Categories: Sample Papers

malicious legal transplants

INTRODUCTION

Legal transplant is a concept that was initially developed by Alan Watson in his book Legal Transplants: An Approach to Comparative Law.[1]  It is the legal term used to define the moving/ diffusion of laws from one country into another country’s legal system. The borrowing country is mainly inspired by the successful impact the laws have had in the parent country. Standard transplant is one of the most significant factors that is used to analyze the concept of comparative law. Essentially, comparative law is defined as the study of research and methodology of different legal systems in the world. Therefore, to understand the concept of malicious legal transplants, this paper has first defined legal transplants. Afterward, it has defined the concept of malicious legal transplants. The third topic deals with comparative law, thus focusing on its proponents. The fourth chapter deals with types of legal transplants. The fifth topic deals with the styles and examples of traditional families. Further, this paper has analyzed various advantages and disadvantages of legal transplants. This paper has critically evaluated these topics to bring out the intended goal of establishing malicious legal transplants.

Legal transplant is also linked with the diffusion of innovations research.[2] To connect a standard transplant and an innovation, the study laid out characteristics of an invention. The first characteristic was an innovation succeeds if it is compatible with the preconditions of the adopter. Secondly, a design is only acceptable if it is proved to have an advantage over the existing norms. Thirdly, if an invention has preexisting benefits that are observable, it will be accepted. Lastly, a design that creates space for trial and error will be highly recommended.

Legal transplant, otherwise known as traditional borrowing, is a principle that arises through the interconnection between society and law. Law is formed by a few individuals who are elected by the majority to act as their representatives. Consequently, not all individuals take part in the consultations of legal transplants. The elite of a particular country is mainly the people who take up the talks and negotiations regarding legal transplantation. Lawyers, together with the law-making elite, may, at times, adopt rules that are only favorable to them for reasons best known to them only. In the European Union, the overlapping, contradictions, and inconsistency of various legislations is a considerable challenge. In some instances, the naming or the phrasing in legislations may be ambiguous and unclear. Cases that were pending before the court took even longer before they were heard and determined. This was caused by the contradicting and differing legal norms and practices among the member states before forming a neutral ground.

Malicious legal transplants

Malicious legal transplant is defined as the imposition of rules that are harmful to society’s social coexistence that existed previously.[3] In this particular instance, one societal group imposes its social, political, or economic norms in another country that does not need the set standards. The concept of malicious legal transplant has two elements that must be established. The first is the subjective approach, and the second is the objective approach. In the accurate test, the legal transplant termed as malicious must be proven to cause harm or the intention to cause damage to the society where the rules are brought into. The subjective approach indicates that a malicious legal transplant must constitute a factor that recognizes that the adopted rule will subsequently cause harm to the intended society. Laws adopted to discriminate against people on grounds such as race are perfect examples of malicious legal transplants’ products. For instance, the racial segregation laws enacted in the United States of America are believed to have been a significant inspiration to the racial purity and racial identification formulated by the Nazi government.

Further, the laws of Mussolini in Italy were broadly adopted from the Nazi laws. Another example of a malicious legal transplant is Saudi Arabia’s imposition of religious laws that are not associated with believers’ practice. For instance, the importation of non-Muslim religious material attracted punishment. International examples of malicious legal transplants are the Muslims’ prohibition of joining the legal profession in Nigeria and Sharia law in Indonesia against non-Muslims. The criminalization of gay acts through British Colonial law by British colonies is another example of a malicious legal transplant. The problem with malicious legal transplants is not introducing new legal order but submitting a new legal order that is indeed malicious.

Comparative law

Comparative Law is defined as the study of similarities and differences between different legal systems in different countries. Different countries have other standard procedures that are unique in every country. [4] The uniqueness of legal systems can be attributed to the diverse needs in different countries. This is because traditional methods are constructed to fulfill the people’s needs, and other communities and societies have different needs. The purpose of comparative law is to help researchers or readers attain in-depth knowledge of the legal systems.[5] Even where no explicit comparison is undertaken, Comparative law includes the description and analysis of traditional foreign methods. Comparative law is helpful since it impacts one with a better knowledge of one’s national laws and how to improve the existing laws. Under International law, comparative law is useful in understanding different legal systems and the norms as it furthers one’s understanding of other people’s standards and practices. Internationalism is one factor that confers Comparative Law its essence and importance; this is attributed to the fact that this specific area of law does not only focus on one country or one legal system; instead, it comes up with legal analysis after studying different traditional methods.

In his paper ‘, When constitutional theories migrate,’ John Ely recounts that the consensus behind transnational borrowing of literature regarding constitutional making is inevitable and impossible.[6] New Zealand has an unwritten constitution. It is a perfect example of a body formed from various inspirations and scholarly works of different people from different countries. Toral model is designed from Germany’s electoral model. As much as transnational borrowing of constitutions is inevitable, it is impossible because the borrowed literature must be adopted and adjusted in various forms to become suitable for the specific country and legal system. However, borrowing is a very convenient and practical method in countries with similar traditional systems. For instance, governments with the standard law system can easily borrow and apply other common law countries’ constitutional provisions in their traditional methods. Qualities such as flexibility, intermittence, contestation, and impermanence characterize the function played by scholarly theories in scholarly works such as John Hart Ely’s is described.

The positive research in comparative law

Mainly legal transplants aim at incorporating ideas that have been successful in other countries. The power relationship between the two sovereign states is a crucial considerate consideration ta transplant.

The Comparative law normative approach

The optimists argue that legal transplant helps countries address major social and economic problems. In a normative approach, optimists urge comparative law lawyers to increase their intellectual interaction and borrowings. Further, the normative approach argues that the applicability of legal transplants is not impossible. This is based on the various instances of successful traditional borrowing that has been evidenced among donor countries and recipient countries. Pessimists, on the other hand, argue that standard transplant proves unfavorable to the incoming legal system. They say that foreign imported law pollutes the domestic legal order.

Additionally, pessimists say that legal transplants fail because they do not critically consider the differences between the two traditional societies. The differences may be social, political, and economic, necessitating the borrowing country to adjust the borrowed norms to suit the present community. For instance, the ideals and origins of human rights in Western culture should not be directly transplanted into other legal systems such as the Asian and African societies. In Asia, human rights conflicts with that in the west and similarly in some African countries.

Types of legal transplant

The first type of legal transplant is the externally dictated transplant. The second is the cost-saving transplant. The third one is the legitimacy-generating transplant, and lastly, the entrepreneurial transplant. They are externally dictated when societies imposed their norms and customs on other institutions after a victorious war. For instance, if tribe A fought with tribe B and tribe B successfully conquers tribe A, tribe B takes over that territory and imposes its rules and societal norms on tribe A. Therefore, this type of legal transplant is quite intermingled with the other types of legal transplants. It poses a challenge, especially when seeking to attach a specific definition free from other legal transplants. The relationship between the donor, country B, and the recipient country A arises in several forms. One is the relationship between a member state of an international organization and the specific organization itself.

The second one is the relationship between a state, a provider, and the state that is the receiver. The third is the relationship between more robust and less influential military members or a political organization. The last one is the relationship where the winners and losers of a military conflict as identified in the hypothetical example of tribe A and tribe B. The cost-saving transplant is defined as a more straightforward approach adopted by one country seeking to save on costs that would otherwise be incurred in forming the original solution. Generally, for one government to adopt another country’s law, it must critically evaluate the other country’s rules and further analyze its application and how successful the enforcement of the regulation stations has been. The borrowing country then focuses on its problem at hand. If the borrowed law’s adoption and application will be useful in achieving the intended purpose, the government adopts the borrowed law. It makes it formally binding on its citizens.

The cost-saving type of legal transplant is cost-effective and efficient because it reduces the long and tedious law-making process. On the other hand, legislation generating transplant is defined as the test used to determine which developed country will act as the law donor. Essentially, not all countries are law donors. Only a few countries are law donors and what this type of legal transplant focuses on is which countries have the legitimacy of acting as law donors.

The entrepreneurial transplant legal theory is focused on a type of transplant that arises as a result of the efforts of various parties seeking to push forward a specific agenda. The parties may be NGOs or companies that introduce new foreign regulations into another country for useful company affairs. This type of legal transplant works because the owners of the companies or the NGOs are a group of experts who have worked in developed countries. They are considered to possess significant influence in a legal change in that they may give suggestions for the incorporation of foreign law. The introduction of foreign rules and regulations would bring forth a favorable business working environment.

 Types of Legal families

There exist at least three commonly known legal families in the word. These include the standard law legal system, the socialist/civil law legal system, and the Romano-Germanic legal system.

The Romano-Germanic legal system is a legal system that governs countries’ beliefs grounded on the ideals of justice and morality. This law developed as a private law that essentially sought to control the personal disputes between private citizens. When the European countries governed by this legal system colonized other countries, the Romano-Germanic legal system was subsequently used in that colony. Other countries that were not colonized but adopted this legal system adopted it through a process known as voluntary reception. Some countries that have borrowed law from Roman-Germanic have retained the original version of the rules and have barely made any strenuous efforts to change any aspect of that law.

The socialist-civil legal system is a legal system that solely seeks to overturn the Roman-Germanic legal system’s very elements. Initially, most countries subscribing to the socialist legal system were under the Roman-Germanic system but changed due to conflicting factors. The socialist legal system originated from the Union of Soviet Socialist Republics, where a new law was developed, but the initial ideas were retained. In the traditional method, there exist two distinctions. The first distinction represents a socialist family that has persistently kept most Roman-Germanic elements and principles. This family closely resembles the Roman-Germanic legal system with some slight differences. The second classification is the socialist family that seeks to determine how the new laws will be reconciled with the existing principles which governed their civilization before the socialist era. The critical elements of a civil legal system include. First, there exists a written constitution that is based on some codified rues. The second aspect is that legal scholars’ writings are incredibly persuasive and significantly influence the judges. The third aspect is that only legislative enactments are critical in a civil law system, unlike the common law with binding case laws. Thirdly, courts have specific underlying codes, and fourthly, a civil law system has limited freedom of contract.

The standard law system is a body of law that is founded on custom and judicial precedent. Unlike other legal systems, this legal system does not rely on statutes. The courts of countries using the standard law system are tasked to be guided by common law to determine cases that cannot be determined from written law or existing statutes. Additionally, some scholars define common law as the law established by judges. Common law is also referred to as Anglo-American law. This is a legal system commonly used by most Commonwealth members and lately even by the courts in the United States of America. In common law, serious crimes were mainly regarded as crimes against the public and were thus punishable by death and property forfeiture. The standard law system’s key features are that everything that is not expressly prohibited by law is permitted. The second aspect is that there is need not be a written constitution or codified law in this system. The third aspect is that judicial decisions are binding. Higher courts’ findings are binding on the lower courts, while judgments from the lower courts are merely persuasive and not critical. The fourth aspect is that the standard law system gives parties the freedom to contract. It has placed minimal restrictions on contracts, thus promoting the release of the agreement.

Legal transplant or regular borrowing typically takes place among countries with similar traditional systems. It is easier for countries within the standard law legal system to share legal norms amongst themselves. It would be problematic for governments regulated y different traditional systems borrowing. Therefore, a government governed by the civil law system would not borrow from a common law country or a country governed by the Romano-Germanic legal system. This ensures there are consistency and efficiency in a standard transplant.

The object of the legal transplant

The recipient initially has a goal it intends to achieve when adopting or borrowing another country’s norms. The legal transplant can matter either in its substance or its form. The importance of a malicious legal order might play a decisive role at times. At times, the donor country and the receiving country might agree to use a malicious legal norm against the country’s citizens for unjustified gain.

The transplant process

Regulatory competition for legal transplants may prove to be a race from top to bottom. This is because mistakes can happen when transplanting ideas. For instance, the recipient country might be too quick to adopt a legal transplant solely focusing on the cost-saving aspect of legal transplantation. This may later result in problems because some assumed legal norms do not conform to the receiving country’s preexisting legal order. Further, legal transplantation may be a plan intended to strengthen the ties between the borrowing government and the standard donor. This aspect is commonly referred to as a private interest.

Consequently, the receiving countries do not entirely have their hands fixed regarding the use of legal transplantation. Governments have a choice to either adopt or ignore the legal norms that arise from another country.

The advantages of a legal transplant

They help the recipient country in cost-saving. The resources required by lawmakers to formulate new laws would be used in better projects.

It is fast and reliable. This happens because the receiving country will adopt laws that have otherwise been used in the donor country and positively impact the land.

It ensures there is consistency. Countries governed by the standard law legal system have similar cases as precedents. The character evidenced in this legal system has significantly helped those in the legal profession move from one common law country to another common law country.

It plays a critical role in analyzing the concept of comparative law. This happens because, as earlier out in this paper, comparative law focuses on the legal norms and systems in different countries. It also focuses on how the borrowed rules are applied and their nature. Therefore for legal scholars seeking to expound on comparative law, the standard transplant would be beneficial.

The disadvantages of legal transplant

The problem of stability is a problem that has been evidenced multiple times. One of the issues that result from international borrowing is that it puts a country’s legal system on the alert that an imported idea may face instability in the new setting. An example of the contribution of Ely’s work to the New Zealand Bill of rights is neither widely discussed nor understood. Instability might arise where the imported idea or literature has been taken from the host jurisdiction’s scholarly corpus and elevated into a constitutional text. Thus, drafters must be very alert when borrowing theories and works. The problem of normative coherence is another problem that results from transnational borrowing as challenges might arise along the way because the initial idea or concept might be so changed. Its legibility along the way.[7]

The European Union legal transplant

The European Union mainly receives legal transplants based on the European Union legislation. The European Union is an international organization that consists of approximately 508 million people from 28 member states. One important guiding principle of the European Union is that it only acts within the member states’ power scope. Union Law applies to member states in the following ways; some EU Laws are directly applicable. Forms are under an obligation to formulate a law that is consistent with the EU Law. The European Court of Justice guides the national courts’ condition to promote the European Union’s values to join the Union. The values are equality, freedom, respect for human rights, the rule of law, upholding human dignity, and democracy.

The Advantages of European Union Membership

In matters specifically relating to the environment, the following are the advantages of European Union member states. First, the European Union provides suitable means for calling the government to account. This is because the European Union Law is binding to the member states. Once it is formulated or enacted, all members are required to act per the law. Secondly, the European Union has strict standards. It imposes clear targets that must be met by member states. 20% reduction in greenhouse gases release by 2020 is an excellent example of an et. Fixed quality standard, on the other hand, ensures that the quality produced is the best and suitable for use by any consumer in any member state.

Once a state joins the European Union, it must respect and uphold all future and past adopted by the European Union. For a member state to be recognized as a member of the European Union, it must conform politically and economically with the European Union’s stipulated guidelines. Additionally, a state must prove its intention to obey and follow the obligations laid out by the European Union. For instance, Croatia is a state that recently joined the European Union.  The European Union law will therefore be binding in Croatia. The United Kingdom, on the other hand, exited the European Union in a move commonly known as Brexit. December 31, 2020, will be the last day the United Kingdom will be a European Union member. Starting on January 1, 2021, Ja January 1ed Kingdom will successfully exit the European Union.

 

 

The dualism approach and the monist legal approach under European Union

The dualist approach argues that national laws and international laws are entirely separate, independent, and equal. Monist approach, on the other hand, indicates that federal law was derived from international law,

The effects of the imposition of the European Union legal transplant

Negative effects

The legal transplant did not solve all the legal problems under the European Union. It added to those problems that the European Union imposed a law on the EU’s member states’ citizens. The imposed law was mainly contrary to the national law, which led to interpretation inadequacies.  To solve this legal problem, two principles were developed. The first principle was that European Union law was directly applicable in the member states’ traditional systems. Second is that the accepted European Union law was superior to other laws in the member states.

To avoid the adverse effects caused by legal transplantation, in the Burdov v Russia, European Union’s Convention Article 13 was interpreted to mean that the laws, norms, and practices adopted should not only be coherent, clear, unambiguous, uncontradictory but complete as well. This case emphasized the need to have a legal system that has no loopholes. One that is clear and adequately addresses the different challenges that arise on other occasions. Additionally, it was pointed out that if the states and the citizens worked together towards upholding and respecting the law, a lot of time and labor would be saved away from tedious court processes. A conflict between international law and national law has been witnessed. The European Union court held that the dispute could be easily solved by simply giving one priority over the other. The legislation provided in the European legal system and the treaties adopted did not have any clause addressing how such disputes would be solved. To address this commonly occurring dispute, European Union law was accorded superiority to the extent of having the power to do away with a national law ent with the International law.

CONCLUSION

Legal transplantation has it has been highlighted in this paper has several advantages attached to it. However, when the intended purpose is derogated, the traditional transplant automatically becomes a malicious tradition. The features of both a legal and a malicious standard transplant have been addressed, giving a comprehensive example of the European Union legal transplantation challenges.

 

 

 

 

 

 

 

 

 

 

BIBLIOGRAPHY

Statutes/Treaties

Treaty on the Functioning of the European Union 1958, article 288.

 

Books

Alan Watson, Legal Transplants:  An Approach to Comparative Law (1974).

Everett Rogers, Diffusion of Innovations (1962).

Mathias Siems, “Malicious Legal transplants,” Cambridge University Press (2018).

 

Journals/articles

Alan Dashwood, ‘Relationship between the Member States and the European Union/ European Community,’ Common Market L. Rev. (2004) 41, 355.

Gerhard Danneman, The Oxford handbook of comparative law, (2006).

Marika Lerch, ‘Normative by nature” The role of coherence in justifying the EU’s external human rights policy’ (2006), 13(2) Journal of European Public Policy 304-321.

Walter Joseph Kamba, ‘International and Comparative Law Quarterly’ (1974) 485-519.

Wiktor Osiatynski, ‘Paradoxes of constitutional borrowing’ (2003) 1 International Law Journal. Const. L. 244.

 

[1] Alan Watson, Legal Transplants:  An Approach to Comparative Law (1974).

[2] Everret Rogers, Diffusion of Innovations (1962).

[3] Mathias Siems, “Malicious Legal transplants,” Cambridge University Press (2018).

[4] Gerhard Danneman, The Oxford handbook of comparative law, (2006).

[5] Walter Joseph Kamba, ‘International and Comparative Law Quarterly’ (1974) 485-519.

[6] Wiktor Osiatynski, ‘Paradoxes of constitutional borrowing’ (2003) 1 International Law Journal. Const. L. 244.

[7] Marika Lerch, ‘Normative by nature” The role of coherence in justifying the EU’s external human rights policy’ (2006), 13(2) Journal of European Public Policy 304-321.

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