Account – U Kischel, “Theorising legal transplants?”, BACL Seminar, Preston, 3rd September 2019

At the BACL Seminar in Preston on 3rd September 2019, Professor Uwe Kischel explained his approach to legal transplants. Professor Kischel is the Mercator Chair of Public Law, European Law and Comparative Law at the University of Greifswald (Germany) and the author of Comparative law (OUP 2019). Here is an account of his engaging presentation on the topic.

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In his works, Professor Watson analysed a series of highly interesting historical transplants but refused to generalise them into some form of classification or to label (some of) them as typical. He did not propose a general grand theory of transplants (including for instance conditions, scope, exceptions etc.). And indeed, legal transplants do not lend themselves to theorizing. Some transplants seem to be working well, some less so. Often, it is not even possible to assess if they are working well, and it seems very problematic to predict what the results of any proposed transplant will be.

Here are three proposals to try to map some key phenomena linked to transplants: 1) they are ubiquitous; 2) they are complicated; 3) it is possible to approach them in an “easy” fashion.

1           Transplants are ubiquitous

A straightforward statement about transplants is that examples of transplants abound: emissions trading, class actions, the concept of human dignity in human rights law, and even adversarial systems in criminal justice, to name just a few, have travelled from one system to others. Entire periods of time and groups of States were heavily affected, as for instance in the case of Eastern Europa after 1989. Entire academic associations (like the International Association of Constitutional Law) or international projects (like the Principles of European Contract Law) are working on legal transfers.

2          Transplants are complicated

More complicated problems are related to pretty much everything else connected to transplants. To start with, how can we identify what transplants actually are, and whether they are different form foreign legal influence in general. What are the conditions for legal transplants, which factors are favourable to them?  Are geographical or ideological affinities needed between the donor and the receiving systems? Can we transplant something across different legal families? Why would we do that? Moreover, the content of the transplant can cause questions to arise: Do we need to focus on the wording of a rule or on the judicial and academic development of that rule? In addition, the criteria for assessing the “success” or the “failure” of a transplant can be debated: economic or social criteria may be relevant (or not); practical implementation may matter (or not); changes in  the rule may be interpreted as a success (to accommodate a foreign idea, concept, institution, rule etc. to the receiving legal culture) or as a failure (or a denaturation of the original idea, concept, institution, rule as developed in the exporting system). Finally, would it be possible to develop typologies and categories of transplants? And if so, with which objective in mind?

3          Adopting an easy approach

Grand theory and cooking recipe

All these complicated questions are real, and there are no definite answers. That is a problem only if one insists on finding a grand theory allowing us to predict exactly what will happen with transplants when they migrate from one legal system to another one. Such an all-encompassing theory, however, is not possible, and nobody seems to ever seriously have tried to develop one. There simply are no “cooking recipes” in legal transplants any more than in comparative law methodology in general.

One overarching factor: context

Rather than through grand theories, answers must be found hermeneutically, on a case by case basis. This requires thorough knowledge of the entire legal systems involved, gained by a slow process of getting to know ever better the donor and recipient legal systems. In other words, it all comes down to one factor: context in all its legal and non-legal dimensions. So, for instance, one might need to look for the rules, institutions or traditions of the exporter and the importer. One might also need to take into account the type of work ethics or the degree of individualism in a given system. In the end, one cannot take the context away when analysing transplants. At the same time, one should not imply that all other comparatists ignore context by saying that the necessary contextual differences between the exporter and the importer make transplants impossible because the transplant will always take a different meaning in the importing system compared to the one it has in the exporting system. The overarching importance of context leads to a simple insight: When rules are transplanted, the change of context will necessarily change these rules, and the direction and intensity of change again depend on the context to which the rules were originally linked, and the different context in which they now work.  For instance, if the institution of the jury is transplanted from one system to another, one should be aware that the common law idea of a jury is linked to a certain distrust  of professional judges, and to a certain belief in the wisdom of common people, which will not necessarily be found in the receiving systems.

Lessons

This contextual view cannot only provide answers to the complicated questions mentioned before, it also leads to some easy lessons. To mention a few:

  1. Transferred rules always change and adapt.
  2. To map and predict these changes, one has to intimately understand both donor and recipient systems, including their context; but foretelling the results will always remain difficult.
  3. Transplants always include decisions – not necessarily conscious ones – on how much context to transfer along.
  4. Transplants are not much different from any other new idea for a rule, but transplants give a false hope of predictability.

 

Posted by Dr Y Marique (Essex, FÖV and BACL Treasury).

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