Blog of the International Journal of Constitutional Law

Book Review: Patrícia Jerónimo on “Legal Transplants in East Asia and Oceania” (Vito Breda ed.)

[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Patrícia Jerónimo reviews Legal Transplants in East Asia and Oceania (Vito Breda ed., Cambridge University Press 2019)]

—Patrícia Jerónimo, Director of the Research Centre for Justice and Governance (JusGov), University of Minho

The debate about the feasibility of legal transplants may seem to be a thing of the past, but the interest in observing the achievements and perils of ongoing processes of legal transplantation is clearly alive and well, as attested by this collection of essays edited by Vito Breda. Organised in three parts and twelve thematic chapters, the book combines a stimulating review of the theoretical framework with illustrations of foreign-inspired legal reforms in countries such as Australia, China, Japan and Myanmar. The range and depth of the analysis make the book a must-read for comparative law scholars and students all over the world.

The background for the case studies that make up most of the book is masterfully provided by Andrew Harding in the first chapter. Harding explains why we need to move the debate about legal transplants beyond the Watson/Legrand divide and its fixed binaries (legal transplants are possible/impossible; unrelated to culture/related to culture), pointing out that their disagreements were ‘largely about the use of words rather than the use of law’ and that both authors were equally (and regrettably) unconcerned with ‘the real world of legal diffusion’ (15).

To Harding, legal developments in South East Asia are proof that ‘law is not a mirror of society’ (contrary to Legrand’s belief) and that ‘legal transplantation is the primary mode of legal change’ (16), since almost all laws in the region have been transplanted from elsewhere. Harding acknowledges that legal transplants may encounter problems of fit, as warned by Legrand, and that these will lead to gaps between law and society, but stresses that such gaps do not entail the impossibility of legal transplants, either logically or practically (17). Although the process is certainly not easy, legal transplants are possible and are happening all the time in our world of legal connectivity (31). The increased sophistication of the process, however, may make it difficult to know when there is a ‘true transplant’ (20-21).

According to Harding, what we now see as objects of transplantation are no longer specific statutory provisions, as in colonial times, but more often ‘legal ideas’, which have to be translated into a ‘comprehensible and functional vernacular’ (22). He suggests, therefore, that we may want to confine the use of the phrase ‘legal transplants’ to refer to the imperial transplanting of law to colonies, and adopt the expression ‘legal mimesis’ to refer to the twenty-first century law-reform processes (27). In any case, irrespective of terminology, what matters for Harding is that we redirect our attention to the analysis of the processes by which foreign laws are influencing or providing solutions to local problems in Africa and Asia, something about which we still know very little (26).

Foreign influence can take on many forms, of course, and in the remaining chapters we find both examples of ‘horizontal transplants’ (between states), such as the incorporation of English legislation into the Pacific Islands by means of ‘statutes of general application’ provisions (chapter 2, by Jennifer Corrin), and examples of ‘vertical transplants’ (between international and domestic levels), such as the transplantation of the Convention on Contracts for the International Sale of Goods into Australian law (chapter 6, by Jessican Viven-Wilksch). The lines between comparative law and international law are blurred by the realisation that both foreign legal ideas and international commitments play a part in influencing local legal reforms. One may have some misgivings about stretching the concept of ‘legal transplants’ so far (a discomfort alluded to by Sophia O’Brien at p. 264), but the contributors to the volume make compelling cases for a broad and adaptable notion in line with the changes in the legal environment (e.g. Viven-Wilksch, at pp. 136-137, and Drossos Stamboulakis, at pp. 184-189).

As Harding acknowledges from the start, legal transplants (while possible) are not easy, and most of the remaining chapters in the book are dedicated to take stock of the difficulties encountered on the ground. Corrin observes how the phrase ‘statutes of general application’ is still being used in some of the Pacific Islands to incorporate English legislation, noting that the precise meaning of the phrase remains unclear, leading to legal uncertainty (60); and argues that this particular method of transplantation by wholesale application of foreign laws should be rejected, as ‘a necessary part of true independence’ (61). In his discussion of Bentham’s potential influence over the legal reforms conducted in XIX century Japan, Michihiro Kaino recalls, among other episodes, the fierce opposition mounted in the name of Japanese Confucian morality against the introduction of a French modelled Civil Code which gave women legal rights (74-75). Anthony Gray reports on the latest developments in the legal saga that has been the transplant to common law systems of the civil law doctrine of ‘good faith’ as a general principle applicable to contracts; a transplant that, Gray laments, remains stubbornly incomplete, in part due to the reluctance of Australian courts (111). Viven-Wilksch observes that the Australian judiciary and legislature are not making use of the Convention on Contracts for the International Sale of Goods nor of the UNIDROIT Principles of International Commercial Contracts, arguing that this does not mean that the transplants have been rejected, but acknowledging that some action must be taken to avoid rejection (133). Colin Campbell and H.P. Lee report on the uncertainties of the extent to which the doctrine of proportionality, as developed in Europe, has been transplanted into Australian administrative law (160). Jonathan Liljeblad tells the story of how the International Bar Association’s plan to transplant international standards for an independent bar association in Myanmar proved to be a ‘legal irritant’ (223) and was met with violent opposition, including the assassination on one of the leaders advancing the reform (212-213).

There are nevertheless several ‘success stories’ in the book, although Harding and others are careful to warn us that it is hard to draw any conclusions on whether a transplant has been a success or a failure (28). That is purportedly the case, for instance, with the recognition of equal rights for men and women in Japan, under US influence, after World War II (81), and with the acceptance of the doctrine of ‘good faith’ by the UK Supreme Court in 2014 (111). Some of the contributors to the volume seem to assume that legal transplants are always a good thing, since they criticise the reluctance shown by domestic courts and legislators to incorporate foreign legal solutions (e.g. Gray, in chapter 5; Campbell and Lee, in chapter 7), and it is with undisguised enthusiasm that the editor, Vito Breda, looks at the overseas-inspired institutional reforms in East Asia and Oceania as positive developments aimed at increasing prosperity, managing environmental issues and protecting rights (1-2). In our view, however, while the benefits of state compliance with international legal standards (i.e. vertical transplants) are fair to assume, it is far from evident that horizontal legal transplants are always a desired outcome or that the way forward is necessarily through more transplants, as suggested by some of the contributors. We are also sceptical of Breda’s ‘rose-tinted’ view of current legal transplants as freed from the vices of colonialism and designed to fit into pre-existing cultures (3), since ‘copy and paste’ transplants are still underway in smaller countries such as Timor-Leste and there are problems of fit aplenty in the whole region. The sample of legal transplants discussed in the book is, in any case, rich enough to offer us a balanced view on the advantages and perils involved in these processes of legal cross-fertilization.     

Suggested Citation: Patrícia Jerónimo, Review of “Legal Transplants in East Asia and Oceania” (Vito Breda ed., Cambridge 2019), Int’l J. Const. L. Blog, Dec. 19, 2019, at:“legal-transplants-in-east-asia-and-oceania”-(vito-breda-ed-)


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