Fedtke, Jörg --- "Legal Transplants" [2006] ELECD 190; in Smits, M. Jan (ed), "Elgar Encyclopedia of Comparative Law" (Edward Elgar Publishing, 2006)

Book Title: Elgar Encyclopedia of Comparative Law

Editor(s): Smits, M. Jan

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845420130

Section: Chapter 39

Section Title: Legal Transplants

Author(s): Fedtke, Jörg

Number of pages: 4

Extract:

39 Legal transplants*
Jörg Fedtke


Dating back to antiquity, `free trade in legal ideas' (Kahn-Freund, 1974,
p. 10) has increased dramatically over the past decades; borrowing from
another system is today certainly `the most common form of legal change'
(Watson, 1991, p. 73). Many factors have contributed to this development.
Prominent among them is the demise of Socialism in Eastern Europe
towards the end of the 1980s and its various knock-on effects across the
globe: the desire of many countries to join the European Union and to
develop commercial relationships with the United States; the democratiza-
tion of societies in parts of Africa and South America; the quest for free
trade and internationally harmonized rules for the protection of intellec-
tual property; or the trend towards a stronger recognition of human rights.
All of this has favoured a spread of legal ideas regardless of political
borders or cultural differences; it has also blurred the seemingly neat theor-
etical distinctions drawn between various `legal families' by comparatists in
the second half of the 20th century.
Technically, transplants can take place on different levels of a legal
system and for a variety of reasons. Though far more often a result of deci-
sions made by national legislators, legal borrowing can also come in the
guise of judicial activity or, more gradually, through the backdoor of com-
mercial practice. The decision to draw on ideas found in other legal systems
is thereby often justified by the quality of a given ...