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history. Legal transplantation—the movement of laws and legal institutions from one state to another—is central to the study of comparative and international law.4 In the midst of globalization, legal transplantation has become more frequent and common. The purposes of legal transplantation are not confined to better understanding and improving national legal systems; legal transplantation also promotes the convergence, at least in some fields of law, of different national laws in the global arena. Legal transplantation can be used to improve a national legal system and to promote a uniform global legal framework in the areas of international trade, environmental protection, antiterrorism, international peace, and the protection of human rights. The concept of legal transplantation is an ancient one. Solon of Athens studied laws of other Greek city-states as a basis for social reform. Aristotle studied more than 150 constitutions of other cities to compose Politics. It is said that the XII Tables, the first Roman code, incorporated references to ancient Greek city-states.5 While the Roman Empire declined, the conquering German tribes retained the Roman legal tradition.6 During the Renaissance and the Industrial Revolution, the use of comparative law became increasingly significant in the rising nation-states. Even the “original” Western legal systems were affected by foreign law: French and German legal systems are based on the Roman legal tradition;7 Anglo-American law is also influenced by civil law.8 In the 19th and early 20th centuries, the emergence of the global market and colonization brought these legal systems to Africa, Asia, and Latin America.9 After World War II, globalization engulfed the world. The US model of law and development introduced “ideal” legal models to the newly independent states.10 Despite the failure of the first law and development movement, 4 Jonathan M. Miller, A Typology of Legal Transplants: Using Sociology, Legal History and Argentine Examples to Explain the Transplant Process, 51 Am. J. Comp. L. 839 (2003).
5 René David & John E. C. Brierley, Major Legal Systems in the World Today: An Introduction to the Comparative Study of Law 1–2 (2d ed., Stevens & Sons, 1978); Andrew Borkowski, Textbook on Roman Law 26 (Blackstone Press Limited 1994). 6 Alan Watson, The Evolution of Law 77–92 ( Johns Hopkins U. Press 1985); M. H. Hoeflich, Law, Society and Reception: The Vision of Alan Watson 85 Mich. L. Rev. 1086 (1987). 7 John Henry Merryman, The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America 10 (2d ed., Stanford U. Press 1985).
8 Watson demonstrates that Commentaries on the Laws of England, by William Blackstone, the founder of English law, was based on a reference to Dutch scholar Dionysius Gothofredus’s (1549–1622) interpretation of the Institutes of Justinian. English and American conflicts of law referred to Praelectines Iuris Vivilis et Hodienrni by Ulrich Huber, a Dutch scholar. See Alan Watson, Legal Transplants: An Approach to Comparative Law 94, 109–110 (U. Georgia Press 1993). Jerome Frank points out that “[c]ivil law tradition has many impacts on common law.” He expounds on the far-reaching but often neglected impacts of civil law tradition on American common law in the areas of the constitution, conflicts of law, legal interpretation, and judicial procedure: “The influences of civil law on common law are legion. Many of them doubtlessly can’t be detected.” Jerome Frank, Civil Law Influences on the Common Law: Some Reflections on “Comparative” and “Contrastive” Law, 104 U. Penn. L. Rev. 888 (1956). 9 David & Brierley, supra note 5, at 69–73; and Shen, supra note 3, at 75–77.
10 Daniel Berkowitz, Katharina Pistor, & Jean-Francois Richard, The Transplant Effect, 51 Am. J. Comp. L. 163 (2003).