Comparative Law, Transplants, and Receptions

Abstract

The comparative study of transplants and receptions investigates the patterns of change triggered by contacts among laws and legal cultures. The study of legal transfers offers considerable intellectual rewards. It shows that the law is a complex phenomenon and corrects simplistic views regarding what law is and how it develops. Furthermore, it highlights how the language of the law is transformed as a consequence of such a dynamic through translations and adaptations. The spread of legal institutions, ideals, ideologies, doctrines, rules, and so on, is often in the hands of professional elites. The study of transplants and receptions demonstrates that the knowledge and standing of those elites comes from interactions between the local and non-local dimensions of the law. This picture is true in Berlin, in New York, in London, and in Lima, but it is also true in less cosmopolitan environments. The study of legal transplants has sometimes been accused of embracing a conservative orientation. Yet, this study simply subjects the law’s pretensions concerning its origins and ends to critical analysis. Doing so is not inconsistent with advancing progressive goals at all; in fact, it may be vital to a progressive agenda.

Corporate Crime Conundrums and Globalization

“…However, it is generally assumed that when prestige is the leading motivation, local actors at the receiving end manage the process of change, whereas the originators may be unaware of their impact elsewhere (Graziadei, 2019). This does not fit with my observations.…”

“…In what follows, I analyze the transplant of American anti-corruption law to the Netherlands, guided by four questions relating to the transfer process. These questions are an amalgamation of key questions proposed by various authors (Dezalay & Garth, The Import and Export of Law and Legal Institutions: international strategies in national palace Wars, 2001;Miller, 2003;Dolidze, 2015;Cohn, 2010;Berkowitz, Pistor, & Richard, 2003;Graziadei, 2019) for analyses of transfer processes: was the change real or only a façade? ; was the transfer deliberate or coincidental?…”

“…Although the terms transplant or transfer may indicate a process that happens on purpose, this is not always the case in legal transplants. Historically, the migration of a population or a foreign presence in a country have been at the root of legal transfers, and more recently, the field of comparative law and the production of uniform or harmonized legal norms at the international level have caused legal transplants (Graziadei, 2019). To answer the sub research question asking for an explanation of the change in enforcement levels in the Netherlands, it is relevant to investigate to what extent the transplant of American law was deliberate, on both sides.…”

Japan as a Source of Legal Ideas: A View from the Mekong Subregion of ASEAN

“…However, Japanese law has less often been perceived as a source of legal thinking with application outside Japan (see Taylor 2001). Quite a few commentators see Japan as a successful example of legal transplantation based on Western models, such as the legal systems of Germany, France and the US (Graziadei 2019;Siems 2019, 865), and are drawn to the specific institutions, culture and environment of Japan, and by extension see its experience as inapplicable to other countries (e.g., Givens 2013;Colombo 2014). 2 To the extent that they see Japan as a source of legal influence, their primary focus tends to be on its dissemination of a modern German-style legal system to its neighbouring countries, and not on how Japanese law itself has influenced legal thought in those countries (Lei 2012;Kischel 2019, 55, 689, 699, 728-35).…”

Introduction to Comparative Dispute Resolution

“…Notably, the essays contributed by Graziadei (2006), Bennett (2006), Gordley (2006), Riles (2006) and Zekoll (2006). In the recently published revised edition of the Reimann and Zimmermann collection (2019), there is little change in this approach: significant exceptions include the essays contributed by Donahue (2019), Graziadei (2019), Nottage (2019), Gordley (2019), Zhang Taisu (2019), Bennett (2019), Riles (2019), Cotterrell (2019) and Zekoll (2019). is on courts, lawyers and the adjudicative dimensions of civil justice, with very little said about the overwhelmingly important processes in most societies around the world of extra-judicial settlement of civil disputes as a dimension of civil justice.…”