23 March 2012 Written by  Muradu Abdo and Gebreyesus Abegaz

Legal Transplantation

The study of legal transplantation is important in customary law course since legal transplantation often takes place in developing countries such as Ethiopia with diverse customary law systems. Often the transplanted laws come for a variety of reasons from advanced legal systems. Such transplanted laws officially or on paper question the validity of customary laws. In fact the customary laws continue to be little affected. The adoption of western laws presents the interaction between two sets of laws with quite distinct assumptions and methods. So the study of transplanted laws, its history, reasons and theories is significant in customary law course.

Legal transplantation: Legal transplantation is also known by other names. These are legal borrowing, legal importation, legal reception and legal taking. Legal transplantation refers to the transfer of rules, principles and legal concepts from one or more than one legal system to another legal system. The legal system borrowing laws can be called the recipient system while the legal system lending laws can be called the donor legal system. The lending system may be an existing legal system or a past legal system. Countries, for example, borrowed from the Roman legal system that ceased to exist centuries ago. The recipient legal system should be an existing one or a system at its initial stage of development. Legal borrowing can involve a single legal rule; it can be a massive borrowing. For instance, Ethiopia borrowed large quantity of laws in late 1950`s and 1960`s. At the end of 19th century, Japan received large quantity of laws from Germany. Small-scale borrowings takes place everyday. Appreciating legal transplantation is important to conduct legal research, as it enables you trace the right sources of the laws of a given country.

Factors for legal transplantation: Can you identify and explain the factors that may drive a country to receive laws from another system? Do you think that a country borrows laws based on its free decision alone? Do you think that there are cases where a country may be compelled to take laws from another system?  A recipient country may borrow laws since they are accessible in terms of language, the laws are found out to be meritorious in terms of organizations, the laws were transplanted to other systems and found out to be fruitful and when the recipient country decided to modernize its legal system. A country may adopt foreign laws as a result of migration or commercial intercourse. A country may adopt the laws of another country because the important elites are attached to the legal system and education of the donor country. A country may be forced to accept the laws of other systems owing to war or conquest or colonization or physiological pressure. Can you give concrete examples for each of these reasons? Is it possible to say, for example, that many countries in Africa and Asia received laws form France and England as a result of colonization? Is it possible to say that the socialist laws were spread to several countries all over the world as a result of ideological threat from the ex-USSR? Can we say that Islamic law was propagated to the other parts of the world through conquest, migration and commercial interaction?

The development of legal transplantation: Legal history indicates that legal transplantation has been rampant. The Greek gave important legal theories to the Romans; the Romans borrowed from the Greek legal system some conceptions of laws. The Romans converted the idealism of the Greek into practical legal rules. The Romans gave principles of private law to European countries such as France and Germany. France added to the laws it received from the Romans some theories and techniques. France then codified its laws in early 19th century. France propagated its laws first to neighboring European countries. Later, France transplanted its codes to Asia and Africa through the instrumentality of colonialism. Some countries,  such as countries in Latin America, received laws from France voluntarily. England also transported its laws to all over the world via colonialism. Eastern European countries received laws from the civil law countries. After the end of Second World War, however, East European countries were forced to adopt socialist system of laws. Again after the 1980`s, these countries went back to the civil law tradition owing to external pressures. The socialist legal system was developed as an idea in 19th century and early 20th century translated into practice in Russia. Russia, later USSR, became the mastermind behind the spread of socialist laws to Asia and Africa in some cases through force and sometimes through pressure.

The Islamic legal system originated as an idea in the Middle East in the 7th c AD, and then taken to the coastal areas of Africa, Middle East and Asia. Now a kind of Islamic belt is created. The spread of the Islamic legal system has been attributed to a combination of the following factors: conquest, migration and commerce. Do you realize form these descriptions that legal systems develop through borrowing? Do you appreciate that legal borrowing has implied power relations in the sense that laws usually flow form powerful legal systems to less powerful ones? Do you agree with the proposition that legal transplantation can take place faster in the cases where the recipient system has gaps?

History of Legal Transplantation: Consider the origin, development, spread and decline of the Roman law in the following few paragraphs. The Corpus Juris Civilis is the name of the code developed by a roman emperor known as Justinian. The Corpus Juris Civilis of Justinian was not restricted to Raman civil law.  It included much that had to do with the power of the emperor, the organization of the empire, and a variety of other matters that lawyers today would classify as public law.

The Germanic tribes, called the Barbarians, invaded and controlled the Western part of the Roman Empire. With the collapse and the invasion of the Roman Empire, the CORUPS JURIS CIVILIS became inapplicable. The invaders applied cruder, less sophisticated versions of the Roman civil law to the peoples of the Italian Peninsula. The invaders also brought with them their own Germanic legal customs, which under their rule that the law of a person's nationality followed him wherever he/she went, were applied to themselves but not to those they had conquered. Even so, a fusion of some Germanic tribal laws with indigenous Roman legal institutions did begin to take place in parts of Italian southern France, and the Iberian Peninsula.

As light returned to Europe, and Europeans regained control of the Mediterranean and as the Renaissance began, an intellectual and scholarly interest in law emerged.  What civil lawyers commonly refer to as "the revival of Roman law" is generally conceded to have had its beginning in Bologna, Italy late in the eleventh century. It was at Bologna that the first modern European University appeared, and law was a major object of study.  But the law that was studied was not the body of the rules enacted or customarily followed by local towns, merchants' guildes, or petty sovereigns. The law studied was the CORPUS JURIS CIVILIS of Justinian.

Within a short time, Bologna and the other universities of northern Italy became the legal center of the Western world. Students came from all over Europe to study the law as taught in the Italian universities. The law studied was the CORPUS JURIS CIVILLIS, and the common language of study was Latin.  There was a succession of schools teaching about the proper way to study and explanting the CORUPS JURIS CIVILIS.  Of special prominence, for both their views of the law and their styles of scholarship, were the groups of scholars known as the Glossators and the Commentators. They produced a great body literature, which itself became the object of study and discussion and came to carry great authority. Those who have studied in Bologna returned to their nations and established universities where they also taught and studied the law of the CORPUS JURIS CIVILIS according to the style of the Glossators and Commentators (Those persons who were experts in the Corpus Juris Civilis). In this way, the Roman civil law and the works of the Glossators and Commentators became the basis of the common law of Europe, which is actually called the jus commune by legal historians. There was a common body of law and witting about law, a common legal language and a common method of teaching and scholarship.

With the rise of the nation an state and the growth of the concept national sovereignty, particularly, form the 15th century, the age of the jus commune of a common law of Europe disappeared, and the period of the national law began. In some parts of Europe (e.g. Germany), the Roman civil law and the writings of the Belgian scholars were formally "received" as binding law (civil lawyers use the term "reception" to sum up the process by which the nation - states of the civil law world came to include the jus commune in their national legal systems). In other parts of Europe, the reception was less formal; the CORPUS JURIS CIVILIS and the works of the Glossators and Commentators were received and became of value as customary law. By one means or another many countries in Europe received the Roman Civil law. These countries are now the home of the civil law tradition.

Eventually, in the nineteenth century, the principal states of Western Europe adopted civil codes (as well as other codes) of which the French Code Napoleon of 1804 is the primary one. The subject matter of the civil codes was almost identical with the subject matter of the first three books of the Corpus Juris Civilis of Justinian and the Jus Commune of medieval Europe. The principal concepts were Roman and medieval common law in nature, and the organization and conceptual structure were similar.

Some Illustrations of Legal Transplantation

French law: French law spread first to Europe, then, to Africa, Asia and Latin America. The French codes transplanted to Europe primarily through military force. In most areas where the Code was introduced, it was embraced, and survived Napoleon’s personal downfall. The Battle of Waterloo did not end the application of the Code in Europe, particularly in western Germany, and Italy. In the Netherlands, the Code survived unaltered until 1838, whereas in Prussia the Code was gradually reintroduced. Even in areas where French rule had been unpopular, such as Spain, post-Napoleonic governments were held up to French standards for a codified law based on judicial equality. Following the restoration of the old order, a series of 1820 revolts in Naples, Piedmont and Spain were affected by demands for administrative reform. Within France itself, the Code survived almost unaltered for more than 150 years, and even today has not been fundamentally changed. In many ways, the Code was the most enduring legacy of the French Revolution.

Latin America received the French codes primarily because of its technical merits and as a result of the reaction to the hated Spanish and Portuguese colonial rules.  Latin American countries got independence from Spain in early 19th century.  These newly founded states needed national and unifying Civil Codes; the only available model was the French code Civil and Spanish law was out of the question since it was the law of the previous colonial power and since it was neither codified nor uniform even in Spain where local customary laws survived. The code civil was a product of the great Revolution, rooted in a world of ideas on which the Latin Americans had frequently drawn to justify their own struggles for independence. In its compactness and clarity of phrase, the Code Civil was far ahead of any other mode. And furthermore, the code was so full of traditional concepts and ideas especially from Roman law, that its reception was not a deviation from the legal institutions known to the Spanish and Portuguese settlers. Some countries in Asia and Africa received French codes due to the existence of gaps and the force of French colonialism.

The code had such a wide influence because it was the Code of the French Empire whose military powers, backed by a brilliantly integrated civilization, made such a deep impression on people not only during its brief life but many years after it was over.  The reception of the French Civil Code is attributable not only to the political power of the French Empire, or to the spiritual influence of French civilization, but also in a great measure to the merits of the Code Civil itself.  In the 19th century the Code enjoyed intellectual authority and an almost supernatural appeal as the Code of the Great Revolution, which had abolished the ancient regime. The Code of Napoleon also produced for the first time legal unity and equality for the citizens of a centrally organized national state. The spread of the code civil throughout the world was greatly helped by its admirable language and the easy flexibility of its expression, in brief, by its very quality.

German law: The German codes were not transported so extensively as the French codes. They were transplanted at the end of the 19th century to Japan and thereafter to some African countries. The reasons for the little expansion of the German codes lie in: the fact that Germany did have few colonies, as she was a latecomer to the scramble for different parts of the world.  There are another reasons for this little influence. The codes were a bit sophisticated and complex. The third reason is that when the German codes were put in place at the beginning of the 20th century in Germany, many countries had already adopted laws from France and Great Britain. So there were then little legal gaps to be filled with in countries in Africa and elsewhere.

The English Law: Originated in 11th century, the English legal tradition expanded itself predominately through colonialism. The expression ``the sun never sets in the British Empire`` has attained the level of a saying. In addition to some other meanings, the expression suggests the extent of the spread of the British law.  The English law was transported to North America (the United States of America, to Canada), Asia and Africa. England transported legal ideas, legal methods, and legal institutions of the common law to countries in these continents. Britain also carried the substantive and procedure laws to these parts of the world. These parts of the world also reflect the English court system and the structure of the legal profession.

Theories on legal transplantation: Do you support legal borrowing? Is there any problem in borrowing laws? There are three views on whether legal transplantation is a desirable one. The first approach is referred to as the custom theory. F. von Savigny, a German thinker of 19th century, elaborated this approach. The approach states that law and society have unique relationships. Law and society have inherent connections. There is a unique relationship between law and society means that laws are found in the common consciousness of the people. This common consciousness is manifested via the behaviors of individual members of that community. Laws are related to the identity of a society for which they are created. Further, every community is legally self-sufficient; whenever a society faces a legal problem, it creates legal rules. To this theory, if one attempts to take the laws of X community to Y community by way of legal borrowing, those transferred laws will inevitably fail. Legal transplantation will never solve the problems of a recipient legal system. If you know in advance that borrowed laws will fail, there is no reason to try it.

An opposing theory developed by Alan Watson holds the view that there is no unique connection between law and society. The theory also holds that no community has ever been legally self-sufficient in the history of mankind. The theory is named as legal engineering. This theory views laws as intangible instruments to achieve certain goals.  As laws are tools, they can be taken to any society and used with success. Justifications are given for this position. The first reason is that the fact that legal transplantation has been very common in the history of legal systems shows that people have found it rational and useful. In the second place, if there are laws used by X Community and if Y community needs those laws, why should the latter be asked to reinvent those legal concepts and legal rules? It is rational for Y community to receive the laws of X community, which are tested in practice.

Thirdly, the custom theory assumes implicitly, but wrongly, that countries take the laws of other nations on the basis of their own free will. However, history gives us several examples where countries have borrowed laws as a result of external pressures.

The third theory attempts to strike a middle ground. In some areas of law, for example, in the area of commercial law, public law and technology law, there are gaps or traditional laws do not exist in developing countries. In such cases, developing countries do not have a choice; they have to borrow laws. In other areas of laws such as family law, inheritance laws and land laws, developing countries have longstanding laws. In the latter cases, it is difficult to transplant laws and even if transplantation takes place, the laws so transplanted will not be welcomed. This hybrid approach is articulated by Kahn-Freund. This position is also called the degree of transferability approach. This moderate approach to legal transplantation states that the contexts of the recipient country should be studied well before the borrowing of laws is made. Which theory do you support: the custom theory (also known as the historical theory), the social engineering theory (also called the instrumentalist theory) or the hybrid theory? And why?

More on the Theories of Legal Transplantation: The debate surrounding the theory of legal transplants has an almost unique beginning. In 1974 Alan Watson and Otto Kahn-Freund presented competing theories on the viability of legal transplants. The divergence of their views can be traced to the adoption of contrary propositions about the relationship between a state's law and its society.

Watson's theory begins with the proposition that there is no inherent relationship between law and the society in which it operates. He believes that law is largely autonomous, with a life of its own. Watson states that law develops by transplanting, not because some such rule was the inevitable consequence of the social structure and would have emerged even without a model to copy, but because the foreign rule was known to those with control over lawmaking, and they observed the apparent merits that could be derived from it.

Under Watson's theory, a legal rule is transplanted simply because it is a good idea. While Watson does not explicitly present a method to predict the viability of a proposed legal transplant, his writings provide guidance for such a method. He has further identified several factors that he believes must be considered to determine if the conditions are ripe for legal change by transplantation.

Kahn-Freund's disagreements with Watson begin with Watson's proposition that there is no inherent relationship between a state's law and its society. He claims that laws must not be separated from their purpose or from the circumstances in which they are made. Kahn-Freund argues "we cannot take for granted that rules or institutions are transplantable and believes that "there are degrees of transferability. Ewald summarizes Kahn-Freund's theory: "legal institutions may be more-or-less embedded in a nation's life, and therefore more-or-less readily transplantable from one legal system to another; but nevertheless at one end of the spectrum law is so deeply embedded that transplantation is in effect impossible.

Kahn-Freund identified a two-step process to determine the viability of a proposed transplant. The first step is to determine the relationship between the legal rule to be transplanted and the socio-political structure of the donor state. The second step involves comparing the socio-political environment of the donor and receiving state.

There is agreement, however, that the phrase "legal transplants" refers to the movement of legal norms or specific laws from one state to another during the process of law-making or legal reform. However, as a consequence of these conflicting propositions, their theories clash not only over how to evaluate the viability of a proposed legal transplant, but also over the general conclusions that can be reached about the usefulness of legal transplants as a tool of comparative scholars. Other scholars debate nearly every aspect of the legal transplant theory.

The study of legal transplants has been revived since the collapse of totalitarian rule. It is not. The issue of reception of foreign law has a considerable history and a remarkable topicality. As states around the globe implement dramatic political and economic changes in response to external and internal developments, their legal systems must be radically altered. In making these changes, legislators determine whether the borrowing of foreign law is feasible and if the international harmonization of a particular set of laws is viable. The argument is strong that there is no need for legislators to struggle to reinvent the wheel when others have dealt with the same issues. This argument is further supported by the fact that states are under pressure in the increasing interdependent world to create uniformity in law.

Massive successful borrowing is common in law. Borrowing is usually the major factor in legal change. Legal borrowing is of enormous importance in legal development. The borrowed rule does not operate in exactly the way it does in its country of origin. Since the time of late Roman Empire, they have been a major factor in legal change in the western world. England is no exception. Nor is the United States. Nor is Québec, even with its differences from the other provinces. The real issue is whether there should be a deliberate concerted effort, spear-headed perhaps by academics, to create a common law.

Beginning in 1991, Eastern Europe began the unprecedented effort of lawmaking on a grand scale. Almost overnight and at the request of their people and/or international organizations, former communist countries had to disassemble their political, economic, and legal institutions, which were based on centrally planned economies, to erect market-based democracies. Large sections of their old legal systems were now obsolete. The legislatures, however, were in most cases not free to form law and policy, as an "author is free to write a novel.`` The legal establishment of the communist era held influential posts and had contacts in the East and the West. They were ex officio called to lead reform efforts. In addition to them, foreign technical assistance arrived with ideas for ``legal surgery or reception of foreign law.`` A great number of foreign concepts (e.g., negotiable instruments of credit security devices) were introduced as if they were legal transplants to replace malfunctioning organs.

Comparative law was employed to decide either compatibility of foreign legal concepts or the merits of foreign legal systems and to provide an anthology of foreign legal ideas. Modern comparative legal methodology deals with legal transplants and reception of foreign law.

Legal penetration versus legal extension: Can you define legal penetration and legal extension? Do you think there is a gap between legal penetration and legal extension? If there is a gap between the two, in developed or undeveloped legal systems does it exist?  Can you give reasons for the gap? As you may recall, legal penetration and legal extension are two of the elements of a legal system.

Legal extension: Those responsible for the importation of laws assume that the transplanted laws would affect human conducts possibly 100%. The assumption is based on the belief that the actors at the time of massive importation of laws desire that communities would adjust their behaviors to the imported laws. The actors who sponsored wholesome importation of laws plan that the imported laws would be implemented in all parts of the territory of the recipient country. For example, Ethiopia borrowed large scale laws in 1950`s and 1960`s; at that time, key personalities responsible for such project, it is assumed, expected that such laws would be accepted by the people; the people would shift their allegiance towards the new western oriented laws. Was that expectation realized?

Legal penetration: Legal extension refers to the extent to which people are actually following the imported laws. If legal extension is the aspiration, legal penetration is the reality. The question is whether people have actually adjusted their behaviors to the prescriptions of the imported laws or people are settling their social and economic conflicts pursuant to customary or religious laws?

In the context of developing countries such as Ethiopia that transplanted laws from the west there is a substantial gap between legal extension and legal penetration. The gap is not. We can cite examples. In Ethiopia, the imported family law, as incorporated in the Ethiopian Civil Code of 1960, states that spouses are equal, at the time of the creation of marriage, in the course of marriage and upon the dissolution of marriage. The husband and the wife should conclude marriage on their free consent. The husband and the wife should share household burdens equally. The husband and wife should divide the common property equally when their marriage comes to an end via dissolution. But the customary laws do not conform to these prescriptions of imported laws. You can take the case of land. Land since 1974, in Ethiopia, has been taken as a collective property. But under customary law some tribes still believe that land belongs to them. You can go on citing examples in the area of homicide law etc. In developed countries, on the other hand, people have sufficiently adjusted their conducts to the official laws.

Additional notes on legal extension and penetration: Like other social systems, a legal system has boundaries, and its components are interrelated by an internal logic. Legal extension and legal penetration help define the boundaries of the legal system.

In every society, much is left to custom and tradition, to religion, to informal negotiation and settlement, to social convention and peer influence. But the precise location of the boundaries between such non-legal matters and those of legal concern is unlikely to be always and precisely the same. The range of variation becomes particularly significant if we identify law with the official legal system, manned and operated by the state.

The degree to which a legal system seeks to penetrate and control social life is often quite different from the extent to which it actually does so. For example, a large number of Ethiopians live much of their lives relatively free of any substantial contact with the official legal system, which actually applies with most force to an urban middle class and rapidly loses its power as one moves down the socio-economic scale and away from the major cities. In a substantial number of such nations as Ethiopia, Kenya and Indonesia, the paper legal system will look much like that of France or Spain or Italy, or England or the United States of America. But if one looks at the actual role of law in the lives of important elements of the population the resemblance is only superficial. Thus along two dimensions, the aspects of social life that proposes to affect and the extent to which it actually does so, the scale of divergence of legal extension and legal penetration between societies can be, and often is, substantial. Both the social reach and the social grasp of the law are important variables. Legal penetration can take to mean the degree to which a rule, code, or law takes hold in a population. Key to closing the gap and improving penetration is better communication of law to the populace.

An empirical research carried out jointly by North Western-Haile Sellassie I University on the impact of the various laws on the Ethiopian society revealed that in the area of commercial law there exist some major conflicts in the mercato between law and practice. However, according to the researchers these conflicts appear due to lack of education or knowledge on the part of the merchants with respect to accounting practice and registration requirements and reluctance on the part of authorities to strictly enforce many harsh legal provisions. Little if any, evidence of resistance to these laws on the basis that they are "foreign" to customary way of doing things was detected.

While in the area of family law, it was found that despite the fact that the new law's attempt to break the customary practice of adoption by imposing a requirement of court approval, people are still continuing to adopt according to customary procedures without seeking court approval. Although no empirical research was made and we cannot positively say that the law is not being followed, it is very doubtful whether the Civil Code's requirement that a man be eighteen and a girl be fifteen years old in order to marry is being followed. In addition, one can cite the provisions dealing with names that up to now have been more or less a dead letter.

However, even though law as an instrument of achieving the desired results may be slow or weak in matters that affect basic drives and values, the mere fact of affirmation through acts of law and government as it expresses the public worth of one set of norms, of one sub-culture vis-à-vis those of others demonstrates which cultures have legitimacy and public domination and which do not is significant in itself.  Thus the law aside from its effectiveness as an instrument can still have this symbolic effect, as an act, decision or gesture important in itself.

In developing societies such as Ethiopia, one can note a gap between a professed ideal and reality.  For example, if one examines the Ethiopian Civil Code which is basically designed for the future Ethiopian society and tries to introduce new norms, one can note that some of its provisions are already out of tune with the times.  One of the few mandates in the code regarding marital dispute resolution is that the parties should submit the disputes to arbitrators selected by them, Although this system of having relatives, neighbors and friends attempt to resolve a couple's dispute makes sense in the abstract, litigants with divorce petitions are coming to courts initially in increasing numbers in the cities.  Under the Civil Code, family arbitration was a codified customary practice with its origins in rural Ethiopia before the rise of cities. In rural Ethiopia, family friends and community elders are quick to agree and often to volunteer to arbitrate marital disputes.  But the city filled with migrants, where independence is fostered, it is relatively difficult to get acquaintances to devote the long hours, seldom compensated, that are required by family arbitrators. For this reason, then many couples approach a court to obtain an "order" that arbitrators, whom the parties select shall act in a dispute.  It apparently puts the fear of authority into some otherwise reluctant candidates. The fact that the institution of family arbitration did not reduce the court congestion and the fact that divorces in present Ethiopia demand a degree of expertise not commonly possessed by most family arbitrators are some of the reasons that were given by Aklilu Wolde Amanual to justify his recommendation to abolish the institution. Constant legislative, judicial and administrative innovation are thus necessary to keep the law abreast of life and this process of innovation requires sociological investigation, for a mere guess of politicians combined with the skill of legal draftsman is not an adequate basis of law reform, nor is a more armchair analytical legal study of existing alternative rules.

Reasons for the Gap: What is the explanation for this gap? What are the possible reasons for the divergence between official legal prescriptions and the reality? We can simply speculate the answers as we do not have sufficient empirical data. The first possible reason is that the imported laws have not yet been sufficiently communicated to the people or to the governed because the laws are published in English and Amharic which millions of people in this country do not understand. Further, the laws have not been adequately communicated to the addressees since there is a huge percentage of illiterate population. The imported laws assume a literate society. Secondly, the state lacks the necessary resources to implement some of the provisions of the imported laws. The third reason is that the laws were defectively transplanted, which means the country’s context was not properly studied and the customary and religious laws were not given the place they deserved. As a result, the imported laws lacked the necessary legitimacy from the people. A related factor is that the pre-existing laws in Ethiopia are so deeply rooted in the fabric of the society that they could not easily and quickly be replaced. People are deeply attached to the customary laws. People have inherited dispute settlement mechanisms that were used by their ancestors. Simply stated the force of tradition is the reason behind the tacit resistance put up against imported laws. Finally, it is argued that the transplanted laws could not succeed since the assumption of the customary laws is different from the assumption of the western laws. The customary laws focus on the group; paramount importance is attached to the survival of the collectivity. On the other hand, it is opined that western laws are designed for and around the interests of an individual.

Last modified on Wednesday, 02 May 2012 13:05