Pierre Legrand

The Impossibility o f ‘Legal Transplants’

[A] comparative study [shjould not aim at finding
‘analogies’ and ‘parallels’, as is done by those
engrossed in the currently fashionable enterprise of
constructing general schemes of development. The
aim should, rather, be precisely the opposite: to
identify and define the individuality of each
development, the characteristics which made the one
conclude in a manner so different from that of the
other. This done, one can then determine the causes
which led to these differences.
Max W eber1

§ 1. ‘Legal Transplant’ Explored

To ‘transplant’, according to the Oxford English Dictionary, is to ‘remove and

reposition’, to ‘convey or remove elsewhere’, to ‘transport to another country or place
of residence’. ‘Transplant’, then, implies displacement. For the lawyer’s purposes, the
transfer is one that occurs across jurisdictions: there is something in a given jurisdiction
that is not native to it and that has been brought there from another. What, then, is
being displaced? It is the ‘legal’ or the ‘law’. But what do we mean by the ‘legal’ or
the ‘law’? An answer to this question seems imperative if comparatists wish to draw the
line, as I believe their hermeneutical quest for understanding compels them to do,
between instances of displacement having law as their object and others not having law
as their object. Although they tend not to argue the point expressly, students of ‘legal
transplants’ have emphatically embraced the formalist understanding of ‘law’. Thus, die

* Professor of Comparative Legal Culture, Tilburg University (NL). An early version of this essay was
given at the University of California, Hastings College of the Law, in January 1997.1 am grateful to
Ugo Mattei for his kind invitation. I owe Linda Rae Legault for helping me to organize the argument.
The usual disclaimer applies.
1. Max Weber, The Agrarian Sociology o f Ancient Civilizations, transl. by R.I. Frank (NLB, 1976) at
385 [originally published, in German, in 1909],

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 The Impossibility of ‘Legal Transplants’

‘legal’ is, in substance, reduced to rules - which are usually not defined, but which are
conventionally understood to mean statutory instruments and, although less
peremptorily, judicial decisions. A good example of this approach is offered by Alan
Watson who writes that ‘legal transplants’ refer to ‘the moving of a rule [...] from one
country to another, or from one people to another’. 2 This author, by way of
illustration, mentions a set of rules dealing with matrimonial property which would
travel ‘from the Visigoths to become the law of the Iberian Peninsula in general,
migrating then from Spain to California, from California to other states in the western
United States’. 3 Clearly, Watson has in mind statutory rules.

A consideration of a range of legal systems over the long term should lead anyone
interested in the matter of ‘legal transplants’ to conclude, in Watson’s words, that ‘the
picture that emergefs] [i]s of continual massive borrowing [...] of rules’. 4 The
nomadic character of rules proves, according to this author, that ‘the idea of a close
relationship between law and society’ is a fallacy.5 Change in the law is independent
from the workings of any social, historical, or cultural substratum; it is rather - and
rather more simply - a function of rules being imported from another legal system.
Indeed, Watson has written that ‘the transplanting of legal rules is socially easy’. 6
Taking his observation to its logical conclusion, he asserts that ‘it would be a relatively
easy task to frame a single basic code of private law to operate throughout [the whole
of the western world]’. 7 Against this background, Watson argues, unsurprisingly I
should think, that the comparative enterprise, understood as ‘an intellectual discipline’,
can be defined as ‘the study of the relationships of one legal system and its rules with
another’. 8 Moreover, the comparatist should only be concerned with ‘the existence of
similar rules’ and ‘not with how [they] operatfe] within [...] society’. 9 In other words,
comparative legal studies is - or, at least, ought to be - about ‘legal transplants’ which
themselves are about legal rules, in the main statutory rules, considered in isolation
from society.

§ 2. Rule Examined

Because I do not want to caricature Watson’s position, I wish to reproduce the following
(somewhat lengthy) passage from his book devoted to legal transplants which elucidates
his understanding of ‘rule’:

2. Alan Watson, Legal Transplants, 2d ed. (University of Georgia Press, 1993) at 21.
3. Ibid at 108.
4. Ibid at 107. See also ibid at 95: ‘the transplanting of individual rules [...] is extremely common’.
5. Ibid at 108.
6. Ibid at 95.
7. Ibid at 100-01.
8. Ibid at 6.
9. Ibid at 96, footnote 3, and 20 respectively.

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 Pierre Legrand

Let me quote from a statement by a former Scottish Law Commissioner: ‘...

account has necessarily to be taken of English solutions even if these are
eventually rejected as unsuitable for reception into Scots law. Indeed in
many contexts English solutions have to be studied to identify fundamental
differences from Scots law cloaked by superficial similarity. Endeavours to
achieve unified solutions in the field of Contract law have in particular
revealed that what has been assumed to be common ground was approached
by members of the Scottish and English Contracts Teams through
conceptually opposed habits of thought. Whereas English comparative
research relied particularly on American and Commonwealth sources, the
background of some of the Scottish proposals derived from French, Greek,
Italian and Netherlands sources - and from the Ethiopian Civil Code, which
was, of course, drafted by a distinguished French comparative lawyer.’ Now
this, to me, is rather too academic. If the rules of contract law of the two
countries are already similar (as they are) it should be no obstacle to their
unification or harmonisation that the legal principles involved come
ultimately from different sources, or that the habits of thought of the
commission teams are rather different. It is scholarly law reformers who are
deeply troubled by historical factors and habits of thought. Commercial
lawyers and business men in Scotland and England do not in general
perceive differences in habits of thought, but only - and often with irritation
- differences in rules.10

Thus, law is rules and only that, and rules are bare propositional statements and only
that. It is these rules which travel across jurisdictions, which are displaced, which are
transplanted. Because rules are not socially connected in any meaningful way,
differences in ‘historical factors and habits of thought’ do not limit or qualify their
transplantability. A given rule is potentially equally at home anywhere (in the western
world).

§ 3. Objections

I disagree with Watson’s views which I regard as providing a most impoverished

explanation of interactions across legal systems - the result of a particularly crude
apprehension of what law is and of what a rule i s .11 Yet, in my opinion, anyone who

10. Ibid at 96-97 [emphasis original].

11. Cf. J.W.F. Allison, A Continental Distinction in the Common Law (Oxford University Press, 1996)
at 14: ‘Watson’s theoretical argument [...] is flawed and his empirical evidence is unconvincing’;
Richard L. Abel, ‘Law as Lag: Inertia as a Social Theory of Law’, 80 Michigan Law Review (1982),
78S at 793: ‘Perhaps the most serious problem with Watson’s theory is that it is not a theory at all’.
Contra: William Ewald, ‘Comparative Jurisprudence (II): The Logic of Legal Transplants’, 43
American Journal o f Comparative Law (1995), 489. For a recent reiteration of his position by Watson,
see Alan Watson, ‘Aspects of Reception of Law’, 44 American Journal o f Comparative Law (1996),
335.

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 The Impossibility of ‘Legal Transplants’

believes in the reality of ‘legal transplants’ must broadly agree with Watson’s position
and must accept, in particular, a ‘law-as-rules’ and a ‘rules-as-bare-propositional-
statements’ model. In this sense, Watson’s stance, however simplistic, is representative
of the approach that must be followed, explicitly or not, by proponents of the ‘legal-
change-as-legal-transplants’ thesis. Anyone who takes the view that ‘the law’ or ‘the
rules of the law’ travel across jurisdictions must have in mind that law is a somewhat
autonomous entity unencumbered by historical, epistemological, or cultural baggage.
Indeed, how could law travel if it was not segregated from society? I wish to question
this vision of law and, specifically, this understanding of rules which I regard as
profoundly lacking in explicatory power. Rules are just not what they are represented
as being by Watson. And, because of what they effectively are, rules cannot travel.
Accordingly, legal transplants are impossible.

§ 4. Rule and Meaning

No form of words purporting to be a ‘rule’ can be completely devoid of semantic

content, for no rule can be without meaning. The meaning of the rule is an essential
component of the rule; it partakes in the ruleness of the rule. The meaning of a rule,
however, is not entirely supplied by the rule itself; a rule is never completely self-
explanatory. To be sure, meaning emerges from the rule so that it must be assumed to
exist, if virtually, within the rule itself even before the interpreter’s interpretive
apparatus is engaged. To this extent, the meaning of a rule is acontextual. But, meaning
is also - and perhaps mostly - a function of the application of the rule by its interpreter,
of the concretization or instantiation in the events the rule is meant to govern. This
ascription of meaning is predisposed by the way the interpreter understands the context
within which the rule arises and by the maimer in which she frames her questions, this
process being largely determined by who and where the interpreter is and, therefore,
to an extent at least, by what she, in advance, wants and expects (unwittingly?) the
answers to be. The meaning of the rule is, accordingly, a function of the interpreter’s
epistemological assumptions which are themselves historically and culturally
conditioned.

These pre-judices (I use the term in its etymological, not in its negative, or acquired,
sense) are actively forged, for example, through the schooling process in which law
students are immersed and through which they learn the values, beliefs, dispositions,
justifications and the practical consciousness that allows them to consolidate a cultural
code, to crystallize their identities, and to become professionally socialized. Indeed,
even before they reach law school students will have assimilated a cultural profile (let
us say the Gadamerian ‘Vorverstdndnis’) 12 - whether English or Italian or German -
which will colour in a most relevant way their legal education experience and their
internalization of the narrative and mythology in which they will share. Each English

12. Hans-Georg Gadamer, Wahrheit und Methode, 4th ed. (J.C.B. Mohr, 1975) at 252.

114 MJ 4 (1997)
 Pierre Legrand

child, for example, is a common-law-lawyer-in-being long before she even contemplates

going to law school. Inevitably, therefore, a significant part of the very real emotional
and intellectual investment that presides over the formulation of the meaning of a rule
lies beneath consciousness because the act of interpretation is embedded, in a way that
the interpreter is often unable to appreciate empirically, in a language and in a tradition,
in sum, in a whole cultural ambience.

An interpretation, then, is always a subjective product and that subjective product is

necessarily, in part at least, a cultural product: the interpretation is, in other words, the
result of a particular understanding of the rule that is conditioned by a series of factors
(many of them intangible) which would be different if the interpretation had occurred
in another place or in another era (for, then, different cultural claims would be made
on interpreters). Specifically, an interpretation is the outcome of an unequal distribution
of social and cultural power within society as a whole and within an interpretive
community in particular (judges vis-à-vis professors, and so forth) and operates, through
repeated articulation, to eliminate or marginalize alternatives. Ultimately, what
interpretation will prevail amongst the array of competing interpretations - and what
interpretation will endow the rule with a relative fixity of meaning - is a function of
epistemic conventions produced as the result of power struggles that are themselves non-
epistemic (which means that the other interpretations on offer would also have promoted
understanding of the rule if they had been adopted, albeit not in the same ways).

It must be stressed that the interpretation that finally transcends the collision of
interpretations does not wholly turn, of course, on the interpreter’s idiosyncratic
construction. Rather, it depends in part upon a framework of intangibles internalized by
the interpreter (without any awareness of this process having taken place) which colours
and, indeed, constrains the interpreter’s subjectivities. It is more accurate, therefore,
to think of interpretation as an ‘intersubjective’ phenomenon in the sense that it is the
product of the interpreter’s subjectivity as it interacts with the network of all
subjectivities within an interpretive community which, over time, is fundamentally
constitutive of that community’s articulated values and sustains that community’s
cultural identity.

§ 5. Rule as Culture

In enacting a rule for the reasons they do and in the way they do, as a product of the
way they think, with the hopes they have, in enacting a particular rule (and not others),
the French, for example, are not just doing that: they are also doing something typically
French and are thus alluding to a modality of legal experience that is intrinsically theirs.
In this sense, because it communicates the French sensibility to law, the rule can serve
as a focus of inquiry into legal Frenchness and into Frenchness tout court. It cannot be
regarded only as a rule in terms of a bare propositional statement. There is more to
ruleness than a series of inscribed words which is to say that a rule is not identical to
the inscribed words.

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 Hie Impossibility of ‘Legal Transplants’

A rule is necessarily an incorporative cultural form. As an accretion of cultural

elements, it is supported by impressive historical and ideological formations. A rule
does not have any empirical existence that can be significantly detached from.the world
of meanings that characterizes a legal culture; the part is an expression and a synthesis
of the whole: it resonates. Such is Gadamer’s point: ‘the meaning of the part can be
discovered only from the context - i.e., ultimately from the whole’. 13 Incidentally,
it is this ability to see the whole in the part that defmes the interpretive competence of
the comparatist. Because a rule exists in a larger cognitive framework, the comparatist
must relate it to other phenomena in a way that will make the particular proposition look
less like an arbitrary event and more like the manifestation of a relatively coherent and
intelligible whole. Thus, the rule becomes the unknowing articulator of a cultural
sensibility which the observer invests into the language of the text through a process of
abstraction from the particular. The habitual tendency of most comparatists to focus on
comparisons of substantive law can only be made expressive if set in a context
embracing the view-points from which these materials emanate. Beyond the
specification, there must be an explicitalion of why what has been specified is in the
mode it is, why it could not in important ways be otherwise, and how this specification
and explicitation differ from other experiences of legal order.

§ 6. Comparative Legal Studies and Understanding

As an alternative to an appreciation of law understood as a system of bare propositional

statements (or Taw-as-geometry’!), I argue that the comparatist can hope to achieve a
more meaningful constitution, explication, and critique of experiences of legal order
through formulations which show an appreciation of law, to quote from Robert Cover,
‘not merely [as] a system of rules to be observed, but [as] a world in which we
live’. 14 The comparatist must adopt a view of law as a polysemic signifier which
connotes inter alia cultural, political, sociological, historical, anthropological, linguistic,
psychological and economic referents. To borrow from Mauss, each manifestation of
the law - each rule, for instance - must be apprehended as a ‘fa it social total’, a
complete social fact.15

§ 7. ‘Legal Transplants’ Reconsidered

If one agrees that, in significant ways, a rule receives its meaning from without and if
one accepts that such investment of meaning by an interpretive community effectively
partakes in the ruleness of the rule, indeed, of the nucleus of ruleness, it must follow
that there could only occur a meaningful ‘legal transplant’ when both the propositional

13. Hans-Georg Gadamer, Truth and Method, 2d rev. ed., transi, by Joel Weinsheimer and Donald G.
Marshall (Sheed and Ward, 1989) at 190 [originally published, in German, in I960].
14. Robert M. Cover, ‘Nomos and Narrative’, 97 Harvard Law Review (1983), 4 at 5.
15. Marcel Mauss, ‘Essai sur le don’, Sociologie et anthropologie, 6th ed. (Presses Universitaires de
France, 1995) at 274-75 and passim [originally published in 1925],

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 Pierre Legrand

statement as such and its invested meaning - which jointly constitute the rule - are
transported from one culture to another. Given that the meaning invested into the rule
is itself culture-specific, it is difficult to conceive, however, how this could ever
happen. In linguistic terms, one could say that the signified (meaning the idea content
of the word) is never displaced because it always refers to an idiosyncratic semio-
cultural situation. Rather, the propositional statement, as it finds itself technically
integrated into another legal order, is understood differently by the host culture and is,
therefore, invested with a culture-specific meaning at variance with the earlier one (not
least because the very understanding of the notion of ‘rule’ may differ). Accordingly,
a crucial element of the ruleness of the rule - its meaning - does not survive the
journey from one legal system to another. In the words of Eva Hoffman, ‘[y]ou can’t
transport human meanings whole from one culture to another any more than you can
transliterate a text’. 16 This is because, to quote from this writer again, ‘[i]n order to
transport a single word without distortion, one would have to transport the entire
language around it’. 17 Indeed, ‘[i]n order to translate a language, or a text, without
changing its meaning, one would have to transport its audience as well’. 18 If you will,
the relationship between the inscribed words that constitute die rule in its bare
propositional form and the idea to which they are connected is arbitrary in the sense that
it is culturally determined. Thus, there is nothing to show that the same inscribed words
will generate the same idea in a different culture, a fortiori if the inscribed words are
themselves different because they have been rendered in another language. (As
Benjamin wrote, ‘the word Brot means something different to a German than the word
pain to a Frenchman’. 19) In other terms, as the words cross boundaries there
intervenes a different rationality and morality to underwrite and effectuate the borrowed
words: the host culture continues to articulate its moral inquiry according to traditional
standards of justification. Thus, the imported form of words is inevitably ascribed a
different, local meaning which makes it ipso facto a different rule. As the understanding
of a rule changes, the meaning of the rule changes. And, as the meaning of the rule
changes, the rule itself changes. To paraphrase J.A. Jolowicz, the addition of a litre of
green paint to four litres of yellow does not give us the same colour as the addition of
a litre of red paint to four litres of yellow.20

16. Eva Hoffman, Lost in Translation (Minerva, 1991) at 175.

17. Ibid at 272.
18. Ibid at 275.
19. Walter Benjamin, ‘The Task of the Translator’, Illuminations, transl. by Harry Zohn, (Fontana, 1973)
at 75 [originally published, in German, in 1923]. For an application of this reasoning to law, see Max
Rheinstein, ‘Comparative Law - Its Functions, Methods and Usages’, 22 Arkansas Law Review (1968),
415 at 418-19. Observe how Rheinstein emphasizes the point that ‘[e]ven words of the same language
may have different meanings in different legal systems’ (at 419).
20. J.A. Jolowicz, ‘New Perspectives of a Common Law of Europe: Some Practical Aspects and the Case
for Applied Comparative Law’, in Mauro Cappelletti (ed.), New Perspectives fo r a Common Law c f
Europe (Sijthoff, 1978) at 244.

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 The Impossibility of ‘Legal Transplants’

So, the transplant does not, in effect, happen: a key feature of the rule - its meaning
- stays behind so that the rule that was ‘there’, in effect, is not itself displaced over
‘here’. Assuming a common language, the position is as follows: there was one rule
(inscribed words a + meaning x), and there is now a second rule elsewhere (inscribed
words a + meaning y). It is not the same rule. (The differentiation between conceptions
of law is not overcome.)21 Meaning simply does not lend itself to transplantation.
There always remains an irreducible element of autochthony constraining the
epistemological receptivity to the incorporation of a rule from another jurisdiction,22
therefore limiting the possibility of effective legal transplantation itself. The borrowed
form of words thus rapidly finds itself indigenized on account of the host culture’s
inherent integrative capacity.

A good illustration of the phenomenon is offered by the English decision in O ’Reilly v.

Mackman introducing a procedural distinction to the effect that in public law cases the
plaintiff cannot litigate by way of an ordinary action and that an application for judicial
review is her exclusive remedy.23 The differentiation between public law and private
law litigation had acquired significance in nineteenth century France ‘in a context
characterized by inquisitorial judicial procedures, a categorical approach to law, a
conception of a distinct state administration, and a separation of powers that met the
need for judges with both judicial independence and administrative expertise’. 24 Its
recent emergence in English law ‘in a context lacking any of the features characterizing
the French context of the late nineteenth century’ has generated ‘extensive debate and
uncertainty about the proper procedure and judicial role in public-law cases and about
the very idea of distinguishing public- from private-law cases’. 25 Consequently, the
House of Lords decision cannot be said to have ‘entrenched’ the distinction between
public and private law whereby the importation of the division from France ‘[would
have] brought about a convergence of English and French law’. 26 The fact is that the
alleged rule that is now to be found in England does not coincide with the French rule
even though it is that French rule itself which had attracted the attention of English
lawyers: the French formulation has been domesticated by the English interpretive

21. It is the case, of course, that English and French law both make use of die concept of ‘offer’. It might
be said, therefore, that there arises, in such a case, a ready opportunity for uniform legislation to
intervene in the name of predictability and general efficiency, if not to achieve formal equality in the
market-place. However, what must not be overlooked is that within the English and French legal
cultures, there are to be found two discrete conceptions of ‘offer’. E.g.: John Rawls, A Theory o f
Justice (Harvard University Press, 1971) at 5; Ronald Dworkin, Law's Empire (Fontana, 1986) at 90-
94.
22. E.g.: F.S.C. Northrop, ‘The Comparative Philosophy of Comparative Law’, 45 ComellLaw Quarterly
(1960), 617 at 657: ‘in introducing foreign legal and political norms into any society, those norms will
become effective and take root only if they incorporate also a part at least of the norms and philosophy
of the native society’.
23. [1982] 3 All E.R. 1124 (H.L.).
24. Allison, A Continental Distinction in the Common Law, at 235.
25. Ibid.
26. Ibid at 234.

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community with the result that the meaning of what is public law, private law, a public
law remedy, a private law remedy, and so on, inevitably differs as between the two
legal systems. Making allowance for exaggerated pithiness, it remains helpful to
reiterate that ‘stateways cannot change folkways’. 27

To return to Watson briefly, the inadequacy of his argument should now be plain. I
borrow at random a single illustration from his book (which offers many more):

Before the Code civil the Roman rules [on transfer of ownership and risk in
sale] were generally accepted in France [...]. This was also the law accepted
by the first modem European code, the Prussian Allgemeines Landrecht fu r
die Preussischen Staaten of 1794.28

Now, the fact is that the Roman ‘rules’ were written in Latin and purported to regulate
the dealings of citizens in sixth century Constantinople. The French rales mentioned by
Watson were written in French and intended to govern citizens in pre-revolutionary
France. And, the Prussian rales to which Watson refers were written in German and
were concerned with legal relationships in what remained feudal Prussia. I argue
(admittedly in advance of empirical demonstration) that cultural constructions of reality
and of law and of rales in the three settings would harbour certain distinctive
characteristics which would, therefore, affect the interpretation of a rale, that is, which
would determine the raleness of the rale according to the distinctive cultural logics of
the native systems. These rales, therefore, are not the same rules; any similarity stops
at the bare form of words itself. Even then, this conclusion would not account for the
fact that the inscribed words appear in three different languages with each language
suggesting a specific relationship between the words and their content (for example,
‘[n]o language divides time or space exactly as does any other [...]; no language has
identical taboos with any other [...]; no language dreams precisely like any other’) . 29

Watson’s underinterpreted compilation is facile as John Merryman’s reflection

demonstrates: ‘there is a very important sense in which a focus on rules is superficial
and misleading: superficial because rales literally lie on the surface of legal systems
whose true dimensions are found elsewhere; misleading because we are led to assume
that if rales are made to resemble each other something significant by way of
rapprochement has been accomplished’. 30 Watson’s argument is also insidious because
it effaces the local ideological explanations of why things are done the way they are

27. Jack Greenberg, RaceRelations and American Law (Columbia University Press, 1959) at2. The author
is referring to William Graham Sumner’s work in sociology of law. See, e.g., William Graham
Sumner, Folkways (Dover, 1959) at 77: ‘legislation cannot make mores’ [originally published in 1906].
28. Watson, Legal Transplants, at 83.
29. George Steiner, What is Comparative literature? (Oxford University Press, 1995) at 10.
30. John H. Merry man, David S. Clark, and John O. Haley, The Civil Law Tradition: Europe, Latin
America, and East Asia (Michie, 1994) at 50.

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with respect to any given rale. It is wrong to present the law as a stable monolithic
element within societies and to overlook the fact that it can only reflect the localized and
particularized outlooks of culturally-situated individuals as members of historically and
epistemologically conditioned interpretive communities. Extra culturam nihil datur.

§ 8. To Summarize

At best, what can be displaced from one jurisdiction to another is, literally, a
meaningless form of words. To claim more is to claim too much. In any meaning-ful
sense of the term, ‘legal transplants’, therefore, cannot happen. No rule in the
borrowing jurisdiction can have any significance as regards the rule in the jurisdiction
from which it is borrowed. This is because, as it crosses boundaries, the original rale
necessarily undergoes a change that afreets it qua rale. The disjunction between the bare
propositional statement and its meaning thus prevents the displacement of the rule itself.
Consider this statement drawn from ongoing anthropological research on cognition: ‘The
fact that exactly the same word gets printed or uttered again and again does not mean
that exactly the same meaning (which is half the word) spreads from minds to
minds’. 31

Any advocacy of the reality of ‘legal transplants’, for instance, to account for change
in the law, must, however, unavoidably reduce law to rales and rules to bare-
propositional-statements. It must suggest that a rule exists in solitary state as the most
basic feature of legal activity (and consequently of legal theory) and that it carries
definite meaning irrespective of interpretation or application.32 Inevitably, it fails,
therefore, to treat rales as actively constituted through the life of interpretive
communities. Moreover, it fails to make apparent the negotiated character of rules, that
is, the fact that rales are the product of divergent and conflicting interests in society.
In other words, it eliminates the dimension of power from the equation. Also, it fails
to attest to the existence of local moral worlds or, if you like, local lifeworlds - the
worlds of our everyday goals, social existence, and practical activity. In sum, any
argument reducing change in law to the displacement of rales across boundaries is little
more than an exercise in ‘reification as false determinateness’: in fact, the shifting
complexity of development in the law cannot be explained through a rigid and jejune
framework such as that propounded by the ‘legal transplants’ thesis.33

This leaves one issue. What of the fact that the inscribed words - assuming a common
language between the host jurisdiction and the one from which the words are borrowed

31. Dan Sperber, ‘Learning to Pay Attention’, The Times Literary Supplement, 27 December 1996, 14,
col. 3.
32. For Gadamer, ‘application’ is an essential aspect of ‘interpretation’. See Gadamer, Truth and Method,
311. See also Frederick Schauer, Playing by the Rules (Oxford University Press, 1991) at 207.
33. Matthew H. Kramer, Legal Theory, Political Theory, and Deconstruction (Indiana University Press,
1991) at 255.

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 Pierre Legrand

- are themselves displaced? Even accepting the points that I have argued above, is it not
the case that a ‘legal transplant’ is happening at the level of the inscribed words
themselves which is consequential for the host jurisdiction in terms of the growth of its
law and, therefore, of importance to the comparatist? The answer must be negative:
there is nothing in the borrowing of a bare string of words to anchor a theory of ‘legal-
change-as-legal-transplants’. All that one can see is that law reformers on occasion find
it convenient, presumably in the interest of economy and efficiency, to adopt a pre­
existing form of words which may happen to have been formulated outside of the
jurisdiction within which they operate - not unlike the way writers on occasion find it
convenient to quote from other authors some of whom will be foreigners. What is at
issue here is a rhetorical strategy involving the ordinary act of repetition as an enabling
discursive method. To say that change in law is in large part driven by mimesis is not
to say any more - or any less - than that individuals will turn to the past to help them
construct the present. This is as evident in law as it is in literature or mathematics. This
observation is hardly the stuff of legal theories about interactions across legal cultures.

Quite irrespective of the spatial or temporal origins of the forms of words that are
repeated and of the contents of those forms of words themselves, what would, of
course, prove much more promising is to move away from l ’énoncé to l ’énonciation,
that is, to investigate how the fact of repetition - which always implies repression - is
conditioned by a particular epistemological framework, by a specific mentalité. 34 Civil
law discourse, for instance, is centripetal in that it submits to the order of the posited
text of law from which it gets its warrant and to which, therefore, it always seeks to
return. The common law tradition reveals a different approach, for it studies antecedent
discourses (the ‘precedents’) strictly as a propaedeutic toward the elaboration of other,
present discourses. What came before is relevant inasmuch as it fulfils an
exemplificatory function. Common law discourse is not second-degree discourse nor a
gloss. Rather, it is its own discourse constantly broadening its field by moving away
from an earlier (equally self-contained) discourse. The common law is centrifugal.
How, then, do these epistemological configurations affect the cognitive disposition of
the civilian or of the common law lawyer as she engages in the act of repetition today?
Here is one of the privileged questions that comparatists must be invited to answer.

§ 9. The Politics o f ‘Legal Transplants’

To return to the Tegal-change-as-legal-transplants’ argument, I maintain that the

proponents of this thesis pay undue attention to the texts of written language to the
detriment of the frameworks of intangibles within which interpretive communities
operate and which have normative force for these communities - something which
automatically leads them to harbour a limited perspective on law. Their stance is, if you

34. For the connection between ‘repetition’ and ‘repression’, see Gilles Deleuze, Différence et répétition
(Presses Universitaires de France, 1968) at 139.

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like, ‘bookish’. But, it must be seen that this attitude betrays a political decision to
marginalize difference and correlatively to extol sameness. The notion of ‘legal
transplant’ is used as a convenient variance reducer. The proponents of ‘legal-change-as-
legal-transplants’ offer what can be described as a ‘synthetic vision’ focusing exclusively
on the technical level of the law. This decision reflects a faith in abstract universalism
which is at odds with the observable decline of formal rationality and the correlative
materialization of formal law characterized by the increasing prevalence of informative
arguments of a sociological, economic, political, historical, cultural, epistemological or
ethical, rather than conceptual nature.35

More importantly, the ‘legal transplants’ thesis discards the existence of qualitatively
differentiated phenomena and the concrete contents of experiences and values. It is an
idea concerned with finding patterns the axiomatization of which requires the imposition
on effectively disparate experiences of law of an a priori rational unity. The advocates
of iegal-change-as-legal-transplants’ have nothing to say about thought (recall Watson’s
own words in the lengthy quotation reproduced above). And, clearly, the ‘legal
transplants’ thesis lacks any critical vocation. It is conservative and favours the status
quo in that it privileges ‘the knowledge of observed regularities’ so as to achieve
‘certainty, predictability and control’. 36 Indeed, Watson rightly stands accused of
defending a ‘basically conservative world view’ and of attempting to ‘trivialize the
political’, his aim being ‘to confute radicals’. 37

The proponents of ‘legal-change-as-legal-transplants’ create a false consensus which can

only be established through exclusive reference to the formalized elements of the object
under discussion and through the delegitimation of a notion such as ‘tradition’ or
‘culture’ which, in its intricacy, would intervene as an irrational interloper interfering
with the production and the perception of empirical regularity - the kind of regularity
that is regarded as necessary to meet ‘the regulatory needs of liberal capitalism’ (recall
Watson’s concern with the preoccupations of ‘commercial lawyers and business men’
in the lengthy quotation reproduced above).38 The ‘legal transplants’ argument is
precariously based on analogies, on mechanical analogies. The problem, therefore, is
that in the way the reasoning promotes a most exacerbated positivism it fails to grasp
and express the multi-layered nature of the interaction between the constituents of a
social totality. The refusal or inability to see that law acts as a site of ideological
refraction of deeply embedded cultural dispositions does not, however, make reality go

35. I draw on Lawrence M. Friedman and Gunther Teubner, ‘Legal Education and Legal Integration:
European Hopes and American Experience’, in Mauro Cappelletti, Monica Seccombe, and Joseph
Weiler (eds.), Integration Through Law, I: Methods, Tools and Institutions, book 3: Forces and
Potential fo r a European Identity (de Gruyter, 1986) at 372-74.
36. Boaventura de Sousa Santos, Toward a New Common Sense (Routledge, 1995) at 73.
37. Abel, 80 Michigan Law Review (1982), 785 at 803.
38. Santos, Toward a New Common Sense at 72.

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away: bananas do exist even if I do not like them and the continental drift is happening
even if I cannot perceive it.

§ 10. Comparative Legal Studies Otherwise

The ethics of comparative analysis of law lie elsewhere. Comparative legal studies is
best regarded as the hermeneutic explication and mediation of different forms of legal
experience within a descriptive and critical metalanguage.39 Because insensitivity to
questions of cultural heterogeneity fails to do justice to the situated, local properties of
knowledge, the comparatist must never abolish the distance between self and other.
Rather, she must allow the self to make the journey and see the other in the way he
must be seen, that is, as other. The comparatist must permit the other to realize ‘his
vision of his world’. 40 Defining a legal culture or tradition for the comparatist means,
therefore, ‘finding what is significant in [its] difference from others’. 41 Comparison
must not have a unifying but a multiplying effect: it must aim to organize the diversity
of discourses around different (cultural) forms and counter the tendency of the mind
toward uniformization.42 Comparison must grasp legal cultures diacritically.
Accordingly, the comparatist must emphatically rebut any attempt at the axiomatization
of similarity, especially when the institutionalization of sameness becomes so
extravagant as to suggest that a finding of difference should lead her to start her
research afresh!43 To quote Gunter Frankenberg, ‘[a]nalogies and the presumption of
similarity have to be abandoned for a rigorous experience of distance and
difference’. 44 I argue that comparison must involve ‘the primary and fundamental

39. Cf. Anthony Giddens, New Rules o f Sociological Method, 2d ed. (Polity, 1993) at 170.
40. Bronislaw Malinowski, Argonauts o f the Western Pacific (Routledge and Kegan Paul, 1922) at 25
[emphasis original],
41. Charles Taylor, The Malaise o f Modernity (Anansi, 1991) at 35-36.
42. For a sense of the magnitude of the challenge, see, e.g., Giambattista Vico, ‘Principi di scienza
nuova’, in Fausto Nicolini (ed.), Opere (Riccardo Ricciardi, 1953), bk I, XLVQ a t452: ‘The human
mind naturally tends to delight in the uniform’ ['La mente umana i naturalmenteportata a dilettarsi
dell’uniforme’] (originally published as the definitive edition by Vico himself in 1744); Michel
Foucault, L'archéologie du savoir (Gallimard, 1969) at 21, who notes that ‘one experiences a singular
repugnance to think in terms of difference, to describe discrepancies and dispersions’ [‘on éprouv(e)
une répugnance singulière à penser la différence, à décrire des écarts et des dispersions’].
43. Konrad Zweigert and Hein Kôtz, An Introduction to Comparative Law, 2d rev. ed., transi, by Tony
Weir (Oxford University Press, 1992) at 36.
44. Giinter Frankenberg, ‘Critical Comparisons: Re-thinking Comparative Law’, 26 Harvard International
Law Journal {1985), 411 at 4 5 3 .1 am unable to agree with Rudolf Schlesinger who observes, without
supporting evidence, that ‘[traditionally, comparative legal writings have tended to dwell more heavily
on differences than on similarities’: Rudolf B. Schlesinger, ‘Introduction’, in Schlesinger (ed.),
Formation o f Contracts [:] A Study o f the Common Core o f Legal Systems (Oceana, 1968) at 3,
footnote 1. See Richard Hyland, ‘Comparative Law’, in Dennis Patterson (ed.), A Companion to
Philosophy o f Law and Legal Theory (Blackwell, 1996) at 185: ‘Throughout much of the modem
history of comparative law, the dominant comparative paradigm has focused on the similarities [among
the various legal systems], attempting in various ways to identify a set of ideas or practices common

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investigation of difference’. 445 The priority of alterity must act as a governing postulate
for the comparatist. To privilege alterity at all times is the only way in which the
comparatist can guard against the deception otherwise suggested by the similarity of
solutions to given socio-legal problems across legal cultures: the fact that the same
solution (say, ‘6’) can be reached by multiplying two numbers (say, ‘3’ and ‘2’) or by
adding two numbers (say, ‘S’ and ‘1’) does not entail the same operands or cognitive
operations. It is the case, of course, that the success of this comparative project must
depend upon an initial receptivity to the otherness of the other.

Law is part of the symbolic apparatus through which entire communities try to
understand themselves better. Comparative legal studies can further our understanding
of other peoples by shedding light on how they understand their law. But, unless the
comparatist can learn to think of law as a culturally-situated phenomenon and accept that
the law lives in a profound way within a culture-specific - and therefore contingent -
discourse, comparison rapidly becomes a pointless venture. Kahn-Freund went one step
further and observed that comparative analysis of law ‘becomes an abuse [...] if it is
informed by a legalistic spirit which ignores [the] context of the law’. 46

44. -*
to all developed legal orders’. See also, e.g., Tullio Ascarelli, ‘Etude comparative et interprétation du
droit’, Problem giuridici (Giuffrè, 1959) at 321, who observes that comparative legal studies are either
concerned with unification of laws within substantive or geographical limits or are more philosophically
inclined and aspire to a uniform law that would be universal.
45. Michel Foucault, Les mots et les choses (Gallimard, 1966) at 68 [‘la recherche première et
fondamentale de la différence'].
46. Otto Kahn-Freund, ‘On Uses and Misuses of Comparative Law’, 37 M odem Law Review (1974), 1
at 27 [my emphasis]. Contrast Alan Watson, ‘Legal Transplants and Law Reform’, 92 Law Quarterly
Review (1976), 79 at 81: ‘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’.

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