocal influence
Re-export

5 id., at p. 14.

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Table I (continued)

Standard case Variants

d. Formal/ Formal enactment Informal, semi-formal or mixed

informal or adoption

e. Objects Legal rules and Any legal phenomena or ideas,

concepts including ideology, theories,
Institutions personnel, 'mentality', methods,
structures, practices (official,
private practitioners', educational,
and so on) literary genres,
documentary forms, symbols,
rituals, etc.

f. Agency Government- Commercial and other non-

government governmental organizations
Armies
Individuals and groups: for
example, colonists, missionaries,
merchants, slaves, refugees,
believers, and so on, who 'bring
law with them'
Writers, teachers, activists,
lobbyists

g. Timing One or more Continuing, typically lengthy

specific reception process
dates

h. Power and Parent civil or

prestige common law >>
less developed

i. Change in Unchanged 'No transportation without

object Minor adjustments transformation'

j. Relation to Blank slate Struggle resistance

pre-existing Fill vacuum, gaps Layering
law Replace entirely Assimilation
Surface law

k. Technical/ Technical Ideology, culture, and technology

ideological/
cultural

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Table I (continued)

Standard case Variants

1. Impact 'It works' Performance measures

Empirical research
Enforcement

Each of these points is illustrated in the earlier paper. The next section of
this paper examines some highlights of legal studies of reception/trans-
plantation to illustrate how they have emerged from a variety of concerns
and specialisms and how they are too fragmented and lack sufficient critical
mass to constitute a single research tradition or to ground an over-arching
theory. Some come out of the Country and Western tradition of comparative
law - with its tendency to focus on the formal law of 'parent' or
'metropolitan' civil and common law state legal systems in the West and to
ignore or marginalize other legal traditions and less formal kinds of law.
Most of the studies deviate from the naive model of diffusion in one or more
respects; almost all treat diffusion as being concerned with one-way traffic
between municipal law of two countries as part of a process of 'imposed' or
'voluntary' adoption by governments.

SOME LANDMARKS IN THE STUDY OF DIFFUSION OF LAW

Much of the discussion of diffusion of law in the literature is to be found in

broader studies of colonial law or local legal history or law reform or
structural adjustment. Study of diffusion on its own can be as sterile as the
search for origins in history or of 'influence' in art or literature. However, for
some purposes it makes sense to focus on diffusion as a process. When that
has happened the underlying concerns, the perspectives and methods adopted,
and the immediate historical context have been quite diverse. The literature
on diffusion of law does not belong to a single research tradition,6 but much of
it fits within the paradigm of the Country and Western tradition.7 This can be

6 Greenhalgh suggests that much of the social science literature on diffusion of

innovations belongs to a single research tradition, which went through several phases,
despite being located in different branches of sociology. 'Research tradition' is
defined as 'a coherent body of theoretical knowledge and a linked set of primary
studies in which successive studies are influenced by the findings of previous studies'
T. Greenhalgh, G. Robert, F. Macfarlane, P. Bate, O. Kyriakidou, 'Diffusion of
Innovations in Health Service Organizations: Systematic Review and Recommenda-
tions (2004a) at 52 (hereafter, the Greenhalgh report) discussed below. For a useful
summary, see T. Greenhalgh et al., 'Diffusion of innovations in service organizations:
systematic review and recommendations' (2004b) 82(4) Milbank Q. 581.
7 See n. 1 above. As we shall see, by no means all leading accounts of diffusion of law
belong to that tradition.

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illustrated by briefly considering some landmarks in the study of legal
diffusion as such.

1. Early diffusionism

The literature on transplantation or reception of law can be traced back to the

work of Tarde, Maine, and Weber. To start with it had some connection with
diffusion theory in cultural anthropology, but law soon faded into the
background. Diffusionism represented a reaction against the prevailing
nineteenth-century view that there were natural laws of evolution governing
human progress. This theme was taken up mainly in cultural anthropology,
in the early years concentrating on spatial distribution of culture traits more
than on the processes of diffusion.8 In time, strong forms of diffusion theory
were discredited, and most anthropologists accepted that the history of
nearly every society involves a mixture of indigenous factors and external
influences. The development and functioning of institutions and practices
rather than their spread thereafter tended to be the focal point of interest.9
Nevertheless, in most social sciences there has been a steady stream of work
in which diffusion has been the focus, the relative importance of local and
external factors has had to be weighed, and their interaction considered.'0

2. The reception of Roman law

The reception of Roman law in medieval Europe has long been a matter of
interest to scholars of Roman law and legal history. After the Second World
War, studies of 'reception' developed largely divorced from empirical
studies of diffusion, especially the sociological literature on diffusion of
innovations. The two classic studies by Koschaker"1 and Wieacker were

8 Strong diffusionists, notably Elliot Smith and W.J. Perry, emphasized humankind's
hostility to change and the alleged lack of inventiveness of nearly all cultures; they
argued that the origins of all 'higher' civilizations could be traced back to Egypt.
Less extreme forms of diffusionist theory, such as the Kulturkreis school, allowed
for multiple centres of invention, but nevertheless searched for origins and played
down innovation.
9 For example, L. Mair, An Introduction to Social Anthropology (2nd edn., 1972) at
20, 40-52.
10 Stade, op. cit., n. 2, p. 3673, usefully tracks the main (overlapping) stages in studies
of diffusion in anthropology in the twentieth century as focusing on cultural history,
acculturation and culture contact studies, world system studies, and cultural
imperialism, followed by transnational and globalization studies.
11 Paul Koschaker's best known thesis, taken up by many subsequent writers, was that
the reception of Roman law in Central Europe and the spread of the Code Napoleon
were more a matter of imperial power and prestige than of superior technical quality.
P. Koschaker, Europa und das rimische Recht (1946, 2nd edn. 1953) discussed by
K. Zweigert and H. K6tz, An Introduction to Comparative Law (3rd edn., 1998,
trans. T. Weir) at 100.

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ambitious works of legal history, written on a grand scale, but essentially
particularistic.
Franz Wieacker's A History of Private Law in Europel2 has formed the
starting-point of much European legal historiography since its publication. It
has been described as a very wise book from a very harsh time.13 Wieacker's
aim, as Zimmerman puts it, was to provide a bridge between Roman law and
contemporary legal science, while reasserting the values of personalism,
legalism, and intellectualism.14 Underlying his approach is the view that a
systematic body of law based on a rigorous transnational legal science serves
the values of consistency, justice, and the rule of law against the arbitrary
power of the national state.
Wieacker's magnum opus is a learned, subtle, complex, magisterial
history of the development of private law ideas in Europe over several
centuries. It is a work of intellectual history hardly concerned with technical
detail or the law in action. His is a strongly Weberian story of rationalization
by legal honoratiores. The central thesis is that the history of modem private
law in Europe starts with the rise of jurists trained in the Bolognese legal
method of the studium civile who acquired key positions in the judicial and
administrative branches of government.15 Wieacker's is a story of a long-
drawn out, complex process of diffusion over time and space of a particular
approach to Justinian's Institutes, involving the steady intellectualization of
law, especially in Germany, resulting in a particular form of 'legal science'.

12 F. Wieacker, Privatrechtsgeschicte der Neuzeit (1952, revised 1967), translated by

T. Weir as A History of Private Law in Europe, with particular reference to
Germany (1995); compare F. Wieacker, 'The Importance of Roman Law for Modem
Western Civilization and Western Legal Thought' (1981) 4 Boston College
International and Comparative Law Rev. 257; and his 'Foundations of European
Legal Culture' (1990) 38 Am. J. of Comparative Law 1.
13 J. Whitman, 'Review of Wieacker (1995)' in (1999) 17 Law and History Rev. 400, at
402. In the 1930s, Wieacker (1908-1994) had been a member of the Nazi party and
had worked to create a new nationalist law for the Third Reich. This had involved
removing Roman law from the curriculum and substituting a Nazi version of
European and German legal history. Later, Wieacker reacted strongly against
Nazism and what he saw as the degeneration of positivism and the disintegration of
private law. His superb work, first published in 1952, was explicitly a contribution to
post-war reconstruction. His emphasis on Roman Law, ius commune, and legal
science based on individual legal conscience represented a reaction against the
nationalism and cynical positivism of the Nazi period.
14 R. Zimmerman, Introduction to Wieacker, op. cit. (1995), n. 12.
15 Wieacker, op. cit. (1995), n. 12, p. 7: 'Their dominance in public affairs ensured for
ever the peculiarly legalistic character of Western society, its habit of seeing
problems as legal and discussing them rationally, a habit which stamped society, the
state, and the economy, even contemporary administrative technology, in such a way
that life would be unimaginable without it. It distinguishes Western society from all
other cultures known to us.'

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3. Cross-cultural receptions: the case of Turkey

In the 1950s, the International Committee of Comparative Law allocated a

leading place in their programme to the study of modem receptions of
foreign systems of law by countries having a cultural background and
tradition different from those in which they had developed.16 This was the
great period of decolonization which also saw the rise of the study of
'African law' and similar initiatives, most of which tend to get written out of
stories of 'law and development'.17 In 1955 a major conference on Reception
of Foreign Law in Turkey marked the start of what is by far the richest
literature on a single story of reception.'8 This is hardly surprising, for as
Zweigert and Kdtz wrote:
Nowhere else in the world can one so well study how in the reception of a
foreign law there is a mutual interaction between the interpretation of the
foreign text and the actual traditions and usages of the country which adopted
it, with the consequent gradual development of a new law of an independent
nature.19

The story of the reception, or more accurately receptions, of foreign law in

Turkey has stimulated much of the best detailed writing and, especially in
the work of Esin Oriicii, some of the most sophisticated theorizing about
diffusion of law. I shall use the example of Turkey later to suggest that the
best literature on legal diffusion runs in parallel with some of the literature
on diffusion of innovations, but that it is still largely based on a simple model
of the processes of diffusion.

4. Kahn-Freund and Watson: the 'transplants' debate

The nineteen-seventies saw a revival of sustained interest in diffusion under

the label 'transplantation'. In his Chorley Lecture at the LSE in 1973,
Professor Otto Kahn-Freund famously contrasted the transplantation of a
human kidney from one human being to another with the transfer of a
carburettor or a wheel from one car to another, arguing that:

16 Japan, Ethiopia and Turkey were viewed as especially interesting because they were
interpreted as 'voluntary' receptions and therefore exceptional.
17 Histories of the 'Law and Development Movement' have tended to focus on
American involvement, which began in the 1960s rather than with concerns about
'development', often under different labels, in the colonial period and particularly in
the immediate pre- and post-Independence periods. See B. Tamanaha, 'The Lessons
of Law-and-Development Studies' (1995) 89 Am. J. of International Law 470,
J.P.W.B. McAuslan, In the Beginning was the Law - An Intellectual Odyssey, Paper
2 in Cornell Law School East Asian Law and Culture Conference Series (2004).
18 The proceedings of the Conference were reported in Annales de la FacultW de Droit
d'Istanbul, no. 6 (1956) and UNESCO International Social Science Bulletin (1957)
vol. IX. no. 1 For further references, see n. 69 below.
19 Zweigert and Kotz, op. cit., n. 11, at p. 178.

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In the metaphorical language I am using, the kidney and the carburettor are the
terminal points of a continuum and any given legal rule or institution may be

found at a different point of it. .... there are degrees of transferability.20

Kahn-Freund was Professor of Comparative Law at Oxford and a leading
exponent of 'law in context'. In this lecture he was addressing the uses and
misuses of comparative law (and hence of foreign models) as a tool of law
reform and making a plea for sensitivity to social and political context. His
main point was that the difficulty of transfer depended largely on the close-
ness of the relationship between the transplant and the local power structure.
Montesquieu argued that law was so much a creature of its environment that
it is an extraordinary coincidence ('un grand hazard') if the political and
civil laws of one country can suit another. Recently commentators have
tended to emphasize the importance of the cultural context, but Kahn-Freund
laid more stress on political factors: the prevailing ideology, the political
institutions, and the interests of the powerful are likely to be the greatest
source of resistance to transplantation.21 So the comparative lawyer engag-
ing in law reform needs not only to have knowledge of foreign law but also
to understand the social and political context of both the exporting and
importing country.
In 1974 Alan Watson launched the first of a series of books on 'legal
transplants'.22 Adopting a deliberately polemical style, Watson argued that
contextual differences are largely irrelevant to 'the success' of trans-
plantation and so 'the recipient system does not require any real knowledge
of the social, economic, geographical, and political context of the origin and
growth of the original rule.'23 The lines between the contextualists and the
Watsonians were drawn in this first exchange, but the debate has continued
ever since.
Like Wieacker, Watson came to diffusion from a background in Roman
law and history. But his objectives, methods, and style were very different.
Watson's first book, Legal Transplants, advanced the bold thesis that
throughout history imitation has been the main engine of legal change.24

20 0. Kahn-Freund, 'On Uses and Misuses of Comparative Law' in Selected Writings

(1978) at 298-9 (originally published in (1974) 37 Modern Law Rev. 1).
21 id., p. 300: 'But I submit - and this is my central thesis - that in these 200 years
[since Montesquieu] the geographical, the economic and social, and the cultural
elements have greatly lost, but that the political factors have equally greatly gained
in importance'. A central theme of A. Chua, World on Fire (2003) is that often
powerful elites or 'market-dominant minorities' have been instrumental in importing
foreign law, thereby breeding resentment and racial conflict.
22 A. Watson, Legal Transplants (1974, revised edn., 1993); his most recent variations
on the theme include Law Out of Context (2000a) and Legal Transplants and
European Private Law (2000b), a reply to Legrand.
23 A. Watson, 'Legal Transplants and Law Reform' (1976) 92 Law Q. Rev. 79, at 81.
24 Watson has written so much on the theme, advancing here, retreating there, that he is
difficult to pin down. However, he provided a useful summary of his position in his
own words for the fifth edition of Rudolph Schlesinger's course book on

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Initially, Watson seems to have been reacting against mainstream com-
parative law, especially the 'legal families' tradition, and sociological and
'contextual' approaches to law, such as that of Kahn-Freund, that empha-
sized the intimate relationship between law and society. In his more extreme
statements, Watson seemed reminiscent of the early diffusionists, suggesting
that innovation is almost unknown in law.
Watson's work provoked the worst kind of academic debate in which
each side caricatured the other and rarely joined issue.25 Watson attacked the
belief that law 'mirrors' society (strong mirror theses) but it is difficult to
find any serious scholar who holds a strong version of this thesis. Con-
versely, Watson's critics focused on some of his more extreme statements
and accused him of claiming that legal change takes place largely
independently of social conditions. Others, notably Pierre Legrand, have
gone to the other extreme, arguing that 'transplants are impossible'.26 When
the protagonists adopt more moderate positions, they often get bogged down
in a soggy middle.
This is not the place to consider Watson's work in detail. Isaiah Berlin
reminds us that the fox knows many things, but the hedgehog knows one big
thing. Watson is a juristic hedgehog. He has stuck persistently to the theme
that there are enormous apparent similarities between legal systems around
the world, that these similarities are a result of imitation, and that most law
exists largely independently of local social, economic, and cultural
conditions. He has done a great service as an agent provocateur, but one
is left with the feeling that Watson's theory deals mainly with surface
appearances. His generalizations are not backed by empirical evidence.

Comparative Law, eds. R. Schlesinger, H. Baade, M. Damaska, and P. Herzog

(1988). For most purposes this can be taken as a representative text. The most
accessible and useful interpretation of Watson's views is W. Ewald, 'Comparative
Jurisprudence II: The Logic of Legal Transplants' (1995) 43 Am. J. of Comparative
Law 489.
25 Ewald (id.) has usefully analysed the logical structure of Watson's theory,
distinguishing two versions, one strong and ultimately self-destructive, the other
weaker, but sufficient to achieve the main task. A similar approach can be taken with
Watson's main critics, including L. Friedman, 'Borders: On the Emerging Sociology
of Transnational Law' (1996) 32 Stanford J. of International Law 65, at 72, and P.
Legrand, Fragments on Law-as-Culture (1999). A more balanced evaluation is by D.
Nelken in Comparative Legal Studies: Traditions and Transitions, eds. P. Legrand
and R. Munday (2003) ch. 12.
26 P. Legrand, 'The Impossibility of Legal Transplants' (1997) 4 Maastricht J. o
European and Comparative Law 111. One commentator, William Evan, even
suggested that the corpus of Watson's work may be interpreted as undermining the
rationale for developing a theory of law and society (W. Evan, Social Structure and
Law (1980) at 35). In fact, Watson explicitly claims to be advancing a theory about
the distant nature of the relationship between law and society, one which emphasizes
the relative autonomy of law. He follows Max Weber's thesis that a legal culture is
given distinctiveness by the mentality of its legal elite (the legal honoratiores) who,
according to Watson, are the main agents of transplantation, change, and inertia.

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Watson treats law as a superficial gloss on society; perhaps his general-
izations about law are similarly superficial.27 One wonders how his thesis
can be translated, refined, or adapted into a form that is capable of detailed
empirical testing.
Watson's work fits the simple model of reception and he works squarely
within 'the Country and Western tradition'. Much of the recent debate about
convergence and harmonization in Europe has been framed in terms of
Watson's thesis and its critics.28 His thesis is largely confined to Roman law and
modern Western municipal law;29 he is mainly interested in private law; and his
principal concern is the differences and relationships between civil and common
law. So his central claims are limited in respect of subject matter and geography
and, apart from his interest in classical Roman law, in respect of time.

6. Esin Oriicii: transposition and critical comparative law

In the last ten years there has been a lively revival of critical theorizing about
comparative law.30 There is much of interest in that literature, but collec-
tively it suffers from still being quite firmly rooted in 'the Country and
Western tradition of comparative law', that is to say, an almost exclusive
focus on municipal law of major - often 'parent' - legal systems, and an
over-simple model of diffusion.31 Some of the strengths and limitations of
this secondary literature can be illustrated by the work of the Turkish
comparatist Esin Oriicii.
Oriicii is only one voice among many, but I shall focus on her work for
three reasons: it is intellectually ambitious; she places diffusion (what she
calls transposition of law) at the centre of comparative law; and it is
grounded in excellent detailed studies, especially about her native Turkey.
Orilcii in her bold attempt to construct a comprehensive and coherent
vision of what she terms 'Critical Comparative Law'32 identified four

27 Compare Ewald's brilliant critique of the idea that a Roman law student from the age
of Justinian would not be greatly astonished by the substance of a modem civil code
('The ignorance of Romulus' in W. Ewald 'Comparative Jurisprudence I: What was it
Like to Try a Rat?' (1995) 143 University of Pennsylvania Law Rev. 1889, at 2095-
104); compare W. Twining, 'A cosmopolitan discipline?' (2001) 1 J. of Common-
wealth Law and Legal Education 13.
28 For example, J. Allison, A Continental Distinction in the Common Law (1996);
Legrand, op. cit., n. 26; Legrand and Munday, op. cit., n. 25.
29 On Turkey, see Watson, op. cit. (2000a), n. 22.
30 Some of these are surveyed in Oriicii, op. cit., n. 3. See, also, Edge, op. cit., n. 1;
'Symposium' in (1997) Utah Law Rev; Legrand and Munday, op. cit., n. 25; E.
Oriicii, The Enigma of Comparative Law (2004).
31 See, above, pp. 205-7.
32 In contrast to 'traditional' or 'conventional' comparative law; she insists that her
choice of terminology should 'in no way be construed to mean that "Critical
Comparative Law" is a branch of the Critical Legal Studies Movement.' (Oriicii, op.
cit., n. 3, at p. 7.)

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distinct trends in comparative law scholarship since the mid-1970s:

(a) attempts to re-establish links between comparative law and legal theory,
exemplified by the work of Geoffrey Samuel, William Ewald, and
Oriicii herself;
(b) comparative legal history, exemplified by Rudolfo Sacco and the Trento
School, who maintain that comparison is an historical science which
'examines the way in which legal institutions are connected, diversified
and transplanted from one country to another';33
(c) comparative law and culture, which has tended to emphasize the
frequent mismatches between local (social and legal) cultures and legal
transplants (for example, Pierre Legrand and David Nelken); and
(d) the extension of economic analysis of law to comparative law,34
including the thesis that legal systems over time will choose the most
efficient rules and institutions from a menu of 'solutions' developed by
competing national systems - a sort of market, or perhaps garden centre,
for legal transplants.

Oriicii suggests that all four approaches treat diffusion of law as being at
the core of the comparative legal enterprise and that:
most of the current concerns of comparatists on convergence versus
divergence, mismatch in borrowings, problems for the importers and exporters
of legal ideas and institutions can be constructively approached under the
name 'Critical Comparative Law'.35

She suggests that within the European Union the most prominent practical
concerns understandably will be with inter-European relations, notably the
movement for a new ius commune, the attempts to reconcile or harmonize
civil and common law, the creation of European codes and comparative law
as 'a tool of construction' in national and supra-national courts. One might
add opposition to or scepticism about these ventures. There are similar trends
in the common law world, but account also needs to be taken of some other
tendencies, such as the perception that the United States of America is in
competition with European countries as a legal exporter, the resistance of
common lawyers to codification, and the development of comparative
common law.
Orticil predicts that:
The comparative law enterprise in the twenty-first century will be paying more
attention to general, public, private and criminal comparative law as well as to
comparative law in the EU, comparative law in the common law world,

33 R. Sacco, 'Legal Formants: A Dynamic Approach to Comparative Law II' (1991) 39

Am. J. of Comparative Law 343, at 388.
34 U. Mattei, Comparative Law and Economics (1997) and 'Efficiency in Legal
Transplants' (1994) 14 International Rev. of Law and Economics 3, criticized by P.
Legrand in Legrand and Munday. op. cit., n. 25, ch. 9.
35 Orficti, op. cit., n. 3, at p. 7.

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comparative law in the Far East and reciprocal influences. The future of
comparative law will be tied theoretically and practically to an enhanced legal
science, convergence and integration as well as an appreciation of diversity,
the use of foreign models in law reform and law and cultural studies. The
trends we see developing will continue to centre round the role for com-
parative law as a means of theory testing; new approaches to harmonization;
new receptions, mixed and mixing systems, and redesigning systems; a new
European ius commune; redefining legal culture; and an emphasis on regional
comparative law such as Eurorean, Central and Eastern European, common
law, African, and Far Eastern.

These indications of significant perspectives and lines of inquiry may

sound daunting, especially if one is used to seeing comparative law as a
lightly populated, rural sub-discipline involving a few specialists.37
However, I suggest that from a global perspective this list is far from
complete, even in respect of current activities, and that despite the breadth of
her vision and the sophistication of her treatment of transposition, even
Oriicii is still partly rooted in 'the Country and Western tradition' of
comparative law and a quite narrow concept of diffusion. Her focus is
mainly on the municipal law of nation states, with a bias towards Europe and
her native Turkey, and although she discusses the European Union, she does
not deal systematically with cross-level interaction between legal orders or
with non-state law.

7. Patrick Glenn

The approach of H. Patrick Glenn is very different from the works already
considered here. His Legal Traditions of the World is written on a grand
scale, setting law in the context of world history.38 More clearly than the rest
he has broken away from 'the Country and Western tradition' and substituted
a historically based vision of complex major traditions in continuous and
reciprocal interaction.
Glenn's picture of a tradition is of a continuous flow of ideas over time
that contains a relatively stable core, but no precise boundaries. It empha-
sizes memory, communication, continuity, and selection. Glenn's work has
major implications for the study of diffusion of law. First, diffusion is a
pervasive, continuing phenomenon rather than a series of isolated,

36 id., at p. 8.
37 According to Becher 'rural' disciplines have a low people-to-problem ratio and
typically cover broad stretches of intellectual territory in which the problems are not
sharply defined. Within mainstream comparative law, probably only studies of the
private law of 'parent' Western legal systems are highly populated enough to rank as
'urban'. T. Becher, Academic Tribes and Territories (1989). But on another view we
are all comparatists now (Twining, op. cit. (2000b), n. 1, p. 255).
38 Glenn, op. cit., n. 3 and articles that develop some themes at greater length are
discussed in Twining, 'Diffusion' (2005). See, also, the symposium on Glenn's book
in the first issue of the J. of Comparative Law (forthcoming, 2005).

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exceptional events. Second, there are no 'pure' traditions. Throughout
history traditions have interacted, both influencing and resisting each other,
in what is typically a reciprocal rather than a one-way process. Third, from
this perspective, state law, legal positivism, and Western legal traditions lose
their pre-eminence. They are just one part of a broader picture in which they
appear as relatively recent phenomena that may already be in decline.39
The picture painted of law in the world in this essay is closer to Glenn's
vision than any of the writings on diffusion discussed so far. He can be
interpreted as distancing himself from the naive model of diffusion. Legal
Traditions of the World comes closer than any other work to providing a
coherent alternative.

8. Continuing diversity

These landmarks of legal diffusion studies do not constitute a continuous

research tradition. Rather the historical context of each belongs to the largely
separate histories of loosely related academic specialisms: cultural
anthropology (diffusionism); Roman law and legal history (Wieaker);
comparative law (Kahn-Freund, Glenn, Oriicii); recently major contributions
have come via systems theory (Teubner40), sociology of law (Cotterrell and
Nelken41), and law and development (Dezalay and Garth,42 Pistor and
Wellons43). In this context, Alan Watson seems like a wild card defying
categorization.
In the last fifteen years, apart from the debates stimulated by Watson,
there has been a very marked increase in explicit interest in diffusion of law
both as a matter of scholarly attention and for practical reasons, especially in
relation to law reform and harmonization as part of European integration,
structural adjustment programmes in developing countries, reconstruction in
'countries in transition' in Eastern Europe, and post-conflict reconstruc-
tion.44 This interest has arisen from a variety of concerns in a variety of
contexts and again, in many instances, discussion of diffusion, transplants.
and so on has been incidental to some broader issue.
Whereas the concerns of the early diffusionists and of legal scholars such
as Wieacker, Watson, Glenn, and Oriicii have been almost entirely academic,

39 See P. Glenn, 'The Nationalist Heritage' in Legrand and Munday, op. cit., n.25,
ch. 4.
40 G. Teubner, 'The Two Faces of Janus: Rethinking Legal Pluralism' (1992) 13
Cardozo Law Rev. 1443; G. Teubner, "'Global Bukinawa": Legal Pluralism in
World Society' in G. Teubner (ed.), Global Law Without the State (1996).
41 D. Nelken and J. Feest (eds.), Adapting Legal Cultures (2001).
42 Y. Dezalay and B. Garth, Dealing in Virtue (1996); The Internationalization of
Palace Wars (2002)
43 K. Pistor and P.A. Wellons, The Role of Law and Legal Institutions in Asian
Economic Development 1960-1995 (1999).
44 These developments are discussed in Twining, 'Diffusion' (2005).

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some of these recent developments raise questions of immediate practicality:
policy makers in international financial institutions want to know why
'transplants' have regularly been perceived to have failed and what are the
conditions for and how to measure 'success' of reforms involving im-
portation or imposition of foreign models; local reformers want to know
what factors to take into account in choosing between alternative models
(when they are given a choice); judges want guidance on when it is
appropriate to treat foreign precedents and other sources as persuasive
authority;45 resisters want to learn about the most effective strategies and
techniques for lessening the impact, or of subverting or transforming
unwelcome foreign imports; legal educators need to decide how much they
should focus on local law and context and how far they should go in treating
law as a cosmopolitan discipline in an area of globalization; and so on.
These developments have put the assumptions in the naive model under
increasing strain. Not surprisingly, nearly all of the practical reform efforts
focus on municipal law. There have recently been some valuable particular
studies by socio-legal scholars.46 Some of the more theoretical work of
Teubner, Glenn, Chiba, and others ranges more widely. Individual assump-
tions have been challenged, but not in a systematic way. No alternative
framework has emerged.
To sum up: The literature on diffusion of law does not belong to a single
research tradition, but much of it fits within the paradigm of 'the Country
and Western tradition of comparative law'. It contains some valuable studies
and insights, but it is generally fragmented, unempirical, and unduly
influenced by a simplistic model of processes of diffusion.

DIFFUSION IN THE SOCIAL SCIENCES

1. Overviews: Rogers and Greenhalgh

As we have seen, the legal and social scientific literatures ha

ancestors, especially in the work of Tarde, Maine, and Weber. Dif
went out of fashion in anthropology, but the subject continue
significant focus of attention in sociology, of which rural soci

45 A.-M. Slaughter, 'A Typology of Transjudicial Communication' (1994) 29

University of Richmond Law Rev. 991; D. Fontana, 'Refined Comparativism in
Constitutional Law' (2001) 49 UCLA Law Rev. 539. On American state courts'
tendency to 'exclusivity of local sources' see Glenn, op. cit., n. 3, at p. 249, fn. 86.
46 For example, A. Chayes and A. Chayes, The New Sovereignty: Compliance with
International Regulatory Agreements (1995); Y. Dezalay and B. Garth, The
Internationalization of Palace Wars (2002); E.T. Jensen and T.C. Heller, Beyond
Common Knowledge: Empirical Approaches to the Rule of Law (2003); D. Galligan
and M. Kurkchiyan (eds.), Law and Informal Practices: The Post-Communist
Experience (2003).

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perhaps the most important. Whereas the early anthropologists had concen-
trated on the large-scale spatial diffusion of cultural traits and a search for
origins, differing among themselves about the extent of human inventiveness,
the sociologists focused more on process and agency, with particular emphasis
on the conditions of export and import of ideas and the channels of diffusion.
Diffusion research was spearheaded by studies focusing on innovations.47
Pioneering studies dealt with such matters as the diffusion of hybrid corn in
Iowa (Ryan and Gross),48 of telephones, automobiles, and bovine tuber-
culosis tests in Sweden (Hagerstrand),49 and medical innovation (Coleman et
al.).50 In addition to studying diffusion processes as such, many studies
focused on particular aspects such as change agents, innovativeness, net-
works, or the role of the media. What might be called the classic tradition in
sociology was ably synthesized by Everett Rogers in his Diffusion of
Innovations, which we will consider below.
Over time the field expanded into different areas, some of which took on a
life of their own. Within sociology, two areas that may be particularly
suggestive for law are the study of social movements and the diffusion of
innovations within and between organizations. Both of these moved beyond
the emphasis on individual decision-making that had characterized a great
deal of the early sociological research. However, the revival of interactionist
perspectives in some sub-disciplines has again focused detailed attention on
individual decisions and relations.51 Distinct or only loosely related research
traditions emerged over time in economics, anthropology, geography, and
public health, to name but a few. As with law, a recurrent theme running
through these loosely related bodies of research is that diffusion is often
treated as an aspect of some broader topic such as social change, evolution,
development, or globalization.
The social science literature is too vast and rich for it to be useful to try to
identify all of the studies that might be directly relevant to diffusion of law -
itself a quite diverse field. It is certainly beyond the ability of a single
scholar. Instead I shall focus on two works that taken together provide an

47 Everett Rogers's definition makes clear that this focus is not as narrow as it may
sound: 'An innovation is an idea, practice, or object perceived as new by an
individual or other unit of adoption.' E.M. Rogers, Diffusion of Innovations (1963,
4th edn., 1995) at 35. The early anthropological literature tended to contrast
diffusion and innovation; Rogers combines the two, no doubt deliberately, by
defining innovation from the standpoint of the recipient.
48 B. Ryan and N.C. Gross, 'The Diffusion of Hybrid Seed Corn in Two Iowa
Communities" (1943) 8 Rural Sociology 15.
49 T. Hagerstrand, The Propagation of Innovation Waves (1952); Innovation of
Diffusion as a Spatial Process, (1953, American edn. 1968).
50 J.S. Coleman, E. Katz, and H. Menzel, Medical Innovation: A Diffusion Study (1966).
51 On interactionist perspectives, see below, pp. 236-7.
52 In addition to the works by Rogers, Greenhalgh, and the overviews in IESBS, op. cit.,
n. 2, I have found the following works to be especially useful: D. Snow and R.D.
Benford, 'Alternative Types of Cross-national Diffusion in the Social Movement

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accessible overview of a large part of the main social science literature in
English: first, Everett Rogers, Diffusion of Innovations. This is still probably
the best point of entry for an outsider canvassing the literature. Second, a
recent systematic and broad literature survey by Greenhalgh and others, done
on behalf of the Department of Health in the United Kingdom.53 This built
on and extended Rogers's synthesis for a particular purpose.
Between them, Rogers and Greenhalgh canvass and synthesize vast areas
of mainstream diffusion research, but as we shall see there are other bodies
of work that they do not cover, including language, religion, sport, music,
political ideas, and, indeed, law. However, they do provide instructive
histories of loosely related research traditions, some useful warnings about
dead ends and false assumptions, a wealth of concrete examples, and some
questions, concepts, and hypotheses that are potentially transferable. I shall
explore some of the uses and limitations of this literature for legal studies of
diffusion, first by considering the application of some of the orthodox
sociological concepts to the story of the reception of foreign law in Turkey
and then by highlighting some of the main biases and tendencies in social
science diffusion research that need to be borne in mind by scholars
interested in law.

(a) Everett Rogers's Diffusion of Innovations

Everett M. Rogers started his career in rural sociology, but over time he
synthesized and generalized mainstream diffusion research. For nearly fifty
years Diffusion of Innovations has been recognized as the basic handbook of
the field. It is clearly written and illustrated with interesting examples drawn
from many areas. In the fourth edition, the first part provides a basic
theoretical framework (ch. 1), an historical overview of different research
traditions of diffusion research in Europe and North America (ch. 2), and a
critical assessment of the status of diffusion research in the early 1990s,
including indications of some of the biases and controversies in the field (ch.
3). The ensuing chapters deal in more detail with different aspects of
diffusion processes, including development of innovations, stages of
decision, rates of adoption, adopter categories, networks, and change agents.

Arena' in Social Movements in a Globalizing World, eds. D. della Porta, H. Kriesi,

and D. Rucht (1999); Hagerstrand, op. cit. (1953), n. 49; R. Heine-Geldem, T.
Hagerstrand, and E Katz, 'Diffusion' in the International Encyclopedia of the Social
Sciences 168-84 (1968); B.W. Arthur, 'Self-reinforcing Mechanisms in Economics'
in The Economy as an Evolving Complex System, eds. P.W. Anderson, K.J. Arrow,
and D. Pines (1988), and the economic literature on 'path dependency'. On
specialized literature surveys see below, pp. 222-3.
53 The Greenalgh report, and Greenhalgh summary, both op. cit., n. 6; compare the
related project involving a more specialized study of the social movement literature:
P. Bate, H. Bevan, and G. Robert, Towards a Million Change Agents: A Review of
the Social Movements Literature: Implications for Large Scale Change in the NHS
(2004).

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Most of the book focuses on relatively small-scale processes involving
decisions by individuals, but the 1995 edition also deals with innovation in
organizations and in third-world contexts. The final chapter on evaluation of
consequences may be of a special interest to socio-legal scholars interested
in the impact of attempted law reforms. Rogers does not cover all substantive
streams of diffusion research and by the 1990s his book was beginning to
appear rather old-fashioned. Nevertheless, it is still well worth reading as a
solid historical survey, synthesis, and critical overview of mainstream social
science research on diffusion.
Rogers states:
[A]lthough diffusion research began as a series of scientific enclaves, it has
emerged in recent years as a single, integrated body of concepts and
generalizations, even though the investigations are conducted by researchers in
different scientific disciplines.54

He lists ten different traditions of diffusion research in the social sciences,

with rural sociology, marketing and management, and communication
having the largest number of publications. Although he recognizes that even
within sociology diffusion studies have different research traditions, he felt
able to produce a synthesis of the major elements in the conceptual
framework of modem diffusion theory.
Rogers further states that '[d]iffusion is a special type of communication
concerned with the spread of messages that are perceived as new ideas.'55 He
continues:

The main elements in the diffusion of new ideas are: (1) an innovation [in the
eyes of the recipients] (2) which is communicated through certain channels (3)
over time, (4) among members of a social system56 ... Almost all of the new
ideas discussed in this book are technological innovations ... The charac-
teristics of an innovation, as perceived by the members of a social system,
determine its rate of adoption. Five attributes of innovations are (1) relative
advantage, (21 compatibility, (3) complexity, (4) trialability,5 and (5)
observability.5

Other key elements in Rogers' conceptual scheme are communication chan-

nels, innovation decisions, change agents, adoption, rejection, and conse-
quences. The meaning of these is fairly obvious. The main jargon terms used
by diffusion theorists refer to the extent to which change agents (exporters,
importers, and other participants in the process) have shared characteristics

54 Rogers, op. cit., n. 47, at p. 94.

55 id., at p. 35. Compare Glenn, op. cit., n. 3, ch. 1. What links diffusion of law to most,
but not quite all processes of diffusion is that it is concerned with the communication
of ideas.
56 On transnational diffusion, see below, p. 235.
57 'Trialability is the degree to which an innovation may be experimented with on a
limited basis [before adoption]' (Rogers, op. cit., n. 47, at p. 16). 'Observability is
the degree to which the results of an innovation are visible to others' (id.).
58 id., at pp. 35-6.

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(homophily) or different characteristics (heterophily).59 Rogers' basic con-
cepts at least give a flavour of one kind of approach that is quite
transferable.60
At a very general level, one might codify the basic methodology as
follows. In respect of any instance of diffusion one needs to ask a number of
basic questions: What were the conditions of the process, and the occasion
for its occurrence? What was diffused? Through what channel(s)?61 Who
were the main change agents? To what extent were the characteristics of the
change agents and their contexts similar or different? When and for how long
did the process occur? Why did it start at that particular time? What were the
main obstacles to change? How much did the object of diffusion change in
the process? What were the consequences of the process and what was the
degree of implementation, acceptance and use of the diffused objects over
time?62

(b) The Greenhalgh report

In 2002 my colleague, Trish Greenhalgh, and her associates undertook 'a

systematic review of the literature on the spread and sustainability of
innovations in health service delivery and organisation'.63 This project was
commissioned by the Department of Health as part of the modernization
agenda set out in the NHS plan (2000). The report, which runs to over 350
pages, is remarkably ambitious: it develops a new methodology for

59 Rogers defines these terms in respect of individuals:

Heterophily is the degree to which two or more individuals who interact are
different in certain attributes, such as beliefs, education, social status and the like.
The opposite of heterophily is homophily, the degree to which two or more
individuals who interact are similar in certain attributes (id., p. 36).
In so far as most reception decisions in law are to some extent collective, these terms
apply to the contexts of the exporters and importers as well as the characteristics of
the main change agents. On individualist biases in diffusion research, see below.
60 Other concepts that might be useful in legal diffusion studies include technology
clusters (innovations are often interdependent); reinvention (id., p. 174), 'the empty
vessels fallacy' (the assumption that inventions fill a vacuum, id., at pp. 240-2,
discussed in Twining 'Diffusion' (2005)), and the distinction between optional
innovation-decisions (individuals), collective innovation-decisions (consensual), and
authority innovation decisions (taken by those with power, status, or technical
expertise, id., pp. 36-37, 171-203, and see further below). A recent attempt at
synthesis of the more abstract concepts is B. Wejnert, 'Integrating Models of
Diffusion of Innovations: A Conceptual Framework' (2002) 28 Annual Rev. of
Sociology 297.
61 One of the most promising perspectives is 'path analysis' borrowed from economics,
see Arthur, op. cit., n. 52.
62 Further questions are suggested by the ideal type with variants set out in Table I
(above) and by the Greenhalgh report, op. cit., n. 6. On the application of Rogers's
basic conceptions to the reception of foreign law in Turkey, see below, pp. 223-8.
63 Greenhalgh report, id.

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systematic literature reviews; its spread is very broad; it includes a review of
more specialized reviews;64 it goes beyond simple survey to synthesize the
most significant data; it presents a unifying conceptual model and applies it
to four cases studies relating to health services.65 Although its main focus is
on health, this remarkable report deserves the attention of any scholar
interested in diffusion. Here, the only matter of regret is that it does not deal
directly with law.
The Greenhalgh report is organized around the following questions:

1. Innovations: what features (attributes) of innovations influence the rate

and extent of adoption?
2. Adopters and adoption: what is the nature of the adoption process - why
do some people adopt innovations more readily than others?
3. Communication and influence: what is the nature of the diffusion
process and, in particular, how does social influence promote th
adoption of innovations?
4. The inner context: what elements of the inner (organizational) contex
influence the adoption and assimilation of innovations in organization
5. The outer context: what elements of the outer (environmental) contex
including aspects of inter-organizational communication, influence th
adoption and assimilation of innovations in organizations?
6. Implementation and sustainability: what are the features of effectiv
strategies for implementing innovations in health service delivery an
organization and ensuring that they are sustained until they reach
genuine obsolescence? The report also presents a single model 'that ca
be used to explain (and to a limited extent) predict spread and sustain
ability of a particular innovation in a particular context'. It conclude
with recommendations for practice, policy, and future research.

The Greenhalgh report builds on Rogers but goes beyond him. Apart from
its focus on the health context, it diverges from Rogers in placing great
emphasis on internal and external organizational factors and on sustain
ability. In addition to being more recent, the analysis is more rigorous an
the resulting conceptual model is more sophisticated. Like most of the

64 Useful specialized surveys outside the particular tradition of rural sociology include
R. Ference, 'Diffusion Theory and Drug Use' (2001) 96 Addiction 165; P.W. Meye
et al., 'Implementation of Industrial Process Innovations' (1999) 16 J. of Product
Innovation Management 295; R. Pawson, 'Evidence-based policy: the promise of a
realist synthesis' (2002) 8 Evaluation 340; D. Strang and S.A. Soule, 'Diffusion
Organizations and Social Movements: From Hybrid Corn to Poison Pills' (1998) 24
Annual Rev. of Sociology 265; Snow and Benford, op. cit., n. 52; A.H. Van de Ven
'Central problems in the management of innovation' (1986) 32 Management Scienc
590; Wejnert, op. cit., n. 60; R. Wolfe, 'Organizational innovation: Review, critiqu
and suggested research directions' (1994) 31 J. Management Studies 404. Most of
these are discussed in the Greenhalgh report. See, also, IESBS entries, op. cit., n.
65 On the concept of 'research tradition', see n. 6 above.

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diffusion studies synthesized by Rogers, this survey focuses on small-scale
innovations, largely from a practical exporter perspective.66
Read together, Rogers and Greenhalgh illustrate the vastness and diversity
of the landscape of diffusion studies.67 Rogers claims to have synthesized
eleven kinds of research traditions in the study of diffusion of innovations,
with a catch-all residuary category that included political science,
agricultural economics, psychology, industrial engineering, and statistics.68
The Greenhalgh report covers literature in nearly twenty disciplines or sub-
disciplines; these are interpreted as belonging to thirteen distinct research
traditions potentially relevant to diffusion of innovations in health service
delivery and organization. Less than 25 per cent of these overlapped with
Rogers. Yet law did not feature in either analysis; nor did language spread,
sport, religion, or music. The International Encyclopedia of the Social and
Behavioral Sciences has several articles on diffusion in anthropology,
geography, and sociology with suggestive cross-references to a number of
adjacent enclaves, including technology transfer, culture contact, innovation,
sociology of fashion, and social influence. The question for any researcher
will be: which of this vast heritage should be treated as relevant to my
particular project on diffusion of law? No general answer can be given to this
question; but some guidance can be given first by looking at the relation
between the better legal literature and basic diffusion theory as exemplified
by Rogers; and second, by identifying certain trends and biases in social
science diffusion research that need to be borne in mind by those interested
in diffusion of law.

2. Reception offoreign law in Turkey: a social science perspective

Although derived from small-scale diffusion of technological innovations,

Rogers claims that his basic concepts are quite transferable. Let us consider
how they apply to Turkey.69

66 Greenhalgh, op. cit. (2004b), n. 6 provides a useful summary, but is not a substitute
for the full report.
67 When the first edition of Diffusion of Innovations was published Rogers found 405
publications on the topic; by 1971, this had increased to 1,500; the third edition
noted 3,085; by the time of the fourth edition (1995) the number was approaching
4,000 (Rogers, op. cit., n. 47, preface). Greenhalgh's research team found over 6,000
titles from nearly twenty specialist areas. Of these, they analysed 1,200 articles and
over 100 books that they thought might be potentially relevant to the study of the
spread and sustainability of innovations in health service delivery and organization.
68 Rogers, id., presents a useful table at pp. 42-3.
69 This analysis of the literature is based on the following sources: 'Symposium on the
Reception of Foreign Law in Turkey' (1956) 6 Annales de la FacultM de Droit
d'Istanbul; 'Symposium' (1957) 9 International Social Science B.; P. Stirling,
Turkish Village (1965); J. Starr and J. Pool, 'The Impact of a Legal Revolution in
Rural Turkey' (1974) 8 Law and Society Rev. 533; J. Starr, Dispute and Settlement
in Rural Turkey: An Ethnography of Law (1978); and Law as Metaphor: From

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Ataturk's reforms of 1926 in Turkey are mainly famous because this is a
perceived as a rather clear example of a large-scale 'voluntary' reception of
secular Western law into a largely Muslim society. It included an attempt to
use law to bring about radical social change in important areas of personal
law - the converse of the 'mirror' idea. In fact the literature makes clear that
Ataturk's reforms were but one large step in a process that began early in the
nineteenth century and continues to this day. Oriicii summarizes the
incremental and eclectic nature of the formal process of importation:
... the early efforts of reform rested solely on import from the major
continental jurisdictions as Turkey went through a process of total and global
modernization, westernization, secularization, democratization, and constitu-
tionalism. She thereby reshaped her private law, administrative law, the
constitution, criminal law, civil and criminal procedures, commercial law,
maritime law and the law of bankruptcy. Later, other laws such as labour law
and social security law were passed, again based on foreign models. Later still,
significant developments in the field of democracy and fundamental rights and
freedoms and review of constitutionality found their way into Turkish law, the
last by the 1961 Constitution. In the preparation of this Constitution wide use
was made of the West German and Italian models, the provisions on economic
development being inspired by the Indian model of 1949. The present
Constitution, which greatly increased the powers of the President, was inspired
by the 1958 French Constitution and the American Constitution. The impact of
the early reforms of the Republic was not just on the legal system but also on
the social system since they were accompanied and complemented by a series
of social reform laws aimed at changing people. These laws are still protected
by the 1982 Constitution. 'Modernity' was imported on a major scale.70

As Oricii makes clear, Turkey's interactions with foreign law do not form
a unilinear story of adoption and implementation of Ataturk's reforms.
Turkey has also acceded to a number of international conventions and in
recent years a new phase of eclectic, incremental reception has continued in
anticipation of accession to the EU and as a result of membership of WTO.
Other steps were taken to develop a free market economy and to facilitate
international trade.71 These recent developments are best treated as part of
another story.
Some of the recent measures have been a result of foreign pressure, but
since they involved an element of choice between models, Orficti suggests
that they represent a weak imposed reception.72 Overall, the eclecticism of
the Turkish approach has ensured that they are not beholden to or dominated

Islamic Courts to the Palace of Justice (1992); M. Zwalen, La Divorce en Turquie

(1981); P.J. Magnarella, 'Kanun ve Aile' [Law and Family] in The World and I (June
1988); E. Adal, Fundamentals of Turkish Private Law (1991); and. above all, the
writings of Esin Oruicii from 1987 to the present. Stirling, Starr, and Magnarella are
social scientists.

70 E. Oriicii, 'Turkey Facing the European Union - Old and New Harmonies' (2000) 25
European Law Rev. 57.
71 The changes made since 1963 are usefully surveyed in id. The extent is very striking.
72 Oriicil, op. cit., n. 3, at p. 46.

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by any single foreign 'parent' and that, for the most part, the reception of
foreign law has been genuinely voluntary:
Turkish law has been constructed through a succession of imposed receptions,
voluntary receptions, imitations and adjustments, the elements of chance,
choice, historical accident and the prestige of the competing legal models all
playing important roles.73

My purpose here is not to give another account of the Turkish 'reception',

but rather to see how far some available accounts fit the basics of Rogers'
synthesis of sociological diffusion analysis. Although no account of this
reception explicitly adopts this method of analysis, it is possible to piece
together from standard sources a profile of the process that answers nearly all
of the key questions, at least in general terms. In brief, the occasion for this
reception was a steady movement towards modernization and secularization
in an underdeveloped country the vast majority of whose population was
Muslim. Ataturk's revolution represented the culmination of a long process of
piecemeal reform; in turn the process continued and weathered resistance
largely because the legal system was dominated by an elite that was
committed to Ataturk's principles. The conditions for the reforms of 1926-9
included Ataturk's control of power, the existence of a small elite cadre of
lawyers trained in civil, especially Swiss, law, and, most important, a lengthy
prior process of piecemeal secularization of law and legal institutions dating
back to 1829 (the Tanzimat). Most commentators agree that these were a
necessary precondition for Ataturk's reforms, which were the most radical
and substantial step in a long process that is still continuing. The timing of this
phase is explained by Ataturk's accession to power (1923) and his programme
of reform. The timing of developments since the 1960s is closely connected to
Turkey's relations with the European Union and the international economy.
What was received? Standard accounts of Ataturk's reforms refer mainly
to a series of codes borrowed eclectically from several European civil law
countries with a minimum of formal change. But European, especially Swiss,
legal culture was also imported by key personnel who had been trained in
Europe and by the establishment of a new Law Faculty at Ankara,
deliberately based on European models, to train judges and lawyers in the
new law and its methodology. Almost as interesting is the fact that although
the official language of the legal system is Turkish (the codes were translated
into Turkish), unlike in some other receptions of civil law, there has been a
conscious attempt by the superior courts and in legal education to maintain
contact with the legal systems and literature of the exporting countries,
especially in respect of Turkish-Swiss private law.74
The main formal channel of initial reception was, first, the legislature,
which enacted the codes wholesale and the various officials who were

73 E. OrUicii, 'Comparatists and extraordinary places' in Legrand and Munday, op.

n. 25, at p. 478.
74 Oriicil, op. cit., n. 70, at pp. 93-94.

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involved in their implementation. Similarly the main change agents at the
start were a small legal elite of Ataturk's supporters led by the Minister of
Justice Mahmout Es'ad Bey, who had studied law in Lausanne.75
After 1926-9 the range of change agents expanded. Many commentators
emphasize the important role played by the courts (especially the High Court)
in implementing and interpreting the codes in ways that harmonized the
secular aspirations of the reforms with the realities of Turkish conditions and
attitudes.76 Others who played a key role in implementation included officials
concerned with performing civil marriage ceremonies and registration of
marriage (for example, as literacy spread, more and more headmen of villages
in rural areas were authorized to perform the civil ceremony);77 the professors
of law who were the main agents for importing and disseminating civilian
legal culture; some doctors, well aware of traditional sensibilities, helped the
process of acceptance by issuing medical certificates for marriage after
perfunctory or pro forma medical examinations;7" no doubt, the most
important agents of change in some fields were ordinary people.
Not surprisingly, family law has attracted much attention because the
importation of the Swiss Civil Code was an extreme example of differences
in culture and conditions between the exporters and the importers of personal
law, that is, of heterophily. The story of the marriage laws is of a slow trend
towards acceptance over more than half a century. Incentives to satisfy the
requirements of civil marriage included income tax and social benefits; for
example, during the Korean War, wives and widows of serving soldiers were
only able to claim pensions and other benefits on the production of a valid
marriage certificate. Not surprisingly, conformity with the marriage law
developed more quickly in urban areas than in rural ones, and the extent of
conformity correlated quite closely with levels of poverty, literacy, and
remoteness from urban centres. The figures about conformity relate to such
matters as how many people chose to go through a civil marriage ceremony
in addition to or instead of a religious one; the incidence of bigamous (that
is, polygynous) marriage; and the decline of abduction. More important still
are less easily quantified changes in attitudes, for example, in regard to
gender equality. Between 1933 and 1991 the Turkish parliament passed
seven amnesty laws that enabled the legitimization of children of consensual
unions that had not conformed to the requirements of the civil code.79
Starr's studies of Bodrum in the 1960s and her follow-up study in the
1980s confirm an overall picture of the gradual victory of this attempt to

75 For a rather clear example by the Minister presenting reception of codes as merely
technological, see the statement cited in Starr, op. cit., n. 69, at p. 16.
76 See, especially, Zwalen, op. cit., n. 69, Starr, id., and Oriicii, op. cit., n. 70.
77 Magnarella, op. cit., n. 69, at pp. 512-13.
78 id., at p. 513.
79 E. OrUcii, 'Diverse issues, continuing debates' in The International Survey of Family
Law, ed. A. Bainham (1994).

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create a secular system in an unpromising environment. There was some
adaptation and compromise, but overall we are presented with an unusual
story of traditional practices, customs, and attitudes gradually falling into
line with a relatively stable body of essentially alien law. This appears to
have been achieved largely by rejecting overt legal pluralism for a
centralized system that was legalistic, positivist, and 'top-down'. Similar
patterns appear in the larger picture. It would require a very detailed study of
the history of legal change in Turkey during the twentieth century to trace in
what respects the imported laws and ideas changed in their new
environment. What is striking to the outsider is the stability of the basic
radical scheme backed by constitutional imperatives and political will over a
long period of time.80
None of the accounts of the reception in Turkey that I have read conforms
exactly to the basics of this kind of social science diffusion analysis.
However, modem treatments of the famous 'reception' in Turkey and
Wieacker's classic work suggest that there is quite close affinity between
more sophisticated legal studies of reception and the mainstream
sociological literature on diffusion of innovations.81
The reasonable fit between Rogers's framework and the Turkish story
suggests that these particular concepts, developed mainly out of a synthesis
of small-scale technical examples can be applied at a general level to a large-
scale, ideologically driven reception involving a high degree of cultural

80 The constitutionality of the principal reform measures still cannot be challenged:

The Turkish ruling elite was interested in modernization and national integration.
The aim was to become European legally, socially and culturally. To this end,
eight principal reform laws established secular education and civil marriage,
adopted international numerals, the Turkish alphabet and the new calendar,
introduced the hat, closed the dervish convents, abolished certain titles and
prohibited the wearing of certain garments. The goal, which also has symbolic
value in Turkey, is still very much alive.
(Oriicii, op. cit., n. 70, at p. 70.)
81 Wieacker deals with the what, why, when, who, and how of the process and of its
impact, with sensitivity to the complexities. Provided that it is recognized that this is
primarily a work of intellectual history that says little about either doctrinal detail or
the law in action, his account could be translated without too much difficulty into the
conceptual framework of sociological analysis. For example, he gives a clear
account of the occasion and conditions for the reception, he identifies the main
change agents and their characteristics, he emphasizes the importance of Bologna
and later other centres of learning as vital channels of communication, he explains
why the main events in the story occurred when they did, he indicates in what
respects the received Roman law changed yet retained its basic identity, and he gives
a clear, if rather abstract account, of the impact of Roman law on modern civil law
systems. He does not give a very full account of the social and economic con-
sequences of the reception in the short and medium term; that was not part of his
aim. He avoids the pitfalls of the naive model of legal reception: '"Prolific
misunderstanding" is a typical, and perhaps a necessary feature in the process of
appropriating another civilization.' (Wieacker, op. cit. (1981), n. 12.)

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difference (that is, heterophily). In any study of diffusion processes it is
useful to ask questions about occasions, motives, agents, recipients,
pathways, obstacles, trialability, observability, impact, and so on.
This may be useful as a start, but can any more concrete guidance be
given to researchers embarking on some particular study of diffusion of legal
phenomena? My argument is that Rogers provides a broad framework of
enquiry; that the picture of the variety and complexity of diffusion processes
outlined in Table I sets a context in which to locate a particular enquiry; that
the existing legal literature provides a number of usable concepts and
distinctions; but that the social science literature represents a much more
developed and extensive heritage of perspectives, concepts, hypotheses,
methods, debates, and detailed case studies.

3. Trends and biases in social science diffusion research

What can students of diffusion of law learn from the social science
literature? It would be a mistake to treat either kind of enquiry as monol
The stories told by Rogers and Greenhalgh depict a series of loosely r
research traditions that involved differences in the objects studied, the sc
in respect of space and time, the focus of attention, and the assumpt
objectives, and perspectives of the researchers. Similarly, the histor
diffusion studies in law is of quite diverse enquiries in pursuit of v
concerns. In so far as there are uniformities, I have argued that many of
are based on a number of assumptions that taken together constitute a na
and simplistic model of the process of diffusion of law. These assump
are widespread, but not universal. Questioning each of them opens u
much more complex picture of the processes involved and many diff
potential lines of future research.
For these reasons, the question: 'What can legal scholars learn from
social science literature?' is too general. Socio-legal and other legal sch
will find different enclaves relevant to their particular interests. Howeve
striking feature of Rogers's and Greenhalgh's analyses is the unexp
connections, analogies, and generalizations that have emerged. Surpr
leaps are taken from hybrid corn to poison pills; from hard tomatoes to mo
maths; from family planning to transnational social movements
remarkable how Greenhalgh's team found research in nearly twenty diffe
specialist fields to be potentially relevant to specific practical problem
disseminating ideas about medical practices in the National Health Serv
England. Students of diffusion of law would will be well-advised to ob
general acquaintance with the landscape of diffusion research and the
before reaching conclusions about what might or might not be relevant to t
particular projects. The existence of a number of excellent literature surv
in addition to those of Rogers and Greenhalgh, makes this quite manageab

82 See nn. 6 and 17 above.

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Despite the dangers of generalizing across such a diverse landscape, it
may be helpful to point to some tendencies and biases in the heritage of the
mainstream social science literature that may be indicators of potential
relevance and irrelevance. Rogers in his critical appraisal of past work gives
some salutary warnings;83 Greenhalgh provides a model for assessing broad
sweeps of literature for a specific purpose; individual legal scholars will need
to be selective in determining what might be relevant and useful for their
purposes.

(a) Communication of ideas

What links the study of diffusion of law with the main body of social science
literature is that they are both concerned with the spread and communication
of ideas.84 When we talk of hybrid corn or mobile phones or Coca Cola or
wigs and gowns, we tend to think of material objects, but in fact the most
important element for students of diffusion is the ideas behind them and their
perceived meanings. Even in respect of migration of human beings it is not
so much their bodies as the beliefs, attitudes, values, and skills that make up
their cultures and traditions that are the main matters of interest to social
scientists.85 When we study diffusion of law we are also centrally concerned
with communication of ideas. This applies not only to codes, legal concepts,
theories, and controversies, but also to rituals, the design of buildings such as
courts and law schools, training methods, and dispute settlement procedures.
These may be visible, but it is the ideas behind them that give them meaning.
Glenn interprets legal tradition as a process of communication of informa-
tion.86 Luhmann and Teubner interpret legal systems as systems of
communication.87 The elusive term 'legal culture' applies to beliefs, con-
cepts, attitudes, and styles of thought.88 It can also be applied to practices

83 Indeed, there is a note of disillusion in Rogers's latest edition (op. cit., n. 47, p. 39):
This merger of diffusion researches has not been an unmixed blessing. Diffusion
studies now display a bland sameness, as they pursue a number of research issues
with rather stereotyped approaches.
My canvassing of recent literature suggests that Rogers's criticism was overstated.
84 id., p. 35.
85 Of course, it would be unnecessarily reductionist to restrict the objects of diffusion
to ideas: squirrels, weapons, drugs, unread law reports, and viruses have also been
diffused. Even in the life sciences it is genetic codes rather than their visible
embodiments that are the main concern of the scientists who study them.
86 Glenn, op. cit., n. 3, pp. 7-15.
87 For example, N. Luhmann, 'Operational Closure and Structural Coupling: The
Differentiation of the Legal System' (1992) 13 Cardozo Law Rev. 1419.
88 For an excellent discussion of 'legal culture', see J. Bell, French Legal Cultures
(2001). The coherence and utility of the concept has been disputed, see D. Nelken,
R. Cotterrell, and L. Friedman in Comparing Legal Cultures, ed. D. Nelken (1997).
This debate need not concern us here, except that Lawrence Friedman's distinction
between external or lay legal cultures (the attitudes, and so on, to law of non-
professionals) and internal legal cultures (the attitudes, and so on, of professionals or

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that need to be interpreted from an internal point of view as the embodiment
of ideas that give them meaning. This hermeneutic interpretation of practice
is now generally accepted in legal theory. So, as in social science, the study
of diffusion of law involves study of processes involving the communication
of ideas.

(b) Empiricism

Almost all social science diffusion research has been empirical; most of the
generalizations and theorizing of Rogers, Greenhalgh, and others has been
based on a range of detailed empirical studies. By contrast, almost all writing
about diffusion of law has been done in the library or the armchair rather
than the field. Even Wieacker's classic work has been criticized for saying
almost nothing about the law in action. Almost all of Alan Watson's
generalizations relate to formal or surface law or else are speculative
hypotheses. Glenn's magisterial overview of great legal traditions is based
mainly on sources that are themselves largely library-bound. The same may
be said of most comparative lawyers and legal theorists who have written
about transplants/reception/diffusion of law. There are a few exceptions:
some empirical research has been done on the impact of Ataturk's reforms,
mainly by social scientists.89 Some attempts to evaluate the actual effective-
ness or 'success' or impact of foreign-funded legal reform programmes have
been lambasted for their crudit .9 Early attempts at statistical comparative
law ended in disappointment.9I The efforts of Dezalay and Garth92 and
Pistor and Wellons93 are exceptions, but these too might be considered
somewhat impressionistic by hard-nosed social scientists.94 None of this is

regular participants in a legal system) is important in the study of diffusion of state

law (L. Friedman, Law and Society: An Introduction (1977) ch. 7). A familiar theme
in comparative law is that the 'mentality' of a legal elite - that is, aspects of the
internal legal culture - is often a crucial part of what is diffused. It may often be the
case that the exporting and importing internal legal cultures may be relatively similar
(homophilous) but the external legal culture of the importers may be very different.
89 See n. 69 above.
90 For example, the controversy over the relationship between legal families
national economic growth/performance, see R. la Porta et al., 'The quality
government' (1999) 15 J. of European Law and Economics 222.
91 J.H. Merryman, D. Clark, and L. Friedman, Law and Social Change in
Mediterranean Europe and Latin America: A Handbook of Social Indicators f
Comparative Study (1979). For a post-mortem, see J.H. Merryman, 'Law an
Development Memoirs II: SLADE' (2000) 48 Am. J. of Comparative Law 713.
92 Dezalay and Garth, op. cit., n. 42.
93 Pistor and Wellons, op. cit., n. 43.
94 Of course, there has been extensive socio-legal research on impact and complian
especially in relation to regulation, human rights, and some aspects of internation
law. For example, Chayes and Chayes, op. cit., n. 46. Although most of this work
not been concerned with processes of diffusion, it is relevant to some of the iss
concerning assessing impact.

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surprising, because most traditions of legal scholarship are similarly
unempirical.
Perhaps the most important general lesson to be learned from this foray
into social science literature is that understanding the processes of diffusion
is mainly a sociological enterprise, requiring detailed empirical research
about the behaviour, ideas, attitudes, and interactions of human actors in
particular contexts. Perhaps the best hope for advancing understanding
diffusion of law is to persuade our colleagues in social science that this is a
subject that deserves their attention.

(c) Innovation bias

The fact that much of the sociological tradition has attracted the label
'diffusion of innovations' is revealing. In order to build bridges between the
legal and social science literature, I have deliberately followed social
scientific usage in treating 'diffusion' as a generic term that includes such
ideas as imitation, spread, transposition, adoption, and reception. But
'diffusion' implies emanation from a single centre or source and to that
extent it has 'an export bias'. There is a similar tendency in Greenhalgh's
distinction between 'let it happen' (diffusion) and 'make it happen'
(dissemination).95
Rogers is careful to insist that 'innovation' refers to newness from the
viewpoint of recipients. In that sense the term is broader than invention. But
he also acknowledges that there was for a long time a tendency towards a
pro-innovation bias within this tradition: the initiative tended to lie with the
innovator-exporter; innovation was assumed to be desirable; resisters were
labelled as 'laggards';96 and 'the prevailing paradigm was gradually revealed
as being couched in a powerful meta-narrative of growth, productivity,
domination of the rural environment, and "new is better".'97 The early rural
research developed during a period of food shortage in the United States;
later the emphasis changed when agricultural overproduction was perceived
to be the main problem.98
Rogers acknowledges his own biases in his early research:
Back in 1954, one of the Iowa farmers that I personally interviewed for my
Ph.D. dissertation research rejected all of the chemical innovations that I was
then studying: weed sprays, cattle and hog feeds, chemical fertilizers, and
rodenticide. He insisted that his neighbors, who had adopted these chemicals,
were killing their songbirds and the earthworms in the soil. I had selected the
new farm ideas in my innovativeness scale on the advice of agricultural
experts at Iowa State University; I was measuring the best recommended
farming practice of that day. The organic farmer in my sample earned the

95 Greenhalgh report, op. cit., n. 6, p. 105.

96 Rogers, op. cit., n. 47, pp. 256-7.
97 Greenhalgh report, op. cit., n. 6, p. 66.
98 Rogers. op. cit., n. 47, pp. 60-1.

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lowest score on my innovativeness scale, and was categorized as a laggard.
In the forty years or so since this interview, several of the farm chemicals
that I studied have been banned because of their unhealthy effects on
humans.99

This story could serve as a parable for enthusiastic exporters and reformers
of law.

(d) Technological bias, top-down perspectives, and practical concerns

Closely connected to innovation bias is a technological bias. In my earlier

essay I suggested that one needs to differentiate between technological,
ideological, and expressive perspectives on law, although they are often
inter-related.100 One way of looking at laws is as problem-solving devices. In
some contexts in relation to some legal phenomena this makes good sense.
But to think of law solely or mainly as a form of technology is vulnerable to
the well-developed criticisms of naive instrumentalism and hyper-
rationalism.'01 In my view, much of that criticism is well taken, but there
is a danger of throwing the baby out with the bathwater if that leads to a
refusal ever to think in terms of purposes, effects, or functions of law.102 It is
not necessary to enter into these well-worn controversies here. Suffice to say,
as Rogers acknowledges, a great deal of the early diffusion research assumed
that the objects of diffusion are technological improvements and that it
exhibits a strong top-down, technocratic, sometimes evangelical bias.'03 This
is, of course, not true of all diffusion research as is illustrated by studies of
diffusion of epidemics, drugs, AIDS, and weaponry. The technological bias
may help to explain why studies of language, diasporas, and religions are
often not treated as part of the mainstream literature on diffusion.
Awareness of this bias may help to guard against two tendencies: first, the
assumption that all examples of diffusion of law fit neatly into a means-end,
problem-solving framework. Second, the assumption that all objects of
diffusion are desirable, progressive or innovative. Analogies from
epidemiology or language spread may be as apposite for particular legal
studies as analogies from transfer of technologies.

99 id., at p. 425. The Greenhalgh report (at pp. 66-9) tells a closely analogous story in
respect of the antibiotic tetracycline.
100 Twining, 'Diffusion' (2005) at pp. 25-9; I agree with David Nelken that it is a
mistake to draw sharp distinctions between technocratic, organic, and normative
perspectives: Nelken, 'Comparatists and Transferability' in Legrand and Munday,
op. cit., n. 25, ch. 12.
101 W. Twining and D. Miers, How To Do Things with Rules (4th edn., 1999) at 153-5.
For a recent general critique of instrumentalism, see J. Griffiths, 'The Social
Working of Legal Rules' (2003) 48 J. of Legal Pluralism 1.
102 On 'thin functionalism', see W. Twining, ' A Post-Westphalian Conception of Law'
(2003) 37 Law and Society Rev. 199, at 238-41.
103 Rogers, op. cit., n. 47, pp. 100-13. This is hardly surprising in respect of some areas
such as market research and some kinds of medical and agricultural research.

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The Greenhalgh report suggests that the pro-innovation bias is also linked
to a bias towards studying the visible and 'measuring the measurable':
This important bias means we know more about
* Innovations that have spread successfully than those that have not;
* Innovations that have spread rapidly than those that have spread more slowly;
* Innovations that spread from the centre;
* Adoption than non-adoption or rejection;
* Continued use than discontinuation;
* The fact of adoption than the reasons for it;
* Adoption by individuals than by teams or organizations.104

So far as law is concerned, technocratic and exporter biases are to be

found in the literature that treats diffusion of law as part of development,
modernization, and convergence. However, there is a discernible strand in
the legal literature that treats culture, tradition, local context, and resistance
sympathetically.'05 One obvious reason for this is that so much of diffusion
of state law is associated with colonialism and imperialism and neo-colonial
forms of capitalism. Much of modem scholarship has been strongly anti-
colonial and critical of ideas associated with development, modernization,
and reform that are driven by various kinds of free-market ideology.
Furthermore, James Whitman has commented on a 'neo-Romantic Turn' in
comparative law, exemplified by critics of convergence and transplantation
who stress the intimate relations between law and culture, tradition, or local
context.'06 Obviously these ideological assumptions cut both ways. But it is
the technocrats and the modernizers who claim to be more practical.

(e) Scale and geographical spread

Rogers defines diffusion in terms of communication between members of

and within a social system.'07 Much of the sociological literature analysed
by Rogers has been concerned with detailed examination of the pathways
and processes of diffusion of quite limited particular products, techniques, or
ideas.'08 Similarly Greenhalgh's survey mainly relates to relatively discrete
innovations within a single country.109 On the other hand, the bulk of the

104 Greenhalgh report, op. cit., n. 6, p. 73.

105 Resistance is, of course, a powerful theme in the historiography of colonialism. On
law see, for example, M. Chanock, Law, Custom and Social Order: The Colonial
Experience in Malawi and Zambia (1985) and L. Benton, Law and Colonial
Cultures: Legal Regimes in World History (2002).
106 J. Whitman in Legrand and Munday, op. cit., n. 25, ch. 10.
107 Rogers, op. cit., n. 47, at pp. 5, 10, and 24. But he also emphasizes that 'One of the
most distinctive problems in the diffusion of innovations is that the participants are
usually quite heterophilous' (p. 19, original italics).
108 id.
109 However, in a related NHS project, Bate et al., op. cit., n. 53, undertook a special
survey of the literature about social movements because it 'offers a new perspective
on large-scale systems change' (Executive Summary, p. 1, italics added).

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legal literature has focused on relatively large-scale transnational receptions:
the reception of Roman law in medieval Europe, 'the spread of the common
law', the importation of a series of codes or at least of substantial fields of
law such as insolvency or intellectual property.
It might be objected that to link Rogers and Greenhalgh's accounts to
diffusion of law ignores the distinction between small-scale and large-scale
diffusion. This might partly explain the lack of interdisciplinary contact.
There is some force in this point, but its significance can be exaggerated, for
several reasons.
First, we need to distinguish between extent of geographical spread and the
scale of the objects that were diffused. Historically, early diffusionism in
anthropology was concerned with global diffusion, but often with quite
specific cultural traits. Studies of diasporas, language spread, and diffusion of
sports and religion are well-documented transnational examples that vary in
scale. Rogers himself deals with some examples of diffusion transnationally
and in developing countries, both of discrete objects and of more extensive
ones, such as epidemics.110 Moreover, much transnational diffusion involves
elites as change agents, such as doctors, engineers, lawyers, who could be said
to belong to transnational sub-cultures."'111 Thus there are plenty of examples,
besides law, that involve large-scale transnational diffusion.
Secondly, Rogers criticizes the neglect of 'technology clusters' in
traditional diffusion studies:112

Past diffusion research has generally investigated each innovation as if it was

independent from other innovations. This is a dubious assumption, in that the
adopter's experience with one innovation obviously influences that indivi-
dual's perception of the next innovation to diffuse through the individual's
system. In reality a set of innovations diffusing about the same time in a
system are interdependent. It is much simpler for diffusion scholars to
investigate the spread of each innovation as an independent event, but this is a
distortion of reality.113

110 Rogers, op. cit., n. 47, pp. 125-9; the Greenhalgh report has a short section on the
developing world (pp. 75-8). Other writers have placed more emphasis on this. For
example:
Seen as integral to economic development, diffusion of innovations in Third
World settings has received much attention. Examples include improving
agricultural production and living conditions; generating entrepreneurial activity
and related employment; promoting family planning, and improving infrastructure
... More broadly, development itself has been treated as a diffusion process.
(Brown, op. cit., n. 2, at p. 3680.)
111 In Turkey, for example, the elite lawyers involved in Ataturk's reforms could be
interpreted as homophilous importers from Europe, but heterophilous exporters of
law to the country at large, especially rural areas.
112 'A technology cluster consists of one or more distinguishable elements of
technology that are perceived as being closely interrelated' (Rogers, op. cit., n.
47, p. 15). Rogers emphasizes the importance of the adopter's perceptions and links
this interestingly to positioning in marketing.
113 id.

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Rogers regrets the absence of research in this area.114 An important issue
in law is how far individual concepts or mechanisms, such as the trust or the
guilty plea, can be studied or imported as discrete items separated from the
legal system or legal culture in which they are embedded. 15 The extent to
which law can be conceived as 'systematic' is a recurrent issue in legal
theory."" These are examples of topics in which the experience of law could
be of particular interest to social scientists.
Third, even more important than the point about the interdependence of
technology clusters or the elements of legal systems, is the fact that diffusion
of law can be seen as part of some more general process: religious law spreads
as part of the spread of religion; 'colonial law' has often just been a natural
incident of colonialism; the spread and survival of common law has also been
intimately linked with the spread and power of the English language; legal
ideas are part of the baggage of colonists, emigr6s and refugees.
Fourth, most social diffusion research focuses on processes within a single
society or social system. In law, reception, transplantation, transposition are
often assumed to be transnational - for understandable reasons. However,
diffusion of law does take place within countries and social systems, although
it is not often perceived as such. For example, the legal history of the United
States is replete with examples of cross-cultural, inter-state, and nation-wide
interaction and influence. In respect of municipal law, the citation of
precedents from other states, the movement to harmonize state laws through
the American Law Institute and the Commissioners for Uniform State Laws,
and the story of the spread of the Langdell case method of teaching are
familiar examples. Less obvious, perhaps, and often less visible are informal
interactions and influences between non-state law and municipal law, or
between different non-state legal orders and traditions within the American
'melting pot'.'17 As Alan Watson might have said, imitation is the main
engine of legal change within the United States at all levels of ordering. Of
course, many of these phenomena have been extensively studied, but rarely
from a specifically diffusion perspective. If legal diffusion studies are to
become more empirical, they will need to focus on actual behaviours on the
ground. And one can study diffusion of law on one's own doorstep.
Finally, and perhaps most important, if one is interested in how diffusion
works in practice, one is inevitably concerned with agency and the behaviour
and perceptions of actual human beings. One of the most important

114 id., p. 235.

115 This is central theme of Allison, op. cit., n. 28.
116 A famous starting-point is Brian Simpson's statement that 'the common law is more a
muddle than a system'. This challenges theories that conceive of law in terms of
systems of rules (Hart), or of norms (Kelsen), or of communications (autopoiesis).
A.W.B. Simpson, 'The Common Law and Legal Theory' in Legal Theory and Common
Law, ed. W. Twining (1986) at 24. Compare C. Sampford, The Disorder ofLaw (1989).
117 For example, J. Walker, 'The diffusion of innovations among the American states'
(1969) 63 Am. Political Science Rev. 880.

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developments in diffusion research has been the growth in importance of
interactionist perspectives, exemplified by the work of Goffman, Sachs,
Molotch, and Latour.'18 This leads to a very detailed focus on the behaviour,
beliefs and perceptions of individuals - maybe a few, maybe thousands - and
their interactions in specific contexts at specific moments of time, even in
respect of large-scale geographically dispersed diffusion.119 This kind of
perspective is so far largely absent from studies of legal diffusion.

(f) Individuals, organizations, social movements, governments and legal

subjects

Early studies tended to focus on the dispersal of cultural traits or other

relatively small-scale objects of diffusion. The classic research in rural
sociology emphasized agency and tended to focus on individual actors, their
characteristics, and their decisions. Although the focus of diffusion research
spread out, especially to organizations and social movements, to some extent
an individualist bias continued and has been the subject of regular criticism.120
Within the individualist tradition, Rogers differentiated between four
types of innovation decisions:
(1) optional innovation-decisions, choices made by an individual independent
of the decisions of other members of the system to adopt or reject an
innovation, (2) collective innovation-decisions, choices made by consensus
among members of the system, and (3) authority innovation-decisions, choices
made by relatively few individuals in a system who possess power, status, or
technical expertise. A fourth category consists of a sequential combination of
two or more of these types of innovation-decisions: contingent innovation-
decisions are choices to adopt or reject that are made only after a prior
innovation-decision. 121

All of these treat the individual as the unit of analysis and stress decisions by
potential adopters. This individualist bias came under criticism for not giving

118 Symbolic interactionism and ethnomethodology have had some influence on the
sociology of law, though not in a sustained way in relation to diffusion (see R.
Banaker and M. Travers (eds.), An Introduction to Law and Social Theory (2002) s.
4: Interpretive Approaches). Relevant works include E. Goffman, Interaction Ritual:
Essays on Face to Face Behavior (1967); A.C. Kerckhoff and K.W. Back, The June
Bug: A Study in Hysterical Contagion (1968); B. Latour, Aramis (1996); H. Molotch,
Where Stuff Comes From: How Toasters, Toilets, Cars, Computers and Many Other
Things Come to be as They Are (2003). On early conversation analysis, which was
closely related to socio-legal studies, see the useful reader by R. Turner,
Ethnomethodology (1974).
119 Significantly, Bate et al.'s report (op. cit., n. 53) was entitled Towards a Million
Change Agents. The Greenhalgh report naturally deals with interaction (for example,
at pp. 279-81), but has few references to symbolic interactionism or ethno-
methodology.
120 Rogers, op. cit., n. 47, pp. 114-27.
121 id., p. 37.

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sufficient emphasis to structure, context or collective action.122 There was
also a bias towards attributing success or failure of an innovation to
individuals within a system rather than to failures of the system.'23
Connected with this 'individual-blame bias' was a tendency of the early
models to adopt an exporter standpoint, focusing on the characteristics and
attitudes of individual importers or resisters more than on the exporters
themselves and blaming individual laggards and late adopters.124
At first sight, such individualist biases are not something that one would
associate with classic studies of diffusion of law. Only a few individuals
(mainly leaders and jurists) feature in the reception stories of Wieacker,
Watson, and the Turkish reception(s). If anything, the biases are in other
directions, reflecting mixtures of the assumptions underlying the naive
model of reception: the perspectives are macro, the focus is on the objects of
reception (were they accepted, rejected, changed?), the emphasis is on
formal change, the main agents are governments or international institutions
(UN agencies, the EU, World Bank or IMF), and so on.125 Perhaps the most
striking aspect of the literature is that it very rarely tells us in any detail
about actual impact on the ground.
Perhaps the most important lesson that students of diffusion of law can
learn from the social science literature is that the processes of diffusion
involve actual people perceiving, deciding, and acting. To understand these
processes requires detailed empirical research based on the range of
available frameworks and methods developed in sociology and anthrop-
ology. Of course, the behaviour of individual actors needs to be viewed in
the context of broader structures, cultures, and so on. Of course, in some
receptions the most important decisions may be taken by a few key
individuals, such as judges, lawmakers or tycoons. But on a broad view of
law and of its diffusion, very often both the operation of the processes and
their consequences will turn on choices and actions of hundreds, thousands
or even millions of actors, who may be consumers, victims, avoiders,
evaders, or exploiters of law.126 Legal scholarship has tended to neglect
such 'bottom-up' perspectives.'27

122 This is reminiscent of Marxian criticisms of symbolic interactionists that they

assumed a liberal individualist picture of society and so ignored 'the structured
inequalities in power and interest which underpin the processes whereby laws are
created and enforced'. (I. Taylor, P. Walton, and J. Young, The New Criminology
(1973) 168.)
123 id., p. 117.
124 id.
125 Again, Patrick Glenn (op. cit., n. 3) is an exception to these generalizations: his
perspective is very broad, but he treats informal diffusion of law involving thousands
or millions of individuals as historically more significant than formal 'receptions'.
126 Twining, op. cit., n. 102, pp. 246-8 and, more generally, Twining, op. cit (2000b),
n. 1, ch. 5.
127 B. Tamanaha, A General Jurisprudence of Law and Society (2001) 236-40. A
notable exception is John Griffiths' studies of the influence of 'the shop floor rules

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It is perhaps ironic that in recent years it has been commercial law,
broadly conceived, that has received the greatest attention in respect of
diffusion. This has typically happened in the context of importing or
imposing foreign or transnational law as part of structural adjustment or
transition to a free-market economy. The impact of commercial law reform
can hardly be assessed without reference to those who make more or less or
no use of it, by forming companies, entering contracts, evading copyright,
and so on. 'Top-down' accounts of commercial law reform can tell us little
or nothing about the impact on the behaviour and situation of those whom it
is meant to influence or serve.128

(g) Diffusion of diffusion studies. a health warning'29

The social science diffusion literature seen from a distance may seem like a
mass of individual studies in many quite different areas with a few oases of
synthesis. One of the central issues of diffusion research is how far concepts,
hypotheses and generalizations developed in one area of enquiry are trans-
ferable to other contexts. Can there be an overarching theory of diffusion?
Rogers' bold attempts at synthesis suggest that some of the basic concepts
of diffusion theory are highly transferable. The reasonable fit between
Rogers' framework and the Turkish story suggests that these particular
concepts, developed mainly out of a synthesis of small-scale technical
examples, can be applied at a general level to a large scale, ideologically-
driven transnational reception involving a high degree of cultural difference.
Moreover, as we have seen, the literature on diffusion is full of unexpected
analogies and juxtapositions. The slow adoption of hybrid corn in Iowa in
the 1940s may seem a far cry from the 'modernization' of commercial law in
Uganda in the 1990s or the implementation of Swiss marriage law in Turkey
over many years. But up to a point even these analogies are suggestive: a
top-down perspective, modernizing enthusiasm, a technological attitude,
denigration of resistance ('laggards', 'traditionalists'), and a general pro-
innovation bias. Again, the main link is communication of ideas.
Suggestive analogies are one thing; a grand synthesizing theory is
another. The Greenhalgh report quite rightly warns against a bias in favour
of transferability and concludes with the following warning:
It is important to be aware that the ubiquitously cited 'landmark' studies of
diffusion of innovations [Tarde, Ryan and Gross, Coleman et al.], though
outstanding in their own context were the product of particular social and

that doctors follow' on the development of national policies and legislation on

euthanasia and decisions affecting the terminally ill in the Netherlands: Griffiths, op.
cit., n. 101, at pp. 38-55 and his 'Self-regulation by the Dutch medical profession of
medical behavior that potentially shortens life' in Regulating Morality, eds. H.
Krabbenbaum and H. M. ten Napel (2000).
128 Twining, op. cit., n. 27, pp. 26-8.
129 On other biases, see Greenhalgh report, op. cit., n. 6, at pp. 73-5.

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intellectual trends. Because they focused exclusively on individuals and
relatively fixed innovations, and because they were characterized by an
extraordinary low level of complexity, their findings have limited
transferability to the spread of innovations in a 21st century health service.
Hence, while they set the stage for this review, they inform our own
conclusions to a limited extent.

Obviously similar considerations apply in legal contexts. After

considering a further range of research traditions, Greenhalgh usefully
suggests a framework for evaluating 'transferability of innovations' based on
the work of Gomm, Pawson, and Tilley on 'realistic evaluation'.131 The
applicability of this template to different kinds of legal 'innovation' also
requires cautious appraisal.

CONCLUSIONS

1. Legal and social scientific studies of diffusion grew out of

beginnings in cultural anthropology, but they have largely los
with each other. Leading accounts of 'reception' or 'transplanta
law make scarcely any reference to social science literature on diff
which in turn has largely ignored law. The purpose of this ess
explore the implications of this remarkable gap.
2. Diffusion of law refers to the processes by which legal or
traditions are influenced by other legal orders and traditions
pervasive aspect of interlegality at all levels of law and legal orderi
is considered by some leading scholars to be a central asp
comparative law.
3. For many purposes, diffusion is not a natural or a useful org
category or focus of attention. Diffusion of law is often studi
aspect of some other subject such as colonization, imperial rule,
development, transition to a capitalist economy, or a detailed hi
local law. There are, however, occasions when it makes sense to
on processes of diffusion as such.
4. The literature on diffusion of law does not belong to a single
tradition, but much of it fits within the paradigm of 'the Coun
Western tradition of comparative law'. It contains some valuable
and insights, but it is generally fragmented, unempirical, and
influenced by a simplistic model of processes of diffusion.
5. There is a vast and varied literature on diffusion in the social s

130 id., pp. 74-5; compare Wejnert, op. cit., n. 60 who concludes that future
research needs to 'incorporate more fully (a) the interactive character of
variables; (b) the gating function of diffusion variables, and (c) effects of an
characteristics on the temporal rate of diffusion.'
131 See R. Pawson and N. Tilley, Realistic Evaluation (1997), Pawson, op. c
and R. Gomm (ed.), Using evidence in health and social care (2000) at 1

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representing several loosely related research traditions, each with its
own intellectual history and biases with occasional pockets of synthesis.
This heritage of literature can provide us with some basic tools for
analysing particular examples of diffusion processes and a vast treasure
house of concepts, hypotheses, debates, concrete examples, and
suggestive, sometimes unexpected, analogies that could help to guide,
fertilize, and illuminate particular lines of research.
6. What links these bodies of literature is that they are concerned with the
spread and communication of ideas across space and time.
7. Law is not one thing. Processes of diffusion can vary in respect of
originating sources, scale, levels, pathways, objects of diffusion,
changes in the objects, agents, degrees of formality, timing, relation to
pre-existing law, degree of penetration, and consequences. Diffusion of
law refers to a vast and complex range of phenomena, which can be
studied from a variety of standpoints for a variety of purposes. It is
accordingly difficult to give general answers to such questions as: what
can students of legal diffusion learn from the social science literature?
8. This essay considers in particular two attempts, by Rogers in 1995 and
Greenhalgh et al. in 2004, to survey and to synthesize the literature on
diffusion of innovations (viewed as ideas that are new to the recipients
or adopters). There are certain trends and biases in this literature of
which researchers need to be aware, such as innovation bias,
technological orientation, individual bias, and variations in scale and
geographical spread.
9. Important issues arise about the transferability of concepts, models, and
hypotheses generated largely from small-scale studies of discrete objects
to different contexts and phenomena (to what extent can ideas about
diffusion appropriately be diffused?). Nevertheless, some of the more
abstract concepts and issues are highly transferable as is illustrated by
the application of Rogers's basic framework to the story of the reception
of foreign law in Turkey as part of Ataturk's reforms and their impact.
10. In addition to macroscopic studies of large-scale receptions, there is a
need for middle-order and microscopic analyses of particular examples
of diffusion, involving detailed focus on interactions and perceptions of
actors, for which interactionist perspectives may be more appropriate.
11. There are further bodies of literature on the spread of languages, sport,
music, religion, political ideas, and so on that could also be relevant to
research on diffusion of law, but which fall outside the scope of this
essay.
12. Nearly all of the social science literature is based on detailed empirical
research. Lack of a sustained empirical base is the Achilles heel of
comparative law. Renewing this link between two bodies of literature
offers the best hope of developing a better empirical base for our under-
standing of processes of diffusion of law and hence of comparative law.

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