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• The transplantation of original law into a civilized area
• The voluntary acceptance of another nation’s law by the native people
In addition, there are other types, such as imposed acceptance, selective adoption, intrusion, filtration, and tacit acceptance. Watson believes that both the type and scale of transplantation vary and that, without specific study of individual cases, categorization has little value and cannot bring new ideas to comparative study.26 Although legal transplantation is a normal form of legal development, it is by no means the only form. A particular social environment and country-specific factors are the major determinants of the development of a legal system. The necessity for and inevitability of revision, adaption, and naturalization of transplanted rules by the recipient country cannot be overlooked. Miller uses motives of legal transplantation to categorize its types. This categorization helps explain the internal impetus for legal transplantation in China. Miller believes that there are four types of legal transplantation: • The cost-saving transplant
• The externally dictated transplant • The entrepreneurial transplant
• The legitimacy-generating transplant27
This typology shifts the focus of transplantation from the donor’s perspective to the recipient’s perspective. In practice, “many transplants are a mix of the four types, and one rarely encounters a type in pure form.”28
The Cost-Saving Transplant Implemented to save time and costly experimentation, a cost-saving transplantation “involves a drafter who when confronted with a new problem pulls a solution from elsewhere off the shelf of the library to save having to think up an original solution.”29 This type of transplantation has the benefit of speed, convenience, and direct application. However, it must be supplemented by a functional and systematic approach that is “the starting point and basis of all comparative law and that different legal systems can be compared only if they solve the same factual problem, satisfying the requirement in adequate legal regulation.”30 In the cost-saving approach, the prospective laws and mechanics to be transplanted are analyzed and selected after it has been determined 26 Watson, supra note 6, at 29–30. 27 Miller, supra note 4, at 842. 28 Id.
29 Miller, supra note 4, at 845.
30 Zweigert & Kötz, supra note 3, at 34; see also Jeffrey L. Dunoff & Joel P. Trachtman, Ruling the World? Constitutionalism, International Law, and Global Governance, in Constitutionalism, International Law and Global Governance 9 ( Jeffrey Dunoff ed., Cambridge U. Press 2009); Djalil Kiekbaev, Comparative Law: Method, Science or Educational Discipline? 7.3 Electronic J. Comp. L. (Sep. 2003), available at http://www.ejcl.org/73/art73-2.html.