Legal Transplantation and Legal Development in Transitional China
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subsequent movements emerged with different theoretical foundations and strategic emphases.11 The collapse of the former Soviet Union and the socialist bloc encouraged the transplantation of the European and American legal model to East European and former Soviet Union countries as they tried to restructure their legal systems.12 In today’s world, no national legal system can be separated entirely from foreign and international law. Many comparative law scholars emphasize the importance of legal transplantation in legal and social development. Orucu states that “the movement of legal institutions and ideas is trans-border and such transmigration is a natural phase in legal development. This is both a historical and present fact and the future will see more of it.”13 He further asserts, “It is a truism that the amount of innovation in law is small and borrowing and imitation is of central importance in understanding the course of legal change.”14 Sacco holds that “borrowing and imitation is therefore of central importance to understanding the course of legal change.”15 Watson points out that direct transplants of legal systems have proliferated in human history and constitute the most important forces for legal development.16 Watson questions Savigny’s volksgeist (popular consciousness), the Marxist theory of economic determinacy, and Jhering’s and Pound’s theory of the sociology of law. He contends that the relation between law and society is more remote than people think and that legal rules are not designed for the particular society in which they operate.17 Not all scholars recognize the important role of legal transplantation in legal development. Montesquieu asserts that “the political and civil laws of each nation ought to be only the particular cases in which this human reason is applied. They should be adapted in such a manner to the people for whom they are framed that it should be a great chance if those of one nation
11 David M. Trubek, Law and Development in a Time of Multiple Visions: The Challenge of the New Developmental State, presentation at Renmin University Law School, available at http:// www.law.ruc.edu.cn/Article/ShowAritcle.asp?ArticleID=11151. Trubek states, “In the first moment, law was seen as a strong tool to be used by the state to shape and guide behavior. In the second it was promoted as a shield against state intervention and a framework for private transactions.” The third moment is a new type of law and development in developing countries, exemplified by China and Brazil, which show “signs of wanting to move beyond neo-liberalism without simply trying to return to the developmental state of the 1950s and 1960s. . . . The new theories stress the idea that policies must be constructed through experimentation and public-private collaboration and tailored to the needs of specific industries and regions, . . . [and] suggest the need for variation within each nation as well as among them.” 12 Daniel Berkowitz, Katharina Pistor, & Jean-Francois Richard, Economic Development, Legality and the Transplant Effect, 47 European Eco. Rev. 166 (2003). 13 Esin Orucu, Law as Transposition, 51 Intl. Comp. L. Q. 205 (Apr. 2002). 14 Id., at 206.
15 Rodolfo Sacco, Legal Formants: A Dynamic Approach to Comparative Law, 39 Am. J. Comp. L. 394 (1991). 16 Watson, supra note 3, at 95. 17 Watson, supra note 6 at 8.