Band 10, Heft 2 - Histories of Legal Transplantations

The argument of this Article is based on positivist postulates (principally from Hart) defining law as the union of primary rules (social norms) and secondary rules (of recognition, change and adjudication). Taking the presence of rules of change to be decisive for the appearance of legal orders, the author first looks for their origins in the Western world. Romans were the first, in the Western world, to develop a legal system with a clear rule of change, the possibility of a new statute abrogating an old one. This Western concept of law has been exported by Western colonialism to America, Asia (especially India), and Africa, transforming social (and customary) rules into laws thanks to the use of a Roman frame. While Jewish, Chinese and Islamic legal systems also fit this definition, their rules of change were not identical to the Roman ones (because of their stress on interpretation rather than direct change). However, these other systems were not as successful as Roman law, which was linked historically with imperialism and colonialism.

In the early nineteenth century, authoritative treatise writers such as James Kent and Joseph Story represented Anglo-American trust law as a seamless web. But the transplantation of trust law from England to America was not a simple process of adherence. Rather, American courts and legislatures came to discard fundamental English trust doctrines. Restraints on anticipation and on alienation were embraced, and in key state jurisdictions bare trusts were abolished, or else displaced from the core of trust law. Irreducible settlor power over beneficiaries and the strong protection of beneficiaries from creditors under spendthrift trusts were two strikingly original American creations, which flowed from these basic doctrinal choices. The changes made to American trust doctrine yield a paradox for the legal, social and economic historian, namely that republican America ended up with a more dynastic property law, more wedded to dead hand control and more hostile to commercial creditors, than did aristocratic England with its unreformed system of common law and equity rooted in the feudal property system. The American abandonment of free alienability of beneficial interests and the corresponding reduction of the beneficiary’s powers over trust assets may have been rooted in the volatility of credit in America and the desire of the wealthy to escape from the pressures of the market, though disparities between jurisdictions remain to be explained.

This Article applies the concept of "legal transplant" to the slavery regimes that sprang up in all regions of settlement during the first two centuries of English colonization of mainland America. Using a distinction between "extrastructure" and "intrastructure," we can divide the Anglo-American law of slavery into discourses of explanation/justification and technologies of implementation. The two components were produced from distinct sources. English law possessed few intellectual resources that could be mobilized to justify and explain slavery as an institution. Here we find the law of nature and nations uppermost. English law offered many resources, however, for the management, distribution and control of movements of people. Thus, the Anglo-American law of slavery combined two transplanted resources within itself. As colonial settlements turned into slave societies, local innovations increasingly supplemented original transplants, compensating for their deficiencies and limitations and becoming, in turn, a third species of transplant. Assembly laws moved from colony to colony, creating commonalities within regions of settlement, and also — more interestingly — among regions usually thought quite distinct. Together the three species of transplants created densely instrumental slave regimes that enumerated all the ways in which summary mutilations and executions defined the slave’s life on the edge of death.

A sizeable body of literature suggests that informal methods of dispute resolution — and, in particular, conciliation — flourish only in societies marked by extensive social hierarchy. Given this literature, it is quite surprising to discover that in the mid-nineteenth century, the United States embarked on an extensive debate regarding whether to adopt "conciliation courts," whose primary function was to reconcile the disputants by persuading them to embrace an equitable compromise. First created by the French Revolutionaries in 1790, conciliation courts were widely established throughout continental Europe. Observing this development, leading American lawyers and politicians pondered seriously whether the United states ought to follow suit. Debate over whether to embrace such institutions occurred at the very highest of levels, and a series of states enacted constitutional provisions authorizing their legislatures to create conciliation courts. Ultimately, however, despite the widespread interest in such institutions, these were never established — except in the notable case of the Freedmen’s Bureau courts of the Reconstruction South. This Article explores this largely forgotten episode in American legal history. It examines why a nation that was radically egalitarian by standards of the time would seriously consider embracing an institution that we tend more commonly to associate with inegalitarian, strongly hierarchical societies — and why, after coming so close to adopting conciliation courts, it ultimately failed to do so. In the process, by situating the debate over conciliation courts in a broader social and legal context, the Article also excavates the origins of the modern, quintessentially American commitment to the virtues of formal, adversarial process.

This Article addresses a different sort of legal transplant — one in which outside legal doctrines are imported in order to be cabined, treated as normative counterpoints, and identified as the legal other. Legal primitivism is a kind of anti-transplant. It heightens the persistent differences between a dominant legal system and its understanding of primitive rules. An often ignored legal literature depicting legal primitivism emerged in the second half of the nineteenth century and in the early twentieth century. Mapping the differences between America’s modern legal system and its antecedents, this immense literature, which included works by OliverWendell Holmes, James Coolidge Carter, and John Henry Wigmore, described an archaic legalism which sometimes belonged to tribal societies, and sometimes was simply conjured out of thin air. Exploring the project of constructing geographies of legal knowledge assists in our understanding of American law in a period of significant change. What elements of primitive law were valorized? Which were seen as archaic or repugnant? And what was the purpose of constructing a legal doppelgänger? By examining these cultural negotiations, and holding legal primitivism up as a mirror to modern law, it is possible to uncover the anxieties of legal modernism.

Racially restrictive marriage laws lay at the intersection of state claims of domestic sovereignty and federal obligations to protect the constitutional rights of citizens. In 1948, California overturned its antimiscegenation law, citing, in addition to the Fourteenth Amendment, the United Nations Charter. This decision sparked a contentious discussion about the relationship of human rights norms to racial conventions in the United States, and triggered a debate about the peril of international law that resulted in an effort to amend the Constitution and limit the treaty-making powers of the president. Both the constitutional and the international logics of individual human rights threatened local custom and energized political opposition. American stigmatization of international human rights norms and treaties was rooted directly in the civil rights struggles in the United States and reflected the potential of international organizations to assault domestic racial conventions at their foundations.

How does one explain the dramatic spread of judicial review after World War II, which culminated in a world-wide constitutional revolution during the 1990s? In order to explore this question, this Article first attempts to examine some methodological difficulties that regularly impede the study of constitutional transplants. It concludes with speculation about the relationship between the rise of judicial authority and the decline in the legitimacy of democratic institutions.

This Article discusses the transplantation and harmonization of company law legislation in the British Empire in the early 20th century and in Palestine in particular. It describes the displacement of Ottoman law and its replacement by British company law in Palestine, particularly through the Palestine Companies Ordinance 1929. The Article suggests that the transplantation of British company legislation into Palestine was neither straightforward nor all-encompassing. The Article discusses some specific areas of transplantation difficulty in the case of mandatory Palestine, viz. private companies, foreign companies, branch registers, and limits on land acquisition.

The American Declaration of Independence served as a starting point for the drafting of the Israeli Declaration of Independence of 1948. Most of the original content was lost in the long process of translation and adaptation, but, using David Armitage’s recent terminology, the Israeli text remained as "generically promiscuous" as its predecessor, combining a "manifesto" of justifications for the assumption of sovereignty, a formal proclamation and a proto-Bill of Rights. This Article depicts the work of Mordechai Beham, the Israeli Declaration’s first draftsman, as a remarkable exercise in choosing contemporary, locally-valid "answers" to the fundamental "questions" posed by Thomas Jefferson and his contemporaries in 18th century America on human values, national identity, statehood, and God. The analysis is partially based in the current debate on "legal transplantation," arguing that the outstanding success of the Israeli Declaration stems from both the quality of the American original and the massive work of adaptation to Israeli soil.

This Article tells the story of two legal cooperation projects established by the Israeli Ministry of Justice in the 1950s and 1960s. The Article argues that the history of these projects can suggest a new way of understanding the process of legal transplantation. Much of the literature on legal transplants focuses on the legal norms transplanted. This Article seeks to shift the focus of the debate from a discussion of the legal norms transplanted to a discussion of the social acts involved in the process of transplantation. The Article argues that while transplantation may be motivated by practical considerations, such as the desire to obtain foreign norms which are deemed superior to local law, it is sometimes also a process of signaling. The two legal cooperation projects discussed in the Article, it is argued, were, to a certain extent, signaling devices used to communicate to Israel’s potential allies the fact that Israel was part of the civilized world, and thus a partner worthy of its cooperation, and also the fact that Israel was a state stable and strong enough to survive in the hostile environment into which it was born.

Following independence in 1948, the Hebrew University of Jerusalem founded a law faculty and modeled it on the European example (Continental and British). Today, the Israeli law faculty is much more similar to the U.S. law school than to institutions of legal education in Europe. This Article traces the history of the changes in Israeli legal education. It argues that the shift began after 1967, faced resistance in the 1980s, and gained momentum in the 1990s. Presently we may be witnessing the beginning of a shift away from U.S. influence and back to Continental Europe or even Asia. The Article discusses three major educational components, which together signaled the shift to U.S. influence: a student-run law review, curricular reform, and open and lively class discussion. The Article then offers several factors to explain the shift: judicial opinions that began to rely on American decisional law, the adoption of the U.S. model of practice by the legal profession, the privatization of law schools, globalization, and Americanization and foreign affairs. Finally, the Article considers the contribution to Americanization made by active U.S. attempts to export American law to other legal systems.

This Article deals with legal transfer during the first decades after the foundation of the Bulgarian state in 1878, starting from the premise that law is based on communicative distinction rather than separation from society. Foreign law may therefore affect not only the native law, but also the form in which the latter is related to society. Thus legal transfer can also stimulate the (co-)evolution of law. The verification of this hypothesis is the aim of a greater project of which the present Article is a part. The Bulgarian state relied a great deal at first on traditional practices of self-government and partly upon the modern Ottoman law, both of which were acknowledged by the Provisional Russian Rule in Bulgaria. Subsequently, Western law was eclectically imported at the expense of local traditions. It seems, however, that the "precious cargo" of modern Western law was relegated at first to the periphery of society, and the courts, for the most part consisting of elected laymen, experienced great difficulties in dealing with it, when it came to their knowledge at all. This is evidenced by customary law, and by some examples related to legal reasoning and legal critique, which may suggest both the persistence of traditional structures and their irritation through the transfer of foreign law.

The study of legal transplants provides a vital critical supplement to mainstream theories about legal change. Legal transplants are not exceptional or isolated occurrences, despite the economic, social, political and cultural barriers that separate the world’s legal systems. This Article goes beyond traditional approaches to the study of transplants by substituting the figurative language of transplants with explicit theory about how legal change is produced. It first provides a brief account of what the literature on legal transplants has achieved so far in terms of "macro" explanations of legal change currently available. It then argues that legal transplants as social acts performed by individuals call for a study of the "micro" level of engagement with legal change by individuals. The key notion that is advanced to explore this dimension is the notion of mediated action, which denotes action that is performed by individuals making use of features of the environment as tools to interact in a specific setting. The notion of mediated action was first introduced in cultural-historical psychological investigations of the social formation of the mind. As social acts, legal transplants represent instances of mediated action. The last part of this Article highlights how legal transplants raise questions of justice and discusses briefly how the new approach to the study of transplants advocated here relates to them.

We live in an age of massive efforts to transplant Western institutions. Some of those efforts have involved the so-called "Washington Consensus"; some have involved International Human Rights; but all of them have brought the West to the rest of the world, and all of them reflect a kind of missionary drive. What are the historical sources of this legal missionizing? This Article argues that those sources long predate the twentieth century, and indeed long predate the colonial adventures that began in the sixteenth century. Western law was already culturally predisposed to spread well before Iberian ships reached the Americas. In particular, Western law began, in antiquity, as city-state law, and only gradually penetrated the countryside. This colonization of the countryside by the cities took place partly under the influence of Christianity. It also reflected a centrally important event in the development of Western law: the great northward shift of the center of gravity of Western culture from the Mediterranean to trans-alpine Europe, which we can roughly date to 700-1000 C.E. The long, slow internal colonization of the countryside in the West set much of the pattern for the external colonization of the non-Western world that eventually commenced in the sixteenth century.