Lei, Chen --- "Contextualizing Legal Transplant: China and Hong Kong" [2012] ELECD 585; in Monateri, Giuseppe Pier (ed), "Methods of Comparative Law" (Edward Elgar Publishing, 2012)

Book Title: Methods of Comparative Law

Editor(s): Monateri, Giuseppe Pier

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849802529

Section: Chapter 9

Section Title: Contextualizing Legal Transplant: China and Hong Kong

Author(s): Lei, Chen

Number of pages: 19

Extract:

9. Contextualizing legal transplant: China and
Hong Kong*
Chen Lei



1. INTRODUCTION
Legal transplant occurs where law travels from one jurisdiction to another by way of
transposition, imposition, reception or intended borrowing.1 It is by no means a new
phenomenon and has been extensively researched. Long before the publication of Alan
Watson's magisterial book on the historical transposition of Roman laws to Europe,2
China had already been experimenting both with exporting its own law and importing
foreign law.3
Since legal transplant inevitably generates the transfer of the normative dimension of
the law, it is inextricably linked with the transfer of legal culture. Cotterrell described legal
culture as `a way of referring to clusters of social phenomena ... coexisting in certain
social environments and ... a convenient concept with which to refer provisionally to a
general environment of social practices, traditions, understandings and values in which the
law exists'.4 Through this cultural lens, Legrand announced the `impossibility of legal
transplant' since `what can be displaced from one jurisdiction to another is, literally, a
meaningless form of words'.5 Suli echoed Legrand's view in China by maintaining that
`native resources' or `local knowledge' render legal transplant neither necessary nor

* This chapter is version 2.0 based on the National Report of Legal Culture and Legal History to
the XVIIIth Congress of the International Academy of Comparative Law in Washington DC and an
article on the historical development of Chinese private law published by The Legal History Review
in ...