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Understanding Legal Transplants Theory

The document discusses Alan Watson's theory of "legal transplants", the idea that laws are primarily adopted from other societies rather than developing organically within a given society. It presents Watson's 1974 work "Legal Transplants: an approach to Comparative Law" which put forth this thesis. The document then outlines some of Watson's examples of legal transplants, particularly the influence of Roman written law. It also discusses some of the criticism and developments around Watson's theory, such as whether it fully accounts for the influence of social and economic pressures on legal development.

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Stefan Mladenoski
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65 views17 pages

Understanding Legal Transplants Theory

The document discusses Alan Watson's theory of "legal transplants", the idea that laws are primarily adopted from other societies rather than developing organically within a given society. It presents Watson's 1974 work "Legal Transplants: an approach to Comparative Law" which put forth this thesis. The document then outlines some of Watson's examples of legal transplants, particularly the influence of Roman written law. It also discusses some of the criticism and developments around Watson's theory, such as whether it fully accounts for the influence of social and economic pressures on legal development.

Uploaded by

Stefan Mladenoski
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PPTX, PDF, TXT or read online on Scribd

The Legal Transplants

The Legal
Alan Watson
Transplants

Alan [Link] (1933-2018)


(Scottish legal historian)

Authored almost 150 books and


articles

1974 “Legal Transplants: an


approach to Comparative Law”
“Legal Transplants: an approach to Comparative Law“

- Thesis: No necessary connection between laws and the


society in which they operate

- Laws are primarily taken from other societies, either modern or


ancient ones

- A challenge to the common mentality of a connection


between laws and its jurisdiction

- Results: a surprising longevity and acceptance of Law in


foreign conditions
Watson’s example of Legal Transplants
Roman “Texts of Emperor
Up-to-date Justinian”
works from (Roman written Law)
Belgium
Institutes of the Unwritten local customs of
Civil Law Belgium

Transplant from ROMAN WRITTEN LAW


significantly more relevant
The Impact
(general criticism and developments)
Society and Legal change
Lack between the rules and the
Longevity of legal rules needs of society

HOW ? Legal scaffolding


(elaborate systems of modification to support existing rules and
make them workable)

Studying law in Borrowing


times of great
stress
Critics to Society and Legal change
Alan’s theory unconvincing

economic pressures

Law is ”confused” due to

social pressures

is always borrowed with


the use of decision making
Milton Friedman
Law questions
HOW ?

Responsiveness Comprehensiveness Comprehensibility


The more it More answers it gives Understandable
adapts the better to law problems the by the one
better affected
Other Works
The nature of law
(1971)

Law is always created by


borrowing

The making of Civil Law Forces that control legal change


(1981)

Traditions
Differentiation of Legal Rules
Civil Law countries Institutions
Structures
A general view
(thoughts and ideas of other authors)
The triumph of Legal Transplants
Understanding Corporate Law
As the study of legal transplants

As the borrowing of ideas between legal


cultures and/or systems
IN FAVOUR AGAINST

Hoeflich’s careful and scholar His idea similar to that of Ewald


review is important as perhaps was later seen as a fairly
the best in explaining Alan’s dominant mode of criticism
thinking

Michael Hoeflich Khan Freund

Wise provided an important Recalling that the Istanbul conference of


discussion on Alan’s work the International Committee of
Corporate Law (1955)

Edward Wise
CJ Hamson
Prehistory of Legal Transplants
Savigny's theory
(Based on countries custom and
traditional values)

Transplantation of Legal Systems

Walton’s experience and studies


of codification
The Critics
(general criticism and developments)
Introduction to Pierre Legrand

Pierre Legrand
(Law professor)

“Legal transplants are impossible”

Alan Watson
vs
Pierre Legrand
Example

Is the tomato plant the same plant as it was under my care?


To conclude…

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