Comparing Two Legal Transplants - Essay Example

Law 11 February Legal Transplant Introduction The study of legal transplant gives an exceptional way of dealing with themain theories concerning the legal change. Legal transplant has been described by Ngelbrekt and Nergelius as “a process in which a law, or a particular legal institution, is taken from one environment, in order to be recreated or redrafted in another” (60). Legal transplant is not an exceptional case in itself despite the fact that there are many barriers separating the legal systems of many countries. The history of legal laws is changing more and more with time. Comparative laws provide a more inside study of the legal transplants. The main purpose of comparative law in this case is to provide a deeper knowledge on legal systems (Ritaine 11). From the general study of law, there is great awareness of the transfer of legal concepts, practices and organizations. Atleast in every nation, there has been the use of legal transplant during the development of the legal system; laws have been borrowed from one country to another. There is a lot of evidence that show cases the migration of legal systems from one country to another. It was evident during the adoption of Roman law by many countries; for example, there was a case of legal transfer from America after the World War II to other countries that had been defeated and the migration of legal system from western countries to the countries of the Eastern part of Europe. At the moment, due to globalization, there have been re-dimensions of the legal systems. This has led to the realization of concerns by the European Union, which wants harmonization of legal systems so as to curb the rising of international crime and terrorism (Negura 812). Legal Transplant in China In many processes of critical social transition that China has carried out, it has applied the use of legal transplant as a way of upgrading its existing systems. The main reasons for this being that: The Chinese legal system has for a long time been doomed as original. The Chinese have practiced different social and political structures of governorship. China has placed high value on its sovereignty. Despite this stand, legal transplant has stood to be one of China’s major legal systems that have seen it develop its legal system, while playing the major role in the transition of social systems. It has served as the best means for legal construction. The process in China began in about 1980. The government sat and agreed to setup a new legal system for the purpose of foreign investment, and it began by informing its major foreign embassies to collect joint venture laws from their respective countries of operation. Most government officials also attended major foreign courses dealing with foreign investment and taught by foreign lawyers and professors (Chenguang, “The Function”). Entrepreneurial Transplant This is the model of legal transplant relating to economy whereby individuals and groups gain a lot of benefit due to their investment through investments, learning and encouragement of adaptation of foreign legal systems by the local authority. Cisse et al says that “its success depends on an exporter willing to provide capital and an importer interested in the import, each side guided by what it might gain domestically by operating internationally” (168). China falls in this category of beneficiaries of entrepreneurial transplants as a nation with great interest in creating business opportunities outside the country, while enhancing foreign economic development. The state owned organizations as well as the private entities are working hard to ensure that they are not left out in these openings to the outside world. For the purpose of carrying out their international investment and trade, these investors come to contact with foreign companies and are forced to adapt the foreign rules. Cisse et al. says that “Chinese companies both state owned and private must follow foreign rules when they intend to participate in a foreign securities market” (168). Some countries and enterprises use the foreign commodity standardization for the purpose of making exports to a given nation. The applied legal standards help to regulate and monitor the legality and quality of exported goods relative to the recipient country, and regarding to the result the good may either be blocked or accepted. China is said to be the country at the forefront having implemented this model of legal transplant. Legitimacy-Generating Transplant It appears to be a normal practice for the developed countries to refer the legal orders to as models worth to be copied, therefore landing in this kind of transplant. Cisse et al. defines it as “the process of consciously emulating the most prestigious foreign legal systems” (170). This system has it that a given nation adopts a system whereby a developing country accepts a doctrine, separation of power and a judiciary that has lots of independence. The people view these as legitimate legal orders, especially if they have just come from a leadership full of oppression and dictatorship. Legal systems are of different levels and their effectiveness is determined by the legal family of a given country. The efficiency of the American security system makes it to be commonly viewed as the most prestigious system. China, while drafting its laws and security details regarding the markets turned to the American system. The most areas they emulated the law from are the companies, insurance accounting and banking systems. China takes most of the transplant models, this reflect its unique environment. It is reported by Cisse et al. that “legal transplantation in China may have created new model, positioned within a legal framework underpinned by socialism, based on the Chinese social environment and development to explore the possibilities of a Chinese Socialist market.” (169). Adaptation of legal transplant in China had great success as well as effects; there was selection of the best from varied systems and at the same time, creation of mixed systems. Legal transplant acted as a vehicle for the transition of socialization, as well as economic growth in China. Further advantage is that there was abandonment of leftist systems and the mentality that had cropped up during the cold war was also abandoned. Further benefits that were brought about by the transplant was that it took the direction of adopting a functional and practical approach, which resulted in solving issues that had accumulated in China. With the lesson drawn through Chinese adaptation of these laws, it can be seen that legal transplant is beneficial no matter the model adopted. Whereas the transformation of a nation through legal transplant seems successful, Birnhack observes that “the frame work of legal transplants is rather generic” (26). This forms one of the greatest challenges as it may affect the political, social and cultural systems from the legal system. Both the Legitimacy-Generating transplant and the Entrepreneurial transplant systems contribute towards the adoption of different legal systems by a nation. Entrepreneurial is more of economic significance, while legitimacy- generating transplant is more political. There are two ways in which a country can develop its laws, either from its socio judicial system, or through importation from other nations. The political importation of law is a kind of legitimacy- generating transplant. Yu has argued that and “an entrepreneur can transplant culture and social customs from one location to another, thus, gaining pure entrepreneurial profit” (vii). Benefit of Legal Transplant to Chinese Nation For several years, China had faced many challenges during the process of transformation from a planned economy to a market economy. However, with the transformation, it has then registered an amazing economic growth and a rampant change in its social structure, thanks to the legal transplant system. The motive behind such desire and growth is the government willingness to invest on a powerful status by building a strong and modernized country. Basic conditions guaranteeing successful transplant have offered varied challenges to the government of China. The governing bodies and mechanisms put in place to oversee the implementation of legal transplant have had some loopholes, and often experience clashes between the initial original legal system and the imported one. Regardless of different challenges that China has faced over the implementation of the new system, it has relatively enjoyed a comprehensive system. The small challenges that it still faces is the implementation process for which this can be overcome. China has to be credited with the successful transplantation of the borrowed laws and legal mechanisms. They have already been integrated into the legal system and hit the ground on the spot. The much achieved results are the shortening of law making process. It can therefore been said that the modern Chinese legal system is based on western legal structure, though it maintained some elements from the traditional system such as the committed nationalist and the socialist trait. Whereas the level of external pressure may have an effect of a transplanting law, the success of a legal transplant depends on the degree of involvement of the participants; this being the willingness of the nation to strengthen the process, and the level of protection mechanism put in place to govern the whole process. Shi argues that “an externally- dictated transplant during its initial phase is apt to fail if the domestic invectives or external coercions disappear” (52). Legal transplant promotes regulatory norms, which according to Barnard (56), nurtures stronger social and economic conditions. Works Cited Barnard, Fredrick M. Democratic Legitimacy: Plural Values and Political Power. Canada: McGill-Queen’s Press- MQUP. 2001. Print. Birnhack, Michael D. Colonial Copyright: Intellectual Property in Mandate Palestine. Oxford: Oxford University Press. 2012. Print. Chenguang Wang. “The Function of Legal Transplant in Chinese Social Transition Legal Development”. File last modified September 2011. Microsoft Powerpoint file. Cisse, Hassane et al. The World Bank Legal Review: Legal Innovation and Empowerment for Development. World Bank Publications. 2012. Print Engelbrekt, Antonina Bakardjieva and Nergelius Joakim. New Directions in Comparative Law. Northampton: Edward Elgar publishing. 2009. Print. Ritaine, Eleanor Cashin. Legal Engineering in Comparative Law- An Introduction. n.d. PDF file. Shi, Wei. Intellectual Property in the Global Trading System: EU-China Perspective. New York: Springer. 2008. Print Spataru-Negura, Laura- Cristina. Exporting Law or the use of Legal transplants. n.d. PDF file. Yu, Fu-Lai Tony. Entrepreneurship and Taiwan’s Economic Dynamics. New York: Springer. 2012. Print. Read More