Law, Justice, and Culture: Legal Transplants

Law, Justice, and Culture: On Legal Transplant

Theoretical Foundations

  • Culture Defined: As the way we make sense and give meaning to the world, realized collectively and expressed in practices (Stuart Hall).

Law and Culture

  • Culture determines societal values, influencing law as an internalization of culture.
  • Law and legal institutions can performatively shape culture.

Cultural Values

  • Cultures reflect the values, concepts, and ideas a society deems acceptable.
  • These are developed over time and shaped by historical events, leading to different approaches to law, justice, legal institutions, and processes.

Examples of Cultural Approaches to Law

  • Pre-colonial Benin: Dispute involved not only direct parties but also their families.
    • A family member might incur a legal penalty for a relative's involvement in a scandal (Idahosa Osagie Ojo and Eghosa O. Ekhator).
  • Tribes in the Levant area: Dispute resolution was based on negotiation between tribal representatives to amend harm, vestiges of which still exist.
  • Yoruba Proverbs and Justice:
    • "[i]bi o jubi. Bi a ti bi eru, ni a bi omo" - "there is no superior birth; as a slave was born, so was one’s child" (egalitarianism).
    • "[t]i a ba fi owo otun ba omo wi,a a fi ti osi fa a mora" - "when we rebuke a child with the right hand, we must use the left to embrace him or her" (corrective justice).

Legal Pluralism

  • The coexistence of different legal systems in parallel.

Universality vs. Particularism in Legal Thought

  • Universality:
    • Jean d’Aspremont: "When one inhabits the center, everything around looks universal… one does not see the hegemony, the imperialism, the repression of difference… Inhabiting the center transforms our cognitive aptitude and make us blind."
  • Colonial Europe & Universality:
    • Premised on Christianity: God’s words are universal.
    • After the Enlightenment, European culture was seen as an expression of universal human essence.
    • Imperialist expansion was presented as a universal civilizing function or modernization.
    • Resistances of other cultures were seen as a struggle between universality and particularism (Erensto Laclau).

What is Legal Transplant?

  • Law received from foreign cultures or imposed by foreign countries (R.hode).

Interaction of Cultures and Law

  • Cultures have always interacted, sharing experiences and affecting the evolution of law.
  • Legal transplant was sometimes for economic exchange (e.g., the Ottoman Tanzimat).
  • Example: Transplanting French corporate law in the Ottoman Empire (Ron Harris).

Legal Transplant and Colonialism

  • Much of contemporary legal transplant happened in the context of colonization, particularly in private law (commercial, contract).
  • Colonialism played a significant role in establishing legal institutions in a specific style.

Harmonization of Laws Across Colonies

  • Perspective 1: Eased exchange between communities, especially with globalization.
  • Perspective 2: Not adapted to the needs of each community and eradicated many different legal cultures.

Interests of Elite and Colonizing Powers

  • Frantz Fanon: "During the period of liberation, the colonialist bourgeoisie looks feverishly for contacts with the elite and it is with these elite that the familiar dialogue concerning values is carried on.”
  • Example: The transplant of commercial law in Palestine in 1929 (David B. Schorr).

Criminal Law in Mandate Palestine

  • A repressive system with a long-lasting impact.

Jeremy Bentham in India

  • His ideas on utilitarian justice were codified in the Indian Penal Code, overseen by Thomas Babington Macaulay in the 19th century (1833).
  • Stokes: "The physical and mental distance separating East and West was to be annihilated by the discoveries of science, by commercial intercourse, and by transplanting the genius of English laws and English education."
  • This often meant the loss of plural legal formations that existed pre-colonialization.

Loss of Pre-Colonial Legal Systems

  • Slavoj Zizek: "what is oppressed is not the actual pre-colonial India, which has been for ever lost, but the authentic dream of a new universalist democratic India."

Outcome: Different Systems of Law

  • Common Law
  • Civil Law
  • Mixed Law
  • Other systems (Jewish law, Muslim law, Customary law)

Legal Systems of the World

  • Includes subcategories like Napoleonic law, Germanic law, Nordic law, and mixed forms.
  • Islamic law applies in personal status issues in some regions.

Debates in the Field of Comparative Law

  • Comparative Constitutional Studies (Günter Frankenberg).

Traveling Theory (Edward Said)

  • Ideas and theories travel from person to person, situation to situation, period to period.
  • Cultural and intellectual life is nourished by this circulation.

Watson vs. Le Grande Debate

  • Watson:
    • Had a functionalist perception of legal transplants.
    • Believed transplant was a good way forward in legal evolution; universalist logic.
    • Answered that people borrow laws "because borrowing is easier than thinking."
  • Pierre Le Grande:
    • Argued laws change meaning when transplanted in different contexts (contextualism).
    • "[W]hat can be displaced from one jurisdiction to another is, literally, a meaningless form of words… 'legal transplants', therefore, cannot happen."
  • Robert Cover: "[I]f there existed two legal orders with identical legal precepts … they would nonetheless differ essentially in meaning - if, in one of the orders, the precepts were universally venerated while in the other they were regarded by man as fundamentally unjust"

The IKEA Theory: The Journey of Legal Transfer

  1. Point of Origin:
    • The origin of a rule can be difficult to establish.
  2. Decontextualization:
    • "It has to be shock-frozen and packaged… for the transgressing of time, space, and context."
  3. Transfer:
    • Transfer from one context to another.
  4. Education of Third World Lawyers:
    • In parallel to the transfer was the education of third world lawyers in the Global North.
    • Constitutional elites, legal consultants, and political activists shop for ideas & institutions.

Historical Context

  • French Napoleonic Code of 1810 is the historical origin of 'Marry your Rapist' Law

Recontextualization

  • Involves unfreezing and unpacking, with adaptation and modification of imported information.

Risks of Legal Transplant

  • Rejection
  • Bad fit
  • Missing links

Legal Irritations

  • In a new context, rules might evolve differently (Teubner).
  • "When a foreign rule is imposed on a domestic culture… it works as a fundamental irritation which triggers a whole series of new and unexpected events” Gunther Teubner

Cultural Identity and Law

  • Masaji Chiba: "the whole process and outcome must be viewed with the total history of the people concerned – a history in which they have endeavoured to preserve their cultural identity in law against other peoples."